The Fourth Department doesn’t have many condemnation matters before it and is shows. Huntley Power was a proceeding brought directly in the court to review the determination made by the Town to condemn property that includes a coal-fired electric generating station and water intake structures. The town held a public hearing on April 25, 2022 and adopted its resolution authorizing the condemnation on July 11, 2022. But did not publish a synopsis of the “Determination and Finding.” It was required to do so within 90 days of the public hearing. EDPL 204(A). Subsequently, after the property owner filed challenging the Determination, the Town published a synopsis on August 14, 2022. The Court agreed the with the Petitioner that the Town’s publication was untimely, but said “so what?”, the property owner was not prejudice.
The Court also dismissed the argument that the condemnation did not serve a public use, benefit or purpose. It also perceived no excess taking leaving it to the Town to determine the scope of the taking. It held the Town complied with SEQRA and rejected the argument that such review was improperly segmented. And, of course, held that the fact that the Town was going to sell the property to a private developer did not violate the constitutionally-prohibited private enterprise because, “talking of substandard real estate y a municipality for redevelopment by private corporations has long been recognized as a species of public use.”
There was a very strong and, in my opinion, correct dissent by Justice Lindley who stated that in his view, the takings causes of the Federal and State Constitution do not permit the government to take land through eminent domain and use it for the exact same purpose of which the landowner is already using it. A government entity cannot take property from one party for the purpose of providing an economic benefit to other parties merely because the public will incidentally benefit from the taking in the form of jobs created or maintained and tax revenue generated therefrom.
The incredible deference to the Town was astonishing. The law is clear. Notice of the public hearing is jurisdictional.
The mandatory requirements of EDPL 202 must be strictly complied with.
One basis for review is the failure to follow the procedures set forth in Article 2 of the EDPL and to comply with Article 8 of the Environmental Conservation Law. The first part deals with the mandatory notice requirements that must be strictly complied with as specified in Section 202 of the EDPL. N.Y. Em. Dom. Proc. Law § 202(A)-(D). The notice is of the public hearing required by Section 201. Id. § 201.
Section 202 of the EDPL requires notice to the public at least ten, but no more than thirty days, prior to the hearing by publication in five successive issues of an official daily newspaper. Id. § 202(A). The condemnor has the burden of proving literal compliance with the requirements of Article 2 of the EDPL, which deals with the public hearing and steps leading to the adoption of a Determination and Findings to condemn. See § 402(B)(3)(a); Iroquois Gas Corp. v Jurek, 30 AD2d 83 (4th Dept 1968), appeal dismissed 22 NY2d 908 (1968). If condemnor fails to strictly adhere to the publication requirements of Section 202(A) of the EDPL, the instant matter is devoid of jurisdiction. See W.C. Lincoln Corp v Vill. of Monroe, 295 AD2d 440 (2d Dept. 2002); see also Town of Carmel v Blanks, 269 AD2d 455 (2d Dept. 2000); New Life Fellowship, Inc. v City of Cortland, 175 AD2d 343 (2d Dept. 1991). As the New York Appellate Division, Second Department has stated, “[t]he lack of subject matter jurisdiction ‘may be [raised] at any stage of the action, and the court may, ex mero motu, at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action.’” See Matter of Metro Transp. Auth., 32 AD3d 943, 945 (2d Dept. 2006) (quoting Robinson v Oceanic Steam Nav. Co., 112 N.Y. 315, 323 (1889)).
Notice of the public hearing is jurisdictional. The failure to strictly adhere to the publication requirements of Section 202(A) of the EDPL renders a Determination and Findings jurisdictionally defective and a petition must be granted because the publication is a condition precedent to further proceedings by the condemnor. See Green v Oneida-Madison Elec. Coop., 134 AD2d 897(4th Dept. 1987). In New York, literal compliance with publication requirements has always been mandated. See Young v Fowler, 73 Hun 179 (Gen. Term 1893). The fact that a property owner knows of the hearing or even appears and speaks is irrelevant for it is a “public hearing for the public.” If the notice requirements are not literally complied with, the public hearing is invalid.
The second part of Section 207(C)(3) of the EDPL is the failure to comply with the State Environmental Quality Review Act (SEQRA). The leading case in New York dealing with SEQRA is Jackson v New York State Urban Development Corp., 69 NY2d 400 (1986). Judge Kaye, who wrote the decision involving a challenge to the 42nd Street Development project, stated: “The heart of SEQRA is the Environmental Impact Statement (EIS) process…. Under the act, an EIS must be prepared regarding any action that ‘may have a significant effect on the environment.’” Id. at 415. It was held that SEQRA “does not require an agency to impose every conceivable mitigation measure, or any particular one,” but rather, “requires the imposition of mitigation measures only ‘to the maximum extent practicable.’” Id. at 422. Essentially, what was required was to identify those impacts of the proposed development and to take “a hard analytical look at them.” Id. at 426.
The entire holding thus can be summarized, as it was recently by the Appellate Division, Second Department, as the condemnor identifying ‘“the relevant areas of environmental concern,’ [taking] a ‘hard look’ at them, and [making] a ‘reasoned elaboration’ of the basis for its determination.” Gyrodyne Co. of America, Inc. v State Univ. of N.Y. at Stony Brook, 17 AD3d 675, 676 (2d Dept. 2005) (citations omitted).
In my humble opinion, the Fourth Department will be reversed by the Court of Appeals.
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