Realty Law Digest
Herrick litigation partner Scott E. Mollen recently featured Herrick's Eminent Domain co-chairs, Jennifer Polovetsky and Philip A. Sanchez, in his weekly column for the New York Law Journal. In this piece, Scott discussed ‘Matter of PSC v. City of Albany Indus. Dev. Agency,’ and ‘Zheng v. Choudhary,' both matters involving condemnation. Scott wrote that the decision in ‘Matter of PSC v. City of Albany Indus. Dev. Agency’ "involved a proceeding initiated pursuant to Eminent Domain Procedure Law (EDPL) 207, to review a determination by a city Industrial Development Agency (IDA) to condemn 11 parcels of the petitioner’s property for a 'mixed-use redevelopment project (project).'"
Philip and Jennifer stated that this case "shows the great difficulty a petitioner faces in trying to challenge an eminent domain proceeding. The petitioner has to prove that the taking was unconstitutional and the taking does not serve a public use or public benefit. These are high thresholds to meet and the court in this case said the project was constitutional and served a valid public purpose regardless of the fact that later on the properties will be transferred to a private entity. The transfer to a private entity does not negate the public purpose and benefit of taking the ‘blighted’ properties. The petitioner also tried to argue prior public use since the properties were already being used as a parking lot, however, this argument does not stand since the petitioner did not have the power of eminent domain. This case is another example of how NYS has adopted the broad definition of public use from Kelo v. City of New London, 545 U.S. 469 (2005)."