New York Eminent Domain Law

New York Eminent Domain Law Explained

Are you impacted by eminent domain in New York? When it comes to eminent domain, the government is playing in their arena; they do this every day. They know what the rules are, they know how the rules affect them and they know how the rules affect property owners. If the government is taking your land, make sure that you become informed so that you know what you can and cannot do.

In most cases, you won’t be able to prevent the government from acquiring your land, but you are entitled to just compensation under eminent domain law. Learn more about eminent domain generally and what you’re entitled to receive, or continue reading to learn about the New York eminent domain process, your rights as a property owner and hiring a New York eminent domain attorney.

Our New York eminent domain practice is extensive, with clients ranging from New York City to Utica to Rochester. We have experience handling cases for property owners affected by redevelopment projects – including Atlantic Yards Project in Brooklyn – and we also have experience handling cases for landowners affected by NYS DOT projects and utility projects throughout the state. We’ve obtained beneficial rulings for property owners at the New York Appellate Division and we’ve successfully handled cases of first impression at the lower court level to help expand property rights. Did you know that most eminent domain attorneys work on a contingent fee basis? With this fee structure, the attorney assumes the risk of earning a fee. Also, a property owner’s attorney’s fees and costs may be paid for by the government or condemning authority when certain criteria are met.

New York Eminent Domain Process

In the state of New York, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If you have determined that the proposed taking does meet these requirements, then you should learn more about the New York eminent domain process.

Remember, even if the government has the right to condemn your property, they cannot dictate the price they are willing to pay; compensation is determined by the highest and best use laws for your property.

The majority of eminent domain cases in New York meet the requirement for public purpose and necessity. Examples of cases that meet these criteria are: property acquisition for highway improvement projects, and acquisitions for utility projects such as installation of power lines and sewer systems.

Below is a chart for the eminent domain process in New York:

New York Property Rights

The eminent domain abuse dialogue often centers on policy issues involving the right to take property for economic development and blight. Since the landmark case of Kelo v. City of New London in 2005, many states have taken measures to help curb eminent domain abuse. Some states were very successful at passing meaningful reform, and other states failed to pass any legislation at all. Most states fall in the middle by passing legislation that looks good on paper but does little to level the playing field between property owners and the government.

Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership.  The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity.  While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse.

The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws.  The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain.  The Castle Coalition, gave the state of New York a letter grade of an F for property rights saying:

“As a state that is among the leaders in eminent domain abuse, it is not surprising that New York trailed far behind the other states in its response to Kelo. The only bill that seemed to have any traction did little more than create another study committee, yet the New York State Legislature failed to even pass that.”

Hiring an Eminent Domain Attorney in New York

The most blatant form of eminent domain abuse occurs when the government or condemning authority makes a ‘low ball’ offer. This scenario invariably requires the property owner to hire an attorney to obtain just compensation. Fortunately, the vast majority of eminent domain attorneys work on a contingent fee basis, meaning they charge a percentage of the additional money they obtain for the property owner.

Are Attorney’s Fees Paid in New York for Eminent Domain?

New York has passed legislation requiring the condemning authority to pay the property owner’s attorneys fees and costs in eminent domain cases if certain criteria are met.

In instances where the final award is substantially greater than the condemning authority’s offer of payment, the court may, upon application and in its discretion, award the property owner an additional amount for costs and attorney’s fees. The expenses must be incurred to achieve just and adequate compensation (NY EM DOM PROC § 701).

‘Substantially greater’ is unfortunately not defined in this statute, which leaves it open to interpretation by the courts. Based on our experience and prior court rulings, a final award is ‘substantially greater’ if it is 50% or $100,000 greater than the condemning authority’s offer of compensation. Remember, this is not a statutory definition and can therefore not be applied in every case.

Very few attorneys can claim expertise in the area of eminent domain law. If you’re affected by eminent domain, you should obtain a consultation from an eminent domain lawyer so that you know and understand your rights before taking any action. Remember, the government is like any buyer, they will want to purchase your property as cheaply as possible, and their appraisers may neglect to consider damages that can lead to a larger amount of just compensation. 

Summary of NY Eminent Domain

The Atlantic Yards Project is one of New York’s most controversial eminent domain cases in recent history.  The New York Court of Appeals filed a decision on whether or not the state had the authority to use eminent domain for this project in Goldstein, et al., vs New York State Urban Development Corp., d/b/a Empire State Development Corp. Not surprisingly, the courts ruled in favor of the government and property was in turn acquired through eminent domain and sold to private developers.   For more specific information on this specific case, visit the project blog.

Another controversial eminent domain case has ended in favor of the state when the New York Court of Appeals ruled unanimously that the state has the authority to acquire private property through eminent domain for a 17 acre expansion of Columbia University.  In it’s decision written by Judge Carmen Beauchamp Ciparick, the court stated, “We ruled for Atlantic Yards, and if we could rule in favor of a basketball arena, surely we could rule for a non-profit university”.  The property owners and their attorney, Norman Siegel, exercised their last legal remedy by petitioning the US Supreme Court to hear their case.  This petition was denied on December 13th, 2010 and condemnation proceedings continued.

Legislation reform in New York is desperately needed in order to curb eminent domain abuse and strengthen New York property rights.  Although previous efforts of legislative reform were unsuccessful, property owners are still encouraged to contact their law makers and demand eminent domain reform.