Aspen Creek Estates, Ltd. (hereinafter Aspen Creek or the petitioner) owned about 39.15 acres (hereinafter the property) located north of South Street and east of Wading River Road in the Town of Brookhaven. Aspen Creek acquired the property in 2004 for a price of about $1.4 million. According to the “Notice to property owners,” the Town sought to acquire the property
“[t]o preserve open space and agricultural resources; to preserve prime agriculture in the Town which is an important component of the local economy; to ensure the retention of scenic vistas; to protect the bucolic and rural character of the subject property, adjoining properties, and the Manorville Farm Protection Area; to ensure the continued sale of fresh, locally-grown produce; to prevent conflicts between residential homeowners and adjacent farmers; and to help ensure the preservation of the Manorville Farm Protection Area, a high priority preservation target which contains the largest contiguous belt of working farmland left in Brookhaven Town.”
At the ensuing public hearing, testimony was heard as to the *279public necessity of acquiring the property and the Town’s three-year attempt to acquire the property through a negotiated purchase. The last offer rejected by the petitioner included a proposed purchase price of $4.004 million, while allowing the retention of three building lots for development for the petitioner’s principals as their own homes. The Town similarly had attempted to acquire the property from the prior owner, but the petitioner had offered a higher price and, thereby, acquired the property.
In opposition, the petitioner presented proof which indicated that it had submitted no less than 30 development alternatives, all of which had been rejected by the Town. In one proposal, the petitioner submitted a plan which preserved two thirds of the property as farmland and confined development to the remaining one third of the property.
Based on this record, the Town issued a negative declaration under the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]) and directed the Town Attorney to acquire the property by condemnation. That decision allegedly was based on the Town’s perfunctory conclusion that the proposal was an unlisted action, did not involve any physical activity, and was not anticipated to have a significant impact on the environment, public health, or the character of the community and that the condemnation “will preserve and protect ecologically important land and farmland . . . and would thus have a beneficial effect on the environment.”
The instant petition to annul the negative declaration under SEQRA and the respondents’ determination condemning the property alleges that the Town acted in bad faith in condemning the property, doing so only to avoid having the Town Planning Board ordered to pass on subdivision of the property via an CPLR article 78 proceeding. The petition also alleges that the condemnation was effected in violation of the Constitutions of the United States and the State of New York, that the condemnation procedure was flawed, and that the condemnation was approved without proper environmental review. The respondents have denied the allegations of the petition.
For the reasons stated below, I believe the petition should be granted and the determination and findings of the Town of Brookhaven dated March 21, 2006, authorizing the condemnation of the subject parcel, should be annulled. At the outset, I concur with the majority’s conclusion that the petitioner’s procedural arguments are without merit. Similarly, I agree that *280the purported public purpose alleged to be advanced by the condemnation, to wit, the preservation of farmland, open spaces and scenic vistas would, if applied in good faith, advance a recognized public policy of the State of New York and the County of Suffolk (see e.g. General Municipal Law § 247; Agriculture and Markets Law § 3; Suffolk County Farmland Preservation Law [1974]; Suffolk County Agricultural Preservation Plan [2006]).
The guiding legal principles with respect to the exercise of the State’s power of eminent domain were recently revisited in Kelo v New London (545 US 469 [2005]) and its progeny. As Kelo clearly states, the taking of one citizen’s property for the purpose of conferring a private benefit on another citizen is violative of the Constitution of the United States and is therefore forbidden except where such benefit is merely incidental to some other bona fide public purpose expressed through a recognizable plan (see Kelo v New London, 545 US at 477). Kelo also prohibits the utilization of a bona fide public purpose as a rationale or pretext for a taking designed to benefit private citizens (see Kelo v New London, 545 US at 478). This Court has recently expanded the Kelo rationale to require careful scrutiny in determining whether the taking was pretextual, especially where the taking is for ephemeral purposes such as alleged economic development (see Matter of 49 WB, LLC v Village of Haverstraw, 44 AD3d 226 [2007]).
In both Kelo and 49 WB, LLC, the proposed taking was to advance economic development in an urbanized setting. In Kelo, the United States Supreme Court placed great weight on a record that clearly demonstrated that the taking was pursuant to a comprehensive master development plan. In 49 WB, LLC, this Court determined that, while the asserted purpose of the taking could be rationalized as advancing a recognized public policy (i.e. economic development), in actuality the taking was done primarily and illegally to advance the economic needs of a particular developer to satisfy that developer’s obligation to provide a threshold amount of affordable housing imposed by an earlier contract with the municipality. In the present case, the proposed taking occurs in a rural setting where the avowed public purpose is, depending on one’s point of view, the prevention of development of vacant land and/or the preservation of dwindling acres of farmland. Notwithstanding that this taking is the polar opposite confronting this Court in Matter of 49 WB, LLC v Village of Haverstraw, applying the same rationale used therein to this *281record leads me to the inescapable conclusion that this taking was pretextual and is, therefore, forbidden by the Federal Constitution (see Kelo v New London, 545 US 469 [2005]).
I conclude that the rationale for the proposed taking is pretextual for the following reasons. First, while there are several references to a Manorville Farmland Protection Area in the record, no town ordinance or formalized plan for the alleged preservation of the area in which the property is located is set forth. Instead, the respondents rely on vague references to such designation as early as 1993 without being able to explain what the detailed plan was or is. The fact that the Town’s Open Space Committee approved the “protection” of the area in 2003 or that bond proceeds were used to acquire parcels of lands or development rights within such designated area is not proof of a coherent plan for preservation, or that the public acquisition of the entire tract (i.e. the property) and its use as farmland is essential to the furtherance of such an alleged plan.
Second, assuming that a valid plan existed for the acquisition of the property, the Town’s actions on this matter seem at great variance with what that plan purports to be. The Town allegedly endeavored to acquire the land for farmland preservation purposes in 2003, apparently while it was still utilized for agricultural purposes, yet failed to match Aspen Creek’s offer of $1.4 million. As the New York State Farm Bureau’s Director of Public Policy indicated at the hearing, acquisition of development rights of an existing farm via arms-length negotiations is preferable to condemnation of the property in toto and is the general norm for farmland preservation. That view was supported by the Long Island Builders Association.
Third, the willingness of the Town to increase its offer nearly 300% in less than two years, and the concomitant loss of millions of dollars for further acquisitions of property or development rights within the alleged targeted preservation area, raises questions as to the motivations of those involved as well as the propriety of the transactions (see e.g. State of New York v Grecco, 43 AD3d 397 [2007]; State of New York v Grecco, 21 AD3d 470 [2005]).
Fourth, that circumstance is further magnified by the fact that testimony was offered at the hearing that any residential development within the Manorville Farmland Protection Area was incompatible with any agricultural use. Yet, contrary to its alleged public purpose, the Town had indicated a willingness to allow residential development of some of the property for homes *282of the principals of Aspen Creek. The difference between that plan and one of the plans proposed by the petitioner, encompassing the preservation of about two thirds of the property as open space or farmland (without any cost to the public), is merely a matter of degree. However, the loss of nearly $4 million for the potential preservation of the remainder of the parcels within the alleged Manorville Farmland Protection Area is inexplicable and calls into question the true motivation of the respondents.
Lastly, the fact that the property was taken while it was not in agricultural use is of no small moment. That circumstance clearly shows that the alleged “preservation” of the agricultural use of the parcel can no longer be accomplished without the rental of the property to a “farmer.” That “farmer,” whether the previous tenant, as asserted in petitioner’s brief (and the pool of potential farmers appears to be extremely limited), or another, would be the sole beneficiary of the economic utilization of the property. Thus, I conclude that the potential benefit to the public is so disproportionate and ephemeral when compared to the actual benefit conferred on the tenant that the proposed taking cannot be justified as an efficient advancement of the stated public policy.
Because I believe that close scrutiny of the rationale offered by the Town offers illusory benefits to the public and is a mere pretext for an impermissible taking (see Matter of 49 WB, LLC v Village of Haverstraw, 44 AD3d 226 [2007]), I respectfully dissent.
Crane, J.P. and Fisher, J., concur; Lifson, J., dissents and votes to grant the petition and annul the determination in a separate opinion.
Adjudged that the determination is confirmed, with costs, the petition is denied, and the proceeding is dismissed.