Mobil Oil Corp. v. City of Syracuse Indus. Development Agency

• Decision Date: 12 July 1996
• Docket Number: No. 1,1
• Citation: 646 N.Y.S.2d 741,224 A.D.2d 15
• Parties: MOBIL OIL CORPORATION, Petitioner, v. CITY OF SYRACUSE INDUSTRIAL DEVELOPMENT AGENCY, Respondent. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 741

646 N.Y.S.2d 741

224 A.D.2d 15

MOBIL OIL CORPORATION, Petitioner, v. CITY OF SYRACUSE INDUSTRIAL DEVELOPMENT AGENCY, Respondent (Proceeding No. 1.)

Supreme Court, Appellate Division Fourth Department.

July 12, 1996.

Nixon, Hargrave, Devans & Doyle, L.L.P., Rochester (Kevin Reccnia, of counsel), for petitioner.

Hiscock & Barclay, L.L.P., Buffalo (Mark McNamara, of counsel), for respondent.

Before PINE, J.P., and FALLON, WESLEY, BALIO and BOEHM, JJ.

BOEHM, Justice:

In these original proceedings brought pursuant to EDPL 207 by petitioners Sun Company, Inc. (R & M) (Sun), Atlantic Refining and Marketing Co., Inc. (Atlantic), Citgo Petroleum Corporation (Citgo) and Mobil Oil Corporation (Mobil) (collectively, petitioners), we are again called upon to review the challenges brought by petitioners against the proposed condemnation by respondent, City of Syracuse Industrial Development Agency (SIDA), of parcels of real property owned by petitioners near the south shore of Onondaga Lake in the City of Syracuse, the so-called "Oil City" area. Petitioners' properties contain bulk petroleum storage and terminal facilities. The proposed taking is for the purpose of developing a retail shopping plaza to be known as Carousel Landing (the project) by the Pyramid Companies (Pyramid), a general partnership. It is unnecessary to detail the facts as this proceeding and a related matter have been before the Court on three previous occasions (see, Sun Co. v. City of Syracuse Indus. Dev. Agency, 209 A.D.2d 34, 625 N.Y.S.2d 371, appeal dismissed 86 N.Y.2d 776, 631 N.Y.S.2d 603, 655 N.E.2d 700 [Sun II ]; Sun Co. v. City of Syracuse Indus. Dev. Agency, 197 A.D.2d 912, 602 N.Y.S.2d 456; Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 152 A.D.2d 988, 544 N.Y.S.2d 767, affd 76 N.Y.2d 428, 559 N.Y.S.2d 947, 559 N.E.2d 641).

In Sun II, we upheld as constitutional, both facially and as applied, the statutory condemnation scheme authorizing SIDA to condemn property, and we determined that the proposed condemnation does not violate General Municipal Law § 862, which prohibits Industrial Development Agencies from funding certain projects. We found fault, however, with certain aspects of the environmental review of the project undertaken by SIDA pursuant to article 8 of the Environmental Conservation Law (the State Environmental Quality Review Act [SEQRA], and we annulled its SEQRA determination and findings.

Thereafter, SIDA, continuing as lead agency, in an effort to remedy the SEQRA deficiencies found in Sun II, conducted a supplemental environmental review. It circulated a Supplemental Draft Environmental Impact Statement (SDEIS), held a public hearing on July 20, 1995, scheduled public comment through July 31, 1995, and prepared a Supplemental Final Environmental Impact Statement (SFEIS). On October 12, 1995, SIDA made findings and determined, pursuant to EDPL 204, to condemn petitioners' properties of approximately 55.7 acres for the development of the project.

In the present proceeding, petitioners renew their earlier attacks against the EDPL condemnation process and the General Municipal Law provisions authorizing condemnation by an Industrial Development Agency. Additionally, petitioners now contend that the Preferred Developer Agreement between SIDA and Pyramid improperly restricts SIDA to a course of action favorable to Pyramid; SIDA's SEQRA review of the project is tainted; SIDA impermissibly curtailed the SEQRA process by preparing a supplemental, rather than a new, SEQRA review; SIDA improperly designated itself as lead agency; SIDA improperly introduced substantial new information in its SFEIS; SIDA acted arbitrarily and capriciously in making its findings in its supplemental SEQRA review by failing to consider specific measures necessary to mitigate traffic impacts, by relying upon undefined future mitigation measures, and, generally, by failing to take the requisite "hard look" at the environmental impacts of the project; and members of the SIDA board repeatedly violated the Open Meetings Law (Public Officers Law §§ 100-111) by meeting privately regarding the project.

I

Reconsideration of the eminent domain issues, which are again being advanced by petitioners, issues that were raised and decided in Sun II, and in which reargument was denied, is foreclosed by the doctrines of res judicata, collateral estoppel and law of the case. Once a determination has been made on the merits in a case involving the same parties, that should put an end to the matter (see, Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 152, 531 N.Y.S.2d 876, 527 N.E.2d 754; Matter of Hodes v. Axelrod, 70 N.Y.2d 364, 372-373, 520 N.Y.S.2d 933, 515 N.E.2d 612; Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867, rearg. denied 37 N.Y.2d 817, 375 N.Y.S.2d 1029, 338 N.E.2d 332). Further, "[q]uestions of law that have been resolved by an appellate court on a prior appeal will not be reviewed upon a further appeal to that court" (Matter of Local 345 of Retail Store Empls. Union [Heinrich Motors], 96 A.D.2d 182, 186, 468 N.Y.S.2d 240, revd on other grounds 63 N.Y.2d 985, 483 N.Y.S.2d 997, 473 N.E.2d 247; see, Matter of Hubbard v. Town of Sand Lake, 223 A.D.2d 794, 635 N.Y.S.2d 360; Matter of Village of Johnson City v. Bolas, 157 A.D.2d 1009, 1010, 550 N.Y.S.2d 494; Matter of Acres Storage Co. v. Chu, 144 A.D.2d 758, 759, 535 N.Y.S.2d 165, appeal dismissed 73 N.Y.2d 914, 539 N.Y.S.2d 294, 536 N.E.2d 623).

We find no basis for the attempts by petitioners to avoid the bar of our prior adjudication by raising distinctions between the earlier 1993 proceeding and the present one. The project is the same as that considered by SIDA in 1993. The SEQRA review at that time similarly considered the extent and purpose of the project, which is now, as it was then, still located in a "highly distressed area", as that term is applied in General Municipal Law § 862(2)(b)(iii). SIDA's financial condition remains substantially unchanged, and the involvement of the City of Syracuse in the project appears to be the same as it was in 1993. The same Preferred Developer Agreement, even as subsequently amended, violated neither the EDPL nor the General Municipal Law. The amendments to the Agreement did no more than address the concerns expressed in Sun II.

We do not share the apprehension expressed again by petitioners that the bond required to be furnished by Pyramid will not provide a certain and adequate source and manner of payment. In determining the amount of that bond, Supreme Court will take into consideration the appraisals submitted by all of the parties, including those of petitioners, which no doubt will also be prepared. If SIDA does not accept the amount fixed by the court after reviewing all of the appraisals, then, of course, the condemnation will not go forward and petitioners' properties will not be affected. Whether to have a hearing preliminary to determining the amount of the bond is a matter to be decided by the court (see, Matter of New York State Urban Dev. Corp. [TOH Realty Corp.], 165 A.D.2d 733, 563 N.Y.S.2d 788, appeal dismissed 76 N.Y.2d 982, 563 N.Y.S.2d 769, 565 N.E.2d 518, lv denied 77 N.Y.2d 810, 571 N.Y.S.2d 913, 575 N.E.2d 399). Nor do we share the concern expressed by petitioners that a bonding company does not provide the same assurance of payment as a municipality. Although, as petitioners argue and illustrate by newspaper articles in exhibits to their briefs, insurance companies have gone bankrupt, we may take judicial notice of the fact that they have historically and satisfactorily met their burden of making good their liabilities as sureties in a multitude of commercial transactions, including construction contracts involving huge potential financial obligations. We would also take judicial notice of the fact that there are also municipalities that for one reason or another became unable to meet their financial obligations.

II

In Sun II we referred to a letter from the Director of the Office of Lakefront Development stating that SIDA was unable to consider other alternatives because it was bound by the Preferred Developer Agreement (PDA). That restriction necessarily precluded meaningful consideration of other alternatives to the proposed project and we held that that represented a failure to comply with SEQRA. That restriction now has been removed. At the May 25, 1995 meeting of the SIDA Board, a resolution was adopted that SIDA was to proceed with its role as lead agency and that compliance by the agency with the terms of the PDA "is subject to the Agency's obligations to comply with statutory requirements, including but not limited to, those imposed by SEQRA and the EDPL." It was also resolved that "[a]ny inconsistent or contradictory statements made in the past, if any, by or on behalf of the Agency are hereby expressly withdrawn and repealed."

In a July 21, 1995 letter to the Pyramid representative in charge of the project, SIDA spelled out the intent of the resolution in considerable detail and disavowed the opinion of the former Director of the City Office of Lakefront Development that no alternatives to the project could be considered. The letter emphasized that SIDA is not obligated to reach any particular result "on these or any other matters in considering the Project" and that if SIDA "determines to proceed with acquisition of some or all of the properties in the Redevelopment Area and to provide financial assistance to the project it will do so in accordance with the PDA and other Applicable Requirements." The letter also pointed out that SIDA had no obligation to acquire title to the properties or to provide financial assistance to the project. Pyramid's representative countersigned a copy of the letter to signify Pyramid's concurrence "that SIDA must make an independent decision in conformance with applicable law regarding the Project and is not restrained by the...