SUPREME COURT: COUNTY OF CHAUTAUQUA

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JAMESTOWN URBAN RENEWAL AGENCY

ACQUIRING CERTAIN REAL PROPERTY

SITUATE IN THE CITY OF JAMESTOWN,

COUNTY OF CHAUTAUQUA, AND STATE OF

NEW YORK

Plaintiff,

vs Index #H-12466

SUNRISE PROPERTIES, INC.

Defendant.

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WRIGHT, WRIGHT & HAMPTON

(Mark I. Hampton, Esq.

of Counsel) for Plaintiff

JOHNSON, PETERSON, TENER & ANDERSON

(Ronald W. Malin, Esq.

of Counsel) for Defendant

DECISION

GERACE, J.

The Court, satisfied that the procedural requirements

of EDPL Section 402 (B) (5) have been met, grants

petitioner's motion for an order directing the immediate

filing and entry of an order granting the petition.

FACTS

This is an urban renewal agency condemnation case

seeking to transfer two vacant parcels of land to the

Jamestown Urban Renewal Agency pursuant to EDPL Section

402 B.

The parties have previously been engaged in litigation

which Sunrise Properties, Inc., and its parent corporation

brought in the Appellate Division - Fourth Department

against the Jamestown Urban Renewal Agency in November,

1993, pursuant to EDPL 207. That case sought judicial

review of the Petitioner's determination to take by eminent

domain authority the same property which is the subject of

this proceeding. The specific issue raised in the

Appellate Division was whether or not the proposed taking

was for a public use, benefit, or purpose.

The acquisition map of the entire project area and the

prior owners of the respective individual parcels is

attached to the present Petition. Only the

Respondent/Condemnee has elected not to transfer title and

proceed under the fair compensation determination

provisions of the EDPL. As a result, Petitioner brings

this proceeding to enlist the aid of the Court in the

completion of its acquisition of the redevelopment area.

The answer in the matter before the Court raises no

material issues; it states no new matters, but alleges that

the Jamestown Urban Renewal Agency's public purpose for the

taking is not pled. This strikes the Court as

disingenuous. The public use, benefit or purpose for which

this property is required is set forth in its entirety in

Exhibit D attached to the petition. Moreover, the

requisite public use, benefit, or purpose is already law of

the case. This is a dead issue and therefore a non-issue.

(See MatterofJohnsonCityv.Bolas/Waldo's,Inc.(1990)

157AD2d1009,550NYS2d494.)

The motion of petitioner for an order authorizing the

filing in the Chautauqua County Clerk's office of the

original survey and plat, together with the Acquisition

Map, is granted. The Court directs that upon such filing,

title to the parcels described in the petition immediately

vest in the Petitioner pursuant to Sections 402(b and

501(B) of the EDPL.

The Court declines the request of Counsel for

respondent that the order contain a recital that the filing

of the map and transfer of title would not deprive

respondent of standing before this Court to bring any

action or proceeding relating to the actual or threatened

violation of the State Environmental Quality Review Act.

Such a recital could be interpreted as granting standing

where none exists.

The question of standing on any prospective SEQRA

challenge by respondent or any other citizen is not an

issue here; it is a matter to be determined when and if

such a challenge is made.

Submit Order.

THIS IS THE DECISION OF THIS COURT.

Dated: November , 1995

Mayville, New York

____________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on the same date.