Eminent Domain

In confirming the agency's determination, the Appellate Division emphasized that the principal purpose of proceedings under EDPL 207 is to make sure that an agency does not acquire property without making a reasoned determination that the condemnation will serve a valid public purpose. In this case, the court concluded that the agency's determination was rationally related to the stated public purpose. The court also noted that landowner's contention that alternate sites would better serve the public purpose is not a basis for relief under EDPL 207.

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Industrial Development Agency Did Not Have Authority to Condemn Land Already Used for a Public Purpose

Matter of City of New York v. Yonkers Industrial Development Agency NYLJ 3/22/19, p. 31, col. 6 AppDiv, Second Dept. (memorandum opinion)

Landowner, the City of New York, petitioned to review a determination by the Yonkers Industrial Development Agency authorizing the taking of land by eminent domain. The Appellate Division granted the petition, holding that the Yonkers IDA did not have authority to condemn land already used for a public purpose.

The City of New York owns 3.64 acres of waterfront land in the City of Yonkers, and leases the land to the MTA and the MTA Bus Company for use as a bus depot. In March 2017, the Yonkers Industrial Development Agency adopted a resolution to commence condemning the bus depot parcel to return it to productive use pursuant to one of the city's urban renewal plans. The resolution authorized the condemnation of the New York City's fee interest, but not the MTA's leasehold interest. The City of New York brought this proceeding to review the determination.

In granting the petition, the court held that a government entity may not condemn land already devoted to public use unless the entity obtains legislative authorization or the condemnation does not interfere with the existing public use. In this case, the Yonkers IDA conceded that the bus depot constituted a public use and that no legislative authority exists for the condemnation. The IDA, however, argued that because it was condemning only the city's fee, not the MTA's lease, the condemnation would not interfere with the existing use. In rejecting that argument, the court noted that the public purpose that justified the condemnation — redevelopment along the Hudson River — was inconsistent with continued maintenance of the bus terminal.

Comment

When a county or municipal entity attempts to condemn land that has already been condemned by another public entity, the doctrine of prior public use generally invalidates the condemnation in the absence of specific legislation directly authorizing the particular condemnation, especially when there is evidence that the prior public use is still of great value to the public. For example, in E & J Holding Corp. v. Noto, 126 A.D.2d 641 (1987), the Second Department held that the Town could not condemn a portion of an active highway to construct a resource recovery facility in its place when the Town could not point to a clear and express legislative authority that would grant the condemnation, and various New York state and local statutes showed the legislature's clear preference to restrict the discontinuance of land already used as a public highway. Similarly, in Suffolk County v. Pinelawn Cemetery, 130 A.D.2d 575 (1987), the Second Department held that the County could not condemn a strip of cemetery land to widen a country road when the county did not show a special grant of permission from the legislature prior to condemning the strip, and the New York legislature had “practically promised” that cemetery lands should not be put to other uses, and courts are willing to relax the specificity requirement and look to a broad range of implicit legislative authority where the proposed second public use is in response to a “special, unusual, and peculiar” circumstance such that the new use is needed to provide a greater benefit to the public than the prior use. For example, in Town of Riga v. County of Monroe, 166 A.D.2d 39 (1991), the Fourth Department held that the County's condemnation of a portion of a road owned by the Town to build a landfill was a “special, unusual, and peculiar circumstance” since the County needed to address its solid waste crisis, and the New York state legislature had directly authorized such a condemnation by designating counties as the exclusive managers of solid waste planning. In a case similar to Matter of City of New York but reaching a different result, the Supreme Court of Monroe County in City of Rochester v. Rochester Gas & Elec. Corp., 54 Misc. 2d 855 (1967) held that the City was authorized — through various federal and state laws that evinced a “national concern” regarding the effect of slums and blighted areas—to condemn land as part of an urban renewal project where the property, although intended for future public use, had only been used as a private parking lot for 35 years.

The doctrine does not apply when the State or an agency of the State seeks to condemn property already used for public purposes, since “the rights to retake are inherent in [the State's] sovereignty, and are prior to Constitutions and statutes.” See, In re Elimination of Highway-Railroad Crossing in Village of Altamont, 234 A.D. 129, 131 (1931) (holding that the doctrine did not apply, and the State, acting through its statutorily established agency, could condemn a portion of railroad property to build an underpass).