        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1193
CA 12-02342
PRESENT: SMITH, J.P., CENTRA, FAHEY, CARNI, AND WHALEN, JJ.


ELLISON HEIGHTS HOMEOWNERS ASSOCIATION, INC.,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ELLISON HEIGHTS LLC AND TOWN OF PENFIELD,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.
(APPEAL NO. 1.)


HARRIS BEACH PLLC, PITTSFORD (DOUGLAS A. FOSS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

NIXON PEABODY LLP, ROCHESTER (CHRISTOPHER D. THOMAS OF COUNSEL), FOR
DEFENDANT-RESPONDENT ELLISON HEIGHTS LLC.

MCCONVILLE, CONSIDINE, COOMAN & MORIN, P.C., ROCHESTER (PETER J.
WEISHAAR OF COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF PENFIELD.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (William P. Polito, J.), entered September 4,
2012. The order and judgment, among other things, dismissed the first
cause of action against all defendants and dismissed the remainder of
the amended complaint against defendant Town of Penfield.

     It is hereby ORDERED that the appeal from the order and judgment
insofar as it concerns the easement over the emergency access driveway
is dismissed and the order and judgment is unanimously modified on the
law by deleting the fourth ordering paragraph insofar as it grants a
declaration and as modified the order and judgment is affirmed without
costs.

     Memorandum: These consolidated appeals involve a dispute between
landowners of two adjoining properties. The properties previously
were owned as a single parcel, and in the late 1990s the owner of the
property sought to develop the parcel into apartment buildings and
townhome units as a cluster development pursuant to Town Law § 278.
After the resolution of certain obstacles to approval, including
ensuring compliance with this Court’s 1999 decision regarding the
zoning requirements (Matter of Penfield Panorama Area Community v Town
of Penfield Planning Bd., 253 AD2d 342), the Town of Penfield Planning
Board (Planning Board) approved the application. The owner of the
parcel subsequently conveyed it to a developer that, in turn, conveyed
the property to Ellison Heights LLC (defendant).
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                                                         CA 12-02342

     In 2005, defendant applied to the Planning Board to amend the
site plan for the cluster development. Defendant sought, inter alia,
to reduce the number of townhomes on the property, increase the number
of apartment units, and subdivide the property into two smaller
parcels, with the townhomes developed on one parcel as Phase I of the
project and the apartment buildings developed on the other parcel as
Phases II and III of the project. The Planning Board eventually
approved defendant’s site plan and the subdivision of the parcel.
Defendant thereafter began construction on the townhomes and sold the
property on which the townhomes are located to plaintiff. Defendant
retained the property on which the apartment buildings were to be
constructed at some later date.

     In 2011, defendant applied to the Planning Board to amend its
site plan for the property that it had retained. Defendant sought to
develop the property using the same density and open space
restrictions established by the Planning Board in 1999, thereby
incorporating the open space of plaintiff’s property in its density
calculation. Plaintiff thereafter commenced this action seeking,
inter alia, declarations regarding its property rights pursuant to
RPAPL article 15 (see RPAPL 1521 [1]). Plaintiff alleged, inter alia,
that defendant had not reserved an easement over the private road on
plaintiff’s property known as Sable Oaks Lane, that defendant had no
right to use the emergency access driveway or utilities located on
plaintiff’s property, and that defendant had no right to restrict
development on plaintiff’s property by using the open space located on
plaintiff’s property in defendant’s calculation of the density of the
development on its own property. Defendant, along with the individual
defendants, moved to dismiss the amended complaint against them
pursuant to CPLR 3211 (a) (1) and (7), and defendant Town of Penfield
(Town) also moved to dismiss the amended complaint against it,
contending, inter alia, that the Town is not a proper defendant to any
of plaintiff’s causes of action. By the order and judgment in appeal
No. 1, Supreme Court dismissed the first cause of action against all
defendants and dismissed the remainder of the amended complaint
against the Town as well.

     Plaintiff then moved pursuant to CPLR 3025 (c) for leave to amend
the amended complaint, to conform the pleading to the order and
judgment in appeal No. 1. Plaintiff sought leave to assert a new
cause of action pursuant to RPAPL article 15 alleging that, because
the court had declared that plaintiff’s property was bound by the plat
map filed in 2007, then defendant’s property likewise was bound by
that plat map, and defendant thus was prohibited from developing its
property in a manner inconsistent with the plat map and the document
referenced therein. By the order and judgment in appeal No. 2, the
court denied plaintiff’s motion on the ground that the proposed
amendment was without merit.

     Initially, we agree with defendant that plaintiff’s appeal from
the order and judgment in appeal No. 1 insofar as it concerns
defendant’s use of the emergency access driveway located on
plaintiff’s property must be dismissed as moot inasmuch as “changed
circumstances prevent us ‘from rendering a decision which would
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                                                         CA 12-02342

effectually determine an actual controversy between the parties
involved’ ” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d
801, 810-811, cert denied 540 US 1017). Plaintiff does not refute
defendant’s assertion that, during the pendency of this action,
defendant submitted a revised site plan to the Planning Board that
made no use of the emergency access driveway on plaintiff’s property.
Contrary to plaintiff’s contention, the exception to the mootness
doctrine does not apply (see generally Matter of Hearst Corp. v Clyne,
50 NY2d 707, 714-715; Matter of Gannett Co., Inc. v Doran, 74 AD3d
1788, 1789).

     We reject plaintiff’s contention in appeal No. 1 that the court
erred in granting the Town’s motion with respect to the RPAPL cause of
action against it. The Town will not “be inequitably affected by a
judgment in the action” (CPLR 1001 [a]), nor does the Town “have an
estate or interest in the real property which may in any manner be
affected by the judgment” (RPAPL 1511 [2]). Thus, contrary to
plaintiff’s contention, the Town is not a necessary party to the RPAPL
article 15 cause of action (see Boccardi v Horn Constr. Corp., 204
AD2d 502, 502).

     Addressing next the propriety of the order and judgment in appeal
No. 1 with respect to defendant, we note that, although plaintiff’s
cause of action against defendant pursuant to RPAPL article 15 also
sought declarations regarding defendant’s use of Sable Oaks Lane and
utilities located on plaintiff’s property, plaintiff has abandoned any
contention regarding the utilities or defendant’s easement over Sable
Oaks Lane by failing to address those issues in its brief (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984). Thus, the only
remaining issue in appeal No. 1 with respect to that cause of action
against defendant concerns the density and open space conditions that
restrict further development on plaintiff’s property.

     Plaintiff contends in appeal No. 1 that, in dismissing the first
cause of action against defendant, the court erred in determining that
documents on file with the Town permanently encumber and restrict
further development of plaintiff’s property. According to plaintiff,
those documents, which reference the density and open space
restrictions for the cluster development, are not within its chain of
title and thus cannot form the basis for an encumbrance on its
property. We reject that contention, inasmuch as defendant is correct
that the density and open space restrictions on further development of
plaintiff’s property are the result of zoning regulations and do not
amount to encumbrances that must be recorded in plaintiff’s chain of
title (see O’Mara v Town of Wappinger, 9 NY3d 303, 309-311). Here,
the Planning Board imposed the density and open space restrictions at
issue when it originally approved the cluster development in 1999 (see
Town Law § 278 [3] [b]). Defendant’s subsequent 2005 application made
use of those same density and open space restrictions, despite the
subdivision of the property into two parcels, and the application was
approved by the Planning Board. “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
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                                                         CA 12-02342

distinct matters, the ordinance being a legislative enactment and the
easement or covenant a matter of private agreement” (Matter of Friends
of Shawangunks v Knowlton, 64 NY2d 387, 392). We conclude that here,
as in O’Mara, the density and open space conditions that restrict
further development of plaintiff’s property are the result of the
Town’s “ability to impose such conditions on the use of land through
the zoning process,” which conditions are “meaningless without the
ability to enforce those conditions, even against a subsequent
purchaser” (O’Mara, 9 NY3d at 311). Indeed, it is well settled that,
“ ‘where a person agrees to purchase real estate, which, at the time,
is restricted by laws or ordinances, he will be deemed to have entered
into the contract subject to the same [and] [h]e cannot thereafter be
heard to object to taking the title because of such restrictions’ ”
(Voorheesville Rod & Gun Club v Tompkins Co., 82 NY2d 564, 570-571,
quoting Lincoln Trust Co. v Williams Bldg. Corp., 229 NY 313, 318).

     Inasmuch as the density and open space restrictions are the
result of the zoning process, not property encumbrances that must be
recorded in plaintiff’s chain of title, we further conclude that
dismissal of plaintiff’s RPAPL article 15 cause of action, rather than
the issuance of declarations pursuant to RPAPL 1521 (1), was the
proper remedy (see generally O’Mara, 9 NY3d at 309-311). By using the
density and open space restrictions on plaintiff’s property in its
calculation of the density and open space for the proposed development
on its own property, defendant did not “claim an estate or interest in
[plaintiff’s] real property, adverse to that of the plaintiff” (RPAPL
1515 [1] [b]), and plaintiff thus may not challenge those zoning
restrictions pursuant to an RPAPL article 15 cause of action. We
therefore modify the order and judgment by deleting from the fourth
ordering paragraph the declaration that “the Phase I property is
subject to the plat map as filed in 2007.”

     Finally, we conclude with respect to the order and judgment in
appeal No. 2 that the court properly denied plaintiff’s motion for
leave to amend the amended complaint inasmuch as the proposed
amendments are patently lacking in merit (see generally Bryndle v
Safety-Kleen Sys., Inc., 66 AD3d 1396, 1396). As the court properly
noted, either party could apply to the Planning Board for modification
of the density and open space restrictions on its property and, if
plaintiff disagreed with the Planning Board’s determination,
plaintiff’s remedy would be to commence a proceeding pursuant to CPLR
article 78 after exhausting its administrative remedies.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
