It is often depicted as a David and Goliath story: the isolated property owner standing in front of some governmental agency or public utility that wants “to take” his or her property—via eminent domain—for an alleged public use. As with most stories, there is an element of truth: in some situations, local or state governments have tended to run over the property rights of some landowners. But also as in most stories, misunderstandings about the real issues abound. What is eminent domain and does an individual property owner stand a chance in fighting “City Hall?”
Eminent Domain: What is it?
According to the office of the New York Attorney General, eminent domain is another name for condemnation: the right of the government to take private property for a public purpose. Eminent domain isn’t a recent invention of our government; it springs from English common law, which is generally the foundation of the American legal system. At common law, the government could use eminent domain to acquire land for roads, bridges, fortifications, and other public improvements.
What is a “Taking?”
One significant misunderstanding that is harbored by many citizens is due to the use of the word “take” or “taking.” So long as the government has established a bona fide public purpose, it can “take” private property through eminent domain, but it must compensate the owner for that taking.
How is Compensation Computed?
Generally speaking, the government must pay “just compensation” for the taking. In most instances, just compensation reflects the full market value of the property being taken. “The taker generally cannot impose market value” — it must be determined by appropriate methods of valuation. Where the government has established the true public good to be accomplished by the taking, the only leverage a property owner usually has is with regard to the valuation. If the owner and the government cannot agree on value, New York courts must determine that value.
What if You Disagree as to the “Public Purpose?”
It is sometimes possible to challenge the eminent domain taking by showing that the property is not necessary for a public use. Within 30 days of the condemnor’s publication in the newspaper of its determination and findings, an owner may raise an appeal. Petitions for appeal must be filed in the appellate division of the supreme court in the county in which the property is located. Petitions are limited to the issues, facts, and objections raised at the earlier eminent domain hearing. The supreme court’s determination is limited to whether or not the hearing complied with all provisions of law, and whether or not a public use, benefit or purpose will be served by the proposed acquisition.
Eminent Domain Raises Complex and Often Emotional Issues
If you are faced with “a taking” of your property via New York’s eminent domain laws, you may feel isolated. The law is complex. The procedures utilized by the “taking authority” are specific and they must be followed. You may have grounds to fight the taking, either because no truly public need has been established or where you are not being offered adequate consideration for the taking. You can sometimes fight City Hall, but fighting on your own is almost never successful. Skilled, experienced legal counsel is a key.
The attorneys at E. Stewart Jones Hacker Murphy have been representing clients for more than 100 years. With offices in Albany, Troy, Saratoga Springs, and Schenectady, we are one of the most highly respected law firms in upstate New York and the capital district. Call us now at (518) 274–5820 or complete the online form. The E. Stewart Jones Hacker Murphy law firm has an attorney available to assist clients 24 hours a day, 7 days a week, 365 days a year – even on holidays.