In 1910, Buffalo Mayor James Noble Adam purchased 675 acres of property in the Town

of Perrysburg and donated the property to the City of Buffalo to be used to treat tubercular diseases. Over the years, a number of buildings were constructed on the site, which became known as the J.N. Adam Hospital. It is alleged that a dome above the dining room in the main building came from the Temple of Music, under which President McKinley was assassinated. In deeds from 1948 and 1952, New York State acquired the property to use as a tuberculosis hospital. Both deeds contained a clause whereby the property would revert to the City of Buffalo if the property was no longer used as a tuberculosis hospital.

In 1960, Buffalo reconveyed the property to the State to use as a mental hygiene facility, with the same reverter clause if the property was discontinued as a mental hygiene facility. When the Office of Mental Retardation and Developmental Disabilities (OMRDD) was formed in 1978, the agency began to shift patients from facilities like J.N. Adam to group homes. In April 1993, OMRDD began to close J.N. Adam and move patients into these group homes, some

of which were located on the J.N. Adam campus.

In 1993, the Legislature amended the mental hygiene law to provide for more community based services and the closure of a number of institutions (see L 1993, ch 723). The following year, noting that J.N. Adam had been closed, the Legislature deleted J.N. Adam from Mental

Hygiene Law § 13.17 (b) and replaced it with a Developmental Disabilities Services Office (see L 1994, ch 208).

In 1998, the Empire State Development Corporation (ESDC) made preparations to sell most of the J.N. Adam property through a bidding process. On January 13, 1998, the New York State Office of Parks, Recreation and Historic Preservation (OPRHP) informed ESDC that the sale of J.N. Adam would "have no impact on cultural resources in or eligible for inclusion in the State and National Registers of Historic Places". On December 16, 1998, ESDC issued a negative declaration under the State Environmental Quality Review Act (SEQRA).

In November 1999, ESDC put the property, consisting of 649 of the original 675 acres plus approximately 40 buildings, out for bid. However, only one bid was received and it was rejected as insufficient. In September 2003, ESDC again issued an invitation to bid and accepted the bid of the Trathen Land Company, the highest of the three bids it received. Different agencies approved the bid but ESDC could not convey the property because Buffalo had not yet released its reversionary interest.

Trathen then commenced an action to quiet title and moved for summary judgment on the grounds that the property had ceased being used to care for developmentally disabled people in April 1993 and because Buffalo did not seek to recover possession of the property within 10 years of that time, Real Property Actions and Proceeding Law § 612 cut off Buffalo's reversionary interest in the property. This court denied the summary judgment motion because

of claims that at least five of the original J.N. Adam buildings were used to care for [*2]developmentally disabled people until 2004 and at least eight buildings on the grounds continued to be used for that purpose today (see Trathen Land Co., LLC v. City of Buffalo, 9 Misc 3d 1117 (A), 2005 WL 2496494). That action is now going through the discovery process. In the meantime, on August 10, 2005, the Buffalo Common Council voted to sell the city's reversionary rights to Trathen.

In the instant case, petitioners include the President of the Friends of J.N. Adam, an unincorporated association that opposes development of the J.N. Adam property; residents of the Town of Perrysburg who also oppose the development; and the President of the Buffalo City Council. They commenced an Article 78 proceeding which seeks to review Buffalo's approval of the sale of the J.N. Adam property and obtain an injunction preventing any further action in furtherance of the sale. Petitioners contend that (1) SEQRA has not been complied with; (2) the Public Building Law (PBL) has been violated; (3) the Parks, Recreation and Historic Preservation Law (PRHPL) has also been violated; and (4) the property cannot be sold because of the New York State Trust Doctrine.

The state respondents have moved to dismiss the petition pursuant to CPLR 7804 (f) on the grounds that the SEQRA, PBL, and PRHPL causes of action are premature because there has been no final administrative determination on those issues. They also claim that the allegations in the fourth cause of action fail to state a cause of action. Buffalo has also moved to dismiss on the grounds that the action is premature and on the further ground that its release of its reversionary rights is not an action that requires compliance with SEQRA. Petitioners oppose those motions and have cross-moved for summary judgment on the pleadings.

The state respondents contend that the SEQRA, PBL and PRHPL claims are premature

because respondents have not made a final determination of their obligations under any of the relevant statutes. They note that after this litigation had begun, OPRHP informed them that its letter of January 13, 1998 was incorrect and that J.N. Adam had been eligible for listing on the State Register of Historic Places since 1985. The state respondents then began the consultations that the PBL and PRHPL require and those consultations are ongoing. Further, this new information requires ESDC to revisit its 1998 negative declaration and decide if it must make a further review under SEQRA but ESDC claims it cannot do so until the other issues are

resolved.

Petitioners reply that, while they are pleased that respondents will revisit these issues, the court should void the state's contract with Trathen to insure that any continuing review will not simply be a post hoc affirmation of a decision that has already been made. Implicit in that contention is a fear that, if the petition is dismissed, quick action on the part of respondents will deprive petitioners of their day in court until after the property is transferred to Trathen. The court is dubious of its authority to void the contract.

The state respondents' motion to dismiss pursuant to CPLR 7804 (f) is granted in part and denied in part. Public Buildings Law § 63 requires OMRDD to consult with OPRHP with respect to any building eligible for listing on the State Register of Historic Places. Parks, Recreation and Historic Preservation Law § 14.09 requires that OPRHP be informed of any project that might impact a building listed on the register. If the building or site would be adversely affected, the agency must also consult OPRHP to explore alternatives. Once the state respondents learned that the site was eligible for listing on both the State and National Registers [*3]of Historic Places, they began the consultations required by the statutes and those consultations are ongoing.

Included in the state respondents' moving papers was an affidavit from Nathan Cohen, assistant director of facilities and capital services for OMRDD, attesting that the state respondents are presently consulting with OPRHP about J.N. Adam's historic attributes. Petitioners contend only that these consultations cannot take place after the bidding process is over and contracts are signed; with no authority cited, this court is unable to reach that conclusion and the motion to dismiss the PHL and PRHPL causes of action is granted.

Turning to the SEQRA issue, caselaw appears to be all over the lot as to when a SEQRA claim is ripe for an Article 78 challenge (see Justice Keegan's comparisons in Entergy Nuclear Indian Point 2, LLC v. New York State Dept. of Environmental Conservation, 3 Misc 3d 1070, 777 NYS2d 591 [S.Ct. Albany Co. 2004]). However, in Stop-the-Barge v. Cahill (1 NY3d 218, 771 NYS2d 40 [2003]), the Court of Appeals determined that a conditioned negative declaration was a final determination which triggered the four month statute of limitations applicable to Article 78 actions (see also Gordon v. Rush, 100 NY2d 236, 762 NYS2d 18 [2003] [positive declaration under SEQRA a final administrative action ripe for review]).

Given that the negative declaration may be deemed a final determination, the question becomes whether the state respondents' concession that further review may be required by OPRHP's letter to ESDC of October 26, 2005 means that there is no longer a final determination on this point. Dermot Kelly, a vice-president of ESDC, submitted an affidavit indicating that ESDC cannot make the determination whether further SEQRA review is necessary until the consultation process with OPRHP has concluded. That strikes the court as much too speculative to hold that a final determination has not been made, particularly since a negative declaration was made previously. Accordingly, the motion to dismiss the SEQRA cause of action as premature is denied.

The fourth cause of action alleges that the J.N. Adam property is a de facto park and therefore, cannot be alienated without legislative authorization. The state respondents move to dismiss that cause of action on the grounds that the legislature, in the legislation referenced earlier (see L 1993, ch 723; L 1994, ch 208; see also L 1995, ch 83) has authorized the transfer. The court believes that the de facto park claim fails to state a cause of action and, even if that were not the case, the transfer of the property was authorized by the legislature.

The public trust doctrine provides that parkland is impressed with a public trust and thus, cannot be sold or used for non-park purposes without legislative approval (see Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623, 727 NYS2d 2 [2001]; Miller v. City of New York, 15 NY2d 34, 255 NYS2d 78 [1964]). Petitioners contend that the J.N. Adam campus is a de facto park, notwithstanding that Buffalo retained a reversionary interest in the property until it was transferred to Trathen in August 2005. Petitioners cite no authority demonstrating that the public trust doctrine can be applied in these circumstances. Were the court to somehow find that the J.N. Adam campus has magically become parkland subject to the public trust doctrine, the court would also find sufficient legislative authorization for the sale of the property. Accordingly, the motion on the public trust ground is also granted.

Finally, Buffalo's motion to dismiss is also granted. While there is no final SEQRA [*4]determination, that is not dispositive of Buffalo's motion. Buffalo contends that its release of its reverter rights is not an action that requires SEQRA review, and that contention appears to be correct (see Briody v. Village of Lewiston, 188 AD2d 1017, 591 NYS2d 909 [4th Dept. 1992], lv. denied 81 NY2d 710, 600 NYS2d 197 [1992]). As in Briody, the simple transfer of the property does not commit any party to actions that would require SEQRA review.

Accordingly, the state respondents' motions to dismiss the PHL, PRHPL and public trust

causes of action are granted. The state respondents' motion to dismiss the SEQRA cause of action is denied. Buffalo's motion to dismiss the SEQRA cause of action against Buffalo is granted. This decision renders moot petitioner's cross motion for judgment on the pleadings on the PBL, PRHPL and Trust Doctrine causes of action. On the SEQRA cause of action, petitioner's motion is denied. Pursuant to CPLR 7804 (f), respondents are permitted to answer within five days after service of the order with notice of entry.

Submit order on notice.

Dated: Little Valley, New York

March 8, 2006

_________________________

HON. LARRY M. HIMELEIN