Real Estate & Property Law

New York Appellate Division: Condemnation Must Proceed Under Eminent Domain Statutes, Not Highway Law

By Robert Thomas (inversecondemnation.com)

In County of Cortland v. Miller, No 507725 (Mar. 24, 2010), the New York Appellate Division (Third Department) held that when the county legislature authorized the condemnation of property for a road culvert pursuant to New York's Eminent Domain Procedure Law, the county highway department must condemn the property pursuant to the EDPL, and not the Highway Law.

Here, the County Legislature's resolution in August 2008 authorized the acquisition pursuant to the EDPL. Rather than adhering to the method for the taking directed in the resolution (i.e., the EDPL), petitioner instead attempted to use a procedure under a different statute (i.e., Highway Law § 120). This alone is reason enough to dismiss the petition. In addition, Highway Law § 120 is inconsistent with the EDPL in significant aspects relevant in this proceeding, including hearing requirements (see EDPL 201) and who determines compensation (see EDPL 501 [B]). Those aspects of Highway Law § 120 no longer govern a taking in this state and it was error to utilize procedures from Highway Law § 120 that were at odds with the EDPL.

Slip op. at 3-4.

Seems obvious, no?

Full post as published by inversecondemnation on May 10, 2010 (boomark / email).