Victor, New York is a town in the Finger Lake district. The Town commenced a condemnation proceeding to take a 90,000 square foot anchor store that used to be occupied by Lord & Taylor in the Eastview Mall.
But, a Judge determined that the Town of Victor did not present a sufficient plan for the use of the space.
The newspaper reports are not clear who the Judge was or what Court rendered the decision.
Normally, to challenge a proposed taking, one has to file a Petition pursuant to Section 207 of the Eminent Domain Procedure Law directly in the Appellate Division. Challenging a condemnation upon the presentation of a Petition to condemn in Supreme Court is limited.
Filing an Answer to Petition to Condemn
EDPL § 402(B)(4) authorizes the filing of an Answer. It is clear that a condemnee cannot file an Answer to raise any point that should have been addressed in a challenge to the “Determination and Findings” pursuant to EDPL § 207.
As set forth by Justice Abraham Gerges in Matter of New York State Urban Dev. Corp. (Atlantic Yards Land Use Improvement & Civic Project), 26 Misc3d 1228(A) (Kings Co. Sup. Ct. 2010),
“In interpreting these provisions, it has been held that “[t]he role of a trial court on an application pursuant to EDPL § 402(B) is limited and circumscribed, and the trial court is required to grant the Petition if all the procedural requirements have been met” (Matter of MTA, 15 Misc. 3d 1107[A], 836 N.Y.S.2d 500, 2007 NY Slip Op 50541[U] [New York Co Sup Ct 2007], citing City of Buffalo Urban Renewal Agency v Moreton, 100 AD2d 20, 473 N.Y.S.2d 278 ). In discussing the scope of review in an EDPL Article 4 proceeding, it has been held that: EDPL 402 (B) (5) provides that, upon the return date of the petition, upon . . . proof to its satisfaction that the procedural requirements of this law have been met, the court shall direct the immediate filing and entry of the order granting the petition . . . Upon the filing of the order and the acquisition map, the acquisition of the property in such map shall be complete and title to such property shall then be vested in the condemnor” (emphasis added). Thus, it has been stated that [t]he power of the condemnation court to entertain claims raised by the pleadings in a condemnation proceeding is limited to matters of procedural compliance not within the scope of review by the Appellate Division of the Supreme Court (EDPL 207, 402[B])’ (Matter of UAH-Braendly Hydro Assoc. v RKDK Assoc., 138 AD2d 493, 493, 526 N.Y.S.2d 122 ). On the return of an application for permission to file an acquisition map and for an order to acquire the property . . ., the court must grant the petition if it finds that all of the procedural requirements of the statute have been met’ (City of Buffalo Urban Renewal Agency v Moreton, 100 AD2d 20, 22, 473 N.Y.S.2d 278 ; see Matter of County of Dutchess v Kendall, 130 AD2d 491, 492, 514 N.Y.S.2d 1012 ).”
It would appear that the Town of Victor did not sufficiently show that the taking was for a public use.
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