Eminent domain OK'd for Copenhagen project

COPENHAGEN — A judge has approved Copenhagen's bid to acquire a new water source through eminent domain, allowing its $3 million water system renovation project to proceed.

However, the village must reimburse the landowners for more than $5,000 in attorney fees from an initial, discontinued attempt to acquire the property.

State Supreme Court Judge Joseph D. McGuire, in a decision dated Feb. 25 and filed Tuesday at the Lewis County clerk's office, granted the village's request to acquire nine acres of land off Stoddard Road in the town of Denmark from Kevin A. and Teresa J. Terrillion.

Title to the subdivided parcel was to transfer to the village upon filing of the judge's order and the acquisition map at the clerk's office, although the purchase price still must be determined.

Eminent domain — the taking of private land for a public purpose — requires the municipality to pay the fair market value of the property as determined in court proceedings.

Project engineer Matthew J. Cooper of Bernier, Carr & Associates, Watertown, in December said that, assuming the land was procured, plans are to begin the water project in the spring and complete it by the end of the year.

Mr. Cooper, village Mayor Kenneth J. Clarke and attorney Celia E. Kenny, who is handling the village's eminent domain case, could not be reached for comment Thursday.

Judge McGuire ruled that arguments made by the Terrillions' attorney, Mark R. McNamara, concerning alleged faults in the "taking procedures" were invalid because village trustees' actions weren't challenged in a timely manner. Mr. McNamara's argument that the village failed to negotiate in good faith is not a valid defense against eminent domain, "but may impact the ultimate award," the judge wrote.

In a separate decision, Judge McGuire ordered the village to reimburse the Terrillions for $5,205.64 in attorney fees.

"The right to recovery is clear when the condemnor has not properly conducted the acquisition procedure prior to the commencement of the vesting procedure," Judge McGuire wrote.

Ms. Kenny in February 2009 filed an initial eminent domain suit. However, it was discontinued about a month later after Mr. McNamara pointed out that the village first had to secure a water supply permit from the state Department of Environmental Conservation.

After Copenhagen secured a DEC permit, a new lawsuit was filed in December.

Ms. Kenny had argued that the Terrillions were not entitled to legal fees because the project itself had never been abandoned and that most of the legal documents for the new lawsuit were essentially rehashed from the first go-round.

The village of Copenhagen since 2004 has been seeking a new water source to replace its two wells, which no longer consistently provide an adequate supply for its approximately 250 customers. It drilled test wells at seven sites before finding an adequate water source a few years ago on the Terrillion property.

The village also has a shore well that pumps water from the Deer River into the system when the wells aren't providing a sufficient supply, but the village intends to discontinue its use.

Village trustees in late April 2008 authorized eminent-domain proceedings after they were unable to negotiate a purchase price with the Terrillions. The action also was taken to avoid losing proposed state funding for developing a new water source and upgrading water lines.

The village subsequently was awarded a $2 million grant and a $1 million no-interest loan from the Drinking Water State Revolving Fund.