Property Rights Foundation of America®

Speech from the Eighth Annual New York Conference
on Private Property Rights
(2004)


Eminent Domain Law
Property Rights Foundation Conference
October 23, 2004
Office of Assemblyman Richard L. Brodsky
Presented by Jim Malatras, Legislative Director

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Thank you. It is a pleasure to be here with you today. As you can see I am not Assemblyman Richard Brodsky. My name is Jim Malatras and I am the Assemblyman's Legislative Director. Unfortunately, Assemblyman Brodsky had to deal with a family emergency and could not join you today. I hope that I will be an adequate pinch hitter, but let me forewarn you that I do not possess the Assemblyman's oratory skill.

I'm here to briefly speak to you about our new successful law that reforms the State's eminent domain process. Before I start, I would like to thank Carol LaGrasse for her support and expertise on eminent domain and thank the Property Rights Foundation for inviting our office to participate and share our views on eminent domain law in New York. I would also like to thank Dr. Fullilove and Mr. Alpert for participating on the panel and thank Mr. Morgan for chairing it.

Over the past few years an interesting coalition has formed to restructure New York's eminent domain laws. Historically, the core proponents of such reform have tended to stress the decentralized and the reduced role of government, i.e. a non-activist role of government. Assemblyman Brodsky, as well as other groups, on the other hand, sees the importance of government in actively providing education, environmental protection and health care.

Common ground, however, has merged a diverse group of people across the ideological spectrum. The common ground, we believe, is the importance and duty to defend individual liberties. Assemblyman Brodsky clearly sees the need to clarify and control the power of government when governmental policies unduly infringe upon the individual liberties of its citizens. In any instance, whether it is the operation of public authorities, the way the legislature and executive operate, or the condemnation of property by municipalities, a fundamental democratic right is the right of citizens to know what their government is doing and to be treated equally and fairly.

One area where government does not operate openly or treat people fairly and equally has been in the area of eminent domain. Eminent domain serves an important public function, but the original purpose, use and execution have been distorted. The purpose has been distorted which is clearly evidenced by the New London case now before the U.S. Supreme Court. As many of you know the New London case surrounds a takings project in Connecticut where the public purpose has been redefined to allow eminent domain to be used to favor one private interest over another. Many groups, from the Property Rights Foundation to the Institute of Justice have challenged this to regain the original purpose of the law.

Another problem has been the use and execution of eminent domain by government agencies and this is the focus of Assemblyman Brodsky's law.

Before I speak about the Assemblyman's reform effort, some background is beneficial. With respect to process, New York's eminent domain law is peculiar. When a municipality or government agency considers a public project that includes condemning private property, the agency or municipality must hold a public hearing. After the public hearing the agency or municipality issues a report called a "determination and findings" which state, among other things, that the condemnation proceedings is for a public purpose. Amazingly, the agency or municipality does not have to give the affected property owners the timeframe for taking the property. The property could be condemned in 1-year, 5-years or 10-years. On the other hand, property owners only have meager 30-days after the issuance of the report to challenge the potential or real condemnation. After that they are shut out of the process.

More amazingly is before Assemblyman Brodsky's law went into effect, the government agency or municipality did not have to directly give property owners notice. Formerly under the law, government agencies were only required to give notice of public hearings associated with state acquisition of land under eminent domain by publishing a notice of such hearing in an official local daily newspaper in at least 5 successive issues. Where there was only a local newspaper circulated weekly, two successive weeks of posted notification was deemed sufficient.

Additionally, the eminent domain procedure law formerly required the state to release within 90 days after the public hearings, the "determination and findings" specifying the public benefit of the project, the approximate location of the project, and the general effect of the proposed project on the environment and residents of the locality. Notification of a brief synopsis of the "determination and findings" was only required to be published in the local newspaper with the same publication requirements as the notice of public hearing.

The former notification of takings by government was not a fair or appropriate process and real people were caught in the middle. Let me give you a concrete example. In 2000 in Port Chester, NY —which is a village in Westchester— Bill Brody, a local businessman, was notified that the Village was about to condemn four of his properties. To his surprise, the actual decision to condemn his property had occurred in 1999. Mr. Brody's only fault was that he missed the small-font typeface notice in the legal section of his local newspaper and therefore missed his only chance to legally challenge the condemnation proceeding. By the time Mr. Brody attempted to seek redress, it was too late and his buildings were condemned and demolished.

Mr. Brody's struggle was one of the reasons that led us to introduce a bill to adequately notify citizens, like Mr. Brody of condemnation proceedings.

Assemblyman Brodsky's new law requires government agencies do better. Now government agencies must personally notify all people affected by condemnation proceedings by first class mail advising them of the proceeding. More than this commonsense right of notification, the Assemblyman's law adds other essential protections. Not only does the law now require that government agencies personally inform property owners; the law requires that property owners be told their procedural rights, i.e. their rights of judicial review. The law also requires that the government directly furnish a written synopsis of the determinations and findings and other legal information.

For two straight years the NYS Legislature unanimously passed Assemblyman Brodsky's bill requiring agencies and municipalities to properly notify property owners of condemnation proceedings. Interestingly, we faced opposition to this commonsense reform. Governor Pataki vetoed the initial version. The Governor vetoed the bill even though it was passed with unanimous bipartisan support in both houses, support from diverse groups on every part of the ideological spectrum and wide support of the public. To the puzzlement of many, Governor Pataki vetoed the original bill citing excessive costs. We, as did our Senate counterparts, believed that the original bill was a good bill and any such costs were justified.

Assemblyman Brodsky, however, did not let the veto stand. Eminent domain reform was a central part of the Assemblyman's legislative agenda in 2004 as it was in 2002 and 2003. We diligently worked to overcome the Governor's objections, while preserving the integrity of the reform. This effort has paid off. As of September of this year we have added critical notification provisions to the eminent domain law.

Now, instead of antiquated notification buried in the legal sections of newspapers, citizens are directly notified. Assemblyman Brodsky's leadership and support for eminent domain reform is part of his larger theory that government should be open and transparent to its citizens, especially when individual rights are at stake. This reform positively affects all New Yorkers and protects the rights of all citizens.

This law is not the end-all. More work can, and will, be done to bring commonsense and fairness into the State's eminent domain process. I'm glad that a year after the Property Rights Foundation had Dana Berliner, Senior Counsel of the Institute of Justice, speak on the deficiencies of eminent domain law in NY that improvements have been made. Assemblyman Brodsky will continue to work with diverse cross sections of people to continue to refine the law. Our office looks forward to the challenges that lie ahead. Once again, on behalf of Assemblyman Brodsky, thank you for inviting me to speak to you today.

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