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SENECA FALLS — It took seven months, but an appellate court in Rochester has denied the town's petition to use eminent domain to gain access to the Ludovico Sculpture Trail to install a sanitary sewer line.

"It is hereby ordered that the determination of the town of Seneca Falls is unanimously annulled on the law without costs and the petition is granted," states the June 7 decision from the Fourth Department Appellate Division Court.

The sculpture trail is along the south side of the Cayuga-Seneca Canal west of Bridge Street. Town officials and Barton & Loguidice Engineers suggested that a proposed new sewer line from the Kingdom Road pump station east along River Road and West Bayard Street could be placed under the sculpture trail walkway en route to the town's wastewater treatment plant on Seneca Street, bordering the canal.

They claimed that would be cheaper and less disruptive than putting it along West Bayard Street. But the Friends of the Ludovico Sculpture Trail did not agree, and negotiations produced no agreement.

The town hired attorney Mark McNamara to file the eminent domain petition while the sculpture trial hired Sheila Chalifoux to oppose it. Oral arguments were held last December in Rochester.

"We agree with petitioner, the Frank J. Ludovico Sculpture Trail Corp., that the determination must be annulled based upon the town's failure to comply with provisions of the State Environmental Quality Review Act (SEQRA) when the Town Board adopted a negative declaration pursuant to that act without taking the requisite hard look at the projects impact on wildlife or providing a reasoned elaboration on the basis for its determination of no significant impact on wildlife or surface water," the five-judge panel ruled.

The judges said SEQRA's procedural mechanisms mandate strict compliance and anything less results in annulment of the lead agency's determination of significance.

The court said that on Nov. 19, 2015, the state Department of Environmental Conservation made the town aware that its database indicated the presence of certain endangered, threatened or rare animals and plant species on the project site or trail area. Those species include the northern long-eared bat, the imperial moth and the northern bog violet.

The DEC's database also indicated the presence of inland salt marsh and recommended that the town conduct a survey to determine whether the species are present. 

"There is no indication the respondent conducted such a survey. Instead, the record establishes that the town assumed the presence of the species and noted them, along with the Indiana bat, in the December 2015 environmental assessment form (EAF). In the EAF, the town said that here would be no direct taking of the bats because the clearing of any trees in which bats roost would occur during the winter months when the bats are hibernating in caves.

"There was, however, no such reasoning with respect to the imperial moth, the northern bog violet or any animal or plant species that might live or grow in the inland salt marsh. Their presence was merely noted ... along with the bare conclusion that there would be no significant impact on these species.

"We thus conclude that the Town Board failed to take a hard look at the project's impact on wildlife and failed to make a reasoned elaboration of the basis for its determination," the ruling said.

DEC officials also added recommendations for avoiding impacts on surface water, particularly the canal. The town said that it planned to reroute sewer main locations "to the extent practicable" and then, if impractical, sanitary sewer piping could be horizontally directionally drilled to avoid impacts. The judges said that in a previous page, the town noted that it intended to use directional drilling when possible.

"Respondent did not address how it planned to avoid adverse impacts on the stream corridor in particular, or surface water in general, in circumstances where rerouting was impractical and horizontal drilling was impossible, nor did the respondent conclude that both such circumstances can or do not simultaneously exist at this site," the judges wrote.

"By all appearances, respondent merely set forth general practices for avoiding significant adverse impacts on surface water and stream corridors without giving a reasoned elaboration that, by implementing such practices in this particular project, respondent would successfully avoid any significant adverse impacts on surface water. We thus conclude that the Town Board failed to make a reasoned elaboration on the basis for its determination."

The court rejected the sculpture trail's challenges to the negative declaration with respect to historical and archeological resources, noise, odor, light and consistency with community character.

"Therefore, we conclude that the negative declaration with respect to wildlife and surface water is arbitrary and capricious and the determination of the town to acquire an easement over the trail must be annulled," the court concluded.

Chalifoux said her client is hopeful that the Appellate Division decision, coupled with the Seneca County Supreme Court's similar 2017 decision, will cause the town to re-evaluate how it conducts SEQRA reviews.

"In this case, the town refused to work with my client in the eminent domain process and refused to consider the serious environmental concerns, choosing instead to ignore the issues raised by the DEC and cut short public comment at the hearing," Chalifoux said. "My client seeks to continue to maintain and protect the treasured, not-for-profit Ludovico Sculpture Trail that is enjoyed by so many residents of the town."

Town Attorney David Foster said the decision can be appealed to the Court of Appeals, should the board decide to.

"It is also re-doable and there is always an option of reaching an accord with the opposing party. While it is a board decision as to how to proceed, I suspect they will follow the route of simply readdressing the issues raised by the court and return to secure approval," Foster said.

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