Posted On: January 30, 2006

What Will the Eminent Domain Law Look Like in New York?

At the present time there are 28 bills pending in the New York State Assembly and Senate related to condemnation of private property by government entities. The bills range from comprehensive revisions of the eminent domain law in New York to minor changes directed at specific aspects of the law. Clearly a reaction to last year's decision by the United States Supreme Court, some of the proposed legislation, if adopted, will have a substantial impact on eminent domain for years to come. While many people believe the law requires reform, others are concerned that an over reaction will result in hampering revitalization of municipalities throughout the State.

The pending legislation, as listed on the New York State Assembly site, is listed below:

A00372 Provides for giving of just compensation upon the taking of any billboard
A02226 Requires a new public hearing for any change made to a proposed eminent domain project after the conclusion of public hearings
A02523 Relates to municipality responsibility for remedial programs involving hazardous wastes at sites owned by municipalities
A02536 Protects powers granted to municipalities concerning certain public utility services
A02761 Extends powers of municipal corporations to acquire public utilities by the power of eminent domain
A07909 Requires a thirty day notice in eminent domain procedures
A08865 Requires a vote by a local government which is considering eminent domain of a certain property
A09015 Requires a vote by a local government which is considering eminent domain of a property
A09043 Requires the preparation of a comprehensive economic development plan for the use of eminent domain when the primary purpose is economic development
A09050 Enacts comprehensive eminent domain procedure reform act to afford homeowners additional protection if homes are to be acquired for economic development; repealers
A09051 Relates to eminent domain in N.Y. city
A09060 Creates a temporary state commission to consider the scope and effectiveness ofeminent domain laws and balance society`s needs with the peoples rights; appropriation
A09079 Relates to the use of eminent domain
A09144 Relates to the use of eminent domain to take private property for the use of a private developer
A09152 Provides for the establishment of a state eminent domain ombudsman and providesfor the powers and duties thereof; enacts the "eminent domain ombudsman act"
A09171 Amends the definitions of "acquisition" and "public project" in relation to a municipality`s exercise of eminent domain
A09173 Proposes amendment of subdivision (e) of section 1 of article 9 of the constitution in relation to eminent domain powers of local governments
A09473 Alters provisions that a person be given just compensation if his or her residence or small business is taken through the eminent domain procedure
A09484 Provides for eminent domain reform and creates the "home and property protection act"; appropriation
S01335 Relates to municipality responsibility for remedial programs involving hazardous wastes at sites owned by municipalities
S01367 Protects powers granted to municipalities concerning certain public utility services
S01474 Extends powers of municipal corporations to acquire public utilities by the power of eminent domain
S03846 Provides for giving of just compensation upon the taking of any billboard
S05936 Provides that the power of eminent domain shall only be exercised for economic development purposes when the area for economic development is a blighted area
S05938 Relates to the use of eminent domain
S05946 Requires the preparation of a comprehensive economic development plan for the use of eminent domain when the primary purpose is economic development; creates temporary state commission; appropriation
S05949 Relates to eminent domain in cities with a population of one million or more
S06216 Creates a temporary state commission to consider the scope and effectiveness ofeminent domain laws and balance society`s needs with the peoples rights; appropriation

Posted On: January 27, 2006

Property Rights Case Sent Back to District Court for Further Action

The Second Circuit Court of Appeals has remanded the case of Davis v. Town of Hempstead to the district court. The challenge involves actions taken in accordance with a local law that appears similar to many other local laws in New York State. Therefore the ultimate decision in this case may have serious implications for many municipalities in New York, as well as having the potential to add fuel to the already heated discourse over individual property rights.

The case involves a claim by a property owner that the Town of Hempstead violated his constitutional rights when it removed a structure on his property. The Town had declared the structure unsafe and ordered its repair or removal. The action was taken after the structure was certified as unsafe by an architect retained by the Town and the plaintiff was given notice and an opportunity to respond. When the property owner failed to repair or remove the structure the Town had the structure removed.

The District Court had granted the Town summary judgment. The Court found that this case involved actions that were part of a series of earlier actions previously upheld by the court and therefore the issues had already been decided (res judicata). The Circuit Court concluded that the incident complained of had occurred a year after the actions that were adjudicated in the earlier case. Therefore, the Circuit Court held the removal of the structure was not part of the same incident that resulted in the prior determination and remanded the case to the District Court for further action.

New York State Town Law section 130 specifically authorizes Towns to adopt local laws governing the removal of unsafe buildings. Many Towns have laws similar to the Hempstead law providing a procedure for removal of unsafe structures. Typically these local laws are invoked when a structure is located in area which poses a threat to the public in the event of a collapse. The final decision in this case will likely be instructive as to the full extent of municipal authority in these circumstances.

Posted On: January 16, 2006

Second Circuit Reverses Judgment for Denial of Wireless Telecommunications Tower

In a December, 2005 decision the Second Circuit Court of Appeals reversed the judgment of Omnipoint Communications against the City of White Plains. Omnipoint had been denied a permit to construct a 150 foot wireless communications tower on a local golf course. The Court noted that if supported by substantial evidence the decision of the local board was entitled to deference from the Court.

In reversing the decision of the district court, the Circuit Court noted that the tower would rise to three times the height of the tallest evergreen tree and “half again as tall as any other tree in the area”. Therefore it was held that the local board could reasonably conclude the tower would be “widely visible”. The Court found the study conducted by Omnipoint was flawed as it was taken only from public areas and not from residential back yards or second story windows of homes.

Perhaps most significantly the Court noted that the local board was free to reject the report of Omnipoint’s “expert” and credit the testimony of local residents and their landscape architect who had “limited qualifications” to address the issue. It noted that in the Second Circuit there was no requirement to use expert studies to support a local decision. Rather the Board could rely on the “aesthetic objections raised by neighbors who know the local terrain and the sightlines of their own homes” in reaching its decision.

Finally on the issue of public necessity for the proposed tower the Court ruled that Omnipoint’s examination of other potential sites was conclusory and lacked documentation as to the availability of other less intrusive structures. It held that since there were other towers in the area, Omnipoint had the burden of demonstrating that other towers in the vicinity were either unavailable to cover the gap in coverage or lacked the capacity for Omnipoint.

Posted On: January 9, 2006

Village of Suffern Sued Under RLUIPA

The Village of Suffern New York has been sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by an Orthodox Jewish group that maintains a home for Orthodox Jews visiting relatives and friends at nearby Good Samaritan Hospital. The group, which was denied a use variance, has received several violations for activities that are not conforming to the single family residence zone. The property is used to house Orthodox Jews, whose religious observance does not permit them to drive on the Sabbath, so that they may stay overnight and walk to the hospital in order to visit the sick. The group complains that the Village’s actions substantially interfere with their religious exercise, which commands them to visit the sick but also not to drive on the Sabbath.

Posted On: January 2, 2006

Appellate Division Decides Trilogy of New Rochelle Zoning Challenges

The Appellate Division of the New York State Supreme Court decided a trilogy of cases on December 27, 2005 relating to a series of determinations by the City of New Rochelle Zoning Board of Appeals to permit construction of an addition to a local religious institution. The cases, Halperin v. Zoning Bd. of Appeals, Richmond v. Zoning Bd. of Appeals and Halperin v. City of New Rochelle broke little new ground but are significant in that together they cover a number of issues related to variances, the standard of review of determinations by zoning boards, the deference accorded religious uses and standards for review under SEQRA, including cumulative impacts and when a supplemental environmental impact statement is required.

Perhaps the most interesting aspect of the decisions is the holding in Halperin v. City of New Rochelle that a variance for off street parking is an area variance when the proposed uses are otherwise permitted as of right. One argument had been that a variance for off street parking was a use variance requiring the more exacting standards for the granting of use variances. Agreement by the Court with this somewhat novel contention would have made many variance requests, that are otherwise routinely granted, extremely difficult to obtain.

Another potentially significant aspect of the ruling is the Court’s view of cumulative impact review. The Court also held that SEQRA does not mandate a review of cumulative impacts of other nearby developments when those developments are unrelated and not part of a common overall development plan.