Spittler v. Town of Hamburg

4 A.D.3d 735, 771 N.Y.S.2d 464, 2004 N.Y. App. Div. LEXIS 1416

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2004
• Status: Published

Opinion

Proceeding initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to section 207 of the Eminent Domain Procedure Law to annul a determination of respondent. The determination condemned a portion of petitioner’s property.

It is hereby ordered that the determination be and the same hereby is unanimously annulled on the law without costs and the petition is granted.

Memorandum: In this proceeding commenced pursuant to EDPL 207, we agree with petitioner that the determination condemning a portion of his property must be annulled based upon respondent’s failure to comply with EDPL article 2. Petitioner established that there is no adequate basis in the record for the determination of respondent that it is exempt from compliance with article 2 because the taking “is de minimis in nature ... or because of an emergency situation” (EDPL 206 [D]; see generally Sun Co. v City of Syracuse Indus. Dev. Agency, 209 AD2d 34, 40 [1995], appeal dismissed 86 NY2d 776 [1995]). Although respondent passed a resolution that authorized the condemnation of the property, that resolution does not adequately set forth the basis for respondent’s determination. Nor did respondent undertake an appropriate review under the State Environmental Quality Review Act ([SEQRA] ECL art 8) to determine whether the taking would have a significant impact on the environment or was otherwise exempt from environmental review under SEQRA. Present—Pigott, Jr., PJ., Pine, Wisner, Hurlbutt and Gorski, JJ.