Establishes eminent domain shall only be used for public projects; establishes after any industrial development agency approves the use of eminent domain, the county legislature or the New York city council shall vote to determine whether or not to condemn such property; establishes a condemnor shall reimburse a condemnee any relocation costs.
BILL NUMBER: S1653
TITLE OF BILL :
An act to amend the eminent domain procedure law, in relation to the use of eminent domain
To prevent eminent domain abuse and ensure that eminent domain is only used for true public projects.
SUMMARY OF PROVISIONS :
Section 1 -- Amends section 104 of the Eminent Domain Procedure Law to state that eminent domain may only be used for traditional public projects. This section also outlines what constitutes a traditional public project.
Section 2 -- Adds a section 204-a to the Eminent Domain Procedure Law to require that any eminent domain takings by non-elected industrial development agency (IDA) board must be approved by the elected governing body of the municipality for whose benefit the agency was created and where the property proposed to be condemned is located.
Section 3 -- Amends subdivision (A) of section 702 of the Eminent Domain Procedure Law to require that the owner of property being taken by eminent domain be paid relocation costs.
Section 4 -- Effective date.
In 2005, the Supreme Court of the United States ruled in the case of KELO V. CITY OF NEW LONDON , that the various benefits associated with economic development can provide a valid "public purpose" which justifies the taking of property by eminent domain for projects that substantially benefit a private party. In that case, the City of New London approved a revitalization plan which authorized the use of eminent domain to take private properties which were clearly not blighted, but rather would be included in a larger project focused on a research facility to be built by Pfizer corporation. In declining to provide any definitive rule on the use of eminent domain when a private party is a significant beneficiary of the action, the Court's opinion cited a long standing policy of deference to legislative judgments. The opinion further noted that a state may place further restrictions on its exercise of the takings power, as many do through statute or constitutional limitations.
This legislation clarifies that the exercise of eminent domain powers should be reserved for those public infrastructure and services purposes commonly provided by government. Such projects, including transportation, public safety, recreation, water supply and sanitation facilities, are essential functions that can require the utilization of private property, for which the property owner should be fully compensated. The compensation currently provided for under New York's eminent domain process includes the value of the property and certain other costs, such as prepayment penalties on a mortgage. For many property owners, however, the relocation costs associated with moving to a new location can represent an undue burden. Businesses in particular may be unable to reestablish operations in the face of such costs, placing existing investment in a community, and associated jobs, at risk. The bill includes such relocation costs as an incidental expense which must be paid to the owner of a property being taken by eminent domain. To ensure that the overall impact on a community is fully considered in those circumstances where an industrial development agency (IDA) is exercising eminent domain powers to take a property, any such action will be subject to a vote by the elected governing body of the municipality for whose benefit the agency was created and where the property proposed to be condemned is located to determine whether or not to condemn the property.
The provisions of this bill will enhance oversight of the use of eminent domain and more fairly compensate those owners that have property taken for important public uses.
LEGISLATIVE HISTORY :
2005-2006 -- S.5938 (reported from the Judiciary Committee)/A.9079 (referred to the Judiciary Committee) 2007-2008 -- S.915-A (reported from the Judiciary Committee)/A.661-A (referred to the Judiciary Committee)
FISCAL IMPLICATIONS :
EFFECTIVE DATE : Immediately.
STATE OF NEW YORK ________________________________________________________________________ 1653 2009-2010 Regular Sessions IN SENATE February 4, 2009 ___________Introduced by Sens. DeFRANCISCO, KRUEGER, MORAHAN, VOLKER -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the eminent domain procedure law, in relation to the use of eminent domain THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 104 of the eminent domain procedure law is amended to read as follows: S 104. Applicability. The eminent domain procedure law shall be uniformly applied to any and all acquisitions by eminent domain of real property within the state of New York. EMINENT DOMAIN SHALL ONLY BE USED FOR PUBLIC PROJECTS INCLUDING FOR THE PURPOSE OF ESTABLISHING, LAYING OUT, EXTENDING AND WIDENING STREETS, AVENUES, BOULEVARDS, ALLEYS, AND OTHER PUBLIC HIGHWAYS AND ROADS; FOR PUMPING STATIONS, WATERWORKS, RESERVOIRS, WELLS, JAILS, POLICE AND FIRE STATIONS, CITY HALLS, OFFICE AND OTHER PUBLIC BUILDINGS INCLUDING SCHOOLS, CEMETERIES, PARKS, PLAY- GROUNDS AND PUBLIC SQUARES, PUBLIC OFF-STREET PARKING FACILITIES AND ACCOMMODATIONS, LAND FROM WHICH TO OBTAIN EARTH, GRAVEL, STONES, AND OTHER MATERIAL FOR THE CONSTRUCTION OF ROADS AND OTHER PUBLIC WORKS AND FOR RIGHT-OF-WAY FOR DRAINS, SEWERS, PIPE LINES, AQUEDUCTS, AND OTHER CONDUITS FOR DISTRIBUTING WATER TO THE PUBLIC; FOR FLOOD CONTROL; FOR HOUSING; FOR USE BY THE GOVERNMENT OF THE UNITED STATES; FOR RAILROADS, CANALS AND NAVIGABLE WATERWAYS, AIRPORTS AND OTHER PUBLIC TRANSPORTATION FACILITIES AND SERVICES; FOR WATER POWER, PUBLIC UTILITIES OR OTHER PRODUCTION AND TRANSMISSION OF HEAT, LIGHT OR POWER; FOR RECREATION, CONSERVATION, OPEN SPACE AND HISTORIC, ENVIRONMENTAL AND CULTURAL RESOURCE PROTECTION, AND SOLID WASTE MANAGEMENT; FOR RIVER REGULATION OR MANAGEMENT; FOR PUBLIC HOSPITALS AND HEALTH CARE FACILITIES; FOR RECLA- MATION OF SWAMP LANDS AND TO TAKE SUCH EXCESS OVER THAT NEEDED FOR SUCH PUBLIC USE OR PUBLIC IMPROVEMENT IN CASES WHERE SMALL REMNANTS WOULDEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04552-01-9 S. 1653 2
OTHERWISE BE LEFT OR WHERE OTHER JUSTIFIABLE CAUSE NECESSITATES THE TAKING TO PROTECT AND PRESERVE THE CONTEMPLATED IMPROVEMENT OR PUBLIC POLICY DEMANDS, THE TAKING IN CONNECTION WITH THE IMPROVEMENT, AND TO SELL OR LEASE THE EXCESS PROPERTY WITH SUCH RESTRICTIONS AS MAY BE DICTATED BY CONSIDERATIONS OF PUBLIC POLICY IN ORDER TO PROTECT AND PRESERVE THE IMPROVEMENT; PROVIDED THAT WHEN THE EXCESS PROPERTY IS DISPOSED OF IT SHALL BE FIRST OFFERED TO THE ABUTTING OWNERS FOR A REASONABLE LENGTH OF TIME AND AT A REASONABLE PRICE AND IF SUCH OWNERS FAIL TO TAKE THE EXCESS PROPERTY THEN IT MAY BE SOLD AT PUBLIC AUCTION. S 2. The eminent domain procedure law is amended by adding a new section 204-a to read as follows: S 204-A. VOTE BY LOCAL GOVERNMENT. AFTER ANY INDUSTRIAL DEVELOPMENT AGENCY APPROVES THE USE OF EMINENT DOMAIN, THE GOVERNING BODY OF THE MUNICIPALITY: (A) FOR WHOSE BENEFIT THE AGENCY WAS CREATED, AND (B) WHERE THE PROPERTY PROPOSED TO BE CONDEMNED IS LOCATED, SHALL VOTE TO DETERMINE WHETHER OR NOT TO CONDEMN THE PROPERTY. FOR PURPOSES OF THIS SECTION, THE TERMS "MUNICIPALITY" SHALL MEAN ANY COUNTY, TOWN, CITY OR VILLAGE IN THE STATE; AND "GOVERNING BOARD" SHALL MEAN THE BODY IN WHICH THE GENERAL LEGISLATIVE POWERS OF THE MUNICIPALITY ARE VESTED, INCLUDING THE BOARD OF SUPERVISORS OF A COUNTY, THE TOWN BOARD OF A TOWN, THE COMMON COUNCIL OF A CITY, THE CITY COUNCIL, IF THE PROPERTY IS LOCATED IN A COUNTY WHOLLY CONTAINED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR MORE, AND THE BOARD OF TRUSTEES OF A VILLAGE. S 3. Subdivision (A) of section 702 of the eminent domain procedure law is amended to read as follows: (A) The condemnor shall reimburse a condemnee an amount separately computed and stated, representing the following incidental expenses: (1) any recording fees, transfer taxes and other similar expenses in connection with the acquisition of the property by the condemnor or in connection with the transfer of the property to the condemnor;
[and](2) any penalty incurred by the condemnee for prepayment of any preex- isting recorded mortgage entered into in good faith, encumbering such property; [and](3) the pro rata portion of the real property taxes, water rents, sewer rents, special ad valorem taxes and other charges paid or payable to a taxing entity which are allocable to a period subsequent to the date of vesting title or the effective date of possession of such prop- erty in the condemnor, whichever is earlier [.]; AND (4) ANY RELOCATION COSTS INCURRED IN CONNECTION WITH THE ACQUISITION OF THE PROPERTY BY THE CONDEMNOR OR IN CONNECTION WITH THE TRANSFER OF THE PROPERTY TO THE CONDEMNOR. S 4. This act shall take effect immediately and shall apply to any eminent domain procedures commenced on or after such date.