Opinion
2008/7143.
Decided July 30, 2008.
DARRYL J. COLOSI, ESQ., for Petitioner.
PAUL J. GOLDMAN, ESQ., for Respondents.
Petitioner Niagara Mohawk is an electricity producer that is exploring the possibility of constructing a new 115 kV electric switchyard in the Town of Tonawanda, Erie County. If the project proceeds according to petitioner's current concept, the new switchyard would be constructed in part on lands now owned by petitioner — an electricity transmission corridor currently improved with high tension poles and wires — and in part on adjoining lands currently owned in fee by respondents Raintree Land LLC and MM Family Partnership IV, L.P. As part of its proposal to construct the switchyard, petitioner contemplates the acquisition by eminent domain of a 6.4-acre parcel belonging to respondents. Although respondents' approximately 52-acre property is generally improved with 504 apartment units, the subject 6.4-acre parcel is currently unimproved with any structures and is wooded. As a preliminary step in its acquisition and construction proposal, petitioner seeks to enter the 6.4-acre parcel in order to survey the site, take test borings of the soil, and perform other investigations necessary to ascertain whether the site is an appropriate location for the construction of the new switchyard station and associated high tension towers. Pursuant to Eminent Domain Procedure Law § 404, which grants a proposed condemnor and its agents and contractors the right to "enter upon any real property for the purpose of making surveys, test pits and borings, or other investigations," petitioner mailed to respondents a series of notices of its intent to enter the 6.4-acre parcel in order to obtain the necessary survey and engineering data. Pursuant to its first two such notices, dated July 24 and September 27, 2007, respectively, petitioner's agents made entries onto the parcel in question, apparently with the consent or at least the acquiescence of respondents and without any interference by them. However, following service of its most recent statutory notice dated April 18, 2008, petitioner and its agents were denied entry by respondents, or at least denied permission to complete their investigative work.
As a consequence, petitioner brought this proceeding, by which it seeks an order upholding petitioner's right of entry under EDPL 404 for the purpose of conducting pre-acquisition surveys, tests, and investigations, and enjoining respondents from interfering with such right of petitioner. In answer to the petition, respondents raise affirmative defenses alleging petitioner's failure to: 1) state a cause of action; 2) name necessary and indispensable parties to this proceeding, i.e., the tenants under a recorded long-term ground lease of the property owned in fee by respondents; 3) serve the EDPL 404 notices upon each party entitled thereto, i.e., those same long-term tenants under the ground lease; 4) adequately describe the extent of the tree-clearing activity and the resultant property damage in petitioner's April 18, 2008 notice; 5) pursue the least intrusive means of carrying out the soil test borings; 6) post a bond pursuant to CPLR article 63; and 7) file the stormwater pollution prevention plan assertedly required by New York State Department of Environmental Conservation (DEC) State Pollutant Discharge Elimination System (SPDES) General Permit for Construction Activities, Permit No. GP-02-01 (now GP 0-008-01) (hereinafter, the DEC General Permit), and by Town of Tonawanda Code (hereinafter Town Code) Chapter 73.
On the basis of the parties' submissions and oral argument, this Court renders the following determinations with regard to the merits of the petition and respondents' affirmative defenses:
FAILURE TO STATE A CAUSE OF ACTION:
By their first affirmative defense, respondents allege that the petition fails to state a legally cognizable cause of action. There can be no doubt, however, that EDPL 404 grants petitioner the right of entry it seeks to exercise in this case, in order to investigate the situation on respondents' 6.4-acre parcel and thereby ascertain whether such lands are suitable for petitioner's acquisition and proposed development for a public use, benefit, or purpose ( see Sun Co. Inc. [R M] v City of Syracuse Indus. Dev. Agency, 197 AD2d 912 [4th Dept 1993]; cf. King v Power Auth. Of State of NY, 44 AD2d 74, 76 [3d Dept 1974], affd 38 NY2d 756 [addressing analogous provisions of Public Authorities Law § 1007 (8)]). It is further clear that petitioner is entitled to an injunction against respondents' denial of or interference with that statutory right ( see Sun Co. Inc. [R M], 197 AD2d at 912) absent some procedural defect in petitioner's statutory notices or in this proceeding itself or petitioner's failure to comply with some permit or approval condition of petitioner's statutory right of entry. Therefore, it remains for the Court to consider only the validity of respondents' affirmative defenses or other objections to petitioner's right of entry.
FAILURE TO NAME NECESSARY PARTIES
As indicated supra, respondents are the current owners in fee of the apartment complex and its grounds, including the subject 6.4-acre parcel. Respondents' predecessors-in-interest previously had entered into a ground lease of the entire property for an initial 49-year term (with the possibility of two 25-year extensions) with The Mader Corporation, the original ground lease tenant and developer. Subsequently, the rights of tenant under that ground lease were assigned to the current ground lease tenants, Raintree LLC, MM Family Raintree, LLC, and MM Raintree, LLC, and NM Raintree, LLC (collectively, the ground lease tenants). At oral argument of this proceeding, counsel for respondents confirmed that, as suggested by their names, the ground lease tenants are entities closely related to respondents.
By their second affirmative defense, respondents allege that, in not suing the ground lease tenants in addition to the fee owners of the 6.4-acre parcel, petitioner has failed to name necessary and indispensable parties to this proceeding, a failure that respondents suggest should result in the dismissal of this proceeding. However, from the language and structure of EDPL 404, which speaks explicitly of the respective rights and obligations of the proposed condemnor and the "property owner" or "owner," this Court determines that the proceeding appropriately lies against the owners in fee — i.e., respondents only — and not the ground lease tenants. Although there is a sense in which the holder of a long-term lease may be regarded as an owner of property, this Court sees no indication in section 404, nor in the EDPL as a whole, that tenants are encompassed by the statutory phrase "property owner." Because the ground lease tenants are not appropriate respondents here, it follows that they are not necessary or indispensable parties within the meaning of CPLR 1001, 1003, and 3211 (a) (10). More fundamentally, the Court of Appeals has held that merely deeming a non-joined entity to be a necessary party under CPLR 1001 (a) does not mandate dismissal of the action pursuant to CPLR 1001 (b), 1003, and 3211 (a) (10). To the contrary, dismissal should eventuate only where jurisdiction cannot be obtained over the non-joined party (and where the non-joined party will not voluntarily appear in the action) and further only where the court, in consideration of the factors outlined in CPLR 1001 (b), decides in its discretion not to allow the action to proceed in the absence of such party ( see Matter of Redhook/Gowanus Chamber of Commerce v New York City Bd. of Stds. Appeals , 5 NY3d 452, 457-459). The Court of Appeals has further held that dismissal of an action under such circumstances should occur only as a "last resort" ( Saratoga Chamber of Commerce v Pataki, 100 NY2d 801, 821, cert denied 540 US 1017).
Here, it does not appear that the ground lease tenants are outside the in personam jurisdiction of this Court. Moreover, counsel for respondents candidly conceded at oral argument that, if joined, the ground lease tenants would be represented in this matter by counsel for respondents. Because it is that same counsel who has raised the specter of joinder of the ground lease tenants, it surely cannot be the case that the ground lease tenants will not consent to be joined. Indeed, the Court is left to wonder why, if the ground lease tenants truly desire to participate in this action, counsel has not simply moved on their behalf to intervene in this proceeding as respondents. Because the clear purpose of the "indispensable party" rules is to facilitate the equitable resolution of a matter and not to impede it from moving forward, this Court will neither grant respondents' request for dismissal of the petition nor order the ground lease tenants joined to the proceeding as respondents. Given the prospective representation of the ground lease tenants (in the event of their intervention or compulsory joinder in this matter) by counsel for respondents, and further given that the ground lease tenants completely derive their rights in the property from the fee owners, this Court discerns that there are no additional legal interests that require the Court's solicitude or protection in this matter nor additional legal positions or contentions that the Court needs to hear and consider before resolving this matter.
FAILURE TO ADDRESS THE STATUTORY NOTICES TO THE GROUND LEASE TENANTS
By their third affirmative defense, respondents complain that the series of notices served upon respondents pursuant to EDPL 404 were not additionally addressed to the ground lease tenants. Although respondents cite that omission with regard to all three statutory notices served by petitioner, this Court notes that the objectives of the earlier notices were fully accomplished when petitioner or its agents made entry upon the property for the investigative purposes outlined in such notices. Given that respondents have only recently interfered with petitioner's statutory right of entry, the Court determines that this petition concerns only the sufficiency of the most recent notice of April 18, 2008.
First, as indicated supra, the proceeding appropriately lies against only respondents as fee owners of the property, and respondents lack standing to assert claims of lack of notice to the ground lease tenants. Moreover, this Court notes respondents' counsel's concession at oral argument that, given the overlapping memberships of the closely related entities in question, whatever notice was formally given by petitioner to the fee owners was tantamount to informal notice to the ground lease tenants. Most fundamentally, and for the reasons stated supra, this Court determines that there is no requirement under the statute that the notices have been addressed to the ground lease tenants as well as respondents as the owners in fee. As specified by the statute, "the condemnor shall deliver notice . . . to the property owner" (EDPL 404). Again, the Legislature's use of the terms "property owner" or "owner" of record contrasts with its use of the term "condemnee" elsewhere in the EDPL ( compare EDPL 404 [requiring notice of entry to the "property owner"] and EDPL 202 [C] [1] [requiring certain notice to the "assessment record billing owner"] and EDPL 402 [B [2] [requiring certain notice to the "owner of record of the property"] with EDPL 402 [A] [2] [requiring certain notification of "condemnees"] and EDPL 402 [B] [3] [b] [requiring listing of names and addresses of "condemnees"] and EDPL 403 [requiring identification of all reputed "condemnees"] and EDPL 503 [A], [B] [requiring certain actions by each "condemnee"]). The fact that a "condemnee" is defined as "the holder of any right, title, interest, lien, charge or incumbrance in real property subject to an acquisition or proposed acquisition" (EDPL 103 [C]), a class that clearly would encompass a tenant, suggests strongly that the EDPL's various references to the "owner" of the property do not similarly encompass such a tenant.
FAILURE TO DESCRIBE THE INVESTIGATIVE ACTIVITY
By their fourth affirmative defense, respondents assert that the April 18, 2008 notice is defective for its failure to indicate that petitioner or its agents would be engaging in any tree cutting in furtherance of its soil test borings and other investigation of the property. There is no merit to that defense, as the addendum to the notice specifies, as the "Intended Scope of [the] Work," that there would be "selective clearing of trees to allow drill rig access to the soil boring sites." Respondents further assert in their fourth affirmative defense that such notification understates the extent of the tree removal, which respondents describe as "clear cutting" of the trees and removal of all other vegetation on the parcel. This Court sees nothing in the parties' submissions, including the photographs submitted by respondents, tending to show that petitioner has already engaged or intends to engage in such "clear cutting" of trees and stripping of ground cover in order to carry out its investigations on the 6.4-acre parcel. To the contrary, petitioner iterates in its papers that the cutting activity will be restricted to the removal of the smallest number of saplings and small trees necessary to permit access by a mobile, self-propelled drill rig to a rather limited number (seven) of soil test-boring sites.
FAILURE TO EMPLOY THE LEAST INTRUSIVE MEANS OF INVESTIGATION
By their fifth affirmative defense, respondents allege that petitioner has failed to state that less intrusive means cannot be used to complete the soil testing. First, nothing in the statute relegates petitioner, as proposed condemnor, to employing the least intrusive investigative means or otherwise self-limiting its investigative techniques; rather, the Legislature has anticipated and dealt with the prospect of intrusive investigation by specifying that "any damages caused thereby [a]re compensable under EDPL 404" ( Sun Co. Inc. [R M], 197 AD2d at 912-913; see Power Auth. of State of NY v Potocnik, 124 AD2d 914, 914-915 [3d Dept 1986]; Power Auth. of State of NY v Bowen, 121 AD2d 840, 840-841 [3d Dept 1986]; see also Power Auth. of State of NY v Caputo, 129 AD2d 878 [3d Dept 1987]; Power Auth. of State of NY v Caputo, 125 AD2d 788, 788-789 [3d Dept 1986]). In any event, this Court disagrees with respondents' characterization of petitioner's allegations. Both in its April 18, 2008 notice and in its petition, petitioner sufficiently outlines the necessity of the investigative activities to be undertaken on the site. As specifically alleged,
"Petitioner seeks to perform soil boring testing at the Site to determine whether the soil is capable of supporting the intended improvements, which include but are not limited to, electric transmission towers. Petitioner also seeks to enter the Site to locate all existing underground facilities. Petitioner intends to clear trees at the Site, as necessary to allow a drill rig and other required equipment, if any, access to the soil boring locations."
Petitioner's further allegation that "such access will be absolutely necessary and appropriate" to enable petitioner to perform the aforementioned surveys, soil tests, and other investigations on the property remains unrefuted by respondents, who merely speculate that some less intrusive means of investigation will suffice. In its supporting and reply papers, petitioner demonstrates that drilling out the seven core samples of earth to a depth of 50 feet or more is necessary in order to ascertain the suitability of the site for erection of tall transmission towers anchored by large concrete footings.
FAILURE TO POST AN UNDERTAKING
By their sixth affirmative defense, respondents assert that petitioner has failed to post a monetarily sufficient bond required pursuant to CPLR article 63. At oral argument of this proceeding, counsel for respondents conceded that a bond in the amount of $100,000 would suffice, and counsel for petitioner agreed that such a bond would be posted ( cf. Sun Co. Inc. [R M], 197 AD2d at 912-913).
FAILURE TO PREPARE A STORMWATER POLLUTION PREVENTION PLAN (SWPPP)
By their seventh affirmative defense, petitioners assert that petitioner's proposed investigation, specifically including the soil test borings and tree clearing, is precluded absent compliance by petitioner with the requirements of the DEC General Permit and Chapter 73 of the Town Code. Essentially, that DEC General Permit and that local ordinance require the preparation and implementation of an SWPPP in conjunction with any "construction activity" by petitioner. Under the local ordinance and DEC General Permit, "construction activity" is defined to include any "clearing, grading, excavating, [or other] soil disturbance" to an area of at least one acre, and the "commencement of construction activities" is defined to mean the "initial disturbance of soils associated with clearing grading or excavation activities; or other construction related activities that disturb or expose soils such as demolition, stockpiling of fill material, and the initial installation of erosion and sediment control practices required in the SWPPP." Although petitioner proposes immediately to engage in some tree cutting and soil test boring as part of its investigation into the suitability of the 6.4-acre parcel, and although such activities are preliminary to the potential construction of an electric transmission switchyard (the footprint of which would surely exceed one acre) on that parcel and within the contiguous electricity transmission corridor, it does not appear to this Court that petitioner's limited tree clearing and soil test boring on the 6.4-acre parcel (with each such boring to be made with a hollow augur of no more than six inches in diameter) would result in soil disturbance of more than one acre, thereby triggering the requirement that an SWPPP be filed with the Town. In any event, this Court is unable to conclude that petitioner's immediately contemplated investigative steps amount to "construction activity" requiring, at this early stage, the filing of an SWPPP pursuant to the Town Code and DEC General Permit. The Court concludes that there in fact can be no "construction activity" within the meaning of the local ordinance and DEC General Permit prior to acquisition of the site by petitioner ( see generally EDPL 204; article 4). Moreover, this Court determines that there could have been no concrete determination by petitioner to acquire and engage in construction activity at such site in advance of the preliminary investigation that petitioner now seeks to perform. Indeed, this Court notes that, until petitioner is afforded access to the site in order to perform the investigation authorized by EDPL 404, it would be impossible for petitioner to comply with § 73-8 of the Town Code, which concerns the requirements for filing an SWPPP. For example, until petitioner performs its soil test boring, it cannot submit to the Town an SWPPP that includes a "[d]escription of the soil(s) present at the site" (Town Code § 73-8 [B] [1] [c]). Further, until it completes its preliminary investigation and determines to acquire the site and construct an electrical transmission switchyard thereon, petitioner cannot comply with many other requirements for submitting a valid SWPPP, including detailing the various stages of the construction, describing the anticipated impact of such construction activities upon wetlands and drainage patterns, outlining the measures to be undertaken for soil stabilization and control of run-off, erosion, and pollution, and submitting certifications of each contractor and subcontractor to be involved in the construction ( see Town Code § 73-8 [B [1] [b] — [p]; [E] [1]). In short, upon examining the requirements of the local ordinance, this Court determines that it is intended to apply to landowners who embark upon a definite course of construction and is not intended to apply to an entity, such as petitioner, that is merely exploring the possibility of acquiring lands as a site for what is, at present, only a potential building project.
According, the first through seventh affirmative defenses set forth in respondents' Answer are DISMISSED, and the Verified Petition is GRANTED. Petitioners are hereby GRANTED an order PERMANENTLY ENJOINING, restraining and prohibiting respondents and their employees, agents, representatives and anyone acting in concert with them, at their direction or on their behalf, from interfering with petitioner's right, pursuant to EDPL 404 and in furtherance of the project, to enter upon the 6.4-acre parcel for the purposes of conducting the surveying, testing, and other investigations identified in petitioner's April 18, 2008 notice and the addendum thereto. Before again entering upon the property, however, petitioner MUST FILE with the Erie County Clerk a BOND or UNDERTAKING in the amount of $100,000.
SO ORDERED: