Court rules TransGas Energy’s condemnation is premature. TransGas Energy Systems proposed to construct a power plant along the East River waterfront in Williamsburg. It spent $1.5 million in March 2001 on an option to purchase the site, and, in 2002, filed for approval from the state Siting Board.

At Siting Board hearings, the City opposed the plan, testifying that it planned to rezone the entire Williamsburg neighborhood and create a waterfront park. In 2004, the Siting Board denied the proposal and TransGas immediately filed a new application proposing to move the plant below ground to allow park space above. Thereafter in May 2005, while TransGas’s second proposal waited for a decision, the City rezoned north Brooklyn, which included Planning Commission approval of plans to acquire the site for a waterfront park.

TransGas then initiated steps to condemn the property by publishing notices and holding a hearing. Days later, the City filed a court action to condemn the site. Trans- Gas then issued findings required to condemn the property and also filed a court action for condemnation. Each party challenged the others’ condemnation.

In May 2006, the court ruled in favor of TransGas, finding that the City’s condemnation circumvented the Siting Board’s authority, but stayed the City’s condemnation until the Siting Board ruled. 3 CityLand 63 (May 15, 2006).

In November 2006, the City won its challenge to TransGas’s condemnation when the Second Department ruled that TransGas lacked authority to file the condemnation action under the eminent domain law. The eminent domain law allows parties with approval by the Siting Board to skip the hearing and findings requirements and file directly in court to condemn the property. Accordingly, the Siting Board controlled the matter and TransGas could not hold its own hearing and issue its own findings. The court voided TransGas’s findings and its condemnation action, ruling that it must wait for the Siting Board’s decision.

City of New York v. TransGas Energy Services Corp., 2006 NY Slip Op 8123, Nov. 8, 2006, (2nd Dep’t) (Michael A. Cardozo, Lisa Bova-Hiatt, William Plache, Fred Kolikoff, for NYC; Sam M. Laniado, Steven D. Wilson, for TransGas).

CITYLAND Comment: By virtue of the two decisions, the action returns to the Siting Board and TransGas’s siting application. Until the Siting Board rules, the matter remains undecided.