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Matter of SETTCO, LLC, Petitioner, v. NEW YORK STATE URBAN DEVELOPMENT CORPORATION, Doing Business as Empire State Development Corporation, and USA Niagara Development Corporation, Respondents.
Petitioner commenced this original proceeding pursuant to EDPL 207 seeking review of respondents' determination and findings that a “public use, benefit or purpose” (EDPL 204[B] ) will be served by the proposed acquisition of petitioner's property in downtown Niagara Falls for the site of a new convention and conference facility. Development of such a facility is occasioned by the recent sale and redevelopment of the nearby former convention facility for use as a gambling casino operated by the Seneca Nation of Indians (see L. 2001, ch. 383). Petitioner challenges the determination and findings on the grounds that they were not made in accordance with article eight of the Environmental Conservation Law (State Environmental Quality Review Act [SEQRA] ) and its implementing regulations (6 NYCRR part 617), assertedly because of the improper segmentation and inadequacy of environmental review, both allegedly leading to an improper “Negative Declaration” of environmental significance. Petitioner further contends that a public use, benefit or purpose will not be served by the proposed acquisition and that petitioner lacks any assurance of receiving full and adequate compensation for the taking, thereby rendering the proposed acquisition unconstitutional.
We conclude that there was no improper segmentation of environmental review. The legally mandated conveyance of title to the former convention site for redevelopment as an Indian casino is specifically exempted from review under SEQRA as a Type II action (see 6 NYCRR 617.3[f]; 617.5 [a], [c]; 617.6 [a][1][i] ). The action involves “official acts of a ministerial nature, involving no exercise of discretion” (ECL 8-0105[5][ii]; see 6 NYCRR 617.2[w]; 617.5[c][19]; see also Matter of Lighthouse Hill Civic Assn. v. City of New York, 275 A.D.2d 322, 323, 712 N.Y.S.2d 558, lv. denied 95 N.Y.2d 768, 721 N.Y.S.2d 605, 744 N.E.2d 141; Citizens for the Preservation of Windsor Terrace v. Smith, 122 A.D.2d 827, 828, 505 N.Y.S.2d 896; see generally Incorporated Vil. of Atl. Beach v. Gavalas, 81 N.Y.2d 322, 325-326, 599 N.Y.S.2d 218, 615 N.E.2d 608). Further, the conveyance is an action “of the Legislature and the Governor of the State of New York” (617.5[c][37]; see Matter of Citizens for an Orderly Energy Policy v. Cuomo, 78 N.Y.2d 398, 415, 576 N.Y.S.2d 185, 582 N.E.2d 568, rearg. denied 79 N.Y.2d 851, 580 N.Y.S.2d 202, 588 N.E.2d 100; Matter of Cerro v. Town of Kingsbury, 250 A.D.2d 978, 979, 672 N.Y.S.2d 953, aappeal dismissed 92 N.Y.2d 875, 677 N.Y.S.2d 781, 700 N.E.2d 320, lv. denied 92 N.Y.2d 812, 680 N.Y.S.2d 905, 703 N.E.2d 763; see generally Matter of West Vil. Comm. v. Zagata, 242 A.D.2d 91, 98-99, 669 N.Y.S.2d 674, lv. denied 92 N.Y.2d 802, 677 N.Y.S.2d 72, 699 N.E.2d 432). Given the exemption of the casino project from environmental review under SEQRA, respondents properly considered the impacts of the acquisition of the subject property and the relocation of the convention center activities apart from the impacts of the casino project. In any event, even assuming the applicability of SEQRA to both projects, we conclude that the two projects are sufficiently independent of one another as to be separately reviewable (see Matter of Noslen Corp. v. Ontario County Bd. of Supervisors, 295 A.D.2d 924, 925-926, 744 N.Y.S.2d 737; Matter of Iroquois Cent. School Dist. v. Zagata, 241 A.D.2d 945, 946, 662 N.Y.S.2d 282). The “actions” or “projects” in question are distinct and are not merely separate parts “of a set of activities or steps” in a single action or project (617.3[g]; see 617.2[ag] ). “Where, as here, projects are independent of each other and are not part of an integrated or cumulative development plan,” and “their only common element is their general location,” “the projects may be reviewed separately and are not subject to a claim of improper segmentation,” nor is “cumulative analysis” of the two projects required (Matter of Forman v. Trustees of State Univ. of N.Y., 303 A.D.2d 1019, 1020, 757 N.Y.S.2d 180; see Matter of Long Is. Pine Barrens Socy. v. Planning Bd. of Brookhaven, 80 N.Y.2d 500, 513-515, 591 N.Y.S.2d 982, 606 N.E.2d 1373).
With respect to the alleged inadequacy of the environmental review of the proposed acquisition and new convention center project, we conclude that respondents identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for their determination of no environmental significance (see Matter of Kahn v. Pasnik, 90 N.Y.2d 569, 574, 664 N.Y.S.2d 584, 687 N.E.2d 402; Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 688, 642 N.Y.S.2d 164, 664 N.E.2d 1226; Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429). We thus conclude that the negative declaration was not made in violation of lawful procedure, affected by an error of law, arbitrary and capricious, or an abuse of discretion (see Kahn, 90 N.Y.2d at 574, 664 N.Y.S.2d 584, 687 N.E.2d 402; Gernatt Asphalt Prods., 87 N.Y.2d at 688, 642 N.Y.S.2d 164, 664 N.E.2d 1226; Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53).
Respondents properly determined that “a public use, benefit or purpose will be served by the proposed acquisition” (EDPL 207[C][4]; see 204[B] [1]; Matter of Waldo's, Inc. v. Village of Johnson City, 74 N.Y.2d 718, 720-721, 544 N.Y.S.2d 809, 543 N.E.2d 74; Matter of Kaufmann's Carousel v. City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292, 750 N.Y.S.2d 212, lv. denied 99 N.Y.2d 508, 757 N.Y.S.2d 819, 787 N.E.2d 1165; Matter of Bergen Swamp Preserv. Socy. v. Village of Bergen, 294 A.D.2d 827, 827-828, 741 N.Y.S.2d 363; Matter of Bendo v. Jamestown Urban Renewal Agency, 291 A.D.2d 859, 738 N.Y.S.2d 615, lv. denied 98 N.Y.2d 603, 745 N.Y.S.2d 502, 772 N.E.2d 605). We have considered petitioner's remaining contention and conclude that it is without merit.
It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.
MEMORANDUM:
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Decided: May 02, 2003
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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