Matter of City of New York

[*1] Matter of City of New York 2005 NY Slip Op 50195(U) Decided on February 17, 2005 Supreme Court, Kings County Gerges, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 17, 2005
Supreme Court, Kings County

In the Matter of the Application of the City of New York relative to acquiring title in fee simple, where not heretofore acquired for the West Bushwick Urban Renewal Area, Phase 2.



35057/04

Abraham Gerges, J.

claimants 534 Bushwick Realty Corp. (Realty Corp.), Sound and Security, Inc. (Sound and Security), Leustrio Mora (Mora), The Church of Prophecy of God (the Church), and Zev Zafir, Inc. (Zafir) (collectively referred to as movants), move for an order: (1) deeming the subject project abandoned due to the failure of the City of New York (the City) to acquire the property within three years of completion of the procedure which constituted the basis of the exemption under Eminent Domain Procedure Law (EDPL) § 206; and (2) an order dismissing the petition due to the City's alleged failure to adhere to the procedural prerequisites set forth in the Uniform Land Use Review Procedure (ULURP) and EDPL 402 (B).

Facts and Procedural Background

This proceeding involves the proposed condemnation of certain property located at Block 3137, Lots 1, 6, 9 and 11; Block 3151, Lots 1, 2, 3, 5, 6, 8, 64, 65, 66, 67, 68, 69 70, and part of lot 59, by the City for urban renewal purposes. The proposed West Bushwick Urban Renewal Area is generally bounded by Flushing, Evergreen and Bushwick Avenues and Jefferson Street and consists of 51 tax lots and 13 privately owned properties. By amended notice of petition, the City sought a judgment authorizing it to file an acquisition [*2]map in the office of the Clerk of Kings County or the Office of the City Register; directing that upon the filing of said map, title to the subject property shall vest in the City; providing that just compensation therefore be ascertained and determined by the court; and providing that notices of claim must be served within one calendar year from the vesting date.

In support of its petition, the City alleges that pursuant to Sections 8 and 381 of the New York City Charter (the Charter), the City is authorized to acquire title in fee to real property or any interest therein required for public use. Pursuant to Sections 197 - c and 197 - d of the Charter and Article 15 of the General Municipal Law, the West Bushwick Urban Renewal Project (the Project or the Plan) and the acquisition of the subject property were approved by the City Planning Commission on August 22, 2001 (Calendar No. 25, C -010593) (the Planning Resolution); the City Council on October 12, 2001 (Resolution No. 2069) (the City Counsel Resolution); and the Office of the Mayor on October 23, 2001 (Calendar No. 15). On December 31, 2001, the Deputy Mayor approved the acquisition of title in fee simple to the subject property by Certificate No. 8259 and ordered the Corporation Counsel to institute acquisition proceedings.

The West Bushwick Urban Renewal Area condemnation proceeding for phase one of the Plan was commenced on April 4, 2003, seeking to acquire title to Block 3145, Lot 5 (Index No. 12643/03). This proceeding was commenced on October 25, 2004.

Thereafter, movants filed answers in which each sought dismissal of petition, based upon the affirmative defenses that: (1) the court lacks personal jurisdiction over respondents in that service was not properly made under the CPLR; (2) the Statute of Limitations; (3) failure to state a cause of action; (4) the proposed condemnation is violative of respondents' right to due process under the Constitutions of the United States and the State of New York; (5) the current use of providing housing to multiple families confers a greater public benefit than the proposed use contemplated by the petition; (6) the proposed use does not contemplate a public use; (7) the proposed taking is instituted without having provided respondents with any previous notice of the intention to condemn their property; (8) the proposed taking is being attempted without having provided the necessary public hearings on the necessity of condemning respondents' property; and (9) petitioner has no predicate for bringing this action in that it has not followed the procedures found in the relevant statutes and administrative guidelines, along with its own rules and regulations.

The affirmative defenses as interposed by each respondent are virtually identical,[FN1] except that in their answers, the Church and Mora further particularize the Statute of Limitations defense. Therein, these claimants allege that petitioner did not commence the instant proceeding under the EDPL within the time limits set forth in EDPL 401 (A); that no exception as set forth in EDPL 401 (B) is applicable; that there is no allegation in the petition that the subject property was to be acquired in stages, so that the provisions of EDPL 401 (C) [*3]do not apply; and that the proceeding must be dismissed as time barred, since the time for commencing the instant proceeding expired no later than October 12, 2004.

In its reply, the City argues that each of the affirmative defenses that is interposed is lacking in merit, so that the answers should be stricken and the relief sought in the petition should be granted.[FN2] In its reply to the answers of both the Church and Mora, the City also claims that because the property is being acquired in stages, the applicable Statute of Limitations is 10 years in accordance with EDPL 401 (C).

The City also submits an affidavit from Vito J. Lopez, the New York State Assemblyman representing the Bushwick area of Brooklyn, in which he alleges that he supports the Plan. More specifically, Lopez asserts that the Plan will create much needed new housing, commercial spaces, open space and community facilities in an area that is grossly under-built. Lopez further alleges that if the preferred developer for this stage of the Plan is to be able to submit its request for funds to the New York State Division of Housing and Community Renewal by February 28, 2005, he is confident that the phase will be funded; the developer, however, cannot submit its application until the City can verify that it has title to the property. Since the funds may be lost and the application process brought to a halt, at least until February 2006, if title does not vest in the City prior to February 28, 2004, Lopez accordingly urges the court to sign the proposed condemnation order at the earliest possible date.

During oral argument on January 21, 2004, in response to the City's claim that the proceeding was timely pursuant to EDPL 401 (C), movants sought leave to make a motion seeking to dismiss the petition on Statute of Limitations grounds. A schedule for the service of papers was established and the instant motion followed.

Movants' Contentions

In support of their motion, movants argue that pursuant to EDPL 402 (B) (5), the court must be satisfied that petitioner performed all necessary procedural prerequisites before the petition can be granted. Pursuant to EDPL 401 and 402, petitioner is required to provide timely notice of the administrative procedure mandated by Article 2 of that statute. Further, in accordance with EDPL 401 (B), proceedings to acquire property by eminent domain must be commenced within three years of the completion of the procedure which constitutes the exemption under EDPL 206 or the project shall be deemed abandoned. In this regard, movants argue that the City has conceded that the Statute of Limitations started to run on October 12, 2001. Hence, since the petition at issue herein was not filed until October 25, 2004, the proceeding must be dismissed as time barred.

Movants further argue that the City's contention that it comes under the exception set forth in EDPL 401 (C), i.e. that the properties which it seeks to condemn were meant to be acquired in stages, so that the City has the benefit of a ten-year Statute of Limitations, is [*4]without merit since such intent was not articulated during the approval process. More specifically, when the proposed Plan was considered by the City Planning Commission, there was no mention of an intention to acquire the subject property in stages. Similarly, the final revised Plan filed immediately prior to the Commission's determination did not indicate such an intention. Thus, the catch-all phrase in the City Council Resolution expressing the desirability of developing the Project in stages should not serve to so recast the Project. Further, movants argue that to be entitled to the benefit of the ten-year Statute of Limitations, the City "must be able to justify the claim that circumstances compel the need for an extended period within which to acquire the property;" since the funds for the acquisition were in the City's capital funds in the year 2001, there was nothing that prevented the City from acquiring the property at any time up until October 12, 2004, or within the three-year Statute of Limitations set forth in EDPL 401 (A).

In addition, movants contend that the City has failed to establish that it complied with EDPL 204 and 206 (A) by complying with the procedures mandated by the Charter.

The City's Contentions

In opposition, the City alleges that the petition to acquire the property in the first phase of the Project was filed on April 4, 2003, well within the three-year Statute of Limitations set forth in EDPL § 401 (A). The instant petition was filed on October 25, 2004, well within the ten-year period set forth in EDPL § 401 (C). The City therefore concludes that the ten-year Statute of Limitations set out in EDPL 401 (C) is applicable here, so that the proceeding is not time barred.

The City further argues that its review of the proposed Project under the ULURP is permissible in accordance with EDPL 401 (A) and that it properly followed the notice requirements mandated thereunder and pursuant to General Municipal Law § 504. Having complied with the prerequisites of the statutes and the Charter, the City was not required to comply with the notice requirements of article 2 of the EDPL. The City further argues that there is no requirement in the EDPL, the General Municipal Law or the Charter that requires it to state that the land for the Project would be acquired in stages.

In reliance upon an affidavit submitted by Jack Hammer, the Director of Project Implementation for the New York City Department of Housing and Development (HPD), the City also explains that since the implementation of an urban renewal plan is extremely complex, requiring the scheduling of dozens of factors, including financing, relocation, demolition, design, construction, etc., "it is the usual practice of HPD not to state in its application whether the property required for the purpose is to be taken at one time or piecemeal" [emphasis in original], since the factors cannot be predicted until the project is actually undertaken. The City also points to the legislative history of EDPL 401, wherein it was noted that the exception to the three-year Statute of Limitations was requested in the Governor's veto message, since the Governor recognized that municipalities often acquired property in stages (see 1974 Report of the State Commission on Eminent Domain and the Real Property Tax Assessment Review, p 30). [*5]

The City further contends that it can explain the need to acquire the subject property in stages. More specifically, on December 31, 2001, HPD received authorization from the Mayor's Budget Office to charge whatever money was needed for "acquisition, relocation, demolition and clearance" to the City Capital Budget funds (Capital Project HD 157/806-271). HPD was advised, however, that there were only sufficient funds to acquire a portion of the area needed for the Project and that the balance would be made available at a later time. HPD accordingly requested that the Law Department institute Phase I of the condemnation proceedings so that that portion of the Plan that was funded could be implemented; that the taking was to be done in stages was made clear in the required newspaper publication.

Finally, the City argues that movants challenge to the City's compliance with the "underlying administrative pre-requisites" is governed by CPLR article 78. Pursuant to CPLR 217, an article 78 proceeding must be commenced within four months of the final determination at issue. The City further avers that the date that the instant determination became final is either October 12, 2001, the date of the City Council Resolution approving the Project, or October 23, 2001, the date on which the Mayor approved the Plan. Hence, since movants' challenge to the proceedings was not interposed until the instant motion was served on February 4, 2005, it is time barred.

Movants' Challenge to the Administrative Review Procedure

The Law

Pursuant to EDPL 206 (A), a condemnor is exempt from compliance with the provisions of article 2 of the EDPL when: "pursuant to other state, federal, or local law or regulation it considers and submits factors similar to those enumerated in subdivision (B) of section two hundred four, to a state, federal or local governmental agency, board or commission before proceeding with the acquisition and obtains a license, a permit, a certificate of public convenience or necessity or other similar approval from such agency, board, or commission."

As is relevant herein, the approval process for the acquisition of the subject property was conducted in accordance with the ULURP (see New York City Charter, §§ 197-c [a] [8] and [11])[FN3] and the General Municipal Law (see General Municipal Law §§ 504 and 505).[FN4] [*6]

Inasmuch as the Project now before the court is one for urban renewal, the City Council is required to review the proposed project pursuant to ULURP § 197 - d (b) (1)[FN5]. [*7]Further, in accordance with ULURP § 197 - d (e), the City Council is required to file its approval with the Mayor.[FN6] In addition, the City must also comply with General Municipal Law §§ 504 and 505. Pursuant to § 504, an urban renewal site must be approved by the governing body.[FN7] Pursuant to § 505, the governing body must hold a hearing on the urban renewal plan,[FN8] it must pass a resolution approving the plan,[FN9] and the City Council must file [*8][*9]its approval with the Mayor.[FN10]

The Procedure Followed

In support of its contention that the procedures followed with regard to the subject taking are in compliance with the ULURP and the General Municipal Law, the City relies upon the Planning Resolution, the City Council Resolution and the Mayor's Resolution. In the Planning Resolution, the City recites that the Project was reviewed pursuant to the ULURP, the New York State Environmental Quality Review Act (SEQRA), NYCRR § 617.00 et. seq., the New York City Environmental Quality Review Rules and Executive Order No. 91 of 1977. The Resolution further states that after a study of potential impact of the action, a Negative Declaration was issued on April 27, 2001. The Resolution continues, reciting that HPD, as the lead agency, filed an application with the Department of City Planning, which application was certified as complete on May 7, 2001 and was duly referred to Community Board 4 and the Borough President (see ULURP Rules § 2 - 02 [a] [2]). The Community Board thereafter held a public hearing on June 20, 2001 and by a vote of 20 to 4, with one abstention, adopted a resolution recommending approval, "with the preservation for further modification of the thirteen (13) privately owned commercial and residential properties" (see ULURP Rules § 2 - 03 [a]). Similarly, the Borough President issued his recommendation on July 30, 2001, which recommendation was also subject to modifications, including modifications for parking (see ULURP Rules§ 2 - 04). Significantly, the Borough President also called upon HPD to "[w]henever practical, proceed with project phasing on properties that do not require relocation."

On July 25, 2001, the City Planning Commission scheduled a public hearing for the matter on August 8, 2001 (see ULURP Rules § 2-06 [a]). After hearing four speakers in favor of the Project and four in opposition thereto, the Planning Commission issued its Resolution approving the Plan. The Resolution also noted that the proposed actions would facilitate the construction of up to 460 sorely needed affordable housing units, that the proposed rezoning [*10]would facilitate revitalization and redevelopment of the underutilized area, and that the Plan had been revised to provide adequate parking. The Resolution further stated that HPD had stated, in a letter to the Chairman of the Planning Commission dated August 13, 2001, "'that the proposed phasing of development would have construction on some of the home ownership and multi-family sites nearing completion before the relocation process begins, thereby giving eligible owners an opportunity to relocate directly into the new development." In addition, the Resolution found that the Project will have no significant impact on the environment; is appropriate for the area; is in compliance with General Municipal Law § 502; is consistent with the Urban Renewal Plan for the West Bushwick II Urban Renewal Area, as adopted by the City Planning Commission on May 23, 1979; and is certified with unqualified approval pursuant to General Municipal Law § 505. The Resolution further recited that it was filed with the Office of the Speaker, City Council and the Borough President in accordance with Charter § 197 - d.

By Resolution dated October 12, 2001, the City Council recited that it held a public hearing on the Plan on October 1, 2001 (see Charter § 197 d [b] [1]). The Resolution also noted that the Planning Commission had filed its decision and report dated August 22, 2001, in which it certified that the Plan complies with the provisions of General Municipal Law § 502; that the Plan is subject to review pursuant to the ULURP and General Municipal Law §§ 504 and 505; conforms to the comprehensive community plan for the development of the municipality; and is consistent with local objectives. The Resolution further found that the action will have no significant effect on the environment; that the designation of the area was approved pursuant to General Municipal Law § 504; that pursuant to General Municipal Law § 505 (4): (1) the area was found to be substandard or insanitary or in danger of so becoming and tended to impair or arrest the sound growth and development of the municipality; (2) the financial aid to be provided to the municipality is necessary to enable the Project to be undertaken in accordance with the Plan; (3) the Plan affords maximum opportunity to private enterprise, consistent with the sound needs of the municipality as a whole; (4) the Plan conforms to a comprehensive community plan for the development of the community as a whole; (5) there is a feasible method for the relocation of families and individuals displaced from the area; and (6) the undertaking and carrying out of the urban renewal activities in stages is in the best public interest and will not cause any additional or increased hardship to the residents of the area.

The Mayor then held a public hearing on October 17, 2001, upon due notice published in The City Register and by resolution dated October 23, 2001, approved the Plan. The Resolution recited that HPD had submitted the Plan to the City Planning Commission, as is required pursuant to Section 197 - c and d of the Charter and General Municipal Law article 15, and that both the Planning Commission and City Council approved the Project, after having conducted the requisite public hearings. The Resolution further stated that after due consideration, he approved the Plan pursuant to Charter § 197 - d and General Municipal Law § 505 (5); approved the acquisition of the land and authorized the Corporation Counsel [*11]to institute condemnation proceedings for the acquisition of the land pursuant to General Municipal Law § 506 and Charter §§ 8, 197 -d, 381, 1802 (6) (e) and 1804; and authorized the Comptroller to pay the awards or amounts due under the purchase contracts for the acquisition of the property.



DiscussionApplying the above procedural requirements to the facts of this case, the City defendants made a prima facie showing that it properly relied upon the approval procedure set forth in the ULUPR and the General Municipal Law in lieu of the notice and hearing provisions in the EDPL, since the ULURP and General Municipal Law consider factors similar to those that must be considered in accordance with the EDPL (see Sanitation Garage Brooklyn Dist. 3 & 3a, 5 Misc 3d 1014A; Matter of City of New York [Lemon Creek/Sandy Brook and Waringin Ltd.], Kings County Index No. 2760/95 [1995]; see generally Rockland County Sewer Dist. No. 1 v J & J Dodge, 213 AD2d 409 [1995] [the condemnor county sewer district was exempt from the public hearing requirements of article 2 of the EDPL where, pursuant to another state law, the condemnor considered and submitted factors similar to those enumerated in the EDPL to a state agency before proceeding; the initial determination of whether a condemnor is exempt from compliance with the public hearing requirement of the EDPL should be raised in the proceeding that the condemnor must commence in supreme court for permission to acquire property and to file an acquisition map]).

The Statute of Limitations Governing Movants'

Challenge to the Administrative Review Proceedings

The Law

It is well settled that a challenge to an administrative determination such as that in issue herein is governed by CPLR article 78, which are subject to a four-month Statute of Limitations (CPLR 217). As a basic premise, the Statute of Limitations is triggered when the subject administrative body commits itself to "a definite course of future decisions" (Young v Board of Trustees, 89 NY2d 846, 848-849 [1996]; accord Stop-the-Barge v Cahill, 1 NY3d 218, 223 [2003] [an agency action is final when the decisionmaker arrives at a definitive position on the issue that inflicts an actual, concrete injury]). In applying this principle to a proceeding claiming an alleged failure to follow procedural requirements of the ULURP and the State Environmental Quality Review Act, the court held that the proceeding should have been commenced within four months of the resolution approving the site selection and zoning map change, which was the culmination of the allegedly illegal procedures that the petitioners sought to review and which resolution was then final and binding on them (Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480, 480-481 [1988]; see also Gach v City of Long Beach, 218 AD2d 801 [1995] [the four-month period of limitation under CPLR 217 was triggered on the date on which the City Council adopted the resolution which awarded the subject beach concession rental]; Metropolitan Museum [*12]Historic Dist. Coalition v De Montebello, 3 Misc 3d 1109A [2004] [a four-month statute of limitations applies to a claim that the City's approval of a project violated ULURP]).

Applying Charter § 197 - d (e) to the facts herein, the City's approval of the Project became final on October 17, 2001, or five days after the City Counsel approved the Plan, since the Mayor did not subsequently issue a disapproval (see n 6, infra). Applying General Municipal Law § 505 (5), the City's approval became final on October 23, 2001, the date on which the Mayor's Office approved the Plan [FN11] (see generally Throggs Neck Resident Council v Cahill, 290 AD2d 324 [2002] [findings pursuant to review under ULURP §§ 197- c and 197- d became final upon the expiration of a 20-day period for "call-up" to the City Council 20 days after the completion of the December 22, 1999 public hearings]; Roistacher v Council of New York, 199 AD2d 68 [1993], appeal denied 83 NY2d 754 [1994] [where petitioner challenged the June 24, 1992 actions by the City Planning Commission, which granted a special permit to increase the floor area ratio of respondent nursing home and approved the sale of City owned property for purposes of an enlargement of the nursing home, the determinations became final within 20 days of when the City Council declined to review these determinations pursuant to Administrative Code of City of New York § 197- d [b] [3]).

Utilizing either October 17, 2001 or October 23, 2001 as the date on which the City's approval became final, movants' challenge of the underlying administrative procedure is time barred, since they did not interpose their claim until they served their motion to dismiss the instant petition on February 4, 2004, more than four months after either date.[FN12]

[*13]Statute of Limitations Governing the City's

Commencement of the Condemnation Action

The Law

As is relevant herein, EDPL 401, time for acquisition, provides that: "(A) The condemnor may commence proceedings under this article to acquire the property necessary for the proposed public project up to three years after conclusion of the later of:

. . . "(2) the date of the order or completion of the procedure that constitutes the basis of exemption under section two hundred six,

. . . "(C) In the event property is to be acquired for a public project in stages, the condemnor after conducting a required public hearing for the entire project need not conduct additional hearings for subsequent stages, provided that proceedings under this article with respect to the property necessary for the first stage were commenced within such three year period and provided further, that all proceedings under this article with respect to property for the project are commenced within ten years from the dates hereinabove set forth in paragraphs one, two and three of subdivision (A)."

Thus, as is particularly relevant herein, EDPL 401 (C) enlarges the Statute of Limitations period to 10 years where a project is designated to be carried out in stages, provided that proceedings with respect to the property necessary for the first stage have been commenced within the initial three-year period (see Binghamton Urban Renewal Agency v Manculich, 67 NY2d 434, 438 [1986], reconsideration denied 68 NY2d 808 [1986]).

Discussion

If the court relies upon General Municipal Law § 505 (5) to determine the date of the City's final approval of the Project, this proceeding was timely commenced pursuant to EDPL 401 (A), since it was commenced within three years of October 23, 2001.[FN13] If the court relies [*14]upon Charter § 197 - d (e), however, since approval of the Project was final five days after the City Council's approval, or on October 17, 2001, this proceeding is time barred pursuant to EDPL 401 (A). While recognizing the discrepancy in the date of accrual caused by the inconsistent language employed in Charter § 197 - d (e) and General Municipal Law § 505 (5), the issue of which provision controls need not be resolved herein, since the court finds that the City is entitled to the benefit of the ten-year Statute of Limitations set forth in EDPL 401 (C).

In reaching this conclusion, it is first noted that the City filed the notice of petition, petition, and notice of pendency in what it designated as "Phase 1" of the Project on April 4, 2003, well within the three-year Statute of Limitations set forth in EDPL 401 (A). Since this Plan is being implemented in stages, pursuant to EDPL 401 (C), any successive stages of acquisition are timely if commenced within ten years from the date of final approval, without the need for additional public hearings, since the first stage was commenced was commenced within three years of the final determination. Commencement of this proceeding was clearly within this ten-year period. Accordingly, the instant proceeding is not time barred.

In so holding, the court rejects movants' assertion that the City's use of the term "Phase 1" in commencing the 2003 proceeding, instead of "Stage I," compels the conclusion that this proceeding is time barred. In view of the fact that movants fail to establish that the word "stage" as used in EDPL 401 (C) is a term of art, having a specific and ascertainable meaning, such a holding would exalt form over substance. Moreover, a review of the petition filed in Phase 1 in 2003 makes it clear that the City was seeking to acquire title to only one lot, or a small portion of the property that it specified it intended to take during the administrative review proceedings.

The court also finds movants' arguments with regard to the intent of EDPL 401 (C) to be unavailing. In this regard, it is well settled that where statutory language is clear and [*15]unambiguous, the court should construe the statute to give effect to the plain meaning of the words used ( see e.g. Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340, 345 [1982], citing Bender v Jamaica Hosp., 40 NY2d 560 [1976]; Matter of De Peyster, 210 NY 216 [1914]). "[W]hen, as here, a statute is free from ambiguity and its sweep unburdened by qualification or exception, we must do no more and no less than apply the language as it is written" (Zaldin v Concord Hotel, 48 NY2d 107, 113 [1979], citing People ex rel. New York Cent. & Hudson Riv. R. R. Co. v Woodbury, 208 NY 421, 424-425 [1913]; McKinney's Cons Laws of NY, Book 1, Statutes, §§ 76, 94; 2A Sutherland, Statutory Construction [4th ed], §§ 46.01, 46.04). "'Rules of construction are invoked only when the language used leaves [the statutory] purpose and intent uncertain or questionable[;] [t]hey cannot be resorted to for the purpose of enabling the courts to enlarge or extend the legislative design or intent'" (People ex rel. New York Cent. & Hudson Riv. R. R. Co. v Woodbury, id. at 425; see generally McKinney's Statutes § 76).

In applying these general principles to the interpretation of EDPL 401 (C), the court finds that the language, which is clear on its face, provides for a ten-year Statute of Limitations for staged acquisitions; the statute does not impose any prerequisites must be met in order for a condemnor to avail itself of the ten-year Statute of Limitations. Hence, the court need not look to the legislative history to apply the provision. Indeed, in view of the fact that legislature history reveals that when the statute was enacted, the legislature was cognizant of the problems faced by municipalities if stages acquisitions are not permitted, if the legislature had intended to limit the application of EDPL 401 (C) in any way, it had the opportunity to do so (see e.g. Harrington v State Office of Court Admin., 62 NY2d 626, 629 [1984] [the court should not amend a statute by inserting words into it that the Legislature did not see fit to include]; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516 [1980], appeal dismissed 52 NY2d 895 [1981] [it is a general rule of construction that omissions in a statute, where the act is clear and explicit in its language, cannot be supplied by construction; a court should not attempt to fill up or cure a cause omissus by supplying what it thinks should have been put there by the lawmakers]). Also relevant in reaching this determination is the fact that the ULURP does not include any requirements that the City specifically seek approval for acquiring property in stages,[FN14] nor [*16]does the General Municipal Law require that a condemnor state its intention to so acquire property in the findings that it is required to make after a hearing is held.[FN15]

In the alternative, any claim that movants raised with regard to whether the notice given for the public hearings held in the underlying administrative approval process should have included a reference to acquiring the property in stages is time-barred. Thus, as discussed above, the claim should have been raised in an article 78 proceeding challenging the final approval of the Project. Hence, since movants did not commence such a proceeding within the applicable four-month Statute of Limitations as discussed, the challenge is now time-barred. In so holding, the court finds that movants' contention that they were not aware that the Project contemplated implementation in stages until the instant petition was served is specious, since the Borough President's recommendation and the Planning Resolution recognized that if Project was implemented in stages, relocation would be facilitated, and the City Council Resolution recited that the undertaking of the Project in stages would be in the best interests of the public. [*17]

The court accordingly concludes that the City did not abandon the Project and that the instant proceeding was timely commenced. The remaining affirmative defenses interposed by movants in their respective answers are similarly lacking in merit.

Lack of Jurisdiction

The Law

As is relevant herein, EDPL 101 provides that "[i]t is the purpose of this law to provide the exclusive procedure by which property shall be acquired by exercise of the power of eminent domain in New York state." EDPL 703 provides that "[t]he civil practice law and rules shall apply to practice and procedure in proceedings under this law except where other procedure is specifically provided by this law or rules governing or adopted by the appropriate court." With regard to service of a petition in a condemnation proceeding, EDPL 402 (B) (2) provides that: "The condemnor shall, at least twenty days prior to the return date of the petition, serve a notice of the time, place and object of the proceeding upon the owner of record of the property to be acquired, as the same appears from the record of the office in which the acquisition map is to be filed. Said notice shall contain a copy of that portion of the proposed acquisition map affecting the owner's property. Service shall be made pursuant to the civil practice law and rules or by registered or certified mail, return receipt requested. If service is made by mail it shall be sent to the last known address of the owner . . ."



Discussion

Herein, the affidavits of service annexed to the petition indicate that each of the respondents was served with notice of the instant proceeding by certified mail - return receipt requested on October 27, 2004 and with a copy of the amended petition by certified mail - return receipt requested on October 29, 2004. Since the return of the petition was December 3, 2004, service was made more than 20 days prior to the return date of the application as is required pursuant to EDPL 402 (B) (2). Accordingly, respondents' claims that the court has not acquired personal jurisdiction over them is lacking in merit.

Failure to State a Cause of Action

It is beyond dispute that the City of New York has the power and authority to condemn property (see generally In re New York, 55 NY2d 353 [1982], rehearing denied 56 NY2d 805 [1982], citing New York City Charter, §§ 8, 228, 381]). Accordingly, in the absence of any specific objections to the City's petition, respondents' assertion that the petition fails to state a cause of action is specious.

Due Process Rights

The Law [*18]

Pursuant to the Fifth Amendment of the United States Constitution, no private property shall be taken for public use without just compensation. Similarly, Article 1, Section 7 (a) of the New York State Constitution provides that "[p]rivate property shall not be taken for public use without just compensation;" Article 9, Section 1 (e) confers upon local governments the "power to take by eminent domain property within their bounderies for public use . . .".

Discussion

As is discussed more fully hereinafter, the proposed use of the property is for an acceptable public purpose. Further, as is stated in the petition, the amount of compensation to be awarded shall be determined by the court. Accordingly, the actions of the City in seeking to condemn the subject property are within the mandates of the above quoted constitutional provisions. In this regard, it is also noted that respondents fail to further particularize their claim or to state the constitutional provisions that they believe have been violated (see generally Waldo's v Johnson City, 74 NY2d 718, 722 [1989] [petitioner's mere allegations of bad faith did not justify the judicial creation of an additional due process hearing, since petitioner was free to present any evidence to undermine the bona fides of the legislative body's decision-making process at the public hearing]).

Public Use

The Law

The terms "public use" or "public purpose" are broadly defined as encompassing virtually any project that may further the public benefit, utility, or advantage (see e.g. Vitucci v New York City Sch. Constr. Auth., 289 AD2d 479, 480 [2001], lv denied 98 NY2d 609 [2002]; Matter of Byrne, 101 AD2d 701, 702 [1984]). In this regard, it is well settled that a municipality's taking of substandard land for urban renewal serves a valid public purpose (see e.g. Yonkers Community Dev. Agency v Morris, 37 NY2d 478, 482 [1975], appeal dismissed 423 US 1010 [1975] [where land is found to be substandard, its taking for urban renewal is for a public purpose, just as it would be if it were taken for a public park, public school or public street]; W. 41st St. Realty v New York State Urban Dev., 298 AD2d 1, 6 [2002], appeal dismissed, motion dismissed 98 NY2d 727 [2002], cert denied 537 US 1191 [2003] [the exercise of the eminent domain power is rationally related to a conceivable public purpose where that purpose was the further reduction of the blight]; Matter of Glen Cove Dev. Agency, 259 AD2d 750 [1999] [the proposed condemnation was found to serve a valid public purpose where the hearing transcript was replete with references to economic stagnation caused by persistent vacancies in the retail stores and restaurants in the central business district; several witnesses described the deteriorating physical condition of the buildings in the area, including the subject mall; and those witnesses agreed that a local department store, which was interested in purchasing the shopping mall, would attract other businesses, revitalize the neighborhood and strengthen the City's economic base]; Matter of Horoshko, 90 AD2d 850 [1982] [the exercise of the power of eminent domain rationally served a valid public purpose where the property in question was condemned in order to [*19]promote the proper development of town land through the elimination of substandard lots]; In re New York, 72 AD2d 582 [1979] [redevelopment of an area that had already been designated for urban renewal was a permissible public use of substandard property]).

As is also relevant herein, judicial review of whether property is taken for a public purpose is limited to ascertaining whether the project is rationally related to a conceivable public purpose, since the exercise of the eminent domain power is a legislative function (W. 41st St. Realty, 298 AD2d at 6 [citations omitted]). "'Where an agency has found a public purpose which a petitioner disputes, the agency's finding is regarded as "well-nigh conclusive", not a question of fact for de novo determination'" (Greenwich Assocs. v Metropolitan Transp. Auth., 152 AD2d 216, 221 [1989], appeal dismissed 75 NY2d 865 [1990], quoting Matter of Jackson, 67 NY2d 400, 425 [1986], quoting Berman v Parker, 348 US 26, 32-33 [1954]).

Discussion

As is stated in the City Council Resolution, the area which is the subject of this proceeding is "a substandard or insanitary area or is in danger of becoming a substandard or insanitary area and tends to impair or arrest the sound growth and development of the municipality." The proposed Plan is intended to facilitate the construction of up to 460 units of affordable rental and home ownership housing, retail space and community facilities. The proposed residential buildings would range from two- and three-family home-ownership and four-story condominiums to six-story multi-family rental housing, with ground floor community facilities, which might include uses such as a social service and outreach office, a community center, or a day care facility, and retail spaces along Bushwick Avenue and Melrose Street. It is now well settled that substandard and insanitary real estate could be condemned to be replaced with public housing (see e.g. Cannata v New York, 11 NY2d 210, 216 [1962], appeal dismissed 371 US 4 [1962]; Westchester Creek v New York City Sch. Constr. Auth., 286 AD2d 154, 161 [2001]).

Accordingly, in view of the legislative findings, respondents' contention that the property is not being taken for a public purpose is lacking in merit. Similarly, respondents contention that the proposed use of the property for providing housing contemplates a use greater than that set forth in the petition is unpersuasive. Finally, although the petition could have offered a more detailed description of the use to which the property to be condemned was to be put, stating that it was to be used for urban renewal is found to be adequate, particularly since the underlying administrative review procedures described the Project with more than adequate detail.

Alleged Failure to Follow Proper Procedures

In addressing the issues raised above, the City has made a prima facie showing that it complied with the requisite procedures set forth in the City Charter, the ULURP, the and the General Municipal Law. Accordingly, respondents' generalized claims of noncompliance, which are conclusory in nature and fail to identify a single provision of law to support their claims, are similarly found to be specious. [*20]

As is also relevant herein, it is noted that in interpreting the notice provisions of the ULURP as they pertain to zoning changes, which provide for publication in the City Record and in the Comprehensive City Planning Calendar, the Court of Appeals has held that the "publication provided for by the supplementing provisions of ULURP meets [the] standard of reasonableness" (Lai Chun Chan Jin v Board of Estimate, 62 NY2d 900, 902 [1984]; see generally Waldo's, 74 NY2d at 722 [petitioner's mere allegations of bad faith did not justify the judicial creation of an additional due process hearing, since petitioner was free to present any evidence to undermine the bona fides of the legislative body's decision-making process at the public hearing]; De Matteis, 286 App Div 1025 [1955], lv denied 286 App Div 1104 [1955] [court rejected plaintiff's contentions that the statute was illegal because of its failure to provide for personal service of the notice to condemn or the condemnation petition on a property owner, holding that the statute was not invalid merely because no provision was made for personal service of notice of the proceedings on the property owner]).

Conclusion

For the above discussed reasons, movants' motion is denied in its entirety and respondents' answers are stricken. The City is directed to settle an order authorizing the filing of the acquisition map and vesting title to the subject property on one days notice to respondents. E N T E R,

J. S. C.

Footnotes

Footnote 1: In fact, all of the respondents are represented by the same attorney.

Footnote 2: The court rejects the City's objection to the untimely service of the answers, since it was afforded ample opportunity to respond to the arguments raised therein on the merits.

Footnote 3: As is relevant here, ULURP § 197 - c (a) provides that: "Except as otherwise provided in this charter, applications by any person or agency for changes, approvals, contracts, consents, permits or authorization thereof, respecting the use, development or improvement of real property subject to city regulation shall be reviewed pursuant to a uniform review procedure in the following categories:

. . ."(8) Housing and urban renewal plans and projects pursuant to city, state and federal housing laws;

. . ."(11) Acquisition by the city of real property (other than the acquisition of office space for office use or a building for office use), including acquisition by purchase, condemnation, exchange or lease and including the acquisition of land under water pursuant to section sixteen hundred two, chapter fifteen, and other applicable provisions of law;

Footnote 4: As quoted by movants, a description of the approval process was set forth in the recent case of Sanitation Garage Brooklyn Dist. 3 & 3a v City of New York (In re City of New York) (5 Misc 3d 1014A [2004]): "Pursuant to the ULURP rules, notice of hearings before a Community Board is to be made by publication in the City Record for five days immediately preceding and including the date of the public hearing, by publication in the Comprehensive City Planning Calendar, and on notice to the applicant (ULURP [Rules] § 2-03 [c]). Similarly, notice of hearings before [the Planning Commission] is to be made by publication in the City Record for ten days immediately preceding and including the date of the public hearing; by publication in the Comprehensive City Planning Calendar; by mailing notice to the concerned community board, Borough President, and borough board; and for all the property by mail to the last known address as shown on the City tax records no later than five days prior to the date of the hearing (ULURP [Rules] § 2 - 06 [d])." Unlike the Project at issue herein, the review process in the above quoted case did not address an urban renewal project, to which different provisions apply.

Footnote 5: Section 197 - d (b) (1) provides that: "The following decisions filed with the council pursuant to subdivision a of this section, shall be subject to review and action by the council: "(1) any decision of the city planning commission to approve or approve with modifications a matter described in paragraph . . . eight of subdivision a of section one hundred ninety-seven-c [i.e. housing and urban renewal plans and projects pursuant to city, state and federal housing law] . . ."

Footnote 6: Section 197 - d (e) of the Charter provides, in pertinent part, that: "All actions of the council pursuant to this section shall be filed by the council with the mayor prior to the expiration of the time period for council action under subdivisions c and, if applicable, d of this section. Actions of the council pursuant to this section shall be final unless the mayor within five days of receiving a filing with respect to such an action of the council files with the council a written disapproval of the action."

Footnote 7: General Municipal Law § 504 provides that: "An area shall be designated by the governing body, or by the commission where so authorized to act by the governing body, on its own initiative or on petition of the owners in fee of not less than fifty-one per cent of the land (excluding publicly owned land) or upon recommendation of the agency, upon a finding that such area is appropriate for urban renewal as defined in subdivision three of section five hundred two of this article. Such designation may be accompanied by a recommendation of the commission as to the predominant reuse and such other planning criteria as it may deem appropriate for the general renewal of the area."

Footnote 8: General Municipal Law § 505 (2) provides that: "The urban renewal plan for the designated area, or for a part or portion of such area, shall be submitted to the commission which shall certify, after a public hearing held on due notice, whether such plan complies with the provisions of subdivision seven of section five hundred two of this article and conforms to the finding made pursuant to section five hundred four of this article. The commission shall submit its report to the governing body, not later than ten weeks from the date of referral of the plan to it, certifying its unqualified approval, its disapproval, or its qualified approval with recommendations for modifications therein."

Footnote 9: General Municipal Law § 505 (4) provides that: "Upon approving the urban renewal plan for the designated area, or for a part or portion of such area, with or without modifications recommended by the commission, the governing body shall by resolution find that: "(a) The area is a substandard or insanitary area, or is in danger of becoming a substandard or insanitary area and tends to impair or arrest the sound growth and development of the municipality. "(b) The financial aid to be provided to the municipality is necessary to enable the project to be undertaken in accordance with the plan. "(c) The plan affords maximum opportunity to private enterprise, consistent with the sound needs of the municipality as a whole, for the undertaking of an urban renewal program. "(d) The plan conforms to a comprehensive community plan for the development of the municipality as a whole. "(e) There is a feasible method for the relocation of families and individuals displaced from the urban renewal area into decent, safe and sanitary dwellings, which are or will be provided in the urban renewal area or in other areas not generally less desirable in regard to public utilities and public and commercial facilities, at rents or prices within the financial means of such families or individuals, and reasonably accessible to their places of employment. "Upon approving an urban renewal plan for a part or portion of a designated area, the governing body shall, in addition to the foregoing, also find that the undertaking and carrying out of the urban renewal activities in stages is in the best public interest and will not cause any additional or increased hardship to the residents of such designated area."

Footnote 10: General Municipal Law § 505 (5) provides that: "In a city having a population of one million or more, any action of the council approving an urban renewal plan shall be filed with the mayor within five days of such action for approval or disapproval."

Footnote 11: The determination that final approval for the Project occurred on a different date, depending upon whether the court looks to the review procedure set forth in the Charter on in the General Municipal Law, is the result of the different language utilized in the two provisions. General Municipal Law § 505 (5), unlike Charter § 197 -d (e), does not provide a date certain upon which approval becomes final, but instead provides that the Plan shall be filed with the Mayor "within five days for approval or disapproval" (see n 10, infra). Hence, the General Municipal Law provision requires further action by the Mayor for the review procedure to be complete, albeit at an unspecified point in time.

Footnote 12: Although the City had contended earlier in the proceeding that the Statute of Limitations began to run when the City Council Resolution was passed on October 12, 2001, in its papers in opposition to the motion to dismiss, it argues that the cause of action accrued either on that date or on the date that the Mayor signed the resolution approving the Project on October 23, 2001. The court will not hold the City to its earlier representation, since the date was not decisive when the representation was made. Moreover, as the above discussion makes clear, the court did not accept the City's position.

Footnote 13: Pursuant to CPLR 203 (a), "[t]he time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed." As discussed above, the date of the final appoval pursuant to General Municipal Law § 505 (5) is October 23, 2001. Pursuant to CPLR 203 (c), "[i]n an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant . . . when the action is commenced." Pursuant to CPLR 304, "[a] special proceeding is commenced by filing a petition." Thus, the proceeding is timely if commenced on or before October 23, 2004 (Tismer v New York Edison Co., 228 NY 156 [1920], rehearing denied 228 NY 585 [1920] [the day from which any specified period of time is reckoned shall be excluded in making reckoning, so that the first day is excluded in computation of years as well as in computation of days, weeks or months]; accord Bacalokonstantis v Nichols, 141 AD2d 482 [1988]; Brownstein v Schlanger, 55 Misc 2d 904 [1968]). Since October 23, 2004 fell on a Saturday, performance on the next business day, or October 25, 2004, was permissible (General Construction Law § 25 -a (1); see e.g. Morris v Cahill, 96 App Div 2d 88 [1983] [pursuant to General Construction Law § 25-a (1), when any period of time within which an act is required to be done ends on a Saturday, Sunday, or a public holiday, the act may be done on the next succeeding business day]).

Footnote 14: In addressing the question of the documents to be filed during the application process, Section 197 - c (b) provides, in pertinent part, that: "The following documents shall be filed with the department of city planning: (1) applications under this section, (2) any amendments thereto that are made prior to approval of such applications pursuant to this chapter, (3) any written information submitted by an applicant for purposes of determining whether an environmental impact statement will be required by law, and (4) documents or records intended to define or substantially redefine the overall scope of issues to be addressed in any draft environmental impact statement required by law." Significantly, no mention is made of an intention to acquire property in phases.

Footnote 15: EDPL 204 (B) provides that: "The condemnor, in its determination and findings, shall specify, but shall not be limited to the following: "(1) the public use, benefit or purpose to be served by the proposed public project; "(2) the approximate location for the proposed public project and the reasons for the selection of that location; "(3) the general effect of the proposed project on the environment and residents of the locality; "(4) such other factors as it considers relevant." Thus, like the ULURP, the EDPL does not require a condemnor to include an intention to acquire property in stages in the findings that it issues after a hearing.