VOL. VI, NO. 1 SPRING 2005
Welcome to the Spring, 2005 Edition of “Report from Counsel,” a Newsletter for the Firm’s clients and the other professionals who consult with the Firm, updating them on our practice as well as important new developments in the law.
NEW DEVELOPMENTS AT THE FIRM
The Firm is especially pleased to welcome Richard J. Weinberg as counsel to the Firm. Mr. Weinberg is one of the preeminent real estate attorneys on Long Island, and has been an active member of Long Island’s real estate and business community for many years.
Mr. Weinberg will continue to concentrate his practice in commercial and residential real estate development and financing, commercial leasing, corporate law, mergers and acquisitions and all business transactions.
Prior to joining Sahn Ward Braff Koblenz & Baker, for nearly thirty years Mr. Weinberg was the managing partner in the law firm of Weinberg & Kert. Mr. Weinberg began his legal career after serving in the U.S. Army and has been a member of the New York State Bar since 1954. He is a graduate of Long Island University and Brooklyn Law School and a member of the American, New York State and Nassau County Bar Associations. He has served as a member of the Planning Board for the Town of North Hempstead and is a former Chairman of the Zoning Board of Appeals for the Village of Old Westbury. Mr. Weinberg is an Associate Trustee of the North Shore/LIJ Health System where he serves on the Cardiology Leadership Committee.
We have also welcomed Alyssa Litman, a second-year law student at Hofstra University, as a law clerk. Alyssa grew up in Philadelphia and is a graduate of the University of Pennsylvania, College of Arts and Sciences. She was included in the 2005 edition of Who’s Who in American Law Students and has been awarded the Hofstra School of Law Merit Scholarship not once, but twice!
The Sahn Ward Braff Koblenz & Baker website continues to grow. We invite you to visit the Press Center, which has been updated to include the latest recognition of the Firm in the media and legal press.
MATTERS RECENTLY CONCLUDED BY THE FIRM
The Firm has successfully concluded the representation of a commercial landlord in a dispute with its tenant over the landlord’s refusal to consent to the assignment of a lease of a 136,000 square foot manufacturing facility. In the litigation, which was pending in the Commercial Division of the Nassau County Supreme Court, we obtained the dismissal of $30 million in claims against the landlord and ultimately negotiated a settlement that resulted in the payment of $7 million in compensation to the landlord, including reimbursement of $450,000 of the landlord’s attorney’s fees.
We have also successfully concluded the representation of a client in the purchase of a $3.25 million camp and school property and in litigation relating to a right of first refusal of the property allegedly held by a tenant on the property. The Appellate Division, Second Department, affirmed the Decision and Order of the Suffolk County Supreme Court which dismissed the tenant’s lawsuit to enforce the right of first refusal on the grounds that the tenant’s alleged right of first refusal was unenforceable under New York’s Statute of Frauds, which requires certain agreements to be in writing and contain all material terms. The court victory cleared the way for the Firm’s client to close on the acquisition of the property.
In another Nassau County Supreme Court action, we secured the dismissal of a $3.5 million fraud claim brought by a group of insurance companies against the Firm’s client, a medical professional.
In the land-use area, the Firm has obtained variances from the Zoning Board of Appeals of the Town of Hempstead for a client’s proposed renovation of a 72,000 square foot industrial building and then successfully defended the granting of those variances in a subsequent Article 78 proceeding commenced by neighboring property owners in Nassau County Supreme Court.
The Firm has also obtained a change of zone and a parking variance from the Town of Hempstead in connection with a proposed 11,000 square foot expansion of a 44,000 square foot Waldbaum’s supermarket.
Sahn Ward Braff Koblenz & Baker represented Habitat for Humanity-Nassau County in securing zoning approvals and variances from the Town of Hempstead for the construction of a new single family home in the Town. The Firm is proud to have helped Habitat for Humanity in its efforts to provide affordable housing, and we are gratified that the Town gave its full cooperation and recognized the public benefit of the application.
NEW AND ONGOING MATTERS BEING HANDLED BY THE FIRM
Sahn Ward Braff Koblenz & Baker is representing a commercial property owner who is being sued by neighboring commercial property owners for $15 million in damages for an alleged breach of a joint venture agreement to market and sell their respective properties.
The Firm has also been retained to represent the owner of a $10 million hotel building in New York City who has been sued by a creditor of the prior owner. The creditor is seeking to void the sale of the property to our client in order to reinstate title to the property in the name of the prior owner so that the creditor can execute on a $6 million judgment against the prior owner. The case is pending in the United States District Court for the Eastern District of New York.
In addition, we are representing a commercial property owner in two separate actions against a municipality in Nassau County regarding the rezoning of the client’s 25,000 square foot building from an industrial use classification to a residential use classification over the client’s objection. The Firm is seeking the annulment of the rezoning based on the municipality’s failure to comply with the New York State Environmental Quality Review Act, or, in the alternative, $10 million in damages for the destruction of the property’s value caused by the rezoning.
The Firm continues to represent the Metropolitan Transportation Authority with regard to commercial landlord-tenant disputes in Queens, Nassau and Suffolk Counties.
In the land use area, we have been retained by the owner of a 137 acre parcel in the Town of Riverhead to provide advice and counsel on the potential development of the parcel and representation before local land-use boards in order to obtain the necessary approvals.
We have been retained by the purchaser of a 40 acre tract of land in the Village of Old Westbury to represent the purchaser in connection with a residential subdivision of the property.
THE EXTENT AND SCOPE OF THE POWERS OF EMINENT DOMAIN
By: Michael H. Sahn
The United States Supreme Court will soon announce its Decision in the case of Kelo v. City of New London, No. 04-108, the most significant case to reach the Supreme Court in many years concerning the extent and scope of the power of eminent domain. The Fifth Amendment of the U.S. Constitution provides that no person shall be deprived of property without due process of law, “nor shall private property be taken for public use without just compensation.” The Fifth Amendment applies to the states and local municipalities through the Fourteenth Amendment. The New York State Constitution also requires that the power of eminent domain be exercised only for “public use.” The question before the Supreme Court in Kelo is whether taking private property to further “economic development” is a valid “public use.”
Traditionally, local municipalities have invoked the powers of eminent domain for governmental public works projects like roads, parks, bridges and public buildings. These are obvious examples of using the power of eminent domain for “public use.” Condemnations have also been undertaken and judicially approved to remove “blighted areas” and to further urban renewal projects. The Kelo case goes much further.
In Kelo, the Connecticut Supreme Court ruled that taking private property from one land owner and transferring it to a private developer for purposes of a large-scale land development that would increase local tax revenues, provide jobs and improve the local economy was a valid “public use.” This decision represents a broad view and interpretation of the Constitution’s “public use” requirement.
Courts in other states have reached a contrary conclusion. For instance, the Michigan Supreme Court recently ruled in the case of County of Wayne v. Hathcock, that the condemnation and assembly of privately owned parcels to be turned over to a private developer in order for the developer to create a business and technology park was not a “public use” under the Michigan Constitution. This holding actually overturned a 1981 decision by the same Michigan Supreme Court in Poletown Neighborhood Council v. Detroit. In that case, the Court decided that the condemnation of privately owned land in order to allow for the construction of an automobile factory was constitutionally permitted as a “public use.”
Thus, the debate before the U.S. Supreme Court is whether local governments can use the power of eminent domain to acquire property for a private development that will provide perceived economic benefits to the overall community. We await the Supreme Court’s ruling on this important issue and will report further after the case is decided.
HEALTH CARE PROXIES AND LIVING WILLS
The situation faced by Terri Schiavo’s family has led to a national discussion on end-of-life planning. It is important that every person have a Health Care Proxy and Living Will for health care decision making. The Living Will delineates wishes regarding the use of life prolonging equipment or measures in cases where the patient has no reasonable expectation of recovering due to illness, injury or disease. The Health Care Proxy names a specific individual who is empowered to make critical decisions at the appropriate time to carry out the patient’s wishes. If you do not have these two documents, we will send you the forms to complete or make them available, without a fee. Please call our office if you would like the forms or would like to consult with us on these or related matters.
OUT AND ABOUT
Michael Sahn served as a source in an article that appeared in Long Island Business News on real estate law on Long Island. He observed that low interest rates and mortgage loan refinancing have triggered many new development proposals, and that previously underutilized properties are being developed and renovated. However, Sahn said that the biggest challenge facing property owners are increasingly strict zoning regulations. The big question for the future, Sahn asked, is how far can governments go in rezoning property uses?
An article by Jon Ward in the December, 2004 issue of the Nassau Lawyer, published by the Nassau County Bar Association, examined the evolving judicial standards applicable to civil rights claims brought under the due process and equal protection clauses of the United States Constitution in land-use disputes. The article reviewed two recent decisions from the New York Court of Appeals in which the Court considered claims by property owners for money damages arising from arbitrary denials of their land-use applications by local governments. The Court held that arbitrary denials of land-use applications, without more, will not support claims for money damages against local governments based on the due process and equal protection clauses. In order for such civil rights claims to stand, the arbitrary action must be coupled with some type of other bad faith or egregious conduct by the government.
UP CLOSE AND PERSONAL
Dan Baker, a member of the Board of Trustees of the Long Island Chapter of the Leukemia & Lymphoma Society, is once again organizing the 9th Annual South Shore Invitational Leukemia Golf Outing, which will tee off on Monday, June 27, 2005, at the Southward Ho Country Club in Bright Waters. If you are interested in a fun-filled day of golf, brunch, cocktails, dinner and prizes to help find a cure for leukemia, lymphoma and blood cancers, please contact Dan.
Eric Silverman has become an active member of the East Meadow Chamber of Commerce and is lending a helping hand to the organization’s Day at the Races at Belmont, a fund-raising event for the Chamber.
With the start of baseball season, Sahn Ward Braff Koblenz & Baker is delighted to announce that the Firm will be well represented by an East Meadow Little League Tee-Ball team with Eric Silverman coaching and his six year old son, Jacob, swinging away. Play ball!
Karen Roth has been recognized for her volunteer efforts in raising funds for the Bar Association’s annual We Care Fund Drive. Congratulations to Karen on this important service to the profession and the community.
We are also pleased to report that Jeffrey Greenblatt will be returning to the Firm for a second summer as a law clerk. Jeff, who has now completed his second year at St. John’s Law School, graduated with Honors and Distinction from The University of Michigan, with a B.A. in Political Science. Jeff grew up in Huntington, New York.
SAHN WARD & BAKER, PLLC’s “Report from Counsel” is published with the intent to inform readers of recent developments at the Firm and in the law. It is not intended, nor should it be used, as a substitute for legal advice or opinion which can be rendered only when related to specific fact situations.