Brady v. Genesee & Wyoming Railroad

Memorandum: We reject petitioners’ contention that the land condemned by respondent, The Genesee and Wyoming Railroad Company (Railroad), for the construction of a railroad spur to the proposed new Akzo Nobel salt mine in the Hampton Corners area will not serve a public use, benefit or purpose (see generally, Clarke v Blackmar, 47 NY 150, 156-157; Stanley v Jay St. Connecting R. R., 182 App Div 399, 402-403, affd 227 NY 639). We likewise reject the contention that the Railroad’s determination and findings must be annulled because the Railroad failed to comply with the State Environmental Quality Review Act (SEQRA). Because the Railroad is a private railroad corporation and not an "agency” (ECL 8-0105 [3]), it is not required to comply with SEQRA. Additionally, the 1991 amendment to EDPL 207 (C) (3) is a technical one, permitting an appellate court to pass on both EDPL and SEQRA issues in one proceeding (see, Matter of East Thirteenth St. Community Assn. v New York State Urban Dev. Corp., 84 NY2d 287, 296-297, mot to amend remittitur denied 84 NY2d 974) and does not expand the provisions of SEQRA to include all condemnors (see, Mem of Attorney-General, 1991 NY Legis Ann, at 190; Mem of Commr of Envtl Conservation, 1991 Assembly Bill A 6640). That conclusion does not alter the requirement that the involved agencies participate in a SEQRA review of the project. Indeed, we note that a SEQRA review has been undertaken. We have reviewed the remaining contention of petitioners and conclude that it is without merit. (Original Proceeding Pursuant to EDPL 207.) Present — Denman, P. J., Lawton, Do-err and Balio, JJ.