Richards v. Tompkins County

• Decision Date: 03 March 2011
• Parties: In the Matter of Louise G. RICHARDS et al., Petitioners, v. Tompkins COUNTY, Respondent.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 234
82 A.D.3d 1323

In the Matter of Louise G. RICHARDS et al., Petitioners,
v.
Tompkins COUNTY, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

March 3, 2011.

918 N.Y.S.2d 235

Mahlon R. Perkins, P.C., Dryden (Mahlon R. Perkins of counsel), for petitioners.

Jonathan Wood, County Attorney, Ithaca, for respondent.

Before: PETERS, J.P., LAHTINEN, McCARTHY and GARRY, JJ.

GARRY, J.

Proceeding initiated in this Court pursuant to EDPL 207 to review a determination of respondent's Legislature which condemned portions of petitioners' real property to reconstruct a public highway.

Petitioners own real property in Tompkins County located along County Road 109, also known as Hanshaw Road. Respondent determined that a portion of that road had become deteriorated and unsafe, so it developed a plan (hereinafter the project), through its consultants, to improve and resurface that portion and to construct a sidewalk. As the project required respondent to acquire property along the roadway, respondent published notice of a public hearing in the local newspaper ( see EDPL 202[A] ), mailed notice to 78 property owners ( see EDPL 202[C] ), and conducted a public hearing in March 2010. Respondent subsequently identified 15 additional property owners who would be affected by the project. In June 2010, these owners were served with written notice of the prior public hearing and other project-related information. At a special

918 N.Y.S.2d 236

meeting, respondent's Legislature considered the project and adopted a resolution approving it and condemning portions of petitioners' properties. Petitioners, five of whom were among the owners who received delayed notice, then commenced this special proceeding seeking review of the determination pursuant to EDPL 207.

The statute limits this Court's scope of review "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 Broadway Schenectady Entertainment v. County of Schenectady, 288 A.D.2d 672, 672-673, 732 N.Y.S.2d 703 [2001]; accord. Matter of Davis Holding Co., LLC v. Village of Margaretville, 55 A.D.3d 1101, 1102, 865 N.Y.S.2d 736 [2008]; see EDPL 207[C] ). Petitioners contend that the determination of respondent's Legislature was not rendered in accord with statutory procedures because timely notice of the public hearing was not served upon all affected "assessment record billing owner[s]" (EDPL 202[C][1]; see EDPL 103[B-1]; 202[C] [2] ).

Failure to publish notice of a public hearing in the manner required by EDPL 202(A) is a jurisdictional defect that invalidates subsequent eminent domain proceedings even when it is inadvertent ( see Matter of New Life Fellowship v. City of Cortland, 175 A.D.2d 343, 344, 572 N.Y.S.2d 421 [1991] ). In contrast, the "[i]nadvertent failure to notify a person or persons entitled to notice under [EDPL 202]" is not jurisdictional and does not affect the validity of a condemnor's title (EDPL 202[D]; see Matter of Erie Blvd. Hydropower, L.P. v. Stuyvesant Falls Hydro Corp., 30 A.D.3d 641, 643-644, 816 N.Y.S.2d 224 [2006], appeal dismissed 7 N.Y.3d 843, 823 N.Y.S.2d 771, 857 N.E.2d 66 [2006], lv. denied 7 N.Y.3d 718, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006]; Matter of New Life Fellowship v....