A CONDEMNOR CAN KEEP TRYING TO CONDEMN – UNTIL IT GETS IT RIGHT

The Third Department handed down a decision on June 21, 2018 in Johnson v Town of Caroga, ___ AD3d ____ (3d Dept 2018).  This was a challenge pursuant to EDPL 207 to a “Determination and Findings” adopted by the Town to acquire a roughly 15-foot-wide strip of land for the purposes of providing expanded access to a recreational trail.  There was an earlier and successful challenge.  Matter of Johnson v Town of Caroga, 157 AD3d 1025 (2018).  The Town issued resolutions recommencing the eminent domain process and this time got everything right.  The Third Department stated, in the context of this EDPL 207 proceeding, “this Court’s scope of review is limited to whether the proceeding was constitutional, whether the acquisition was within the condemnor’s statutory authority, whether the determination was made in accordance with the statutory procedures and whether a public use, benefit or purpose will be served by the proposed acquisition” (Matter of Davis Holding Co., LLC v Village of Margaretville, 55 AD3d 1101, 1102 [2008] [internal quotation marks and citations omitted]; see EDPL 207 [C]; Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 546 [2006]).  Petitioners, as the parties challenging the condemnation, bear the “burden of establishing that the determination was without foundation and baseless, or that it was violative of any of the applicable statutory criteria” (Matter of Broadway Schenectady Entertainment v County of Schenectady, 288 AD2d 672, 673 [2001]; See Matter of Waldo’s, Inc. v Village of Johnson City, 74 NY2d 718, 720 [1989]).  This they failed to do.

The Petitioner also challenged the Town’s right to condemn the access strip arguing that the Town lacked the authority to exercise the power of eminent domain in this instance.  The Court held this argument without any merit and noted that while a town superintendent is empowered to lay out a new highway, the Town certainly had the ability.

Next, it was argued that the condemnation lacked the requisite public purpose.  The Court stated, “A public purpose is broadly defined and encompasses any use which contributes to the health, safety, general welfare, convenience or prosperity of the community” (Matter of 225 Front St., Ltd. v City of Binghamton, 61 AD3d 1155, 1157 [2009] [internal quotation marks and citations omitted]; see matter of Goldstein v New York State Urban Dev. Corp., 64 AD3d 168, 181 [2009], affd 13 NY3d 511 [2009]).  The record establishes that the proposed acquisition of the strip would preserve and ensure continued public access to trails on state lands for snowmobiling, hiking and other recreational activities by Town residents and nonresident visitors, thereby enhancing tourism and providing an economic benefit.

We think it virtually certain that in New York, no one will ever prevail by arguing a project was not for a public use.

Next up was the argument that the “Determination and Findings” did not comply with the ECL Article 8.  If anything will succeed in having your EDPL 207 Petition granted, it is this allegation.

But, not here, as the Court noted that the Town Board, as a lead agency, classified the project as an unlisted action (see 6 NYCRR 617.4), determined that the action would not have an adverse effect on the environment and rendered a negative declaration.  In so doing, the Town Board “identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination” (Matter of Chinese Staff & Workers’ Assn. v Burden, 19 NY3d 922, 924 [2012] [internal quotation marks and citation omitted]; see Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 152 AD3d 1016, 1021 [2017]).

Challenging a proposed condemnation is extremely difficult when a condemnor carefully follows the procedures required by Article 2 of the EDPL.

Posted in Challenges to Determination and Findings, EDPL 207
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