NFR appeals decision allowing Falls to use eminent domain for Centennial Park project

Rick Pfeiffer -, Niagara Gazette, Niagara Falls, N.Y.
·3 min read

Aug. 11—Niagara Falls Redevelopment (NFR) and an affiliated company, Blue Apple Properties Inc., are asking New York's highest court to weigh-in on the legality of the use of eminent domain to take up to 12 acres of undeveloped land in the city's South End for the city's proposed Centennial Park project.

On Wednesday, attorneys for NFR filed a notice of appeal to the New York Court of Appeals seeking to challenge a ruling from a unanimous four-judge panel of the New York State Supreme Court Appellate Division Fourth Department that found July 28 that Niagara Falls has the right, under eminent domain, to take NFR's land and use it for a public purpose.

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 148 years since the U.S. Supreme Court's decision in Kohl v. United States in 1875.

In its filing seeking a review by the Court of Appeals, NFR claims that the city's eminent domain proceedings directly involve state and federal constitutional issues.

An NFR spokesperson had previously vowed that the company would contest the Fourth Department ruling.

"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 on 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."

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 Mayor Robert 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, 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.'"

"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.

Friday evening, Restaino said the NFR appeal was "expected."