Q: Two lawsuits were filed against the Village of North Hills today, one in federal court, one in state court. What is the difference between the two suits?

A: Both lawsuits are aimed at preventing the Village of North Hills from seizing the privately owned Deepdale Golf Club and converting it into an exclusive golf club for the Village’s 1,800 households.

The federal court suit challenges the Village’s effort to seize the club through the exercise of the power of eminent domain.

The state court suit challenges the Village’s abuse of incentive zoning to raise a slush fund to defray the cost of the seizure of the club, a cost that likely will exceed $100 million.

Federal Court Litigation

Q: Who are the parties to the federal litigation?

A: The plaintiff is Deepdale, Inc., the non-profit company that operates the Deepdale Golf Club, a private golf club located just north of the LIE in the Village of North Hills. Deepdale Golf Course is a 50-year old club that has a diverse membership.

The defendants are the Village of North Hills and its Mayor and Trustees. North Hills is an extraordinarily wealthy village of only 1,800 households covering 2.8 square miles in Nassau County, Long Island. North Hills is a village in name only: it does not itself provide such basic functions as schools, police, fire, libraries and hospitals, but rather outsources these services from surrounding communities.

Q: Where was the suit filed?

A: In federal district court in the Eastern District of New York.

Q: Why did Deepdale file this lawsuit against the Village of North Hills?

A: Deepdale filed the suit to stop the Village from seizing the club through eminent domain and converting it into a de facto private club for the 1,800 households in the Village. Basically, the Village wants to take a private club serving one group of people, kick them out, and substitute its own preferred group of people. We think that it is wrong, and a gross abuse of government power.

Q: Why does the Village of North Hills want the Deepdale Golf Club?

A: It’s surely not because of a lack of golfing opportunities in North Hills. North Hills residents already have access to a public golf course, the Harbor Links Golf Course which, according to the Town of North Hempstead, is the “finest championship golf course in the area.” Only two miles away from Deepdale is the Christopher Morley Golf Course, another public course that is open to any North Hills resident. And literally 250 yards away from Deepdale is an 18-hole private golf course, the North Hills Country Club. Overall, there are twenty golf courses within five miles of the center of North Hills, and over fifty courses (of which at least eleven are public courses) within fifteen miles. Indeed, the Mayor of North Hills, Marvin Natiss, is the past President and a member of the Board of Governors of the Old Westbury Golf & Country Club.

The real reason for the Village’s plan to seize Deepdale is that North Hills’ politicians think that it will further inflate the values of the private, multi-million dollar homes surrounding the golf course. As recently as February 27 and 28, 2006, North Hills Mayor Marvin Natiss acknowledged in two television interviews that his plan was to condemn Deepdale in order to “increase property values” in the Village. His predecessor told the New York Times in 2002 that the seizure of Deepdale “would make North Hills that much more desirable, which would make the properties that much more valuable, which will bring in that many more affluent people.” This effort by North Hills to seize private property in order to enrich the Village’s residents smacks of 21st century Bolshevism.

Q: But isn’t the government allowed to take private property through eminent domain?

A: The Takings Clause of the Fifth Amendment of the U.S. Constitution permits the government to take private property only if it is for “public use” and “just compensation” is provided. In the typical takings case, the government condemns a property or a vacant lot to build a highway, a hospital or a school or condemns blighted property to promote economic development and create jobs.

But Deepdale is not a blighted property. And it is not a “public use” to take private property to boost the value of already pricey private homes owned by private residents. This isn’t about taking property and changing its use to fulfill a need that will benefit the public at large. It’s just forcibly taking something that belongs to someone and giving it to someone else to use in the same way.

No court has held that a town’s desire to have a “trophy property” so that it can boost home values is a permissible “public use.” We believe that the Court will agree that this is an unconstitutional and unprecedented abuse of the government’s eminent domain power that will only enrich private interests.

Q: Hasn’t the Mayor said that he wants to condemn the golf club to provide the Village with an “amenity”?

A: The complaint alleges that that is just a pretext, and that the Mayor and the Trustees have not even considered how many Village residents play golf, let alone how many want or need a Village-owned golf course, particularly given the high cost.

But even if the Mayor’s justification were accepted as true, it would not make a difference. The idea that North Hills or any other government can justify the forced condemnation of private property as an “amenity” simply does not fly. It might be nice for the Village to have a $100 million-plus golf course as an “amenity” for its residents. But there has to be a public purpose to justify taking private property. Creating a de facto private golf course for the use of the small minority of residents who play golf is not a public purpose. That is especially true given that Village residents already have access to so many other golf courses.

Q: What about the Supreme Court’s recent decision in Kelo v. City of New London? Can’t North Hills rely on Kelo to seize the Deepdale Golf Course?

A: No. In Kelo, the Supreme Court allowed the state to condemn private property in a “distressed municipality” that suffered from “decades of economic decline” and had an unemployment rate nearly double that of the state. The Supreme Court placed heavy emphasis on the fact that the state had adopted an “integrated development plan” that would revitalize the city by building a “small urban village,” a museum, a hotel, restaurants, shops, and office and research facilities.

Of course, neither North Hills nor the Deepdale Golf Club suffers from “economic decline.” To the contrary, North Hills is one of the richest municipalities in the United States. Nor is there an “integrated development plan” to promote economic revitalization. In fact, North Hills is not intending to improve upon the property or even change its use. So Kelo simply does not apply to this case.

Q: How much will the Village have to pay to acquire Deepdale?

A: The amount that the Village has to pay is based on the value of the property at its “highest and best use.” Everyone agrees that the “highest and best use” here is for residential development. We believe that this 175-acre parcel in a prime Nassau County location is likely worth substantially in excess of $100 million.

Q: How will North Hills be able to pay in excess of $100 million to acquire Deepdale?

A: Even the rich residents of North Hills can’t afford to pay in excess of $100 million to condemn Deepdale. To finance the seizure of the club, North Hills politicians have suggested that they will sell a substantial portion of the land to private developers for high-priced and high-density condominiums. Assuming that this plan were legal — which it isn’t — it still would not raise enough money to pay for this prime land. The result is that the Village will have to borrow tens of millions to come up with the purchase price, and that Village residents will have to pay higher taxes to service that debt.

Q: What’s wrong with selling off a piece of the club to developers?

A: Plenty. As a practical matter, the construction of scores of new condos will add congestion to an already congested Village. And as a legal matter, the Village can’t seize private property from one person for the purpose of selling it to a developer intent on building a condo project. The Constitution requires that there be a public use to justify a taking. There is no public use in selling a piece of a golf course to developers so they can build high priced condos in a congested Village.

Q: Why should the average person who doesn’t live in North Hills care if a Village abuses its eminent domain power to take away a private golf club?

A: Every American should be concerned when a select few individuals abuse government power to take away other individuals’ private property simply because they’d rather that somebody else use it. If it is okay for the government to seize a privately owned golf course on the theory that it will further increase the value of the surrounding multi-million dollar homes, then there will be no limit to what the government can take away from private citizens. Under North Hills’ logic, the government could just as well seize private homes, throw out their residents, and reopen the properties as “public” luxury spas or dining clubs, merely by claiming that this would increase the value of the surrounding private houses.

Q: Why has North Hills decided to seize the Deepdale Golf Club as opposed to one of the other private clubs in the area?

A: We think the reason is that the membership of Deepdale is drawn from outside the Village and the local politicians know they could not get away with their plan if they went after a club that had a lot of local members.

Q: What’s wrong with that?

A: The Constitution does not permit local politicians to pick on outsiders who can’t vote in local elections. This is just one more thing that makes the Village’s plan unconstitutional.

State Court Litigation

Q: Who are the parties to the state litigation?

A: The plaintiff is John Wilson, a resident of North Hills and a member of the Deepdale Golf Club. The defendants are the Village of North Hills and its Mayor and Trustees.

Q: Where was the state court lawsuit filed?

A: In Supreme Court of the State of New York, County of Nassau.

Q: What is this state lawsuit about?

A: The lawsuit challenges North Hills’ unlawful abuse of the state zoning law to cut secret deals with private developers under which the Village receives millions of dollars in exchange for granting the developers the right to construct high-density condominiums. This “pay for play” scheme violates New York law.

Q: How is North Hills violating the state incentive zoning law?

A: New York law permits a village to grant zoning bonuses to private developers on the condition that they provide a “community benefit,” such as a community center or low/moderate income housing. The law also allows a village in very narrow circumstances to receive cash instead of a traditional “community benefit” if and only if the village determines that a “community benefit” is not immediately feasible or practical. To prevent villages from indiscriminately selling off zoning bonuses to private developers for cash, the law explicitly requires a village to develop a comprehensive land plan, conduct an environmental study and determine the plan’s impact on affordable housing before it adopts an incentive zoning program. The law also requires the village to develop criteria in advance to determine whether a proposed cash payment is appropriate.

The Village of North Hills has not followed any of these statutory requirements and, instead, has cut back room deals with developers under which the developers have agreed to pay tens of millions of dollars in exchange for the right to build high density condo projects in environmentally sensitive, forested areas of the Village.

Q: How much has the Village collected from private developers using this zoning scheme?

A: North Hills has collected so far $12 million from private developers, and is now on the cusp of receiving another $21 million from a private developer, Midtown North Hills, LLC.

Q: Why hasn’t there been more public attention to these deals with private developers?

A: The Mayor and the Trustees have been cutting these deals with private developers behind closed doors in violation of New York’s Open Meetings law.

Q: Why has the Village of North Hills been willing to violate New York law by abusing the incentive zoning law?

A: The Village is dead set on developing a slush fund to defray the cost of acquiring Deepdale. When Mayor Natiss was a candidate for Mayor in June 2003, he said: “The money comes in, but at what price?. . . You don’t sell the village down the river for a golf course.” Well, that is exactly what we believe is happening: the Mayor and Trustees are selling the Village out to developers to satisfy their desire for a golf course.

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