The Ludovico Sculpture Trail (Trail) is located near the Women’s Rights National Historic Park in Seneca Falls, NY.  Its website can be found at  The Trail recently became a centerpiece of a land use dispute with the Town of Seneca Falls (Town).

In Matter of Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, the Fourth Department annulled a decision of the Town to acquire an easement along the Trail to install a new sewer line because the Town failed to comply with the Eminent Domain Procedure Law (EDPL).  The Town, as lead agency, adopted a negative declaration under the State Environmental Quality Review Act (SEQRA) that, in the Court’s view, failed to take the required “hard look” at the proposed sewer project’s impact on wildlife.  The Court also found that that the Town failed to provide a reasoned elaboration of the basis for its determination that the proposed sewer line project would not have a significant impact on wildlife or surface water.

Prior to issuing its SEQRA determination, the Town was advised by the New York State Department of Environmental Conservation (NYSDEC) that there may be certain endangered, threatened or rare animal and plant species located at the proposed easement site. These included the northern long-eared bat, the Imperial moth, and the northern bog violet.  The NYSDEC  also advised the Town that the Trail may be the location of an inland salt marsh.  The NYSDEC recommended the Town conduct a literature survey to determine if the project site contains habitats that are favorable to these species, and if so, undertake a field study to determine if the species are present at the project site.  If they are present, the NYSDEC instructed the Town that it must consider modifications to the project to minimize impacts on these species.

The Town never conducted the survey. Rather, the Town apparently just assumed the species were present, noted them on the SEQRA environmental assessment form (EAF), and further noted there would be no direct taking of these species or of the Indiana bat, because all of the tree clearing activities would be conducted in the winter months when bats are hibernating in caves. As to the Imperial moth, northern bog violet, or other species that might be located in the salt marsh, the EAF merely listed them and summarily concluded they would suffer no significant impact.  This was not the “hard look” required by SEQRA according to the Court.

The Court also found that the NYSDEC’s recommendation to avoid impacts on surface water was given short shrift by the Town.  In the EAF, the Town noted it planned to reroute the sewer line “to the extent practicable” or use horizontally directional drilling to avoid impacts.  This conflicted with another part of the EAF, where the Town indicated it was going to use horizontally directional drilling “when possible.”   According to the Court, this meant that the Town anticipated that re-routing the sewer line would be impracticable and/or the specialized drilling would be impossible at some point during the project, but failed to address how it planned to avoid adverse impacts if these contingencies arose at the same or different times. As a result, the Court found the Town’s reasonable elaboration to be lacking.

The Court then ruled that the negative declaration was arbitrary and capricious and annulled the Town’s determination to acquire an easement in the Trail.