Posted by: Patricia Salkin | June 6, 2009

Condemnation to Gain Access to Stream and Bulkhead Structure is a Valid Public Purpose But Taking of Fee Interest Was Excessive

Following failed attempts to negotiate a right of access with the Petitioner, the Village decided to condemn a 1.738 portion of Petitioner’s property to gain access to a bulkhead structure located at the intersection of a river and stream which flows through the Village. The Village found that the bulkhead had been damaged over the years and that access thereto was necessary to properly maintain and preserve the structure for water supply, fire control and alleviating the likelihood of flooding. Furthermore, the Village found that the proposed condemnation would allow for free access to the bulkhead and to the stream for necessary maintenance and repair for the future. The Court determined that the Village articulated valid public purposes in support of the proposed condemnation.

The Court agreed with the Petitioner, however, that the Village’s desire to take the parcel in fee was excessive. Here, the Court concluded that only an easement was required to accomplish the desired public purposes.

Davis Holding Company, LLC v. Village of Margaretville, 55 A.D.3d 1101, 865 N.Y.S.2d 736 (3rd Dept. 10/28/2008)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/504497.pdf


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