Island Park, LLC, Appellant,v.State of New York, Respondent.

Brief

N.Y.May 30, 2013

State of New York Court of Appeals ISLAND PARK, L L C , Appellant, -against- STATE OF NEW Y O R K , Respondent. BRIEF OF AMICUS CURIAE NEW YORK FARM BUREAU Dated: October 10, 2012 CYNTHIA FEATHERS, Esq. Of counsel to New York Farm Bureau Amicus Curiae P.O. Box 2021 Glens Falls, N Y 12801 (518) 223-0750 Elizabeth Dribusch, Esq. General Counsel New York Farm Bureau P.O. Box 5330 Albany, N Y 12205 i TABLE OF CONTENTS NYFB's interest and expertise 1 Brief background 2 Police power and public crossings 3 Farm crossings are vital 4 Police power and private crossings 5 Sharing the cost 6 Penn Central analysis prevails 6 Character of government action is key 8 Unsafe use of public roads 10 Public outreach campaign 11 Safe use of farm crossings 12 State Constitution's protections 13 Conclusion 15 ii TABLE OF AUTHORITIES Cases Albano v. Kirby, Matter of, 36 NY2d 526, 533 (1975) 12 Andrus v. Allard, 44 US 51 (1979) 7 Friedenburg v. State of New York, Matter of, 3 AD3d 86 (2 n d Dept 2003)7,8 Gazza v. New York State Dept. of Envtl. Conservation, Matter of, 89 NY2d 603 (1997) 7 Island Park, L L C v. New York State Dept. of Transp., Matter of, 61 AD3d 1023 (3 r d Dept 2009) 3 Island Park, L L C v. State of NY, 93 AD3d 1064, Iv granted 19 NY3d 807 (2012) 3 Jones v. Seligman, 81 N Y 190 (1880) 4 Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 61 AD3d 13 (2 n d Dept). 12 Manocherian v. Lenox Hill Hosp., 84 NY2d 385 (1994), cert den 514 US 1109 (1995) 9,13 Miller v. State of N Y , 277 AD2d 770 (3 r d Dept 2000) 4 NY, O&W Ry. Co., 244 App Div 664 (4 th Dept 1935), affd 271 N Y 567 (1936) 4 Noghrey v. Town of Brookhaven, 48 AD3d 529 (2 n d Dept 2008), app dmsd 15 NY3d 815 (2010) 8 Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue- Medford Union Free School Dist, Matter of, 70 NY2d 57 (1987).. .14 Perm Central Transp. Co. v. New York City, 438 US 104 (1978) 7,8,9 People v. P.J. Video, 68 NY2d 296 (1986), cert den 479 US 1091 (1987) .14 People v. Viiardi, 76 NY2d 67 (1990) 14 Putnam County National Bank v. City of NY, 37 AD3d 575 (2 n d Dept 2007), lv den 8 NY3d 815 (2007) 9 Seawall Assoc. v. City of NY, 74 NY2d 92, 115 n 15 (1989) 14 Sommers v. Sommers, 203 AD2d 975 (4 , h Dept 1994) 12 Walker v. State of N Y , 33 NY2d 450 (1974) 4 Statutes CPLR 4511 (b) 12 Highway Law §30 6 Railroad Law, §§ 52, 97 passim Railroad Law §§91, 95 4 Vehicle & Traffic Law §§ 100-d, 375, 376 11 iii TABLE OF AUTHORITIES Miscellaneous "Agricultural Equipment on Public Roads, USDA-CREES, Feb 2009 11 Fisch, New York Evidence, §§ 1051, 1060 (2 n d ed) 12 JohnD. Echeverria, "Making Sense ofPenn Central" 23 JOURNAL O F E N V I R O N M E N T A L L A W 171,190 (Oct 2006) 9 L 1994, c 515, §2 , Bi l l Jacket 6 L 2008, c 350, §§ 1-3, Bi l l Jacket 11 N Y Const, Art. I, § 7 7 Michael Lewyn, "Character Counts: The Character of the Government Action in Regulatory Takings Actions," 40 SETON H A L L L R E V 597...7 NYS DOT Rail Safety Bureau, 2004 Annual Report, at 26-39 13 NYS DOT 2010 Annual Evaluation Report Highway Safety Improvement Program Railway-Highway Crossing Report, at 2 13 NYS DOT 2011 Annual Evaluation Report Highway Safety Improvement Program Railway-Highway Crossing Report, at 2 13 Richardson, Evidence, § 52 (Prince, 10th ed) 12 17 N Y C R R 919.4, 919.6 6nl U.S. Const, 5 t h and 14l!l Amendments 7 www.safenv.gov/press/pr-Q40809.htm 11,12 STATE OF NEW Y O R K COURT OF APPEALS ISLAND PARK, L L C , Appellant, -against- STATE OF NEW YORK, Respondent. NYFB's interest and expertise New York Farm Bureau ("NYFB") is a not-for-profit, voluntary, general farm organization with an interest and expertise in the role of farm crossings in farm operations and the impact on farm operations and public safety of the state's closures of such crossings. With almost 25,000 member families, N Y F B is the voice of agriculture in New York. The state's largest general farm advocacy organization, N Y F B is dedicated to serving and strengthening agriculture in the state, meeting the needs of New Yorkers who make their livelihood in rural regions, and addressing economic and public policy issues facing farmers. This appeal presents a matter of vital importance to N Y B F and its constituents: whether farmers are entitled to just compensation when the state closes farm crossings and thereby severely impacts farm operations and safety, and whether such action must be considered in the context of other statutes that require farm crossings to be provided as reasonably necessary and that recognize the dangers of transporting farm equipment on public roads. The Railroad Law authorizes the Commissioner of the Department of Transportation ("Commissioner" and "DOT") to close private crossings. One type of private crossing is a farm crossing to provide access between tracts of farmland on both sides of the tracks. See Railroad Law § 52. The closures of such private crossings can constitute de facto takings that mandate just compensation to affected property owners. Farmers can be seriously harmed when farm crossings are closed, their land is split from a single unit into two segments, and they are forced to use public roads to move farm equipment to gain access to part of their properties. Such actions can cause significant economic harm, while jeopardizing the safety of farmers, as well as motorists, and while undermining a longstanding statutory command that farm crossings must be erected and maintained as reasonably necessary for farm operations. Brief background Claimant's East Greenbush farm is intersected by railroad tracks. For decades, claimant's easement allowed use of a private crossing over the tracks to safely and conveniently move large farm equipment from one area of the farm to 2 another. Pursuant to Railroad Law § 97, in 2005, the Commissioner commenced proceedings to close the farm crossing due to safety concerns. After an order directing closure was issued, claimant commenced an Article 78 proceeding, and the Third Department affirmed. Matter of Island Park, LLC v. New York State Dept. of Tramp., 61 AD3d 1023 (3 r d Dept 2009). In January 2010, in the Court of Claims, claimant alleged that the closure constituted a compensable de facto taking, but the claim was dismissed. On March 22, 2012, the Third Department affirmed, finding that the state regulated the property in a reasonable manner to advance public safety and did not destroy the economic value of claimant's farm or impose an onerous burden in requiring petitioner to travel many miles over public roads to access fields. The court further found that the closure was consistent with the historical state regulation of railroad crossings as an exercise of police power. Island Park, LLP v. State of NY, 93 AD3d 1064. This Court granted permission to appeal on June 27, 2012 (19 NY3d 807). The amicus curiae seeks to draw attention to several problematical aspects of the challenged decision and its potential broad impact. Police power and public crossings The Third Department said the instant closure was consistent with the historic use of state power to regulate railroad crossings. In fact, the subject crossing was among the first to be closed pursuant to a 1994 law that gave the 3 Commissioner authority over private crossings. The Third Department's reference to Miller v. State of NY, 277 AD2d 770 (3 r d Dept 2000), was inapt. That case dealt with the state's longstanding power to regulate public crossings under Railroad §§ 91 and 95. The challenged decision also referred to Matter of NY, O&WRy. Co., 244 App Div 664 (4 t h Dept 1935), affd 271 N Y 567 (1936), but that case is also irrelevant, as it dealt with the power of the Public Service Corporation over public crossings under a previous law, the Grade Crossing Elimination Act. Farm crossings are vital In terms of historic laws, the relevant law is §52 of Railroad Law. Since the mid-1850's, that law and antecedent statutes have required railroad corporations to build and maintain farm crossings "whenever and wherever reasonably necessary for the use" of the land adjacent to the tracks. This Court has noted that when the farm crossings statutes were originally enacted, the state's economy was largely agricultural, railroads crisscrossed the county, and farm crossings were often necessary to allow for farming land divided by tracks. See e.g. Walker v. State of NY, 33 NY2d 450 (1974); Jones v. Seligman, 81 N Y 190 (1880). It would be a mistake to think that such a scenario belongs to a bygone era. Indeed, agriculture is still vital to the state's economy, and there are still thousands of private crossings in the state. Farming takes place in almost every region of the state. More than 7 million acres, or nearly one-quarter of the state's total land area, 4 is used as farmland. Farmers impacted by the existence or closure of farm crossings are not mega-corporations; 99 percent of New York's 35,000 farms are family-owned. Yet the aggregate contribution of farming to the state is enormous: the agricultural industry in New York generates several billion dollars a year and employs tens of thousands of workers. Police power and private crossings The Third Department failed to confront the fact that the law empowering the Commissioner to close private crossings is at odds with the law requiring railroad companies to provide crossings as reasonably necessary to farmers. In 1994—after 144 years of existence of Railroad Law § 52—the legislature enacted Railroad Law § 97. That law, for the first time extended the authority to the Commissioner of Transportation to regulate private crossings located in intercity (Amtrak) rail passenger service corridors. Railroad Law § 97 (3), authorizes the Commissioner to require alterations to existing private rail crossings, including farm crossings. A "private rail crossing" is defined as one which traverses tracks and may be used by the owner of the right-of-way, his invitees and others and is not recognized as a public crossing. § 97 (1) (d). The law was enacted so that New York could participate in a federal initiative to advance the development of intercity rail passenger service. It was to foster such development that the Commissioner was 5 given statutory authority over private crossings. Bi l l Jacket, L 1994, c 515, §2, at 5-9. Sharing the cost Although the statute contemplates payments by the state to property holders, the state has provided no compensation to claimant. Section 97 (5) empowers the Commissioner to acquire real property, easements, rights of way or similar rights as needed in the same manner as property is acquired for state highway purposes under Highway Law § 30. That latter law allows for the state to acquire property by eminent domain to build or improve state highways. Thus, rather than extinguishing the right of way claimant had used for decades to run a viable farm business, the Commissioner could have used the power of eminent domain to acquire and pay claimant for that right of way extinguished to compensate this farmer for the grievous property right loss caused by closure of the farm crossing.5 Penn Central analysis prevails The Third Department's takings analysis was flawed in: (I) not accurately characterizing the nature of the government action at issue, which created new hazards while ignoring Railroad Law § 52; (2) too summarily dismissing the 1Further. the state may share in the cost incurred in closing a crossing. The Commissioner must determine the apportionment of responsibility for the alteration and maintenance of any such crossing. Railroad Law § 97 (3). The regulations provide that cost sharing also applies to closures; 17 N Y C R R 919.4 says that the state may participate in the costs of closures and must provide written reasons for not doing so. 6 economic impact flowing from changing the nature of claimant's farm operations; and (3) not balancing such factors, as required by U . S . Supreme Court precedent. Takings that require just compensation under the 5 t h and 14th Amendments and the State Constitution (Art. I, § 7) can occur not only by seizure of property, but also by regulation. By definition, any regulation is an action for the public good. See Andrus v. Allard, 444 U S 51, 65 (1979). The fact that a regulation is an otherwise legitimate exercise of police power does not end the inquiry; it must be determined if the regulation deprives the landowner of his property rights and is thus unconstitutional, absent just compensation. See Matter of Gazza v. New York State Dept. ofEnvtl Conservation, 89 NY2d 603, 616 (1997). The analysis that applies for a regulatory taking, such as the one alleged here, is a flexible and nuanced one, designed to achieve fairness and justice. Both the economic impact and the nature of the government action must be considered. Despite a number of relevant U . S . Supreme Court cases in the past few decades, the central case establishing the framework for regulatory takings analysis continues to be Penn Centra! Transp. Co. v. New York City, 438 US 104 (1978). See Gazza v. State DEC, supra, 617; Matter of Friedenburg v. New York State Dept. ofEnvtl.Conservation, 3 AD3d 86, 95 (2 n d Dept 2003); Michael E. Lewyn, "Character Counts: the 'Character of the Government Action' in Regulatory Takings Actions," 40 SETON H A L L L R E V 597 (2010). There is no set formula for determining when justice and fairness require that economic injuries caused by public action must be compensated, but three factors are significant: the regulation's economic impact on the claimant; the extent to which it interferes with the claimant's distinct, investment-backed expectations; and the character of the governmental action. Penn Central, at 124. In Penn Central, the application of the New York City Landmarks Preservation Law to the parcel of land occupied by Grand Central Terminal did not interfere with present uses of the Terminal and permitted Penn Central to obtain a reasonable return on its investment. Penn Central, at 136. The court concluded that there was no taking because the restrictions were substantially related to promoting the general welfare and permitted reasonable beneficial use of the landmark site. In the instant case, the closure of the farm crossing does interfere with claimant's farming operations and ability to achieve a reasonable return on his investment. Further, as set forth below, the closure of the crossing is not substantially related to the promotion of the general welfare. Character of government action is key While a high threshold of loss is necessary to meet the economic impact element of the Penn Central analysis {see e.g. Noghrey v. Town of Brookhaven, 48 AD3d 529 [2n d Dept 2008], app dsmd 15 NY3d 815 [2010]; Friedenburg v. NY DEC, supra, at 98), that element must be viewed within the context of the 8 character of the governmental action (see Putnam County National Bank v. City of NY, 37 AD3d 575, 577 [2 n d Dept 2007], Iv den 8 NY3d 815 [2007]). As this Court has stated, a regulation can be deemed to be an unconstitutional taking if it denies an owner of an economically viable use of his property or if it does not "substantially advance legitimate state interests." See Manocherian v. Lenox Hill Hosp, 84 NY2d 385, 392 (1994), cert den 514 US 1109 (1995). The burden on the landowner must be balanced against the public interest being served. See John D. Echeverria, "Making Sense of Penn Central,'''' 23 JOURNAL OF E N V I R O N M E N T A L L A W 171,190 (Oct 2006). That balancing did not occur here. The thrust of Penn Central was ignored: that regulatory taking analysis must not be mechanically applied, and a flexible approach must be taken in which the persuasive force of each factor varies with the facts of each case and a takings claim. Id. at 208. A showing of less economic impact may be called for where the regulation does not apply broadly or create a large magnitude of benefits to protect the community as a whole. Id. In the instant case, in closing a particular farm crossing, the Commissioner was not applying a regulation broadly, but instead to end the use of a single right of way by a private farm owner. The public action here did not create any advantages for claimant or substantial benefits to the community as a whole. Moreover, the 9 action, while purportedly for safety reasons, actually caused a new hazard—the kind of dangerous condition avoided by Railroad Law § 52. Unsafe use of public roads Despite the lack of any accidents at the subject farm crossing in decades of use, the state closed it for safety reasons. At the same time, the state disregarded the well-known danger created by requiring a farmer to travel many miles on public roads with large farm equipment, and in this case, in a heavily populated, fairly industrial area. Typically farm equipment—including trucks, tractors, bailers, and animal-powered vehicles—are transported at 25 mph or less. Such transportation of farm equipment is intense from April to October, when farmers are apt to be planting, maintaining, and harvesting crops. A major reason for farm machinery accidents on public roads is the difference in speed between cars and farm equipment. While the farm equipment travels at low speeds, the speed limit may be 55 or 65 mph. Motorists traveling at the higher speeds often miscalculate how fast they are approaching the farm machinery and have too little time to react. Dangers are due not only to speed, but also size: farm equipment often takes up more than half of the road. Further, motorists may not watch for the equipment to turn into fields; farm equipment operators may have poor visibility due to loads and equipment in tow; and animal-powered vehicles may make unanticipated movements. The roadway dangers caused by transporting agricultural equipment 10 on public roads are well-established, complex, and difficult to effectively address. "Agricultural Equipment on Public Roads," USDA-CSREES, Wash DC Feb 2009, at i to i i i , 2. Dangers are especially acute here, where the subject area is fairly industrial and traffic can be dense and fast-moving. Our legislature enacted laws in an attempt to mitigate some of the inherent risks in transporting farm equipment on public roads. Effective January 1, 2009, new laws defined "agricultural equipment" and required slow-moving equipment, whether self-propelled or towed, to use slow-moving emblems on the vehicles and to have approved head and tail lamps when operated before sunrise and after sunset on public highways (L 2008, ch 350, §§ 1-3; Vehicle and Traffic Law §§ 100-d, 375 [36] [b]; 376 [1] [a]). The Introducer's Memorandum in Support of the bill stated that, according to the National Safety Council, each year there are more than 15,000 crashes involving farm vehicles on U.S. roads (Bill Jacket, L 2008, c 350, §§ 1-3, at 9). N Y F B supported the legislation because of the dangers to farmers and motorists of transporting farm equipment on public roads. Bi l l Jacket, at 18. Public outreach campaign The bill also required development of a public outreach campaign to improve roadway safety pertaining to agricultural equipment, and those efforts are captured in an April 2009 state press release (www.safeny.ny.gov/press/pr- 040809.htm). The State Departments of Motor Vehicles, Agriculture and Markets, i i and Transportation joined together to publicize the importance of motorists sharing the road with slow-moving vehicles and to announce the laws. They noted that there are many preventable crashes involving farm equipment and that dangers are presented by the size and speed of equipment. See id. The New York Center for Agricultural Medicine and Health—one of seven agricultural centers designated by the National Institute for Occupational Safety and Health—stated that traveling over the road with tractors and equipment is one of the most significant safety issues that fanners face. In 2007 alone, according to the Institute of Traffic Safety Management and Research, there were 59 accidents involving farm tractors and equipment. See id. NYFB respectfully asks the Court to take judicial notice of the safety laws, the rationale and statistics set forth in the bill jacket, and the content of the state- sponsored educational campaign. See CPLR 4511 (b); Matter of Albano v. Kirby, 36 NY2d 526, 533 (1975); Kingsbrook Jewish Med. Or. v. Allstate Ins. Co., 61 AD3d 13 (2 n d Dept 2009); Sommers v. Sommers, 203 AD2d 975 (4 t h Dept 1994); Fisch, New York Evidence, §§ 1051, 1060 (2 n d ed); Richardson, Evidence, § 52 (Prince, 10th ed). Safe use of farm crossings Contrasted with the known danger of using public roads is the history here of no accidents at the subject farm crossing in decades of use, as well as the 12 enviable safety record of private crossings throughout the state. In 2004, there were only two accidents at private grade crossings, at a time when about 3,000 private crossings, or nearly half of active railroad crossings, were private. See NYS DOT Rail Safety Bureau, 2004 Annual Report, at 26. For the entire previous decade, most accidents occurred at public crossings. Id, at 26-29. More recent reports reveal that the number of grade crossing incidents has remained "relatively low," and most were caused by illegal driver or pedestrian action, not flaws in the crossings. See DOT 2010 Annual Evaluation Report Highway Safety Improvement Program Railway-Highway Crossing Report, at 2; 2011 Report, at 2. In sum, there is a question as to whether the challenged state action "substantially advances legitimate state interests" (see Manochericm v. Lenox Hills, supra). It protects against a hypothetical danger and thereby creates a real risk of harm to the traveling public in a densely populated, fairly industrial area. Claimant is compelled to engage in the inherently unsafe practice of transporting large slow- moving equipment on busy public roads because of the closure of his farm crossing. State Constitution's protections If, arguendo, claimant's rights under the U.S. Constitution takings clause were not violated, then this Court can exercise its independent judgment to 13 determine if the State Constitution's takings clause provides greater protection to our citizenry than its federal counterpart. In a previous case, this Court alluded to, but did not need to, make such a determination. See Seawall Assoc. v. City of NY, 74NY2d92, 115 n 15 (1989). In the past, in other areas, this Court has construed the State Constitution as providing greater protections than those afforded by the Federal Constitution. See e.g. People v. Vilardi, 76 NY2d 67 (1990); People v. P.J. Video, 68 NY2d 296 (1986), cert den 479 US 1091 (1987); Matter ofPatchogue-Medford Congress of Teachers v. Board of Educ. of Patchogite-Medford Union Free School Dist., 70 NY2d 57 (1987). Such decisions reflect a careful balancing process, in which the historical significance and local character of the right in question is weighed against the desirability of consistency and uniformity in constitutional jurisprudence. See People v. P.J. Video, supra. This Court has tempered the exercise of its independent judgment in such matters by considering sound policy, justice and fundamental fairness. Id. Where there is an identity in the textual content of the State and Federal constitutions, there must be consideration of whether the right at issue has been afforded greater protection in New York than required under the Federal Constitution; whether the right is of peculiar State or local concern; and whether the State citizenry has distinctive attitudes toward the right. See id. 14 Federal takings analysis under the U.S. Constitution has been complex, murky, inconsistent, and draconian. The instant case might provide a proper opportunity to examine whether New York law provides greater protection and clarity. In the instant case, such protection could mean that fanners like claimant could safely and economically farm their land. Conclusion In regulatory taking cases, the showing of economic harm required is generally high. Thus, it is obviously difficult for claimants to prevail. Whether the instant claimant prevails, it would be beneficial to have an expansive takings analysis as applied to the state's authority to close private railway crossings and a consideration of the interplay between §§52 and 97 of the Railroad Law. Further, there should be an understanding and acknowledgement of the vital key role of farm crossings in safely and economically transporting farm equipment. Dated: Glens Falls, N Y October 10,2012 Respectfully submitted, Cynthta Feathers, Esq. Of counsel to New York Farm Bureau 15