Hudson Valley Hous. Dev. Fund Co. v. Cnty. of Ulster, 528980

• Decision Date: 07 May 2020
• Docket Number: 528980
• Citation: 123 N.Y.S.3d 704,183 A.D.3d 974
• Parties: In the Matter of HUDSON VALLEY HOUSING DEVELOPMENT FUND COMPANY, INC., Petitioner, v. COUNTY OF ULSTER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 974

123 N.Y.S.3d 704

In the Matter of HUDSON VALLEY HOUSING DEVELOPMENT FUND COMPANY, INC., Petitioner,

v.COUNTY OF ULSTER et al., Respondents.

528980

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 25, 2020

Decided and Entered: May 7, 2020

E. Stewart Jones Hacker Murphy LLP, Latham (Brett T. Williams of counsel), for petitioner.

Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Eric M. Kurtz of counsel), for respondents.

Before: Lynch, J.P., Mulvey, Devine, Aarons and Colangelo, JJ.

MEMORANDUM AND JUDGMENT

Mulvey, J.

Proceeding initiated in this Court pursuant to EDPL 207 to review a determination of respondents condemning a portion of petitioner's land as the site for constructing a bicycle and pedestrian path.

Petitioner, a not-for-profit housing development fund company (see Private Housing Finance Law art XI; N–PCL 402 ), owns two parcels of land, a 3.3–acre parcel (hereinafter the subject parcel) and a 19.5–acre parcel (hereinafter the larger parcel), in the City of Kingston, Ulster County. The two parcels are separated by the U & D Railroad, an active railroad owned by respondent County of Ulster. Petitioner intends to build a housing complex on the larger parcel, which is landlocked and would connect to a main road through the subject parcel and an easement that petitioner endeavors to obtain from respondents over the U & D Railroad. The subject parcel includes the bed of the former O & W Railroad, which is now a dirt path. The O & W Railroad path and the U & D Railroad run parallel to each other until they diverge before intersecting with the New York State Thruway.

Respondents seek to acquire an easement over the subject parcel to construct a 1.8–mile paved connector trail along the former O & W railbed to connect the City of Kingston, which is situated to the east of the Thruway, to the O & W Rail Trail, a recreational trail situated to the west of the Thruway (hereinafter the project). Petitioner and its predecessor-in-interest offered to provide the County with an easement over the subject parcel in exchange for an easement in petitioner's favor over the U & D Railroad. However, respondents contend that simply exchanging easements would jeopardize federal and state funding for the project. Accordingly, the County offered petitioner $24,000 for a permanent easement over the subject parcel; petitioner never responded to the offer. In February 2019, respondent Legislature of the County of Ulster adopted a determination and findings related to the project pursuant to EDPL 204 (hereinafter the determination). The determination stated that a State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ) review was completed in March 2016, at which time the County issued a negative declaration, identifying the project as one that will not have any significant adverse effects on the environment. The project was reviewed as an unlisted action. Petitioner commenced this proceeding pursuant to EDPL 207 seeking to challenge the determination.

We confirm. The scope of this Court's review of a condemnor's EDPL 204 determination is limited to "whether (1) the proceeding was constitutionally sound; (2) the condemnor had the requisite authority; (3) its determination complied with SEQRA and EDPL article 2; and (4) the acquisition will serve a public use" ( Matter of City of New York [Grand Lafayette Props. LLC], 6 N.Y.3d 540, 546, 814 N.Y.S.2d 592, 847 N.E.2d 1166 [2006] ; see EDPL 207[C] ; Matter of Uncle Sam Garages, LLC v. Capital Dist. Transp. Auth., 171 A.D.3d 1260, 1260, 97 N.Y.S.3d 776 [2019], lv denied 33 N.Y.3d 912, 2019 WL 4200850 [2019] ). "As the party challenging the condemnation, petitioner bears the burden of showing that the ... determination was without foundation and baseless, or that it was violative of any of the applicable statutory criteria" ( Matter of Uncle Sam Garages, LLC v. Capital Dist. Transp. Auth., 171 A.D.3d at 1260, 97 N.Y.S.3d 776 [internal quotation marks and citations omitted] ). Petitioner does not allege that respondents lack the requisite authority or that the process utilized was constitutionally unsound. Instead, petitioner argues that respondents violated SEQRA by designating the project as an unlisted action rather than a type I action and failed to follow several procedures required for a type I action. Further, petitioner argues that respondents were required to conduct additional environmental review after new information surfaced, and that the new information defeated the project's public purpose.

As relevant here, type I actions, which are presumed to be likely to have a significant impact on the environment, include any action that involves the physical alteration of over 2.5 acres "wholly or partially within an agricultural district" or "wholly or partially within or substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space" ( 6 NYCRR 617.4 [b][6][i]; [8], [10]; see Matter of Gabrielli v. Town of New Paltz, 116 A.D.3d 1315, 1316, 984 N.Y.S.2d 468 [2014], lv denied 24 N.Y.3d 901, 2014 WL 4356550 [2014] ). A map in an appendix to the project's final design report shows a small portion of a specified agricultural district within a rectangle labeled "Project Location." However, the report itself states that the project is not located within an agricultural district. No explanation is provided for the discrepancy. It is possible that the portion of the map labeled "Project Location" depicts an alternate location that respondents considered for the project, which is just north of the chosen location and referred to as the U & D Corridor; the report indicates that "land on the northern side of [the U & D Corridor] is located within" the specified agricultural district. Regardless, because the submitted materials provide only contradictory evidence regarding the location of the project relative to the agricultural district, petitioner has not...