39 Misc. 2d 716 | N.Y. Sup. Ct. | 1963
In this proceeding pursuant to article 78 of the Civil Practice Act the respondents have moved to dismiss the petition on the grounds that the court does not have jurisdiction of the subject matter, and that the petition does not state facts sufficient to entitle the petitioners to any relief. In my opinion, although the question is not entirely free from doubt, the motion must be granted on the latter ground.
Petitioners seek in this proceeding to review a determination made by the respondent McMorran, as New York State Superintendent of Public Works, acting under legislative authority pursuant to section 85 of the Highway Law and the Federal Aid Highway Acts (U. S. 'Code, tit. 23, § 101 ei seq.), and the rules and regulations promulgated thereunder (Code of Fed. Beg., tit. 23, ch. 1, part 1). By the determination complained of the Superintendent selected and designated a route referred to in the petition as the “ Chestnut Bidge Boute ” as the site of a portion of the Federal Aid Highway System, designated as “Interstate Highway 87”, and requested approval by the Federal Highway Administrator of the route selected. It is asserted in the petition, on the basis of facts which lend support to petitioners’ position that in making the selection of this route the Superintendent exceeded his authority, and failed to exercise his duties in the manner required by law, and that as a result there will be a taking of property without due process of law, in contravention of the Fourteenth Amendment of the Constitution of the United States and section 6 of article I of the Constitution of the State of New York. Petitioners have not alleged, however, that any of them is the owner of property which lies within the boundaries of the route selected, or that the acts of the Commissioner will result in the taking of any of their property or its diminution in value, or that any special personal right of any petitioner has been affected by the action complained of. It is alleged that the making of the determination will, if implemented, adversely affect the economic, cultural, aesthetic and conservation interests of the area traversed, and that it will cause irreparable injury to the petitioners, but the petition does not allege that any petitioner has been or will be deprived of any enjoyment or profit which he would otherwise derive from his property.
It is alleged that the route selected is in direct variance with long-standing planning proposals and recommendations, and that the route is in many respects inferior to an alternate route favored by petitioners and many State and local governmental bodies, and that it will do irreparable damage to certain bird sanctuaries located in the county. Facts are also stated in support of petitioners’ contention that the Superintendent did not act in accordance with law, or with the standards provided by the Legislature.
The relief sought is an order annulling and setting aside the determination, and the submission of the route for Federal approval, and restraining respondents from constructing the highway, and from implementing any agreement with the United States Bureau of Public Roads for the construction of the route. The selection of such a route by the Superintendent does not, ipso facto, appropriate any private property for public use. If property is to be appropriated, however, for use as part of the Federal Aid Highway System, the routes for the highways must be selected by the State Highway Department, and approved by the Secretary of Commerce, who acts in such matters through the Federal Highway Administrator (U. S. Code, tit. 23, § 103; 23 Code of Fed. Reg., §§1.3, 1.6, 1.37) and on approval by the Administrator of the selection or designation of Systems of Federal Aid Highways by the State Highway Department such highways become portions of the Federal Aid Highway Systems. (23 Code of Fed. Reg., § 1.6.) Actual appropriation by the State (Highway Law, § 29) or by the United States (U. S. Code, tit. 23, § 107) follows approval of plans, specifications and estimates. The selection of the routes by the Superintendent and the transmission of the selection for Federal approval are essential steps, which must be taken as part of the procedure necessary in the exercise by the State of the power of eminent domain, which the State has delegated to the Superintendent (Highway Law, §§ 29, 85) in compliance with the provisions of the Federal Aid Highway statutes and regulations. Such being the case, although the acts of the Superintendent are not immune from judicial review, if he has acted in excess of his authority, or has not proceeded in the manner authorized
It is not asserted that petitioners have any interest in the matter which is not common to all residents of the county or to all owners of property in the portion of the county through which the proposed highway will pass. As private persons, petitioners apparently seek to act as champions of the community in requiring the Superintendent to defend his official act. However commendable that purpose may be, it does not provide petitioners with a cause of action, nor may the constitutional questions which they present be decided in the absence of special injury or damage to their personal or property rights