Reform eminent domain, within limits: Westchester County (NY) Business Journal, 10/24/05

Westchester lawmakers should grab the unique opportunity before them to craft an eminent domain bill that ensures local governments use their power of eminent domain for valid public purposes without defining "public" so narrowly that they slam the brakes on future redevelopment projects.

The county Board of Legislators' legislation committee will hold its first hearing Monday (Oct. 31) at 11 a.m. on the eminent domain reform bill introduced by Legislators Tom Abinanti (D-Greenburgh) and Jim Maisano (R-New Rochelle).

What they came up with is a starting point for a sensible new law, but just that. Abinanti and Maisano would limit the use of Westchester County funds to condemnations carried out for "public" purposes such as utilities, removing public nuisances or structures "that are beyond repair or that are unfit for human habitation or use," and acquiring abandoned property. The legislators would ban county funding for "private" uses, defined as "development projects for retail shopping, commercial office space, industrial development and/or residential facilities."

But when developers complete such projects whose jobs, taxes and quality of life benefit a community, the developers carry out a public purpose for which eminent domain could and should be allowed. The U.S. Supreme Court didn't create that doctrine in June when a majority upheld the right of New London, Conn., to condemn homes for a private developer's hotel-office-condo project. The high court upheld what has been practiced for decades nationwide, including Westchester, where urban renewal projects that included condemnation have revitalized White Plains and other communities.

The question for the county board and local boards, then, should be how to prevent abuses of eminent domain that benefit a developer without benefiting the community. Abinanti and Maisano go too far by limiting "public use" to government purposes which could also be abused. Additional criteria that include the community benefits of future projects should be included.

At the same time, the lawmakers have a valid point in expressing the need to protect existing property owners in future uses of eminent domain. Among additional protections Abinanti and Maisano might also consider:
  • Legislative approval: Industrial development agencies and other unelected bodies should never be the final say in any project involving the taking of land. That say should rest with an elected (and thus accountable) town board, village board or city council.
  • Master planning: A taking should satisfy a use called for in an approved comprehensive plan.
  • Compensation: Property owners should be compensated not only for the land they lose "at least at full market value" but for their relocation expenses as well. That's especially needed in Westchester, where land values are so high that single-family house median prices hit an all-time high of $700,000 during the second quarter.

"The outcome of eminent domain should never be that a business goes out of business," said Brian McMahon, executive director of the New York State Economic Development Council. The council, which represents municipal economic development professionals, is crafting its own eminent domain recommendations and will announce them later this year.

While there are occasions for government to condemn land, McMahon's words here could also be our own: "It's an extraordinary power, so extraordinary procedures should follow in the exercise of eminent domain."

Westchester County Business Journal: www.westchestercbj.com