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Government, Law and Policy Journal Eminent Domain

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Government, Law and Policy Journal Eminent Domain NYSBA SPRING 2007 | VOL. 9 | NO. 1 Government, Law and Policy Journal A Publication of the New York State Bar Association Committee on Attorneys in Public Service, produced in cooperation with the Government Law Center at Albany Law School EEminentminent DDomainomain • Myths of Kelo v. New London, Connecticut • Current Problems and Suggested Solutions • Legislative Proposals to Rectify Public's erica Concern • Highest and Best Use • Just Compensation • Condemnation tion. of Public Utility amous crime, Properties ept in casestual • Compensation for Amendment V. l or otherwise inf ife Loss of Business a, when in ac Value case to nt of a grand jury, exc • Methods for Judicial ConstitutionCriminal of the actions United — Provisions States concerning of Am — , or in er,the nor militi shall any personprived be Challenges Under Due process of law and just compensa the EDPL held to answer forlic a dangcapita , nor be de private fense to be twice put in jeopardy of l • Local Governments' Exercise of l be compelledainst himself in any nor criminal shallen for public No person shall be Eminent Domain unless on a presentment or indictme Powers arising in the land or naval forces servicesubject in timeor for of limb; thewarbe samenor ora witness pubshalof of life, processag liberty,property of or law; property,use be without takcompensation. without just due NEW YORK STATE BAR ASSOCIATION WWe’vee’ve MMovedoved tthehe DDates!ates! 2008 Annual Meeting is one week later! Mark your calendar for JJanuaryanuary 228th8th - FFebruaryebruary 22,, 22008008 Save the Date! CCommitteeommittee oonn AAttorneysttorneys iinn PPublicublic SServiceervice 22008008 AAnnualnnual MMeetingeeting PProgramrogram aandnd RReceptioneception TTuesday,uesday, JJanuaryanuary 229,9, 20082008 NNewew YYorkork MMarriottarriott MMarquisarquis • NNewew YYorkork CCityity SPRING 2007 | VOLUME 9 | NO. 1 Government, Law and Policy Journal Contents 2 Message from the Chair Board of Editors Patricia E. Salkin J. Stephen Casscles 3 Editor’s Foreword James F. Horan Rose Mary Bailly Barbara F. Smith 6 Comprehensive Plans, Corporate Thuggery, and the Problem of Private Takings Patricia K. Wood David Schultz Staff Liaison 10 The Mighty Myths of Kelo Albany Law School John R. Nolon 15 Throwing Out the Baby with the Bathwater: Editorial Board A Review of Various Federal, State and Local Legislative Rose Mary K. Bailly Proposals Purporting to Rectify the Public’s Concerns Revealed Editor-in-Chief in Kelo v. City of New London, Connecticut Decision Patricia E. Salkin Charlene M. Indelicato and Linda M. Trentacoste Director, 19 Eminent Domain in New York: Government Law Center Current Problems and Suggested Solutions Jon M. Santemma Vincent M. Bonventre 24 Highest and Best Use Founding Editor-in-Chief Edward Flower Student Editors 29 Reimbursement for the Cost of Obtaining Just Compensation Edward Flower Michael J. Pendell 32 The Condemnation of Public Utility and Other Specialty Properties Executive Editor Already Dedicated to the Public Use Luke Davignon David M. Wise Margaret Lavery 37 The Condemnation Clause of the Lease—Frequently Overlooked Joshua Luce Saul R. Fenchel and Jason M. Penighetti Mark Myers 42 Partial Takings Olivia Nix Kevin G. Roe and Sidney Devorsetz William Robertson 47 Can Your Client Recover Severance Damage for the Loss Mark Simoni of Frontage Area? Senior Editors Saul R. Fenchel and Jennifer Hower 49 Compensating for the Loss of Business Value as a Result Editorial Office of Condemnation GLP Journal David C. Wilkes Government Law Center 55 Abandonment of a Project and/or a Taking Albany Law School Mark R. McNamara 80 New Scotland Avenue Albany, NY 12208 58 Eminent Domain in the City of New York: A Discussion of the 518.445.2329 Public Hearing and Notice Requirements and Methods for Judicial Challenges Under the Eminent Domain Procedure Law Send Address Changes to: Natasha Demosthene and Geeta Kohli Records Department 61 Is It Jurisdiction or Economic Development? New York State M. Robert Goldstein Bar Association One Elk Street 64 Didden v. Village of Port Chester: Albany, New York 12207 For Now, Broad Judicial Deference to Local Governments’ Exercise 518.463.3200 of Eminent Domain Powers Remains the Rule [email protected] Edward J. Phillips 70 The Demise of Eminent Domain Nadia E. Nedzel and Dr. Walter Block 74 Scenes from the CAPS 2007 Annual Meeting Program and Reception The Government, Law and Policy Journal welcomes submissions and suggestions on subjects of interest to attorneys employed, or otherwise engaged in public service. Views expressed in articles or letters published are the author’s only and are not to be attributed to the GLP Journal, its editors, the Government Law Center, or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quota- tions. Contact the editor-in-chief for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2007 by the New York State Bar Association. ISSN 1530-3942 (print) ISSN 1933-8414 (online). The GLP Journal is published twice a year. Message from the Chair By Patricia E. Salkin As I am fi nishing my fi rst they have mentored and inspired countless others who try year as Chair of the Commit- to emulate their high standards of professionalism, service tee on Attorneys in Public Ser- and capability. Thank you to Anthony Cartusciello and vice, it has become even more Robert Freeman, co-chairs of the Awards Committee, for apparent that government selecting these distinguished lawyers for well-deserved lawyers are not only intelli- recognition and for allowing us to show in one small way gent, hard-working and com- our appreciation for their work. mitted public servants, but as a group, government lawyers Our Administrative Law Judge subcommittee has are thoughtful, supportive been particularly active this year under the leadership and dedicated volunteers for of Catherine Bennett and James McClymonds. In addi- our State Bar Association. This tion to a series of statewide CLE programs organized by fact is no surprise to our new Past-Chair James Horan, this year the subcommittee has State Bar President, Kate Grant Madigan, who early on invested considerable time in developing a proposed recognized the untapped resources in the government code of conduct for ALJs. The full Committee is looking law arena. President Madigan, known to Committee forward to reviewing and discussing their work and to Members affectionately as our “fairy godmother,” was sharing a proposal with the leadership of the Association instrumental in the creation of the Committee on At- in the near future. torneys in Public Service as a vehicle to demonstrate the Under the leadership of David Markus, Donna Snyder Association’s desire to more actively involve government and Lori Mithen-DeMasi, our subcommittee on legisla- lawyers in all aspects of the Association. The Association tion is planning a September 2007 invitational summit has benefi ted by the diversity of experiences from public at the State Bar on the government attorney-client privi- sector lawyers and government lawyers have felt more lege. This is an issue that remains of particular interest to welcomed in terms of membership and participation in government lawyers, and one where more guidance in the Association activities, and we have all benefi ted from form of legislation and/or commentary in the rules of pro- the professional exchange of information that has helped fessional conduct may be appropriate. The summit will to enhance publications and programs. The Committee explore these options and examine whether any recom- looks forward to working more closely with President mendations for future action may be advisable. Madigan in the coming year. Also in the fall of 2007, under the guidance of Linda Inside this issue of the Government, Law and Policy Valenti, Carl Copps, Steve Richman and Stephen Casscles, Journal, readers will fi nd a photo montage from the Janu- the Committee will be launching a new web-based portal ary 2007 Annual Meeting. The Committee’s events once for government lawyers where we hope NYSBA members again topped anything we had done before. Attendance will fi nd one-stop shopping for Internet links and infor- at our CLE program—which featured a morning session mation to better assist lawyers looking for helpful sources on recent cases of interest decided by the U.S. Supreme about government law. Court, and an afternoon session focused on eminent domain—was high and evaluations were outstanding. My job this year has been made infi nitely easy by an In fact, people are still offering positive feedback about additional team of subcommittee coordinators who have the program months later. Special thanks to Committee kept the Committee working between regularly scheduled members Donna Case and Mary Berry who coordinated meetings. Special thanks to Spencer Fisher, Peter Loomis the program content, speakers and materials. and Donna Snyder for outstanding leadership and com- mitment to the Committee and to the Association. And, The 2007 Excellence in Public Service Awards were I would be remiss without continuing to thank publicly presented to three distinguished public servants who the Association staff for their continued assistance and collectively set the standard for excellence. Chief Judge guidance: Pat Wood and Maria Kroth in Membership, Judith Kaye; Murray Jaros, currently with the Associa- and Wendy Pike and Lyn Curtis in Publications. Last, but tion of Towns of the State of New York; and Joan Kehoe, certainly not least, thank you to Rose Mary Bailly, editor- Counsel at the NYS Department of Agriculture and Mar- in-chief of our fl agship Government, Law and Policy Journal. kets, are not only role models in the legal profession, but 2 NYSBA Government, Law and Policy Journal | Spring 2007 | Vol. 9 | No. 1 Editor’s Foreword By Rose Mary Bailly In the wake of the decision of a comprehensive plan as backdrop to the exercise of of the United States Supreme eminent domain may validate a public use.
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