ICYMI: Rockland SUP plans may face legal snag

Snowy Eesposito Trail/Credit Jess Hans Smolin

When one door closes, the saying goes, another one opens. What happens if the closing door — all but shut — is suddenly stopped by a situation that metaphorically says, “Not so fast!”

With the bridge project progressing steadily, and final designs for the walking/bicycle path due in June, it seems unlikely anything would intercept construction plans — until now.

The group Preserve South Nyack contests plans to intersect the Esposito Trail with the new bridge’s walking/bicycle path and whether or not the Thruway Authority followed legal protocol to acquire 0.81 acres next to the trail for a bicycle path.

PSN identified multiple deficiencies in the agency’s eminent domain proceedings, which include neglecting to serve the village (as condemnee) proper notice. The condemning authority (Thruway Authority) has to conduct a public hearing to determine if the greater public purpose being served by eminent domain.

Notice is to be published five times prior to a meeting and one or two times after the meeting within 90 days of its occurrence.

Drawing/Credit Reese Leader, 6, regular trail user and visitor

Members maintain the agency neglected to notify residents with the appropriate number of public notices prior to the March 2016 meeting — and neglected to notify the village either in person or by certified mail — per Eminent Domain Procedure Law (EDPL) Section 202, which governs the notice for the hearing and requirements to be met.

An inadvertent failure to meet the requirements of Section 202 is not jurisdictional. Further, the agency neglected to follow protocol re EDPL Section 204(C)3, which mandates it notify the village of findings and determination after a public hearing — March 2016 — in person or by certified mail.

PSN’s position is the 30 day Statue of Limitations doesn’t start until after the notice is delivered by certified mail or in person.

To date the Thruway Authority has not provided proof of compliance with EDPL Section 204. If this defect is deemed jurisdictional in court, then South Nyack can challenge the ruling. If not, then the village cannot challenge it. This specific issue has no court precedent.

That the Thruway Authority published 91 days after the meeting may hold less material or jurisdictional importance as its failure to notify the village of a proposed condemnation via personal delivery or certified mail.

Esposito Trail/Credit Kristy Leader

Months earlier, Village Trustee Andrew Goodwillie proposed a plan that would end that shared use path (SUP) at the Exit 10 on-ramp at South Broadway, which will close as part of the Concept F plans.

Proponents maintain this viable alternative will keep bicyclists off South Franklin Street, which is narrower than South Broadway, leaving the Esposito Trail intact for residents.

The Thruway Authority would save money as it would neither need to build a trailhead at Clinton Avenue and South Franklin Street nor make improvements alongside the trail, and no easement would be needed from the village.

PSN feels moving the SUP entrance would also negate the need to build a ramp to the trail and would afford police security from nearby Village Hall.

Dennis E.A. Lynch, representing South Nyack, explained if the village owns the property (Esposito Trail), then its officials can pass legislation to make it parkland. It can also be deemed parkland via deed or use.

South Nyack is awaiting results of a title research/confirmation that it owns the property (0.81 acres of Esposito Trail) and a legal opinion as to its rights and responsibilities to then determine what it can do regarding the Thruway Authority’s actions. When and if the deficiency is corrected, then the village will take appropriate action in the best interest of its residents.

My article originally appeared in the Rockland County Times March 9, 2017.

Copyright © Janie Rosman and Kaleidoscope Eyes 2017

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