Opinion
Argued January 14, 2009.
Decided February 17, 2009.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from a judgment of that Court, entered December 4, 2007, in a proceeding pursuant to EDPL 207. The Appellate Division (1) confirmed a determination of respondent Town of Brookhaven, made after a public hearing, to acquire petitioner's property by condemnation, (2) denied the petition, and (3) dismissed the proceeding. The following question was certified by the Appellate Division: "Was the opinion and judgment of this court dated December 4, 2007, properly made?"
Matter of Aspen Cr. Estates, Ltd. v Town of Brookhaven, 47 AD3d 267, affirmed.
Ruskin Moscou Faltischek, P.C., Uniondale ( Mark S. Mulholland, Christine McInerney and Jonathan C. Sullivan of counsel), for appellant.
Harvey B. Besunder, P.C., Islandia ( Harvey B. Besunder and Zachary D. Dubey of counsel), for respondents.
Before: Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The judgment of the Appellate Division should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary.
Petitioner contends that the United States Supreme Court's decision in Kelo v New London ( 545 US 469), which dealt with takings for purposes of economic development, requires a preexisting farmland preservation plan to justify the taking of its property as a public use within the meaning of the Fifth Amendment ( see US Const Amend V ["nor shall private property be taken for public use, without just compensation"]). We need not, and do not, reach the issue whether petitioner's interpretation of Kelo is correct, since the challenged taking was constitutionally proper even assuming that a preexisting farmland preservation plan was necessary. Petitioner's property was taken pursuant to a legislatively-declared public policy in favor of farmland preservation and as part of the Town of Brookhaven's master plans endorsing farmland preservation. In furtherance of these plans, Town voters passed three bond acts providing $130 million to acquire development rights or fee interests in undeveloped land in the Town; among the areas specifically designated for preservation was the 500-acre tract of farmland, in which petitioner's parcel is located.
In short, the public benefits of the taking in this case were not incidental or pretextual in comparison with benefits to particular, favored private entities; petitioner's remaining arguments likewise lack merit. Finally, the parties have not argued, and we do not decide, whether the New York Constitution ( see NY Const., art I, § 7 [a]) imposes a more stringent standard for takings than does the Fifth Amendment as interpreted by Kelo.
In memorandum; Chief Judge LIPPMAN taking no part.
Judgment affirmed, etc.