HOY v. INCORPORATED VILLAGE OF BAYVILLE (United States District Court, E.D.N.Y. February 25, 2011).
In 1950, the owner granted and conveyed certain property (the “Property”) to the Village. Plaintiff alleged that the Village covenanted and agreed, for itself, its successors and assigns, that the Property be held subject to the conditions set forth within the deed that the Property “shall be used for municipal uses and purposes and for recreational facilities for use by the People of Bayville, but no public amusements, concessions, vending, restaurants or other commercial enterprises shall be permitted thereon, and, in addition, 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 or owner of land.”
After the Property was deeded to the Village, the Village constructed a public water tower on the Property. Plaintiff alleged that they live within one-quarter mile of the Property and that the Village breached the restrictive covenants by granting leases to four wireless providers to install and maintain more than fifty antennas on the water tower. Plaintiff brought suit against the Village and wireless providers seeking a declaratory judgment that the restrictive covenant was violated and claiming that they were deprived of procedural due process in violation of the Fourteenth Amendment and 42 U.S.C. § 1983 in connection with the Village's decision to allow the use of the Property in this manner. Plaintiff sought an injunction ordering the removal of the antennas.
As a threshold matter, the Court noted that plaintiff abandoned any claim based upon alleged radiofrequency ("RF") emissions from the antennas. Upon the defendants’ motion to dismiss, the Court concluded that (1) plaintiffs provided sufficient allegations in the complaint to state a plausible claim against the defendants that the alleged problems with noise associated with the antennas (which plaintiffs described in their opposition papers as "power-plant like sounds") violated the covenant in the deed regarding "offensive, dangerous or obnoxious" uses of the property, and (2) plaintiffs lacked standing to assert a claim based upon the "commercial enterprises" covenant in the deed. With respect to plaintiff’s assertion that they have been deprived of their Fourteenth Amendment due process rights, the Court found that plaintiff’s conclusory due process allegations could not survive a motion to dismiss. However, the Court granted plaintiff leave to try to correct the pleading defects.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com