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BOURQUE v. CITY OF YONKERS

May 18, 1992

ELEANOR G. BOURQUE, et al., Plaintiffs, against THE CITY OF YONKERS and DELUXE DEVELOPMENT OF NEW YORK, INC., Defendants. ELEANOR G. BOURQUE, et al., Plaintiffs, -against- THE CITY OF YONKERS and DELUXE DEVELOPMENT OF NEW YORK, INC., Defendants.

Sand


The opinion of the court was delivered by: LEONARD B. SAND

SAND, J.

 In these two cases, one of which has been removed from state court, 112 plaintiffs assert an entitlement to compensation because of an alleged taking of their rights under a restrictive covenant. This Court ruled that the state court case was properly removed to federal court. The two cases were thereafter consolidated with the consent of the parties. See Transcript proceedings, January 30, 1992 (hereafter "Tr."), p.4.

 Although plaintiffs initially sought some forms of injunctive relief with respect to the construction of a community center, on being advised that the community center was a requirement of HUD for the construction of public housing, plaintiffs withdrew this request for an injunction and seek only monetary relief. Tr. 7-8.

 The Restrictive Covenant

 At issue in this litigation are the rights of owners of land surrounding the site upon which there had been constructed the Whitman school (the "Whitman site"), which school was built in 1956 and thereafter operated by the Yonkers Board of Education ("YBOE"). On this site, public housing units have been constructed pursuant to this Court's Housing Remedy Order entered in United States v. Yonkers Board of Education, et al., 80 Civ. 6761 (LBS). Construction has been completed and the units are now being occupied.

 The Whitman site and all of the surrounding land which plaintiffs own was at one time owned by Crest Brook Estates, Inc. ("Crest Brook"). On March 17, 1955, Crest Brook conveyed a portion of this land to Berkeley Homes, Inc., subject to a restrictive covenant limiting construction to single-family detached dwelling houses with no less than 15,000 cubic feet of living space. On February 20, 1956, Crest Brook conveyed a separate parcel of land, which included the Whitman site, to Clarge, Inc. ("Clarge"). The land conveyed by Crest Brook to Clarge was conveyed subject to the following restrict covenant:

 The party of the second part [Clarge] covenants that single-family, detached dwelling houses only shall be built on the premises above described and that said houses shall each contain not less than 15,000 cubic feet of space, excluding garages, porches, crawl spaces and cellars, but including stories that are more than fifty (50%) percent above finished grade: provided, however, that this covenant shall not apply to such portion of the land herein conveyed as may be acquired by the Board of Education of the City of Yonkers by gift, purchase or condemnation.

 (Emphasis added.)

 After the City acquired the Whitman site, the YBOE took over possession and control of the land. The Walt Whitman School was constructed on the site and was operated by the YBOE for approximately thirty years. Plaintiff Bourque asserts in her affidavit in opposition to defendants' motion for summary judgment that "the part of the site on which the actual housing is being built was not used for educational purposes. It was a playground that was maintained, upon information and belief, not by the Board of Education, but by the City of Yonkers Department of Parks." Affidavit, P14. During this period of time, the YBOE paid any property taxes that were due on the Whitman site.

 During the long and vexatious process of site selection for the 200 units of public housing which the City of Yonkers had obligated itself to build, the assumption was that the YBOE owned and controlled the site. Thus, § IV C (b) of this Court's Housing Remedy Order, May 28, 1986, provided:

 "If this provision becomes operative by virtue of the failure of the City to designate alternative sites, the School Board [i.e., the YBOE] is hereby ordered to return the Whitman site to the City."

 According to the Order, the school Board could reserve rights to occupy space on the Whitman site for teacher training ...


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