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August 16, 2005
State may limit use of eminent domain
Governor expected to consider proposed bills
Binghamton Press and Sun-Bulletin BY AMANDA ERICKSON Albany Bureau
ALBANY -- At this time last year, Martin Goldman wondered if he would still be in the department store he owned at Christmas.
Threatened that the Yonkers city government might use eminent domain to forcibly buy his land for a minor-league baseball stadium, Goldman worried that he would be forced to abandon his store, C.H. Martin.
But he fought back. He hired a lawyer, went to court, and secured promises from the Yonkers City Council that his property on Getty Square will not be condemned.
In short, his business has become a property-owner success story.
But had he begun his case today, he might not have been so lucky.
The growing debate over eminent domain, or the state's right to take property, climaxed in a U.S. Supreme Court ruling last month in the case of Kelo vs. New London. In that case, the court ruled that eminent domain, which previously was used mainly for public-works projects such as highways and school buildings, could be used to force a homeowner, Suzette Kelo, to sell her land so that it could become part of a bigger parcel slated to be redeveloped into a hotel resort and conference center.
The ruling came as a wake-up call to New York legislators, who have since introduced several bills to limit the government's ability to take property.
"Having the Kelo case sitting undecided may have made city officials a little more conservative about pulling the trigger on the eminent-domain threat," said Debra Cohen, the lawyer who represented Goldman in his case against Yonkers. Now she said they're likely to act more quickly.
But Cohen acknowledged that New York's record on private-property rights has never been encouraging from the property-owner's point of view. "New York has been such an eminent-domain-friendly state over the past several years that the Kelo situation has (only) reaffirmed the status quo," she said.
From 1998 to 2002, 146 requests for private-property condemnation were filed or threatened in New York state, according to a study done by the Castle Coalition, a property-rights advocacy group.
Some say the numbers reflect a distressing record of protection against eminent-domain abuse in the state.
"New York is one of the worst states in the country in terms of legislation that protects against eminent domain," said Bert Gall, a lawyer who works with the Institute for Justice, a nonprofit law firm based in Washington, D.C., that works on property rights.
But legislators are hoping to fix the problem next year.
Senate Minority Leader David Paterson, D-Manhattan, has called on
Gov. George E. Pataki to impose a moratorium on eminent domain until January.
A Pataki spokesman said he would consider it, but no timetable has been set.
"We want to put this in place as soon as possible to prevent (the Kelo decision) from having any effect on people until the legislature comes back," said Paterson spokesman Fernando Aqino.
Other legislators are looking to change the laws on eminent domain permanently. One measure, introduced by Sen. Carl Marcellino, R-Nassau County, would require the state to prove an area is blighted, or physically deteriorating, before condemning it.
"Eminent domain should be used for public-good projects only," Marcellino said.
Sen. John DeFrancisco, R-Syracuse, has proposed similar legislation, which would limit eminent domain for public purposes only.
Assemblyman Richard Brodsky, D-Greenburgh, Westchester County, has taken a different tack.
In his legislation, he has proposed increasing the time citizens have to appeal a condemnation from 30 to 90 days, requiring that the state submit an economic-development plan to the local government and creating a state commission to examine the issue.
This legislation was "carefully drafted to actual abuses in the system," Brodsky said.
Pataki spokesman Saleem Cheeks said that while the governor had no comment on the bills, he strongly supports property-owners' rights. "While eminent domain can be utilized to accomplish important public projects, it must be used judiciously," he said in a statement.
But some aren't sure strict limits to eminent domain are the best way to go.
Land "should not necessarily be automatically precluded from being developed because of eminent-domain restrictions," said Brian McMahon of the New York State Economic Development Council. "There are legitimate instances when the economic or cultural needs of a community need to be addressed."
Posted by lumi at August 16, 2005 07:09 AM