12/31/2007

Save Our Village Holds Seminar To Discuss Eminent Domain: New Hyde Park NY Illustrated News, 11/9/07

By Margaret Whitely

Recently, Save Our Village (SOV), an activist group in New Hyde Park dedicated to "saving the village" from Metropolitan Transportation Association (MTA) and the Department of Transportation's (DOT) Long Island Railroad (LIRR) "Main Line Corridor Improvement Project" held a seminar at the New Hyde Park Road School auditorium. The group focuses on the environmental, social and economic effects it will have on the quality of life in the village. The seminar was to discuss Eminent Domain as it relates to the Village of New Hyde Park.

SOV President Robert Femminella, along with vice-presidents Diane Bentivenga and Christina Prieto-Maroney, introduced the guest speakers; Thomas Levin, a partner with the law firm of Meyer, Suozzi, English and Klein and Edward Gutleber, an attorney with the same law firm, both volunteering their time, spoke on various aspects of eminent domain law, and New York State Senator Craig Johnson, who reiterated that he is vehemently against the Third Track Project and will continue to be so until the MTA presents a clear plan to the community that is approved by the community residents and its civic organizations and its local government officials. Johnson pointed out that although Governor Eliot Spitzer appears to be for the Main Line Project, he is absolutely against it and has told the governor of his feelings many times explaining to him the drastic impact it will have especially on the Village of New Hyde Park.

The first speaker, Thomas Levin, received a laugh when he started his speech off by saying, "Don't kill the messenger."

He then went into the extensive background of eminent domain. He said, "Eminent domain first originated in England when the King or Queen could take property at will and when nobody had any rights."

Levin said, "In the United States, when we developed our constitution some 220 years ago, we took the concept of eminent domain as a power, but limit the power of the federal government and give those powers to the states. The only place there is an actual discussion is in the Fifth Amendment when it says no property shall be taken for public use without just compensation."

He explained that sometimes people refer to eminent domain as condemnation, but he said that carries with it the connotation that the property is blighted in some way, or a building is unsafe. But, "eminent domain," he said, "is much more than that." He said, "In New York State the power of eminent domain is in the state constitution to exercise the power to take private property for public use. The government can take property even though the owner is not willing to sell it. There is a statute called the Eminent Domain Procedure Law which spells out in great detail the process by which it gets done. For the much part any litigation about this law is usually fruitless because it just points out something the government has to do over and they do that and then take the property anyway."

Levin continued, "Eminent domain is essentially a government decision to take private property for a public purpose, and you will hear that phrase over and over again. There are limits on when and how the government does this. Ultimately, the courts do not second guess the wisdom or the merits of the decision because that is a political decision and any complaints about that do not go through the courts but through the political arena and that is why I am going to talk about the MTA."

He explained there are other statutes that have to be followed for eminent domain and the State Environmental Review Act is one. He said, "When anything has an impact on the environment this study must be done before any decision to take any property that has an impact. If that process is not done, that's a cause for a challenge."

He said the law that applies to this project is the Public Authorities Law in the State of New York that deals with the MTA and gives it various powers.

He said, "What we have in all eminent domain cases is one common key question. Is the taking of property that is proposed for a public purpose? It is not something that is put up for a vote. The government agency that proposes the taking is the one that gets to decide. The courts will eventually decide if it's a public purpose or a public use. When you look at the classic cases, the ones that the courts will spend only two seconds on are the ones where the government has claimed property to be owned for a public purpose. There is no condemning property to turn it over to a private owner. They are taking the property to turn it over to the government to own either temporarily or permanently. The examples given are military installations, government buildings, parking lots, public roads, railroads or public utilities. It would be hard pressed to make an argument that any proposal to take property to use as a railroad facility and the chances of the courts to rule that is not a public use is just about zero. The only thing the courts do in such cases is to look at the procedure to see that it has been followed correctly. To understand it more clearly read Title 11 of the New York Public Authorities Law, Section 1264, 1265 and 1267 that spells out exactly what the MTA can do."

Next up was Attorney Gutleber who spoke mainly about the compensation process.

He said, "The foremost principle is the concept of just compensation. Pursuant to both the United States and New York Constitution, a property owner is entitled to just compensation. The requirement states that the property owner be indemnified so that they are in the same relative position, as possible, as if the taking had not occurred."

He went on to say, "Just compensation, in its purest form, requires that the property owner be made whole by payment of the fair market value of the property valued at the date of the taking. The property owner will be compensated with damages to the real property that includes the land, building improvements, the building fixtures. There is no compensation for damages resulting in lost business. If only a portion of the property is taken, the property owner is entitled to indirect damages that may result in the diminution of the value of the remaining property. Another fundamental principal is that the property owner is entitled to fair market value taken at its highest and best use. For instance, if a single family owner, surrounded by all business property, can prove that there will be a change of zoning of his property to business, he can then claim the higher amount of compensation."

He continued, "The value of the property must be determined by an expert real estate appraiser. Initially, they will determine the amount of damages sustained and make an offer. The property owner may then accept or reject the offer, but may still file a claim for additional damages."

The entire seminar gave an insight to the residents of what they can expect to the process if and when the entire process gets underway.

However, since the LIRR or the MTA have not submitted any definite plans to the residents of the Village of New Hyde Park it is hard to come to any conclusion as to what is planned.

For further information or to keep in contact with the SOV group, please call 516-328-1171 or email the group at SOV.NHP@GMAIL.com.


New Hyde Park NY Illustrated News: http://www.antonnews.com/illustratednews