NY Appellate Court Upholds Condemnation by Town

Petitioner challenges the determination of the Town of Tonawanda (Town), which authorized the condemnation of property owned by petitioner following a pubic hearing. The property, situated along the Niagara River, includes a coal-fired electric generating station that was decommissioned in 2016 and water intake structures. Petitioner commenced proceeding No. 1 asserting that the Town failed to publish a brief synopsis of its determination and findings within 90 days as required by EDPL 204 (A) and asserting various other grounds for relief. Shortly thereafter the Town published its determination and findings pursuant to EDPL 204 (A)  and petitioner then commenced proceeding No. 2 asserting that the Town’s publication of its determination and findings was untimely under EDPL 204 (A) and otherwise asserting the same grounds for relief.

The appellate court  dismissed proceeding No. 1 finding it moot by the subsequent publication of that information. With respect to the merits in proceeding No. 2,the Court noted that EDPL 204 (A) provides that the condemnor, “within [90] days after the conclusion of the public hearings held pursuant to this article, shall make its determination and findings concerning the proposed public project and shall publish a brief synopsis of such determination and findings in at least two successive issues of an official newspaper if there is one designated in the locality where the project will be situated and in at least two successive issues of a newspaper of general circulation in such locality.” While the Court agreed that the Town’s publication of the synopsis was untimely because it was not made within 90 days following the hearing, the Court agreed with the Town that petitioner was not prejudiced by the delay, and the petitioner did not contend otherwise. Therefore the Court concluded that the error did not require it to reject the determination.

The Court rejected petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose, finding that the Town’s condemnation of the property serves the public uses of, inter alia, revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town.  The Court further rejected the petitioner’s  contention that the condemnation was excessive finding no abuse or improvident exercise of discretion by the Town in determining the scope of the.

As to the petitioner’s contention that the Town failed to comply with the segmentation requirements of the State Environmental Quality Review Act (SEQRA), the Court noted that “the Town determined that acquiring the property would not have any significant adverse environmental impacts and further stated its understanding that any future development or construction at the property would be subject to separate environmental review. There was no improper segmentation inasmuch as the Town ‘was not required to consider the environmental impact of anything beyond the acquisition.’”

Lastly the Court disagreed with petitioner’s contention that the Town’s stated purpose for acquiring the property manifests an intent to engage in constitutionally-prohibited private enterprise because the Town intends to sell the property to a private developer since “ ‘[t]aking of substandard real estate by a municipality for redevelopment by private corporations has long been recognized as a species of public use.’”

Huntley Power v Town of Tonawanda, 2023 WL 3912499 (NYAD 4 Dept.2023)