Wechsler v. New York State Department of Environmental Conservation

153 A.D.2d 300, 550 N.Y.S.2d 749, 1990 N.Y. App. Div. LEXIS 742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1990
• Status: Published

Opinions

OPINION OF THE COURT

Mahoney, P. J.

Petitioner Benjamin I. Wechsler (hereinafter petitioner) owns approximately 1,067 acres located in the Towns of Forestburgh and Thompson, Sullivan County. He also owns a hunting and fishing easement over some 1,800 adjacent acres owned by the State (see, Wechsler v People, 147 AD2d 755, lv denied 74 NY2d 610, appeal dismissed 74 NY2d 793, 75 NY2d 808). Petitioner’s property includes area around the Neversink River and unquestionably possesses natural beauty and wilderness, as well as geological, ecological and historical significance. Respondent seeks to acquire title to the property and easement for inclusion in the Neversink River Unique Area. Following a public hearing and receipt of written comments, respondent determined to acquire petitioner’s property and easement rights. Petitioner then commenced this EDPL article 2 proceeding to challenge respondent’s determination.

We consider petitioner’s objections aware that our review in this type of case is statutorily limited (EDPL 207 [C]; see, Matter of Waldo’s, Inc. v Village of Johnson City, 74 NY2d 718, 720). Petitioner argues that the proposed acquisition exceeds respondent’s statutory authority. Respondent’s Commissioner has broad statutory authority to acquire real property when money is available "for any of the purposes or functions of the department” (ECL 3-0305 [1]; see, Matter of Bath & Hammondsport R. R. Co. v New York State Dept. of Envtl. Conservation, 73 NY2d 434). ECL articles 51 and 52 allocate money for projects involving lands of special natural beauty, wilderness character and geological, ecological or historical significance in designated areas (see, ECL 51-0701 [3]; 51-0703 [4]; 52-0101 [4] [h]; 52-0701; see also, Matter of Vaccaro v Jorling, 151 AD2d 34, 38). There is no doubt that the proposed condemnation concerns lands satisfying these requirements so that it is within respondent’s authority. As to the alleged unavailability of sufficient funds to complete the acquisition, we are of the view that there is insufficient proof to establish this contention.

Petitioner also contends that respondent failed to adhere to the procedural requirements of EDPL article 2. First, we disagree with his contention that respondent’s determination and findings were not made within 90 days of the public hearing as required by EDPL 204 (A). Although the hearing concluded on December 14, 1988, respondent left the public record open to receive additional comments until January 14, 1989. The determination and findings were made within 90 days of that date when the record was closed and we believe that such action satisfies the procedural requirement. As to the other procedural irregularities suggested by petitioner, we find them insufficient to warrant annulment.

As to petitioner’s claim that a public use, benefit or purpose will not be served by respondent’s establishment of recreational uses such as hunting, fishing and trapping, we need only refer to the Environmental Quality Bond Act of 1972. This act authorized funding for projects such as that before us, specifically including "the acquisition of land * * * because of their natural beauty, wilderness character or geological, ecological or historical significance * * * expansion of fishing and hunting opportunities * * * [and] the enhancement and improvement of public lands and facilities to provide additional public recreational opportunities” (L 1972, ch 658, § 1; see also, L 1986, ch 511, § 1 [§ 2]). Clearly, then, a public use, benefit or purpose is to be achieved by the proposed acquisition.

We further find no constitutional violations in the proposed acquisition. Contrary to petitioner’s claim, respondent’s descriptions of the properties involved were sufficient under EDPL 202 (A) to give notice of the location of the proposed public project. And while petitioner is correct that eminent domain cannot be used to take land in excess of that needed for the particular public purpose involved (see, Hallock v State of New York, 32 NY2d 599, 605), we are of the view that respondent’s determination, made after extensive environmental impact studies and public participation, that the proposed acquisition is necessary to complete the Neversink River Unique Area and achieve the desired public purposes is rational and should be upheld (see, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 425; Long Is. R. R. Co. v Long Is. Light. Co., 103 AD2d 156, 168, affd 64 NY2d 1088). Petitioner’s remaining contentions have been considered and do not warrant annulment.