public use doctrine in New York

2024Under the prior public use doctrine, generally speaking, "property already devoted to public use can only be condemned by special legislative authority clearly expressed or necessarily implied" ( Buffalo Sewer Auth. v Town of Cheektowaga , 20 NY2d 47, 53 [1967]).

2019Under the doctrine of prior public use, land already devoted to a public use may not be condemned absent legislative authority for the particular acquisition at issue ( see Buffalo Sewer Auth. v Town of Cheektowaga , 20 NY2d 47, 53 ; New York Cent. & Hudson Riv.

2015Accordingly, the prior public use doctrine is inapplicable, and does not prohibit the Town from installing the barrier (see Vehicle and Traffic Law § 1660 [a] [25]; Matter of Town of Riga v County of Monroe, 166 AD2d 39, 41 [1991]; cf. Matter of E & J Holding Corp. v Noto, 126 AD2d at 642 ).

2002The prior public use doctrine does not apply “ ‘where the new use would not materially interfere with the initial use’ ” (Matter of Town of Riga v County of Monroe, 166 AD2d 39, 41 , lv dismissed 78 NY2d 951 , lv denied 78 NY2d 862 , quoting Matter of Village of Middleburg, 120 AD2d 830, 831 ).

2020Aside from the fact that the majority’s reading undermines the purpose of the EDPL by allowing for involuntary transfer of title without complete vetting of the issues that underlie the public use analysis, the majority ignores the plain language of section 206, and in so doing violates canons of construction that we must give meaning to all the words chosen by the legislature and interpret a statute to achieve its legislative goals (see Golden v Koch, 49 NY2d 690, 694 [1980] [stating that under “traditionally accepted standards of statutory construction,” courts must “read [a statute] as a wh

2019Respondents argue that the order and judgment should be affirmed, notwithstanding the court's erroneous rationale ( see Parochial Bus Sys. v Board of Educ. of City of N.Y. , 60 NY2d 539, 545-546 [1983]; Menorah Nursing Home v Zukov , 153 AD2d 13, 19-20 [2d Dept 1989]), because petitioner failed to establish that the conveyances of the Town Easements contained either an express or implied dedication of the easement property for public or park use, and thus the court properly determined that the public use doctrine did not apply.

2019Footnote 3: Although, in light of this determination, we need not address the merits, to the extent that Supreme Court based its decision upon use of the right-of-way by the public, it incorrectly applied the public use doctrine, which would not bar the claim at this juncture ( see Cole v Rothe , 18 AD3d 1058, 1059-1060 [2005]).

2019Respondents argue that the order and judgment should be affirmed, notwithstanding the court's erroneous rationale ( see Parochial Bus Sys. v Board of Educ. of City of N.Y. , 60 NY2d 539, 545-546 [1983]; Menorah Nursing Home v Zukov , 153 AD2d 13, 19-20 [2d Dept 1989]), because petitioner failed to establish that the conveyances of the Town Easements contained either an express or implied dedication of the easement property for public or park use, and thus the court properly determined that the public use doctrine did not apply.

2015The prior public use doctrine limits “the general grant of the *959 power of eminent domain extended in Town Law § 64 (2)” by prohibiting towns from “acquir[ing] rights in property already devoted to another public use where the acquisition will interfere with or destroy the prior public use” (Matter of E & J Holding Corp. v Noto, 126 AD2d 641, 642 [1987]; see New York Cent. & Hudson Riv.

2015Accordingly, the prior public use doctrine is inapplicable, and does not prohibit the Town from installing the barrier (see Vehicle and Traffic Law § 1660 [a] [25]; Matter of Town of Riga v County of Monroe, 166 AD2d 39, 41 [1991]; cf. Matter of E & J Holding Corp. v Noto, 126 AD2d at 642 ).

2012When a municipality seeks to acquire property to serve as a buffer or otherwise protect an existing source of water, it is required to obtain a permit from DEC (see Matter of County of Fulton, 136 AD2d 115, 117 [1988]; Weinberg, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17V2, ECL 15-1501, at 257; see also Matter of City of Schenectady v Flacke, 100 AD2d 349, 353-355 [1984], lv denied 63 NY2d 603 [1984]).

2012Supreme Court, however, determined that Fenton could not successfully invoke the prior public use doctrine because it failed to obtain a permit from DEC pursuant to ECL article 15 prior to acquiring the property. “[T]he legislative purpose of ECL article 15 is to give the State exclusive control of water sources” (Williams v City of Schenectady, 115 AD2d 204, 205 [1985]).

2012When a municipality seeks to acquire property to serve as a buffer or otherwise protect an existing source of water, it is required to obtain a permit from DEC (see Matter of County of Fulton, 136 AD2d 115, 117 [1988]; Weinberg, Practice Commentaries, McKinney’s Cons Laws of NY, Book 17V2, ECL 15-1501, at 257; see also Matter of City of Schenectady v Flacke, 100 AD2d 349, 353-355 [1984], lv denied 63 NY2d 603 [1984]).

2004The City conditioned approval upon the property owner/developer's payment of a recreational fee and a fee in lieu of participating in the City's "Art in Public Places Program." Upon remand, the California Supreme Court specifically "reject[ed] the city's contention that the heightened takings clause standard formulated by the court in Nollan and Dolan applies only to cases in which the local land use authority requires the developer to dedicate real property to public use as a condition of permit approval" (12 Cal 4th 854, 859, 911 P2d 429, 433 [1996], cert denied 519 US 929 [1996]). [5] As th

1992The public use requirement has been construed to necessitate a showing that the road was open to use by the public and kept in repair or taken in charge and adopted by the public authorities (Johnson v City of Niagara Falls, 230 NY 77, 82-83 ; see, Provencher v Town of Saranac, 168 AD2d 770 ; Stuart v Town of Wells, 161 AD2d 1073 ; Matter of Jemzura v Mussision, 161 AD2d 851 , lv denied 76 NY2d 714 ).