New York's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Laws?

  The State of New York and all government subdivisions such as cities, towns and villages can exercise eminent domain powers. While the State’s power is inherent, other government subdivisions have their authority set forth in specific state laws, such as the Municipal Law, the Town Law and Village Law. Utilities and Industrial Development Agencies have the power to condemn in their jurisdictional borders. A frequent condemning entity is the New York State Urban Development Corporation, a New York State Public Benefit Corporation authorized by statute to exercise the power of eminent domain.

• What Are the Legal Requirements for Exercising the Power?

  There are two methods to take property by exercising the power of eminent domain in New York. The first is by filing an appropriation map. This is the procedure followed by the State of New York. See Highway Law, Sec. 30 and EDPL Sec. 402 (A).
  
  Most condemnations, however, are by commencement of a special proceeding which can be initiated by filing a petition to condemn under New York’s Eminent Domain Procedure Law (EDPL). This law sets forth a very detailed, step by step process that must be followed. Pursuant to Section 201 of the EDPL there must be public hearings for both state and non-state takings at a location reasonably proximate to the property. Further, pursuant to Section 202 there must be appropriate notice by publication and by personal service or certified mail, return receipt requested, to each assessment record billing owner or his or her attorney of record.
  
  The public hearing is to address the project, to give information concerning the impact of the taking on the claimant’s remaining land, and to alert the condemnor to factors that might make the acquisition of the subject property more expensive than originally contemplated.
  
  A condemnor must take findings on specific issues. Under Section 204, such findings must address the public use and benefit of the project, the approximate location, the effect of the project on the environment and residents, and other relevant factors.
  
  Finally, after the conclusion of a public hearing, and within 90 days, a condemnor is to make a Determination and Findings concerning the proposed public project. N.Y. Em. Dom. Proc. Law § 204(A). There is also a requirement to publish a synopsis of the determination in at least two successive issues of a newspaper. Id. § 204(A).

• What Limitations or Defenses Exist?

  In New York there is only one method to challenge a Determination and Findings to condemn and any challenge must be made by filing a petition pursuant to Section 207 of the EDPL within 30 days of the condemnor’s publication of its synopsis. Section 207 of the EDPL mandates that the petition is to be an original proceeding filed in the Appellate Division embracing the county where the property was located. Further, only a “condemnee” as defined by Section 103(c) of the EDPL can file a petition.
  
  There are only four grounds for challenging a Determination and Findings. They are:
  
  Was the proceeding in conformity with Federal and State constitutions; Whether the proposed acquisition is within the condemnor’s statutory jurisdiction or authority;
  
  Whether the condemnor’s determination and findings were made in accordance with procedures set forth in this article [Article 2] and with Article 8 of the Environmental Conservation Law (SEQRA); and Whether a public use, benefit, or purpose will be served by the proposed acquisition. N.Y. Em. Dom Proc. Law § 207(C).
  
  The scope of review is extremely narrow. It is not a de novo hearing. Generally, the Appellate Division reviewing the determination will hold that the decisions made by the condemnor are legislative in nature and will not review the decision to condemn if it was rationally related to a conceivable public purpose. Generally, in New York it is extremely difficult to stop a condemnation proceeding.

• What Constitutes a Public Purpose?

  Both the New York State Constitution (Art. IX, Sec.1(e)) and the United States Constitution (Amend. V) permit governmental entities to take private real property for public use under eminent domain. However, public use or purpose is interpreted broadly under New York law. For instance, public purpose has been defined to include purely economic benefit. A private landowner’s benefit will also not preclude a condemnation where there is some incidental public benefit. Waldo’s, Inc. v. Village of Johnson City, 74 NY2d 718, 544 NYS2d 809, 543 NE2d 74 (1989).

• How is Just Compensation Determined?

  It is the general rule in New York that just compensation is to be determined based on the fair market value of the property at the date of taking. Just compensation is determined by a non-jury trial before a Supreme Court Justice or if the property was taken by the State of New York by a Court of Claims Judge which is again non-jury.

• How Is Fair Market Value Defined?

  It is the general rule in New York that just compensation is to be determined based on the fair market value of the property at the date of taking. Essentially, the fair market value is the price for which the property would sell if there was a willing buyer under no compulsion to buy and a willing seller under no compulsion to sell. In the determination of the fair market value, the condemnee is entitled to have the appraisal based on the highest and best use of the property. That is, considering the best use to which the property could reasonably be put, what is its fair market value? If the parties do not agree on the value, they will typically utilize appraisers to assist in the negotiation process. If the case is litigated, both sides will ordinarily present expert testimony from appraisers as to the fair market value of the property.

• What About Recovering Damages to Remaining Property

  Consequential damages may also be awarded because of the use that the direct taking is being put to, for example, a partial taking for a high voltage line. See Crisuola v. Power Authority of the State of New York, 81 NY2d 649, 621 NE2d 1195 (1993).

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  EDPL § 701 provides as follows:
  
  “In instances where the order or award is substantially in excess of the amount of the condemnor’s proof and where deemed necessary by the court for the condemnee to achieve just and adequate compensation, the court, upon application, notice and an opportunity for hearing, may in its discretion, award to the condemnee an additional amount, separately computed and stated, for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser and engineer fees actually incurred by such condemnee. The application shall include affidavits of the condemnee and all parties that have incurred expenses on the condemnee’s behalf, setting forth inter alia the amount of the expenses incurred.”
  
  The threshold test to be entitled to an additional allowance pursuant to EDPL § 701 is that the award by the trial court must be substantially in excess of the condemnor’s proof. Whether the award is in excess of the condemnor’s proof can be determined by a percentage and/or in dollar terms. Awards which have been less than 35% over the offer have been deemed by the courts to be “substantially in excess” of the condemnor’s offer so as to qualify for an additional allowance.