The opinion of the court was delivered by: Spain, J.
Calendar Date: October 19, 2009
Before: Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ.
Cross appeals from a judgment of the Supreme Court (McGill, J.), entered October 8, 2008 in Clinton County, upon a decision of the court partially in favor of plaintiffs.
This appeal arises out of a number of separate actions, ultimately joined for trial, at the center of which is a strip of land lying along the shore of Lake Champlain in the Town of Plattsburg, Clinton County, known as Singing Sands Beach (hereinafter the beach). Plaintiffs are owners of townhouses situated along the beach. Defendant Champlain Bluffs Development Corporation (hereinafter Champlain) is the fee owner of that portion of the beach as is relevant herein.
In 1983, in contemplation of building a townhouse development, the parcel of land upon which plaintiffs' townhouses now lie was transferred by Bluff Point Golf and Country Club, Inc. to Bluff Point Development Corporation. In that transaction, the Country Club retained ownership of the beach, and specifically provided in an amended memorandum of agreement (hereinafter the agreement) that the beach was "irrevocably dedicat[ed] . . . to the purpose[s] of bathing, boating and access to Lake Champlain with no structure[s] to be erected or placed thereon, other than those customarily related to bathing or boating activities." The agreement was incorporated into the original conveyance to Bluff Point Development and into each subsequent conveyance from Bluff Point Development to plaintiffs, or their predecessors in interest, as the case may be. The agreement further granted to the successors and assigns of either party a "perpetual right running with the land to use the beach for these purposes."
The rights of plaintiffs to nonexclusive use of the beach is not disputed on appeal. The primary issue before us is the right to develop the beach. The original plan to build the townhouse development was to build 38 townhouse units in two phases. As such, the agreement provided that use of the beach would be "subject to such reasonable rules and regulations and charges for the development, maintenance and orderly operation thereof as may from time to time be established in writing and subscribed by a majority of the owners to whom the privilege of use has been conveyed, with the owner or owners of each individual residential property to have one right to subscribe in determining the same. Until such time as the same have been sold and conveyed, [Bluff Point Development] shall have one such right for each of the thirty-eight (38) lots designated as Phases I and II in the aforedescribed [proposed townhouse development]" (emphasis added).
Phase I of the project resulted in the construction of 16 townhouse units, many of which are owned by plaintiffs. The remaining 22 units were never constructed. For the past 20 years, the townhouse owners enjoyed the use of the beach and maintained it by mowing the grass portion (the beach area has very limited sand and was essentially a large lawn in front of the townhouse properties). In 1988, the townhouse owners formed a homeowners association which collects dues for, among other things, the maintenance of the beach. Each townhouse faces the lake with front doors leading to the beach, and the owners have always accessed the beach by walking directly from their individual units to the lake. Townhouse owners regularly stored small personal boats on the beach by drawing them up onto the shore, apparently without complaint.
In 2004, Champlain and defendant J. David Dame, Champlain's president and sole shareholder, acquired all remaining properties of the original conveying parties, the Country Club and Bluff Point Development, including the beach and the remaining undeveloped portion of lot 19, the parcel where the townhouses now sit. This undeveloped portion of lot 19 is an irregularly shaped parcel including a narrow strip of land that divides plaintiffs' townhouse properties and the beach. Champlain has since conveyed the remainder of the land originally slated for Phase II of the townhouse development, lying south of plaintiffs' townhouses, to defendants Arthur S. Spiegel, Timothy M. Duffy, Gretchen A. Duffy and Terry M. Meron. Champlain has also developed other holdings to the west and farther to the south of the townhouses.
Following opposition by some plaintiffs to Champlain's proposed development of its other holdings, and admittedly to inconvenience those plaintiffs, Dame began attempting to enforce some aspects of the agreement and/or covenants in plaintiffs' deeds that had never been enforced by his predecessors in interest. Specifically, the agreement and the covenants in plaintiffs' deeds provide easements from the townhouse properties to the beach over areas "designated by" the developer. Accordingly, Dame notified plaintiffs that they were required to access the beach only by way of a paved walkway between two of the townhouse structures and could no longer do so directly from their units. When many of the townhouse owners failed to comply, Dame erected a wire fence between the townhouses and the beach to prevent direct access to the beach. That fence was removed during the course of this action.
Dame also demanded that the townhouse owners store their rowboats, canoes and kayaks -- when not in use -- in an area he designated, some 50 to 100 feet inland from the water, instead of leaving them pulled up on the sand. This action was based on Dame's presumed authority, under the agreement, to designate the areas where boats may be "docked or drawn up" on the beach. After the homeowners did not comply, he moved their boats to the designated area himself and, eventually, constructed a boat storage rack directly in front of the townhouse owned by plaintiffs Richard Doin and Suzanne Doin. The 19-foot-high boat rack obstructed the Doins' view of the lake and necessitated heavy equipment to remove boats stored near the top. Dame eventually removed the boat rack. Finally, with the purpose of transforming the look of the beach, Dame asked the townhouse owners to stop mowing the grass located along the beach and on the narrow strip of land between the beach and the townhouse properties, because he wanted to build fire pits surrounded by dune-like mounds of earth. When the townhouse owners refused, Dame stripped the grass, created the fire pits and reseeded the area with long beach grass.
Lawsuits ensued. Significant to the issues being pursued on appeal, plaintiffs sought a determination under RPAPL article 15 to resolve any claims to the beach adverse to those of the plaintiffs, for injunctive relief against Champlain and Dame and for compensatory and punitive damages. Plaintiffs also asserted claims of private nuisance and trespass against Dame for erection of the fence and boat rack and for confiscating their boats. Champlain counterclaimed alleging trespass by plaintiffs, seeking a RPAPL article 15 determination resolving defendants' property rights in the beach and surrounding lands and seeking contribution from plaintiffs for costs incurred for maintenance of the beach.
Supreme Court joined these and the parties' other actions for a bench trial. Among other things, the court dismissed Champlain's counterclaims for contribution for maintenance of the beach and for trespass. In determining the property rights of the parties under RPAPL article 15, the court found that plaintiffs have an easement to access the beach directly from their properties. However, the court concluded that because Phase II of the townhouse development project will never be completed, the voting mechanism established by the agreement is a nullity. Accordingly, the court held that defendants are free to develop lands to which they hold title -- without plaintiffs' consent -- including the beach, subject to New York law and the rights of the townhouse owners to access the beach. The court ruled that the townhouse owners are responsible for a pro rata share of the maintenance and upkeep of the beach but no portion of the costs of development undertaken by Champlain. Further, Champlain was held responsible for any capital improvements on the beach or its other property, but had the right to charge townhouse owners for the use thereof.
Supreme Court additionally found Dame and Champlain liable for trespass to chattels (the boats) and for creating a private nuisance, and awarded plaintiffs compensatory and punitive damages. Dame and Champlain (hereinafter collectively referred to as defendants) appeal, challenging only Supreme Court's finding of nuisance and its damage awards. Plaintiffs cross-appeal, asserting that Supreme Court erred in holding that (1) plaintiffs have no control over development of the beach, (2) plaintiffs were not entitled to damages under RPAPL article 15, ...