The Mohawk Valley Health System (MVHS) is still negotiating with property owners in downtown Utica who have not yet sold their land for the nonprofit's new $480 million hospital. Officials with the project say taking those properties through the use of eminent domain is a last resort, but they are willing to if necessary. And some of the property owners trying to stop the project are counting on it.
The row house at 442 Lafayette Street in downtown Utica might be where No Hospital Downtown, a group of residents staunchly opposed to the MVHS hospital, makes its final stand. One of the group's founders bought the house that's within the footprint of the proposed hospital to fight its acquisition in court.
The group's other founder Jim Brock says the city of Utica and Oneida County, which would invoke eminent domain on MVHS' behalf, will have an uphill battle in court.
"When you’re dealing with eminent domain and it’s taking of private to give to another private entity - private for private is illegal in the state of New York," Brock said. "So they have that hurdle to overcome, and we think we can beat them not only in the court of public opinion, but in the court of law."
But Columbia Law School professor Thomas Merrill, a property law scholar, says that's not true.
"There's no requirement that the person that's going to get the property after the condemnation is completed has to be public," Merrill said. "New York does not draw that line at all. In fact, there’s some language in the statute that encourages the use of private enterprise in these projects."
New York only requires that the property taken be for a "civic project," defined as something intended for an educational, cultural, recreational, community, municipal, public service or other civic purpose. MVHS and local government officials have said the new hospital meets that definition because it provides access to quality health care for the region and assists with economic development in downtown Utica.
"This is a public project," said Oneida County Executive Anthony Picente. "This is about health care. This is about restructuring our system of health care, of creating something that is beneficial to the entire region - not just one community."
Scott Perra, MVHS' president and CEO, said he has been advised by his lawyers that once Utica and Oneida County "condmen" the properties that refused to come to an agreement for the "public good," the court proceedings that follow are not about whether they now own that land.
"We do at that early point, the question is how much do we pay for the properties," Perra said. "I think there's some misunderstanding from people about what eminent domain actually is. It's not people going to court arguing we ought to move or we don’t think the hospital should be built downtown at that point in time. Those decisions have already been made. So it’s really a discussion over what’s the fair value of the property."
New York state law actually does give property owners the chance to contest whether the taking of their land will serve a public use, benefit or purpose. But Merrill says the number of public use cases that make it before a judge are relatively small, largely because it's typically used a tactic to get more money for the property and settled before court.
Merrill notes "health care" and "economic development" are technically not listed under the state's definition of a civic project, and the property owners could challenge it in court. But based on recent rulings on eminent domain, he says New York's courts are likely to say that it is.
"At least in New York, the tradition has been that the courts have been very deferential to the arguments that these are public uses, so it would be a very long shot that they would prevail in the New York courts," Merrill said.
