     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

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 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

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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


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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


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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   . . . .




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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.


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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.

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