The Niagara Falls City Council has voted to begin legal action against Niagara Falls Redevelopment (NFR) to reclaim ownership of approximately 5 acres of the roughly 12 acres of South End property currently being sought through eminent domain for the proposed Centennial Park project.
City says it owns a portion of the proposed Centennial Park project property
In a 4-1 vote, with Council Member Donta Myles (D) voting no, city lawmakers directed acting Corporation Counsel Thomas DeBoy to “take all necessary steps to commence any and all legal action … in order to declare the transfer of (10th Street Playground) null and void.”
DeBoy is expected to utilize attorneys from the Buffalo-based Hodgson Russ law firm, the city’s special counsel for the Centennial Park project, to file what is known as a quiet title action to reclaim the former parkland.
A quiet title action is a legal proceeding where a lawsuit is filed to establish clear ownership of a property. It is used to resolve disputes or to “quiet” any challenges over who might be the rightful owner of a property.
In adopting a resolution to begin legal action against NFR, the council asserted that it “has an obligation to defend the property interests of the residents and taxpayers of the city and preserve parkland property for recreational uses.”
Myles questioned why the city had not previously claimed ownership of the former park and playground.
“Two years later, after eminent domain, court cases, lawyer’s fees, we magically come up with the idea we already own (the property),” he said. “Who dropped the ball? Shouldn’t we have thought of this earlier? No one thought to research this before?”
Mayor Robert Restaino said Hodgson Russ lawyers spoke to attorneys for NFR, just after the new year, to discuss the property ownership claim. The city’s outside counsel also reportedly notified NFR lawyers, in writing on Jan. 14, of their demand for the return of the former park land.
In response to the claim, NFR spokesperson James Haggerty last week referenced a court filing from the city, which he said “in paragraph 1 of its “Answer and Objection in Point of Law” in the parties’ eminent domain litigation, specifically, it states the following: ‘Respondent, the CITY OF NIAGARA FALLS … [a]dmits that Petitioners [NFR] are the owners of the referenced parcels …’ “
“These are the city’s own words,” Haggerty wrote. “Beyond this, we have no comment.”
Council Chair James Perry (D) and Members Traci Bax (R), Brian Archie (D) and David Zajac (R), all voted in favor of taking legal action against NFR.
The former city park and playground, located at 10th and Falls streets, was supposed to have been deeded to NFR as part of a deal in 2003-2004 between the South End land owner and former Falls mayors Irene Elia and Vince Anello. But Restaino said NFR never completed the process of taking control of the land by gaining approval of the property transfer from the New York State Legislature, a requirement under both the property transfer agreement and state law.
The 2003 deal, under the administration of Mayor Irene Elia, was intended to settle a series of lawsuits by the city that claimed NFR had failed to keep its commitments to develop about 140 acres of prime South End real estate between John B. Daly Boulevard and Portage Road. The settlement called for the city to deed a park and playground at 10th and Falls streets to NFR in return for the construction of an ill-defined $12 million project on the site.
Despite repeated extensions of the deadline for construction to begin and the project to be completed, in May 2007, then-Mayor Vince Anello announced that, “Niagara Falls Redevelopment has failed to deliver.” Restaino said the project consisted of NFR “digging a hole, putting up cinder blocks and (placing) a fence around the site.”
“Nothing else was done,” Restaino said.
Following the terms of Elia’s settlement agreement, Restaino said, Anello deeded the park and playground property to NFR in August 2004, so that the construction project could begin, even though NFR had not properly completed the property transfer by seeking or gaining the required permission from the state.
State law requires the legislature to approve any transfer of park property to a private entity. The mayor said the Elia settlement with NFR also explicitly required the landowner to gain the state legislature’s approval.
Restaino had previously said that the city would give NFR time to respond to its claim on the former park property, “or we’ll probably begin legal action.”
If the city is successful in its claim of land ownership, it will shrink the size of the land currently subject to eminent domain proceedings.
In September, New York’s Court of Appeals, the state’s highest court, rejected a final request from NFR, and an affiliated company, Blue Apple Properties Inc., to overturn the city’s use of eminent domain to take up to 12 acres of undeveloped land in the South End for the proposed Centennial Park project. That ruling appeared to clear the way for the city to begin the process of establishing a value for the land to compensate NFR.
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 almost 150 years since the U.S. Supreme Court’s decision in Kohl v. United States in 1875.
“This will impact the value (of the remaining land the city is looking to acquire),” Restaino said. “We’re really the only one who would have an interest in the (remaining) property (subject to eminent domain) for the purpose of setting value.”
The Centennial Park plans call for the construction of a “multi-faceted, year-round event campus” that would include a 6,000- to 7,000-seat arena for sporting and entertainment events, a smaller arena for sporting and entertainment events and a splash pad that could be converted into an ice-skating rink during winter months.
The project also calls for the construction of a parking ramp with exterior walls that could be used for rock climbing and a roof that could be used as a location for concerts or movie screenings.
The park would be constructed on the property described as 907 Falls St. and an adjacent portion of the property along John Daly Memorial Parkway.
The project carries an estimated price tag of $150 million.
In October, NFR submitted a Negotiated Planned Development District, also known as a Planned Unit District (PUD), for a proposed $1.5 billion data center campus at the proposed Centennial Park site. NFR has said that its project would be developed under a partnership with the Toronto-based construction company Urbacon.
The company’s proposal calls for the center to be developed in five phases and to include eight, two-story buildings and one, one-story building covering 1,232,715 square feet of space.