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Bad-Faith Condemnation
Can a government entity's mistreatment of a landowner preclude the entity from subsequently condemning landowner's property ' even when the entity demonstrates an appropriate public purpose for the condemnation? In Matter of Zutt v. State of New York, NYLJ 7/27/12, p. 27., col. 1. The Second Department appeared to answer that question in the affirmative, precluding the state Department of Transportation (DOT) from acquiring a drainage easement by eminent domain. The facts of the case, however, suggest that the court's holding may have limited application to other cases.
The Facts and the Litigation
The Zutts purchased their home in 2000. Later that year, their property was damaged by stormwater discharged from a culvert under a state road. After the Zutts repaired the damage, another flood damaged their property the following year. The Zutts then contacted DOT, which informed them that the state would not take remedial measures. The state asserted a prescriptive easement based on its installation of a drainage system that had been in operation since 1984. When landowners brought an action in the Court of Claims, the court rejected the prescriptive easement argument because, in the years since 1984, the state had taken steps to increase the velocity of water flowing over the Zutts' land, and entered a judgment in favor of the Zutts. The Second Department affirmed.
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