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In a case involving the definition of “navigability-in-fact” of a waterbody, a group of individuals via canoes and a kayak went down the South Branch of the Moose River through the property owned by the Adirondack League Club (ALC), a private club which owns large amounts of wilderness preserve for the exclusive use of its members. For 100 years the subject stretch of the Moose River had been posted as “closed” to river travel. The group floated, capsized, walked along the shoreline, sat on the shore and portaged, while the ALC documented the group’s actions and sued the five individuals and the Sierra Club, which organized the recreational excursion, for civil trespass and sought punitive damages. The defendants asserted that New York either had adopted, or should adopt, the so-called “recreational use” test that would open almost all private riparian lands to public access. They claimed that the River was navigable-in-fact and therefore, that they were entitled to an easement for general public use of such waters.
The Court of Appeals ruled that for a waterbody to be navigable-in-fact, it must provide practical utility to the public as a means for transportation and travel. Specifically, the Court held that recreational use of a river is a relevant factor in the determination of whether a river is navigable-in-fact. The Court declined to issue a final ruling that the South Branch of the Moose River is navigable-in-fact, finding that there were issues of fact that had to be decided at the trial court level.
Douglaston Manor v. Bahrakis, 89 N.Y.2d 472, 678 N.E.2d 201 (1997)
In this landmark case, at issue was the fishing rights associated with the ownership of the riverbanks and riverbed of a portion of the Salmon River in upstate New York. The plaintiff owned approximately two and one-half mile strips of both shorelines of a navigable-in-fact river and the riverbed in between, and approximately 2,000 acres, traceable to a 1792 conveyance from the State of New York, and defendant fishing guides had anchored their boats, waded and fished in plaintiff’s portion of the River. The plaintiff sued in trespass, contending that it had exclusive fishing rights in its own property, while the defendant fishing guides claimed that the general classification of navigability alone defeated plaintiff’s claim to exclusive fishing rights. The Firm represented amicus curiae in support of plaintiff.
The issue before the Court of Appeals was whether ownership of a riverbed in non-tidal, navigable-in-fact waters entitles the owner to exclude the public from fishing in the subject portion of the River. Defendants urged a ruling that NYS had abandoned the common-law property distinction between rivers navigable-in-fact and those navigable-in-law, and sought a public right of fishery in all “navigable waters.”
The Court held that plaintiff was entitled to exclude the public from fishing in its portion of the navigable-in-fact river, and noted that the defendants’ arguments failed to “credit the…nuanced concerns and complicated analysis pertaining to differences in private ownership rights between rivers navigable as a matter of common law and those navigable as a matter of fact, recognized for years as having distinct historical characteristics and legal consequences.”
Continental Building Company, Inc. v. Town of North Salem,
211 A.D.2d 88, 625 N.Y.S.2d 700 (3d Dep’t 1995)
Plaintiff, the owner of more than sixty acres of undeveloped land in the Town of North Salem, challenged the Town’s recently re-drafted Zoning Ordinance on the basis that it was exclusionary and unconstitutional after five out of six parcels where multifamily housing was permitted as of right were re-zoned, including plaintiff’s undeveloped parcel.
The Appellate Division, Third Department, upheld the Supreme Court’s decision that set aside the Zoning Ordinance as unconstitutional and ordered the Town to pay the developer’s counsel fees. The Appellate Division held that the plaintiff amply demonstrated that the Zoning Ordinance failed to comply with the judicial mandates of Berenson v. Town of New Castle and its progeny. The Zoning Ordinance failed both prongs of the so-called Berenson test, with the ultimate result being socio-economic separation of classes in the Town. It was further held that the Zoning Ordinance failed to allow for a full array of housing to meet local and regional needs, instead creating obstacles to the realization of affordable housing.
P.M.S. Assets, Ltd. v. Zoning Board of Appeals of Village of Pleasantville,
98 N.Y.2d 683, 774 N.E.2d 204 (2002)
The Court of Appeals upheld the denial by a zoning board of appeals of a use variance which would have allowed a property owner to keep business equipment and inventory for the property owner’s business in a warehouse on a residentially zoned parcel of land. The prior owners of the parcel had operated a commercial moving and storage business and had stored customer goods in the same warehouse. The Court held that the current use of the warehouse exceeded that of the prior, non-conforming use as it was not qualitatively similar to the previous use, and consequently, the property owner impermissibly exceeded the scope of the prior non-conforming use. On remand, the Appellate Division, Second Department held that the denial of the use variance was rational and supported by substantial evidence, as the property owner did not meet its burden in demonstrating that it could not realize a reasonable return on the property if it were directed to single-family residential use.
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