S T A T E O F N E W Y O R K
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2525
2011-2012 Regular Sessions
I N A S S E M B L Y
January 19, 2011
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Introduced by M. of A. JEFFRIES, CANESTRARI, LUPARDO, DESTITO,
O'DONNELL, MAISEL, PRETLOW, CLARK, MILLMAN, HOYT -- Multi-Sponsored by
-- M. of A. CAHILL, COLTON, COOK, FARRELL, GLICK, GOTTFRIED, HEASTIE,
JACOBS, LATIMER, LAVINE, PEOPLES-STOKES, PERRY, PHEFFER, ROSENTHAL,
SWEENEY, TITUS, WEISENBERG -- read once and referred to the Committee
on Judiciary
AN ACT to amend the transportation law, in relation to enacting the
"eminent domain ombudsman act"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known and may be referred to
as the "eminent domain ombudsman act".
S 2. The transportation law is amended by adding a new section 23 to
read as follows:
S 23. EMINENT DOMAIN OMBUDSMAN; POWERS; ARBITRATION PROCEDURES. 1. AS
USED IN THIS SECTION:
(A) "CONDEMNATION" OR "TAKING" MEANS A GOVERNMENTAL ACTION THAT
RESULTS IN A TAKING OF PRIVATE PROPERTY SO THAT COMPENSATION TO THE
OWNER OF THE PROPERTY IS REQUIRED BY:
(I) THE FIFTH OR FOURTEENTH AMENDMENT OF THE CONSTITUTION OF THE
UNITED STATES; OR
(II) THE STATE CONSTITUTION UNDER ARTICLE I, SECTION 7 OR ANY OTHER
LEGAL PROVISION HAVING TO DO WITH EMINENT DOMAIN.
(B) "TAKINGS LAW" MEANS THE PROVISIONS OF THE FEDERAL AND STATE
CONSTITUTIONS, THE CASE LAW INTERPRETING THOSE PROVISIONS, AND ANY RELE-
VANT STATUTORY PROVISIONS THAT REQUIRE A GOVERNMENTAL UNIT TO COMPENSATE
A PRIVATE PROPERTY OWNER FOR A TAKING.
2. (A) THERE IS CREATED AN EMINENT DOMAIN OMBUDSMAN IN THE DEPARTMENT.
(B) THE COMMISSIONER SHALL APPOINT A PERSON WITH BACKGROUND OR EXPER-
TISE IN TAKINGS LAW TO THE POSITION.
(C) THE POSITION IS AN EXEMPT POSITION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06910-01-1
A. 2525 2
(D) THE COMMISSIONER MAY EMPLOY CLERKS, INTERNS, OR OTHER PERSONNEL TO
ASSIST THE EMINENT DOMAIN OMBUDSMAN.
3. THE EMINENT DOMAIN OMBUDSMAN SHALL:
(A) DEVELOP AND MAINTAIN EXPERTISE IN AND UNDERSTANDING OF TAKINGS
LAW;
(B) ASSIST STATE AGENCIES AND LOCAL GOVERNMENTS IN DEVELOPING THE
GUIDELINES;
(C) AT THE REQUEST OF A STATE AGENCY OR LOCAL GOVERNMENT, ASSIST THE
STATE AGENCY OR LOCAL GOVERNMENT IN ANALYZING ACTIONS WITH POTENTIAL
EMINENT DOMAIN IMPLICATIONS;
(D) ADVISE PRIVATE PROPERTY OWNERS WHO HAVE A LEGITIMATE POTENTIAL OR
ACTUAL EMINENT DOMAIN CLAIM AGAINST A STATE OR LOCAL GOVERNMENT ENTITY;
(E) IDENTIFY STATE OR LOCAL GOVERNMENT ACTIONS THAT HAVE POTENTIAL
EMINENT DOMAIN IMPLICATIONS AND, IF APPROPRIATE, ADVISE THOSE STATE OR
LOCAL GOVERNMENT ENTITIES ABOUT THOSE IMPLICATIONS;
(F) PROVIDE INFORMATION TO PRIVATE CITIZENS, CIVIC GROUPS, GOVERNMENT
ENTITIES, AND OTHER INTERESTED PARTIES ABOUT TAKINGS LAW AND THEIR
RIGHTS AND RESPONSIBILITIES UNDER IT;
(G) IF APPROPRIATE AND REQUESTED TO DO SO BY THE PRIVATE PROPERTY
OWNER, MEDIATE OR CONDUCT OR ARRANGE ARBITRATION FOR DISPUTES BETWEEN
PRIVATE PROPERTY OWNERS AND GOVERNMENT ENTITIES THAT INVOLVE:
(I) TAKINGS LAW ISSUES;
(II) ACTIONS FOR EMINENT DOMAIN UNDER THE EMINENT DOMAIN PROCEDURE LAW
OR ANY OTHER SECTION OF LAW HAVING TO DO WITH EMINENT DOMAIN; OR
(III) DISPUTES ABOUT RELOCATION ASSISTANCE UNDER ARTICLE FIVE OF THE
EMINENT DOMAIN PROCEDURE LAW; AND
(H) IF ARBITRATION OR MEDIATION IS REQUESTED BY THE PRIVATE PROPERTY
OWNER UNDER THIS SECTION, AND ARRANGED BY THE EMINENT DOMAIN OMBUDSMAN,
THE GOVERNMENT ENTITY OR CONDEMNING ENTITY SHALL PARTICIPATE IN THE
MEDIATION OR ARBITRATION AS IF THE MATTER WERE ORDERED TO MEDIATION OR
ARBITRATION BY A COURT.
4. (A) THE EMINENT DOMAIN OMBUDSMAN MAY ASSIST A PRIVATE PROPERTY
OWNER WITH RESPECT TO A DISPUTE INVOLVING THE EFFECT OF LOCAL GOVERNMENT
REGULATION ON THE USE AND OCCUPANCY OF REAL PROPERTY;
(B) IN ASSISTING A PRIVATE PROPERTY OWNER WITH A DISPUTE UNDER PARA-
GRAPH (A) OF SUBDIVISION FIVE OF THIS SECTION, THE EMINENT DOMAIN
OMBUDSMAN MAY NOT REQUIRE MEDIATION OR ARBITRATION OF A DISPUTE EXCEPT
AS PROVIDED IN PARAGRAPH (G) OF SUBDIVISION THREE OF THIS SECTION.
5. (A) (I) IN CONDUCTING OR ARRANGING FOR ARBITRATION, THE EMINENT
DOMAIN OMBUDSMAN SHALL FOLLOW THE PROCEDURES AND REQUIREMENTS OF ARTICLE
SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND RULES.
(II) IN APPLYING ARTICLE SEVENTY-FIVE OF THE CIVIL PRACTICE LAW AND
RULES, THE ARBITRATOR AND PARTIES SHALL TREAT THE MATTER AS IF:
(A) IT WERE ORDERED TO ARBITRATION BY A COURT; AND
(B) THE EMINENT DOMAIN OMBUDSMAN OR OTHER ARBITRATOR CHOSEN AS
PROVIDED FOR IN THIS SUBDIVISION WAS APPOINTED AS ARBITRATOR BY THE
COURT.
(III) FOR THE PURPOSE OF ARBITRATIONS CONDUCTED UNDER THIS SUBDIVI-
SION, IF THE DISPUTE TO BE ARBITRATED IS NOT ALREADY THE SUBJECT OF
LEGAL ACTION, THE COURT OF APPROPRIATE JURISDICTION SHALL ACT AS THE
COURT.
(IV) THE AWARD FROM AN ARBITRATION CONDUCTED UNDER THIS CHAPTER MAY
NOT BE VACATED UNDER THE PROVISIONS OF ARTICLE SEVENTY-FIVE OF THE CIVIL
PRACTICE LAW AND RULES BECAUSE OF THE LACK OF AN ARBITRATION AGREEMENT
BETWEEN THE PARTIES.
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(B) THE EMINENT DOMAIN OMBUDSMAN SHALL ISSUE A WRITTEN STATEMENT
DECLINING TO ARBITRATE OR TO APPOINT AN ARBITRATOR WHEN, IN THE OPINION
OF THE EMINENT DOMAIN OMBUDSMAN:
(I) THE ISSUES ARE NOT RIPE FOR REVIEW;
(II) ASSUMING THE ALLEGED FACTS ARE TRUE, NO CAUSE OF ACTION EXISTS
UNDER UNITED STATES OR STATE LAW;
(III) ALL ISSUES RAISED ARE BEYOND THE SCOPE OF THE EMINENT DOMAIN
OMBUDSMAN'S STATUTORY DUTY TO REVIEW; OR
(IV) THE ARBITRATION IS OTHERWISE NOT APPROPRIATE.
(C)(I) THE EMINENT DOMAIN OMBUDSMAN SHALL APPOINT ANOTHER PERSON TO
ARBITRATE A DISPUTE WHEN:
(A) EITHER PARTY OBJECTS TO THE EMINENT DOMAIN OMBUDSMAN'S SERVING AS
THE ARBITRATOR AND AGREES TO PAY FOR THE SERVICES OF ANOTHER ARBITRATOR;
(B) THE EMINENT DOMAIN OMBUDSMAN DECLINES TO ARBITRATE THE DISPUTE FOR
A REASON OTHER THAN THOSE STATED IN PARAGRAPH (B) OF THIS SUBDIVISION
AND ONE OR BOTH PARTIES ARE WILLING TO PAY FOR THE SERVICES OF ANOTHER
ARBITRATOR; OR
(C) THE EMINENT DOMAIN OMBUDSMAN DETERMINES THAT IT IS APPROPRIATE TO
APPOINT ANOTHER PERSON TO ARBITRATE THE DISPUTE WITH NO CHARGE TO THE
PARTIES FOR THE SERVICES OF THE APPOINTED ARBITRATOR.
(II) IN APPOINTING ANOTHER PERSON TO ARBITRATE A DISPUTE, THE EMINENT
DOMAIN OMBUDSMAN SHALL APPOINT AN ARBITRATOR WHO IS:
(A) AGREEABLE TO BOTH PARTIES; OR
(B) AGREEABLE TO THE PARTY PAYING FOR THE ARBITRATOR AND THE EMINENT
DOMAIN OMBUDSMAN.
(III) THE EMINENT DOMAIN OMBUDSMAN MAY, ON THE INITIATIVE OF THE
EMINENT DOMAIN OMBUDSMAN OR UPON AGREEMENT OF BOTH PARTIES, APPOINT A
PANEL OF ARBITRATORS TO CONDUCT THE ARBITRATION.
(IV) THE DEPARTMENT MAY PROVIDE AN ARBITRATOR PER DIEM AND REIMBURSE
EXPENSES INCURRED IN THE PERFORMANCE OF THE ARBITRATOR'S DUTIES AT THE
RATES ESTABLISHED THEREFOR.
(D) IN ARBITRATING A DISPUTE, THE ARBITRATOR SHALL APPLY THE RELEVANT
STATUTES, CASE LAW, REGULATIONS, AND RULES OF THE STATE AND THE UNITED
STATES IN CONDUCTING THE ARBITRATION AND IN DETERMINING THE AWARD, IF
ANY.
(E) ARBITRATION BY OR THROUGH THE EMINENT DOMAIN OMBUDSMAN IS NOT
NECESSARY BEFORE BRINGING LEGAL ACTION TO ADJUDICATE ANY CLAIM.
(F) THE LACK OF ARBITRATION BY OR THROUGH THE EMINENT DOMAIN OMBUDSMAN
DOES NOT CONSTITUTE, AND MAY NOT BE INTERPRETED AS CONSTITUTING, A FAIL-
URE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES OR AS A BAR TO BRINGING
LEGAL ACTION.
6. THE FILING WITH THE EMINENT DOMAIN OMBUDSMAN OF A REQUEST FOR MEDI-
ATION OR ARBITRATION OF A CONSTITUTIONAL TAKING ISSUE DOES NOT STAY ANY
MATTER UNDER THE EMINENT DOMAIN PROCEDURE LAW.
7. THE EMINENT DOMAIN OMBUDSMAN MAY NOT BE COMPELLED TO TESTIFY IN A
CIVIL ACTION FILED WITH REGARD TO THE SUBJECT MATTER OF ANY REVIEW OR
ARBITRATION BY THE OMBUDSMAN.
8. THE EMINENT DOMAIN OMBUDSMAN MAY NOT REPRESENT PRIVATE PROPERTY
OWNERS, STATE AGENCIES, OR LOCAL GOVERNMENTS IN JUDICIAL PROCEEDINGS
UNDER THE EMINENT DOMAIN PROCEDURE LAW.
S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law.