Recently, the Second Department affirmed an additional allowance pursuant to EDPL Sec. 701 to the extent of awarding $233,391.46. Matter of Village of Spring Valley (Little Angel Day Care Center, Inc.). Joshua H. Rikon tried the trade fixture claim and argued the appeal.
The Village, as it has in past cases, offered a low-ball appraisal and paid an advance payment of $90,960.
The trial court awarded $469,114 as just compensation. The award was previously affirmed and claimant thereafter moved for the additional allowance. Little Angel was fully compliant with New York State regulations and operated the daycare facility for ten years prior to the taking. The Village initially promised to help relocate Little Angel, but did not. Further, it refused to pay an advance payment until 2013, four years after condemnation.
The Village has a long history of corruption. The former Mayor is serving four years in prison after an FBI operative posing as a developer gave her $5,000 and a 50 percent stake in a project. All she had to do was condemn some property for the project. If one was to “google” Village of Spring Valley corruption, a long list of convicted elected officials would appear.
In the brief filed in the Appellate Division on appeal of additional allowance award, the attorneys argued that the award should be reviewed on the impact on the public fisc. The court should have addressed undisputed municipal poverty issues before making any additional allowance award under EDPL Sec. 701. The argument is we should not have to pay constitutionally mandated just compensation because there was municipal poverty.
This was completely mendacious. Actually, mendacious is too mild a description for the Village’s statement. It was a complete lie. The assertion of municipal poverty is disingenuous. There was no proof to show that the Village was without the means to raise the funds to pay the award. There were federal funds available. Furthermore, the Village sold the land to a private developer. There was a Land Acquisition and Development Agreement (LADA) whereby the developer assumes responsibility for property acquisition costs, including the payment of condemnation awards.
The Appellate Division stated, “[t]he condemnor’s remaining contention, that the award was unreasonable in light of the condemnor’s alleged fiscal condition, is without merit.”
Now, this is not the first time a condemnor in Rockland tried to avoid paying a judgment arising from condemnation. In Matter of Village of Haverstraw (AAA Electricians, Inc.), 33 Misc3d 1232 (Rock. Co. 2011), the Village took 18.9 acres of vacant land having direct frontage on the Hudson River. The property was taken for development for luxury residential homes. The Village paid an advance payment of $2,596,150. At trial, the condemnor lowered its value to $1,000,000. The trial court awarded $6,500,000.
The Village appealed the judgment. It obtained permission to file an amicus curiae from the Rockland County Executive. The amicus brief did not relate to the merits of the case. The only argument made was that the Village of Haverstraw was a very poor community. In response to this frivolous argument, I pointed out that the developer, Ginsburg Development, was obligated to reimburse the Village for all acquisition costs for the “Harbors at Haverstraw.” The award was affirmed. 114 AD3d 955 (2014). The Appellate Division subsequently affirmed an award for additional allowance under EDPL Sec. 701 for $1,190, 582.94.
Perhaps, a Rockland County condemnor should be barred from filing a condemnation petition until it can establish the ability to pay sure and certain compensation.