Clover/Allen's Creek Neighborhood Ass'n LLC v. M&F, LLC

• Decision Date: 28 June 2019
• Docket Number: CA 18–02078,286
• Citation: 105 N.Y.S.3d 659,173 A.D.3d 1828
• Parties: In the Matter of CLOVER/ALLEN'S CREEK NEIGHBORHOOD ASSOCIATION LLC, Petitioner-Plaintiff-Appellant, v. M&F, LLC, Daniele SPC, LLC, Mucca Mucca LLC, Mardanth Enterprises, Inc., M&F, LLC, Daniele SPC, LLC, Mucca Mucca LLC, Mardanth Enterprises, Inc., Collectively Doing Business as Daniele Family Companies, Town of Brighton, Town Board of Town of Brighton, Comprised of Supervisor William Moehle and Members Jason S. Diponzio, James R. Vogel, Christopher K. Werner, Robin R. Wilt, in their Capacities as Members of that Body, Respondents-Defendants-Respondents, et al., Respondents-Defendants.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1828

105 N.Y.S.3d 659

In the Matter of CLOVER/ALLEN'S CREEK NEIGHBORHOOD ASSOCIATION LLC, Petitioner-Plaintiff-Appellant,

v.M&F, LLC, Daniele SPC, LLC, Mucca Mucca LLC, Mardanth Enterprises, Inc., M&F, LLC, Daniele SPC, LLC, Mucca Mucca LLC, Mardanth Enterprises, Inc., Collectively Doing Business as Daniele Family Companies, Town of Brighton, Town Board of Town of Brighton, Comprised of Supervisor William Moehle and Members Jason S. Diponzio, James R. Vogel, Christopher K. Werner, Robin R. Wilt, in their Capacities as Members of that Body, Respondents-Defendants-Respondents, et al., Respondents-Defendants.

286

CA 18–02078

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 28, 2019

NIXON PEABODY LLP, ROCHESTER (LAURIE STYKA BLOOM, Buffalo, OF COUNSEL), FOR PETITIONER–PLAINTIFF–APPELLANT.

WOODS OVIATT GILMAN LLP, ROCHESTER (WARREN B. ROSENBAUM OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS M & F, LLC, DANIELE SPC, LLC, MUCCA MUCCA LLC, MARDANTH ENTERPRISES, INC., M & F, LLC, DANIELE SPC, LLC, MUCCA MUCCA LLC, AND MARDANTH ENTERPRISES, INC., COLLECTIVELY DOING BUSINESS AS DANIELE FAMILY COMPANIES.

HARRIS BEACH PLLC, PITTSFORD (JOHN A. MANCUSO OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS TOWN OF BRIGHTON, AND TOWN BOARD OF TOWN OF BRIGHTON, COMPRISED OF SUPERVISOR WILLIAM MOEHLE AND MEMBERS JASON S. DIPONZIO, JAMES R. VOGEL, CHRISTOPHER K. WERNER, ROBIN R. WILT, IN THEIR CAPACITIES AS MEMBERS OF THAT BODY.

HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR FINGER LAKES CONFERENCE, INC., CATSKILL MOUNTAIN CLUB, PARKS AND TRAILS NEW YORK, AND ADIRONDACK MOUNTAIN CLUB, NEW YORK, AMICUS CURIAE.

THE ZOGHLIN GROUP, PLLC, ROCHESTER (MINDY L. ZOGHLIN OF COUNSEL), FOR BRIGHTON GRASSROOTS, LLC, AMICUS CURIAE.

PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by denying the motions in part with respect to the second cause of action and vacating the fifth and sixth decretal paragraphs and as modified the order and judgment is affirmed without costs.

Memorandum: Petitioner-plaintiff (petitioner), a limited liability company formed for the purpose of, among other things, protecting the recreational character of the area around Clover Street and Allen's Creek Road in respondent-defendant Town of Brighton (Town), commenced this hybrid CPLR article 78 proceeding and declaratory judgment action against the Town, respondent-defendant Town Board of the Town (Town Board), and respondents-defendants M & F, LLC, Daniele SPC, LLC, Mucca Mucca LLC, and Mardanth Enterprises, Inc., collectively doing business as Daniele Family Companies (collectively, developers), among others. This matter stems from petitioner's opposition to the developers' proposed project to build a 93,000–square–foot commercial plaza in the Town near Clover Street and Allen's Creek Road (project), which purportedly encroaches upon a 10–foot wide strip of land over which the Town has perpetual non-exclusive easements to maintain a pedestrian pathway for public use (Town Easements). As relevant to this appeal, petitioner sought in its second cause of action a judgment declaring that the Town Easements are subject to the public trust doctrine and that the Town cannot convey the easements to the developers until it obtains approval from the New York State Legislature. In its third cause of action, petitioner sought a judgment invalidating the actions of the Town and the Town Board (collectively, Town respondents) concerning the project taken at their meeting on January 24, 2018 based on the Town Board's purported violations of the Open Meetings Law.

After answering, the Town respondents and the developers separately moved to dismiss the petition-complaint against them under, inter alia, CPLR 3211(a)(1) and (7) and CPLR 7804(f). Supreme Court granted the motions, dismissed the first, third and fourth causes of action against the developers and the Town respondents (collectively, respondents), and issued a declaration in favor of respondents with respect to the second cause of action. As limited by its brief, petitioner appeals from the order and judgment insofar as it dismissed the third cause of action against respondents and issued a declaration in their favor with respect to the second cause of action.

We agree with petitioner that the court erred in declaring in favor of respondents that the public trust doctrine is inapplicable to the Town Easements, and we therefore modify the order and judgment accordingly. The public trust doctrine provides that dedicated parkland or public use land in New York is "impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park [or non-public] purposes" ( Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630, 727 N.Y.S.2d 2, 750 N.E.2d 1050 [2001] ; see Matter of Glick v. Harvey, 25 N.Y.3d 1175, 1180, 15 N.Y.S.3d 733, 36 N.E.3d 640 [2015] ). Contrary to the court's determination and as respondents correctly concede, the application of the public trust doctrine does not depend on whether the municipality holds the property in fee simple or whether the municipality's property interest is subject to the rights of others (see Matter of 10 E. Realty LLC v. Incorporated Vil. of Val. Stream, 11 Misc.3d 1074(A), 2006 N.Y. Slip Op. 50561(U), 2006 WL 901197, *2 [Sup. Ct., Nassau County 2006] ; see e.g. Matter of Lake George Steamboat Co. v. Blais, 30 N.Y.2d 48, 50–52, 330 N.Y.S.2d 336, 281 N.E.2d 147 [1972] ; Long Is. Pine Barrens Socy., Inc. v. Suffolk County Legislature, 159 A.D.3d 805, 807, 72 N.Y.S.3d 541 [2d Dept. 2018], lv denied 32 N.Y.3d 910, 2018 WL 6176109 [2018] ). Additionally, unlike the property interests involved in the cases relied on by the court, the Town Easements here were perpetual easements granted in favor of the Town and were not subject to a reversionary interest. Thus, the court's reliance on those cases in making its declaration that the public trust doctrine did not apply was misplaced (cf. Matter of Rappaport v. Village of Saltaire, 130 A.D.3d 930, 931–932, 14 N.Y.S.3d 107 [2d Dept. 2015], lv denied 26 N.Y.3d 912, 2015 WL 7289455 [2015] ; Grant v. Koenig, 39 A.D.2d 1000, 1000–1001, 333 N.Y.S.2d 591 [3d Dept. 1972] ; Landmark West! v. City of New York, 9 Misc.3d 563, 573, 802 N.Y.S.2d 340 [Sup. Ct., N.Y. County 2005] ).

Respondents argue that the order and judgment should be affirmed, notwithstanding the court's erroneous rationale (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ; Menorah Nursing Home v. Zukov, 153 A.D.2d 13, 19–20, 548 N.Y.S.2d 702 [2d Dept. 1989] ), because petitioner failed to establish that the conveyances of the Town Easements contained either an express or implied dedication of the easement property for public or park use, and thus the court properly determined that the public use doctrine did not apply. We cannot conclude as a matter of law based upon the documentary evidence that the Town Easements were not dedicated parklands under the public trust doctrine.

To establish that property has been dedicated as a park or for public use, formal dedication by the legislature is not required. Rather, "a parcel of property may become a park by express provisions in a deed ... or by implied acts, such as continued use [by the municipality] of the parcel as a park" ( Matter of Angiolillo v. Town of Greenburgh, 290 A.D.2d 1, 10–11, 735 N.Y.S.2d 66 [2d Dept. 2001], lv denied 98 N.Y.2d 602, 744 N.Y.S.2d 762, 771 N.E.2d 835 [2002] ). "A party seeking to establish ... an implied dedication and thereby successfully challenge the alienation of the land must show that (1)[t]he acts and declarations of the land owner indicating the intent to dedicate his [or her] land to the public use [are] unmistakable in their purpose and...