ELLISON HEIGHTS HOMEOWNERS ASSOCIAT v. ELLISON HEIGHTS LLC ( 2013 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1193
    CA 12-02342
    PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.
    ELLISON HEIGHTS HOMEOWNERS ASSOCIATION, INC.,
    PLAINTIFF-APPELLANT,
    V                             MEMORANDUM AND ORDER
    ELLISON HEIGHTS LLC AND TOWN OF PENFIELD,
    DEFENDANTS-RESPONDENTS,
    ET AL., DEFENDANTS.
    (APPEAL NO. 1.)
    HARRIS BEACH PLLC, PITTSFORD (DOUGLAS A. FOSS OF COUNSEL), FOR
    PLAINTIFF-APPELLANT.
    NIXON PEABODY LLP, ROCHESTER (CHRISTOPHER D. THOMAS OF COUNSEL), FOR
    DEFENDANT-RESPONDENT ELLISON HEIGHTS LLC.
    MCCONVILLE, CONSIDINE, COOMAN & MORIN, P.C., ROCHESTER (PETER J.
    WEISHAAR OF COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF PENFIELD.
    Appeal from an order and judgment (one paper) of the Supreme
    Court, Monroe County (William P. Polito, J.), entered September 4,
    2012. The order and judgment, among other things, dismissed the first
    cause of action against all defendants and dismissed the remainder of
    the amended complaint against defendant Town of Penfield.
    It is hereby ORDERED that the appeal from the order and judgment
    insofar as it concerns the easement over the emergency access driveway
    is dismissed and the order and judgment is unanimously modified on the
    law by deleting the fourth ordering paragraph insofar as it grants a
    declaration and as modified the order and judgment is affirmed without
    costs.
    Memorandum: These consolidated appeals involve a dispute between
    landowners of two adjoining properties. The properties previously
    were owned as a single parcel, and in the late 1990s the owner of the
    property sought to develop the parcel into apartment buildings and
    townhome units as a cluster development pursuant to Town Law § 278.
    After the resolution of certain obstacles to approval, including
    ensuring compliance with this Court’s 1999 decision regarding the
    zoning requirements (Matter of Penfield Panorama Area Community v Town
    of Penfield Planning Bd., 253 AD2d 342), the Town of Penfield Planning
    Board (Planning Board) approved the application. The owner of the
    parcel subsequently conveyed it to a developer that, in turn, conveyed
    the property to Ellison Heights LLC (defendant).
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    CA 12-02342
    In 2005, defendant applied to the Planning Board to amend the
    site plan for the cluster development. Defendant sought, inter alia,
    to reduce the number of townhomes on the property, increase the number
    of apartment units, and subdivide the property into two smaller
    parcels, with the townhomes developed on one parcel as Phase I of the
    project and the apartment buildings developed on the other parcel as
    Phases II and III of the project. The Planning Board eventually
    approved defendant’s site plan and the subdivision of the parcel.
    Defendant thereafter began construction on the townhomes and sold the
    property on which the townhomes are located to plaintiff. Defendant
    retained the property on which the apartment buildings were to be
    constructed at some later date.
    In 2011, defendant applied to the Planning Board to amend its
    site plan for the property that it had retained. Defendant sought to
    develop the property using the same density and open space
    restrictions established by the Planning Board in 1999, thereby
    incorporating the open space of plaintiff’s property in its density
    calculation. Plaintiff thereafter commenced this action seeking,
    inter alia, declarations regarding its property rights pursuant to
    RPAPL article 15 (see RPAPL 1521 [1]). Plaintiff alleged, inter alia,
    that defendant had not reserved an easement over the private road on
    plaintiff’s property known as Sable Oaks Lane, that defendant had no
    right to use the emergency access driveway or utilities located on
    plaintiff’s property, and that defendant had no right to restrict
    development on plaintiff’s property by using the open space located on
    plaintiff’s property in defendant’s calculation of the density of the
    development on its own property. Defendant, along with the individual
    defendants, moved to dismiss the amended complaint against them
    pursuant to CPLR 3211 (a) (1) and (7), and defendant Town of Penfield
    (Town) also moved to dismiss the amended complaint against it,
    contending, inter alia, that the Town is not a proper defendant to any
    of plaintiff’s causes of action. By the order and judgment in appeal
    No. 1, Supreme Court dismissed the first cause of action against all
    defendants and dismissed the remainder of the amended complaint
    against the Town as well.
    Plaintiff then moved pursuant to CPLR 3025 (c) for leave to amend
    the amended complaint, to conform the pleading to the order and
    judgment in appeal No. 1. Plaintiff sought leave to assert a new
    cause of action pursuant to RPAPL article 15 alleging that, because
    the court had declared that plaintiff’s property was bound by the plat
    map filed in 2007, then defendant’s property likewise was bound by
    that plat map, and defendant thus was prohibited from developing its
    property in a manner inconsistent with the plat map and the document
    referenced therein. By the order and judgment in appeal No. 2, the
    court denied plaintiff’s motion on the ground that the proposed
    amendment was without merit.
    Initially, we agree with defendant that plaintiff’s appeal from
    the order and judgment in appeal No. 1 insofar as it concerns
    defendant’s use of the emergency access driveway located on
    plaintiff’s property must be dismissed as moot inasmuch as “changed
    circumstances prevent us ‘from rendering a decision which would
    -3-                          1193
    CA 12-02342
    effectually determine an actual controversy between the parties
    involved’ ” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d
    801, 810-811, cert denied 
    540 US 1017
    ). Plaintiff does not refute
    defendant’s assertion that, during the pendency of this action,
    defendant submitted a revised site plan to the Planning Board that
    made no use of the emergency access driveway on plaintiff’s property.
    Contrary to plaintiff’s contention, the exception to the mootness
    doctrine does not apply (see generally Matter of Hearst Corp. v Clyne,
    50 NY2d 707, 714-715; Matter of Gannett Co., Inc. v Doran, 74 AD3d
    1788, 1789).
    We reject plaintiff’s contention in appeal No. 1 that the court
    erred in granting the Town’s motion with respect to the RPAPL cause of
    action against it. The Town will not “be inequitably affected by a
    judgment in the action” (CPLR 1001 [a]), nor does the Town “have an
    estate or interest in the real property which may in any manner be
    affected by the judgment” (RPAPL 1511 [2]). Thus, contrary to
    plaintiff’s contention, the Town is not a necessary party to the RPAPL
    article 15 cause of action (see Boccardi v Horn Constr. Corp., 204
    AD2d 502, 502).
    Addressing next the propriety of the order and judgment in appeal
    No. 1 with respect to defendant, we note that, although plaintiff’s
    cause of action against defendant pursuant to RPAPL article 15 also
    sought declarations regarding defendant’s use of Sable Oaks Lane and
    utilities located on plaintiff’s property, plaintiff has abandoned any
    contention regarding the utilities or defendant’s easement over Sable
    Oaks Lane by failing to address those issues in its brief (see
    Ciesinski v Town of Aurora, 202 AD2d 984, 984). Thus, the only
    remaining issue in appeal No. 1 with respect to that cause of action
    against defendant concerns the density and open space conditions that
    restrict further development on plaintiff’s property.
    Plaintiff contends in appeal No. 1 that, in dismissing the first
    cause of action against defendant, the court erred in determining that
    documents on file with the Town permanently encumber and restrict
    further development of plaintiff’s property. According to plaintiff,
    those documents, which reference the density and open space
    restrictions for the cluster development, are not within its chain of
    title and thus cannot form the basis for an encumbrance on its
    property. We reject that contention, inasmuch as defendant is correct
    that the density and open space restrictions on further development of
    plaintiff’s property are the result of zoning regulations and do not
    amount to encumbrances that must be recorded in plaintiff’s chain of
    title (see O’Mara v Town of Wappinger, 9 NY3d 303, 309-311). Here,
    the Planning Board imposed the density and open space restrictions at
    issue when it originally approved the cluster development in 1999 (see
    Town Law § 278 [3] [b]). Defendant’s subsequent 2005 application made
    use of those same density and open space restrictions, despite the
    subdivision of the property into two parcels, and the application was
    approved by the Planning Board. “The use that may be made of land
    under a zoning ordinance and the use of the same land under an
    easement or restrictive covenant are, as a general rule, separate and
    -4-                          1193
    CA 12-02342
    distinct matters, the ordinance being a legislative enactment and the
    easement or covenant a matter of private agreement” (Matter of Friends
    of Shawangunks v Knowlton, 64 NY2d 387, 392). We conclude that here,
    as in O’Mara, the density and open space conditions that restrict
    further development of plaintiff’s property are the result of the
    Town’s “ability to impose such conditions on the use of land through
    the zoning process,” which conditions are “meaningless without the
    ability to enforce those conditions, even against a subsequent
    purchaser” (O’Mara, 9 NY3d at 311). Indeed, it is well settled that,
    “ ‘where a person agrees to purchase real estate, which, at the time,
    is restricted by laws or ordinances, he will be deemed to have entered
    into the contract subject to the same [and] [h]e cannot thereafter be
    heard to object to taking the title because of such restrictions’ ”
    (Voorheesville Rod & Gun Club v Tompkins Co., 82 NY2d 564, 570-571,
    quoting Lincoln Trust Co. v Williams Bldg. Corp., 229 NY 313, 318).
    Inasmuch as the density and open space restrictions are the
    result of the zoning process, not property encumbrances that must be
    recorded in plaintiff’s chain of title, we further conclude that
    dismissal of plaintiff’s RPAPL article 15 cause of action, rather than
    the issuance of declarations pursuant to RPAPL 1521 (1), was the
    proper remedy (see generally O’Mara, 9 NY3d at 309-311). By using the
    density and open space restrictions on plaintiff’s property in its
    calculation of the density and open space for the proposed development
    on its own property, defendant did not “claim an estate or interest in
    [plaintiff’s] real property, adverse to that of the plaintiff” (RPAPL
    1515 [1] [b]), and plaintiff thus may not challenge those zoning
    restrictions pursuant to an RPAPL article 15 cause of action. We
    therefore modify the order and judgment by deleting from the fourth
    ordering paragraph the declaration that “the Phase I property is
    subject to the plat map as filed in 2007.”
    Finally, we conclude with respect to the order and judgment in
    appeal No. 2 that the court properly denied plaintiff’s motion for
    leave to amend the amended complaint inasmuch as the proposed
    amendments are patently lacking in merit (see generally Bryndle v
    Safety-Kleen Sys., Inc., 66 AD3d 1396, 1396). As the court properly
    noted, either party could apply to the Planning Board for modification
    of the density and open space restrictions on its property and, if
    plaintiff disagreed with the Planning Board’s determination,
    plaintiff’s remedy would be to commence a proceeding pursuant to CPLR
    article 78 after exhausting its administrative remedies.
    Entered:   December 27, 2013                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 12-02342

Filed Date: 12/27/2013

Precedential Status: Precedential

Modified Date: 10/8/2016