Summary
recognizing that exemption challenges cannot be asserted under Article 2
Summary of this case from Brody v. Village of Port ChesterOpinion
November 15, 1984
Appeal from the Supreme Court, Greene County (Kahn, J.).
Petitioner commenced this proceeding to obtain a permanent easement across the lands of respondents for the expansion and improvement of its sanitary sewer system. Following a public hearing, petitioner issued a resolution on May 10, 1983 authorizing the establishment of a sewer improvement area (see Town Law, § 209-q). It appears that all necessary rights of way to complete the project had been acquired, except for an easement over the property of respondent Mabel D. Phillips. By verified petition dated June 14, 1983, petitioner applied for an order authorizing the filing of an acquisition map and directing an immediate vesting of title to the easement. As a basis for exemption from the requirements under EDPL article 2, petitioner stated that the acquisition was de minimis in nature, as determined in the May 10, 1983 resolution (EDPL 206, subd [D]). Respondent Mabel D. Phillips opposed the requested relief in her answer. Special Term granted the petition and held that petitioner was exempt from the provisions of EDPL article 2. The instant appeal by respondent Phillips ensued, and we affirm.
Respondent Phillips died prior to oral argument of this appeal. The executrices of her estate have been substituted as parties for her in this proceeding.
Preliminarily, it is important to note that Special Term was authorized to pass upon the exemption issue. By section 6 of chapter 356 of the Laws of 1982, the Legislature amended EDPL 207 by substituting the phrase "made pursuant to section two hundred four" in place of "made pursuant to this article" in subdivision (A), and by deleting the reference to exemptions in subdivision (C). The purpose of this amendment was to correct a technical deficiency in EDPL 207 pertaining to judicial review of a condemnor's exemption claim. As noted in the concurring opinion in Matter of Aswad v City School Dist. ( 74 A.D.2d 972, 974 [Kane, J., concurring]), EDPL 207 (subd [A]) provided for judicial review of a condemnor's determination after a public hearing, but failed to provide for review of an exemption determination, leaving unclear when the exemption passed beyond judicial scrutiny (see, also, County of Monroe v Morgan, 83 A.D.2d 777). This problem was exacerbated by the fact that EDPL 207 (subd [B]) and 208 provided that a challenge to the validity of an exemption was within the exclusive jurisdiction of the Appellate Division. In contrast, the effect of the new legislation is to limit the broad jurisdictional mandate of EDPL 208 by, inter alia, removing exemption challenges from the exclusive jurisdiction of the Appellate Division (see Matter of City of Schenectady v Flacke, 100 A.D.2d 349, 352). It follows that a contestant need not commence a proceeding for judicial review under EDPL 207, but may properly challenge the exemption, as here, by way of an answer in an acquisition proceeding. Having thus concluded, we agree with Special Term that the condemnor could reasonably conclude that the acquisition was de minimis and, therefore, properly exempt (EDPL 206, subd [D]; see Matter of City of Yonkers v Hvizd, 93 A.D.2d 887, app dsmd 60 N.Y.2d 821; Matter of American Tel. Tel. Co. v Salesian Soc., 77 A.D.2d 706, app dsmd 51 N.Y.2d 877, mot for lv to app den. 52 N.Y.2d 701; Matter of Incorporated Vil. of Malverne, 70 A.D.2d 920). Moreover, the record establishes that petitioner properly reviewed the public benefit served by the project, the project's designated location and its effect on the locality (see EDPL 204, subd [B]; 206, subd [C]).
As noted by Special Term, the gravamen of respondent Phillips' complaint is the location of the easement across her property. She admits that raw sewage has come onto her property from adjoining premises engulfing over an acre of land. This condition manifests the necessity of the project. Nonetheless, respondent Phillips urges that the easement should pass across the front portion of her property nearest Route 9W. The record establishes that the easement design and location were selected by petitioner's engineers as the most efficient and economical means of installing the improvement. Absent a showing that the engineers acted in bad faith or so arbitrarily as to be unreasonable, this court will not substitute its judgment for that of the condemnor as to the propriety of the route chosen (see People v Fisher, 190 N.Y. 468, 477; Matter of Dowling Coll. v Flacke, 78 A.D.2d 551, 552; Tennessee Gas Transmission Co. v Geng, 11 Misc.2d 739, 740; Cuglar v Power Auth., 4 Misc.2d 879, aff'd. 4 A.D.2d 801, aff'd. 3 N.Y.2d 1006). Since no such showing has been made, the decision is affirmed.
Order affirmed, without costs. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.