3/26/2006

Moves made in Albany to soften eminent domain's impact: (Westchester NY) Journal News, 1/29/06

Commentary

By Phil Reisman

If you believe that eminent domain often amounts to a shameful swindle of homeowners and small businesses, then here's something you can do about it.

Write to your representative in Albany and tell him or her to get behind a new piece of proposed legislation marked A09473, which was recently drafted by state Assemblyman Adam Bradley, a Democrat from White Plains.

Make no mistake. This is not a means to stop eminent domain, but a meaningful solution to make it fairer. Passing this law will help bring balance to a high-stakes enterprise in which government can legally seize private property under the justification of a public purpose.

Before I get into the specifics of Bradley's bill, here's some background. Traditionally, eminent domain has been used to make way for things like bridges, roads and libraries or, similarly, for urban renewal projects in abandoned areas. In recent years, however, it has gained well-deserved infamy because municipalities desperately in search of greater and greater tax revenue have increasingly resorted to condemning viable middle- and working-class neighborhoods as "blighted" so that hot-shot profiteers can transform the urban landscape into mega-developments complete with high-rise apartments, hotels and big-box stores.

Look no further than downtown Port Chester to see what eminent domain has wrought.

Though property owners are compensated for their losses, they often have little chance to fight against condemnation or even get a fair deal, especially in states like New York, where the system has long been rigged in favor of the unholy alliance of government and big corporate interests. They may get a judge's low-ball interpretation of a "fair market" value but find themselves unable to find a replacement property because they've been priced out by the ever-rising cost of real estate.

Public outrage about eminent domain bubbled over in the wake of last year's controversial 5-to-4 Supreme Court decision that upheld the right of New London, Conn., to expedite a giant hotel complex by seizing modest waterfront homes, some of which had been owned by generations of families.

A couple of months ago, I wrote a column in which I touted the ideas of John A. Humbach, a professor at Pace University School of Law in White Plains, who believes it is unrealistic and even reckless to indiscriminately stop cash-strapped municipalities from using eminent domain as a way to climb out of fiscal distress.

In a nutshell, Humbach said a better approach would be to ensure that an "unwilling seller" receives at least the amount of money needed to find a comparable home or business property in the same town.

I called this humanistic concept "Humbach's Rule."

Bradley told me the column "hit the nail on the head" and was the inspiration behind A09473. The current draft bill has four components.
  • It calls for the option of a jury trial to decide any claim involving a private residence or a business with gross receipts of less than $1 million.
  • It requires that the property owner receive compensation "at least equal to the actual cost of purchasing an equivalent property in a similarly situated location with a similar structure on the property."
  • The bill demands that property owners be reimbursed for their legal fees and court costs.
  • It calls for the reimbursement of all moving expenses and mortgage closing costs.

Bradley said the possibility of placing the issue of fair compensation into the hands of an impartial jury was the key piece of the legislation.

"It's pivotal," he said. "You're automatically going to have a much more sensible approach to what compensation is because Sam the shoemaker who's been in business for 80 years is going to have much more sympathy from a jury."

Humbach, who testified before a state Senate committee about eminent domain in October and who has read Bradley's bill, stressed that not all cases would necessarily go before a jury.

"It sits there in the background," he said of the possibility. "And that means that the homeowner or business owner can always say: 'This is just not fair. I want to take my case that I am being under-compensated to 12 people who aren't professionals and don't have an interest.' That'll keep both sides honest."

This bill makes sense. But believe me, the lawyers and powerful developers they represent will lobby like hell to make sure it never passes.

They tried but failed to stop a law that was pushed hard by Assemblyman Richard Brodsky, D-Greenburgh, that did away with the diabolical system of using legal classified ads as the only means to notify unsuspecting citizens that their property was about to be seized.

And they are trying to stop a proposed Westchester law, backed by Legislators Tom Abinanti, D-Greenburgh and Jim Maisano, R-New Rochelle that would, among other things, prohibit the county from giving grants to developers who have benefited from eminent domain.

The guys with the deep pockets don't have to win. But it's up to you.


Journal News: www.thejournalnews.com