HomeMy WebLinkAbout20200574 Excelsior Park SUP Osterman and Hanna Corr 4-20-18 �`�1� Y�l�L lvl�'+_la J.Stephen Reilly
Partner
�S,I,E R MA �'� Attorneys at Law 51g,4g�,�67i phone
wwzv.ivoh.co�n
jsreilly�Jn woh.com
£a HANNA r.i.i�
One Commerce Plaza
Albany, New Yorl<izz6o
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Apri120, 2018
i�ia Email aizrl First Class Mai!
Ms. Kate Maynard, AICP, Principal Planner
Office of Planning&Economic Development
City of Saratoga Springs,NY 12866
474 Broadway
Saratoga Springs, New York l 2866
Via First Class Mail(Copv vda Ha�Zcl Delivery)
Mr. Mark Tof•pey, Chair, Planning Board
Office of Planning& Economic Development
City of Sar'atoga Springs,NY 12866
474 Broadway
Saratoga Springs, New Yoi•k 12866
Re: Excelsior Park Special Use Pernzit
Dear Ms. Maynard and Chairperson Torpey:
I am writing to respond to a letter dated April 16, 2018 from Joseph M. Walsh, Esq. to you
�•efating to the above referenced matter(the "Condominium Board Letter"). This firm represents Excelsior
Parlc, LLC ("Excelsior Park"). Mr. Walsh represents the Board of Managers of 30 Whistler Court
Condominium. Excelsior Park has a Special Permit Application pending before the Planning Board. The
Condominium Board Letter requests that the Planning Board defer action on the Special Use Pet•mit
pending a resolution of an alleged violation of the provisions of the Declaration of Declaration of
Covenants, Restrictions, Easements and Liens (the "Declaration") of the Excelsior Park Community
Association, Inc. ("EPCA"). For the reasons stated below, it is respectfully submitted that the Planning
Board must reject this request because the request is not within the scope of the Planning Board's review
authority. Further,the allegation in the Condominium Board Letter is incorrect.
The Condominium Board Letter states that Excelsior Pacl< LLC sold lands in the Excelsior Park
Development on which is located a 70-unit apartment complex and intends to sell another parcel on which
a new 35 unit apartment complex will be located (collectively, the "Apartment Property") without
requiring, oi• intending to require, the owner of the Apartment Property (the "Apartment Property
Owner") to become a member of the EPCA. The Condominium Board Letter further claims that not
i•ec�uiring that owner to become a member of EPCA violated the tei•ms of the Declaration. Thus, the
Kate Maynard April 20, 2018
Marl<Torpey Page 2 of 2
Condominium Boa►•d Letter simply sets forth a claim of an alleged violation of what is essentially a
private agreement. It is settled law in New York that disputes involving alleged violations of private
covenants and restrictions are not within the scope of a planning board's review authority. (Friends of
Shawan�un]<s, Inc. v. ICnowlton, 64 N.Y.2d387, 487 N.Y.S.2d 543 [1985] (copy attached); Your Money,
Inc. v Plannin� Board of the Town of Huntin on, 5 Misc. 3`d 1002 (A) [2004]; Application of Michael
FORTE Petitioner for an order under Article 78 of the Civil Practice Act, v. Norman WOLF, as Chief
Buildin�,Ins�ector of the Town of Oyster Bay, 225 N.Y.S.2d 858 (Sup. Ct., 1961).
Having said that, I would also note that the claim in the Condominium Board Letter of a violation
of the Declaration rests on a misunderstanding of what lands are subject to the Declaration and of
important definitions contained in the Declaration. The Condominium Board Letter states that the
Declaration describes the lands in the Excelsior Park Development. However, that is not the full story. It
is undisputed that when the purchasers of units in the 30 Whistler Court Condominium purchased their
units, the second "Whereas" clause at the beginning of the Declaration and Section 2.01 of the
Declaration provided that the only land subject to the Declaration was the land referred to in that clause
and that Section and described in Schedule B attached to the Declaration. (Copies of the "Whereas"
clause, Section 2.01 and Schedule B are attached hereto.) There is no dispute that the Apartment Land is
not included in that land. Schedule A to the Declaration describes other lands in the Excelsior Park
Development, which do include, but are not limited to, the Apartment Parcel. Section 2.02 of the
Declaration (copy attached) gives Excelsior Park the right to extend the Declaration
to such lands. However, there is no requirement in the Declaration or the Offering Plan that Excelsior
Park extend the Declaration to any other lands and Excelsior Park has not done so. Thus, the only land
currently subject to the Declaration is the Phase I land described in the Whereas clause, Section 2.01 and
Schedule B.
The tei-m "Owner" is defined in the Declaration as"[t]he holder of record title, whether one(1) or
moi•e persons or entities, of fee simple title to any Condominium Unit and/or office/commercial buildings
subject to this Association Declaration" (emphasis supplied). Similarly, the definition of the word "Lot"
refers to lands brought under the scope of the Declaration. Since the Apartment Property has not been
made subject to the Declaration, the owner of that property is not an "Owner", within the meaning of the
Declaration, and thus is not rec�uired to pay any Assessments nor is it bound by any of the other terms of
the Declaration.
The Condominium Board Letter also urges the City to accept the Preserve parcel as a public park
or public open space given its use by the general public. Excelsior Park joins in that request.
Of course, if you have any questions on any of the foi�egoing, please do not hesitate to contact me.
Thank you.
Very truly yours, �� �
�''; ''�_. ,
�✓� ;%���'�� c- �-�-�""�-
� � :�
�J. Stephen Reilly
cc: John Witt, Member(Via Email w/enclosure)
Joseph M. Walsh, Esq. (Via Email w/enclosure)
4816-0007-7923,v. 2
356
� D�CLA]E2AT�ON •
of
CO�'�NANTS,RI±.STRICTIONS,�ASENIENTS AND LIENS
for
E�C�LSIOR YARIt COi�IMUNITY ASSOCIATION,INC.
THIS ASSOCIATION DECLARATION,made this day of ,200 ,by
Excelsior Park, LLC, a New York limited liability company, having an office at 563 Broadway,
Saratoga Springs,New Yorlc 12866, being refenred to hereinafter as the"Sponsor".
WITNESSETH
WHEREAS,the Sponsor,Excelsior Park,LLC,is the ownez'of the property located in the
City of Saratoga Springs,County of Saratoga,New Yorlc described in Article II of this Association
Declaration intended to be developed under a Special Use Permit�ranted by tha City of Saratoga
Springs,into a mixed-use co»tmunity consisting of approximately 43.471 acres of land which may
consist of up to two hundred thiriy(200)resideiltial condomit�ium Units and up to 127,000 sqtiare
f�et of of�ce/commercial space in parcels designated for such use.
��Vd-I1C��±;AS,Pl�ase I,containing approxiinately Q.85�acze oi land,as described i��Schedul�
B to this Association Declaration v✓ill consist of thirt�y(30)residential condominium Units in faur
(4} Buildings, lcnown as 30 Whistler Court Condomilriums located on the east side of Excelsior
Avenue. The pzivate roadways se�vicinb this Condoi�7iz�ium,a�•e the east end of Wlustler Caurt and
Gibson Court on the east side of Excelsior Avenue, providi�lg additional oz�-sife parlcing for tt�e
Condominium residents,and may also pz�ovide day-time parlcing for occupatlts of a proposed off'ice
building. Whistler Court and Gibson Court, together with the green area within�lze development
parcel containing the Co�ndon�ini�m�Buildings sllal]br;deeded�to tl.�e��rnnzuz7ity Associatio7i prior
- to tlie �rs� closi�lg. � .
WHEREAS,Phase II will contain, in addition to a proposed second condomuuum, to be
known as 40 Gibson Court Condominium, the Pzeserve at Excelsior Parlc(tha"Preserve")which
will be deeded to the Community Association prior to the transfer of title to the first Unit in 40
Gibson Court Condominium,together with the green areas. The Preserve consists of approximately
20.14 acres and will provide residents and/or commercial building occupants passive re�reational
opportunities and pedestrian and bicycle patl�links to City of Sazatoga Springs paths.
ASSOC7ATION DECLARATION PAGE 1 �
358
c. Association Property: All land and improvements conveyed by deed to the
Association.
d. Authorized Votes: There shall ve only one vote for each Authorized Voting Owner
regardless of the number of residential condomiruum Units and/or office/commereial
buildin�s or other entities within the sita owned by such Owner.
e. Autborized�Voting Otivner or Nleznber: '�he Owner of a residential condominium
Unit,office/commercial building or other entity. In the event a condonninium Unit,
office/comnnercial building or other entity is owned by more than one person, the
Authorized Voting Owner shall be the person named in a certificate signed by all
Owners o£sucli or Lat and filed with the Secrefary of the Board of Direetors. I£sueh
� certificate is not on file,tlte person or entity fzrst named on the deed by which title is
obtained shall be the person considered the Authorized Voting Owner.
f. �oard o#'lDia�eefors or the Boaa�d: The Bo2rd of Directors(sometimes referred to as
the Board)elected by the Members and/or appointed by the Sponsor,subject to initial
control by the Sponsor, to adn�inister the affairs of the Association.
g. By-Laws: The$y-Laws of the Association sefi forth in Part II of the Offering Plan,
as the saane may be supp?emented, extetided or am�nded from time to time.
h. Declaration: This document of Protective Conditions,Restzictions,Easemez�ts and
Liens of Excelsior Park Community Association,Inc. as it may,from ti�ne to tirne,
be supplemented, extended or amended in the mann.er provided for herein.
i. Lot: Any portion of tlie Pzoperty(with the exception of the Association Property}
�.tnder ihc sco��e �f tlais Association Declaration, as shown on the subdivision map .
�led, or to be filed, with tl�e Saratoga County Clerk and identi#'ied as a separate
parcel on the tax records of the City of Saratoga Springs. Unless the context clearly
indicates otherwise, the term "Lot" is included in the terms "Unit", "Home".and
"Building".
j. Member: Each holder of amembership interest in the Association,as such interests
are set forth in Article III of this Association Declaration.
k. Offering Plan: The Offering Plan filed with the New York State Department of Law
relating to Excelsior Park Community Association,Inc.,which sha11 be a part of the
Offering Plan filed for 30 Whistler Court Condominium and any other proposed
residential Units and/or conunercial condomiiuums within Excelsior Park..
DECLARATION PAGE 3
359
1. Office/Commercial Buildin.g: Buildings constructed for otfice use,retail use and
otl�.er commercial uses, sometimes referred as "Buildings".
m. Owner: The holder of record title,«�hether one(�)or more persons or entities, of
fee simple tifle to any Condomiiuum Unit and/or office/commercia]building subject
to this Association Declar�ltion,�vhether or not such a ilolder actually resides in such
Unit or maintains an office in a commercial building, and shall include the Sponsor
witli respect to any Unsold Condonunium Unit,office/commercial buildings or lands
for proposed future development tulder tl�e Special Use Perniit,
n. Froperty: All properties as are subject to this Association Declaration,which may
be suppleinented, extended or amended from time to time.
o. Rules and Regnlations: The Rules aud Regulations of fhe Association governing
the use and care ot'tha Properiy as may be set forth in this Association Declaration,
the By-Laws or promulgated from time to time by the Board.
p, Sponso�r; Excelsior Park,LLC.,its successors or assigns.
q. Transfer of Cantrol Date: The date on which: (i)the Spansor has transferred title
to al1_dev�lopm�n.t sites under the S�ecial Use Permit,or ten(10)years from transfer
of title to the first cox�dominium Unit in 3 Q Whistler Court Condominium,whichever
first occurs.
ARTICLE II
PROPERTY SUSJECT TO THIS ASSOCIATION AECLARATION
� Section 2.01. Properfy. The real property to be held,transferred,sold,conveyed by deeds '
and occupied subject to this Association Decla�ation is located in the City of Saratoga Springs,
Couiity of Saratoga and State o�New York, is niore partieularly described iu Schedule B of this
Association Declaration as Phase I, consisting of private roadways Wlustler Court and Gibson Court
and green areas appurtenant to 30 Whistler Court Condozninium. •
Seetion 2.02. Additional Property. The Sponsor may extend this Association Declaration
from time to time to all or anyportion ofthe land approved for development under tlie Special Use
Permit and/or sul�ject to ap�roval for developmetit as described in,Schedule A of this Association
Declaration, without obtaining the approval of the Owners, by filing an amendment to this
Association Declaration in the office of the Saratoga County Clerk and filing an amendment to the
Offering Plan witli the New York State Department of Law. A copy of such amendment shall also
be served on all Owners and Purchasers personally or by post paid first class mail.
ASSOCIATION DECLARATION PAGE 4
392
C.T, MALE ASSOCfATES, P.C,
SCHEDULE B
PHASE I
LEGAL DESCRIPTION
� LANDS TO BE CONVEYED TO
- EXCELSIOR PA1ZK COMMUNITY ASSOCIATION
PREPARED FOR EXCELSIOR PARK, LLC
CITY OF SARATOGA SPRINGS (OUTSIDE DTSTRICT)
COUNTY OF SAItATOGA, STATE OF NEW YORK
AREA = 1.588± ACRES OF LAND
All that certain tract, piece, or parcel of land situate, lying and being in the City
of Saratoga Springs (outside district), County of Saratoga, State of New York, lying
generally Southeasterly of New 1'or.k State Route 50 and Westerly of the Adirondack
Northwaq-Interstate Route 87, and being more particularly bounded and described as
follows:
COMMENCING at a point at the intersection of the division line between the lands
now or formerly of Loren N� Brown, James A. Murphy, Jr. and Harry D. Snyder as
described in Book 949 of Deeds a Page 141 on the Northwest and the lands now or
forrnerly of Claude C. Charlebois and Lesley W. Charlebois (Federal Express) as
d�scribed in Book 1483 of Deeds at Page 84 on the Southeast with the Easterly boundary
of Excelsior Avenue and runs thence from said point of commencemenfi along the
Easterly boundary of Excelsior Avenue, as appropriated by the People of the State of
New York in connection with New York State Route 50 (Saratoga Springs - Gansevoort
Sectian, S.H. No. 1881) (right-of-way line with access), North OS deg. 47 min. 20 sec. East
94.02 feet to ifs intersection with the Southeasterly boundary of New York State Route
50 (Saratoga Springs - Gansevoort Section, S.H. No. 1881); thence along the said
Southeasterly highway boundary the following two (2) courses: 1) North 53 deg. 49
min. 25 sec. East 261.51 feet to a point; and 2) thence North 65 deg. 05 min. 40 sec. East
150.28 feet to its intersection with the proposed Northerly boundary of Excelsior
Avenue (proposed road to Ue dedicated to the City of Saratog� Springs); th�nce along
DECLARATION PAGE 37
C.T. MALE ASSOCIATES, P.C.. 393 ;
LEGAL DESCRIPTION
AREA =1.588�`-ACRES OF LAND
PAGE-2
the proposed Northerly and Easterly boundary of Excelsior Avenue the following two
(2) courses: 1) North 82 deg. 53 min. 30 sec. East 445.22 feet to a point; and 2} thence
South 07 deg. 06 znin. 30 sec. East 210.74 feet to the point of begiruzing of the hereinafter
described 1.588± acre parcel, lands to be conveyed to the Excelsior Park Community
Association and runs thence from said point of beginning along the perimeter�of the
hereinafter described parcel the following five (5) courses: 1) North 82 deg. 53 nun. 30
sec. East 256.50 feet to a point; 2) thence South 34 deg. 53 min. 34 sec. East 112.17 feet to
a point; 3) thence North 82 deg. 53 min. 30 sec. East 79.38 feet to a point; 4) thence South
07 deg. 06 min. 30 sec. East 200.05 feet to a point on the Southerly boundary of ehe
existing Niagara Mohawk Power Corporation right-of-way; and 5) thence South 82 deg.
?1 min. 10 sec. West along the Southerly boundary of said Niagara Mohawk Power
Corporation right-qf�way 388.19 feet to its intersection with the proposed E�sterly
boundary of Excelsior Avenue; thence North 07 deg. 06 min. 30 sec, West along the said
proposed Easterly boundary of Excelsior Avenue 75.00 feet to its intersection with the
Southerly boundary of an area 1<nown as Excelsior Park Condominium I; thence along
the Sotxtherly, Easterly and Northerly boundary of said proposed Excelsior Park
Condomini�.m I parcel the follov��ing three (3) courses: 1) North 82 deg. 21 min. 10 sec.
East 230.01 feet to a point; 2) thence North 07 deg. 06 min. 30 sec. West 161.77 feet to a
point; and 3) thence South 82 deg. 53 min. 30 sec. West 230.00 feet to its intersection
with the above mentioned proposed Easterly boundary of Excelsior Avenue; thence
1
North 07 deg. 0� min. 30 sec. West along the said proposed EasterIy boundary of
DECLARATI.ON_ PAGE, 37-a
_ _ _. . .._. _ .ii
394
� C.T. MALE ASSOCIATES, P,C.
LEGAL DESCRIPTION
AREA = 1.588fACRES OF LAND '
PAGE-3
� Excelsior Avenue 65.00 feet to fhe point or place of beginning and containing 1.588 acres
of]and, more or less.
DECLARATION PAGE 37-b
Friends of 5hawangunks, Inc.v. Itnowlton, 64 N.Y.2d 387 (1985)
476 N.E.2d 988,487 N.Y.S.2d 543
ordinance being a legislative enactment and
64 N.Y.2d 38'7 the easement or covenant a inatter of private
Court of Appeals of New York. agreement.
In the Matter of FRIENDS OP'the 11 Cases that cite Chis headnote
SHAWANGUNKS,INC.,et al.,Respondents,
v. [2] Injui�ction
rranlc KNOWLTON et al.,Constituting the Planning .-- Covenants as to Use of Property
Board of the Town of Rochester,Appellants, Zoning and Planning
and -- Gro�mds for grant or deni�l in general
Marriott Corporation,Inten�enor-Appellant. A particular use of land may be enjoined
as in violation of a restrictive covenant,
March i9, 1985• although the use is permissible under zoning
ordinance, and the issuance of a permit for a
Synopsis use allowed by a zoning ordinance may not be
Article 78 proceeding was commenced in which petitioners denied because the proposed use would be in
soitght judgment vacating planning board's decision violation of a restrictive covenant.
granting conditional approval ot�preliminary subdivision
plot. The Supreme Court, Special Terin, Ulster County, 10 Cases that cite this headnote
Joseph P. Torraca, J., dismissed application, and
petitioners appealed. The Supreme Court, Appellate
Division, Kane, J., 101 A.D.2d 303, 475 N.Y.S.2d �3� Zoning a��d Planning
910, reversed judgment and granted petition. Appeal .= Other particul�tr considerations
was taken. The Court of Appeals, Meyer, J, held that Conservation easement granted park
notwithstanding that previously granted conservation commission in 1977 was a common-law
easement proscribed erection of residences on part of easement appurtenant which, whatever its
land included in cluster zoning application, the land thus burden upon intervenor's use of the 240 acres
burdened could be counted in determining the number of it covered, could not be construed to be an
residential units that could be erected on the unburdened "applicable requirement" within meaning of
acreage. enabling act pursuant to whidl cluster zoning
provisions of zoning ordinance were adopted.
Appellate Divisiori ordei• reversed and jttdgment of the McICinney's Town Law�281(b).
Supreme Court, Special Term, reinstated.
6 Cases tliat cite this headnote
[4] Zoning and Planning
West Headnotes(4) ������• Architectur�l a�id Striictural Desigus
Notwithstanding that a previously granted
�1� Covenao�ts conservation easement proscribed erection of
� Nature aiid operatioii in general residences on part of land included in cluster
Easemeuts zoning application, the land thus burdened
� � B,y express grant or resei•vation could be counted in determining number of
Zoning and Planning residential units that could be erected on the
� Uses in general unburdened acreage. McICinuey's Town Law
§2&1(b).
Use that may be made of land under a
zoning ordinance and use of the same land 2 Cases that cite this headnote
iinder an e�sement or restrictive covenant are,
generally, separate and distinct matters, the
�� ,, � � , � ;�..�.�. _ � . ...� _ _. „��i�� , , �i . _ � _.�� i �. �vll<:�.
Friends of Shawangunks, Inc. v. KnowlYon, fi4 N.Y.2d 387 (1985)
476 N.E.2d 988,487 N.Y.S.2d 543
single family residence, a potable water storage pond
Attorncys�nd Law rirn�s and the maintenance of the existing golf course and
�388 kkkS'-33 **988 Arthtn�M.Kahn,Kerhonkson,for accessory areas, but otherwise proscribes development of
appellants. the 240 acres. By agreement dated February 26, 1980,
Mountain Houses sold the entire 450 acres to the Marriott
*389 Benjamin R. Pratt,Jr., and Robert J. Kafin, Glens Corporation,� subject,however,as a condition precedent
Falls,for intervenor-appellant. to closing,to Mai•riott's obtaining approval of subdivision
of the property to permit construction of a hotel and
Philip H. Dixon, Philip H. Gitlen, Albany, and William condominium units.
Ginsberg, for respondents.
David S. Sampson, Gail Bowers, Troy, and William A. In April 1982, Marriott applied to the Town Planning
Kuchinski, Slingerlands, for Adirondack Council, Scenic Board for approval of a plat of the 450 acres calling for
Hudson, Inc., and another, amici curiae. construction of a hotel and 300 residential condominium
uiuts, the condominiunl units to be clustered on part of
Opinion the 210 acres not covered by the conservation easement.
The district in which the 450 acres is located requires a plot
UPINION OF THE COURT �f one or more acres per residential unit. After notice to
interested parties and a public hearing o7 thP application,
MEYER;Judge. the Planning Board approved tlie rec�uested 300 units.
PIYC,tllough given notice,interposed no object.ion.
Notwithstanding that a previously granted conservation
easement proscribes erection ***544 **989 of Petitioners, eight individual owners of nearby properties
residences on part of the land included in a c]uster zoning and two not-for-pro�t conservation organizations, then
applicaTion, the land thus burdened tnay be co�anted in commenced this article 78 proceeding against the Planning
� determining the number of resideutial units that may Board. Special Term granted T.�arriott's application to
be erected on the unburdened acreage. A conservation intervene and on the merits dismissed the petition. The
easement is not an "applicable requirement" within the Appellate Division reversed,concluding that the 240 acres
meaning of Town Law�281(b), and nothing in the Town subject to the conservation easeinent could not be counted
Law or the Environmental Conservation Law furecloses in deter�nining the number of units permissible under the
the owner of the fee under land thus burdened from town's cluster zoning resolution,because the conservation
using it as open area required under the cluster zoning easement constituted an "applicable requirement" within
ordinance. The Appellate llivision having annulled the the meaning of Town Law § 2S1(b), the enabling act
Planr.ing Board's approval of intervenor's *390 cluster pursuant to which the cluster zoning provisions of the
zoning application, its order, ]Ol App.Div.3d 303, 475 zoning ordinance were adopted.Both the Pla�.ining Board
N.Y.5.2d 910, should, therefore, be reversed, with costs, and Marriott appeal as of right.
and the judgmeilt of Supreme Court, Ulster County,
wtiich dismissed the petition, should be reinstated.
�
*?91 Town Law§281 provides in pertinent part` that:
"The town board is hereby empowered by resolution to
I author�ize the planning board, simultaneously with tl�e
approval of a plat or plats pursuant to this article, to
Lake Minnewaska Mountain Houses, Inc. (Mountain modify applicable provisions of the zoning ordir:ance,
Houses), owns approximately 450 acres of land located subject to tlie conditions hereinafter set forth an.d such
on Lake Nlinr.ewaska i.n the Town of Rochester, othec•reasonable conditions as tl�e town board may in its
Ulster County. In 1977, Mountain Houses sold to discretion add thereto. Such authorization shall specify
the Palisades Interstate Park Conlmissiou (PIPC) a the lands oLitside the lirnits of any incorporated village
conservation easement ou 240 acres of the land contiguous to which this procedure may be applicable. The purposes
to the 10,000 acre Nlinnewaslca State Park owned� of such authorization shall be to enable and encourage
by PIPC. The easement permits the erection of one �exibility of desi�n and development **990 of land in
,;: , � ,� „
,
� i. .- 4 ... ., .. i , � � .r�,i. . . .,, i� ,.. � ,`., ..,. i;li , ;II�; .. �.1.:._ . „ _. i :.;,li � �.._ ,._,. ._
Friends of Shawangunks, Inc.v. FCnowlton, 64 N.Y.2d 387 (1985)
476 N.E.2d 988,487 N.Y.S.2d 543
sucl��a manner as to promote the most appropriate use of
land, to facilitate the adequate an�economical provision II
of streets and utilities, and to preserve the natural and
scenic qualities of ***545 open lands. The conditions ��� �z� 'The use that may be inade of land under a
hereinabove referred to are as follows: zoning ordinance and the use of the same land under
an easement or restrictive covenant are, as a general
3 � rule, separate and distinct matters, the ordinance being
a legislative enactment and the easement or covenant a
"(b) The application of this procedure shall result in �ilatter of private agreement (see, Ginsberg i�. Yeshi>>a of'
a permitted number of building plots or dwelling units pu�• Roelcarrny, 36 N.Y.2c� 706, 366 N.Y.S.2d 418, 325 �
which shall in no case exceed the number which could be N.E.2d 876, affg. 45 A.D.2d 334, 337-338, 358 N.Y.S.2d
permitted, in the planning board's jtidgment, if the land 477; 4 Rathlcopf, The Law of Zoning and Planning §
were subdivided into lots conforming to the minimum 57.02 [4th ed] ). Thus, a particular use of land may be
lot size and density rec�uirements of the zoning ot•dinance enjoined as in violation of a restrictive covenant,although
applicable to the district or districts in which such tl�e use is permissible under the zoning ordinance(Gordai
land is situated and conforming to all other applicable �,, Inco�poratec! Vil. of Lai�v��eiice, 56 N.Y.2d 1003, 453
requirements. N.Y.S.2d 683, 435" N.E.2d 398, affg. 84 A.D.2d 558, 559,
443 N.Y.S.'Ld 415; Regaii n. Tobiii, 89 A.D.2d 586, 587,
3 45? N.Y.S.7_d 249), and the issuance of a permit for a
use allowed by a zoning ordinance may not be denied
"(d) In the evei�t that the applica.tion of this procedure vecause the proposed use would be in violation of a
resu(ts in a plat showing lands available for park, restrictive covenant (PeopJe ex rel. Roseti�ule Realt�� Co.
recreatior., open space, or other municipal puiposes �,, I�/e�ne��t, 204 App.Div. 883, 197 N.Y.S. 940, ai later
directly related to the plat, then Yhe planning board as a nppea!206 App.Div.712,200 N.Y.S.942,appeal disnzissed
condition of plat approval may establish such conditions ?3b N.Y. 605, 142 N.E. 302, order resetlled 207 App.Div.
on the ownership, use, and maintenance of such lands as 82g� 201 N.Y.S. 935, affd. 237 N.Y. 580, 143 N.E. 750,
it deems necessary to assure tbe pi-es�ivation of such lands r�,rit dismissed?68 U.S. 646, 45 S.Ct. 61 S, 69 L.Ed. 1135;
for theic intended purposes. The town board may require Mat�er•of 109 Nlain St. Cor�. >>. �urns, 14 Misc.2d 1037,
that such conditions shall be approved by the town board 179 N.Y.S.2d 60; �Llatier of Forte n. Wolf; 225 N.Y.S.2d
before lhe plat m�y be approved for filing." 858;cf. Matter of Isenha��th v. Bo,rt��ett, 206 App.Div. 546,
201 N.Y.S. 383,affd. 237 N.Y. 617, 143 N.E. 765).
The Town of Rochester, pursuant to that authorization, ��� petitioners seek to distiriguish those rules as relaCed
has incorporated in its zoning ordinance provisions for ��lly to covenants and easements appurtenant to an
residential cluster development permitting its Flanning
interest in real property,whereas a conservation easement,
Board to vary the residential density within a tract
as defined in article 49 of the Environmental Conservation
provid�d that the proposed development prcduces a total Law, may be held only by a public body or not-for-
acreage density as specified for tiie district in which located profit conservation **991 organization(ECL 49-0305[3]
and guarantees permanent retention and maintenance of [a] ) and is enforceable notwithstanding that it is of a
"open areas."
character wholly distinct from the easements traditionally
*392 Petitioners argue (1) that conservation easements recognized at common law and notwithstanding defenses
are authorized by ECL 49-0301 et seq. and, thei•efore, that would defeat a comnlon-law easement (ECL 49—
that the PIPC easement is an "applicable requirement" �3�5[5] ). The short answer to the argument is that ECL
within the meaning of Town Law S 2B1(b), and (2) �rticle 49 was not enacted until 1983 and that PIPC does �
that because the land covered by the easement is not own the adjacent Minnewaska State Park. ***546 Thus
"legally'ouiidable,"it cannot be considered in determining the easement granted PIPC in 1977 was a common-law
permissible density for a cluster zoning development. We easement appurtenant, which, whatever its burden upon
disagree and, therefore, reverse. intervenor's use of the 240 acres it covered, cannot be
� construed to be an "applicable requirement" within the �
�� 1 i „_, . �, � �
, , ��. ,,
�
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� �_. � � . _: . ,,,, , , � ,. �.. _ . .. �, .�,��; ,, .,.� ��
Friends of 5hawangunks, Inc.v. Knowlton, 64 N,Y.2d 387 (1985)
476 N.E.2d 988,4B7 N.Y.S.2d 543
meaning of Town Law��S' 281(b),unless the usual rule that
words *393 in a statute are to be construed by reference
to worc:s and phrases witli which they are associated *394 III
(MclCinney's Cons.La�vs of N.Y., Bool< l, Statutcs 5
23)[a] )is to be ignored.3 �4� The argument that, because the 240 acres subject
to the easement cannot be **992 built upon while the
Nloi•e importantly, the present version of Town Law easement continues in force, the burdened land may
§ 281 was enacted by chapter 963 of the Laws of not be counted in determining cluster zoning density
1963, 20 years before enactment of the Environmental is of no greater aid to petitioners. "[I]t is undisputed
Conservation Law provisions relating to conservation that the PIPC does not own the land burdened by the
easements(L.1983,ch. 1020).Petitioners point to nothing easement. It merely has an easement, which is `a right,
in the legislative history of either statute to sL�ggest a distinct fi•om ownership, to use in some way the land of
le�islative intent to include within the concept of the another' " (Matter of Srei•ra Cl�.�fi ��. P��lrs��cles Ir�ter�,state
"other applicable requirements"referred to in Town Law Prn�lc Comamn., 99 A.D.2d 548, 549, 471 N.Y.S.2d 633,
� 281(b), such an easement rathei• than otl�ier zoning and Iv, denied 63 N.Y.2d 604, 469 N.E.2d 53l). Mountain
planning requirements imposed by the Town Law. 'I'his, Houses,having granted PIPC ***547 only an easement,
therefoi•c, is �1ot a case such �s Bacldoiu• i�. Cit�� q��Lo�ig continueci to own the iinderlying fee and with it the right
Berrch, 279 N.Y. 1C7, 18 N.E.2d 18, �ppcnl dis•�nissed to use the property in any manner not in violation of
308 U.S. 503, (0 S.Ct. 77, S4 L.Ed.2d 431, in �vhich tlie easement. Marriott,as Mountain Houses'conditional
by interim ordinance "designed to effect crnnpulsory vendee, proposes to use the land in fLllfillment of its
obedience to the restrictive covenants in the grants from obligation under tlle cluster development provisions of
the original owners" (279 N.Y., at p. 172, 1� N.E.2d the town zoning ordinance to provide open areas and
18) the legislative body indicated an intent to proscribe guarautee tl�eir permaneut maintenaiice and retention, a
Uoarding house use, which was proscribed by the prior use in furtherance of the purpose declared by Towu Law fi
restrictive covenant, even tl�ough the zoning ordinance "'81> "to preserve the natural and scenic qualities of open
as fin.ally adopted prohibit.ed use for business purposes lands" and in no way violative of PIPC's easement.
and did not specifically preclude boarding houses.Indeed,
if it were, a serious constitutional question might arise As the conditional vendee of the fee of the 450-acre tract,
whether Mc>untain Houses had not been deprived oi all Marriott is entitled to have the entire 450 acres considered
economic value of the fee underlying the easement (cf. in determining the permissible number of dwelling units.
Fre�2ch Invescing Co. v. Citp r�f Nei�� Yor/c, 39 N.Y,2d 587, One of the major purposes of cluster zoning being the
385 N.Y.S.2d 5, 350 N.E.2d 3�1, c�ppeal cli,srrzissed and preservation of the natural and seenic qualities of open
cert. denied 429 U.S. 990, 97 S.Ct. 515, 50 L.F,d.2d 602j land, it is fundamentally inconsistent with the statutory
which nevertheless remains subject to taxation,there being purpose to hold that because that part of the land that will
here, unlike the situation in Bucldoin�, serious question be thus preserved under a cluster zoning proposal is also
whether there is any reasonable income-productive or sizbject to an easeinent that preserves it as open land, it
other l_se that could be madP of the fee as restricted by the Inay r.ot be cotinted in determining density.The mcre so is
conservation easement, this true in light of the case lzw,discussed aUove,holding
zoning ordinances and restri�tive covenarts to be separate
Nor are peCitioners aided,as they suggest,by the provision and distinct matters.5
of the Environmental Conservation Law autl�orizing �
enforcemert of its provisions by parties other thar. the
grantor or holder of the easement. To the contrary, that *395 Fqually unavailing are petitioners' suggestions (1)
provision refutes their position for if 1 own Law S 281(U)is that if the property covered by the conservation easement
construed as�llowing nearby lando�vners to blocic cluster may be counted, density on the adjoining land greater
subdivision as contrary to the conservation easement,the than permissible under conventional zoning will result,
class ol�persons having standing to enForce a conservation threatening the preservation goal of the conservation
easeineilt will have been expanded significantly beyond easement, and (2) that, having granted an easement to
� the liinits deliberately set by the Legislature in the ECL.4 PIPC, Mountaiil Houses should not be pernlitted to �
?� , I _.. _ � � _ , I �� ���. �� � i<
Friends of 5hawangunks, inc.v. Knowlton, 64 N.Y.2d 387 (1985)
476 N.E.2d 988, 487 N.Y.S.2d 543
"double dip" by using the underlying fee in computing PIPC from acquiring an easement over the cluster open
cluster density.The answer to the first is that the declared areas had cluster approval been sought first, or that
purposes of Town Law�281 contemplate both"flexibi;it}� requires PIPC when acquiring a conservation easement to
of design and development" and the preservation of Pi'oscribe use of the burdened land if the landowner later
"the natural and scenic qualities of open lands." Those applies for cluster development approval.8 Had cluster
purposes are frustrated if the trade-off of increased density approval been obtained first, the acquisition price of a
on the developed portion of the land in return for conservation easement over the already burdened open
preserving undeveloped the remainder of the land E' is area would probably have Ueen less, but even that is not
foreclosed by exclusion of the open area from the density entirely clear when it is remembered that PIPC's purposes
computation simply because the developer has agreed include not only obtaining conservation easements (ECL
with others to keep the open areas open, Moreover, 4�-0303[3] ), but also the provision of hotel and other
because the PIPC easement malces the burdened land facilities for the use of the public (PRHPL ).OS[5] ).
available for use and enjoyment of the public (N.Y. W�'atever the result, the point is that the matter was
Const., art, XIV, ti 4; ECL 49-0301; PRHPL 9.05[5] ), �'ithin the discretion of PIPC and, as already noted, it
it is difficult to understand how the pr•eservatiori goal of neither interposed an objection to Marriott's 300-unit
the easenzent is threateiled by inclusion of the open area �p��'cation nor included in its conservation easement
in the density computation. To read **993 the statutes agreernent anything related to use of the burdened area as
as necessarily implying the rule of exclusion for which cluster zone open space.�
petitioners contend vi�ould�be to ignore not only tl�e history For tl�e foregoing reaso��s the order of tl�e Appellate
of To�a�n Law� 281 (see, n. 5, .rupra) and the usual rules Division should be reversed,with costs,and the judb ient
of statutory construction (Nluticr oJ�ICumla i�. Plari�airzg of Special Term,Ulster County,should be reinstated.
Bd., 59 N.Y.2d 385, 392, 465 N.Y.S.2d 865, 452 N.E.2d
11)3;Peoplc v. Gruliczrn, 55 N.Y.2d 144, 152,447 N.Y.S.2d
918,432 N.E.2d 790),but also the fact that subdivision(b) WACHTLER, C.J., and JASEN, SIMONS, KAYE and
of that section makes the number of pennitted dwelling ALEXANDER,JJ.,concur,
units a matter of"the planning board's judgment,"which Order reversed, with costs, and judgment of Supreme
may be overturned only if illegal,arbitrary ***548 or an Court, Ulster County,reinstated.
abuse of discretior.(CPLR 7803;Town Law�282).�
*396 The double dip arguinent is essentially addressed All Citations
to the process of negotiation witli PIPC rather than to
any provision of either law.Petitioners point to nothing in 64 N.Y.2d 387,476 N.E.2d 988,487 N.Y.S.2d 543
the Environrnental Consei•vation Law that would prevent
Footnotes
� The agreement alse covered additional acreage not involved in this proceeding.
7 Village l.aw § 7-738 contains essentially identical provisions and General City Law § 37 includes comparable, though
not identical, provisions.
3 The reFerence in Town Law § 281(b) to "requirements of the zoning ordinance" implies that the "other applicable
requirements"in its concluding phrase be governmental,if not legislative,in origin.PIPC;formed under interstate compact
(PRHPL 9.01), is a governmental agency, but it has purchased an easement, not imposed a governmental requirement.
4 At the time that the Planning Board determination challenged in this proceeding �vas made, the statute provided
that a conservation easement could be enforced by its grantor, holder (which must be a public body or not-for-profit
corporation [ECL 49-0305(3)]), the Attorriey-General or an organization designated in the easement as having a third-
party enforcement right (ECL 49-0305[5] ). As amended by chapter 292 of the Laws of 1984, the statute now provides
that a conservation easement is enforceable only by the grantor, ho!der or a not-for-profit conservation organization
designated in the easement as having third-party enforcement rights. Under either version of tl�e statute,petitioners lack
standing to enforce the easement granted to PIPC.
� � ;' . � �, �
Frs€nds of ah�wangunks, Inc.v. Knowlton, 64 N.Y.2d 387 (1985)
476 N.E.2d 988,487 N.Y.S.2d 543
5 Matter of Hiscox v. Levine, 31 Misc.2d 151, 155, 216 N.Y.S.2d 801 and Kanaley v. Brennan, 119 Misc.2d 1003, 465
N.Y.S.2d 130, cited by petitioners, hold otherwise but are not to be followed in this respect. The Hiscox statement was
dictum, unsupported by reasoning or authority,but may have resulted from the use in the last sentencP of the then version
of Town Law§281 of the phrase"adjoining land"to describe the open space to be safeguarded. Nothing in the present
wording of the section suggests,as petitioners argue,that it was intended to reduce density below that permissible under
applicable statute or ordinance.The statement in Kanaley is based solely on Hiscox, is likewise dictum,and fails to note
that as presently worded Town Law § 281(d) leaves no doubt that the open land to be protected is part of the plat for
which cluster zoning approval is sought.
6 As the Appellate Division stated in Matter of Kamhi v. Planning Bd., 89 A.D.2d 111, 125, 454 N.Y.S.2d 875, revd. on
other grounds 59 N.Y.2d 385, 465 N.Y.S.2d 865, 452 N.E.2d 1193: "It is entirely optional for the developer to utilize
the cluster technique with its concomitant savings in construction costs by accepting the condition of dedication; or, he
may refuse the opportunity and conventionally develop the parcel [citation omitted]. Either way, he is limited to the same
number of dwellings."
� The Appeliate Division decision in Matter of Kamhi v. Planning Bd., 89 A.D.2d 111, 454 N.Y.S.2d 875, is not to the
contrary. That the landowner there involved was limited to eight residences on his 11-acre parcel (89 A.D.2d, at p. 129,
454 N.Y.S.2d 875) resulted from the Town Board's specific authorization to the Planning Board to employ clustering for
the particular land (89 A.D.2d, at p. 113, 454 N.Y.S.2d 875) or from the Yorktown Drainage Law (id., at p. 112, 454
N.Y.S.2d 875), or both. But both are land use controls imposed by legislative act of the Town Board and thus different
from tlie easement purcliased by PIPC in the instant case.MatterofCountyofSuffolk,70 Misc.2d 232,243,333 N.Y.S.2d
G86, likewise turned upon the fact that under the applicable zoning ordinance underwatar land could not be built upon.
8 Wheiher sucn a prosrription (as distinct from a provision requiring refund of part of the acquisition price)can be made
part of a conservation easement which is otherwise not more burdensome than the use permitted for a cluster zoning
open area is a question beyond the scope of this case,on which we express no opinion.
g The The record contains a proposed Restated and Amended Conservation Easement Agreement which specifically
reserves tl�at right to Marriott, but we are not advised whether in fact it has since been executed (see, however, Matter
of Sierra Cluh v. Palisades Interstafe Par!<Commn., 99 A.D.2d 548,471 N.Y.S.2d 633).
End of Dr�cumen4 C;)2018 Thomson Reuters. IJo claim to original U.S.Governmeni Works.
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