Eminent Domain - NY Times - Yorktown ordinance bars taking for commercial puproses

Published in the New York Times, Sunday, September 2, 2007

How Eminent Should Domain Be?

By JOSEPH BERGER

YORKTOWN


NICHOLAS J. BIANCO has a strong sense of place, having sampled many local landscapes and ending up comfortably in a town where he can often breathe country air. The son of Italian immigrants, he grew up in the 1950s in the jostling streets of the Bronx, and, after marrying, warily walked a cop’s beat in his next home, Yonkers.

For the past 35 years, he has watched Yorktown peel off its lingering pretensions of butter churns and blacksmiths and slip on the trappings of a standard-issue suburb — shopping centers and subdivisions included.

The United States Supreme Court ruled in 2005 that a government could use eminent domain to seize private property for economic development, including commercial uses like malls. (Some of the property for the new headquarters of The New York Times was acquired through eminent domain.) Mr. Bianco felt the ruling was wrong, even un-American, violating the near-sanctity of a place of one’s own. So did fellow townsfolk who asked him, as a member of the Town Council: “Will you ever do that?”

“Not on my watch,” he promised.

Last January, he went further and engineered passage of a law barring the town from condemning private property for commercial purposes, while allowing it for traditional public uses, like the building of roads, sewers and schools. A vague declaration that a neighborhood is blighted or dangling a promise of jobs and taxes could not be used to expropriate a home or shop for a developer’s benefit.

“It’s not the government’s right to say that you’ve got to move, you, a person who lived here and paid taxes here,” Mr. Bianco, 63, said in a Panera Bread store. “My belief is the individual is just as important as the mass. That’s our Constitution. Every citizen is important.”

He compares limits on property expropriation to the limits he faced as a police officer (he rose to detective sergeant, and now works as an investigator for Westchester’s Legal Aid Society.) “You can’t just go up and search somebody,” he said. “We protect the individual’s rights.”

“Let’s face it,” he went on. “It’s usually done to the lower socioeconomic parts of the population — the people who can’t fight it, don’t have the means. It’s not happening on one-acre homes in Scarsdale. And that’s distasteful. You’re picking off the weak.”

No other Westchester municipality has followed Yorktown’s example, according to Valerie O’Keeffe, president of the Westchester Municipal Officials Association, even though there remains tension in Port Chester years after a developer, armed with the village’s power of condemnation, cleared away 400 businesses along Main Street for a waterfront mall containing a Costco and Loew’s multiplex.

New Rochelle’s mayor, Noam Bramson, says that eminent domain should be used for development, though “judiciously and only when the broad public interest demands it.” Forswearing it entirely, he said, would make it difficult to assemble land to revitalize downtowns, forcing cities and towns to build on their outskirts. The new law in Yorktown, which used eminent domain more than three decades ago to spruce up Commerce Street with new businesses, passed without much of the fury that has sometimes characterized the nationwide debate. Linda Cooper, the town supervisor, said that while she supported the law to calm anxieties, she thinks it is superfluous. The town’s business district, she said, has been thoroughly developed, with residential and commercial zones marked and no room for growth. Besides, she said, the Town Board could revoke the law in the future.

But for many of Yorktown’s 37,000 residents, the idea that their part-time representatives — people who roll out their garbage on pickup days just like they do — could take away a fellow citizen’s home chafed. “We have a small-town mentality,” Tony Romano, an architect who has lived here since 1969, said as he ran into Mr. Bianco outside Panera’s. “We don’t want the government giving the store away.”

Mr. Bianco took a visitor to Front Street, where among a UPS. warehouse, a school bus lot, a car wash and other industrial-grade properties, Bruno Cusentino’s modest ranch house stood out as if it had been attired for the wrong party. He fears that the house and its land could be candidates for condemnation.

Mr. Cusentino’s son, Bruno Jr., a barber, said the family would be willing to listen if some company wanted to negotiate a fair price. But having the government take it on behalf of a business seemed unfair to him. “It’s common sense,” he told Mr. Bianco.

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