Living Fences in Dering Harbor

November 22, 2021

The Board of Trustees in the Village of Dering Harbor, located on Shelter Island, adopted a resolution in February of 2018, granting an application of property owners, Brad Goldfarb and Alfredo Paredes, to install and maintain a “living fence”, commonly known as hedges, on their property. The Architectural Review Board likewise approved of the application for hedges.

Deering Point Associates, LLC and Timothy Hogue opposed the installation of hedges by appealing the adoption of the resolution via Article 78 Proceeding to the Supreme Court in Matter of Dering Point Associates, LLC et al., v. Incorporated Village of Dering Harbor et al., Index No. 219/18.

Hogue and Dering Point Associates opposed the planting of hedges along the east and west sides of a deeded right of way that runs through Goldfarb and Paredes land which acts as a means of access for Dering Point Associates. They claimed that if the defendants were permitted to install a hedge on “both sides of the private right-of-way….without limitation as to its height, location and setback, Associates principals, guests, invitees and employees would be unable to judge the traffic on Shore Road when proceeding through the right-of-way by automobile, bicycle, or foot until after entering the roadway.” Plaintiff also alleged that without regulation, hedge rows on the water side of Shore Road could obscure water views of the harbor and bay.

Subsequently, in April of 2018, the Village of Dering Harbor enacted legislation regulating fences and hedges within Village boundaries. Prior to the enactment, hedges, or as they were formally referred to in the Village Code, “fences … living in the form of vegetation,” were permitted subject to review and the issuance of a license by the Board of Trustees. The new legislation adopted in 2018, defined hedges (as actual plants), and provided standards for their installation, height, and maintenance. However, the legislation eliminated the Village Board review and license required for the installation of hedges (notably, the legislation continues to provide for ARB review of fences and walls).

Timothy Hogue and Dering Point Associates, LLC brought a declaratory judgment action (and an Order to Show Cause and Article 78 Proceeding) seeking an order to declare the local law invalid, claiming the local law was (1) inconsistent with the grant of authority from the police power of the State of New York, (2) not in accordance with the comprehensive plan, (3) adopted without any study by the trustees, and (4) was not adopted in good faith for a proper purpose. The Supreme Court in Timothy Hogue and Dering Point Associates LLC v. Village of Dering Harbor and Board of Trustees of the Village of Dering Harbor, Brad Goldfarb and Alfredo Paredes, Index No. 610573-2018, by decision dated May 4, 2020, granted Dering Harbor’s motion for summary judgment. After noting the standard for issuing summary judgment, the Court acknowledged the “strong presumption of validity” accorded to a zoning enactments by a municipality. The Court found the Village’s local law “rational and consistent with the basic land use policies of the Village and does not violate the comprehensive plan.” The Supreme Court dismissed the remaining hybrid proceeding as academic. Plaintiffs appealed.

The Appellate Division Second Department, by three separate but related decisions, Hogue v. Village of Dering Harbor, Index Nos.  2019-06729, 2020-014160, and Matter of Dering Point Associates, LLC v. Incorporated Village of Dering Harbor, Index No. 2019-08239, dated November 17, 2021, upheld the Supreme Court determinations on the matter in favor of the Goldfarb, Paredes and the Village of Dering Harbor. With respect to the easement rights afforded to the Plaintiffs in this case, the Court stated that “a right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his [or her] right . . . is merely a right to pass with the convenience to which he [or she] has been accustomed” (Lewis v Young, 92 NY2d 443, 449 [internal quotation marks omitted]). Here, the complaint did not allege that the right-of-way was blocked or made impassable, and the documentary evidence demonstrated that the hedges which the defendants planted along the right-of-way did not impair passage across it.”

Moreover the Court upheld the Supreme Court’s affirmation of the local law enacted by the Village of Dering Harbor eliminating the Village Board of Trustee review of hedges, stating,

“In any event, the Village defendants demonstrated, prima facie, that the subject zoning was consistent with a comprehensive plan (see Greenport Group, LLC v Town Bd. of the Town of Southold, 167 AD3d 575). “The power to zone is derived from the Legislature and must be exercised in the case of towns and villages in accord with a comprehensive plan or in the case of cities in accord with a well considered plan” (Asian Ams. for Equality v Koch, 72 NY2d 121, 131 [citations and internal quotation marks omitted]). “The party challenging a zoning enactment on the ground that it is contrary to a comprehensive plan assumes a heavy burden to counter the strong presumption of validity accorded the enactment. Where the validity of the ordinance or amendment is fairly debatable, it may not be set aside” (Taylor v Incorporated Vil. of Head of Harbor, 104 AD2d 642, 644-645 [citations omitted]). “Such a party must show that the ordinance is not justified under the police power of the state by any reasonable interpretation of the facts” (Greenport Group, LLC v Town Bd. of the Town of Southold, 167 AD3d at 579). Here, the Village defendants established their prima facie entitlement to judgment as a matter of law by demonstrating, inter alia, that the existence of hedges had been envisioned as part of the Village’s comprehensive plan, and that the 2018 Local Law did not conflict with such plan. In opposition, the plaintiffs failed to raise a triable issue of fact (see Udell v Haas, 21 NY2d 463, 471; Greenport Group, LLC v Town Bd. of the Town of Southold, 167 AD3d at 575).”

Finally, noting that the enactment of the hedge legislation had already occurred at the time the motions were made and the order and judgment rendered, the Court stated, “as a result, the living fence (hedges) at issue no longer required approval, rendering this hybrid proceeding/action, inter alia, to annul the determination granting approval academic (see C.F. v New York City Dept. of Health &Mental Hygiene, 191 AD3d 52, 61; Matter of Truscott v City of Albany Bd. of Zoning Appeals, 152 AD3d 1038, 1039). Further, the appellants failed to establish any of the exceptions to the mootness doctrine (see Quinn v 20 E. Clinton, LLC, 193AD3d 893, 895). Consequently, the Supreme Court properly dismissed the hybrid proceeding/action as academic.”

Based on the foregoing, the Appellate Division upheld all Supreme Court determinations in favor of Goldfarb, Paredes and the Village of Dering Harbor.