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New York Real Estate Law ReporterFeaturesGovernmentLandlord Tenant Law

How Much Deference to Public Use Determinations?

By Stewart E. Sterk
February 01, 2023

How closely will New York courts scrutinize exercises of the eminent domain power? Until recently, courts have been quite deferential when entities clothed with eminent domain power have determined that private property is necessary for public use. Two recent decisions, however, suggest that there are limits to that deference.

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Background

Article I, Section 7, of The New York State Constitution, like the Fifth Amendment of the United States Constitution, provides that "[p]rivate property shall not be taken for public use without just compensation." At the federal level, the United States Supreme Court has transformed the "public use" requirement into a "public purpose" requirement; so long as the condemnor can conjure up a public purpose for the taking, the condemnor does not have to demonstrate that the property will be open to the public. The Court had abandoned any requirement that the condemnor show use the public as early as 1906 in Strickley v. Bay Gold Mining Co., 200 U.S. 527, and the Court reaffirmed that position in Kelo v. City of New London, 545 U.S. 469, where it sustained a taking for economic development purposes. In Kelo, Justice Stevens also indicated that the Court would defer to the condemning authority on another issue: what land does the condemnor need to accomplish the public purpose.

The New York Court of Appeals took a similar deferential approach in Goldstein v. New York State Urban Development Corp., 13 N.Y.3d 511. In upholding condemnation to facilitate the Atlantic Yards development, the court concluded first that removal of urban blight is a proper predicate for exercise of the eminent domain power, and second, that when the condemnor determines that blight exists, courts will not re-examine that determination unless it would be irrational and baseless. The court took the same approach in Kaur v. New York State Urban Development Corp., 15 NY3d 235, sustaining condemnation of the Manhattanville neighborhood to facilitate Columbia University's expansion. As in Goldstein, the condemnor had based its decision to condemn on the need to remove blight in the neighborhood, and conducted a study designed to demonstrate that blighted conditions existed. The Court of Appeals was unwilling to second-guess the study's blight determination.

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