Petitioner Town of Chenango (Chenango) commenced this proceeding, pursuant to Eminent Domain Procedure Law § 402(B), seeking an order authorizing it to file an acquisition map vesting it with title to a parcel of land owned by, and located within the bounds of, respondent Town of Fenton (Fenton), which is subject to an easement owned by respondent JAMCAM, LLC (JAMCAM). Fenton answered, asserting nine affirmative defenses and a counterclaim. JAMCAM also answered, asserting two affirmative defenses. In addition, Fenton moves, in part, for dismissal of the petition on the basis of its prior public use of the property.

HISTORICAL BACKGROUND ^[FN1]

The following history is not in dispute. The Town of Fenton is a municipal corporation located in Broome County. The Town of Chenango, also a municipal corporation located in Broome County, is westerly of, and adjacent to, the Town of Fenton. The boundary line between the parties is the Chenango River. From approximately 1976 through 1999, mining operations were conducted in Fenton adjacent to the Chenango River. Removal of topsoil and gravel resulted in the creation of two large ponds that were originally separated from the Chenango River by a berm, or land barrier. That berm was breached by the Chenango River, and, as a result, the Chenango River now flows primarily through the ponds, before rejoining the main channel south of the mining area. Consequently, the level of water flow through the original main channel in the area adjacent to the ponds has become very low and, at times, has even ceased.

The Chenango wastewater treatment plant (WWTP), located on the west shore of the original Chenango River channel in the vicinity of the ponds, first became operational in 1988. At that time, effluent from the WWTP was discharged into the main channel of the Chenango River. As a result of the diversion of the primary flow of the Chenango River through the ponds, the effluent discharge was no longer satisfactorily diluted, in accordance with Department of Environmental Conservation (DEC) regulations. To solve that problem, Chenango made application to DEC for a permit for extension of the discharge line to a point where the flow of the Chenango River would be sufficient to dilute the effluent to applicable standards. In August 2008, DEC issued a final permit to Chenango for extension of the 16 inch effluent discharge pipe to a point in the western edge of the ponds, and, in September 2008, construction of the extension was completed.

Since 1929, the Town of Fenton has owned and operated a waterworks in a portion of the Town known as Hillcrest, which is east of the ponds. The waterworks, used to supply potable water to properties located in Hillcrest Water District No. 1, draws its water from an aquifer [*2]located beneath the Chenango River and the ponds. To protect that water source, the Town of Fenton enacted an Aquifer Protection Law in 1991 (Code of the Town of Fenton, New York, chapter 57; herein Aquifer Law). Fenton contends that the discharge of approximately 500,000 gallons of effluent from the WWTP into the ponds located above the aquifer each day violates the Aquifer Law and threatens to contaminate the water supply for the Hillcrest Water District.

PRIOR LITIGATION HISTORY

On October 28, 2008 — approximately one month after the effluent discharge pipe was relocated to discharge into the ponds — the Town of Fenton commenced an action against the Town of Chenango (the first action), asserting that the relocated effluent discharge line installed by the Town of Chenango violates the Aquifer Law. The court denied Fenton's motion for a preliminary injunction in that action (see Town of Fenton v Town of Chenango, 23 Misc 3d 1140[A], 2009 NY Slip Op 51207 [U)][2009] [Sup Ct, Broome County, Index No. 2008-2886]), and there are no applications pending therein.

On June 23, 2009, Chenango commenced a hybrid CPLR article 78 proceeding / declatory judgment action challenging the Town of Fenton Planning Board's denial of Chenango's application for issuance of a development permit for the effluent pipe, pursuant to the Aquifer Law (see Matter of Town of Chenango v Town of Fenton Planning Board, Sup Ct, Broome County Index No. 2009-1533), and seeking declatory judgment, pursuant to CPLR 3001, that its operation of the WWTP and the related installation of the effluent discharge line are immune from the provisions of the Aquifer Law. That proceeding / action, and Fenton's motion for consolidation with the first action, are decided herewith.

By deed dated August 28, 2009 and recorded September 1, 2009, Fenton acquired from JAMCAM, LLC fee ownership of a parcel of land of approximately 12.88 acres which includes the area where the effluent pipe discharges. JAMCAM retained an easement permitting it to use that parcel for its business purposes. Fenton explains that it acquired the parcel to protect the aquifer. On September 16, 2009, Fenton commenced a trespass action against Chenango seeking to compel removal of the pipe (Town of Fenton v. Town of Chenango, Sup Ct, Broome County Index No. 2009-2454). The parties' motions in that action — Fenton's for summary judgment and Chenango's for consolidation with the prior cases — are decided herewith.

EMINENT DOMAIN VESTING PROCEEDING

Chenango commenced this eminent domain vesting proceeding on July 2, 2010 to acquire ownership of a portion of the parcel owned by Fenton, consisting of a strip of land containing 0.60 acres that is 60 feet wide — centered on the existing effluent discharge pipe — and which extends east from the low water mark of the Chenango River a distance of approximately 440 feet. In its petition, Chenango claims that it is exempt from the public hearing requirement imposed by EDPL article 2 because it followed an alternate procedure which complied with EDPL 206(A) by obtaining a permit from DEC (petition, ¶ 3), and, in addition, because the proposed acquisition is de minimis, as defined by EDPL 206(D) (petition, ¶ 4).

On review of a vesting petition, the court must determine whether the condemnor has [*3]complied with the procedural requirements imposed by EDPL article 4 (see EDPL 402[B][5]; Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 549 [2006]; Matter of City of Albany, 9 AD3d 551, 553 [2004], lv denied 3 NY3d 609 [2004]), and thereby consider the condemnor's determination that it is exempt from the public hearing requirement imposed by EDPL article 2 (see Matter of Rockland County Sewer Dist. No. 1 v J. & J. Dodge, 213 AD2d 409, 410 [1995]; Matter of City of Albany, 9 AD3d at 553; Matter of County of Fulton, 136 AD2d 115, 118 — 119 [1988]). Prior to granting a petition which appears to meet the requirements of EDPL article 4, the court must also consider any affirmative defenses, counterclaims, and motions to dismiss properly interposed by respondents (see Matter of New York State Urban Dev. Corp., 26 Misc 3d 1228[A], 2010 NY Slip Op 50301[U] [2010], at *7, *10).^[FN2]

EDPL § 402(B)(1) requires that a notice of pendency be filed. Here, the notice of pendency filed by petitioner is insufficient because it contains an incomplete and erroneous property description and because it fails to name respondent JAMCAM as a condemnee. The court further notes that the description of the property to be acquired, as set forth in Exhibit A to the petition, contains the same erroneous property description as Exhibit A to the notice of pendency, which does not describe the parcel intended to be acquired as shown on the proposed acquisition map. Inasmuch as the proposed acquisition map attached as Exhibit C to the petition clearly and unambiguously depicts the parcel sought to be acquired, however, the errors in the metes and bounds property description set forth on Exhibits A to the notice of pendency and the petition do not prejudice a substantial right of any party (see County of Orange v Metropolitan Transp. Auth., 71 Misc 2d 691, 704 — 706 [1971], affd 39 AD2d 839 [1972]; cf. City of Plattsburgh v Kellogg, 254 AD 455, 458 — 459 [1938]), and the court, pursuant to CPLR 2001, hereby orders that the errors be corrected as follows: (1) petitioner shall file — prior to, or concurrently with, filing of the acquisition map — an amended notice of pendency which corrects the specified defects by naming JAMCAM as a respondent and attaching a correct description of the property; and (2) Exhibit A to the petition is hereby amended, nunc pro tunc, to accurately describe the parcel which petitioner seeks to acquire.^[FN3] [*4]

As permitted by EDPL 402(B)(2), petitioners timely provided respondents with notice of the vesting proceeding by personal service, in accordance with the CPLR, of copies of the notice of petition and petition, which contained a copy of the proposed acquisition map (see CPLR 311[5]; CPLR 311-a; Affirmation of Donald G. Walls, Esq. dated August 5, 2010, Exhibits 5, 6). Accordingly, compliance with the additional notice provisions of EDPL 402(B)(2) is not required (cf. Village of Valley Falls v Buchman, 179 Misc 2d 840, 842 —843 [1999]).

The petition contains each of the items required by EDPL 402(B)(3)(a) — (e), including statements identifying the bases of exemption from compliance with the requirements of EDPL article 2 asserted by petitioner. While both respondents generally deny that petitioner's acquisition is exempt from the public hearing requirements of EDPL article 2, neither has [*5]provided any evidence to contradict petitioner's showing that information relevant to factors similar to those enumerated in EDPL 206(B) was submitted to, and considered by, the DEC in connection with its grant of the permit for extension of the effluent discharge pipe into the ponds (see Matter of County of Fulton, 136 AD2d at 118 — 119; Matter of Rockland Co. Sewer Dist. No. 1, 213 AD2d at 411 — 412).

In light of the foregoing, which shows that petitioner has complied with the procedural requirements of EDPL article 4, the court is required to grant the petition unless there is merit to any of the affirmative defenses or counterclaims interposed by respondents (see EDPL 402[B][4]; Matter of New York State Urban Dev. Corp., 2010 NY Slip Op 50301, at *10).

Respondent Fenton has asserted nine separate affirmative defenses. The first three, unclean hands, waiver, and laches, are equitable in nature and may not be asserted in opposition to a vesting proceeding (see generally Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988], rearg denied 71 NY2d 995 [1988], cert denied 488 US 801 [1988] [estoppel and laches may not be invoked to prevent a municipality from asserting its statutory powers]; Society of NY Hosp. v Johnson, 5 NY2d 102, 107 [1958] [eminent domain power cannot be surrendered]; Matter of New York State Urban Dev. Corp., 2010 NY Slip Op 50301, at *28 [owner cannot oppose a vesting petition based on the doctrine of unclean hands]).

In its fifth affirmative defense, Fenton asserts that petitioner lacks a proper public purpose for the proposed acquisition. While the court is well aware of Fenton's objections to the procedure followed by petitioner to obtain the DEC permit and to install the effluent discharge pipe in the ponds located within the Town of Fenton — namely its allegation that it was deprived of the opportunity to participate in the DEC permit process by Chenango's intentional misrepresentation that the pipe would be installed entirely within the Town of Chenango — it is beyond dispute that operation of a wastewater treatment plant is a proper public use (see Matter of Village of Middleburgh, 120 AD2d 830 [1986]; see generally Matter of 225 Front St., Ltd. v City of Binghamton, 61 AD3d 1155, 1157 [2009] [public use is broadly defined as "any use which contributes to the health, safety, general welfare, convenience or prosperity of the community"] [citations omitted]; Matter of Board of Coop. Educ. Servs. of Albany-Scoharie-Schenectady-Saratoga Counties v Town of Colonie, 268 AD2d 838 [2000] [condemnor's determination that a proposed taking will serve a public purpose must be confirmed unless an objecting owner can show that it is without foundation]). Accordingly, the fifth affirmative defense lacks merit.

The sixth and seventh affirmative defenses interposed by Fenton both assert that the vesting proceeding is barred by Fenton's prior public use of the property which Chenango seeks to acquire. Fenton's motion for dismissal of the petition and its counterclaim are also based on its allegations of prior public use.^[FN4] With respect to its prior public use, Fenton explains that it acquired the 12.88 acre parcel from JAMCAM "for the public purpose of protecting the water supply for the Hillcrest area of the Town of Fenton by obtaining the removal of the pipe through the trespass action referred to above [Town of Fenton v Town of Chenango, Sup Ct, Broome County, Index No. 2009-2454]" (Fenton's verified answer and counterclaim, ¶ 16; see also [*6]Affidavit of David C. Hamlin, sworn to July 21, 2010, ¶¶ 2, 12).

Whether Fenton's stated use of the property — protection of the water supply for the Hillcrest Water District — constitutes a public use turns on whether ECL 15-1501 applies to its purchase of the property from JAMCAM.^[FN5] ECL 15-1501 prohibits a municipality from acquiring land for any new or additional water supply, or from utilizing such supplies, without first obtaining a permit from the DEC (ECL 15-1501; Matter of County of Fulton, 136 AD2d 115; Matter of City of Schenectady v Flacke, 100 AD2d 349 [1984], lv denied 63 NY2d 603 [1984]). Here, Fenton concededly did not obtain a permit prior to its acquisition of the property; however, it argues that ECL 15-1501 is inapplicable because the property was not acquired as an additional water source, but for the primary purpose of protecting an existing water supply. In that regard, Fenton explains that the property is located adjacent to its waterworks and directly over the aquifer which has served as the source of the water supply for the Hillcrest Water District since 1929, and contends that its acquisition of the property did nothing to change the source of the water supply, finally noting that "[i]f there is a hydrostatic connection between the pond and the acquifer [sic], it has been there right along" (Supplemental Brief of Respondent and Condemnee Town of Fenton in Opposition to Condemnation Petition, dated August 20, 2010 [Supplemental Brief], p. 5).

Fenton's argument fails in light of long-standing precedent of the Appellate Division, Third Department, which holds that ECL 15-1501 applies to acquisitions of land made for the stated purpose of protecting an existing water supply (see Matter of City of Schenectady v Flacke, 100 AD2d 349; Matter of Fulton County, 136 AD2d 115; see also Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book 17 ½, ECL C15-1501), and that property is not acquired for a public purpose if a required permit is not obtained (Matter of Fulton County, 136 AD2d at 118).

The relevant facts at issue in Matter of City of Schenectady v Flacke and in Matter of Fulton County are strikingly similar to the facts presented in this proceeding. In Matter of City of Schenectady v Flacke, two adjoining municipalities agreed to jointly acquire 23 parcels of real property located over the aquifer which served as their existing water source. In a condemnation proceeding which they commenced to acquire the properties, they, like Fenton, argued that the permit requirement imposed by ECL 15-1501 was inapplicable because they were merely acquiring an existing source of water and not a new source. The court held that the lands located over the municipalities' existing water source constituted a potential new source of water for each of them because they — like Fenton — did not already own the land; therefore, the permit requirement was applicable.

Fenton's attempts to distinguish Matter of Fulton County are unavailing. There, the Village of Canajoharie sought dismissal — like Fenton — on the basis of its prior public use, of an eminent domain proceeding commenced by Fulton County to acquire a 51 acre parcel of land located within the boundaries of a proposed landfill. The Village's stated purpose in acquiring the property — like Fenton's — was to protect its existing water supply against the threat of contamination posed by a competing municipal use. Like Fenton, the Village argued that the [*7]permit requirement imposed by ECL 15-1501 was not applicable because it had acquired the property as a "buffer" to protect its existing water supply. While Fenton has argued that the pond may by hydrostatically connected to the existing water supply, the Village argued that the property it had acquired was not an integral part of its water supply. The court rejected the Village's argument as being fatally flawed, noting that there would be no threat of contamination unless a hydrogeological connection existed between the subject property and the existing water source, in which case, the property would necessarily serve as an additional water source.^[FN6] Thus, the court concluded that ECL 15-1501 was applicable to the Village's acquisition of property for the intended purpose of protecting its existing water supply and that the property was not being used for a public purpose when the condemnation proceeding was commenced in light of the Village's failure to obtain the necessary permit.

Fenton's further arguments that Matter of Fulton County may be distinguished on the basis of two additional issues addressed by that court — that the Village lacked a valid public purpose for acquiring the property in light of its attempt to"short circuit" the regulatory process, and that it was barred from relitigating issues resolved in DEC review of the proposed landfill — are also unavailing. The court's determination that the property was not being used for a public purpose due to the failure to obtain a permit is, alone, a sufficient basis for its decision — and for a like determination in this proceeding. Thus, even were Fenton able to successfully establish that its situation is factually dissimilar from the Village of Canajoharie with respect to the two additional issues, the fact that it lacks the required permit is fatal to its efforts to distinguish Matter of Fulton County.^[FN7] [*8]

Thus, inasmuch as the property that Chenango seeks to acquire was not being used for a public purpose by Fenton when the condemnation proceeding was commenced, Fenton's sixth and seventh affirmative defenses and counterclaim lack merit; its motion to dismiss the petition is denied, and its counterclaim is dismissed.

The remaining affirmative defenses asserted by respondents Fenton and JAMCAM have been considered and found to lack merit.^[FN8]

Accordingly, the petition must be, and hereby is, granted. Petitioner shall file the amended notice of pendency and the acquisition map, at which time title to the property depicted on the acquisition map shall vest in petitioner. Inasmuch as the petition has been granted, Fenton's motion to consolidate this proceeding with the prior actions and proceeding has not been considered.

This decision constitutes the order and judgment of the court. The transmittal of copies of this decision, order and judgment by the court shall not constitute notice of entry.

Dated: October 27, 2010

Cortland, New York

_______________________________

HON. PHILLIP R. RUMSEY

ENTERSupreme Court Justice

October 27, 2010