BILL NUMBER:S1045

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;
S.1504/A.2985 of 2009-2010;S.2898/A.9209 of 2011-2012

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:
RESOLVED (if the Assembly concur), That the foregoing
amendments be referred to the first regular legislative session
convening after the next succeeding general election of members of
the assembly, and, in conformity with section 1 of article 19 of the
constitution, be published for 3 months previous to the time of such
election.