New York's high court rejects NFR's eminent domain appeal

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

Dec. 16—ALBANY — New York state's highest court has declined to hear an appeal from Niagara Falls Redevelopment (NFR) and an affiliated company, Blue Apple Properties Inc., asking the court to weigh in on the legality of the use of eminent domain to take up to 12 acres of undeveloped land in the Falls' South End for the city's proposed Centennial Park project.

In an unsigned opinion, issued Friday morning, the New York State Court of Appeals, acting without a request from the city, said that NFR's appeal was "dismissed without costs (to the city) by the Court, upon the ground that no substantial constitutional question is directly involved."

The ruling appears to exhaust NFR's potential legal challenges to the city's eminent domain proceedings in the state courts, but a spokesman for the South End landowner said they may not be done with their legal maneuvering.

"There are considerable federal constitutional questions presented in this case, and we will carefully consider our legal options and next steps," NFR spokesman James Haggerty wrote in an email reacting to the Court of Appeals ruling. "We respect the decision of the New York State Court of Appeals, but regret that the citizens of Niagara Falls are the ones harmed by this decision and the continuation of the eminent domain process — since jobs, technology, taxes, revenues and economic opportunity are really what's at stake.

"More importantly, we remain concerned that the City of Niagara Falls is missing a rare opportunity to participate in the technological revolution in data storage and management taking place all around us. NFR and Urbacon are ready, willing and able to make the Niagara Digital Campus a reality. All we need is for the city to work with us on the two-project solution that will bring high-tech jobs, economic opportunity and an event center to area residents."

Haggerty also continued to criticize the proposed Centennial Park project.

"The City of Niagara Falls made the decision to try to take NFR's private property for an event center before even issuing an RFP for a study to determine the most appropriate location for such a facility," he wrote in his email to the Gazette.

In August, attorneys for NFR filed a notice to the 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 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 claimed that the city's eminent domain proceedings directly involve state and federal constitutional issues. The Court of Appeals disagreed.

"Today the Court of Appeals issued a determination, on its own, that the incredible claim that somehow about 200 years of case law should be overthrown on some preposterous constitutional claim that is nothing more than a continuation of the Milstein group's over a quarter century in Niagara Falls refusing to engage in development and blocking development at every turn," Mayor Robert Restaino said.

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 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."