The law of eminent domain in New York is broken. It has been
broken by the legislature and by the courts, but it keeps on
breaking—it breaks homes and destroys neighborhoods as, year after year, state and local officials use their unchecked power to take property from private citizens and hand it over to other private parties whom those officials happen to like better. The situation is intolerable.
New York’s abuses make it unique. “Eminent domain” means
something different in New York—both procedurally and
substantively—from what it means anywhere else. New Yorkers
stand alone in the country in being wholly unable to protect their
property using ordinary judicial procedures—things as basic as
being able to question witnesses under oath—that everyone else
simply takes for granted. New Yorkers stand alone in the
country in facing a judiciary that flatly refuses to take seriously
the arguments of those hardy few who manage to get into court in the first place. Furthermore, New Yorkers stand nearly alone in facing a legislature that has failed to even attempt to reform the state’s eminent domain procedures in the wake of the U.S.
Supreme Court’s 2005 decision in Kelo v. City of New London.
This article will attempt to summarize the tremendous
problems facing property owners in New York, and to venture a
few (partial) solutions that might be adopted by the legislature.
Part One addresses the unique procedural barriers New Yorkers
face in challenging the government’s use of eminent domain.
Part Two briefly summarizes the substantive problems
introduced into the law by two recent New York Court of Appeals decisions. Finally, Part Three will suggest meaningful reforms the state legislature should adopt to restore some measure of protection to property rights in New York.