senate Bill S2862

Relates to the use of eminent domain

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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 / 2011
    • REFERRED TO JUDICIARY
  • 04 / Jan / 2012
    • REFERRED TO JUDICIARY

Summary

Establishes eminent domain shall only be used for public projects; establishes after any industrial development agency approves the use of eminent domain, the county legislature or the New York city council shall vote to determine whether or not to condemn such property; establishes a condemnor shall reimburse a condemnee any relocation costs.

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Bill Details

See Assembly Version of this Bill:
A9208
Versions:
S2862
Legislative Cycle:
2011-2012
Current Committee:
Senate Judiciary
Law Section:
Eminent Domain Procedure Law
Laws Affected:
Amd §§104 & 702, add §204-a, EDP L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S1653, A3069
2007-2008: A661A

Sponsor Memo

BILL NUMBER:S2862

TITLE OF BILL:

An act
to amend the eminent domain procedure law, in relation to the use of
eminent domain

PURPOSE:

To prevent eminent domain abuse and ensure that eminent domain is only
used for true public projects.

SUMMARY OF PROVISIONS:

Section 1 -- Amends section 104 of the Eminent Domain Procedure Law to
state that eminent domain may only be used for traditional public
projects. This section also outlines what constitutes a traditional
public project.

Section 2 -- Adds a section 204-a to the Eminent Domain Procedure Law
to require that any eminent domain takings by non-elected industrial
development agency (IDA) board must be approved by the
elected governing body of the municipality for whose benefit the agency
was created and where the property proposed to be condemned is located.

Section 3 -- Amends subdivision (A) of section 702 of the Eminent
Domain Procedure Law to require that the owner of property being
taken by eminent domain be paid relocation costs.

Section 4 -- Effective date.

JUSTIFICATION:

In 2005, the Supreme Court of the United States ruled in the case of
Kelo v. City of New London, that the various benefits associated with
economic development can provide a valid "public purpose" which
justifies the taking of property by eminent domain for projects that
substantially benefit a private party. In that case, the City of New
London approved a
revitalization plan which authorized the use of eminent domain to take
private properties which were clearly not blighted, but rather would
be included in a larger project focused on a research facility to be
built by Pfizer corporation. In declining to provide any definitive
rule on the use of eminent domain when a private party is a
significant beneficiary of the action, the Court's opinion cited a
long standing policy of deference to legislative judgments. The
opinion further noted that a state may place further restrictions on
its exercise of the takings power, as many do through statute or
constitutional limitations.

This legislation clarifies that the exercise of eminent domain powers
should be reserved for those public infrastructure and services
purposes commonly provided by government. Such projects, including
transportation, public safety, recreation, water supply and
sanitation facilities, are essential functions that can require the
utilization of private property, for which the property owner should
be fully compensated. The compensation currently provided for under
New York's eminent domain process includes the value of the property
and certain other costs, such as prepayment penalties on a mortgage.
For many property owners, however, the relocation costs associated
with moving to a new location can represent an undue burden.
Businesses in particular may be unable to reestablish operations in
the face of such costs, placing existing investment in a community,
and associated jobs, at risk. The bill includes such relocation costs
as an incidental expense which must be paid to the owner of a
property being taken by eminent domain.

To ensure that the overall impact on a community is fully considered
in those circumstances where an industrial development agency (IDA)
is exercising eminent domain powers to take a property, any such
action will be subject to a vote by the elected governing body of the
municipality for whose benefit the agency was created and where the
property proposed to be condemned is located to determine whether or
not to condemn the property.

The provisions of this bill will enhance oversight of the use of
eminent domain and more fairly compensate those owners that have
property taken for important public uses.

LEGISLATIVE HISTORY:

2005-2006 -- S.5938/A.9079
2007-2008 -- S.915-A/A.661
2009-2010 -- S.1653/S.3069

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

Immediately.

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

                                  2862

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 2, 2011
                               ___________

Introduced by Sens. DeFRANCISCO, LARKIN -- read twice and ordered print-
  ed, and when printed to be committed to the Committee on Judiciary

AN ACT to amend the eminent domain procedure law, in relation to the use
  of eminent domain

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 104 of the eminent domain procedure law is  amended
to read as follows:
  S  104.  Applicability.  The  eminent  domain  procedure  law shall be
uniformly applied to any and all acquisitions by eminent domain of  real
property  within  the  state of New York.   EMINENT DOMAIN SHALL ONLY BE
USED FOR PUBLIC PROJECTS INCLUDING  FOR  THE  PURPOSE  OF  ESTABLISHING,
LAYING OUT, EXTENDING AND WIDENING STREETS, AVENUES, BOULEVARDS, ALLEYS,
AND  OTHER  PUBLIC HIGHWAYS AND ROADS; FOR PUMPING STATIONS, WATERWORKS,
RESERVOIRS, WELLS, JAILS, POLICE AND FIRE STATIONS, CITY  HALLS,  OFFICE
AND  OTHER  PUBLIC BUILDINGS INCLUDING SCHOOLS, CEMETERIES, PARKS, PLAY-
GROUNDS AND PUBLIC SQUARES, PUBLIC  OFF-STREET  PARKING  FACILITIES  AND
ACCOMMODATIONS,  LAND  FROM  WHICH  TO OBTAIN EARTH, GRAVEL, STONES, AND
OTHER MATERIAL FOR THE CONSTRUCTION OF ROADS AND OTHER PUBLIC WORKS  AND
FOR  RIGHT-OF-WAY  FOR  DRAINS, SEWERS, PIPE LINES, AQUEDUCTS, AND OTHER
CONDUITS FOR DISTRIBUTING WATER TO THE PUBLIC; FOR  FLOOD  CONTROL;  FOR
HOUSING;  FOR USE BY THE GOVERNMENT OF THE UNITED STATES; FOR RAILROADS,
CANALS AND NAVIGABLE WATERWAYS, AIRPORTS AND OTHER PUBLIC TRANSPORTATION
FACILITIES AND SERVICES; FOR WATER  POWER,  PUBLIC  UTILITIES  OR  OTHER
PRODUCTION  AND  TRANSMISSION  OF  HEAT, LIGHT OR POWER; FOR RECREATION,
CONSERVATION,  OPEN  SPACE  AND  HISTORIC,  ENVIRONMENTAL  AND  CULTURAL
RESOURCE PROTECTION, AND SOLID WASTE MANAGEMENT; FOR RIVER REGULATION OR
MANAGEMENT;  FOR PUBLIC HOSPITALS AND HEALTH CARE FACILITIES; FOR RECLA-
MATION OF SWAMP LANDS AND TO TAKE SUCH EXCESS OVER THAT NEEDED FOR  SUCH
PUBLIC  USE  OR  PUBLIC  IMPROVEMENT IN CASES WHERE SMALL REMNANTS WOULD
OTHERWISE BE LEFT OR WHERE  OTHER  JUSTIFIABLE  CAUSE  NECESSITATES  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03766-01-1

S. 2862                             2

TAKING  TO  PROTECT  AND PRESERVE THE CONTEMPLATED IMPROVEMENT OR PUBLIC
POLICY DEMANDS, THE TAKING IN CONNECTION WITH THE  IMPROVEMENT,  AND  TO
SELL  OR  LEASE  THE  EXCESS  PROPERTY  WITH SUCH RESTRICTIONS AS MAY BE
DICTATED  BY  CONSIDERATIONS  OF  PUBLIC  POLICY IN ORDER TO PROTECT AND
PRESERVE THE IMPROVEMENT; PROVIDED THAT  WHEN  THE  EXCESS  PROPERTY  IS
DISPOSED  OF  IT  SHALL  BE  FIRST  OFFERED TO THE ABUTTING OWNERS FOR A
REASONABLE LENGTH OF TIME AND AT A REASONABLE PRICE AND IF  SUCH  OWNERS
FAIL TO TAKE THE EXCESS PROPERTY THEN IT MAY BE SOLD AT PUBLIC AUCTION.
  S  2.  The  eminent  domain  procedure  law is amended by adding a new
section 204-a to read as follows:
  S 204-A. VOTE BY LOCAL GOVERNMENT. AFTER  ANY  INDUSTRIAL  DEVELOPMENT
AGENCY  APPROVES  THE  USE  OF EMINENT DOMAIN, THE GOVERNING BODY OF THE
MUNICIPALITY: (A) FOR WHOSE BENEFIT THE  AGENCY  WAS  CREATED,  AND  (B)
WHERE  THE  PROPERTY  PROPOSED TO BE CONDEMNED IS LOCATED, SHALL VOTE TO
DETERMINE WHETHER OR NOT TO CONDEMN THE PROPERTY. FOR PURPOSES  OF  THIS
SECTION,  THE  TERMS "MUNICIPALITY" SHALL MEAN ANY COUNTY, TOWN, CITY OR
VILLAGE IN THE STATE; AND "GOVERNING BOARD" SHALL MEAN THE BODY IN WHICH
THE GENERAL LEGISLATIVE POWERS OF THE MUNICIPALITY ARE VESTED, INCLUDING
THE BOARD OF SUPERVISORS OF A COUNTY, THE TOWN  BOARD  OF  A  TOWN,  THE
COMMON  COUNCIL  OF A CITY, THE CITY COUNCIL, IF THE PROPERTY IS LOCATED
IN A COUNTY WHOLLY CONTAINED WITHIN A CITY  WITH  A  POPULATION  OF  ONE
MILLION OR MORE, AND THE BOARD OF TRUSTEES OF A VILLAGE.
  S  3.  Subdivision  (A) of section 702 of the eminent domain procedure
law is amended to read as follows:
  (A) The condemnor shall reimburse a  condemnee  an  amount  separately
computed and stated, representing the following incidental expenses:
  (1)  any  recording fees, transfer taxes and other similar expenses in
connection with the acquisition of the property by the condemnor  or  in
connection with the transfer of the property to the condemnor; [and]
  (2) any penalty incurred by the condemnee for prepayment of any preex-
isting  recorded  mortgage  entered into in good faith, encumbering such
property; [and]
  (3) the pro rata portion of the  real  property  taxes,  water  rents,
sewer  rents, special ad valorem taxes and other charges paid or payable
to a taxing entity which are allocable to a  period  subsequent  to  the
date  of vesting title or the effective date of possession of such prop-
erty in the condemnor, whichever is earlier[.]; AND
  (4) ANY RELOCATION COSTS INCURRED IN CONNECTION WITH  THE  ACQUISITION
OF  THE  PROPERTY BY THE CONDEMNOR OR IN CONNECTION WITH THE TRANSFER OF
THE PROPERTY TO THE CONDEMNOR.
  S 4. This act shall take effect immediately and  shall  apply  to  any
eminent domain procedures commenced on or after such date.

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