Usually when we write a blog post it is based on something we’ve read from a news agency or an announcement from New York State or the City about Eminent Domain.  It’s safe to say that we’ve never blogged about an Op-Ed from a dairy farmer. Ok, Leisa Boley Heelwarth also happens to be an attorney near Celina, Ohio. Either way, we found her thoughts interesting.
 
Note that we don’t like to get political on our blog either. Like they say, never talk about religion or politics if you want remain friends. This blog post is actually about how different people have a whole lot in common. 

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Boley Heelwarth notes that California and 15 other states (Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon and Virginia), the ACLU (American Civil Liberties Union), Public Citizens (a liberal watch dog group) and Texas landowners (typically conservative farmers and ranchers that are supportive of the current administration) have all filed suits against Trump’s emergency declaration regarding the border wall.

You may recall that on February 15, 2019 three landowners from Starr County, Texas and the Frontera Audubon Society filed the first lawsuit challenging the emergency declaration for the border wall.  The grounds for the lawsuit were based on an objection to the process that the President used to gain the funding after Congress largely denied it to him. They claim that Trump cannot waive eminent domain. Eminent Domain requires the government to demonstrate a public use for the land and provide landowners with compensation by declaring a national emergency.  
 
All four plaintiffs claim the wall would deny them access to their land. The plaintiffs contend that there was no real emergency as required by the National Emergencies Act. Even if there was an emergency, it does not  “requires the use of armed forces” which is the critical condition in the budget statute that the President unlocked by issuing his emergency declaration. Technically then there should be no emergency authority to redirect military construction dollars toward a border wall.
 
Long story short… Even if there is a military necessity — those dollars cannot be spent on just anything Boley Heelwarth says.  Money used to take property for a National Emergency would then belong to the military, not the government.
 
She says that we are likely to see intense litigation over a subtle but critical point. Can judges second-guess the president’s determination that there is an “emergency” under the National Emergencies Act? Can they at least second-guess the determination that the scenario “requires the use of the armed forces” as stipulated by the budget statute? It is a risky outcome either way, but landowners may want to watch for any ruling that chips away at eminent domain protections.
As is often the case, the issues spread to other issues and take years to untangle.  Boley Heelwarth notes that while the plaintiffs are focusing on the public use requirement of eminent domain, a whole other fight can break out about determination of appropriate compensation.
 
Why does any of this even matter to a farmer in Ohio? (That’s what we want to know too!)
 
Regardless of your opinion of the current administration, any legal action that makes it easier for a governmental entity to acquire private property has to be watched carefully. Eminent domain, as established in Constitutional amendments and subsequent case law, spells out specific criteria enabling a government to take private property, including farmland. Why would we enable any official to ignore these protections by declaring an emergency? That is a slippery slope that citizens need to watch out for.
 
And if we can add our own Op-Ed to this piece, it would be that if you ever get an eminent domain notice in NY, make sure you call the right lawyers who know the complex issues involved.  Getting good legal advice in an eminent domain proceeding is priceless.

For our New York readers who like to walk the beautiful and interesting streets of the West Village, have you ever noticed a small triangle outside of the Village Cigars shop? To be honest, we’ve passed the mosaic sign on 110 Seventh Avenue South but never really stopped to read what it said or to think if there was any history attached. That’s why we found this particular story interesting.
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The small triangular mosaic set into the pavement is just 3ft in front of the cigar shop.  It is made out of faded black-and-white tiles andthe triangle measures roughly 2 sq ft.  If you look closely you can see that it reads “Property of the Hess Estate Which Has Never Been Dedicated For Public Purposes.” According to Andrew Berman, president of the Greenwich Village Society for Historic Preservation, it is “A cryptic message that alludes to a story that has come to embody the struggle for personal identity in this area.”

If you’ve heard some of the Village’s history, you might know about Stonewall, speak-easys, and many of the famous authors that drank at local pubs.  As Berman commented, the Village has always been “progressive, forward-thinking and dynamic.

The Village had become culturally diverse by the late 19th Century and without all of the tall buildings, one can imagine that it was an intimate place to live.  According to reports, where the cryptic triangle now lies stood an apartment block, called Vorhes, built by Philadelphia native David Hess, who had died in 1907.

Dramatic change had come to the streets of New York by the early 20th century.  Penn Station was opened with a rail tunnel under the Hudson River, and more and more people were coming to the city each day.  Expansion plans included extending both the Seventh Avenue and the subway line that ran beneath it southward in order to improve commuting connections between Lower Manhattan and Midtown, the city’s two major commercial hubs. 

To complete the project, 253 structures would be torn down to accommodate the thoroughfare! Similar to today, this happened through New York City’s eminent domain order.

Hess was not happy with these changes and considered it to be bureaucratic overreach.  Hess and his family refused to sell and over the next few years the family fought valiantly against the order. Sadly, by 1913 the Hess family had exhausted all legal avenues and the apartment block was demolished shortly after. The Seventh Avenue extension would pass directly through where lot 55 had once stood. 

Since the city blocks in that area can have an odd shape and size, there were often irregular pieces of land. “One point often overlooked is that there were many small, irregular-sized lots left over after the destruction – but the Hess Triangle was the smallest,” Berman said. In a somewhat humorous twist of fate a surveying mistake meant that a portion of lot 55 had survived, and was still legally owned by the Hess Estate.

No one really knows what happened next, except after a few additional years of court battles and the Hess family refusing to give up even that small triangle of property, the City of New York had called upon the Hess Estate to pay the accumulated property taxes on the remaining portion of the lot. But Frank Hess, David Hess’ son, claimed to be unaware any portion of the lot still remained in his family’s name.

In tribute, on July 26, 1922, the mosaics were installed and records show that the property was assessed $100 in property taxes. The Hess Triangle was eventually sold to Village Cigars in 1938 for a steep $1,000 (which, after adjusting for inflation, would equal around $17,500 today), and it has been preserved exactly as it was ever since.
 
Even more amazing is that with all of the snow, ice, heat, and people walking all over the mosaic, it still remains as a tribute to the spirit of the Village.

Sanchez & Polovetsky PLLC is a New York based eminent domain firm, as you know, and that means we often rely on mass transportation when it comes to visiting clients or making our way around the area.  We also represent clients subjected to eminent domain to make way for transit improvements.  The story below hits close to home, as our firm is involved in multiple cases involving the current LIRR Third Track/Grade Crossings projects.
 
Our blog post is focused on the Highway-Rail Grade Crossing Safety Act, originally proposed in 2015.  This bill was meant to provide grant money for what Schumer and safety experts have called the “three E’s” of grade crossing safety solutions: engineering, education and enforcement.  Back in February 2015, Schumer and Sen. Richard Blumenthal (D-Conn.) proposed the bill shortly after a Metro-North train struck a sport utility vehicle on the tracks in upstate Valhalla, killing its driver and five train passengers. The plan was ultimately left out of a $305 billion federal transportation bill passed in 2015.
 
Sadly, recently there was a similar accident at the School Street crossings in Westbury, where police said a sport utility vehicle, fleeing the scene of a minor auto accident, drove around rail road crossing gates that were down and into the path of two oncoming trains. The vehicle’s three occupants died, and eight people aboard the train were injured.
 
At a news conference in Garden City, Schumer outlined plans to resuscitate grade crossing safety legislation and to provide new grant funding for enhancements.  He said that bill died in 2015 in the Senate because of a lack of support from the Republican-controlled House of Representatives. At the news conference Schumer also said he believes “it can pass relatively easily” in the Democratic-controlled House, packaged in a larger federal transportation bill expected to be proposed later this year.
 
Currently, the LIRR and the state are planning to eliminate that crossing and six others.  It is part of its $2.6 billion effort to construct a third track on the railroad’s Main Line.  According to sources, it would be too expensive and complex to close any more of the LIRR’s nearly 300 crossings.  This would involve building a bridge over a roadway, or sinking a road under tracks.
 
Schumer said that while a dollar amount has not been determined for the reintroduced measure, he expects it will be in the "low hundreds of millions."
There’s even some Republican support for the plans. Rep. Peter King (R-Seaford) said on Monday he supports funding crossing safety improvement and that he "would expect to support the bill.”
 
Grade Crossing safety is of utmost importance, as it not only saves the lives of the people crossing, but also saves the lives of train passengers and engineers alike.  We welcome any improvements to grade crossings, in New York and all over the US.  We will keep you posted on this developing story.

Photo: Brooklyn Daily Eagle
Fight to save building ends with façade being incorporated into new sewage facility

​In September 2018, you probably read either here or in another New York news outlet that the City of New York took title to the Gowanus Station Building, at 234 Butler Street, through its powers of eminent domain. The City plans to build a new sewage facility on the premises, since the Gowanus Canal has been dangerously polluted for years.

The new sewage facility will focus on cleaning up the Gowanus Canal, according to a plan finalized by the EPA in 2013. However, the Gowanus Station building will have to be demolished in order to make way for it.

Over the last few years, community activists have been staging protests against the planned demolition of Gowanus Station. A group called the Gowanus Landmarking Coalition campaigned for the century-old, Beaux Arts-style Butler Street building to be included in a city-designated historic district. This would have protected the building from demolition.

That didn’t happen, but a sort of compromise was reached. The Environmental Protection Agency has drafted a memorandum of agreement with the New York State Historic Preservation Office, and says that it will preserve the Gowanus Station’s two walls. Gowanus Station’s Nevins Street facade and 25 to 30 feet of its Butler Street facade will be dismantled and reconstructed “to the extent practicable,” the EPA said.

People from the Preservation Committee don't seem the least bit happy about all of this. “Preservationists know that a promise to tear down and rebuild a historic building does not mean that it will actually happen, that it will be done well, or that it will have any authenticity,” a Gowanus Landmarking Coalition spokesperson told the Brooklyn Eagle.

“If the city’s Landmarks Preservation Commission had stepped in, we would not be at this juncture,” the spokesperson added. “If the Department of Environmental Protection had not failed to consider the building’s value as a National Register-eligible site from the outset, we would not be at this juncture. If the Environmental Protection Agency had insisted that DEP back down from its fait accompli, we would not be at this juncture.”

Why all the fuss? At first glance, the Gowanus Station building located at 234 Butler Street doesn’t even seem like much. Maybe that’s because of the very distracting yellow “Sanitation Repairs” signage. But if you look a little closer, particularly at the top of this building, you will see that its details are actually quite beautiful.

Such is the power of eminent domain. When the government needs your property for a public use, no amount of protesting will stop it. Here, a sewage facility to help dispel the pollution in the Gowanus canal is inarguably a public use. So the 5th Amendment to the U.S. Constitution kicks in, and the property owner’s main recourse is to sue for just compensation in Court. Although these types of legal proceedings tend to take many years to resolve, with competent legal representation property owners are usually made whole.

And here we toot our own horn for a moment, and note that not a single one of our clients has ever gone out of business or lost money in eminent domain proceedings. This is not true for all property owners facing condemnation, even when represented by counsel claiming to know what they are doing. When facing eminent domain, it is very important to choose the right lawyer. You only get one chance to be made whole.