        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1026.2
OP 11-01202
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.


IN THE MATTER OF H.H. WARNER, LLC, PETITIONER,

                    V                             MEMORANDUM AND ORDER

ROCHESTER GENESEE REGIONAL TRANSPORTATION
AUTHORITY, RESPONDENT.


HISCOCK & BARCLAY, LLP, ROCHESTER (JAMES S. GROSSMAN OF COUNSEL), FOR
PETITIONER.

BOND, SCHOENECK & KING, PLLC, ROCHESTER (KATHLEEN M. BENNETT OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to EDPL 207 (initiated in the Appellate
Division of the Supreme Court in the Fourth Judicial Department) to
annul a determination of respondent to acquire certain real property
by eminent domain.

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

     Memorandum: Petitioner commenced this proceeding pursuant to
EDPL 207 seeking to annul the determination to condemn three of its
parcels in downtown Rochester, which are currently parking lots, for
use as a regional and intercity bus transit center. Petitioner
challenges only whether, pursuant to EDPL 207 (C) (3), respondent’s
determination and findings “were made in accordance with procedures
set forth in” the State Environmental Quality Review Act ([SEQRA] ECL
art 8). As a preliminary matter, we reject respondent’s contention
that the challenge to the SEQRA determination is untimely. Although
the amended negative declaration was issued on June 8, 2010,
respondent’s determination to condemn the property was not made until
May 5, 2011. A proceeding under EDPL 207 must be commenced within 30
days “after the condemnor’s completion of its publication of its
determination and findings pursuant to [EDPL 204]” (EDPL 207 [A]), and
it is undisputed that petitioner commenced this EDPL proceeding in a
timely manner. EDPL 207 (C) (3) was amended in 1991 explicitly to
allow courts to review a SEQRA determination in the context of a
proceeding to challenge a determination to condemn property. The
statute does not require that a separate CPLR article 78 proceeding
must have been commenced in order to challenge an earlier SEQRA
determination; in fact, “[t]he 1991 amendment was intended to permit a
reviewing court to pass on both the EDPL issues and the SEQRA issues
in one proceeding[,] thereby facilitating prompt review and conserving
                                 -2-                          1026.2
                                                         OP 11-01202

judicial resources” (Matter of East Thirteenth St. Community Assn. v
New York State Urban Dev. Corp., 84 NY2d 287, 297).

     On the merits, we agree with respondent that it “identified the
relevant areas of environmental concern, took a ‘hard look’ at them,
and made a ‘reasoned elaboration’ of the basis for its determination”
(Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400,
417; see Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1, 7;
Matter of Gyrodyne Co. of Am., Inc. v State Univ. of N.Y. at Stony
Brook, 17 AD3d 675, 676, lv denied 5 NY3d 716). Respondent’s
determination was not affected by an error of law, nor was it
arbitrary or capricious or an abuse of discretion (see generally
Matter of Town of Dryden v Tompkins County Bd. of Representatives, 78
NY2d 331, 333). Contrary to petitioner’s contention, respondent
renewed and updated its SEQRA review once the scope of the project
decreased, and it considered alternative locations for the project.
In addition, while the decreased scope of the project would not
provide the same economic revitalization to the downtown area in
question as would have the initial proposed project, respondent
appropriately considered that factor in its SEQRA review. In
reviewing a SEQRA determination, the role of the courts is not to
“weigh the desirability of any action or choose among alternatives,
but to assure that the agency itself has satisfied SEQRA, procedurally
and substantively” (Jackson, 67 NY2d at 416), and we conclude that
respondent satisfied the procedural and substantive requirements of
SEQRA herein.




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
