Photo credit: todd_solomon
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.
Photo credit: BRIAN HICKEY/PHILLYVOICE
There seems to be a backlash going on against the U.S. Supreme Court ruling in the infamous case of Kelo v. City of New London. You may remember that this ruling allowed the government to take people’s homes for private development via eminent domain.
In the latest case on this issue, Charlie Birnbaum--a piano tuner--has been fighting to keep his family home (which is situated in the shadow of the Ocean Resort casino in NJ) from being seized by the State through eminent domain, on the premise that the State had no definitive plans for his property. This week, a New Jersey appellate court sided with Mr. Birnbaum. The state’s Casino Reinvestment Development Authority could not provide assurance that its plans for the property and surrounding area “would proceed in the reasonably foreseeable future,” the court ruled. Therefore, there was no immediate necessity for the taking (“necessity” is a required element in any eminent domain taking-where none exists, then the taking cannot go forward).
The court upheld an earlier decision by Superior Court Judge Julio Mendez, who ruled that the CRDA’s “proposed stockpiling of land for future redevelopment” was not sufficient justification to seize private property such as Birnbaum’s house. The CRDA had offered him $238,000.
Back in 2016, when the underlying case was first decided, the casino (then called Revel) had declared bankruptcy and shut down. Later another casino opened, called Ocean Resort. It too had crippling financial problems. Most recently, a New York hedge fund that was one of its largest lenders recently took over its control from Denver developer Bruce Deifik, as the financial losses continued to mount.
Pauline’s Prairie, the area around the casino, remains largely undeveloped. Close by, the Boardwalk has been rebuilt and a Northern New Jersey Developer, Wasseem Boraie, is leasing new apartments.
The Birnbaum’s home was originally purchased in 1969, by Charlie Birnbaum’s parents who were Holocaust survivors. His mother, Dora, lived there until 1998 when she was killed during a home invasion. Charlie Birnbaum currently lives in Hammonton with his wife, and rents out the upper floors and uses the first floor for his piano-tuning business.
Since a state takeover of Atlantic City, the CRDA has recently shifted its focus to help casinos and businesses focus more on issues affecting city residents. Sadly, nearly 40 percent of the residents live in poverty. Originally, the idea for the area around the Ocean Resort included a mixed use of “tourism-focused residential, retail, and commercial uses.”
Adam Gordon of the Fair Share Housing Center, which filed an amicus brief in the case, praised the ruling and said, “Eminent domain should not be used to displace working families and other low-income communities as part of a wholly speculative development scheme with no demonstrated public benefit.” We wholeheartedly agree.
As with several of our blog posts, we touch on subjects that have been in the news for months and often years. The long-planned Gowanus Canal tank project is one such case.
Originally, the city was going to use two underground sewage tanks along the Gowanus Canal to divert raw waste from the waterway. Instead, Officials with the City’s Department of Environmental Protection (DEP) say that they will store 16 million gallons of sewage overflow—four million more than the two planned tanks. Some of the benefits to this new plan include decreased construction impact, and its potential to allow for more public space.
This blog post has to include some eminent domain news, and here it is: Last April, the New York City Council gave DEP the green light to use eminent domain to commandeer 234 Butler Street and 242 Nevins Street as the home for the larger tank and a new water filtration facility known as the headhouse. Meanwhile, the second, smaller tank was slated for a city-owned lot on Second Avenue near the Fourth Street Turning Basin.
But now, all of that has changed. In October city officials said that a half-mile, soft ground tunnel up to 150 feet beneath the earth that will store 16 million gallons of sewage overflow. Do the math and you’ll realize that it’s more than the tanks combined total. The good news is that the extra capacity would help in gathering waste and storm runoff that would typically pour into the canal, after treatment at the head house. The ability to hold more fluid means that the tunnel would prevent additional weather events from dumping millions of gallons of filth into the canal.
The new design also has a new price tag. It’s estimated that the tunnel would cost $50 million more than the original plan’s $1.2 billion price tag. That price includes land acquisition, head house construction, the creation of public space, and the installation of both tanks.
Also of note is the ability for the tunnel to be expanded. An important factor to look at is the rezoning that will be taking place at Gowanus, with new residential buildings and the resulting population growth.
This story is definitely to be continued, as EPA officials could not comment during the recent government shutdown.
Eminent Domain Surprise? You bet. We’ve got the story here: two sisters, Fran Gandarillas and Angela Camarda, have a property in Islandia, Long Island, that is up to date on its taxes and is under contract to be sold. So you can imagine their surprise when a Newsday reporter called them asking them about the Islandia village’s plans to take the property by eminent domain to build a new public works and truck yard facility.
“We know nothing further unfortunately,” Gandarillas, told the Newsday reporter. “We thought it was some kind of prank.” They questioned how the village could take their property, citing that it is up to date on taxes and is under contract to be sold.
They found out about the plan a day before a public hearing was initially scheduled. According to Islandia Village officials, they are proposing to seize the 1.7-acre residential property on Old Nichols Road by eminent domain.
When asked by the reporter, officials did not immediately say how they sought to notify the property owners. Officials said they commenced eminent domain proceedings against a nearby property two years ago and stopped the effort because of an unrelated issue of illegal action, which they did not immediately specify.
The village has outgrown its current public works yard behind village hall, and officials have been looking for a property to store equipment for several years, Village Attorney Joseph W. Prokop said, noting a preference for a location on the north side of the Long Island Expressway. Prokop gave a pretty standard answer when asked about the proceedings, “This would allow the village to better service roadways and provide other services in this part of the village.”
According to the reports, municipalities have to notify property owners within 10 to 30 days of a public hearing either in person or by certified mail, but an “inadvertent failure to notify” them may not affect the validity of municipalities’ claim on the property, according to state law.
The sisters’ property has been used until now as a day care center called “The Nursery School, Too,” according to state records. The property is in a residential area that is surrounded by homes. There is also a nonprofit equestrian center serving people with special needs.
If the Islandia Village were to successfully take the property, they would have to pay fair market value. According to records attained by the Islip Town Assessor’s office, that would be approximately $745,000.
Village spokesman Hank Russell said a public hearing is scheduled for Aug. 7, despite a public notice listing it for July 31 — a discrepancy he attributed to an error. The hearing will be at 6 p.m. at village hall.
The next time visitors come to visit you for a tour of New York City, the New York Wheel may be on their list of places to see – or not.
Let’s take a quick look at how it all began… The idea for a New York Wheel began in 2008, when Meir Laufer, CEO of Plaza Capital Management, a small Financial District-based developer, first visited the London Eye and had a dream to create something similar in New York. Laufer pithed the idea around and eventually caught the attention of investor Eric Kaufman, a developer and a former top broker at Colliers International.
Not everyone agreed that the project was a good idea, but an exclusive construction deal with Mammoet-Starneth, the engineering firm behind the London Eye, was achieved. This agreement enticed deep-pocketed investors, including those with EB-5 visas. According to the US Government website, the program is for entrepreneurs that are eligible to apply for a green card if they make the necessary investment in a commercial enterprise in the United States, and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers. According to the Real Deal, the program is facing a major backlog in applications, resulting in up to 15-year wait times for visas.
By 2010 a site for the New York Wheel was searched for and with the help of NYC & Company, the city’s official marketing arm, as well as with the city’s Economic Development Corporation, Staten Island was finally agreed upon. In September 2012, then-Mayor Michael Bloomberg unveiled the plan to the public.
The project’s challenges are long, and here are just a few: The current estimated cost is over $600 million, which is more than twice the original figure. Vicious infighting has ripped apart the working dynamic of the development team. All of these challenges have resulted in public officials and government agencies suddenly going quiet when they had given support to the project for the past three years.
In May, the engineering company, Mammoet-Starneth, walked off the site after saying the soil could not support the structure. (Some reports say they were fired.) In December, the contractor filed for bankruptcy and in February, the developers agreed to pay $460,000 to help cover storage costs for some parts of the wheel.
In addition to a new management structure and the amount of money it will need to continue, the Wheel is one of many EB-5 projects across the U.S. mired in controversy that has left investors in limbo. Regional center Canam Enterprises has raised $206 million from 412 EB-5 investors for the project, according to the firm’s website.
So where does it all stand? A deadline was set for September 5th, and pushed back to September 11th, to see if the Wheel will keep rolling or if the project will have a permanent end. If it does end, it would be seen as one of the largest EB-5 failures. Maybe Hollywood will dive in and make a movie about it all.
We have exciting news to share with our blog readers! As this post’s headline suggests, the attorneys at Sanchez & Polovetsky have been named to the 2018 Super Lawyers list for the New York Metro Area. You can read all about it here.
What is even more exciting is that it’s the fourth year in a row that our attorneys have received this honor. Attorneys Philip A. Sanchez and Jennifer Polovetsky have been included in the Super Lawyers List for the NY Metro area every year since 2015.
Each year, no more than five percent of the lawyers in the State are selected to receive this honor by the research team at Super Lawyers, a Thomson Reuters business.
When asked what this honor means professionally and personally, Philip Sanchez, a partner at the firm, reflected for a moment and then said, “You can’t imagine the tremendous amount of stress a business owner, who has put their entire life’s work and effort into their business, undergoes when faced with eminent domain and the possibility of losing it all. We take great pride in helping these enterprises, which are often family owned and multi-generational. They often have the opportunity to improve with a fresh start at a new location. To be recognized for these efforts is deeply satisfying on both a professional and personal level.”
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
Jennifer Polovetsky, the founding partner of the firm and a New York resident, said that “this honor is especially meaningful because the New York Metro Area is where we work and live. When we help local New York property owners and businesses, we are also seeking to improve the overall community serving our friends, neighbors, and businesses that we frequent. It’s a great feeling to be recognized for our efforts by our peers.”
The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law.
It’s back to school time and New York commuters are back in force with memories of their vacations. For those in Astoria, Queens, and Red Hook, Brooklyn (not the previously planned Sunset Park) they might also be thinking about when the much touted BQX streetcars will be built, shaving off valuable minutes (10-15 minutes to be specific) from their commute.
Infrastructure challenges and, therefore, budget issues have delayed plans for the BQX, the Brooklyn-Queens Connector, which include a route between Brooklyn and Queens. It is estimated that in the first year, ridership is expected to reach 50,000 people daily, according to the administration. Overall, the 26-stop line is expected to serve around half a million people in waterfront communities.
Originally, the route was planned to run about 16 miles between Astoria and Sunset Park and cost approximately $2.5 billion. The City’s streetcar team then updated the plan and developed a shorter route to Gowanus that will cost $2.7 billion. That’s a per-mile increase of $247 million from $156 million.
Why the increased costs? In February 2016, Mayor Bill de Blasio first announced plans for the streetcar route. As other routes were examined, serious underground infrastructure issues were found and resulted in the increased budget estimates for the project. It probably also resulted in an extended planning time as the area would have to be more thoroughly studied. Crain’s put it best in their report: The infrastructure study helped to insulate the city from risk in the event it had to scrap the project, but it also delayed the project and drove up costs.
The project, which was scheduled to be completed in 2024, was supposed to be funded through property tax revenue as the land around the route increased in value. Those plans changed too. Now, the project is scheduled to be completed in 2029 and requires $1 billion from the federal government. Money set aside by the city for the BQX is being spent on other priorities, including affordable housing.
It sounds like de Blasio is still focused on the prize. “The Brooklyn-Queens waterfront has experienced incredible growth. Now it’s time for our transit system to catch up,” de Blasio said in a statement. “The BQX is one of the biggest, most ambitious projects in a generation. It will be a challenge, but New York City is taking it on.”
Plans are still underway for the city to examine the environmental impact of the project and kick off the public review process in 2020. Friends of the BQX, the tram’s independent booster group, support the plan. “This commitment to moving the BQX forward is a huge win for New Yorkers who have been cut off from transit for too long—including more than 40,000 NYCHA residents along the route,” the organization’s executive director, Jessica Schumer, said in a statement. “With the city embroiled in a transit crisis, the BQX will serve as an innovative model for how to build new mass transit sustainably and equitably.”
Of course, much of this depends on the situation in Washington, D.C. according to de Blasio. “We’re about to have two elections, 2018 and 2020, that could entirely remake the Congress and the White House, and then we would be having a very different conversation about infrastructure,” the mayor said. “In any competition for light-rail funding, this proposal would go to the front of the line instantaneously. … Looking around the country, it would cover the most people in the smallest amount of area.”
In addition to timing, costs, and infrastructure issues, there seems to be a few additional challenges. First, if the project starts in 2020, de Blasio has only one year left in office and a successor might not pursue the BQX project. The other issue is that de Blasio has refused to say whether he has discussed the possibility of federal funding with Senate Democratic Leader Charles Schumer.
Schumer has been struggling to secure funding from the Trump administration to construct a new Amtrak tunnel under the Hudson River and to refurbish the atrophied existing conduit.
In a way, this project is running like much of the transit system – late. But in this case it hasn’t even left the station. And the burning question remains…will any property owners or businesses be displaced by eminent domain in order to make this happen? Stay tuned.