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Remember all that hoopla back in 2005 over the the United States Supreme Court's decision in Kelo v. City of New London?  (Well, it apparently didn't have much of an impact here in New York State.)

If you recall, Ms. Kelo and a group of private property owners objected to the City of New London's condemnation of their homes for the purpose of creating a "small urban village" that would increase tax revenue, lead to the creation of over 1000 jobs, and revitalize a "distressed" part of the municipality. The homeowners contended, among other things, that this taking of their properties was wrongful in that it was not consistent with the "public use" contemplated by the Constitution of the United States of America.*

Disfavoring "rigid formulas" and applying a broad standard, our nation's highest court concluded that local governments were free to use their condemnation powers to promote economic development. (They were also free to enact limitations or restrictions on such takings.)

Can this "taking" power be used by a New York State town to "enhance the use of a golf course and expand recreational opportunities."

Absolutely, according to a decision by the Appellate Division, Second Department, in Matter of Rocky Point Realty, LLC v. Town of Brookhaven.

While Rocky Point Realty argued that the Town's proposed plan did not serve a "legitimate public purpose," the appellate court was quick to disagree, and addressed the argument as follows:

The term "public use" is "broadly defined to encompass any use which contributes to the health, safety, general welfare, convenience or prosperity of the community" ... At bar, the Town's stated purpose for the proposed condemnation is to enhance the use of the golf course and expand recreational opportunities. Accordingly, the exercise of the eminent domain power here is "rationally related to a conceivable public purpose" ....

Guess we won't be seeing any of Rocky Point's principals on Brookhaven's greens.


For a copy of the United States Supreme Court's decision in Kelo v. City of New London, please use the following link:  http://www.nyrealestatelawblog.com/blog%20~%20kelo%20v%20new%20london.pdf

For a copy of the Appellate Division's decision in Matter of Rocky Point Realty, LLC v. Town of Brookhaven, please use the following link: http://www.nycourts.gov/reporter/3dseries/2007/2007_00315.htm


* Many believe that "public use" should be limited to such purposes as military installations, public buildings, public utilities and easements, railroads, and roadways.