New York Court Of Appeals: No Need For A Comprehensive Taking Plan

In a brief memorandum opinion, the New York Court of Appeals (the state's highest court) today affirmed the Appellate Division's decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality's ability to take property for farmland preservation. The court held: 

Petitioner contends that the United States Supreme Court's decision in Kelo v City of New London (545 US 469 [2005]), which dealt with takings for purposes of economic development, requires a preexisting farmland preservation plan to justify the taking of its property as a public use within the meaning of the Fifth Amendment (see US Const Amend V ["nor shall private property be taken for public use, without just compensation"]). We need not, and do not, reach the issue whether petitioner's interpretation of Kelo is correct, since the challenged taking was constitutionally proper even assuming that a preexisting farmland preservation plan was necessary. Petitioner's property was taken pursuant to a legislatively declared public policy in favor of farmland preservation and as part of the Town of Brookhaven's master plans endorsing farmland preservation. In furtherance of these plans, Town voters passed three bond acts providing $130 million to acquire development rights or fee interests in undeveloped land in the Town; among the areas specifically designated for preservation was the 500-acre tract of farmland in which petitioner's parcel is located.

In short, the public benefits of the taking in this case were not incidental or pretextual in comparison with benefits to particular, favored private entities; petitioner's remaining arguments likewise lack merit. Finally, the parties have not argued, and we do not decide, whether the New York Constitution (see NY Const, art I, § 7[a]) imposes a more stringent standard for takings than does the Fifth Amendment as interpreted by Kelo.

The Appellate Division's opinion approved a taking of private property to preserve it as farmland.  The court's majority held that the goal of preserving farmland generally qualifies as a public use/purpose, and that there was no evidence of pretext in the record demonstrating that the presumption of public use should be questioned, even though the property owner asserted that the land would eventually be leased or sold to another private owner.

The property owner also asserted that because the taking was not part of a plan, it did not deserve judicial deference.  Recall that in Kelo v. City of New London, 545 U.S. 469 (2005), the majority took great pains to establish that the taking of Mrs. Kelo's house was part of a "'carefully considered' development plan," and was therefore entitled to judicial deference.  Kelo reviewed the decision to take property by eminent domain in much the same fashion that the courts review police power zoning decisions under due process analysis: courts wash their hands for the most part as long as the zoning is enacted "in accordance with a comprehensive plan."  This aspect of the Kelo decision has received some attention, but little traction so far.  See, e.g., MiPro Homes, L.L.C. v. Mount Laurel Township, 878 A.2d 38 (N.J. Super. 2005), aff'd 910 A.2d 617 (N.J.) (per curiam), cert. denied, ___ U.S. ___ (2007); Western Seafood Co. v. United States, No 04-41196 (5th Cir., Oct. 11, 2006). 

Neither the Appellate Division nor the Court of Appeals, however, was bothered at all by the utter lack of a formal (or even an informal) plan, Kelo's "carefully considered" language notwithstanding.  The Appellate Division simply implied one:

In any event, while it does not appear from the record that the precise boundaries of the Manorville Farmland Protection Area [the alleged "plan"] have been carefully considered by the Town, it is clear from the comments made by various speakers at the hearing that the desirability of preserving farmland in Manorville has indeed been recognized by civic associations and public officials.  A plan prepared by the Manorville Taxpayers Association in 1993 set preservation of the remaining farms in the hamlet as a goal. . . .

Slip op. at 6.  So let's see if I get this straight. There was no plan to preserve farmland, but since someone "commented" at a public hearing that preserving farmland is desirable, and because a vague "legislative policy" exists "in favor of farmland preservation," the court is free to imply that a plan not only exists, but that it is "carefully considered" and therefore due judicial deference?  Is is highly doubtful that a plan by civic groups gleaned from comments at a public hearing, or broad aspirational policy statements are the kind of comprehensive action the majority had in mind in Kelo.  The fact that a condemnation takes place within the context of a comprehensive plan is, in theory, designed to give the courts confidence in the result, but if an action takes place without a plan, courts should be more willing to give it a hard look, as in cases of "spot zoning," for example. 

A second point is also spurred by the above quote.  If the implied plan to take property to preserve farmland has been in existence since 1993, then the just compensation awarded to the property owner should take into account the rise in value from that date to the time of the taking, since the so-called "plan" has blighted the property since 1993.

The Court of Appeals' memorandum decision and the Appellate Division's opinion are squarely at odds with a decision by the Pennsylvania Supreme Court in Middletown Township v. The Lands of Josef Seegar Stone, No 64 MAP 2006 (Dec. 28, 2007), a decision we analyzed here. In that case, the court struck down an attempted taking of property for farmland because it was a pretext to hide the "true purpose" of the taking for recreational purposes. Aspen Creek is also at odds with the recent decision from a California Court of Appeal in City of Stockton v. Marina Towers LLC, No. C054495 (Feb. 13, 2008), where the court held that the city's resolution of necessity was so "nondescript [and] amorphous," and "so vague, uncertain and sweeping in scope that it failed to specific the 'public use' for City sought acquisition of the property."