Opinion
No. 62478.
09-27-2016
In the Matter of the Application of Frederick C. TEDESCHI, Petitioner, v. LAKE GEORGE PARK COMMISSION, Michael C. Hopper, Doris Hopper, Respondents.
Mazzotta, Sherwood & Vagianelis, P.C., Albany (John N. Vagianelis of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Nicholas C. Buttino of counsel), for respondent Lake George Park Commission. McPhillips, Fitzgerald & Cullum, L.L.P., Glens Falls (James E. Cullum of counsel), for respondents Michael C. Hopper and Doris Hopper.
Mazzotta, Sherwood & Vagianelis, P.C., Albany (John N. Vagianelis of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Nicholas C. Buttino of counsel), for respondent Lake George Park Commission.
McPhillips, Fitzgerald & Cullum, L.L.P., Glens Falls (James E. Cullum of counsel), for respondents Michael C. Hopper and Doris Hopper.
ROBERT J. MULLER, J.
Petitioner and respondents Michael C. Hopper and Doris Hopper (hereinafter referred to as the Hoppers) own property in the Shore Colony on Assembly Point located on Lake George in the Town of Queensbury, Warren County [pet. par. 11]. The Shore Colony was created as part of a common scheme in the 1950s and owners are subject to various restrictive covenants. As relevant here, petitioner and the Hoppers, as well as other owners at the Shore Colony, have an undivided one one-hundredth (1/100th) interest in, among other things, the main dock and are prohibited from erecting obstructions thereon [pet. par. 13–14]. Owners in the Shore Colony are, however, ostensibly allowed to have finger docks extending from the main dock [pet. ex. E, photos]. The construction or modification of docks on Lake George are subject to regulation and approval by respondent Lake George Park Commission (hereinafter LGPC) (see ECL 43–0107, 43–0117[4] ; Matter of Lake George Assn. v. Lake George Park Commn., 213 A.D.2d 867, 868 [1995] ).
In October 2015, Michael C. Hopper submitted an application to LGPC seeking permission to modify the Hoppers' dock by erecting two poles and a header to support an articulating dock [pet. ex. E]. Petitioner submitted comments to LGPC urging that it deny the permit or, alternatively, schedule a hearing regarding the application [pet. ex. I]. On November 4, 2015, LGPC granted the Hoppers a permit to "[e]rect temporary post support frame for articulating dock" [pet. ex. J]. Thereafter, petitioner commenced this hybrid CPLR article 78 proceeding and declaratory judgment in March 2016 against LGPC and the Hoppers. LGPC filed this motion to, among other things, convert the portion of the proceeding requesting a declaratory judgment against LGPC to an article 78 proceeding and to dismiss that proceeding for failure to state a cause of action.
Initially addressing the request to convert the proceeding, the Court reads the petition as essentially seeking article 78 relief as to LGPC and declaratory judgment as to the Hoppers. To the extent the petition can be construed otherwise and to avoid any confusion, the Court hereby converts all claims against LGPC to a CPLR article 78 proceeding and all claims against the Hoppers to a declaratory judgment (see CPLR 103[c] ).
The Court finds merit in LGPC's argument that the petition fails to state a cause of action against it. The essence of petitioner's claim is that the articulating dock approved by LGPC and constructed by the Hoppers violated restrictive covenants that are part of the Shore Colony as well as petitioner's ownership interest in the main dock. Petitioner's remedy in such regard is a private right of action against the Hoppers. It is well settled that "[t]he use that may be made of land under a zoning ordinance and the use of the same land under an easement or restrictive covenant are, as a general rule, separate and distinct matters, the ordinance being a legislative enactment and the easement or covenant a matter of private agreement" (Matter of Friends of Shawangunk v. Knowlon, 64 N.Y.2d 387, 392 [1985] [citations omitted]; see Chambers v. Old Stone Hill Rd. Assoc., 1 NY3d 424, 432 [2004] ; Matter of Quiver Rock, LLC v. New York State Adirondack Park Agency, 93 AD3d 1135, 1136–1137 [2012] ). LGPC did not purport to address in any fashion any private rights or restrictions that might encumber the property. Indeed, its permit specifically provided, among other things, that the Hoppers remained "responsible for obtaining any other permits, approvals, land easements, and right-of-ways which may be required for this activity" and that LGPC's action cannot be "construed as conveying to [the Hoppers] any right to trespass upon the lands or interfere with the riparian rights of others ... or as authorizing the impairment of any rights, title or interest in real or personal property held or vested in a person not a party to the permit." Simply stated, LGPC merely determined that the application was sufficient under its regulations and expressly made no finding with respect to any other legal rights implicated (see Matter of Quiver Rock, LLC v. New York State Adirondack Park Agency, 93 AD3d at 1137 ). In light of such facts, petitioner's further contention that LGPC was somehow involved in an unconstitutional taking of petitioner's property is without merit.
Nor has petitioner stated a cause of action that LGPC failed to adhere to its own regulations. "[A]n agency determination arrived at in a manner inconsistent with its own regulations is not supported by a rational basis" (Matter of Mid Is. Therapy Assoc., LLC v. New York State Educ. Dept., 129 AD3d 1173, 1175 [2015] ). However, "[a]n agency's interpretation of its own regulations is entitled to deference if that interpretation is not irrational or unreasonable" and "the courts will not disturb an administrative agency's determination unless it lacks any rational basis" (Matter of IG Second Generation Partners L.P. v. New York State Div. of Hous. & Community Renewal, 10 NY3d 474, 481 [2008] [internal quotation marks and citations omitted] ). Petitioner points out that the permit application included an addendum A for a co-owner to sign and addendum B to list parties with deeded or contractual access to the relevant area of lakefront. The Hoppers did not provide the addendum A or addendum B information in the application. Although this information is requested in the application, it is significant that this is not set forth as a requirement in the regulations. Parenthetically, petitioner had notice of the Hoppers application and submitted opposition in which he set forth his alleged ownership interest. Inasmuch as LGPC's regulations do not mandate such information in every application, it was not irrational or unreasonable for LGPC to consider an application that did not include such information and its determination is supported by a rational basis. The petition must be dismissed as to LGPC, and the further ground argued by LGPC to dismiss, based on standing, is academic.
A pending claim for declaratory judgment against the Hoppers remains.
Accordingly, it is
ORDERED and ADJUDGED that petitioner's declaratory judgment claims against LGPC are converted to a CPLR article 78 proceeding; and it is further
ORDERED and ADJUDGED that the petition is dismissed as to LGPC; and it is further
ORDERED and ADJUDGED that the remaining claims against the Hoppers are converted to a declaratory judgment action.
The original of this Decision, Order and Judgment has been filed by the Court together with the Notice of Motion dated April 29, 2016 and the submissions referenced below. Counsel for the Lake George Park Commission is hereby directed to promptly obtain a filed copy of the Decision, Order and Judgment for service with notice of entry upon the other parties in accordance with CPLR 5513.
It is so ORDERED.
Papers reviewed:
1. Notice of Petition, Petition verified Feb. 27, 2016, together with Exhibits "A" through "N" annexed thereto;.
2. Notice of Motion of Respondent LGPC dated April 29, 2016;
3. Memorandum of Law of Nicholas C. Buttino, Esq. dated April 29, 2016;
4. Affidavit of James E. Cullum, Esq., sworn to May 3, 2016 together with Exhibit "A" annexed thereto;
5. Petitioner's Memorandum of Law of John N. Vagianelis, Esq. dated May 12, 2016 and the
6. Reply Memorandum of Law of Nicholas C. Buttino, Esq. dated May 17, 2016.