Island Park, LLC, Appellant,v.State of New York, Respondent.BriefN.Y.May 30, 2013STATE OF NEW YORK COURT OF APPEALS ISLAND PARK, LLC, Claimant-Appellant, -against- STATE OF NEW YORK, February 19, 2013 Defendant-Respondent. REPLY BRIEF FOR CLAIMANT -APPELLANT Docket No.: YOUNG/SOMMER LLC J. MICHAEL NAUGHTON, ESQ. (OF COUNSEL) Attorneys for Appellant Island Park, LLC Five Palisades Drive, Suite 300 Albany, New York 12205 (518) 438-9907 x244 Court of Claims No.: 117953 Appellate Division Docket No. 513273 TABLE OF CONTENTS PAGE(S) Preliminary Statement....................................................... 1 Argument...................................................................... 1 Conclusion..................................................................... 4 1 TABLE OF AUTHORITIES CASES P AGE(S) Bailey v. United States, 78 Fed. Cl. 239 [Ct. of Fed. Cl. 2007]... .... 3 Penn Cent. Transp. Co. v City of New York, 438 US 104,98 S. Ct. 2646,57 L.Ed. 631 [1978]........................................ 2, 3 STATUTES NY Railroad Law§ 52....................................................... 2 NY Railroad Law § 97........... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 4 LAW REVIEWS R. Mayberry & F. Aloi, Compensation for Loss of Access in Eminent Domain in New York: A Re-Evaluation of the No-Compensation Rule with a Proposal for Change, 16 Buffalo L. Rev. 603,606,611,644 [1967].......................... 2 II PRELIMINARY STATEMENT Appellant Island Park, LLC submits this Brief in reply to the arguments presented in the State's Brief. ARGUMENT The principal flaw in the State's argument is that the State is forced to ignore subsection (5) of Section 97 of the NY Railroad Law. Point II of Island Park's principal Brief discusses the statutory framework of the law, and the legislature's implicit recognition that in giving the Commissioner of DOT the right to close crossings, the Commissioner assumed the concomitant obligation: (1) to use the eminent domain process, and (2) to compensate landowner's when easements are eliminated in the course of a crossing closure. All statutes authorizing the closure of railroad crossings contain a similar provision. (Brief at 28) NY Railroad Law § 97 ( 5), therefore, is a statutory assumption of liability by the State that entitles adjoining landowners to compensation for damages. The statute also reflects the policy of the State not to saddle farmers with the cost of rail improvements intended to benefit society at large. Nevertheless, the State's sole response to this point is that the statute "does not mandate that DOT acquire property rights where such acquisition is not necessary .... " (State Brief at 39) Island Park submits that the law reflects a clear intention by the legislature to compensate private landowners whenever the State uses its power to close a crossing. I Courts applying the Penn Cent. Transp. Co. v City of New York, 43 8 US 104 [1978] analysis recognize that rights conferred, and obligations imposed, by statute are enough to tip the scale when determining whether the State's "regulation" of private property interests "goes too far." (Brief at 21) The interplay of statutory rights in the takings analysis has been recognized for decades. See generally R. Mayberry & F. Aloi, Compensation for Loss of Access in Eminent Domain in New York: A Re-Evaluation of the No-Compensation Rule with a Proposal for Change, 16 Buffalo L. Rev. 603, 606, 611, 644 [ 1967] (collecting cases and noting that the dichotomy between police power and compensable taking cases generally involve "statutes or ordinances specifically passed to facilitate compensation"). In this case, two statutes are relevant: (1) Section 52 of the Railroad Law, which requires railroads to maintain farm crossings; and (2) Section 97(5), which grants the Commissioner "the power to acquire any real property, easements, [or] rights of way" incidental to a crossing closure. Except for repeating the findings of the lower courts, the State has no response to this argument. Nor has the State provided a cogent response to the argument that the State's actions, taken in context, constitute a taking incidental to the DOT's plans to construct a road and bridge connecting NYS Route 9J with the South Port Road. (Brief at 22). The facts regarding the State's plans, and the relationship of the 2 bridge project to the closure, are unrefuted. 1 Nevertheless, the State insists that these related activities are not relevant to the "taking" analysis. (State Brief at 36) Island Park submits that the State's plans are highly relevant to the Penn Central analysis. The context defines the "character" of the State's actions. Just as the State will be required to compensate Island Park for the 4 acres it plans to condemn for a roadway and bridge (R-178), the State should be required to compensate Island Park for the elimination of the crossing that is integral to the State's plan for: (1) high speed rail (R-283-85), and (2) improved road access to the Port of Rensselaer. After all, the State conceded that the two go "hand in hand." (R-292) The State contends that because there was "no physical invasion" of Island Park's land there can be no taking.2 (Brief at 21) This argument overlooks the fact that the State's closure order directed CSX to remove the crossing surface and install barricades blocking access. (R-98) But for the State's order, CSX was prohibited from taking these actions on its own. (Brief at 6, n. 3) A prior court order permanently enjoined CSX, and its predecessor, to maintain the crossing in perpetuity. (R-174) The State cannot side-step its liability by ordering a third party to carry out the terms of a DOT order, especially when the private party is prohibited from interfering with the landowner's right to use the crossing. Island Park moved for partial summary judgment, but the State never refuted any of Island Park's factual allegations. 2 The case cited by the State, Bailey v. United States, 78 Fed. Cl. 239 [Ct. of Fed. Cl. 2007], in support of this proposition must be distinguished from the facts ofthis case. In Bailey, the government owned the road that was fenced off. In this case, CSX owns the railroad tracks, not the State. 3 Consequently, the State's "physical invasion" distinction cannot provide a loophole for escaping liability. Finally, the State argues that Island Park failed to present "dollars and cents" evidence to sustain its claim. (Brief at 33) This argument, however, overlooks the procedural history of this case. Island Park moved for partial summary judgment regarding liability. (R-25) The Court of Claims did not conduct a trial. Instead, the court below found, as a matter of law, the State is not liable. The proof (R-32- 166) subm~tted in support of the claim-and the motion-was unrefuted. The evidence was sufficient to state a cause of action and establish liability. CONCLUSION Island Park submits that the State's actions, m light of the statutory framework of Section 97 of the Railroad Law, constitute a compensable "taking." Because the State's plans for high speed rail development will require the closure of hundreds of private crossings, the policy of the State should favor compensation. The hidden costs of high speed rail and road improvements should 4 not be borne solely by farmers and landowners. The order of the Appellate Division, therefore, should be reversed. DATED: February 19, 2013 Albany, New York By: 5 Exec · s Five Palisades Drive Albany, New York 12205 (518) 438-9907 ext. 244 mnaughton@youngsommer.com STATE OF NEW YORK COURT OF APPEALS ISLAND PARK, LLC, Claimant-Appellant, -against- STATE OF NEW YORK, Defendant-Respondent. J. Michael Naughton hereby certifies that: CERTIFICATION (Regarding Digital Brief) Docket No.: Court of Claims No.: 117953 App. Div. Docket No.: 513273 1. The Reply Brief for Claimant-Appellant submitted on the attached CD complies with the technical specifications and is in text searchable portable document format in compliance with Section 500.12(h) of the Court's Rules ofPractice. Dated: February 19,2013