Opinion
0026468/2006, Motion Seq. No.: 005-MD, 006-Mot D.
July 9, 2006.
Twomey Latham Shea Kelley Dubin Quartararo, LLP, Attorneys for Plaintiffs, New York.
MacLacklan Egan, LLP, Attorney for Defendant BABINSKI, New York.
PRESENT: HON. JEFFREY ARLEN SPINNER, Justice of the Supreme Court.
UPON the following papers numbered 1 to 101 read on this Petition:
• Plaintiffs' Order to Show Cause ( Pages 1-31 Exhibits A-B A-C);
• Defendant's Motion (Pages 32-61 Exhibits 1-4);
• Plaintiffs' Support-Opposition (Pages 62-87 Exhibits A-C );
• Defendant's Reply (Pages 87-101 Exhibits 1-3 );
it is,
ORDERED, that the application of Plaintiffs is hereby denied in all respects; and the application of Defendant is hereby granted to the respect set forth herein below.
Plaintiffs moves this Court for an Order, pursuant to CPLR 6311 and 6313, enjoining and restraining Defendant, and any persons acting on his behalf, from erecting, constructing or building, or taking any steps to erect, construct or build, a vehicle storage facility or any other structure on the Agricultural Reserve located at 588 Lumber Lane, Bridgehampton, New York, Suffolk County Tax Map No. 900-52-1-1.6.
Defendant moves this Court for judgment dismissing Plaintiffs' Complaint, in accordance with CPLR 3211(a), together with reasonable attorneys fees and costs of making this Motion.
Plaintiffs are the owner of parcels of property adjacent to and nearby to the above referenced parcel that was the subject of an application before the Town of Southampton Planning Board; in 1990, William A Babinski, father of the present owner of the subject parcel, obtained subdivision approval of his 6.5-acre parcel into 4 lots, conditioned on his conveying an Agricultural Reserve to the Town of Southampton over 3.23 acres thereof, in accordance with Southampton Town Code Chapter 247, Town Law § 281 and General Municipal Law § 247, which he retained in his own name and later t4ransfered to his son, Defendant herein; on May 8, 2006, Defendant applied to the Town of Southampton Planning Board for site plan approval and a construction permit to erect a 3,420 square foot metal barn on the subject parcel (which would cover 2.5% of said parcel), for storage of farm machinery for all his farm operations, including some 50 acres in Wainscott, New York, and some 30 acres in Bridgehampton, New York, which application was given conditional approval, same being filed with the Office of the Southampton Town Clerk on August 9, 2006, after which Plaintiffs brought this action, and are also Petitioners in an Article 78 proceeding against the Town of Southampton Planning Board.
The easement, or Agricultural Reserve, conveyed by Defendant's father to the Town of Southampton was dated February 16, 1990, and recorded in Liber 11071 Page 120 with the Office of the Suffolk County Clerk, and stated in relevant part:
". . . nothing herein shall be construed as precluding the GRANTOR from erecting or constructing structures or buildings which are deemed reasonably necessary for the utilization of the burdened premises for bona fide agricultural production, provided that a site plan showing the size and location of such structures or buildings is submitted to and found acceptable by the Planning Board of the Town of Southampton. . . ."
Many of the positions in this action being shared with the above referenced Article 78 proceeding, for the sake of consistency the Court borrows freely from the decision in said Article 78 proceeding, which was denied by this Court on the same date as the instant decision.
Plaintiffs argued that the language contained in the Agricultural Reserve stating that Defendant may erect or construct ". . . structures or buildings which are deemed reasonably necessary for the utilization of the burdened premises for bona fide agricultural production . . ." is clear and unambiguous in meaning that the structure must be necessary for the use of the subject parcel, while said Defendant openly admits that the proposed facility will serve the totality of his farming operation.
Defendant counters that the Town of Southampton, in the spirit of preserving the Town's farming history, has created a patchwork of agricultural reserves. He eloquently wrote, in his Article 78 submission, that, "The sight of farm tractors on the side roads on the East End is not only historical but also a necessity due to the ever decreasing and fragmented farm land remaining. If Plaintiffs' logic would control, each and every farm field would have to have its own tractors and equipment and its own storage building to house them. This strained reading of the Agricultural Easement would effectively be a death knell to the traditional farming in the Town of Southampton.". Counsel for said Defendant adeptly pointed out, in the Article 78 submissions, that any ambiguity in a covenant restricting the use of land must be strictly construed against those seeking to enforce it, and the Court must interpret the covenant to limit, rather than extend, its restriction (See: 9394 LLC v Farris, 10 AD3d 708 [2nd Dept 2004] (where the language used in a restrictive covenant is equally susceptible to two interpretations, the less restrictive interpretation must be adopted); Ludwig v Chautauqua Shores Improvement Assn , 5 AD3d 1119 [4th Dept 2004]); and that a party seeking to enforce a restriction on land use must prove, by clear and convincing evidence, the scope as well as the existence of the restriction (See: Greek Peak, Inc v Grodner, 75 NY2d 982 555 NE2d 906).
The Court notes that in the instant matter, the Agricultural Reserve doesn't even lend itself to being susceptible to two interpretations, there being nothing therein, nor in the Town Code, to restrict the erection or construction a buildings on the subject parcel to solely the agricultural production on that parcel, and that Defendant's intention to use the storage facility for the totality of his farming operation is totally consistent with said Agricultural Reserve.
Plaintiffs further argued that Defendant ". . . uses the pretense of farming to defend the construction of a huge metal storage facility smack in the middle of surrounding residences . . .", further writing that ". . . none of the adjacent homeowners ever contemplated that the driveway easement would be used by [sic] for the purpose of transporting farm machinery to and from the Agricultural Easement."
Defendant countered the Town of Southampton Planning Board ensured that the Agricultural Reserve had its own access to public roadways, by the very creation of the driveway thereto, in the adopted design of the original Babinski Subdivision that created said reserve.
The Court is somewhat mystified by Plaintiffs' position herein. It seems totally inconsistent to own property adjacent to or nearby an Agricultural Reserve, and consider construction of a modern barn, or the appearance of farm machinery along the driveway of such Agricultural Reserve, as not-contemplated. The Court notes that this is one of at least 5 Agricultural Reserves in the immediate area of these Plaintiffs' properties, and whether they purchased before creation of such reserves (and therefore were on notice when they were created) or after said creation (where a proper search obviously revealed the existence of same), it was no secret that they were surrounded by such reserves, and that there was more than reasonable certainty that same would be used for agricultural purposes and the uses appurtenant thereto. The Court hereby determines the position of Plaintiffs to be without merit.
Defendant argues that Plaintiffs lack standing to bring this action, and Plaintiffs' Counsel counters that the Agricultural Reserve is in the Plaintiffs' direct chain of title by virtue of the fact that they purchased two of the Babinski Subdivision lots, and therefore they relied on the covenants and restrictions of said Agricultural Reserve. In light of the decision of this Court herein above, said argument is of no value, since what they relied on clearly notified them of the agricultural use of this property, and therefore the use of this property appurtenant to its agricultural nature can be of no harm whatsoever.
Furthermore, the Court cannot look beyond the fact that Plaintiffs are in fact trying to enforce a covenant, which Plaintiffs themselves set forth was created and accepted pursuant to General Municipal Law § 247. As adeptly pointed out by Counsel for Defendant, subsection 4 thereof clearly states that ". . . any interest acquired pursuant to this section is hereby enforceable by and against the original parties and the successors in interest, heirs and assigns of the original parties . . ."; an abutting property owner lacks standing to enforce a scenic easement (See: Bleier v Board of Trustees of Incorporated Village of East Hampton, 191 AD2d 552 [2nd Dept 1003]); The extent of the use of an easement might be an issue between the parties to the easement but may not be contested by a person not a party to the easement ( See: New York Jurisprudence, § 206). Adding further, Defendant's Counsel argues that the fact that Plaintiffs bought separate land from the grantor of the Agricultural Reserve does not make them successors to said Reserve, directly or indirectly, and does not give them the right to enforce same (See, e.g.: Thomas v June, 194 AD2d 842 [3rd Dept 1993]) (Plaintiffs who had purchased property from a developer who originally owned, and entered into a restrictive covenant with respect to the property, nevertheless lacked standing to enforce the restrictive covenant, even though it was expressly binding on the successors and assigns to the parties to the agreement)). The Court hereby determines that, in the final analysis, Plaintiffs herein lack standing to maintain the instant proceeding.
As also pointed out by Counsel for Defendant, a Complaint is subject to dismissal pursuant to 3211(a)(1), when factual claims are contradicted by documentary evidence (See: Lovisa Constr Co v Metropolitan Transp Auth, 198 AD2d 333 [2nd Dept 1993] citing authority; Feeley v Midas Properties, Inc, 154 AD2d 505 [2nd Dept 1989] affirming dismissal of complaint; SRW Associates v Bellport Beach Property Owners, 129 AD2d 328 [2nd Dept 1987]; Tender Loving Care Agency, Inc v Hladum, 111 AD2d 162 [2nd Dept 1985] affirming dismissal of complaint). The Court hereby determines that the Complaint herein must be dismissed.
For all the reasons stated herein above and in the totality of the papers submitted herein, it is, therefore,
ORDERED, that the application of Plaintiffs for an Order enjoining and restraining Defendant, and any persons acting on his behalf, from erecting, constructing or building, or taking any steps to erect, construct or build, any structure on the Agricultural Reserve located at 588 Lumber Lane, Bridgehampton, New York, is hereby denied in all respects; and it is further
ORDERED, that the application of Defendant for judgment dismissing Plaintiffs' Complaint, together with reasonable attorneys fees and costs of making this Motion, is hereby granted to the extent that the Complaint herein is dismissed and the action is hereby disposed of, without attorneys fees or costs; and it is further
ORDERED, that Counsel for Defendant is hereby directed to serve a copy of this order, with Notice of Entry, upon all other parties, upon the Calendar Clerk of this Court and upon the Suffolk County Clerk within twenty (20) days of the date this order is entered by the Suffolk County Clerk.