Terrace West, Inc. v. City of Plattsburgh

73 A.D.2d 763, 423 N.Y.S.2d 296, 1979 N.Y. App. Div. LEXIS 14623

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1979
• Status: Published

Opinion

Proceeding instituted in this court, pursuant to subdivision (A) of section 207 of the Eminent Domain Procedure Law, to review the determination and findings of the City of Plattsburgh relative to the public need for, and environmental and other effect of tbe Sandra Avenue Improvement Project. At issue in this proceeding is whether the proposed taking of a paved driveway owned by petitioner to facilitate the development of six privately owned building lots at the northern terminus of that driveway is for a public or private use. At the required public hearing, the City of Plattsburgh presented its plan for the establishment of a water line and vehicular access to the area to be developed. Following the hearing, findings and a determination providing for such a project were duly published (EDPL, §§ 201-204). It is petitioner’s contention, upon review of those findings and determination, that the taking of this property is only for the benefit of private builders who own the lots to be developed (EDPL, § 207). The acquisition of land for a street and water system is a constitutionally permissible taking for a public purpose (Denihan Enterprises v O’Dwyer, 302 NY 451; Evans v State of New York, 34 AD2d 1007, affd 28 NY2d 844). The fact that incidental private profit may accrue is insufficient to defeat the condemnation (Murray v La Guardia, 291 NY 320, cert den 321 US 771). Determination confirmed, and petition dismissed, with costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.