Hargett v. Town of Ticonderoga

Dec 28, 2006
Versions:35 A.D.3d 1122
826 N.Y.S.2d 819
745 [2001], lv denied 98 NY2d 606 [2002]; Matter of Broadway Schenectady Entertainment v County of Schenectady, 288 AD2d 672, 672-673 [2001]). Contrary to petitioner’s argument, a superintendent of highways has the power, upon determining that public necessity demands a new or additional highway, to: “apply to the town board of his [or her] town for permission to institute a proceeding to acquire so much land as may be necessary to lay out such new or additional highway, and when such consent shall have been given by the town board of such town, the said town superintendent of highways may make application pursuant to the eminent domain procedure law to supreme court ... to obtain an order for permission to file an acquisition map of the property to be acquired” (Highway Law § 173). The granting of “such consent” by the town board empowers the superintendent of highways to undertake every step in the eminent domain process, from “institut[ing] a proceeding” (Highway Law § 173; see EDPL 201 et seq.), to “mak[ing] [an] application” (Highway Law § 173; see EDPL 402 [B]) to “fil[ing] an acquisition map” (Highway Law § 173; see EDPL 402 [B] [5]).

Notwithstanding the foregoing, we do find merit to petitioner’s argument that the Superintendent exceeded his authority in condemning petitioner’s property for purposes not related to his position. As above noted, the proposed acquisition must be “within the condemnor’s statutory jurisdiction or authority” (EDPL 207 [C]; see Matter of Waldo’s, Inc. v Village of Johnson City, supra at 720). A town highway superintendent’s jurisdiction and authority are defined by statute (see generally Highway Law § 140 et seq.). Every enumerated duty or power found in the statute relates to the creation, care or maintenance of the town’s roads, bridges, sidewalks or other related appurtenances. A superintendent of highways “[does] not have the power to represent or affect the town otherwise than in the manner provided by statute” (Flynn v Hurd, 118 NY 19, 27 [1889]). As we find no statutory authority for the Superintendent to determine that a highway for recreational users would enhance the economy of the town, we annul the determination and grant this petition. We do not address the balance of petitioner’s arguments as they are rendered academic by this decision.

Peters, J.P, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is annulled, with costs, and petition granted.