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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

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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.

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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.

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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.

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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.

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The Court of Appeals remanded a case involving New York City’s adult business zoning regulations for further hearings on whether so called 60/40 businesses should be regulated as adult businesses due to adverse secondary impacts on nearby properties and neighborhoods. The action by For the People Theatres of New York, Inc. challenged New York’s 2001 zoning amendments which attempted to control establishments which evaded the regulations on businesses that have a “substantial portion” of the business devoted to adult uses by maintaining so called 60/40 uses with 60 percent allegedly non-adult uses. The Court noted that the information submitted by the Plaintiff’s experts did not resolve the issue but merely shifted the burden to the City to prove secondary adverse impacts. The Court remanded the matter to provide the City with an opportunity to submit evidence of secondary impacts.

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On December 5, 2005 the Second Circuit Court of Appeals remanded the case of Brody v. Village of Port Chester back to the District Court on the issue of whether Brody had actual notice of the proceedings and procedures under New York Eminent Domain Procedure Law (“EDPL”) before his property was condemned by the Village. In a case that has been bouncing between the District Court and Second Circuit Court of Appeals since the year 2000, the Second Circuit ruled that the EDPL’s procedure for determining whether a decision to condemn property for public use met constitutional muster. However, the Court determined that the notice provisions that existed prior to 2004 were flawed in that they failed to provide notice of the thirty day time limit for challenging a determination that the purpose of a condemnation was for a public use.

On its face the decision would appear to be limited to the facts of this case, as the Court noted the statute, as subsequently amended in 2004, now meets constitutional due process requirements. Yet, the decision of the Court raises interesting issues for other municipal land use determinations. The Court held “the notice sent to affected property owners must make some conspicuous mention of the commencement of the thirty-day review period to satisfy due process”. Does this mean that other land use determinations that implicate property rights must also contain notice of the commencement of a short statute of limitations in addition to the notice of decision required by statute?

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A Long Island jury (Noghrey v. Town of Brookhaven) granted a verdict of 1.6 million dollars against the Town of Brookhaven as a result of the rezoning of two parcels of land. The property, which had been zoned to permit shopping center uses was rezoned and the owner claimed this resulted in a loss of value.

While the presiding judge had ruled that the property owner had not lost all economically viable use of his land, he allowed the jury to reach a verdict on the issue of a regulatory taking based upon a loss of investment backed expectations. The property owner had purchased the two parcels in order to develop the properties for retail uses. The court apparently instructed the jury that it needed to only find by a perponderance of the evidence that there had been a loss of investment backed expectations.

This descision seems to run contrary to a long standing rule in New York that a property owner has no vested right in the potential use of her property. Municipalities have been permited to rezone property as long as the land owner has not established that there has been a substantial expenditure in furtherance of the development of the property for a specific use. In Magee v. Town of Orangetown, which is perhaps the leading case on this issue, the property owner had invested millions in developing the property when its permits were revoked and the property was rezoned. In that case the New York Court of Appeals upheld a judgment against the town for a regulatory taking.

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The Appellate Division of the State Supreme Court ruled this summer that the Legion of Christ, Inc., a religious organization that operates a private college, must comply with local zoning. The court held the Religious Land Use and Institutionialized Persons Act (RLUIPA) was not violated by requiring a religious organization, operating a private college, to follow the same land use application process as a secular organization.

This is similar to the issues being raised in the case presently being heard in the United States District Court for the Southern District of New York involving the Westchester Day School and the Village of Mamaroneck. The non-jury trial revolves around an application that has been pending for approximately four years to allow for the expansion of a day school operated by a religious group. The group claims that the failure to approve the expansion of the school substantially effects religious practice. The Village claims that the school seeks to enlarge in order to deliver secular classes and that these secular activities are not protected by RLUIPA.

Whatever the outcome the matter is likely to find its way to a higher court.

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The President of the New York State Bar Association has established a task force to study New York’s Eminent Domain Law in the wake of the controversy created by the U.S. Supreme Court decision in Kelo v. New London this year. The holding by the Court that municipalities may use their eminent domain powers to take private property for economic development has prompted calls by members of the New York State Legislature to curb local authority to condemn property. In addition, members of Congress have suggested that projects with federal funding should be barred from using eminent domain powers.

What seems to be missing from the discussion is the fact that the Kelo case really did not break any new ground. Municipalities have been using eminent domain to build railroads, revitalize business districts or improve housing stock for about one hundred years. Following the end of World War II urban renewal became a major force for revitalization and condemnation was a significant tool for implementing these programs. It seems the Kelo decision has merely raised the collective consciousness about the use of eminent domain.

The thought that someone can have their home taken so that a private developer can build a supermarket or an office building has outraged many. Yet, the aim of these projects is to create jobs and improve the overall quality of life in these communities. Since the U.S. Constitution only requires that just compensation be paid, the actual rules governing the details of eminent domain powers are governed by state law. Therefore it will be up to the legislatures of States, such as New York, that permit broader use of condemnation authority to examine whether “public purpose” should continue to include the economic redevelopment of communities.

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