Real Estate & Property Law

New York Court Of Appeals: Government Liable For Attorney's Fees For First Phase Of An Unsuccessful Taking

By Robert Thomas (inversecondemnation.com)

Thanks to the New York Zoning and Municipal Law Blog for pointing out last week's decision by the New York Court of Appeals in Hargett v. Town of Ticonderoga, 2009 NY Slip Op 08478 (Nov. 19, 2009).

Under New York's eminent domain law, the condemning authority is liable to the property owner for attorney's fees and costs incurred "because of the acquisition procedure" --

In the event that the procedure to acquire such property is abandoned by the condemnor, or a court of competent jurisdiction determines that the condemnor was not legally authorized to acquire the property, or a portion of such property, the condemnor shall be obligated to reimburse the condemnee, an amount, separately computed and stated, for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, and other damages actually incurred by such condemnee because of the acquisition procedure.

EDPL § 702 (B).

In a very short opinion, the court held a property owner is entitled to be reimbursed for its attorney's fees and costs incurred when it successfully challenges the government's authority to take under New York's two-step condemnation process:

Generally, a two-step process is required under the Eminent Domain Procedure Law before a condemnor obtains title to property for public use. The condemnor first makes a determination to condemn the property after invoking the hearing and findings procedures of EDPL 203 and 204 (Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 543 [2006]). Thereafter, the condemnor must seek the transfer of title to the property by commencing a judicial proceeding known as a vesting proceeding pursuant to EDPL article 4 (id.).

Slip op. at 2 (footnote omitted). The court rejected the Town's argument that § 702 only requires the reimbursement of fees and costs incurred in a vesting proceeding, and held the "acquisition proceeding" language includes the first phase.

When a property owner challenges a determination to take pursuant to § 204, she must do so within 30 days, and cannot wait until the vesting proceeding. See slip op. at 3. The court noted:

Thus, § 702 (B) provides for reimbursement to the condemnee who successfully challenges a "proposed acquisition" at the first step of the eminent domain process and obtains a judicial determination that the condemnor lacks the authority to pursue the proposed acquisition. Moreover, contrary to appellant's argument, we can discern no reason why the Legislature would have been disposed to allowing condemnees successful in EDPL article 4 proceedings to obtain reimbursement while simultaneously barring the same relief to condemnees successful in EDPL article 2 proceedings

Slip op. at 3. The court did not expressly say so, but what seems to be driving the decision is that a property owner cannot claim "that the condemnor was not legally authorized to acquire the property" during the vesting phase, so the court's holding is the only one that would give full meaning to the plain language of the statute. [NY lawyers, correct me if I am misreading this.]

The court left open the question of whether fees and costs incurred in preparing for and participating in the public hearing which is required before the decision to take property would qualify as part of the "acquisition proceeding."

More detail and analysis here.

Full post as published by inversecondemnation on November 23, 2009 (boomark / email).