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Croton Hires Eminent Domain Attorney as Case is Heard in Federal Court

June 10, 2006

As a follow-up to “Lucky Croton Finds Legal Specialists for Eminent Domain”, on June 5, 2006, Trustee Ann Gallelli announced that the Board of Trustees has hired an attorney who specializes in eminent domain procedures to advise the village in matters related to the property located at 1A Croton Point Avenue—owned by Greentree Realty LLC and subleased Buffalo Southern Railroad (related: “A New Player in Croton’s Eminent Domain Game“ and “Buffalo Southern Railroad Greets Croton with New Signage”).

Video clip:

Option: Download and watch this video clip of “Croton Hires Eminent Domain Attorney as Case is Heard in Federal Court” from the Village Board meeting on June 5, 2006, in Quicktime format (1:12 min. | 1.6 mb).

Video transcript:

Trustee Ann Gallelli: “And ah, on one other thing, we had mentioned before that we had been interviewing eminent domain attorneys and we did select one. James Greilsheimer from Blank and Rome—a New York City firm. He has considerable um, a great deal of eminent domain experience. And particularly, he has experience with the federal government in eminent domain proceedings. And so we are feeling that this was a good selection because um, he will be working with Mike Gerrard and whatever aspects of eminent domain are associated with STB and federal preemptions. Ah, he should be knowledgeable and helpful in that.”

Trustee Thomas Brennan: “I’d like to echo what Ann said. I think that the eminent domain attorney very helpful and ah, I’m looking forward to get as much knowledge from this ah, procedure to help the village in our ultimate ah, goal.”

On June 13, 2006 1:03 PM, weewill said:

The following was taken from the Village website today:

Judge McMahon has issued her decision in Buffalo Southern Railroad v. Village of Croton-on-Hudson. She granted BSOR’s motion for a preliminary injunction barring the Village from condemning the property. She found that even if BSOR is operating illegally, that wouldn’t affect preemption — the ICTA preempts local authority for all common carriers, even illegal ones, she concluded. However, she basically invited the Village to go to the STB for a ruling about the legality of the operation, and points out that the STB can shut down the operation if it finds that it’s illegal. She required BSOR to post a $100,000 bond for the injunction. She also enjoined BSOR from accepting any solid waste as long as this lawsuit is still pending.

This probably doesn’t come as a total surprise to the Mayor and Village Board. The answer to whether local government actions are subordinate to those of a “higher authority”, such as a federally certified common carrier has been a serious question in all transactions to date, particularly with regard to Eminent Domain and condemnation of 1A Croton Point Avenue. This question has been raised over and over again by attorneys as far back as former Mayor Elliott’s administration and I believe by the current board as well. The expertise of Eminent Domain counsel might have answered this question had that been available prior to the board starting the eminent domain process. Judge McMahon has concluded that the Village is barred from condemning the property and has granted BSOR a preliminary injunction preventing the Village from pursuing it further.

Judge McMahon has also concluded that this preemption of local authority in the Eminent Domain process holds regardless of whether the operations of BSOR are legal or illegal at this site because there is no question that BSOR Is a common carrier. While the Village argued that BSOR’s operations are illegal, the judge has left it to the Village to pursue the answer to this question with the Surface Transportation Board (STB).

The judge’s granting of the Preliminary Injunction in BSOR’s favor allows BSOR to pursue it’s operations at 1A Croton Point Ave., exclusive of handling any solid waste.

It becomes more and more evident now that it’s up to the Village Board to explore every possibility to try and hammer out a sane and reasoned resolution to issues surrounding this site and its operations.

Georgianna Grant

On June 13, 2006 10:56 AM, Binford said:

Yesterday the Village was advised that it had lost the case brought against us by Buffalo Southern Railroad (BSOR) in which BSOR sought an in junction to keep the Village from going ahead with its eminent domain proceedings for the former MetroEnviro property. At first glance this loss may not seem significant, since Judge McMahon required BSOR to post a bond and temporarily prohibited them from accepting solid waste at the site. However, page 24 of the judge’s decision contains a disturbing statement.

Judge McMahon wrote that “the Village revealed to the Court that it would have been willing to discuss a division of the site between the portions it might need and the part BSOR wanted to use—if only plaintiff had come to it before commencing a lawsuit. This suggests that the Village may not require the portion of the property devoted to rail-related use for its public works operation.”

“Would have been willing to discuss a division of the site”? What happened to Mayor Schmidt’s no-negotiation position? Has the Village acknowledged it doesn’t need ALL the former MetroEnviro property? If so, is it possible that we could face a situation that will include having to pay the costs for an eminent domain proceeding AND still wind up with a waste transfer site over which we have NO control?

On June 10, 2006 3:59 PM, weewill said:

Thanks to Trustees Gallelli, Kane and Wiegman who forced the hiring of a special attorney to guide the village through any possible eminent domain proceedings. And thanks to Croton resident and practicing attorney, Bruce Kauderer, for alerting residents to the possible exposures inherent in engaging in ED without appropriate guidance. Trustee Brennan, who was originally opposed and uncovinced of the need, has thankfully come on board. I congratulate him on his willingness to change his position and I hope the Mayor has done so as well.

No one knows how the multiple lawsuits we face will eventually turn out. Who will win and who will lose; when the arguments will be heard, what additional challenges might still be ahead, and how many precious tax dollars it will take to resolve these unknown questions. To lock the village into one inflexible position is a mistake. We need expert advice to know what all our options are before stumbling ahead and making costly and possibly irreparable mistakes.

And a final comment - while many of us have made our opinions known at board meetings and in emails - none of us are experts. We expect the board to hear us out but in the final analysis, they must depend on the learned guidance of professionals.


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