1.9 2. Eminent Domain

• Jurisdiction: New York

2. Eminent Domain

Another vestige of the feudal tenure system is the concept of eminent domain, which gives the sovereign³⁹ a right of condemnation. The power of eminent domain is subject to the following constitutional restrictions:

the taking of property by the sovereign must be for a “public purpose”;

the taking must be conditioned upon the payment of just compensation; and

the existing owner must be given an opportunity to be heard on issues of compensation and public use. ⁴⁰

Both the U.S. Constitution and N.Y. Constitution provide that private property may not “be taken for public use without just compensation.”⁴¹

The principle that underlies this concept is, once again, the notion that real estate title is derived from the sovereign as the source of all power and interest in the land. Because the sovereign holds the primary title to all property, a citizen enjoys possession of the property subject to the condition that his or her property may be taken and the title extinguished if there is a public necessity.⁴²

It is important to note the distinction between the power of eminent domain and the police power. While the taking of private property for a public use through condemnation entitles the owner to just compensation, the exercise of the police power to regulate the use and enjoyment of property can be accomplished without compensation. Typical police power regulations include zoning ordinances as well as subdivision and environmental regulations.

Nevertheless, the exercise of such controls through the police power may become so burdensome as to constitute a taking. In Penn Central Transportation Co. v. City of New York,⁴³ the U.S. Supreme Court considered the constitutionality of New York City’s Landmarks Preservation Law. In an opinion that demonstrates the fine line that separates what constitutes a taking from a valid exercise of the police power, the Court sustained the application of the Landmarks Preservation Law to the petitioner’s property. The Court, in affirming a decision of New York’s Court of Appeals, held that the restrictions imposed on the use of Grand Central Terminal resulting from its designation as a landmark did not constitute a compensable taking since such limits were substantially related to the general welfare of the public and did not impair the existing use of the property. The Court found that the restriction did not create an economic hardship and that the regulation permitted a reasonable return on the...