Often, when a property is the subject of a proposed condemnation, the owner asks two questions: “What is this, Nazi Germany?” and, “How can we stop this?”

The first question is relatively easy to answer. Of course we are not Nazi German. A country need not embrace dictatorial philosophies to acquire property by eminent domain. Historically, eminent domain was and is the inherent right of all governments; the United States did not invent it. It did, however, limit it. It did so by including, at the end of the Fifth Amendment, the phrase, ” . . . nor shall private property be taken for public use without just compensation.”

In truth, eminent domain was not an important concern of our forefathers. The function of government was so much more limited in the early part of our history that not much land was required for public use, and nobody seemed to care much, since it did not come up often. It was not debated at the Constitutional Convention and was not included in the body of the original document but was added as an afterthought, at the end of the Fifth Amendment. When it was added, the evil to be corrected was not takings for public use but lack of compensation. The operative phrase was “without just compensation,” not “for public use,” which leads us to the answer to the second question.

The Eminent Domain Procedure Law (EDPL) is the comprehensive law that uniformly dictates the procedures that must be followed by the state, municipalities and other entities with the power of eminent domain. With certain exceptions, not relevant here, public hearings must be held before the condemnation may take place. Following those hearings, the condemnor must make a determination and findings and publish a “brief synopsis.”

The determination and findings must include the “public use, benefit or purpose” of the proposed project, the approximate location and the reasons for selecting the location and the general effect on the environment and residents and whatever else they consider relevant (EDPL §204).

The Judicial Challenge

The section that deals with the judicial challenge to the proposed condemnation is EDPL §207, and that leaves a very small window of opportunity. Within 30 days after the completion of the publication of the determination and findings, as required by EDPL §204, those persons who are “aggrieved,” may seek judicial review. The definition of persons “aggrieved” could probably be the subject of a column by itself.

These persons must file a petition in the Appellate Division in the judicial department where the proposed condemnation is to take place. The petition must be accompanied by proof of service of a demand on the condemnor to file a written copy of the transcript of the record of the proceeding, i.e., the public hearing, and a copy of the determination and findings. Note that the initial hearing is in the Appellate Division, not the Special Term of the Supreme Court where the petition for an order of condemnation is to be brought. If more than one Appellate Division is involved, the petition may be brought in either one, but only one.

The jurisdiction of the Appellate Division is exclusive, and its order is final but subject, of course, to review in the Court of Appeals. The section gives the proceeding a lawful preference over other matters.

EDPL§207(C) limits the scope of review in the Appellate Division to whether:

1. the proceeding was in conformity with the federal and state constitutions,
2. the proposed acquisition is within the condemnor’s statutory jurisdiction or authority,
3.  The condemnor’s determination and findings were made in accordance with the procedures set forth in this article and with article eight of the environmental conservation law, and
4. a public use, benefit or purpose will be served by the proposed acquisition.

It is interesting to note that Par. (4) used to only require a public use but, in 1982, it was changed to “public use, benefit or purpose.” The Legislature was unduly cautious, for “public use” had been construed to mean that long before the enactment of the amendment.

In 1991, 13 years after the original effective date of EDPL, Par. (3) was amended to include the reference to Article 8 of the Environmental Conservation Law. This brings to mind the celebrated proposed Westway condemnations. It is believed, incorrectly, by many people that this project was defeated in the courts because it disturbed the breeding areas of striped bass. It was only delayed in the courts. The project, which was hotly disputed in the media and City Council, was killed afterward politically, not in the courts. A much less controversial improvement to the Westside Highway is now planned.

Limitations on the Courts

But, all of this begs the question. The procedure is only part of the answer and is for lawyers, not condemnees. The client wants to know whether or not using the procedures provided, the condemnor can be stopped from taking his or her property. Our answer to the clients who ask this question is usually, as a practical matter, not in the courts. If it is going to be stopped at all, it must be stopped in the political process of studies and public hearings. This is because the courts are limited in their scope of review by EDPL §207(C), and it is very difficult, if the condemnor has done its homework, to defeat the condemnation on those grounds.

Par. (3) is probably the easiest with which to deal. Assuming the worst, i.e., that the condemnor’s determination and findings were not made in accordance with the procedures required by EDPL Article 2 and the Environmental Conservation Law, Article 8, all you can do is delay the process.

If the condemnor is determined to go ahead with the project, it will go back and follow the procedures it neglected to follow the first time. All the condemnee will have done is to delay it and hope to then defeat it politically. This, however, is not necessarily good from the condemnee’s point of view for , if he or she can not kill it politically, all that has been done is to have extended the period when the property is subject to the threat of condemnation. Tenants may move out and not be replaced. Rents may have to be lowered. Buyers will not want to buy into a condemnation with its litigation and delays, and the owner will be reluctant to put any substantial improvements on the property lest their cost be lost in the valuation process.

Source of Power

Par. (2) is a little more cut and dry. The state has the original power of eminent domain, and the municipalities and various authorities that have it have been specifically given that power by the state, by legislative enactment. The power is usually found in the legislation that gave the municipality or authority the right to exist, and that is often limited in the purposes for which the municipality or authority is permitted to condemn.

Therefore, the question of whether the proposed acquisition is within the condemnor’s statutory jurisdiction or authority is answered by looking to the source of the power. If the authority is not there, the municipality or authority may not condemn.

This was the basis of the challenge to the acquisition by the New York State Department of Environmental Conservation (DEC) of 1,067 acres of land owned by Benjamin Wechsler and of his exclusive hunting, fishing and trapping rights in an 1,800-acre parcel owned by the state, both of which were part of the Neversink River Gorge. The stated purpose of the acquisition was to preserve and protect the natural beauty and unique character of the area, clearly within the authority of the DEC, and to allow for increased public access, not within the delegated authority.

The Court of Appeals, in Wechsler v. NYSDEC, 76 NY2D 923 (1990) found that DEC, in seeking to preserve the area of great natural beauty was within the legislative grant of authority. They then added, “That the acquisition may also incidentally serve other identified goals, such as increasing the public’s access to, and recreational use of, these lands does not detract from the propriety of the agency’s proposed use of ‘unique’ area project funds to advance the primary goal of preservation.”

The incidental use concept was not new, but we fail to understand how the acquisition of Mr. Wechsler’s exclusive hunting, fishing and trapping rights on land already owned and preserved by the state only incidentally serve the goal of increasing public access and recreational use, not otherwise within DEC’s authority.

Court’s Reluctance

We believe this illustrates the courts’ reluctance to defeat an acquisition by condemnation. As has happened on several occasions, however, Par. (2) has been circumvented by a simple expediency: Public authorities that do not have the delegated authority to condemn for a certain purpose enlist the aid of other authorities with the authority to do it for them.

Pars. (1) and (4), we believe, are redundant. As we noted above, Par. (4) originally required that a public use will be served. In 1982, they added a public “benefit or purpose” also need to be served. An examination of the cases over the past 100 years or so indicates very clearly that a “public use,” as required by the Fifth Amendment to the U.S. Constitution and Article 1, §7(a) of the New York State Constitution has been interpreted to include a public benefit or purpose. To serve these purposes in Par. (4) is to also satisfy Par. (1), which requires the taking to be in conformity with the federal and state constitutions.

The issue raised by Pars. (1) and (4) is the subject of probably most of the challenges to takings. A full examination of this subject would be too long for the balance of this column. It should and will be the subject of another column on another day. A short overview, however, is called for and we will attempt that.

As we stated earlier in this column, the evil sought to be addressed by tagging on the takings clause to the Fifth Amendment was the nonpayment of just compensation. Public use was not a concern nor did it become one for about 100 years, because land was plentiful and government had a more limited role. It not having become an issue, its definition had yet to be determined. In the past 100 years, the definition of public use broadened as the role of government increased and land became less available.

The Railroads

From the outset, no one questioned that a road, over which the public was to travel, was a public use. In the latter part of the 19thCentury, however, railroads became more a pat of American life and were a major factor in the commerce of the country. Railroads, however, were privately owned, so how could an acquisition for a railroad right-of-way be for a public use. Clearly, without the power of eminent domain, the railroads could not be built.

In 1888, the Court of Appeals answered the question by stating, ” . . . railroads are highways furnishing means of communication between different points, promoting traffic and commerce, facilitating exchanges, in a word, they are improved ways . . . The duty of providing public ways is . . . a public duty.” The court did not consider that the use was carried out by a private corporation to its own profit changed the nature of the public use. (Matter of Niagara Falls & Whirlpool Railway Co., 108 N.Y. 375).

Of course, the question of how much of the public must be served for it to be a public use had to come up, and it did in Pocantico Water Works Co. v. Bird, 130 N.Y. 249. In that case, the power to condemn was delegated to a private water company so that it could build a dam and create reservoirs to provide water to certain specified towns.

The Court of Appeals said in that case,

It is doubtless true that in order to make the use public, a duty must develop upon the persons or corporations holding the property to furnish the public with the use intended. The term implies the “use of many” or “by the public” but it may be limited to the inhabitants of a small restricted locality, but the use must be in common and not for a particular individual.

The same court declared, as have many other in similar circumstances, that while the necessity of taking is to be determined solely by the Legislature the decision whether the taking is for public use is a judicial one. Some courts, however, have held that declarations by the Legislature that the taking is for public use would be persuasive evidence of that fact.

Public Housing

In 1936, the New York courts expanded the concept beyond that of a simple use by the public. The New York Housing Authority sought to condemn a substandard area for a low income housing project. The stated purpose was the clearing of the area. This was challenged on the basis that the public could find nothing to use in the clearing of a blighted area. Therefore, it could not be a public use.

The Court of Appeals addressed the issue directly. It said, “. . . use of a proposed structure, facility or service by everybody and anybody is one of the abandoned universal tests of a public use . . . the Courts have vainly attempted to define comprehensively the concept of a public use . . . to formulate anything ultimate even though it were possible, would, in an inevitably changing world, be unwise if not futile . . . The law of each age is ultimately what the age thinks should be the law.” (Matter of N.Y.C. Hsg. Auth. v. Muller, 270 N.Y. 333).

This set the tone for what has become an almost limitless expansion of the term public use. In K & C Realty, Inc. v. State of New York, 32 NY2d 664, the Court of Appeals upheld a lower court finding that §10, Subd. 24-d of the Highway Law is constitutional even though it provides for condemning the property of one person to give access to the otherwise landlocked property of another when the landlocking is caused by the simultaneous acquisition of the property by a condemnation.

Beyond the clearing of substandard areas, §72-N of Article 15 of the General Municipal Law authorized the taking of predominately vacant areas that are economically dead and impair the community’s growth. This was upheld in Cannata v. City of New York, 11 NY2d 210, App. Dism. 371 U.S.4. There have been decisions allowing the City of Yonkers to acquire land to give to private industry for expansion so as to keep jobs from leaving, and the U.S. Supreme Court allowed the State of Hawaii to break up large plantations and distribute them to smaller farmers.

How available, then, are Pars. (1) and (4) for defeating a condemnation. The answer is, not very. We repeat the advice we have given many clients. If you want to keep them from taking your property, do it politically, before it every gets to the courts.

Reprinted with permission from the December 27, 1994 edition of the New York Law Journal © 2010 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited.