Appellate court hands NFR another setback in fight over use of eminent domain for proposed Centennial Park project

Rick Pfeiffer -, Niagara Gazette, Niagara Falls, N.Y.
·4 min read

Mar. 19—ROCHESTER — For the second time in four months, a four-judge panel of the New York State Supreme Court Appellate Division Fourth Department in Rochester has dismissed a motion from Niagara Falls Redevelopment (NFR), and an affiliated company, seeking to appeal to the state's highest court — the Court of Appeals — a ruling by the same four judges that found the city of Niagara Falls has the right, under eminent domain, to take 10- to 12-acres of South End land to use for the proposed Centennial Park project.

In a one-sentence unsigned decision, the justices wrote, "(NFR) having moved for leave to appeal to the Court of Appeals from the order of this Court entered July 28, 2023, now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon, it is hereby ordered that the motion is denied."

NFR filed its latest motion in the Fourth Department in early January, after the Court of Appeals in December rejected the company's direct appeal to review the intermediate court's ruling on eminent domain. The New York high court declined to hear that appeal.

In an opinion from Chief Justice Rowan D. Wilson, handed down without even a request from the city to dismiss the case, the court ruled that NFR's appeal was being "dismissed without costs by the Court (of its own accord), upon the ground that no substantial constitutional question is directly involved."

NFR spokesman James Haggerty, in an email to the Gazette, said the company will now file another, direct appeal, to the Court of Appeals.

"We still believe there are significant legal issues presented in this case, and plan to fully protect our legal rights as this process moves forward," Haggerty wrote. "The next step would be a direct request for leave to appeal to the New York State Court of Appeals, as opposed to through the Fourth Department."

Falls Mayor Robert Restaino called that move "predictable."

"It's their same drill," the mayor said."Nothing surprising at all."

Requests for hearings before the Court of Appeals, much like requests for judicial review made to the U.S. Supreme Court, are not automatically granted. Historically, the New York Court of Appeals accepts less than 2% of the cases filed with it.

In its January filing, an NFR lawyer claimed the Falls had failed "to establish a legitimate public use" for the South End property targeted for the proposed Centennial Park project or that the 10 to 12 acres in question were "actually blighted."

Those failures, attorney John Horn wrote, make the use of eminent domain "unconstitutional."

Eminent domain refers to the right of "a government or its representative to take private property for public use, as long as the land owner is fairly compensated." The use of eminent domain has been enshrined in American law for more than 148 years since the U.S. Supreme Court's decision in Kohl v. United States in 1875.

"The Appellate Division's willingness simply to take (the city) at its word instead or requiring it to make its case is reversible error," Horn said in arguing for permission to take the proceedings to the Court of Appeals.

City lawyers told the Appellate Division justices that the request for an order allowing an appeal to the Court of Appeals was "the latest step in (NFR's) promised campaign of delay. They wrote that NFR's legal filing "offers no legal questions meriting the granting of leave to appeal."

During arguments before the Fourth Department justices, in May, NFR's attorneys argued that the use of eminent domain should be blocked because the proposed $150 million park and public events campus would not be "a public benefit or serve a public purpose."

The Appellate Division justices wrote that they rejected that argument because "what qualifies as a public benefit or public use is broadly defined" and because the Centennial Park proposal would develop parkland and other recreational space as well as "revitalizing and redeveloping a longstanding vacant lot, which was a blight on the city."

The justices wrote, "We therefore conclude that the city's determination to exercise its eminent domain power 'is rationally related to a conceivable public purpose.' "

In his email to the Gazette on Monday, Haggerty also wrote that NFR and a Canadian construction company were "moving forward with plans for the Niagara Digital Campus, which we believe is the best chance to bring quality jobs and opportunity to Niagara Falls residents." The digital campus proposal calls for the building of multiple data centers, over a number of years, on the same land where the city has proposed locating the Centennial Park project.

Restaino said the city has continued to have conversations with NFR "about the two project solution" and that "our attorneys have made it clear what we're looking for."

"In March 2022 we had a two-project solution, with a digital campus located east of Centennial Park," Restaino said. "It was NFR that aborted that agreement for some reason."