McKownville
Improvement Association
- McKownville - deed restrictions in the
Pitkin-Witbeck development
Deed restriction covenants in the Country Club
Highlands development
The original sale of the McKown Hotel Farm property by William
McKown to William H Witbeck occurred in 1907. Witbeck had a subdivision
plan made for "Country Club Highlands" (filed in 1910)
covering the part of the property east of Fuller Road and north of
Western Avenue, of about 40 acres extent. He built a house for his
family at the eastern end (1421 Western Avenue),
and by mid-1912 had sold a few lots near this along Western Avenue,
and on the lower end of Norwood Street.
For unknown reasons (but perhaps from needing a source of capital to
install the water and drainage piping), he then sold in June 1912
the whole residue of this property to a partnership of his eldest
son, Benjamin F Witbeck, and Arthur F Pitkin, a principal in the
American Locomotive Works in Schenectady. This partnership
redesigned the subdivision, filing a revised
map of the "Country Club Highlands" on the last day of 1912.
The deed conveying the property to the Pitkin-Witbeck partnership
contains an overall restriction (covenant) on permitted use of any
of the lots to be sold, reading as follows:
That part of the premises hereby conveyed which are situated on
the north side of the Great Western Turnpike from the Fuller Road
to the east bounds of said premises are restricted as follows: No
building to be erected thereon other than a dwelling house and
appurtenances and on Great Western Turnpike no building to be
erected within forty five feet from the north line of said
turnpike except a porch or stoop to said building and said
building to cost at least and not less than three thousand
dollars[.] On any other streets included in the above mentioned
premises on the north side of Great Western Turnpike no building
to be erected at a cost of less than eighteen hundred dollars and
to be erected no less than twenty feet from the line of the street
on which said lots front except a porch or stoop and no
intoxicating liquors to be sold and no business or manufacturing
business to be carried on on the said premises north of said Great
Western Turnpike and east of the said Fuller Road.
The above covenants as to restrictions are to run with the land
and this grant to be forfeited if restrictions are violated.
excerpt from Deed for McKown Hotel Farm dated 2 June 1912; Book 603,
pages 197-200
William H. and Selenia A. Witbeck to Arthur F. Pitkin and Benjamin
F. Witbeck
In the years before any zoning ordinances or planning existed in the
Town of Guilderland (i.e. before 1953), this was the only legally
enforceable way to keep a development residential, and the lots
desirable to the customers the partnership wished to attract to
build the neighborhood. The covenant forbidding sale of alcoholic
liquids was it seems not because the Witbecks were prohibitionists.
After all, in 1912 they still owned the large and busy hotel and
tavern on Western Avenue at the Fuller Road intersection, right
across from the west end of the development; it could be proposed
that the covenant was at least in part to prevent any nearby
competition!
Deeds for the original sale from the Pitkin-Witbeck partnership, and
its successor the Pitkin-Witbeck Realty Company, for lots sold in
the "Country Club Highlands" development after 1912, all contain
some version of this restriction on the minimum cost, and the
placement, of the building allowed, and (in addition) that the
building must be a one-family dwelling. They all include the
statement that business use, and specifically the sale of
intoxicating liquors, was not permitted. The deeds for the lots sold
by William H Witbeck before 1913 also contain such statements.
Some of the lot sale deeds contain the statement about the
restriction running with the land and forfeiture being the penalty
for violation, but this was not copied into all of them.
A few lot sale deeds contain a time-limit qualification as to
the restrictions; those seen with this addition all say that the
restrictions are to expire 1 January 1940. For example, for 16
Elmwood, the deed for the two lots sold in 1914 contains this
sentence:
All covenants by the parties of the first part in this instrument
contained shall bind and affect only the premises hereby conveyed
and continue in force until the first day of January 1940 and no
longer.
But a third adjacent lot bought by the same person in 1916 does not
contain this statement; instead it has the generally common text:
Said covenants as to restrictions to be continuous and running
with the land.
Deed covenant restrictions and subsequent
Town zoning
The first and so far only conversion of property in this residential
development to obviously non-residential, commercial purposes, at
the eastern corner of Fuller Road and Western Avenue, occurred
around 1960.
This example raises the question of whether the zoning code and
ordinances of the Town of Guilderland supercede original deed
restrictions. In the case of the Fuller/Western corner properties,
these were sold as residential lots and, after two zoning board of
appeals hearings, and despite legal action
protesting the decision, buildings were constructed that were then
used for business purposes.
The properties at the Fuller Road-Western Avenue eastern corner now
(in 2021) consist of two one-story medical-type office buildings
fronting on Western Avenue, and one two-story dental practice
building fronting on Fuller Road, with at least 86% of the overall
lots occupied by the buildings and blacktop parking. They were
originally residential lots of the Country Club Highlands
development, with deed restrictions for one single family residence
in each of the three parcels. How and when did this change get made?
These
lots were used from 1950 as the turn-around and waiting place for
the Western Avenue bus service (previously this had been across
Western Avenue in the yard of the former McKown/Witbeck Hotel). This
arrangement must have been by informal or rental agreement by the
Witbecks, as the lots were owned then by their McKown Farm Realty
Corporation. Perhaps there was a basic shelter structure for people
waiting, but there were no other buildings in them; the Sanborn fire
insurance map of 1951-52 shows an absence of any buildings in
these lots.
In late 1957, the lots for 1465-7 Western Avenue were sold to August
J Domenico by the McKown Farm Realty Corporation and, just under a
year later, the same Corporation sold the lots for 1469-71 Western
Avenue and for 340 Fuller Road to the same buyer. There may have
been an informal agreement to allow the bus service to continue to
use the lots until the construction of Stuyvesant Plaza was
finished, because the bus terminal is listed at 1471 Western in the
city directory until 1960. In 1960, a listing for 1465 Western
Avenue appears, for Well Built Homes of Albany real estate and
insurance. Notification of a zoning change request from residential
to business has not been found for this property in the paper of
record at that time, the Altamont Enterprise. It is inferred that
the "house"-style building of 1465/7 Western was constructed in
1959, perhaps first intended as a residence, but the immediate use
for an office and a business was a presumptuous violation of the
residential deed restriction and the residential zoning covering it
at that time, unless a zoning hearing was held and the announcement
was not, as was usual practice, published in the Enterprise.
There are published notifications for zoning change requests for the
other parts of the property that Domenico purchased. In April 1960,
a hearing was scheduled for a request to change the
zoning from residental (R) to General Business (GB) on the
lots for 1469-71 Western and 340 Fuller. The business purpose is not
stated in the public notification. Another hearing was announced for
December 1960 on the same properties, this time for a request
to change the zoning from residential (R-9) to Local Business (LB);
a small entry a month later in the Altamont Enterprise revealed
the purpose to be to build a diner. A letter dated 23 January
1961 from his lawyer to Augustus Lux, the owner of 6 Elmwood
Street, adjacent to the property in question, reveals that the Town
Board did approve the zoning change, and confirms that the purpose
was to put a diner on the property. The lawyer served papers to
obtain a declaratory judgement that the restrictive covenants in the
deeds requiring only residential occupation were still valid and in
full force; in other words to show that the Town's decision could
not override these covenants. Documents subsequent to this have not
been seen, but it can be inferred that there were, probably,
negotiations, because a diner was not built. However, the property
was converted to a business use (medical/dental offices), showing
that a zoning decision did in practice override the deed
restrictions, but there is no record, at least in the Altamont
Enterprise, of an actual testing of this in a court case and a
consequent legal decision.
This particular sequence of events seems to have prompted the Town
in January 1961 to appoint
a committee to examine and report on possible (commercial)
rezoning of properties along much of the length of Route 20, Western
Avenue, in the Town of Guilderland. They also provoked from a former
McKownville resident an immediate
communication to the committee of his opposition to this
proposed bulk rezoning of residential property. The issue of
spot-zoning in the Town gave rise to another pertinent
public letter submitted to the Town Board later in the same
year. Up to mid-1962, no substantial changes appear to have resulted
from the committee's activities.
The Guilderland zoning map
from the early 1970's shows these lots zoned B-1, Local
Business; the 1996
and the 2018
zoning maps retained the same Local Business classification for
them.
Domenico sold the 340 Fuller Road property to Lawrence Kotlow in
1978, and provided a mortgage for $99,000 at the time, so it is
inferred that the two-story house-style structure there was built by
Domenico prior to this date. In 2021 Dr. Kotlow continues to own
this property and to use it for his dental practice.
In 2003, the Domenico's sold the 1465-67 and
1469-71 Western Avenue properties to Bonjay LLC, a company
owned by a dentist with an Albany practice, Howard Kabinoff, and his
wife. This company continues to own these properties in 2021.
return to history page