IN RE: MID RIVER MARINA (2026)

MEMORANDUM AND ORDER

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

Memorandum: Petitioner commenced this original proceeding pursuant to EDPL 207 seeking to annul the determination of respondent, Niagara Mohawk Power Corporation, doing business as National Grid (National Grid), authorizing the condemnation of certain real property and property rights. We confirm the determination and dismiss the petition.

Petitioner operates a marina along the Niagara River in Erie County on property that is partially surrounded by property owned by National Grid, which hosts electric service facilities including a switchyard, overhead high voltage transmission, subtransmission, and distribution power lines, and other electric infrastructure. Pursuant to a longstanding easement, petitioner possessed various rights to operate its marina upon and across portions of National Grid's property and for ingress and egress over National Grid's abutting lands as reasonably necessary to effectuate its operation of the marina. The easement is subject to numerous conditions, including that no boat, trailer, or other vehicle or combination thereof exceeding 10 feet from ground level would be permitted onto the easement area or onto National Grid's abutting lands and that petitioner would operate the marina so as not to damage or interfere with National Grid's electric transmission or distribution lines or other facilities.

In late May 2022, shortly after an incident in which a National Grid employee confronted petitioner's principal about operating a travel boat lift underneath and in unsafe proximity to an overhead distribution line, National Grid sent petitioner a letter documenting various unsafe and illegal practices at the marina and demanding that petitioner cease and desist any such unauthorized activities, including working near or around National Grid's facilities. Less than three months later, however, petitioner's principal was fatally electrocuted while again operating the travel boat lift beneath the distribution line. Notwithstanding the death of petitioner's principal and further communications between the parties about safe operation of the marina, National Grid continued to document numerous unsafe, unauthorized, and intrusive activities by petitioner during its operation of the marina. Petitioner thereafter commenced an action against National Grid seeking various forms of relief and asserting, among other things, that it holds title via adverse possession to a roadway it constructed on National Grid's property to facilitate marina operations.

While that action remained pending, National Grid sought to acquire by eminent domain (see EDPL article 2) certain property and property rights from petitioner in order to undertake a project that would include installing an underground cable to replace the aforementioned overhead distribution line and raising another distribution line and would preserve petitioner's right of ingress and egress upon and across the premises to operate the marina. After publishing a notice of public hearing and conducting the hearing, National Grid rendered a determination finding, inter alia, that the proposed project would serve an appropriate public benefit or purpose.

Pursuant to EDPL 207, the scope of this Court's review of a determination to condemn property is “very limited” (Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 546 [2006]; see Matter of Bowers Dev., LLC v Oneida County Indus. Dev. Agency, 40 NY3d 1061, 1063 [2023]; Matter of Carr v City of Buffalo, 225 AD3d 1236, 1237 [4th Dept 2024], lv denied 42 NY3d 912 [2025]). We must “ ‘either confirm or reject the condemnor's determination and findings,’ and [our] review is confined to whether (1) the proceeding was constitutionally sound; (2) the condemnor had the requisite authority; (3) its determination complied with [the State Environmental Quality Review Act (SEQRA) (ECL art 8)] and EDPL article 2; and (4) the acquisition will serve a public use” (Grand Lafayette Props. LLC, 6 NY3d at 546, quoting EDPL 207 [C]; see Bowers Dev., LLC, 40 NY3d at 1063; Carr, 225 AD3d at 1237). “If 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” (Bowers Dev., LLC, 40 NY3d at 1063 [internal quotation marks omitted]).

Petitioner contends that we should reject National Grid's determination because the condemnation at issue will not serve a public use, benefit, or purpose (see EDPL 207 [C] [4]) and, for that reason, the proceeding was not in conformity with the federal and state constitutions (see EDPL 207 [C] [1]). We conclude that petitioner's contention lacks merit.

It is undisputed that National Grid, as an electric corporation (see Transportation Corporations Law § 3 [b] [1]), has the “power and authority to acquire such real estate as may be necessary for its corporate purposes and the right of way through any property in the manner prescribed by the [EDPL]” (§ 11 [3-a]). “A ‘public use, benefit or purpose’ must exist to warrant the exercise of the power of eminent domain” (Matter of Syracuse Univ. v Project Orange Assoc. Servs. Corp., 71 AD3d 1432, 1433 [4th Dept 2010], appeal dismissed & lv denied 14 NY3d 924 [2010], quoting EDPL 204 [B] [1]). “Those terms are broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility, or advantage ․, and include any use ․ which contributes to the health, safety, general welfare, convenience or prosperity of the community” (Matter of JHK Dev., LLC v Town of Salina, 233 AD3d 1496, 1498 [4th Dept 2024], lv denied 44 NY3d 904 [2025] [internal quotation marks omitted]; see Matter of Byrne v New York State Off. of Parks, Recreation & Historic Preserv., 101 AD2d 701, 702 [4th Dept 1984]). “[W]hether or not a proposed condemnation is for a public purpose is a judicial question ․ [,] but legislative findings in this respect are entitled to great weight” (Denihan Enters. v O’Dwyer, 302 NY 451, 457 [1951]; see Yonkers Community Dev. Agency v Morris, 37 NY2d 478, 485 [1975], appeal dismissed 423 US 1010 [1975]; Syracuse Univ., 71 AD3d at 1433).

Here, as National Grid stated in its determination, we conclude that the condemnation serves the public benefit or purpose of increasing the safety of members of the public, employees, and patrons who access the area and mitigating the risk that marina operations will interfere with the integrity and reliability of National Grid's facilities, which constitute a critical component of the transmission, subtransmission, and distribution system providing electric service to both the marina and the greater surrounding community (see Matter of Bergen Swamp Preserv. Socy. v Village of Bergen, 294 AD2d 827, 828 [4th Dept 2002]; Green v Oneida-Madison Elec. Coop., 139 AD2d 964, 964 [4th Dept 1988], appeal dismissed 72 NY2d 1041 [1988]; Matter of Neptune Assoc. v Consolidated Edison Co. of N.Y., 125 AD2d 473, 474 [2d Dept 1986]; see also Transportation Corporations Law § 11 [3]).

Contrary to petitioner's related contention, petitioner has “wholly fail[ed] to establish that the ․ public purpose in this case is ‘merely incidental to the private benefits arising from the condemnation’ ” (JHK Dev., LLC, 233 AD3d at 1499). Instead, we conclude that “the finding of public [purpose] is not vitiated merely by reason of the fact that [National Grid] may experience a private ․ benefit from the acquisition of the subject property[ and property rights inasmuch as any] such private gain is merely incidental to the primary public purpose to be served by the proposed [condemnation]” (Neptune Assoc., 125 AD2d at 474; cf. Syracuse Univ., 71 AD3d at 1434-1435).

Petitioner further contends that the proposed condemnation is excessive and not necessary. We reject that contention. “While it is well established that a condemnor cannot take, by use of the power of eminent domain, property not necessary to fulfill the public purpose, it is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill that purpose” (Matter of Eisenhauer v County of Jefferson, 122 AD3d 1312, 1313 [4th Dept 2014] [internal quotation marks omitted]). The record here establishes that the scope of the proposed condemnation is “necessary to [National Grid's] continued performance of its public duty to provide safe and efficient transmission of electrical power” without injurious interference with its facilities and is “inextricably intertwined with the carrying out of [National Grid's] broader public function” (Neptune Assoc., 125 AD2d at 475; see generally Transportation Corporations Law § 11 [3-a]). Moreover, petitioner's assertion that the proposed taking denies it access to the marina or otherwise effectively terminates its business is unsupported by the record. To the contrary, the terms of the proposal would improve safety at the marina by replacing one distribution line with an underground cable and raising another distribution line and would specifically preserve petitioner's right of ingress and egress upon and across the premises to operate the marina. We thus conclude on this record that petitioner has not met its burden of demonstrating that National Grid abused its considerable discretion in determining the scope of the taking (see Matter of Penney Prop. Sub Holdings LLC v Town of Amherst, 220 AD3d 1169, 1172 [4th Dept 2023], appeal dismissed 41 NY3d 969 [2024]).

Next, contrary to petitioner's contentions, the record establishes that National Grid's notice complied with the requirements of EDPL 202 (A) (see Carr, 225 AD3d at 1237-1238; Matter of Kaufmann’s Carousel v City of Syracuse Indus. Dev. Agency, 301 AD2d 292, 302 [4th Dept 2002], lv denied 99 NY2d 508 [2003]) and that the public hearing was properly conducted pursuant to the requirements of EDPL 201 and 203 (see Matter of Bowers Dev., LLC v Oneida County Indus. Dev. Agency, 224 AD3d 1240, 1242 [4th Dept 2024], lv denied 42 NY3d 904 [2024], cert denied — US —, 145 S Ct 1428 [2025]; Matter of Court St. Dev. Project, LLC v Utica Urban Renewal Agency, 188 AD3d 1601, 1604 [4th Dept 2020]; see generally Matter of City of Mechanicville v Town of Halfmoon, 23 AD3d 897, 898 [3d Dept 2005]).

Petitioner's additional contention that National Grid violated a posthearing requirement of EDPL 203 by making copies of the hearing record available at the office of National Grid's counsel located in Buffalo rather than at its principal office located in Syracuse is not properly before us because petitioner failed to raise that issue when National Grid announced at the hearing that copies of the hearing record would be available at that office location as well as at the Erie County Clerk's Office (see generally Matter of HBC Victor LLC v Town of Victor, 225 AD3d 1254, 1257 [4th Dept 2024], lv denied 42 NY3d 901 [2024]; Matter of River St. Realty Corp. v City of New Rochelle, 181 AD3d 676, 678 [2d Dept 2020]). In any event, we agree with National Grid that petitioner was not prejudiced by National Grid's decision to make copies of the hearing record available at an office in nearby Buffalo rather than in Syracuse, and thus any error does not require annulment of the determination (see Matter of Niagara Falls Redevelopment, LLC v City of Niagara Falls, 218 AD3d 1306, 1310 [4th Dept 2023], appeal dismissed 40 NY3d 1059 [2023], lv denied 42 NY3d 904 [2024]; Matter of Huntley Power, LLC v Town of Tonawanda [proceeding No. 2], 217 AD3d 1325, 1326-1327 [4th Dept 2023], appeal dismissed 40 NY3d 1058 [2023], lv denied 42 NY3d 904 [2024]).

Contrary to petitioner's contention, we agree with National Grid that its determination sufficiently specified “the public use, benefit or purpose to be served by the proposed public project,” “the approximate location for the proposed public project and the reasons for the selection of that location,” and “the general effect of the proposed project on the environment and residents of the locality” (EDPL 204 [B] [1]-[3]; see Niagara Falls Redevelopment, LLC, 218 AD3d at 1309; First Broadcasting Corp. v City of Syracuse, 78 AD2d 490, 496-497 [4th Dept 1981], appeal dismissed 53 NY2d 939 [1981]).

Petitioner's further contention that National Grid violated EDPL article 3 is beyond the scope of our review (see EDPL 207 [C] [3]; Carr, 225 AD3d at 1237; Neptune Assoc., 125 AD2d at 475). We therefore do not address it.

Finally, we have considered petitioner's remaining contentions and conclude that none warrants annulment of the determination.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court