| Matter of Perrin v Bayville Vil. Bd. |
| 2010 NY Slip Op 00968 [70 AD3d 835] |
| February 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Madeleine Petrara Perrin et al.,Appellants, v Bayville Village Board et al., Respondents. |
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In a proceeding pursuant to CPLR article 78 to review two determinations of the VillageBoard of the Village of Bayville, both dated April 23, 2007, which, inter alia, authorized theMayor of the Village of Bayville to enter into a license agreement with the County of Nassaupermitting the installation of, among other things, two microwave dish antennae and sixomnidirectional antennae on property owned by the Village of Bayville, and issued a negativedeclaration with respect to the installation of the antennae pursuant to the State EnvironmentalQuality Review Act (ECL art 8), the petitioners appeal from an order and judgment (one paper)of the Supreme Court, Nassau County (Winslow, J.), dated August 10, 2008, which granted themotion of the respondents Bayville Village Board, Victoria Siegel, as Mayor and in herindividual capacity, Timothy J. Horgan, Carol Kennedy, John Laurine, and Douglas G. Watson,as Trustees of Bayville Village and in their individual capacitives, and James A. Reilly, asVillage Attorney of Bayville Village and in his individual capacity, and the separate motion ofthe respondent County of Nassau to dismiss the proceeding pursuant to CPLR 3211 and CPLR7804 (f), and dismissed the proceeding.
Ordered that so much of the proceeding as sought to review the determination of the VillageBoard of the Village of Bayville dated April 23, 2007, which authorized the Mayor of theVillage of Bayville to enter into a license agreement with the County of Nassau permitting theinstallation of, among other things, two microwave dish antennae and six omnidirectionalantennae on property owned by the Village of Bayville is converted to an action for a judgmentdeclaring that the proposed installation of the microwave dish antennae and six omnidirectionalantennae on property owned by the Village of Bayville [*2]wouldviolate a restrictive covenant (see CPLR 103 [c]); and it is further,
Ordered that the order and judgment is modified, on the law, by adding a provision theretodeclaring that the installation of two microwave dish antennae and six omnidirectional antennaeon property owned by the Village of Bayville will not violate the restrictive covenant; as somodified, the order and judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
By resolution dated April 23, 2007, the Village Board of the Village of Bayville authorizedthe Mayor of the Village to enter into a license agreement with the County of Nassau whichwould permit installation of two microwave dish antennae and six omnidirectional antennae onproperty owned by the Village, to be used by the Nassau County Police Department inconnection with its public safety radio system. The antennae were to be installed on a watertower situated on a parcel of land previously gifted to the Village by a deed containing arestrictive covenant. By separate resolution also dated April 23, 2007, the Village Board issued anegative declaration under the State Environmental Quality Review Act (ECL art 8; hereinafterSEQRA), with respect to the proposed installation of the antennae.
The petitioners, who are neighboring property owners benefitting from the restrictivecovenant in the Village's deed, commenced this proceeding pursuant to CPLR article 78 toreview the resolution issuing the SEQRA negative declaration, and to review the resolutionauthorizing the Mayor of the Village to enter into a license agreement with the Countypermitting the installation of the antennae. This latter claim, in actuality, sought a judgmentdeclaring that the proposed installation of the antennae on the Village's water tower wouldviolate the restrictive covenant in the Village's deed and related injunctive relief. The SupremeCourt granted the motions of various respondents to dismiss the proceeding pursuant to CPLR3211 and 7804 (f), and dismissed the proceeding.
Since personal jurisdiction was obtained over all of the necessary parties, we convert thatportion of the proceeding which sought review of the resolution authorizing the Mayor of theVillage to enter into a license agreement with the County into an action for a declaratoryjudgment (see CPLR 103 [c]; Matter of Dubinsky v D'Amico, 304 AD2d 828,829 [2003]; Lauria v McKee, 279 AD2d 509, 509-510 [2001]; Kamhi v Town ofYorktown, 141 AD2d 607, 608-609 [1988], affd 74 NY2d 423 [1989]). Upon reviewof the substantive issue raised in that claim, we conclude that the relief requested was properlydenied, but for reasons different from those relied upon by the Supreme Court.
"Restrictive covenants will be enforced when the intention of the parties is clear and thelimitation is reasonable and not offensive to public policy" (Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 431 [2004];see 9394 LLC v Farris, 10 AD3d708, 709 [2004]). "[A] party seeking to enforce a restriction on land use must prove, byclear and convincing evidence, the scope, as well as the existence, of the restriction" (GreekPeak v Grodner, 75 NY2d 981, 982 [1990]).
The restrictive covenant at issue provides that "no use of the premises shall be made orpermitted which would be offensive, dangerous or obnoxious to the owners or any owner (nowor hereafter) of land within a radius of one mile of the premises whether by reason of smoke,odor, fumes or any other use whatsoever offensive to such owners." The petitioners assert thatthe proposed installation of the antennae would violate this covenant because the radio frequency(hereinafter RF) radiation emitted by the antennae would pose substantial health risks, and thusthat the installation of the antennae would be dangerous and offensive to them, despite the factthat the antennae would be licensed by the Federal Communications Commission (hereinafterFCC), and therefore, must comply with federal safety standards. The petitioners take the positionthat, due to the phrase "any other use whatsoever offensive to such owners," the covenant barsany use that is subjectively offensive to the landowners within one mile of the water tower. Dueto the vague and subjective nature of the covenant as the petitioners would have this Courtinterpret it, it would not constitute a "reasonable" limitation on the free use of land (cf. Chambers v Old Stone Hill Rd.Assoc., 1 NY3d 424 [2004]; see Biggs v Sea Gate Assn., 211 NY 482, 488[1914]; Rowland [*3]v Miller, 139 NY 93, 102 [1893]),and the petitioners would not be capable of demonstrating, by clear and convincing evidence, thescope of the restriction and its violation, as is their burden (see Turner v Caesar, 291AD2d 650, 651 [2002]; see also Moubray v G. & M. Improvement Co., 178 App Div737, 739 [1917]).
Even if the restrictive covenant is viewed from an objective standpoint, interpreting thephrase "offensive, dangerous or obnoxious," as we must, with reference to the offensive,dangerous, or obnoxious conditions specifically enumerated in the provision, as well as withinthe context of the entire deed (see Herald Sq. S. Civic Assn. v Consolidated Edison Co. ofN.Y., 307 AD2d 213, 213-214 [2003]; Romano v Greenwald, 254 App Div 782,782-783 [1938]; Moubray v G. & M. Improvement Co., 178 App Div at 740), thecovenant cannot be said to prohibit FCC-licensed antennae that emit RF radiation. The restrictivecovenant refers to uses of the land which would be "offensive, dangerous or obnoxious" byreason of "smoke, odor [or] fumes." It further bars use of the land for "public amusements,concessions, vending, restaurants or other commercial enterprises" or for use as "a dumpingground, [for] garbage disposal purposes, [or as] an incinerator." In light of this context,interpreting the restrictive covenant to prohibit such an uncertain, intangible, and attenuateddanger as the danger allegedly posed by emissions of RF radiation from FCC-licensed antennae,would extend the covenant beyond the contextual meaning of its terms, and would impermissiblyserve to extend, rather than limit, its restriction (see Rautenstrauch v Bakhru, 64 AD3d 554, 555 [2009]; 9394LLC v Farris, 10 AD3d at 710; Kew Forest Neighborhood Assn., Inc. v M & K Mgt., LLC, 12 AD3d569, 570 [2004]; Blueberries Gourmet v Aris Realty Corp., 291 AD2d 520, 521[2002]). Accordingly, the court should have included a provision declaring that the proposedinstallation of the antennae would not violate the restrictive covenant.
The Supreme Court correctly dismissed the petitioners' challenge to the SEQRA negativedeclaration. Since the record establishes that the Village Board "identified the relevant areas ofenvironmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basisfor their determination," the Court will not disturb the agency's determination (Chinese Staff& Workers Assn. v City of New York, 68 NY2d 359, 363-364 [1986], quoting Matter ofJackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]; see Matter ofConcerned Citizens of Val. Stream v Bond, 282 AD2d 532, 532 [2001]). Further, the VillageBoard's reliance upon an environmental study commissioned by, and performed on behalf of theVillage, which, in the Village Board's judgment was objective and sound, was not unreasonablemerely because the Village was reimbursed for the costs of the study by the company contractedto install the antennae. The petitioners' allegation that the study was biased is not supported byany evidence.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Rivera, J.P., Florio, Miller and Hall, JJ., concur.