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THE COUNTY, UNDER THE EMINENT DOMAIN PROCEDURE LAW (EDPL), HAD THE POWER TO CONDEMN AN AREA ADJACENT TO AN OFFICE BULIDING FOR USE AS A PARKING LOT; THE ALLOWED PURPOSE UNDER THE EDPL WAS “COMMERCIAL:” THE ARGUMENT THAT THE PURPOSE WAS “HEALTHCARE,” NOT “COMMERCIAL,” BECAUSE THE BUILDING WOULD HOUSE DOCTORS’ OFFICES WAS REJECTED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Oneida County Industrial Development Agency (OCIDA) properly exercised its power under the Eminent Domain Procedure Law (EDPL) to obtain property be used for as parking for an office building, as well as public parking. The the fact that the building would be used for doctor’s offices did not negate the “commercial” purpose of the building within the meaning of the EDPL. Petitioner’s argued the building served a “healthcare,” not a “commercial” purpose and therefore was not subject to the condemnation power of the OCICA:

General Municipal Law § 858 (4) grants industrial development agencies the power to “acquire by purchase, grant, lease, gift, pursuant to the provisions of the [EDPL], or otherwise and to use, real property or rights or easements therein necessary for its corporate purposes.” “The purposes of [an industrial development] agency are to promote, develop, encourage[,] and assist in the acquiring, constructing, reconstructing, improving, maintaining, equipping[,] and furnishing industrial, manufacturing, warehousing, commercial, research, renewable energy[,] and recreation facilities” … . The question here is whether OCIDA appropriately determined that taking the property was necessary for a “commercial” purpose.

As a general matter, a parking facility used by the customers of a profit-making business plainly has a “commercial” purpose. Matter of Bowers Dev., LLC v Oneida County Indus. Dev. Agency, 2023 NY Slip Op 06406. CtApp 12-14-23

Practice Point: The Eminent Domain Procedure Law (EDPL) allows land to be condemned by a county industrial development agency for “commercial” but not “healthcare” purposes. Here the county properly condemned land next to an office building for parking, despite the fact that doctors would be tenants in the office building.

 

THE TAKING BY EMINENT DOMAIN OF PETITIONER’S DECOMMISSIONED ELECTRIC GENERATING STATION AND WATER INTAKE STRUCTURES ON THE NIAGARA RIVER SERVED A PUBLIC PURPOSE; THE DISSENT ARGUED THE TOWN SHOULD NOT BE ALLOWED TO TAKE PROPERTY AND THEN USE IT FOR EXACTLY THE SAME PURPOSE FOR WHICH THE PETITIONER IS NOW USING IT, I.E., ALLOWING BUSINESSES ACCESS TO INEXPENSIVE RAW WATER (FOURTH DEPT).

The Fourth Department, over a dissent, confirmed the taking by eminent domain of petitioner’s property, a decommissioned coal-fired electric generating station and water intake structures on the Niagara River. Petitioner had been allowing businesses to use the water intake structures for access to inexpensive raw water. The dissent argued the town should not be able to take property and then use the property in exactly the same way petitioner is using it now:

We reject petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose (see EDPL 207 [C] [4]). “What qualifies as a public purpose or public use is broadly defined as encompassing virtually any project that may confer upon the public a benefit, utility, or advantage” … . Here, the Town’s condemnation of the property serves the public uses of, inter alia, revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town … . 

From the dissent:

In my view, the takings clauses of the Federal and State Constitutions do not permit the government to take land through eminent domain and use it for the exact same purpose for which the landowner is already using it. Matter of Huntley Power, LLC v Town of Tonawanda, 2023 NY Slip Op 03089, Fourth Dept 6-9-23

Practice Point: The taking by eminent domain of the water intake structures for a decommissioned electric generating station on the Niagara River served a public purpose, i.e., providing businesses with access to inexpensive raw water. The dissent argued petitioner is using the property for exactly that purpose now, rendering the taking invalid.

 

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THE TOWN DID NOT OFFER PROOF THE ROAD LEADING TO PLAINTIFF’S HOME, WHICH WAS WIDENED BY THE TOWN, HAD BEEN USED BY THE PUBLIC AND MAINTAINED BY THE TOWN FOR 10 YEARS; THERFORE THE TOWN DID NOT PROVE THE ROAD WAS A PUBLIC HIGHWAY; THEREFORE PLAINTIFF’S EMINENT DOMAIN UNLAWFUL TAKING ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant municipality’s motion for summary judgment in this eminent domain “unlawful taking” action should not have been granted. Apparently the municipality did some work which widened the road leading to plaintiff’s home. Whether the work constituted an “unlawful taking” of plaintiff’s property turned on whether the road could be classified as a public highway. In order to demonstrate the road was a public highway the municipality had to prove the road was used by the public for at least 10 years. But the proof offered by the municipality only went back two years:

As the parties seeking summary judgment dismissing the eminent domain cause of action, defendants were required to establish, under these circumstances, that no unlawful taking occurred because Miller Road was a public highway by use pursuant to Highway Law § 189 and that all work that they performed was maintenance that did not have the effect of improperly widening the road. We agree with plaintiff that defendants failed to submit evidence establishing that Miller Road is a public highway within the meaning of section 189. “In order for a private road to be deemed a public highway by use, it must be show[n] that, for a period of at least 10 years, the road at issue was used by the public and the municipality exercised dominion and control over the road . . . Such a showing . . . requires more than intermittent use by the public and more than occasional road work by the municipality” … .

Here, in support of their motion, defendants submitted plaintiff’s testimony at a General Municipal Law § 50-h hearing, at which plaintiff repeatedly testified that the Town had, until shortly before the commencement of this action, refused to maintain the part of the road at issue, and the affidavit of defendant Highway Superintendent Joseph Wasilewski, who had personal knowledge of the facts concerning only the two years that preceded the filing of the motion. Consequently, we conclude that defendants failed to “make a prima facie showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case” … . Federman v Town of Lorraine, 2023 NY Slip Op 00553. Fourth Dept 2-3-23

Practice Point: Here the town widened the road leading to plaintiff’s house. Plaintiff brought an eminent domain unlawful taking action. In order to dismiss the complaint the town was required to prove the road was a public highway in that it was used by the public and maintained by the town for 10 years. The town’s proof fell short of that and plaintiff’s action should not have been dismissed.

 

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THE CONDEMNATION OF THE REAL PROPERTY WAS NOT FOR A COMMERCIAL PURPOSE AS REQUIRED BY THE CONTROLLING STATUTES; THE DETERMINATION TO CONDEMN THE PROPERTY WAS ANNULLED OVER AN EXTENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, annulling the determination to condemn real property, over an extensive dissent, held that the purpose for the condemnation was not “commercial” as required by the statutes authorizing condemnation by the Oneida County Industrial Development Agency (OCIDA):

Petitioners commenced this original proceeding pursuant to EDPL [Eminent Domain Procedure Law] 207 seeking to annul the determination of respondent Oneida County Industrial Development Agency (OCIDA) to condemn certain real property by eminent domain. Pursuant to EDPL 207 (C), this Court “shall either confirm or reject the condemnor’s determination and findings.” Our scope of review is limited to “whether (1) the proceeding was constitutionally sound; (2) the condemnor had the requisite authority; (3) its determination complied with [the State Environmental Quality Review Act (SEQRA)] and EDPL article 2; and (4) the acquisition will serve a public use” … .

… OCIDA lacked the requisite authority to acquire the subject property. As an industrial development agency, OCIDA’s statutory purposes are … to “promote, develop, encourage and assist in the acquiring . . . [of] . . . commercial . . . facilities” (General Municipal Law § 858). OCIDA’s powers of eminent domain are restricted by General Municipal Law § 858 (4), which provides, in relevant part, that an industrial development agency shall have the power “[t]o acquire by purchase, grant, lease, gift, pursuant to the provisions of the eminent domain procedure law, or otherwise and to use, real property . . . therein necessary for its corporate purposes.” The purposes enumerated in the statute do not include projects related to hospital or healthcare-related facilities (see § 858). While OCIDA’s determination and findings indicate that the subject property was to be acquired for use as a surface parking lot, the record establishes that, contrary to respondents’ assertion, the primary purpose of the acquisition was not a commercial purpose. Rather, the property was to be acquired because it was a necessary component of a larger hospital and healthcare facility project. Matter of Bowers Dev., LLC v Oneida County Indus. Dev. Agency, 2022 NY Slip Op 07327, Fourth Dept 12-23-22

Practice Point: If the purpose for the condemnation of real property does not comply with the purposes allowed by the controlling states, the determination to condemn the property will be annulled by the courts.

 

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IN ORDER TO OBTAIN TITLE TO THE VACANT BUILDING AT A SHOPPING MALL UNDER THE EMINENT DOMAIN PROCEDURE LAW (EDPL), THE TOWN MUST SPECIFY THE PUBLIC PURPOSE FOR WHICH THE PROPERTY WILL BE USED; THE TOWN’S FAILURE TO SPECIFY THE PUBLIC PURPOSE WAS FATAL TO THE CONDEMNATION PROCEEDING (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Lindley, annulling the determination authorizing the condemnation of a vacant building at a shopping mall, held that the town’s acknowledgment that it did not know how the building would be used was fatal to condemnation proceeding:

Petitioner challenges the taking … contending … that neither the condemnation notice nor the Town’s determination and findings specifically identifies or describes a legitimate public project, as required by EDPL [Eminent Domain Procedure Law] 207 (C) (3). We agree. Indeed, the Town readily acknowledges that it has not yet decided what to do with the property after obtaining title, and the notice merely states that “[t]he proposed Acquisition is required for and is in connection with a certain project . . . consisting of facilitating the productive reuse and redevelopment of the vacant and underutilized Proposed Site through municipal and/or economic development projects . . . by attracting and accommodating new tenant(s) and/or end user(s).” In its determination and findings, the Town stated that “no specific future uses or actions have been formulated and/or specifically identified.”

Because the Town has not indicated what it intends to do with the property, we are unable to determine whether “the acquisition will serve a public use” … . Of course, “[t]he existence of a public use, benefit, or purpose underlying a condemnation is a sine qua non” to the government’s ability to exercise its powers to take private property through eminent domain … . Matter of HBC Victor LLC v Town of Victor, 2022 NY Slip Op 07313, Fourth Dept 12-23-22

Practice Point: In order for a municipality to obtain title to property pursuant to the Eminent Domain Procedure Law, the public purpose for the town’s use of the properly must be specified. Here the town sought ownership of a vacant building at a shopping mall but acknowledged it did not know how the property would be used. The determination authorizing condemnation of the property was annulled.

 

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NO NOTICE OF CLAIM WAS REQUIRED IN THIS NUISANCE, TRESPASS AND INVERSE TAKING ACTION AGAINST A VILLAGE BECAUSE MONEY DAMAGES WERE INCIDENTAL TO THE DEMAND FOR INJUNCTIVE RELIEF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a General Municipal Law notice of claim was not required in this action for nuisance, trespass, inverse taking and injunctive relief against a village. The village had installed drainage pipes in the roadway near plaintiff’s property and then repaved the road. Plaintiff alleged water runoff from the roadway flooded his property caused the foundation to collapse. Because the action was essentially for money. No notice of claim was necessary because the money damages were deemed incidental to the demand for injunctive relief. The court noted that a trespass and a taking may be pled in the alternative:

“[I]t is well settled that a notice of claim is not required for an action brought in equity against a municipality where the demand for money damages is incidental and subordinate to the requested injunctive relief” … . Viewing the amended complaint in the light most favorable to plaintiff … , we conclude that the four remaining causes of action alleged continuing harm and primarily sought equitable relief … .

… “[T]he coincidental character of the money damages sought is ‘truly ancillary to an injunction suit, i.e., there is a continuing wrong presenting a genuine case for the exercise of the equitable powers of the court’ ” … . …

Although “[a]n entry cannot be both a trespass and a taking” … , the issue here is the sufficiency of the pleading, and plaintiff sufficiently pleaded both causes of action, albeit in the alternative. Friscia v Village of Geneseo, 2021 NY Slip Op 04793, Fourth Dept 8-26-21

 

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THE CONDEMNATION OF PROPERTY WAS NOT SUPPORTED BY A DEMONSTRATION OF URBAN BLIGHT OR ANY OTHER PUBLIC PURPOSE; THE SEQRA NEGATIVE DECLARATION WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, annulling the determination of the City of White Plains Urban Renewal Agency, held that the agency did not demonstrate the condemnation of the petitioners’ proper served a public purpose. The condemnation was founded on a 25-year-old study which found the area was affected by “urban blight.” The court noted that the State Environmental Quality Review Act (SEQRA) negative declaration by the agency did not identify the areas of environmental concern and the agency did not take a hard look at them:

… [T]he remediation of substandard or insanitary conditions (i.e., urban blight) is a proper basis for the exercise of the power of eminent domain … . Here, however, the agency relies only on conclusory assertions of blight based upon a 25-year-old urban renewal plan which itself lacks detail or documentation. …

Where a condemning authority does not demonstrate that property is substandard for the purpose of urban renewal, the authority must identify some public purpose other than the purported remediation of blight … . While a condemning authority may select virtually any project which “contributes to the health, safety, general welfare, convenience, or prosperity of the community” … , this broad discretion does not relieve the authority from selecting a particular project and, where demanded by the property owner, submitting that project to judicial scrutiny. Matter of Gabe Realty Corp. v City of White Plains Urban Renewal Agency, 2021 NY Slip Op 04134, Second Dept 6-30-21

 

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THE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) EXEMPTED THE GAS PIPELINE COMPANY FROM ANY REVIEW REQUIREMENTS OF THE EMINENT DOMAIN PROCEDURE LAW (EDPL); THE COMPANY WAS FREE TO EXERCISE EMINENT DOMAIN OF THE LAND IN DISPUTE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined that the certificate of public convenience and necessity issued to petitioner, National Fuel Gas Supply, for construction of a gas pipeline, exempted National Fuel from any requirements of the Eminent Domain Procedure Law (EDPL). Therefore National Fuel did not need to comply with the notice and hearing requirements of the EDPL before exercising eminent domain of the land in dispute:

In 2017, the Federal Energy Regulatory Commission issued a certificate of public convenience and necessity to petitioner National Fuel Gas Supply for its proposed construction of a 99-mile natural gas pipeline spanning from Pennsylvania to Western New York. … [t]his certificate …—which did not condition National Fuel’s eminent domain power on receipt of a water quality certification and which remained valid and operative at all relevant times despite the New York State Department of Environmental Conservation’s intervening denial of National Fuel’s application for such a certification—exempted National Fuel from the public notice and hearing provisions of article 2 of the Eminent Domain Procedure Law (EDPL) in accordance with EDPL 206 (A). …

The question before us distills to whether the certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission (FERC) to National Fuel satisfies EDPL 206 (A) so as to entitle National Fuel to exercise eminent domain over the land in dispute without undertaking additional review of the pipeline’s public benefit. If satisfied, EDPL 206 (A) excuses compliance with various provisions of EDPL article 2 where a proposed condemnor has successfully completed a review of the project’s public benefit and use before a state, federal, or local agency. * * *

… [W]here, as here, a gas company holds a valid certificate of public convenience or necessity from FERC for the proposed construction of a pipeline and that certificate places no relevant conditions on the eminent domain power and has not been stayed or revoked by FERC or a federal court properly reviewing its issuance, compliance with article 2 is excused under EDPL 206 (A). Matter of National Fuel Gas Supply Corp. v Schueckler, 2020 NY Slip Op 03563, CtApp 6-25-20

SUMMARY OF THE FOURTH DEPARTMENT DECISION REVERSED BY THE COURT OF APPEALS ON JUNE 25, 2020

ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, over a two-justice dissent, considering a matter of first impression, reversing Supreme Court, determined that a gas supply company could not acquire easements over private property by eminent domain for the installation of a pipeline for which the state denied a permit:

In February 2017, the FERC [Federal Energy Regulatory Commission] granted petitioner’s application for a certificate of public convenience and necessity to construct and operate a 97-mile natural gas pipeline from Pennsylvania into western New York. The pipeline’s proposed route travels directly across respondents’ land … . Within the voluminous certificate, the FERC found that petitioner’s “proposed [pipeline] project is consistent with the Certificate Policy Statement,” i.e., the public interest. “Based on this finding and the environmental review for the proposed project,” the FERC further found “that the public convenience and necessity require approval and certification of the project.” …

… [T]he New York State Department of Environmental Conservation (DEC) denied petitioner’s application for a WQC [water quality certification]. The WQC application, held the DEC, “fails to demonstrate compliance with New York State water quality standards.” Petitioner has taken various steps to challenge the WQC denial, including the filing of a petition for judicial review in the Second Circuit pursuant to 15 USC § 717r (d). It appears that those challenges have not yet been finally resolved. It is undisputed, however, that if the WQC denial is ultimately upheld, the pipeline cannot be built … . * * *

… [P]etitioner is trying to expropriate respondents’ land in furtherance of a pipeline project that, as things currently stand, cannot legally be built. Such an effort turns the entire concept of eminent domain on its head. If the State’s WQC denial is finally annulled or withdrawn, then petitioner can file a new vesting petition. But until that time, petitioner cannot commence a vesting proceeding to force a sale without going through the entire EDPL [Eminent Domain Procedure Law] article 2 process. Matter of National Fuel Gas Supply Corp. v Schueckler, 2018 NY Slip Op 07550, Fourth Dept 11-9-18

 

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LOCAL LAW PROHIBITING SHORT-TERM RENTAL OF PROPERTIES WHERE THE OWNER DOES NOT RESIDE IS NOT UNCONSTITUTIONAL AS A REGULATORY TAKING (FOURTH DEPT).

The Fourth Department determined plaintiff’s constitutional attack on a Local Law which prohibited short-term rental of properties where the owner did not reside did not constitute a regulatory taking of the property:

In 2012, petitioner-plaintiff (plaintiff) purchased a single-family residence (subject premises) located in respondent-defendant Town of Grand Island (Town) for the purpose of renting it out on a short-term basis, i.e., for periods of less than 30 days. Plaintiff never resided at the subject premises. In 2015, the Town enacted Local Law 9 of 2015 (Local Law 9), which amended the Town Zoning Code to prohibit short-term rentals in certain zoning districts, except where the owner also resided on the premises. The Town enacted the law in response to significant adverse impacts to the community that it found were caused by permitting short-term rental of residential properties to occur. Local Law 9 contained a one-year amortization period—which could be extended up to three times upon application—during which preexisting short-term rental properties could cease operation. * * *

… [P]laintiff did not submit evidence establishing that, due to the prohibition under Local Law 9 on short-term rentals, the subject premises was not capable of producing a reasonable return on his investment or that it was not adaptable to other suitable private use. Instead, plaintiff’s submissions showed a “mere diminution in the value of the property, . . . [which] is insufficient to demonstrate a [regulatory] taking” … . Matter of Wallace v Town of Grand Is., 2020 NY Slip Op 03301, Fourth Dept 6-12-20

 

CLAIMANT WAS ENTITLED TO MORE COMPENSATION FOR THE 3.86 ACRES TAKEN FOR AN AIRPORT RUNWAY AND THE 80.72 ACRES TAKEN FOR AN AVIGATION (RUNWAY APPROACH) EASEMENT; PURSUANT TO THE ISSUES OF CONTIGUITY, UNITY OF USE AND UNITY OF TITLE. THE ENTIRE PARCEL, NOT A SINGLE SMALLER PARCEL, WAS AFFECTED BY THE TAKING (THIRD DEPT).

The Third Department, in a comprehensive decision too detailed to fairly summarize here, determined claimant was entitled to more compensation for 3.86 acres for an airport runway and 80.72 acres for an avigation easement appropriated by the County. The court considered the following issues: (1) the entire 97.48 acres, as opposed to a 12.9 acre portion, was affected by the taking because there was contiguity, unity of use, and unity of title or ownership; (2) the pretaking value of the land; and (3) the diminution of value based on the avigation easement which affected the height of buildings which could be constructed on the easement. With respect to contiguity, unity of use and unity of title, the court wrote:

Contiguity will be found between parcels when they are “adjacent and lack[] any physical boundary . . . [and are] capable of being traversed” … . “A public highway actually traveled . . . running through a large tract devoted to one purpose does not necessarily divide it into independent parcels, provided the owner has the legal right to cross the intervening strip of land” … . Given the adjacent nature of the parcels and that claimant has a 200-foot right-of-way to cross the power line fee, we find that the parcels meet the element of contiguity … .* * *

… [C]laimant’s planned development, which included retail on the southern parcel and a technology park on the northern parcel, was not merely a “prospective use existing only in the mind’s eye of [claimant] or based upon claimant’s history as a developer” … , but rather a bona fide development, planned thoroughly, whose progress was cut short by the condemnation. As such, the evidence has established that the elements of contiguity, unity of use and unity of ownership have been met … . Matter of County of Warren, 2020 NY Slip Op 02217, Third Dept 4-9-20

 

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