The Inconsistent Rulings of The Second Department: You Can Drive on the Beach – No You Can’t!

The Second Department handed down a decision dealing with driving on the beach in Southampton, Thomas v Trustees of the Freeholders and Commonalty of Southampton, ____ AD3d ____ (February 9, 2022). The Southampton Village Code prohibited the driving on ocean beaches between 9:00 am and 6:00 pm during summer months.  However, the Village Code provides an exception to this general prohibition for a portion of the beach that includes the Thomas’s property, among others.  Plaintiffs alleged several causes of action including a per se unconstitutional taking. One fact stated by… read more

Posted in Access to Beach, Per Se Taking, Title to Beach
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The Appraisal Rule in an Eminent Domain Trial

New York is one of the three states in the union that does not allow a jury trial. When private property is taken for public use, the condemnor must “compensate the owner so that he (or she) may be put in the same relative position, insofar as this is possible, as if the taking had not occurred.”[1]  The award “must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such… read more

Posted in Appraisal Rule, Condemnation Trial, Expert Testimony
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New Challenge to Takings for Natural Gas Pipelines

An article published by the E&E News written by Niina H. Farah on December 16, 2021 reported an argument before the U.S. Court of Appeals for the District of Columbia.  The lawsuit was brought by homeowners located along the route of the Mountain Valley Pipeline alleging that it is unconstitutional for the Federal Energy Regulation Commission (FERC) to delegate it eminent domain authority to pipeline developers. The legislation at issue in the case is the Natural Gas Act, which extends the federal government’s authority to condemn private land for public… read more

Posted in FERC, PennEast Pipeline, Pipelines
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East River Park Destruction: Not So Fast, The Public Trust Doctrine Controls

On December 7, 2021, I wrote a blog about the legal suit brought to stop the destruction of the East River Park in the Lower Eastside of Manhattan.  I discussed the decision of the Appellate Division, First Department in Matter of East River Park Action v City of New York (Index No. 151491/20) denying an application to annul a vote of the City Council which modified the zoning resolution in order to facilitate the construction of the development of the East Side Coastal Resiliency Project. The project adopted by the… read more

Posted in East River Park, Parkland, Public Trust Doctrine
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East River Park – A Park Not Protected by the Public Trust Doctrine

Some two years ago, on May 9, 2019, I wrote about the Public Trust Doctrine in this blog.  I reported the Court of Appeals’ decision in Matter of Glick v Harvey, 25 NY3d 1175 (2015) where the Court affirmed decisions of lower courts enjoining New York University from beginning any construction with its expansion project that would result in any alienation of three parcels of land found by the Court to be public parkland, unless and until the State Legislature authorizes the alienation of any parkland to be impacted by… read more

Posted in parklands, Public Trust
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The Infrastructure Package Means Business for Real Estate Investors

After much debate, President Joe Biden signed a $1.2 billion infrastructure bill (H.R. 3684) into law, finalizing a key part of his economic agenda.  The vote in the senate was uncommonly bipartisan; the yes votes included Senator Mitch McConnell of Kentucky, the Senate Republican Leader and 18 other Republicans. Funding for Roads and Bridges The legislation calls for investing $110 billion for roads, bridges and major infrastructure projects.  That’s significantly less than the $159 billion hat Biden initially requested in the American Jobs Plan. Included is $40 billion for bridge… read more

Posted in Construction, Eminent Domain, Infrastructure Package
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The Environmental Rights Amendment: Additional Ammunition in Challenging a Proposed Condemnation

The new Environmental Rights Amendment was adopted on November 2, 2021.  The amendment adds Section 19 to Article I of the New York State Constitution and provides, “Each person shall have a right to clean air and water, and to a healthful environment.”  The amendment is effective January 2022. The Environmental Rights Amendment is part of Article I, the New York Bill of Rights. As set forth in a blog, “E2 Law Blog” written by David Mandelbaum, Esq. and Steven C. Russo, Esq. on November 8, 2021, the Bill of… read more

Posted in Challenges to Condemnation, EDPL Sec. 207, Environmental Rights Amendment, SEQRA
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Prior Takings as Creating Collateral Estoppel – Not So Fast!

What happens when property was condemned and the condemnor raises its ugly head to condemn again at a later time?  It happened once upon a time in Queens.  In 1979, the Metropolitan Transit Authority (MTA) acquired an easement for the purpose of routing a New York City Subway tunnel through a portion of 26-29 Northern Boulevard, Long Island City.  The parcel was vacant land and consisted of 130,293 square feet.  The property was owned by Peerless Weighing and Vending Machine Corp.  Now, a separate blog can be written about Peerless. … read more

Posted in Collateral Estoppel, Highest and Best Use, Partial Takings
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Don’t Touch That Tree! Tree Mitigation Regulations May Constitute a Dolan Taking

Professor Robert Thomas in his indispensable blog “inversecondemnation.com” reports that U.S. Court of Appeals’ Opinion in F.P. Development, LLC v Charter TWP of Canton, No. 20-1147 (Oct. 3, 2021) in which the Court affirmed the district court’s grant of summary judgment to the property owner on its unconstitutional conditions taking claim. The Township had a tree ordinance which prohibits property owners from removing trees on their land without the Town’s permission, and also requires owners to either replace any trees removed or pay between $300 – $450 into the tree… read more

Posted in Dolan Taking, Tree Mitigation, Tree Regulation
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Don’t Trust Your Appraisal? Don’t Worry, Neither Does Your Appraiser.

How strong is the residential market? Well, according to people looking to buy and folks looking to sell, very strong.  In fact, many residential properties put on the market sell for more than the listing price.  Indeed, many times there are bidding wars.  All this is fine until the winner of the war applies for a mortgage. The gulf between contract prices and appraised values highlights the risks to buyers in the current market, especially those stretching their budgets to win a bidding war.  Mortgage lenders will typically lend only… read more

Posted in Appraisal, Bidding War, Fair Market Value
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