Eminent Domain – Page 5 – New York Appellate Digest

Seizure of Property for Construction of Firehouse Okay

The Second Department affirmed the eminent-domain seizure of petitioner’s property (under EDPL article 2) for construction of a firehouse:

“The principal purpose of EDPL article 2 is to insure that an agency does not acquire property without having made a reasoned determination that the condemnation will serve a valid public purpose” … . Judicial review of a condemnation determination is limited to whether the proceeding was constitutional, whether the proposed acquisition is within the condemnor’s statutory jurisdiction or authority, whether the determination and findings were made in accordance with the procedures set forth in EDPL article 2 and the State Environmental Quality Review Act, and whether a public use, benefit, or purpose will be served by the proposed acquisition (see EDPL 207[C]…). Here, the petitioner has failed to demonstrate any basis for setting aside the Common Council’s determination.

Contrary to the petitioner’s contention, the record shows that the determination to condemn a portion of its property is rationally related to the stated public purpose and that such public purpose is dominant … . ” [T]he fact that an intended public use confers incidental benefit to private persons or entities will not invalidate the condemnation'” … . Matter of Peekskill Hgts Inc v City of Peekskill Common Council, 2013 NY Slip Op 07046, 2nd Dept 10-30-13

October 30, 2013

Closure of Railroad Crossing Did Not Constitute a Taking of Claimant’s Land

The Court of Appeals determined the closure of a railroad crossing did not constitute a regulatory taking of claimant’s land. Claimant used the crossing to move equipment from one part of his land to another:

The basis for the claim is that the State Department of Transportation required the closure of a railroad crossing that claimant had used to move equipment from one part of its land to another. The record shows that the Department ordered the closure after it determined that the crossing presented a safety hazard. It found that fast moving trains passed by frequently; that a curve in the tracks limited the distance at which a train could be seen from the crossing; that heavy, slow-moving farm equipment was being transported over the tracks; and that there was a substantial grade at the approaches to the crossing, which made it necessary for crossing vehicles to reduce their speed. In an article 78 proceeding brought by claimant, the Department’s determination was upheld as being supported by substantial evidence….

On this record, the conclusion is inescapable that the closure of the crossing was a proper exercise of the State’s police power. Moreover, claimant has failed to show the extent to which the Department’s action diminished the value of its land, and has not argued that its easement to cross the railroad tracks should be treated for these purposes as an item of property separate from the land itself. Claimant’s claim of a regulatory taking is without merit. Island Park, LLC v State of New York, No 132, CtApp 6-26-13

June 26, 2013

Eminent Domain, Real Property Law, Utilities

Evidence of Loss Based Upon Interference with Property Owner’s Ability to Extract Gas by Hydrofracking Disallowed as Speculative

The Third Department affirmed Supreme Court’s determination that respondents’ expert would not be allowed to testify at trial in this condemnation proceeding. Petitioner brought the condemnation proceedings to obtain perpetual easements for underground gas storage in the “Oriskany Sand” beneath the surface of the land owned by the respondents. The respondents hired a geologist to testify that the easement will interfere with any future attempts to extract gas by hydrofracking and sought compensation for the claimed lost gas-development rights. The Third Department wrote:

The extent to which a condemnation limits a claimant’s property rights is determined by the language used in the appropriation and the underlying purpose of the taking, and “[t]he quantum of the title to be taken will not be extended by implication”….Here, petitioner’s easement explicitly reserves to respondents “the right to grant oil, gas and other mineral rights to others in formations other than the Oriskany Sand” and limits that reservation of rights only by precluding respondents from “grant[ing] or convey[ing] gas storage rights” (emphasis added) that interfere with petitioner’s easement. * * *

If …hydrofracking in the Marcellus formation does eventually prove to pose an unacceptable risk to petitioner’s storage space – a claim that petitioner does not now make – it may choose at that time to undertake appropriate measures to acquire whatever additional rights may prove to be necessary, and, of course, to compensate the affected landowners appropriately. As petitioner has not yet made any such acquisition, the court properly precluded respondents from presenting evidence on their claims relative to development rights in the Marcellus formation. Matter of Central N.Y. Oil & Gas Co., L.L.C. (LaDue), 515347, 3rd Dept, 6-13-13

June 13, 2013

Eminent Domain, Real Property Law

Public Access Easement to Recreation Area Granted; Public Hearing Not Required

In a full-fledged opinion by Justice Stein, the Third Department upheld the grant of a petition pursuant to the Eminent Domain Procedure Law (EDPL) to acquire a public access easement over private land abutting a recreation area on land owned by a hydroelectric facility. The condemnation proceeding was triggered when the owner of the private property abutting the recreation area blocked roads which for years had provided public access to the recreation area. In a lengthy and detailed opinion, the Third Department explained the applicable procedures pursuant to the EDPL and why statutory exemptions to the public hearing requirement of the EDPL applied in this case. In the Matter of Eagle Creek Land Resources, LLC, et al v Woodstone Lake Development, LLC, 514046, 3rd Dept, 5-9-13

May 9, 2013

Eminent Domain

Appraisal of Value of Gas-Line Easements Insufficient

The Third Department reviewed an eminent domain proceeding for gas-line easements and determined that the appraisal relied upon by the trial court did not include a sufficient explanation of the valuation methods employed to allow substantive cross-examination. Because the other appraisal offered at trial was rejected by the trial court, the case was remanded. Matter of Acquisition of Easements … v Porto Bagel, Inc, 514583, 3rd Dept, 5-2-13

May 2, 2013

Eminent Domain, Municipal Law

Damages Related to Improvements Made on Condemned Property Allowed.

In a condemnation case where a portion of a sand and gravel quarry was taken, the Second Department affirmed the lower court’s valuation of the condemned property. The quarry owner argued that an income-based analysis, rather than a sales-comparison (land-value) approach, should be employed. The Second Department determined that the income-based analysis (projected profits minus projected expenses) was not appropriate. The Second Department also affirmed the lower court’s determination that the quarry should be compensated for damages related to the improvements made on the condemned property, as opposed to damages related to the taking itself. Matter of Metropolitan Transportation Authority and Washed Aggregate Resources, Inc., 2011-03-14, Index No. 2674/98 Second Dept. 1-16-13

January 16, 2013