Move to block eminent domain
Two Westchester County legislators have joined in a renewed bipartisan effort to enact a county law that prevents the county from using eminent domain to condemn private property for other than strictly public use. The effort comes as New York state too considers tighter eminent domain laws and oversight amid rising concern nationally that condemnation powers are abused at the state and local level to benefit private development.
County Board of Legislators Majority Leader Thomas J. Abinanti, D-Greenburgh, and Minority Leader James Maisano, R-New Rochelle, are co-sponsoring legislation this year that twice before failed to gain support on the Democrat-controlled board. Maisano recently said the bill died because former County Executive Andrew J. Spano opposed it. Several developers and lawyers too opposed the measure when it was first proposed in 2005 amid Westchester”™s redevelopment boom.
With the new Republican county administration, “It”™s a little different dynamics now,” Maisano said recently. He said County Executive Robert P. Astorino was an original sponsor of the legislation when he served on the county board. “We”™re a little more excited now” about the prospects for the law”™s adoption, Maisano said. The measure has been sent to the board”™s legislation committee.
The law would prohibit county government from using its powers of eminent domain to condemn private property for private use. The county could use eminent domain only with a two-thirds majority vote of the Board of Legislators and the board”™s finding after a public hearing that condemnation was needed to achieve public use of the property.
The law defines public use as the use of a land parcel either by the general public, public agencies or public utilities; the acquisition of property to “cure a concrete harmful effect” of the land”™s current use and the acquisition of abandoned property.
The law specifies the prohibited private use of property to include development projects for retail shopping, commercial office space, industrial development and residential facilities. It eliminates the public benefits of economic development, including an increase in the tax base, tax revenues, employment and “general economic health,” as a public use.
The law also would prohibit the county from contributing funds or any other support to a project that uses eminent domain or benefits from the use of eminent domain to take private property for private use. The county could support a project only if a two-thirds majority of legislators found that eminent domain was needed to achieve public use.
Affordable-housing developments by a government agency or by a nonprofit corporation in partnership with a government agency would be exempt from the law”™s provisions.
“We have been working on this for quite some time,” said Abinanti. “What we”™re doing here is setting a policy and a procedure for Westchester County, the way Westchester County deals with proposed eminent domain takeovers.”
Abinanti said the legislation first was sparked several years ago by the village of Port ChesterӪs use of eminent domain to condemn private properties for a mixed-use redevelopment project, The Waterfront at Port Chester, built by New York City-based G&S Investors. With at least one claim by owners of condemned properties there still pending and one heard by a U.S. Circuit Court of Appeals whose ruling judges included current U.S. Supreme Court Justice Sonia M. Sotomayor, Port Chester has become a national example of the abuse of eminent domain powers and a cause c̩l̬bre for advocates of reform.
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Abinanti said the county provided funding for the Port Chester waterfront renewal project. “As we have seen from the court cases, it appears they were not fair with the local residents,” he said.
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“Part of the whole problem with eminent domain is the lack of public notice and a lack of public discussion. Business owners are squeezed, threatened” by local governments working behind the scenes for private developers, he said. “It”™s just a total interference in the market system and it”™s unfair. We”™re trying to level the playing field here to guarantee the small guys get a fair shake.”
Maisano, like Abinanti an attorney, said he saw the abuse of eminent domain as a recently elected legislator in the late ”™90s in New Rochelle. An elderly homeowner showed up at his door with a real estate contract from an attorney going door-to-door in the neighborhood for IKEA, the big-box retailer that later dropped its plans to locate in New Rochelle in the face of opposition. The company attorney told owners to take the offered deal or the city would use eminent domain to take their properties.
“I lived through it in my district,” said Maisano. “These are decisions that should be made in the private marketplace. When the government gets involved, they skew the prices in the marketplace.”
Michael Rikon, a leading attorney in New York eminent domain law at Goldstein, Rikon & Rikon P.C. in Manhattan, whose clients include owners of condemned commercial property in Port Chester and a Brooklyn homeowner on the site of Forest City Ratner”™s planned Atlantic Yards development, said the proposed Westchester County measure “is an excellent law. I think this has really got to stop. Taking over someone”™s property just to hand over to a private group is just inherently wrong and unconstitutional. The Village of Port Chester condemnation proceeding is one of the greatest examples of abuse by a private developer.”
Rikon said his firm, which practices exclusively in eminent domain law and condemnation proceedings, handles more cases in Westchester than anywhere in the state. “It”™s not unusual in Westchester County to see these huge disparities in values, which almost always leads to litigation and trials,” he said. “The condemning authorities for years have just gotten away with murder” in their payments to owners.
Abinanti said the proposed law “is not an attempt to control local government. This is an attempt to set a policy or procedure for county government.”
“This issue unites people across political and ideological boundaries,” he said. “I don”™t know where the business community is going to come down on this.”