Westmoreland Association Public Positions

Association Endorses Reform of
Community Facilities Section of NYC Zoning Resolution

December 3, 2007

Hon. Michael Bloomberg
Mayor
The City of New York
City Hall
New York, NY 10007

Dear Mayor Bloomberg

We write to ask for your support for additional reforms to the Community Facilities section of the New York City zoning code. Specifically, we urge that the as of right bulk building bonus be reduced across the board by 75% (with any additional bonus available only by special permit subject to ULURP). We recommend that the number of facilities qualifying as “Community Facilities” be significantly reduced, eliminating, e.g., dormitories, faculty and student housing. Finally, it is important that community facilities be required to conform to the same height restrictions as are otherwise in effect within a given zoning district.

Among the primary purposes of zoning rules is the preservation of community character. The above-referenced reforms are essential to promote this objective. If our communities are overwhelmed by an excessive variety of community facilities, which exceed the very bulk and height limits intended to preserve neighborhood character, it is easy to see that this primary purpose of the zoning rules is forfeited.

The Westmoreland Association represents homeowners in the Westmoreland area of Little Neck, Queens – an area bounded roughly by Northern Boulevard on the south, Little Neck Parkway on the west, the Long Island Railroad on the north, and Nassau Road on the east. At our November 19, 2007 general membership meeting the membership voted unanimously to endorse these reforms, and to support City Council Member Tony Avella in his efforts to effectuate them.

Sincerely,

Walter Mugdan
President

cc: Hon. Amanda Burden, Chair, NYC Department of City Planning
Hon. Tony Avella, Chair, Zoning & Franchises, NYC Council

Statement of Walter Mugdan, President, Westmoreland Association
at a New York City Council Hearing on
Proposed Amendments Concerning the Bureau of Standards and Appeals

The Westmoreland Association, Inc., is a not-for-profit homeowners’ association representing the interests of residents in the Westmoreland area of Little Neck, Queens, New York. The area is bounded generally by Northern Boulevard on the south, the Long Island Rail Road on the north, Little Neck Parkway on the west, and Nassau Road on the east. (The Westmoreland development also includes a number of homes located in Great Neck, Nassau County, New York.)

The Westmoreland area was developed starting in 1906 by the Rickert-Finlay Company, (RF) which subdivided the area into blocks and lots. As each lot or group of lots was sold, a number restrictive covenants was included in the deed which would thereafter run with the land. At the present time, some 330 homes are in the Westmoreland area

The Westmoreland Association enthusiastically supports Int. 261/2006 by Council Members Avella, et al. This legislation would effectively create an appeals process to the City Council from a decision of the New York City Board of Standards and Appeals (BSA).

It has been the sad experience of the Westmoreland Association that the BSA has, historically, been all too willing to grant the requests of developers for variances from the City’s zoning requirements. The granting of a variances should be the rare exception, and not the common outcome of a BSA proceeding.

The subject legislation would allow the City Council – a body of elected representatives – to review a decision of the BSA – a body of appointed officials, not directly responsible to the electorate. We believe this legislation will significantly assist homeowners and homeowners’ associations such as the Westmoreland Association by enabling us to ask the Council to review BSA decisions that allow significant deviations from the Council’s own duly adopted zoning and planning rules. This appeals process will help to ensure that zoning rules are more faithfully observed, and that the character of neighborhoods protected by those rules is better maintained.

Statement of Walter Mugdan, President, Westmoreland Association
at a New York City Council Hearing on
Proposed Amendments Concerning the Bureau of Standards and Appeals

The Westmoreland Association enthusiastically supports Int. 262/2006 and 263/2006 by Council Members Avella, et al. These are proposed amendments to the rules governing the New York City Board of Standards and Appeals (BSA).

The above-referenced amendments would (a) require a two thirds majority of the BSA quorum present and voting to approve a variance, and (b) expand the BSA membership to include additional members appointed by the Borough Presidents, the Public Advocate, the Comptroller and the City Council. We believe these amendments will significantly assist homeowners and homeowners’ associations such as the Westmoreland Association in ensuring that legally applicable zoning rules are faithfully observed, and that the character of neighborhoods protected by those rules is better maintained.

Text of May 27, 2007 Letter from Westmoreland Association to State Senator Frank Padavan and State Assemblyman James F. Brennan Regarding their Proposed Legislative Package to Improve Regulation and Enforcement of Development in New York City

The Westmoreland Association is a homeowners’ association representing the Westmoreland area of Little Neck, Queens, in New York City. This area is bounded generally by Northern Boulevard on the south, Little Neck Parkway on the west, 39th Road on the north, and Nassau Road on the east.

At the organization’s General Membership meeting of May 21, 2007 the members present voted unanimously to endorse the above-referenced package of legislation. The bills in question include A7745/S5422; A7800/S5223; A7755/S5407; A7746/S4603; A7744/S5410; A7748/S5246; and A7747/S5441.

Our endorsement was qualified only to the extent our members expressed concern that some of these pieces of legislation do not go far enough to make needed changes in the practices of the Department of Buildings. For example, there was consensus that: A7755/S5407 should apply to all violations, not just hazardous violations. Similarly, our members felt that A7746/S4603 should require, not merely allow DOB to refuse to accept filings from those found to have knowingly or negligently submitted false documents (at least for a specified period of time, e.g., four or five years).

Most important, there was a strong consensus among our members that A7745/S5422 should prohibit issuance of a Certificate of Occupancy not only until all fines and penalties are paid, but also until all violative conditions are fully corrected. In our own community, the Department of Buildings last year issued a Certificate of Occupancy for a house that had knowingly been constructed nearly 20% closer to the sideline than permitted by zoning. Payment of a few thousand dollars in fines that may or may not have been imposed for this violation, without requiring the builder to correct the violation, is worse than useless – it actually makes a mockery of the zoning requirements. Despite frequent complaints and requests from the adjacent homeowner, our organization and our New York City Councilman Tony Avella, the Department of Buildings never responded to our complaints about this violation, and never responded to any inquiries about why the Certificate was issued despite our repeated and timely complaints.

Nevertheless, we agree that there are valuable and important elements in the legislative package, which is why we unanimously endorse that package. Among the elements our members thought most useful were the provision in A7745/S5422 empowering Community Boards to request up to 30 audits per year; and the technical assistance grant in A7747/S5441.

Testimony of Walter Mugdan, President, Westmoreland Association, at New York State Assembly Hearing,

September 7, 2006

My name is Walter Mugdan. I live at 251-31 42^nd Avenue in Queens County. I am appearing here today as President of the Westmoreland Association, a local homeowners’ Association established in 1917, representing a community in northeastern Queens.

Thank you for the opportunity to speak to you about some of our concerns regarding the New York City Department of Buildings. I ask your indulgence to allow me to make our point by briefly outlining the facts of a problem that we have had with DOB for the past two and a half years.

The problem concerns a new house built recently, located at 41-90 Morgan Street, Little Neck, NY 11363.

In late 2003 Saturn Development did a tear down and began construction of a new house in this R2-zoned area. As soon as the construction fence went up, the next-door neighbor, Mr. Tom Lloyd, alerted the developer that the construction fence between the two properties was situated on Lloyd’s side of the line. Mr. Lloyd showed him a survey from the 1960s to support his position. The developer refused to move the fence, intimating that Lloyd’s survey was incorrect.

Mr. Lloyd promptly hired a surveyor at his own expense. The new survey was conducted in early February, 2004. By that time, the foundation of the new house was in. The new survey confirmed that the fence was on Lloyd’s side of the line, and furthermore showed that the foundation was too close to the side line. The R2 zoning requires a minimum five foot sideline setback. The new foundation was at about 4" 4" from the sideline.

Mr. Lloyd immediately sent a copy of that survey to the developer. As president of the local homeowners association, I also wrote to the developer, with a copy to Mr. Magdi Mossad, then Queens Borough Commissioner for DOB. The developer moved the construction fence to his side of the line, but otherwise ignored the correspondence and proceeded to complete construction of the house, while knowing of – but without curing – the violation.

It is our position that this setback violation is not de minimis: the house is nearly 15% closer to the neighboring property than allowed by the zoning. (Parenthetically, the developer also used every loophole that DOB tolerates to make the house as big as possible, including characterizing a full-sized bedroom on the 2^nd floor as “an attic.”)

In early April, 2004 I got a reply from the DOB Queens Deputy Borough Commissioner, Derek Lee. Mr. Lee wrote, “the side yard of the new building will be verified with the required survey. If the final survey is not received, the final certificate of occupancy will not be issued to the building.”

The developer finished the house and, as we later learned, submitted his final survey in Spring, 2005. It confirmed completely what the neighbor’s survey had shown a year earlier.

We learned of this in the beginning of June, 2005, and I wrote to Boro Commissioner Mossad again. By the end of June we had not gotten a reply, and I wrote yet again. I expressed our strong opposition to the issuance of a Certificate of Occupancy for this house, which was built in knowing violation of the side setback requirements of the applicable zoning regulations. We asked again for a reply, bur received no response to either letter.

At the suggestion of our local Community Board, I then contacted a DOB community relations officer, with whom I spoke by phone. He said the side setback issue was “unresolved”, but there was a “flag” on the file. He said the Certificate of Occupancy should not be issued without a resolution.

We heard nothing further for about 8 months. In May, 2006 I wrote to Derek Lee, now Queens Boro Commissioner. I said it had come to our attention that a new survey might have very recently been filed for the property (though we had no confirmation of this and had not seen any such survey). We again requested that no Certificate of Occupancy be issued, given the developer’s knowing and non-de minimis violation of the zoning requirements. We got no reply to this letter, either.

In June I spoke again by phone with the DOB community affairs officer. He again advised that the side setback violation remained “unresolved” in the computer file, and he confirmed that a Certificate of Occupancy should not be issued while the violation is unresolved.

During this entire period, the neighbor, Mr. Lloyd, also wrote numerous times to DOB. So did our City Councilman, Tony Avella. Mr. Lloyd received no replies, and to my knowledge Mr. Avella did not receive any replies either, or at least not a substantive reply.

Two weeks ago Mr. Lloyd, saw that someone was moving into the house. He checked the DOB online records, as we both had been doing every few months. He learned that, although the side setback violation remains unresolved, nevertheless a Certificate of Occupancy was issued in July.

I have taken the liberty of sharing this story with you to illustrate that the Department of Buildings has been entirely unresponsive to a private citizen directly affected by a significant violation; to a homeowners’ association; and to a local elected official. Despite being fully aware of the problem, DOB ignored our legitimate concerns and – without even the courtesy of informing us – issued the Certificate of Occupancy to a scofflaw developer who built a million-dollar house at his own risk, while being fully informed of the setback violation.

We are happy to have a fine new neighbor now living in this house; but we are most unhappy about the developer’s behavior, and the indifference and unresponsiveness of the DOB.

A very troublesome post-script to this story is that not one person with whom I’ve discussed the matter has expressed any surprise at all. Why? Because nobody with any knowledge of the DOB expected the Department to behave any better than it did. That is very disturbing.

Testimony of Walter Mugdan, President of the Westmoreland Association, Before the New York City Council Zoning Committee

December 14, 2006

Concerning the Proposed Rezoning of Certain Portions of Little Neck and Douglaston, Queens

My name is Walter Mugdan. I serve as president of the Westmoreland Association, a homeowners association which represent about 335 homes in the Westmoreland section of Little Neck. About 85% of these homes are located within the current New York City R2 zone.

The Westmoreland Association strongly and enthusiastically supports the proposal to rezone all of our R2 areas to the new R2A designation. We have had a lot of concerns with demolition of existing houses and replacement with over-sized houses, often called “McMansions.” We believe the R2A designation will help maintain the character of our neighborhood and limit the severe over-building of recent years in our area and neighboring communities.

I would like to take a moment to explain to you how the Westmoreland Association developed its position on this matter, because I think the process is important in weighing the outcome.

When the R2A rezoning for our area was originally proposed some 21 months ago, we distributed to every house a flyer announcing the proposal, saying it would affect most homes in our area and would be discussed at our March 2005 meeting. That meeting was well attended – nearly 20% of the affected households were represented.

At the meeting we had a presentation by City Councilman Tony Avella. We distributed fact sheets with copies from the New York City Planning Department web site. Additional information was provided by two architects from our community (one a member of our Board of Directors). At the end of the extended discussion, a motion carried unanimously that the Association go on record to support the R2A rezoning.

As always, minutes of the meeting were posted on our web site. We also posted a detailed description of the proposal, with links to the City Planning Department website.

We have discussed the proposal again at each of our six subsequent meetings (May, September and November, 2005, and March, May and September, 2006). At every meeting, I urged individuals to make their views – pro or con – known to the relevant government officials.

At our September `05 meeting I explained that the City Planning Department had asked the civic associations representing the Douglaston-Little Neck area to work together in an effort to provide a consensus position on the rezoning plan. We distributed copies of the Department’s detailed draft map. A motion carried unanimously authorizing me to work with the other civic groups and the Department to further the R2A rezoning proposal.

At the November `05 meeting, I proposed to write to our local newspaper, The Little Neck Ledger, expressing concern over misinformation about the R2A proposal that was then being circulated in another community. The attendees voiced unanimous support, and I wrote that letter.

At our September ‘06 meeting I reported on the hearing held earlier that month by Community Board 11, and stated that I would be testifying at additional hearings on the issue, including this one before the City Council Zoning Committee; all present were again supportive.

I believe it is important for you to understand that our members have had ample and extensive opportunity to learn about, and be heard concerning the R2A rezoning proposal. The issue has been discussed at seven consecutive meetings of the organization, and details are available on our web site along with our meeting minutes. The sense of our membership, as expressed at every meeting, and in two formal votes taken months apart, was unanimous in support of the rezoning plan.

We respectfully request that the City Council Zoning Committee formally endorse this rezoning proposal, which is so important to the protection of our neighborhood.

Thank you.

Statement of Walter Mugdan, President, Westmoreland Association
at a New York City Council Hearing on a Proposed Amendment to
New York City’s Administrative Code

The Westmoreland area was developed starting in 1906 by the Rickert-Finlay Company, (RF) which subdivided the area into blocks and lots. As each lot or group of lots was sold, a number restrictive covenants was included in the deed which would thereafter run with the land. A copy of those covenants, which are included in the deeds of all properties within the Westmoreland development, is attached. At the present time, some 330 homes are in the Westmoreland area

Among the primary purposes for the establishment of the Westmoreland Association is monitoring compliance with and, when necessary, enforcing the provisions of these restrictive covenants. . During the past century the Westmoreland Association has on at least four separate occasions had to go to court to enforce the covenants. These have been extremely expensive endeavors, severely taxing the limited resources of our small community. That we have repeatedly invested the necessary funds and effort demonstrates that these covenants are a prized property right of the residents in our development; indeed, we call them “protective” rather than “restrictive” covenants, because the protect our property values and quality of life.

The Westmoreland Association enthusiastically supports Int. No. 15 by Council Members Avella, et al. This proposed amendment of the New York City administrative Code would require the City’s Department of Buildings to require compliance with restrictive covenants such as ours when issuing permits, provided that such covenants have been duly filed with the Department.

Enactment of this amendment will significantly assist homeowners and homeowners’ associations such as the Westmoreland Association in ensuring that legally applicable covenants are faithfully observed, and that the character of neighborhoods protected by such covenants is maintained as envisioned by the orginal grantors. We urge the New York City Council to pass this legislation.