senate Bill S1045

2013-2014 Legislative Session

Relates to the taking of private property; repealer

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


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

do you support this bill?

Actions

view actions (6)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Feb 19, 2014 opinion referred to judiciary
Jan 13, 2014 to attorney-general for opinion
Jan 08, 2014 referred to judiciary
Feb 06, 2013 opinion referred to judiciary
Jan 11, 2013 to attorney-general for opinion
Jan 09, 2013 referred to judiciary

S1045 - Bill Details

Current Committee:
Senate Judiciary
Law Section:
Constitution, Concurrent Resolutions to Amend
Laws Affected:
Rpld & add Art 1 ยง7, Constn
Versions Introduced in Previous Legislative Sessions:
2011-2012: S2898
2009-2010: S1504

S1045 - Bill Texts

view summary

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.

view sponsor memo
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.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1045

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- 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.
                                                           LBD89053-01-3

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.