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Appellate Court Rules Use of Eminent Domain Improper

By Steven Silverberg and Katherine Zalantis

In what the Appellate Division, Second Department called a case of first impression, the court has ruled an attempt by the Village of Haverstraw to acquire a property by condemnation for affordable housing violated the Eminent Domain Procedure Law. In the case 49 WB, LLC v. Village of Haverstraw the court found the Village failed to demonstrate a public purpose. The Village proposed to condemn the property at issue for acquisition by a local not-for- profit, HOGAR. In finding that the acquisition of the property had a public purpose the Village had determined that (1) HOGAR would provide a community outreach health center, (2) provide an office for HOGAR and (3) the site would be suitable to construct 16 units of affordable housing. The Court found: (1) the Village failed to demonstrate that HOGAR was more likely to provide a community outreach health center than the current owner who had a plan for such use and therefore ?failed to articulate how or in what manner the condemnation ?fosters any benefit to the public which would not be obtained absent condemnation?; (2)HOGAR already leased space in the building and the owner had offered a long term lease, further ?there is no foundational support in the record to conclude that any ?public? benefit would flow from having a private, not-for-profit corporation such as HOGAR be an owner of its office space rather than a tenant?; and (3) the condemnation, through a complex analysis outlined below, actually results in fewer affordable housing units for the Village...continue to full post

Full post as published by New York Zoning and Municipal Law Blog on June 23, 2007 (boomark / email).