MOLLY INC v. COUNTY OF ONONDAGA

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

Matter of MOLLY, INC., and Murbro Parking, Inc., Petitioners, v. COUNTY OF ONONDAGA, Respondent.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., GREEN, PINE, HURLBUTT, AND KEHOE, JJ. Hiscock & Barclay, LLP, Buffalo (Mark R. Mc Namara of counsel), and De Francisco Law Firm, Syracuse, for Petitioners. Hancock & Estabrook, LLP, Syracuse (James S. Skloda of counsel), for Respondent.

 Petitioners commenced this original proceeding pursuant to EDPL 207 to challenge the resolution of respondent to acquire a 2.4-acre parcel owned by petitioner Molly, Inc. and operated as a parking lot by petitioner Murbro Parking, Inc. Contrary to the contention of petitioners, the proposed taking does not unconstitutionally limit their right to just compensation.   We agree with respondent that the $2,100,000 figure in the resolution should be read as an offer of payment pursuant to EDPL 303 and that petitioners “may accept the offer as payment in full * * * or reject the offer as payment in full and elect to accept the offer as an advance payment, thereby reserving the right to claim additional compensation” (ERA Realty v. State of New York, 281 A.D.2d 388, 388, 721 N.Y.S.2d 273, lv. denied 98 N.Y.2d 603, 745 N.Y.S.2d 502, 772 N.E.2d 605).

 Also contrary to petitioners' contention, the proposed taking is not in excess of what is necessary to effect the purported public purposes.   The record supports respondent's determination that a suitable hotel developer would require the entire parcel, and thus respondent “made the required showing that the taking ‘ “is rationally related to a conceivable public purpose” ’ ” (Matter of Ranauro v. Town of Owasco, 289 A.D.2d 1089, 1090, 735 N.Y.S.2d 332, quoting 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).

 Finally, we reject the contention of petitioners that respondent's failure to prepare a supplemental environmental impact statement (EIS) violates article 8 of the Environmental Conservation Law (State Environmental Quality Review Act [SEQRA] ).   Once an agency issues its final environmental impact statement (FEIS) for a given project, “[t]he SEQRA regulations * * * provide [in relevant part] that the ‘lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from * * * a change in circumstances related to the project’ ” (Roosevelt Islanders for Responsible Southtown Dev. v. Roosevelt Is. Operating Corp., 291 A.D.2d 40, 52, 735 N.Y.S.2d 83, lv. denied 97 N.Y.2d 613, 742 N.Y.S.2d 606, 769 N.E.2d 353).   Because the original project proposal considered in the 1989 draft EIS and the FEIS included a hotel development, the determinative issue herein is whether environmental conditions relating to the hotel development changed since 1989 such that a supplemental EIS was required.   The record establishes that respondent hired an engineering firm to review the 1989 studies and advise it on the need for a supplemental EIS. That firm's report to respondent concluded that conditions have not become worse since 1989 and may in fact have improved.   We therefore conclude that respondent did not violate SEQRA in determining that a supplemental EIS was not required.

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

MEMORANDUM: