Appeals court approves eminent domain proceedings for NFR land
Rick Pfeiffer -, Niagara Gazette, Niagara Falls, N.Y.
4 min read
Jul. 29—ROCHESTER — A unanimous four-judge panel of the New York State Supreme Court Appellate Division Fourth Department in Rochester has rejected arguments from Niagara Falls Redevelopment and an affiliated company, seeking to block efforts by the city of Niagara Falls to use eminent domain to take up to 12 acres of undeveloped land in the city's South End for the proposed Centennial Park project.
The four-page ruling, handed down mid-afternoon Friday, was hailed by Falls Mayor Robert Restaino.
"To finally get this decision, allows us to move on to the next phase of this project," the mayor said. "I heard the arguments (before the appeals court justices in May) and felt good about it."
A spokesperson for the company vowed to appeal on Friday, suggesting NFR will take the case to New York's highest court, and "perhaps beyond," if necessary.
"It is important to remember that this is only the first round in this dispute," James Haggerty wrote to the Gazette in response to an email message seeking comment of the Appellate Division ruling. "Because both the U.S. and New York State constitutions prohibit the taking of private property absent a legitimate public use, NFR fully intends to appeal the Fourth Department's decision to the New York Court of Appeals, and perhaps beyond."
But in its arguments before the court in May, NFR's attorneys had argued that the use of eminent domain should be blocked because the proposed $150 million park and public events campus would not be "a public benefit or serve a public purpose."
The Appellate Division justices wrote that they rejected that argument because "what qualifies as a public benefit or public use is broadly defined" and because the Centennial Park proposal would develop parkland and other recreational space as well as "revitalizing and redeveloping a longstanding vacant lot, which was a blight on the city."
In its ruling, the court wrote, "We therefore conclude that the city's determination to exercise its eminent domain power 'is rationally related to a conceivable public purpose.'"
"To say that NFR respectfully disagrees with the Fourth Department's determination regarding Mayor Restaino's Centennial Park scheme doesn't begin to tell the story," Haggerty wrote in his email.
The appellate justices also said the court had no jurisdiction to review NFR's claims that the city has "failed to establish how it plans to pay for the project" or has "failed to conduct a market study as required by the city's comprehensive plan."
Restaino said Friday afternoon that he had spoken with state Sen. Tim Kennedy, who represents the Falls, about the decision and had also communicated with staff for state Senate Majority Leader Crystal People-Stokes.
"I wanted to let them know what's happening," Restaino said.
The mayor has suggested that he may seek state support for the Centennial Park project.
Eminent domain refers to the right of "a government or its representative to take private property for public use, as long as the land owner is fairly compensated." Restaino said the process of determining the fair market value of the NFR property is underway.
"We literally are moving to begin our certified appraisal and start the clock ticking on (taking ownership of the land)," the mayor said.
The NFR spokesman said determining what the city will have to pay for its land will be a lengthy process.
"The valuation litigation that comes next will take years and likely cost millions in additional legal fees — and that doesn't include the price of the land itself, which even conservative estimates peg at north of $10 million," Haggerty said.
NFR has previously contested the city's property tax valuation of the proposed Centennial Park acreage, suggesting its value is in a range of $450 to $500 an acre.
Restaino said he isn't sure how the ruling will impact the decision by members of the Falls City Council to hire an outside counsel to "review the eminent domain proceedings" and evaluate a proposed settlement agreement of the proceedings put forth by NFR.
"The court has already handled that, in terms of reviewing the proceedings," the mayor said.
Council Chair David Zajac (R), who spearheaded the hiring of attorney Jeff Palumbo, as an outside counsel for city lawmakers, said he plans to follow-up with the city's other outside counsel on the Centennial Park project, attorney, Dan Spitzer, before deciding what further steps need to be taken.
"I saw the text messages (announcing the court decision)," Zajac said. "I have not had a chance to get any more information or follow up with Mr. Spitzer. Obviously, any court victory for the city, big or small, is a good win."
Zajac also said he anticipates an NFR appeal and that Palumbo may be used to evaluate any other settlement proposals from the land owner.
Council Member Kenny Tompkins (I), who opposed hiring Palumbo, said he feels there's no longer a need for the council attorney.
"Let the process play out," he said. "The court has ruled. Now let the process play out."
