| Matter of Quiver Rock, LLC v New York State Adirondack ParkAgency |
| 2012 NY Slip Op 02376 [93 AD3d 1135] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Quiver Rock, LLC, Appellant, v New York StateAdirondack Park Agency et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Loretta Simon of counsel), for New YorkState Adirondack Park Agency, respondent. FitzGerald, Morris, Baker & Firth, P.C., Glens Falls (William A. Scott of counsel), for GlennT. Angell, respondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Aulisi, J.), entered March 18,2011 in Hamilton County, which, in a combined proceeding pursuant to CPLR article 78 andaction pursuant to RPAPL article 15, granted a motion by respondent Adirondack Park Agency todismiss the amended petition against it.
Petitioner and respondent Glenn T. Angell own adjoining parcels on the shores of LakePleasant in the Village of Speculator, Hamilton County. Petitioner's property is allegedlybenefitted by a 250-foot beach easement on Angell's property, and Angell's property is alsoburdened by restrictive covenants regarding the location of structures on the parcel as well asuses in the parcel's wetlands. In June 2010, respondent Adirondack Park Agency (hereinafterAPA) issued a project permit to Angell approving his application to construct a single-familydwelling, a dock, and a footpath to the lake that included a footbridge of less than 100 square feet[*2]crossing a section of the parcel's wetlands. In August 2010,petitioner commenced this combined CPLR article 78 proceeding and RPAPL article 15 actionagainst Angell and the APA, which included numerous causes of action against Angell and onecause of action against the APA. As relevant to this appeal, petitioner asserted that the permitissued by the APA empowered Angell to engage in construction activities that violate theeasement and restrictive covenants and, further, that the APA issued the permit without makingfindings required by its own regulation. The APA made a pre-answer motion to dismiss theamended petition as to it, which Supreme Court granted. Petitioner appeals.
When presented with a motion to dismiss pursuant to CPLR 3211 (a) (7), "we must accept astrue the facts as alleged in the [petitioner's pleadings] and submissions in opposition to themotion, accord [the petitioner] the benefit of every possible favorable inference and determineonly whether the facts as alleged fit within any cognizable legal theory" (Sokoloff v HarrimanEstates Dev. Corp., 96 NY2d 409, 414 [2001]; see 511 W. 232nd Owners Corp. vJennifer Realty Co., 98 NY2d 144, 151-152 [2002]; Leon v Martinez, 84 NY2d 83,87-88 [1994]). While we find that the first of petitioner's two theories was properly dismissedsince it urges a ground that lacks any legal viability, petitioner's second theory was sufficient tosurvive dismissal under the liberal test employed on a CPLR 3211 motion.
Petitioner's first theory contends that the APA permit created a cloud on its title because thepermit authorized construction activities by Angell that petitioner asserts are prohibited by theeasements and restrictive covenants. This contention is meritless. "The use that may be made ofland under a zoning ordinance and the use of the same land under an easement or restrictivecovenant are, as a general rule, separate and distinct matters, the ordinance being a legislativeenactment and the easement or covenant a matter of private agreement" (Matter of Friends ofShawangunks v Knowlton, 64 NY2d 387, 392 [1985] [citations omitted]; accord Chambers v Old Stone Hill Rd.Assoc., 1 NY3d 424, 432 [2004]). Petitioner urges that this settled law is inapplicable tothe APA since its permits are recorded with the county clerk and, according to the APA'sregulations, such recordation provides "actual notice of the right to undertake the project and ofthe terms and conditions imposed by the permit. The right shall extend to, and the terms andconditions of the permit shall be binding upon, the landowner and all subsequent grantees of theland area subject to the permit" (9 NYCRR 572.21 [b]). This language simply means that theapplicant's project complies with the relevant statutes administered by the APA and thatsubsequent grantees are put on notice of the permit and its terms. The regulation does not purportto address or affect in any fashion private covenants or easements that may also limit the use ofthe land.
Next, we consider petitioner's argument that it sufficiently stated a cause of actionchallenging the permit upon the ground that the APA acted arbitrarily because it failed to makefindings required by 9 NYCRR 578.10.[FN*]Where an entity charged with determining land use applications fails to make a finding requiredby the governing code, regulation or statute, the entity's determination may be subject toannulment (see Matter of Delaney v Zoning Bd. of Appeals of Town of Cornwall, 298AD2d 584, 585 [2002]; Matter of Yellow Lantern Kampground v Town of Cortlandville,279 AD2d 6, 12 [2000]). Here, petitioner's allegations in [*3]thepetition and its submissions in response to the APA's motion set forth sufficient facts, whenaccorded the benefit of every favorable inference, to constitute a cognizable theory. To the extentthat the APA attempted to show it complied with the pertinent regulation by relying in part on anaffidavit from one of its attorneys, such proof can be properly considered after its answer isserved (see Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; Matter of Albany Law School v New YorkState Off. of Mental Retardation & Dev. Disabilities, 81 AD3d 145, 148 [2011]), butwas insufficient to merit CPLR 3211 dismissal (cf. Balunas v Town of Owego, 56 AD3d 1097, 1098 [2008], lvdenied 12 NY3d 703 [2009]).
Petitioner's remaining arguments, to the extent they are properly before us, are unavailing.
Mercure, A.P.J., Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as granted the motion ofrespondent Adirondack Park Agency dismissing that portion of the amended petition allegingthat said respondent acted arbitrarily in failing to make findings required by its regulation;motion denied to that extent and matter remitted to the Supreme Court to allow said respondentto serve an answer within 20 days of this Court's decision; and, as so modified, affirmed.
Footnote *: An issue regarding petitioner'sstanding that was asserted by the APA in its motion to dismiss was withdrawn prior to SupremeCourt's decision.