Homeowner Continue Campaign to Tear Down Mid-Century Modern Home on Birchall Drive
- Tuesday, 23 May 2023 11:39
- Last Updated: Thursday, 25 May 2023 11:15
- Published: Tuesday, 23 May 2023 11:39
- Joanne Wallenstein
- Hits: 1010
It’s not over until it’s over – and in the case of the historic preservation of Scarsdale homes, it never seems to end.
In March 2023, the Scarsdale Board of Trustees upheld a finding by the Committee for Historic Preservation that a mid-century modern home at 76 Birchall Drive met the Village’s criteria for preservation and denied an application to tear it down.
The matter had been discussed at several meetings in 2022, when neighbors marshalled considerable evidence to demonstrate that the home was the work of a master architect, Simon B. Zelnik. They also showed that the home possesses distinctive characteristics of the mind-century modern style and retained the majority of its features and integrity and voted to deny the appeal.
Now the applicant, PIM Holding Co, representing homeowner Howard Milstein, have filed a petition in Westchester County Supreme Court to challenge the decision of the Board of Trustees.
In their petition they argue that the decision is “another egregious example of, and is necessitated by, the members of the Village Board of Trustees’ pattern of using the unconstitutionally vague and overbroad criteria of its Historic Preservation Law (Chapter 182 of the Village of Scarsdale Code) (the “HPL”) to preserve non-historic structures in the Village in derogation of the rights of Scarsdale property owners.”
They claim that “In this case, the BOT and CHP arbitrarily, capriciously and unconstitutionally denied Petitioner’s application for a Certificate of Appropriateness (“COA”) under the HPL to demolish Petitioner’s main residence (the “Residence”) (depicted below) located at 76 Birchall Drive.
Furthermore they say the Board, “continue(s) to restrict private property rights in Scarsdale by arbitrarily determining that private residences are historically significant based on vague and overbroad criteria which offer no objective and concrete standard by which a Scarsdale property owner could evaluate whether its home qualifies for historic preservation under the HPL.”
At one of the meetings of the Committee for Historic Preservation the applicant appeared with builder Bobby Ben Simon who was advertising a new home on the property for almost $8 million. From the ad, it looked as if he planned to subdivide the property and build two homes in the place of the one at 76 Birchall.
We reached out to Attorney Troy Lipp from Cuddy and Feder who is representing PIM Holding Co and asked him the following about his client’s motivation:
“Now that the application was denied by the Committee for Historic Preservation and the Scarsdale Board of Trustees, readers are asking why Mr. Milstein is so determined to raze his family’s home, despite a well concerted effort by neighbors to save it and overwhelming evidence that it meets the Village’s criteria for preservation? Considering the prominence of the family and their holdings, why is it so important to them to raze the family home and build two in its place? What is their motivation?"
Lipp said his client had “no comment.”
We asked Scarsdale Village Manager Rob Cole and the Village Attorney for a statement on the petition and here is what they said:
The Applicant in the 76 Birchall matter, PIM Holding Co., filed a Verified Petition pursuant to Article 78 in Westchester County Supreme Court challenging the Board of Trustees’ determination on March 28, 2023, to deny the request for a Certificate of Appropriateness with respect to the home located at 76 Birchall, and to grant the Certificate of Appropriateness with respect to the ancillary structures on the property. The Village maintains that its decision was properly supported by the evidence before the Board, and was otherwise made in accordance with the law, and is hopeful that the Court will afford it due deference and uphold its determination. The Petition is expected to be fully submitted by the end of June with a decision from the Court expected three to four months thereafter.
We also asked them for the status of two additional cases about historic preservation that were pending.
First, we asked if the builder of a home at 41 Hampton Road, Eilon Amidor, who had unlawfully destroyed a historic Tudor home there had been fined, and if so what he had paid the Village.
Cole said, “From a legal perspective, the case has been concluded. The NYS Uniform Justice Court Act limits recovery to $3,000, and Mr. Amidor paid the maximum penalty allowed ($3,000) in February 2023. On a related note, and as you may be aware from their priority discussions, the Village Board has included historic preservation in their 2023-24 work plan.”
We requested an update about another historic home at 11 Dolma Road. The Village Board had also found this home to be historic. The applicants appealed the decision to the Westchester County Supreme Court in an effort to get permission to take it down. That court ruled in the applicants favor. But subsequently the Village of Scarsdale appealed that decision.
Here is where that stands:
"Earlier this year, the Village appealed the Decision of the Westchester County Supreme Court, issued last year in the Dolma case. As of now, the appeal is fully submitted and pending the scheduling of oral argument by the Second Department."
In the meantime, the house at 11 Dolma Road appears to be neglected and there were reports of doors and windows left open and water inside. Some suspect that the owners are attempting to neglect it so that it will no longer be structurally sound.