Stewart Park v. Slater - dissent

Stewart Park v. Slater No. 02-6272 December 12, 2003 1 Van Graafeiland, Senior Circuit Judge, dissenting in part: 2 On the whole, I agree with Judge Miner’s analysis of the 3 verbose, over-8000 page, record. However, I respectfully 4 disagree with the following determinative statement that he 5 makes: 6 “Here it cannot be gainsaid that the Stewart Buffer 7 Lands and the Crestview Lake property were established 8 parklands. They have been used exclusively as 9 parklands for almost thirty years since they were 10 acquired pursuant to a series of management 11 agreements.” 12 When asked to pass judgment on acts that occurred decades 13 prior to the making of the request, wisdom dictates that we give 14 some consideration to pertinent judicial pronouncements made 15 during the period at issue regarding the initial acquisition of 16 the Stewart Properties. Two such pronouncements were Town of New 17 Windsor v. Ronan, 329 F. Supp. 1286 (S.D.N.Y. 1971) and County of 18 Orange v. Metropolitan Transportation Authority, 71 Misc.2d 691 19 (1971) aff’d mem, 39 A.D.2d 839 (1972). Unlike my two 20 colleagues, I find the following excerpts from these two opinions 21 persuasive, if not controlling. 22 Town of New Windsor 23 “The New York Legislature passed in April of 24 this year, and amended in May, ‘An Act to [1] 1 authorize the establishment of an airport for the 2 accommodation of domestic and international air 3 travel and freight transport at Stewart airport 4 and the making of an appropriation therefor.’ 5 Signed by the Governor in June, the Act as amended 6 grants to MTA authority ‘to establish, construct, 7 expand, rehabilitate, improve, maintain, 8 reconstruct and operate. Stewart airport * * * * 9 an airport for the accommodation of domestic and 10 international air freight transport, general 11 aviation and such other airport purposes for which 12 there may be need from time to time.’” Id. at 13 1288. 14 . . . . 15 “Land prices are rising. The announced 16 Stewart program seems to have enhanced this 17 overall trend in the affected area. The land 18 involved is sparsely occupied at present. It 19 makes sense to take it and set it aside now 20 for airport use rather than to wait for a 21 time when homes and other buildings will need 22 to be razed and other intervening interests 23 will have to be bought. In sum, the taking 24 of title now has obvious justification in 25 terms of prudence and fairness. Especially 26 when considered with the merits of the case, 27 the opposed claims of hardship threatened 28 hardship fall short of making a compelling 29 case for plaintiffs. Id. At 1292. 30 . . . . 31 County of Orange 32 “In a joint statement issued by Governor 33 Rockefeller and members of the Legislature on 34 May 18, 1971, it was pointed out that the acreage 35 to be taken was ‘needed for runway extension, 36 facilities and a buffer zone’; that primary 37 emphasis would be placed on a ‘phased development 38 of Stewart as an air cargo shipping center and 39 general aviation facility’; that other development 40 of the airport would be made in close co-operation 41 with local officials and would be consistent with 42 sound environmental standards and practices.” Id. 43 at 694. [2] 1 . . . . [2] 3 “It is, of course, fundamental that private 4 lands may be taken only for a public use or 5 purpose and only when the lands are necessary for 6 such public use or purpose. Here, the Legislature 7 has authorized the acquisition of lands for the 8 purposes of ‘establish[ing], construct[ing and] 9 expand[ing] an airport for the accommodation of 10 domestic and international air travel and freight 11 transport, general aviation and such other airport 12 purposes for which there may be need from time to 13 time.’ Whether such purpose or use is public in 14 character and whether the lands were in fact 15 acquired for such use, are questions to be 16 determined by the court (see, e.g., Fifth Ave. 17 Coach Lines v. City of New York, 11 N.Y. 2d 342 , 18 349; Denihan v. Enterprises v. O’Dwyer, 302 N.Y. 19 451 ). But at this stage in the history of aviation 20 and public transportation, there can be no genuine 21 doubt that the creation or expansion of an airport 22 is a public purpose for which the power of eminent 23 domain may be validly exercised (Hesse v. Rath 249 24 N.Y. 436 ; General Municipal Law, §§ 350-357; 2-A 25 Nichols, Eminent Domain, § 7.514). Nor is there 26 any genuine issue with respect to whether the land 27 taken by the defendants was taken for the purposes 28 authorized by the Legislature. The complaint, the 29 description and map referred to in the complaint, 30 and the public pronouncements of the defendants 31 referred to in the verification of the complaint, 32 all indicate that the land was acquired for the 33 purposes set forth in the Stewart Airports Acts. 34 There is in fact no allegation in the complaint 35 that the land was acquired for some other 36 purpose.” Id. at 697. [37] 38 The Stewart Properties are located in the towns of 39 Hamptonburgh, Montgomery, Newburgh, and New Windsor in Orange 40 County, New York. Generally speaking, they are bordered by 41 Interstate Route 84 to the north, NYS Route 17K to the northeast, 42 the New York State Thruway (Interstate Route 87) to the east, NYS 43 Route 207, Forrester Road and NYS Route 208 to the south, and [3] 1 former Contrail lands to the west. The average north-south 2 dimension of the site is approximately 2.5 miles and the average 3 east-west dimension is approximately 6.5 miles. 4 Existing on-site development consists primarily of the 5 airfield and related airport facilities, U.S. Military Academy 6 facilities, an Air National Guard base and U.S. Department of 7 Agriculture Animal Import and Export centers. There is also 180- 8 acre industrial park in the northeast portion of the site, 9 including a 70-acre U.S. Postal Service General Mail Facility and 10 a cargo facility recently completed north of the runways. 11 The proposed action is to implement a plan that would allow 12 for the development of portions of the Stewart Properties that 13 would assist in promoting the utilization of the airport as a 14 regional airport; to generate revenues for the State of New York 15 and in doing so, reduce the state taxpayer’s subsidy of Stewart’s 16 operation; to promote economic development in the area of the 17 airport; accommodate projected regional commercial development 18 demand in a sound and responsible manner; and return lost taxes 19 and school districts costs by providing for aviation compatible 20 development on State-owned property. 21 Despite the reams of factual and legal argument which have 22 been discussed in this case, the determinative issue which I now 23 address is relatively concise; viz. should section 4(f) have been 24 applied? In the holding from which I now dissent, my two [4] 1 colleagues answer this question in the affirmative. I, however, 2 agree with the district court which held to the contrary. 3 Section 4(f) provides in substance that the Secretary of 4 Transportation may approve a transportation project requiring the 5 use of publicly owned land of a public park or recreation area of 6 significance “only if there is no prudent and feasible 7 alternative to using that land; and the project includes all 8 possible planning to minimize harm to the park or recreation 9 area. . . .” Plaintiff’s concede that there never has been a 10 formal designation of the land at issue as park or recreational 11 land. SPARC I, 225 F. Supp. 2d at 228. Judge Miner states, 12 however, with little citation of supportive authority, that “for 13 almost thirty years, state and local governments have determined 14 that the Stewart Buffer Lands and the Crestview Lake property 15 were to be principally used as a park,” and that “[t]his 16 uninterrupted period of use cannot be characterized as interim.” 17 This statement, I believe, misinterprets the basic intent of 18 the fish and wildlife management program as set forth in #11-0501 19 of New York’s Environmental Conservation Law, which states that 20 its purpose is to obtain “on the privately owned or leased lands. 21 . . of the state practices of . . . wildlife management which 22 will preserve and develop the . . . wildlife resources of the 23 state and improve access to them for recreational purposes by the 24 people of the state.” It also misapplies the provisions of [5] 1 #11-0501 dealing with Cooperation Agreements, which states in 2 paragraph c) that such an agreement “shall state the period 3 during which it shall be in force and may provide for renewal. 4 It may also provide for termination before the expiration of such 5 period and for the conditions upon which and the manner in which 6 any privilege of termination may be exercised.” 7 The statement also misinterprets the meaning of the word 8 “interim.” This word is used in connection with airport 9 transportation claims and generally obviates the need for section 10 4(f)definition. See, e.g., FAA Order 5050.4A Airport 11 Environmental Handbook, Transportation Law. 12 The agreement at issue has constantly been described as 13 “interim.” (JA 1962, 1988, 2037, 2413.) Indeed, the plaintiffs 14 have clearly recognized the terminable or interim nature of the 15 cooperation agreements. For example, Plaintiff-Appellant, Orange 16 County Federation of Sportsmen’s Clubs, Incorporated, responding 17 to the 1994 Solicitation of Interest, used the following 18 illustrative statements, “ON BEHALF OF THE SPORTSMEN OF THIS 19 COUNTY, THE FEDERATION STRONGLY RECOMMENDS THAT THE EXISTING 20 INTERIM USES, SUCH AS, BUT NOT LIMITED TO, HUNTING, FISHING, 21 TRAPPING, BIRDING, BIKING & HIKING ON STEWART PROPERTIES BE 22 CONTINUED IN PERPETUITY.” 23 . . . . [6] 1 “THE SPORTSMEN PROPOSE PERMANENCY TO THE INTERIM 2 RECREATIONAL USES AT STEWART, AND THE DEDICATE THE 6,500 ACES AT 3 STEWART FOREVER WILD.” 4 . . . . 5 This request was, of course, not honored. This fact gives 6 added significance to FAA Order 5050.4A of the Airport 7 Environmental Handbook, which provides that where property is 8 owned by and designated for use by a transportation agency and a 9 park or recreation use of the land is being made only on an 10 interim basis, a section 4(f)ruling ordinarily is not required. 11 We are left with the proposition that the use of the land was 12 made only on an interim basis, and section 4(f) does not apply to 13 temporary use. See Collin County, Tex. v. Homeowners eminent, [14] 716 F.Supp. 953, 972 (N.D. Tex 1989). 15 Moreover, all of this underscores the point that we are not 16 required to determine if the decision by the Federal Highway 17 Administration not to apply a section 4(f) analysis is correct in 18 our eyes. We need only determine that its decision is 19 reasonable. See SPARC I, 225 F. Supp. 2d at 227. Given the fact 20 that the land in question was acquired for transportation 21 purposes, was always intended to be used for transportation 22 purposes, and was only transferred on an interim basis with a 23 termination provision to realize this intent, the decision of the 24 Federal Highway Administration was eminently reasonable. [7] 1 When the decision to create and enlarge Stewart Airport was 2 made, hundreds of residents were evicted from the property 3 involved. This was not intended for the benefit of hunters and 4 other recreationists. However, conversion to airport use could 5 not be completed overnight. Permissive interim use by 6 recreationists did not accomplish what never was intended. 7 I would affirm the district court’s holding in total.