SANDY DOES NOT JUSTIFY GROWTH OF EMINENT DOMAIN

Eminent domain is an extraordinary power of government, and it should be contained before it is abused. Private property rights should have protection equal or better than the prerogatives of government.

Eminent Domain has been brought into heightened consciousness since Super-Storm Sandy.  Following Sandy, there have been proposals from New York State Governor Andrew Cuomo for the State to buy from owners distressed seashore properties damaged by the storm.  This offer is coupled with measures that rebuilding does not take place along the coast out of concern for future home damage during coastal storms. What is voluntary at this time easily becomes mandatory, given government’s inclination for expanded prerogative. The mechanism for buying property along with a public interest in “clearing the coast” seems to give an opening for a slippery slope of eminent domain seizure of coastal properties.  For government, it would not be the first time they take such oily tack.

Eminent domain is called in Constitutional law an “incident of government”; it is not a “constitutional right”, per se.  Eminent domain is when any government takes private property and uses it for a “public use.” However, over the years, “public use” has evolved into permitting taking of property for “public purpose”: taking private property by government and giving it to another private entity, if that private entity’s use is for a “public purpose” superior to the former use. This exercise of eminent domain is recently known in the acquisition of Long Beach’s Superblock, in which the private property of private persons was taken and given to a private developer. In the case of the Superblock property, it is taking for public use and purpose.

The seizing government entity, of course, must pay the owner of the seized property market value of the property (at least for now.) Sometimes the value proposed does not meet expectations.  Sometimes the value to the private owner includes intangibles or speculation that skewers the governments offer as "reasonable or not." It is not a perfect system to say the least.  

The Supreme Court decision called Kelo v. The City of New London seems to have expanded the understanding of what the government can get away with taking. But Kelo also is very clear that States have the authority to govern the way eminent domain occurs within its own state. Where Kelo ends, the State legislature begins.  Kelo is not a green light; it is a yellow light.

While eminent domain cannot be stopped, nor should it be stopped, it can and should be controlled.  This requires the State legislatures to set more exacting limits, such as: environmental impact studies, public hearings, statutory definition of “blighted property”, time periods to complete eminent domain proceedings, rights of first refusal to the property owner, and the limitation of what bonds can be approved to pay for compensation. 

The New York State legislature has been quiet over the years on eminent domain. It is unsure if our assembly representative even understands what eminent domain is. It is unsure if our senate representative cares enough to cross the Governor on something like eminent domain (which tends to “fly under the radar screen” of public interest until it “hits home.”) Let them know it is important. I support laws which will represent a thoughtful and constructive consideration on how eminent domain goes on in New York. 

In the meantime, I urge the City of Long Beach to be prudent in this use of extraordinary power of the state. I support the premise that private property and choice of where to live is superior to the esoteric interests of overreaching government over where one should live. This right of choice should not be bartered by an expansion of Eminent Domain.