Chambers v. Old Stone Hill Road Associates

806 N.E.2d 979, 1 N.Y.3d 424, 774 N.Y.S.2d 866, 2004 N.Y. LEXIS 227

• Court: New York Court of Appeals
• Decided: February 24, 2004
• Status: Published

Opinions

OPINION OF THE COURT

Chief Judge Kaye.

Starting in 1957, nearly 50 years ago, the owner of a large tract of land in the Town of Pound Ridge, Westchester County, began conveying parcels with restrictive covenants to limit development on this land to single-family homes. Plaintiffs and defendant Old Stone Hill Road Associates are the current owners of several of these lots that are subject to covenants in a deed within the chain of title, duly recorded, prohibiting “any building except detached residential dwelling houses each for the occupancy and use of one family” and “any trade or business whatsoever.” Appellants, Stone Hill and its lessee, now seek to avoid enforcement of these covenants.

In November 1998, Stone Hill leased about 2,000 square feet on one lot, with a right of access on an adjacent lot, to defendant New York SMSA Limited Partnership doing business as Verizon Wireless. The purpose was for SMSA to construct a facility—an antenna mounted on a 120-foot monopole with a two-story, 660-square-foot equipment storage shed disguised as a barn located at the base and parking space for maintenance vehicles—to provide cellular telephone service in the town and surrounding area. The lease to SMSA touched off a series of events leading to the present litigation, which essentially pits private contractual rights against what defendants claim is the public policy of the Telecommunications Act of 1996 (TCA) (47 USC § 151 et seq., as added by Pub L 104-104, 110 US Stat 56) regarding wireless telecommunications facilities.

In April 2000, after considering 18 alternative sites over a period of 15 months, the Town Board approved SMSA’s application for a special permit to construct the facility on Stone Hill’s property. Several of these sites had been evaluated in combination with other locations so that they could be compared with the proposed single site on Stone Hill’s property. Since the Stone Hill site was in an exclusively residential area, the Town Board initially expressed a preference for the Town’s own “Highway Garage/DPW” site. In fact, the Stone Hill site was taken off the Town Board agenda during the review process, but placed back on the agenda for consideration just before the Board issued the special permit.

Regardless, the Board ultimately rejected all of the alternatives, in part because adequate coverage could not be secured on a single site and might in the future require construction at an additional location. Plaintiffs initiated two lawsuits: the present action to enforce the restrictive covenants brought in March 2000, and a CPLR article 78 proceeding to challenge the Town’s approval of the special permit brought in May 2000.

Thereafter, in June 2000, SMSA obtained a building permit and immediately began construction, which was substantially complete in September 2000. Plaintiffs meanwhile moved for partial summary judgment on their claims for an injunction based on the restrictive covenants. Supreme Court on November 19, 2001, decided both cases. The court issued a permanent injunction against violation of the restrictive covenants, ordered removal of the facility and dismissed defendants’ counterclaim to extinguish the restrictive covenants pursuant to RPAPL 1951 (Chambers v Old Stone Hill Rd. Assoc., Sup Ct, Westchester County, Nov. 19, 2001, Cowhey, J., Index No. 00-04475). Separately, the court dismissed the article 78 proceeding, holding that the Town had acted properly; in the court’s words, “upon a review of the record, it is plain that the DPW site [the alternative site urged by plaintiffs] cannot provide the necessary adequate coverage and adequate capacity to the Town” (Matter of Sorkin v Simpkins, Sup Ct, Westchester County, Nov. 19, 2001, Cowhey, J., Index No. 7498/00).

On defendants’ appeal, the Appellate Division affirmed, concluding that the restrictive covenants evinced an intent to limit the area to residential use, and rejecting defendants’ hardship claim because “[w]here, as here, the servient property owner’s hardships are largely self-created, they do not tip the balance of the equities in favor of extinguishing the restrictive covenants” (303 AD2d 536, 537 [2d Dept 2003]). The Court also rejected defendants’ public policy arguments, stating that the TCA “does not expressly or impliedly preempt the power of private citizens to enforce restrictive covenants or otherwise limit the judicial enforcement of those private agreements” (id. at 538).

Defendants now place two arguments before us. First, they assert that enforcement of the restrictive covenants offends public policy, which should trump plaintiffs’ contractual rights. Second, they claim that the hardships to defendants outweigh the benefits to plaintiffs, and that the restrictive covenants must therefore be extinguished under RPAPL 1951. We conclude that Supreme Court and the Appellate Division correctly rejected both arguments.

Restrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy (see e.g. Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307 [1976]; Silverstein v Shell Oil Co., 33 NY2d 950, 950-951 [1974], affg 40 AD2d 34, 36 [3d Dept 1972]; Bovin v Galitzka, 250 NY 228, 231-232 [1929]). Here, the intention of the restrictive covenants was clearly to preserve the residential character of the neighborhood by limiting the area to residential use, which limitation is reasonable. Plainly too, these covenants do not offend public policy.

Public Policy

Congress enacted the Telecommunications Act of 1996 to encourage development and reduce regulation of telecommunications technologies (47 USC § 151). Section 332 of the TCA furthers this purpose by making it unlawful to prohibit wireless services: “The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services” (47 USC § 332 [c] [7] [B] [i] [II]). Asserting that the restrictive covenants offend the public policy embodied in the statute, defendants claim that enforcing the covenants will essentially prohibit personal wireless services in the Town of Pound Ridge. Additionally, defendants urge that, if the Appellate Division is affirmed and the tower removed, the Town’s authority will be negated. Neither argument has merit.

Upholding plaintiffs’ contractual rights in no way denies wireless telecommunications services in the Town of Pound Ridge. The Town Resolution stated that the Stone Hill site “has the best chance of being the only site necessary to meet the needs and demands for wireless telecommunication services for the Town of Pound Ridge.” But despite defendants’ insistence, the Town’s determination that the Stone Hill site might be the best single-site solution is not a determination that the Stone Hill site was the only site for the facility (see e.g. SiteTech Group Ltd. v Board of Zoning Appeals of Town of Brookhaven, 140 F Supp 2d 255, 264-265 [ED NY 2001] [upholding a zoning board’s denial of a special permit on the ground that there were alternative sites even though the alternative sites would not have completely closed the gaps in service and would have required additional antennas]). The Town, as amicus, concedes the existence of another site or sites on which to locate the facility. Indeed, up to the very day the Town Board selected Stone Hill, alternative sites like the Highway Garage/DPW site were under active consideration. In short, these covenants do not prohibit or have the effect of prohibiting the provision of wireless telecommunications services in the Town of Pound Ridge.

Additionally, defendants assert that the Town’s authority to grant the special permit will be negated if the restrictive covenants are enforced and the tower removed. The Town’s issuance of the special permit to construct the facility is, however, separate and distinct from plaintiffs’ right to enforce the restrictive covenants, a right only plaintiffs can enforce. As we observed in Matter of Friends of Shawangunks v Knowlton (64 NY2d 387, 392 [1985]):

“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.”

The Court went on to make clear that “a particular use of land may be enjoined as in violation of a restrictive covenant, although the use is permissible under the zoning ordinance 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” (id. [citations omitted]; see also 2 Salkin, New York Zoning Law and Practice § 34:02 [4th ed] [“enforcement (of a zoning ordinance) will be enjoined for a violation of a restrictive covenant”]). In approving a special permit, a municipality determines only that the application complies with the municipality’s standards and conditions contained in the zoning ordinance (see Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243-244 [1972]; Matter of Mobil Oil Corp. v Oaks, 55 AD2d 809, 809-810 [4th Dept 1976]; 2 Salkin, New York Zoning Law and Practice § 30:01 [4th ed]).

Thus, in separately dismissing the article 78 proceeding challenging the Town’s permit and enforcing the restrictive covenants—both on the same day—Supreme Court correctly refused to allow the Town Board’s decision that the Stone Hill lot was an appropriate site for the facility to override plaintiffs’ right to enforce the restrictive covenants. Defendants and the Town cannot negate the restrictive covenants by ignoring them and proceeding with the permit process and construction.

Finally, in arguing that the restrictive covenants offend public policy, defendants misread Crane Neck Assn. v New York City/Long Is. County Servs. Group (61 NY2d 154 [1984]). In Crane Neck, the property in issue—leased to the government for use as a home for mentally disabled adults—was subject to a restrictive covenant that allowed only single-family dwellings. There, however, Mental Hygiene Law § 41.34 (f) explicitly preempted local laws and ordinances, defining a community residence for this purpose as a family unit. This Court extended the statute’s explicit preemption to private covenants restricting the use of property to single-family dwellings because those agreements posed the same deterrent to effective implementation of the state policy favoring residences for the mentally disabled as the preempted local laws and ordinances. By contrast, Congress expressly recognized the importance of local land use authority in TCA § 332 (c) (7) (A), which makes clear that nothing in the Act “shall limit or affect the authority of a State or local government . . . over decisions regarding the placement ... of personal wireless service facilities.” Thus, here there is no comparable public policy being transgressed, indeed no preemption that might motivate the Court to extend a statutory mandate to extinguish private rights.

Balancing the Equities

Similarly, we reject defendants’ argument that the restrictive covenants should be extinguished under RPAPL 1951 (2), which provides:

“When relief against such a restriction is sought in an action to quiet title or to obtain a declaration with respect to enforceability of the restriction . . . if the court shall find that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason, it may adjudge that the restriction is not enforceable by injunction . . .

As we underscored in Orange & Rockland Util. v Philwold Estates (52 NY2d 253, 266 [1981]), “the issue is not whether [the party seeking the enforcement of the restriction] obtains any benefit from the existence of the restriction but whether in a balancing of equities it can be said to be, in the wording of the statute, ‘of no actual and substantial benefit’ ” (emphasis in original). Equally clear is that the party claiming that a restriction is unenforceable bears the burden of proving it (see e.g. Deak v Heathcote Assn., 191 AD2d 671, 672 [2d Dept 1993]).

Here, Supreme Court found, and the Appellate Division agreed, that “defendants have failed to meet their burden of proof and no credible evidence has been put forward by defendants that the landowners do not derive any actual and substantial benefit from restricting the land to solely residential use. To the contrary, plaintiffs have shown that the properties have benefitted from such restriction.” Given ample support in the record, this affirmed factual finding is beyond the scope of our review.

Nor do defendants’ alleged hardships tip the balance of equities in favor of extinguishing plaintiffs’ rights. Here too, Supreme Court and the Appellate Division properly balanced the equities. In particular, the courts discounted SMSA’s alleged hardship because it proceeded with construction of the facility with knowledge of the restrictive covenants and of plaintiffs’ intention to enforce them. Its difficulty was thus “largely self-created” (303 AD2d at 537). As for defendant Stone Hill’s argument that it was unable to sell the property for residential use, Supreme Court found that the “[defendants have failed to show that the restrictions^] purpose in retaining the residential nature of the area was not capable of being accomplished or that there were any changed conditions that would warrant granting defendants relief from the restrictive covenant.” These affirmed findings, too, are supported by the record and beyond the scope of our review.¹

Addressing the dissent, for at least three reasons, the Second Circuit’s decision in Sprint Spectrum, L.P. v Willoth (176 F3d 630 [1999])—the nub of the dissent—is inapposite. First, at issue here is the enforceability of the restrictive covenants, not the “separate and distinct” authority of the Town to grant the permit (Matter of Friends of Shawangunks v Knowlton, 64 NY2d 387, 392 [1985]). Second, the TCA’s ban applies to “State or local government [s] or instrumentalit [ies], ” not individual citizens’ efforts to enforce their rights.

Third, Sprint involved a conflict between the TCA’s ban on prohibiting service by state and local governments on the one hand and a town’s rejection of an application on the other. Sprint did not implicate private contract rights. Indeed, the Second Circuit made clear that it did “not read the TCA to allow the goals of increased competition and rapid deployment of new technology to trump all other important considerations” (176 F3d at 639). That there are relatively large setbacks, few dwellings and considerable topographic relief in the Stone Hill area (dissenting op at 440)—a consequence of the longstanding bargained-for covenants—is not a reason for now situating a 120-foot monopole, 660-square-foot equipment shed and parking space for maintenance vehicles in the neighborhood. On this record, neither “least intrusive means” nor the Restatement of Property supports such a result.² As Supreme Court and the Appellate Division correctly concluded, the TCA does not preempt the power of private citizens to enforce their contractual rights, or limit judicial enforcement of those rights.

Finally, we note that the Town urges that it would need time to relocate the antenna without interruption of service vital to public health and safety. Plaintiffs have consented to “a reasonable time period” for relocation.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

1 . Supreme Court additionally rejected defendants’ laches argument, finding no credible evidence that plaintiffs unreasonably delayed bringing their action. Neither that argument, nor mootness, was advanced in our Court.

2 . See Restatement (Third) of Property (Servitudes) § 3.1, Comment i (“The policies favoring freedom of contract, freedom to dispose of one’s property, and protection of legitimate-expectation interests nearly always weigh in favor of the validity of voluntarily created servitudes.”).