BUTLER v. ONONDAGA COUNTY LEGISLATURE (2007)

 Petitioner commenced this proceeding pursuant to EDPL 207 seeking to annul respondent's determination to condemn a .4-acre parcel of petitioner's property along the Onondaga Creek shoreline.   Petitioner contends, inter alia, that the proposed taking is not the least invasive alternative and involves more of petitioner's land than is necessary for the intended public use.  “Our scope of review pursuant to EDPL 207(C) is limited to whether the proceeding was in conformity with constitutional requirements, whether the proposed acquisition is within the statutory jurisdiction or authority of the condemnor, whether the condemnor's determination and findings were made in accordance with the procedures set forth in EDPL article 2 and ECL article 8, and whether a proposed use, benefit or purpose will be served by the proposed acquisition” (Matter of Pfohl v. Village of Sylvan Beach, 26 A.D.3d 820, 820, 809 N.Y.S.2d 367;  see 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;  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;  Matter of Broadway Schenectady Entertainment v. County of Schenectady, 288 A.D.2d 672, 672-673, 732 N.Y.S.2d 703).   The burden is on the party challenging the condemnation to establish that the determination “was without foundation and baseless” (Matter of Rafferty v. Town of Colonie, 300 A.D.2d 719, 721, 752 N.Y.S.2d 725;  see Broadway Schenectady Entertainment, 288 A.D.2d at 673, 732 N.Y.S.2d 703).   Thus, “[i]f an adequate basis for a determination is shown and the objector cannot show that the determination was without foundation, the [condemnor's] determination should be confirmed” (Waldo's, Inc., 74 N.Y.2d at 720, 544 N.Y.S.2d 809, 543 N.E.2d 74 [internal quotation marks omitted];  see Matter of Stankevich v. Town of Southold, 29 A.D.3d 810, 811, 815 N.Y.S.2d 225, lv. denied 7 N.Y.3d 717, 826 N.Y.S.2d 605, 860 N.E.2d 67;  Matter of Kaufmann's Carousel v. City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292, 299, 750 N.Y.S.2d 212, lv. denied 99 N.Y.2d 508, 757 N.Y.S.2d 819, 787 N.E.2d 1165).

 We conclude that petitioner has failed to sustain his burden of establishing that the determination is without foundation and baseless.   We further conclude that petitioner has failed to establish that the taking is excessive.  “[I]t is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill [the public] purpose” (Rafferty, 300 A.D.2d at 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;  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. denied 5 N.Y.3d 716, 808 N.Y.S.2d 140, 842 N.E.2d 26).   Contrary to petitioner's contention, respondent neither abused nor improvidently exercised its discretion.

It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

MEMORANDUM: