Eminent Domain FAQ

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Eminent Domain FAQs about Eminent Domain Condemnation Law.

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IV - THE “DUE PROCESS” TEST. NO “NEXUS” BETWEEN GOVERNMENT ACTION AND A DISCERNIBLE PUBLIC PURPOSE

In Lingle, the Court, in defining the three different types of takings, made a distinction between a “taking” and a government action which serves no public purpose (i.e. the nexus or “not advancing” a public interest). Agins v. Tiburon, supra.

In the Author’s opinion, the distinction between a Type 3 taking and the “nexus” test is illusory. It would seem almost impossible to tell the difference. The Supreme Court of the United States, in observing that the distinction is “imprecise”, does not disagree. Lingle v. Chevron, supra.

Thus, the courts will reason along both lines. As noted, the Manocherian Court, following both legal approaches, observed that there was no substantial basis or consideration underlying how the challenged legislation – severely impairing the owner’s use and control of its own property – could achieve a sound public objective:

“Part of the underpinning of the hospital's and State's claim in this case rests on a belated assertion of a health care crisis in the City of New York. The Legislature declared no such crisis in enacting this privileged exception. Also, such a generalization would precedentially countenance a myriad of favoritism experiments or supplicant demands or preferential entitlements to special classes of entities over the wider, appropriate and constitutionally authorized and recognized State interests of the general public.Id. at 397.

And then applying what was clearly a “ nexus” test, the Manocherian Court held:

“We conclude that this legislation suffers a fatal defect by not substantially advancing a closely and legitimately connected State interest (see, Seawall Assocs. v City of New York, 74 NY2d 92, 107, cert denied sub nom. Wilkerson v Seawall Assocs., 493 US 976; Rent Stabilization Assn. v Higgins, 83 NY2d 156, 174, cert denied 512 US 1213, 114 S Ct 2693 [June 13, 1994]; see also, Nollan v California Coastal Commn., 483 US 825).”

Presaging the Supreme Court’s later observation in Lingle that the difference is imprecise, in Manocherian the Court recognized that the difference becomes almost imperceptible:

"While there is no "precise mathematical calculation" for determining when an adjustment of rights has reached the point when " 'fairness and justice' " requires that compensation be paid (Dolan v City of Tigard, 512 US 374, 384, 114 S Ct 2309, 2316, 2319 [June 24, 1994]), in Seawall Assocs. v City of New York (supra), this Court implemented the doubled-edged test for determining whether a regulatory taking has occurred. We held that a "burden-shifting regulation" will constitute a taking "(1) if it denies an owner economically viable use of his [or her] property, or (2) if it does not substantially advance legitimate State interests" (id., at 107, citing Nollan v California Coastal Commn., 483 US 825, 834, supra; see also, Agins v Tiburon, 447 US 255, 260). Failure to measure up to either criterion can invalidate a governmental incursion or encumbrance on private property rights (see, Seawall Assocs. v City of New York, supra; Lucas v South Carolina Coastal Council, 505 US 1003, 1016, 112 S Ct 2886, 2894; Nollan v California Coastal Commn., supra; Keystone Bituminous Coal Assn. v DeBenedictis, 480 US 470, 485, 495; Armstrong v United States, 364 US 40, supra). We are governed by this framework and discern no analytical basis or precedential authority to drop below this floor of constitutional protection for property owners or to alter well-established substantive and procedural rubrics and guidance in this complex field. In particular, we are satisfied that even if the economic impact aspect of this test (see, Hodel v Irving, 481 US 704, 714) were not to be satisfied, that feature alone could not defeat the owners' interests and claims in a controversy such as this, without consideration and fulfillment of the substantial State interest and close causal nexus prong of the governing test, even as to regulatory takings.

This Court also recently expressed the view that the substantial State purpose for such legislation must be bound by a "close causal nexus" to survive scrutiny (see, Rent Stabilization Assn. v Higgins, 83 NY2d 156, 174, cert denied 512 US 1213, 114 S Ct 2693 [June 13, 1994], supra; see also, Dolan v City of Tigard, 512 US 374, 114 S Ct 2309, supra).”

Similarly, Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309 (1994), is another example of where the Court will apply more than one test. In Tigard, the City had established a statutory scheme which required that an owner seeking to develop property near (or within) a defined flood plan area dedicate a 15 foot strip of land for a pedestrian/bicycle pathway. This certainly qualified as a “Type 1" taking or occupying property without payment of any just compensation. The Dolan Court found that without payment of just compensation, the imposition of a condition which occupies a portion of the owner’s property offends the Fifth and Fourteenth Amendments to the Constitution:

“Cities have long engaged in the commendable task of land use planning, made necessary by increasing urbanization, particularly in metropolitan areas such as Portland. The city's goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done.“ A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal, 260 U.S., at 416, 43 S.Ct., at 160.”

Again, the “nexus” test appears in Dolan, supra, where the Court found that there was no discernible “nexus” to a “public purpose”. For good measure, the Court observed that the so-called public purpose was problematic at best:

“The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property simply because at that particular moment the landowner is asking the city for some license or permit.” Simpson v. North Platte, 206 Neb. 240, 245, 292 N.W.2d 297, 301 (1980).
... this right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna, 444 U.S., at 176, 100 S.Ct., at 391. It is difficult to see why recreational visitors trampling along petitioner's floodplain easement are sufficiently related to the city's legitimate interest in reducing flooding problems along Fanno Creek, and the city has not attempted to make any individualized determination to support this part of its request.”
“... In Nollan, supra, we held that governmental authority to exact such a condition was circumscribed by the Fifth and Fourteenth Amendments. Under the well-settled doctrine of “unconstitutional conditions,” the government may not require a person to give up a constitutional right-here the right to receive just compensation when property is taken for a public use-in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)."