Still Looking for a Chance to Vote on Eminent Domain Abuse

Come election time we would like to think our votes make a difference on the issues we care about. Eminent domain abuse is one of the issues we very much care about since New York is likely the most abusing state in the nation. We would like to see reform. Critical to moving forward is having politicians who are paying attention to the issue.

The worst eminent domain abuse in New York is rooted in developer-driven transactions like the proposed Atlantic Yards megadevelopment and the Columbia University expansion. Because the same entities that drive these abusive transactions donate heavily to political campaigns (and to the questionable “charities” of Mayor Bloomberg and Brooklyn Borough President Marty Markowitz), politicians must consider that the political price they pay with the public by tolerating abuse outweighs the benefits of being cozy with the dark side of the real estate industry. Politicians know from polls that eminent domain abuse is extremely unpopular. The question is whether public passions on the subject keep the issue in the forefront of issues people consider important when then vote.

Control of the New York State Senate and Eminent Domain Reform

Today’s New York Times features an article about how the Republicans may lose control of the New York Senate: G.O.P. Forced to Defend State Senate After 70 Years of Dominance, by Nicholas Confessore. Not long before it folded, the New York Sun, more conscious of eminent domain abuse, ran an article, (Victorious Senate Democrats Could Target Eminent Domain, by Peter Kiefer, September 22, 2008) that said that if the Democrats take the State Senate, the Democrats could pursue eminent domain abuse reform. Essentially what State Senator Bill Perkins has begun with hearings on eminent domain abuse would be a seed that grows into actual legislated reforms.

Skepticism; Passion?

Atlantic Yards Report expressed skepticism as to how assuredly eminent domain reform would follow from Democratic dominance in the senate. See: Monday, September 22, 2008 Sun: eminent domain law reform may be possible (but don't hold your breath). Referring to the Sun article:

As the article details, however, neither Assembly Speaker Sheldon Silver nor Gov. David Paterson have expressed support for changes (though Paterson did in 2005, as a State Senator).

This is even though Atlantic Yards Report quotes Senator Perkins’ opinion that the issue is a passionate one: “I don't know of too many other issues where you have such diverse and pervasive outrage”

New York Republicans: Spare Effort?

The Times article states near its outset:

No effort is being spared by New York Republicans in the final days of this election season, which will determine whether they continue to control the State Senate, their only outpost of power in an increasingly Democratic state.

True? No effort being spared? Maybe not. Nowhere in the Times article is the subject of eminent domain mentioned. Of course, that could be a reflection of the Times’ of lack of passion for reform in this area. (The Times is, after all, a little bit pregnant on the issue, having benefitted from what some believe was eminent domain abuse to acquire the site for their new office tower.) More likely though, eminent domain reform just has not been pushed sufficiently to the forefront in the State Senate campaigns to get mention by most media. Noticing New York investigated the subject of eminent domain reform in the senate campaigns. It is something that could be getting a lot more attention. For the Republicans it was likely a missed opportunity.

Whose Issue?

We were intrigued by the Sun article reporting that the Democrats (or some Democrats) were seizing the mantle of eminent domain reform for themselves. Many would think that eminent domain reform should be a natural for Republicans. In the U.S. Supreme Court Kelo case, it was the conservative Republican appointees who perceived and criticized the potential for abuse. It was the Democratic court appointees who seemed the most willing to give Democrats and liberalism a bad name by blithely tolerating abuse when real estate developers throw their big-business weight around to drive these projects.

We decided to look more closely at the issue of eminent domain in the key senate races that were in the balance and at whether the Republicans were really ceding such a potentially potent issue to the Democrats. We contacted spokesmen for the respective campaigns that might effect a change of senate control and we contacted the majority and minority leaders of the state senate. With Republicans we reminded them that for many it would be surprise if the reform issue belonged wholly to the Democrats without the Republican testing the territory. For instance, we pointed out that Sarah Palin, interviewed on Fox News, had made a point that one of the Supreme Court decisions she most disagreed with was “Kelo vs. New London.” We noted that this seems like an easy and obvious pick during an election campaign, given the opinion’s 95% disapproval rating with the public. The Fox News interview with Palin gave her a chance to recover from her previous inability in a Katie Couric interview to say which Supreme Court opinions she disagreed with other than Roe v. Wade. (As reported in the Wall Street Journal, Palin’s ineptness as Mayor in handling a Wasilla real estate transaction to build a city hockey rink for her son to play in actually led to Wasilla using eminent domain and spending an extra $1.3 million more than would have been necessary otherwise.- Oh those “hockey-moms.”)

Majority and Minority Senate Leaders

Were the Republicans eager to claim the mantle of eminent domain reform for themselves? This is the statement we got from the office of Republican Senate Majority Leader Dean G. Skelos:

The issue of eminent domain has been the subject of debate, public hearings and legislation for several years. The Senate passed eminent domain legislation as recently as 2006 but the Assembly did not pass it. As for the political impact of this issue, the priorities of New Yorkers continue to be a stronger economy, job creation and tax relief. New Yorkers recognize that the Senate Majority has a very strong record on these issues as we passed the Governor's property tax cap plan and have been responsible for the state's programs to create high tech jobs throughout the state.

This hardly seems to be a rousing endorsement of reform. Converting this to a yes/no answer it seems to be a “No” to any interest in reform with “the priorities of New Yorkers continue to be a stronger economy, job creation and tax relief” carrying the day. We would actually suggest that a stronger economy and more jobs is what you get if eminent domain reform is implemented.

Does that throw those interested in eminent domain reform into the arms of the Democrats? Maybe “Yes” for a fairly subtle reason we will discuss in a bit, but the arms are not very welcoming. At least Senator Skelos’ office provided an answer to our question on where they stood. When given the same opportunity to provide insight on the Democratic position on eminent domain reform, the office of Democratic Minority Leader Senator Malcolm A. Smith formally declined to comment, notwithstanding an important election where the Democrats are working hard to take over the Senate.

Republicans, Upstate and Downstate, Rent Stabilization

One reason that New York State Republicans may not be as quick as national Republicans to align themselves with the cause of post-Kelo eminent domain reform is the way in which Republicans have come to rely upon the New York City real estate industry that has used the State Senate to fight for what it wants in terms of rent stabilization. Albany trumps local city governance when it comes to what happens in terms of rent stabilization. A lot of city money winds up flowing into upstate senate campaign as a result. (Bloomberg also gets involved in senate campaigns.) Noticing New York has a lot of reservations about the problems associated with the whole rent stabilization system, but if lack of eminent domain reform is another price we indirectly pay for rent stabilization then we are sad indeed.

Micro-level: Five Campaigns

We also thought we should look at the question of eminent domain reform on the micro-level in individual senate campaigns that will determine control of the senate. We looked at and called to speak to spokesmen for all of the following campaigns:

1. Brian Foley (D) v. incumbent Senator Ceasar Trunzo (R).

2. Joseph Addabbo (D) v. incumbent Serphin Maltese (R).

3. Joseph (“Baby Joe”) Mesi (D) vs Mike Ranzenhofer (R) (Picking up SD-61 in the Buffalo suburbs, held by the retiring Republican Mary Lou Rath.)

4. Rick Dollinger (D) v. incumbent Sen. Joe Robach (R)

5. Incumbent Bill Stachowski (D)- vs. Dennis Delano (R)

Although everyone had a couple of weeks to respond and many promised statements, we do not have much to report. (One Candidate, Republican Dennis Delano, did not even seem to have anyone ever answering phones at his campaign headquarters. If the messages we repeatedly left on the answering machine were ever picked up, the calls were never returned. Mr. Delano’s claim to fame and the way he apparently got onto the ballot is that he was a “Cold Case File” star.)

From the office of incumbent Democratic Senator Stachowski we were told the following:

The Senator doesn’t have a position on eminent domain reform. If the Democrats take the senate than Senator Perkins as head of his committee would be bringing the issue up in the senate at which time the Senator would consider what was presented and develop a position.

This position at least highlights the fact that a Democratic takeover of the senate would effectively serve to bring up the issue of reform as procedural matter. That would be a start and an improvement over other possibilities.

The office of incumbent Republican Senator Joe Robach informed us merely that the Senator would defer to the position of Majority Leader Dean Skelos (set forth above). They ascertained from us that we had gotten such a position. We suggested that it might not be great position to sign on to, but they did so without our reading to them what the position was.

Past Actions vs. Statements

We received no other statements of positions by any of the candidates though we might have if we had been more aggressive. However, information from past activity can be informative.

Eminent domain abuse is actually an issue in the Queens campaign of Democratic challenger Joseph Addabbo v. incumbent Republican Senator Serphin Maltese. The district in question includes Willet’s Point. Serphin Maltese signed a letter supporting the eminent-domain-abusing project. Joseph Addabbo, signed a letter opposing the redevelopment plan. One ought to presume that a Democratic victory in the race would lead to an important shift in the direction of reform.

Atypicality, Eminent Domain and a New York Times Editorial

The New York Times actually wrote an editorial about the use of eminent domain in the past by Democratic candidate Brian Foley, who is running in Long Island against incumbent Republican Senator Ceasar Trunzo. The editorial is interesting and worth thinking about. It is probably more interesting for what it says about the Times than for what it says about candidate Foley. The April 2006 editorial almost sounds like a different, much more cautious New York Times than we would expect on the subject of eminent domain:

Eminent domain, the ability of government to take private property for public use, is like any heavy-duty power tool: It can do a lot of damage if mishandled. But wielded cautiously and wisely, it can do much to advance the public interest.

* * * *

People are right to be on guard whenever government uses its power of eminent domain to transfer land from one private owner to another. The attachment to property rights runs deep, as the most recent Supreme Court decision on eminent domain vividly demonstrates. By upholding the right of the City of New London, Conn., to seize private homes for economic development, the court has provoked a nationwide scramble by state legislatures to refine and restrict their states' ability to exercise eminent-domain powers.

Yet the courts have long held that eminent domain need not always be restricted to public amenities like roads and bridges, and they have given governments wide discretion in deciding how to define a valid public use. If taking land for a private project provides a clear public benefit, if it is not done merely to make a private landowner richer or to discriminate against a specific class or group of people, and is a last resort when all other attempts at striking a fair deal fail, it can be justified.

(See: Long Island, Eminent Good Sense April 9, 2006)

Also fascinating and confusing is that in this case the New York Times is NOT speaking in favor of development. In a turnabout from the typical, the eminent domain in question was being used against developers to prevent development so that land could be used as farmland instead. The situation involves so many shoes being on the other foot that it is a good principle-testing exercise to consider. It is also so abnormal a situation that it makes it almost impossible to say what Mr. Foley’s principled position would be on eminent domain were he to be elected to senatorial office. (Mr. Foley was the Town Supervisor of Brookhaven, Long Island when dealing with the overdevelopment question that generated the Times editorial.)

Elevating Eminent Domain Reform’s Importance

It seems clear that the importance of eminent domain reform needs to be elevated as an issue. Even though Sarah Palin received play in the news by jumping on the bandwagon of Kelo objectors, eminent domain abuse reform was not a big issue during the current presidential campaign. Other issues will probably keep the McCain/Palin ticket from being elected. Though we nominated eminent domain abuse as a topic for discussion on Brian Lehrer’s “Thirty Issues In Thirty Days,” it wasn’t chosen. (See: September 8, 2008, Your Chance to Vote on Eminent Domain Abuse) Other issues the public considers more important took up the thirty slots with, for instance, energy policy taking up five slots (Alternative Energies/Carbon Footprint/Domestic Drilling/Nuclear Power/Renewable Energy) There were issues that related to eminent domain abuse without actually leading directly to a discussion of it. In this regard, four slots went to the following topics: Upholding the Constitution, Urban Affairs, Government Transparency, the Role of Government.

Will eminent domain reform get elevated in importance? If people call candidates and incumbents to ask their positions, this will happen. If the Democrats become the sole party in power in New York State, this will be particularly important during primaries and it will be all the more important to put pressure on incumbents. It may also be a way for principled Republicans running for office to regain the attention and respect of the New York electorate. On the flip side, Democrats in both New York and nationally must realize before it bites them that putting big-business real estate developers in the driver’s seat with the power of eminent domain at their private disposal is not good policy, liberalism or defensible democracy. People need to take every opportunity available to them to do things like signing onto the petition available on My Land is Mine, Nick Sprayregen’s website set up to fight expropriation of his land by Columbia University. Then there is the possibility of donations to organizations like Develop Don’t Destroy to make sure that lawsuits are funded and a high profile of effective opposition is kept.

MAS Addendum

The Municipal Art Society is overdue in coming up with principles to identify undesirable and unethical eminent domain, as we have previously commented:

A Digression: Precepts of Eminent Domain Abuse and MAS
Digressing briefly to mention something important. At the Monday night MAS evening event it was mentioned that MAS has not yet sorted out a set of principles it can offer to distinguish defensible eminent domain from eminent domain abuse. I think the task is well within reach. MAS has provided multiple excellent forums in which people have taken the opportunity to discuss questions in this regard. I think one only needs to start with the most basic precepts on the subject and build from there.

(See: Friday, September 26, 2008, Weighing Scale)

If nothing else, MAS could begin by ranking the sorts of eminent domain most commonly identified to be objectionable (developer-driven, no-bid, more destructive than creative, etc.) and those that are generally thought to be the most defensible (creation of publicly owned transportation infrastructure like Moynihan Station or parks).

A Billionaire’s Principles

A lot of the senatorial election contests on which control of the Senate will turn were upstate and Southern tier elections. One thing to consider: Billionaire Tom Golisano has stepped in with an interest in influencing elections of this kind. Mr. Golisano does not yet seem to have taken a position on the need for eminent domain reform. It is almost amazing that he hasn’t. His Responsible New York organization has a web site that sets forth Mr. Golisano’s concerns. The issues he has been championing are almost all things that eminent domain abuse tend to tie in with: no-bid contracts, special tax abatements and exemptions, lack of transparency, favoritism, inequitable distribution of assets, back-door borrowing, out-of-control authorities and special big-developer real estate interests. Wouldn’t it seem natural that members of either party that take up the cause of eminent domain abuse reform should be hoping for future help from Mr. Golisano and Responsible New York? (But OMG, can we really be talking about bringing in yet another billionaire to influence our electoral processes?)