Help Towns and Villages Renounce Right to Condemn Private Property for Non-Governmental Use

Assist towns and villages to prevent condemnation of homes for resale to developers

Help Towns and Villages Renounce Right to Condemn Private Property for Non-Governmental UseThe NYS Attorney General can help overturn the effect of a recent U.S. Supreme Court decision. On June 23, 2005, the U.S. Supreme Court shocked most voters and adult residents with its 5-4 decision upholding the right of government to take away a citizen's home, through condemnation or eminent domain, and transfer the property to private interests for commercial or other private development. The name of this infamous decision is Kelo v. New London. Most people in America, had they been questioned on that point of law, would have said, assuredly, that the U.S. Constitution does not permit a company such as Wal-Mart or Home Depot to acquire title to the residential property of a voter or other resident of a town, against the wishes of the property owner. The fact that the government takes title for a few moments before conveying the property to a company such as Wal-Mart, by prior plan, should make no difference. If Wal-Mart can't force someone to sell his/her home to Wal-Mart, Wal-Mart or other developer of property shouldn't be able to bribe a town official with a few bucks or the promise of a job or other hard-to-prove promise, and get the town to condemn the property on behalf of private interests. Yet, the Supreme Court by a single vote held otherwise.

Major corporations have the money to buy anything they want and don't need the power of eminent domain to add to their wealth. Towns and villages, as a result of the Kelo decision, have the unfortunate power to turn a community into a parking lot or golf course for Wal-Mart or the next Enron, and be able to obtain higher property values (and increased sales tax and real estate revenues) for the benefit of persons not residents or businesses in the town at the time of the condemnation. Voters never intended to give that type of power to their elected officials, and I am proposing a procedure whereby a town, village, county or other municipality can renounce such power and prevent its use to destroy the community for its present residents.

A town, village or county should protect its residents from this non-governmental condemnation possibility (and make the town, village or country more attractive to its present and future human residents and small businesses as a result) by adopting, executing and filing as a deed a formal renunciation of any rights it may have now or in the future to condemn or take private property of any type for non-governmental use or for transfer to a private or for profit organization.

Whether such provision would be upheld or not by the courts (and ultimately, 50 years from now, by the U.S. Supreme Court, with a different complement of Justices) is not important. What is important is that the formal renunciation, especially if tied up in contractual language, and with representations and warranties, would enable anyone to oppose any attempts to take private property in the town, village or country by condemnation or eminent domain to fight the attempted taking in the courts, and delay the project (and involve claims against the developer and institutions working with the developer) to make the property not worth the effort, or to have it with a "cloud" on its title insofar as any non-governmental condemnation is concerned.

This would be of major interest to voters, who have more to lose with their home than they do in profits as shareholders of the major corporations that generally are involved in any non-governmental condemnation of private property.

The filing of the deed, appropriately drafted, would give notice to the world that the property in the town filing the deed is not worth the effort to develop for private interests, and that they should go to some other town instead, to develop a site for another major retailer such as Wal-Mart. Thus, the adoption of this election issue in your community, with the help of the NYS Attorney General, would be like a poison pill that major corporations use to protect themselves from being gobbled up by other corporations. They would understand what you are trying to do and recognize that they can do their dirty work in someone else's town, and leave your town alone. At this point, if your town had a revenue sharing agreement in place with other towns in the area, your town could still get its fair share of sales tax revenues even though the major retailer goes elsewhere to open its new store.

If elected NYS Attorney General, I would encourage the elected officials and town managers of every town, village and county in New York State to renounce forever the municipality's right to condemn private property for non-governmental use and, as a result, to create probable causes of action for damages against the municipality for any actual or attempted taking of private property for non-govermmental use.

Note: Here is New York's law permitting condemnation by governments and agencies other than the state:

McKinney's General Municipal Law 555

Article 15-A. Municipal Urban Renewal Agencies, Organization and Powers

555. Acquisition of property

1. (a) Real property or any interest therein, including but not limited to air rights, and easements or other rights of user necessary for the use and development of such air rights, to be developed as air rights sites for the elimination of the blighting influences over an area or areas consisting principally of land in streets, alleys, highways, and other public rights of way, railway or subway tracks, bridge or tunnel approaches or entrances, or other similar facilities which have a blighting influence on the surrounding area necessary for or incidental to any urban renewal program or part thereof in accordance with an urban renewal plan may be acquired by an agency by gift, grant, devise, purchase, condemnation or otherwise and by a municipality for and on behalf of an agency by condemnation. Property may be acquired by condemnation by an agency or by a municipality for an agency pursuant to the condemnation law [FN1] or pursuant to the laws relating to the condemnation of land by the municipality for which the agency is acting or the municipality, as the case may be.