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

1275
OP 13-00836
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF GM COMPONENTS HOLDINGS, LLC,
PETITIONER,

                    V                             MEMORANDUM AND ORDER

TOWN OF LOCKPORT INDUSTRIAL DEVELOPMENT
AGENCY, RESPONDENT.


BOND, SCHOENECK & KING, PLLC, SYRACUSE (BRODY D. SMITH OF COUNSEL),
FOR PETITIONER.

JONES, HOGAN & BROOKS, LLP, LOCKPORT (MORGAN L. JONES, JR., 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 condemn 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, GM Components Holdings, LLC (GMCH),
commenced this original proceeding pursuant to EDPL 207 seeking to
annul the determination of respondent, Town of Lockport Industrial
Development Agency (LIDA), authorizing the condemnation of 91 acres of
vacant land owned by GMCH for the purpose of expanding LIDA’s
industrial park. It is undisputed that the parties had been
unsuccessful in negotiating an agreement for LIDA’s purchase of the
subject property. LIDA determined that a public purpose would be
served by increasing its inventory of industrial-zoned sites available
for sale to potential purchasers/developers, particularly sites of 25
or more acres, thereby providing jobs for residents of the area and a
broader tax base for the Town of Lockport. With respect to the
required review of the environmental impact of the proposed
condemnation pursuant to the State Environmental Quality Review Act
([SEQRA] ECL article 8; see EDPL 207 [C] [3]), LIDA issued a negative
declaration based upon its determination that the acquisition of the
property would not result in a negative impact on the environment.
GMCH contends, inter alia, that LIDA’s determination that the
acquisition would serve a public use is illusory because potential
developers have the option to purchase the property from GMCH. GMCH
further contends that LIDA failed to comply with SEQRA because it
improperly segmented the review by considering only the acquisition,
                                 -2-                          1275
                                                         OP 13-00836

and not the future development, of the parcel.

     It is well settled that the scope of our review of LIDA’s
determination is “very limited” (Matter of City of New York [Grand
Lafayette Props. LLC], 6 NY3d 540, 546). We must “ ‘either confirm or
reject [LIDA’s] determination and findings,’ and [our] review is
confined to whether (1) the proceeding was constitutionally sound; (2)
[LIDA] had the requisite authority; (3) its determination complied
with SEQRA and EDPL article 2; and (4) the acquisition will serve a
public use” (id.; see EDPL 207 [C]). “The burden is on the party
challenging the condemnation to establish that the determination ‘was
without foundation and baseless’ . . . Thus, ‘[i]f 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’ ” (Matter of Butler v Onondaga County
Legislature, 39 AD3d 1271, 1271-1272).

     Addressing first the public use factor, we note that, in support
of its determination authorizing the condemnation, LIDA found that
since the creation of the 201-acre industrial park in 1981 it has
assisted 30 businesses, accounting for investments totaling
$399,164,000 and employment of 491 area residents. LIDA also found
that as of early 2013 there were only 56 acres of vacant land in the
industrial park and only 33 acres thereof were suitable for sale and
development, with the single largest parcel measuring 14 acres total.
Since 2008, LIDA has conducted five sales, including a total of 42
acres to Yahoo! in 2009 and 2012. LIDA also found that the property,
which is bordered by a state highway and a railroad, is in proximity
to the industrial park and is zoned for industrial use. We therefore
conclude that LIDA’s determination to exercise eminent domain power
“is rationally related to a conceivable public purpose” (Matter of
Kaufmann’s Carousel v City of Syracuse Indus. Dev. Agency, 301 AD2d
292, 303, lv denied 99 NY2d 508 [internal quotation marks omitted];
cf. Matter of Syracuse Univ. v Project Orange Assoc. Servs. Corp., 71
AD3d 1432, 1434-1435, appeal dismissed and lv denied 14 NY3d 924).

     We conclude with respect to the statutory compliance factor that,
contrary to GMCH’s contention, LIDA “identified the relevant areas of
environmental concern, took a hard look at them, and made a reasoned
elaboration of the basis for its determination” that there would be no
negative impact on the environment as a result of the acquisition of
the property (Matter of Eadie v Town Bd. of Town of N. Greenbush, 7
NY3d 306, 318 [internal quotation marks omitted]; see Matter of New
York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337,
348). Although LIDA considered only the impact of the acquisition and
not the impact of potential development, we reject GMCH’s contention
that LIDA thereby improperly segmented the SEQRA review process (see 6
NYCRR 617.2 [ag]). Although LIDA intends to sell the property to a
potential developer, there was no identified purchaser or specific
plan for development at the time the SEQRA review was conducted (cf.
Matter of Riverso v Rockland County Solid Waste Mgt. Auth., 96 AD3d
764, 765-766; Matter of Forman v Trustees of State Univ. of N.Y., 303
AD2d 1019, 1019-1020), and thus we conclude that under these facts the
                                 -3-                          1275
                                                         OP 13-00836

acquisition is not a “separate part[] ‘of a set of activities or
steps’ in a single action or project” (Matter of Settco, LLC v New
York State Urban Dev. Corp., 305 AD2d 1026, 1027, lv denied 100 NY2d
508; see Matter of Village of Tarrytown v Planning Bd. of Vil. of
Sleepy Hollow, 292 AD2d 617, 620-621, lv denied 98 NY2d 609; see
generally Matter of Center of Deposit, Inc. v Village of Deposit, 90
AD3d 1450, 1453). We have reviewed GMCH’s remaining contentions and
conclude that they are without merit. We therefore conclude that GMCH
failed to sustain its burden of establishing that the determination of
LIDA to condemn the parcel is “without foundation and baseless”
(Butler, 39 AD3d at 1272).




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
