Eminent Domain abuse is nothing more than theft - JuniperCivic.com
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Eminent Domain abuse is nothing more than theft

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Eminent domain abuse has become more common since the Kelo decision.

OPINION

The letter to City Council Members being circulated by the Flushing Willets Point Corona Local Development Corporation sounds like ad copy from a real estate brokerage firm. It includes a roster of names that support the taking of private property from one party and giving it to another. I have to assume that many of the signatories to this letter do not understand The Fifth Amendment to the United States Constitution nor are they familiar with the fact that since the infamous 2005 U.S. Supreme Court 5-4 decision in Kelo vs. The City of New London that 42 States have amended their state constitutions to prohibit the taking of private property from one owner to give to another private owner to develop for private use to increase the tax base.

However, the present and former politicians that put their name on this letter have jeopardized their good name and their own political career. As a matter of record, Claire Shulman and Helen Marshall long ago should have been staunch advocates of getting the necessary funds from the City to provide the essential services and amenities that the taxpaying businesses at Willets Point deserved. Indeed, the City has caused the very blight that they complain about, a blight that has encumbered the growth of private businesses. And, despite the City's abject neglect the 225 businesses still employ over 1300 taxpayers.

The May 14, 2007 Daily News article entitled "Much is Hanging on Bridge" refers to the process of eminent domain that will be taking place when the new Kosciuszko Bridge project commences. And the May 3-9 Queens Tribune featured an article displaying the new mega development that would replace the junk-yards and small business that are located in Willets Point through the exercise of eminent domain and the City's authority to remove blight.

The legal ramifications of eminent domain are far-reaching, costly, time consuming and, at times, unfair. And, the 2005 U.S. Supreme Court's 5-4 decision in Kelo vs. the City of New London which affirmed the City's authority to take Kelo's private property under the misguided concept and interpretation of the word "blight" (according to a 1963 Webster's Dictionary one of the connotations of the word "blight" is "anything that destroys, prevents growth, etc." [slums are a blight on a city]) and hand it over to a developer to build condos and associated amenities threaten everyone's property. As a matter of fact, it threatens those who rent or lease property that may be condemned.

The definition of "eminent domain" according to Black's Law Dictionary is the power to take private property for public use by the state, municipalities and private persons or corporation authorized to exercise functions of public character. In the United States, the power of eminent domain is founded in both the federal (Fifth Amendment) and state constitutions. Eminent domain is the highest and most exact idea of property remaining in the government, or in the aggregate body of the people in their sovereign capacity. It gives a right to resume the possession of the property in the manner directed by the constitution and the laws of the state, whenever the public interest requires it. The process of exercising the power of eminent domain is commonly referred to as "condemnation" or "expropriation."

Abuses of Eminent Domain

In recent decades, there has been growing concern about the manner in which some states and units of government exercise their power of eminent domain. Some governments appear inclined to exercise eminent domain for the benefit of developers or commercial interests, on the basis that anything that increases the value of a given tract of land is a sufficient public use. Critics respond that this is absurd, and that there are few properties, no matter how upscale, which could not be made more valuable if developed in a different manner. They also note that if a developer is unable to purchase the property on the open market, it is unlikely that the landowners will truly be offered the value of the property through condemnation proceedings. The governmental response to that point is that the law of eminent domain arose from the experience that some property owners are unwilling to negotiate a reasonable sale price, and such unreasonableness should not provide a basis to extort an above-market price or to prevent the completion of a public project.

For example, in one case a town wished to exercise eminent domain over a residential neighborhood, so that an upscale condominium development could be built on that land. To advance that goal, they defined any home within the neighborhood as "blighted" if it did not have three bedrooms, two bathrooms, an attached two-car garage, and central air conditioning. The homeowners challenged the definition in court, and were ultimately successful in fighting the municipality's efforts to take their homes.

Historically the clause in the Fifth Amendment to the U.S. Constitution, "nor shall private property be taken for public use without just compensation" has been synonymous with used by the public. The building of roads, bridges, schools, libraries, post offices or other public projects was an acceptable and understood interpretation of the Fifth Amendment. However in recent times the concept of a blighted area or slum has been extremely blurred and as noted by Mayor Cain of Lakewood Ohio, "Blight is now a statutory term and has nothing to do with how well your house and your neighbor's house are maintained. The question is whether or not that area can be used for a high or better use." Governments are always thirsty for more tax revenue, and when they have the power to quench their thirst through eminent domain no one's home, business or church is safe. When real estate developers can use the government to act as their agent to take private property and give it to them to create an area with a higher tax base, the government has manifested the most evil, insidious power of eminent domain.

In New York City, under the Bloomberg administration, the evil aspect of eminent domain is thrusting itself into every neighborhood in the City from Atlantic Yards in Brooklyn to Sunnyside Yards and the proposed Willets Point Project in Queens. And let us not forget Manhattan where New York State forced a man to sell a corner that his family owned for more than 100 years. And, what went up – a courthouse, a school? Nope, the new New York Times Building. This was an instant case; where the original owner's rights, all the investments, and the expectation that the original owner's children would inherit, all disappeared.

I believe that most knowledgeable people would agree that once the shroud of eminent domain cast its shadow over any neighborhood the concept of fair market value or just compensation is a fraud. The Atlantic Yards project in Brooklyn, which includes building a new stadium for the New Jersey Nets basketball team, is an example of theft.

Another current project at Willets Point, which would also take private property from one and give it to another, is a further example of theft. Conversely, the proposal to build a new Kosciuszko Bridge is much needed for the public good; therefore the judicious use of eminent domain to move this project forward is correct. Whether or not those affected by the action receive just compensation will be subjective in several cases. The LIRR's Sunnyside Yards project, which is deemed necessary to support the eastside access project falls into the used by the public category. Here again it is imperative that the judicious use of eminent domain is exercised and that the MTA does not take a broad brush approach in its application.

Clearly, Mayor Bloomberg lives in a very different world, not a world where there are no empty buildings, not a world where even credit worthy people cannot obtain a mortgage, not a world where the monthly bills are of great concern, not a world where every day retail shops are shutting their doors, It is rather ludicrous that on one hand Mayor Bloomberg is still pushing the theft of Willets Point at a cost of $400 million to the taxpayer and on the other hand he is closing publicly funded senior centers.

The U.S. Supreme Court decision in Kelo vs. The City of New London is on a par with the infamous March 1857 U. S. Supreme Court Dred Scott Decision, wherein the court declared that no slave or descendent of a slave could be a U.S. citizen. I will close this introduction into the darkness of eminent domain with a quote from George Sutherland, Associate Justice of the United States Supreme Court 1921:

"The three great rights are so bound together as to be one right. To give a man his life but deny him his liberty is to take from him all that his life is worth living. To give him his liberty but take from him his property which is the fruit and badge of his liberty is to still leave him a slave".

I strongly urge State Senator Serphin Maltese to remove his name from this ignominious letter and immediately reach across the aisle in the NYS Senate to propose and pass legislation that would bring NYS in line with the 42 States that have amended their constitution to prohibit the taking of private property that is not for public use.