Friends of Shawangunks, Inc. v. Knowlton

Decision Date19 March 1985
Citation487 N.Y.S.2d 543,476 N.E.2d 988,64 N.Y.2d 387
Parties, 476 N.E.2d 988 In the Matter of FRIENDS OF the SHAWANGUNKS, INC., et al., Respondents, v. Frank KNOWLTON et al., Constituting the Planning Board of the Town of Rochester, Appellants, and Marriott Corporation, Intervenor-Appellant.
CourtNew York Court of Appeals Court of Appeals

MEYER, Judge.

Notwithstanding that a previously granted conservation easement proscribes erection of residences on part of the land included in a cluster zoning application, the land thus burdened may be counted in determining the number of residential units that may be erected on the unburdened acreage. A conservation easement is not an "applicable requirement" within the meaning of Town Law § 281(b), and nothing in the Town Law or the Environmental Conservation Law forecloses the owner of the fee under land thus burdened from using it as open area required under the cluster zoning ordinance. The Appellate Division having annulled the Planning Board's approval of intervenor's cluster zoning application, its order, 101 App.Div.2d 303, 475 N.Y.S.2d 910, should, therefore, be reversed, with costs, and the judgment of Supreme Court, Ulster County, which dismissed the petition, should be reinstated.


Lake Minnewaska Mountain Houses, Inc. (Mountain Houses), owns approximately 450 acres of land located on Lake Minnewaska in the Town of Rochester, Ulster County. In 1977, Mountain Houses sold to the Palisades Interstate Park Commission (PIPC) a conservation easement on 240 acres of the land contiguous to the 10,000 acre Minnewaska State Park owned by PIPC. The easement permits the erection of one single family residence, a potable water storage pond and the maintenance of the existing golf course and accessory areas, but otherwise proscribes development of the 240 acres. By agreement dated February 26, 1980, Mountain Houses sold the entire 450 acres to the Marriott Corporation, 1 subject, however, as a condition precedent to closing, to Marriott's obtaining approval of subdivision of the property to permit construction of a hotel and condominium units.

In April 1982, Marriott applied to the Town Planning Board for approval of a plat of the 450 acres calling for construction of a hotel and 300 residential condominium units, the condominium units to be clustered on part of the 210 acres not covered by the conservation easement. The district in which the 450 acres is located requires a plot of one or more acres per residential unit. After notice to interested parties and a public hearing on the application, the Planning Board approved the requested 300 units. PIPC, though given notice, interposed no objection.

Petitioners, eight individual owners of nearby properties and two not-for-profit conservation organizations, then commenced this article 78 proceeding against the Planning Board. Special Term granted Marriott's application to intervene and on the merits dismissed the petition. The Appellate Division reversed, concluding that the 240 acres subject to the conservation easement could not be counted in determining the number of units permissible under the town's cluster zoning resolution, because the conservation easement constituted an "applicable requirement" within the meaning of Town Law § 281(b), the enabling act pursuant to which the cluster zoning provisions of the zoning ordinance were adopted. Both the Planning Board and Marriott appeal as of right.

Town Law § 281 provides in pertinent part 2 that:

"The town board is hereby empowered by resolution to authorize the planning board, simultaneously with the approval of a plat or plats pursuant to this article, to modify applicable provisions of the zoning ordinance, subject to the conditions hereinafter set forth and such other reasonable conditions as the town board may in its discretion add thereto. Such authorization shall specify the lands outside the limits of any incorporated village to which this procedure may be applicable. The purposes of such authorization shall be to enable and encourage flexibility of design and developme of land in such a manner as to promote the most appropriate use of land, to facilitate the adequate and economical provision of streets and utilities, and to preserve the natural and scenic qualities of open lands. The conditions hereinabove referred to are as follows:

* * *

"(b) The application of this procedure shall result in a permitted number of building plots or dwelling units which shall in no case exceed the number which could be permitted, in the planning board's judgment, if the land were subdivided into lots conforming to the minimum lot size and density requirements of the zoning ordinance applicable to the district or districts in which such land is situated and conforming to all other applicable requirements.

* * *

"(d) In the event that the application of this procedure results in a plat showing lands available for park, recreation, open space, or other municipal purposes directly related to the plat, then the planning board as a condition of plat approval may establish such conditions on the ownership, use, and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes. The town board may require that such conditions shall be approved by the town board before the plat may be approved for filing."

The Town of Rochester, pursuant to that authorization, has incorporated in its zoning ordinance provisions for residential cluster development permitting its Planning Board to vary the residential density within a tract provided that the proposed development produces a total acreage density as specified for the district in which located and guarantees permanent retention and maintenance of "open areas."

Petitioners argue (1) that conservation easements are authorized by ECL 49-0301 et seq. and, therefore, that the PIPC easement is an "applicable requirement" within the meaning of Town Law § 281(b), and (2) that because the land covered by the easement is not "legally buildable," it cannot be considered in determining permissible density for a cluster zoning development. We disagree and, therefore, reverse.


The 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 (see, Ginsberg v. Yeshiva of Far Rockaway, 36 N.Y.2d 706, 366 N.Y.S.2d 418, 325 N.E.2d 876, affg. 45 A.D.2d 334, 337-338, 358 N.Y.S.2d 477; 4 Rathkopf, The Law of Zoning and Planning § 57.02 [4th ed] ). Thus, a particular use of land may be enjoined as in violation of a restrictive covenant, although the use is permissible under the zoning ordinance (Gordon v. Incorporated Vil. of Lawrence, 56 N.Y.2d 1003, 453 N.Y.S.2d 683, 439 N.E.2d 398, affg. 84 A.D.2d 558, 559, 443 N.Y.S.2d 415; Regan v. Tobin, 89 A.D.2d 586, 587, 452 N.Y.S.2d 249), and the issuance of a permit for a use allowed by a zoning ordinance may not be denied because the proposed use would be in violation of a restrictive covenant (People ex rel. Rosevale Realty Co. v. Kleinert, 204 App.Div. 883, 197 N.Y.S. 940, on later appeal 206 App.Div. 712, 200 N.Y.S. 942, appeal dismissed 236 N.Y. 605, 142 N.E. 302, order resettled 207 App.Div. 828, 201 N.Y.S. 935, affd. 237 N.Y. 580, 143 N.E. 750, writ dismissed 268 U.S. 646, 45 S.Ct. 618, 69 L.Ed. 1135; Matter of 109 Main St. Corp. v. Burns, 14 Misc.2d 1037, 179 N.Y.S.2d 60; Matter of Forte v. Wolf, 225 N.Y.S.2d 858; cf. Matter of Isenbarth v. Bartnett, 206 App.Div. 546, 201 N.Y.S. 383, affd. 237 N.Y. 617, 143 N.E. 765).

Petitioners seek to distinguish those rules as related only to covenants and easements appurtenant to an interest in real property, whereas a conservation easement, as defined in article 49 of the Environmental Conservation Law, may be held only by a public body or not-for-profit conservati organization (ECL 49-0305[3][a] ) and is enforceable notwithstanding that it is of a character wholly distinct from the easements traditionally recognized at common law and notwithstanding defenses that would defeat a common-law easement (ECL 49-0305[5] ). The short answer to the argument is that ECL article 49 was not enacted until 1983 and that PIPC does own the adjacent Minnewaska State Park. Thus the easement granted PIPC in 1977 was a common-law easement appurtenant, which, whatever its burden upon intervenor's use of the 240 acres it covered, cannot be construed to be an "applicable requirement" within the meaning of Town Law § 281(b), unless the usual rule that words in a statute are to be construed by reference to words and phrases with which they are associated (McKinney's Cons.Laws of N.Y., Book 1, Statutes § 239[a] ) is to be ignored. 3

More importantly, the present version of Town Law § 281 was enacted by chapter 963 of the Laws of 1963, 20 years before enactment of the Environmental Conservation Law provisions relating to conservation easements (L.1983, ch. 1020). Petitioners point to nothing in the legislative history of either statute to suggest a legislative intent to include within the concept of the "other applicable requirements" referred to in Town Law § 281(b), such an easement rather than other zoning and planning requirements imposed by the Town Law. This, therefore, is not a case such as Baddour v. City of Long Beach, 279 N.Y. 167, 18 N.E.2d 18, appeal dismissed 308 U.S. 503, 60 S.Ct. 77, 84 L.Ed.2d 431, in which by interim ordinance ...

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