Perrin v. Bayville Village BoardPerrin v. Bayville Village Board
Ordered that so much of the proceeding as sought to review the determination of the Village Board of the Village of Bayville dated April 23, 2007, which authorized the Mayor of the Village of Bayville to enter into a license agreement with the County of Nassau permitting the installation of, among other things, two microwave dish antennae and six omnidirectional antennae on property owned by the Village of Bayville is converted to an action for a judgment declaring that the proposed installation of the microwave dish antennae and six omnidirectional antennae on property owned by the Village of Bayville would violate a restrictive covenant (see
Ordered that the order and judgment is modified, on the law, by adding a provision thereto declaring that the installation of two microwave dish antennae and six omnidirectional antennae on property owned by the Village of Bayville will not violate the restrictive covenant; as so modified, the order and judgment is affirmed; and it is further,
By resolution dated April 23, 2007, the Village Board of the Village of Bayville authorized the Mayor of the Village to enter into a license agreement with the County of Nassau which would permit installation of two microwave dish antennae and six omnidirectional antennae on property owned by the Village, to be used by the Nassau County Police Department in connection with its public safety radio system. The antennae were to be installed on a water tower situated on a parcel of land previously gifted to the Village by a deed containing a restrictive covenant. By separate resolution also dated April 23, 2007, the Village Board issued a negative declaration under the State Environmental Quality Review Act (
The petitioners, who are neighboring property owners benefitting from the restrictive covenant in the Village‘s deed, commenced this proceeding pursuant to
Since personal jurisdiction was obtained over all of the necessary parties, we convert that portion of the proceeding which sought review of the resolution authorizing the Mayor of the Village to enter into a license agreement with the County into an action for a declaratory judgment (see
“Restrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy” (Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 431 [2004]; see 9394 LLC v Farris, 10 AD3d 708, 709 [2004]). “[A] party seeking to enforce a restriction on land
The restrictive covenant at issue provides that “no use of the premises shall be made or permitted which would be offensive, dangerous or obnoxious to the owners or any owner (now or hereafter) of land within a radius of one mile of the premises whether by reason of smoke, odor, fumes or any other use whatsoever offensive to such owners.” The petitioners assert that the proposed installation of the antennae would violate this covenant because the radio frequency (hereinafter RF) radiation emitted by the antennae would pose substantial health risks, and thus that the installation of the antennae would be dangerous and offensive to them, despite the fact that the antennae would be licensed by the Federal Communications Commission (hereinafter FCC), and therefore, must comply with federal safety standards. The petitioners take the position that, due to the phrase “any other use whatsoever offensive to such owners,” the covenant bars any use that is subjectively offensive to the landowners within one mile of the water tower. Due to the vague and subjective nature of the covenant as the petitioners would have this Court interpret it, it would not constitute a “reasonable” limitation on the free use of land (cf. Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424 [2004]; see Biggs v Sea Gate Assn., 211 NY 482, 488 [1914]; Rowland v Miller, 139 NY 93, 102 [1893]), and the petitioners would not be capable of demonstrating, by clear and convincing evidence, the scope of the restriction and its violation, as is their burden (see Turner v Caesar, 291 AD2d 650, 651 [2002]; see also Moubray v G. & M. Improvement Co., 178 App Div 737, 739 [1917]).
Even if the restrictive covenant is viewed from an objective standpoint, interpreting the phrase “offensive, dangerous or obnoxious,” as we must, with reference to the offensive, dangerous, or obnoxious conditions specifically enumerated in the provision, as well as within the context of the entire deed (see Herald Sq. S. Civic Assn. v Consolidated Edison Co. of N.Y., 307 AD2d 213, 213-214 [2003]; Romano v Greenwald, 254 App Div 782, 782-783 [1938]; Moubray v G. & M. Improvement Co., 178 App Div at 740), the covenant cannot be said to prohibit FCC-licensed antennae that emit RF radiation. The restrictive covenant refers to uses of the land which would be “offensive, dangerous or obnoxious” by reason of “smoke, odor [or] fumes.” It further bars use of the land for “public amusements, concessions, vending, restaurants or other commercial enterprises” or for use as “a dumping ground, [for] garbage disposal purposes,
The Supreme Court correctly dismissed the petitioners’ challenge to the SEQRA negative declaration. Since the record establishes that the Village Board “identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for their determination,” the Court will not disturb the agency‘s determination (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363-364 [1986], quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]; see Matter of Concerned Citizens of Val. Stream v Bond, 282 AD2d 532, 532 [2001]). Further, the Village Board‘s reliance upon an environmental study commissioned by, and performed on behalf of the Village, which, in the Village Board‘s judgment was objective and sound, was not unreasonable merely because the Village was reimbursed for the costs of the study by the company contracted to install the antennae. The petitioners’ allegation that the study was biased is not supported by any evidence.
The parties’ remaining contentions either are without merit or need not be reached in light of our determination. Rivera, J.P., Florio, Miller and Hall, JJ., concur.