Eminent domain reform law would protect property owners
The Journal News
September, 6, 2010
By Jim Maisano & Tom Abinanti
The doorbell rang at the county legislator’s home one morning. On the doorstep was an elderly gentleman, tears in his eyes and clutching a handful of papers. “Please help me,” he said. “They want to take my home.”
In his hand was a proposed contract from the developer of a big-box store in New Rochelle for the elderly man to sign, to sell his house to the developer. The man was told, “This is a great offer and better than what you will get when the city takes it through eminent domain.”
Eminent domain — ask the average person what it means, and he is likely to think of the government taking property for a high public purpose — a school, park, highway or library. Taking the property of a private citizen is a serious matter and crosses into one of the founding principles of this country, that an individual’s private property is sacrosanct. Given the devastating power of eminent domain, there must be a true public purpose before even considering taking someone’s private property.
Unfortunately, over the past few decades governments have too frequently taken private property, and turned it directly over to private developers for shopping malls and luxury housing. This blatant misuse of eminent domain was upheld in a close vote of the U.S. Supreme Court in 2005 in the now infamous Kelo case. However, the Supreme Court made it clear in its decision that governments can certainly pass legislation that would prohibit such taking of private property for private development.
We read the Kelo case back in 2005 and immediately drafted a law for Westchester County to ensure that our government would not allow for such misuse of eminent domain.
In New London, Conn., in 2005, the city allowed eminent domain to be used to take dozens of private homes, including the now nationally famous “little pink house” of Suzette Kelo, for a proposed private development of corporate office space, residential units and retail stores. This development was intended to benefit Pfizer Pharmaceutical, and the city claimed the so-called public use was “economic development.” Remarkably, the large tract of land in downtown New London, where Kelo and her neighbors used to live, now lies desolate and vacant because the development was never completed and Pfizer decided to relocate its facility.
Following the Kelo case, municipalities had a green light to take private property for private use through eminent domain, utilizing this troubling rationale that the public use was economic development. These takings by governments were often done arm-in-arm with politically connected, private developers. Just like the man in New Rochelle, imagine the desperation of a private citizen with limited financial and legal resources trying to defend his or her rights and home against the goliath power of a municipality and a developer, with virtually unlimited financial and legal resources.
But the use and abuse of eminent domain following Kelo was a national wake-up call for new protections for private property owners. Forty-three states and many municipalities implemented new laws with new protections against the abuse of eminent domain. Unfortunately, New York state failed to do so.
Therefore, laws protecting private property owners in our state must be enacted at the local level. That is exactly what we are proposing — an eminent domain reform law that will protect private property owners in Westchester County, just like the man in New Rochelle.
Our proposed law will prohibit the county from using its powers of eminent domain to take private property for private use, or appropriating county funds for any project in any municipality in Westchester that uses eminent domain solely for economic development, like shopping centers, office space and residential housing. Our law certainly will allow the county to use eminent domain for traditional public uses, such as parkland. The county law, we believe, appropriately balances the need to protect private property owners from the devastating impact of the abuse of eminent domain and the need to facilitate projects that serve genuine public uses. We hope our colleagues, as well as the people of Westchester, will support this important law.
Abinanti, a Democrat from Greenburgh and a
candidate for the state Legislature, is majority
leader, and Maisano, a New Rochelle Republican and
candidate for state Supreme Court justice, is
minority leader of the Westchester Board of