         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
524
CA 10-02314
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF THOMAS H. ROWE, PATRICIA H.
ROWE, PAT PECKINPAUGH MCDONALD, DAVID PECKINPAUGH,
JANET PECKINPAUGH PRY, JAY SUMMERVILLE, DEBRA A.
DINNOCENZO AND RICHARD B. SWEGAN,
PETITIONERS-PLAINTIFFS-APPELLANTS,

                    V                                MEMORANDUM AND ORDER

TOWN OF CHAUTAUQUA, JEFFREY M. PADDOCK, IN HIS
OFFICIAL CAPACITY AS CODE ENFORCEMENT OFFICER
OF TOWN OF CHAUTAUQUA, CHAUTAUQUA INSTITUTION
ARCHITECTURAL REVIEW BOARD, CHAUTAUQUA
INSTITUTION, CHARLES HEINZ, IN HIS OFFICIAL
CAPACITY AS HEAD OF ADMINISTRATIVE AND COMMUNITY
SERVICES, ROBERT BOWERS AND PAMELA BOWERS,
RESPONDENTS-DEFENDANTS-RESPONDENTS.


HODGSON RUSS LLP, BUFFALO (BENJAMIN M. ZUFFRANIERI, JR., OF COUNSEL),
FOR PETITIONERS-PLAINTIFFS-APPELLANTS.

HARTER SECREST & EMERY LLP, BUFFALO (MARC A. ROMANOWSKI OF COUNSEL),
SEACHRIST LAW OFFICES, P.C., WESTFIELD (JOEL H. SEACHRIST OF COUNSEL),
PRICE FLOWERS MALIN WESTERBERG, JAMESTOWN, AND SCHAACK & NELSON,
MAYVILLE, FOR RESPONDENTS–DEFENDANTS-RESPONDENTS.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Chautauqua County (James H. Dillon, J.), entered
September 9, 2010 in a CPLR article 78 proceeding and declaratory
judgment action. The judgment dismissed the petition/complaint
(denominated petition).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reinstating the petition/complaint
insofar as it seeks declaratory relief and granting judgment in favor
of respondents-defendants as follows:

          It is ADJUDGED and DECLARED that respondent-defendant
     Chautauqua Institution is not a public body and is not
     subject to the requirements of New York’s Open Meetings Law

and as modified the judgment is affirmed without costs.

     Memorandum: Petitioners-plaintiffs (hereafter, petitioners)
commenced this hybrid CPLR article 78 proceeding/declaratory judgment
                                 -2-                           524
                                                         CA 10-02314

action seeking, inter alia, to annul the determination approving the
demolition of an existing cottage and permitting the construction of a
two-family home on property owned by respondents-defendants Robert and
Pamela Bowers and located on the grounds of respondent-defendant
Chautauqua Institution (Institution). As Supreme Court properly
determined, the Institution and its Architectural Review Board (ARB),
also a respondent-defendant, are not subject to the requirements of
New York’s Open Meetings Law (Public Officers Law § 100 et seq.), and
thus cannot be said to have violated any requirements therein.

     The Open Meetings Law applies to “[e]very meeting of a public
body” (§ 103 [a]) and, in order to constitute a public body, an entity
must be “performing a governmental function for the state or for an
agency or department thereof” (§ 102 [2]). “While an entity must be
authorized pursuant to state law to be within the ambit of the Open
Meetings Law and the Freedom of Information Law, not every entity
whose power is derived from state law is deemed to be performing a
governmental function” (Matter of Perez v City Univ. of N.Y., 5 NY3d
522, 528). Here, the Institution was established by the Legislature
in order to create a private, not-for-profit corporation with
quasi-governmental functions for purposes of regulating the activity
on its grounds in furtherance of the Institution’s stated purposes.
The Legislature did not, however, empower the Institution to act on
the State’s behalf with respect to such functions. Because the court
dismissed the petition/complaint (denominated a petition) without
issuing a declaration concerning the Open Meetings Law, we thus modify
the judgment by reinstating the petition/complaint to the extent that
it seeks declaratory relief (see Tumminello v Tumminello, 204 AD2d
1067), and by declaring that the Institution is not a public body and
is therefore not subject to the requirements of the Open Meetings Law.

     We reject petitioners’ further contention that respondent-
defendant Town of Chautauqua and its code enforcement officer
(collectively, Town respondents) improperly delegated their zoning
authority and effectively granted veto power to the Institution and
the ARB with respect to the issuance of building permits. “ ‘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’ ” (Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 432,
quoting Matter of Friends of Shawangunks v Knowlton, 64 NY2d 387,
392). The Town respondents established that they did not delegate
their authority to the Institution or the ARB and that, to the extent
that the Town respondents determined whether Institution approval was
obtained prior to the issuance of a building permit, they did so in
order to promote efficiency by reducing the possibility that there
would be multiple building permit applications for the same property.
We have reviewed petitioners’ remaining contentions and conclude that
they are without merit.

Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
