Two Westchester legislators try to limit use of eminent domain: The (Westchester County NY) Journal News, 7/10/05

By Phil Reisman

Have you ever wondered how Westchester's elected officials really feel about the prospect of your business, home or house of worship one day being bulldozed for corporate profit?

You may soon get a chance to find out, and here's how.

A bill designed to keep the county from contributing taxpayers' money to any development project in which eminent domain is used to condemn private property for the benefit of big-business interests is about to be introduced to the Board of Legislators.

The legislation also would prevent the county from exercising its power to seize property except for public works such as roads, bridges or sewage treatment plants.

Co-sponsored by Jim Maisano, R-New Rochelle, and Tom Abinanti, D-Greenburgh, the bill currently exists in rough draft, but Maisano told me he plans to present it at the next board meeting and get it passed this year.

At first blush, this news may not seem significant — unless you happen to live on a block that's targeted for the construction of, say, a hotel, big-box store and supermarket, and the takeover is coming with the full cooperation of your duly elected mayor and council.

But there is a moral as well as legal issue at stake here that transcends immediate threats to any particular neighborhood. That's why the Maisano-Abinanti bill is important. It raises the bar of principle and, as such, presents a test.

It will be interesting to see how many legislators vote for it and whether County Executive Andrew Spano will sign it into law.

"But I'm going to force it," Maisano said. "I'm going to force the issue. I'm going to try to push it."

I've said it before and I will repeat it now: Eminent domain is nothing less than government-sponsored theft when it means seizing the property of ordinary citizens and transferring it to the Donald Trumps of the world. And yet over and over again towns and cities increasingly contend that the "public use" justification of eminent domain outlined under the Fifth Amendment is broad enough to include the supposed benefits to the public (i.e., jobs and taxes) that come with private development.

Whereas in the past, you may have given up your home for a children's hospital, now you may sacrifice it at the altar of a Stop & Shop.

The shameful erasure of much of Port Chester's limited waterfront and the aborted threat to a New Rochelle neighborhood posed by the IKEA furniture chain a few years ago are locally familiar examples of eminent domain abuse that I've railed against in the past.

It's an uphill battle, as evidenced by the U.S. Supreme Court's recent 5-4 vote upholding a plan to demolish waterfront homes in New London, Conn. — some of them owned by families for generations — and replace them with a giant hotel complex.

That was bad news, but it came with a silver lining. The court's decision woke people up.

According to Dana Berliner, senior attorney for the Institute for Justice, a Washington, D.C.-based organization that represented the plaintiffs in the New London case, citizens across the country are outraged and are mobilizing to get their elected officials to change local laws and charters to better protect the rights of property owners.

"I have been overwhelmed by the popular response," she said. "We knew that when the decision came out, because it was so broad, that there was going to be a backlash. There had to be. I mean, the opinion practically said, 'Your home is up for grabs.' So we knew there would be a backlash."

Still, Berliner was surprised by the number of calls, e-mails and letters from legislators as well as from ordinary people of all ages and backgrounds who've never before been politically involved.

"It's completely inspired us to put forth a new effort to change things," she said.

Maisano said he has long been philosophically opposed to eminent domain for private use, but felt his hands were tied in coming up with the proposed legislation until the Supreme Court ruled.

"If the Supreme Court had said it was unconstitutional, that would've totally changed the issue, but they didn't do that," Maisano explained. "So I tried to think of something that was clearly doable without getting into a legal battle with people."

His bill has limits, which Maisano readily admits.

It's hard to imagine a scenario, for instance, in which the county would be in a position to condemn private property for a private developer.

Development proposals are usually initiated on the local level, and the bill doesn't prevent towns from using eminent domain in its most malignant form.

However, the bill's provision to block county funds in such cases is not insignificant. Look no further than the aforementioned Port Chester redevelopment scheme, a court-backed "shock and awe" nightmare of eminent domain in which the county agreed to pay G&S investors about $10 million over 20 years to help build a waterfront promenade.

That kind of outlay won't happen again, if the Maisano-Abinanti bill is passed.

And that depends on you.

The Journal News: www.thejournalnews.com