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  • Question regarding NYS Consolidated Laws

    >Chapter 81 - Real Property Actions and Proceedings
    Article 5 - Adverse possession
    S 501. Action after entry. An entry upon real property is notsufficient or valid as a claim unless an action is commenced thereuponwithin one year after the making thereof and within ten years after thetime when the right to make it descended or accrued. S 511. Adverse possession under written instrument or judgment. Wherethe occupant or those under whom he claims entered into the possessionof the premises under claim of title, exclusive of any other right,founding the claim upon a written instrument, as being a conveyance ofthe premises in question, or upon the decree or judgment of a competentcourt, and there has been a continued occupation and possession of thepremises included in the instrument, decree or judgment, or of some partthereof, for ten years, under the same claim, the premises so includedare deemed to have been held adversely; except that when they consist ofa tract divided into lots, the possession of one lot is not deemed apossession of any other lot. S 512. Essentials of adverse possession under written instrument orjudgment. For the purpose of constituting an adverse possession by aperson claiming a title founded upon a written instrument or a judgmentor decree, land is deemed to have been possessed and occupied in eitherof the following cases: 1. Where it has been usually cultivated or improved. 2. Where it has been protected by a substantial inclosure. 3. Where, although not inclosed, it has been used for the supply offuel or of fencing timber, either for the purposes of husbandry or forthe ordinary use of the occupant. Where a known farm or a single lot has been partly improved, theportion of the farm or lot that has been left not cleared or notinclosed, according to the usual course and custom of the adjoiningcountry, is deemed to have been occupied for the same length of time asthe part improved and cultivated.
    I've gotten a denial to build on my property by NYSDEC and I'm
    wondering if these sections of Chapter 81, Article 5 apply to my land.

    A portion of my property is an easement for a private road which is in
    active use, and improvements are periodically made to this dirt and
    gravel roadway for maintenance purposes. Aside from the
    easement/private roadway, there is no fencing or any other active
    use/improvements on the land for decades.

  • #2
    Question regarding NYS Consolidated Laws

    Kevin,

    Sorry, but I don't get your question. Are you asking if an easement
    granted to your neighbors can be used as the basis for adverse possession by
    them? And what does this have to do with your construction woes?

    Dave M.


    Comment


    • #3
      Question regarding NYS Consolidated Laws

      Kevin,

      Sorry, but I don't get your question. Are you asking if an easement
      granted to your neighbors can be used as the basis for adverse possession by
      them? And what does this have to do with your construction woes?

      Dave M.


      Comment


      • #4
        Question regarding NYS Consolidated Laws

        On Sun, 19 Mar 2006 17:42:45 GMT, "David Martel"
        <[email protected]> wrote:
        Kevin, Sorry, but I don't get your question. Are you asking if an easementgranted to your neighbors can be used as the basis for adverse possession bythem? And what does this have to do with your construction woes?Dave M.
        Hi Dave, I'm trying to figure out a bunch of things all at once and my
        brain is slowly but surely experiencing a massive overload.

        In regards to the easement, I'm assuming it's considered a legal
        improvement. In regards to adverse possession, I assume the NYSDEC
        denial is an adverse possession under written instrument or judgment.

        But now I'm researching:
        S 70-0113. Confidentiality. The provisions of section eighty-eight of article six of the public officerslaw shall apply to information confidentially disclosed by applicants to thedepartment, except as otherwise provided in this chapter.
        Specifically in regards to:
        CHAPTER 47 OF THE CONSOLIDATED LAWSPUBLIC OFFICERS LAWARTICLE 6 FREEDOM OF INFORMATION LAW2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article; (c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations; (g) are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; or2. (a) The committee on public access to records may promulgate guidelines regarding deletion of identifying details or withholding of records otherwise available under this article to prevent unwarranted invasions of personal privacy. In the absence of such guidelines, an agency may delete identifying details when it makes records available. (b) An unwarranted invasion of personal privacy includes, but shall not be limited to: iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency.Section 96. Disclosure of records.(1) No agency may disclose any record or personal information unless such disclosure is: (a) pursuant to a written request by or the voluntary written consent of the data subject, provided that such request or consent by its terms limits and specifically describes: (i) the personal information which is requested to be disclosed; (ii) the person or entity to whom such personal information is requested to be disclosed; and (iii) the uses which will be made of such personal information by the person or entity receiving it; or (b) to those officers and employees of, and to those who contract with, the agency that maintains the record if such disclosure is necessary to the performance of their official duties pursuant to a purpose of the agency required to be accomplished by statute or executive order or necessary to operate a program specifically authorized by law; or (c) subject to disclosure under article six of this chapter, unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter; or (d) to officers or employees of another governmental unit if each category of information sought to be disclosed is necessary for the receiving governmental unit to operate a program specifically authorized by statute and if the use for which the information is requested is not relevant to the purpose for which it was collected; or (f) specifically authorized by statute or federal rule or regulation; or (n) to officers or employees of another agency if the record sought to be disclosed is necessary for the receiving agency to comply with the mandate of an executive order, but only if such records are to be used only for statistical research, evaluation or reporting and are not used in making any determination about a data subject.(2) Nothing in this section shall require disclosure of: (a) personal information which is otherwise prohibited by law from being disclosed;Section 97. Civil remedies.(1) Any data subject aggrieved by any action taken under this article may seek judicial review and relief pursuant to article seventy-eight of the civil practice law and rules.(2) In any proceeding brought under subdivision one of this section, the party defending the action shall bear the burden of proof, and the court may, if the data subject substantially prevails against any agency and if the agency lacked a reasonable basis pursuant to this article for the challenged action, award to the data subject reasonable attorneys' fees and disbursements reasonably incurred.(3) Nothing in this article shall be construed to limit or abridge the right of any person to obtain judicial review or pecuniary or other relief, in any other form or upon any other basis, otherwise available to a person aggrieved by any agency action under this article.Section 98. No waiver.Any agreement purporting to waive a data subject's rights underthis article is hereby declared to be void as against public policy.
        Very long story, but as briefly as possible: I was in negotiations
        with the local government to purchase my property last year. Those
        negotiations were terminated after the town obtained information that
        NYSDEC was going to deny my application. That information was
        provided to the town by the NYSDEC analyst who was responsible for
        evaluating my application.

        I initially learned of the release of this information during a
        conversation with an independent appraisor who was hired by the town
        for a valuation of my land. He stated his assessment (which was a
        fraction of the Town's assessed valuation of my property) was based on
        the impending denial of my application with NYSDEC. When I inquired
        as to how he came across this information, he stated from a town
        official. When I asked the town official about this, she denied ever
        having knowledge of the impending denial or having stated as much to
        the appraiser. This town official is a licensed lawyer.

        In the beginning of this year I had obtained a copy of an unsigned
        draft denial of my application dated in March of last year which had
        been sent to a town official at the end of last year. This copy of
        the draft denial was sent to me from my permit company. I finally
        received the official denial from NYSDEC in February of this year.

        Please forgive me for throwing this information at you all at once,
        Dave, but this is just a portion of what I am currently up against.

        Comment


        • #5
          Question regarding NYS Consolidated Laws

          On Sun, 19 Mar 2006 17:42:45 GMT, "David Martel"
          <[email protected]> wrote:
          Kevin, Sorry, but I don't get your question. Are you asking if an easementgranted to your neighbors can be used as the basis for adverse possession bythem? And what does this have to do with your construction woes?Dave M.
          Hi Dave, I'm trying to figure out a bunch of things all at once and my
          brain is slowly but surely experiencing a massive overload.

          In regards to the easement, I'm assuming it's considered a legal
          improvement. In regards to adverse possession, I assume the NYSDEC
          denial is an adverse possession under written instrument or judgment.

          But now I'm researching:
          S 70-0113. Confidentiality. The provisions of section eighty-eight of article six of the public officerslaw shall apply to information confidentially disclosed by applicants to thedepartment, except as otherwise provided in this chapter.
          Specifically in regards to:
          CHAPTER 47 OF THE CONSOLIDATED LAWSPUBLIC OFFICERS LAWARTICLE 6 FREEDOM OF INFORMATION LAW2. Each agency shall, in accordance with its published rules, make available for public inspection and copying all records, except that such agency may deny access to records or portions thereof that: (b) if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article; (c) if disclosed would impair present or imminent contract awards or collective bargaining negotiations; (g) are inter-agency or intra-agency materials which are not: i. statistical or factual tabulations or data; ii. instructions to staff that affect the public; iii. final agency policy or determinations; or2. (a) The committee on public access to records may promulgate guidelines regarding deletion of identifying details or withholding of records otherwise available under this article to prevent unwarranted invasions of personal privacy. In the absence of such guidelines, an agency may delete identifying details when it makes records available. (b) An unwarranted invasion of personal privacy includes, but shall not be limited to: iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency.Section 96. Disclosure of records.(1) No agency may disclose any record or personal information unless such disclosure is: (a) pursuant to a written request by or the voluntary written consent of the data subject, provided that such request or consent by its terms limits and specifically describes: (i) the personal information which is requested to be disclosed; (ii) the person or entity to whom such personal information is requested to be disclosed; and (iii) the uses which will be made of such personal information by the person or entity receiving it; or (b) to those officers and employees of, and to those who contract with, the agency that maintains the record if such disclosure is necessary to the performance of their official duties pursuant to a purpose of the agency required to be accomplished by statute or executive order or necessary to operate a program specifically authorized by law; or (c) subject to disclosure under article six of this chapter, unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter; or (d) to officers or employees of another governmental unit if each category of information sought to be disclosed is necessary for the receiving governmental unit to operate a program specifically authorized by statute and if the use for which the information is requested is not relevant to the purpose for which it was collected; or (f) specifically authorized by statute or federal rule or regulation; or (n) to officers or employees of another agency if the record sought to be disclosed is necessary for the receiving agency to comply with the mandate of an executive order, but only if such records are to be used only for statistical research, evaluation or reporting and are not used in making any determination about a data subject.(2) Nothing in this section shall require disclosure of: (a) personal information which is otherwise prohibited by law from being disclosed;Section 97. Civil remedies.(1) Any data subject aggrieved by any action taken under this article may seek judicial review and relief pursuant to article seventy-eight of the civil practice law and rules.(2) In any proceeding brought under subdivision one of this section, the party defending the action shall bear the burden of proof, and the court may, if the data subject substantially prevails against any agency and if the agency lacked a reasonable basis pursuant to this article for the challenged action, award to the data subject reasonable attorneys' fees and disbursements reasonably incurred.(3) Nothing in this article shall be construed to limit or abridge the right of any person to obtain judicial review or pecuniary or other relief, in any other form or upon any other basis, otherwise available to a person aggrieved by any agency action under this article.Section 98. No waiver.Any agreement purporting to waive a data subject's rights underthis article is hereby declared to be void as against public policy.
          Very long story, but as briefly as possible: I was in negotiations
          with the local government to purchase my property last year. Those
          negotiations were terminated after the town obtained information that
          NYSDEC was going to deny my application. That information was
          provided to the town by the NYSDEC analyst who was responsible for
          evaluating my application.

          I initially learned of the release of this information during a
          conversation with an independent appraisor who was hired by the town
          for a valuation of my land. He stated his assessment (which was a
          fraction of the Town's assessed valuation of my property) was based on
          the impending denial of my application with NYSDEC. When I inquired
          as to how he came across this information, he stated from a town
          official. When I asked the town official about this, she denied ever
          having knowledge of the impending denial or having stated as much to
          the appraiser. This town official is a licensed lawyer.

          In the beginning of this year I had obtained a copy of an unsigned
          draft denial of my application dated in March of last year which had
          been sent to a town official at the end of last year. This copy of
          the draft denial was sent to me from my permit company. I finally
          received the official denial from NYSDEC in February of this year.

          Please forgive me for throwing this information at you all at once,
          Dave, but this is just a portion of what I am currently up against.

          Comment


          • #6
            Question regarding NYS Consolidated Laws

            On 19 Mar 200, Kevin Smith <[email protected]> wrote:
            In regards to adverse possession, I assume the NYSDEC denial is an adverse possession under written instrument or judgment.
            That you make this assumption further underscores your need for
            assistance from an attorney with intensive knowledge about this area
            of the law. Anyway, what you "assume" is not correct. The ruling is
            what it is: an administrative agency decision that denies the
            requested permit. To "assume" more - and, in particular, what you say
            above and also, as you've also said, that you assume the DEC has an
            "easement" as against your property - is to beg both an underlying
            substantive question you've raised (whether the DEC's denial of a
            permit for the requested septic system amounts to a compensable
            "taking" of your property) and also (but potentially very importantly)
            also the procedural ones (whether you should or need request an
            administrative hearing before proceeding further or may have a remedy
            now pursuant to N.Y. CPLR Art. 78 or ought sue in the state supreme
            court or federal district court under 42 U.S.C. 1983 and,
            correspondingly, which of these alternatives probably would be later
            foreclosed depending on which of these choices you make).

            And so (at least from me) one last time: To have any realistic hope
            of obtaining relief you _NEED_, at least, FACE-TO-FACE sophisticated
            advice/counsel from (i.e., even if, perhaps, thereafter not
            fully-scale representation by) a genuinely knowedgeable and
            experienced attorney who is in particular very familiar with this area
            of the law. Meanwhile, if you haven't done so already, be sure to
            read Friedenburg v. N.Y. DEC, 3 A.D.2d 86, 767 N.Y.S.2d. 451 (2d.
            Dept. 2003).

            Comment


            • #7
              Question regarding NYS Consolidated Laws

              On 19 Mar 200, Kevin Smith <[email protected]> wrote:
              In regards to adverse possession, I assume the NYSDEC denial is an adverse possession under written instrument or judgment.
              That you make this assumption further underscores your need for
              assistance from an attorney with intensive knowledge about this area
              of the law. Anyway, what you "assume" is not correct. The ruling is
              what it is: an administrative agency decision that denies the
              requested permit. To "assume" more - and, in particular, what you say
              above and also, as you've also said, that you assume the DEC has an
              "easement" as against your property - is to beg both an underlying
              substantive question you've raised (whether the DEC's denial of a
              permit for the requested septic system amounts to a compensable
              "taking" of your property) and also (but potentially very importantly)
              also the procedural ones (whether you should or need request an
              administrative hearing before proceeding further or may have a remedy
              now pursuant to N.Y. CPLR Art. 78 or ought sue in the state supreme
              court or federal district court under 42 U.S.C. 1983 and,
              correspondingly, which of these alternatives probably would be later
              foreclosed depending on which of these choices you make).

              And so (at least from me) one last time: To have any realistic hope
              of obtaining relief you _NEED_, at least, FACE-TO-FACE sophisticated
              advice/counsel from (i.e., even if, perhaps, thereafter not
              fully-scale representation by) a genuinely knowedgeable and
              experienced attorney who is in particular very familiar with this area
              of the law. Meanwhile, if you haven't done so already, be sure to
              read Friedenburg v. N.Y. DEC, 3 A.D.2d 86, 767 N.Y.S.2d. 451 (2d.
              Dept. 2003).

              Comment


              • #8
                Question regarding NYS Consolidated Laws

                On Mon, 20 Mar 2006 18:40:23 GMT, [email protected] wrote:
                On 19 Mar 200, Kevin Smith <[email protected]> wrote:
                In regards to adverse possession, I assume the NYSDEC denial is an adverse possession under written instrument or judgment.
                That you make this assumption further underscores your need forassistance from an attorney with intensive knowledge about this areaof the law. Anyway, what you "assume" is not correct. The ruling iswhat it is: an administrative agency decision that denies therequested permit.
                You've confirmed what I was told last year when I consulted with the
                attorney I currently have under retainer. He stated an administrative
                hearing, conducted by an administrative judge, is part of a legal
                process I must follow after I got the denial. Until you had responded
                to my post, I had completely forgetten about this procedural necessity
                (most likely because my brain is starting to resemble play dough).

                While I've already consulted with several local land attornies and one
                attorney from the PLF last year (as well as the attorney I currently
                have under retainer at the moment), I have a scheduled appointment to
                consult with yet another (not so local) land attorney tomorrow
                morning.

                It's not so much that I'm looking to hire an attorney who will say
                what I want to hear, rather that I am looking for an attorney who will
                cite law and precedent on methods of how best to proceed legally
                (under prevailing legal rulings) to preserve my civil rights since the
                other legal remedies I've already sought have failed (possibly, but
                most certainly not definitively, due to collusion between NYSDEC and
                the local government having legal jurisdiction over my property).
                To "assume" more - and, in particular, what you sayabove and also, as you've also said, that you assume the DEC has an"easement" as against your property
                Actually what I should have stated is the deed to my property grants
                an easement to other parties for legal ingress, egress and utilities
                to their properties, and that this portion of my property is an
                improvement (private road) which is in active use and has been for
                over four decades.
                - is to beg both an underlyingsubstantive question you've raised (whether the DEC's denial of apermit for the requested septic system amounts to a compensable"taking" of your property) and also (but potentially very importantly)also the procedural ones (whether you should or need request anadministrative hearing before proceeding further or may have a remedynow pursuant to N.Y. CPLR Art. 78 or ought sue in the state supremecourt or federal district court under 42 U.S.C. 1983 and,correspondingly, which of these alternatives probably would be laterforeclosed depending on which of these choices you make).
                As a personal opinion only (obviously not any legal advice from you to
                me or anyone else) do you have any recommendations on what you would
                do if you were in my position?
                And so (at least from me) one last time: To have any realistic hopeof obtaining relief you _NEED_, at least, FACE-TO-FACE sophisticatedadvice/counsel from (i.e., even if, perhaps, thereafter notfully-scale representation by) a genuinely knowedgeable andexperienced attorney who is in particular very familiar with this areaof the law. Meanwhile, if you haven't done so already, be sure toread Friedenburg v. N.Y. DEC, 3 A.D.2d 86, 767 N.Y.S.2d. 451 (2d.Dept. 2003).
                I've had no luck doing a web search for the case you've cited above,
                esnesmmoc, but this case sounds very familiar (possibly the one I read
                about which involved the estate of Gwendolyn Londino).

                Ironically, I'm under the impression I might have read about the case
                you've mentioned on the Community Property Rights webpage, which
                counsels litigation for local governments' defense against regulatory
                taking cases filed against them by private property owners, but now I
                can't locate the case you cite.

                If the case you cite involves some subdivided property located on Long
                Island, New York (which was purchased in the sixties and denied
                permission to build on one of the lots by NYSDEC in the eighties or
                ninties), I probably read about this case but I would greatly
                appreciate it if you would post a link to the rulings on the
                Freidenburg case.

                In regards to a genuinely knowedgeable and experienced attorney who is
                in particular very familiar with this area of the law, I would be
                forever in debted to you if you would recommend someone (if not you)
                who I can consult with and hopefully retain to litigate this matter.

                Comment


                • #9
                  Question regarding NYS Consolidated Laws

                  On Mon, 20 Mar 2006 18:40:23 GMT, [email protected] wrote:
                  On 19 Mar 200, Kevin Smith <[email protected]> wrote:
                  In regards to adverse possession, I assume the NYSDEC denial is an adverse possession under written instrument or judgment.
                  That you make this assumption further underscores your need forassistance from an attorney with intensive knowledge about this areaof the law. Anyway, what you "assume" is not correct. The ruling iswhat it is: an administrative agency decision that denies therequested permit.
                  You've confirmed what I was told last year when I consulted with the
                  attorney I currently have under retainer. He stated an administrative
                  hearing, conducted by an administrative judge, is part of a legal
                  process I must follow after I got the denial. Until you had responded
                  to my post, I had completely forgetten about this procedural necessity
                  (most likely because my brain is starting to resemble play dough).

                  While I've already consulted with several local land attornies and one
                  attorney from the PLF last year (as well as the attorney I currently
                  have under retainer at the moment), I have a scheduled appointment to
                  consult with yet another (not so local) land attorney tomorrow
                  morning.

                  It's not so much that I'm looking to hire an attorney who will say
                  what I want to hear, rather that I am looking for an attorney who will
                  cite law and precedent on methods of how best to proceed legally
                  (under prevailing legal rulings) to preserve my civil rights since the
                  other legal remedies I've already sought have failed (possibly, but
                  most certainly not definitively, due to collusion between NYSDEC and
                  the local government having legal jurisdiction over my property).
                  To "assume" more - and, in particular, what you sayabove and also, as you've also said, that you assume the DEC has an"easement" as against your property
                  Actually what I should have stated is the deed to my property grants
                  an easement to other parties for legal ingress, egress and utilities
                  to their properties, and that this portion of my property is an
                  improvement (private road) which is in active use and has been for
                  over four decades.
                  - is to beg both an underlyingsubstantive question you've raised (whether the DEC's denial of apermit for the requested septic system amounts to a compensable"taking" of your property) and also (but potentially very importantly)also the procedural ones (whether you should or need request anadministrative hearing before proceeding further or may have a remedynow pursuant to N.Y. CPLR Art. 78 or ought sue in the state supremecourt or federal district court under 42 U.S.C. 1983 and,correspondingly, which of these alternatives probably would be laterforeclosed depending on which of these choices you make).
                  As a personal opinion only (obviously not any legal advice from you to
                  me or anyone else) do you have any recommendations on what you would
                  do if you were in my position?
                  And so (at least from me) one last time: To have any realistic hopeof obtaining relief you _NEED_, at least, FACE-TO-FACE sophisticatedadvice/counsel from (i.e., even if, perhaps, thereafter notfully-scale representation by) a genuinely knowedgeable andexperienced attorney who is in particular very familiar with this areaof the law. Meanwhile, if you haven't done so already, be sure toread Friedenburg v. N.Y. DEC, 3 A.D.2d 86, 767 N.Y.S.2d. 451 (2d.Dept. 2003).
                  I've had no luck doing a web search for the case you've cited above,
                  esnesmmoc, but this case sounds very familiar (possibly the one I read
                  about which involved the estate of Gwendolyn Londino).

                  Ironically, I'm under the impression I might have read about the case
                  you've mentioned on the Community Property Rights webpage, which
                  counsels litigation for local governments' defense against regulatory
                  taking cases filed against them by private property owners, but now I
                  can't locate the case you cite.

                  If the case you cite involves some subdivided property located on Long
                  Island, New York (which was purchased in the sixties and denied
                  permission to build on one of the lots by NYSDEC in the eighties or
                  ninties), I probably read about this case but I would greatly
                  appreciate it if you would post a link to the rulings on the
                  Freidenburg case.

                  In regards to a genuinely knowedgeable and experienced attorney who is
                  in particular very familiar with this area of the law, I would be
                  forever in debted to you if you would recommend someone (if not you)
                  who I can consult with and hopefully retain to litigate this matter.

                  Comment


                  • #10
                    Question regarding NYS Consolidated Laws

                    Kevin,

                    A web search, such as Google, may not be the best way to find legal
                    writing. Somewhere close to your County court house is a law library. Ask
                    the folks at the court house where it is. Go there and ask the librarian to
                    help you find the citations that esnesnommoc has given you.

                    Good luck,
                    Dave M.


                    Comment


                    • #11
                      Question regarding NYS Consolidated Laws

                      Kevin,

                      A web search, such as Google, may not be the best way to find legal
                      writing. Somewhere close to your County court house is a law library. Ask
                      the folks at the court house where it is. Go there and ask the librarian to
                      help you find the citations that esnesnommoc has given you.

                      Good luck,
                      Dave M.


                      Comment

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