Board of Educ., East Irondequoit Central School Dist. v. Doe

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SIMONS; MOULE; Judgment unanimously modified and as modified affirmed, without costs, in accordance with Opinion by MOULE; SIMONS
• Citation: Board of Educ., East Irondequoit Central School Dist. v. Doe, 452 N.Y.S.2d 964, 88 A.D.2d 108 (N.Y. App. Div. 1982)
• Decision Date: 09 July 1982
• Parties: BOARD OF EDUCATION, EAST IRONDEQUOIT CENTRAL SCHOOL DISTRICT and Elmore J. Meitzler, Appellants, v. John DOE, et al., all owners of real property in the Ridgewood Subdivision, Town of Irondequoit, Respondents.

Page 964

452 N.Y.S.2d 964

88 A.D.2d 108

BOARD OF EDUCATION, EAST IRONDEQUOIT CENTRAL SCHOOL DISTRICT and Elmore J. Meitzler, Appellants, v. John DOE, et al., all owners of real property in the Ridgewood Subdivision, Town of Irondequoit, Respondents.

Supreme Court, Appellate Division Fourth Department.

July 9, 1982.

Barrett, Maier & Barrett, P. C., Webster (Dennis T. Barrett, Webster, of counsel), for appellant Bd. of Educ.

Jeanne Colombo, Merkel & Mittleman, Rochester (Jeanne Colombo, Rochester, of counsel), for respondents Jones.

J. Webb L. Sheehy, Rochester, for remaining respondents.

Before SIMONS, J. P., and CALLAHAN, DOERR and MOULE, JJ.

MOULE, Justice.

Plaintiffs appeal from a dismissal of their complaint in an action brought under section 1951 of the Real Property Actions and Proceedings Law to extinguish restrictions on the use of real property owned by them which they have contracted to sell to Wegman's Enterprises, Inc. (Wegman). Plaintiffs' property consists of 20 lots and a small portion of two others in the 160-lot Ridgewood subdivision in the Town of Irondequoit.

In order to complete the sale to Wegman, plaintiffs are required to extinguish the restrictive covenants on their property by either securing the voluntary consent of the property owners and mortgagees within the Ridgewood subdivision or obtaining a court declaration extinguishing the covenants. Voluntary consent has been obtained from 65 percent of the owners of the remaining land and 14 of the 16 mortgagees of property within the tract. The remaining owners and two mortgagees were served with a summons and complaint. Only eight of these parties answered. Of these eight land owners, only four appeared at trial, and one of these owners subsequently moved to Florida. Accordingly, there are three property owners who remain as defendants.

The land which comprises the Ridgewood subdivision was acquired by George Bumpus in 1916. The tract was divided into 160 lots and extended over an area approximately 964 by 1,300 feet. In 1920 Bumpus and his wife began conveying the lots subject to the following restrictive covenants:

That the premises above described shall be used for residential purposes only; that no flat, apartment house or double house shall be erected thereon, but only a single residence to cost at least four thousand dollars ($4,000) on lots fronting on Woodman and Ridge Roads, and to cost at least three thousand dollars ($3,000) on all other lots. That no liquor shall be made or sold on said premises; that no sand or gravel shall be removed or sold from the said premises.

That no building shall be erected less than sixty feet distant from the front line of lots fronting on Ridge Road or less than fifty feet on all other lots. That all of said covenants and restrictions shall run with the land;

When the first six of the plaintiff School District's lots were conveyed in 1925, no restrictive covenants were placed upon them. When the rest of the lots now owned by the School District were acquired between 1922 and 1956, the restrictive covenants were placed in the deeds. At the present time, buildings which formerly housed Ridgewood Junior High School are located on the property owned by the plaintiff School District. The school was closed in 1977, however, due to declining enrollment and has not been used for any purpose since that time. The School District has continued to pay the costs of maintaining the property including insurance and utility costs.

Plaintiff Meitzler's land was acquired in 1947 subject to the restrictive covenants. It was used for residential purposes but is presently not in use because of two fires.

Plaintiffs contend that there has been a substantial change in circumstances which warrants the removal of the deed restrictions.

When the map of the Ridgewood subdivision was filed in 1916, the property was bounded on the south by Ridge Road, on the east by Attleboro Road, on the west by Woodman Road and on the north by a property line north of Worthington Road. At that time, the entire Town of Irondequoit consisted primarily of farm land. The land now owned by plaintiffs was a gravel pit used for mining operations. The property south of Ridge Road, directly across from the subdivision, was used as a baseball diamond. The town historian testified, without giving a specific date, that a firehouse was located on the southwest corner of the subdivision. As early as 1931, the intersection of Woodman and Ridge Roads was somewhat commercial in nature. The leading area bar, Forest House, was located on this corner, just south of the subdivision. By 1950, the subdivision itself was almost totally developed as single-family, owner-occupied houses and all of the buildings which fronted on Ridge Road but one were residential.

At the time of trial, it was established that there was only one residence on the subdivision lots fronting Ridge Road. A public library was located on the three lots directly next to the plaintiffs' property, and the Irondequoit Historical Society was located on the lot next to the library. A beauty parlor with two apartments was where the firehouse formerly stood. Woodman Road which formed the western border of the tract was renamed Culver Road and was widened to accommodate increased traffic. Ridge Road, which formed the southern border of the subdivision, was a four to six-lane highway servicing heavy local traffic. Monroe County's outer loop, then Route 47, ran one-quarter mile east of the subdivision. The area surrounding the subdivision was highly commercialized. A gas station and car wash was where the Forest House formerly stood. The property across from Ridge Road, formerly the baseball diamond, was the site of the Culver Ridge Shopping Center which constituted 28 stores. Next to this shopping center was additional commercial property, including a gas station, professional offices, insurance offices and banking facilities. On the northwest corner of Culver and Ridge Roads was an ice cream store and a Kentucky Fried Chicken Restaurant. Eastridge High School was located directly to the east of the land on which the vacant junior high school was located. The school grounds were joined by land which was dedicated as Attleboro Road but which was undeveloped and used for school purposes.

Subsequent to the decision to close the junior high school in 1977, the plaintiff School District attempted to find a buyer for the property. A number of prospective buyers inspected the property, but Wegman's offer for $525,000, which is slightly less than the School District's bonded indebtedness of $585,000, was the only one received by the School District.

Prospective buyers inspected the property for possible conversion to apartments, offices, stores, health-related facilities and light industrial uses, but no offers were made to convert the property to single-family homes. Plaintiffs' expert testimony established that approximately 14 houses could be built on the plaintiffs' property at a cost of approximately $133,000 or $140,000 per house. The experts testified that, even if the School District gave its land away, ¹ houses would cost more than $80,000-$90,000 to build and could not reasonably be expected to sell. The average selling price for houses within the subdivision which were sold within the last few years was $38,000. One of the School District's experts testified that the construction of a Wegman Supermarket would not have an adverse impact on adjoining properties based upon a study of property sales adjoining the Culver Ridge Shopping Center and those removed from it. He further testified that some people will pay more for a location which is nearby a supermarket.

Defendants' expert testified that, in his opinion, a Wegman Supermarket would cause a diminution in value of the property of the defendant who was located closest to the proposed supermarket site. He did not testify as to the extent of the diminution or the basis for this opinion. He admitted, however, that the vacant school was in a state of disrepair and also was causing a diminution in value to the nearby property.

Defendants' expert further testified that, in order to be consistent with the rest of the area, residential houses would have to be priced in the $60,000 range. He did not testify as to the feasibility of residential development but later admitted that his cost analysis assumed that street improvements were in existence and that plaintiffs would incur the cost of demolition of the existing buildings and preparation of the land for residential use.

Wegman's site plan, which was approved by the Town Planning Board, shows efforts to minimize the impact of its operations on nearby residential properties. The plan includes extensive landscaping, screening and buffering of the proposed site and a retaining wall constructed 23 feet from the property line on Abington Road. The plan also includes grading the property so that the entire site would be out of the view of the residential portion of the subdivision. The plan further includes a completely enclosed compactor for the storage of refuse and an enclosed loading area for deliveries.

Two of the three remaining defendants who opposed extinguishing the covenants did not testify at trial. The one defendant who did testify expressed concern over the possibility of noise, rats and broken bottles. He indicated, however, that he was not familiar with Wegman's operations and did not know that the loading area and refuse storage were completely enclosed. He testified that he was concerned for the safety of the neighborhood children with the increased traffic.

The trial court dismissed the complaint to extinguish the covenants on the basis that they were not valueless to the defendants in that they had prevented commercial encroachment into the subdivision. The trial court also found that plaintiffs failed to prove that the character of the neighborhood had...