When you get a chance, do take a look at Zutt v. State, N.Y. App. Div., 2010-10561 (Index No. 2146/10), opinion filed July 18, 2012. It’s a long opinion but it may be worth slogging through, particularly if you have an interest in the interaction of environmental and right-to-take eminent domain law. In this case, the New York courts — yes sir, New York — actually enjoined the State D.O.T. from proceeding with a condemnation for a proposed drainage easement. The court affirmed the conclusion of the trial court that the State failed to comply with state environmental laws, failed to provide the condemneees with a hearing to which they were entitled by statute, and did so in bad faith by misrepresenting the facts and arguing that the proposed taking was de minimis, even though it was not.
As the court put it, “[T]he State has unreasonably persisted in advancing the theory of prescriptive easement [sic] in two litigations subsequent to the determination against it after trial in 2006 that there was no prescriptive easement, and proceeded with planning for the proposed condemnation after [an earlier adjudication] without involving the public [or the owners] in the process. The State violated the spirit and letter of [the State Eminent Domain Law] in making an unfounded determination of a de minimis taking, thereby avoiding the required public hearing, where [the owners] would have had the opportunity to present evidence of bad faith in a public forum. Moreover, the State failed to conduct any [environmental] review despite the recognition by DOT’s engineers of potential environmental impacts, hastily prepared a superficial environmental checklist only after faced with new litigation challenging its failure to comply with [State environmental laws], and proferred a baseless interpretation of its regulations . . . in order to avoid any environmental review,” Slip Opinion, p. 11, citation omitted.
Any time a court takes a property owner’s rights seriously in the context of eminent domain, particularly in New York, that’s a cause for rejoicing. But the fact is that this was not an eminent domain case, but rather what New Yorkers call a CPLR article 78 proceeding, to review D.O.T.’s compliance with environmental laws. Which is a whole other thing legally. Here, courts actually review the State’s actions, as opposed to eminent domain cases where they merely rubber stamp them. Still, as the old expression goes, any port in a storm and all that. It’s good to see that the highway builders out to take private property can be held accountable to that property’s owners on any theory.
Follow up. For an article that analyzes this case in greater detail see M. Robert Goldstein and Michael Rikon, Taking a Hard Look at Department of Transportation’s Eminent Domain Power, N.Y. Law Jour., August 2, 2012.