9/19/2004

Law reforms eminent domain
The (Westchester NY) Journal News, 9/18/04

by Ken Maniace

Nearly four years after a Port Chester property owner went to court to challenge New York state's rules for taking private property, Gov. George Pataki has signed a law reforming condemnation procedures.

The new law means property owners in New York no longer need to pore over tiny legal notices, searching for clues of government plans to take their land; governments will need to notify each property owner by certified mail or personal delivery.

The eminent domain law reform was signed Tuesday by the governor and was announced by his office yesterday.

It grew out of a battle by Bill Brody, a 42-year-old businessman from Rye, to hold onto four sites in Port Chester's downtown redevelopment area.

"I'm very glad that the governor agreed with what I have been saying all along and that the state is going in the right direction," he said yesterday in front his building-supply business in the Bronx.

Brody said he never saw the condemnation plan announcement in a July 1999 legal notice, which neither named him nor identified his Port Chester property by address. Because of that, Brody said, he failed to challenge the condemnation in the 30-day period allowed.

The new law has no effect on Port Chester's taking of Brody's property for a 27-acre retail and entertainment complex under construction, but his case continues in federal court in Manhattan, where a ruling is expected this fall.

Brody's case was one of several taken up in October 2000 by the Institute for Justice, a nonprofit group in Washington, in an assault on New York's eminent domain rules, which the group called "among the worst in the nation."

Not only did the old law fail to require property owners to be properly notified of condemnation plans, it also failed to inform them they had a specific 30-day period for challenging condemnation.

"Cities were telling people that these public hearings were opportunities to express their feelings about a proposed project, not that this was a hearing where they had to put forward their reasons why government should not take their property," said Dana Berliner, a senior attorney with the Institute for Justice. "Now, at least, owners have a chance to defend themselves."

Sponsored by Assemblyman Richard Brodsky, D-Greenburgh, and state Sen. Vincent Leibell, R-Patterson, the legislation unanimously passed both houses in June. A version was vetoed by Pataki last year after it, too, unanimously passed both chambers.

Pataki's office said he vetoed the earlier law because it required title searches to identify every property owner involved in a proposed condemnation, an expensive feature.

The new legislation relies on government tax assessment records to identify owners.

Leibell called the bill "pro-consumer legislation."

Brodsky said the law would protect property rights.

"People deserve real notification when the government wants to take their property," he said.

The new law takes effect in about four months.

Although the law improves a major flaw in the state's eminent domain procedures, Berliner said New York has another problem: It often resorts to eminent domain to acquire land for private development rather than for a public purpose, such as a park or road. Though other states have done so, New York is among those that most often use condemnation as a tool for private development.

Government officials have justified the practice by saying condemnation for private development serves a public purpose because it improves a municipality's tax base.

Though Port Chester may have benefited from the old law, Mayor Gerald Logan said yesterday he was pleased the new one would afford property owners more legal protection.

"Now, at least, someone has the opportunity to make themselves heard," Logan said.


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