Ask a Lawyer

by Jay Girvin, Esq., Girvin & Ferlazzo. P.C., Albany, New York

Q. Under what circumstances may my private property be taken by eminent domain?

The power of “eminent domain” is the right of the state to take private property for public use upon the payment of just compensation to the owner. Some people understandably consider the idea that the government can simply take private property over an owner’s objection to be distasteful or even un-American. However, many public projects that we take for granted today — the New York State Thruway, for example — would not have been possible without the state’s exercise of eminent domain. Given its focus on the “greater good,” eminent domain is appropriately used sparingly and in only those situations where the public need and benefit outweigh the harm to private ownership rights.

While the power of eminent domain is technically vested in the State of New York, the state has delegated that power to certain municipal entities, such as cities and counties, and in some cases to certain private entities that provide necessary public services, such as utility companies. When a proposed public project requires the acquisition of private property (for example, widening a highway or extending an airport runaway), most often an effort will first be made to negotiate a voluntary sale-purchase agreement with the affected owners. If those efforts prove unsuccessful — where, for example, the owner is unwilling to sell, or the parties are unable to reach an agreement on price — the sponsor of the project may proceed to acquire the property through eminent domain.

The exercise of the eminent domain is subject to the procedural requirements set forth in New York’s Eminent Domain Procedure Law (EDPL). Under EDPL Article 2, the party seeking to acquire property through eminent domain — referred to as the “condemnor” — generally must first hold a public hearing to inform the public regarding the proposed project, to review the public use to be served, and to assess any impact on the environment. Notice of the public hearing must be provided to the owner or owners of any impacted property, as well as published in the local newspaper. At the hearing, the condemnor is required to outline the purpose and location of the proposed project, to identify the private property to be acquired, and to accept any oral or written comment from members of the public in attendance. Within 90 days after the public hearing, the condemnor must issue its determination and findings specifying, among other things, the public use, benefit, or purpose to be served by the proposed project.

An aggrieved party — including the owner of the private property proposed to be acquired — may judicially challenge the condemnor’s determination by filing a petition in court within 30 days. The scope of this judicial review, however, is very limited and usually revolves around four issues: (1) whether the condemnor complied with each of the procedural requirements of EDPL Article 2, (2) whether a public use or benefit will be served by the proposed project, (3) whether the amount of the private property proposed to be taken is reasonable in relation to the stated public use and benefit, and (4) whether the condemnor satisfied the environmental review requirements of the State Environmental Quality Review Act. While courts will often set aside determinations based on procedural violations, most courts will generally defer to the condemnor’s determination as to the public benefit to be served and the amount of private property reasonably necessary to meet the public purpose.

A condemnor then has up to three years to initiate the proceedings set forth in EDPL Article 4 to actually acquire the title or other interest in the private property subject to the Article 2 determination. If the condemnor fails to initiate acquisition proceedings within the three-year period, the acquisition will be deemed abandoned. In the meantime, the condemnor is required to obtain an appraisal of the fair market value of the property to be acquired, and to offer the amount reflected in that appraisal to the owner as “just compensation” for the taking.  The owner may accept the offer as payment in full, or may instead accept the offer as only an advance payment, reserving the right to seek any additional compensation the owner believes is due.

If the offer is accepted as an advance payment, the owner may file a claim for additional compensation with the court as provided in EDPL Article 5.  Both the condemnor and the owner will obtain appraisals opining as to the value of the real property taken and any direct and indirect losses resulting from the acquisition. Based on the expert testimony offered by the appraisers, the court will determine the just compensation legally due to the owner from the taking. If that amount exceeds the amount offered as the advance payment, the owner will be entitled to the entry of a judgment reflecting the additional compensation due, subject to any appeal by either party.

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