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NFR Files New Brief in Eminent Domain Case, Attacking Niagara Falls’ Lack of Legal Basis for Taking Private Property

May 3, 2023

In a new reply brief filed by attorneys for Niagara Falls Redevelopment (NFR) in the eminent domain action launched by the City of Niagara Falls nearly a year ago, NFR alleges the city has fallen back on “bromides and bluster,” rather than facts and law—with attorneys for the city railing against a private landowner that has always faithfully paid its taxes and properly maintained its property.

The brief, which was filed on April 21, 2023, alleges the City of Niagara Falls’ legal argument does nothing to “establish the lawfulness of the taking” of NFR land on John Daly Boulevard, private property upon which the city has suddenly decided it wants to build a speculative and unfunded events center and park it calls “Centennial Park.”

Ultimately, the brief alleges, the City of Niagara Falls has not come close to showing a “public purpose” as required under the New York State’s Eminent Domain Procedure Law (EDPL). NFR attorneys state that, if the city is allowed to proceed with the taking of NFR’s land, “the protections afforded to tax-paying landowners by the New York and United States Constitutions and Eminent Domain Procedure Law (“EDPL”) will be rendered meaningless.”

Indeed, the brief states, it has become obvious that the city’s intentions have “little to do with a park, an event center, tourism, or anything of the like.”

“What the City wants,” the filing continues, “is to eject a commercial developer from property it owns in downtown Niagara Falls. After that, maybe funding materializes, maybe it doesn’t. But the City and its Mayor will be in control, just ahead of election season.”

There is no funding for Mayor Robert Restaino’s Plan, which he suggests could cost the City of Niagara Falls’ taxpayers $150 million (published reports have indicated the costs could actually be twice that). The speculative undertaking also faces an eminent domain battle that could last a decade and cost the city millions more. Even if successful, the land acquisition costs for the parcel of private property the city is coveting could exceed $20 million. Moreover, there is no tenant for Mayor Restaino’s proposed events center, and reports have shown it will never run at a profit.

According to the new court filing, it is unclear whether the City of Niagara Falls ever intends to build a park and events center on the land at all. According to the brief, Mayor Restaino said publicly last year:

[i]f you have the site and you don’t get the money, you still have the site and then you are looking at development…the first step is getting the property. With the property, we now control a critical corner in the downtown.

This would be in direct contravention of both state and federal eminent domain law.


City’s Main Arguments Deemed “Nonsense”

The brief also refutes other arguments being made by the City of Niagara Falls, including the notion that a state-required 2009 Comprehensive Plan enacted by the city was somehow “amended,” and the earlier designation of an East Falls Redevelopment Area by the city was “repealed.” The city’s current plan to take NFR’s land for its Centennial Park project would be in contravention of both city enactments. The brief is blunt in stating: “This is nonsense.”

Attorneys for NFR argue that the City of Niagara Falls’ assertion that the land is blighted is pure pretext. “The City improperly attempts to use this Court as a rubber stamp of its determination of blight, lacking any evidentiary support…” the brief states, adding that such a rubber stamp is specifically prohibited under New York State court decisions.

The filing points out that the city has offered no evidence at all to support this premise: “No smoking gun photographs; no citations; no delinquent tax records. No evidence of blight at all.”

Instead, the City’s sole rationale for its assertion of blight is the fact that the property is vacant—which, again, is not an allowable reason to label a property blighted under New York State law.

According to the court filing:

[I]t is indisputable that Petitioners’ property consists of a well-manicured plot of land. The grass is consistently cut. The taxes are always paid. If simply saying the word “blight” is sufficient to take a private citizen’s property, the constitutional and statutory safeguards preventing indiscriminate condemnation will have been rendered meaningless.


City Began Ill-Fated Eminent Domain Quest Nearly a Year Ago

Nearly a year ago, the city began an eminent domain action against the NFR, even after working with them and Toronto developer Urbacon on a competing project on the same parcel of land. After working with NFR and Urbacon for several months, the City of Niagara Falls just walked away and announced its own plans for the property.

Urbacon, a Toronto-based developer and operator of state-of-the-art data centers, has proposed a $1.48 billion “Niagara Digital Campus” on the site, which would bring technology jobs and opportunity to the city. The Niagara Digital Campus would create approximately 5,600 jobs during construction, and 550 permanent jobs for residents of all skill levels upon completion. Urbacon has developed similar facilities in Montreal, Toronto, Richmond Hill, and Ontario, all of which are 100% occupied.

The project would be privately funded, through a partnership between Urbacon and NFR. In other words, no city tax dollars would be needed. In addition, NFR has also offered to donate land for a park in the city as part of the deal, along with $250,000 per year for ten years for upkeep and maintenance. NFR and others in the city have also identified an underused, city-owned parking lot on Niagara Street and Third Street that would be perfect for an events center: it is next to an existing municipal parking garage and would be close to restaurants, bars and other commercial establishments along Third Street—in keeping with the goals of various city and state-sponsored development plans.


Next Steps

A hearing on the City of Niagara Falls’ eminent domain petition will be held before the Appellate Division of the New York State Supreme Court on May 22, 2023, with a decision expected in the months after.

Appeals of any decision in favor of the City of Niagara Falls could take years and cost City of Niagara Falls millions in legal fees and additional costs.

After nearly a year into the process, there is still no indication as to how much the City of Niagara Falls has spent in legal fees to pursue its eminent domain plan.

A copy of the full brief can be downloaded here.

The court docket with all briefs and exhibits is available here.