senate Bill S1504

Relates to the taking of private property; repealer

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 02 / Feb / 2009
    • REFERRED TO JUDICIARY
  • 09 / Feb / 2009
    • TO ATTORNEY-GENERAL FOR OPINION
  • 25 / Feb / 2009
    • OPINION REFERRED TO JUDICIARY
  • 06 / Jan / 2010
    • REFERRED TO JUDICIARY
  • 12 / Jan / 2010
    • TO ATTORNEY-GENERAL FOR OPINION
  • 09 / Feb / 2010
    • OPINION REFERRED TO JUDICIARY

Summary

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Bill Details

See Assembly Version of this Bill:
A2985
Versions:
S1504
Legislative Cycle:
2009-2010
Current Committee:
Senate Judiciary
Law Section:
Constitution, Concurrent Resolutions to Amend

Sponsor Memo

BILL NUMBER: S1504

TITLE OF BILL :
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an
amendment to section 7 of article 1 of the constitution, in relation
to the taking of private property; and repealing section 7 of article
1 of the constitution relating to just compensation for taking private
property


PURPOSE :
This amendment prohibits the taking or transfer of private property to
another private owner or for economic development purposes.

SUMMARY OF PROVISIONS :
Section 1 -- Repeals the current section 7 of article 1 of the New
York State Constitution and replaces it with the following:

Paragraph (a) allows private property to be taken for a public use,
only. Property that is taken must be possessed and occupied by the
government. Also, the government must provide just compensation to
property owners whose land is taken.

Paragraph (b) prohibits takings of private property for economic
development purposes, use by a private business, or for any other
private use. Privately owned common carriers are exempted from this
provision. Additionally, state and local governments are not permitted
to take private property and transfer it to another private owner.

Finally, paragraph (c) states that whenever there is a question about
a taking being for a truly public use, the question shall be a
judicial question, and the court, when determining the answer, shall
not consider any legislative assertions that the use is for a public
purpose.

Section 2 -- Effective date.

EXISTING LAW :

Article 1, section 7, paragraph (a) of the New York State Constitution
allows private property owners to receive "just compensation" when
their property is taken by the government for a "public use."

Paragraph (c) of that same article and section allows private roads to
be taken for public use. Compensation is determined by a jury and
awarded -- along with costs for the proceedings -- to the individual
whose private road was taken.

Finally, paragraph (d) declares that the drainage of a swamp or
agricultural lands to be a public use. This paragraph allows the State
Legislature to pass laws permitting the owners or occupants of swamp
or agricultural land to construct and maintain drainage facilities
upon the land owned by other individuals. The burdened party, however,
is entitled to receive compensation.

JUSTIFICATION :

In June 2005, the U.S. Supreme Court handed down a decision in the
case of KELO V. CITY OF NEW LONDON , Connecticut. The Court -- in a
5 to 4 decision -- stated that New London had the power to take
privately owned property and transfer ownership of the property to
another private entity. The KELO decision, however, does not
prevent states -- through state constitutions and statutes -- from
protecting the fundamental property rights of homeowners and small
business owners.

This amendment permits eminent domain takings only when the taking is
for a truly public use. Takings for economic development purposes or
for the benefit of a private business are completely prohibited by
this amendment. Additionally, under this amendment to the New York
State Constitution, government is not allowed to take private property
and transfer the property to another private owner.

LEGISLATIVE HISTORY :

S.5961-A/A.9710-A of 2005-2006
S.2302/A.660 of 2007-2008

FISCAL IMPLICATIONS :

None.

EFFECTIVE DATE :
Immediately after approval by two separately elected State
Legislatures and approval by the voters in a referendum.
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