It is a basic tenet of constitutional law that before a public body can exercise the right of eminent domain and take title, it must have the ability to pay the “just compensation” the Constitution requires. We wrote on this subject in our column of December 23, 2009, with particular reference to public corporations of which there are reportedly 1,098 in New York State. Most, if not all, have been delegated the power of condemnation. None have the taxing power which historically has been the sine qua non for the ability to guarantee “sure and certain” compensation. The ability to float bonds has not been deemed sufficient, even if backed by the moral authority of the State.
Despite this, it has been relatively rare to find a challenge to the right to condemn by any of these public corporations on this ground. We can think of only three in the past number of years. In each instance, the putative condemnor was required to post security in an amount fixed by the court. In the more than 60 years we have been practicing, we have yet to see the inability to collect a condemnation award. But seeing what is going on around us does not make us so sanguine about the future. This is particularly so because, in a few instances, we had to get an involuntary payment.
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