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Original Grantor Has the Power to Remove Restrictive Covenants from a Deed/Land Conveyed for Public Use Which Is Subject to a Condition Subsequent (Here a Reversionary Interest in the Deed) Is Not Covered by the Public Trust Doctrine (Legislative Approval for Conveyance for Private Use Not Required)

The Second Department upheld an agreement to remove restrictive covenants from a deed, allowing the village, to which the property had been conveyed, to retain the property free and clear from restrictions. The deed to the village from the Ortenbergs (husband and wife) included a covenant that the property would remain in its natural state for public purposes for the life of the village.  If the village ceased maintaining the property in a natural state, or if the village ceased to exist, the property reverted to the Ortenbergs, their heirs and assigns. After Mrs. Ortenberg died, Mr. Orternberg entered an agreement with the village to remove the restrictive covenants. The petitioners, owners of contiguous land, brought an Article 78 petition arguing that the agreement violated the public trust doctrine which requires the approval of the New York State Legislature before the land held for public use could be converted to private use.  The Second Department noted that the public trust doctrine does not apply to land conveyed for public use subject to a condition subsequent (the reversionary interest). The court also noted that the agreement was not subject to the State Environmental Quality Review Act (SEQRA):

Ortenberg, as the grantor, had the authority to release the Village from its obligation to perform the conditions in the deed and thereupon waive and terminate his reversionary interest (… see a… EPTL 6-5.1). Moreover, the Village was not required to obtain the approval of the New York State Legislature before mutually rescinding the underlying agreement with Ortenberg. Under the public trust doctrine, “a municipality, without specific legislative sanction, may not permit property acquired or held by it for public use to be wholly or partly diverted to a possession or use exclusively private” …, but this doctrine is inapplicable to property which is subject to a reversionary interest … . Where “the land acquired by the [municipality] for public . . . purposes was conveyed subject to a condition subsequent it is not under the control of the Legislature” … . Matter of Rappaport v Village of Saltaire, 2015 NY Slip Op 06246, 2nd Dept 7-22-15

 

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