LLC 2900 LLC v. LLC SPC LLC LLC AS NMS (2023)

GLOBAL BENCH VERDICT

Based upon very careful consideration of: the credible trial testimony; the trial exhibits; and, the written closing statements, this Court hereby makes the following verdict in Respondents'-Defendants' favors DENYING the public trust doctrine and permissive referendum claims and any accompanying relief.

FINDINGS OF FACT

Key Background Information

These seven cases are part of a panoptic course of litigation against the Whole Foods Project (the "Project") located on Monroe Avenue in the Town of Brighton (the "Town"). The Project is sponsored by the Respondent/Defendant Developer Companies (the "Developers"). Petitioners/Plaintiffs Clover/Allen's Creek Neighborhood Association, LLC ("CAC"), Save Monroe Avenue, Inc. ("SMA"), and Brighton Grassroots, Inc. ("BGR") are all citizens groups opposed to the Project (collectively "Petitioners").

"Auburn Trail"

The Bench Trial issues related to what the Court has colloquially referred to as the "Auburn Trail."¹ As to its genesis, the Auburn Trail sits on what was a railroad bed that Rochester Gas and Electric ("RG & E") acquired in 1965 - although it remained an active railway until the early 1980's. The Brighton span of the Auburn Trail runs about two miles from the City of Rochester boundary at Highland Avenue to the Town of Pittsford line just past Clover Street, and it was used by the public. The very small portion of the Auburn Trail at what would become the Project site was not marked, and it also crossed open parking lots and driving areas of those prior commercial properties. In the late 1980's and early 1990's, the Town identified the whole 2-mile Auburn Trail as an area of interest as part of its long-term planning goals. However, and due to strong neighborhood opposition, it was not pursued at that time as a Town parcel.

One of the Developers' principals - Mario Daniele - opened his restaurant "Mario's" on what would become part of the Project site. The previous commercial property owners at the Project locale were interested in RG & E's land for additional parking and traffic needs, including access to Allens Creek Road. In 1996, Mr. Daniele applied for a re-subdivision of RG & E land, as did the other owners. Those applications were approved upon the express conditions of the Town receiving 10' wide public access easements. In 1997, RG & E recorded an Access Easement Agreement (the "Agreement") - executed by the owners, including Mario and Flora Daniele - and with reference in maps to public easements to the Town. After the Agreement, RG & E then delivered deeds to each owner. Subsequently, and between 1997 and 2003, all of the other property owners conveyed to the Town pedestrian easements - but not Mario and Flora Daniele. Thereafter, the Town noted the entire 2-mile Auburn Trail as a "concept" to potentially be formally developed.

Whole Foods Project

In February of 2015, the Developers interposed their request for Incentive Zoning Approval ("IZA"). As part of the IZA proposal, the Developers noted the easements' locations across the whole Project site. In exchange for the IZA, the Developers promised certain amenities, one of which being improvements to the complete 2-mile Auburn Trail Brighton span. The Developers' proposal drew a plethora of community objections.

Per the Developers' amended IZA proposal, the Town Board classified the Project as a Type I Action under the State Environmental Quality Review Act ("SEQRA"). That review process, along with the IZA, went through public hearings. The Final Environmental Impact Statement included a new Auburn Trail By-Pass on a portion of the Project site. On March 28, 2018, the Town Board posted its SEQRA findings and approved the IZA, which included the By-Pass. The Town likely did not realize that the Daniele easement was missing until after those approvals - on or about March 30th.

Next, the Developers filed a Preliminary Site Plan for the Planning Board's consideration. The Preliminary Site Plan reflected easements through the whole Project site, as did the later Final Site Plan. The Planning Board ultimately approved both the Preliminary and Final Site Plans, but with a condition that the easements be open during construction. Also in 2018, the Developers filed their Project subdivision map which reflected easements running the entire length of the site.

In the Fall of 2022, and after the outcome of summary judgment motions, the Town at long last received additional easements from RG & E for the very large remainder of the 2-mile Auburn Trail span thereby finally completing the same.

Relevant Procedural History

On February 16, 2018, CAC - and then later SMA and BGR - sued on numerous grounds.² After appeals (see Brighton Grassroots, LLC v. Town of Brighton, 179 AD3d 1500 (4th Dept 2020); Save Monroe Ave., Inc. v. Town of Brighton, 179 AD3d 1496 (4th Dept 2020); Clover/Allen's Cr. Neighborhood Assn. LLC v. M & F, LLC, 173 AD3d 1828 (4th Dept 2019)), and then summary judgment motions, only the public trust doctrine and permissive referendum causes of action remained to be tried.

LEGAL CONCLUSIONS

Petitioners do not prevail on the Auburn Trail issues. This Court listened intently to the trial proof, and highly commends every side for their zealous efforts. The trial process was illuminating and extremely helpful to the Court - juxtaposed to the cold summary judgment motions record. The Bench Trial's live testimony, accompanied by contemporaneous explanation of voluminous exhibits - some of which post-date the summary judgment decision - solidified the outcome of the identified factual issues in the summary judgment decision.³ In sum and substance, the trial proof showed that: the Auburn Trail was not dedicated land, or in the alternative, there is no alienation or substantial interference; and, that the Town's easements were not forfeited thereby vitiating the need for a permissive referendum.

Easement Scope

Taking the issues in reverse order from the summary judgment decision, the Court starts with the purported easement gap Respondents champion. They ultimately win the entire case, but not because there is not any type of easement on the old Mario's site.

An easement can be enforceable by either a recorded written instrument, or because of the visible and obvious nature of the easement. See General Obligations Law ("GOL") § 5-703 (1); Real Property Law ("RPL") § 240 (3); William J. Jenack Estate Appraisers and Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 477 (2013); Clements v. Schultz, 200 AD2d 11, 14 (4th Dept 1994).

The trial proof showed no stand alone, recorded easement from the Danieles to the Town for the old Mario's parcel; however, this is not fatal.⁴ Resort needs to be made back to 1996 RG & E subdivision process. That Town process was clear that Mario Daniele could secure RG & E's land only upon conferring an easement to the Town [see Mr. Boehner's testimony; P's Ex. No.'s 9, 11, 37, 54, 94]. RG & E insisted on this as a condition precedent to closing [Ms. Suher's & Ms. Wegman's testimony; P's Ex. #'s 73, 83-85, 205-206, 210, 212, 218, 237]. In this vein, the 1997 Agreement - which Mario Daniele signed and which was recorded - has exhibits referencing a pedestrian easement directly to the Town [P's Ex. # 19, Ex. B {maps}]. See Franklin Park Plaza, LLC v. V & J Nat. Enterprises, LLC, 57 AD3d 1450, 1451 (4th Dept 2008); Rupert v. Rupert, 245 AD2d 1139, 1141 (4th Dept 1997). To counter this, Respondents revive the stranger to the deed ground, but it is unavailing. See Matter of Estate of Thomson v. Wade, 69 NY2d 570, 573-574 (1987); Matter of Bauer v. County of Tompkins, 57 AD3d 1151, 1152 (3d Dept 2008). The trial evidence proved that the Town engaged with RG & E and the owners to designate the exact location of its pedestrian easements for the Agreement's maps, so it can hardly be seen as a stranger to that instrument [Ms. Suher's, Ms. Wegman's & Mr. Boehner's testimony; P's Ex. #'s 201, 207, 215 & 217]. Rather, this active Town participation reflects that it was clearly an intended beneficiary of the Agreement. See e.g. Coalition for Cobbs Hill by Pastecki v. City of Rochester, 194 AD3d 1428, 1436 (4th Dept 2021) (acknowledging the third-party beneficiary rule may apply to property rights that were intended to benefit "surrounding neighbors"), lv denied, 198 AD3d 1338. See also Loughran v. Orange and Rockland Util. Inc., 209 AD2d 917, 918 (3d Dept 1994) ("The imperfect deed might be disregarded, but not the equities behind it."). Thus, the Agreement is a proper legal predicate on which to interpose a Town easement at the old Mario's site.

Even disregarding the Agreement, the Court is still satisfied that a further legal ideal blocks an easement denial, namely equitable estoppel. See e.g. Bond v. Turner, 78 AD3d 1490, 1491-1492 (4th Dept 2010) (the defendants were estopped from denying easement). See also Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175 (1982); Marshall v. Pittsford Cent. Sch. Dist., 100 AD3d 1498, 1499 (4th Dept 2012), lv denied, 20 NY3d 859 (2013); Bergner v. Kick, 85 AD2d 911, 911-912 (4th Dept 1981) (a court of equity may preclude a party from denying a material fact which he has induced another to rely upon thereby suffering foreseeable injury and damages), aff'd, 56 NY2d 795 (1982). More specifically, "[a]n easement by estoppel may arise when, among other things, a party reasonably relies upon a servient landowner's representation that an easement exists." Sardino v. Scholet Family Tr., 192 AD3d 1433, 1434 (3d Dept 2021). See also Mattes v. Frankel, 157 NY 603, 608 (1899) (party was estopped from denying a right of way); Riehlman v. Field, 81 AD 526, 528 (4th Dept 1903).

As shown through the extensive trial process, the Daniele family members - and by virtue their companies - knew that the public tread over the old Mario's parcel [see also P's Ex. # 11]. See e.g. Bond, 78 AD3d at 1491-1492 (the defendants were estopped from denying easement rights because they purchased their property with constructive, if not actual, notice that it was burdened with a public easement).

More importantly, Mario Daniele is not relieved of his easement obligation. See e.g. Monte v. Di Marco, 192 AD2d 1111 (4th Dept 1993) (concluding that the defendants had an implied easement). Although not as nefarious as laid out to be in the summary judgment motions, the trial established that Mario Daniele did not hold up his end of the subdivision bargain, and this cannot be rewarded as a means to escape consideration of the public trust doctrine. The Town, and the public as a beneficiary, relied upon the easement promise in the subdivision and parking site plan processes, and later in making use of the easement path [P's Ex #'s 39, 91-92, 94; see also # 11, 37, 111]. Mario Daniele is bound by his words, and his inaction - for whatever reason - does not function to bar a public trust doctrine review.

Furthermore, the Developers represented to the Town and the public via multiple submissions that the easements ran all through the Project site, including over the old Mario's parcel - when they knew otherwise [P's Ex. #'s 20 [C-108], 29, 31, 39, 45, 47-49, 74, 80, 88, 96a, 103a, 108; see also # 111]. See e.g. Am. Linen Supply Co., Inc. v. Penn Yan Mar. Mfg. Corp., 172 AD2d 1007 (4th Dept 1991) (signed and unsigned writings, when read together, provided all essential terms as required by the statute of frauds). See also Huggins v. Castle Estates, Inc., 36 NY2d 427, 431 (1975); Fischer v. Liebman, 137 AD2d 485, 487 (2d Dept 1988) (subdivision map reference may qualify as a grant). Cf. H.S. Farrell, Inc. v. Formica Const. Co., Inc., 41 AD3d 652, 654 (2d Dept 2007) (subdivision map - alone - was insufficient to show easement creator's intent) [Docket # 1329, p. 23]. The Town, which represents the public, relied upon the Developers' representations in making numerous key legal decisions. In fact, the Town adopted many of those same representations, and even made other independent ones about the easements, so it too cannot go back on its statements [P's Ex. #'s 6, 7, 35].⁵ See e.g. Rason Asphalt, Inc. v. Town of Oyster Bay, 6 AD2d 810 (2d Dept 1958) (the town was estopped from denying a legal issue). Cf. MJK Bldg. Corp. v. Fayland Realty, Inc., 181 AD3d 860, 862-863 (2d Dept 2020) (the plaintiffs failed to proffer evidence of reasonable reliance upon a representation that they held an easement); F.B. Tr. Rd. Corp. v. DRT Const. Co., Inc., 241 AD2d 930, 931 (4th Dept 1997) (deciding that there was insufficient evidence to support the plaintiff's claim of detrimental reliance) [Docket # 1329, pp. 23-24].

With the implied easement's existence settled in Petitioners' favor (see e.g. Graziano v. Turiano, 266 AD2d 187 (2d Dept 1999) (declaring that the defendants had an implied easement) [Docket # 1329, p. 40]), the Court now turns to the merits of their substantive claims.⁶

Claim Standard

Petitioners' main form of relief now are declaratory judgments.⁷ As set forth in CPLR 3001:

The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.

CPLR 3001 (emphasis added). See also CPLR 3017 (b); Morgenthau v. Erlbaum, 59 NY2d 143, 147 (1983).

As the Court of Appeals has held:

The use of a declaratory judgment, while discretionary with the court, is nevertheless dependent upon facts and circumstances rendering it useful and necessary. The discretion must be exercised judicially and with care. . .

James v. Alderton Dock Yards, 256 NY 298, 305 (1931) (emphasis added). See also Rosenbaum v. Rosenbaum, 309 NY 371, 378 (1955) (preponderance of the evidence governs declaratory judgments); Union Tr. Co. of Rochester v. Main & S. Streets Holding Corp., 245 AD 369, 372 (4th Dept 1935).

The above will next be applied to each of Petitioners' causes of action.

Public Trust

After a vigorous re-review of the law, and applying the same to the trial facts, the Auburn Trail was not dedicated land subject to the public trust doctrine. See e.g. Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks and Recreation, 22 NY3d 648, 654 (2014) (rejecting public trust claim); 61 Crown St., LLC v. City of Kingston Common Council, 206 AD3d 1316, 1319 (3d Dept 2022) (finding against a public trust as the subject parcel, which had "park-like attributes," was not managed by the municipality); Christensen v. O'Brien, 2012 NY Slip Op. 31479[U] (Columbia Co Sup Ct 2012) (the plaintiff failed to satisfy his burden of establishing that the parcel constituted parkland). Nor was there actionable alienation via abandonment or even substantial interference. See e.g. Swinson v. Shine, 201 AD3d 982, 983 (2d Dept 2022) (there was no indication that the plaintiffs' manifested an intent to abandon the easement).

Overview

'Rooted in Roman and English law, "the public trust doctrine is based on the notion that the public holds inviolable rights in certain lands and resources, and that regardless of title ownership, the state retains certain rights in such lands and resources in trust for the public." '

Landmark West! v. City of New York, 9 Misc 3d 563, 572 (NY Co Sup Ct 2005) (internal citations omitted).

The public trust doctrine first applied to only "natural resources such as tidelands, bottoms of seas and oceans, and to navigable waters of lakes and streams," but later New York courts extended it include parkland. Matter of 10 E. Realty LLC. v Inc. Vil. of Val. Stream, 11 Misc 3d 1074(A) (Nassau Co Sup Ct 2006) ("[e]xpansion beyond such natural resources . . . is not recognized"), aff'd as mod, 49 AD3d 764 (2d Dept 2008), rev'd, 12 NY3d 212 (2009), judgment reinstated, 12 NY3d 212. Accordingly, "parkland is impressed with a public trust, requiring[state] legislative approval before it can be alienated or used for an extended period for non-park purposes." Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623, 630 (2001). See also Meriwether v. Garrett, 102 US 472, 513 (1880); Matter of Avella v. City of New York, 29 NY3d 425, 432 (2017); Williams v. Gallatin, 229 NY 248 (1920); Potter v. Collis, 156 NY 16, 30 (1898); Brooklyn Park Com'rs v. Armstrong, 45 NY 234, 243 (1871); Stephenson v. Monroe County, 43 AD2d 897 (4th Dept 1974). A park has been construed to be:

'a piece of ground inclosed for purposes of pleasure, exercise, amusement or ornament' . . . 'a strip of land' ... set apart either for pleasure ground or for purposes of exercise, amusement or decoration'. . . land which is 'devoted to any use which tends to promote popular enjoyment and recreation' . . . or land which 'facilitate[s] free public means of pleasure, recreation, and amusement'

Dennis R. House, Supervisor Town of York, 1992 WL 475962, at *1 (collecting cases and internal citations omitted). See also Rivet v. Burdick, 255 AD 131, 134 (4th Dept 1938).

To establish that property has been dedicated as a park or for public use, formal dedication by the legislature is not required. Rather, 'a parcel of property may become a park by express provisions in a deed ... or by implied acts, such as continued use [by the municipality] of the parcel as a park.'

Clover/Allen's Cr. Neighborhood Assn. LLC, 173 AD3d at 1830 (emphasis added but bracketed language in the original).⁸ See also Gewirtz v. City of Long Beach, 69 Misc 2d 763, 771 (Nassau Co Sup Ct 1972), aff'd, 45 AD2d 841 (2d Dept 1974).

Express dedication requires an "unequivocal express . . . offer by the owner and, where required, an express or implied acceptance." Angiolillo v. Town of Greenburgh, 290 AD2d 1, 10 (2d Dept 2001) (emphasis added). See also Brooklyn Bridge Park Legal Defense Fund, Inc. v. New York State Urban Dev. Corp., 14 Misc 3d 515, 522 (Kings Co Sup Ct 2006) (disagreeing that the subject parcel was held in public trust), aff'd, 50 AD3d 1029 (2d Dept 2008). The express dedication method can take the form of deed restrictions or a legislative enactment. See e.g. Matter of Lazore v. Bd. of Trustees of Vil. of Massena, 191 AD2d 764, 765 (3d Dept 1993) (a dedication method was not shown).

As to implied dedication, the Court of Appeals recognized that:

A party seeking to establish such an implied dedication and thereby successfully challenge the alienation of the land must show that (1) "[t]he acts and declarations of the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication" and (2) that the public has accepted the land as dedicated to a public use. . .

'The owner's acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use' . . .

if a landowner's acts are 'equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication'

Matter of Glick v. Harvey, 25 NY3d 1175, 1180 (2015) (the city's acts were not an unequivocal manifestation of an intent to dedicate the parcels as permanent parkland) (emphasis added and citations omitted). See also City of Buffalo v. Delaware, L. & W.R. Co., 190 NY 84, 97 (1907); Clover/Allen's Cr. Neighborhood Assn. LLC, 173 AD3d at 1830.

Whether the subject parcel became a park under the implied dedication method is to be determined from the totality of the evidence. See Coney Is. Boardwalk Community Gardens v. City of New York, 172 AD3d 1366, 1368 (2d Dept 2019) (finding no park on which to base a public trust claim); Ciaccia v. Moore, 184 AD2d 1075, 1076 (4th Dept 1992) (the plaintiffs failed to meet their burden of proving that the disputed parcel was offered or accepted as a park citing Domus Dev. Corp. v. Monroe County Pure Water, 84 AD2d 929, 930 (4th Dept 1981)).

As to either form of dedication, "the burden of proof lies on the party asserting that the land has been dedicated." Romanoff v. Vil. of Scarsdale, 50 AD3d 763, 764 (2d Dept 2008); McDermott v. Town of Goshen, 207 AD2d 612, 615 (3d Dept 1994). "Vague or contradictory evidence of parkland dedication is inadequate, as a matter of law, to establish that a particular site is parkland." Roosevelt Is. Residents Assn v. Roosevelt Is. Operating Corp., 7 Misc 3d 1029(A) (NY Co Sup Ct 2005) (citing Douglaston & Littleneck Coalition v. Sexton, 145 AD2d 480 (2d Dept 1988)). For unequivocal dedication intent, courts look heavily to the originating owner for the controlling purpose and character. See Hubbard v. City of White Plains, 231 NYS2d 313, 315 (Westchester Co Sup Ct 1962), aff'd, 18 AD2d 674 (2d Dept 1962). "The evidence of such intent may rest in writing or oral declarations, or in the acts of the parties concerned." Flack v. Vil. of Green Is., 122 NY 107, 113 (1890). But those items must reflect a "present, fixed, unequivocal purpose to dedicate." Winston v. Vil. of Scarsdale, 170 AD2d 672, 673 (2d Dept 1991) (emphasis added). See also Flack, 122 NY at 114; Cook v. Harris, 61 NY 448, 454 (1875); Vil. of Croton-On-Hudson v. Westchester County, 38 AD2d 979, 980 (2d Dept 1972), aff'd, 30 NY2d 959; Matter of Friends of Petrosino Sq. ex rel. Fleischer v. Sadik-Khan, 42 Misc 3d 226, 230 (NY Co Sup Ct 2013) ("[d]edication of parkland is implied where the City holds land out as a park and the public uses the land as a park" {emphasis added}), aff'd, 126 AD3d 470 (1st Dept 2015).

Contrary to Respondents' suggestions, the threshold dedication prong of the public trust doctrine "does not depend on whether the municipality holds the property in fee simple or whether the municipality's property interest is subject to the rights of others." Clover/Allen's Cr. Neighborhood Assn. LLC, 173 AD3d at 1830 (emphasis added). However, the non-exclusive nature may be relevant to the second prong.

As to that other element - alienation and/or substantial interference - those can occur when a municipality wishes to sell, lease, or discontinue municipal parkland. See Matter of 10 E. Realty, LLC v. Inc. Vil. of Val. Stream, 17 AD3d 474, 476 (2d Dept 2005); Capruso v. Vil. of Kings Point, 34 Misc 3d 1240(A) (Nassau Co Sup Ct 2009). One form of alienation can be constructive abandonment. See Brighton Grassroots, LLC, 179 AD3d at 1501-1502. An easement may be lost by abandonment. See Will v. Gates, 89 NY2d 778, 783 (1997); Snell v. Levitt, 110 NY 595, 604 (1888) ("[t]he question of abandonment is one of intention, depending upon the facts of the particular case."); Rupprecht v. St. Mary's Church Socy. of Batavia, 131 AD 564, 567 (4th Dept 1909), aff'd, 198 NY 576 (1910); Thyhsen v. Brodsky, 51 Misc 2d 1023, 1031 (Monroe Co Sup Ct 1966). Easement abandonment must be shown by clear and convincing proof. See Consol. Rail Corp. v. MASP Equip. Corp., 67 NY2d 35, 39-40 (1986) (owner's intention must be to "permanently relinquish all rights to the easement"); Koshian v. Kirchner, 139 AD2d 942 (4th Dept 1988). Therefore, "acts evincing an intention to abandon must be unequivocal." Gerbig v. Zumpano, 7 NY2d 327, 331 (1960) (emphasis added). See also Porter v. Intl. Bridge Co., 200 NY 234, 235 (1910). Nonuse of the easement alone is insufficient to constitute abandonment (see Conabeer v. New York Cent. & H.R.R. Co., 156 NY 474, 484 (1898); Bd. of Managers of 190 Meserole Ave. Condominium v. Bd. of Managers of 188 Meserole Ave. Condominium, 191 AD3d 629, 631 (2d Dept 2021)), as an owner has no obligation to use its land to preserve its rights. See Hennessy v. Murdock, 137 NY 317, 326 (1893); Janoff v. Disick, 66 AD3d 963, 966 (2d Dept 2009). The Court stresses that there must be both non-use and also an unequivocal intent to abandon. See Ferguson v. Hart, 151 AD3d 1242, 1243 (3d Dept 2017) (the requisite two elements of both nonuse and an unequivocal intent to abandon "cannot be conflated").

Different from complete alienation is "substantial intrusion on parkland for non-park purposes." Friends of Van Cortlandt Park, 95 NY2d at 630 (emphasis added). See also Capruso v. Vil. of Kings Point, 23 NY3d 631, 638 (2014). The aim is to prevent diversion to an "exclusively private" use. Lake George Steamboat Co. v. Blais, 30 NY2d 48, 51 (1972) (emphasis added). See also Kenny v. Bd. of Trustees of Inc. Vil. of Garden City, 289 AD2d 534 (2d Dept 2001) (private nursing home was not a public use) [Docket # 1328, p. 2]. Whether there is substantial interference with the reasonable use and enjoyment of an easement is determined by the surrounding circumstances. See Brill v. Brill, 108 NY 511, 516 (1888); Joss v. Niagara Mohawk Power Corp., 41 AD2d 596 (4th Dept 1973).

Here, Petitioners fell short of their burden of proof on both dedication and alienation/substantial interference. See e.g. Peachin v. City of Oneonta, 194 AD3d 1172, 1177 (3d Dept 2021) (conveyance without legislative approval did not violate the public trust doctrine); Powell v. City of New York, 85 AD3d 429, 431 (1st Dept 2011) ("Bobby Wagner Walk" did constitute parkland as it functioned primarily as a thoroughfare, which distinguishes it from a park, and also there was no substantial interference).

Lacking Dedication

At trial, Petitioners invoked both express and implied dedication, but neither suffices. See e.g. Goldfarb v. Town of Ramapo, 167 AD3d 1009, 1010 (2d Dept 2018) (the petitioners failed to unequivocally establish that the property was parkland by either express or implied dedication); Matter of Levine v. Vil. of Is. Park Bd. of Zoning Appeals, 95 AD3d 1125, 1127 (2d Dept 2012) (property was never dedicated as a park, so the judgment was modified to properly reflect such a declaration).

To give a frame of reference for the ensuing discussion, the Court stops to emphasize a key impression that arose from the trial, and solidified the final analysis. The onslaught of this litigation is narrowly focused on the Project's boundaries - less than a block of property encompassing just .3 miles of a 2 mile long trail, or only 15% of the same. This gives rise to a losing the forest for the trees impression as things are wrongly assessed in isolation. Such a granular view is not proper when, in reality, the Auburn Trail is a much longer path covering the full length of the Town. It is with this much more expansive lense that the Court approached the dedication element, and now turns to it.

It remains true that the public used the full Auburn Trail for some years. Given this usage, the Town understandably identified it as something to be acquired in the late 1980's and early 1990's [P's Ex. #'s 5, 34-35, 63-64]. The Town's first disclosure of this was met with strong neighborhood opposition, so the Auburn Trail idea was shelved in favor of more viable endeavors.⁹ It arose again in 1996 during the RG & E subdivision process, and consistent with sound, long-term planning goals, the Town took advantage of the situation to obtain the easements as foundation blocks for later expansion [Ms. Frankel's testimony; P's Ex. #'s 9, 11, 37, 54, 86, 94].¹⁰ Despite this excellent forward-thinking, the Town held no other easements along the rest of Auburn Trail - about 1.7 miles. Although wanting to comply with the Town demands, RG & E and Mr. Morgenstern denied any intent to dedicate parkland per the Agreement [Ms. Suher's & Ms. Wegman's testimony].¹¹ The Agreement's terms did not speak in terms of park formation (cf. Campbell v. Town of Hamburg, 156 Misc 134, 135 (Erie Co Sup Ct 1935) (deed expressly decreed that the "premises shall be maintained and used by said Town of Hamburg in perpetuity as a 'Park' " {Docket # 1328, p. 8}), and were limited to just a very small stretch of the overall Auburn Trail, as were the ensuing deeds [P's Ex. #'s 19, 59-62]. Those deeds came in haphazardly over a span of six years, so some were landlocked for a time [P's Ex. #'s 59-62]. Ms. Frankel's very credible testimony demonstrated an utter void of present park dedication intent in accepting the patchwork easements as the larger remainder of the Auburn Trail was outside the Town's purview; thus, the public had no right to the same. See e.g. Winston, 170 AD2d at 673 (agreeing with the Supreme Court's determination that the property was never dedicated for public purposes as the trial evidence indicated that the village had 16 acres by deed, but still needed another 16 to complete the full 32 acre park). The Town's future goal was not achieved until this past Fall - after the summary judgment decision - when the Developers secured for the Town easements on the rest of the Auburn Trail [R's Ex. #'s 607-609]. It was this Project which finally allowed the Town to fulfill its 30-year long-range planning objective and bring the formal, town-wide Auburn Trail into fruition [P's Ex #'s 80-81, 113].¹² Therefore, there was no present intent to dedicate (see Winston, 170 AD2d at 673), so the Agreement and deeds do not equate to express dedication. See e.g. Matter of Lazore v. Bd. of Trustees of Vil. of Massena, 191 AD2d 764, 766 (3d Dept 1993) (acceptance of parcel for recreational purposes was inadequate for park dedication).

Implied dedication is likewise not sustained. See e.g. Bronx Council for Envtl. Quality v. City of New York, 177 AD3d 416 (1st Dept 2019) (even with fencing signage referring to the parcel as a park, that did not compel the conclusion that the pier was a park by implication). Yes, public use of the general easement area continued after 1996-1997, although it appears that the usage was not exclusively along the pedestrian easements.¹³ For example, the shed behind the animal hospital blocked a majority of the easement, as did overgrown brush, thereby forcing many users to travel over the veterinary parking lot, especially bikers [Dr. Wyhlan's & Mr. Anthony Daniele's testimony; P's Ex. # 13; R's Ex. #'s 533, 572, 584 & 588]. Also, the sharp jog of the easement prohibited exact easement use [P's Ex. #'s 20, 31, 40, 61, 126]. Petitioners' fact witnesses were unaware of the jog as many testified to following a straight line at that point [Mr. Gillett's, Mr. Werzinger's & Mr. DePerrior's testimony]. Other obstructions, including a gate, snow piles, equipment, and materials commonly required users to deviate from the easements [Mr. Morgenstern's testimony; R's Ex. #'s 561, 563-564, 566, 573, 579, 586-587, 589-590, 625].

Moreover, the Town did not hold out or use the entire 2-mile Auburn Trail span as a park. See Clover/Allen's Cr. Neighborhood Assn. LLC, 173 AD3d at 1830; Matter of Friends of Petrosino Sq. ex rel. Fleischer, 42 Misc 3d at 230. Cf. In re Vil. of Lynbrook, Town of Hempstead, Nassau County, 64 Misc 2d 98 (Nassau Co Sup Ct 1970) (property was regarded as a park) [Docket # 1328, p. 10]. The Town never formally dedicated the complete Auburn Trail, although it did so for another trail in 2006. Petitioners' citations to Town documents noting the Auburn Trail as proof of dedication are misplaced. Those records are clear that the Auburn Trail was only a "concept" [P's Ex. #'s 6, 23; see also R's Ex # 552]. In addition, those items reflect the whole 2-mile Auburn Trail Brighton span, not just the tiny Project site section [P's Ex. #'s 6 & 35 {Fig # 1}; see also # 34]. Once more, the Town had no easements for the full Auburn Trail corridor until recently, and this Court declines to impose a dedication finding against the small 15% snippet at just the Project site [P's Ex. # 23 {noting the need for connections}].

The Town took no steps to improve, develop, or maintain the 2-mile Auburn Trail [Town witness' testimony; P's Ex. # 23]. See e.g. 61 Crown St., LLC, 206 AD3d at 1319 (subject parcel was not managed by the municipality); Shapiro v. Town of Ramapo, 29 Misc 3d 1220(A) (Rockland Co Sup Ct 2010) (farmland that underwent only preliminary steps to be transformed into a golf course did not qualify as parkland), aff'd as mod, 98 AD3d 675 (2d Dept 2012). In fact, some of the photographic exhibits show the path in a horrible condition, especially the stretches behind Clover Lanes and also Clover Plaza [P's Ex. #'s 147 & 148a; R's Ex. #'s 573-574]. Those visuals are hardly consistent with a park, or even a suitable walking path at times. The Town's good neighbor policy of referring out complaints - some of which pertained to portions of the Auburn Trail not encompassed within the Project site - is not synonymous with active supervision and control on which to base implied dedication. See 61 Crown St., LLC, 206 AD3d at 1319.

In all, both means of dedication falter pursuant to the credible trial proof, and without that first element, the public trust claim fails. See e.g. Martin v. Eagle Hill Found., Inc., of New York, 111 AD2d 372, 374 (2d Dept 1985) (there is no basis for the contention that the property was dedicated as parkland); Pearlman v. Anderson, 62 Misc 2d 24, 26 (Nassau Co Sup Ct 1970) (proof of use as a park was inadequate), aff'd, 35 AD2d 544 (2d Dept).

Missing Alienation and/or Substantial Interference

Besides the defective dedication element, and as an independent ground for a denial of the public trust doctrine claim, the alienation and/or substantial interference prong is also absent. See e.g. Cannon Point Preserv. Corp. v. City New York, 183 AD3d 416, 417 (1st Dept 2020) (public trust doctrine was inapplicable without alienation); Hand v. Hosp. for Special Surgery, 34 Misc 3d 1212(A) (NY Co Sup Ct 2012) (finding against the presence of substantial interference with the access or use of the subject facilities), aff'd, 107 AD3d 642 (1st Dept 2013).

Starting with alienation, or per Petitioners' more specific theory - abandonment, that is not born by the requisite higher standard of clear and convincing proof. See e.g. Castle Assoc. v. Schwartz, 63 AD2d 481, 487 (2d Dept 1978) (facts did not establish that the easement was abandoned). See also Consol. Rail Corp., 67 NY2d at 39-40; Koshian, 139 AD2d at 942. The Court acknowledges that some initial versions of Project documents had abandonment notes as to some of the easements [P's Ex. #'s 29, 75, 96a]. However, those were later removed, and design changes were implemented [R's Ex. # 627]. The easements are not revoked, and they remain on the record affording continued public use. Petitioners' expert Ms. Savard even agreed with this on cross-examination. The new amenity trail is also not per se proof of abandonment. See e.g. Consol. Rail Corp., 67 NY2d at 40 (the plaintiff did not intend to abandon its easement even with new "dog-leg" path) [Docket # 1328, p. 24]; Gold v. DiCerbo, 41 AD3d 1051, 1053 (3d Dept 2007) (party failed to make a showing of an intent to abandon even when other route was used). As in both Consol. Rail Corp. and Gold, the amenity trail in and of itself does not warrant an abandonment ruling. Instead, the added path is a simple choice among options, not a mandate. See e.g. Firsty v. De Thomasis, 177 AD2d 839, 841 (3d Dept 1991) (finding no evidence that the easement was going to be terminated) [Docket # 1328, p. 6].

Next, the substantial interference ground also does not succeed. The analysis of this topic requires a historical prospective. There is no dispute that easements' locations were never delineated by signs or ground markings. These easements ran through commercial properties including parking lots and driving lanes. Some forms of parking and vehicular traffic were expressly permissible, while others developed through customary use.¹⁴ Besides the Mario's parking lot section, pictures show car tire marks from driving over parts of the Clover Lanes and veterinary lots near or on the easements [R's Ex. #'s 573-574, 583, 587, 625]. Some of this traffic included numerous, large buses for the school bowling leagues [R's Ex. # 589]. Additionally, the easement path was sometimes blocked by various items making it an obstacle course. Juxtaposed to this, the easement path is now free and clear of obstructions as no parking spaces are placed over it, and the "as built" conditions are also free of any pedestrian impediments.¹⁵ Cf. Arthur J. Quesnel Family Tr. v. Harstedt, 285 AD2d 704, 705 (3d Dept 2001) (allowing obstruction of right-of-way may be indicative of an intent to abandon the easement) [Docket # 1328, p. 24]. See also Wallkill Farms Homeowners Ass'n, Inc. v. Velazquez, 205 AD2d 681, 682 (2d Dept 1994) (construction of obstructions on the easement was merely evidence of nonuse and did not constitute abandonment citing DeJong v. Abphill Assoc., 121 AD2d 678, 680 (2d Dept 1986)). The path remains open for use through commercial parcels, as it did before, but it is now graded, level, and surfaced.

Petitioners' emphasis on the quality and quantity of traffic for the Project is unpersuasive in the end. At times, the old site had parking and heavy traffic from bowling leagues, Mario's banquet operations, the pizza shop deliveries, as well as from the other neighboring businesses. Ms. Savard supplied some generic, national averages for prior commercial uses, but those were not convincing to the Court as a predicate for a substantial interference ruling. Even crediting those projections, the Court still finds against substantial interference. This is especially true for the Building # 2 strip plaza which will not suffer a substantial deviation from any earlier usage.¹⁶

For the Whole Food loading dock area, there will be crossings over the easement path, but the Court does not find that to be substantial interference as required by the law. As clarified at trial by Ms. Demos: the tractor trailer deliveries are curtailed to typically two a day; sometimes none are expected on Sundays - a likely popular path usage day; and, no trailers will be left on site. The time of those larger deliveries are coordinated to eliminate multiple, simultaneous deliveries, and are also limited to pre-dawn, pre-opening hours - a time when the path is less likely in use [Ms. Demos' testimony; see also P's Ex. # 117]. Very illuminating, as well as determinative, was the Developers' drone video of a tractor trailer quickly accessing the loading zone, and without traveling down the easement path to reach the same [R's Ex. # 653]. This showed that the path crossings were not so invasive as Petitioners' expert witness Mr. Wing predicated. Box truck deliveries are also managed to minimize disruption.¹⁷ Other general plaza traffic does not make the path any more dangerous than a normal business parking lot, and pedestrians can still use the easement path. Stated differently, there is not total conversion of the easements to an exclusively private use. See Lake George Steamboat Co., 30 NY2d at 51.

In conclusion of the public trust doctrine claim, this Court rules that it must be denied (see e.g. Long Is. Pine Barrens Socy., Inc. v. Suffolk County Legislature, 159 AD3d 805, 807 (2d Dept 2018) (finding against a violation of the public trust doctrine)), thus, no affirmative declaratory judgment relief is issued as Petitioners demand. See e.g. Matter of Niagara Preserv. Coalition, Inc. v. New York Power Auth., 121 AD3d 1507, 1511 (4th Dept 2014) (lower court properly refused to issue a declaration that the respondents were required to obtain legislative approval under the public trust doctrine). Rather, the declaratory relief flows to Respondents' position, with the exception of the easement issue.

Permissive Referendum

Petitioners other legal principle is the purported need for a town-wide vote. See e.g. Matter of Conners v. Town of Colonie, 108 AD3d 837, 839 (3d Dept 2013) (transaction was not a conveyance subject to a permissive referendum). Cf. Town of Guilderland v. Swanson, 41 Misc 2d 398, 400 (Rensselaer Co Sup Ct 1963) (building of causeway over a town-owned pond was beyond the municipality's power without ratification), mod, 29 AD2d 717 (3d Dept 1968), aff'd, 24 NY2d 872 (1969) [Docket # 1328, p. 39].

A town's gift of public property violates the state constitution. See NY Const art. VIII, § 1; Matter of 10 E. Realty, LLC v. Inc. Vil. of Val. Stream, 12 NY3d 212, 215 (2009); Grand Realty Co. v. City of White Plains, 125 AD2d 639, 640 (2d Dept 1986). The Town Law provides in relevant part that:

2. Acquisition and conveyance of real property . . . upon the adoption of a resolution, convey or lease real property in the name of the town, which resolution shall be subject to a permissive referendum . . .

Town Law § 64 (2) (emphasis added). See also In re Town Bd. of Town of Islip, 12 NY2d 321, 328 (1963) (deciding against the need for a referendum); Matter of Sonbyrne Sales, Inc. v. Town Bd. of Town of Onondaga, 98 AD3d 1297, 1299 (4th Dept 2012); Matter of LaBarbera, 29 AD3d at 1056 (conveyance did not constitute an impermissible gift).

Conveyances include transactions affecting easements as they are interests in real property. See Jacobsen v. Inc. Vil. of Russell Gardens, 201 NYS2d 183, 186-187 (Nassau Co Sup Ct 1960). As noted before, an easement may be lost via abandonment, but not just by simple non-use. See Will, 89 NY2d at 783; Conabeer, 156 NY at 484; Rupprecht, 131 AD at 567. Again, easement abandonment must be shown by clear and convincing proof of an unequivocal intent to permanently relinquish all rights to the same. See Consol. Rail Corp., 67 NY2d at 39; Koshian, 139 AD2d at 942. For all of the reasons laid out already, this Court sees no clear and convincing proof of the Town's easement abandonment. See Firsty, 177 AD2d at 841; Castle Assoc., 63 AD2d at 487.

In conclusion of this issue, the permissive referendum claim is denied. See e.g. W. New York Land Conservancy, Inc. v. Town of Amherst, 4 AD3d 889, 891 (4th Dept 2004) (party failed to establish that the easement was an illegal gift). Consequently, Petitioners are not awarded their declaratory judgment relief, and the same is directed to Respondents.

CONCLUSION

Based upon all of the foregoing, it is this Court's Bench Verdict that all of the claims concerning the Auburn Trail are DENIED. Accordingly, this Court declines to issue Petitioners' requested declaratory judgments, and in turn, no permanent injunctive relief follows. As a prevailing party, the Developers are directed to submit a proposed judgment, which includes declaratory judgment language consistent with this Bench Verdict.

Dated: March 8, 2023

Rochester, New York

HONORABLE J. SCOTT ODORISI

Justice of the Supreme Court

FOOTNOTES

1.   The Court acknowledges that Respondents contest this designation due to possible implications flowing therefrom, but the Court will use this name for consistency purposes.

2.   The Court notes that CAC's main concern was the use of both Allens Creek and Clover Street for Project purposes, and the preservation of the neighborhood's character. CAC was successful in its efforts by securing a restrictive covenant blocking side road use. This Court applauds community activism for legitimate purposes. On the other hand, and shown by information that came to light for the first time at trial, BGR's spokesperson testified - only upon cross-examination - that he was a paid lobbyist by Wegmans - a Whole Foods competitor - who also paid all of Petitioners' legal bills. His testimony added nothing to Petitioners' case, and only detracted from the same given this newly disclosed major credibility factor. Further incredible was his adamant denial that the amenity trail was enjoyable, instead preferring a pothole riddled, muddy railroad bed. His inaccurate comments to the media about funding sources served to only undercut's BGR's intentions. In a similar vein, SMA's Mr. DePerrior conceded that the trail was not the true concern, but rather a forced reduction in Project size was. It may be true that it is not the trail, but the scale.

3.   Summary judgment involves different standards (see Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 (2007); Robinson v. Strong Mem. Hosp., 98 AD2d 976 (4th Dept 1983)), and the denial of such a motion does not function as law of the case. See Cole v. Lawrence Healthcare Admin. Services, Inc., 15 AD3d 908, 909 (4th Dept 2005).

4.   This Court again rejects Respondents' reiterated real property standing defense [Docket # 1329, p. 21, n. 95]. As before in the summary judgment decision, the Court again notes that these cases are no longer to determine who owns the easement (cf. Real Property Actions and Proceedings Law § 1501 (1); Matter of LaBarbera v. Town of Woodstock, 29 AD3d 1054 (3d Dept 2006) (proceeding to determine title); Brothers v. Wall, 84 AD2d 923 (4th Dept 1981) (same) [Docket # 1329, p. 21, n. 95]), but rather to determine if an unbroken easement path even exists on which to base the public trust claim - for which Petitioners have standing. See e.g. Dental Soc. of State v. Carey, 61 NY2d 330, 333 (1984) (party had standing). This was also the Court's in limine motions ruling based upon law of the case. See Martin v. City of Cohoes, 37 NY2d 162, 165 (1975); In re Jonathan M., 61 AD3d 1374, 1375 (4th Dept 2009).

5.   The Court pauses to note Mr. Gillett's testimony that he asked the Town for the complete easements in 2015, but it did not supply them.

6.  Accepted for Miscellaneous Reports Publication The Court declines to impose a prescriptive easement. See e.g. Vadaas v. Yeshivath Kehilath Yakov, Inc., 89 AD3d 700, 701 (2d Dept 2011) (use was permissive and not hostile) [Docket # 1328, p. 17]; Tulley v. Bayfront N., Ltd., 286 AD2d 873 (4th Dept 2001) (court properly granted judgment declaring that there was no prescriptive easement); Lyon v. Melino, 214 AD2d 992, 993 (4th Dept 1995) (party did not meet its burden of proving a prescriptive easement); Lucas v. Benjamin, 213 AD2d 1015, 1016 (4th Dept 1995) (same). See also Estate of Becker v. Murtagh, 19 NY3d 75, 83 (2012); Tredwell v. Inslee, 120 NY 458, 465 (1890); Town of Irondequoit v. Fischer, 267 AD2d 1016 (4th Dept 1999).

7.   Petitioners' written summation discussed only declaratory judgment relief, although the pleadings had CPLR Article 78 claims [Docket # 1328, p. 1]. Even if not limiting themselves, and for the same rationale as will be laid out below, no form of Article 78 relief is proper. See Doorley v. DeMarco, 106 AD3d 27, 34 (4th Dept 2013) (remedy of mandamus to compel was not appropriate); Rayle v. Town of Cato Board, 295 AD2d 978, 980 (4th Dept 2002) (denying CPLR 7803 (3) relief).

8.   Upon a re-examination of Clover/Allen's Cr. Neighborhood Assn. LLC, and although the Fourth Department initially spoke in terms of "public use," it later in the same sentence reiterated the traditional park component of the public trust doctrine. This is consistent with decades of case-law, and to adopt Petitioners' simple "public use" threshold would greatly expand the doctrine down the proverbial slippery slope to impose it on many municipal assets not originally contemplated. This would hamper municipal development by discouraging the securing of easements for future planning purposes, and also instantly create postage stamp size "parks."

9.   During Ms. Frankel's administration, she achieved in creating for the Town over 500 acres of parkland - an admirable achievement.

10.   Petitioners' new Planning Board dedication allegation is not supported by the cited case as Foreal Homes, Inc. v. Inc. Vil. of Muttontown, 128 AD2d 585 (2d Dept 1987), aff'd, 71 NY2d 821 (1988) was not a public trust doctrine case, so it is inapposite on that point. Nevertheless, it is relevant to the earlier point of holding Mario Daniele to his easement promise.

11.   There was no testimony from the original New Monroe grantor or from the Mamasan's grantor.

12.   Now, the entire 2-mile long Auburn Trail's condition is vastly improved.

13.   The Court highlights Mr. Gillett's testimony about the path's location behind Building 2 in photographs was inaccurate and further supports the conclusion that the public did not always adhere to the easements' metes and bounds [see P's Ex. # 200.7; see also R's Ex. # 628 {Mr. Gillett admitted that there was no trail}].

14.   This Court does not adopt Petitioners' illegal prior use contention. Petitioners, i.e. the public, having allowed these purported improper uses to continue unabated for years cannot now have the Court discount the same in its legal critique. To follow Petitioners' rationale, this Court would be barred from considering the public's use of the Auburn Trail as they were technically trespassers before any easements were issued.

15.   There is not a berm, trees, a curb, or a railing on any part of the easement line.

16.   As a side note, there is no proof of any intrusions onto the Executive Square and New Monroe easements, which are now part of the amenity trail.

17.   It appears that there will not be any type of deliveries after 2 p.m. on weekdays.

J. Scott Odorisi, J.