A classically short opinion from the New York Supreme Court (Appellate Division, Fourth District) in HBC Victor LLC v. Town of Victor, No. 683 (Dec. 23, 2022). (So short that we were tempted to simply post the opinion and let you read it, because it will probably take you just as long to read our summary; but we're up to the challenge of making our summary even shorter than the opinion, so here goes.)
The town wants to take property "connected to an enclosed regional shopping center known as Eastview Mall[.]" Slip op. at 1. Until Co-19, the property was occupied by a retail department store, but the store closed permanently in February 2021. The owner tried to get a new tenant, but unsurprisingly, that came up short.
Perhaps sensing an opportunity, the Town sought to condemn for redevelopment. But its resolution of taking did not specify what it wants the property for:
"[t]he proposed Acquisition is required for and is in connection with a certain project . . . consisting of facilitating the productive reuse and redevelopment of the vacant and underutilized Proposed Site through municipal and/or economic development projects . . . by attracting and accommodating new tenant(s) and/or end user(s)."
Slip op. at 2.
Even in condemnor-friendly New York, this one should raise a red flag. But not enough: "[i]n its determinations and findings, the Town stated that 'no specific future uses or actions have been formulated and/or specifically identified." Id.
When you draft your findings like that, condemning agency, shame on you. (Kudos, however, for your honesty.)
Pointing to a recent similar case by the Second Department, the Appellate Division concluded that "[b]ecause the Town has not indicated what it intends to do with the property, we are unable to determine whether 'the acquisition will serve a public use.'" Slip op. at 2. The public use for the taking is determined at the time of the taking, and simply speculating that the taking will produce future public benefits isn't enough:
In simple terms, the government cannot take your land and then decide later what to do with it without running afoul of the Takings Clause of the Fifth Amendment of the United States Constitution, as applied to the states by the Fourteenth Amendment.
Slip op. at 2.
The court rejected the Town's argument that it doesn't need a particularized plan, and the government can take property for redevelopment even if it hasn't yet decided how the property will be used. The court first noted that "the Town professes to have no idea what it intends to do with petitioner's property." Slip op. at 3. It might even transfer the property to the owner of the adjoining shopping mall. "Again, unless and until the Town says what it plans to do with the property upon taking, we cannot determine whether the taking will serve a public use." Id.
And there's no indication or claim that the property here is blighted, even under New York's notoriously low standards for blight:
To the contrary, the evidence at the public hearing established that petitioner has cleaned and maintained the premises since the Lord & Taylor vacancy and continues to pay property taxes at the assessed value of more than $4,000,000. We do not equate mere vacancy with blight, especially when the vacancy occurs unexpectedly in the midst of a global pandemic.
Slip op. at 3.
Taking invalidated; attorneys' fees to the owner.
Think the Town will have another go at it? If so, think it'll draft the resolution the same way (or will it heed Justice Scalia's Lucas dictum)?
HBC Victor LLC v. Town of Victor, No. 683 (N.Y. App. Div. Dec. 23, 2022)
