City of Buffalo Urban Renewal Agency v. Moreton

• Decision Date: 06 March 1984
• Citation: 100 A.D.2d 20,473 N.Y.S.2d 278
• Parties: CITY OF BUFFALO URBAN RENEWAL AGENCY, Appellant, v. Albert E. MORETON, Respondent, 595 Main Street Corp., et al., Condemnees.
• Court: New York Supreme Court — Appellate Division

Page 278

473 N.Y.S.2d 278

100 A.D.2d 20

CITY OF BUFFALO URBAN RENEWAL AGENCY, Appellant, v. Albert E. MORETON, Respondent 595 Main Street Corp., et al., Condemnees.

Supreme Court, Appellate Division Fourth Department.

March 6, 1984.

John J. Naples, Corp. Counsel, Buffalo (Gregory J. Dudek, Buffalo, of counsel), for appellant.

Stanley J. Collesano, Buffalo, for respondent.

Before DILLON, P.J., and HANCOCK, DENMAN and MOULE, JJ.

HANCOCK, Judge:

On May 1, 1979, pursuant to articles 15 and 15A of the General Municipal Law, the Common Council of the City of Buffalo unanimously approved Entertainment District Urban Renewal Plan Phase I covering four city blocks in downtown Buffalo. Thereafter the plan was duly approved by the Mayor. In this proceeding, brought by petition verified June 6, 1983 pursuant to article 4 of the Eminent Domain Procedure Law, condemnor, Buffalo Urban Renewal Agency (hereinafter the "agency"), seeks to acquire a rectangular parcel covering approximately 2,557 square feet owned by the condemnee Moreton and located within Phase I at the corner of Main and Chippewa Streets. In his verified answer to the agency's application for an order authorizing the filing of the acquisition map and directing immediate vesting of title pursuant to EDPL 402, the condemnee specifically denies that the acquisition of the premises is for a public purpose and alleges that the sole purpose of the condemnation is to benefit private owners of adjoining property. On the return date of the motion Special Term, at the request of the condemnee, ordered that a hearing be conducted before it to determine whether the taking serves a public purpose. By permission of our court, the agency appeals from the order directing the hearing and requests that that order be annulled and that the order authorizing filing of the acquisition map and directing immediate vesting be granted or, in the alternative, that the hearing be limited to whether the procedural requirements of article 4 of the Eminent Domain Procedure Law have been met (EDPL 402, subd. B, par. 5). Several questions are presented pertaining to proceedings to acquire property under the Eminent Domain Procedure Law (L.1977, ch. 839, § 1).

The agency contends first that under article 2 of the Eminent Domain Procedure Law, Special Term is precluded from holding a hearing with respect to whether the public use will be served by the proposed project. This point requires no discussion since, by the express mandate of EDPL 207 (subd. B) and 208, except for the Appellate Division and the Court of Appeals "no court of this state shall have jurisdiction to hear and determine any matter, case or controversy concerning any matter which was or could have been determined in a proceeding under this article" (EDPL 208). Since the question of the public use, benefit or purpose to be served by the project is one of the matters that could have been determined in a proceeding under article 2 (see EDPL 201; 204, subd. B, par. 1; 207, subd. C, par. 4), Special Term was without jurisdiction and its order directing a hearing must be reversed (see County of Monroe v. Morgan, 83 A.D.2d 777, 443 N.Y.S.2d 467).

The agency, however, asks that we modify the order by granting the relief it says Special Term improperly withheld under EDPL 402 (subd. B, par. 5), i.e., the requested order authorizing filing of the acquisition map and directing immediate vesting. There is no question that we have the power as an appellate court to grant such relief if we find Special Term was in error (see CPLR 5522; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5522:1, C5522:2, pp. 222, 223; Saxton v. Carey, 61 A.D.2d 645, 403 N.Y.S.2d 779, affd. 44 N.Y.2d 545, 406 N.Y.S.2d 732, 378 N.E.2d 95). Whether Special Term should have granted the application requires discussion.

On the return of an application for permission to file an acquisition map and for an order to acquire the property (EDPL 402, subd. B), the court must grant the petition if it finds that all of the procedural requirements of the statute have been met (EDPL 402, subd. B, par. 5; 17 Carmody-Wait 2d, NY Prac, pp 584-585). From the record there appears to be no question concerning the agency's due compliance with any procedural requirement for acquisition except one: the agency conducted no pre-acquisition hearing as mandated by EDPL 201 ¹ (see EDPL 402, subd. B, par. 3, cl. a). The agency claims that because of the public hearings conducted in 1979 prior to the approval of the urban renewal plan, it is exempt from article 2 compliance under EDPL 206 (subd. C) and, in its petition, in lieu of a statement of compliance it has, as permitted by EDPL 402 (subd. B, par. 3, cl. a), set forth the basis for the claimed exemption. Special Term made no specific determination on the question, but since it ordered a hearing on the public purpose issue and declined to grant the petition, it may be presumed that it found that the proposed acquisition was not exempt from article 2 compliance. Our analysis leads to the opposite conclusion.

Prior to acquiring land, a condemnor generally must comply with the hearing requirements of article 2 of the Eminent Domain Procedure Law, which prescribes rules for the location of the hearing (EDPL 201), the content of the hearing notice and its publication (EDPL 202), the conduct of the hearing (EDPL 203) and the specific determinations and findings the condemnor must make following the hearing (EDPL 204). One of the purposes of an article 2 hearing is to inform the public of "the public use to be served by [the] proposed project" (EDPL 201), and one of the specified determinations and findings that the condemnor must make following the hearings concerns "the public use, benefit or purpose to be served by the proposed public project" (EDPL 204, subd. B) (see 17 Carmody-Wait 2d, NY Prac, pp 560, 561, 562).

Exemptions from the article 2 hearing requirements are permitted under specific circumstances: e.g., when the condemnor has, prior to the acquisition, considered and submitted factors similar to those required to be found following an article 2 public hearing (see EDPL 204, subd. B) to a governmental agency and has obtained a license, permit or similar approval from such agency (EDPL 206, subd. A; see County of Monroe v. Morgan, 83 A.D.2d 777, 443 N.Y.S.2d 467, supra); when it has obtained a certificate of environmental compatibility and public need pursuant to article 7 or article 8 of the Public Service Law (EDPL 206, subd. B; see New York State Elec. & Gas Corp. v. Karas, 85 A.D.2d 758, 445 N.Y.S.2d 279); when the proposed acquisition is de minimis or when due to a public emergency the public interest will be endangered by any delay caused by the hearing (EDPL 206, subd. D; see Matter of City of Yonkers v. Hvizd, 93 A.D.2d 887, 461 N.Y.S.2d 408; Matter of American Tel. & Tel. Co. v. Salesian Soc., 77 A.D.2d 706, 430 N.Y.S.2d 408; Matter of Inc. Vil. of Malverne, 70 A.D.2d 920, 418 N.Y.S.2d 93); or when it has complied with Mental Hygiene Law ( § 41.34) (EDPL 206, subd. E). The agency, citing the 1979 urban renewal hearings, claims to be exempt under EDPL 206 (subd. C) which provides for exemption when the condemnor has, prior to acquisition, conducted "one or more public hearings upon notice to the public and owners of property to be acquired" provided "that factors similar to those enumerated in subdivision (B) of section two hundred four herein [were] considered at such public hearings" (EDPL 206, subd. C). Its allegations that in obtaining approval of "Entertainment District Urban Renewal Plan, Phase I" in 1979 it conformed to the requirements of article 15 of the General Municipal Law are not refuted. The question is whether the factors considered at the public hearings prior to approval of the plan are sufficiently similar to those enumerated in EDPL 204 (subd. B) to warrant an exemption from conducting new hearings under article 2. The three factors specified in subdivision B of EDPL 204 are: the public use, benefit or purpose to be served by the project; the approximate location for the project and the reasons for its selection; and the general effect of the project on the environment and residents of the locality. No question is raised concerning the location of the project or its effect on the environment or residents; thus, the only question is whether the proceedings held pursuant to article 15 of the General Municipal Law addressed the factor of the public use, benefit or purpose to be served. The answer requires an analysis of those proceedings.

After an area has been designated for urban renewal (General Municipal Law, § 504) and a plan has been prepared (General Municipal Law, § 505, subd. 1), and prior to its ultimate approval by the municipality, two public hearings held on due notice are mandated: the first before the commission ² (General Municipal Law, § 505, subd. 2) and the second before the governing body ³ (see General Municipal Law, § 505, subd. 3). Following the hearing required by General Municipal Law ( § 505, subd. 2), the commission must certify whether the plan conforms to the finding made at the time of site designation that the proposed area "is appropriate for urban renewal" (General Municipal Law, § 504) as defined in General Municipal Law ( § 502, subd. 3) which reads, in part, as follows:

3. "Urban renewal." A program established, conducted and planned by a municipality for the redevelopment, through clearance, replanning, reconstruction, rehabilitation, and concentrated code enforcement, or a combination of these and other methods, of substandard and insanitary areas of such municipalities, and for recreational and other facilities incidental or appurtenant thereto, pursuant to and in accordance with article eighteen of the constitution and this article * * *.

The governing body, upon its approval after conducting its public hearing,...