May a Home Owner's Association prohibit a homeowner from erecting a winter ice rink in their front yard? That is the real-life issue presented in an area where so many Western New Yorkers ski, skate, and snowboard every winter. The problem for the Zinno family of Clarence, however, is that after a carefree year of ice-skating fun and frolic, their homeowner's association decided to prohibit such ice rinks in all front yards. The Zinnos continued to erect an ice rink each of the next two years, and their HOA began levying weekly fines of $100, resulting in a current balance approximating $2000. The Zinnos now sue their HOA, alleging violations of the HOA governing rules. The HOA countersues also alleging violation of the HOA rules, and for collection of the outstanding fines.

The fundamental issue at bar is an outright conflict between the HOA Declaration ("Declaration of Protective Covenants, Conditions, Restrictions, Easements, Charges and Liens") and the HOA Architectural Guidelines ("Architectural and Maintenance Standards and Guidelines"), which are set by the board of directors under a subset of rules under the Declaration.

The Declaration, which functions as a constitution, was created in 2004 by the developer and sets out all the governing rules and regulations in 15 articles, schedules and exhibits spanning almost 60 pages. It is lawfully a part of the deed to every property in the association (approximately 100, according to counsel at oral argument).

In particular, the Declaration sets out three articles which are salient to the issue at bar:

1) Article VIII - Architectural Committee

2) Article X - General Covenants and Restrictions

3) Article XI - Amendment of Declaration.

Notably, in Article X — General Covenants and Restrictions, the Declaration lays out rules concerning the treatment of almost 20 topics including:

1) Signs

2) Animals

3) Fences and walls

4) Garbage

5) Offensive Activities

6) Above-surface utilities

7) Parking of recreational and commercial vehicles

8) Outdoor repair work on vehicles and boats

9) Hunting

10) Laundry poles and lines

11) Above-ground swimming pools

12) TV antennas

13) Exterior storage

14) Open fires

15) Trees

16) Snowmobiles, motorcycles, and ATVs Etc.

There is no reference to ice rinks (NYSCEF # 18, pages 34 to 38).

Next in Article XI, the Declaration provides for the procedures to amend the declaration, which may be proposed by the Board of Directors or a petition of not less than 25% of lot owners, and upon Notice and Hearing, must be affirmatively voted by 67% or more of lot owners.

Finally, the Declaration provides for the establishment of an Architectural Committee in Article VIII, bestowing upon the Board of Directors the right to promulgate rules and regulations (also called Standards and Guidelines). The board did so in 2014, and thereupon the Architectural Committee promulgated rules spanning 14 pages concerning the treatment of approximately 15 topics, including:

1) Fences

2) Exterior storage sheds

3) Exterior lighting

4) Exterior holiday lights and decorations

5) Flag poles and flags

6) Trash cans and recycling bins

7) Play sets

8) Pools, hot tubs and spas

9) Mailboxes

10) Fire pits

11) Decks, patios, awnings, pergolas and trellises

12) Solar panels

13) Trees

Again, there is no reference to ice rinks (NYSCEF # 22, pages 7 to 11).

Eight years later, in 2022, after the Zinnos erected an ice rink in their front yard, the architectural committee issued an updated and revised set of guidelines which notably addressed ice rinks, and required them to be placed only in backyards, among other restrictions (Id). That is the issue which brings us here today.

The ultimate legal issue, therefore, is whether the Board was obligated to follow the protocol in the Declaration to obtain a 67% affirmative vote of all lot owners to restrict ice rinks in front yards, or whether the Board was authorized to restrict ice rinks in front yards by simply amending the Architectural Standards and Guidelines by a majority vote of the Board of Directors.

Initially, it must be noted that at oral argument, both Counsel agreed that there are no facts in dispute and that the ultimate issue to decide is a question of law. Accordingly, both Counsel seek Summary Judgment for their respective positions.

Summary judgment shall be granted if, upon all of the papers and proofs submitted, the cause of action... shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party (CPLR 3212 [b]; Zuckerman v. City of NY, 49 NY2d 557 [1980]). The purpose of Summary Judgment is to "expedite all civil cases by eliminating from the trial calendar claims which can properly be resolved as a matter of law" (Andre v. Pomeroy, 35 NY2d 361 [1974]). Summary judgment is therefore an appropriate remedy at bar.

A review of the case law submitted by the parties illustrates that similar issues have arisen throughout the State in the recent past.

In two cases directly on point, the Appellate Division has ruled on the issue at bar. In Turon v. Meadowbrook Pointe HOA, Inc. (211 AD2d 985 [2d Dep't. 2022]), both the "Declaration" and the "By-laws" of an HOA made no mention of any rule prohibiting dogs greater than 25 lbs. In order to amend the Bylaws, 66 2/3% must vote affirmatively, along with amending the Declaration. Instead, the HOA Board of Directors instituted a "house rule" prohibiting any dog greater than 25 lbs. The Appellate Division granted summary judgment in favor of the homeowner suing the HOA, holding that the board of directors were not by themselves authorized to amend the Bylaws or the Declaration without the 66 2/3% homeowner approval. Since neither the Bylaws nor the Declaration contained any restriction on the size of dogs, the board's "house rule" constituted an amendment of the permitted use of plaintiff's unit, requiring 66 2/3% of the homeowners to vote. And finally, held the court, since adoption of the "house rule" was not legally authorized, the adoption of the rule was not protected by the "business judgment rule," which protects authorized board action in order to further the legitimate interests of the Association.

In Board of Managers of Village View Condominium v. Forman (78 AD3d 627 [2d Dep't. 2011]), The Appellate Division entertained a case where neither the "Declaration" nor the "Bylaws" addressed the issue of whether a unit owner could have pets. The Declaration required any amendment or alteration to the Bylaws to be approved by 80% of the unit owners of a duly noticed meeting. After the homeowner bought a small dog, the Board unilaterally issued a "House Rule #1" prohibiting any pets for any reason. The court invalidated the board action for violating the Bylaw requiring any amendment or alteration to the Declaration be approved by 80% of the unit owners at a duly noticed meeting.

When it comes to resolving ambiguities in language which encumbers the use of real property, courts have developed rules to navigate the ambiguity. In 67 Wall Street Co. v. Franklin National Bank (37 NY2d 245, 249 [1975]), the Court of Appeals wrote that "The Supreme Court properly referred to the rule that in cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it, and favorably to a party who had no voice in the selection of its language" ( 4 Williston, Contracts, Section 621; 10 NY Jur, Contracts, section 223).

In a Fourth Department case, the Appellate Division reversed the Supreme Court after a bench trial, writing: "The law has long favored the free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them (citations omitted).... The presence of an ambiguity in a restrictive covenant requires the court to construe the covenant to limit, rather than extend, its restriction (citation omitted). Moreover, when the language used in a restrictive covenant is equally susceptible of two interpretations, the less restrictive interpretation must be adopted. (citations omitted) (Ludwig v. Chautauqua Shores Imp. Assoc., 5 AD3d 1119 [4th Dep't. 2004]). Finally, the burden of proof is on the party seeking to enforce the restrictive covenant and the existence and scope of the covenant must be established by clear and convincing evidence (Bear Mountain Books, Inc. v. Woodbury Common Partners at al., 232 AD2d 595 [2d Dep't. 1996]).

Applying the clear and unassailable case law to the facts at bar, it appears there is no ambiguity that in order to amend or alter the restrictions listed comprehensively in the first instance in the Declaration (Article X ), Article XI requires approval by a duly-noticed meeting of the homeowners by 67% of all homeowners. This did not happen. Rather, the Board took unilateral action to amend the Architectural Guidelines, which plainly are a subsidiary set of regulations— the authority of which was created by the Declaration. In other words, the Declaration supersedes the Architectural Guidelines because the Declaration— the constitution— came first and established the subsidiary authority of the architectural committee, which in turn created follow-up guidelines. In keeping with the legal metaphor, the Declaration is the Constitution, setting up the ground rules, and the Architectural Committee is the creation of and by the Declaration, providing for further restrictions of a subsidiary nature. The authority to establish an Architectural Committee and in turn for that Committee to issue restrictions "trickles down" from the original governing document.

Moreover, in juxtaposing the weight and authority of the Declaration against the Architectural Committee —both in their creation— lists a significant overlap of restrictions (E.g. pools and sheds). The Board's action in relying on the Architectural Guideline's creation as a vehicle to add the ice-skating rink, rather than proceeding with the vote of 100 homeowners, outright amends the Declaration without any 67% vote. Pursuant to 67 Wall Street (supra), Ludwig (supra), and Bear Mountain (supra), "Any ambiguity must be construed against the drafter" (i.e. The Board). And in cases where "there are two equally plausible interpretations, [*2]the less restrictive interpretation will be adopted" (Ludwig, supra). Since the restrictions listed amount to restrictions on skating rinks, the removal of that regulation is the least restrictive interpretation.

Finally, the HOA relies heavily on "The business judgment rule." That rule holds that judicial review of decisions by a board of directors is limited to whether the board action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the owners. The rule prohibits courts from judging the substance of the proposed rule (Yusin v. Saddle Lakes HOA, 73AD3d 1168 [2d Dep't. 2010] [HOA rule requiring all pets be leashed and walked in the streets, rather than walkways and grassy area, was not authorized by the Bylaws, thus, the business judgment rule did not protect the board action]).

In Olszewski et al. v. Cannon Point Assoc. (148 AD3d 1366 [3d Dep't. 2017]), the Appellate Division held that "absent appropriate amendments to the relevant governing documents... the rules constitute an impermissible exercise of the [HOA's] powers (citation omitted). Further, as the [HOA's] actions were unauthorized, their actions were not protected by the business judgment rule [citations omitted] [Accord: Gillman v. Pebble Cove HOA Inc., 154 AD2d 508 [2d Dept. 1989]; Field Enterprises et al. v. Bristol Harbor Village Assoc. Inc., 217 AD2d blank [4th Dep't. 2023]). Accordingly, because the Board's action at bar was not authorized by the Declaration, the business judgment rule is inapplicable.

In conclusion, the Board appeared to be faced with a choice: amend the Declaration and set up a homeowners' vote, or take unilateral action and apply a restrictive rule through a subsidiary vehicle that circumvents the democratic voting process required by the HOA Declaration. The Board chose the latter and now finds itself in violation of its own governing documents. The HOA's rule prohibiting ice skating rinks in front yards is therefore declared invalid. Accordingly, it is not protected by the business judgment rule. The Zinno family and any other family are free to erect and enjoy a skating rink on their front lawn. Furthermore, the accumulated fines against the Zinnos are hereby ruled null and void. If the HOA wishes to regulate ice skating rinks, they will need to follow the HOA Declaration and schedule a duly noticed vote of all homeowners, which will require 67% approval to pass.

The Zinnos are now free to skate on their own front lawn as much as they want and not be fined by their very own HOA.

Plaintiff's counsel is to submit an Order on notice within 30 days.