Generally, a property presently used for a public purpose may not be condemned.  See New York, L. & W.R. Co. v Union Steam-Boat Co., 99 NY 12 (1885).  Nor may property owned by a higher sovereign be acquired without consent.  This is known as the prior public use doctrine.  As the New York State Court of Appeals has noted, “[t]o defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear.”  In re City of Buffalo, 68 NY 167, 175 (1877).  It should also be noted that pursuant to Section 3 of the General Municipal Law, where there is a taking from a municipality for a purpose for other than that for which it was used, the condemnee is entitled to “just compensation” as is any other claimant in a condemnation proceeding.  City of New York v State of New York, 371 NYS2d 189, 190 (App. Div. 1975).


It seems simple, but it is not.


Any discussion of prior public use must also include Westchester Creek Corp. v New York City School Construction Authority, which involved the re-condemnation of property that was condemned by the City of New York for an urban renewal proceeding and leased to a private developer.  98 NY2d 298 (2002).  In a challenge to the taking, the lessee alleged there was no statutory authority for the School Authority to condemn the land because it was already being put to public use.  The Court of Appeals, looking at the statutory powers conferred on the School Authority, concluded that the Legislature had impliedly granted the power to it.  As the court stated: “There can be no higher priority than creating a physical environment in the schools that fosters rather than impedes, the education of our children,” and the statute authorized it “to do any and all things necessary or convenient to carry out and exercise the powers given and granted by this section.”  The court further noted that while the State Constitution “gives the Legislature the power to establish urban renewal projects, it does not confer any protection on redevelopers against condemnation.”  As the old adage goes, “those that live by the sword, die by the sword.”


An earlier First Department decision sustained the condemnation of certain leasehold estates in real property even though the leaseholds were held by a subsidiary of the Long Island Railroad.  Gourmet Management v Metro. Transp. Auth., 163 AD2d 184 (1990).


Perhaps the most outrageous use of eminent domain was the condemnation of certain clauses in leases where tenants had the right to limit the number of anchor tenants.  The tenants had entered into their leases with the operator of a shopping mall.  Now that the shopping mall wished to expand, it obtained the cooperation of its landlord, an Industrial Development Agency to condemn that part of the lease which limited the number of anchor tenants.  The Fourth Department held that the leasehold interests constitute interests in real property that may be acquired by the Industrial Development Agency under its power of eminent domain.  The court held that the Agency’s project serves a legitimate public purpose, and that the public purpose is dominant.  Kaufmann’s Carousel v City of Syracuse Indus. Dev. Agency, 301 AD2d 292 (2002).

Posted in Condemnation Procedures, Eminent Domain
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