FLASH! COURT DENIES WHITE PLAINS EMINENT DOMAIN EFFORT TO TAKE WEST POST ROAD PROPERTIES: “NO REASON GIVEN,” COURT SAYS. “NO BLIGHT.” “NO PROJECT.”

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WPCNR WHITE PLAINS LAW JOURNAL. by John F. Bailey. UPDATED HIGH NOON WITH DECISION TRANSCRIPT July 1, 2021:

In decision handed down by the Appellate Court, Second Department , the City of White Plains has been denied the right to use the tool of eminent domain to acquire the rest of East Post Road to Lexington Avenue and the corner property on Lexington and East Post Road, one of the property owners whose property reports.

The owner of one of the properties threatened with eminent domain take over said the court denied the city for three reasons, one reason for the denial the court deciced, he said was

1.) the city relied on a twenty-five year old description of the properties as a “blighted area” and it is not.

2.) There was no reason given for taking the properties.

3.) A city must be specific in saying what the city intends to do with the properties should they be acquired.

Gabriel Arango, one of the owners of the property filed the suit. More information to come.

The owner explaining the decision to WPCNR said that the White Plains Hospital had purcased the dental property on the corner of Lexington Ave and West Post Road, which had, the source said been part of the eminent domain, city targets.

The source said the city had already puchased the Firestone and pharmacy parcels on West Post Road. However he had no idea what the city would do with them now. It was the property owner’s impression that “the hospital got what it wanted, and now is not interested in the properties whose owners won the suit in yesterday’s decision.

The partial transcript of the Appellate Court Second Department Decision, Gabe Realty Corp. vs. City of White Plains Urban Renewal Agency:

This Court will not act as a mere “rubber stamp[ ]” to approve findings of blight where the condemning authority has failed to provide evidence to support its findings (Yonkers Community Dev. Agency v Morris, 37 NY2d at 485). Here, the agency’s “bare pleading” (id. at 484) of substandard conditions did not satisfy its obligation to respond to a challenge to its finding of blight by presenting “an adequate basis” for its conclusion (id. at 486; see Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 425).

Where a condemning authority does not demonstrate that property is substandard for the purpose of urban renewal, the authority must identify some public purpose other than the purported remediation of blight (see Yonkers Community Dev. Agency v Morris, 37 NY2d at 482). While a condemning authority may select virtually any project which “contributes to the health, safety, general welfare, convenience, or prosperity of the community” (Matter of River St. Realty Corp. v City of New Rochelle, 181 AD3d at 678; see Matter of City of New York v Yonkers Indus. Dev. Agency, 170 AD3d at 1004), this broad discretion does not relieve the authority from selecting a particular project and, where demanded by the property owner, submitting that project to judicial scrutiny.

The effect of condemnation of property upon the surrounding community “depends on the use to which the property is put, and without knowing the use,” a condemning authority cannot reasonably conclude that the taking will serve a public use, benefit, or purpose (Daniels v Area Plan Commn. of Allen County, 306 F3d 445, 465 [7th Cir]). A mere potential future public benefit is not sufficient to satisfy the requirement that property be taken only for public benefit (see Cincinnati v Vester, 281 US 439, 448; Daniels v Area Plan Commn. of Allen County, 306 F3d at [*3]466). We agree with the Federal Court of Appeals for the Seventh Circuit that the existence of a “public use” must be determined at the time of the taking since the requirement of public use would otherwise be rendered meaningless by bringing “speculative future public benefits” which might never be realized within its scope (Daniels v Area Plan Commn. of Allen County, 306 F3d at 466; see generally Yonkers Community Dev. Agency v Morris, 37 NY2d at 484-486). This is consistent with the purpose of EDPL article 2 of ensuring that a condemnor “‘does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose'” (Matter of National Fuel Gas Supply Corp. v Schueckler, 35 NY3d at 303, quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 417-418; see Matter of River St. Realty Corp. v City of New Rochelle, 181 AD3d at 677). Likewise, although the agency completed a full SEQRA Environmental Assessment Form, it failed to identify the relevant areas of environmental concern and take a hard look at them (see Matter of River St. Realty Corp. v City of New Rochelle, 181 AD3d at 679).

The petitioners are entitled to be reimbursed for attorneys’ fees and costs pursuant to EDPL 702(B) (see Hargett v Town of Ticonderoga, 13 NY3d 325).

The agency’s remaining contention is without merit.

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