Eminent domain gives government power: The Saratoga NY Saratogian, 12/02/06

By Jim Kinney
[Corinth NY] Village Mayor Bradley Winslow figures he'll have to use the high school gym for the public hearings when the village moves forward with plans to take the old International Paper Co. mill by eminent domain.

He knows the subject will bring out way more people than will ever fit in the village hall.

Just like the people who came out Thursday in Fort Edward who opposed that town's efforts to take the proposed site of a PCB-sediment processing plant, also by eminent domain.

Both are unusual uses for eminent domain power, which is when a municipality goes through the courts to take real estate, or an easement to use real-estate, over the owner's objections. The municipality must make fair-market compensation to the owner.

It makes it impossible for one property owner to block a needed road or improvement. But the power has its critics, especially after 2005 when the U.S. Supreme Court approved of a Connecticut city's use of the power to put property in the hands of a private developer.

'If the power exists, it will be used,' said John Bergeron, who fought Saratoga County's efforts to take his property in Hadley from 2000 until the county stopped trying earlier this year. The county went with another design for its emergency radio network that doesn't need Mount Anthony, the peak where Bergeron owns property.

The county is still taking property in Edinburg for another tower, though.

'If you are about the power of the government, you say 'Yeah, lets get stuff done!,' Bergeron said. 'But if you believe in civil liberties you start to ask what rights a citizen has.'

He had to hire lawyers, but won't say how much the fight cost him.

'I don't like to think about it,' he said. 'I probably spent more time fighting this than was reasonable. But the alternative was to let them walk all over me.'

In most cases, it's a town building a road or laying water pipe. That's why Corinth's and Fort Edward's plans are unique.

'To control our own future,' Fort Edward Supervisor Merrilyn Pulver said.

She wants plans for the facility to go through town planning and zoning processes. It's a way for the town to get some leverage in the planned dredging of PCB-contaminated sludge from the river's bottom.

Critics say the eminent domain proceeding is just like a federal appeal the town is pursuing in the dredging situation, a delaying tactic.

EPA spokesman Leo Rosales said the eminent domain proceeding, which is in its early stages, isn't slowing the process. GE and EPA are negotiating with the site's owners, D.A. Collins Cos of Mechanicville.

Dennis Prevost of Fort Edward came to a meeting Thursday of the Community Advisory Group, or CAG, for the dredging project to protest. He asked where the town plans to get the money to pay D.A. Collins for the property if it's successful in getting it by eminent domain.

'Also, it would come off the tax rolls,' he said. 'That drives up all our taxes to make up for that lost revenue.'

In Corinth, Mayor Winslow said he understands the sentiment. The village has a budget of only $2.2 million. IP sold the plant to New York City based Philmet for $2.75 million two years ago. That price included property outside the village that wouldn't be included in the seizure.

'I can understand not wanting to bond all that money,' Winslow said. 'But we want to redevelop this property that has just sat there since IP sold it.'

He said the village will likely work with a developer who would front the money.

'Let's say if we end up owning it, we won't own it for long,' he said.

An attorney for Philmet said this week that the company is preparing a plan to redevelop the property that doesn't include importing trash. But he wouldn't say when.

He did say the village has a poor case for eminent domain and that the company plans to fight in court.

The city of Saratoga Springs said in court papers filed in September that it needed access to properties along Saratoga Lake in part to fix values on those properties for the eminent domain process. But that same suit said the city would likely just need an easement to run pipe, not permanent use of the property.

Saratoga County only has a small fraction of the more than 100 easements it will need for its water project, Wes Carr, the project's staff member, said.

'We'll have to do some eminent domain,' Carr said. 'Some property owners won't agree. It's just the law of averages.'

Bergeron said he expects the Supreme Court to revise its stance on eminent domain and private development, situations like Winslow described for the IP mill.

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