Times/Ledger, November 25, 1999 History is our refuge: Kew Forest Civic Group fighting six-story apartment building says 1922 deed permits only 1-family homes By Michelle Han A group of Forest Hills residents struggling to protect their neighborhood from a six- story apartment building under construction on Kew Forest Lane has found its final battle cry in an unlikely source - a fuzzy strip of old microfilm. The microfilm, residents say, is proof that a private deed restriction enacted over 70 years ago forever bans the development of anything other than a single-family home. Banded together as the Kew Forest Neighborhood Association, the residents already have enlisted the aid of Borough President Claire Shulman and the Queens Civic Congress. Their cumulative efforts resulted in a speedy plan to rezone the area to prevent the construction of large apartment buildings in the future, but did little to stop the project currently being built. "We're going to win," said Tina Chan, a Kew Forest Lane resident who with her husband, Hing Lai, helped form the homeowners group and has been leading the effort since July. But Flushing developer Albert Mushibayev and Joseph Lieberman, who in August began building the six-story apartment and medical office building at 77-16 Kew Forest Lane, are plowing ahead undaunted. "That's a no-brainer," said their attorney, Harold Stangler, when asked about the deed restrictions last week. "I'm really not worried about the covenant." Stangler contends the neighborhood, adjacent to a strip of large apartment buildings on nearby Austin Street, has changed enough over time that the deed restrictions no longer have bearing. "A court is not going to uphold covenants when the whole neighborhood has changed," Stangler said. Moreover, he said, his clients already have done substantial work at the excavation site and it was improper for neighborhood residents to have remained silent about the issue deed restrictions until now. "They had a duty to notify us," he said. Mushibayev and Lieberman have faced opposition to their project from the start of the construction in August. The neighborhood association has contended that an apartment building smack in the middle of a quiet, residential area will change the character of the neighborhood forever, lowering their property values and destroying their quality of life. The group's attorney, Beatrice Lesser of Gallet, Dreyer and Berkey, planned to bring the case before a judge this week. "I think the case is very strong," said Lesser, who declined to talk about the case in detail until legal documents had been served. But she said there was ample precedent to prove private deed restrictions are legal and must be enforced by a court of law. "There's a whole stack of cases that all say how covenants are absolutely enforceable when certain conditions are met and we have all those conditions," Lesser said. The deed restrictions were placed on the small subdivision that became the Kew Forest neighborhood to protect it from unwanted industrial development, residents said - a similar predicament to the one the homeowners find themselves in today, except the year then was 1922. The covenant, hazy with time but legibly preserved on microfilm, bans the construction of "any building intended for the occupation of more than one family or household" within the confines of the subdivision. The covenant was found through a regular title search of the Lieberman/Mushibayev property, which the Kew Gardens Corporation sold to Edward E. Day in 1922. In a testimony to the changing issues facing homeowners over time, the private covenants explicitly ban slaughterhouses, gun powder plants, tanning saloons, breweries, and metal foundries, in addition to anything beyond single-family homes. The Kew Forest Neighborhood Association believes the covenants and restrictions are old, but just as viable - if not more so - as the zoning plan being drawn up for the Kew Forest neighborhood today, said Paul Graziano, a Flushing resident active in planning and zoning issues who recently became involved with the group. "Almost a third of Queens has deed restrictions - they're just not enforced," Graziano said. "But it doesn't mean they can't be enforced." In spite of Stangler's claim that the neighborhood had changed since 1922, the association insists its case is watertight. Of the 66 parcels covered in the private covenant, only two have been altered in 77 years, residents said. Carrying a three-inch thick binder encasing meticulous paperwork documenting the group's cause, Chan said no effort will be spared to protect the character of the attractive neighborhood. With 35 residents and homeowners as members, the Kew Forest Neighborhood Association estimates it could take $50,000 or more in lawyer fees to see the battle through to its end. "We feel that it's 100 percent," she said. "That's why we've invested all this time." go to top