Condemnation is the taking of private property by the government (or government agencies) for public purposes. These purposes include construction of roads, road widening (or improvement), parks, schools, environmental preservation, job creation, housing and municipal parking lots. Many commercial property owners, especially those with property along major thoroughfares, will, at some point, be confronted with a condemnation. For example, the New York State Department of Transportation has recently conducted major road improvements and widenings along Sunrise Highway (Route 27), Jericho Turnpike (Route 25), Main Street/Northern Boulevard/Port Jefferson-Riverhead (Route 25A) and the service roads along the Long Island Expressway. Several towns and counties have likewise undertaken major road widening and drainage projects which have and will affect property owners along the right of way.

Once a government decides to take property, it is very difficult, costly and usually futile to try to prevent it. [There is a general misconception that a condemnation can be “stopped.” Taken at face value, this is an overstatement. Many condemnations can, at great expense, be “slowed down” or “delayed,” but, as a practical matter, not stopped permanently. It is extremely difficult, except in extraordinary circumstances, to prove that a taking is not for a “public purpose.” See, generally, EDPL Art. 2. Conceivably, the mere delaying of the condemnation could result in the condemnor abandoning the project, but this is really an administrative and/or political decision, more than a legal one.] The Eminent Domain Procedure Law (“EDPL”) requires that public hearings be held by the condemning authority to review the proposed taking and the public purpose underlying the taking. Almost invariably, these hearings will result in a finding that a “public necessity” exists for the taking and then authorizing the condemnation to proceed.

The EDPL provides for a specific judicial review process of this finding of public necessity. However, unless the taking is plainly not for a public purpose and thus improper – an extremely difficult showing to make – a court will not intervene. Usually, the most that can be accomplished is to delay the taking on the ground of some procedural irregularity such as improper notice or inadequate environmental studies. See EDPL §§202 and 203.

Essentially, the property owner’s remedy is to receive just compensation (i.e., the market value of the property) guaranteed by the Fifth Amendment of the Constitution for the taking of private property.

The discussion which follows is based on New York State statutes and practice. However, every state has a procedural law for condemnation proceedings (e.g., NJSA Title 20).

Obviously, the practice will vary from state to state, but there will be many similarities. For example, most states require an “advance payment” upon taking of the property (see, e.g., NJSA 20:3-18; Calif. Code of Civ. Pro. § 1255.010, PA. St. 26 P.S. § 1-407). Every state has a procedure for the filing of a claim and a method – whether it’s before a panel of commissioners or the court – to determine just compensation (compare Penn. Statute 26 P.S. § 1-502 to New York’s EDPL Article 5).

The concept of “what is compensable” also varies from state to state, but there are certain bedrock constitutional standards of just compensation that apply to every state.

Posted in: Condemnation