Thursday, September 18, 2008

Coalition Builds Against Eminent Domain

Yesterday's hearing on eminent domain brought together a wide range of opponents concerned with the need to change the current law in order to better protect the property rights of New Yorkers. As the NY Observer reports: "State Senator Bill Perkins, along with Senators Velmanette Montgomery and Efrain Gonzales, held a hearing this morning in Harlem where he said he intends to create a commission to study reform of New York's eminent domain laws. While most states saw a backlash against its use following the U.S. Supreme Court's ruling in Kelo v. City of New London in 2005, New York's laws went unchanged."

Small business owners and residents from West and East Harlem, as well as Willets Point, went from the state senate hearing and held a street corner press conference in front of Fancy Cleaners on 126th Street and Third Avenue-a business threatened with closure if the East Harlem development is approved by the city council: "Then came a press conference in East Harlem, protesting the planned use of eminent domain at all of the projects around town, but particularly a rezoning of the eastern portions of 125th Street to make way for a large mixed-use project, which potentially needs forced acquisitions. Willets Point business owners, the major landowner in the Columbia footprint, Queens Councilman Hiram Monserrate and other advocates all chimed in."

New York 1's coverage of the press conference highlighted the common concerns: "Dozens gathered in Harlem Wednesday to take a stand against eminent domain. Community activists and city leaders joined community residents in protest of what they called the city's over-reaching use of eminent domain to seize property for private development...City Councilman Hiram Monseratte spoke out in support of the residents who fear the loss of their homes. 'You can't just go around taking people's property to hand it over to rich developers. That's unjust, and it ain't right and it's un-American...'"

And in today's NY Daily News Errol Louis, while overall in support of the use of eminent domain, makes this strong point about the need to change current law:
"In West Harlem, there are a couple of business owners who don't want to sell their property at any price, which Columbia and ESDC say would cripple the planned project. The most prominent holdout, a man named Nick Sprayregen, is a developer in his own right, with a considerable number of business ventures and commercial properties in Harlem, the Bronx and elsewhere.
Sprayregen has hired civil rights attorney and public advocate candidate
Norman Siegel to battle ESDC and Columbia and a series of lawsuits have been launched, along with a frontal attack on New York's eminent domain laws. Siegel and Sprayregen are perfectly within their rights to try and rewrite the law, and a re-examination of the 40-year-old rules makes sense. New York, unlike most states, gives broad leeway to agencies like ESDC to define when and how eminent domain may be applied, and only a fleeting window of time for property owners to object.

Sprayregen himself underscores this point in his own Op-ed today in the News: "Sadly for all New Yorkers, our state is the most egregious perpetrator of eminent domain abuse in our country. I should know since for the last four years I have battled the state and Columbia University - a private entity - in their threatened use of eminent domain. Columbia wants my land in West Harlem to assist the school in a planned 17-acre expansion in the Manhattanville neighborhood."

And just what exactly is wrong here? "The game is rigged, in multiple ways. Start with how New York paves the way for private property to be condemned using eminent domain. In order to take a house or a business or a piece of land (and, yes, pay "fair market" value to the owner in return), the state must first make a determination that the area in question is "blighted." But what makes an area blighted? Nothing but the arbitrary determination of the state's Empire State Development Corp."

And from this vague starting point, the process actually gets worse: "And here's the most frustrating part of all. After an area is designated as blighted and condemnation proceedings are announced, the person whose property is being condemned has no power - zero - to challenge the condemnation in a trial court. This makes eminent domain proceedings in New York different from those in every other state that I am aware of. Instead, property owners are required to file the lawsuit at an appellate court - where no witnesses are allowed, there is no cross-examination, there is no opportunity to raise new evidence and there is no right to discovery. Adding insult to injury, one's attorney is allowed, at most, 10 minutes to speak to the judge. This is inherently unfair."

In the case of Columbia's expansion, a bad process was actually further corrupted by backroom collusion: "Indeed, the entire eminent domain process works backward. Instead of a town or city first coming up with a comprehensive plan that involves community input and is shaped and formed through a deliberative and democratic process (with the developer only chosen by competitive bidding at the end), large, politically connected private entities typically go straight to the municipality with a plan that they themselves have hatched. As a result, these plans principally benefit a developer, not the people."

Is it really surprising that the rebuttal to Sprayregen comes from Kathy Wylde, the leader of the group that benefits most from the unfairness of the current law? As she tells the News concerning Columbia's expansion: "And we should applaud the fact that the government does not have to use precious tax dollars to bring this project to fruition, but simply the power the Constitution has created to ensure that individuals cannot defy the public interest."

Only in Kathy in Wonderland's view could a perversion of the Constitution be construed as a defense of this country's basic principles. Wylde outlines the concerns of owners, but never discusses the process itself; and only reminds us that their is always "fair market value" paid for property taken: "Unfortunately, eminent domain is under attack. Property rights advocates believe it is unconstitutional to condemn private property for almost any purpose. Anti-development groups claim that it allows big government to collude with rich developers to override the interests of the little guy. Bills have been proposed in the state Legislature and the City Council that would limit the use of eminent domain and slow down economic development in New York at the worst possible point in the economic cycle."

Of course, there's a big jump from "almost any purpose," to purposes that bear little relationship to the public good-an elastic notion in the case of New York State's ED laws. No one is saying that the device should never be used, but a better law is certainly needed to protect what should be seen as a basic civil liberty-the right to own one's own property unfettered by a rapacious local government.