NEW SCOTLAND — New Scotland residents who will have a Bethlehem water line run through their front yards, left a recent public hearing wondering what rights they have as landowners.

Christ Gaetanos, a commercial real estate lawyer and professor at the State University of New York College at Fredonia said that eminent domain as an issue, is a controversial one.
Rulings across the state and nation go both ways, he said. "Cases seem to go all over the place," but the government is given enormous leeway.

has been around for hundreds of years, and governments can take land from private owners as long as the owner is justly compensated, Gaetanos said.

A United States Supreme Court decision handed down on June 23, Kelo v. New London, Conn., comments on the tenant that a municipality cannot take property to directly benefit a private entity.

In this Connecticut case, Pfizer was building a new drug plant, and the town of New London wanted to rehabilitate the city, and put in a high-rent district, and enhance the area around Pfizer’s plant, Gaetanos said.

The high court ruled, 5-4, that this is legal, he said.

The court’s position has been that in order for a government to take land, it has to be for the overall public good, or public use, Gaetanos said.

He agreed with the position held by Bethlehem’s town supervisor, Theresa Egan that generally water lines are considered to be for the general public purpose. But, he said, this situation between the town of Bethlehem and New Scotland residents is an unusual one.
"It is certainly a twist that the land is outside of Bethlehem’s usual jurisdiction," Gaetanos said. Alaska, for example, cannot take New York State property, Gaetanos, said.

In this case, where the towns are neighboring, he said, the county court’s position on the matter would also be affected based on whether or not Albany County takes a regional approach to planning.
If New Scotland residents want to challenge Bethlehem, Gaetanos said, "I think the challenger will have the uphill climb."

If New Scotland residents rally and complain to their own government, and the town of New Scotland as a governing body makes an official complaint, it would make the complaint more valid and a much bigger deal, Gaetanos said. This would increase the residents’ chances of winning in court, he said.

This month, the New Scotland Town Board unanimously voted in favor of signing over the easements of town-owned property along Route 85 to the town of Bethlehem.

Councilman Scott Houghtaling said that he had no problem allowing Bethlehem to use the land for construction. He said he considered New Scotland’s granting the easement the neighborly thing to do.
Most of the battles fought in courts on this matter are over money and compensation, Gaetanos said. "Let’s face it, everything is for sale," he said.

He gave the example of when the city of Buffalo bought land around Roswell Park in order to expand the medical facility.

A number of nearby residents refused to sell their homes and, while they lost in court and were forced to sell, most ended up receiving more money for their property, Gaetanos said.
He remembers one particular elderly couple who had lived in the neighborhood their entire lives, fixing up and building the place — they wanted to die there. The court’s position was still "tough," Gaetanos said.

The fact that Bethlehem isn’t purchasing the land but just asking for easements makes it an even harder case for new Scotland residents to contest.
Sentimental things like historic family barns or a favorite maple tree, "That kind of argument isn’t going to go very far" in the courts, Gaetanos said.

Political pressure may have a greater impact, he said. In this case, a New Scotland resident pressuring town officials to lobby Bethlehem officials to consider a special circumstance may be more effective, he said.

He thinks Bethlehem has a better case, in court, since the project is for the overall good of society.
But, the greatest ground for a challenge is the one of jurisdiction, Gaetanos said. If someone wants to spend the time and money to pursue a case, it would be "ground breaking law," Gaetanos said. It would be the basis for other cases like it in future, he said.