Opinion
2013-12-27
In the Matter of Mary SICOLI, as Executrix of the Estate of Benjamin M. Sicoli, Deceased, and Angelo Massaro, as Trustee of the Testamentary Trust Under the Will of Benjamin M. Sicoli, Deceased, Petitioners, v. TOWN OF LEWISTON, Respondent.
Blair & Roach, LLP, Tonawanda (J. Michael Lennon of Counsel), for Petitioners. Michael J. Dowd, Lewiston, for Respondent.
Blair & Roach, LLP, Tonawanda (J. Michael Lennon of Counsel), for Petitioners. Michael J. Dowd, Lewiston, for Respondent.
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Petitioners commenced this proceeding pursuant to EDPL 207, seeking judicial review of respondent's determination to condemn certain real property, owned in part by petitioners, for the alleged purpose of completing the dedication of a public road. As a preliminary matter, we note that, pursuant to EDPL 207(C), our review is limited to “whether (1) the proceeding was constitutionally sound; (2) the condemnor had the requisite authority; (3) its determination complied with SEQRA and EDPL article 2; and (4) the acquisition will serve a public use” (Matter of City of New York [Grand Lafayette Props. LLC], 6 N.Y.3d 540, 546, 814 N.Y.S.2d 592, 847 N.E.2d 1166; see Matter of Pfohl v. Village of Sylvan Beach, 26 A.D.3d 820, 820, 809 N.Y.S.2d 367). Petitioners, as the parties challenging the condemnation, bear the “burden of establishing that the determination was without foundation and baseless ( see Matter of Waldo's Inc. v. Village of Johnson City, 74 N.Y.2d 718, 720, 544 N.Y.S.2d 809, 543 N.E.2d 74), or that it was violative of any of the applicable statutory criteria” (Broadway Schenectady Entertainment v. County of Schenectady, 288 A.D.2d 672, 673, 732 N.Y.S.2d 703; see Matter of Dudley v. Town Bd. of Town of Prattsburgh, 59 A.D.3d 1103, 1104, 872 N.Y.S.2d 614; Pfohl, 26 A.D.3d at 820–821, 809 N.Y.S.2d 367).
Here, we conclude that petitioners have failed to meet their burden. Petitioners contend, inter alia, that the proposed taking served no valid, nonpretextual public purpose. We reject that contention. “[I]t is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill [a public] purpose” ( Matter of Rafferty v. Town of Colonie, 300 A.D.2d 719, 723, 752 N.Y.S.2d 725; see Matter of Doyle v. Schuylerville Cent. School Dist., 35 A.D.3d 1058, 1059, 826 N.Y.S.2d 797, lv. denied9 N.Y.3d 804, 840 N.Y.S.2d 764, 872 N.E.2d 877, rearg. denied9 N.Y.3d 939, 844 N.Y.S.2d 779, 876 N.E.2d 507; Matter of Gyrodyne Co. of Am., Inc. v. State Univ. of N.Y. at Stony Brook, 17 A.D.3d 675, 676, 794 N.Y.S.2d 87, lv. denied5 N.Y.3d 716, 808 N.Y.S.2d 140, 842 N.E.2d 26). Contrary to petitioners' contention, we conclude that respondent did not abuse or improvidently exercise its discretion in determining that “a public use, benefit or purpose will be served by the proposed acquisition” (EDPL 207[C] [4] ).
Finally, we reject petitioners' contention that the proceeding was constitutionally unsound. Petitioners adduced no evidence “to support a finding that [they] have ‘been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment’ ” ( Matter of Gray v. Town of Oppenheim, 289 A.D.2d 743, 745, 734 N.Y.S.2d 343, lv. denied98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221, quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060). We therefore conclude that respondent did not violate petitioners' equal protection rights, and thus “the proceeding was in conformity with the federal and state constitutions” (EDPL 207[C][1] ). Consequently, we confirm the determination and dismiss the petition.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.