NY State Senate Bill 2011-S4683

Senate Bill S4683

2011-2012 Legislative Session

Provides for the establishment of a state eminent domain ombudsman and provides for the powers and duties thereof; enacts the "eminent domain ombudsman act"

download bill text pdf

Archive: Last Bill Status - In Senate Committee Transportation Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to transportation
Apr 14, 2011	referred to transportation

2011-S4683 (ACTIVE) - Details

See Assembly Version of this Bill:: A2525
Current Committee:: Senate Transportation
Law Section:: Transportation Law
Laws Affected:: Add §23, Transp L
Versions Introduced in 2009-2010 Legislative Session:: S1670, A1570

2011-S4683 (ACTIVE) - Summary

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.

2011-S4683 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4683

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.

Specifically:

* 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.
2009-10: S.1670 Transportation 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.

2011-S4683 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4683

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 14, 2011
                               ___________

Introduced  by Sen. FLANAGAN -- 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.
                                                           LBD06910-01-1

S. 4683                             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. 4683                             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.

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