Following a condemnation of a portion of the petitioners’ property by the Town Board to create easements to enable the placement of underground electricity lines for a wind farm project, the petitioners challenged the action alleging that the Town Supervisor, who cast the deciding vote on both the resolution commencing the condemnation proceedings and the resolution approving the condemnation had a conflict of interest that required recusal. The Court, however, said that since the appeal was made pursuant to the State Eminent Domain Procedure Law (Section 207(c )) (EDPL) their review was “limited to whether the proceeding was in conformity with constitutional requirements, whether the proposed acquisition is within the statutory jurisdiction or authority of the condemnor, whether the condemnor’s determination and findings were made in accordance with the procedures set forth in EDPL article 2 and ECL article 8, and whether a proposed [public] use, benefit or purpose will be serviced by the acquisition.” (citing to Matter of Pfohl v. Village of Sylvan Beach, 26 A.D. 3d 820). The Court determined that conflicts of interest allegations should be raised in an proceeding pursuant to CPLR Article 78, and that the EDPL is not the proper procedural vehicle to resolve that allegation.
The Court also concluded that the Petitioners failed to meet their burden of establishing that the Town Board’s determination was “without foundation and baseless,” since the Board findings stated that the condemnation for the purpose of creating easements would, “create jobs, provide infrastructure, and possibly stimulate new private sector economic development.” These, said the Court, demonstrate the requisite public use or public benefit.
Dudley v. Town Board of Prattsburgh, 2009 WL 279898 (N.Y.A.D. 4 Dept. 2/6/2009).
The opinion can be accessed at:
http://www.nycourts.gov/ad4/Court/Decisions/2009/02-06-09/PDF/1708.pdf
Special thanks to Dan Ruzow of Whiteman, Osterman & Hanna for altering me to this case.
For discussion on ethics in wind farm development see:
http://papers.ssrn.com/abstract=1315543
For more general issues in land use ethics see:
