| Doin v Champlain Bluffs Dev. Corp. |
| 2009 NY Slip Op 10025 [68 AD3d 1605] |
| December 31, 2009 |
| Appellate Division, Third Department |
| Richard Doin et al., Respondents-Appellants, v Champlain BluffsDevelopment Corporation et al., Appellant-Respondents, et al.,Defendants. |
—[*1] Clute, Clute & Thompson, Plattsburgh (James W. Clute of counsel), forrespondents-appellants.
Spain, J. Cross appeals from a judgment of the Supreme Court (McGill, J.), entered October8, 2008 in Clinton County, upon a decision of the court partially in favor of plaintiffs.
This appeal arises out of a number of separate actions, ultimately joined for trial, at thecenter of which is a strip of land lying along the shore of Lake Champlain in the Town ofPlattsburg, Clinton County, known as Singing Sands Beach (hereinafter the beach). Plaintiffs areowners of townhouses situated along the beach. Defendant Champlain Bluffs DevelopmentCorporation (hereinafter Champlain) is the fee owner of that portion of the beach as is relevantherein.
In 1983, in contemplation of building a townhouse development, the parcel of land uponwhich plaintiffs' townhouses now lie was transferred by Bluff Point Golf and Country Club, Inc.to Bluff Point Development Corporation. In that transaction, the Country Club retainedownership of the beach, and specifically provided in an amended memorandum of agreement(hereinafter the agreement) that the beach was "irrevocably dedicat[ed] . . . to thepurpose[s] of [*2]bathing, boating and access to Lake Champlainwith no structure[s] to be erected or placed thereon, other than those customarily related tobathing or boating activities." The agreement was incorporated into the original conveyance toBluff Point Development and into each subsequent conveyance from Bluff Point Development toplaintiffs, or their predecessors in interest, as the case may be. The agreement further granted tothe successors and assigns of either party a "perpetual right running with the land to use thebeach for these purposes."
The rights of plaintiffs to nonexclusive use of the beach is not disputed on appeal. Theprimary issue before us is the right to develop the beach. The original plan to build thetownhouse development was to build 38 townhouse units in two phases. As such, the agreementprovided that use of the beach would be "subject to such reasonable rules and regulations andcharges for the development, maintenance and orderly operation thereof as may from time totime be established in writing and subscribed by a majority of the owners to whom theprivilege of use has been conveyed, with the owner or owners of each individual residentialproperty to have one right to subscribe in determining the same. Until such time as the samehave been sold and conveyed, [Bluff Point Development] shall have one such right for each ofthe thirty-eight (38) lots designated as Phases I and II in the aforedescribed [proposed townhousedevelopment]" (emphasis added).
Phase I of the project resulted in the construction of 16 townhouse units, many of which areowned by plaintiffs. The remaining 22 units were never constructed. For the past 20 years, thetownhouse owners enjoyed the use of the beach and maintained it by mowing the grass portion(the beach area has very limited sand and was essentially a large lawn in front of the townhouseproperties). In 1988, the townhouse owners formed a homeowners association which collectsdues for, among other things, the maintenance of the beach. Each townhouse faces the lake withfront doors leading to the beach, and the owners have always accessed the beach by walkingdirectly from their individual units to the lake. Townhouse owners regularly stored smallpersonal boats on the beach by drawing them up onto the shore, apparently without complaint.
In 2004, Champlain and defendant J. David Dame, Champlain's president and soleshareholder, acquired all remaining properties of the original conveying parties, the CountryClub and Bluff Point Development, including the beach and the remaining undeveloped portionof lot 19, the parcel where the townhouses now sit. This undeveloped portion of lot 19 is anirregularly shaped parcel including a narrow strip of land that divides plaintiffs' townhouseproperties and the beach. Champlain has since conveyed the remainder of the land originallyslated for phase II of the townhouse development, lying south of plaintiffs' townhouses, todefendants Arthur S. Spiegel, Timothy M. Duffy, Gretchen A. Duffy and Terry M. Meron.Champlain has also developed other holdings to the west and farther to the south of thetownhouses.
Following opposition by some plaintiffs to Champlain's proposed development of its otherholdings, and admittedly to inconvenience those plaintiffs, Dame began attempting to enforcesome aspects of the agreement and/or covenants in plaintiffs' deeds that had never been enforcedby his predecessors in interest. Specifically, the agreement and the covenants in plaintiffs' deedsprovide easements from the townhouse properties to the beach over areas "designated by" thedeveloper. Accordingly, Dame notified plaintiffs that they were required to access the beachonly by way of a paved walkway between two of the townhouse structures and could no longerdo so directly from their units. When many of the townhouse owners failed to comply, Dameerected a wire fence between the townhouses and the beach to prevent direct access to the beach.That fence was removed during the course of this action.[*3]
Dame also demanded that the townhouse owners storetheir rowboats, canoes and kayaks—when not in use—in an area he designated,some 50 to 100 feet inland from the water, instead of leaving them pulled up on the sand. Thisaction was based on Dame's presumed authority, under the agreement, to designate the areaswhere boats may be "docked or drawn up" on the beach. After the homeowners did not comply,he moved their boats to the designated area himself and, eventually, constructed a boat storagerack directly in front of the townhouse owned by plaintiffs Richard Doin and Suzanne Doin. The19-foot-high boat rack obstructed the Doins' view of the lake and necessitated heavy equipmentto remove boats stored near the top. Dame eventually removed the boat rack. Finally, with thepurpose of transforming the look of the beach, Dame asked the townhouse owners to stopmowing the grass located along the beach and on the narrow strip of land between the beach andthe townhouse properties, because he wanted to build fire pits surrounded by dune-like moundsof earth. When the townhouse owners refused, Dame stripped the grass, created the fire pits andreseeded the area with long beach grass.
Lawsuits ensued. Significant to the issues being pursued on appeal, plaintiffs sought adetermination under RPAPL article 15 to resolve any claims to the beach adverse to those of theplaintiffs, for injunctive relief against Champlain and Dame and for compensatory and punitivedamages. Plaintiffs also asserted claims of private nuisance and trespass against Dame forerection of the fence and boat rack and for confiscating their boats. Champlain counterclaimedalleging trespass by plaintiffs, seeking a RPAPL article 15 determination resolving defendants'property rights in the beach and surrounding lands and seeking contribution from plaintiffs forcosts incurred for maintenance of the beach.
Supreme Court joined these and the parties' other actions for a bench trial. Among otherthings, the court dismissed Champlain's counterclaims for contribution for maintenance of thebeach and for trespass. In determining the property rights of the parties under RPAPL article 15,the court found that plaintiffs have an easement to access the beach directly from theirproperties. However, the court concluded that because phase II of the townhouse developmentproject will never be completed, the voting mechanism established by the agreement is a nullity.Accordingly, the court held that defendants are free to develop lands to which they holdtitle—without plaintiffs' consent—including the beach, subject to New York lawand the rights of the townhouse owners to access the beach. The court ruled that the townhouseowners are responsible for a pro rata share of the maintenance and upkeep of the beach but noportion of the costs of development undertaken by Champlain. Further, Champlain was heldresponsible for any capital improvements on the beach or its other property, but had the right tocharge townhouse owners for the use thereof.
Supreme Court additionally found Dame and Champlain liable for trespass to chattels (theboats) and for creating a private nuisance, and awarded plaintiffs compensatory and punitivedamages. Dame and Champlain (hereinafter collectively referred to as defendants) appeal,challenging only Supreme Court's finding of nuisance and its damage awards. Plaintiffscross-appeal, asserting that Supreme Court erred in holding that (1) plaintiffs have no controlover development of the beach, (2) plaintiffs were not entitled to damages under RPAPL article15, (3) Champlain's property extends to the low watermark of Lake Champlain, and (4) two boatowners were not entitled to compensatory damages.
Initially, in order to give context to the specific holdings that follow, we begin by clarifyingour findings concerning the size and location of the beach. We concur with Supreme Court thatthe beach consists of those lands retained by the Country Club when it conveyed the parcelslated for townhouse development to Bluff Point Development. Hence, the beach is a120-foot-wide strip of land, measured from the high watermark of Lake Champlain, and running[*4]the entire length of the parcel conveyed in that transaction toBluff Point Development. It runs parallel and to the east of the land on which plaintiffs'townhouses sit and encompasses a portion of the parcels now owned by Meron, the Duffys andSpiegel. The beach does not include that portion of lot 19 which Champlain retained, theirregularly shaped parcel including the narrow strip that runs north and south and is locatedbetween plaintiffs' properties and the beach. Accordingly, all references hereinafter to "thebeach" are to that 120-foot strip running to the east of the remainder of lot 19 and included inparcels now owned by Meron, the Duffys and Spiegel.[FN1]
We now turn to the issues raised by plaintiffs' cross appeal. We hold that althoughChamplain is the successor in interest to both original parties of the agreement, thereby mergingcertain aspects of that agreement, those portions of the agreement that impact plaintiffs remainenforceable, as plaintiffs are also successors in interest to Bluff Point Development. Further, weagree with plaintiffs that the voting mechanism set forth in the agreement has not been renderedirrelevant by the events of the past 20 years. Supreme Court found that because Bluff PointDevelopment retained the votes of the 22 properties planned for phase II and that will now nevercome into being (thereby perpetually outnumbering the 16 votes created by phase I), and becauseChamplain has the power to create an unknown number of additional voting rights by conveyingother residential properties from its remaining land holdings with rights to use thebeach,[FN2]the [*5]voting arrangement is a nullity.
We disagree. Upon our review of the agreement language, we find that it contemplates that,when all of the townhouses were constructed and sold off, the use and development of the beachwould be controlled by the townhouse owners and any future residential property owners whohad been deeded access to the beach under the terms of the agreement. The developer's retentionof the voting rights for those townhouses to be built was clearly a temporary arrangement put inplace until the contemplated townhouse development had been completed. There is no indicationthat the parties ever intended that the original developer or its successor would have a perpetualsay in—much less total control over—the maintenance and development of thebeach after all townhouses had been sold.
Indeed, the developer's retention of the 22 phase II voting rights was inextricably tied to theland slated for construction in phase II. Once Champlain sold those lots to other residentialproperty owners,[FN3]it terminated all of its rights to vote on the basis of that ownership. To be sure, under the expressterms of the agreement, Champlain has the power to create additional voting rights by deeding toresidential purchasers at Bluff Point the right to use the beach; however, it has no right, on thebasis of its status as fee owner or developer, to vote. The agreement granted no voting rights tothe developer based on its additional holdings or as the fee owner of the beach; the voting rightswere directly associated with the developer's continued ownership of the land reserved forconstruction of the townhouses envisioned by phase II of the townhouse development plan.
Accordingly, we hold that Champlain has no right, as fee owner, to develop the beach andwill bear any necessary cost of restoring the beach to its previous condition. Instead, eachtownhouse owner, as well as each additional owner of Bluff Point residential property who hasbeen or will be deeded beach access by Champlain,[FN4]shall have a vote to make decisions regarding maintenance and development of thebeach—subject to the restrictions set forth in the agreement—and shall also bear apro rata share of the expense of same. The decision of whether and how to restore the beach toits original state will lie within the power of this voting body and, because Supreme Court didnot reach the issue in light of its contrary holding, we will remit the matter for a determination asto what relief plaintiffs are entitled under RPAPL article 15.[*6]
Next, we turn to defendants' contentions on appeal,beginning with their assertion that Supreme Court erred in finding that their construction of theboat rack and fence constituted a private nuisance. One who, by intentional action or inaction,substantially and unreasonably interferes with others' use and enjoyment of their lands hascommitted a private nuisance (see Copart Indus. v Consolidated Edison Co. of N.Y., 41NY2d 564, 568 [1977]; Balunas v Town of Owego, 56 AD3d 1097, 1098 [2008], lvdenied 12 NY3d 703 [2009]; Queens County Bus. Alliance v New York RacingAssn., 98 AD2d 743, 744 [1983]). While "things merely disagreeable, which simplydisplease the eye . . . no matter how irritating or unpleasant, are not nuisances"(Dugway, Ltd. v Fizzinoglia, 166 AD2d 836, 837 [1990] [internal quotation marks andcitation omitted]), here the fence and the boat rack were more invasive. The five-foot post andwire fence—admittedly erected to inconvenience plaintiffs—served as a substantialand actual barrier to plaintiffs' access to the beach for three years before it was removed duringthe trial in this matter. As Supreme Court noted, the townhouses were designed to face the lakeand, as the photographs in the record depict, the fence made it impossible for townhouse ownersto use the steps from their patios to the beach. Although they could still access the beach by acircuitous route, the fence had its intended consequence of directly and negatively impactingplaintiffs' use of their property.[FN5]Likewise, the boat rack, 20 feet high and positioned directly in front of the Doins' property,effectively obstructed the view of the lake for a year before Dame removed it. Under thesecircumstances, we are not persuaded to interfere with Supreme Court's conclusion that the fenceand boat rack constituted private nuisances (see Mandel v Geloso, 206 AD2d 699, 700[1994]; see also Hitchcock v Boyack, 277 AD2d 557, 558 [2000]; cf. Jennings vFisher, 258 AD2d 722, 723 [1999]).
Next, we address defendants' challenges to the damages awarded by Supreme Court based onthe findings of nuisance and trespass. On appeal, defendants do not challenge the finding thatDame's removal of plaintiffs' boats constituted a trespass. They do challenge Supreme Court'sassessment of damages, pointing out that the only cost figure offered at trial was hearsaytestimony regarding prices for boat rental found on the Internet. However, as no objection wasmade to this testimony during trial, we decline to disturb the compensatory damage awardsrelated to the finding that Dame committed trespass by removing plaintiffs' boats (see Straderv Ashley, 61 AD3d 1244, 1247 [2009], lv dismissed 13 NY3d 756[2009]).[FN6]
Turning to the damages awarded in connection with private nuisance, the proper measure ofdamages for temporary nuisance is the reduction in either the rental value or the usable value ofplaintiffs' properties (see Wheeler v Lebanon Val. Auto Racing Corp., 303 AD2d 791,794 [2003], lv denied 100 NY2d 507 [2003]; Tom Sawyer Motor Inns v ChemungCounty Sewer Dist. No. 1, 33 AD2d 720, 722 [1969]). Here, the Doins offered evidencethat, as a result [*7]of the boat rack, their property assessmentwas substantially lowered. We find this evidence of a decrease in property value sufficient tosupport Supreme Court's award of compensatory damages to the Doins in relation to the boatrack. However, Suzanne Doin's testimony and supporting documentation is the only admittedquantitative evidence regarding value of any kind in the record. Although plaintiffs originallysought to offer testimony regarding the decreased value of the remaining properties through thetestimony of a real estate appraiser, after objections and debate, plaintiffs voluntarily withdrewthat evidence. As plaintiffs failed to offer any other evidence of pecuniary loss caused by thefence or boat rack, the compensatory damage award cannot stand. Accordingly, with theexception of the Doins, plaintiffs are entitled to only nominal damages of $1 each on theirnuisance claims (see Dukett v Wilson, 31 AD3d 865, 869 [2006]; Buchwald vWaldron, 183 AD2d 1080, 1081 [1992]).
Defendants also challenge the award of punitive damages. "A party seeking to recoverpunitive damages for trespass on real property has the burden of proving that the trespasser actedwith actual malice involving intentional wrongdoing, or that such conduct amounted to awanton, willful, or reckless disregard of the party's right of possession" (Golonka v Plaza atLatham, 270 AD2d 667, 670 [2000] [internal quotation marks and citation omitted]), suchthat the award serves "as a penalty to the trespasser and as a warning to others" (Chlystun vKent, 185 AD2d 525, 527 [1992]). Here, given the record evidence that, in erecting thefence, constructing the boat rack and removing plaintiffs' boats, Dame was motivated solely by adesire to inconvenience plaintiffs, we will defer to Supreme Court's conclusion that punitivedamages are warranted (see Strader v Ashley, 61 AD3d at 1248; Chlystun vKent, 185 AD2d at 527; see also Western N.Y. Land Conservancy, Inc. v Cullen, 66AD3d 1461, 1463 [2009]; Golonka v Plaza at Latham, 270 AD2d at 670-671).
Cardona, P.J., Malone Jr. and Kavanagh, JJ., concur; Mercure, J., not taking part. Orderedthat the judgment is modified, on the law and the facts, without costs, by reversing so muchthereof as (1) determined that defendants Champlain Bluffs Development Corporation, Arthur S.Spiegel, Timothy Duffy, Gretchen A. Duffy and Terry M. Meron own fee title to the landsbetween the high watermark and low watermark of the lake, (2) reformed the 1984 amendedmemorandum of agreement and declared the voting rights arrangement with respect to the useand development of the beach a nullity, (3) enjoined plaintiffs from maintaining the beach anddeclared that Champlain has a unilateral right to develop the beach, and (4) awardedcompensatory damages to plaintiffs other than plaintiffs Richard Doin and Suzanne Doin fortheir losses caused by the fence and boat rack; it is ordered that (1) Champlain, Spiegel, theDuffys and Meron own fee title only to the high watermark of the lake, (2) each townhouseowner has a single voting right and will bear a pro rata cost of maintenance and developmentalong with any residential grantee of Champlain of beach rights as per the 1984 amendedmemorandum of agreement, (3) the right to develop the beach lies exclusively in those havingvoting rights, (4) compensatory damages of $750 are awarded each to two additionalboat-owning plaintiffs, the Hamerniks and the estate of Prescott, and (5) compensatory damagesto all plaintiffs except the Doins shall be nominal damages of $1 each; matter remitted to theSupreme Court for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote 1: We also deem it necessary toaddress Supreme Court's conclusion that Champlain owns beyond the high watermark to the lowwatermark of the lake along the easterly portion of the parcel identified as the beach. Contrary todefendants' contention, we do not find this issue academic, as the relief that Champlain requestedunder RPAPL article 15 specifically requests a determination of any claims adverse to those ofdefendants to the beach and surrounding property, seeking resolution of the "actual size andlocation" of the beach. The question of whether the upland owner holds title to land below thehigh watermark is controlled by the specific language in the chain of title (see Buran vPeryea, 246 AD2d 856, 857-858 [1998]; Chism v Smith, 174 App Div 332, 334-335[1916]). Although the chain of title includes some inconsistencies, the conveyance of the parcelfrom the Country Club to Champlain defined the land with reference to the "Petrashune Map,"which shows the boundaries of the conveyed land as being the high watermark. Further, thegeneral rule is that "[i]n the case of our inland seas or large navigable bodies of water, the title ofthe riparian owners of land, adjacent to such bodies of water, extends only to [the] high-watermark" (Stewart v Turney, 237 NY 117, 120 [1923]). Thus, we hold that Champlain ownsonly to the high watermark of the lake; the eastern boundary of the beach is thus the same as theeastern boundary of Champlain's property.
Footnote 2: The 1984 amendedmemorandum granted Champlain's predecessor in interest (the Bluff PointDevelopment)—and its successors and assigns—the right to convey beach rightsalong with lands then owned or after-acquired by Bluff Point Development. In so holding, wereject plaintiffs' argument that the right to grant beach access to additional parties does notextend to the Bluff Point Development's successors in interest. The amended memorandumagreement specifically states that it "shall bind and inure to the benefit of the successors andassigns of the respective parties." Accordingly, Champlain, as the successor in interest to BluffPoint Development, has the right to assign additional unexclusive beach rights when sellingother residential property at Bluff Point.
Footnote 3: The three conveyances byChamplain to Meron, the Duffys and Spiegel represent all of the lands that originally made upphase II of the Bluff Point Townhouse Development.
Footnote 4: Champlain has deeded at leastfive parcels from its other Bluff Point holdings, which grant rights to use the Bluff Point beach,making specific reference to the agreement.
Footnote 5: Supreme Court's conclusion thatplaintiffs' property rights were interfered with was premised on its finding—based onplaintiffs' 20 years of uninterrupted practice—that plaintiffs' easement to access the beachextends directly from each townhouse to the beach. Defendants do not directly contest this issueon appeal.
Footnote 6: As a result of an apparentoversight, Supreme Court did not award compensatory damages to two boat-owning plaintiffs.There being no basis upon which to distinguish these boat-owning plaintiffs from the others, theHamerniks and the estate of Prescott are also entitled to damages of $750 each.