In the Matter of CHARLES F. JOHNSON et al., Petitioners,
TOWN OF CAROGA et al., Respondents.
Calendar Date: April 24, 2018
Law Firm, PLLC, Palatine Bridge (Kenneth L. Ayers of
counsel), for petitioners.
& Ferlazzo, PC, Albany (Christopher P. Langlois of
counsel), for respondents.
Before: Lynch, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
initiated in this Court pursuant to EDPL 207 to review a
determination of respondent Town of Caroga condemning a
portion of petitioners' real property for the purpose of
providing expanded access to a recreational trail.
Town of Caroga seeks to acquire by eminent domain a roughly
15-foot-wide strip of land (hereinafter the strip) that runs
from the western terminus of Morey Road to a recreational
trail located on state land in the Town of Caroga, Fulton
County. Nine parcels of real property, held by seven
different property owners, abut the strip to the north and
south. Many of these property owners have deeded portions of
their property to the Town while others, including the estate
of Suzanne Walsh and petitioners Charles Johnson and Helen
Johnson, have declined to do so. Following a public hearing
in October 2016, the Town Board of the Town of Caroga
approved the condemnation of the strip for the purpose of
expanding access from Morey Road to the recreational trail.
However, when faced with a challenge in this Court to its
compliance with the statutory notice requirements, the Town
Board rescinded its determination and findings with regard to
the proposed condemnation (Matter of Johnson v Town of
Caroga, 157 A.D.3d 1025');">157 A.D.3d 1025 ). That same day, the Town
Board issued resolutions recommencing the eminent domain
process, published notice of a public hearing in its local
newspaper and mailed notice thereof to the Johnsons and other
similarly situated property owners. Following that public
hearing, the Town Board adopted a determination and findings
that the acquisition would, among other things, benefit the
public and have no adverse effect on the environment.
Petitioners now seek to annul the determination and findings
of the Town Board.
context of this EDPL 207 proceeding, "this Court's
scope of review is limited 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
Davis Holding Co., LLC v Village of M
argaretville, 55 A.D.3d 1101, 1102  [internal
quotation marks and citations omitted]; see EDPL 207
[C]; Matter of City of New York [Grand Lafayette Props.
LLC], 6 N.Y.3d 540, 546 ). Petitioners, as the
parties challenging the condemnation, bear the "burden
of establishing that the determination was without foundation
and baseless, or that it was violative of any of the
applicable statutory criteria" (Matter of Broadway
Schenectady Entertainment v County of Schenectady, 288
A.D.2d 672, 673 ; see Matter of Waldo's, Inc. v
Village of Johnson City, 74 N.Y.2d 718, 720 ).
This they failed to do.
contention that the Town lacked the authority to exercise the
power of eminent domain in this instance is without merit.
The Town, through the Town Board, is statutorily authorized
to acquire by eminent domain any land required for any public
purpose (see Town Law § 64; EDPL 207 [C] ).
While a town superintendent of highways is empowered to
initiate a condemnation proceeding to "acquire so much
land as may be necessary to lay out such new or additional
highway" when consent to do so is granted by a town
board (Highway Law § 173; see Matter of Hargett v
Town of Ticonderoga, 35 A.D.3d 1122, 1124 , lv
denied 8 N.Y.3d 810');">8 N.Y.3d 810 ), the strip is not to be
improved, converted to or otherwise used as a public highway.
To the contrary, the record confirms that the strip will
continue in its existing, preacquisition condition and that
its historical use as an access point to the recreational
trail located on the adjoining state land will remain
unchanged . Thus, the proposed acquisition falls
comfortably within the broad statutory authority granted to
unavailing is petitioners' contention that the
condemnation lacks the requisite public purpose. "A
public purpose is broadly defined and encompasses any use
which contributes to the health, safety, general welfare,
convenience or prosperity of the community" (Matter
of 225 Front St., Ltd. v City of Binghamton, 61 A.D.3d
1155, 1157  [internal quotation marks and citations
omitted]; see Matter of Goldstein v New York State Urban
Dev. Corp., 64 A.D.3d 168, 181 , affd 13
N.Y.3d 511 ). The record establishes that the proposed
acquisition of the strip would preserve and ensure continued
public access to trails on state lands for snowmobiling,
hiking and other recreational activities by Town residents
and nonresident visitors, thereby enhancing tourism and
providing an economic benefit. The Town further found in its
determination and findings of fact that the strip provided
the most direct, feasible and safe means of accessing such
recreational trails and that the proposed condemnation would
serve to protect the abutting property owners, such as
petitioners, from any claims of liability by persons who
travel upon it. Inasmuch as the exercise of the eminent
domain power here is "rationally related to a
conceivable public purpose" (Matter of Jackson v New
York State Urban Dev. Corp., 67 N.Y.2d 400, 425 
[internal quotation marks and citation omitted]), the taking
was constitutionally sound (see Matter of City of
Plattsburgh v Weed, 96 A.D.3d 1117, 1118 ;
Matter of Rocky Point Realty, LLC v Town of
Brookhaven, 36 A.D.3d 708, 709 ; Matter of
Pfohl v Village of Sylvan Beach, 26 A.D.3d 820, 821
; Matter of Vaccaro v Jorling, 151 A.D.2d 34,
39 , appeal dismissed 75 N.Y.2d 946');">75 N.Y.2d 946 ,
lvs denied 76 N.Y.2d 704, 708 , cert
denied 498 U.S. 963');">498 U.S. 963 ).
addressing whether the Town Board's determinations and
findings were made in accordance with the procedures
delineated in ECL article 8 (see EDPL 207 [C] ;
Matter of Adirondack Historical Assn. v Village of Lake
Placid/Lake Placid Vil., Inc., ___ A.D.3d ___, ___, 2018
NY Slip Op 03194, *2 ; Matter of Stefanis v Village
of Fleischmanns, 43 A.D.3d 581, 583 ), we find
that the record fully supports the State Environmental
Quality Review Act determination rendered. The Town Board, as
the lead agency, classified the project as an unlisted action
(see 6 NYCRR 617.4), determined that the action
would not have an adverse effect on the environment and
rendered a negative declaration. In so doing, the Town Board
"identified the relevant areas of environmental concern,
took a hard look at them, and made a reasoned elaboration of
the basis for its determination" (Matter of Chinese
Staff & Workers' Assn. v Burden, 19 N.Y.3d 922,
924  [internal quotation marks and citation omitted];
see Matter of Riverkeeper, Inc. v New York State Dept. of
Envtl. Conservation, 152 A.D.3d 1016, 1021 ).
Given the factors considered by the Town Board, as well as
the fact that the strip was already being used as an access
way to the recreational trails and that its physical
condition will remain unchanged, we are not persuaded that
the Town Board's determination to render a negative
declaration was inadequate or otherwise in error (see
Matter of War Assoc., LLC v Town of Mamakating, 157
A.D.3d 1040, 1045 ; Matter of Davis Holding Co.,
LLC v Village of Margaretville, 55 A.D.3d at 1103-1104;
Matter of Stefanis v Village of Fleischmanns, 43
A.D.3d at 583; Matter of Rafferty v Town of Colonie,
300 A.D.2d 719, 722-723 ). Petitioners' related
claim that the Town Board impermissibly segmented its
consideration of environmental impacts by limiting its review
to the acquisition of the strip, without considering
activities associated with the future maintenance thereof, is
wholly belied by the record.
remaining contentions have been considered and found to be
J.P., Devine, Aarons and Pritzker, JJ., concur.
that the determination is confirmed, without costs, ...