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Public Use
by M. Robert Goldstein and Michael J. Goldstein
It has been suggested that the authority for the exercise
of the power of eminent domain is the Fifth Amendment to the
United States Constitution which states in pertinent part,
"... nor shall private property be taken for public use
without just compensation," and Article 1, Section 7
of the New York State Constitution which is worded similarly.
In fact, our Federal and State Constitutions do not confer
authority to condemn but rather, impose limitations. It was
the practice in most European countries if the sovereign wished
to acquire property for whatever purpose he took it without
paying compensation to the former owner. Eminent domain was
an inherent right of government and our constitution did not
change that. It simply placed limits on that right.
Limits
What those limits
are, were not initially a concern of our forefathers. They
did not debate the subject at the Constitutional Convention
and did not even include it in the body of the original document
but added it later at the end of the Fifth Amendment.
When it was added, the evils sought to be corrected were
not takings for private uses but the lack of compensation
and so, it is believed by some, that the operative phrase
was "without just compensation" and not "for
public use." Indeed, property was often taken to assist
in the operation of private enterprise.
The fact of the matter is, that the function of government
was so much more limited in the early part of our history
that not much land was required for "public use"
and nobody seemed to care much since it didn't come up too
often.
Government Services
With the rapid expansion of our country and the increased
urbanization in the nineteenth century, the state and Federal
Governments, whether by accident or design, started to offer
increased services and took to themselves (or delegated to
others) the means by which to offer these services. The question
then came up more often, as to whether those services were
indeed proper services to be offered publicly.
"Public use," having become an issue, its definition
had yet to be determined, and that has been the subject of
extensive litigation for the that one hundred years, how that
has been determined in that one hundred years, however, is
that there is no precise definition that covers all situations.
The definition changed as the role of government changed from
locality to locality. An examination of the cases reveals
this.
Public Use
No one has
seriously questioned that the acquisition of private property
to build a road over which the public must travel is a public
use. Nor had anyone suggested (until recently) that to take
one man's private property for the purpose of turning it over
for another man's business was such a use. Acquisition of
property for schools, since education has become a government
function, is clearly a public purpose.
But how about the appropriation of land for the purpose of
building a railroad so that a privately-owned corporation
can carry passengers and freight and make a profit. This was
declared a public use in Matter of Niagara Falls &
Whirlpool Railway Co. (108 N.Y. 375, 1888) and justified
on the ground that "railroads are highways furnishing
means of communication between different points, promoting
traffic and commerce, facilitating exchanges, in a word, they
are improved ways... The duty of providing public ways is
... a public duty."
The fact that the public use was carried out by a private
corporation to its own profit was not considered by the court
to change the nature of the public use. The court in that
case, offered its definition of a public use: "... when
the government is supplying its own needs or is furnishing
facilities for its citizens in regard to these matters of
public necessity, which on account of their peculiar character
and the difficulty, perhaps impossibility of making provision
for them otherwise, it is alike proper, useful and needful
for the public to provide."
How Much Benefit
Of course, the question had to come up as to how much of the
public must be benefited for an appropriation to be for a
public use. In Pocantico Water Works Co v. Bird (130
N.Y. 249) the power to condemn was delegated to a private
water company in order that they might build a dam and create
reservoirs and provide water to certain specified towns. The
court there said: "It is doubtless true that in order
to make the use public, a duty must develop upon the persons
or corporation holding the property to furnish the public
with the intended. The term implies 'the use of many' or 'by
the public' but it may be limited to the inhabitants of a
small restricted locality, but the use must be in common and
not for a particular individual."
The courts in the cases already cited and, indeed, most cases,
have stated what has universally been accepted as true. While
the necessity of a taking is to be determined solely by the
Legislature, the decision as to whether such a taking is for
a public use is a judicial one. Some courts however, have
employed what appears, at least to us, to be a cop-out. They
have used declarations by the Legislature that the intended
acquisitions are for a public use or benefit as "persuasive"
evidence of that fact. They have gone so far as to say that
although such declarations are not conclusive, in themselves
they are sufficient upon which to base a determination.
In Murray v. LaGuardia (291 N.Y. 320) the court simply
said it would give the declaration weight. However, this was
carried to an extreme in Long Sault Development Co. V.
Kennedy, (158 App. Div. 398, 143 N.Y.S. 454, aff'd 212
N.Y. 1). In that case, a corporation was formed and franchises
were given to that corporation for the purposes of developing
power sources on the St. Lawrence River.
Implicit Declaration
The
corporation was to make annual payments to the State. After
several years and several payments, the Legislature passed
certain bills which were signed by the governor dissolving
the corporation and withdrawing the franchises, at the same
time returning the payments already made. Nothing was expressed
indicating an intention on the part of the State to develop
the power on its own. Yet the court held that the withdrawal
of the franchises amounted to a condemnation and that if the
legislation had stated that the purpose was a public one,
it would have been sufficient to establish that fact.
Based on some obscure statements of policy by the governor
and the fact that some public power legislation was pending
in the Legislature, the court held that they had implicitly
declared that they were condemning the franchises in order
to run a publicly held power company which the court then
determined to be a public purpose and therefore held it to
be such. The Court of Appeals, in affirming the decision (212
N.Y. 1) ignored this reasoning.
Until 1936, "public use" appeared to be considered
by all in its most literal sense; i.e., a use by the
public. Highways, and by extension, railroads, were available
to be used by the public directly and hence they were a public
use. In 1936, the New York City Housing Authority proposed
to acquire land in a certain area of the city to build a low
income housing project and stated, in their petition as their
purpose "the clearance, replanning, and reconstruction
of part of an area of the City of New York, State of New York,
wherein there exist,... unsanitary and substandard housing
conditions." They had picked an area in which they had
found "substandard housing due to over-crowing and concentration
of population, improper planning, excessive land coverage,
lack of proper light, air and space, unsanitary design and
arrangement, or lack of proper sanitary facilities".
In short, they proposed what was then called "slum clearance"
and is now called, "urban renewal".
A First in State
That the power of eminent domain was being used, for the first
time, in this state, at least, as a sociological tool, seemed
to at least one condemnee, to be unconstitutional. Up to now,
when the public took, the public used. The public could find
nothing to use in the clearing of a blighted area. Therefore,
it could not be a public use. In the resulting litigation,
(Matter of New York City Housing Authority v. Muller,
270 N.Y. 333) the Court of Appeals said, "use of a proposed
structure, facility or service by everybody and anybody is
one of the abandoned universal tests of a public use."
As had many courts before it, this court tried to deal with
a definition of a public use, but more practically, and in
a manner that was to light the way for years to come and,
in fact, up to the present time. The court said, "over
many years and in a multitude of cases, the Courts have vainly
attempted to define comprehensively the concept of a public
use and to formulate a universal test. They have found here,
as elsewhere that to formulate anything ultimate, even though
it were possible, would, in an inevitably changing world,
be unwise if not futile. Lacking a controlling precedent,
we deal with the question as it presents itself on the facts
at the present point of time. The law of each age is ultimately
what that age thinks should be the law".
Matter of State Concern
The court now opened its own door to decide what
is a public use based on the values or needs of the age in
which the decision is to be made. Finding that because slums
breed disease which spreads to other citizens of the state
and that it nourishes and protects juvenile delinquency, crime
and immorality and that it causes an enormous economic loss
to the state, it is matter of state concern. Therefore, the
elimination of these conditions "is a public purpose."
It is important to note here that it was not the low income
housing project which was to be built that made this a public
"use". It was the elimination of a slum area and
the evils associated with it that made it a public "purpose".
The difference represents not a change in degree, but in concept.
The public need no longer use the land acquired but, instead,
need only benefit. Where we can go from there, and, in fact,
have gone from there, is almost without limit.
Legislative Decision
The right to condemn to rehabilitate substandard
and unsanitary areas having now been established, the decision
as to what meets those criteria rested with the legislature.
One condemnee challenged such a decision (Kasket v. Impelliteri)
306 N.Y. 73), because his building, obviously not substandard
or unsanitary, was included in a "slum clearance project."
The Court of Appeals answered by stating that "for an
area to be subject to those laws, [not] every single building
therein must be below civilized standards... the test is as
to the area as a unit and not as to any one or more particular
structures."
But this case went beyond that for the condemnee contended
that the stated, i.e., "slum clearance", was a sham.
It was argued that this property, located on Columbus Circle,
was not in a slum area and the purpose was not to clear a
slum but to build the Coliseum. The court, noting that no
corruption or fraud was charged, and that the purpose was
not illegal, declared that they will not look behind the statement
of purpose by the legislative body. "One can conceive
of a hypothetical case where the physical conditions of an
area might be such that it would be irrational and baseless
to call it substandard or unsanitary, in which case, probably
the conditions for the exercise of the power could not be
present. However, the situation here actually displayed is
one of those as to which the Legislature has authorized the
City officials, including elected officials, to made a determination,
and so the making thereof is simply an act of government,
that is an exercise of governmental power, legislative in
fundamental character, which, whether wise or unwise, cannot
be overhauled by the courts. If there were to be a trial here
and the courts below should decide in favor of plaintiff,
there would be effected a transfer of power from the appropriate
public officials to the courts. The questions is simply not
a justifiable one".
Question of Purpose
The dissent raised the issue as to whether the
real purpose was to raze the substandard buildings at the
Ninth Avenue end of the block, and incidentally, include the
building at the Eight Avenue end on which the Coliseum was
to be built, or was the real purpose the building of the Coliseum
with the acquisition of the rest of the block for the purpose
of making it appear to be a slum clearance. If the former
were true, the private use would be permissible as an incident
to the primary public use. However, it would not be a permissible
taking for a public use should that public use be what is
incidental.
Incidental use was the theme in tow cases, both of which
involved the Port of New York Authority, (Bush Terminal
Co. v. City of New York 282 N.Y. 317 (1940) and Courtesy
Sandwich Shop, Inc. v. Port of New York Authority 12 N.Y.
2d 379) (1963). In the Bush Terminal case, the public use
was the building of the Union Inland Terminal Freight Station
in order to centralize freight handling in the waterfront
area of Brooklyn and facilitate the delivery of freight in
less than carload lots. But the Port Authority put on top
of that terminal, a sixteen-story building suitable for manufacturing,
office and other industrial uses, and was rented to the public
at large for the sole purpose of raising revenue. The court
held that as the primary purpose of acquiring the land needed
was for the terminal and as such purpose was not economically
feasible by itself, the building of the additional stories
to raise revenue to support the primary purpose was incidental,
to the primary purpose and therefore permissible.
Twenty-three years later, the same rationale was used by
the Court of Appeals in allowing the Port Authority to erect
a huge office building complex, i.e. The World Trade Center
(Courtesy Sandwich Shop, Inc. V. Port of New York Authority,
supra). The primary public purpose was providing an area
where businesses concerned with international trade could
locate themselves which would ultimately promote international
trade for the New York area. That revenue would be raised
by leasing to concerns that only peripherally were involved
in such trade (or perhaps not at all) became an incidental
purpose, and again, permissible.
Whether the public use or the private use was incidental
is what was examined in Denihan Enterprises, Inc. v. O'Dwyer
302 N.Y. 451. In that case, New York City proposed to take
property and turn it over to a private operator by setting
such terms at the auction that only that operator could find
it practical to bid. The purpose was the building of a garage.
It appeared, however, that this operator was going to build
308 spaces, all but seventeen of which were to be leased to
tenants of a building owned by the purchaser.
This, apparently, was too much for the majority of the Court
to swallow. It said, "It is well settled that whether
or not a proposed condemnation is for a public purpose is
a judicial question, but legislative findings in this respect
are entitled to great weight. Judicial examination is less
critical, however, where the State itself is to be vested
with the property". (This restated a proposition originally
postulated in Long Sault Development Co v. Kennedy, supra
and repeated in several cases since) "... Nor do we question
the legality of the concept that private property may be condemned
for parking motor vehicles when the public is primarily served
in the taking of such vehicles from our streets to relieve
traffic congestion... the public use here may be only incidental
and in large measure subordinate to the private benefit to
be conferred on the Company... Of course an incidental private
benefit, such as a reasonable proportion of commercial space,
is not enough to invalidate a project which has for its primary
object a public purpose... but the use is not public where
the public benefit is only incidental to the private."
The dissent felt that the facts did not change the legality
of the taking but only the feasibility, wisdom and fairness
of the project which are matters, not for the courts but the
legislature.
An incidental private use had to be in the collective minds
of the Appellate Division, Second Department, when it refused
an order of restraint in Walkins v. Ughetta 273 App.
Div. 969 78 N.Y.S. 2d 393, aff'd 297 N.Y. 1002. In that case,
the City had acquired the homes from condemnees for the building
of the Van Wyck Expressway, and now sought to acquire additional
land so that these homes could be relocated. They declared
this to be a public use on the authority of Brown v. United
States 263 U.S. 78. That case had decided that when an
entire town was to be flooded by the building of a dam, the
acquiring of private property to be turned over to people
on which to place their homes was so closely connected with
the original public use that it became, in effect, a part
of it. It was incidental to it and, so, took on the original
public use.
From this form of substitute condemnation it is easy to jump
to the form specifically provided for in Sec. 10, Subd. 24-d
of the Highway Law. The State of New York, in building limited
access highways, often acquired parts of parcels, cutting
off access to the remainders and thereby causing a total consequential
damage. If provided, therefore, in the cited section, for
the further acquisition of land and the conveying of the land
to the owner, by written agreement, for the purpose of providing
access to the landlocked property.
The constitutionality of this law was challenged in K
& C Realty, Inc. v. State 329 N.Y.S. 2d 252, 69 Misc.
2d 99, aff'd 32 N.Y. 2d 664 and citing Matter of Watkins
v. Ughetta, supra, the Court gave a new name to this concept
when it stated, "the Courts have consistently recognized
the validity of appropriations for quasi-private use."
(Emphasis ours) It must be noted, however, that this case
does not stand for the proposition, contended for so often
by condemnors, that provides for compelling an unwilling property
owner to accept substitute access in order to reduce damages
(Tobin Packing Co. V. People 42 AD 2d 82, 345 N.Y.S.
2d 717).
Perhaps, without stating it, it was a "quasi-private"
use, New York City had in mind earlier, when it proposed to
take a large tract of land in the Canarsie Section of Brooklyn
and turn it over to private industries. Their concept was
an "industrial park". The area was largely vacant
with scattered homes and title so fragmented as to make assemblage
by private concerns impossible and development of individual
holdings impractical.
Encouraged, apparently, by their success in acquiring land
in slum areas, Sec. 72-N of Article 15 of General Municipal
Law authorized the taking of predominantly vacant areas which
are economically dead so that they impair the community's
growth and tend to develop slums.
The constitutionality of this taking was challenged in Cannata
v. City of New York 11 N.Y. 2d 210, App. Diam. 371 U.S.
4. Apparently bearing in mind the rationale use in Matter
of New York City Housing Authority v. Muller, supra, (i.e.,
that clearing a slum area was the overriding public purpose)
sixty-eight home owners, asserting that this was not a slum,
sought to stop the City. The Court specifically held that
an area need not be a slum and that turning an area such as
this into sites for needed industries is a public use.
And so, how far have we come? We think the opinion in Schneider
v. District of Columbia, D.C. 117 F. Supp. 705, without
intending to, sums it up well:
The terms 'public use' and 'public purpose' have never been
defined with precision and cannot be. Localities, customs
and times change, and with them the needs of the public may
change ... The Courts which go the furthest in sustaining
the power of eminent domain hold that 'anything which tends
to enlarge the resources, increase the industrial energies
and promote the productive power of any considerable number
of the inhabitants of a section of the state, or which leads
to the growth of towns and the creation of new resources for
the employment of capital and labor' constitutes a public
use. We think so unqualified a definition cannot be sustained
because every factory or mercantile house of any size meets
that definition to some degree and most certainly the Government
has not an unrestricted power to seize one man's property
and sell it to another for the building of a factory or a
store". That the Court was apparently wrong in saying
what government cannot do is pointed up by the fact that this
language was cited by the dissent in Cannata v.
City of New York; supra. Indeed, the City of New York
has acquired property for the specific purpose of enabling
a neighboring industrial occupant to expand its business so
that jobs would not be lost in the area.
And how far have we not gone? It is our belief that, today,
the only limitation on government is that they may not take
more than they can use whether that applies to the amount
of land to be taken (Matter of City of Syracuse v. Eastman
230 App. Div. 522, 245 N.Y.S. 25) or to the taking of a fee
when all that is needed is an easement (Hallock v. State
32 N.Y. 2d 599). We express no opinion as to how long that
limitation will last.
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