Eminent Domain Law

AppDiv, Second Dept.

(memorandum opinion)

Landowner brought a proceeding pursuant to EDPL section 207 to reviews the city's decision to condemn real property for use as an emergency medical service station. The court confirmed the city's determination and dismissed the proceeding, holding that landowner had afforded no basis for upsetting the city's determination.

Landowner contended that the city did not need to acquire a fee interest in the property to accomplish the city's public purpose. Landowner also argued that the city's SEQRA review was inadequate.

In rejecting landowner's contention that acquisition of the fee interest was unnecessary, the court held that the city's decision was rational, and that landowner had made no “clear showing” of the city's bad faith. The court also rejected landowner's argument that the condemnation required a positive declaration under SEQRA, noting that the proposed use was the same use to which the property has been put since 1987, and landowner had failed to demonstrate any significant environmental harm that might result from the proposed condemnation. As a result, the negative declaration, based on an environmental assessment form, was adequate under SEQRA.

COMMENT

Although courts generally defer to a condemnor's “broad discretion in deciding what land is necessary to fulfill the public purpose” when the condemnor articulates its reasons at the time of condemnation, courts are less deferential when the condemnor first offers an explanation for why it needs all of the land in a judicial challenge to the condemnation. Thus, in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 47 A.D.3d 267, 278, the court held that the town did not take in excess of its need for its public purpose of preserving farmland, because the landowner's property “was specifically designated for preservation” during condemnation proceedings. Id. The court reached this holding even though the property owner asserted that the condemnor contemplated selling or leasing the land to another private owner for use as a farm. By contrast, in Rafferty v. Town of Colonie, 300 A.D.2d 719, 723, the court sustained a landowner's claim of excess condemnation where the town conceded that the public purpose offered at the time of condemnation ' to improve traffic flow and safety ' did not justify condemning all of landowner's property. Instead, the town's apparent purpose was to avoid the landowner's filing an inverse condemnation claim against it because the land not needed for traffic flow would be left without road access ' a purpose not articulated at the time of condemnation. Perhaps courts show less deference in cases like Rafferty, where a public purpose is first offered in a judicial challenge to the condemnation, rather than at the time of condemnation, because to show deference in such cases would effectively permit a condemnor to take land without following condemnation procedures such as public hearing and notice, which are required by statute. See N.Y. Em. Dom. Proc. Law art. 2.

The Court of Appeals has suggested that the same deference pattern should apply not only in cases where landowner's challenge is “to the volume of land to be taken, but as well to the nature or extent of the estate in the property taken.” Hallock v. State of New York, 32 N.Y.2d 599, 605. In Hallock itself, the court, in a 5-2 decision, held that a judicial evaluation was necessary to determine whether the state needed to condemn a fee interest in land, or only an easement to remove sand and gravel. The court noted that the state power authority had never made a determination that taking of a fee was necessary, but indicated that if such a determination had been made, “[w]e would attach considerable but not necessarily controlling legal significance” to that determination. The court explicitly distinguished an earlier case (Sweet v. Buffalo, N.Y. & Phila. Ry. Co., 79 N.Y. 293) upholding a determination to take a fee interest, noting that in Sweet, the legislature had made a factual finding that full fee title, and not merely an easement, was necessary to accomplish the public purpose.

If, however, the landowner does not, at the time of condemnation, raise the possibility that the public purpose could be served by condemning an interest short of a fee, the court may sustain the condemnor's action even if the condemnor did not, during the condemnation proceeding, make a finding that a fee was necessary. For example, in Doyle v. Schuylerville Cent. Sch. Dist., 35 A.D.3d 1058, the court deferred to the school district's condemnation of a fee interest to provide a second access road to a school when, during the condemnation proceeding, the condemnee had primarily questioned the location of the proposed roadway rather than challenging the scope of the interest the school district had decided to condemn. Brief for Respondent at 7-9, No. 500589.

Acquisition of Fee Interest Rational

Matter of 265 Penn Realty Corp. v. City of New York

NYLJ 10/26/12, p. 30, col. 6

AppDiv, Second Dept.

(memorandum opinion)

Landowner brought a proceeding pursuant to EDPL section 207 to reviews the city's decision to condemn real property for use as an emergency medical service station. The court confirmed the city's determination and dismissed the proceeding, holding that landowner had afforded no basis for upsetting the city's determination.

Landowner contended that the city did not need to acquire a fee interest in the property to accomplish the city's public purpose. Landowner also argued that the city's SEQRA review was inadequate.

In rejecting landowner's contention that acquisition of the fee interest was unnecessary, the court held that the city's decision was rational, and that landowner had made no “clear showing” of the city's bad faith. The court also rejected landowner's argument that the condemnation required a positive declaration under SEQRA, noting that the proposed use was the same use to which the property has been put since 1987, and landowner had failed to demonstrate any significant environmental harm that might result from the proposed condemnation. As a result, the negative declaration, based on an environmental assessment form, was adequate under SEQRA.

COMMENT

Although courts generally defer to a condemnor's “broad discretion in deciding what land is necessary to fulfill the public purpose” when the condemnor articulates its reasons at the time of condemnation, courts are less deferential when the condemnor first offers an explanation for why it needs all of the land in a judicial challenge to the condemnation. Thus, in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 47 A.D.3d 267, 278, the court held that the town did not take in excess of its need for its public purpose of preserving farmland, because the landowner's property “was specifically designated for preservation” during condemnation proceedings. Id. The court reached this holding even though the property owner asserted that the condemnor contemplated selling or leasing the land to another private owner for use as a farm. By contrast, in Rafferty v. Town of Colonie, 3 00 A.D.2d 719, 723, the court sustained a landowner's claim of excess condemnation where the town conceded that the public purpose offered at the time of condemnation ' to improve traffic flow and safety ' did not justify condemning all of landowner's property. Instead, the town's apparent purpose was to avoid the landowner's filing an inverse condemnation claim against it because the land not needed for traffic flow would be left without road access ' a purpose not articulated at the time of condemnation. Perhaps courts show less deference in cases like Rafferty, where a public purpose is first offered in a judicial challenge to the condemnation, rather than at the time of condemnation, because to show deference in such cases would effectively permit a condemnor to take land without following condemnation procedures such as public hearing and notice, which are required by statute. See N.Y. Em. Dom. Proc. Law art. 2.

The Court of Appeals has suggested that the same deference pattern should apply not only in cases where landowner's challenge is “to the volume of land to be taken, but as well to the nature or extent of the estate in the property taken.” Hallock v. State of New York, 32 N.Y.2d 599, 605. In Hallock itself, the court, in a 5-2 decision, held that a judicial evaluation was necessary to determine whether the state needed to condemn a fee interest in land, or only an easement to remove sand and gravel. The court noted that the state power authority had never made a determination that taking of a fee was necessary, but indicated that if such a determination had been made, “[w]e would attach considerable but not necessarily controlling legal significance” to that determination. The court explicitly distinguished an earlier case ( Sweet v. Buffalo, N.Y. & Phila. Ry. Co., 79 N.Y. 293) upholding a determination to take a fee interest, noting that in Sweet, t he legislature had made a factual finding that full fee title, and not merely an easement, was necessary to accomplish the public purpose.

If, however, the landowner does not, at the time of condemnation, raise the possibility that the public purpose could be served by condemning an interest short of a fee, the court may sustain the condemnor's action even if the condemnor did not, during the condemnation proceeding, make a finding that a fee was necessary. For example, in Doyle v. Schuylerville Cent. Sch. Dist., 35 A.D.3d 1058, the court deferred to the school district's condemnation of a fee interest to provide a second access road to a school when, during the condemnation proceeding, the condemnee had primarily questioned the location of the proposed roadway rather than challenging the scope of the interest the school district had decided to condemn . Brief for Respondent at 7-9, No. 500589.