2.0 I. Introduction

• Jurisdiction: New York

I. INTRODUCTION

The power of the state to take property for public use is an attribute of sovereignty. It is as essential to the effective existence of the state as the police power and the power of taxation. The power of the state to take property predates the federal and state Constitutions; it is not given by any constitution.³³

Recognizing that public interest is harmed when important public projects are unnecessarily delayed on account of judicial review of condemnation decisions, the Legislature adopted an extraordinary procedure for judicial review of condemnation decisions. Under Eminent Domain Procedure Law section 207 (hereinafter “EDPL”), challenges are heard as original proceedings in the Appellate Division. There is a 30-day statute of limitations for bringing such proceedings and a provision for expedited hearing. The scope of judicial review in these proceedings is narrowly circumscribed. The standard to successfully challenge a condemnation is high and the term “public use” is broadly interpreted. As a result, very few challenges to condemnations are successful in New York.³⁴

The Eminent Domain Procedure Law provides for alternative types of public hearings in connection with any exercise of the eminent domain power. They are legislative-type hearings, not adversarial or judicial hearings. Although controversial when the EDPL was adopted in 1977, the public hearing requirement was intended to provide the public with general project information and a forum for public input through submission of brief oral statements and written statements of unrestricted length.³⁵

The method for seeking judicial review of a condemnation decision varies depending on the type of public hearing held. The principal type is provided for under EDPL sections 201 through 203, which outline the requirements for an EDPL article 2 hearing. Hearings must be held in the vicinity of the project. This results in notice to the media and to persons who will be affected by the taking.³⁶ A record of the hearing, including all statements received, is maintained and available for review at the condemnor’s offices without cost.

An alternative³⁷ is provided for in EDPL section 206. This recognizes that an acceptable substitute for an article 2 hearing would be one held under another statute where issues similar to those set forth in EDPL section 203 are considered. The method for seeking judicial review from condemnation decisions varies depending on whether an EDPL...