Aspen Creek Estates, Ltd. v. Town of BrookhavenAspen Creek Estates, Ltd. v. Town of Brookhaven
Lead Opinion
OPINION OF THE COURT
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),
On January 24, 2006, the Town Board of the Town of Brook-haven (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
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.
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.,
Turning first to Aspen Creek’s procedural challenges, we reject its contention that it did not receive adequate notice of the public hearing, and that its president Anthony Kaywood was denied a reasonable opportunity to testify and present evidence. EDPL 202 (A), which requires the condemnor to state the purpose of the hearing in its notice, does not obligate it to describe every aspect of the project and its implementation (see Matter of Rocky Point Realty, LLC v Town of Brookhaven,
We also find no merit to Aspen Creek’s argument that the EDPL is unconstitutional as applied in this case because the statute does not give parties adversely affected by a proposed taking the right to an adversarial hearing at which government officials can be cross examined. The procedures outlined in the EDPL have been held to satisfy the due process requirements of the Federal and State Constitutions (see Matter of Waldo’s, Inc. v Village of Johnson City,
Furthermore, the petitioner’s contention that the Town failed to comply with the requirements of SEQRA in adopting its findings and determination is without merit. SEQRA requires that agencies “minimize or avoid adverse environmental effects” when considering proposed actions (ECL 8-0109 [1]; see 6 NYCRR part 617). In the EAF prepared in connection with the condemnation, no adverse environmental impacts were identified, and Aspen Creek has failed to assert any significant potential for environmental harm that might result from condemnation. Although Aspen Creek notes that the property is located in a Compatible Growth Area of the Central Pine Barrens Region, in considering the potential environmental impact of the proposed condemnation it cannot be overlooked that the Town’s purpose in acquiring the property is to continue the farming use that has been in place for generations. Thus, as
Turning next to the issue of whether the condemnation will serve a public purpose, we believe that it is clear, as our dissenting colleague concedes, that the Town’s stated reasons for acquiring the property—preserving farmland and maintaining open space and scenic vistas—are all legitimate public purposes. “What qualifies as a ‘public purpose’ or ‘public use’ is broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility, or advantage” (Matter of 49 WB, LLC v Village of Haverstraw,
Furthermore, the preservation of farmland is in keeping with the declared public policy of this State to “promote, foster, and encourage the agricultural industry” (Agriculture and Markets
Despite the fact that preservation of farmland undoubtedly provides a benefit to the public, Aspen Creek maintains that the condemnation of its property does not pass constitutional muster because the true purpose of the taking is to bestow a private benefit on certain individuals. In this regard, Aspen Creek asserts that the Town is trying to take its private property to allow a private individual other than the present owner to use it as a farm, and/or to block further development in order to increase the value and appeal of already existing homes. To the extent that Aspen Creek appears to be questioning the motives of members of the Board and the many citizens who spoke in favor of the proposed condemnation at the public hearing, its allegations find no factual support in the record and are insufficient to demonstrate bad faith (see Matter of 49 WB, LLC v Village of Haverstraw,
Recently, in Kelo v New London (
Aspen Creek relies upon Kelo to argue that the condemnation of its property either serves no public benefit, or is a pretext to benefit private individuals, because it was not part of a carefully considered development plan. However, in contrast to Kelo, this matter does not involve a proposed taking for economic development, which arguably might need to be justified by a formalized development plan. Rather, as the Town points out, the purpose of the condemnation of Aspen Creek’s property is the preservation of farmland, and the concomitant preservation of open space and scenic vistas. Neither Kelo, nor this Court’s recent decision in Matter of 49 WB, LLC v Village of Haverstraw, upon which our dissenting colleague also relies, requires that a proposed condemnation for the preservation of farmland be part of a comprehensive development plan.
In any event, while it does not appear from the record that the precise boundaries of the Manorville Farmland Protection Area have been formally defined by the Town, it is clear from the comments made by various speakers at the hearing that the desirability of preserving farmland in Manorville has indeed been recognized by civic associations and public officials. A plan prepared by the Manorville Taxpayers Association in 1993 set preservation of the remaining farms in the hamlet as a goal, and stated that the “area of preservation would include the 300+ agricultural farmland acres between the north side of South Street and the south side of the [Long Island] Expressway,” as well as farmlands bordering Sunrise Highway. Further
The fact that the Town entertained the possibility of allowing the three principals of Aspen Creek to build individual residences on the property in an effort to achieve a negotiated sale does not cast doubt on the “true motivation” of town officials. As the dissent recognizes, it is obvious that a voluntarily negotiated sale is preferable to the exercise of eminent domain, and the Town’s willingness to consider this very limited residential development on the property in an effort to achieve a compromise does not undercut the legitimacy of its farmland preservation goal. Although the dissent places great emphasis on the Town’s initial failure to match Aspen Creek’s $1.4 million offer for the property in 2003, and its subsequent willingness to increase its offer, it should be noted that the enactment of the 2004 bond act apparently placed a far greater amount of funds at the Town’s disposal. It is also significant to note that the increase in the Town’s offering price was based upon the appraised value of the property, and was not simply arbitrary.
Although the record is completely devoid of evidence pertaining to how the Town intends to use the property after the acquisition, the possibility that the Town may sell or lease the land to a farmer does not make the proposed condemnation a pretext for improperly conferring a private benefit. As noted, the land had been continuously farmed for more than a century before Aspen Creek purchased it for development purposes, with full knowledge that it had been targeted for preservation. Since allowing farming to continue on the property is fully consistent with the purpose of this condemnation, the fact that one or more individual farmers may benefit is merely incidental, and does not render the public benefit to be achieved by condemnation illusory. The record is also completely devoid of evidence to support Aspen Creek’s theory that the proposed condemnation was motivated by a desire to increase the prop
Finally, we conclude that Aspen Creek has failed to sustain its burden of establishing that the taking is excessive. “[I]t is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill [the public] purpose” (Matter of Rafferty v Town of Colonie,
Dissenting Opinion
Aspen Creek Estates, Ltd. (hereinafter Aspen Creek or the petitioner) owned about 39.15 acres (hereinafter the property) located north of South Street and east of Wading River Road in the Town of Brookhaven. Aspen Creek acquired the property in 2004 for a price of about $1.4 million. According to the “Notice to property owners,” the Town sought to acquire the property
“[t]o preserve open space and agricultural resources; to preserve prime agriculture in the Town which is an important component of the local economy; to ensure the retention of scenic vistas; to protect the bucolic and rural character of the subject property, adjoining properties, and the Manorville Farm Protection Area; to ensure the continued sale of fresh, locally-grown produce; to prevent conflicts between residential homeowners and adjacent farmers; and to help ensure the preservation of the Manorville Farm Protection Area, a high priority preservation target which contains the largest contiguous belt of working farmland left in Brookhaven Town.”
At the ensuing public hearing, testimony was heard as to the
In opposition, the petitioner presented proof which indicated that it had submitted no less than 30 development alternatives, all of which had been rejected by the Town. In one proposal, the petitioner submitted a plan which preserved two thirds of the property as farmland and confined development to the remaining one third of the property.
Based on this record, the Town issued a negative declaration under the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]) and directed the Town Attorney to acquire the property by condemnation. That decision allegedly was based on the Town’s perfunctory conclusion that the proposal was an unlisted action, did not involve any physical activity, and was not anticipated to have a significant impact on the environment, public health, or the character of the community and that the condemnation “will preserve and protect ecologically important land and farmland . . . and would thus have a beneficial effect on the environment.”
The instant petition to annul the negative declaration under SEQRA and the respondents’ determination condemning the property alleges that the Town acted in bad faith in condemning the property, doing so only to avoid having the Town Planning Board ordered to pass on subdivision of the property via an CPLR article 78 proceeding. The petition also alleges that the condemnation was effected in violation of the Constitutions of the United States and the State of New York, that the condemnation procedure was flawed, and that the condemnation was approved without proper environmental review. The respondents have denied the allegations of the petition.
For the reasons stated below, I believe the petition should be granted and the determination and findings of the Town of Brookhaven dated March 21, 2006, authorizing the condemnation of the subject parcel, should be annulled. At the outset, I concur with the majority’s conclusion that the petitioner’s procedural arguments are without merit. Similarly, I agree that
The guiding legal principles with respect to the exercise of the State’s power of eminent domain were recently revisited in Kelo v New London (
In both Kelo and 49 WB, LLC, the proposed taking was to advance economic development in an urbanized setting. In Kelo, the United States Supreme Court placed great weight on a record that clearly demonstrated that the taking was pursuant to a comprehensive master development plan. In 49 WB, LLC, this Court determined that, while the asserted purpose of the taking could be rationalized as advancing a recognized public policy (i.e. economic development), in actuality the taking was done primarily and illegally to advance the economic needs of a particular developer to satisfy that developer’s obligation to provide a threshold amount of affordable housing imposed by an earlier contract with the municipality. In the present case, the proposed taking occurs in a rural setting where the avowed public purpose is, depending on one’s point of view, the prevention of development of vacant land and/or the preservation of dwindling acres of farmland. Notwithstanding that this taking is the polar opposite confronting this Court in Matter of 49 WB, LLC v Village of Haverstraw, applying the same rationale used therein to this
I conclude that the rationale for the proposed taking is pretextual for the following reasons. First, while there are several references to a Manorville Farmland Protection Area in the record, no town ordinance or formalized plan for the alleged preservation of the area in which the property is located is set forth. Instead, the respondents rely on vague references to such designation as early as 1993 without being able to explain what the detailed plan was or is. The fact that the Town’s Open Space Committee approved the “protection” of the area in 2003 or that bond proceeds were used to acquire parcels of lands or development rights within such designated area is not proof of a coherent plan for preservation, or that the public acquisition of the entire tract (i.e. the property) and its use as farmland is essential to the furtherance of such an alleged plan.
Second, assuming that a valid plan existed for the acquisition of the property, the Town’s actions on this matter seem at great variance with what that plan purports to be. The Town allegedly endeavored to acquire the land for farmland preservation purposes in 2003, apparently while it was still utilized for agricultural purposes, yet failed to match Aspen Creek’s offer of $1.4 million. As the New York State Farm Bureau’s Director of Public Policy indicated at the hearing, acquisition of development rights of an existing farm via arms-length negotiations is preferable to condemnation of the property in toto and is the general norm for farmland preservation. That view was supported by the Long Island Builders Association.
Third, the willingness of the Town to increase its offer nearly 300% in less than two years, and the concomitant loss of millions of dollars for further acquisitions of property or development rights within the alleged targeted preservation area, raises questions as to the motivations of those involved as well as the propriety of the transactions (see e.g. State of New York v Grecco,
Fourth, that circumstance is further magnified by the fact that testimony was offered at the hearing that any residential development within the Manorville Farmland Protection Area was incompatible with any agricultural use. Yet, contrary to its alleged public purpose, the Town had indicated a willingness to allow residential development of some of the property for homes
Lastly, the fact that the property was taken while it was not in agricultural use is of no small moment. That circumstance clearly shows that the alleged “preservation” of the agricultural use of the parcel can no longer be accomplished without the rental of the property to a “farmer.” That “farmer,” whether the previous tenant, as asserted in petitioner’s brief (and the pool of potential farmers appears to be extremely limited), or another, would be the sole beneficiary of the economic utilization of the property. Thus, I conclude that the potential benefit to the public is so disproportionate and ephemeral when compared to the actual benefit conferred on the tenant that the proposed taking cannot be justified as an efficient advancement of the stated public policy.
Because I believe that close scrutiny of the rationale offered by the Town offers illusory benefits to the public and is a mere pretext for an impermissible taking (see Matter of 49 WB, LLC v Village of Haverstraw,
Crane, J.P. and Fisher, J., concur; Lifson, J., dissents and votes to grant the petition and annul the determination in a separate opinion.
Adjudged that the determination is confirmed, with costs, the petition is denied, and the proceeding is dismissed.