Eminent domain not so eminent

Property ownership is the bedrock of our Constitution and economic system. But we have seen a lot in the news about the concept of “eminent domain.” From the proposed NYRI power line to the U.S. Supreme Court’s infamous Kelo decision, the spotlight has been turned on this hitherto obscure legal issue.

“Eminent domain” is the term given to the power of a nation or sovereign state to take, or authorize the taking of, private property for public use without the consent of the property’s owner, but awarding just compensation to the owner. Traditionally, this has covered the construction of roads, schools and public buildings – typical public uses.

Recently, revitalization efforts in many large cities have made use of the power of eminent domain through the municipality in order to accomplish a major redevelopment of an area. Public outcry over this use inspired several bills aiming to restrict eminent domain. In some cases, governments have been taking people’s property for economic development, justifying the taking of the property by arguing that the return to the government and economy would be greater with the proposed redevelopment.



In 2004, the state legislature enacted a law requiring personal or registered mail notification for property owners as part of a condemnation proceeding . Prior to enactment, the statute had required only that notification be placed in the legal sections of local newspapers, where they often go unnoticed.

What really set this issue off was a U.S. Supreme Court decision. In June 2005, the United States Supreme Court, in Kelo v. New London, ruled that New London, Connecticut acted within its powers in taking the land under discussion through eminent domain for public use; in this instance, specifically for economic development purposes. Opposition to the ruling – which was seen as an overly broad expansion of the government’s right to take private property under the guise of economic development –was immediate and nationwide.

Thirteen states considered legislation reacting to the Kelo decision in 2005 and 2006, and five states – Texas, Ohio, Alabama, Delaware and Michigan – enacted new laws addressing the matter.

In the wake of the ruling, during the fall of 2005, the senate and assembly held public hearings on the issue of eminent domain. Several pieces of legislation were introduced in order to provide increased protection for private property owners and to clarify New York’s own laws regarding taking land through eminent domain for economic purposes, including proposals to:

• Establish a Temporary State Commission on Eminent Domain to consider the procedural fairness of the current law and recommend any changes (S. 8390);

• Regulate the ability of certain utility companies to exercise the power of eminent domain (S. 8349-A, signed into law);

• Allow a party whose property was condemned 25 or more years previously, who is still using the property under the same conditions and for substantially the same purpose to reacquire the property (S. 7493-A);

• Mandate that eminent domain be exercised for economic development purposes only when the area of proposed economic development is a blighted area (S. 5936);

• Enact the Eminent Domain Reform Act, requiring the preparation of a comprehensive economic development plan for the use of eminent domain when the primary purpose is economic development and certain residential premises are to be acquired, and requiring municipal approval of the use of eminent domain in such cases (S. 5946-A);

• Mandate that eminent domain only be used for public projects; require that after any industrial development agency (IDA) approves the use of eminent domain, the county legislature must vote to determine whether or not to condemn the property, and mandate that a condemnor reimburse a condemnee for any relocation costs (S. 5938).

New York must review and revise our eminent domain laws to provide property owners with maximum protection – the rights for which our founding fathers fought and died.

Senator Seward’s office web site is www.senatorjimseward.com.

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