Eminent domain is one of the government’s greatest powers. Its ability to take private property is so powerful that America’s founders limited it in the U.S. Constitution, which stipulates that a government entity can only take private property for public use. And it must always pay “just compensation” when doing so.
New York State also places limits on takings. New York’s Eminent Domain Procedure Law (EDPL) describes the rules agencies must follow when they need to acquire private property within the state.
What is eminent domain?
Eminent domain is the government’s power to take private property. It traces its origins all the way back to the English Magna Carta. That document required constables and bailiffs in England to pay for grain or other property seized from its owner.
The Fifth Amendment to the U.S. Constitution states that “private property [shall not] be taken for public use, without just compensation.” This prohibition applies to governments at all levels, including the following:
- The U.S. government and its agencies like the Environmental Protection Agency
- New York State and its agencies
- Counties and county departments
- Cities and city departments
For example, suppose that the county decides to add two lanes to a road, and this project requires stripping your property by ten feet. You cannot stop the county from taking the property it needs as long as it meets all of its obligations under state and federal law. But you will receive just compensation for the property you lost.
This governmental power is not the same as a purchase. The government can act as a market participant to buy property from private sellers. But in these situations, you have the right to refuse to sell. You do not have the right to refuse a taking.
Thus, when the U.S. Department of Justice offers to buy your land to build a prison, you can refuse or negotiate for a higher price. But when the DOJ takes your land for the prison, you can only challenge whether the DOJ followed the rules and paid just compensation.
When can the government take private property?
The government can only use its power to take private property when it needs it for public use. This term is defined very broadly to include any governmental purpose. New York has a similarly broad definition of “public project” to include any public use, benefit, or purpose.
Some examples of public use or public projects may include:
- Government buildings
- Transportation projects, including rails, roads, and canals
- Public recreation facilities, such as parks, bike trails, and golf courses
- Conservation projects, such as national and state parks
Importantly, the government is not required to show that it “needs” your property for its purpose. Instead, the law only requires it to show a rational relationship between your property and its goals.
Under New York law, the agency that wants the property must publish a notice in the newspaper and hold at least one public hearing. Property owners aggrieved by the planned project can petition for judicial review. The court will examine the project and determine whether:
- The notice and hearing satisfied federal and state law
- The government has the authority to take the property
- The government complied with the EDPL and environmental laws
- The taking is justified by a public use, benefit, or purpose
If the court finds the government skipped any steps, it can stop the taking.
What is just compensation?
New York’s EDPL encourages the government to negotiate with property owners before taking someone’s property. But reasonable minds can differ about the property’s value. When this happens, courts require the government to pay just compensation.
Just compensation is not based on the owner’s use or the government’s proposed use. Instead, it must take into account the “highest and best use” for the property. This means the government must pay you the fair market value of what you could have done with the property — not what you were doing with it.
Valuations are where most disputes over government takings arise. To discuss the government’s proposed taking of your property, contact Levy Goldenberg, a real estate litigation firm in New York, New York.