On October 1, 2019, the United States Supreme Court denied certiorari to review a landowners’ appeal from the 4th Circuit Court of Appeals in Givens v Mountain Valley Pipeline. The issue is the “quick take” process that grants the pipeline immediate access to property when a Federal Pipeline Certificate is issued. The 303-mile pipeline would transmit Appalachian shale gas to Mid-Atlantic markets. The landowners are then relegated to a trial for just compensation.
The Supreme Court decision in June in Knick v Township of Scott (see Bye Bye Williamson County – Hello Knick v Township of Scott, Bulldozers at Your Doorstep, June 24, 2019) offers landowners another argument to resist such orders in the future. Knick makes clear the constitutional violation happens as soon as property is taken.
New York is a “quick take” state. As was stated, long ago in Matter of Mayor of City of NY, 99 NY 569, 577 (1885) where the Court of Appeals wrote: “While it is not necessary, in advance of the taking, to pay to the landowner his (or her) compensation, it is necessary that the act which invades his (or her) ownership shall provide for certain and definite and adequate source and manner of payment… This necessity is vital and of the most essential character, since if unheeded or disregarded, it transforms the right of eminent domain into a legalized plunder of the citizen. (Citation omitted.)”
Thus, pursuant to the Eminent Domain Procedure Law (“EDPL”), the condemnor is required to appraise the real property taken, to make an advance payment, and to do so, making “every reasonable and expeditious effort.” See EDPL §§ 101, 301, 302, 303 and 304. Of great importance is “[protecting] the interests of property owners and [ensuring] that their property is taken only in accord with proper procedure and for just compensation.” East Thirteenth Street Community Assoc. v New York State Urban Dev., 84 NY2d 287, 296 (1994).
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