Bills aim to limit the practice in NY: Rochester (NY) Democrat and Chronicle, 8/15/05

By Amanda Erickson

At this time last year, Martin Goldman wondered if he would still be in the department store he owned at Christmas.

Threatened that the Yonkers city government might use eminent domain to buy his land for a minor league baseball stadium, Goldman worried that he would be forced to abandon his store, C.H. Martin.

He fought back. He hired a lawyer, went to court and secured promises from the Yonkers City Council that his property will not be condemned.

In short, his business has become a property owner success story. But had he begun his case today, he might not have been so lucky.

The debate over eminent domain, or government's right to take property, has intensified since a U.S. Supreme Court ruling in June that broadened that power. The court ruled that the city of New London, Conn., could use eminent domain to acquire 90 acres of private waterfront property for commercial and residential development.

The apparent expansion of governmental power came in the court's rationale. New London wasn't taking the property for a public project, the traditional reason for employing eminent domain. Instead, the property will be used for private development — development that will generate more tax revenue for the city than the current use generates.

The ruling came as a wake-up call to New York legislators, who have since introduced several bills to limit government's ability to take property.

Debra Cohen, the lawyer who represented Goldman in his case against Yonkers, said New York's record on private property rights has never been encouraging from the property owner's point of view.

"New York has been such an eminent-domain-friendly state over the past several years that the (Supreme Court ruling) has only reaffirmed the status quo," she said.

From 1998 to 2002, 146 requests for private property condemnation were filed or threatened in New York state, according to a study done by the Castle Coalition, a property rights advocacy group.

"New York is one of the worst states in the country in terms of legislation that protects against eminent domain," said Bert Gall, a lawyer with the Institute for Justice, a nonprofit law firm based in Washington, D.C., that works on property rights.

Legislators are hoping to address the situation next year.

Senate Minority Leader David Paterson, D-Manhattan, has called on Gov. George Pataki to impose a moratorium on eminent domain until January. A Pataki spokesman said he would consider it.

"We want to put this in place as soon as possible to prevent (the court decision) from having any effect on people until the Legislature comes back," said Paterson spokesman Fernando Aqino.

Other legislators are looking to change the laws on eminent domain permanently. One measure, introduced by Sen. Carl Marcellino, R-Nassau County, would require a government to prove that an area is blighted, or physically deteriorating, before condemning it.

Sen. John DeFrancisco, R-Syracuse, has proposed similar legislation, which would limit eminent domain for public purposes only.

Assemblyman Richard Brodsky, D-Greenburgh, Westchester County, has taken a different tack. He has proposed increasing the time that citizens have to appeal a condemnation from 30 to 90 days and creating a state commission to examine the issue.

Pataki spokesman Saleem Cheeks said that while the governor had no comment on the bills, he strongly supports property owners' rights.

But some aren't sure strict limits to eminent domain are the best way to go.

Land "should not necessarily be automatically precluded from being developed because of eminent domain restrictions," said Brian McMahon of the New York State Economic Development Council. "There are legitimate instances when the economic or cultural needs of a community need to be addressed."

Rochester Democrat and Chronicle: www.democratandchronicle.com