Ti loses second appeal on road lawsuit: Plattsburgh NY Press Republican, 4/28/07

By Lohr McKinstry

The Town of Ticonderoga [NY] has been denied an appeal of a court decision that barred the town from seizing a half-mile-long back road by eminent domain.

The Ticonderoga Town Council tried to appeal a loss in the Appellate Division of State Supreme Court to the state's highest court, the Court of Appeals.

But, because the Appellate Division decision was unanimous, the town needed permission from that court to appeal, and permission was denied.

"They ruled they were not going to hear it," Town Supervisor Robert C. Dedrick said Friday. "This was the last step for the appeal."

The Appellate Division had ruled that a 50-foot-wide section of Killicut Mountain Road owned by Georgia Hargett could not be seized using a highway superintendent's eminent-domain powers, since the action was chiefly for recreational purposes.

By a split vote, the Town Council decided to appeal the decision to the Court of Appeals. Special Counsel William Scott handled the appeal for the town, with the cost placed at about $7,000.

Mrs. Hargett erected a gate barring public access to that section of Killicut Mountain Road, which the town contended has always been a public road.

It eventually began eminent-domain proceedings through Town Highway Superintendent Phillip Huestis to take title to the road.

Killicut Mountain Road connects to Bullrock Road to the south, where landowner Lee Catlin has now closed the road in front of his South Ticonderoga farm to public use, including snowmobiling.

The town says that is also a public road, but no determination has been made yet on the closure issue there.

Property-rights advocate Richard Holroyd has been working on behalf of Mrs. Hargett and her husband, Raymond.

"The town lost its appeal," he affirmed. "On this particular eminent domain, that ends it."

The Hargetts "are in seventh heaven," Holroyd said. "They're ecstatic."

Holroyd said the town's only option would be to start eminent domain all over again, this time using the Town Council's statutory authority instead of the highway superintendent's.

Dedrick said he doesn't know if that will happen, but the town could start the eminent-domain process again using the necessary criteria the Appellate Division cited in its decision.

"Our attorneys will bring it up at the next board meeting. We'll go into executive session to decide what we're going to do."

Plattsburgh NY Press Republican: http://www.pressrepublican.com