Academic journal article Albany Law Review

Public Use & Public Benefit: The Battle for Upstate New York

Academic journal article Albany Law Review

Public Use & Public Benefit: The Battle for Upstate New York

Article excerpt

I. INTRODUCTION

On May 31, 2006, New York Regional Interconnect Inc. (NYRI) sought regulatory approval from New York State by submitting an Article VII application (1) to the New York State Public Service Commission to construct a high-voltage transmission line. (2) The proposed transmission line will begin in the Town of Marcy, New York, and travel approximately 190 miles south through New York State, covering seven counties and thirty towns, ultimately ending in the Town of New Windsor, New York. (3) The proposed purpose of the project is to increase the flow of efficient energy to New York City. (4) NYRI has proposed to build approximately ninety percent of the transmission line "within or parallel to existing railroad and energy right of ways." (5) NYRI plans on using eminent domain to take property it has been unable to purchase. (6) The Eminent Domain Procedure Law in New York State requires the existence of a valid "public use, benefit or purpose to be served by the proposed public project." (7)

Courts on both the federal and state level have discussed, interpreted, and stated various theories on what constitutes a valid public use as required by their respective constitutions. (8) For example, the highly controversial United States Supreme Court decision, Kelo v. City of New London, (9) is criticized as one of the broadest interpretations of the public use doctrine. This case held that condemnation of private property for a comprehensive redevelopment plan by a private corporation was a permissible public use. (10)

This Comment takes the position that the concept of public use has grown too broad and requires a limitation based on the inherent nature of the public use doctrine. (11) When tracing the roots of the doctrine, whether as applied, written, or interpreted, eminent domain has always been used for the public benefit. (12) The requirement of a valid public use as contained in the language of the Fifth Amendment, (13) and as ratified by the constitutions of states such as New York, (14) leaves room for interpretation by the courts. However, by examining the intrinsic nature of public use and its traditional application, the definition of public use can be seen as the equivalent of public benefit. (15) For example, in cases distinguishing between projects benefiting both the private and the public, the courts have stated that the project must primarily benefit the public for the public use requirement to be satisfied. (16)

Furthermore, when examining the NYRI project, the detriment to upstate New York is so dramatic that the project negates any proposed benefits, and, thus, the public use requirement of New York State's Eminent Domain Procedure Law is not satisfied.

II. HISTORY OF THE "PUBLIC USE" DOCTRINE

A. Origination of Eminent Domain

By examining the history, development, and application of eminent domain, it is clear that the intrinsic nature associated with this doctrine is limited to projects that benefit the public. The concept behind a governmental entity taking property from a private individual for the benefit of the public has existed for centuries; however, Hugo Grotius, a sixteenth century author, is credited for inventing the phrase "eminent domain," and in coining this phrase, he incorporated the requirement that the condemnation of land be for the "public welfare." (17)

Furthermore, before the United States Constitution codified the power of eminent domain, the practice of taking land for purposes that benefited the public existed as early as 1607 in the historical case of The King's Prerogative in Saltpetre. (18) is In 1607, King James exercised his right to take saltpeter off of the land of a private individual. (19) This taking was justified because it "extend[ed] to the defence of the whole realm, in which every subject hath benefit." (20) In discussing the limitations of the King's power to take property, the court noted that the King would be prohibited from taking from an individual's property for the purpose of making a wall or bridge that came to the King's residence, because that does not "extend to [the] public benefit. …

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