The method by which government actually takes title (i.e., vests title) to the property differs depending on whether the condemning authority is the State (or one of its agencies) or a local government. A specific distinction is made by the EDPL between State appropriations and appropriations made by local government such as county, town, city, or village. The different procedures applicable to a taking by the State in contrast to a taking by a local government are generally set forth in EDPL §402.
A) The State
EDPL §402(A) provides that the State appropriates property by filing a map in the Office of the Clerk of the County in which the property is located and with the “condemning agency” (usually the Department of Transportation). The State takes property simply by the filing of a map. Although the EDPL imposes a number of pre-vesting procedures upon the State and, as a general practice, the State will contact the property owner well before the taking and will hold informational hearings, it is obvious that actual vesting of title may often take place without the property owner being aware of the actual loss of title or the specific date that title is taken. Often, as noted below, it is not until the actual notice of appropriation that the property owner becomes aware of the taking.
(B) Local Governments
In contrast to the State, local governments or condemning authorities follow a more traditional procedure. Public hearings must be held to establish the “public purpose” or necessity for the taking. At the public hearings, comments will be invited from the affected property owners as well as the general public. Usually, there is little question that the purpose of the taking is in the public interest and a finding of public purpose will be issued. This can be challenged, but is rarely successful. See EDPL Article 2. Counsel for the local government will then file a notice of pendency and make a formal application before the Supreme Court in the county in which the property is located. This application is very similar to a plenary action or, for that matter, a special proceeding requiring service upon the property owner with at least twenty days notice in addition to newspaper notice. In most circumstances, there is no opposition to the formal notice to vest title and the application is unopposed. Upon the Court’s signing of the actual vesting order and its entry with the county clerk, title is deemed vested in the condemnor.
Posted in: Condemnation