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Home > Underwriting > Title News > Nineteen Volume Three

SERIES: Nineteen VOLUME: Three DATED: March, 2004

~ COURT OF APPEALS UPHOLDS RESTRICTIVE COVENANTS AND ORDERS CELL TOWER REMOVED ~

In a recent decision, Chambers v. Old Stone Hill Road Associates et al (New York Court of Appeals, decided February 24, 2004), New York’s highest court reviewed the interplay of private restrictive covenants and the Federal Telecommunications Act of 1996 and upheld a lower court decision which granted an injunction against the installation of a cell tower in an area restricted to one family houses only and ordered the removal of the cell tower in question. A portion of the court's decision is as follows:

"Beginning 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 d/b/a 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) . . . 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 . . .

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 . . .

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' . . . The court also rejected defendants' public policy arguments, stating that the TCS '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' . . .

Defendants now place two arguments before us. First, they assert that enforcement of the restrictive covenants offends public policy, which should trump plaintiff's 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 . . . 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.

Congress enacted the Telecommunications Act of 1996 to encourage development and reduce regulation of telecommunications technologies. . . . Section 332 of the TCA furthers this purpose by making it unlawful to prohibit wireless services: . . . 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, 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 effective 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 . . .

'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 a private agreement.' . . .

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. . .

Thus, here there is no . . . public policy being transgressed, indeed no preemption that might motivate the Court to extend a statutory mandate to extinguish private rights. . .

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 restrictions.' 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'. . . As for defendant Stone Hill's argument that it was unable to sell the property for residential use, Supreme Court found that the '[d]efendants 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 . . .

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

[Dissenting opinion omitted]

~ COUNTY AND TOWN DISPUTE ROAD OWNERSHIP ~

In a recently decided appeal of a quiet title action, County of Rockland v. EklecCo (Appellate Division, Second Department, decided December 15, 2003), the Appellate Court upheld a lower court decision that the Town of Clarkstown rather than the County of Rockland had acquired fee ownership of the roadway in question. The decision in the County of Rockland case is as follows:

"This dispute concerns the ownership of Old Route 59A. This roadway apparently was originally a dirt path used by Native Americans and early settlers, and was taken over in the early 1800's by the Rockland Turnpike Company and developed as a toll road. In 1894, the roadway was adopted by the County of Rockland. Jurisdiction was transferred to the State of New York in 1912 where it remained until 1960. A realignment of the state highway in 1960 resulted in the discontinuance of the disputed roadway. From 1960 until 1996, the roadway was maintained by the Town of Clarkstown. Most recently, in 1997, the Town, by quit claim deed, conveyed its interest in the abandoned roadway to the defendant EklecCo, which has since improved and incorporated the roadway into the system of roads accessing the Palisades Shopping Center. The County claims that the Town was not the rightful owner and that, upon abandonment, the roadway reverted to the County.

The Supreme Court correctly concluded that the County did not become the fee owner of the disputed roadway, formerly a county road, when the State abandoned the roadway . . . The record shows that neither the County nor its predecessor, the Rockland Turnpike Company, acquired a fee interest in the disputed roadway. A title search did not reveal any grant of fee interest by any owner to the Rockland Turnpike Company or any grant of fee interest from the Rockland Turnpike Company to the County with regard to the disputed roadway. The County's claim of ownership rests solely on the fact that in 1894 the Rockland County Board of Supervisors 'adopted' the roadway as a county road. However, merely 'adopting' the road did not mean that it acquired a fee interest in the roadway. The County's claim of a fee interest in the public roadway is inconsistent with the initial 1809 legislation authorizing the creation of the Rockland Turnpike Company which gave the company only a limited authority to purchase and hold real property as 'shall be necessary to fulfill the end and intent of the corporation hereby created and made, and to no other use, intent or purpose whatsoever' . . . The County's claim is also inconsistent with the general rule that the public acquires only an easement in highways and the fee remains in the landowner . .."


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