Posted by: Patricia Salkin | July 7, 2019

NY Appellate Court Annuls Easement Condemnation Due to Insufficient Review of Adverse Environmental Impacts

This post was authored by Amy Lavine, Esq.

A New York appellate court held in June that the condemnation of an sewer easement was invalid under the state Eminent Domain Procedure Law (EDPL). As the court explained, the town failed to take a “hard look” at the project’s wildlife impacts and surface water impacts in deciding to adopt a negative declaration, and its failure to comply with the State Environmental Quality Review Act (SEQRA) also constituted a violation of the EDPL’s procedural requirements.

The town in this case had been informed by the state Department of Environmental Conservation (DEC) that several endangered and threatened species might be present on the project site, including the northern long-eared bat, the imperial moth, and the northern bog violet, and that the area also contained inland salt marsh habitat. The town nevertheless declined to follow DEC’s recommendation that it should conduct a survey to determine whether any populations of these species were present and consider modifications to minimize the project’s impacts on them. Instead, the town assumed that the species were present and included them on the environmental assessment form it prepared for the easement condemnation. The town explained on this form that the impacts on bats would be limited because it planned to conduct land clearance activities during cold weather months when the bats would be hibernating. No similar explanations were provided as to the possible impacts on the imperial moth, the northern bog violet, or to the inland salt marsh habitat, however. As to these species, the town merely recited the “bare conclusion” that the sewer line project would have no significant environmental impact. As the court concluded, this simply wasn’t enough to fulfill the town’s duty under SEQRA to take a “hard look” at the project’s impacts on wildlife and provide a “reasoned elaboration” for its determination.

The town also failed to sufficiently address adverse impacts to surface water, and particularly to stream corridors. “By all appearances,” the court noted, “respondent merely set forth general practices for avoiding significant adverse impacts… without providing a reasoned elaboration that, by implementing such practices in this particular project, respondent would successfully avoid any significant adverse impacts on surface water.”

The court rejected several other challenges to the town’s negative declaration, including claims based on the project’s impacts to historic and archaeological resources, noise and odors, and its consistency with community character. Because the town’s SEQRA determinations with respect to wildlife and surface water were arbitrary and capricious, however, the town’s action to condemn an easement over the petitioner’s property had to be annulled under the EDPL, which requires the condemnor’s determination and findings to be made in accordance with the state’s Environmental Conservation Law.

Matter of Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, 2019 NY Slip Op 04621 (4th Dept. 6/7/19)

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