Owner challenged the necessity of taking entire property. DEP applied to the Planning Commission to acquire a 12,500-squarefoot unimproved property used as a parking lot on Grand Street between Crosby and Lafayette Streets for the construction and maintenance of Shaft 30B of the Third Water Tunnel. After its construction, DEP proposed to use the lot as public open space. Following a public hearing, the Commission approved in April 2004.
In November 2004, the City filed a petition to condemn the property and the owner, Grand Lafayette Properties, objected. It argued that suitable alternative sites existed, Shaft 30B could be constructed and maintained without taking the entire lot, and the ULURP process was defective. The lower court granted the petition, finding that the City demonstrated its need for the entire lot, had broad discretion to determine the extent of land needed and should not have to rely on a private landowner to deal with a future repair or crisis. The City’s
land use review process had satisfied the requirements of the state eminent domain laws.
On appeal, the First Department affirmed, ruling that the acquisition of the entire site was not in excess of the takings required. The complex construction required flexibility and the size of the property could not be determined prior to construction.
In re Third Water Tunnel, Shaft 30B, 2005 NY Slip Op 04141, May 24, 2005 (1st Dep’t).