Eminent Domain FAQ

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Eminent Domain FAQs about Eminent Domain Condemnation Law.

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This subject was addressed in part in a prior article on this website, but this article further refines the discussion.

Every property owner, whether they are owner of land or buildings, or have any type of interest in property, such as an owner, tenant/lessee, business operator, is affected by government regulations. Government programs and the related planning can have an adverse effect. The fact that a government action or regulation may decrease market value is not actionable. However, there are times when the property owner can feel so “strangled” by these regulations to the point where the property owner feels that the property has effectively been taken or confiscated by the government policy or regulations.

This is what is generally known as a claim of a “de facto” taking or a “regulatory taking”.1 However, it is a difficult challenge to prove a “de facto” or “regulatory” taking.

Both the Supreme Court of the United States and the New York Court of Appeals (as well as the intermediate appeals courts) have rendered decisions on the subject setting forth the standards – or, perhaps more accurately, the burden of proof that is on the property owner to show a de facto taking and entitlement to just compensation.

These decisions have essentially defined three types of takings which could arise from the government's efforts to impose conditions or regulate the use of property. These were outlined by the Supreme Court of the United States in Lingle v. Chevron, 544 U.S. 528, 125 S.Ct. 2074 (2005), and by the New York Court of Appeals in Smith v. Mendon, 4 N.Y.3d 1, 789 N.Y.S.2d 696 (2004) The Lingle Court summarized the three types of taking as:

“The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property. See, e.g., United States v. Pewee Coal Co., 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809. Beginning with Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322, however, the Court recognized that government regulation of private property may be so onerous that its effect is tantamount to a direct appropriation or ouster. Regulatory actions generally will be deemed per se takings for Fifth Amendment purposes (1) where government requires an owner to suffer a permanent physical invasion of her property, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868, or (2) where regulations completely deprive an owner of 'all economically beneficial us[e]' of her property, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798. 'The Court then characterized a third type of taking.' Outside these two categories (and the special context of land-use exactions discussed below), regulatory takings challenges are governed by Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631. Penn Central identified several factors-including the regulation's economic impact on the claimant, the extent to which it interferes with distinct investment-backed expectations, and the character of the government action-that are particularly significant in determining whether a regulation effects a taking...”

See also, Seawall Associates v. City of New York, 74 N.Y.2d 92, 544 N.Y.S.2d 542 (1989); and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309 (1994).2