​It’s 2020 and the eminent domain blog posts from Sanchez & Polovetsky are gearing up for the excitement ahead!
 
Hot off the press is news that Governor Cuomo is backing a plan to acquire a block south of Penn Station to increase track capacity.  Under a pre-existing plan, already backed by Cuomo, the State will make an attempt to purchase the properties between 30th and 31st Streets and Seventh and Eighth Avenues.  We wouldn’t be blogging about it if this option didn’t have some whispers about using eminent domain as a last resort.
 
Currently, there are 21 tracks at Penn Station and this plan would create an additional eight.  We will do the math for you – that’s a 40% increase in capacity.  Over 175,000 people travel through Penn Station each day. “The problem with Penn Station is the functionality, the track capacity,” Cuomo said at a luncheon hosted by the Association for a Better New York, a group of business leaders.
 
“Sometimes there is no little fix that works, and this is one of those situations,” Cuomo added. “We believe the best alternative is to expand by acquiring the block south of Penn Station and increasing the footprint that way.”
 
With 22 properties that are a part of the block, that’s an ambitious project. “Amtrak owns property there, the Archdiocese of New York, office, residential-use and community facilities," Cuomo said. “The State will plan to acquire it for public use. We’re already speaking to people.”
 
New York State is also looking into acquiring the Theater at Madison Square Garden and converting it into a new entrance on Eight Avenue.
 
This part of the plan has been named the “Empire Station Complex” which includes the new Moynihan Train Hall.  The Hall is expected to open in the Farley Post Office on Eighth Avenue at the end of 2020, along with the renovation of the current Penn Station and the expanded tracks south of Penn.
 
Do not mistake this plan for the one named “Penn South.”  That’s an expansion that has already been studied by Amtrak as part of the Gateway proposal which we blogged about previously.
 
“We are pleased to see a comprehensive plan that encompasses not only the Station itself, but also the district surrounding it,” Regional Plan Association president and CEO Tom Wright said in a statement. “Adding transit capacity and prioritizing safety is critical to the success of the region and for the hundreds of thousands of people that rely on the Station regularly.”
 
Details about the new project have been revealed by Cuomo’s office include that it will have a new 125,000-square foot terminal south of Penn Station and six entrances and exists that would reduce and dissipate congestion and enhance safety.  The terminal is also planned to have retail development.
 
No word yet on the cost, but according to the governor, it will be paid for with revenue generated by the project. “Value Capture” will be used by the State to fund the improvements with payments in lieu of taxes — voluntary payments made by organizations as a substitute for regular property taxes — along with income from new commercial development.
 
The plan will be in collaboration with the MTA and Amtrak with the Empire State Development Agency overseeing it all.  The MTA will be responsible for the transportation planning elements and Amtrak will help with the development and finance aspects of the project.  FXCollaborative, an urban planning consultant, has already been contracted to carry out the plan.
 
As frequent Penn Station commuters ourselves, we cannot say we disagree with this plan.  As always, we caution property and business owners affected by eminent domain to retain experienced eminent domain counsel to represent their interests.  Condemnees do not have to accept the State’s offer of compensation as final, they are allowed to file claims for additional compensation in Court. 
 
The new decade is certainly off to an exciting start!  

​A CNN review of federal court filings show that the number of eminent domain cases being filed is seeing an aggressive increase.  It’s part of Trump’s promise to “build that wall”.  The period of time being reviewed ended on November 15th and shows that 29 eminent domain suits tied to the border-wall construction were filed. That is up from 11 suits each of the past two years.  Almost all of the suits, except for four, were filed in the state of Texas.
 
It is estimated that about 1,300-miles of the 1,950-mile US-Mexico border do not have fencing, since the property is privately owned or too dangerous to cross.  This is part of the area, the Rio Grande Valley, has seen the first new barriers.  Three miles of new wall will be built in the coming months according to the US Customs and Border Protection. Mark Morgan, CBP's acting Commissioner, has said the agency wants to build 450 miles of new wall by the end of 2020.
 
As can be expected, the path to eminent domain for a large expanse of land is going to meet challenges.  For example, Friends of the Wildlife Corridor, a conservation group, is fighting an eminent domain suit over a 72-acre parcel of land on the banks of the Rio Grande.  Over the past 20 years, the group has worked to create a wildlife corridor with the ultimate goal of selling the land to the US Fish and Wildlife Service to connect two existing wildlife refuges.  
 
The US government, since 2017, has filed 35 "declarations of taking" notices in Starr and Cameron counties, Texas.  The Sierra Club obtained internal CBP emails, through a Freedom of Information Act, showing that more than 1,100 parcels of interest along the path of the proposed border wall in South Texas in February 2018.
 
According to Ricky Garza, a staff attorney at the Texas Civil Rights Project, which is representing some landowners, CBP usually starts the process with a "right of entry" letter asking landowners voluntarily to grant the government the right to access their land to conduct surveying and soil testing as a prerequisite to possibly taking the land.
 
"If you don't answer the letter, you get a home visit from a Border Patrol vehicle, pulling up to the house with an officer with the Army Corps of Engineers, an armed Border Patrol agent and often someone from the Department of Justice as well," he said. Several landowners described similar visits to CNN.
 
As in many cases of eminent domain, landowners don't understand they have a right not to sign the request for entry.  Karla Vargas, a senior attorney at the Texas Civil Rights Project confirmed this is happening in Texas.
 
In many cases, the issue goes beyond the land and includes concerns for clean water. In October 2018, then DHS Secretary Kirstjen Nielsen waived more than two dozen laws to expedite border wall construction in Texas, including the Endangered Species Act, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act and the Migratory Bird Conservation Act, among others.
 
Is “national security” enough to justify eminent domain for the taking of private property?  According to Emma Hilbert, an attorney at the Texas Civil Rights Project, there is relatively little dispute over the government's right to use eminent domain to acquire private property in cases of national security.
 
For many landowners, they are trying to see if time will be on their side, slowing the process down and waiting for either for a change in administration or higher land prices.
 
We will be waiting and watching too.