| Matter of County of Cortland (Miller) |
| 2010 NY Slip Op 03513 [72 AD3d 1436] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Acquisition of Real Property by the County ofCortland, Respondent. Lisa K. Miller et al., Appellants, et al.,Respondents. |
—[*1] Edward R. Purser, County Attorney, Cortland (Elizabeth A. Burns of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered November25, 2008 in Cortland County, which granted petitioner's application, in a proceeding pursuant toHighway Law § 120, to condemn certain real properties and appointed commissioners todetermine appropriate compensation.
The Cortland County Highway Department planned a construction project on County Route114 (also known as East River Road) in the Town of Homer in which it would replace existingculverts with larger ones so as to enhance safety by providing a wider road. To construct one ofthe culverts, petitioner sought to acquire a little over one third of an acre from the 270 acresowned by respondents Lisa K. Miller and Dean G. Miller (hereinafter collectively referred to asrespondents). Disputes arose, in part, because of respondents' concern about the historical natureof their property, which contains archeological remains of a Native American village. [*2]Efforts to negotiate a sale of the area sought by petitioner wereunsuccessful. In August 2008, the Cortland County Legislature authorized the County Attorneyto acquire, pursuant to the EDPL, the land needed for the culvert project.
Petitioner commenced this proceeding seeking, among other things, to condemn the relevantportion of respondents' property. Respondents argued that petitioner had failed to comply withthe procedural requirements of the EDPL. Petitioner asserted that it was pursuing the takingunder Highway Law article 6 and that the EDPL did not apply. Supreme Court agreed withpetitioner and further concluded that, in any event, the taking was de minimis and, thus, wouldhave been exempted by EDPL 206 (D) from the hearing requirements of the EDPL. Threecommissioners were appointed pursuant to Highway Law § 120 to determinecompensation. Respondents appeal.
The EDPL, enacted in 1977 after many years of study by the Commission on EminentDomain, had primary goals of replacing the then-existing vast array of procedures with "auniform and equitable procedure which assures that the public will be adequately informedthrough hearings of proposed public projects requiring the acquisition of land; thatenvironmental and community impact will be weighed before the acquisition can go forward;and that every effort will be made to negotiate with owners for the acquisition of their property"(Governor's Mem approving L 1977, ch 839, 1977 McKinney's Session Laws of NY, at 2529).The statute explicitly provides that "[i]t is the purpose of this law to provide the exclusiveprocedure by which property shall be acquired by exercise of the power of eminent domainin New York state" (EDPL 101 [emphasis added]; see Matter of Hargett v Town of Ticonderoga, 35 AD3d 1122,1123 [2006], lv denied 8 NY3d 810 [2007]). Another provision states that "[t]he [EDPL]shall be uniformly applied to any and all acquisitions by eminent domain of real propertywithin the state of New York" (EDPL 104 [emphasis added]). Moreover, as relevant in thecurrent proceeding, regarding the determination of just compensation, the statute sets forth thatSupreme Court "shall have exclusive jurisdiction to hear and determine all claims arising fromthe acquisition of real property and shall hear such claims without a jury or without referralto a referee or commissioners" (EDPL 501 [B] [emphases added]).
When the EDPL was enacted, it was recognized that isolated "errors and oversights" mayhave occurred, potentially resulting in some laws remaining that were inconsistent with theEDPL (Governor's Mem approving L 1977, ch 839, 1977 McKinney's Session Laws of NY, at2529). This unusual acknowledgment was ostensibly the result of having had to "sift[ ] throughmore than [50] different [then-existing] procedures" and address "over 150 separate sections oflaw" (Governor's Mem approving L 1977, ch 839, 1977 McKinney's Session Laws of NY, at2529). Hence, in addition to the exclusivity provisions regarding the EDPL procedures set forthin EDPL 101 and 104, the Legislature further provided that "[n]otwithstanding any inconsistentprovisions of law, general or special, the provisions of this law shall be controlling and on andafter the effective date of this law, any interest in real property subject to acquisition shall beacquired pursuant to the provisions of this law" (EDPL 705). While provisions in other statutesgermane to condemnation that are not inconsistent with the EDPL may remain relevant (seegenerally Matter of Hargett v Town of Ticonderoga, 35 AD3d at 1124), provisions that areinconsistent with the EDPL must give way to that statute.
Here, the County Legislature's resolution in August 2008 authorized the acquisition pursuantto the EDPL. Rather than adhering to the method for the taking directed in the resolution (i.e.,the EDPL), petitioner instead attempted to use a procedure under a different [*3]statute (i.e., Highway Law § 120). This alone is reasonenough to dismiss the petition. In addition, Highway Law § 120 is inconsistent with theEDPL in significant aspects relevant in this proceeding, including hearing requirements(see EDPL 201) and who determines compensation (see EDPL 501 [B]). Thoseaspects of Highway Law § 120 no longer govern a taking in this state and it was error toutilize procedures from Highway Law § 120 that were at odds with the EDPL.
Petitioner argues that the taking should nevertheless be upheld on the alternative ground thatit was exempt from the hearing requirements of EDPL article 2 because the taking was deminimis (see EDPL 206 [D]). The fact that the amount of land is not substantial does notnecessarily render a taking de minimis (see Matter of Marshall v Town of Pittsford, 105AD2d 1140, 1140-1141 [1984], lv denied 64 NY2d 606 [1985]). Initially, we arereluctant to retroactively find compliance with the EDPL under the facts of this case wherepetitioner opted to attempt to pursue condemnation under a separate statute with differentprocedures. In any event, we are unpersuaded that this record supports a de minimisdetermination in light of the close proximity of the project to land with significant historicremains (there are two letters in the record from Native American groups articulating concerns),together with the fact that petitioner expanded the scope of the project from what was originallyproposed and such expansion resulted in the State Historic Preservation Office suspending itsearlier approval.
The remaining arguments have been considered and are either academic or unavailing.
Mercure, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is reversed,on the law, with costs, and petition dismissed without prejudice to petitioner proceeding pursuantto the EDPL.