Opinion
No. 1018080.
2011-03-24
WATER SONG DEVELOPMENT, LLC, Plaintiff, v. Thomas A. DUTCHESS and Jean M. Dutchess, Defendants.
CRAIG DORAN, J.
This is an action seeking an injunction enforcing protective covenants and restrictions recorded on January 29, 1957, in the Ontario County Clerk's Office, pertaining to an entire subdivision as laid out on a map of Honeoye Lake Subdivision by North Shore Honeoye Lake Corporation and an order compelling Thomas Dutchess and Jean Dutchess to remove and/or alter their building that encroaches upon property owned by Water Song Development, LLC, in violation of the protective covenants and restrictions. Plaintiff also seeks damages arising out of defendants' alleged breach of the protective covenants and restrictions, trespass and nuisance for making a replacement, enlargement and/or alteration of their structure which encroaches upon plaintiff's property and installing drainage pipes on plaintiff's property without its permission. The defendants assert that the restrictive covenant sought to be enforced by the plaintiff should, in fact, be extinguished pursuant to RPAPL § 1951.
The matter having duly come on before the Honorable Craig J. Doran to hear, try and determine on February 9, 2011, and upon the pleadings and proceedings herein, the plaintiff having appeared by Hiscock & Barclay, James S. Grossman, Esq., of counsel; and the defendants having appeared by Matthew D. Nafus, Esq.; the Court decides as follows:
FINDINGS OF FACT
1. On January 29, 1957, protective covenants and restrictions were recorded in the Ontario County Clerk's Office in Liber 599 of Deeds, at page 269, pertaining to the entire subdivision as laid out on a map of the Honeoye Lake Subdivision by North Shore Honeoye Lake Corporation located in the Town of Richmond, County of Ontario, State of New York, recorded in the Ontario County Clerk's Office in Liber 15 of Ontario County Maps at page 14. These protective covenants and restrictions covered lots numbered 1 through 9 and 18 through 80 of the Honeoye Lake subdivision.
2. In relevant part, the protective covenants and restrictions contain a restriction that no building is to be built closer than 8 feet to any side lot line.
3. By deed dated March 13, 2003, plaintiff became the owner of several parcels of undeveloped land in the Honeoye Lake Subdivision. One of the parcels owned by plaintiff is an unnamed vacant, water front parcel, which is depicted as Lot No.1 on a map of the Honeoye Lake Subdivision recorded in the Ontario County Clerk's Office on January 29, 1957, (Plaintiff's Exhibit # 2). On the 1957 map, plaintiff's lot is marked as “Reserved for Public Use.” Plaintiff also owns the undeveloped lots and land as depicted as Lots # 11 through # 80 on the 1957 map. These lots are generally to the north of North Shore Drive and the subdivision homes on Honeoye Lake.
4. Water Song is a limited liability company organized under the laws of the State of New York.
5. Anthony Forgione is the sole member and shareholder of Water Song.
6. The protective covenants and restrictions apply to plaintiff's property.
7. Mr. Forgione purchased Water Song's property on behalf of Water Song with the intent and for the purposes of constructionand development. It is Mr. Forgione's intent to construct and develop Water Song's property. Mr. Forgione has had some discussions with the Town of Richmond regarding development and has developed a concept plan. At this point, no firm plan to develop the property has been approved by the Town of Richmond and no actual development has occurred.
8. In an amended map of the Honeoye Lake Subdivision recorded in the Ontario County Clerk's office on July 10, 1958 (Plaintiff's Exhibit # 3), plaintiff's water front parcel is depicted as an unnamed lot adjacent to a parcel of land that is depicted as Lot # 2.
9. Mr. Forgione has used Lot # 1 for recreational purposes three times in the last 8 years. Lots # 11 through # 80 remain heavily wooded and undeveloped.
10. In 2005, Thomas and Jean Dutchess became the current owners of Lot # 2 as depicted in the amended subdivision map (Plaintiff's Exhibit # 3).
11. The defendants purchased Lot # 2 from their daughter in 2005.
12. The defendants' lot is a lakefront home in which they live.
13. The protective covenants and restrictions apply to defendants' property.
14. The west side boundary of plaintiff's water front parcel and the east side boundary of defendants' property is the same.
15. When the defendants first purchased their property, it had an outdoor deck attached to the house on the east side of the residence, the side adjacent to the property owned by plaintiff. At the time the defendants purchased their home, the deck had been there for approximately 40 years. The deck was located 0.15 feet from the common boundary line with plaintiff's property.
16. In 2006, the defendants were granted a permit by the Town of Richmond to enclose their outdoor deck. The work was performed and the deck was enclosed. The defendants spent approximately $16,000.00 enclosing the deck. During the construction of the enclosure, no objections were made to the defendants. Upon completion of the project, the Town of Richmond issued a Certificate of Occupancy.
17. The enclosed deck kept the same footprint as the previous open deck.
18. In 2007, the defendants were notified by the Town of Richmond that their deck enclosure violated the Town Code, which requires a five foot side lot set back. The defendants applied for a variance and notified plaintiff and other neighbors of the application. Over the objection of plaintiff, the Town granted a variance to the defendants.
19. It is undisputed by the parties that the defendants' enclosed deck is closer than 8 feet to the side lot line adjacent to plaintiff's property.
20. Plaintiff's expert, land surveyor Douglas Magde, testified that the defendants' enclosed deck is 0.3 feet over the lot line and encroaches onto plaintiff's property. Defendants' expert, land surveyor Rocco Venezia, testified that the defendants' enclosed deck is not over the lot line, but rather within 0.03 feet to the side lot line. The testimony of defendants' surveyor is more credible on this question and his opinions are adopted by this Court.
21. There are a total of 8 waterfront homes in the Honeoye Lake subdivision. A number of these homes are closer than 8 feet to their respective side lot lines. Surveyor Rocco Venezia determined that three other homes in the subdivision were closer than 8 feet to a side lot line. Another homeowner in the Honeoye Lake subdivision, Glenn Rodermerk, testified that his house at 8587 North Shore Drive is about 5 feet from its west side lot line.
22. The defendants had a drainage pipe buried on plaintiff's property. Specifically, a four inch PVC pipeline ran from the defendants' home onto plaintiff's property and then out to Honeoye Lake. It is undisputed that the defendants did not have authority to place the PVC drainage pipe on plaintiff's property. Anthony Forgione discovered the PVC drainage pipe on plaintiff's property in 2007. Mr. Forgione then removed the pipe and burned some of it. No evidence was received proving the PVC pipe is still on plaintiff's property. No evidence was received regarding any damages sustained by plaintiff as a result of the drainage pipe being on its property.
CONCLUSIONS OF LAW
Plaintiff seeks to enforce the restrictive covenant and asserts that it is entitled to an injunction enforcing the same and compelling the defendants to remove and/or alter their building in compliance with the protective covenant. In their answer, defendants asserted both a defense and a counterclaim seeking to extinguish the restrictive covenant. Defendants claim that the hardships to them outweigh the benefits to plaintiff, and that the restrictive covenants must therefore be extinguished under RPAPL § 1951.
Restrictive covenants will be enforced when the intentions of the parties is clear and the limitation is reasonable and not offensive to public policy ( see, e.g. Reed, Roberts Assoc. v. Strauman, 40 N.Y.2d 303 [1976] ). Defendants do not argue that the restrictive covenants offend public policy. Rather, they seek to extinguish the restrictive covenants under RPAPL § 1951.
Here, plaintiff sues to enforce the restrictive covenant common to both plaintiff's and defendants' properties. “Where restrictive covenants are created with the design to carry out a general scheme applicable to an entire tract, the covenant is enforceable by any grantee as against any other upon the theory that there is a mutuality of covenant and consideration which binds each, provided that the common grantor intended a common scheme or plan and that the defendant had notice thereof” (see, Malley v. Hanna, 101 A.D.2d 1019 [4th Dept.1984] ). The protective covenants and restrictions appear in the defendants' chain of title and the defendants took their property subject to the protective covenants and restrictions. As such, the protective covenants and restrictions apply to the defendants' property (see, Zamiarski v. Kozial 18 A.D.2d 297 [4th Dept.1963] ).
In determining that the protective covenants and restrictions can be enforced upon defendants' property by plaintiff, this Court must then turn to whether the restrictive covenants should be extinguished under RPAPL § 1951.
RPAPL § 1951(2) provides:
“When relief against such a restriction is sought in an action to quiet title or to obtain a declaration with respect to enforceability of the restriction ... if the court shall find that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason, it may adjudge that the restriction is not enforceable by injunction....”
The party claiming that a restriction is unenforceable bears the burden of proving it (see, New York City Economic Dev. Corp. V. T.C. Foods Import & Export Co., Inc., 19 AD3d 568 [2nd Dept.2005] ).
To sustain a cause of action to declare a restrictive covenant unenforceable, a party must go beyond a mere conclusory allegation asserting that the covenant is of no actual or substantial benefit. Rather, factual allegations are required to support the assertion that the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment. In balancing the equities as to whether to extinguish a restrictive covenant, a court should consider whether the owner of the land burdened by the covenant will be unable to put the land to any use whatsoever if the covenant is enforced (see, Neri's Land Improvement, LLC v. J.J. Cassone Bakery, Inc., 65 AD3d 1312 [2nd Dept.2009].
Recently, the Court of Appeals has reiterated, “the issue is not whether the party seeking the enforcement of the restriction obtains any benefit from the existence of the restriction but whether in a balancing of equities it can be said to be, in the wording of the statute, of no actual and substantial benefit ” ( Chambers v. Old Stone Hill Road Associates, 1 NY3d 434 [2004] ). Contrary to the defendants' assertions, this Court finds that the defendants have failed to establish that the character of the Honeoye Lake Subdivision has changed as to defeat the object and purposes for which the protective covenants and restrictions were imposed (see, Gordon v. Lawrence, 84 A.D.2d [2nd Dept.1981] ). Defendants failed to prove that the restrictive covenant was “of no actual and substantial benefit” to plaintiff (RPAPL § 1951[2] ). Defendants assert that since five of the eight homes in the subdivision are in violation of the side set back restrictive covenant, the plaintiff can no longer receive an actual and substantial benefit from enforcement of the restrictive covenant. This Court does not agree with this assertion. Merely because the restrictive covenant cannot be enforced consistently throughout the subdivision does not mean that the plaintiff cannot derive a benefit from the enforcement of the restrictive covenant on the defendants' burdened property adjacent to plaintiff's own property.
The first and foremost factor to be considered in determining whether to extinguish a restriction is whether the property is capable of being put to the use required by the restriction (see, Nature Conservancy v. Congel, 296 A.D.2d 840 [4th Dept.2002] ). Here, defendants failed to establish that they would not be capable of putting their property to use if the protective covenants and restrictions were enforced (see, Neri's Land Improvement, LLC v. J .J. cassone Bakery, Inc., supra). This is not a case in which, if the restrictive covenants is enforced, “there is no use whatsoever to which the restricted land can be put by [defendants]” (Orange & Rockland Utils., 52 N.Y.2d 253, at 265 [1981] ).
Although this Court is sensitive to defendants' plight, it cannot determine that the balancing of equities weigh in their favor.
Based upon the foregoing, this Court determines that plaintiff is entitled to an injunction enforcing the protective covenants and restrictions by compelling defendants to remove and/or alter the defendants' building in compliance with the protective covenants and restrictions.
With respect to the plaintiff's trespass claims against the defendants, this Court finds that the actual trespass by defendants upon plaintiff's property is minimal and inconsequential. Regarding the alleged trespass by the enclosure of the deck, this Court finds that the credible evidence is that the enclosure did not in fact encroach upon plaintiff's property. With respect to the PVC drainage pipes, this Court finds that the plaintiff did not prove a continuing trespass. Rather, the evidence shows that Mr. Forgione removed the drainage pipes in 2007. Plaintiff introduced no evidence of damages. This Court concludes that plaintiff is not entitled damages on its trespass claim.
This constitutes the Decision of the Court. Counsel is directed to submit an order in accordance herewith.