croton blog for croton-on-hudson new york

Not So Imminent Eminent Domain in Croton

February 7, 2006

Despite very thoughtful and detailed presentations from Village Manager Rick Herbek, Village Engineer Daniel O’Connor and Department of Public Works Supervisor Ken Kraft that clearly demonstrated the need for a new and centralized Department of Public Works facility, the realization of those plans will be a costly, challenging and potentially risky undertaking for residents of the Village of Croton-on-Hudson.

Three attorneys, including Croton resident Bruce Kauderer, David Steinmetz of Zarrin & Steinmetz representing Greentree Realty LLC, and John McManus of Crane, Parente, Cherubin & Murray representing Regus Industries LLC, Suburban Carting Corporation and Northeast Interchange Railway LLC participated in a widely anticipated public hearing, held on February 6, 2006 to discuss a proposal for the Village of Croton-on-Hudson to act as lead agency in invoking eminent domain procedures at the 9.7 acre former site of the Metro Enviro waste transfer station located at 1A Croton Point Avenue (map).

Option: Download and watch this video clip of Bruce Kauderer in Quicktime format (7:15 mins. | 9.4 mb).

Bruce Kauderer, a thirty year Croton-on-Hudson resident with thirty years experience in Real Estate law spoke first and among his many points said, “This is wrong tactic and the wrong procedure and we should not be going forward with this at the present time, at least not on this site.” Mr. Kauderer cites his main consideration for objection being that “constitutionally, you’ve (the Village) got to pay full market value for a site and full market value is based upon highest and best use of the property”. Thus, as a property piece of property with limited zoning he contends “the value is going to be quite manageable”.

However, should Regus Industries LLC, Suburban Carting Corporation and Northeast Interchange Railway LLC resume operations in the near future – since they have obtained required operating permits from both the Westchester County Solid Waste Commission and the New York State Department of Conservation – the value of the land, according to Mr. Kauderer, will increase to a “very high value”. Mr. Kauderer cites that a business such as the former Metro Enviro operation could be earning profits of between three to four million annually. By capitalizing the income stream, the Village of Croton-on-Hudson would be have to essentially purchase the business because of the very fact that unlike a manufacturer, they cannot relocate.

Thus Mr. Kauderer estimates that the value of the business could be priced between “30 to 50 million”. Therefore Mr. Kauderer urged the board to “wait until this litigation is played out and we determine whether or not it can be a construction and waste facility”. Otherwise he fears that the Village could “end up in the midst of a financial catastrophe” where taxes double or triple while home values slide.

In conclusion, Mr. Kauderer asked the board to think about his comments and urged the Board to “consider forming a advisory committee” because he feels the Village has “gotten some very bad advice on this issue” and adds that he doesn’t “think the risks have been fully explained”.

Option: Download and watch this video clip of David Steinmetz in Quicktime format (13:09 mins. | 19.6 mb).

Attorney David Steinmetz, who has appeared before varying Village boards during the past eight years in his role as counsel for Metro Enviro, began by saying, “I’m here tonight to oppose your condemnation of this particular property”. He continued by recognizing a municipality’s Constitutional right to the “awesome power of eminent domain” but also reminded the board that the power is “not unbridled, its not unrestricted and is subject to some very important parameters”. Mr. Steinmetz, and his client Greentree Realty believe that should the Village proceed that they “would be in a position to violate the Constitution and improperly exercise the power under the Eminent Domain Procedure Law”.

Mr. Steinmetz cites that there must be a “valid public purpose” to invoke eminent domain, and that “government must establish its purpose and need and then invoke the power of eminent domain”. Further, Mr. Steinmetz believes that in this proceeding, “the record shows, it’s backwards”. He maintains that “the record will show that the Village identified this piece of property, a piece of property which we all know has been controversial in this Village for many years, and then began to determine whether you could plug in a suitable public purpose and need to justify its taking”.

Both Mr. Steinmetz and his client, Greentree Realty LLC, also question whether the Village has “engaged in any recent meaningful evaluations of other properties”, while commending Village Manager Herbek for providing a thorough historical account about the need for a new DPW site. But, Mr. Steinmetz questions “whether there has been any recent empirical analysis of other properties here in the Village”.

Mr. Steinmetz also confirms that the Village “cannot condemn land in excess, under the Constitution, in excess of a stated need” and points to a report compiled in 2004 by the Village that stated the DPW would need a parcel of land between four and six acres, and adds, “There is no articulated need for ten acres.” Additionally, during negotiation held between Allied Waste and the Village about 18 months ago, that “it was clear that what the Village was talking about was a portion of property at the rear” that amounted to close to the stated need. Therefore, Greentree Realty LLC’s position is “that if the Village needs a DPW site of four to six acres, the Village has no Constitutional lawful basis to take ten acres.”

Next, Mr. Steinmetz states “condemnation cannot be conducted in bad faith.” While recognizing that the site has been a controversial parcel in Croton, the attorney also reminds the board that “The Village is prosecuting one lawsuit at the same time the are defending another while there is a permit matter before the Zoning Board of Appeals which all involve the pre-existing legal non-conforming rights to use this property for solid waste purposes.” He continues by saying “I find it quite ironic that after we were successful in front of Judge Nicholai and got a determination, of at this point, a likelihood of success on the merits of the non-conforming use argument, that suddenly for the first time, the Village waves the awesome power of condemnation, not only before my client but before this entire community.” Further, he “submits to the Board, with all due respect, that this record reeks of bad faith” while his client, Greentree Realty LLC, has been trying to protect its property rights.

Further Mr. Steinmetz questions why at the same time the Village has begun discussing an amortization provision in the zoning ordinance. He also states he believes the Village has created a record they will have a hard time defending because of the Village’s consideration of both land use tools at the same time.

Lastly, Mr. Steinmetz, after filing a FOIL request ten days before the public hearing, did not get copies of the environmental assessment forms from Village Attorney Marianne Stecich, and cautions that without them, both he and his client are at a “severe and unfortunate” disadvantage. As a result, requests that the public hearing remain open until he has reviewed them with his client. Mr. Steinmetz also expressed concern that he hope the Village will analyze the environmental impact of the proposed use and at the same time take into account for the impact suffered by neighboring communities that will no longer have access to a waste transfer operation such as what had operated at the Metro Enviro site in the past.

In closing Mr. Steinmetz urges the board to abandon the eminent domain proceeding and revisit the Public Purpose Doctrine because the Village has no valid public purpose to condemn this property and will result in a determination that eminent domain proceedings were not properly invoked.

Option: Download and watch this video clip of John McManus in Quicktime format (6:47 mins. | 8.0 mb).

Appearing on behalf of Crane, Parente, Cherubin & Murray representing Regus Industries LLC, Suburban Carting Corporation and Northeast Interchange Railway LLC, John McManus stood in front of the Board to formerly oppose, for the record, the proposed condemnation of the property at 1A Croton Point Avenue. Though his positions mirror those of Mr. Steinmetz, Mr. McManus maintains that the Village is “acting arbitrarily and in bad faith of the proposed condemnation”.

Moreover, he reminds the board that NIR is now in possession of its operating permits and licenses from Westchester County and the NYDEC and is prepared to commence operations at the facility. Mr. McManus and his client believe that “condemnation is the latest ploy by the Village to insure that the facility does not reopen”. Further, Attorney McManus also claims that the “Village is acting irrationally in its selection of the property for its alleged public use”.

Furthermore, Mr. McManus goes on to state that condemnation of the property may be pre-empted by the Interstate Commerce Commission Termination Act of 1995, in part because the property has 1,600 feet of rail track that connects with CSX Transportation Inc. and can provide rail transportation for the trans-loading of construction, demolition and other materials. Therefore, he contends that the court may find that the Village’s application of eminent domain procedural law can be considered for pre-emption.

And in summary, both Mr. McManus and his clients object to the condemnation of the property as both being improper and in bad faith.

See other related artcles in the “Metro Enviro” section on Crotonblog.


Recent Articles