A news story run by CBS News on August 6, 2018 reports that a former owner of land in the Bronx is fighting to get the land back from the City of New York.  The property, a 13,000 square foot parcel on Boston Road, was taken in 1967 apparently for a street widening.

He has commenced a lawsuit because nothing was done with the property.  His attorney is hopeful that the City will work something out.  I am less sanguine of the results.  Under New York State Eminent Domain Procedure Law (“EDPL”) § 406, if the condemnor takes property by eminent domain and then abandons the project for which the property was acquired, and the property has not been materially improved, the condemnor may not dispose of the property for private use within ten years of acquisition “without first offering the former fee owner of record at the time of acquisition a right of first refusal to purchase the property at the amount of the fair market value of such property at the time of such offer.”

If the acquisition was a partial taking, the condemnor does not have to offer the former fee owner the right of first refusal “unless such former fee owner has title to the contiguous remainder parcel at the time the condemnor determines to dispose of the property.”  Id.

A former owner does not have a right of first refusal if 10 years has passed.  If there is an abandonment of a project, the former owner must move within 10 years to exercise the right provided in the statute.  Further, if the parcel taken was only a partial taking, the former owner must still own the contiguous property.  Shapiro v Othmer, 172 Misc2d 231 (Sup. Ct. Pot. Co., 1994) aff’d 249 AD2d 400 (2d Dept 1998).  Oddly, if a project is abandoned and the condemnor leases the property, it is not considered a sale.  The former owner cannot insist on exercising its right of first refusal.  Chamberlain Trust v Litke, 134 Misc2d 677, aff’d 135 AD2d 714 (2d Dept 1987).

There is a lot of unfairness in the interpretations given the law.  The legislature should review the provision to make its application more equitable.

Posted in Abandonment Of Condemnation, EDPL Sec. 406, Partial Takings, Right of First Refusal
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