Aspen Cr. v. Town Brookhaven

• Decision Date: 04 December 2007
• Docket Number: No. 2006-03815,2006-03815
• Citation: 47 A.D.3d 267,2007 NY Slip Op 9583,848 N.Y.S.2d 214
• Parties: In the Matter of ASPEN CREEK ESTATES, LTD., Petitioner, v. TOWN OF BROOKHAVEN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

47 A.D.3d 267

848 N.Y.S.2d 214

2007 NY Slip Op 9583

In the Matter of ASPEN CREEK ESTATES, LTD., Petitioner, v. TOWN OF BROOKHAVEN et al., Respondents.

No. 2006-03815

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 4, 2007.

Ruskin Moscou Faltischek, P.C., Uniondale (Mark S. Mulholland and Douglas Cooper of counsel), for petitioner.

Harvey B. Besunder, P.C., Islandia (Harvey B. Besunder of counsel), for respondents.

OPINION OF THE COURT

KRAUSMAN, J.

The subject of this condemnation proceeding is a 39-acre parcel of farmland (hereinafter the property) which the petitioner Aspen Creek Estates, Ltd. (hereinafter Aspen Creek) purchased for residential development. The property is located in a portion of the Town of Brookhaven known as the "Manorville Farmland Protection Area." The Manorville Farmland Protection Area is an approximately 500-acre working farm belt which has been described as "the largest and most contiguous belt of productive agricultural land" remaining in the Town. At issue in this proceeding is whether the Town's decision to exercise its power of eminent domain to condemn the property in order to preserve its use as farmland serves a legitimate public purpose, or is instead a pretext to improperly confer benefits upon private persons. Contrary to the conclusion reached by our dissenting colleague, we believe that the record fully supports the Town's decision to condemn the property for a public purpose as part of its continuing efforts to preserve the rural character of the Manorville Farmland Protection Area and ensure that the historical use of the land is not extinguished by development. Accordingly, we confirm the determination acquiring the property by condemnation.

On January 24, 2006, the Town Board of the Town of Brookhaven (hereinafter the Board) took the first step in the condemnation process by adopting a resolution expressing its intent to acquire the property and its development rights in order to ensure that it be "maintained for farming and not developed." In accordance with the requirements of the Eminent Domain Procedure Law, the resolution scheduled a public hearing on the proposed acquisition, and directed the Town Clerk to publish notice of the hearing in two local newspapers (see EDPL 201, 202).

At the ensuing public hearing conducted on March 7, 2006, town representatives described the purpose of the condemnation and the Town's prior attempts to acquire the property through a negotiated sale. Members of various civic associations, neighboring property owners, local residents, and Aspen Creek's president were then afforded an opportunity to express their views. According to testimony presented at the hearing, the subject property was continuously farmed for over a century. In the late 1800s the property was a hay farm, and in more recent years a variety of crops have been grown on the land, including strawberries, corn, potatoes, cauliflower, and string beans. One of the area residents attending the hearing noted that the property was particularly beautiful in the fall, when pumpkins and sunflowers were harvested. The farmhouse on the property predates 1858, and has been recommended for landmark designation by the Town's Historic District Advisory Committee. An adjacent landowner, John Kennedy, leased the subject property and farmed it for approximately 23 years, until it was sold to Aspen Creek and an action for ejectment was commenced to remove him from the property (see Aspen Cr. Estates, Inc. v Kennedy, 32 AD3d 870 [2006]).

The hearing testimony further reveals that the Town's initial efforts to acquire the property began on January 14, 2003, when the Town's Open Space Environmental Bond Act Committee approved the purchase of the development rights to the property from its former owners. However, at that time Aspen Creek's president, Anthony Kaywood, was already in the process of negotiating the purchase of the property. On February 6, 2003, when Kaywood appeared before a Manorville civic group to discuss a proposal to subdivide and build 19 houses on the property, he was advised "that the Town was interested in preserving the entire area and that that parcel was a priority." Although the Town entered into negotiations with the former owners of the property, Aspen Creek outbid the Town, and on March 9, 2004, it purchased the property for $1.4 million. Shortly thereafter, the Town entered into negotiations to purchase the development rights to the property from Aspen Creek. After Aspen Creek rejected the Town's initial offer as too low, the Town increased its offer to $3.52 million based upon the highest property appraisal it had received. In January 2006 the Town increased its offer for the property's development rights to $4.004 million. In addition, according to the Town Attorney, in an effort to reach a compromise, the parties discussed allowing three lots to be developed so that Kaywood and his two partners could build houses for themselves on the property. After these attempts to negotiate a purchase of the property's development rights proved unsuccessful, the Town began the process of acquiring ownership of the land and development rights through the exercise of eminent domain.

Testimony was also presented at the hearing which demonstrates that the Town's efforts to preserve Manorville's farming heritage was not limited to the acquisition of the subject property. At the time of the hearing, the Town, in partnership with the County of Suffolk, had acquired the development rights to four farms in the Manorville protection area, including the Hoschler Farm located directly to the east of the property. The Town and County shared in the $8.27 million cost of acquiring the development rights to these four farms, thus preserving approximately 112 acres of farmland.

Shortly after the hearing, the Town's Division of Environmental Protection completed an environmental assessment form (hereinafter EAF) determining that the proposed condemnation was an unlisted action and would not have a significant impact on the environment, thereby warranting issuance of a negative declaration pursuant to the State Environmental Quality Review Act (hereinafter SEQRA).

At a meeting on March 21, 2006, the Board voted to acquire title to the property and its development rights through the exercise of eminent domain, and adopted the Division of Environmental Protection's recommendation to issue a negative declaration. In approving the condemnation, the Board declared that the property was being acquired, among other things, to preserve open space and agricultural resources, protect and promote continuation of agriculture in the Town, ensure the continued sale of fresh, locally grown produce, and prevent conflicts between residential homeowners and adjacent farmers. The Board also found that preserving the property would "have a positive impact on the environment and surrounding community by ensuring the protection of scenic vistas and the rural character of the area, and helping to achieve the protection of the 500-acre Manorville Farm Protection Area, a high priority preservation target."

Aspen Creek thereafter commenced this proceeding to review the Town's determination, alleging, inter alia, that the Town had failed to comply with EDPL requirements that a property owner be given notice of the purpose of the condemnation and a reasonable opportunity to testify and present evidence at the hearing, and that application of the EDPL was unconstitutional as applied to Aspen Creek because it did not afford it an opportunity to cross examine the proponents of the condemnation. In addition, Aspen Creek claimed that the Board had failed to fulfill its obligations under SEQRA in issuing a negative declaration concluding that the condemnation would have no significant environmental impact. Aspen Creek further claimed that the Town's determination violated the EDPL because its true intent was to take the subject property to lease to private farmers.

The principal purpose of EDPL article 2 is to ensure that a governmental entity does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose (see EDPL 201; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417-418 [1986]; Matter of Woodfield Equities LLC v Incorporated Vil. of Patchogue, 28 AD3d 488, 489 [2006]). Although a party aggrieved by the condemnor's determination and findings may seek judicial review, the scope of that review is limited by EDPL 207 to: (1) whether the proceeding was in conformity with the Federal and State Constitutions, (2) whether the proposed acquisition is within the condemnor's statutory jurisdiction or authority, (3) whether the condemnor's determination and findings were in accordance with the procedures set forth in EDPL article 2 and SEQRA, and (4) whether a public use, benefit, or purpose will be served by the proposed acquisition. "If an adequate basis for a determination is shown and the objector cannot show that the determination was without foundation, the agency's determination should be confirmed" (Matter of Waldo's, Inc. v Village of Johnson City, 74 NY2d 718, 720 [1989] [internal quotation marks omitted]; see Matter of Butler v Onondaga County Legislature, 39 AD3d 1271, 1272 [2007]; Matter of Kaufmann's Carousel v City of Syracuse Indus. Dev. Agency, 301 AD2d 292, 300 [2002]). A property owner seeking to challenge a municipality's finding that a proposed condemnation will further a public use has the burden of establishing that the determination does not rationally relate to a conceivable public purpose (see Matter of Waldo's, Inc. v Village of Johnson City, 74 NY2d at 720; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 420-421).

Turning first to Aspen Creek's procedural challenges, we reject its contention that it did not receive adequate notice of the...