A few years ago, I wrote a blog “Can One Government Condemn Another Government’s Property?” (November 12, 2018)
We wrote then: Generally, a body with the power of eminent domain cannot condemn the property of a higher sovereign. But the key inquiry seems to be, is the current use a public use, since there is a doctrine of prior public use which holds that a condemnor may not condemn property already being used for a public purpose if the proposed use “will either destroy the existing (public) use or interfere with it to such an extent as is tantamount to destruction.” Okanogan County PUD v State, 182 Wn2d 519, 538-539 (2015). But the prior public use doctrine does not apply when the prior use is compatible with the proposed use. To be considered a public use, the prospective public use must be concrete and non-speculative. In Cent. Puget Sound Reg Transit Auth. v WR-SRI 120th N. LLC, 191 Wn2d 223 (2018), the issue was, could the Sound Transit Authority condemn the City of Seattle’s electrical transmission line easements which ran through another city in order to extend a light rail system. The Supreme Court of Washington held that the issue depended on the compatibility of the two uses and remanded for further proceeding.
In New York, we see the defense asserted in different forms. One of my favorites is Westchester Creek Corp. v New York City Sch. Constr. Auth., 286 AD2d 154 (2d Dept 2001). Here a developer challenged the right of the Authority to condemn land it leased from the City of New York. The City had condemned the land for an urban renewal plan. Westchester Creek argued that the doctrine of prior public use barred the further condemnation of the land. The Court held that while the doctrine usually applies, it must bow when the proposed taking is for a public use which is special, unusual and peculiar. Here, the New York State Legislature recognized the “deplorable physical condition” of elementary and secondary schools in the City of New York. The Court found that this countervailing public interest to be served made the prior public use doctrine untenable as an argument. Proving once again that: Those that live by the sword, die by the sword.
In another New York case, Matter of Village of Ballston Spa v City of Saratoga Springs, 163 AD3d 1220 (3d Dept 2018), the Village objected to the City’s condemning portions of the Village’s property for use as a trial to improve pedestrian and bicycle travel on the basis that its water supply would be affected or at risk if the City condemned portions of two parcels owned by the Village. The Court held that the prior public use doctrine does not bar the City. While providing water is undoubtedly a public use, the Village did not establish that the Village’s property is devoted to that use. There was no showing that condemnation of the Village’s property would interfere with or destroy the public use.
We now find the issue squarely presented in National Railroad Passenger Corp. v. The City of New York, Case No. 1:19-CV-08597 (Filed 9/16/19). This is an action for declaratory and injunctive relief filed in the Southern District Court of New York.
The Complaint alleges that the City purports to deprive Amtrak of its rights and interests by commencing a condemnation proceeding. Amtrak alleges that by reason of the Supremacy Clause of Article VI of the United States Constitution and the Doctrine of Federal Preemption, the City may not deprive Amtrak of any of its rights and interests.
The Complaint further alleged that the City’s proposed condemnation, the Hudson Park and Boulevard Project, is a development project initiated by the City which is expected to consist of a roughly 4-acre system of tree-lined parks and open space which will run between 10th and 11th Avenues from West 33rd to West 39th Streets.
The City’s Determination declared in a single sentence that the City’s intended acquisitions would be “subject to Amtrak’s right to operate its Empire Line that runs below grade.” There was no further discussion or clarification of which of Amtrak’s rights and interests would or would not be potentially affected by the City’s proposed acquisition; and the Determination fails to specifically identify which of Amtrak’s property rights and interests, if any, the City may claim the legal right to condemn in its EDPL proceeding.
Among other things, the EDPL proceeding frustrates Amtrak’s ability to fulfill its statutory mission and goals under the Rail Passenger Service Act of 1970, 49 U.S.C.§§ 24101, et seq. (formerly 45 U.S.C. §§ 501 – 658). It serves as an obstacle to Amtrak’s statutory mission of “provid[ing] efficient and effective intercity passenger rail mobility consisting of high-quality service that is trip-time competitive with other intercity travel options” (49 U.S.C.§ 24101(b)) and its statutory goals of “us[ing] its best business judgment in acting to minimize United States Government subsidies,” (49 U.S.C.§ 24101(c)(1)) and “maximiz[ing] the use of its resources, including the most cost-effective use of employees, facilities, and real property,” (49 U.S.C.§ 24101(c)(12)).
The action is still pending and according to the N.Y.C. Corporation Counsel is delaying the condemnation Phase III of the Hudson Yards Project.