NYS Public Health Legal Manual: A Guide for Judges, Attorneys ...

§ 1.73 NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL
restrictions that background principles of the State’s law of property and
nuisance already place upon land ownership.” Lucas v. South Carolina
Coastal Council, supra, 505 U.S. at 1029. All property is held under the
implied obligation that the owner’s use of it is not injurious to the community.
Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S.
470, 491-92 (1987). The state is not required to provide compensation for
the seizure of property “to abate nuisances that affect the public generally,”
Lucas v. South Carolina Coastal Council, supra, 505 U.S. at 1029,
or “for the destruction of ‘real and personal property, in cases of actual
necessity, to prevent the spreading of a fire’ or to forestall other grave
threats to the lives and property of others.” Id. at n.16, citing Bowditch v.
Boston, 101 U.S. 16, 18-19 (1880). As the Supreme Court has stated,
“[S]ince no individual has a right to use his property so as to create a nuisance
or otherwise harm others, the State has not taken anything when it
asserts its power to enjoin the nuisance-like activity.” Keystone Bituminous
Coal Association v. DeBenedictis, supra, 480 U.S. at 491, n.20. Cf.
PHL § 1306(1) [“The expense of suppression or removal of a nuisance or
conditions detrimental to health shall be paid by the owner or occupant of
the premises . . . .”].
Whether compensation is due in a public health emergency for the use
of property that is not itself a hazard, such as commandeering property to
shelter victims or to serve as a dispensary for medical treatment, may depend
on the circumstances. Actual physical possession of property, even if
temporary, can be considered a “taking,” Tahoe-Sierra Preservation
Council v. Tahoe Regional Planning Agency, supra, 535 U.S. at 322, and
since the property is itself not producing the “nuisance-like activity,” Keystone
Bituminous Coal Association v. DeBenedictis, supra, 48 U.S. at
491, there may be a right to compensation. See New York City Charter
§ 560 [during “an epidemic or in the presence of great and imminent peril
to the public health,” the City Board of Health “may take possession of
any buildings in the city for temporary hospitals and shall pay a just compensation
for any private property so taken”]. However, where such property
is needed in responding to an emergency where no statute requires
compensation, no compensation may be due. See In re Cheesebrough, 78
N.Y. 232, 237 (1879) [“in cases of actual necessity, [including] the ravages
of a pestilence . . . the private property of any individual may be law-
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