Court To Rule on Property Rights
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The New York State Court of Appeals in February is scheduled to hear an eminent domain case that could vastly expand the state’s power to take New Yorkers’ private property for public use.
The case centers around a vertical water shaft, Shaft 30B, which the city is currently building on a 12,500-square-foot lot at the corner of Grand and Lafayette streets in SoHo as part of its decades-old “Third Water Tunnel” project.
The city and Edison Properties, which owns the property through a limited liability corporation called Grand Lafayette Properties, agree that the water tunnel is of vital importance to the city, but they disagree about just how much space the city needs to build and maintain the shaft. The city says the project requires the entire lot, while Edison claims the city is violating the state constitution and a precedent of more than 150 years by requesting all 12,500 feet when it has indicated that the project will occupy only about 4,000 square feet.
“We don’t contest that building a new water supply for the city of New York is a valid public purpose for taking private property through eminent domain,” a lawyer for Edison Properties, Jack Weiss, said. “The question is what private property or how much private property.”
Edison’s brief, submitted December 5 to the Court of Appeals, calls the city’s condemnation of the entire property, which has been the site of a parking lot for more than 30 years, “excessive,” and says it is “clearly forbidden” by the 1973 ruling in Hallock v. State of New York. In that case, the court ruled the government couldn’t condemn more private property than it needed for a given public use.
Mr. Weiss contends that the district and appellate division courts violated Hallock when they told the city it could condemn the entire property and said that if the appeals court upholds the lower courts’ rulings, the city would receive a go-ahead to take more private land than it requires for public use.
He added that in taking more land than seems to be needed, the city would have to spend more taxpayer money for the land. He said Edison could give away part of the property for free after the shaft’s completion as long as the city would agree to preserve the development potential of the remainder of the site. Instead, the city is insisting it needs the entire lot, which will cost it between $12 million and $20 million.
The deputy chief in charge of condemnation for the city’s Law Department, Lisa Bova-Hiatt, called the project a “very complicated engineering process” and said, “A corner of the site would not have been sufficient for us to do both the construction and the maintenance of the water tunnel shaft.”
She added: “The city’s vital water supply is something that we certainly cannot take lightly and … the city of New York can’t rely on a private landowner to give us access to a property in order to respond to a crisis where the city’s water supply is concerned.”
As for Edison’s offer to give away part of the parcel for free, Ms. Bova-Hiatt said, “In this situation, they were not offering us the entire property for free and since the entire property was needed, their offer was not appropriate for the ends of the project.”
While both sides say they are confident they will prevail, Edison receiveda major boost last week when the president of the influential Real Estate Board of New York, Steven Spinola, submitted an amicus brief supporting the appeal.
“The taking of property by the government is an extreme measure that deprives the owner of significant rights even if ‘just’ compensation is paid,” he wrote. “It is clear that the government should always accomplish its purpose using the least restrictive means, i.e., by taking the smallest possible quantum or interest in the affected property. This principle ensures that the property owner’s rights are not trampled, and that the government does not engage in waste.”
He added that providing the city with a right of way would be sufficient and said the case could have significant repercussions.
“If the city is permitted to take excessive interests in property without due process, as it has here, the rights of property owners will be seriously jeopardized, as will real estate development in the city and, thus, the city’s economy,” he wrote.
The hearing is set for February 7.