Wednesday, January 6, 2010

NY Senate hearing on eminent domain: Should Avatar be required viewing for all NY Senators?


The Senate Standing Committee on Corporations, Authorities and Commissions, chaired by Senator Bill Perkins, conducted a public hearing yesterday (Tuesday, January 5, 2010) on eminent domain abuse in New York. The hearing entitled "Unconstitutional: What the Appellate Division’s Eminent Domain Ruling Means for the Columbia Expansion," focused upon the recent Appellate Division ruling against the Empire State Development Corporation (ESDC) in the proposed condemnation for expansion of Columbia University, Kaur v. New York State Urban Development Corporation, decided December 3, 2009. (See the following blog commentaries on this decision - Atlantic Yards Report, Inverse Condemnation and Charles Bagli on the New York Times blog here.)

OCA Member and New York eminent domain attorney, Michael Rikon was invited by Senator Perkins to speak at yesterday's hearing. The transcript of his testimony is provided below. Mr. Rikon makes a compelling argument in favor of reforming New York's eminent domain procedures, employing the recent blockbuster film Avatar as an analogy for how eminent domain works in New York State. Additionally, Rikon argues that NY's Eminent Domain Procedure Law adopted in 1977 "requires drastic revision and should include the right to a jury trial, something that exists in the other 49 states."

Testimony of Michael Rikon
Goldstein, Rikon & Rikon, P.C.

Thank you Senator Perkins for your kind invitation.

Avatar is a fantastic movie, but I wonder if I am the only one who left the theater thinking that it was a story about eminent domain abuse.

Maybe it is because I have been handling condemnation cases for 41 years, or maybe it was Parker Selfridge, the character, who explains why it is necessary to evict the Navi from their home site on Pandora. "This is why we're here, because this little gray rock sells for 20 million a kilo."

Perhaps, it was something Jake Sully said, "they've sent us a message. . . that they can take whatever they want. Well, we will send them a message. That this ... this is our land."

To me and, unfortunately, I have seen this time and time again, this is how eminent domain works in New York.

If we substitute Mayor Bloomberg, or Bruce Ratner, or Columbia University for Parker Selfridge and substitute Daniel Goldstein, Jerry Antonocci, Bart Didden, or Nick Sprayregan for Jake Sully, one can understand the analogy.

Too bad the New York Times can't see it. In an editorial, it called the decision of the Appellate Division, First Department in the Columbia University proposed condemnation, misguided. The newspaper called the opinion "a weakly reasoned decision" which was "completely out of step
with eminent domain law."

I read the editorial several times and could not find any disclosure that the New York Times owns half of the building with Forest City Ratner (see fn. 1) where its headquarters is located on 8th Avenue between West 40th and West 41 st Street. It is outrageous that the newspaper that boasts it publishes, "all the news that is fit to print" would be so dishonest and biased in favor of taking private property to give to another owner and fail to disclose such a conflict.

Kaur v. New York State Urban Development Corporation, the December 3, 2009 decision held that "the record overwhelmingly establishes that the true beneficiary of the scheme to redevelop Manhattanville is not the community that is supposedly blighted, but rather Columbia University, a private elite education institution. These remarkably astonishing conflicts with Kelo (Kelo v. City of New London) on virtually every level cannot be ignored, and render the taking in this case unconstitutional. "

This is the same New York State Urban Development Corporation that condemned and evicted the private owners for the New York Times headquarters.

I also found it strange that a newspaper would fail to comment on the "evidence raising questions of bad faith and pretext" regarding the New York State Urban Development Corporation's failure to comply with the Freedom of Information Law. Can you imagine what the Times would do if one of its F.O.I.L. requests were subject to bad faith and pretext?

The abuse of the power of eminent domain must stop. The power of eminent domain is the most awesome grant of power under the law of the land.

The New York State legislature must curb this power and should start with the creation of an eminent domain commission to study and revise the law, something recommended long ago by a blue-ribbon committee created by the New York Sate Bar Association.

Blight must be defined and not left to an abstract definition to be filled in by a hired gun.

Public use must be re-defined to mean what the United States and New York State constitutions intended.

The legislature must join the 43 other states that already curbed Kelo v. City of New London.

Public authorities and public benefit corporations must be accountable for their decisions to exercise the power of eminent domain.

The Eminent Domain Procedure Law adopted in 1977, requires drastic revision and should include the right to a jury trial, something that exists in the other 49 states.

Thank you.

fn 1 The developer of the Atlantic Yards project.

Rikon is not alone is seeing the correlation between Avatar and eminent domain. Stephen Kinsella writes in his 12.21.09 commentary Avatar is Great and Libertarian, "at its core it was very libertarian: it was about a group of people (the Na’vi) defending their property rights on the world Pandora from aggressors." Kinsella further argues against opposing commentaries, "the plot is about property rights. In particular, the property rights of the Na’vi, in an established tree-city that they have clearly homesteaded...They [the Na'vi] even have a sophisticated homesteading technique worked out for ownership of the wild."

For more on yesterday's Senate hearing see Norman Oder's Atlantic Yards Report 12.30.09 post and 01.05.10 post.

1 comment:

Chris said...

Excellent testimony and tutorial on eminent domain by Michael Rikon. He is also correct in his critique of The New York Times hypocrisy as it walked away from its "brand promise."

That is part of the seismic challenge faced by the traditional news media today.

Private property owners facing the threat of eminent domain quickly learn that they are not standing on a level playing field legally, economically or politically.

The power of eminent domain brings with it a sense of entitlement. Property owners are merely an obstacle to be swept aside — when, in fact, they possess the key asset coveted by government and the corporation.

But property owners can fight back. Our two-year battle against Houston-based Spectra Energy which seized our property rights for an underground gas storage field led to the development of a website which has begun to attract whistle blowers inside the energy industry. We are collaborating and helping property owners in many states. For info, visit the site: http://www.spectraenergywatch.com/blog/

By the way, our new neighbor, Spectra Energy, has received two Notice of Violations for “unlawful conduct” over the past two months related to emergency shutdowns and emissions at its storage field in Bedford County, PA. Reports of contaminated water supplies are on the rise since they began operations.

Like Kelo and Atlantic Yards, the ripple effects of eminent domain are never over. Nowadays, government defines itself by its "taking" power -- whether property rights, assets, or control of choices.