Church vs. state

Read the US Constitution. No matter how long you search, you will
never find the phrase “eminent domain.”

            It is a legal
procedure that authorizes the government to take private property for a price
it deems appropriate, whether or not the owner has any intention to sell. The
practice and its application are grounded in national jurisprudence and
historic tradition, and its roots are actually in the Constitution.

            In other words,
if the government has plans that meet criteria deemed beneficial to the
community, and those plans require the use of your land, it can force you to
sell the property.

            That’s the
message being conveyed to a Brighton church, the 69-year-old Faith Temple on
1876 Elmwood Avenue. The church recently entered into a contract with a private
landowner to purchase a 66-acre parcel of property off Westfall Road. Faith
Temple wants to use the land to build a new church complex, complete with a
school and possibly a senior home, since its current location is no longer
suitable for the 1,300 to 1,400 weekly attendees.

            But the Town of
Brighton has been trying to buy the land for years. Owner Alan Groos insists
the town hasn’t been willing to pay enough for it. In mid-April, Brighton
announced it has initiated eminent domain proceedings. The town held a public
hearing on the matter on April 28 as part of the monthly town hall meeting.

The
gathering was a contentious, rollicking affair. More than 300
people overflowed the assembly room and spilled out into the lobby. Many
watched the proceedings on closed-circuit television. Others socialized in the
atrium and lingered on the stairs outside.

            The public
commentary section of the meeting began at 7:20 p.m. and lasted until a few
minutes before midnight. Members of the audience who were at the meeting to
address other items on the agenda appeared alternately captivated and
glassy-eyed.

            They shared
newspapers in the lobby and spoke on cell-phones just outside the entrance of
the building. One man joked under his breath about catching a late movie and
coming back. Another, the president of a local corporation, sat down, tilted
his head back against the wall, closed his eyes, and, by 11:30 p.m., was
snoring audibly not 10 feet from the open doors of the lively assembly.

            Inside, many of
the church’s supporters expressed disappointment at the town’s decision to
initiate eminent domain. Church officials and members said they were still
involved in negotiations with the town for some kind of settlement of the
issue. They said the plot of land could accommodate both the new building
Temple Faith plans to construct as well as the park the town intends to
develop.

            The disputed
property sits directly in the middle of two other parcels of unused land —
one plot owned by the church, and the other by the town.

            “Why are you
putting your park in the middle of our parcel of land instead of putting it on
one side or the other?” said the Rev. Stephen Edlin, the pastor at Temple
Faith, as he spoke before the board and the assembled crowd.

            The town and its
supporters said the plans for the park had been in the works for years. They
were made public and widely supported by a four-to-one margin in a town referendum
in December, 2002. The referendum described the town’s plans and listed the
properties that would have to be acquired.

            The Groos
property is listed as an “alternative” acquisition. At last week’s
meeting, Town Supervisor Sandra Frankel said it was a “critically
important” aspect of the central park and open space the town envisions.

The
properties listed in the referendum came from the town’s 2000
Comprehensive Plan. Item four of its “Open Space and Recreation
Recommendations” reads: “Acquire a minimum of 32 acres of open space
suitable for active and passive recreation…. The preferred location is adjacent
to existing parkland or significant open space areas.”

            The plan also
lists a series of “Open Space Areas Recommended for Acquisition.”
Area 6 of this list is the Groos property. The plan concludes, “Area 6
should prove suitable to meet the requirements of [item] number 4 [of the Open
Space and Recreation Recommendations].”

            Church officials
say “Area 6” is 66 acres, while “Item number 4” recommends
the acquisition of 32 acres, so the town does not need the entire parcel.
Church officials also reference a passage in the Comprehensive Plan that
encourages the town to be flexible.

            “The Areas
Recommended for Acquisition below do not represent the only areas in Brighton
that would be valuable additions to the town’s parkland inventory. If any of
the areas recommended for acquisition cannot be acquired in a reasonable amount
of time and/or under reasonable terms, suitable alternative areas should be
found to replace them,” the report says.

            Glenn Baker, the
executive director of administration at Faith Temple, says the town should not
allude to the report if it is not prepared to follow its recommendations.

            “If eminent
domain is reasonable, then what is unreasonable?” he says.

            Church officials
insist they had the blessings of the town to pursue the Groos property, since
the board was unable to reach a deal to purchase the land. The understanding
was, according to Baker, once the church acquired the land, it would negotiate
with the town and reach a satisfactory agreement allowing both sides to use the
space for their respective needs.

            The church signed
the purchasing agreement with Groos on January 13, Edlin said at the public
hearing. Two days later, church officials met with Brighton Commissioner of
Public Works Thomas Low. During that meeting, Baker says, Low encouraged them
to proceed with their plans, as the town had been unable to reach a deal with
Groos. Low asked the church to provide the town with a detailed account of
their plans for the property, as well as a timeline for development, Baker
said.

            The church did
not have any further communication with town officials until April 13, Baker
says, when it was informed that Brighton had initiated eminent domain
proceedings to acquire the land.

            Low says he has a
different recollection of the January meeting.

            “[The
church] simply informed me that they had acquired the property,” Low says.
He then informed the church officials of the necessary steps it would have to
take in order to proceed with any development plans, which is part of his job,
he said.

            Asked if he had
encouraged the church officials to proceed with their plans to purchase the
property, he said “no.” In fact, he reiterated the town’s intention
to acquire the property, he said.

            The town had made
an offer to Groos, Low said, which was rejected. The town now has 90 days to
make a formal offer based on “fair market value” for the land. Though
technically Groos is still currently the owner, the purchasing agreement should
be finalized soon, and the church will likely own the land when the town makes
its formal offer.

            “Mr. Groos,
I’m here to tell you, we will close on the land,” Edlin said during the
public hearing.

            Low says the town
is employing a responsible use of eminent domain, as the land will be used for
a public purpose and a fair price will be determined.

Among
the town’s supporters who spoke at the meeting was Hugh Mitchell, the
chair of the regional chapter of the Sierra Club, which backs the effort to
establish a public park. The need for municipal and government protection of
open space is vital in combating suburban sprawl, a growing concern in
Brighton, he said.

            “The
public-space spirit and the feeling involved is larger than the vision of one
church,” Mitchell said. He said eminent domain has played a positive role
in the past. As an example, he cited Genesee Valley Park, which he said sits on
land that was obtained through eminent domain.

            Other proponents
of the park plan invoked the potential communal use of the space, especially
for youth sports leagues that must share a limited number of fields in the
town. Representatives and coaches from various soccer and baseball
organizations asked the church members to think about how constructive the
space could be for children involved in extra-curricular sports and other
recreational activities.

            “We’ve got
nowhere else to go,” said Tom O’Rourke, the director of a local youth baseball
club that has 1,000 kids of a variety of ages and skill levels, but not enough
fields to play the games. “We desperately need these fields.”

            Groos spoke at
the hearing and defended what he said was his right to sell his property to
whomever he sees fit.

            “Does anyone
here object to me selling my land to someone who gives me fair value?” he
said.

            He glared at the
board members and claimed they had lied to him for years about the value of his
land.

            “I am
offended by you. I have been offended by you for a very long time. You have not
been honest. You have not been fair,” he said.

            “The town is
like a little kid at Christmas. They make a list, ‘we want this, this, and
this,’ and they expect mommy and daddy to show up Christmas morning and give
them everything on the list,” Groos said.

            Last year, an
appraiser from the town checked the property, Groos said.

            “Yet I never
saw the appraisal. Was the price too high?” he said.

            Church officials
say they left with hopes of returning to the negotiating table with the town.
The town, however, says it is the will of the voters to create this park, and
it will do whatever it takes to satisfy Brighton’s residents.

Eminent domain: a primer

Since the early days of the country’s history, eminent domain has
fueled a number of arguably necessary and publicly popular projects throughout
the nation. It has played an important role in the growth of the railroads and
the electrification of rural lands, and has been used to clear space for
bridges, tunnels, government buildings, and airports.

            Eminent domain
can be initiated by local, state, or federal government, and centers on the
ability to acquire private property considered important to the public
interest. The landowner is forced to sell, but must be compensated based on
what is determined to be “fair market value.” The authority that
wants to take the land files an estimate of the property’s worth upon the
declaration of its intentions.

            The process is
rooted in the Fifth Amendment of the US Constitution, which orders that no
“private property be taken for public use, without just
compensation.”

            Though it has
been used for public good, many instances of eminent domain have raised
questions of abuse.

            The Institute for
Justice, a nonprofit law firm based in Washington, DC, released a report last
year documenting what it considers to be unjust applications of the process.

            Among the
examples the report cites are the eviction of a woman in her 80s from her home
of 55 years in Bremerton, Washington, for a sewer plant expansion that never
happened. Instead, the site was turned into an auto dealership. In New York
City, the Empire State Development Corporation condemned an entire Times Square
block on Eighth Avenue between 40th and 41st Streets for a new 52-story office
tower for The New York Times. In Port
Chester, New York, a Hispanic neighborhood occupied by antique shops, specialty
retail, and restaurants, and described by the Institute for Justice as
“thriving,” was condemned. The village had made a deal with a private
contractor who wanted to turn the area into a big-box shopping center.

            “As early as
1795, the US Supreme Court described the power of eminent domain — where the
government takes someone’s property for a ‘public use’ — as ‘the despotic
power,'” the report states.

            New York State,
according to the Institute for Justice, is “perhaps the worst state in the
country for eminent domain abuse.”

            One controversial
aspect of eminent domain is the lack of a clear-cut definition of “just
compensation” in the Constitution. Federal and state codes have spelled it
out as “fair market value,” though no exact formula for determining
such a figure has been agreed upon nationally.

            The “fair
market value” declared by the government agency initiating eminent domain
is often a cause of contention by the landowner. Sometimes the issue is settled
amicably when both sides agree on a figure, while other times the issue evolves
into a legal battle. In some cases, the private citizen whose land has been
targeted can no longer compete financially with the government and eventually
concedes.

This article appears in May 5-11, 2004.