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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of FAITH TEMPLE CHURCH, Petitioner, v. TOWN OF BRIGHTON, Sandra L. Frankel, in her Official Capacity as Brighton Town Supervisor, Thomas Low, in his Official Capacity as Brighton Commissioner of Public Works, Ramsey Boehner, in his Official Capacity as Brighton Town Planner, and James R. Vogel, Raymond Tierney, III, Jill Vigdor Feldman and Sherry Kraus, in their Official Capacity as Brighton Town Board Members, Respondents.

Decided: April 29, 2005

PRESENT:  PIGOTT, JR., P.J., SCUDDER, GORSKI, MARTOCHE, AND LAWTON, JJ. Nixon Peabody LLP, Rochester (David L. Cook of Counsel), for Petitioner. Boylan, Brown, Code, Vigdor & Wilson, LLP, Rochester (John M. Wilson, II, of Counsel), for Respondents.

 Petitioner commenced this original proceeding pursuant to EDPL 207 seeking review of a determination of respondent Town of Brighton (Town) to condemn a parcel of real property that petitioner had contracted to purchase.   We agree with petitioner that it has standing to challenge the Town's determination and findings in this proceeding.   Pursuant to EDPL 207(A), “[a]ny person or persons jointly or severally, aggrieved by the condemnor's determination and findings made pursuant to [EDPL 204], may seek judicial review thereof.”   As holder of an equitable interest under its purchase contract for the property, petitioner is a “condemnee” within the meaning of EDPL 103(C) and is thus entitled to standing (see Matter of East Thirteenth St. Community Assn. v. New York State Urban Dev. Corp., 84 N.Y.2d 287, 293, 617 N.Y.S.2d 706, 641 N.E.2d 1368;  Matter of City of New York [Jefferson Houses-Lombardi], 306 N.Y. 278, 281-282, 117 N.E.2d 896).   Furthermore, we conclude that the failure of respondents to address the issue of standing in their brief may be considered as a concession that petitioner has standing (see e.g. Matter of Faith AA., 139 A.D.2d 22, 26, 530 N.Y.S.2d 318).

 Nevertheless, “petitioner has failed to sustain its burden of establishing that the determination was without foundation and baseless” (Matter of Broadway Schenectady Entertainment v. County of Schenectady, 288 A.D.2d 672, 673, 732 N.Y.S.2d 703;  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).   Additionally, petitioner has not demonstrated “that the manner in which [the Town] proceeded was in bad faith” (Matter of Ranauro v. Town of Owasco, 289 A.D.2d 1089, 1090, 735 N.Y.S.2d 332).   To overturn a legislative act, there must be a clear showing of bad faith (see Village Auto Body Works v. Incorporated Vil. of Westbury, 90 A.D.2d 502, 454 N.Y.S.2d 741, appeal dismissed 58 N.Y.2d 778, 459 N.Y.S.2d 1032, 445 N.E.2d 220).   While petitioner had an “opportunity to make a record on the issue of bad faith” at the EDPL hearing (id. at 503, 454 N.Y.S.2d 741), it did not do so.   Petitioner's claims, at best, amount to “mere allegations of bad faith” (Waldo's, Inc., 74 N.Y.2d at 722, 544 N.Y.S.2d 809, 543 N.E.2d 74).

 Furthermore, petitioner failed to demonstrate that the Town's conduct was “irrational, baseless or palpably unreasonable” (Matter of Dowling Coll. v. Flacke, 78 A.D.2d 551, 552, 432 N.Y.S.2d 23).   Rather, the record supports the Town's finding that the parcel “is the only remaining parcel in the Town of its size suitable for parkland development” in accordance with the Town's Comprehensive Plan 2000 and Open Space Plan. Because petitioner has failed to demonstrate “that the determination was ‘without foundation’ ” (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 425, 503 N.Y.S.2d 298, 494 N.E.2d 429) and the record reflects that the Town's exercise of eminent domain “ ‘is rationally related to a conceivable public purpose’ ” (Matter of Bergen Swamp Preserv. Socy. v. Village of Bergen, 294 A.D.2d 827, 828, 741 N.Y.S.2d 363), the determination and findings must be confirmed.

 Contrary to the contentions of petitioner and respondents, this Court does not have authority under the EDPL to consider petitioner's causes of action under the Religious Land Use and Institutionalized Persons Act (42 USC § 2000cc et seq.).   Those causes of action, which also appear to have been raised in an action filed in United States District Court contemporaneously with the commencement of this proceeding (see Faith Temple Church v. Town of Brighton, --- F.Supp.2d ----, 2005 WL 66210 [W.D.N.Y. Jan. 12, 2005] ), must be determined by that court.  EDPL 207(C) limits the scope of this Court's review of the Town's determination and findings, and does not confer authority to determine whether the Town would, by condemning certain property, be in violation of a federal statute (see generally Jackson, 67 N.Y.2d at 418, 503 N.Y.S.2d 298, 494 N.E.2d 429).

 Finally, the determination and findings may not be annulled on the ground that the EDPL proceeding failed to comply with the Federal and State Constitutions.   The question of whether the proceeding “was in conformity with the [F]ederal and [S]tate [C]onstitutions” (EDPL 207[C][1] ) may include a review of whether the proposed condemnation conforms with freedom of religion principles, and thus this Court may review the record to determine whether the proceeding conforms with the Free Exercise Clause of the First Amendment to the United States Constitution (see e.g. Thiry v. Carlson, 78 F.3d 1491, 1496, cert. denied 519 U.S. 821, 117 S.Ct. 78, 136 L.Ed.2d 36;  Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1224;  see also City Chapel Evangelical Free v. City of South Bend, 744 N.E.2d 443, 450 [Ind.] ), which has its counterpart in N.Y. Constitution, article 1, § 3.

 Here, however, petitioner has failed to demonstrate on this record that the proposed condemnation violates the Free Exercise Clause or its New York counterpart.   The application of a statute such as the EDPL, an “otherwise valid, neutral, and generally applicable law[ ],” does not ordinarily violate the Free Exercise Clause (Cottonwood Christian Ctr., 218 F.Supp.2d at 1223;  see Thiry, 78 F.3d at 1496;  City Chapel Evangelical Free, 744 N.E.2d at 452).   Generally, a “law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice” (Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472).   Here, the record demonstrates that the Town's “actions are neutral and generally applicable” (Thiry, 78 F.3d at 1496), and petitioner has failed to demonstrate that the proposed condemnation imposes a substantial burden on its exercise of religion (cf. McEachin v. McGuinnis, 357 F.3d 197, 202-203;  Ford v. McGinnis, 352 F.3d 582, 592-94).

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


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Decided: April 29, 2005

Court: Supreme Court, Appellate Division, Fourth Department, New York.

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