Eminent domain raises the stakes: (Long Island NY) Newsday, 7/14/05


By Brian S Stoler

Wrestling with whether the Constitution allows an economically distressed city to acquire private property to reverse its economic decline, the U.S. Supreme Court has just reaffirmed the right of a municipality to redistribute private property.

The justices made it clear that local governments, including Long Island's, do indeed have the powers to make choices for us - choices that could involve the relocation of citizens when their property can be used for a better public purpose.

The decision was sparked by the question of whether New London, Conn., could use eminent domain to achieve its goal of economic revitalization at the expense of uprooting homeowners from their homes and communities. Rather than pass judgment on the city's basis for the acquisition of private property, the court deferred to the judgment of city officials.

The court ensured that the use of eminent domain will be expanded dramatically, limited only by a politician's concern about how such a taking could affect his job tenure. Still, the court made it clear that a local government does not have carte blanche when exercising eminent domain and that the Constitution insists property owners be compensated for such taking. Yet the underlying reason for the public unease with this decision is that the homeowners being displaced may not be "getting just compensation" but rather "just getting compensation."

This issue already is being played out on Long Island. The ability of Gyrodyne, a former defense company with 314 acres in St. James, to put its property to profitable use has been stymied because of the possible exercise of eminent domain by Stony Brook University - which wants to use the land for a technology center.

But one need not own a real-estate holding company to find his land has just come under the shadow of condemnation. Envision these scenarios. You buy your waterfront-view, Victorian-era dream home and make substantial improvements. Or you still reside in the house purchased by your family more than a century ago. Yet the Supreme Court has made it clear that as long as just compensation is paid, a local government can acquire your dream home or uproot you and your family. But until there is a philosophical and legal change concerning the assessment of compensation, homeowners will be "just getting compensation."

Still, municipal government seldom moves quickly. Redevelopment projects include an open process to ensure that the public knows what the consequences of the decision will be and who is making those decisions. Perhaps it is this last point that will serve as the great equalizer for the protectors of property rights. Government officials have to answer to the electorate. Thus, even if a local legislature believes that a certain economic development project is in the best interests of the community, if the community disagrees, the community could have the last word on Election Day.

A prime example of this impact can be found in the Town of Hempstead. The town, faced with the opportunity to acquire property that would serve to improve the community at the expense of one business owner, did not hesitate. Hempstead condemned the Oceanside Motel because it was a purported haven for drugs and prostitution. Other than the hotel's owner, the only opponents to the town's decision were the transients using the hotel for nefarious activity. They will not be at the polls come November, but neighbors who sought the closure will be there.

In a more controversial previous taking, the Town of North Hempstead acquired church-owned property to further the town's goal of redeveloping portions of the New Cassel community that the town viewed as blighted. More recently, the town has sought to acquire another New Cassel property owned by an individual but used, in part, for worship.

Woody Guthrie's famous lyric verse "This land is your land, this land is my land" might need to be revised to include the line "unless of course it's needed for a parking lot."

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Brian S Stolar is an attorney with the law firm of Meyer Suozzi English & Klein, Mineola NY