senate Bill S2898

2011-2012 Legislative Session

Relates to the taking of private property; repealer

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Archive: Last Bill Status - In Committee


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Feb 08, 2012 opinion referred to judiciary
Jan 09, 2012 to attorney-general for opinion
Jan 04, 2012 referred to judiciary
Jun 24, 2011 committed to rules
May 02, 2011 advanced to third reading
Apr 27, 2011 opinion referred to judiciary
Apr 13, 2011 2nd report cal.
Apr 12, 2011 1st report cal.355
Feb 07, 2011 to attorney-general for opinion
Feb 03, 2011 referred to judiciary

Votes

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Apr 12, 2011 - Judiciary committee Vote

S2898
17
1
committee
17
Aye
1
Nay
4
Aye with Reservations
0
Absent
1
Excused
0
Abstained
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Co-Sponsors

S2898 - Bill Details

See Assembly Version of this Bill:
A9209
Current Committee:
Law Section:
Constitution, Concurrent Resolutions to Amend
Laws Affected:
Rpld & add Art 1 ยง7, Constn
Versions Introduced in 2009-2010 Legislative Session:
S1504, A2985

S2898 - Bill Texts

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Provides that with just compensation paid, private property may be taken only when necessary for the possession, occupation, or enjoyment of land by the public at large or by public agencies.

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BILL NUMBER:S2898

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

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.

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

                                  2898

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 3, 2011
                               ___________

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

            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

  Section  1. Resolved (if the Assembly concur), That section 7 of arti-
cle 1 of the constitution is REPEALED and a new section 7 of  article  1
is added to read as follows:
  S  7.  (A)  WITH JUST COMPENSATION PAID, PRIVATE PROPERTY MAY BE TAKEN
ONLY WHEN NECESSARY FOR THE POSSESSION,  OCCUPATION,  AND  ENJOYMENT  OF
LAND BY THE PUBLIC AT LARGE, OR BY PUBLIC AGENCIES.
  (B)  EXCEPT  FOR PRIVATELY OWNED COMMON CARRIERS AND PUBLIC UTILITIES,
PRIVATE PROPERTY SHALL NOT BE TAKEN FOR USE BY PRIVATE COMMERCIAL ENTER-
PRISE, FOR ECONOMIC DEVELOPMENT, OR FOR ANY OTHER  PRIVATE  USE,  EXCEPT
WITH  THE  CONSENT  OF  THE  OWNER. PROPERTY SHALL NOT BE TAKEN FROM ONE
OWNER AND TRANSFERRED TO ANOTHER, ON THE GROUNDS THAT  THE  PUBLIC  WILL
BENEFIT FROM A MORE PROFITABLE PRIVATE USE.
  (C)  WHENEVER  AN  ATTEMPT  IS MADE TO TAKE PRIVATE PROPERTY FOR A USE
ALLEGED TO BE PUBLIC, THE QUESTION WHETHER THE CONTEMPLATED USE BE REAL-
LY PUBLIC SHALL BE A JUDICIAL QUESTION, AND DETERMINED AS  SUCH  WITHOUT
REGARD TO ANY LEGISLATIVE ASSERTION THAT THE USE IS PUBLIC.
  S  2.  Resolved (if the Assembly concur), That the foregoing amendment
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.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD89046-01-1

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