MATTER OF ADIRONDACK HISTORICAL ASSOCIATION: A RARE VICTORY UNDER EDPL 207

The Eminent Domain Procedure Law (EDPL) is the comprehensive law that uniformly dictates the procedures that must be followed by the state, municipalities and other entities with the power of eminent domain.  With certain exceptions, not relevant here, public hearings must be held before the condemnation may take place.  Following those hearings, the condemnor must make a determination and findings and publish a “brief synopsis.”

The determination and findings must include the “public use, benefit or purpose” of the proposed project, the approximate location and the reasons for selecting the location and the general effect on the environment and residents and whatever else they consider relevant (EDPL §204).

The Judicial Challenge

The section that deals with the judicial challenge to the proposed condemnation is EDPL §207, and that leaves a very small window of opportunity.  Within 30 days after the completion of the publication of the determination and findings, as required by EDPL §204, those persons who are “aggrieved” may seek judicial review.  The definition of persons “aggrieved” could probably be the subject of a column by itself.

These persons must file a petition in the Appellate Division in the judicial department where the proposed condemnation is to take place.  The petition must be accompanied by proof of service of a demand on the condemnor to file a written copy of the transcript of the record of the proceeding, i.e., the public hearing, and a copy of the determination and findings.  Note that the initial hearing is the Appellate Division, not the Special Term of the Supreme Court where the petition for an order of condemnation is to be brought.  If more than one Appellate Division is involved, the petition may be brought in either section, but only one.

The jurisdiction of the Appellate Division is exclusive, and its order is final but subject, of course, to review in the Court of Appeals.  The section gives the proceeding a lawful preference over other matters.

EDPL §207(C) limits the scope of review in the Appellate Division to whether:

  • The proceeding was in conformity with the federal and state constitutions,
  • The proposed acquisition is within the condemnor’s statutory jurisdiction or authority,
  • The condemnor’s determination and findings were made in accordance with the procedures set forth in this article and with article eight of the environmental conservation law, and
  • A public use, benefit or purpose will be served by the proposed acquisition.

On May 3, 2018, the Third Department handed down Matter of Adirondack Historical Association v Village of Lake Placid.

The Village proposed to condemn two vacant parcels of land owned by petitioner as part of a plan to redevelop Main Street.

At first, the Court rejected the petitioners’ argument that the SEQRA review process was impermissibly segmented, “… the segmented review that occurred here was not impermissibly undertaken for the purpose of circumventing the detailed review called for under SEQRA.”

But the Court did find that the Village Board failed to take the requisite hard look at potential traffic implications associated with the construction of a parking garage on the subject property, and failed to set forth a reasoned elaboration of the basis for its determination that development of the property would not result in substantial increase in traffic.

The Court noted, upon review of an eminent domain proceeding, “courts are required to determine whether the condemnor’s findings and determinations comply with ECL article 8, which is incorporated as part of the required procedures under EDPL article 2 (see EDPL 207(C) (3); Matter of Davis Holding Co., LLC v Village of Margaretville, 55 AD3d 1101, 1103-1104 [2008]; Matter of Stefanis v Village of Fleischmanns, 43 AD3d 581, 583 [2007]; Matter of Board of Coop. Educ. Servs. of Albany-Schoharie-Schenectady-Saratoga Counties v Town of Colonie, 268 AD2d 838, 839 [2000]).  In assessing compliance with the substantive mandates of SEQRA, we are tasked with reviewing the record to determine whether the Village Board, as the lead agency, ‘identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination’ (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986] [internal quotation marks and citation omitted]; see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688 [1996]; Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 79 NY2d 373, 381 [1992]; Matter of City of Mechanicville v Town of Halfmoon, 23 AD3d 897, 900 [2005]).  ‘Literal compliance with both the letter and spirit of SEQRA is required and substantial compliance will not suffice’ (Matter of Board of Coop. Educ. Servs. of Albany-Schoharie-Schenectady-Saratoga Counties v Town of Colonie, 268 AD2d at 840 [internal quotation marks, brackets and citations omitted); see Matter of Dawley v Whitetail 414, LLC,130 AD3d 1570, 1571 [2015]).”

The Third Department held that the record was bereft of any evidence that the Village Board took the requisite hard look at the potential traffic implications.

Posted in EDPL 207, Environmental Challenge
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