| Matter of Dudley v Town Bd. of Town of Prattsburgh |
| 2009 NY Slip Op 00943 [59 AD3d 1103] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Judith E. Dudley et al., Petitioners, v Town Boardof Town of Prattsburgh et al., Respondents. |
—[*1] John F. Leyden, Town Attorney, Wayland, for respondent Town Board of Town ofPrattsburgh. Bond, Schoeneck & King, PLLC, Syracuse (Kevin M. Bernstein of counsel), for respondentWindfarm Prattsburgh, LLC.
Proceeding pursuant to EDPL 207 (initiated in the Appellate Division of the Supreme Courtin the Fourth Judicial Department) to annul a determination of respondent Town Board of Townof Prattsburgh to condemn a portion of petitioners' property in order to create certain easements.
It is hereby ordered that the determination is unanimously confirmed without costs and thepetition is dismissed.
Memorandum: Petitioners commenced this proceeding pursuant to EDPL 207 seeking toannul the determination of respondent Town Board of Town of Prattsburgh (Town Board) tocondemn a portion of petitioners' property in order to create easements to enable respondentWindfarm Prattsburgh, LLC, to place underground electricity lines for a wind farm project. Weconfirm the determination. According to petitioners, the Town Supervisor, who cast the decidingvote on both the resolution commencing the condemnation proceedings and the resolutionapproving the condemnation, had an impermissible conflict of interest that required his recusalfrom the proceedings. Our scope of review in this proceeding pursuant to EDPL 207 (C) is,however, "limited to whether the proceeding was in conformity with constitutional requirements,whether the proposed acquisition is within the statutory jurisdiction or authority of thecondemnor, whether the condemnor's determination and findings were made in accordance withthe procedures set forth in EDPL article 2 and ECL article 8, and whether a proposed [public]use, benefit or purpose will be served by the proposed acquisition" (Matter of Pfohl v Village of SylvanBeach, 26 AD3d 820, 820 [2006]). Here, petitioners did not allege that the TownSupervisor's alleged conflict of interest resulted in the deprivation of their constitutional rights,nor did they otherwise raise any of the factors set forth in EDPL 207 (C) to warrant theannulment of the determination. We thus conclude that the proper procedural vehicle by whichpetitioners should raise their contentions is a proceeding pursuant to CPLR article 78(see CPLR 7803 [3]; seegenerally Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 547[2006]).
In any event, we conclude that petitioners failed to meet their burden of establishing that theTown Board's determination was "without foundation and baseless" (Matter of Butler v Onondaga CountyLegislature, 39 AD3d 1271 [2007]; Pfohl, 26 AD3d 820 [2006]; Matter of Faith Temple Church v Town ofBrighton, 17 AD3d 1072, 1073 [2005]; see generally Matter of Waldo's, Inc. vVillage of Johnson City, 74 NY2d 718, 720-721 [1989]). Contrary to the contention ofpetitioners, a town board's findings that condemnation for the purpose of creating easementswould, inter alia, "create jobs, provide infrastructure, and possibly stimulate new private sectoreconomic development" constitute an adequate basis for the Town Board's determination that thecondemnation would serve a public use or benefit (Sunrise Props. v Jamestown UrbanRenewal Agency, 206 AD2d 913 [1994], lv denied 84 NY2d 809 [1994]; seealso Vitucci v New York City School Constr. Auth., 289 AD2d 479, 481 [2001], lvdenied 98 NY2d 609 [2002]; see generally Matter of Jackson v New York State UrbanDev. Corp., 67 NY2d 400, 425 [1986]). Finally, we have reviewed petitioners' remainingcontention and conclude that it is without merit. Present—Scudder, P.J., Smith, Centra andFahey, JJ.