Eminent Domain Law

Failure to Provide Notice of Right to Seek Judicial Review

Matter of Smithline v. Town and Village of Harrison

NYLJ 9/25/15 p. 24, col. 3 AppDiv, Second Dept.

(memorandum opinion)

Landowner brought a proceeding challenging condemnation of an easement across landowner's land. The Appellate Division confirmed the town's action, holding that the town's failure to provide notice of the right to seek judicial review was harmless.

The town embarked on a drainage project to relieve flooding on a road parallel to landowner's property. To complete the project, the town sought a permanent easement to install underground drainage under landowner's parcel, and a temporary easement for storage of materials. Landowner refused to grant the easement, prompting the town to bring a condemnation proceeding. After a hearing the town concluded that the condemnation was authorized, and resolved to condemn the easement. Landowner brought this proceeding to challenge the condemnation, contending that the town had failed to consider the environmental impact of the drainage project.

In upholding the condemnation, the court concluded that the town had properly determined that the project was a “Type II” action under SEQRA, and that no further environmental review was necessary. The court acknowledge that the town had failed to provide landowner with notice of the right to seek judicial review of the condemnation determination ' a notice mandated by sections 202 and 204 of the Eminent Domain Procedure Law. The court noted, however, that despite the town's failure to provide notice, landowner appeared and participated at the town's hearing, and sought timely judicial review. As a result, the absence of notice constituted harmless error.

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Failure to Provide Notice of Right to Seek Judicial Review

Matter of Smithline v. Town and Village of Harrison

NYLJ 9/25/15 p. 24, col. 3 AppDiv, Second Dept.

(memorandum opinion)

Landowner brought a proceeding challenging condemnation of an easement across landowner's land. The Appellate Division confirmed the town's action, holding that the town's failure to provide notice of the right to seek judicial review was harmless.

The town embarked on a drainage project to relieve flooding on a road parallel to landowner's property. To complete the project, the town sought a permanent easement to install underground drainage under landowner's parcel, and a temporary easement for storage of materials. Landowner refused to grant the easement, prompting the town to bring a condemnation proceeding. After a hearing the town concluded that the condemnation was authorized, and resolved to condemn the easement. Landowner brought this proceeding to challenge the condemnation, contending that the town had failed to consider the environmental impact of the drainage project.

In upholding the condemnation, the court concluded that the town had properly determined that the project was a “Type II” action under SEQRA, and that no further environmental review was necessary. The court acknowledge that the town had failed to provide landowner with notice of the right to seek judicial review of the condemnation determination ' a notice mandated by sections 202 and 204 of the Eminent Domain Procedure Law. The court noted, however, that despite the town's failure to provide notice, landowner appeared and participated at the town's hearing, and sought timely judicial review. As a result, the absence of notice constituted harmless error.

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