New York Law Journal: New York’s Exclusive Procedure on “Taking” Needs Amendment

Michael Rikon authored a column in the October 30, 2015, edition of the New York Law Journal titled, “New York’s Exclusive Procedure on ‘Taking’ Needs Amendment.”

In his article, Mr. Rikon discusses that, although New York’s Eminent Domain Procedure Law (“EDPL”), which was adopted in 1977, provides far superior protection in comparison to the procedures in other states, the EDPL is still overdue for study and amendment.

Mr. Rikon notes that the EDPL is almost forty years old.  It is long in the tooth and in need of revision.  There are many substantive areas that require review and amendment.

Some examples of areas that require review and amendment follow.

Should a condemnor be allowed to file a lower appraisal for trial after making a higher pre-vesting offer based on another appraisal?

Should the EDPL be revised to provide a set period to file a claim for compensation?  If the state of New York appropriates your property, one has three years to file a claim in the Court of Claims from the date of personal notification of the taking.  However, in all other takings, the Supreme Court is authorized to set the time period for a condemnee to file a claim.  EDPL §503(B).  While the periods vary, many courts select one year.  Why?  These are not slip and fall cases, but the taking of property and there seems to be no rationale or constitutional reason to limit a party from filing a claim to one year.

A great deal of the recent litigation challenging proposed takings has focused on the blight designation necessary to authorize a taking.  The Court of Appeals has substantially barred the review of findings of blight in eminent domain proceedings.  Matter of Kaur v New York State Urban Development Corp., 15 NY3d 235 (2010).

It is necessary for the Legislature to define what exactly is “blight.”  It seems to us that “blight” is in the eyes of the beholder.  Since a court will not review a blight designation, justice and fairness require a solid definition.

Should there be a shorter limit on how long a condemnor can condemn property once it determines to take it?  Present conditions provide for a three-year period and up to 10 years if the acquisition is done in stages.  EDPL § 401.  This creates a cloud of condemnation which affects property values.  Further, there is nothing that compels a condemnor to take property.

What is the appropriate interest to be paid?  If the state or a state agency takes your property, it pays 9 percent, if a local government acquires, it pays 6 percent.  It seems inappropriate and illogical for the agency with the lower credit rating to pay less.  Should the interest rate fluctuate and should it be compounded?

Should there be one uniform system for public hearing and review?  Condemnations should not be exempted from EDPL procedures because other statutes provide for land-use review.

Should pre-vesting offers by condemnors be true good faith offers based on proper appraisals?  EDPL § 303.  And should these appraisals be by independent appraisers, not by in-house staff?  Should the offers include amounts for trade fixtures as well as real estate owners and should such pre-vesting offers be a jurisdictional requirement before a petition to condemn is filed?

Should a jury trial be a right in a condemnation?  New York is one of three states in America that does not provide for a jury trial in a condemnation.  Why should one have the right to a jury in a false arrest case but not when one’s property is taken?

Should an award be made for the loss of a business’ good will? In a normal business transaction, good will has substantive value and is taken into account in the valuation of a business.  The loss is real and there should be compensation.

Why should there be any limit for relocation expenses?

The EDPL provides for the special proceeding to be expeditiously disposed. But they are not.  There are no judicial guidelines for condemnation cases.  There should be continuous calendar and status conferences of condemnation claims as is conducted in Kings County Supreme Court.

A condemnor must have sure and certain compensation available to pay all advance payments immediately on vesting and the final award promptly.

Should there be a requirement that once taking property is completed it actually be used for the intended purpose within a period of time or the project be deemed abandoned and returned to former owner?  EDPL § 406 requires that if the project be abandoned within ten years, it be offered to the former owner at fair market value.  The time period for abandonment should be reduced.

Should a condemnor be allowed to make a substantial change in the scope of a proposed economic development project without new public hearings?

While New York should be proud of its Eminent Domain Procedure Law, there is need to study and revise the law.

The full article is available on the New York Law Journal website:

Posted in Condemnation Procedures, Eminent Domain, Future of the law
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