Byrne v. New York State Office of Parks, Recreation & Historic Preservation

Apr 12, 1984
Versions:101 A.D.2d 701
476 N.Y.S.2d 42
1984 N.Y. App. Div. LEXIS 18260

Determination unanimously confirmed and petition dismissed, without costs. Memorandum: The record establishes that the proposed acquisition of certain real property in Oswego County for development of a safe boat refuge at Port Ontario will serve a “public use, benefit or purpose” (EDPL 204, subd [B], par *702[1]). While it is true that Federal funding has not yet been appropriated for the project, which is to be funded jointly through Federal and State revenues, the evidence established that the project is in its advanced stages; that the design for the project by the Corps of Engineers has been approved; that environmental impact statements have been filed; and that State funds have been committed for property acquisition and construction. Further, the Deputy Parks Commissioner testified that the department was not in a position to seek Federal funds for the project until procedures for acquiring the necessary land were completed (EDPL art 2). 11 There is no merit to petitioners’ claim that acquisition of the property will not serve a public purpose. Private property can, of course, be taken by eminent domain only for a public use (NY Const, art I, § 7 \ Fifth Ave. Coach Lines v City of New York, 11 NY2d 342, 347). That term is broadly defined to encompass any use which contributes to the health, safety, general welfare, convenience or prosperity of the community (Matter of New York City Housing Auth. v Muller, 270 NY 333, 340-343; Matter of Long Sault Dev. Co. v Kennedy, 212 NY 1, 8), including the improvement of navigation (Little Falls Fibre Co. v Ford & Son, 127 Mise 834, 839, mod on other grounds 223 App Div 559, affti 249 NY 495, affd 280 US 369). The finding that the proposed taking will serve a “public use, benefit or purpose” is amply supported by the testimony that construction of the proposed safe harbor is of vital necessity to the safety of boaters in the Port Ontario area and that the influx of Federal funds for the project would have a positive impact on the economy. (EDPL 207) Present •— Dillon, P. J., Denman, Boomer, Green and Schnepp, JJ.