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Town of Tonawanda successful in its eminent domain case against NRG

Justices of the NYS Supreme Court Appellate Division agree with town, although one expresses dissent.

TONAWANDA, N.Y. — A panel of Justices of the NYS Appellate Division have dismissed a petition filed by the owners of the former Huntley Power Plant on River Road, which sought to prevent the Town of Tonawanda from seizing the property through eminent domain.

NRG brought the lawsuit last year following the town's authorization in July 2022 to acquire the property by condemnation, claiming it "would not serve a public use, benefit, or purpose."

The hulking plant, which formerly burned coal to generate electricity before being taken offline seven years ago, has been a part of Tonawanda for more than a century. 

In recent years, however, town Supervisor Joe Emminger says it's become an eyesore after several proposed sales of the property fell through.

"We were very confident when we argued the case back in January that we would be successful in defeating NRG's claim trying to stop our eminent domain action," Emminger told WGRZ-TV. "This is a critical site in the Town’s development efforts along the River Road Corridor.

"Within the next 30 days, the town will start to prepare an Expression of Interest to parties interested in cleaning up and redeveloping the site."  

Eminent domain called into question

The long-established power of eminent domain allows the government to seize private property (as long as they pay a fair price for it) for a public benefit, such as construction of a highway, an airport, or even a new stadium. 

NRG argued, however, that it's quite another thing for the town to take their property to sell it to a proposed private developer who currently only exists in theory, for a purpose, which is therefore yet to be specified.

Judges of the Appellate Division sided with the town, ruling that "what qualifies as a public purpose or public use, is so broadly defined, that it could encompass virtually any project that may confer a public benefit," even a project, which is merely conceivable.

While it's been years since any coal was fired to produce electricity at the plant, which NRG was still using and still making a profit from.

Huge water intakes along the Niagara River, once used for cooling the plant, now draw water sold to other nearby industries. 

Emminger says the town plans to continue doing that when it gets the property.

Because of that, however, one of the judges had a dissenting opinion regarding that part of the plant.

Judge issues dissenting opinion

"In my view the takings clauses of the federal and state constitutions, do not allow the government to take land through eminent domain, and use it for the exact same purpose for which the land owner is already using it," wrote Justice Steven Lindley, who has served on the Appellate bench since 2010 after being appointed by Gov. David Patterson.

While Lindley agreed with the Town's ability to seize the former plant site through eminent domain, he expressed opposition to the seizure of the water intakes, which he referred to as a "second taking."

"The majority finds that second taking to be lawful, but I do not," Lindley said.

2 On Your Side reached out to NRG for comment on the court's decision, and they provided the following statement from Dave Schrader, NRG, Senior Manager, Communications East.

"Huntley Power is disappointed with the Court’s decision to confirm the Town of Tonawanda’s Determination and Findings and is evaluating potential next steps. Huntley Power is a private landowner in good standing in the community and remains concerned about the effect the Town’s actions are having on the ability to return the site to productive use."

A potential next step by NRG could be to ask the state's highest court, The New York State Court of Appeals, to grant them leave to argue the case before its justices based in Albany.

Emminger acknowledged that it's a possibility, but added that in his opinion, "all they are doing is delaying the inevitable if they do that."   

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