New York's state courts don't have the best track record of taking a hard look at the public use or purpose supporting an exercise of eminent domain power. This is the jurisdiction that gave us the Battle for Brooklyn and the Tuck-it-Away cases, both of which virtually eliminated judicial review of a condemnor's stated public purpose, no matter how much private benefit results.
But here's one from the Appellate Division, Third Department, that vacated an attempt by the Village of Lake Placid to take vacant property for a public parking lot. The catch is that it wasn't some problem with the taking itself, but that the Village didn't study the environmental impacts of the taking enough.
In Adirondack Historical Ass'n v. Village of Lake Placid, No. 525242 (May 3, 2018), the Village undertook the required environmental review to study the impact of the taking of the .35 acre parcels on Main Street on the environment. The study concluded there would be no significant impacts. The property owner challenged that determination and the taking.
The court agreed that the Village didn't study the potential impacts enough:
We do agree, however, with petitioner's contention that the record fails to establish that the Village Board took the requisite hard look at potential traffic implications associated with the construction of a parking garage on the subject property or to set forth a reasoned elaboration of the basis for its determination that the development of the property would not result in any substantial increase in traffic. Upon review of an eminent domain proceeding, courts are required to determine whether the condemnor's findings and determinations comply with ECL article 8, which is incorporated as part of the required procedures under EDPL article 2. In assessing compliance with the substantive mandates of SEQRA, we are tasked with reviewing the record to determine whether the Village Board, as the lead agency, "identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination[.]"Slip op. at 3 (citations omitted). The court didn't find evidence in the record which supported the Village's contention that the traffic associated with the project would not increase:
During both the public hearing and the written comment period, concerns regarding increased traffic congestion and other potential traffic impacts associated with the proposed condemnation were repeatedly voiced. Yet, the record is bereft of any evidence that the Village Board took the requisite hard look at these potential traffic implications. Indeed, the sum total of the proof of the Village Board's "hard look" is its negative response to the question on the EAF as to whether there would be a substantial increase in traffic above present levels – made without articulating a reasoned elaboration for the basis of such determination – and the wholly conclusory statement in its resolution that "[t]here is no significant environmental impact that could not be mitigated with reasonable measures."
Slip op. at 4.
"In light of this," the court concluded, "and given the wholesale failure on the part of the Village Board to set forth a record-based elaboration for its conclusion that the identified traffic concerns were not significant ... the condemnation of the subject property must be vacated." Slip op. at 5 (citations omitted).
Here's the ironic part, in our view. The same "hard look" the court was more than willing to take for environmental compliance (something that courts regularly do, in excruciating and exacting detail), the court would not have undertaken under plain old public use review. Oh no, when reviewing the government's stated public purpose, the courts are loathe to even appear to be scouring the record to seek out facts which may support or undercut the advanced purpose of the taking, and instead defers to the condemnor's wise judgment.
After all, who are we, mere judges, to second guess whether a taking might be for a public use? But pitch the issue as one of whether building a parking garage might impact the environment, and we're on it!
Practical note: property owners' lawyers pay attention - there's more than one way to skin that public use cat.