Sunday, May 31, 2009

More testimony submitted for the Senate hearing: why eminent domain should be reformed

The issue of eminent domain and blight got short shrift at the hearing on Atlantic Yards held Friday by State Senator Bill Perkins.

One person who submitted testimony, but couldn’t attend, was Michael Rikon, an attorney since 1980 in private practice representing property owners in condemnation proceedings. (He also represents some property owners in the AY footprint.)

“In my opinion, it is fundamentally wrong to take someone’s property and turn it over to a private party,” Rikon said in his prepared testimony. “We understand that eminent domain is necessary on occasion. But the use of this most extreme power should be limited to a true public purpose. Atlantic Yards should be limited to a stadium site for the Nets.”

Interestingly enough, Rikon does not challenge condemnation for an arena whose profits would go to a private developer far more than any public entity.

After Kelo

As a result of the Supreme Court’s widely-criticized 2005 Kelo v. New London decision, which narrowly upheld eminent domain for economic development--something long permitted in New York, Rikon pointed out--42 have enacted legislative reform.

While a task force of the New York State Bar Association called for the legislature to create a Temporary Commission on Eminent Domain, “nothing has been done to further the task force’s many recommendations,” Rikon noted.  (I wrote about this issue on Thursday.)

Deck is stacked

Rikon pointed out that those challenging a condemnation have very little chance in court--which is why the plaintiffs in the Atlantic Yards eminent domain case first went to federal court.

“There is no real or effective procedure to stop a condemnation,” he said. “ Our law has a procedure, Article 2 of the Eminent Domain Procedure Law–but it is virtually impossible to win a challenge.”

Moreover, he said, “There is not a concrete definition of what is blight. Indeed, blight is in the eyes of the beholder. And blight often follows the cloud of condemnation and the purposeful neglect of a sponsor.”

Recommendations

“The Eminent Domain Procedure Law should be amended to take into account and correct the inconsistencies in the existing statutory provision,” Rikon suggested. “More importantly, the law should focus on the need to define and perhaps limit the definition of public purpose and permissible acquisition in the wake of the public outrage following Kelo... The time is at hand for a thorough study of New York Eminent Domain Substantive Law and Procedures, particularly how New York defines “blight.” How can a building which was converted to luxury apartments be deemed ‘blighted?’”

He made several other recommendations regarding how compensation is determined and cited the many recommendations of the task force.

“The last recommendation was that a Temporary State Commission on Eminent Domain should be established, resolving issues such as defining public use, the appropriate level of judicial scrutiny, just compensation, and others will be accomplished through study by a variety of stakeholders represented," he stated. "This was two years ago. Nothing has happened to put the task force recommendations in place. The Temporary Commission must be created now.”

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