CEO of Douglas Elliman and "Eye On Real Estate" Radio Host Interviews Jennifer Polovetsky About Eminent Domain
There was excitement around the office at Sanchez & Polovetsky, as partner Jennifer Polovetsky was interviewed by Dottie Herman about eminent domain on her show “Eye On Real Estate” which airs on AM 970 and is also a podcast. Dottie Herman, as most of you will already know, is the CEO of Real Estate brokerage firm Douglas Elliman Real Estate LLC.
So, if Dottie wanted to chat with an expert about eminent domain, we are quite pleased that she asked one of the best in the industry, our very own Jennifer Polovetsky.
Dottie was joined by her co-host, Real Estate Attorney Andrew Lieb, to learn more about eminent domain and what a person who owns a business should do when they find out that their property is being taken.
As an introduction, Attorney Andrew Lieb said, “Everyone needs to know Jennifer Polovetsky because they don’t realize that the government can come and take your property.” Andrew and Dottie started the conversation with Governor Cuomo’s Penn Station expansion plans. The hosts asked, “Can Governor Cuomo just take the property?”
Jennifer explained that Governor Cuomo is not taking the property, but he can direct the Empire State DevelopmentCorporation, or another government agency, to take additional property by eminent domain in order to increase the tracks at Penn Station. Jennifer explained that transportation is considered a public use, and the State is allowed to take private property for public use under the 5th amendment(s) to the US and NYS Constitutions, provided that the government provides “just compensation” to the owner of the property or the affected business tenant.
Dottie and Andrew wanted to know how eminent domain affects business owners. The co-hosts mentioned that business owners need to know that the government has to pay just compensation. “Do you just wake up one day and your property is gone? How does it work? What do people need to know?”
Jennifer explained that “It depends what agency is doing the taking.” The New York State Department of Transportation (DOT) will notify the business tenant or the business owner of a taking. The business will be sent a notice that explains that the property is going to be taken by eminent domain. Once the notice requirements have been fulfilled, an initial offer is made. Afterwards, the DOT will file acquisition maps and notice(s) of acquisition with the County Clerk, and the State effectively owns the property as of that date. Copies of the notice of acquisition are then mailed to property owners and affected business tenants, who have three (3) years from the date that the notice of acquisition was mailed to file a Claim in court for additional compensation.
Business owners are advised to hire an attorney so that they can be sure to enforce their rights to file for additional compensation (over and above the initial offer) and, in most cases, relocation benefits.
How can you file a claim for additional compensation and ensure that you are not waiving statutory interest that accrues on any additional monies your eminent domain lawyer can obtain for you in Court? Listen to the interview!
Keep in mind that eminent domain cases where the condemnor is the City of New York, the ESD, or the MTA work a bit differently than pure State of NY cases; as the City and the quasi state agencies need to go to court to file a vesting petition, and the time to file a claim on those cases generally ranges from one to two years. It is important to hire a competent eminent domain lawyer who knows the ins and outs of this field.
To learn more…listen to the show!
Over the past few weeks we have been blogging about eminent domain and Cuomo’s big plans for Penn Station. We thought it would be interesting to continue the conversation, this time focusing on a possible high speed rail.
As part of his 2020 agenda, Governor Andrew Cuomo has announced plans for a high speed rail along the Empire Corridor which spans New York City, Albany and Buffalo. This will require re-examining old studies and roadblocks, and we are guessing, some eminent domain proceedings.
In a prepared statement Cuomo said, "High speed rail is transforming economies around the world. We've been told that bringing this technology to our state is too expensive, too difficult and would take too long – that's not an acceptable attitude for New York."
As a reminder, previous plans to connect New York City to Albany promised a two-hour ride, and a trip from Albany to Buffalo in about 3.5 hours. We love to hear about the “estimated costs” and this project was billed at $15 billion. It sounds like it would be more if the estimate was being done today. As a point of reference, the Second Avenue subway line, which is two miles long, cost $4.5 billion.
Another example being used is the high speed rail project in California. That one has proven to be expensive, time-consuming, and full of problems. In 2008, California voters approved a $9 billion project to begin construction on a high speed rail from San Francisco to Los Angeles. Plans and ideas had been floating around for literally decades prior to the vote.
CEO of the California High-Speed Rail Authority, Jeff Morales, said that the agency was breaking ground on the proposed 520-mile rail network. That was back in 2012 and the problems started soon after.
Legal disputes were constant as those opposed to the plans accused the authority of not living up to the ballot initiative. In addition, the authority was tasked with individually acquiring each piece of property needed to build the rail lines. Of course, some of the property owners, many of whom were farmers, came together in opposition. This resulted in eminent domain in many of the cases.
Citizens are not patient and there were complaints that it was taking too long. "There was this notion that one day we’d wake up and suddenly there'd be this statewide high speed rail there," Morales said. "That’s not how things get done."
To look at the situation realistically, one has to realize that this type of project, a 500+ mile high speed rail that is built from scratch, had never been attempted before in the USA. All government money for infrastructure was going to interstate highways. Many feel that projects of this scale need Federal support to be successful. The California project did receive a multibillion-dollar boost from the Obama administration, but transit infrastructure has been decreasing under the current administration.
Morales is no longer CEO of the project, and today there is only a small section of rail under construction in California's Central Valley. Completion plans for 2020 have been pushed to 2033 with the cost doubling.
California isn’t the only example. Texas is in the planning stages of a bullet train between Dallas and Houston. It is hoped that ground will be broken over the summer for the project. In Florida, partially funded by Richard Branson's Virgin Group, a high speed rain from Miami and West Palm Beach is running and there are plans to expand to Orlando.
Is it possible to build a high speed train in New York? Are we more like California or Florida? Let’s see!
Sanchez & Polovetsky Goes to Nashville for the Latest Discussions on Eminent Domain and Land Value Litigation
Staying ahead of eminent domain law is critical to clients having the success that they have come to expect with Sanchez & Polovetsky. In part, that is why both Jennifer Polovetsky and Philip A. Sanchez have been named Super Lawyers for five consecutive years.
One of the ways the dynamic duo stays ahead is by attending conferences and networking with legal experts from around the country. This week, the team visited Nashville, Tennessee to attend the American Law Institute Continuing Legal Education (ALI-CLE) “Eminent Domain and Land Value Litigation 2020” conference. The national conference examines the latest legal issues related to relocation, regulatory takings, inverse condemnation, and valuation issues.
Always wanted to know what types of topics are being discussed at a legal conference in Nashville? A few may even have laymen wanting to find out more! Interestingly, many of these topics are stories that appear in the news on a regular basis and that we blog about. They relate to Property Rights as Civil Rights, Passive Takings by Government Inaction, Creative Approaches to Solving Difficult Appraisal Problems, Establishing the Date of Valuation in Direct and Inverse Cases.
One of the more enjoyable aspects of this type of meeting is mingling with the faculty and other registrants, and sometimes even engaging in one or two healthy debates! Of course, the team is also interested in absorbing some of the local Nashville culture and soaking in the city’s history, music and delicious food.
Stay tuned as what we learn this week might pop-up in next week’s blog post!