Property Rights Foundation of America®

Presented at the
Tenth Annual National Conference on Private Property Rights
Property Rights Foundation of America, Inc.
Albany, N.Y. - October 14, 2006

"Update on Eminent Domain in the New York State Legislature"

Jim Malatras
Legislative Director, Office of Assemblyman Richard L. Brodsky, New York State Assembly

It is a pleasure to be back as a member of Assemblyman Richard Brodsky's legislative team. I want to thank everyone on the panel including Carol, who is an invaluable treasure, as well as my now long time eminent domain panel-mate, Jim Morgan, who has done yeoman's work in the field of eminent domain rights.

This year I want to briefly focus on what we have accomplished and have yet to accomplish in New York. While many of you are out-of-staters, New York's politics and our experiences can, I hope, yield fruitful knowledge for those in other parts of the country. The past several years have been that of progress and a little frustration, but as a whole, the winds of eminent domain reform remain strong. Assemblyman Brodsky has taken the reform effort very seriously. We have held hearings across the State, called on experts to help draft and devise legislative language and have worked non-stop to form important coalitions to move eminent domain legislation forward.

Your work, too, has been invaluable over the past two years. At our legislative hearings folks like Carol and Dr. Mindy Fullilove have passionately and successfully testified about moving forward with real reform and have helped frame eminent domain reform as a rights issue which can be simply and succinctly understood by most citizens.

During this past legislative session, three bills in particular have gained significant momentum and with the help of various groups and individual activists they will continue to move through the legislative process and hopefully be enacted into law.

The first legislative proposal was born from this very conference two years ago, when Craig Call, Utah's Property Rights Ombudsman spoke to us. Last year Assemblyman Brodsky introduced the first-of-its kind bill in New York to create an Eminent Domain Ombudsman. This important bill would create an office within the Department of Transportation that would solely focus on informing citizens of their rights during a condemnation process. In addition, the Ombudsman would:

I think it is appropriate to thank Carol here because she was the predominant reason why the legislation was introduced in both the Assembly and Senate in the first place and, better yet, Carol provided invaluable suggestions about how we should craft the Ombudsman Law.

The second bill is a bill I briefly discussed last year called the Eminent Domain Reform Act. Also sponsored by Assemblyman Brodsky, the Eminent Domain Reform Act calls for many important procedural and substantive changes including:

The final piece of legislative reform would be the creation of a temporary commission to develop a plan for eminent domain reform. This past legislative session, Assemblyman Brodsky and Senator Jim Alesi came very close to getting the bill passed, but some last minute language issues prevented its passage. This bill remains an important part of our reform effort because it would require a diverse cross-section of New Yorkers to sit on the commission. That would openly and fairly provide the opportunity to get at some real reform. What's better, is that this model has worked in the past. In the early 1970s, Governor Rockefeller's Eminent Domain Commission helped pave the way for the modern law which was a great improvement over its predecessor. This, we hope, would accomplish similar goals.

The tide of reform continues to grow in New York as it has elsewhere. Currently, we have over forty Assembly colleagues that have co-sponsored our reform package and, just as important, all of our legislative package has majority Senate sponsorship, which greatly increases its chance for success.

Just to illustrate how far we've come, this past summer, the New York State Bar Association issued its Report on Eminent Domain. Composed of a diverse group of attorneys throughout the State, it issued a set of eight recommendations. While we hardly agree with all of them, I think it is important to note that the Bar did, however, agree with FOUR of our legislative positions.

Though the Bar's Report is not perfect, it highlights that we are moving mountains, albeit slowly, and forming broad coalitions to bring real and substantive eminent domain reform.

You may think that this is simply moving too slowly. However, New York is a big state with millions of people and interests. It's much harder to come to a consensus here, with all of its diversity, than in most other states. Feel vindicated, however, about what you believe because eventually reform does come. I will note that our collective patience and effort yielded a significant reform of the State's abysmal eminent domain notification process. In that small, but important fight, we even had to overcome a gubernatorial veto, but we held firm and prevailed.

Just last year our fight for notification reform was applauded by the Second Circuit Court of Appeals who threw out the former notification process as "unconstitutional" and called our joint reform effort "a wise policy decision." We will continue to fight for "wise eminent domain policies" and by looking out into this crowd of friends and fellow activists here, I definitely know you will too. Now is the time where New York is about to undergo a significant political realignment and we will continue to fight the good fight to make sure eminent domain reform continues to be one of the State's top priorities.

Thank you very much.

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