The following case summary is provided by the New York Court of Appeals for oral arguments set for Wednesday, January 14, 2009:

 

Aspen Creek Estates is challenging the Town of Brookhaven’s proposed condemnation of 39 acres of farmland that Aspen Creek had purchased for residential development.  Among the Town’s declared reasons for acquiring the property are to “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,” a 500-acre area of working farms that the Town has designated for preservation.  Aspen Creek calls the Town’s action “a flagrant land grab to deprive an unfavored citizen of its land for the benefit of another private citizen” and argues the taking is unconstitutional under the U.S. Supreme Court’s 2005 ruling in Kelo v New London (545 US 469).

 

The Town had sought to purchase development rights from the property’s former owners in 2003, but Aspen Creek outbid the Town and purchased the parcel for $1.4 million in March 2004.  The Town began negotiating with Aspen Creek for the development rights, offering $3.52 million in 2005 and raising its bid to $4.004 million in January 2006, while also offering to allow Aspen Creek’s three partners to build houses for themselves on the property.  When negotiation failed, the Town began eminent domain proceedings and approved the condemnation in March 2006.  Aspen Creek brought this proceeding to challenge the determination on various grounds.

 

The Appellate Division, Second Department dismissed the proceeding in a 3-1 decision, rejecting the owner’s claim that the taking is pretextual.  The majority said Kelo does not require that a condemnation for farmland preservation, as opposed to economic development, be part of a comprehensive plan, though it is clear that local officials had recognized the desirability of preserving the Manorville farmland for more than a decade.  It said the recent expenditure of more than $8 million by the Town and Suffolk County for the rights to four other Manorville farms evidenced their “genuine desire to preserve the land lying within this working farm belt.”  The court said, “[T]he 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 dissenter argued that the rationale for the taking was pretextual and, therefore, unconstitutional.  He said there was “no town ordinance or formalized plan for the alleged preservation of the area.”  He said the Town’s failure to match Aspen Creek’s $1.4 million offer in 2003 and “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 … within the alleged targeted preservation area, raises questions as to the motivations of those involved as well as the propriety of the transactions….”  “Lastly,” he said, “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’ … 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.”

 

A summary of the opinion below, with a link to the decision is available here.

 

Matter of Aspen Creek Estates, Ltd. v Town of Brookhaven

 

An article on eminent domain post Kelo in New York, New Jersey and Pennsylvania is available at: http://papers.ssrn.com/abstract=1028893