On Thursday afternoon the Village of Ellenville was served with a petition, written by attorney J. Phillip Zand, challenging the municipality's right to perform an eminent domain proceeding on the plot of land located at the intersection of Route 209 and Canal Street owned by Tadasuke Kuwayama and his wife Patricia.

The petition will now force the village to make its case to condemn the lot in question before the Third Appellate Division of New York State in Albany.

The village's argument for moving forward with an eminent domain proceeding consists of a several points that have been made clear by Mayor Jeff Kaplan.

1. Mayor Kaplan has said that the "pocket park" known as Resnick Park has received roughly $200,000 worth of improvements over the years to make it a viable green area for village residents. Given that, to not claim that land as public property is to have lost both the taxpayer funds and donations that were necessary to develop the lot. As Kaplan said, "The property represents a significant village investment."

2. Kaplan explained that the village's attempt to create the park has been a goal going back through four different village administrations. The property was sold in January of 2000 under the administration of T.J. Briggs for $50,000 at auction.

3. The village's position, as mentioned in previous articles, is that the Kuwayamas purchased the land adjacent to the building located at 90 Canal Street without either the village [the previous owner of the property] or the Kuwayamas' knowledge that it was included in the building's deed. Mayor Kaplan explains, "He [Mr. Kuwayama] knows what he bought. And it wasn't the bargain that we [the village] negotiated." Mayor Kaplan stated that former village manager Mike Mills, who assisted with the Kuwayama's purchase, would have an affidavit explicitly stating that he inspected the building only – implying that the Kuwayamas understood that they would only be purchasing the building.

4. The village argues that its purpose for an eminent domain proceeding is that the pocket park will enhance the image of Ellenville, both to the longtime resident and the casual passerby. The park would also serve as a green area that is designed to provide aesthetic enjoyment and recreation space.

Considering these among other causes, Mayor Kaplan expressed his unhappiness with respect to the Kuwayamas' civic-mindedness. "What kind of a community member does this?"

With regard to the Kuwayamas' petition, Mayor Kaplan felt confident that the village would be vindicated in their action. "The court would have to substitute its judgment in place of four separate administrations who wanted to see a park there. That's not going to happen."

In Mr. Zand's brief, the attorney for the Kuwayamas argues several points.

1. The village has not been compliant with certain procedures required for an eminent domain procedure to take place. The village did not supply maps or property descriptions at the hearing nor was there a record kept of the hearing. Therefore, Zand argues, since the proper steps have not been taken, the condemnation cannot occur.

2. The Kuwayamas and the village were both fully aware of the amount of land being sold and purchased. To prove this, Mr. Zand has included a survey that was performed by Gary Hoff on August 12, 1985 – or fifteen years prior to the village's sale to Mr. Kuwayama. The survey was recertified on February 20, 2002. Mr. Zand argues that Mr. Kuwayama and the village were both in possession of this survey.

3. The village has been unduly lax in its language regarding the eminent domain procedure. In a legal advertisement for a public hearing that appeared in this publication, Zand argues, the village appears as though it wishes to condemn the entire lot including the building. The advertisement stipulated, in part, that "The improvements consist of a public park area for the recreational use and enjoyment of the general public, to be improved by a gazebo with benches, blacktop are for parking, landscaping with shrubbery in and around the Village's mural at the corner of Canal and Main Street, and a brick building offering commercial and office space. Zand questions the vagaries of the language.

4. Zand argues that the attempt to condemn part of his client's land, "does not constitute a legitimate use of respondent's [the Village of Ellenville] police power in exercise of eminent domain." Essentially, Mr. Zand is questioning whether the notion of public benefit is being served by annexing a piece of land the size of the contested lot.

With regards to these points Mayor Kaplan said that he had not yet reviewed the matter in detail and explained that he generally chose to have the village's legal counsel, Phil Cataldi, deal with such issues. But Kaplan remained certain of the village's purpose and the court's decision.

The next step in the case will occur on March 5, 2007 with the issue most likely being heard by this summer.

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