Posted by: Patricia Salkin | March 9, 2008

New York State Bar Association Task Force on Eminent Domain Issues Final Report

The New York State Bar Association was the only state bar in the country to appoint a task force specifically to study eminent domain issues following the public reaction to the 2005 U.S. Supreme Court decision in Kelo v. City of New London.  The interim report, issued in March 2006, contained eight recommendations that were adopted by the State Bar House of Delegates.  In February 2008 the final report, with five additional recommendations, was approved by the House of Delegates.  A summary of the thirteen recommendations are as follows:

— The use of eminent domain should not be restricted to specified public projects.                 

— Local governments should not have a veto over exercises of eminent domain by public authorities of larger entities within their borders.  

— Agencies exercising eminent domain for economic development  purposes should be required to prepare a comprehensive economic development plan and a property owner impact assessment.                  

— The present 30-day statute of limitations in EDPL § 207 for judicial review of the condemnor’s determination and findings should be  expanded.                 

— A new public hearing under EDPL § 201 should be required where there has been substantial change in the scope of a proposed economic development project involving the exercise of eminent domain.                 

— No exceptions to the EDPL are necessary for acquiring property for public utility purposes.                 

— Acquisitions should not be exempted from the EDPL’s eminent domain procedures simply because other statutes provide for land-use review.                 

— A Temporary State Commission on Eminent Domain should be established.                 

— In the findings it is required to make under the Eminent Domain Procedures Law, must the condemning authority must state the full range of anticipated public benefits,  how those benefits are to be achieved, and the steps necessary to ensure that the redevelopment or  economic development program will be carried out as envisioned.                        

— The condemning authority must outline the anticipated adverse impacts of the proposed redevelopment or economic development project on all property owners and tenants to be affected by the project and the means by which those adverse impacts are to be tigated.                       

— Where the public property to be acquired is in turn conveyed to a private developer, the condemning authority must set forth in the required findings the process it plans to follow to select that redeveloper, the basis for the selection of the redeveloper, the benefits that will accrue to that redeveloper, and the extent to which the public is informed and involved in the selection process. The findings must include a statement of the means that will be used to monitor the redeveloper and ensure that the redeveloper’s primary purpose is to secure the public benefits of the redevelopment or economic development project.

·  The private developer should be precluded from direct contact with the proposed claimant from the time the condemning authority issues its final determination and findings pursuant to EDPL article 2.

· The due process rights of all owners of land or buildings to be condemned must be guaranteed.  The condemning authority must set forth all reasonable means that will be used to provide notice to prospective condemnees of the public hearing as required under EDPL sec. 202. 

The 2006 report is appended to the final report. The report can be accessed at: http://www.nysba.org/AM/Template.cfm?Section=February_1_2008_House_of_Delegates_Meeting_Agenda_Items  


Responses

  1. New Mexico had an Eminent Domain Task Force in the summer of 2006, which recommended, by 7-5 vote, removing the eminent domain power from the State’s Metropolitan Redevelopment Act, NMSA 3-60A-1, et seq.. The 2007 Legislature followed this recommendation. “Blight” as defined in the Act, included inadequately platted subdivision lots. The use of eminent domain to consolidate such lots was “quietly” added to another section of the statutes, at
    NMSA 1978, Section 3-18-10 by the Legislature, to enable municipalities to acquire property “platted before 1971, which has remained vacant and unimproved and threatens the health, safety and general welfare of persons or property due to erosion, flooding and inadequate drainage”. This provision is known as the “Rio Rancho Exception”, enabling that City to acquire such lots. Rio Rancho is not completely satisfied, since so many inadequate lots were platted before 1971. The Task Force vote in 2006 had been 7-5, with those favoring removing eminent domain from the Metropolitan Redevelopment Act being ranchers and rural officials, and those supporting keeping eminent domain in the Act being
    the Municipal League and representatives from urban areas.


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