LITIGATING THE PUBLIC TRUST DOCTRINE IN NEW YORK. A PARK IS A PARK UNLESS IT’S NOT.

          New York’s highest court, the Court of Appeals, decided Matter of Glick v Harvey.[1]  The appeals court affirmed the reversal of a lower court order which enjoined New York University from beginning any construction in connection 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 the project.  The decision itself provides very little factual information.  According to an article… read more

Posted in Condemnation, parklands, Public Trust Doctrine, Uncategorized
Read more > 0

PUBLIC USE MEANS JUST ABOUT ANY USE

          Arguing that the project will benefit a private party and that the proposed condemnation will there by violate the constitutional restraints against the condemning private party to give another private party will fail as long as it could be said the public purpose is dominant.  See Waldo’s, Inc. v Vill. Of Johnson City, 74 NY2d 718, 720 (1989); see also Yonkers Cmty. Dev. Agency v Morris, 27 NY2d 478, 482 (1975).           Virtually any purpose will be acceptable including the condemnation of a historic waterfront for a shopping mall… read more

Posted in Public Benefit, Public Purpose, Public Use, Uncategorized
Read more > 0

JUST COMPENSATION FOR GOODWILL

          The Fifth Amendment to the United States Constitution requires the court to award just and fair compensation.  But goodwill is rarely compensated.  Rather the courts will utilize a market approach unless property is truly unique, or to be exactly operated as before by the condemnor.  Matter of Nassau County (Lido Boulevard), 43 AD2d 45 (2d Dept 1973), afd. 39 NY2d 958 (1976).           State and federal courts have long ignored the mandate to pay just compensation for the goodwill of a business.  In New York, trade fixtures used for… read more

Posted in Going Concern, Goodwill, Uncategorized
Read more > 0

TRUMP’S WALL – A MIRAGE IN THE DESERT

          Donald Trump has made building a wall along the southwest border a cornerstone of his administration.  Trump has misappropriated government funds including $3.6 billion in money which was allocated for military construction to build the wall, but there is one necessary element missing, “the land.”  Congress – even while under Republican control, has repeatedly refused to appropriate the money demanded by the President to fund the project.           There are 1,350 miles of the southern border which is unfenced.  He originally wanted to fence 1,000 miles, but has reduced… read more

Posted in Border Wall, Ineffective Eminent Domain, Property Rights, Uncategorized
Read more > 0

DOES ACQUIRING PROPERTY TO RETURN IT TO PRODUCTIVE USE SERVE A VALID PUBLIC PURPOSE? OR, IS LAND BANKING SPECULATIVE AND IMPROPER?

          The Second Department handed down two decisions in two consecutive weeks deciding challenges to determinations adopted to condemn property by eminent domain for the purpose of returning the property to productive use in accordance with the City of Yonkers Master Plan in two separate urban renewal plans.  Matter of One Point St. Inc. v City of Yonkers Indus. Dev. Agency, ____ AD3d ____, 2019 NY Slip Op 01769 (March 13, 2019); Matter of City of New York v Yonkers Industrial Development Agency, ____ AD3d ____, 2019 NY Slip Op… read more

Posted in Challenges to Condemnation, EDPL Sec. 207, Land Banking, Speculative Taking, Uncategorized
Read more > 0

SOMETHING IS ROTTEN IN THE COUNTY OF ROCKLAND: The corrupt process of exercising the awesome power of eminent domain.

          Recently, the Second Department affirmed an additional allowance pursuant to EDPL Sec. 701 to the extent of awarding $233,391.46.  Matter of Village of Spring Valley (Little Angel Day Care Center, Inc.).  Joshua H. Rikon tried the trade fixture claim and argued the appeal.           The Village, as it has in past cases, offered a low-ball appraisal and paid an advance payment of $90,960.           The trial court awarded $469,114 as just compensation.  The award was previously affirmed and claimant thereafter moved for the additional allowance.  Little Angel was fully… read more

Posted in Bad Faith, Just Compensation, Mendacious Argument, Uncategorized
Read more > 0

“I’VE GOT THE HORSE RIGHT HERE” Condemning a Racetrack Part II – Valuing a Specialty

          In my prior blog on April 4, 2019, I wrote about the City of Baltimore’s proceedings to condemn the Pimlico Race Course and the “Preakness Stakes.”  One of the issues discussed was what would be the measure of damages the City would have to pay as just compensation.  I wrote that a racetrack should qualify as a specialty.  The valuation of property as a specialty requires the summation method.  One would calculate the depreciate value of the physical improvements and add that value to the land.           One of… read more

Posted in Uncategorized
Read more > 0

“I’VE GOT THE HORSE RIGHT HERE” Condemning a Racetrack By Michael Rikon

The City of Baltimore has commenced eminent domain proceedings to condemn the Preakness Stakes horse race and the Pimlico racetrack.  It seems that the owners were intent on moving the Preakness Race out of the City.  The racetrack is in a rundown condition.  The Maryland Stadium Authority issued a report saying the Pimlico track should be torn down and rebuilt at a cost of $424 million.            Maryland law requires that the track be in Baltimore except for disaster or emergency.  Among the various charges levied is that the owners… read more

Posted in Going Concern, Intangible Property, Racetracks, Uncategorized
Read more > 0

The doctrine of prior public use prevents a taking.

The doctrine of prior public use prevents a taking in Matter of City of NY  v Yonkers Indus. Dev. Agency, __AD3d__, 2019 NY Slip Op 02087 [2019]. The City of Yonkers sought to acquire property located in Yonkers that was owned by the City of New York and used by the Metropolitan Transportation Authority as a bus depot. The City of Yonkers sought to return the underutilized parcel to productive use in connection with an urban renewal plan. The Appellate Division, Second Department held the taking of the subject parcel… read more

Posted in Challenges to Determination and Findings, Challenging condemnation, Condemnation of Government Property, EDPL 207, EDPL Article 2, Eminent Domain
Read more > 0

SO, YOU’RE BUILDING A WALL IN TEXAS – NOT SO FAST!

          In declaring a national emergency to build a border wall, President Trump described the move as the fastest path to construction.  But a variety of legal issues could delay wall construction for years and even derail it entirely.  To start with, when there is Congressional authorization, the federal government can take land for an authorized project.  This proposed taking is not authorized by Congress.  Far from it, Congress has indicated that it is absolutely opposed to the project.  Trump is attempting to do an end run around Congress by… read more

Posted in Border Wall, National Emergency
Read more > 0