The lot at 35th Avenue and 163rd Street
On Wednesday, July 17th, the Broadway-Flushing Homeowners Association won an incredibly important legal victory: the Honorable Jeffrey D. Lebowitz of Supreme Court of New York State ruled in favor of the association against a developer with intentions of breaking the restrictive covenants that cover the neighborhood.

City Council candidate Paul Graziano, an urban planner and historic preservation advocate and consultant – who placed 1,330 buildings in Broadway-Flushing on the National and State Register of Historic Places in 2004 and designed the contextual rezoning for the entire neighborhood in 2009 (including the "anti-McMansion" R1-2A and R2A zones) to stop overdevelopment – had volunteered his time as an expert witness for the case, along with Mel Siegel, a past-President for the association. The lengthy decision extensively refers to Graziano's more than 3 hours of testimony on the witness stand on April 24th - as well as several other days of attending court and helping prepare the case with the Broadway-Flushing Homeowners Association's lawyer, Vincent Nicolosi, - all for no compensation of any kind.

In his decision, Judge Lebowitz specifically mentions that "The Court found unwilling the defendant's attempts to discredit the Graziano testimony as trying to curry favor with Association members as he was presently running for City Council in a district that included the BFHA. In any event, Mr. Graziano did not testify to opinions, as much as relevant historical data."

The defendant, a developer named Xudong Siao, purchased the property at the southeast corner of 35th Avenue and 163rd Street in 2010 with the intention of tearing down the existing single-family house and subdividing the property. While the zoning in the area, R1-2A, is the strictest in New York City, it would have allowed the 120' x 100' property to be legally subdivided into two single-family houses on 60' x 100' lots. However, the Rickert-Finlay restrictive covenant which covers the area mandates that corner properties have a minimum of 80' x 100', meaning that he would need an extra 20' in order to subdivide the property to comply with the deed restriction.

The defendant's lawyer, Simon Rothkrug, attempted to argue that there were too many violations of the deed restriction over time and that they were no longer valid, nor did the Broadway-Flushing Homeowners Association have the ability to defend them. Graziano proved that, to the contrary, according to his research over 98% of the properties were still in compliance with the deed restrictions, and his argument helped to win the day.

"Along with the recent Appellate Court decision (the Dilluvio case) upholding the Broadway-Flushing Homeowners Association's right to prohibit walls and fences in front yards, Wednesday's decision reinforces the association's ability to stop all of the larger properties with frontage on the avenues from being subdivided, thereby helping to preserve the look and feel of this beautiful neighborhood" Graziano stated.

As described in the decision, "Corner lots are specifically identified...as requiring construction on larger parcels, which the Court finds was to maintain the ambiance and establish open and unobstructed views, or as Mr. Graziano testified, to create a ‘rural-like setting.’” The decision goes on to say that "The Court accepts the Plaintiff's (Broadway-Flushing's) position that the restrictions continue to serve a legitimate purpose, especially as it relates to corner lots, to allow for the continued ambiance afforded the community by open and unobstructed views. This purpose remains as compelling today as the day it was created. In fact this open air view is a substantial reason that homeowners are attracted to this area. Therefore, the Plaintiff has met their burden of showing the continued vitality of the Covenant today."

Finally, for the first time in history, Judge Lebowitz took an adversarial position - and legal opinion - against undesirable development that has been plaguing northeast Queens for over a decade: McMansions.

Judge Lebowitz stated that "The Court takes judicial notice of the rampant development of "McMansions" (though evidence of this problem and the subsequent zoning relief can be found in the trial testimony) in the County of Queens, which were concededly built in conformity with then existing zoning laws, and which prompted a change to the present, more restrictive, R1-2A. This "McMansion" crisis was not experienced in areas covered by restrictive covenants, and underscores the continued vitality of these covenants to maintain the existing landscape of these respective neighborhoods."

"This is a game-changing decision," Graziano stated, "which should help ALL of the deed restricted communities in Queens County and beyond to defend themselves from the crass intentions of speculative developers. Their only intention is to make money for themselves regardless of the price paid by the neighborhood itself, in terms of compromising the integrity of the planned communities of our borough."

Judge Lebowitz's entire decision can be found here:



Manuel Mergal
08/01/2013 4:15pm

Bravo for Judge Lebowitz and bravo for Paul

08/10/2013 6:31pm

Great job Paul. Way to stick it to those greedy developers who would willingly destroy the vitality of the neighborhood with out of place buildings.

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