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October 21, 2005

Existing State Law Protects Property Owners, Experts Say

NY Law Journal

Both sides of the eminent domain debate are being heard by NY State lawmakers.

ALBANY — Legislative proposals to reform eminent domain law in the wake of the U.S. Supreme Court's controversial Kelo v. City of New London decision are unnecessary, as New York already protects private property owners from government condemnation, experts told a state Senate panel yesterday.

New York City Corporation Counsel Michael A. Cardozo and Patricia E. Salkin, associate dean and director of the Albany Law School Government Law Center, said yesterday the Court's decision that private property can be taken from one owner and transferred to another for economic development purposes has no impact in this state. However, both also said the eminent domain rule is ripe for thoughtful, considered review — as opposed to a knee-jerk reaction to Kelo.

Yesterday, a Senate committee held one in a series of statewide hearings to explore the potential impact of Kelo, and to compile testimony on what response, if any, is appropriate in New York.

Just last month, a group of senators led by John A. DeFrancisco, R-Syracuse, proposed a constitutional amendment to make clear that in New York "property shall not be taken from one owner and transferred to another, on the grounds that the public will benefit from a more profitable private use."

Other legislative proposals are also pending. (See column on page 5 of today's Law Journal by John R. Nolon and Jessica A. Bacher describing remedial legislation both in Congress and the state Legislature).

Mr. Cardozo said those fears are unfounded since New York law already bars condemnation for economic development purposes unless the area in question is blighted or in danger of becoming a "substandard or insanitary area" likely to negatively impact the municipality.

"To place additional limits on the eminent domain power beyond those already contained in New York State and New York City law could cripple development in this state and hamper vital economic growth," Mr. Cardozo told Senator James Alesi, R-Monroe County, sponsor of yesterday's hearing, and Senators Elizabeth O. Little, R-Glens Falls, and James W. Wright, R-Watertown.

Mr. Cardozo said that without the power of eminent domain, and the restrained use of that power, the city would not have Lincoln Center on the Upper West Side or the Metrotech development near the Brooklyn Bridge, and Times Square would have remained the crime-infested "national showcase for urban decay and blight" that it was in the 1970s.

Ms. Little repeatedly asked about the scope and definition of "blight," implying that it may be too broad. Mr. Alesi also expressed concern that property can be taken for market value, a figure that may not accurately reflect its worth.

"I want to emphasize that New York City uses eminent domain sparingly," Mr. Cardozo said. "Still, the power of eminent domain is vital to the social and economic well-being of New York City and the entire state."

Ms. Salkin, an authority on land use regulation, decried the "unfortunate hysteria" sparked by Kelo and cautioned that it essentially means nothing in New York. She said that while the state is looking at eminent domain in a Kelo context, it should shift its focus and examine compensation levels, notice requirements and master development plan principles as those items relate to condemnation law.

But John Lincoln, a dairy farmer from Ontario County and president of the New York Farm Bureau, disagreed.

"I can assure you we will be using our resources to support legislation protecting landowners from municipal use of eminent domain to enhance economic development," he said. "The citizens of the state of New York are very upset about the Supreme Court decision. The Kelo decision changes the game dramatically. . . . Now private property can effectively be taken by a public entity for the profit of other private parties. . . . After Kelo, no property is safe. Any property can be seized and transferred to the highest bidder."

Mr. Lincoln and others in the agricultural community fear New York's current law does little to protect them against Kelo. For instance, farmers say it is conceivable that a municipality would target a farm with a dilapidated barn and acres of virgin land, using the rundown building as an excuse to condemn under the "blighted" provision and transfer ownership to a Wal-Mart or other commercial interest that would pay far more in local taxes.

Additional hearings are scheduled for today at Suffolk County Community College, Thursday at the Theodore D. Young Community Center in White Plains and Oct. 27 at City Hall Commons in Syracuse.

Posted by lumi at October 21, 2005 7:47 AM