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. v. City of Yonkers Indus. Dev. Agency, ____ A.D.3d ____, 2019 NY Slip Op 01769 (March 13, 2019); Matter of City of New York v. Yonkers Industrial Development Agency, ____ A.D.3d ____, 2019 NY Slip Op 02087 (March 20, 2019). Both challenges arose by virtue of petitions filed pursuant to §207 of the Eminent Domain Procedure Law, which is the exclusive way to challenge a proposed condemnation in New York. EDPL §204.

Under the law, the condemnor must conduct a public hearing following proper public notice. EDPL §201. Within 90 days, the condemnor must make findings on specific issues. Section 204 provides that:

(B) The condemnor, in its determination and findings, shall specify, but shall not be limited to the following:

1) the public use, benefit or purpose to be served by the proposed public project;

2) the approximate location for the proposed public project and the reasons for the selection of that location;

3) the general effect of the proposed project on the environment and residents of the locality;

4) such other factors as it considers relevant.

The challenge of a Determination and Findings must be made by filing a petition pursuant to §207 of the EDPL within 30 days of the condemnor's publication of its synopsis of the Determination and Findings. Id. §204(A). This is an extremely limited time period. As adopted, §207 of the EDPL mandates that the petition is to be an original proceeding filed in the Appellate Division embracing the county where the property was located. Further, only a “condemnee” as defined by §103(c) of the EDPL could file a petition. See East Thirteenth St. Cmty. Ass'n. v. N.Y. State Urban Dev. Corp., 84 N.Y.2d 287, 296 (2d Dept 1994); see also McCarthy v. Town of Smithtown, 19 A.D.3d 695, 696, 555 (App. Div. 2005) (a non-condemnee is entitled only to a properly conducted hearing held on proper notice). The EDPL provides that the scope of review is limited to four issues:

1.  Was the proceeding in conformity with Federal and State constitutions;

2. Whether the proposed acquisition is within the condemnor's statutory jurisdiction or authority;

3. Whether the condemnor's determination and findings were made in accordance with procedures set forth in this article [Article 2] and with Article 8 of the Environmental Conservation Law (SEQRA); and

4. Whether a public use, benefit, or purpose will be served by the proposed acquisition. N.Y. Em. Dom. Proc. Law §207(C).

Other Grounds for a Petition Under §207

The remaining grounds for a §207 petition under the EDPL are that the condemnor is making an excessive taking, that the project is a pretext and that the proceeding is being brought in bad faith. See Waldo's, 74 N.Y.2d 718, 720-22; Pfohl v. Vill. of Sylvan Beach, 26 A.D.3d 820 (4th Dept. 2006). A condemnor may not take, through use of eminent domain, property not necessary to fulfill a public purpose. Hallock v. State of New York, 32 N.Y.2d 599, 604 (1973). Nor could it condemn a fee interest when an easement would be sufficient. Davis Holding Co. v. Vill. of Margaretville, 55 A.D.3d 1101, 1104 (2d Dept. 2008); see also Feeney v. Town of Harrison, 4 A.D.3d 428, 428-29 (2d Dept. 2004). There is, however, deference to the condemnor which “has broad discretion in deciding what land is necessary to fulfill that purpose” of the condemnation. Rafferty v. Town of Colonie, 300 A.D.2d 719, 723 (3d Dept. 2002); Wechsler v. New York Dep't of Envtl. Conservation, 153 AD2d 300, 303, aff'd, 564 N.E.2d 660 (N.Y. 1990).

The second additional challenge is the general classification of a pretext taking. Here the proposed taking is really a sham. There is no public benefit, or purpose, but rather a pretextual justification for providing property to another person. An example was the Village of Haverstraw's attempt to condemn property to assist its developer in meeting its affordable housing obligation and to reduce costs to the developer. 49 WB, LLC v. Vill. of Haverstraw, 44 A.D.3d 226, 235 (2d Dept. 2007). It is clear that “[a] purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void. Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984).

There is one other valid challenge which was set forth in the City of New York decision, property presently used for a public purpose may not be condemned. We discuss this in full at the bottom of this article.

In both recent cases, the Appellate Division held that the condemnor's stated purposes were not so vague as to be illusory. The court noted that the petitioners' unsubstantial allegations fall short of the “clear showing” necessary to establish that the agency acted in bad faith, citing Matter of 265 Penn Realty Corp. v. City of New York, 99 A.D.3d 1014, 1015. The court also noted that the desired public purpose was “rational” and there was no basis to disturb it.

But there should be present more than a “rational” public purpose.

In the City of New York decision, the court noted that in reviewing a municipality's determination of eminent domain, the court must determine whether “a public use, benefit or purpose will be served by the proposed acquisition.” EDPL §207[c][4].

The Taking Should Be Necessary

We believe that the proposed taking should also be “necessary” for the public purpose. As we noted, New York has limited condemnation of land not necessary for the project. “No more may be taken than is required for the particular public purpose.” Hallock v. State of New York, 32 N.Y.2d 599 (May 1973). It seems clear that if it is not necessary for the public project, the taking should not occur. To allow a future taking of property “to return it to productive use” is simply speculative and should not be permitted. It amounts to land banking which is not a public purpose.

Recently, New Jersey struck down a proposed taking to take land in an “area in need of redevelopment.” The stated public purpose was “redevelopment” and “increasing the availability of public parking,” but there were no present plans for the construction of parking facilities. The New Jersey Appellate Division did not agree the taking was “necessary” for the redevelopment project. So, there must be need for the property directly related and linked to the project, not just a plan. Borough of Glassboro v. Grossman, ________ N.J. Super (App. Div. Jan. 7, 2019).

Proposed Taking of Land Being Used for a Public Purpose

In Matter of City of New York v. Yonkers I.D.A., even though the court held that the condemnation rationally relates to a conceivable public purpose, it held the proposed condemnation prohibited under the doctrine of public use. The court stated that the proposed condemnation of the subject parcel for the purpose of returning the parcel to productive use in furtherance of urban renewal would materially interfere with its existing public use as a bus depot.

Generally, a property presently used for a public purpose may not be condemned. See Buffalo Sewer Auth. v. Town of Cheektowaga, 20 N.Y.2d 47, 53; New York, L. & W.R. Co. v. Union Steam-Boat Co., 99 N.Y. 12, 22-23 (N.Y. 1885). Nor may property owned by a higher sovereign be acquired without consent. 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 N.Y. 167, 175 (1877). It should also be noted that pursuant to §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, 49 A.D.2d 659, 659 (1st Dept. 1975).

Michael Rikon is a partner of Goldstein, Rikon, Rikon & Houghton.