Matter of Serdarevic v. Town of Goshen
| Decision Date | 03 April 2007 |
| Docket Number | 2005-11897. |
| Citation | 834 N.Y.S.2d 233,2007 NY Slip Op 02945,39 A.D.3d 552 |
| Parties | In the Matter of BOSILJKA SERDAREVIC et al., Petitioners, v. TOWN OF GOSHEN et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Adjudged that the petition is granted, on the law, with costs, the determination is annulled, and the matter is remitted to the Town Board of the Town of Goshen for the preparation and circulation of a draft environmental impact statement in connection with the proposed condemnation and acquisition of the real property for the purpose of a roadway drainage project.
After a public hearing, the Town Board of the Town of Goshen (hereinafter the Town Board) adopted a resolution authorizing the Town to condemn portions of three parcels of land owned by the petitioners abutting Reservoir Road, for the purpose of constructing a drainage project. The project involves, inter alia, draining surface water from the paved portion of the roadway into a nearby Town reservoir, and excavation of drainage ditches on the petitioner's property alongside the roadway.
Contrary to the petitioners' contention, the notices for the public hearing sufficiently described the location of the proposed project in compliance with EDPL 202 (A) (see Matter of Kaufmann's Carousel v City of Syracuse Indus. Dev. Agency, 301 AD2d 292, 302 [2002]). The petitioners' claim that notice should have been given to the Department of Agriculture and Markets was not raised during the administrative proceedings, and therefore, is not properly before us for judicial review (see generally Matter of Dormitory Auth. of State of N.Y. [Davis], 223 AD2d 431 [1996]). In any event, the project will not impact farming activities and, therefore, the Town, the Town Board, and Town Supervisor Honey Bernstein (hereinafter collectively the Town) did not violate Agriculture and Markets Law § 305 (see Agriculture and Markets Law § 305 [4]).
On an appeal in a related matter, however, we held that the project was an "action" within the meaning of the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]), and, as such, had to be undertaken in accordance with that law (see Town of Goshen v Serdarevic, 17 AD3d 576 [2005]). We also held that the environmental assessment form upon which the Town relied failed to evaluate the impact of the proposed drainage improvements on both the petitioners' property and the Town reservoir into which the surface runoff from the roadway was to be deposited by the improved drainage system. We thus concluded that the Town failed...
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