Opinion
603 OP 23-00478
10-06-2023
In the Matter of PENNEY PROPERTY SUB HOLDINGS LLC, Petitioner, v. The TOWN OF AMHERST, Respondent.
HARTER SECREST & EMERY LLP, ROCHESTER (MEGAN K. DORRITIE OF COUNSEL), FOR PETITIONER. HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR RESPONDENT.
HARTER SECREST & EMERY LLP, ROCHESTER (MEGAN K. DORRITIE OF COUNSEL), FOR PETITIONER.
HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this original proceeding pursuant to EDPL 207 seeking to annul the determination of respondent, Town of Amherst (Town), authorizing the condemnation of approximately 62 acres of property consisting predominantly of the Boulevard Mall and surrounding parking area (Mall property). The Mall property includes petitioner's 2.3 acres of commercial land, which is leased and operated as a fully-functional JC Penney department store. The Town held a public hearing on November 22, 2022, prior to which it timely published a notice of hearing as required by EDPL 202. With respect to petitioner, the Town further served notice of the hearing on November 9, 2022, by both hand delivery to the secretary of state and by certified mail, return receipt requested, addressed to petitioner's tax billing address on file with the Town Assessor. The Town does not dispute that the secretary of state delayed in forwarding the notice of hearing to petitioner until after the hearing had been held, and further concedes that the notice sent to petitioner by certified mail was never delivered. On January 30, 2023, the Town adopted a resolution authorizing the acquisition.
Petitioner contends that the Town's failure to provide proper notice of the hearing deprived petitioner of due process, requiring this Court to annul the Town's determination. EDPL 202 (C) (1) provides that where, as here, a public hearing is required, the condemnor "shall serve, either by personal service or certified mail, return receipt requested, a notice of the purpose, time, date, and location of [the] hearing ... to each assessment record billing owner." We agree with petitioner that hand delivery of the hearing notice to the secretary of state does not constitute personal service (see Eugene Di Lorenzo , Inc. v. A.C. Dutton Lbr. Co. , 67 N.Y.2d 138, 142, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). Contrary to petitioner's contention, however, we conclude that the Town fulfilled the requirements of both EDPL 202 (C) (1) and procedural due process by serving notice of the hearing to petitioner by certified mail, return receipt requested.
With respect to procedural due process, it is well settled that " ‘[d]ue process does not require that a property owner receive actual notice before the government may take [their] property’ " ( Matter of City of Rochester [Duvall] , 92 A.D.3d 1297, 1298, 939 N.Y.S.2d 214 [4th Dept. 2012], quoting Jones v. Flowers , 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 [2006] ). "Rather, due process is satisfied by ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections’ " ( id. , quoting Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 [1950] ). If the Town had been made aware prior to the hearing "that its attempt at notice ha[d] failed" ( Jones , 547 U.S. at 227, 126 S.Ct. 1708 ), then it would have been obliged to "take[ ] additional steps to notify [petitioner], if practicable to do so" ( id. at 234, 126 S.Ct. 1708 ). Here, however, the record lacks evidence that the Town was, or should have been, aware that the mailed notice had not actually reached petitioner prior to the hearing. Under these circumstances, the notice provided to petitioner satisfied the requirements of procedural due process.
Petitioner further contends that the hearing was not conducted in compliance with EDPL 203 because the Town failed to outline a specific future use for the proposed acquisition. That contention "is not properly before us [inasmuch] as th[at] precise issue was not timely raised in the petition" ( Matter of Tadasky Corp. v. Village of Ellenville , 45 A.D.3d 1131, 1132, 846 N.Y.S.2d 453 [3d Dept. 2007] ; see Matter of United Ref. Co. of Pa. v. Town of Amherst , 173 A.D.3d 1810, 1812, 105 N.Y.S.3d 235 [4th Dept. 2019], lv denied 34 N.Y.3d 913, 2020 WL 1467110 [2020] ). In any event, that contention is without merit.
Additionally, we reject petitioner's contention that the condemnation will not serve a public use, benefit, or purpose (see EDPL 207 [C] [4] ). "What qualifies as a public purpose or public use is broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility, or advantage" ( Matter of Syracuse Univ. v. Project Orange Assoc. Servs. Corp. , 71 A.D.3d 1432, 1433, 897 N.Y.S.2d 335 [4th Dept. 2010], appeal dismissed & lv denied 14 N.Y.3d 924, 905 N.Y.S.2d 126, 931 N.E.2d 96 [2010] [internal quotation marks omitted]), and "[i]t is well settled that redevelopment and urban renewal are valid public uses" ( United Ref. Co. of Pa. , 173 A.D.3d at 1811, 105 N.Y.S.3d 235 ), as is "removal of urban blight" ( Matter of Goldstein v. New York State Urban Dev. Corp. , 13 N.Y.3d 511, 524, 893 N.Y.S.2d 472, 921 N.E.2d 164 [2009], rearg denied 14 N.Y.3d 756, 898 N.Y.S.2d 85, 925 N.E.2d 88 [2010] ). Here, condemnation of petitioner's property will "allow [the Town] to hold complete title to [the Mall property] and will thus foster the redevelopment of [the area] ... in order to eliminate blighting influences" ( Matter of Court St. Dev. Project , LLC v. Utica Urban Renewal Agency , 188 A.D.3d 1601, 1602, 136 N.Y.S.3d 588 [4th Dept. 2020] ; see Matter of Niagara Falls Redevelopment , LLC v. City of Niagara Falls , 218 A.D.3d 1306, 1308, 194 N.Y.S.3d 381 [4th Dept. 2023] ; Matter of Huntley Power , LLC v. Town of Tonawanda [proceeding No. 2], 217 A.D.3d 1325, 1327, 191 N.Y.S.3d 850 [4th Dept. 2023] ). We therefore conclude that the Town's determination to exercise its eminent domain power "is rationally related to a conceivable public purpose" ( Matter of Jackson v. New York State Urban Dev. Corp. , 67 N.Y.2d 400, 425, 503 N.Y.S.2d 298, 494 N.E.2d 429 [1986] [internal quotation marks omitted]).
We further reject petitioner's contentions that the Town's finding of blight as it relates to petitioner's property is based on insufficient evidence and that the taking of petitioner's property is excessive. With respect to petitioner's property, the government "may condemn [an] unblighted parcel[ ] as part of an overall plan to improve a blighted area" ( Matter of Develop Don't Destroy [Brooklyn] v. Urban Dev. Corp. , 59 A.D.3d 312, 321, 874 N.Y.S.2d 414 [1st Dept. 2009], lv denied 13 N.Y.3d 713, 2009 WL 4250872 [2009], rearg denied 14 N.Y.3d 748, 898 N.Y.S.2d 81, 925 N.E.2d 83 [2010] [internal quotation marks omitted]; see Cannata v. City of New York , 14 A.D.2d 813, 813, 221 N.Y.S.2d 457 [2d Dept. 1961], affd 11 N.Y.2d 210, 227 N.Y.S.2d 903, 182 N.E.2d 395 [1962], appeal dismissed 371 U.S. 4, 83 S.Ct. 28, 9 L.Ed.2d 48 [1962] ; see generally Yonkers Community Dev. Agency v. Morris , 37 N.Y.2d 478, 483-484, 373 N.Y.S.2d 112, 335 N.E.2d 327 [1975], appeal dismissed 423 U.S. 1010, 96 S.Ct. 440, 46 L.Ed.2d 381 [1975] ). There is support in the record for the Town's conclusions that the Mall property, as a whole, is an "[a]rea[ ] of economic underdevelopment and stagnation" ( Court St. Dev. Project , LLC , 188 A.D.3d at 1602, 136 N.Y.S.3d 588 ) and that "condemnation and subsequent improvement of [the Mall] property would benefit the area's redevelopment" ( United Ref. Co. of Pa. , 173 A.D.3d at 1811, 105 N.Y.S.3d 235 ). Thus, there is no basis for us to "supplant [the Town's] determination" ( Goldstein , 13 N.Y.3d at 528, 893 N.Y.S.2d 472, 921 N.E.2d 164 ; cf. Matter of Gabe Realty Corp. v. City of White Plains Urban Renewal Agency , 195 A.D.3d 1020, 1022, 151 N.Y.S.3d 143 [2d Dept. 2021] ). Furthermore, we conclude that petitioner has not met its burden of demonstrating that the Town abused its considerable discretion in condemning petitioner's property in addition to the rest of the Mall property (see Huntley Power , LLC , 217 A.D.3d at 1327, 191 N.Y.S.3d 850 ; United Ref. Co. of Pa. , 173 A.D.3d at 1811-1812, 105 N.Y.S.3d 235 ; Matter of Butler v. Onondaga County Legislature , 39 A.D.3d 1271, 1272, 833 N.Y.S.2d 829 [4th Dept. 2007] ).
We likewise reject petitioner's contention that the Town's purpose for acquiring the property manifests an intent to engage in constitutionally-prohibited enterprise because the Town may sell the property to a private developer. "[T]he ‘[t]aking of substandard real estate by a municipality for redevelopment by private corporations has long been recognized as a species of public use’ " ( Huntley Power, LLC , 217 A.D.3d at 1328, 191 N.Y.S.3d 850, quoting Cannata , 11 N.Y.2d at 215, 227 N.Y.S.2d 903, 182 N.E.2d 395 ), and " ‘incidental private benefit will not invalidate an agency's determination so long as the public purpose is dominant’ " ( Sun Co. v. City of Syracuse Indus. Dev. Agency , 209 A.D.2d 34, 43, 625 N.Y.S.2d 371 [4th Dept. 1995], appeal dismissed 86 N.Y.2d 776, 631 N.Y.S.2d 603, 655 N.E.2d 700 [1995], quoting Matter of Waldo ’s , Inc. v. Village of Johnson City , 74 N.Y.2d 718, 721, 544 N.Y.S.2d 809, 543 N.E.2d 74 [1989] ; see Matter of Kaufmann ’s Carousel v. City of Syracuse Indus. Dev. Agency , 301 A.D.2d 292, 303, 750 N.Y.S.2d 212 [4th Dept. 2002], lv denied 99 N.Y.2d 508, 757 N.Y.S.2d 819, 787 N.E.2d 1165 [2003] ).
We have reviewed petitioner's remaining contentions, and conclude that they are without merit.