senate Bill S564

2013-2014 Legislative Session

Relates to the use of eminent domain

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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
Jan 08, 2014 referred to judiciary
Jan 09, 2013 referred to judiciary

Co-Sponsors

S564 - Bill Details

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 Sessions:
2011-2012: S2862, S2962
2009-2010: S1653, S4342A

S564 - Bill Texts

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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 NUMBER:S564

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
2011-2012 - S.2862/A.9208

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

Immediately.

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

                                   564

                       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

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04621-01-3

S. 564                              2

OTHERWISE  BE  LEFT  OR  WHERE  OTHER JUSTIFIABLE CAUSE NECESSITATES THE
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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