Proceeding initiated in this Court pursuant to EDPL 207 to review a determination of respondent Town Board of the Town of Colonie which condemned a portion of petitioner’s property to extend a public highway.
On February 28, 2000, respondent Town Board of the Town of Colonie passed resolutions finding that acquisition of petitioner’s property located at 705 Troy-Schenectady Road, in the Town of Colonie, Albany County, by eminent domain would benefit the public through enhanced traffic flow and safety, and declaring that the project was an unlisted action under the
The underlying facts are as follows. As early as 1973, the proposed extension of Wade Road from Troy-Schenectady Road to Forts Ferry Road was considered desirable to enhance traffic flow and to promote commercial development. Studies conducted in 1991, 1995, 1997 and 1998 identified the traffic flow and safety problems associated with the general area where Wade Road and North Wade Road intersected Troy-Schenectady Road, and suggested that extending Wade Road in conjunction with altering the intersection of North Wade Road could alleviate many of the traffic flow and safety problems identified. As the result of the proposal for various commercial developments in this vicinity, the Town determined to acquire land to build the needed extension of Wade Road. As a direct result, on November 18, 1999, the Town entered into a contract to purchase petitioner’s property for the sum of $400,000 and agreed to cooperate with petitioner by making the consideration for the sale available so that petitioner could effect a like-kind-exchange to satisfy the requirements of the Internal Revenue Code. When petitioner failed to complete the proposed sale, the Town Board commenced the eminent domain proceedings which are the subject of this litigation.
As a preliminary matter, respondents’ contention that the instant proceeding was not timely commenced is meritless. EDPL 207 (A) requires that judicial review be instituted within 30 days after the condemnor’s completion of the publication of its determination and findings. Since respondents did not satisfy the publication requirements by publishing in at least two successive issues of the official newspaper (see EDPL 207 [A]), publication has never been completed and the 30-day period in which to seek judicial review has never commenced.
Next, we are unpersuaded by petitioner’s contention that the Town’s use of eminent domain was simply an attempt to eliminate his adult business from the municipality. There is absolutely no record evidence to support this contention. The Town’s first identification of the traffic and safety issues of these intersections predates petitioner’s ownership of his property by several years. Moreover, the record reveals that the Town’s zoning ordinances do not contain a ban on adult businesses, that petitioner has failed in his attempts since 1999 to find what he considers a suitable location for his business, and the sales contract anticipates the continuation of petitioner’s adult business.
Further, we reject petitioner’s claim that the Town has exercised its power of eminent domain in bad faith. To support this contention, petitioner argues that the Town had a contractual obligation to assist petitioner in finding a suitable alternative location for his adult business within the municipality. In our view, this contention finds no support either in the contract of sale or respondents’ conduct throughout the relevant time period. Likewise, petitioner’s efforts to effect a modification of the sales agreement by making alternative proposals to the Town Board in an effort to avoid the use of eminent domain does not support his claim of bad faith. Petitioner has the burden of establishing that the Town’s exercise of the power of eminent domain was without foundation and baseless and he has utterly failed to come forward with any such evidence (see Matter of Broadway Schenectady Entertainment v County of Schenectady,
Petitioner asserts that as part of the condemnation hearings, the Town failed to meet its obligations under SEQRA by failing to take a “hard look” at the environmental impacts of the project and by failing to consider the project against the background of a long-range plan for development of the area. Unlisted actions, such as are present here, do not require the completion of an environmental impact statement when the lead agency determines that the action will not have adverse environmental impacts or that an identified environmental impact will not be significant (see 6 NYCRR 617.4, 617.7 [a] [2]; Matter of Board of Coop. Educ. Servs. of Albany-Schoharie-Schenectady-Saratoga Counties v Town of Colonie, supra at 839). As long as the condemning authority identifies the relevant areas of environmental concern, takes a hard look at them, and gives a reasoned elaboration for the basis for its determination, its SEQRA determination will not be disturbed (see Matter of Board of Coop. Educ. Servs. of Albany-Schoharie-Schenectady-Saratoga Counties v Town of Colonie, supra at 840). Here, the Town of Colonie Planning Board was the lead agency and provided to the Town Board, after review of all available information including the short form environmental assessment, its recommendation that a finding of no significant effect on the environment by the project be made. Moreover, the record is clear that the Town Board conducted a number of public hearings in which it addressed environmental concerns, considered other environmental studies prepared in conjunction with commercial development in the area (which studies encompassed the environmental impact of the proposed highway project), and ordered additional studies despite the existence of similar studies in the past.
We conclude that the activities of the Planning Board and the Town Board with respect to the environmental impact of the proposed project met all of the criteria necessary to comply with the requirements of SEQRA and the basis for its recommendations were fully incorporated into the Town Board’s resolutions with respect thereto. Accordingly, we find no reason to disturb the Town Board’s determination that the proposed project would have no significant effect on the environment. Likewise, we conclude that respondents had no
Finally, petitioner urges that respondents exceeded their authority under eminent domain by condemning the entirety of his property. 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 (see Hallock v State of New York,
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Adjudged that the determination is modified, without costs, by limiting respondents’ use of the power of eminent domain to taking only that portion of petitioner’s property necessary to the construction of the Wade Road extension; petition granted to that extent; and, as so modified, affirmed.