Thursday, September 28, 2006

Assemblyman Adam Bradley Speaks Out Against Eminent Domain Abuse

by Maureen Keating Tsuchiya

Assemblyman Adam Bradley was upset with the U.S. Supreme Court’s 2005 decision in Kelo v. New
London that sent shock waves across the nation, raising concerns of homeowners, small businesspeople
and others who care about private property rights. The Supreme Court allowed the City of New London, Connecticut, to utilize its power of “eminent domain” to dispossess over 100 homeowners and others in order to turn their property over to other private interests, all in the name of economic revitalization. According to Bradley, “People rightly wondered ‘where is the balance here?’ Nobody is opposed to economic vitality or creating jobs. But of course people ask, ‘shouldn’t these goals be pursued without forgetting the right of everyday citizens to be secure in their homes and to have their property respected?’”

As a result, Bradley introduced legislation , A.9473, on January 17th, that has encouraged discussion about
preserving the ability of local governments to promote the interests of their communities while, at the same
time, insuring that vital public interests are not accomplished at the expense of homeowners and small business
owners “who happen to be in the way.”

Bradley’s proposed law aims to eliminate the under-compensation that now typically occurs when private homes and small business sites are taken forpublic purposes. In the case of homes, this undercompensation happens because present law assumesthat most homeowners are “willing sellers,” quite happy to part with their homes at current market value. Bradley said, “This is simply not true. For most homeowners, home is not just another commodity, to be sold at the drop of a hat, but a very special place—one that they, in fact, have made their special place.

So most homeowners typically wouldn’t be “willing” sellers at anything like the so-called fair market value that present law allows.” Another reason that present law under-compensates is that, in most Westchester neighborhoods typically targeted for revitalization, one often finds significant numbers of homeowners who have been there for many years and who could never, with their so-called “just” compensation, find comparable housing in the same neighborhood or community. They cannot find it because, for the most part, comparable
housing at affordable prices, like most fairy tales, simply doesn’t exist.

The bill Bradley introduced addresses both of these causes of under-compensation by redefining how “just compensation” is determined. Under the new Bradley definition, compensation would no longer be based on the mythical “willing seller,” but rather it is based on what it would require to keep the affected homeowners, as nearly as possible, where they would have been if the project never happened.

Because essentially similar kinds of under-compensation can fall on small business owners, whose businesses
are typically location-dependent, his proposed legislation gives protection to them as well.

The second core provision of Bradley’s bill assures that small owners have the “back-up” protection of
a jury trial for cases in which, due to institutional or other factors, the special plight of persons losing their
homes or livelihoods may otherwise receive only a callous or unsympathetic ear. Realistically, the usual commercial market values that are familiar stuff to eminent domain professionals may fall far short of truly
just compensation, and only a call to the judgment of the “conscience of the community”—the homeowner’s
peers—will assure a balanced result. Bradley stated, “I do not expect that resort to juries will be very common
since the bare possibility of being able to invoke a jury should normally suffice to deter rapaciously low-ball
offers from the pro-development side.”

Bradley went on to add that his proposed legislation “would not open the door for windfalls to owners
of businesses that aren’t going concerns.” Bradley added, “Some other proposals, in fact, would do this
(for example, by providing a flat compensation of 150% of fair market value to everybody, no matter
what), but mine would not. The reason is this: When owners truly hold land purely for speculation and not,
for example, as a place to carry on a location-dependent business, then the property’s only current value
is, by definition, its “commodity” or market value.

Therefore, the property should be easily replaceable by many other properties at fair-market rates and,
accordingly, the “replacement” compensation under my bill and the traditional measure of compensation
would amount to essentially the same thing.”

Bradley believes, “A measured and balanced response to the Kelo decision is preferable to the current
trend of proposals, which would cut back severely on the ability of communities to use eminent domain at all. Keeping small owners in as good a position as they would have been in, while still allowing broadly beneficial projects to proceed, will provide the greatest advantage to all.”

Adam T. Bradley, Democrat, was elected to the New York State Assembly in November 2002 after over
two decades of community involvement in Westchester County. He represents the 89th Assembly District,
which encompasses the towns of Bedford, Harrison, Lewisboro, Mount Kisco, New Castle, North Castle,
Pound Ridge, and most of the city of White Plains.

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