Provides for the establishment of a state eminent domain ombudsman and provides for the powers and duties thereof; assists in the development of guidelines and analyzes actions with potential eminent domain implications; provides information to citizens regarding rights and responsibilities.
BILL NUMBER: S1670
TITLE OF BILL : An act to amend the transportation law, in relation to enacting the "eminent domain ombudsman act"
PURPOSE OR GENERAL IDEA OF BILL : This bill would create an Eminent Domain Ombudsman to help citizens understand the state's eminent domain process as well act as a mediator between affected citizens and government entities.
SUMMARY OF SPECIFIC PROVISIONS : The bill would add a new §23 to the Transportation Law.
* The ombudsman would be appointed by the commissioner. * The ombudsman will be required to:
* have expertise about the Eminent Domain Law. * work with state agencies and local governments in developing fair condemnation guidelines, * assist government with analyzing actions with eminent domains implications, * advise property owners who have a claim, * provide information to private citizens, * inform civic groups and other interested parties about the law, and * help mediate disputes.
JUSTIFICATION : The power of eminent domain is an important governmental tool to move forward on critical public projects. However, affected citizens are often not fully aware of their rights. On the other hand, government entities that are in the process of condemning property also do not fully understand their role and responsibility in condemnation proceedings. Since the process is complex condemnation proceedings often lead to increased conflict and resentment between affected citizens and governmental entities.
A. Need for the Eminent Domain Ombudsman
The Eminent Domain Ombudsman would help reduce tension between government and citizens, provide key information to citizens and government about the process and help facilitate an amenable resolution between all parties. Most important, the law would allow citizens to consult with an expert about their rights and responsibilities. Many citizens often do not know where to turn for information or cannot afford legal representation throughout an entire condemnation proceeding. While the ombudsman will not be able to officially represent individuals, the office will be able to provide expert knowledge and mediation assistance.
B. Success in Other States
This bill is modeled on the Utah Ombudsman which has been highly successful. Data from Utah support the importance and success of an ombudsman position. First, it has been a great information source that has provided clarity about the process. Various people and groups in Utah use the ombudsman as a resource. In a recent survey many used the ombudsman's office as a resource in Utah including property owners, government officials, and other professionals. OMBUDSMAN'S REPORT ON PRIVATE PROPERTY , Craig M. Call: Utah Ombudsman (June 2003).
In Utah, the ombudsman has been successful in mediating between parties, finding amicable resolution to condemnation proceedings, and providing key information about the process. Specifically:
* Information Source - Utah's Ombudsman has been successful at educating citizens and local governments of their rights in condemnation proceedings. In addition, the Ombudsman has been a valuable source of informational materials including creating easy to understand informational materials.
* Dispute Resolution - Utah's Ombudsman has successfully resolved various disputes between parties. As the Utah report states, "Without imposing his own view, the Ombudsman can often pass along ideas for settlement from one party to another. Careful listening to the real intent and desire of each party can often suggest middle ground that resolves a dispute." OMBUDSMAN'S REPORT ON PRIVATE PROPERTY , Craig M. Call: Utah Ombudsman (June 2003).
The Utah report further states that, "the Ombudsman's office has succeeded in reducing the amount of time, cost and hassle involved in disputes... AND the great majority of the more than 200 cases involving the Ombudsman's office were resolved without legal action and without the parties having to be satisfied with impasse." Like the Eminent Domain Notification Act of 2004, this bill would greatly aid citizens and government to understand and wade through a condemnation process. The eminent domain ombudsman will be able to provide expert knowledge, act as a mediator, and hopefully resolve all issues surrounding condemnation proceedings. The eminent domain ombudsman has a proven track record that would be a common sense effort to add more transparency and accountability to any condemnation process.
PRIOR LEGISLATIVE HISTORY : 2006: Senate Transportation Cmte./Assembly Judiciary Cmte. 2007: Senate Transportation Cmte./Assembly Judiciary Cmte.
FISCAL IMPACTS : To be determined.
EFFECTIVE DATE : This act shall take effect on the one hundred twentieth day after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 1670 2009-2010 Regular Sessions IN SENATE February 4, 2009 ___________Introduced by Sens. FLANAGAN, MAZIARZ -- read twice and ordered printed, and when printed to be committed to the Committee on Transportation AN ACT to amend the transportation law, in relation to enacting the "eminent domain ombudsman act" THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title. This act shall be known and may be referred to as the "eminent domain ombudsman act". S 2. The transportation law is amended by adding a new section 23 to read as follows: S 23. EMINENT DOMAIN OMBUDSMAN; POWERS; ARBITRATION PROCEDURES. 1. AS USED IN THIS SECTION: (A) "CONDEMNATION" OR "TAKING" MEANS A GOVERNMENTAL ACTION THAT RESULTS IN A TAKING OF PRIVATE PROPERTY SO THAT COMPENSATION TO THE OWNER OF THE PROPERTY IS REQUIRED BY: (I) THE FIFTH OR FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES; OR (II) THE STATE CONSTITUTION UNDER ARTICLE I, SECTION 7 OR ANY OTHER LEGAL PROVISION HAVING TO DO WITH EMINENT DOMAIN. (B) "TAKINGS LAW" MEANS THE PROVISIONS OF THE FEDERAL AND STATE CONSTITUTIONS, THE CASE LAW INTERPRETING THOSE PROVISIONS, AND ANY RELE- VANT STATUTORY PROVISIONS THAT REQUIRE A GOVERNMENTAL UNIT TO COMPENSATE A PRIVATE PROPERTY OWNER FOR A TAKING. 2. (A) THERE IS CREATED AN EMINENT DOMAIN OMBUDSMAN IN THE DEPARTMENT. (B) THE COMMISSIONER SHALL APPOINT A PERSON WITH BACKGROUND OR EXPER- TISE IN TAKINGS LAW TO THE POSITION. (C) THE POSITION IS AN EXEMPT POSITION. (D) THE COMMISSIONER MAY EMPLOY CLERKS, INTERNS, OR OTHER PERSONNEL TO ASSIST THE EMINENT DOMAIN OMBUDSMAN. 3. THE EMINENT DOMAIN OMBUDSMAN SHALL:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04813-01-9 S. 1670 2
(A) DEVELOP AND MAINTAIN EXPERTISE IN AND UNDERSTANDING OF TAKINGS LAW; (B) ASSIST STATE AGENCIES AND LOCAL GOVERNMENTS IN DEVELOPING THE GUIDELINES; (C) AT THE REQUEST OF A STATE AGENCY OR LOCAL GOVERNMENT, ASSIST THE STATE AGENCY OR LOCAL GOVERNMENT IN ANALYZING ACTIONS WITH POTENTIAL EMINENT DOMAIN IMPLICATIONS; (D) ADVISE PRIVATE PROPERTY OWNERS WHO HAVE A LEGITIMATE POTENTIAL OR ACTUAL EMINENT DOMAIN CLAIM AGAINST A STATE OR LOCAL GOVERNMENT ENTITY; (E) IDENTIFY STATE OR LOCAL GOVERNMENT ACTIONS THAT HAVE POTENTIAL EMINENT DOMAIN IMPLICATIONS AND, IF APPROPRIATE, ADVISE THOSE STATE OR LOCAL GOVERNMENT ENTITIES ABOUT THOSE IMPLICATIONS; (F) PROVIDE INFORMATION TO PRIVATE CITIZENS, CIVIC GROUPS, GOVERNMENT ENTITIES, AND OTHER INTERESTED PARTIES ABOUT TAKINGS LAW AND THEIR RIGHTS AND RESPONSIBILITIES UNDER IT; (G) IF APPROPRIATE AND REQUESTED TO DO SO BY THE PRIVATE PROPERTY OWNER, MEDIATE OR CONDUCT OR ARRANGE ARBITRATION FOR DISPUTES BETWEEN PRIVATE PROPERTY OWNERS AND GOVERNMENT ENTITIES THAT INVOLVE: (I) TAKINGS LAW ISSUES; (II) ACTIONS FOR EMINENT DOMAIN UNDER THE EMINENT DOMAIN PROCEDURE LAW OR ANY OTHER SECTION OF LAW HAVING TO DO WITH EMINENT DOMAIN; OR (III) DISPUTES ABOUT RELOCATION ASSISTANCE UNDER ARTICLE FIVE OF THE EMINENT DOMAIN PROCEDURE LAW; AND (H) IF ARBITRATION OR MEDIATION IS REQUESTED BY THE PRIVATE PROPERTY OWNER UNDER THIS SECTION, AND ARRANGED BY THE EMINENT DOMAIN OMBUDSMAN, THE GOVERNMENT ENTITY OR CONDEMNING ENTITY SHALL PARTICIPATE IN THE MEDIATION OR ARBITRATION AS IF THE MATTER WERE ORDERED TO MEDIATION OR ARBITRATION BY A COURT. 4. (A) THE EMINENT DOMAIN OMBUDSMAN MAY ASSIST A PRIVATE PROPERTY OWNER WITH RESPECT TO A DISPUTE INVOLVING THE EFFECT OF LOCAL GOVERNMENT REGULATION ON THE USE AND OCCUPANCY OF REAL PROPERTY; (B) IN ASSISTING A PRIVATE PROPERTY OWNER WITH A DISPUTE UNDER PARA- GRAPH (A) OF SUBDIVISION FIVE OF THIS SECTION, THE EMINENT DOMAIN OMBUDSMAN MAY NOT REQUIRE MEDIATION OR ARBITRATION OF A DISPUTE EXCEPT AS PROVIDED IN PARAGRAPH (G) OF SUBDIVISION THREE OF THIS SECTION. 5. (A) (I) IN CONDUCTING OR ARRANGING FOR ARBITRATION, THE EMINENT DOMAIN OMBUDSMAN SHALL FOLLOW THE PROCEDURES AND REQUIREMENTS OF ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES. (II) IN APPLYING ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES, THE ARBITRATOR AND PARTIES SHALL TREAT THE MATTER AS IF: (A) IT WERE ORDERED TO ARBITRATION BY A COURT; AND (B) THE EMINENT DOMAIN OMBUDSMAN OR OTHER ARBITRATOR CHOSEN AS PROVIDED FOR IN THIS SUBDIVISION WAS APPOINTED AS ARBITRATOR BY THE COURT. (III) FOR THE PURPOSE OF ARBITRATIONS CONDUCTED UNDER THIS SUBDIVI- SION, IF THE DISPUTE TO BE ARBITRATED IS NOT ALREADY THE SUBJECT OF LEGAL ACTION, THE COURT OF APPROPRIATE JURISDICTION SHALL ACT AS THE COURT. (IV) THE AWARD FROM AN ARBITRATION CONDUCTED UNDER THIS CHAPTER MAY NOT BE VACATED UNDER THE PROVISIONS OF ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES BECAUSE OF THE LACK OF AN ARBITRATION AGREEMENT BETWEEN THE PARTIES. (B) THE EMINENT DOMAIN OMBUDSMAN SHALL ISSUE A WRITTEN STATEMENT DECLINING TO ARBITRATE OR TO APPOINT AN ARBITRATOR WHEN, IN THE OPINION OF THE EMINENT DOMAIN OMBUDSMAN: (I) THE ISSUES ARE NOT RIPE FOR REVIEW;S. 1670 3
(II) ASSUMING THE ALLEGED FACTS ARE TRUE, NO CAUSE OF ACTION EXISTS UNDER UNITED STATES OR STATE LAW; (III) ALL ISSUES RAISED ARE BEYOND THE SCOPE OF THE EMINENT DOMAIN OMBUDSMAN'S STATUTORY DUTY TO REVIEW; OR (IV) THE ARBITRATION IS OTHERWISE NOT APPROPRIATE. (C)(I) THE EMINENT DOMAIN OMBUDSMAN SHALL APPOINT ANOTHER PERSON TO ARBITRATE A DISPUTE WHEN: (A) EITHER PARTY OBJECTS TO THE EMINENT DOMAIN OMBUDSMAN'S SERVING AS THE ARBITRATOR AND AGREES TO PAY FOR THE SERVICES OF ANOTHER ARBITRATOR; (B) THE EMINENT DOMAIN OMBUDSMAN DECLINES TO ARBITRATE THE DISPUTE FOR A REASON OTHER THAN THOSE STATED IN PARAGRAPH (B) OF THIS SUBDIVISION AND ONE OR BOTH PARTIES ARE WILLING TO PAY FOR THE SERVICES OF ANOTHER ARBITRATOR; OR (C) THE EMINENT DOMAIN OMBUDSMAN DETERMINES THAT IT IS APPROPRIATE TO APPOINT ANOTHER PERSON TO ARBITRATE THE DISPUTE WITH NO CHARGE TO THE PARTIES FOR THE SERVICES OF THE APPOINTED ARBITRATOR. (II) IN APPOINTING ANOTHER PERSON TO ARBITRATE A DISPUTE, THE EMINENT DOMAIN OMBUDSMAN SHALL APPOINT AN ARBITRATOR WHO IS: (A) AGREEABLE TO BOTH PARTIES; OR (B) AGREEABLE TO THE PARTY PAYING FOR THE ARBITRATOR AND THE EMINENT DOMAIN OMBUDSMAN. (III) THE EMINENT DOMAIN OMBUDSMAN MAY, ON THE INITIATIVE OF THE EMINENT DOMAIN OMBUDSMAN OR UPON AGREEMENT OF BOTH PARTIES, APPOINT A PANEL OF ARBITRATORS TO CONDUCT THE ARBITRATION. (IV) THE DEPARTMENT MAY PROVIDE AN ARBITRATOR PER DIEM AND REIMBURSE EXPENSES INCURRED IN THE PERFORMANCE OF THE ARBITRATOR'S DUTIES AT THE RATES ESTABLISHED THEREFOR. (D) IN ARBITRATING A DISPUTE, THE ARBITRATOR SHALL APPLY THE RELEVANT STATUTES, CASE LAW, REGULATIONS, AND RULES OF THE STATE AND THE UNITED STATES IN CONDUCTING THE ARBITRATION AND IN DETERMINING THE AWARD, IF ANY. (E) ARBITRATION BY OR THROUGH THE EMINENT DOMAIN OMBUDSMAN IS NOT NECESSARY BEFORE BRINGING LEGAL ACTION TO ADJUDICATE ANY CLAIM. (F) THE LACK OF ARBITRATION BY OR THROUGH THE EMINENT DOMAIN OMBUDSMAN DOES NOT CONSTITUTE, AND MAY NOT BE INTERPRETED AS CONSTITUTING, A FAIL- URE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES OR AS A BAR TO BRINGING LEGAL ACTION. 6. THE FILING WITH THE EMINENT DOMAIN OMBUDSMAN OF A REQUEST FOR MEDI- ATION OR ARBITRATION OF A CONSTITUTIONAL TAKING ISSUE DOES NOT STAY ANY MATTER UNDER THE EMINENT DOMAIN PROCEDURE LAW. 7. THE EMINENT DOMAIN OMBUDSMAN MAY NOT BE COMPELLED TO TESTIFY IN A CIVIL ACTION FILED WITH REGARD TO THE SUBJECT MATTER OF ANY REVIEW OR ARBITRATION BY THE OMBUDSMAN. 8. THE EMINENT DOMAIN OMBUDSMAN MAY NOT REPRESENT PRIVATE PROPERTY OWNERS, STATE AGENCIES, OR LOCAL GOVERNMENTS IN JUDICIAL PROCEEDINGS UNDER THE EMINENT DOMAIN PROCEDURE LAW. S 3. This act shall take effect on the one hundred twentieth day after it shall have become a law.