N.Y. Court Ruling Raises Hopes on Eminent Domain

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Subj: N.Y. Court Ruling Raises Hopes on Eminent Domain
Date: 12/7/2005 11:06:30 AM Eastern Standard Time
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The New York Sun
December 7, 2005 Edition > Section: New York > Printer-Friendly VersionN.Y. Court Ruling

Raises Hopes on Eminent Domain

BY JULIA LEVY - Staff Reporter of the Sun

December 7, 2005URL: http://www.nysun.com/article/24070

Property owners angered by the Supreme Court's decision this year that the government can seize their homes and businesses received a psychological boost when a federal appeals court ruled that a New York village had overstepped its eminent domain authority.

[At the same time, the town of Riviera Beach in Florida moved to seize 6,000 homes. Story, page 4.]The U.S. Court of Appeals for the 2nd Circuit on Monday ruled that the village of Port Chester, N.Y., failed to properly alert a New York businessman of his right to challenge an eminent domain decision before it seized his four buildings on Main Street. It then gave a private developer the green light to erect a Stop & Shop parking lot where his four office buildings had stood.

The decision, which came after five years of litigation, doesn't mean customers will be forced to stop scouring the aisles of the new Port Chester Stop & Shop anytime soon. Nor does it mean that the plaintiff, William Brody, necessarily will be awarded damages.

It is, however, a warning to local governments tempted to take private property without properly notifying the people who own it, as required by the new state eminent domain law passed last year.

The ruling itself does not challenge the Supreme Court's extension of the powers of seizure, but the lawyer representing Mr. Brody said the ruling marked a victory for people looking to reform eminent domain laws in New York and across the country."

Right now, the government holds all the cards, and the private citizen holds none," the lawyer, Dana Berliner, said. "This is an effort to restore some of the fairness to the process."

Ms. Berliner, a senior attorney at the Virginia-based Institute for Justice, said: "I think it's such a fundamental right that I can't believe any court would rule that someone wasn't entitled the notice. I'm incredibly happy because this why we brought it five years ago."

Ms. Berliner said current law in New York is far better for property owners than the law in 1999, when the village of Port Chester ran a legal notice in the newspaper, which was the only way Mr. Brody would have known his property was threatened by a sweeping economic development project.

The new law, which was championed by Assemblyman Richard Brodsky and was signed into law by Governor Pataki in September 2004, requires the government to notify property owners by mail or delivery if their property is at risk of being seized by eminent domain. It also requires the government to alert New Yorkers that they have only 30 days to challenge the condemnation.

The decision reached this week called the change in state law "a wise policy choice.""This shows you that I was ahead of my time," Mr. Brodsky said yesterday in a telephone interview.

"It's always nice to have the court of appeals say you did the right thing."The Assembly member, who is fighting now for further reforms of eminent domain, said, "People have a right to really actually know when the state's trying to take their property, and they have the right to try to protect themselves."

While the decision was a partial victory for Mr. Brody, who did not return requests for comment yesterday, it was not a total victory.Mr. Brody argued that the notice of condemnation should tell property owners not only that they have 30 days to challenge the decision but the procedures for challenging the condemnation. The ruling said that level of detail would not be necessary.

Mr. Brody also argued that due process requires "a full adversarial hearing" with the opportunity to call and cross-examine witnesses before a neutral arbiter. The court found, though, that due process requires no such thing.

The ruling also rejected Mr. Brody's claim that property owners are entitled to hearings before governments decide to use eminent domain. It explains: "Such a rule would impose an impossible burden on the contemnor and would represent an unwarranted judicial arrogation of the legislature's power to condemn."

The lawyer representing the village of Port Chester, Alan Scheinkman, viewed this week's decision as a victory for his side. "They lost on most of their claims," he said.

"His claims have been whittled down, and whittled down and whittled down and the project has been allowed to move forward. At best this is a technical Pyrrhic victory for Mr. Brody."In the next phase of the case, likely to begin early next year, the district-level court will decide if Mr. Brody is entitled to any damages.December 7, 2005 Edition > Section: New York > Printer-Friendly Version


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Subj: Fla. Town Wants Eminent Domain; Some Residents See Pain
Date: 12/7/2005 11:10:23 AM Eastern Standard Time
From: tenant@tenant.net
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The New York Sun; Date:Dec 7, 2005; Section: National; Page:4

Fla. Town Wants Eminent Domain; Some Residents See Pain
By JOHN-THOR DAHLBURG � Los Angeles Times

RIVIERA BEACH, Fla. � It�s across the inlet from Palm Beach,but this
town � mostly black, blue-collar, and with a large industrial and warehouse
district � could be a continent away from the Fortune 500 and Rolls-Royce set.
But Riviera Beach�s fortunes may soon change.

In what has been called the largest eminent-domain case in the nation,
the mayor and other elected leaders want to move about 6,000 residents,
tear down their homes, and use the emptied 400-acre site to build a
waterfront yachting and residential complex for the well-to-do.

The goal, Mayor Michael Brown said during a public meeting in
September, is to �forever change the landscape� in this municipality of
about 32,500. The $1 billion plan, local leaders have said, should generate
jobs and haul Riviera Beach�s economy out of the doldrums.

Opponents, however, call the plan a government-sanctioned land grab
that benefits private developers and the wealthy.

�What they mean is that the view I have is too good for me, and should
go to some millionaire,� Martha Babson, 60, a house painter who lives near
the Intracoastal Waterway, said.

�This is a reverse Robin Hood,� state Rep. Ronald Greenstein said,
meaning the poor in Riviera Beach would be robbed to benefit the rich. Mr.
Greenstein,a Coconut Creek Democrat,serves on a state legislative committee
making recommendations on how to strengthen safeguards on private property.

With many Americans sensitized to eminent-domain cases after a
muchdiscussed ruling by the Supreme Court in June, property-rights
organizations have been pointing to redevelopment plans in this Palm Beach
County town as proof that laws must be changed to protect homeowners and
businesses from the schemes of politicians.

�You have people going in, essentially playing God, and saying
something better than these people�s homes should be built on this
property,� Carol Saviak, executive director of the Coalition for Property
Rights, based in Orlando, said. �That�s inherently wrong.�

�Unfortunately, taking poorer folks� homes and turning them into
higherend development projects is all too routine in Florida and throughout
the country,� Scott Bullock, a senior attorney for the Institute for
Justice, based in Washington, said.�What distinguishes Riviera Beach is the
sheer scope of the project, and the number of people it displaces.�

In June, a divided U.S. Supreme Court approved the plan of New London,
Conn., to force some homeowners to sell their properties for a private
development that was supposed to generate more jobs and tax revenue.

That ruling has led to moves in Congress and at least 35 states, including
Florida, to restrict the use of eminent-domain seizures of private property.

In Florida, the law allows local officials to take private land for
redevelopment if they deem it �blighted.� In May 2001, a study conducted
for the city found that �slum and blighted conditions� existed in about a
third of Riviera Beach, and that redevelopment was necessary �in the
interest of public health, safety, morals, and welfare.�

A skeptical Ms. Babson, who lives in a single-story, concrete-block
home painted aqua that she shares with parrots and a dog, did her own
survey. For three months, she walked the streets of Riviera Beach
photographing houses classified as �dilapidated� or �deteriorated� by
specialists hired by the city.

The official study, she said, was riddled with errors and
misclassifications. Lots inventoried as �vacant� � one of 14 criteria that
allow Florida cities or counties to declare a neighborhood blighted �
actually had homes on them built in 1997, she said. One house deemed
�dilapidated,� she found, was two years old.

Rene Corie has lived for nine years in a custard-yellow home near the
Intracoastal.When the house was earmarked for acquisition under eminent
domain four years ago, the 56-year-old seamstress became so depressed she
couldn't put up her Christmas tree. She and her husband decided to fight
City Hall in order to keep their home,or at the least be paid a fair market
price for it.

�We tried to elect a new mayor. We went around to churches. We stood
on street corners with signs,� Ms. Corie said. �When we got home from work,
me and David would get into the truck and go door to door and all day
Saturday and Sunday.�

Ms. Corie said she could be served at any time with another letter of
acquisition for the house and the double lot it sits on.�My home is no
longer my own,� she said.

Mayor Brown and Floyd Johnson, executive director of the Riviera Beach
Community Redevelopment Agency, did not respond to repeated requests from
the Los Angeles Times for an interview. The redevelopment agency�s Web site
says the plan will �create a city respected for its community pride and
purpose and reshape it into a most desirable urban [place] to live, work,
shop, and relax for its residents, business and visitors.�

In past interviews, Mr. Brown has said his city was in dire need of
jobs, and that if officials weren�t allowed to resort to eminent domain to
spur growth, Riviera Beach could perish.

The redevelopment project designed to bootstrap Riviera Beach to
prosperity is supposed to take 15 years. It involves moving U.S. Highway 1
and digging an artificial lagoon to serve as a yacht basin.

In September, the City Council chose a joint venture between a New
Jersey-based yacht company and a builder of condominiums in Australia to
serve as master developer. The developer, Viking Inlet Harbor Properties,
and the city now must agree on a contract.

Residents affected by the plan are supposed to be eligible for new
homes elsewhere in Riviera Beach and compensation for business damages. But
the uncertainties have been maddening for some.

For 25 years, Bill Mars has sold and serviced luxury sportfishing
boats in Riviera Beach. He hasn�t been told yet, he said, whether a place
in the redevelopment zone has been kept for him.

Under the plan, his sales and service center is supposed to make way
for an aquarium. �If you look at our business, we�re one of the shining
stars of Riviera Beach,� Mr. Mars said. �Yet no one has come to us to say,
�We�re going to take care of you and relocate you.�� That despite the
plan�s incorporation of a �working waterfront,� including boat sales and
repair.


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