What is eminent domain?
Eminent domain is “the power to take private property for public use by the state, local government and entities who exercise functions of public character.” The typical taking is for building a highway. In that case, the government tries to buy the needed land: if the owner doesn’t agree, the government has to go to court for an order to transfer the ownership of the land to the government.
So, how can New York Regional Interconnect [NYRI], a private corporation, use eminent domain to put up an electric transmission line?
I thought that only the government got to use eminent domain. NYRI is incorporated in New York under the Transportation Corporation Law [TCL]. In 1947 this law gave to electric corporations “the power and authority to acquire such real estate as may be necessary for its corporate purposesand the right of way through any property in the manner prescribed by the eminent domain procedure law.” Back then, public utilities that produced, transmitted, and serviced electricity and gas, were the ones putting up electric transmission lines. But recently, government deregulation policies have led to private companies that only do some of these services. If a land owner does not want to sell to NYRI, it can go to court and force the sale as long as it can produce a certificate of need from the Public Service Commission, called an Article VII permit. The Transportation Corporation Law made the creation of the transmission line a public use and a public purpose. That prevents the landowner from arguing in Court that this transmission line is not in the public interest.
What will happen to me if I am in or near the path, if the NYRI Powerline is approved?
You will be notified of an offer from NYRI of an amount of money for the land they want. If their offer is not accepted, NYRI will start a lawsuit in the Supreme Court of the County in which the land is located (if the NY Public Service Commission is the permitting agency) or in a federal court (if the US Dept. of Energy issues the permit). The lawsuit will ask the Court to change the ownership to NYRI and declare the proper compensation for the land.
Do I have to pay for my own lawyer and expert witnesses such as appraisers?
Yes, you will be responsible for those expenses unless the Court determines that the value set by the Court “is substantially in excess of the amount of“ NYRI’s offer and the Court finds that to achieve just and adequate compensation it “may” award additional amounts for actual and necessary costs, disbursements and expenses, including reasonable attorney, appraiser, engineer fees actually incurred by the disputing land owner. Eminent Domain Procedure Law §701. The Court is not required to do this, but it has discretion to do it when the offer was substantially lower than what the Court finds the property is worth.
How will the Court decide the value of my property?
The Constitution says private property cannot be taken without “just compensation.” Generally the “market value” is used when taking residential property. If the property is income-producing, such as a business or a farm, an income analysis may be used. The value is not limited to its present use but may also take into consideration its highest and best use.
Won’t NYRI have to pay me more because I don’t want to sell my property?
No. The law says they have to pay the value of the property and it is not more valuable because you don’t want to sell.
Can I make NYRI take all of my property even if they only want to buy a small part of my land?
No. The Eminent Domain Procedure Law allows a “partial taking.”
If NYRI only takes part of my property, won’t they have to pay me more because the value of my remaining property will be less due to people’s cancer fears or because of my cancer fears?
Damage to the value of the remaining property in a partial taking will be assessed. However, the cancer fear argument has been hard to prove in New York State. The landowner will have to show through expert witnesses that the powerline has negatively affected the value of similar properties because of the public perception of a health risk. The landowner does not have to prove that the public’s perception is scientifically based.
How close can the transmission line be to my house without NRYI having to buy my house?
Current codes require new construction to be 75' from high tension rights-of-way. New distances will probably be set for HVDC lines such as NYRI proposes. Stay tuned.
What is the impact of the federal designation of a National Interest Electric Transmission Corridor which includes Chenango County?
Both New York State and the Federal Government, are able to permit NYRI’s proposal for the High Voltage Electric Transmission Line. Either level of government can allow property to be taken by eminent domain. In both instances, the company does not have to get permission from the local government.
THIS INFORMATION IS PROVIDED BY THE CHENANGO COUNTY GREEN PARTY TO INFORM PEOPLE OF THE NATURE OF EMINENT DOMAIN PROCEEDINGS. HOWEVER, WE BELIEVE THAT EVERYONE’S BEST CHANCE IS TO STAND TOGETHER AND WORK TO DEFEAT THE NYRI PROJECT AND CHANGE THE LAWS THAT GIVE CORPORATIONS THE RIGHT OF EMINENT DOMAIN. FOR UPDATES ON THE NYRI STRUGGLE, VISIT www.chenangogreens.org
Also, we have set up a list serve (or yahoo group) for people concerned with how NYRI will be exercising eminent domain, if it is permitted to build its proposed powerline. If you join a listserve, you will be able not only to get information, but also ask questions that anyone in the group can respond to. To join the listserve, send a blank email to:
NYRIeminentdomain-subscribe@yahoogroups.com
No comments:
Post a Comment