Petition for Writ of Certiorari — Aspen Creek Estates, Ltd. v. Town of Brookhaven (No. 08-1444)

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Supreme Court, U.S.

FILED

No. 08- 081444 MAY 18 2009

OFFICE OF THE CLERK

[N THE

Supreme Court of the United States

In the Matter of Aspen Creek Estates, Ltd.,

Petitioner,

lown of Brookhaven and The Town Board

of The Town of Brookhaven,

Respondents.

On PETITION FOR A Wait OF CERTIORARI TO THE

New York StaTE Court oF APPEALS

PETITION FOR A WRIT OF CERTIORARI

Mark S. MULHOLLAND

Counsel of Record

JONATHAN C, SULLIVAN

Ruskin Moscou FALTISCHEK, PC.

1425 RXR Plaza

Kast Tower, 15" Floor

Uniondale, NY 11556-1425

(516) 663-6600

Attorney for Petitioner

QUESTION PRESENTED

In Kelo v. City of New London, 545 U.S. 469, 125

S.Ct. 2655, 162 L.Ed.2d 489 (2005), this Court held that

where the government takes private property from one

person and gives it to another person in order to

promote economic development, a so called economic

development taking, the taking must be executed

pursuant to a “carefully considered” development plan.

This case concerns the Town of Brookhaven’s

(the “Town”) efforts to condemn a 39.16-acre parcel of

property owned by Aspen Creek Estates, Ltd. (“Aspen”)

so that it can be preserved as active farmland. The

Town claims that the condemnation is necessary in order

to, among other things, “help protect and promote [the}

continuation of agriculture in the Town which is an

important component of the local economy.” App. 30a.

The Town intends to take Aspen’s property and transfer

it to a private farmer by lease or in fee simple. The Town,

however, has failed and/or refused to identify who or

what will farm the property in the future.

Aspen challenged the condemnation because the

Town failed to conduct any environmental or economic

studies in support of the condemnation let alone a

“carefully considered” development plan as required by

Kelo. Aspen also argued the taking was a mere pretext

to improperly bestow a private benefit on a local farmer

who the Town refused to identify.

The New York Supreme Court, Appellate Division,

Second Department held that the Town’s condemnation

was not an economic development taking and therefore

confirmed the condemnation despite the fact that, in the

court’s own words, “the record is completely devoid of

evidence pertaining to how the Town intends to use the

property after the acquisition.” App. 20a.

The New York Court of Appeals affirmed, concluding

that the condemnation was constitutional, whether or

not it was an economic development taking, because the

property “was taken pursuant to a legislatively-declared

public policy in favor of farmland preservation.” App.

2a. The Court of Appeals’ “public policy” standard

directly conflicts with this Court’s requirement in Kelo

that economic development takings be executed

pursuant to a “carefully considered” development plan.

The question presented is:

Whether the New York Court of Appeals erred in

concluding that the taking of private property from one

person so that it can be given to another person satisfies

the Takings Clause of the Fifth Amendment to the

United States Constitution where the property is taken

pursuant to a “legislatively-declared public policy”

rather than a “carefully considered” development plan?

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

Petitioner Aspen Creek Estates, Ltd. has no parent

corporation and no public company owns 10% or more

of the corporation’s stock.

TABLE OF CONTENTS

QUESTION PRESENTED

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT

ey OES we yy yn

TABLE OF APPENDICES

TABLE OF CITED AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVLOVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION ..

I. The “Public Policy” Standard Adopted by

the New York Court of Appeals Conflicts

with This Court’s Decision in Kelo v. City

of New London

A. The Town’s Condemnation Is an

Economic Development Taking

Contents

Page

The Town Failed To Create a

Carefully Considered Development

C. The Town’s Condemnation Is a Pre-

Text for Improperly Bestowing

Benefits on Private Individuals ....

. Certiorari Should Be Granted to Reverse

the Continued Erosion of the Substantive

Rights Guaranteed by the Takings Clause

of the Fifth Amendment to the United

States Constitution

CONCLUSION ...........

TABLE OF APPENDICES

Appendix A — Opinion Of The Court Of Appeals

Of New York Decided February 17, 2009 ....

Appendix B — Decision And Order On Motion

Of The Supreme Court Of The State Of New

York, Appellate Division, Second Judicial

Department Dated March 28, 2008

Appendix C — Opinion Of The Supreme Court,

Appellate Division, Second Department, New

York Dated December 4, 2007

Appendix D — Resolution Of March 21, 2006

Adopting The Findings And Determination Of

The Town Board

TABLE OF CITED AUTHORITIES

Page

CASES:

Aspen Creek Estates, Inc.

v. John Kennedy and W & K Farms, Inc.

15 Mise.8d 1124(A), 841 N.Y.S.2d 217

(N.Y. Sup. Ct. Suffolk Co. 2007)

Aspen Creek Estates, Ltd.

v. Town of Brookhaven et al.,

47 A.D.3d 267, 848 N.Y.S.2d 214,

aff’d, 12 N.Y.3d 735, 904 N.E.2d 816,

76 N.Y.S.2d 680 (2009)

Calder v. Bull,

3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798) ..

Chicago, B & Q.R. Co. v. Chicago,

166 U.S. 226, 17 S.Ct. 581,

41 L.Ed. 979 (1897)

Kaywood Properties Ltd. et al.

v. M. Cecile Forte, et al.,

19 Misc.3d 1148(A), 867 N.Y.S.2d 17

(N.Y. Sup. Ct. Suffolk Co. 2008)

Kelo v. City of New London,

545 U.S. 469, 125 S.Ct. 2655,

162 L.Ed.2d 489 (2005)

Cited Authorities

STATUTES:

New York Civil Practice Law and Rules

Article 78

New York Eminent Domain Procedure Law

§§ 201-204

New York Eminent Domain Procedure Law

]

OPINIONS BELOW

The opinion of the Court of Appeals of the State of

New York (App., infra, la—2a) is reported at Aspen Creek

Estates, Ltd. v. Town of Brookhaven, 12 N.E.2d 735, 904

N.E.2d 816, 876 N.Y.S.2d 680 (2009). The opinion of the

Supreme Court of the State of New York, Appellate

Division, Second Department (App., 2xfra, 5a—28a) is

reported at Aspen Creek Estates, Ltd. v. Town of

Brookhaven, 47 A.D.3d 267, 848 N.Y.S.2d 214 (2nd Dept.

2007).

JURISDICTION

The judgment of the Court of Appeals of the State

of New York was entered on February 17, 2009. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257.

STATUTORY PROVISIONS INVOLVED

The Takings Clause of the Fifth Amendment to the

United States Constitution which provides: “[N Jor shall

private property be taken for public use without just

compensation.” U.S. Const. Amdt. 5. That Clause is

made applicable to the States by the Fourteenth

Amendment. See Chicago, B & Q.R. Co. v. Chicago, 166

U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897).

STATEMENT OF THE CASE

Petitioner Aspen Creek Estates, Ltd. (“Aspen”)

owns a 39.16-acre parcel of property in Manorville, New

York. The Town condemned Aspen’s property on March

21, 2006 so that it could be preserved as farmland. The

Town claimed that preserving the property as farmland

would, among other things, preserve scenic vistas and

promote the continuation of agriculture in the Town

which purportedly was an important component of the

local economy.

This Court recently held that where the government

takes private property from one person and gives it to

another person in order to promote economic

development the taking must be executed pursuant to

a “carefully considered” development plan. Kelo v. City

of New London, 545 U.S. 469, 125 S.Ct. 2655, 162

L.Ed.2d 439 (2005). The Town here did not have a plan

as admitted by the Town’s counsel during oral argument

before the New York Court of Appeals.

The Town did not prepare any studies let alone a

“carefully considered” development plan in support of

its condemnation and there is no such plan in the

meager record below. The Town’s condemnation also is

completely silent on the critical issue of who or what

will farm the property on a going forward basis and on

what terms that individual or entity will continue to farm

the property.

The Town’s bare bones condemnation proceedings

made it impossible to prove that the purported public

benefits (which are not set forth in a development plan)

are incidental compared to the private benefits (which

will go primarily to an unidentified individual or entity).

These deficiencies are compounded by the

limitations of the New York Eminent Domain Procedure

Law (N.Y. EDPL) which does not allow for pre-taking

discovery or a trial on disputed issues of fact - making

it impossible for Aspen to ferret out who will be the

primary beneficiary of this taking.

Aspen challenged the Town’s condemnation by

commencing a special proceeding in the Supreme Court

of the State of New York, Appellate Division, Second

Department (“Appellate Division”) pursuant to N.Y.

EDPL § 207.

Aspen alleged, among other things, that the

condemnation violated its rights under the Takings

Clause of the Fifth Amendment to the United States

Constitution. App. 10a. Aspen argued that the Town

failed to prepare an economic development plan as

required by Kelo and that the purported public purposes

identified by the Town in its findings and determinations

were outweighed by the private benefits improperly

bestowed on certain individuals. App. 18a.

Aspen specifically alleged that the Town’s findings

and determinations were a mere pre-text in order to

allow the transfer of the property to a favored local

farmer and to increase property values for Aspen’s

immediate neighbors by preserving their scenic views

of the property.

On December 4, 2007, the Appellate Division

confirmed the condemnation holding that it was not an

economic development taking under Kelo because the

primary objective was to preserve farmland and

therefore the Town was not required to prepare a

“carefully considered” development plan. App. 18a.

The Appellate Division reasoned that “[a]lthough

the record is completely devoid of evidence pertaining

to how the Town intends to use the property after the

acquisition, the possibility that the Town may sell or

lease the land to a farmer does not make the proposed

condemnation a pretext for improperly conferring a

private benefit.” App. 20a.

The Appellate Division confirmed the condemnation

over the strong dissent of Judge Lifson who concluded

that “close scrutiny of the rationale offered by the Town

offers only illusory benefits to the public and is a mere

pretext for an impermissible taking.” App. 28a.

On January 22, 2008, Aspen moved before the

Appellate Division for reargument, or in the alternative,

for permission to appeal to the Court of Appeals. On

March 28, 2008, the Appellate Division denied Aspen’s

motion for reargument, but granted permission to

appeal to the New York State Court of Appeais because

“questions of law have arisen which ought to be

reviewed by the Court of Appeals.” App. 3a—4a.

At the Court of Appeals, the Town admitted that it

did not prepare a plan to support the taking of Aspen’s

land. Despite this, on February 17, 2008, the Court of

Appeals affirmed the Appellate Division’s December 4,

2007 decision. The Court of Appeals’ decision in this case

is the frst condemnation decision issued by the Court

of Appeals since this Court’s decision in Kelo. It is also

one of the few instances in Court of Appeals history

where New York’s highest court has considered whether

a condemnation pursuant to New York’s Eminent

Domain Procedure Law passes constitutional muster.

The Court of Appeals held that the Town’s

condemnation did not violate the Takings Clause of the

Fifth Amendment to the United States Constitution.

App. la-2a. The Court of Appeals reasoned that it did

not need to determine whether the condemnation was

an economic development taking because the property

was “taken pursuant to a legislatively declared public

policy in favor of farmland preservation.”

The Court of Appeals held this general public policy

in favor of farmland preservation, derived from a variety

of sources, none of which directly concerned the

property at issue, was sufficient to satisfy constitutional

scrutiny.

The Court of Appeals also held that the public

benefits of the taking in this case were not incidental or

pretextual in comparison with the benefits accruing to

private individuals. This despite the fact that the Town

does not reveal who or what will ultimately receive the

benefit of what the Town describes as 39.16 acres of

“prime agricultural soil.” App. 30a.

The Court of Appeals has adopted a watered down

“public policy” standard which is a far cry from the

“carefully considered” development plan required by

this Court in Kelo.

The Town’s condemnation is unconstitutional

because there is no plan. There are no economic or

environmental studies supporting the Town’s finding

and determinations. And, as the Appellate Division

correctly noted, the record is “devoid of any information”

concerning what the Town intends to do with the

property after it is condemned.

The Town essentially has bifurcated the

condemnation by voting to condemn the property now

and deciding what to do with it later. The Town’s failure

to create a “carefully considered” development plan

which specifies the future use of the property has

deprived Aspen of an opportunity to attack the plan on

constitutional grounds. There is no plan to attack.

The need for a comprehensive plan is particularly

apparent in New York because the EDPL does not allow

for pre-taking discovery or a trial on disputed issues of

fact. In Kelo, the petitioner had the benefit seven-day

bench trial in order to explore whether the

condemnation improperly benefited private parties.

Kelo, supra, 545 U.S. 475-476. Aspen has no such

recourse under the EDPL.

The Town did not conduct any environmental or

economic studies demonstrating that the protection and

promotion of agriculture would in fact benefit the local

economy or that the condemnation of Aspen’s property

in particular was necessary to satisfy this goal. The Town

also failed and/or refused to disclose its plans for who

or what will farm the property and on what terms they

will continue to farm it in the future.

The Court of Appeals, however, upheld that

condemnation based on its lenient and amorphous

“public policy” standard. The Court of Appeals’ decision

should be reversed and the Town’s condemnation

vacated for the reasons set forth below.

REASONS FOR GRANTING THE PETITION

The “Public Policy” Standard Adopted by the New

York Court of Appeals Conflicts with This Court’s

Decision in Kelo v. City of New London.

The Town’s condemnation of Aspen’s property is

part of a long and continuing struggle between Aspen

and the Town. Aspen purchased the property in June

2002 with the intention of subdividing the land and

building 19 residential homes on two-acre lots. The

property is zoned A Residence 2 which permits two-acre

residential lots “as of right.”

In or about November 2002, Aspen submitted an

application to the Town’s Planning Department to

subdivide the property. The Planning Department,

however, refused to accept or process the application

without any explanation.

Aspen subsequently brought a special proceeding

pursuant to Article 78 of the New York Civil Practice

Law and Rules (N.Y. C.PL.R.) to compel the Town to

accept and process its application. The Town eventually

agreed to take the application pursuant to a “So

Ordered” Stipulation in order to resolve the special

proceeding.

The Town, however, still refused to submit the

application to the Planning Board for a final decision

despite the “So Ordered” Stipulation. Aspen

subsequently brought a motion to hold the Town in

contempt for failing to process the application.

Aspen’s property is located in the Compatible

Growth Area of the Pine Barrens region of Long Island

which permits residential development as long as certain

clearing limits are met. Aspen did not propose clearing

any pine barrens vegetation but the Planning

Department would not process Aspen’s application

unless Aspen agreed to dedicate large portions of the

property to the Town so that it could revert to native

Pine Barrens vegetation. The Town perversely delayed

Aspen’s subdivision application in order to promote the

growth of pine barrens vegetation only to condemn the

property to be used as farmland (which would destroy

any native pine barrens vegetation on the property.)

Aspen agreed to dedicate the northern 14.85 acres

of the property to the Town to be preserved as open

space and to preserve another 10.85 acres in protected

buffer areas. Aspen submitted over 48 revised

subdivision maps over the course of several years in a

futile attempt to gain approval.

The Town’s Planning Board, under threat of

contempt, finally rendered a decision on May 1, 2006

denying Aspen’s subdivision application. The Planning

Board denied Aspen’s application because Aspen’s

subdivision plans allegedly did not do enough to

preserve open space. This despite the fact that Aspen

agreed to dedicate and preserve over 65.6% of its

property. Aspen thereafter commenced another Article

78 proceeding challenging the Planning Board’s decision

as arbitrary and capricious.

While Aspen was attempting to obtain subdivision

approval it simultaneously was engaged in a contentious

legal battle with John Kennedy and W & K farms

concerning the property. Mr. Kennedy, the owner of W

& K farms, farmed the property before Aspen purchased

it pursuant to an oral lease with the prior owners.

Mr. Kennedy owns (and farms) the 35-acre parcel

immediately to the west of the Property and farms the

46-acre parcel immediately to the east of the Property.

Mr. Kennedy continued to farm the Aspen’s property

without Aspen’s permission after Aspen purchased the

property. Aspen thereafter commenced an action in the

New York Supreme Court, Suffolk County seeking to

eject Mr. Kennedy from the Property.

The Suffolk County Supreme Court issued a

temporary restraining order against Mr. Kennedy and

subsequently granted Aspen’s writ of ejectment. Aspen

Creek Estates, Inc. v. John Kennedy and W & K Farms,

Inc., 15 Mise.3d 1124(A), 841 N.Y.S.2d 217 (N.Y. Sup.

Ct. Suffolk Co. 2007).

The Town, however, targeted Aspen’s property for

condemnation while Aspen’s subdivision application and

writ of ejectment against Mr. Kennedy were pending.

On January 24, 2006, the Town Board passed a

resolution authorizing the commencement of

condemnation proceedings against the property and

scheduled a hearing for March 6, 2006.

Mr. Kennedy testified at the hearing and urged the

Town Board to condemn Aspen’s property so that he

could continue to farm it:

Yes, my name is John Kennedy. My wife and I

own the property to the west of the [the

property]. We have farmed [the property] for

23 years until Mr. Kaywood showed up. Our

relationship has not been good. He’s come into

Town like a bull in a china closet. So this is

where he wants to be and this is where he is.

I do not, eminent domain does not sit well with

me, but I don’t see any other recourse here.

My family has sustained economic hardship,

losing 35 acres of production right next door

to us. I’m very frustrated with the process.

So whatever happens here tonight happens

and then I will have to make hard decisions

from there. Good night.

Several Manorville residents also testified in favor

of the condemnation in large part because it would

preserve their scenic views.

The record compiled by the Town in support of its

condemnation consists of little more than a transcript

of oral testimony at the condemnation hearing, google

earth images of the property, a partially filled out

Environmental Assessment Form and two letters from

local civie associations offered in support of the

condemnation.

On March 21, 2006, the Town Board voted to

condemn the property purportedly to:

preserve open space and agricultural

resources; to preserve prime agricultural

soils; to help protect and promote

continuation of agriculture in the Town

which is an important component of the local

economy; to ensure the retention of scenic

vistas; to protect the bucolic and rural

character of the subject property, adjoining

properties, and the Manorville Farm

Protection Area; to ensure the continued sale

of fresh, locally-grown produce; to prevent

conflicts between residential homeowners and

adjacent farmers; and to help ensure the

preservation of the Manorville Farm

Protection Area, a high priority preservation

target which contains the largest contiguous

belt of working farmland left in Brookhaven

Town.

App. 30a (emphasis added).

The Town's condemnation was primarily based on

oral testimony from the Town’s representatives who

claimed that Aspen’s property was located in the

Manorville Farm Protection Area (“MF PA”). The MF PA

purportedly is a contiguous belt of 500 acres of farmland

which the Town has marked for preservation.

The Town, however, has failed to cite any authority

or legislation creating or defining the MF’PA and there

is nothing in the record below explaining what the

MF'PA is or who created it. The MF'PA is not a plan. It

is rather nothing but a map, with condemnation targets

identified. The MF'PA is nothing but a group of farms

or former farms (Aspen’s land, for example, is not a farm

today), which local officials have informally targeted for

condemnation.

As noted above, Aspen challenged the Town’s

condemnation pursuant to EDPL § 207. Aspen argued

the Town’s condemnation was a pretext to improperly

confer benefits upon private persons — namely Mr.

Kennedy (who wanted to continue to farm the property)

and Mr. Kaywood’s immediate neighbors (who wanted

to preserve their views). Aspen also argued that the

Town was required to create a “carefully considered”

development plan in order for the condemnation to pass

constitutional muster.

The Appellate Division affirmed the condemnation

and Aspen subsequently was granted permission to

appeal to the New York Court of Appeals. While Aspen’s

appeal was pending before the New York Court of

Appeals, the Suffolk County Supreme Court granted

Aspen’s separate petition seeking to overturn the

Planning Board’s earlier denial of Aspen’s subdivision

application. Kaywood Properties Ltd. et al. v. M. Cecil

Forte, et al., 19 Mise.3d 1148(A), 867 N.Y.S.2d 17 (N.Y

Sup. Ct. Suffolk Co. 2008)

In a remarkable decision, Justice Baisley

determined that the Town had “deliberately delayed”

processing Aspen’s subdivision application and

“concocted reasons to deny it as a pretext in order to

enable the Town to complete its condemnation

proceeding and acquire the property at a bargain price.”

Id. Justice Baisley annulled the Planning Board’s May

1, 2006 denial, and remitted the application to the

Planning Board with instructions to approve Aspen’s

subdivision application. /d.

On February 14, 2009, however, the New York State

Court of Appeals affirmed the Town’s condemnation of

the property. The Court of Appeals, however, directly

conflicts with this Court’s holding in decision Kelo wv. City

of New London because it did not require the Town to

create a “carefully considered” development plan.

A. The Town’s Condemnation Is an Economic

Development Taking

There are “three categories of takings that comply

with the [5th Amendment] public use requirement .. .

[t}jwo [of which] are relatively straightforward and

uncontroversial[,|” namely where the land in question

is taken for public ownership to create public

infrastructure such as “a road, a hospital, or a military

base,” or for control by “common carriers, who make

the property available for the public’s use — such as with

a railroad, a public utility, or a stadium.” Aelo, supra,

545 U.S. at 498 (O’Connor J., dissenting).

The Town’s condemnation does not fit within

either of these first two recognized categories of

constitutionally permissible takings. The Town does not

state what it will do with the property after the

condemnation but there is no indication in the meager

record below that the Town will make it available for

public use. There is also no indication that the Town

itself intends to farm the property either directly or

through some sort of Soviet-style public collective.

The Town in all likelihood plans to take this property

from Aspen and transfer it to a private farmer, John

Kennedy, by lease or in fee simple to be farmed for a

profit. The Town also claims that the condemnation is

necessary in order to benefit the local economy.

The Town’s condemnation therefore fits within the

third recognized category of taking involving property

destined for subsequent private use to satisfy an alleged

public purpose — so called “economic development”

takings. Kelo, supra, 545 U.S. 2t 498 (O'Connor J.,

dissenting). This is the only conceivable form of taking

that the Town might be considering here, as nothing in

the record below supports any other conclusion but that

the taking in question falls within this third category,

and must be scrutinized as such.

The Town Board’s own findings and determination

support the conclusion that this is an economic

development taking. The Town Board stated that the

purpose of the acquisition was, among other things, to

preserve “agricultural resources” and “to help protect

and promote continuation of agriculture in the Town

which is an important component of the local economy”

and “to ensure the continued sale of fresh, locally-grown

produce” and “to prevent conflicts between residential

homeowners and adjacent farmers” App. 30a.

[In Kelo, the Supreme Court described the economic

development taking at issue in that case as an effort “to

coordinate a variety of commercial, residential, and

recreational uses of land, with the hope that they will

form a whole greater than the sum of its parts.” Kelo,

supra, 545 U.S. at 483. That is exactly what the Town

claims it is trying to do in this case. The profound

difference, of course, is that unlike the carefully

considered plan that the City of New London created in

Kelo, the Town in this case has not created any plan for

the future use of this property. See Discussion, infra,

Part I(B).

In the proceedings below, the Appellate Division

concluded that the Town’s condemnation was not an

economic development taking because the primary

objective was to preserve farmland ignoring the fact

that this property must be transferred in some form or

fashion to another private citizen in order to be farmed.

The Court of Appeals did not address whether the

Town’s condemnation was an economic development

taking. The court held that the taking was

constitutional, regardless of how it was characterized,

because the property “was taken pursuant to a

legislatively-declared public policy in favor of farmland

preservation.” App. 2a

B. The Town Failed To Create a Carefully

Considered Development Plan.

The Town admits it created no plan in connection

with the condemnation of Aspen’s land. The watered

down “public policy” standard adopted by the Court of

Appeals is a far cry from the “carefully considered”

development plan required by this Court in Kelo. The

Court’s “public policy” determination is based on a

hodgepodge of legislative and non-legislative

enactments initially identified by the Appellate Division

when it confirmed the Town’s condemnation, all of which

are suspect,

The Court of Appeals specifically referenced the

“Town of Brookhaven’s master plans” which purportedly

endorses farmland preservation. There is no reference

whatsoever in the record or proceedings below

concerning any such master plans.

The Court of Appeals apparently was referring to

the Manorville Farm Protection Area (MF'PA). As set

forth above, however, the Town has failed to identify

what the MI'PA is — other than a map — or who or what

created it. Judge Lifson, in his Appellate Division

dissent, noted:

(While there are several references to a

Manorville Farmland Protection Area in the

record, no Town ordinance or formalized plan

for the alleged preservation of the area in

which the property is located is set forth

Instead, the respondents rely on vague

reference to such designations as early as

1993 without being able to explain what the

detailed plan was or is

App 26a

The Court of Appeals also references certain bond

acts in which the Town voters allegedly authorized $130

million to acquire development rights or fee interests

in undeveloped land. The fact that Town resident

approved the acquisition of other parcels does not

constitute a carefully considered development plan in

support of the condemnation of this parcel.

Judge Lifson correctly noted that the fact that bond

proceeds “were used to acquire parcels of land or

development rights within [the MF'PA] is not proof of a

coherent plan for preservation, or that the public

acquisition of the entire tract (2.e. the property) and its

use as farmland is essential to the furtherance of such

an alleged plan.”

The striking fact about all of the legislative and non

legislative enactments identified by the Court of Appeals

and the Appellate Division is that they do not directly

concern Aspen’s property and were not taken in

furtherance of this condemnation.

More importantly, however, even if we take the

Court of Appeals’ conclusion at face value — that there

is a legislatively-declared public policy in favor of farm

land preservation — that alone 1s not sufficient to justify

the condemnation

In Kelo. there Was a legislatively eT acted public

policy in favor of clearing blighted areas. The City of

New London condemned the property pursuant to a

Connecticut statute which specifically stated that “the

taking of land, even developed land, as part of an

economic development project is a ‘public use’ and in

the public interest.” Kelo, supra, 545 U.S. at 476

The inquiry, however, does not stop there. In Kelo

this Court still required a “carefully considered”

development plan in order for the condemnation to pa

constitutional muster. To hold otherwise would be to

sanction the taking of property from one individual and

so that it can be given to another as long as the

condemning authority used the appropriate buzz words

whether that be “clearing blight” or “preserving

farmland.”

The Town claims that this condemnation is part of a

larger effort to preserve hundreds of acres of farmland

within the MFPA which it claims will be good for the

local economy. There is no indication that the Town ever

considered how its entry into the local agricultural

market will affect consumers or farmers. A farmer’s land

is normally his most important asset and the Town

essentially has cast a condemnation blight over all the

farmland in Brookhaven without any forethought

whatsoever. There record also is completely devoid of

any explanation concerning who or what will farm this

land in perpetuity. There are no studies concerning the

potential environmental! impact of irrigation and

pesticides. There are also no particular findings in the

record below that the condemnation of some or all of

Aspen’s property is necessary in order to achieve the

[own’s overall goals whatever they may be.

The Town did not explore any of this in the

proceedings below and there is no plan let alone a

‘carefully considered” development plan to support this

condemnation. This is in stark contrast to the detailed

studies and plans required by this Court in Kelo

C. The Town’s Condemnation Is a Pre-Text for

Improperly Bestowing Benefits on Private

Individuals

In Kelo, this Court made clear that the government

cannot “take property under the mere pretext of a

public purpose, when its actual purpose was to bestow

a private benefit.” Kelo, supra, 545 U.S. at 478. Justice

Kennedy, in his concurring opinion, emphasized that

where courts are “confronted with a plausible accusation

of impermissible favoritism to private parties,” courts

“should treat the objection as a serious one and review

the record to see if it has merit,” and that courts must

“strike .. . down” takings that create “only incidental

or pretextual public benefits.” /d. at 491.

In the proceedings below the Town argued that the

record is devoid of any contract, lease or other

agreement between the Town and any other private

party with regard to the subject property. That is

precisely the point. The Town has not created a plan

for the property so that it can avoid judicial scrutiny of

any such plan.

The Town insists that the seizure of Mr. Kaywood’s

land will preserve farm space — ignoring apparently that

for the land to be farm space, it must be farmed. By

who, or how, the Town never revealed. The very fact

that the Town has withheld information as to the manner

in which the property is to be farmed can only be

considered a deliberate attempt to avoid defending what

ultimately will be a one-to-one transfer of property.

The Town also claims that the condemnation is

necessary “to ensure the retention of scenic vistas” and

“to protect the bucolic and rural characteristics of the

subject property” and “adjoining properties.” App. 30.

This is code-speak for nothing less than condemnation

to increase adjacent home values - a patently

unconstitutional goal. The preservation of scenic vistas

for aselect group of residents (Mr. Kaywood’s immediate

neighbors) is not a valid public purpose or use. This

condemnation is an abuse of municipal discretion for the

direct benefit of Mr. Kennedy and Mr. Kaywood’s

neighbors.

The notion that the Town is taking land from Mr.

Kaywood to satisfy the whims of Mr. Kennedy who wants

to continuing farming the property and Mr. Kaywood’s

neighbors who want to protect their views is staggering

and threatens an unprecedented expansion of eminent

domain. It will encourage politically connected citizens

to co-opt the powers of eminent domain in order to bring

“as of right” development to a stand still and increase

their own property values. This is precisely why Kelo

requires a comprehensive economic development plan

where property is transferred from one private

individual to another.

In Kelo, this Court expressly noted that a one-to-

one transfer of property, executed outside the confines

of an integrated development plan, was not presented,

and would indeed “raise the suspicion that a private

purpose was afoot.” Kelo, supra, at 545 U.S. at 487.

Because there is no rational development plan in

connection with the taking of Aspen’s property, Aspen

essentially faces the equivalent of a one-to one taking

here, albeit in two stages. Despite its dissembling, the

Town essentially plans to take Aspen’s land and give it

to a private individual willing to farm the land. Although

the Town carefully avoids admitting the existence or

identity of that individual on the record, it is nonetheless

obvious from the reeord that the individual to receive

this benefit will be John Kennedy.

Mr. Kennedy was the only farmer who spoke at the

condemnation hearing. He urged the Town to condemn

the property so that he could continue to farm it.

Furthermore, while the Town has not expressly

admitted on the record its intent to sell or lease the land

to Mr. Kennedy, Mr. Kennedy already farms the land to

the East and the West of Aspen’s property. Even more

significantly Aspen was involved in a contentious legal

battle with Mr. Kennedy concerning his claimed right

to continue farming the property.

The Supreme Court of the United States has made

clear that, in cases where an owner of private property

claims that a governmental entity is unconstitutionally

taking the property for a nonpublic use, the property

owner’s claim is entitled to careful consideration and

investigation by a trial court. Justice Kennedy

emphasized that the defendant in Kelo “[{c]omplied with

the elaborate procedural requirements that facilitate

review of the record and inquiry into the city’s

purposes.” Jd. at 491 (Kennedy, J. concurring). In

particular, in Kelo, “the trial court conducted a careful

and extensive inquiry into ‘whether, in fact, the

development plan is of primary benefit to... the

developer, and private business... , and in that regard,

only incidental benefit to the city.” Jd. at 491 (Kennedy,

J., concurring) (citation omitted).

The need for a carefully considered economic plan

is particularly important in New York because New

York’s EDPL does not provide any of these procedural

protections and forecloses any serious scrutiny that the

involved municipal body is taking property “under the

mere pretext of a public purpose, when its actual

purpose [is] to bestow a private benefit.” Jd. at 478.

Under §§ 201-204 of the EDPL, the condemnor

itself — here, the Town Board — conducted a “hearing”

and decided for itself whether the taking is for a “public

use.” Under the EDPL, the Town Supervisor and the

Board served, in effect, as judge and jury on the

question of whether their stated purpose is, in fact,

pretextual. Parties adversely affected by this proposed

taking had no right under the EDPL to cross-examine

the government officials or private interests that will

benefit from this condemnation, or to obtain a de novo

determination by a neutral adjudicator. Moreover, in

contrast to the situation in Kelo, there was no trial court

at all —- much less any opportunity for a “careful and

extensive inquiry” into the critical issue of public use.

Although EDPL § 207 provides that the Appellate

Division can review the condemnor’s findings of “public

use,” the Appellate Division’s review is limited to the

virtually empty factual record made by the condemnor

pursuant to the condemnor’s own EDPL hearing. There

is no factual record of the “mere pretexts of a public

purpose” because there was no forum for petitioner to

cross-examine the proponents of the condemnation or

otherwise challenge their claimed assertion that there

is a public purpose to their action, or create an

appropriate factual record on the public use issue.

It is therefore critical that the Town create a

“carefully considered” plan because that will provide the

only basis to challenge the condemnation. The Town in

this case essentially had three options when it decided

to pursue the condemnation of Aspen’s property:

¢ Option No. 1: Create a plan which arguably

passes Constitutional muster (e.g., A plan which

provides that Town employees will farm the

property and that the land will be open to the

public).

Option No. 2: Create a plan which would not pass

Constitutional muster (e.g., A plan which leases

the property to a private faimer, John Kennedy,

for $1 a year for twenty years — a windfall to Mr.

Kennedy).

¢ Option No. 8: Don’t create a plan.

The Town chose Option No. 3 which forecloses any

close scrutiny of whether the purported public benefits

of this taking are outweighed by the private benefits.

The Court of Appeals improperly held that the Town’s

lack of a plan should be excused because the

condemnation was executed pursuant to a generally

applicable legislatively-enacted public policy in favor of

farmland preservation. That is not the standard which

this Court required in Kelo and sets a dangerous

precedent for future condemnation in New York and

elsewhere.

. Certiorari Should Be Granted to Reverse the

Continued Erosion of the Substantive Rights

Guaranteed ly the Takings Clause of the Fifth

Amendment tio the United States Constitution.

This Court’s decision in Kelo v. City of New London

is a landmark decision in takings jurisprudence which

has emboldened local municipalities across the country

to pursue condemnation in the name of economic

development. The New York Court of Appeals has now

adopted a new “public policy” standard which threatens

to further erode the substantive rights guaranteed by

the Takings Clause of the Fifth Amendment to the

United States Constitution.

Justice O’Connor, in her dissenting opinion in Kelo,

quoted Justice Chase, who, over two centuries ago,

wrote:

An ACT of the Legislature (for I cannot call it

a law) contrary to the great first principles of

the social compact, cannot be considered a

rightful exercise of legislative authority ....

A few instances will suffice to explain what I

mean ....{A} law that takes property from

A. and give it to B: It is against all reason and

justice, fur a people to entrust a Legislature

with SUCH powers; and, therefore, it cannot

be presumed that they have done it.

Calder v. Bull, 3 Dall. 386, 388, 1 L.Ed. 648 (1798).

Justice O’Connor lamented that in light of the

majority’s decision in Kelo the “specter of condemnation

hangs over all property” and there is nothing “to

prevent the State from replacing any Motel 6 with a

Ritz-Carlton, any home with a shopping mall, or any

farm with a factory.” Kelo, supra, 545 U.S. at 503. Justice

O’Conner also warned that:

If legislative prognostications about the

secondary public benefits of a new use can

legitimate a taking there is nothing in the

Court’s rule or in Justice KENNEDY’s gloss

on that rule to prohibit property transfers

generated with less care, that are less

comprehensive, that happen to result from

less elaborate process, whose only projected

advantage is the incidence of higher taxes, or

that hope to transform an already prosperous

city into an even more prosperous one.

Id.

Justice O’Connor’s fears have come true in this case.

The Town condemned Aspen’s property on a bare bones

record without creating any plan let alone a “carefully

considered” plan, and relied instead on legislative

prognostications about the general benefits of farm land

preservation — not specifically addressed to the taking

at hand. At the same time the Town has failed and/or

refused to identify who will ultimately receive the benefit

of this property foreclosing any meaningful judicial

scrutiny concerning whether the purported public

purposes of the condemnation are outweighed by the

private benefits.

The Town of Brookhaven has gone too far with too

little and the Court of Appeals improperly excused the

Town’s failure to create a “carefully considered” plan

by creating a new “public policy” standard. This Court

should reject this or any other standard which does not

satisfy the strict constitutional requirements set forth

in Kelo.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

Mark S. MULHOLLAND

Counsel of Record

JONATHAN C. SULLIVAN

Ruskin Moscou FALTIscHEK, PC.

1425 RXR Plaza

East Tower, 15" Floor

Uniondale, NY 11556-1425

(516) 663-6600

Attorney for Petitioner

APPENDIX

APPENDIX A — OPINION OF THE COURT OF

APPEALS OF NEW YORK

DECIDED FEBRUARY 17, 2009

COURT OF APPEALS OF NEW YORK

In the Matter of Aspen Creek Estates, Ltd.,

Appellant,

Town of Brookhaven et al.,

Respondents.

Argued January 14, 2009

Decided February 17, 2009

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be

affirmed, with costs. The certified question should not

be answered upon the ground that it is unnecessary.

Petitioner contends that the United States Supreme

Court’s decision in Kelo v. New London, 545 U.S. 469,

125 S.Ct. 2655, 162 L.Ed.2d 439 [2005], which dealt with

takings for purposes of economic development, requires

a preexisting farmland preservation plan to justify the

taking of its property as a public use within the meaning

of the Fifth Amendment (see U.S. Const.Amend. V

Appendix A

(“nor shall private property be taken for public use,

without just compensation”]). We need not, and do not,

reach the issue whether petitioner’s interpretation of

Kele is correct, since the challenged taking was

constitutionally proper even assuming that a preexisting

farmland preservation plan was necessary. Petitioner’s

property was taken pursuant to a legislatively-declared

public policy in favor of farmland preservation and as

part of the Town of Brookhaven’s master plans

endorsing farmland preservation. In furtherance of

these plans, Town voters passed three bond acts

providing $130 million to acquire development rights or

fee interests in undeveloped land in the Town; among

the areas specifically designated for preservation was

the 500-acre tract of farmland in which petitioner’s

parcel is located.

In short, the public benefits of the taking in this

case were not incidental or pretextual in comparison

with benefits to particular, favored private entities;

petitioner’s remaining arguments likewise lack merit.

Finally, the parties have not argued, and we do not

decide, whether the New York Constitution (see N.Y.

Const. art I, § 7[a] ) imposes a more stringent standard

for takings than does the Fifth Amendment as

interpreted by Kelo.

Judges Ciparick, Graffeo, Read, Smith, Pigott and

Jones concur in memorandum; Chief Judge Lippman

taking no part.

Judgment affirmed, ete.

APPENDIX B — DECISION AND ORDER ON

MOTION OF THE SUPREME COURT OF THE

STATE OF NEW YORK, APPELLATE DIVISION,

SECOND JUDICIAL DEPARTMENT

DATED MARCH 28, 2008

ROBERT A. SPOLZINO, J.P.

STEVEN W. FISHER

DAVID S. RITTER

ROBERT A. LIFSON, JJ.

2006-03815

In the Matter of Aspen Creek Estates, Ltd.,

petitioner,

Town of Brookhaven, et al.,

respondents.

DECISION & ORDER ON MOTION

Motion by the petitioner for leave to reargue a

proceeding pursuant to EDPL 207 to review a

determination of the Town of Brookhaven dated March

21, 2006, made after a public hearing, to acquire the

petitioner’s property by condemnation, which was

determined by opinion and judgment of this court dated

December 4, 2007, or, in the alternative, for leave to

appeal to the Court of Appeals from the opinion and

judgment of this court.

Appendix B

Upon the papers filed in support of the motion and

the papers filed in opposition thereto, it is

ORDERED that the branch of the motion which is

for leave to reargue is denied; and it is further,

ORDERED that the branch of the motion which is

for leave to appeal to the Court of Appeals is granted,

and the following question is certified to the Court of

Appeals: Was the opinion and judgment of this court

dated December 4, 2007, properly made?

Questions of law have arisen, which, in our opinion,

ought to be reviewed by the Court of Appeals (see CPLR

5713).

SPOLZINO, J.P, FISHER, RITTER and LIFSON, JJ.,

concur.

ENTER:

S/ James Edward Pelzer

James Edward Pelzer

Clerk of the Court

March 28, 2008

APPENDIX C — OPINION OF THE

SUPREME COURT, APPELLATE DIVISION,

SECOND DEPARTMENT, NEW YORK

DATED DECEMBER 4, 2007

SUPREME COURT, APPELLATE DIVISION,

SECOND DEPARTMENT, NEW YORK

In the Matter of ASPEN CREEK ESTATES, LTD.,

Petitioner,

TOWN OF BROOKHAVEN, et al.,

Respondents.

December 4, 2007

OPINION OF THE COURT

Krausman, J.

The subject of this condemnation proceeding is a

39-acre parcel of farmland (hereinafter the property)

which the petitioner Aspen Creek Estates, Ltd.

(hereinafter Aspen Creek), purchased for residential

development. The property is located in a portion of the

Town of Brookhaven known as the “Manorville

Farmland Protection Area.” The Manorville Farmland

Protection Area is an approximately 500-acre working

farm belt which has been described as “the largest and

most contiguous belt of productive agricultural land”

Appendix C

remaining in the Town. At issue in this proceeding is

whether the Town’s decision to exercise its power of

eminent domain to condemn the property in order to

preserve its use as farmland serves a legitimate public

purpose, or is instead a pretext to improperly confer

benefits upon private persons. Contrary to the

conclusion reached by our dissenting colleague, we

believe that the record fully supports the Town’s

decision to condemn the property for a public purpose

as part of its continuing efforts to preserve the rural

character of the Manorville Farmland Protection Area

and ensure that the historical use of the land is not

extinguished by development. Accordingly, we confirm

the determination acquiring the property by

condemnation.

On January 24, 2006, the Town Board of the Town

of Brookhaven (hereinafter the Board) took the first

step in the condemnation process by adopting a

resolution expressing its intent to acquire the property

and its development rights in order to ensure that

it be “maintained for farming and not developed.”

In accordance with the requirements of the Eminent

Domain Procedure Law, the resolution scheduled a

public hearing on the proposed acquisition, and directed

the Town Clerk to publish notice of the hearing in two

local newspapers (see EDPL 201, 202).

At the ensuing public hearing conducted on March

i, 2006, Town representatives described the purpose of

the condemnation and the Town’s prior attempts to

acquire the property through a negotiated sale.

land

Appendix C

Members of various civic associations, neighboring

property owners, local residents, and Aspen Creek’s

president were then afforded an opportunity to express

their views. According to testimony presented at the

hearing, the subject property was continuously farmed

for over a century. In the late 1800s the property was a

hay farm, and in more recent years a variety of crops

have been grown on the land, including strawberries,

corn, potatoes, cauliflower, and string beans. One of the

area residents attending the hearing noted that the

property was particularly beautiful in the fall, when

pumpkins and sunflowers were harvested. The

farmhouse on the property predates 1858, and has been

recommended for landmark designation by the Town’s

Historic District Advisory Committee. An adjacent

landowner, John Kennedy, leased the subject property

and farmed it for approximately 23 years, until it was

sold to Aspen Creek and an action for ejectment was

commenced to remove him from the property (see Aspen

Cr. Estates, Inc. v. Kennedy, 32 A.D.3d 870, 823 N.Y.S.2d

78).

The hearing testimony further reveals that the

Town’s initial efforts to acquire the property began on

January 14, 2008, when the Town’s Open Space

Environmental Bond Act Committee approved the

purchase of the development rights to the property from

its former owners. However, at that time Aspen Creek’s

president, Anthony Kaywood, was already in the process

of negotiating the prrchase of the property. On

February 6, 2003, when Kaywood appeared before a

Manorville civic group to discuss a proposal to subdivide

Appendix C

and build 19 houses on the property, he was advised

“that the Town was interested in preserving the entire

area and that that parcel was a priority.” Although the

Town entered into negotiations with the former owners

of the property, Aspen Creek outbid the Town, and on

March Y, 2004, it purchased the property for $1.4 million.

Shortly thereafter, the Town entered into negotiations

to purchase the development rights to the property

from Aspen Creek. After Aspen Creek rejected the

Towr’® initial offer as too low, the Town increased its

offer to $3.52 million based upon the highest property

appraisal it had received. In January 2006 the Town

increased its offer for the property’s development rights

to $4.004 million. In addition, according to the Town

Attorney, in an effort to reach a compromise, the parties

discussed allowing three lots to be developed so that

Kaywood and his two partners could build houses for

themselves on the property. After these attempts to

negotiate a purchase of the property’s development

rights proved unsuccessful, the Town began the process

of acquiring ownership of the land and development

rights through the exercise of eminent domain.

Testimony was also presented at the hearing which

demonstrates that the Town’s efforts to preserve

Manorville’s farming heritage was not limited to the

acquisition of the subject property. At the time of the

hearing, the Town, in partnership with the County of

Suffolk, had acquired the development rights to four

farms in the Manorville protection area, including the

Hoschler Farm located directly to the east of the

property. The Town and County shared in the $8,270,000

Appendix C

cost of acquiring the development rights to these four

farms, thus preserving approximately 112 acres of

farmland.

Shortly after the hearing, the Town’s Division of

Environmental Protection completed an Environmental

Assessment Form (hereinafter EAF) determining that

the proposed condemnation was an unlisted action and

would not have a significant impact on the environment,

thereby warranting issuance of a negative declaration

pursuant to the State Environmental Quality Review

Act (hereinafter SEQRA).

At a meeting on March 21, 2006, the Board voted to

acquire title to the property and its development

rights through the exercise of eminent domain, and

adopted the Division of Environmental Protection’s

recommendation to issue a negative declaration.

In approving the condemnation, the Board declared that

the property was being acquired, among other things,

to preserve open space and agricultural resources,

protect and promote continuation of agriculture in the

Town, ensure the continued sale of fresh, locally grown

produce, and prevent conflicts between residential

homeowners and adjacent farmers. The Board also

found that preserving the property would “have a

positive impact on the environment and surrounding

community by ensuring the protection of scenic vistas

and the rural character of the area, and helping to

achieve the protection of the 500-acre Manorville Farm

Protection Area, a high priority preservation target.”

10a

Appendix C

Aspen Creek thereafter commenced this proceeding

to review the Town’s determination, alleging, inter

alia, that the Town had failed to comply with EDPL

requirements that a property owner be given notice of

the purpcse of the condemnation and a reasonable

opportunity to testify and present evidence at the

hearing, and that application of the EDPL was

unconstitutional as applied to Aspen Creek because it

did not afford it an opportunity to cross examine the

proponents of the condemnation. In addition, Aspen

Creek claimed that the Board had failed to fulfill its

obligations under SEQRA in issuing a negative

declaration concluding that the condemnation would

have no significant environmental impact. Aspen Creek

further claimed that the Town’s determination violated

the EDPL because its true intent was to take the subject

property to lease to private farmers.

The principal purpose of EDPL article 2 is to ensure

that a governmental entity does not acquire property

without having made a reasoned determination that the

condemnation will serve a valid public purpose

(see EDPL 201; Matter of Jackson v. New York State

Urban Dev. Corp., 67 N.Y.2d 400, 417-418, 503 N.Y.S.2d

298, 494 N.E.2d 429; Matter of Woodfield Equities LLC

v. Incorporated Vil. of Patchogue, 28 A.D.3d 488, 489,

812 N.Y.S.2d 184). Although a party aggrieved by the

condemnor’s determination and findings may seek

judicial review, the scope of that review is limited by

EDPL 207 to: (1) whether the proceeding was in

conformity with the federal and state constitutions,

(2) whether the proposed acquisition is within the

lla

Appendix C

condemnor’s statutory jurisdiction or authority,

(3) whether the condemnor’s determination and findings

were in accordance with the procedures set forth in

EDPL article 2 and SEQRA, and (4) whether a public

use, benefit, or purpose will be served by the proposed

acquisition. “If an adequate basis for a determination is

shown ard the objector cannot show that the

determination was without foundation, the agency’s

determination should be confirmed” (Matter of Waldo’s,

Inc. v. Village of Johnson City, 74 N.Y.2d 718, 720, 544

N.Y.S.2d 809, 548 N.E.2d 74; see Matter of Butler v.

Onondaga County Legislature, 39 A.D.3d 1271, 1272,

833 N.Y.S.2d 829; Matter of Kaufmann’s Carousel v.

City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292,

300, 750 N.Y.S.2d 212). A property owner seeking to

challenge a municipality’s finding that a proposed

condemnation will further a public use has the burden

of establishing that the determination does not rationally

relate to a conceivable public purpose (see Matter of

Waldo’s, Inc. v. Village of Johnson City, 74 N.Y.2d at

720, 544 N.Y.S.2d 809, 543 N.E.2d 74; Matter of Jackson

v. New York State Urban Dev. Corp., 67 N.Y.2d at 420-

421, 503 N.Y.S.2d 298, 494 N.E.2d 429).

Turning first to Aspen Creek’s procedural

challenges, we reject its contention that it did not receive

adequate notice of the public hearing, and that its

president Anthony Kaywood was denied a reasonable

opportunity to testify and present evidence. EDPL

202(a), which requires the condemnor to state the

purpose of the hearing in its notice, does not obligate it

to describe every aspect of the project and its

12a

Appendix C

implementation (see Matter of Rocky Point Realty, LLC

v. Town of Brookhaven, 36 A.D.3d 708, 828 N.Y.S.2d 197;

Matter of Kaufmann’s Carousel v. City of Syracuse

Indus. Dev. Agency, 301 A.D.2d at 292, 750 N.Y.S.2d

212). Here, the published notice stating that the Town

sought to acquire the property and development rights

to ensure its continuation as farmland was sufficient to

satisfy the requirements of EDPL 202(a). Furthermore,

although the separate notice sent to Aspen Creek was

less detailed, the record demonstrates that Kaywood

was fully aware of the Town’s stated purpose for seeking

condemnation, and thus had an opportunity to prepare

for the hearing. Moreover, while the Board limited

speaking time at the hearing because of the large

number of people who wished to be heard, the record

reflects that Kaywood was given considerably more time

to present his views than other speakers. There is also

no evidence that Aspen Creek was denied an

opportunity to supplement Kaywood’s presentation by

submitting written materials after the hearing.

We also find no merit to Aspen Creek’s argument

that the EDPL is unconstitutional as applied in this case

because the statute does not give parties adversely

affected by a proposed taking the right to an adversarial

hearing at which government officials can be cross

examined. The procedures outlined in the EDPL have

been held to satisfy the due process requirements of

the Federal and State Constitutions (see Matter of

Waldo’s Inc. v. Village of Johnson City, 141 A.D.2d 194,

534 N.Y.S.2d 723, affd. 74 N.Y.2d 718, 544 N.Y.S8.2d 809,

543 N.E.2d 74; Village Auto Body Works v. Incorporated

13a

Appendix C

Vil. of Westbury, 90 A.D.2d 502, 503, 454 N.Y.S.2d 741;

First Broadcasting Corp. v. City of Syracuse, 78 A.D.2d

490, 494-496, 435 N.Y.S.2d 194), and Aspen Creek’s

allegations that the proponents of the condemnation

were, in essence, biased and/or acting in bad faith does

not warrant judicially transforming the public hearing

required by statute into a full-fledged adversarial

proceeding (see Matter of Waldo’s, Inc. v. Village of

Johnson City, 74 N.Y.2d at 722, 544 N.Y.S.2d 809, 543

N.E.2d 74). Indeed, as the Court of Appeals observed

in rejecting a similar argument in Matter of Waldo’s,

Inc. v. Village of Johnson City, 74 N.Y.2d at 719, 544

N.Y.S.2d 809, 543 N.E.2d 74, “at the public hearing

petitioner was free to present any evidence to

undermine the bona fides of the legislative body’s

decision-making process. Having completely failed to do

so, petitioner can not now be heard to complain.”

Furthermore, the petitioner’s contention that the

Town failed to comply with the requirements of SEQRA

in adopting its findings and determination is without

merit. SEQRA requires that agencies “minimize or avoid

adverse environmental effects” when considering

proposed actions (ECL 8-0109[1]; see 6 NYCRR 617.7).

In the EAF prepared in connection with the

condemnation, no adverse environmental impacts were

identified, and Aspen Creek has failed to assert any

significant potential for environmental harm that might

result from condemnation. Although Aspen Creek notes

that the property is located in a Compatible Growth Area

of the Central Pine Barrens Region, in considering the

potential environmental impact of the proposed

Appendix C

condemnation it cannot be overlooked that the Town’s

purpose in acquiring the property is to continue the

farming use that has been in place for generations. Thus,

as noted by the Town in its negative declaration, the

acquisition will actually have a beneficial impact on the

environment. Under these circumstances, the issuance

of a negative declaration was appropriate and the

preparation of an environmental impact statement was

unnecessary (see 6 NYCRR 617.7[a][2]; Matter of Wells

v. Board of Trustees of Inc. Vil. of Northport, 40 A.D.3d

652, 835 N.Y.S.2d 4382; Matter of Rocky Point Realty,

LLC v. Town of Brookhaven, 36 A.D.3d at 708, 828

N.Y.S.2d 197; Matter of Woodfield Equities LLC v.

Incorporated Vil. of Patchogue, 28 A.D.3d at 488, 813

N.Y.S.2d 184; Matter of McCarthy v. Town of Smithtown,

19 A.D.3d 695, 797 N.Y.S.2d 555).

Turning next to the issue of whether the

condemnation will serve a public purpose, we believe

that it is clear, as our dissenting colleague concedes, that

the Town’s stated reasons for acquiring the property—

preserving farmland and maintaining open space and

scenic vistas—are all legitimate public purposes. “What

qualifies as a ‘public purpose’ or ‘public use’ is broadly

defined as encompassing virtually any project that may

confer upon the public a benefit, utility, or advantage”

(Matter of 49 WB, LLC v. Village of Haverstraw, 44

A.D.3d 226, 235, 839 N.Y.S.2d 127). These terms

encompass “any use which contributes to the health,

safety, general welfare, convenience or prosperity of the

community” (Greenwich Assoc. v. Metropolitan Transp.

Auth., 152 A.D.2d 216, 221, 548 N.Y.S.2d 190; see Matter

lSa

Appendix C

of Rocky Point Realty, LLC v. Town of Brookhaven,

36 A.D.3d at 708, 828 N.Y.S.2d 197). Clearly, the

preservation of farmland confers a benefit upon the

public, since it enables residents of the Town to enjoy

locally grown produce and scenic views. Indeed, the

proposed condemnation had the overwhelming support

of almost all of the area residents and civic association

members who spoke at the hearing. Many of these

individuals spoke eloquently about the beauty of the

property, the area’s “pristine landscape,” and the

desirability of maintaining Manorville’s rich farming

heritage for future generations. Another speaker

pointed out, in a letter read at the hearing, that “land

suitable for farming is an irreplaceable natural resource

with soil and topographic characteristics that have been

enhanced by generations of agricultural use. When such

land is converted to residential or other more developed

uses that do not require those special characteristics, a

critical community resource is permanently lost to the

citizens of the area and the county at large.”

Furthermore, the preservation of farmland is in

keeping with the declared public policy of this state to

“promote, foster, and encourage the agricultural

industry” (Agriculture and Markets Law § 3), and to

acquire interests and rights in real property for the

preservation of open space and enhancement of natural

resources, including agricultural lands (see General

Municipal Law § 247|1]). So important is the protection

of open spaces and natural resources to residents of the

Town that in 2002 they overwhelmingly voted for a bond

act to provide $20 million for the preservation of open

l6a

Appendix C

space and environmentally important lands. Town

residents subsequently approved the Clean Water Open

Space Bond Act of 2004, authorizing the issuance of up

to $100 million in bonds “to finance the acquisition of

interests or rights in real property in the Town for the

preservation of open space, farmland and wildlife

habitats.”

Despite the fact that preservation of farmland

undoubtedly provides a benefit to the public, Aspen

Creek maintains that the condemnation of its property

does not pass constitutional muster because the true

purpose of the taking is to bestow a private benefit on

certain individuals. In this regard, Aspen Creek asserts

that the Town is trying to take its private property to

allow a private individual other than the present owner

to use it as a farm, and/or to block further development

in order to increase the value and appeal of already

existing homes. To the extent that Aspen Creek appears

to be questioning the motives of members of the Board

and the many citizens who spoke in favor of the proposed

condemnation at the public hearing, its allegations find

no factual support in the record and are insufficient to

demonstrate bad faith (see Matter of 49 WB, LLC »v.

Village of Haverstraw, 44 A.D.3d at 238-239, 839

N.Y.S.2d 127; Matter of Woodfield Equities LLC v.

Incorporated Vil. of Patchogue, 28 A.D.3d at 488, 813

N.Y.S.2d 184). Moreover, the mere fact that

condemnation will provide incidental benefits to private

individuals does not invalidate the condemnor’s

determination as long as the public purpose is dominant

(see Matter of Waldo’s Inc. v. Village of Johnson City,

17a

Appendix C

74 N.Y.2d at 721, 544 N.Y.S.2d 809, 543 N.E.2d 74;

Matter of 49 WB, LLC »v. Village of Haverstraw, 44

A.D.3d at 238, 839 N.Y.S.2d 127; Matter of Glen Cove

Community Dev. Agency, 259 A.D.2d 750, 712 N.Y.S.2d

553).

Recently, in Kelo v. City of New London, 545 U.S.

469, 125 S.Ct. 2655, 162 L.#d.2d 439, the United States

Supreme Court upheld the condemnation of a number

of parcels which were located in a 90-acre area that had

been targeted for development “to revitalize an

economically distressed city.” The development agent

of the City of New London, a nonprofit entity, proposed

leasing some of the parcels to private developers in

exchange for their agreement to develop the land

according to the terms of the development plan. In

reaching its decision to uphold condemnation, the

United States Supreme Court acknowledged that the

City was forbidden from taking the petitioners’ land for

the purpose of conferring a private benefit on a

particular private party, or taking the property “under

the mere pretext of public purpose, when its actual

purpose was to bestow a private benefit.” However, the

United States Supreme Court concluded that the taking

of the petitioners’ properties pursuant to a “carefully

considered development” plan which the City believed

would provide appreciable benefits to the community

satisfied the public use requirement of the Fifth

Amendment. The United States Supreme Court also

rejected the petitioners’ argument that using eminent

domain for economic development impermissibly blurs

the boundary between public and private takings,

18a

Appendix C

observing in this regard that “the government’s pursuit

of a public purpose will often benefit individual private

parties” (id. at 485, 125 S.Ct. 2655).

Aspen Creek relies upon Kelo to argue that the

condemnation of its property either serves no public

benefit, or is a pretext to benefit private individuals,

because it was not part of a carefully considered

development plan. However, in contrast to Kelo, this

matter does not involve a proposed taking for economic

development, which arguably might need to be justified

by a formalized development plan. Rather, as the Town

points out, the purpose of the condemnation of Aspen

Creek’s property is the preservation of farmland, and

the concomitant preservation of open space and scenic

vistas. Neither Kelo, nor this Court’s recent decision in

Matter of 49 WB, LLC v. Village of Haverstraw, upon

which our dissenting colleague also relies, requires that

a proposed condemnation for the preservation of

farmland be part of a comprehensive development plan.

In any event, while it does not appear from the

record that the precise boundaries of the Manorville

Farmland Protection Area have been formally defined

by the Town, it is clear from the comments made by

various speakers at the hearing that the desirability of

preserving farmland in Manorville has indeed been

recognized by civic associations and public officials. A

plan prepared by the Manorville Taxpayers Association

in 1993 set preservation of the remaining farms in the

hamlet as a goal, and stated that the “area of

preservation would include the 300+ agricultural

19a

Appendix C

farmland acres between the north side of South Street

and the south side of the [Long Island] Expressway,” as

well as farmlands bordering Sunrise Highway.

Furthermore, the Town’s Director of Environmental

Protection explained at the hearing that what was

referred to as the Manorville Farm Protection Area was

approximately 500 contiguous acres of productive

farmland bracketed by the Long Island Expressway and

South Street. Moreover, it is difficult to perceive how

the existence of a genuine desire to preserve the land

lying within this working farm belt can be gainsaid in

light of evidence at the hearing that the Town and

County had recently expended over $8 million to acquire

the development rights to four farms in the Manorville

protection area, including a farm located directly to the

east of the property.

The fact that the Town entertained the possibility

of allowing the three principals of Aspen Creek to build

individual residences on the property in an effort to

achieve a negotiated sale does not cast doubt on the

“true motivation” of Town officials. As the dissent

recognizes, it is obvious that a voluntarily negotiated

sale is preferable to the exercise of eminent domain, and

the Town’s willingness to consider this very limited

residential development on the property in an effort to

achieve a compromise does not undercut the legitimacy

of its farmland preservation goal. Although the dissent

places great emphasis on the Town’s initial failure to

match Aspen Creek’s $1.4 million offer for the property

in 2003, and its subsequent willingness to increase its

offer, it should be noted that the enactment of the 2004

20a

Appendix C

bond act apparently placed a far greater amount of funds

at the Town’s disposal. It is also significant to note that

the increase in the Town’s offering price was based upon

the appraised value of the property, and was not simply

arbitrary.

Although the record is completely devoid of evidence

pertaining to how the Town intends to use the property

after the acquisition, the possibility that the Town may

sell or lease the land to a farmer does not make the

proposed condemnation a pretext for improperly

conferring a private benefit. As noted, the land had been

continuously farmed for more than acentury before Aspen

Creek purchased it for development purposes, with full

knowledge that it had been targeted for preservation.

Since allowing farming to continue on the property is fully

consistent with the purpose of this condemnation, the fact

that one or more individual farmers may benefit is merely

incidental, and does not render the public benefit to be

achieved by condemnation illusory. The record is also

completely devoid of evidence to support Aspen Creek’s

theory that the proposed condemnation was motivated by

a desire to increase the property value of existing homes

in Manorville, and, in any event, any increase in property

values would similarly be an incidental benefit.

Finally, we conclude that Aspen Creek has failed to

sustain its burden of establishing that the taking is

excessive. “[I]t is generally accepted that the condemnor

has broad discretion in deciding what land is necessary to

fulfill [the public] purpose” (Matter of Rafferty v. Town of

Colonie, 300 A.D.2d 719, 723, 752 N.Y.S.2d 725; see Matter

2la

Appendix C

of Butler v. Onondaga County Legislature, 39 A.D.3d 1271,

833 N.Y.S.2d 829; Matter of Stankevich v. Town of

Southold, 29 A.D.3d 810, 815 N.Y.S.2d 225; Matter of

Gyrodyne Co. of Am. Inc. v. State Univ. of N.¥. at Stony

Brook, 17 A.D.3d 675, 794 N.Y.S.2d 87). As pointed out at

the hearing, the property lies within a large, contiguous

tract of working farmland, and permitting any significant

residential development defeats the Town’s aim of

preserving this entire area. Thus, the Town’s

determination that acquisition of the entire parcel was

necessary to achieve the public purpose of the

condemnation was rational, and there is no basis upon

which to disturb it. Accordingly, the determination is

confirmed, the petition is denied, and the proceeding is

dismissed.

CRANE, J.P and FISHER, J., concur.

LIFSON, J., dissents and votes to grant the petition

and annul the determination with the following

memorandum:

Aspen Creek Estates, Ltd. (hereinafter Aspen

Creek or the petitioner) owned about 39.15 acres

(hereinafter the property) located north of South Street

and east of Wading River Road in the Town of

Brookhaven. Aspen Creek acquired the property in 2004

for a price of about $1.4 million. According to the “Notice

to property owners,” the Town sought to acquire the

property

“{tlo preserve open space and agricultural

resources; to preserve prime agriculture in

22a

Appendix C

the Town which is an important component of

the local economy; to ensure the retention of

scenic vistas; to protect the bucolic and rural

character of the subject property, adjoining

properties, and the Manorville Farm

Protection Area; to ensure the continued sale

of fresh, locally-grown produce; to prevent

conflicts between residential homeowners and

adjacent farmers; and to help ensure the

preservation of the Manorville Farm

Protection Area, a high priority preservation

target which contains the largest contiguous

belt of working farmland left in Brookhaven

Town.” .

At the ensuing public hearing, testimony was heard

as to the public necessity of acquiring the property and

the Town’s three-year attempt to acquire the property

through a negotiated purchase. The last offer rejected

by the petitioner included a proposed purchase price of

$4.004 million, while allowing the retention of three

building lots for development for the petitioner’s

principals as their own homes. The Town similarly had

attempted to acquire the property from the prior owner

but the petitioner had offered a higher price and,

thereby, acquired the property.

In opposition, the petitioner presented proof which

indicated that it had submitted no less than 30

development alternatives, all of which had been rejected

by the Town. In one proposal, the petitioner submitted

a plan which preserved two thirds of the property as

23a

Appendix C

farmland and confined development to the remaining

one third of the property.

Based on this record, the Town issued a negative

declaration under the State Environmental Quality

Review Act (ECL art. 8 [hereinafter SEQRA]) and

directed the Town Attorney to acquire the property by

condemnation. That decision allegedly was based on the

Town’s perfunctory conclusion that the proposal was an

unlisted action, did not involve any physical activity, and

was not anticipated to have a significant impact on the

environment, public health, or the character of the

community and that the condemnation “will preserve

and protect ecologically important land and farmland

. and would thus have a beneficial effect on the

environment.”

The instant petition to annul the negative

declaration under SEQRA and the respondents’

determination condemning the property alleges that the

Town acted in bad faith in condemning the property,

doing so only to avoid having the Town Planning Board

ordered to pass on subdivision of the property via an

article 78 proceeding. The petition also alleges that the

condemnation was effected in violation of the

Constitutions of the United States and the State of New

York, that the condemnation procedure was flawed, and

that the condemnation was approved without proper

environmental review. The respondents have denied the

allegations of the petition.

24a

Appendix C

For the reasons stated below, I believe the petition

should be granted and the determination and findings

of the Town of Brookhaven dated March 21, 2006,

authorizing the condemnation of the subject parcel,

should be annulled. At the outset, | concur with the

majority’s conclusion that the petitioner’s procedural

arguments are without merit. Similarly, I agree that the

purported public purpose alleged to be advanced by the

condemnation, to wit, the preservation of farmland, open

spaces and scenic vistas would, if applied in good faith,

advance a recognized public policy of the State of New

York and the County of Suffolk (see e.g. General

Municipal Law § 247; Agriculture & Markets Law § 3;

Suffolk County Farmland Preservation Law [1974];

Suffolk County Agricultural Preservation Plan [2006)).

The guiding legal principles with respect to the

exercise of the State’s power of eminent domain were

recently revisited in Kelo v. City of New London, 545

U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 4389 and its

progeny. As Kelo clearly states, the taking of one

citizen’s property for the purpose of comerring a private

benefit on another citizen is violative of the Constitution

of the United States and is therefore forbidden except

where such benefit is merely incidental to some other

bona fide public purpose expressed through a

recognizable plan (see Kelo v. City of New London, 545

U.S. at 477, 125 S.Ct. 2655). Kelo also prohibits the

utilization of a bona fide public purpose as a rationale

or pretext for a taking designed to benefit private

citizens (see Kelo v. City of New London, 545-U.S. at

478, 125 S.Ct. 2655). This Court has recently expanded

25a

Appendix C

the Kelo rationale to require careful scrutiny in

determining whether the taking was pretextual,

especially where the taking is for ephemeral purposes

such as alleged economic development (see 49 WB, LLC

v. Village of Haverstraw, 44 A.D.3d 226, 839 N.Y.S.2d

127).

In both Kelo and 49 WB, LLC, the proposed taking

was to advance economic development in an urbanized

setting. In Kelo, the United States Supreme Court

placed great weight on a record that clearly

demonstrated that the taking was pursuant to a

comprehensive master development plan. In 49 WB,

LLC, this Court determined that, while the asserted

purpose of the taking could be rationalized as advancing

a recognized public policy (i.e. economic development),

in actuality the taking was done primarily and illegally

to advance the economic needs of a particular developer

to satisfy that developer’s obligation to provide a

threshold amount of affordable housing imposed by an

earlier contract with the municipality. In the present

case, the proposed taking occurs in a rural setting where

the avowed public purpose is, depending on one’s point

of view, the prevention of development of vacant land

and/or the preservation of dwindling acres of farmland.

Notwithstanding that this taking is the polar opposite

confronting this Court in 49 WB, LLC v. Village of

Haverstraw, applying the same rationale used therein

to this record leads me to the inescapable conclusion

that this taking was pretextual and is, therefore,

forbidden by the Federal Constitution (see Kelo v. City

of New London, 545 U.S. at 469, 125 S.Ct. 2655).

26a

Appendix C

I conclude that the rationale for the proposed taking

is pretextual for the following reasons. First, while there

are several references to a Manorville Farmland

Protection Area in the record, no Town ordinance or

formalized plan for the alleged preservation of the area

in which the property is located is set forth. Instead,

the respondents rely on vague references to such

designation as early as 1993 without being able to explain

what the detailed plan was or is. The fact that the Town’s

Open Space Committee approved the “pretection” of the

area in 2003 or that bond proceeds were used to acquire

parcels of lands or development rights within such

designated area is not proof of a coherent plan for

preservation, or that the public acquisition of the entire

tract (i.e. the property) and its use as farmland is

essential to the furtherance of such an alleged plan.

Second, assuming that a valid plan existed for the

acquisition of the property, the Town’s actions on this

matter seem at great variance with what that plan

purports to be. The Town allegedly endeavored to

acquire the land for farmland preservation purposes in

2003, apparently while it was still utilized for agricultural

purposes, yet failed to match Aspen Creek’s offer of $1.4

million. As the New York State Farm Bureau’s Director

of Public Policy indicated at the hearing, acquisition of

development rights of an existing farm via arms-length

negotiations is preferable to condemnation of the

property in toto and is the general norm for farmland

preservation. That view was supported by the Long

{sland Builders Association.

27a

Appendix C

Third, the willingness of the Town to increase its

offer nearly 300% in less than two years, and the

concomitant loss of millions of dollars for further

acquisitions of property or development rights within

the alleged targeted preservation area, raises questions

as to the motivations of those involved as well as the

propriety of the transactions (see e.g. State of New York

v. Grecco, 43 A.D.3d 397, 840 N.Y.S.2d 149; State of New

York v. Grecco, 21 A.D.3d 470, 800 N.Y.S.2d 214). Fourth,

that circumstance is further magnified by the fact that

testimony was offered at the hearing that any residential

development within the Manorville Farmland Protection

Area was incompatible with any agricultural use. Yet,

contrary to its alleged public purpose, the Town had

indicated a willingness to allow residential development

of some of the property for homes of the principals of

Aspen Creek. The difference between that plan and one

of the plans proposed by the petitioner, encompassing

the preservation of about two thirds of the property as

open space or farmland (without any cost to the public),

is merely a matter of degree. However, the loss of nearly

$4 million for the potential preservation of the remainder

of the parcels within the alleged Manorville Farmland

Protection Area is inexplicable and calls into question

the true motivation of the respondents.

Lastly, the fact that the property was taken while it

was not in agricultural use is of no small moment.

That circumstance clearly shows that the alleged

“preservation” of the agricultural use of the parcel can

no longer be accomplished without the rental of the

property to a “farmer.” That “farmer,” whether the

28a

Appendix C

previous tenant, as asserted in petitioner’s brief (and

the pool of potential farmers appears to be extremely

limited), or another, would be the sole beneficiary of the

economic utilization of the property. Thus, I conclude

that the potential benefit to the public is so

disproportionate and ephemeral when compared to the

actual benefit conferred on the tenant that the proposed

taking cannot be justified as an efficient advancement

of the stated public policy.

Because I believe that close scrutiny of the rationale

offered by the Town offers illusory benefits to the public

and is a mere pretext for an impermissible taking

(see 49 WB, LLC v. Village of Haverstraw, 44 A.D.3d

226, 839 N.Y.S.2d 127), I respectfully dissent.

ADJUDGED that the determination is confirmed,

with costs, the petition is denied, and the proceeding is

dismissed.

29a

APPENDIX D — RESOLUTION OF MARCH 21,

2006 ADOPTING THE FINDINGS AND

DETERMINATION OF THE TOWN

BOARD [140-141]

RESOLUTION OF MARCH 21, 2006 ADOPTING

THE FINDINGS AND DETERMINATION OF THE

TOWN BOARD [140-141]

RESOLUTION NO. 8A

MARCH 21, 2006

ADOPTING THE FINDINGS

AND DETERMINATION OF THE

TOWN BOARD TO CONDEMN

PROPERTY TO INSURE IT IS

USED AS FARMLAND AND TO

ACQUIRE DEVELOPMENT

RIGHTS - MANORVILLE

WHEREAS, a hearing has heretofore been held on

March 7, 2006, by the Town Board of the Town of

Brookhaven, in Suffolk County; New York, with regard

to the proposed acquisition of real property situated at

Manorville, Town of Brookhaven, County of Suffolk, New

York, and

WHEREAS, this property is more fully described

as Suffolk County Tax Map No. 0200-508.00-01.00-

015.001, and

30a

Appendix D

WHEREAS, pursuant to Section 204 of the Eminent

Domain Procedure Law, the Town Board has made its

findings and determination with regard to the proposed

acquisition and public project;

NOW, THEREFORE, BE IT RESOLVED by the

Town Board of the Town of Brookhaven, in Suffolk

County, N.Y. as follows:

That the following constitutes the findings and

determination of the Town Board of the Town of

Brookhaven and is hereby adopted as such:

1. The purpose of the acquisition is: to preserve

open space and agricultural resources; to preserve prime

agricultural soils; to help protect and promote

continuation of agriculture in the Town which is an

important component of the local economy; to ensure

the retention of scenic vistas; to protect the bucolic and

rural character of the subject property, adjoining

properties, and the Manorville Farm Protection Area;

to ensure the continued sale of fresh, locally-grown

produce; to prevent conflicts between residential

homeowners and adjacent farmers; and to help ensure

the preservation of the Manorville Farm Protection

Area, a high priority preservation target which contains

the largest contiguous belt of working farmland left in

Brookhaven Town.

2. The property is located on the north side of South

Street in Manorville approximately 600 feet east of the

intersection of South Street and Wading River Road.

3la

Appendix D

3. The action by the Town of Brookhaven, through

preserving the property, will have a positive impact on

the environment and surrounding community by

ensuring the protection of scenic vistas and the rural

character of the area, and helping to achieve the

protection of the 500-acre Manorville Farm Protection

Area; a high priority preservation target of the Town of

Brookhaven.

4. In the Manorville Farmland Protection Area

(hereinafter MFPA), the Town of Brookhaven and

Suffolk County have made significant prior public

investments to acquire farmland development rights,

including four other nearby farm properties, in an effort

to preserve the largest contiguous block of farmland in

the Town. The Town of Brookhaven Open Space

Environmental Bond Act Advisory Committee has

recommended the preservation of the property and, on

4/15/03, approved the protection of all the properties

that collectively comprise the MFPA. It is also

important to note the property has been recommended

for preservation pursuant to the Town’s Community

Preservation Fund Project Plan. The parcel is situated

within the Compatible Growth Area of the Central Pine

Barrens.

5. The Town of Brookhaven and Suffolk County

have made significant progress in protecting farmland

and other properties in the MI°PA. To date the County

and Town have preserved approximately 112 acres of

farmland involving four properties: Zeh Farm, 19.95

acres; Hoshyla Farm, 45.63 acres, immediately east of

32a

Appendix D

the subject property; Dosiak Farm, 24.7 acres; and the

Gentry Horse Farm, 23.10 acres. The collective cost for

these purchases has been $8,270,000.00 with the Town

expending $3,905,000.00. The County already owns a

21 acre wooded site to the north of the subject property

and the Town recently preserved a 4.7 acre wooded site

in the western edge of the MF PA (MKM Development

Corp) at a cost of $450,000. Additionally, the County and

Town are currently appraising four other properties

totaling about 90 acres.

6. The Town Attorney of the Town of Brookhaven

is hereby directed to proceed to acquire title to the

aforementioned property through the exercise of

Eminent Domain. The cost of the acquisition of the

development rights of the real property, shall be paid

from Fund HRCW 1420 3080 and the cost of the

acquisition of the fee title to the land including the

amount paid for said acquisition as well as any and all

expenses relative thereto, shall be paid from the General

Reserve Fund for land acquisitions.

OPPOSITION

BRIEF

No. 08-1444

Supreme Court, US.

FILED

JUN 17 2009

OFFICE OF THE CLERK

United States Supreme Court

i == ==

IN THE

In the Matter of

ASPEN CREEK EstTaTEs, LTD.,

Petitioner,

against

TOWN OF BROOKHAVEN and

THE TOwn Boarp oF THE TOWN OF BROOKHAVEN,

Respondents.

On Petition for a Writ of Certiorari to the

New York State Court of Appeals

BRIEF IN OPPOSITION

HARVEY BESUNDER

Counsel of Record

Law OFFICES OF Harvey B.

BESUNDER, P.C.

One Suffolk Square, Suite 315

Islandia, New York 11749

631-234-9240

QUESTION PRESENTED

Did the Courts below! properly conclude that

the proposed taking by the Town of Brookhaven

complied with the Fifth Amendment of the United

States Constitution where the land is to be con-

demned in order to preserve farmland and open

space in an area designated as “the largest and

most contiguous belt of productive agricultur-

al land” in an area of the Town of Brookhaven

known for the farming and rural character of the

community?”

| The term “courts below” refers to the Supreme Court of

the State of New York Appellate Division, Second Depart-

ment, and the New York State Court of Appeals.

“ In accordance with Rule 15.2 of this court, the Respon-

dent Town asserts that the Question Presented of Petition-

er mischaracterizes the holding of the New York Court of

Appeals below, as further discussed in the Respondents’ Brief

in Opposition

DISCLOSURE STATEMENT

The TOWN OF BROOKHAVEN and THE TOWN

BOARD OF THE TOWN OF BROOKHAVEN

advises the Court that other than municipal agen-

cles and municipal subdivisions of the TOWN OF

BROOKHAVEN, they have no parents, subsidiar-

ies or affiliates.

1li

TABLE OF CONTENTS

Question Presented

Disclosure Statement

Table of Authorities

Preliminary Statement.................0..00c008 ‘ceednapaaaaeeasie 1

Ce GE Ci vg sacs. ascdncaicorsnvncegninohasdocdnwsarunsécess $

A. The Town’s Stated Public Purpose

For Acquiring Aspen’s Parcel .....................0064 5

B. The Proceedings and Decisions Below

Summary of Reasons For Denying

We I ic can Scns adh dee toh bss vs vddn coilne ee fe)

Reasons For Denying The Petition

POINT I. The Decisions Below Conform With

This Court’s Longstanding Precedents . 12

A. The Condemnation Is In Furtherance

Of A Proper Public Purpose

. This Was Not A Taking For Economic

Development

The Preservation of Farmland and

Open Spaces Is Not a Pretext and

Aspen’s Claim That It’s Land Is Being

Taken Merely To Benefit A Private

Person Is Incredible And Was

Properly Rejected ................

page

POINT II. Aspen’s Petition Does Not Meet The

Criteria To Obtain Certiorari..... ee ee

A. Aspen Has Not Demonstrated A Split

Among Federal Circuit Courts .............0....... .

B. The Facts In This Case Are Not

Compelling Enough To Warrant Review

ec lssuasi pela

». Petitioner Is Requesting That This Court

Review All Of The Factual] Determinations

Made By The Courts Below 28

en SL RRL ATER ERI SO ALS AAEM 7 30

TABLE OF AUTHORITIES

CASES oe

Aspen Creek Estates Ltd. v. Town of

Brookhaven, 47 A.D.3d 267,

848 N.Y.S.2d 214 (2d Dept. 2007) passim

Aspen Creek Estates Ltd. v. Town of Brookhaven,

12 N.E.2d 935, 904 N.E.2d 816,

876 N.Y.S.2d 680 (2009)

Berman v. Parker, 348 U.S. 26,

75 S.Ct. 98 (1954) passim

Brody v. Village of Port Chester,

434 F.3d 121 (2d Cir. 2005) 10, 16, 26

Brown v. Legal Foundation of Washington,

538 U.S. 216, 123 S.Ct. 1406 (2003)

Didden v. Vill. of Port Chester, 173 Fed. Appx. 931

(2d Cir. 2006), 2006 WL 898093.................. 4 (fn. 4)

Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008),

cert. denied 128 S.Ct. 2964, 2008

WL 891093 (2008) passim

Goldstein v. New York State Urban Dev. Corp., ---

N.Y.S.2d ----, 2009 WL 1350606

2009 N.Y. Stip Op. OS605........:.......060...00ce0 11 (fn. 9)

Hawaui Housing Authority v. Midkiff,

467 U.S. 229 (1984) passim

CASES page(s)

Jackson v. New York State Urban Dev. Corp., 67

N.Y.2d 400, 503 N.Y.S.2d 298,

494 N.E.2d 429 (1986)

Kelo v. City of New London,

545 U.S. 469, 125 S.Ct. 2655 (2005) passim

United States ex rel Tenn. Valley Authority v. Welch,

Oat U.B, OOS, GE B.CE.. TES (IGA) onic csccscescovcrcecscsee 10

STATUTES AND CONSTITUTIONS

New York Agriculture and Markets Law § 3....5, 14, 15

New York Eminent Domain Procedure

Law § 207 4,5, 7, 11 (fn. 9)

New York General Municipal Law § 247

MISCELLANEOUS

Clean Water Open Space

PNG, PRG CED co sencccdcdvesccvscscscsccssccnscevees Oy BO ae, LE

Open Space Preservation Act of 2002......5, 13, 14, 18

Suffolk County Agriculture and Farmland

Protection Plan (1996) ..................sssssseseeesee , 14, 18

Manorville Taxpayers Association Hamlet

Study (1993)

PRELIMINARY STATEMENT

In Kelo v. City of New London, 545 U.S. 469, 126

S.Ct. 24 (2005), the City of New London proposed a

taking to develop a large commercial center in order

to economically revitalize the City through new con-

struction, new job creation and an increased tax base.

In Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008), cert.

denied 128 S.Ct. 2964, 171 L.Ed.2d 906 (2008), the

City of New York proposed a taking for an ambitious

development project to build a sports arena, office

buildings, housing, and commercial space. Both of

these proposed takings involved the displacement of

longtime residents from their homes.

In striking contrast to the above, in March, 2006 the

Town of Brookhaven proposed a taking to preserve a

parcel of farmland for the purpose of maintaining its

century-long use as farmland and open space.* No

residents would be displaced by this proposal. In

accordance with the rulings in Kelo and Goldstein,

the courts below properly upheld the proposed taking

here by the Town of Brookhaven.

This case involves the use of eminent domain in

support of the proposed preservation as farmland

and open space of a 39.16-acre parcel of property

owned by Aspen Creek Estates, Ltd. (Aspen or Peti-

tioner). This preservation is part of a greater plan to

preserve the last remaining large, contiguous work:

ing farm-belt in the Town of Brookhaven (Town or

’ Petitioner inaccurately states “the Town condemned Aspen’s

property on March 21, 2006...” (Petition p. 2). In fact, at this

time the Vesting application is pending in the New York State

Supreme Court

Respondents). Although it has not presented a single

basis for disputing this stated public purpose, Aspen

makes the far-reaching claim that condemning its

property would violate the Public Use Clause of the

Fifth Amendment to the US Constitution because the

municipality who approved the taking was motivated

by the primary desire to enrich one private farmer,

and thus the stated public purposes are merely a “pre-

text”. Aspen bases this pretext claim on nothing but

conclusory allegations that are not narrowly asserted

or supported by evidence. The courts below properly

concluded that the allegations had no merit, that the

stated public purpose was proper, and that there was

no pretext involved in the use of eminent domain here.

The Town of Brookhaven is a municipal corporation

under the laws of the State of New York. Aspen Creek

Estates, Ltd. is a private corporation who owns title to

the subject-property (Property). One of the primary

roles of the Town is to balance the competing inter-

ests of land development and preservation. Of addi-

tional importance in this regard are the wishes of the

public at large as to how they would like to shape the

future of their local community. In a farming commu-

nity such as Manorville, the preservation of farmland

in the midst of one of the last remaining contiguous

working farm-belts in the area is vital to the com-

munity, and might be impossible without the use of

condemnation.

This case is a garden variety challenge to a proper

municipal taking. Although Aspen calls this an eco-

nomic development taking case like Kelo v. City of

New London, 545 U.S. 469, 126 S.Ct. 24 (2005), this

taking is not for “economic development” as was faced

in Kelo, or in Goldstein v,. Pataki, 516 F.3d 50 (2d Cir.

2008), cert. denied 128 S.Ct. 2964, 171 L.Ed.2d 906,

2008 WL 891093 (2008). Those matters involved the

acquisition of property for ambitious, complex and

sophisticated development plans to enhance and con-

vert possibly blighted areas to those that would create

jobs, increase the tax base, and foster economic growth

within the community. Here, the Town proposes to

create an alternative to development and to main-

tain the general character of a county that was once

mostly agricultural. The area in particular has long

been utilized for agricultural purposes. This parcel is

another piece of a puzzle in the midst of a 500+ acre

area which is sought to be maintained undeveloped to

retain its open space and agricultural character.

Aspen purchased the property by outbidding the

Town in 2004, and proposed building 19 residential

homes on the parcel. The Town attempted to nego

tiate a purchase and offered as much as $4,004,000,

which was rejected. When all efforts to purchase the

property at the then-market value failed, as a last

resort the Town proceeded pursuant to New York’s

Eminent Domain Procedure Law (EDPL) to acquire

the property to at least save the rural nature of a por-

tion of the county.

Aspen’s challenge is based solely upon its miscon

ception of Justice Kennedy’s concurring opinion in

Kelo. Aspen asserts that the taking here does not com

ply with Kelo in that there is no carefully considered

development plan. However, this is not the holding in

Kelo. Justice Kennedy relied on New London’s plan

as one of the reasons for finding that the taking was

proper, but he went to great lengths to reaffirm the

standard of review set forth in this Court’s prior juris-

prudence.’ Moreover, the plan in Kelo, like Goldstein

uv. Pataki,” was in fact for a large-scale development

project while here the 'Town’s objective is to preserve

farmland and open space, which purposes are statuto-

rily recognized in New York as being a proper public

purpose.

Aspen does not raise any meritorious arguments 1n

its Petition. Instead, it seeks to distract the Court

from the very narrow scope of review that is afforded

review of a decision of a proceeding held pursuant to

EDPL § 207. Aspen introduces extended discussion of

a different lawsuit (a proceeding under Article 78 of

the New York Civil Practice Law and Rules) involving

some of the same parties in a different court involving

different issues. Those issues were not tried below,

were not part of the underlying proceeding, and are

not within the scope of this Court’s review. That other

matter is pending on appeal due to several significant

errors of fact and law made by the trial court. As the

decisions below® demonstrate, the taking here followed

a lengthy period of good faith negotiation to purchase

the parcel in order that the Town could preserve the

* See Berman v. Parker, 348 U.S. 26 (1954); Hawaii Housing

Authority v. Midkiff, 467 U.S. 229 (1984). See also Didden |

Vill. of Port Chester, 173 Fed. Appx. 931 (2d Cir. 2006), 2006 WL

B9YR0O9S

> In 2008, this Court denied the petition for a writ of certiorari

in Goldstein v. Pataki. Aspen fails to even refer to that case in

its Petition

” The December 4, 2007 Opinion & Judgment of the Appellate

Division, Second Department, and the February 17, 2009 Memo

randum Opinion of the New York Court of Appeals are hereinaf

ter referred to as “the decisions below

last remaining large, contiguous tract of farmland in

the Town of Brookhaven. Arguments not bearing on

the issues involved in the EDPL § 207 proceeding are

not relevant to this Petition. Accordingly, this Court

should decline to review the decisions below.

STATEMENT OF THE CASE

A. The Town's Stated Public Purpose for Acquiring

Aspen’s Parcel

The Town of Brookhaven proposes to acquire through

its right and power of eminent domain 39.16 acres of

farmland owned by the Petitioner herein, Aspen Creek

Estates, Ltd. The Town of Brookhaven, The County

of Suffolk and the State of New York have been long

standing proponents of preserving farmland, main-

taining open space and scenic vistas, and retaining

the local character of the community. The importance

of these objectives are illustrated in New York State

statutes (General Municipal Law § 247, Agriculture

and Markets Law § 3), the Suffolk County Agricul-

ture and Farmland Protection Plan (1996), Town of

Brookhaven Bond Acts (Open Space Preservation Act

of 2002), Clean Water Open Space Bond Act (2004)),

as well as Community Studies (Manorville Taxpay

ers Association Hamlet Study (1993)), and a steady

stream of public comments made at public hearings

The Town has made significant progress, nego

tiating for the acquisition of farmland and/or their

development rights, to achieve the above-mentioned

goals. As a result of these efforts, large tracts of farm

land and open spaces have been preserved over a per!

od of years, which has helped to maintain the rural

character of the community.

The Town earmarked for preservation a 500+ acre

tract of land in the Manorville area of Brookhaven

that includes the subject property. That geographi-

cal area, known as the Manorville Farmland Protec-

tion Area (MFPA), has been referred to as early as

the 1993 Manorville Taxpayers Association Hamlet

Study, in programs developed by Suffolk County, and

throughout the March 21, 2006 resolution to condemn

the subject property. The MFPA has been called “the

largest and most contiguous belt of productive agri-

cultural land remaining in the Town of Brookhaven.”

The Town Open Space Committee approved the pro-

tection of all the properties that collectively comprised

the MFPA on April 15, 2003.

In order to preserve the MFPA, the Town negoti-

ated for the purchase of certain parcels in fee, for the

development rights only to certain parcels, and offered

other incentives to farmers who preserved their land

as farmland or open space. At the time that the ‘Town

conducted a public hearing pursuant to Article 2 of the

EDPL, it had already acquired 112 of the 500 acres,

and was in the “appraisal” stage cn approximately 90

additional acres. Therefore, the Town either held an

interest in, or was undertaking efforts to acquire an

interest in approximately 200 of the 500 acres com

prising the MFPA.' 'The ‘Town's acquisition included

tour (4) of the surrounding tarms located in the imme-

diate vicinity of Aspen’s property. Notably, the Town

acquisition ettort

use eminent domain

acquired 45.63 acres immediately east of Aspen’s prop-

erty formerly known as the Hoschler Farm, and Suf-

folk County owns a 21 acre wooded site to the north of

Aspen’s property. The acquisition of Aspen’s property

is required to fulfill the Town’s goal of preserving the

open space and farming character of the Manorville

area.

B. The Proceedings and Decisions Below

Aspen commenced a proceeding pursuant to New

York’s Eminent Domain Procedure Law § 207 chal-

lenging the Town’s proposed taking. On December 4,

2007, the Appellate Division, Second Department ren-

dered an Opinion & Judgment in the matter of Aspen

Creek Estates Lid. v. Town of Brookhaven, 47 A.D.3d

267, 848 N.Y.S.2d 214 (2d Dept. 2007) that dismissed

Aspen’s petition and upheld the proposed taking as a

proper use of its power of eminent domain.® (Pet. App.

5a). The Appellate Divisior found that the taking

satisfied all of the substantive and procedural consti-

tutional requirements necessary for a proper appro-

priation of the property through Eminent Domain. Z/d.

The Appellate Division found that preservation of

farmland was a legitimate public purpose and not a

pretext to improperly confer benefits on private per-

sons. After discussing the facts and analyzing this

Court’s decision in Kelo v. City of New London, the

Appellate Division found that, “in contrast to Kelo,

this matter does not involve a proposed taking for eco-

nomic development”, and that, “Neither Kelo nor this

Court’s recent decision in Matter of 49 WB, LLC v. Vil-

"References to “(Pet App.)” refer to the app

yn For A Writ of Certiorari.

lage of Haverstraw .. . requires that a proposed cox-

demnation for the preservation of farmland be part of

a comprehensive development plan.” (Pet. App. 18a).

The Court firmly rejected Aspen’s reliance on Kelo to

support its claims, holding:

“the property lies within a large, contiguous

tract of working farmland, and permitting any

significant residential development defeats the

Town’s aim of preserving this entire area. Thus,

the Town’s determination that acquisition of

the entire parcel was necessary to achieve the

public purpose of the condemnation was ratio-

nal, and there is no basis upon which to disturb

it.” (Pet. App. 21a).

Even the lone dissenting Judge concurred with the

majority’s holding that the procedural due process

requirements were met and that the taking as stated

would advance a proper public purpose if applied in

good faith. (Pet. App. 24a).

By Decision & Order on Motion dated March 28,

2008, the Appellate Division granted Aspen leave to

appeal to New York’s highest court, the New York

Court of Appeals (Court of Appeals) (Pet. App. 3a).

On February 17, 2009, the Court of Appeals affirmed

the Appellate Division and denied Aspen’s petition.

Aspen Creek Estates v. Town of Brookhaven et al., 12

N.E.2d 935, 904 N.E.2d 816, 876 N.Y.S.2d 680 (2009)

(Pet. App. la). The February 17, 2009 decision com-

plied with existing Supreme Court precedent, New

York’s own precedent, New York State statutes and

local ordinances and land-use plans with the stated

policy to protect and preserve farmland and open

space. In its short decision, the Court of Appeals did

not make new law or implement an amorphous “pub-

lic policy” standard as Aspen suggests. The Court

simply identified as legitimate New York State’s and

local municipalities’ longstanding and legislatively

declared public policy that preserving farmland and

open space is a benefit to the public. Once t.ie public

benefit had been identified and the taking held to be

rationally related thereto, the Court of Appeals found

that the Fifth Amendment was satisfied. Regarding

Aspen’s claim of pretext, the Court of Appeals held

that, “In short, the public benefits of the taking in this

case were not incidental or pretextual in comparison

with benefits to particular, favored private entities”.

(Pet. App. 2a).

SUMMARY OF REASONS FOR DENYING THE

PETITION

Judicial deference is required when reviewing

municipal takings because in our system of govern-

ment legislators are better able to assess what public

purposes should be advanced by exercise of the taking

power. Hawaii Housing Authority v. Midkiff, 467 U.S.

229 (1984); Goldstein v. Pataki, 516 F.3d 50 (2d Cir.

2008), cert. denied 122 S.Ct. 2964, 171 L.Ed.2d 906,

2008 WL 891093 (2008). Courts are not to substi-

tute their judgment for that of a legislature as to what

constitutes a public use unless the use ts palpably

without reasonable foundation. Kelo v. City of New

London, supra; Midkiff, supra; Berman v. Parker, 348

U.S. 26 (1954): Goldstein v. Pataki supra. Moreover,

the role of the courts in determining what constitutes

a public purpose is an extremely narrow one. Berman

v. Parker; Goldstein v. Pataki, citing United States ex

rel Tenn. Valley Authority v. Welch, 327 U.S. 546, 66

S.Ct. 715 (1946).

Aspen’s allegations in the courts below and the

instant Petition fly in the face of long existing New

York State and Federal case and statutory law. It is

well-settled that a municipality’s right and power of

eminent domain is one of the powers inherent in the

state as sovereign to take private property for public

use. The only constitutional limitation upon the exer-

cise of the power is that the use must be for a public

purpose, just compensation must be made, and due

process of law observed. See Brown v. Legal Foun-

dation of Washington, 538 U.S. 216, 123 S.Ct. 1406

(2003); Kelo v. City of New London, supra; Brody v.

Village of Port Chester,434 F.3d. 121 (2d Cir. 2005).

The State of New York, County of Suffolk and Town

of Brookhaven have established through statutes and

their own actions an existing policy of farmland and

open space preservation. The voice of the public at the

Eminent Domain Procedure Law Article 2 hearing

made it abundantly clear that there is a strong public

interest in preserving the open space and agricultural

nature of the subject property and that residential

development would severely and adversely alter the

character of the neighborhood.

While Aspen asserts that its argument is supported

by the holding in Kelo vu. City of New London, supra,

it fails to recognize that the United States Supreme

Court found that a taking even for economic develop-

ment that envisioned a transfer of title to a private

entity constituted a proper public purpose. In Gold-

stein v. Pataki, supra,? the Second Circuit Court of

Appeals upheld as constitutional a taking which would

transfer title to a private entity to construct a sports

arena, high rise apartment houses, luxury housing,

a hotel, and several office towers. It also held that

the taking of non-blighted portions of the area were

appropriate. Here, the taking is not even for economic

development, and not to transfer title to a non-govern-

mental entity. The purpose of this taking is to preserve

farmland and open space. It is well-settled that local

municipalities have the right to regulate land use and

to balance development with land preservation, and

accordingly, the Petition for a writ of certiorari should

be denied.

° In Goldstein v. New York State Urban Dev. Corp., --- N.Y.S.2d

---, 2009 WL 1350606 2009 N.Y. Slip Op. 03903, the New York

State Appellate Division, Second Department recently upheld

the constitutionality of the proposed taking on an EDPL § 207

application which followed the Second Circuit decision cited

above

REASONS FOR DENYING THE PETITION

POINT I. THE DECISIONS BELOW CON-

FORM WITH THiS COURT’S LONGSTANDING

PRECEDENTS

A. The Condemnation is in Furtherance of a Proper

Public Purpose

The decisions below are a straightforward applica-

tion of this Court’s long-standing precedents concern-

ing the deferential level of judicial review accorded

to public use determinations — precedents that were

reaffirmed in Kelo v. City of New London, 545 U.S.

469 (2005).

When reviewing whether a public benefit or use

exists to support the exercise of eminent domain, the

public use is to be broadly defined, and review is lim-

ited to ascertaining whether the project is rational-

ly related to a conceivable public purpose. Midkiff,

supra; Berman v. Parker, supra. More specifically,

public use is broadly defined to, “embrace the broader

and more natural interpretation of public use as ‘pub-

lic purpose”’. Kelo at 2662.

The law flatly reyects Aspen’s contentions that the

preservation of farmland is not a proper public pur-

pose. The decision to condemn furthering a public

purpose is entitled to a high degree of deference by the

courts. Berman v. Parker, 348 U.S. at 33, 1s relevant

to this issue. In Berman, this Court upheld the taking

of private property by the local Planning Commissicen

as part of its community redevelopment plan, stating,

“It is within the power of the legislature to determine

that the community should be beautiful as well as

healthy, spacious as well as clean, well-balanced as

well as carefully patrolled.; See also Midkiff, 467 U.S.

at 241 (“[W]here the exercise of the eminent domain

power is rationally related to a conceivable public pur-

pose, the Court has never held a compensated taking

to be proscribed by the Public Use Clause.”).

Here the Town’s Findings and Determinations set

forth that:

The purpose of the acquisition is: to preserve

open space and agricultural resources... to

help protect and promote continuation of agri-

culture in the Town... to ensure the retention

of scenic vistas... and the Manorville Farm

Protection Area. (Pet. App. 30a).

Preserving tarmland is a well-established public

purpose in New York. The proposed taking is consis-

tent with the policy of the Town of Brookhaven’s Clean

Water Open Space Bond Act, Town of Brookhaven

Clean Water Open Space Bond Act (Nov. 3, 2004),

and Open Space Preservation Act of 2002, Town of

Brookhaven Open Space Preservation Act of 2002

(Nov. 5, 2002). .

The Town’s Environmental Bond Act Open Space

Advisory Committee initially approved acquisition

of the subject-property, and thereafter approved the

entire 500-acre MFPA. Subsequently, the citizens

of the Town of Brookhaven passed a bond resolution

entitled “Clean Water Open Space Bond Act (2004),”

which authorized “the acquisition of interests or rights

in real property in the Town for the preservation of

open space, farmland and wildlife habitats ... for pur-

poses including but not limited to... the preservation

of community character.” Town of Brookhaven Clean

Water Open Space Bond Act (Nov. 3, 2004).

The Open Space Preservation Act of 2002 authorizes

the acquisition of “interests or rights in real property

in the town, including, but not limited to, develop-

ment rights in agricultural lands, for the preservation

of open spaces... ..” Town of Brookhaven Open Space

Preservation Act of 2002 (Nov. 5, 2002).

The Suffolk County Agriculture and Farmland Pro-

tection Plan (1996) also demonstrates that preserv-

ing farmland is a proper public purpose on which to

justify the use of eminent domain. One of the “plan-

ning goals” of the County Program is the preservation

of farmland as an important natural resource. The

Program explains how and why farmland preserva-

tion is essential to Suffolk County’s ability to retain a

viable agriculture industry, to maintain its historical

fabric, community identity, value as a destination for

tourism, and to provide tax paying open space. See

Suffolk County Agriculture and Farmland Protection

Plan (1996), p.12.

References to New York State policies and stat-

utes further highlight the fact that the preservation

of farmland constitutes a legislative interest and a

proper public purpose. In setting forth the policy and

purposes of New York Agriculture and Markets Law,

the legislature provides, “The agricultural industry...

vitally concerns and affects the welfare, health, eco-

nomic well-being and productive and industrial capa-

bilities of all our people. /t is the policy and duty of

the state to promote, foster, and encourage the agri-

cultural industry.” NY Agriculture and Markets Law

§ 3 (McKinney 2008)(emphasis added). Preserving

farmland falls directly in line with New York State’s

policy of fostering and promoting agriculture and thus

clearly constitutes a stated public purpose in line with

the Constitutional mandates.

New York General Municipal Law § 247 (McKinney

2008) demonstrates that the acquisition of rights in

real property for the preservation of farmland consti-

tutes a public purpose. GML § 247 (2) states in rel-

evant part, “The acquisition of interests or rights in

real property for the preservation of open spaces and

areas shall constitute a public purpose... and any.

. town or village ... may acquire .. . the fee or any

lesser interest .. . necessary to achieve the purposes

of this chapter.” (Emphasis added). GML § 247 (1)

defines an “open space” or “open area” as

“any space or area... whose existing openness,

natural condition, or present state of use, if

retained would enhance the present or poten-

tial value of abutting or surrounding urban

development, or would maintain or enhance the

conservation of natural or scenic resources. For

purpose of this section natural resources shall

include but not be limited to agricultural lands

defined as open lands actually used in bona fide

agricultural production.” (Emphasis added).

Setting the definitions of “natural or scenic resourc-

es” and “open space” in place, GML § 247 establishes

the principle that preserving agricultural lands for

agricultural use constitutes a public purpose.

The United States Court of Appeals for the Second

Circuit recently analyzed the issue of public purpose

with respect to an ambitious project involving devel-

opment of property known as the Atlantic Yards in

Brooklyn, New York, in the matter of Goldstein v.

Pataki, supra./" Goldstein reviewed the leading cas-

es decided by the United States Supreme and other

Federal Courts, most notably Kelo v. City of New Lon-

don, 545 U.S. 469, 126 S.Ct. 24 (2005); Hawaii Hous-

ing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321

(1984); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98

(1954); and Brody v. Village of Port Chester, 434 F.3d.

121 (2d Cir. 2005). The leading jurisprudence in New

York, Jackson v. New York State Urban Development

Corp. 67 N.Y.2d 400, N.Y.S.2d 298 (1986), and a long

line of Appellate Division cases in different depart-

ments, when read together with the federal cases

establish the propriety of the findings and determina-

tions of the Town of Brookhaven here. The New York

courts below correctly reviewed the history of Emi-

nent Domain proceedings both pre and post-Kelo, and

made a well-reasoned determination dismissing the

claim that the proposed taking was unconstitutional,

and upholding the actions of the Town.

Aspen has not offered a single basis to deny the

legitimacy of preserving farmland and open space as

a proper public purpose. Applying the constitution-

al principles set forth in Kelo, Berman, Midkiff, and

Goldstein to the facts at hand, the proposed taking

here plainly passes constitutional muster and Aspen’s

Petition should be denied.

10 Aspen fails to reference this significant case even though it

bears directly on the issues presented herein.

B. This Was Not A Taking for Economic Development

A taking to preserve land is not a taking for eco-

nomic development. Aspen attempts to frame the

Town’s acquisition of the subject-property as a tak-

ing for “economic development” in order to bring this

case within the framework of Justice Kennedy’s con-

curring opinion in Kelo v. City of New London, 545

U.S. 469 (2005), which suggests the requirement of a

development plan before a condemning authority can

act in furtherance of an economic development-type

taking.'! However, this case is not one for economic

development, is not New York’s version of Kelo,'* and

is an example of an ordinary municipal taking. This

proposed acquisition should not be considered in the

same breath with Kelo or Goldstein v. Pataki. None-

theless, those cases are clearly significant, as they

have upheld the constitutionality of takings far more

elaborate and more generally invasive to the owners

than is proposed herein.

Aspen’s assertions are plainly contradicted by the

evidence submitted at the local public hearing held

pursuant to Article 2 of the EDPL, which demonstrates

that the land is being acquired pursuant to a farmland

preservation plan and not for economic development.

Aspen has not offered any proof to contradict or chal-

‘1 This suggestion is not made a part of the majority opin

10N.

l“ In Goldstein v. Pataki, the court surmises that Justice Ken

nedy “may have intended this caveat to apply exclusively to cases

where the sole ground asserted for the taking was economu

development.” Jd. at 64, n. 10

lenge the express findings and determinations based

on the EDPL hearing.

Furthermore, even if preserving farmland was to

somehow be considered “economic development,” the

Town has in fact acted according to a land preserva-

tion plan. Both the Town and Suffolk County have

targeted the 500+ acres in which Aspen’s property is

located as the Manorville Farmland Protection Area

(MFPA) for preservation, and has successfully pre

served a significant portion of this area for farming.

Preservation of open space for agricultural pur-

poses has been recognized in multiple New York

State statutes, the Suffolk County Agriculture and

Farmland Protection Plan (1996), and by the citi-

zens of Brookhaven in the Open Space Freservation

Act (2002) and the Clean Water Open Space Bond

Act (2004). Aspen misstates that, at oral argument

before the New York State Court of Appeals, the Town

admitted that there was no plan. (Aspen Petition

at pp. 2, 4, 15). That is a mischaracterization. The

Town explained that the plan consisted of the vari-

ous statutes, the history of public discussion of the

MFPA, and the actions taken to acquire title and/or

farmland development rights in the area constituting

the MFPA.'*

The constitutionality of this taking is supported by

Kelo v. City of New London, supra. Kelo established

that a taking even for economic development is proper

and constitutional. There, the purposes of acquisi-

The Town objects to Apen’s mischaracterization, in accor

dance with Rule 15.2 of this Court

tion were far more extensive than the land preserva-

tion sought here. While in Kelo the legislative body

proposed taking private property to convey rights to

a corporation for development of corporate headquar-

ters and other uses, here the taking is to preserve

open space and maintain ownership in the municipal

entity. Kelo is clearly consistent with existing New

York law, and leaves no doubt that courts should and

will defer to legislative determinations regarding the

propriety of takings for public purposes, and/or uses,

even where the taking is for economic development.

Goldstein v. Pataki, supra, citing Midkiff.

Aspen’s reliance on Kelo is truly odd. First, Kelo

is an economic development case, while this case is

not.'* Second, in Kelo Justice Kennedy (on whose con-

curring opinion Aspen relies) stated that the standard

of review on the issue of public purpose weighs in

favor of the government, whose findings will be sus-

tained unless the presumption of regularity is over

come beyond a reasonable doubt. Jd. at 490.

Here, the Town of Brookhaven is taking land to

preserve farmland, scenic vistas, and to maintain the

overall character of the community without any proof

that a particular known private party will be benefited.

The Town has determined that this preservation will

benefit the public at large. While in Kelo and Gold

stein v. Pataki arguments were raised as to impermis

'4 This Court granted certiorari in Kelo “to determine whet!

er a city s decision to take property for the purpose oj econo mnt

development satisfies the ‘publi use requirement of the kitth

Amendment Kelo, 545 U.S. at 477 (emphasis added

sible favoritism to private parties, those facts are a

far cry from here. Any benefit to a supposed private

individual through a hypothetical future lease to con.

tinue farming a parcel in the midst of a large, working

farm-belt, would be incidental to the basic purpose of

the acquisition.!°

Aspen’s reliance on Kelo is therefore misplaced.

Even a cursory reading of this Court’s opinion in that

case establishes that the Kelo facts are distinguish-

able from those here. The proposed taking here is not

such as might offend the populace as the taking in

Kelo might have. In Kelo, the City exercised its emi-

nent domain power to condemn private property as

part of an economic development plan designed to cre

ate jobs, to increase the tax base and other revenues,

and to revitalize an economically distressed city. Jd.

at 2658. The Kelo petitioners claimed that the taking

was unconstitutional since the City’s disposition of

the property was not a “public use” within the mean-

ing of the Takings Clause of the Fifth Amendment

to the Constitution (applicable to the States through

the 14th Amendment). /d. In holding that economic

development was in fact a proper public purpose for

which to use the power of eminent domain, the majori

ty opinion stated, “For more than a centt:ry, our public

use jurisprudence has wisely eschewed rigid formulas

and intrusive scrutiny in favor of affording legislatures

broad latitude in determining what public needs jus

tify the use of the takings power.” Jd. at 2664 (empha

Aspens assertion that a neighboring farme1

the condemnation is wholly unsupporte:

made at the local public hearing are

sis added). This Court reasoned that, “As with other

exercises in urban planning and development, the

City is endeavoring to coordinate a variety of commer-

cial, residential, and recreational uses of land, with

the hope that they will form a whole greater than the

sum of its parts.” Therefore, the City’s “determina-

tion that the area was sufficiently distressed to justify

a program of economic rejuvenation is entitled to our

deference.” Id. at 2665.

Applying the Kelo Court’s reasoning to the instant

case as the courts below did, the Town of Brookhaven

is entitled to broad latitude in determining a proper

public purpose and in attempting to balance the use of

property by rationally controlling over-development.

Like the City of New London in Kelo, the Town of

Brookhaven is endeavoring to form a whole greater

than the sum of its parts, in the form of a large con-

ity’s reasoning, the courts below properly deferred to

the Town of Brookhaven’s determination regarding

the legislative reasoning behind the proposed taking.

Aspen’s claim that in order to condemn property for

the preservation of farmland the taking must be in

accordance with a carefully considered development

plan, is not well founded and Kelo does not stand for

this proposition. Aside from overlooking the absence

of any requirement in the majority opinion that a care-

During further discussion of the public purpose issue in

Kelo, Justice Stevens pointed out, “In our cases upholding tak-

ings that facilitated agriculture and mining, for example, we

emphasized the importance of those industries to the welfare of

the States in question.” (Emphasis added, citations omitted). Id

af 9665

fully considered development plan must exist to sup-

port a taking for economic development, Aspen goes

even further and misinterprets Justice Kennedy’s con-

currence to hold that such a plan must exist. Aspen’s

assertions are entirely false. In his concurring opin-

ion, Justice Kennedy reaffirmed that “no departure

from Berman and Midkiff is appropriate here.” Id.

at 2670. He concluded by stating that, “while there

may be categories of cases in which the transfers are

sO suspicious, or the procedures employed so prone

to abuse, or the purported benefits are so trivial or

implausible, that courts should presume an imper-

missible private purpose, no such circumstances are

present in this case.” Jd. at 2670-71. The plain lan-

guage of Justice Kennedy’s opinion, together with the

majority opinion, reveal that there is absolutely no

obligation to have a carefully considered development.

plan in order to meet the constitutional requirements

of the takings clause.

Moreover, since the ‘own has already preserved

hundreds of acres of farmland near and around

Aspen’s property, it is clear that the Town is acting

pursuant to its stated goals of preserving farmland

and open space in this area. There is a public benefit

to balancing development with land preservation, and

limiting development in certain areas in favor of land

preservation, open spaces, and continuation of a farm-

ing community.

It would simply be illogical to require an economic

development plan when the taking is for non-devel-

opment, land preservation, maintaining farmland,

protecting the rural nature of the community, and

9 3

Ld t

where the economic benefit, if any, is only incidental

to the primary purpose of the taking. Where as here

the Town wishes to condemn the subject property to

continue its use as farmland, the Appellate Division’s

reasoning is clear (Pet. App. 18a):

Neither Kelo, nor this Court’s recent decision in

Matter of 49 WB, LLC v. Village of Haverstraw,

upon which our dissenting colleague also relies,

requires that a proposed condemnation for the

preservation of farmland be part of a compre-

hensive development plan.

For these reasons, this Court should deny Aspen’s

Petition.

C. The Preservation of Farmland and Open Spaces

is Not a Pretext and Aspen’s Claim That It’s Land Is

Being Taken Merely To Benefit A Private Person Is

Incredible And Was Properly Rejected

Aspen curiously argues that Kelo expanded rather

than constricted the degree of constitutional scrutiny

under the Public Use Clause. It contends that a pub-

he use challenge can now proceed by merely alleging

an intent to benefit a private party — even if the pub-

lic purposes of the condemnation are otherwise valid.

Given that Kelo reaffirmed the deferential standard

of judicial scrutiny of Berman and Midkiff, Aspen’s

argument must be rejected and its Petition denied.

Aspen suggests that the Town is taking property

under the mere pretext of a public purpose, but that

its actual purposes are (1) to bestow upon a private

individual the benefit of allowing him to farm the

property; and (2) to block further development on the

property in order to increase the value and appeal of

already existing nomes, under the guise of the farm-

land protection plan. These arguments are merit-

less. As the Appellate Division noted, the record is

barren of any indication that the Town’s motivation

was improper. (Pet. App. 20a). Surely the general

public, including the surrounding homeowners, will

benefit by maintaining the character of the neighbor-

hood, which is what enticed them to move to the area

in the first place.

Aspen’s claim that the taking is actuall.’ for the

benefit of one private individual is without merit. The

record is devoid of any contract, lease, or other agree-

ment between the Town and any private party with

regard to the subject property, and there is no indi-

cation that such an agreement has been made. The

record does not even hint that this property is being

taken for the benefit of a private individual. It is well

settled that any incidental benefit to a private party

does not render invalid a taking made pursuant to a

proper public purpose. Kelo at 2664, citing Midkiff;

Goldstein, supra.

“Prior to Kelo, no Supreme Court decision had

endorsed the notion of ‘pretext’ claim, although a few

lone court cases contained language suggesting that

a pretextual public use may be invalid.” Goldstein v.

Pataki, 516 F.3d 50 (2d Cir. 2008), cert. denied 128

S.Ct. 2964, 171 L.Ed.2d 906, 2008 WL 891093 (2008).

The Goldstein Court went on to state that, “In contrast,

the particular kind of ‘pretext’ claim that the plaintiffs

in this case advance bears an especially dubious jur-

isprudential pedigree.” Jd. at 62. The claim in Gold-

stein was that the taking was solely to confer a private

benefit upon the developer. Here, the claim is that

the taking is solely to benefit an individual farmer.

The Goldstein court, citing Kelo, stated that “allowing

such a claim to go forward, founded only on mere sus-

picion would add an unprecedented level of intrusion

into the process.” Jd. at 62. Similar to Goldstein, the

courts below rejected Aspen’s claim of pretext.

Even assuming Aspen’s allegations had support

and the Town intended to allow a private individual

to farm the property, Kelo reminds us that this would

not diminish the public character of the taking. “ ‘[I]t

is only the taking’s purpose, and not its mechanics,’

we explained, that matters in determining public

use.” Jd. at 482, quoting Midkiff, 467 U.S. at 244. The

Court noted that in Midkiff, “the property in question

retained the same use even after the change of owner-

ship.” Jd at 486. Justice Stevens effectively forecloses

Aspen’s objection with the reminder that “the govern-

ment’s pursuit of a public purpose will often benefit

individual private parties.” J/d.

The Appellate Division’s reasoning on this issue is

particularly compelling (Pet. App. 20a):

Since allowing farming to continue on the prop-

erty is fully consistent with the purpose of this

condemnation, the fact that one or more indi-

vidual farmers may benefit is merely inciden-

tal, and does not render the public benefit to be

achieved by condemnation illusory.

In Goldstein v. Pataki, the condemnee alleged that

the taking did not serve a public purpose but rather

was designed to impermissibly benefit the developer

of the project. 516 F.3d at 54. The Second Circuit

Court of Appeals pointed out that it was not known

who would be occupying the apartments to be created

and therefore the stated public purpose of the taking

was not pretextual. The Second Circuit’s analysis in

Goldstein is instructive:

“We do not read Kelo’s reference to ‘pretext’

as demanding, as the appellants would appar-

ently have it, a full judicial inquiry into the

subjective motivation of every official who sup-

ported the Project, an exercise as fraught with

conceptual and practical difficulties as with

state-sovereignty and separation-of-power

concerns. Beyond being conclusory, the claim

that the ‘decision to take Plaintiffs’ properties

serves only one purpose’ defies both logic and

experience. ‘Legislative decisions to invoke the

power to condemn are by their nature political

accommodations of competing concerns.’ Brody

v. Vill. Of Port Chester, 434 F.3d 121, 136 (2d

Cir. 2005).” Id. at 63.

In Kelo, the Court stated that the identities of the

private entities who would benefit were not known

when the plan was adopted, and “[I]t 1s, of course, dif-

ficult to accuse the government of having taken A’s

property to benefit the private interests of B when the

identity of B was unknown.” 7d. at 478, n.6.

Here, it is only the subjective motivation of officials

that Aspen seeks to challenge as improper or pretex-

tual. Other courts have refused to recognize a pretext

claim in the face of much less support for valid pub-

lic purposes than presented here. It bears emphasis

that not a single statement in any of the submissions

below alleged any fact demonstrating that the public

officials who approved the condemnation had or could

have had any reason to abdicate their professional and

public responsibilities in order to collude for the sole

purpose of enriching a private individual. Although

Aspen’s claims are far-reaching, the vague underly-

ing allegations are without merit. Aspen emphasizes

allegations that do not even relate to the condemna-

tion but rather to some purported bad faith through

which the Planning Department (not a party to this

case) denied site plan applications regarding the prop-

erty. Aspen relies heavily on a related Article 78 pro-

ceeding that did not address the issue of whether the

public purpose of the taking was pretextual.

Based on the Record and the principles articulated

by Goldstein v. Pataki and Kelo, the decisions below

correctly upheld the findings and determinations of

the Town and the instant Petition should therefore be

denied.

POINT IIL. ASPEN’S PETITION DOES NOT MEET

THE CRITERIA TO OBTAIN CERTIORARI

A. Aspen Has Not Demonstrated A Split Among

Federal Circuit Courts

Aspen does not allege a division among federal cir-

cuits that would warrant review by this Court. It has

not pointed to any fundamental differences among

the federal courts on a particular point of law that

requires this Court’s intervention. More importantly,

though, Aspen fails to disclose the controlling Second

Circuit case on condemnaticn law in the state of New

York, Goldstein v. Pataki, supra, which is dispositive

of Aspen’s claims. Aspen did not address that decision

before the New York Court of Appeals, and it does not

do so in its Petition to this Court. This Court denied

the Petition for a writ of certiorari in Goldstein v. Pat-

aki, and it should reach the same conclusion in this

matter as well.

The settled law of Berman v. Parker, Hawait Hous-

ing Authority v. Midkiff, Kelo v. City of New London,

and Goldstein v. Pataki all dictate that the Town’s

taking of Aspen’s property is constitutional. The lack

of any contrary, pertinent case law strongly militates

against this Court’s review of this matter. Moreover,

the decision below does not conflict, but rather is fully

in accord with those cases.

B. The Facts In This Case Are Not Compelling Enough

To Warrant Review By This Court

The decisions below are squarely in line with a long

history of Supreme Court cases. The New York Court

of Appeals’ decision was a Memorandum Decision; it

was not lengthy and did not even warrant a full dis-

cussion of the issues raised by Aspen. The New York

Court of Appeals quickly disposed of Aspen’s claims

on the basis that they “lack merit”. (Pet. App. 2a)

C. Petitioner Is Requesting That This Court Review

All of the Factual Determinations Made by the Courts

Below

The instant Petition for a writ of certiorari essen-

tially asks this Court to review detailed factual find-

ings of the courts below. The courts below found that

the State of New York, the County of Suffolk and

the Town of Brookhaven determined that preserving

farmland and open space is beneficial to the general

public. The Appellate Division in particular examined

the region’s long-history of agriculture, and the over-

wheimingly rural character of the community. That

court made findings as to the number of acres and

the location of farmland that had already been pre-

served. It then examined the steps taken by the Town

to ensure that the community’s preservation plan was

not derailed by Aspen.

By petitioning for a writ of certiorari, Aspen wants

this Court to review all of the factual findings made

in the courts below and issue new findings in Aspen’s

favor. In accordance with the normal scope of appel-

late review, this Court should refuse to act as the

fact-finder.

CONCLUSION

Based on the foregoing, the petition for a writ of cer-

tiorari should be denied.

Dated: June 16, 2009

Islandia, New York

Respgtt Oy ea

Pegs B. BESUNDER, P.C.

y: Harvey B. Besunder, Esq.

Zachary D. Dubey, Esq.

Special Counsel to Karen Wilutis, Esq.

Brookhaven Town Attorney

1601 Veterans Highway, Suite 315

Islandia, New York 11749

(631) 234-9240

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.