Appellate court justices reject NFR appeal on use of eminent domain for Centennial Park project

Nov. 19—ROCHESTER — A four-judge panel of the New York State Supreme Court Appellate Division Fourth Department in Rochester has dismissed a motion from Niagara Falls Redevelopment (NFR) and an affiliated company seeking to overturn a ruling by the same four judges that found the city of Niagara Falls has the right, under eminent domain, to take 10- to 12-acres of South End land from NFR to use for the proposed Centennial Park project.

In a one-sentence unsigned decision, the justices wrote, "(NFR) having moved for leave to renew their petition, and for other relief, now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, it is hereby ordered that the motion is denied."

The ruling doesn't end NFR's appeals on eminent domain. They have a pending request to have the appellate division ruling reviewed by the state's highest court, the Court of Appeals.

"This was not a ruling on NFR's appeal, which is still pending before New York's highest court," NFR spokesperson James Haggerty said in reaction to the ruling. "Nothing has changed. But regardless of what any court decides about eminent domain, we believe there are serious constitutional questions at stake under both the New York and United States Constitutions. More importantly, we believe the future viability of Niagara Falls is at stake."

Falls Mayor Robert Restaino said the appellate division ruling was "certainly expected."

"This is a group (NFR) that continues to do nothing more than delay the inevitable," the mayor said. "They just want to torture the city as long as they can."

In their filing with the appellate division court, lawyers for NFR asked to re-argue their original challenge to the city's eminent domain proceedings. The NFR lawyers claimed that they had a "recent discovery of new evidence" that should lead the appellate court to reverse its ruling in favor of the city.

In an affidavit filed with the court, an NFR attorney claimed that after the appellate division's ruling, upholding the city's eminent domain proceedings, the city issued a request for proposals (RFP) seeking a consultant to review the proposed Centennial Park project and that the consultant is being asked to "figure out if (the city) should move forward (with Centennial Park)" and "if so, where it should place its purported project."

The NFR attorney also claimed that the RFP directs the consultant to review property locations other than the 10 to 12 acres of land, described as 907 Falls St. and an adjacent portion of property along John Daly Memorial Parkway, that the city has said is their preferred location for Centennial Park.

Attorney Ryan C. Altieri argued that the inclusion of other potential sites for the $150 million park and events center made the city's eminent domain Determinations and Findings "procedurally and substantively defective."

In an email at the time the appeal was filed, Haggerty admitted the legal maneuver was a long shot.

"The granting of NFR's request request would be unusual," Haggerty wrote at that time.

In its request to have the Court of Appeals review the appellate division's ruling upholding the city's eminent domain proceedings, the South End land owner argues that the proceedings directly involve state and federal constitutional issues.

"NFR will defend its private property rights vigorously at both the state and federal levels. And we won't give up our dream of a more prosperous Niagara Falls," Haggerty said. "NFR's land is under attack today, but it could be your land tomorrow."

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." The use of eminent domain has been enshrined in American law for more than 148 years since the U.S. Supreme Court's decision in Kohl v. United States in 1875.

Requests for hearings before the Court of Appeals, much like similar requests to the U.S. Supreme Court, are not automatically granted. Historically, the New York Court of Appeals accepts less than 2% of the cases filed with it.

Outside counsel for the city, working on the Centennial Park project, in a memo to Restaino and members of the City Council, obtained by the Gazette, said the Court of Appeals last heard a case under New York's Eminent Domain Procedure Law (EDPL) 13 years ago. They also wrote that the court's last decision involving taking private land for a public use was in 1986.

In that decision, the Court of Appeals approved the use of eminent domain.

During arguments before the Fourth Department justices, in May, NFR's attorneys 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."

The justices wrote, "We therefore conclude that the city's determination to exercise its eminent domain power 'is rationally related to a conceivable public purpose.' "