STATEMENT OF BOB WIEBOLDT, EXECUTIVE VICE PRESIDENT,
LONG ISLAND BUILDERS INSTITUTE, IN OPPOSITION TO THE USE OF EMINENT DOMAIN FOR FARMLAND AND OPEN SPACE ACQUISITION, TOWN OF BROOKHAVEN

PRESENTED TOWN BOARD MEETING AUGUST 23, 2005

LIBI represents several hundred members with interests in land and land development in Brookhaven. We have supported two early bond open space bond issues, opposed the transfer tax in favor of further bonding, and remained neutral on the bond issue presented to voters last November. We offered our support last year, if the town included a transfer of development rights provision, similar to the one incorporated in the Suffolk County bond issue, which we supported heavily with advertising.

The open space acquisition program, to date, has been one of voluntary acquisition, following a pattern established by Suffolk County. In the proposed transfer tax, eminent domain was barred. In the town’s last bond issue, there is no explicit authorization for use of eminent domain, nor did any intent to use eminent domain appear in any town supporting information or in the media.

The proposed uses of eminent domain in hearings rescheduled for tonight, represent a fundamental change in direction that in several ways is wrong headed, completely disrespectful of private property rights, misuses public open space funds, and generates unnecessary opposition to open space acquisition. You are demonstrating a simple lack of patience in free market negotiations and a failure to offer creative planning solutions.

You may have the power, but must you use it, and must you use it now rather than later, after all alternatives are exhausted.

Landowners in a voluntary program are able to negotiate for a fair price for their interest. Value is determined in real estate by a willing seller and a willing buyer. Negotiations have no end other than an agreement.

Resorting to eminent domain changes the scenario from fair to tyrannical. An offer is made on a “ Take our offer or we will condemn.” basis. Negotiations end in an eminent domain proceeding, which is the equivalent of war. The public incurs legal expenses for condemnation far in excess of normal transaction costs. The price paid is determined by a court. That price, often awarded years later, can be based on future values, investment expectations, likelihood of government action improving value, etc. The acquisition cost and transaction cost may be higher, meaning less land is preserved.

In the Manorville case a clear pattern exists of denial of due process of an as-of – right subdivision application. We see this as a patent attempt to reduce the owner’s value, prior to a taking of his property. Negotiations for acquisition were pitiful, with minimal contact with the owner’s attorney, a low- ball offer and no serious attempts to find a planning solution, to offer transfer of development rights and purchase of the fee or to determine the alternatives the owner would consider. Only after the last town board meeting, when I introduced John Turner to the landowner, did serious discussion begin.

In Terryville, the wholesale condemnation of dozens of lots is under consideration. There is no plan. The planning alternatives of re-subdivision and transfer of development have not been proposed to save the reasonably priced homes lost

At the last town work session, without any public input, John Turner put forth the proposal for creating close to 6,000 acres of additional preservation in the Compatible Growth Area of the Pine Barrens

What are land owners to expect in these parcels? What will happen to the lot owners on Neighborhood road and Mastic Beach and Middle Country Road where moratoria still exist?

Once you go don the road of coercive taking of private property, there can be no trust between you and your taxpayers. A popular voluntary acquisition program will become a feared and controversial threat to landowners.

Your timing of this transition from voluntary open space acquisition to coercion could not be worse. A U.S. Supreme court decision as reported in national media focused on the seeming right of government to trample private property rights at its whim, for whatever scheme it was interested in pursuing.

The recent U.S. Supreme Ct. decision in the Kelo case has created a nationwide storm of protest as citizens wake up to the power of government to seize their land. The city of New London was permitted to seize private lands and homes to transfer ownership to a private business, in order for the city to get more tax revenue. In outrage, bills are moving to restrict eminent domain in Congress, more than a dozen state legislatures, including New York, and here in Suffolk County.

Lastly, has anyone examined the economic and environmental impact of the proposed eminent domain uses? Only through preparation of an EIS can all reasonable alternatives be examined.

LIBI urges you to table these condemnations and work with due diligence to negotiate alternatives that due not involve condemnation.