The firm has extensive experience representing governmental agencies which acquire real property through exercise of the eminent domain power. We represent these clients on those aspects of major public projects which involve the eminent domain power, including acquisition of real property interests by negotiation in lieu of condemnation. We have represented clients in the acquisition of full fee interests in property, acquisition of temporary and permanent easements, acquisition of interests in volumes of space above and below grade, acquisition of negative easements, and acquisition of real estate fixtures in connection with such projects. 
We have represented most of the major public entities in the New York metropolitan region which exercise the eminent domain power. The firm has defended against challenges to acquisitions based on alleged lack of a proper public purpose and lack of blight; claims of unconstitutionality of the statutes under which projects were undertaken and of the enabling legislation creating public benefit corporations pursuing such projects; claims alleging excess takings; and claims alleging the unconstitutionality of various state laws affecting condemnation, including the N.Y. Eminent Domain Procedure Law. We have appeared in defense of such state and local governmental entities in trial and appellate courts at all levels in the State courts as well as in the federal courts in New York. We are known for our work on major projects involving multiple, valuable commercial properties.
We also work with public and private utilities and pipeline companies in obtaining right-of-way access to construct new electric and gas transmission lines. We have successfully obtained right-of-way access for companies formed under the New York Transportation Corporations Law and for interstate natural gas pipeline companies. In addition to commencing condemnation actions in state court, attorneys in the practice group also have successfully obtained easements in eminent domain proceedings in federal courts for projects licensed by the Federal Energy Regulatory Commission under the Natural Gas Act.
The work of our Condemnation Practice Group includes advice and representation in connection with project planning, public hearings, legal challenges before and after completion of public hearings, analysis and advice on unique legal structures designed to limit the effectiveness of the eminent domain power, and relocation of tenants and utilities and other facilities necessary to effectuate a project plan. We work closely with our clients in connection with valuation of property acquired by eminent domain, including efforts to avoid litigating valuation disputes and reach agreements where feasible. In addition to representing government agencies which have reached agreements to acquire in lieu of condemnation and have settled claims, we have acted as trial counsel in connection with valuation of real estate acquired by condemnation (both fee and fixture claims).
We are keenly aware of the close coordination required with our clients, and especially the close working relationship that must exist between staff attorneys for governmental agencies and outside counsel.  The Condemnation Practice Group often draws on the expertise of firm attorneys in other practice groups, including real estate, construction, environmental impact review, environmental due diligence, land use and zoning.  
Illustrative Matters
We represented a state agency in connection with various suits brought over a number of years to prevent the agency from proceeding with its Manhattanville − Columbia University Expansion Project in West Harlem. We represented the agency in various State Supreme Court proceedings to halt the project alleging failures to comply with the State Freedom of Information Law, with the Eminent Domain Procedure Law, and with the federal Due Process Clause.  Thereafter, we represented the agency in appeals from certain of those decisions, including an appeal to the State’s highest court. Finally, we represented the agency in an overall challenge to the project and to the legislation creating the agency and granting its powers. Ultimately, the case was resolved by the State’s highest court, the challenges to the project were defeated, and the agency was able to proceed with the project.
We successfully defended a state agency against a constitutional challenge in federal court that sought to block a major development project in the East Harlem section of Manhattan based on our client’s alleged failure to comply with the federal Due Process Clause and alleged failure to comply with state environmental laws (SEQRA). We also negotiated a net lease of the development site and helped coordinate financing for the project.
We represented a state agency in winning three significant lawsuits challenging development of the new headquarters site for The New York Times in the Times Square area. We later represented the same client as it relocated 70 commercial occupants from the site, obtaining possession of the entire site, and seeking Writs of Assistance where warranted. We also negotiated settlements of various fee and fixture claims in connection with those acquisitions beginning with an agreement with a property owner prior to any acquisition of title.
We represented a state agency in connection with a complex partial acquisition of a five-story commercial building, which had to be severed from 7 and 20-story buildings to which it was attached. In addition to acquisition of the building, we represented the agency in connection with construction agreements entered into to effectuate the severance of the three buildings. We also represented the agency in a trial to determine the value of the acquired property. After six days of trial, and an appeal, the property owner received an award less that 1% higher than the amount the agency had already paid the claimant at the outset, long before any trial.
Acting as Special Condemnation Counsel to the City of New York in connection with the Hudson Yards Rezoning and Development − No. 7 Subway Extension Project, we represented the City in planning for a public hearing on the Project, and we defended the City against six challenges to the Project based on various alleged constitutional violations. We also represented the City in connection with the outright dismissal of several claims based on acquisition of deep subsurface easements. We also negotiated settlements of various fee and fixture claims in connection with those acquisitions beginning with an agreement with a property owner in lieu of condemnation. We continue to represent the City in connection with property valuation proceedings with respect to this Project. We recently completed the first phase of a bifurcated trial to determinate the proper zoning to apply in the valuation of properties acquired in Stages 4 and 5 of the Project. We are currently representing the City in connection with its acquisition of permanent easements for the purpose of constructing a vent building and shaft in Stage 8 of the Project. 
We have handled various condemnations for a state agency related to the post-9/11 redevelopment of the World Trade Center site.
We represented in federal and in New York State courts a governmental agency which exercised its eminent domain power in connection with a major real estate development project in Manhattan, on 42nd Street, involving Bank of America and The Durst Organization.
We have represented state agencies in connection with fixture claim trials. One such trial resulted in an outright dismissal of the claim. In another trial, the fixture claim was substantially dismissed. The dismissal was affirmed on appeal in a leading decision on fixture law in New York.
We represented a public authority in trial level and appellate courts in connection with the termination of railroad easements in Queens. The project involved a conflict between New York’s Eminent Domain Procedure Law and the federal Surface Transportation Board.
We represent a public authority in connection with the acquisition of 53 grade-level easements and one fee interest to enable the repair and rehabilitation of the adjacent subway stations. The representation also involves the negotiation and settlement of easement and fixture claims.
We represented the Port Authority of New York and New Jersey in its planning for possible condemnation in connection with its Access to the Region’s Core (“ARC”) project. The project involved unusual issues relating to acquisition of partial interests in existing building to create subway entrances as well as imposition of negative easements to limit construction near the proposed tunnel which could adversely affect the tunnel structures.
We represented a state agency in connection with a plan to acquire property to expand the New York Stock Exchange. That project involved the adoption of special legislation authorizing the acquisition of property in furtherance of the project and authorizing the state and city to enter into appropriate agreements to effectuate the project. We represented the agency in connection with a legal challenge to the project, which challenge was defeated, and also in connection with agreements entered into in lieu of condemnation to further project purposes.
We represented a state agency in connection with a claim by a rent stabilized tenant alleging that his statutory right to occupy his apartment could not be terminated by eminent domain. The decision by the appellate court dismissing the claim is the leading case in New York establishing that rent stabilized tenants do not have property rights which survive acquisition of property by eminent domain. In connection with that project we represented the agency as it obtained possession of various premises through Writs of Assistance.
We successfully obtained easements on government-owned land to site and construct a new interstate natural gas pipeline in a federal condemnation proceeding under the Federal Rules of Civil Procedure 71.1.
Representative Clients
Empire State Development Corporation, New York State Urban Development Corporation, 42nd Street Development Project, Inc., Moynihan Station Development Corporation, City of New York, Hudson Yards Development Corporation, Metropolitan Transportation Authority, Lower Manhattan Development Corporation, Port Authority of New York and New Jersey, New York State Dormitory Authority, Texas Eastern Transmission, LP

Return to Michael H. Bauscher's Bio »

© Copyright 2021 Carter Ledyard & Milburn LLP