Petitioners/Plaintiffs acquired property that included Lots 217 and 217A on the Village of Scarsdale tax map. These lots did not have street frontage, and Lot 215A, owned by the Village, sat between Plaintiffs’ lots and Farragut Road.  Plaintiffs applied to the Zoning Board of Appeals (ZBA) for a variance from the frontage requirements to build a single-family residence. The ZBA granted the variance subject to Plaintiffs obtaining an access easement to cross Lot 215A. Plaintiffs maintained that despite the official Village map, Farragut Road was paved and extended further than depicted, providing more than 20 feet of actual street access to Lot 217. The ZBA took the position that the area was part of Tax Lot 215A, and thus an easement would be required. Plaintiffs commenced an Article 78 proceeding, and the Supreme Court found that Plaintiffs had established that the strip of land was a public street by prescription, and included the public right-of-way that ran with Farragut Road. Respondents/Defendants appealed.

The Appellate Division, Second Department affirmed, holding that Plaintiffs had established that the strip of land was a public street pursuant to Village Law § 6–626, which provides that “all lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such.” The Court went on to note that “[n]aked use by the public is not enough, and plaintiffs must further demonstrate that the village has continuously maintained and repaired the alleged street and, thus, assumed control thereof during the period of time in question.”

Here, the land at issue was visibly indistinguishable from Farragut Road, and only by referencing survey maps could it be seen as part of Lot 215A. It was also undisputed that the lot was paved by the Village with Farragut Road more than 10 years prior, and the public used it in a manner indistinguishable from the surrounding roadway.  Defendants argued Plaintiffs needed evidence that the Village had made recent repairs to the paved area, but the Court disagreed that such proof was required, noting while there was visible wear-and-tear, the surrounding roadway was in the same condition. As the record was clear that the Village maintained the area in the same manner as the remainder of Farragut Road, the Court held the area was a public street.

The Court concluded by affirming that the prescriptive portion of Farragut Road included the public right-of-way that runs with the remainder of the road, as Village Law directs that prescriptive lands “shall be a street with the same force and effect as if it had been duly laid out and recorded as such,” i.e. it “carries with it the usual width of the street in the locality or such width as is reasonably necessary for the safety and convenience of the traveling public and for ordinary repairs and improvements.”

The case is Soldatenko v Vil. of Scarsdale Zoning Bd. of Appeals, 138 A.D.3d 1003 (2d Dep’t 2016).