Appellate Division, Fourth Department
Density and Open Space Restrictions — Encumbrance
Ellison Heights homeowners Association Inc. v. Ellison Heights and Town of Penfield
Appealed from Supreme Court, Monroe County
Background: The appeals involve a dispute between landowners of two adjoining properties. The owner of one parcel sought to develop the parcel into apartment buildings as a cluster development. Fifteen years later, the defendant sought to reduce the number of town homes and increase the number of apartments and subdivide the property into two smaller parcels. The defendant then moved to amend its site plan a few years later and incorporated the plaintiff’s open space of the plaintiff’s property in its density calculation. The plaintiff commenced an action alleging that the defendant had not reserved an easement, the defendant had no right to use the emergency access driveway or the utilities located on the property, and that the defendant had no right to restrict development on the plaintiff’s property by using the open space located therein.
Ruling: The Appellate Division affirmed the dismissal of the plaintiff’s complaint. The court found that the density and open space restrictions on further development of the plaintiff’s property are the result of zoning regulations and do not amount to encumbrances that need to be recorded in the plaintiff’s chain of title.
Douglas A. Foss of Harris Beach for the plaintiff-appellant; Christopher D. Thomas of Nixon Peabody for the defendant-respondent Ellison Heights; Peter J. Weishaar of McConville, Considine, Cooman & Morin for the defendant-respondent Town of Penfield