Posted by: Patricia Salkin | December 19, 2007

NY Appellate Court Holds that Eminent Domain May Be Used to Preserve Farmland

The “Manorville Farmland Protection Area” within the Town of Brookhaven is an approximately 500-acre working farm belt that is a high priority preservation target for the Town.  The Town had previously acquired development rights to four farms in the area, preserving approximately 112 acres of farmland. The Appellate Division, Second Department upheld the Town’s decision to exercise its power of eminent domain to condemn property in the protection area for the purpose of preserving its use as farmland because such action serves a legitimate public purpose.  The Town Board said that the property was being acquired to, among other things, “preserve open space and agricultural resources, protect and promote continuation of agriculture in the Town, ensure the continued sale of fresh, locally grown produce, prevent conflicts between residential homeowners and adjacent farmers.”  Furthermore, the Board found that the condemnation would help to ensure the protection of scenic vistas and the rural character of the area. 

Prior to initiating the condemnation action, the Town sought to acquire the property through a negotiated sale. The Town’s Open Space Environmental Bond Act Committee had authorized purchase of the land is 2003, but the current owners (Aspen Creek) were in negotiation to purchase it as well and they outbid the Town, purchasing the property in 2004 for $1.4 million. Thereafter, the Town attempted to purchase the development  rights to the property from Aspen Creek, and after a series of offers, the Town increased its bid to $4.004 million, which was roughly half a million dollars more than the highest appraisal, and also offered to let Aspen build three houses on the property.  After this offer was rejected, the Town began the process of acquiring the property and development rights through condemnation.   

Among other things, Aspen Creek argued that the Town’s condemnation violated the State’s Eminent Domain Procedure Law (EDPL) because it did not serve a public purpose and because the Town’s true intent was to take the subject property and lease it to private farmers.  

With respect to the issue of whether the condemnation serves a public purpose, the Court concluded that the Town’s stated reasons – preserving farmland, maintaining open space and scenic vistas – are all legitimate public purposes. The Court noted that the preservation of farmland “confers a benefit upon the public, since it enables residents of the Town to enjoy locally grown produce and scenic views.” The Court also found that the preservation of farmland is consistent with the public policy of the State to “promote, foster, and encourage the agricultural industry,” (citing to N.Y. Ag. & Mkts. L. sec. 3) and “preservation of open space and enhancement of natural resources.” (citing to N.Y. Gen. Mun. L. sec. 247[1]). Lastly, the Court noted that the Town residents believe that protection of open spaces and natural resources is important because they overwhelmingly supported a $20 million bond act of such purpose in 2002 and a bond act of up to $100 million in 2004 for preservation of open space, farmland and wildlife habitats.  

As to Aspen’s claim that the condemnation is unconstitutional  because the true purpose is bestow a private benefit on certain individuals (e.g., farmers), the Court found that this allegation had no factual support in the record and is insufficient to demonstrate bad faith. The Court said that “the mere fact that the condemnation will provide incidental benefits to private individuals does not invalidate the condemnor’s determination as long as the public purpose is dominant.” Further, the Court maintained that since the land had been continuously farmed for more than a century prior to the Aspen purchase, “allowing farming to continue on the property is fully consistent with the purpose of the condemnation, the fact that one or more individuals may benefit is merely incidental, and does not render the public benefit to be achieved by condemnation illusory.”  

The Court said that a comprehensive development plan was not required pursuant to Kelo v. City of New London, 545 U.S. 469 (2005), because that condemnation was based upon the public purpose of economic development, and here the public purpose was farmland and open space protection.  

In the Matter of Aspen Creek Estates Ltd. V Town of Brookhaven, 2007 WL 4246603 (N.Y.A.D. 2nd Dept. 12/4/2007). 

The opinion can also be accessed at:  

The case is also discussed on Tom Swartz’s New York Appellate Blog at:


  1. The use of conservation or preservation easements has been on the rise in the past two decades. In fact, the number of private individuals currently employing conservation easements to preserve land has doubled since 1988. Some have even forecasted that in the next century, the majority of land conservation will take place privately through easements.

    Ironically, one of the ways in which conservation easements are vulnerable to termination, in whole or part is to eminent domain. This case raises the interesting question as to whether the above prediction is wrong and if eminent domain will begin to play a more positive role with respect to land conservation (via municipalities) in NY State.

    The Court’s holding that condemnation for the purpose of preserving open space does not need to be done pursuant to a comprehensive development plan would appear to lighten the burden of municipalities attempting to condemn a piece of property for such a purpose.

    However, it is likely that the cost of land acquisition through eminent domain will be a setback to its widespread use. Just as private land trusts for cost reasons prefer to acquire conservation easements to land instead of outright title. The costliness of eminent domain acquisitions is likely to act as a deterrent to local governments looking to make land acquisitions for public purposes via eminent domain.

    It is interesting to note that in this case the municipality planned to lease out the land to farmers. The costliness of this land might have been more daunting to the municipality, thus making eminent domain a less attractive option, if it did not already have an economic function in mind to aid in recouping its carrying costs. Thus, financially this might not be as attractive an option in instances where the conservation aim is habitat preservation or some other use, which would be contrary to other activities that could provide an economic offset.

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