STATE OF NEW YORK APPELLATE DIVISION - THIRD DEPARTMENT UNCLE SAM GARAGES, LLC, PETITION TO ANNUL Petitioner, CAPITAL DISTRICT TRANSPORTATION nagainst- DETERMINATION AND CAPITAL DISTRICT TRANSPORTATION FINDINGS TO ACQUIRE AUTHORITY AND THE BOARD OF PROPERTY DIRECTORS OF THE CAPITAL DISTRICT TRANSPORTATION AUTHORITY, Respondents. TO: THE SUPREME COURT OF THE STATE OF NEW YORK, APPELLATE DIVISION - THIRD DEPARTMENT The veri?ed Petition of petitioner, Uncle Sam Garages, LLC, by and through its attorneys E. Stewart Jones Hacker Murphy LLP, respectfully shows and alleges that: PARTIES 1. Uncle Sam Garages, LLC is a limited liability corporation having a principal place of business at 297 River Street, Troy, New York. 2. The petitioner is the owner of the ?Uncle Sam Parking Garage,? the subject property in the present proceeding. 3. Upon information and belief, the respondent, Capital District Transportation Authority is a public bene?t corporation created by, organized, and existing under the laws of the State of New York with its headquarters located at 110 Watervliet Avenue, Albany, New York 12206. SUBJECT PROPERTY 4. Petitioner is the owner of real property located at 15?25 Fourth Street, Troy, New York. 5. The subject property is a 2.129 acre parcel covered by a three-level parking garage with an approximately 5,300 square foot retail component and an adjoining 14,445 square foot alleyway? 6. The subject property is listed and identi?ed on the assessment roll of the City of Troy by tax map identi?cation number 101 .45?3?2 PRELIMINARY STATEMENT 7. Since approximately June of 201 5 until August 2017, CDTA sought to acquire, pursuant to a 40?year lease, the same area that it now claims it must acquire in fee. 8. CDTA seeks to exercise the power of eminent domain to acquire approximately 19,751 square feet of the subject property from the petitioner in furtherance of its ?Uncle Sam Transit Center Project? (?Project?). 9. Speci?cally, after months of seeking a 40~year lease, respondent now seeks to take, in fee, the entire alleyway abutting the northern side of the garage and improved space along the southern, Fulton Street side of the garage. 10. CDTA has developed and undertaken the Project to relocate and consolidate its bus stops presently located (I) on River Street on the west of said street to the subject property itself and (2) on the east side of Fourth Street. STATEMENT OF FACTS A. Notice of the Public Hearing 11. On October 26, 2017, Douglas Teator, P.E. of Creighton Manning Engineering, LLP, engineer for the Project, sent a letter to David Bryce, Sole Member of Uncle Sam Garages, LLC, informing him that a public hearing would be held in accordance with Eminent Domain Procedure Law ?202 on November 16, 2017, at 6:00 pm. at Troy City Hall, 433 River Street, Troy, New York 12180. 12. In his letter, annexed hereto as Exhibit Mr. Teator described the scope and purpose of the Project as follows: The project proposes the construction of a transit center building, which included interior customer waiting space, restrooms and space for CDTA staff. The exterior work includes erecting canopies to cover passenger waiting areas, recOnstructing the curb, sidewalk and pavement to accommodate contra?ow bus traf?c on River Street, Fulton Street, 4th Street and other site modi?cations around the perimeter of the existing Uncle Sam parking garage. B. The Public Hearing 13. Petitioner, along with Michael Cocca owner of the adjacent Franklin Square Best Western Hotel, provided comments at the public hearing. 14. Petitioner raised several concerns about the Project at the hearing on behalf of petitioner but also reminded CDTA that petitioner was still open for further discussions. Petitioner questioned exactly what interest(s) CDTA intended to acquire in the subject, and pointed out that there seemed to be little bene?t to spending millions of dollars simply to move a bus stop that could more easily and less expensively be kept in its current location. In addition to other comments, petitioner also expressed concerns about access to the garage and 3 traf?c ?ow after the taking, and the way in which alterations to the subject garage may affect its structural integrity. 15. At this hearing, CDTA did not give the public the Opportunity to formally comment on the environmental signi?cance of the Project in the context of a completed Environmental Assessment Form. 16. Only one of Board members attended this hearing. C. Follow up to the Public Hearing 17. Petitioner, through its counsel, wrote to CDTA by letter dated November 29, 2017, further noting CDTA Board members who, with one exception, skipped the meeting, and questioning why CDTA did not specify the property interest it intended to acquire. 18. A member of staff sent a memorandum dated December 7, 2017 to Planning and Stakeholder Relations Committee. This memorandum was later provided to the full Board. The memorandum is annexed hereto as Exhibit 19. The memorandum only references the public hearing in a single brief paragraph, which reads: Of' the people that spoke, all indicated that relations with CDTA historically for the most part, have been positive. Signi?cant work (time and money) has gone into getting the project to this stage. However, several concerns were raised regarding the engineering of the structures (both the transit center and the garage) with respect to how they would work together. Additional issues were expressed regarding aesthetics, costs, safety considerations, and traf?c control. 20. This paragraph represents the sum total of all the information Board received about the statutorily-required public hearing on taking. The information provided to the Board for the meeting at which it decided whether to take petitioner?s property is annexed hereto as Exhibit 21. Upon information and belief, the full transcript of the hearing was never provided to the Board, and the Board never independently reviewed or consulted it. 22. Nevertheless, the CDTA Board adopted its Determination and Findings on December 13, 2017, at the Board?s first meeting following the public hearing. DETERMINATION AND FINDINGS ARE NOT VALID 23. Under EDPL ?207, a party aggrieved by a condemnor?s Determination and Findings may seek judicial review of such, but the court?s scope of review is limited by that statute to whether: (1) the proceeding was in conformity with the federal and state constitutions, (2) the proposed acquisition is within the condemnor's statutory jurisdiction or authority, . (3) the condemnor's determination and ?ndings were made in accordance with procedures set forth in this article and with article eight of the environmental conservation law, and (4) a public use, bene?t or purpose will be served by the proposed acquisition. 24. This Court should reject Determination and Findings on each of these bases. A. The Proceeding was Unconstitutional 25. It is important to note at the outset that the members of the CDTA Board, a body with the authority to take private property by the power of eminent domain, are not elected. In other words, CDTA does not answer to any voting public. 26. Nevertheless, despite the Board?s ability to wield the power of eminent domain, only a single member deemed it necessary to attend the only meeting at which the public could express its thoughts and concerns about decision to use eminent domain. 27. A member of staff then devoted but a single sentence of a single paragraph to the actual substance of the hearing in the one page memorandum he subsequently submitted to the Board. 28. Moreover, the Board never reviewed the transcript of the public hearing for itself. 29. Thus, unelected Board decided to use its power of eminent domain on petitioner?s property without being fully and properly apprised of what occurred at the statutorily~mandated public hearing. I 30. Clearly, on this basis, petitioner has been deprived of his property without due process of law. B. Respondent?s Determination and Findings Violate the EDPL and SEQRA 31. Under the EDPL, condemnors must comply with the State Environmental Quality Review Act 32. CDTA asserts that it previously completed SEQRA review in 2015. 33. However, CDTA had not indeed could not have determined the details and dimensions of its proposed taking here at the time it completed its SEQRA review in 2015. 34. Additionally, CDTA did not undertake any additional environmental review of the Project at the public hearing or before adopting its Determination and Findings. 35. Upon information and belief, CDTA is not entitled to any exemptions from compliance with the EDPL as provided by EDPL ?206. 36. Thus, CDTA did not comply with the EDPL in that its SEQRA review did not contemplate the present taking and it did not separately review SEQRA with respect to the acquisition of the subject property. C. The Taking in Full Fee Simple Absolute is Unnecessary to Meet Needs 37. The bus stop at the center of the present taking could more easily be created in the same Spot where it is now, across River Street from the subject property. 38. The taking CDTA now seeks, therefore, will cost a great deal of time and money, not only to build the new stop, but to compensate petitioner for its very signi?cant loss. On the other side of the analysis, the public gains no bene?t from this taking that could not be achieved by leaving the bus stop where it now is and upgrading the present facility. 39. Even assuming a bus stop in the location now proposed creates a public bene?t, CDTA still cannot demonstrate that its proposed taking of the full fee interest is necessary. The negotiations for a 40-year lease belie supposed need to exercise its eminent domain power to acquire a full fee simple absolute. WHEREFORE, it is respectfully requested that this Court reject Determination and Findings concerning the proposed acquisition of the subject property because the proceeding was not constitutional, that CDTA has exceeded its statutory authority, that the Determination and Findings were not made in accordance with the EDPL and SEQRA, that no public use, bene?t, or purpose will be served by the proposed acquisition, and that CDTA cannot demonstrate it needs a full fee acquisition when a lease would address its needs, and for such other relief as the Court shall deem proper. E. STEWART JONES HACKER MURPHY LLP By: Patri L. Seely, Jr., Esq. 7 Atrport Park Boulevard Latham, New York 12110 Tel. (518) 274-5820 Dated: January 17, 2018 TO: Capital District Transportation Authority 110 Watervliet Avenue Albany, New York 12206 VERIFICATION STATE OF NEW YORK COUNTY OF 83': DAVID W. BRYCE, being duly sworn, says thatlhe is the?Sole Member of Uncle Sam Garages, that he has read the foregoing-Petition and knows the contents thereof and that the contents are true to his knowledge, except those matters'therein which are stated to be alleged upon information and belief, and as to those matters - - i- lieves them to be Sworn to before me this da ofJanuary, 2018. mm N?ota??r?P?b/lic Deanna M. Dudley Notary Public. State of New Reg. No. o1oue340971 Quali?ed in Albany County 96 Commission Expires May 02. EXHIBIT A E. -. ENGINEERS PLANNERS SURVEYORS Creighton October 2017 Mr. David Bryce Bryce Properties 297 River Street, #311 Troy, NY 12180 sam TranSit Center Project Eminent Domain Procedure Law Public Hearing Notice Dear Mr. Bryce: PLEASE TAKE NOTICE that, in accordance with Article 2, Section 202 of the New York State Eminent Domain Procedure Law,? notice is hereby given of a public hearing for the CDTA Uncle Sam Transit Center Project on November 16, 2017 at 6:00 pm at the Tray City Hall, 433 River Street, Troy, NY 12180 The purpose of this hearing is to outline the project purpose, its proposed location, and to provide other pertinent information, including maps and property descriptions of the Wproperties to be acquired and project is located within the Cities of Troy. The project proposes the construction of a transit center building, which includes interior customer waiting space, restrooms and space for CDTA staff. The exterior work includes erecting canopies to cover passenger waiting areas, reconstructing the curb, sidewalk and pavement to accommodate contraflow bus traf?c on River Street, Fulton Street and 4th Street and other site modifications around the perimeter of the existing Uncle Sam parking garage. Persons may appear in person or by agent and will be given the opportunity to present oral or written statements and to submit other documents concerning the CDTA Uncle Sam Transit Center Project. Any property owners who may subsequently wish to challenge the condemnation of their property by judicial review may do so only on the basis of issues, facts, and objections raised at the hearing. if you have any questions in advance of the public hearing, please contact me at the address or telephone number listed in the letterhead. You may also contact Chris Desany of CDTA at 518-437-8320. Very tru urs, Dou Teator, P.E. 2 Mme? C'rde Creighton Manning Engineering, LLP Albany. NY 12205 5?8'446'039?5 Cc: Steven Strichma n, City of Troy 518.446.0397 - EXHIBIT To: Chairman, Flaming and Stakeholder Relations Committee Committee Members From: Christopher Desany, Vice President of Planning and Infrastructure Date: December 07, 2017 Re: Approval of Determination and Findings for Uncle Sam Transit Center Background As discussed at the October meeting, one of the steps in the land acquisition process for the Uncle Sam Transit Center requires us to hold public hearing(s) to give people the opportunity to hear about the real estate speci?c aspects of the project, and afford the public an opportunity to comment. To advertise and hold these hearing(s) required Board approval and the plan was approved in October. The hearing was held on November 16th at Troy City Hall. Six members of the public attended. Staff reviewed the project, the alternatives, and the real estate acquisition process. Three attendees commented on various aspects of the project. All comments were collected for the record, and for substantive comments, formal responses will be prepared. The results (Determination and Findings) of the hearing also requires Board approval. A summary of those results is as follows: 0 The purpose of the project is to serve the growing needs of transit riders and enhance existing service with an improved facility and expanded service options at this location. High levels of existing ridership, undersized passenger waiting areas, lack of customer service and convenience facilities, and inadequate space to board and stage buses indicate a clear need for improved accommodations. - During project development, three alternatives were considered for the new facility. Developing alternatives included outreach and coordination with the affected property owner and meetings with the City of Troy. Based on the input provided, one alternative was chosen as the preferred option. This alternative comparably provides the best location for an enclosed climate?controlled facility, as the proximity to the existing bus stops, ridership demand, and capacity to serve existing and future service and facility needs collectively outweighed the other alternatives considered. Design elements of the facility have been coordinated with adjacent property owners and members of the public, and were adjusted to minimize overall negative effects of the project. 0 The preferred alternative involves construction of a transit center at the southeast corner of the Uncle Sam Parking Garage that provides customers with an appropriately sized, enclosed, and climate controlled facility. Ticket sales and restroom facilities will be provided and will accommodate future growth in ridership and bus service. We will also erect canopies along Fulton and 4th Streets to provide covered waiting areas for bus berths, recon?gure River Street, 4th Street and Fulton Street to provide contra?ow bus lanes, and reconstruct the existing alleyway to accommodate bus layovers. - Implementation of this alternative is based upon engineering, social, economic and environmental considerations and provides improvements that are consistent with the project objectives while limiting adverse impacts. 0 Of the three people that spoke, all indicated that relations with CDTA historically for the most part, have been positive. Signi?cant work (time and money) has gone into getting the project to this stage. However, several concerns were raised regarding the engineering of the structures (both the transit center and the garage) with reSpect to how they would work together. Additional issues were expressed regarding aesthetics, costs, safety considerations, and traf?c control. Staff is also requesting approval of such further proceedings as may be necessary to facilitate acquisition of the preperties. Proposed Action Therefore, I am reguesting that the land acquisition public hearing Determination and Findings for the Uncle Sam Transit Center project be advanced to the full Board for approval. EXHIBIT CDTA BOARD OF DIRECTORS MEETING AGENDA Wednesday, December 13, 2017 CDTA Board Room 110 Watervliet Avenue Start Time -- 12:00 Noon Board Item Call to Order Ascertain Quorum and Approve Agenda Approve Minutes of October 25, 2017 Recognition - Louis Norwood 25 Years of Service 0 Darlene McKie 30 Years of Service 0 LaRhonda Donley 30 Years of Service Amtrak 50 Years of Service Committee Reports: (Action Items Listed) Performance Oversight Committee (Met on 12/06/ 17) 0 Award Contract for Janitorial Services Award Contract for Snow Removal Approve Change Order for RRS Repairs Award Contract for Mobile Tourism Application Award Contract for Life Insurance Approve Transfer of Buses to BroOme County Audit Committee (Met on 12/06/1 7) Investment Committee (Meet on 12/ 13/ 7) Planning and Stakeholder Relations Committee (Met on 12/07/ 17)) 0 Approve Submission of Preliminary Budget to OSC 0 Approve Findings of Eminent Domain Hearing Chief Executive Of?cer?s Report Executive Session Good of the Order (Added by Approval of the Chair) Announcements Upcoming Meetings (110 Watervliet Avenue) December 13, 2017 January 31, 2017 February 28, 2017 Responsibility Dave Stackrow Dave Stackrow Dave Stackrow Dave Stackrow Denise Figueroa Dave Stackrow Dave Stackrow Joe Spairana Carm Basile Page 14 40 43 46 CAPITAL DISTRICT TRANSPORTATION AUTHORITY RESOLUTION NO. 73 2017 Approval of Determination and Findings for Uncle Sam Transit Center Under Article 2 of the New York State Eminent Domain Procedure Law WHEREAS, the Capital District Transportation Authority (the ?Authority?) is charged by New York Public Authorities Law Section 1304 with the development and improvement of transportation and related services within the Capital District, and WHEREAS, the Authority is currently engaged to build a transit center adjacent to the Uncle Sam parking garage (the ?Uncle Sam Transit Center?) to improve public transportation options and provide customer amenities in the City of Troy, requiring the acquisition of real property interests, and WHEREAS, the Authority Board of Directors authorized and approved the Uncle Sam Transit Center, and WHEREAS, after good faith efforts to negotiate the acquisition of real property interests failed, pursuant to Section 201 of the New York State Eminent Domain Procedure Law (hereinafter the Authority held a properly noticed public hearing on November 16, 2017 at which it informed the public about the Project, reviewed the public use and purpose to be served by the Project, the potential impacts on the property owner where the Project is to be located, the proposed real property needed to accomplish the Project and received and considered comments regarding the proposed Project; and WHEREAS, Section 204 of the EDPL requires that the Board make its determination and findings concerning the proposed Project within 90 days after the conclusion of the public hearing; NOW THEREFORE, BE IT RESOLVED, that the Capital District Transportation Authority Board hereby adopts the document entitled ?Determination and Findings Pursuant to. Article 2 of the Eminent Domain Procedure Law Regarding the Acquisition of Property Rights Required in Reference to the construction of the Uncle Sam Transit Center Project in the City of Troy, County of Rensselaer, State of New Yor which is attached hereto; and be it further, 43 RESOLVED, that the Board hereby authorizes such further proceedings under the EDPL as may be necessary to effectuate acquisition by condemnation of the subject easements; and be if further, RESOLVED, that the Board of Directors, or their designee are hereby authorized and directed to publish a brief synopsis of the Determination and Findings Statement which is attached hereto in at least two (2) successive issues of the Troy Record as required by Section of the and be it further, RESOLVED, that the Board of Directors is hereby authorized and directed to serve notice as required by Section of the EDPL upon each assessment record billing owner or his or her attorney of record across whose property an easement may be acquired; and be it ?irther, RESOLVED, that this Resolution shall take effect immediately. CERTIFICATION The undersigned, duly quali?ed and acting as Secretary of the Capital District Transportation Authority, certi?es that the foregoing is a true and correct cepy of a resolution adopted at a legally convened meeting of the Capital District Transportation Authority held on the 13th day of December, 2017. Dated: December 13, 2017 Joseph M. Spairana, Jr., Secretary 44 To: Chairman, Planning and Stakeholder Relations Committee Committee Members From: Christopher Desany, Vice President of Planning and Infrastructure Date: December 07, 2017 Re: Approval of Determination and Findings for Uncle Sam Transit Center Background As discussed at the October meeting, one of the steps in the land acquisition process for the Uncle Sam Transit Center requires us to hold public hearing(s) to give people the opportunity to hear about the real estate speci?c aspects of the project, and afford the public an Opportunity to comment. To advertise and hold these hearing(s) required Board approval and the plan was approved in October. The hearing was held on November 16th at Troy City Hall. Six members of the public attended. Staff reviewed the project, the alternatives, and the real estate acquisition process. Three attendees commented on various aspects of the project. All comments were collected for the record, and for substantive comments, fonnal responses will be prepared. The results (Determination and Findings) of the hearing also requires Board approval. A summary of those results is as follows: 0 The purpose of the project is to serve the growing needs of transit riders and enhance existing service with an improved facility and expanded service options at this location. High levels of existing ridership, undersized passenger waiting areas, lack of customer service and convenience facilities, and inadequate space to board and stage buses indicate a clear need for improved accommodations. 0 During project development, three alternatives were considered for the new facility. Developing alternatives included outreach and coordination with the affected property owner and meetings with the City of Troy. Based on the input provided, one alternative was chosen as the preferred option. This alternative comparably provides the best location for an enclosed climate?controlled facility, as the proximity to the existing bus stops, ridership demand, and capacity to serve existing and future service and facility needs collectively outweighed the other alternatives considered. Design elements of the facility have been coordinated with adjacent property owners and members of the public, and were adjusted to minimize overall negative effects of the project. 0 The preferred alternative involves construction of a transit center at the southeast comer of the Uncle Sam Parking Garage that provides customers with an appropriately sized, enclosed, and climate controlled facility. Ticket sales and restroom facilities will be provided and will accommodate future growth in ridership and bus service. We will also erect canopies along Fulton and 4th Streets to provide covered waiting areas for bus berths, recon?gure River Street, 4th Street and Fulton Street to provide contra?ow bus lanes, and reconstruct the existing alleyway to accommodate bus layovers. Implementation of this alternative is based upon engineering, social, economic and environmental considerations and provides improvements that are consistent with the project objectives while limiting adverse impacts. 0 Of the three peOple that spoke, all indicated that relations with CDTA historically for the most part, have been positive. Signi?cant work (time and money) has gone into getting the project to this stage. However, several concerns were raised regarding the engineering of the structures (both the transit center and the garage) with respect to how they would work together. Additional issues were expressed regarding aesthetics, costs, safety considerations, and traffic control. Staff is also requesting approval of such further proceedings as may be necessary to facilitate acquisition of the pr0perties. Proposed Action Therefore, I am requesting that the land acquisition public hearing Determination and Findings for the Uncle Sam Transit Center project be advanced to the full Board for approval. 45