City attorney Cheryl Roberts denied that the agreement was illegal because the City was giving away its right to eminent domain. She maintained that it does not give away the right. She explained that in the unlikely event that the City could afford to eminent domain the port, it would forfeit the nine acres, but "if we could eminent domain the port, we could also eminent domain the nine acres."
She also dismissed the idea that it was a problem for the City to agree not to change the zoning on the port for fifty years. "It would be unlikely that we would change the zoning so that it cannot be used to ship rock," she explained, "because it would be considered a 'taking.'"
The text of the "Bargain and Sale Deed with Covenant," which was available to the public for the first time yesterday, sets forth the conditions of the conveyance:
REVERSION OF TITLE. Title to the Property vested in Grantee [the City of Hudson] hereby shall be divested and shall revert to Grantor [Holcim] upon the occurrence of any of the following:
(a) Exercise by the City of Hudson or the State of New York of the power of eminent domain effectuating a taking of Parcel "A" [the port] . . . .
(b) Unilateral rezoning of the City of Hudson of Parcel "A", as described in (a) above, or any other unilateral legal or regulatory action taken by the City of Hudson or the State of New York with respect to Parcel "A" that terminates or materially restricts the uses of Parcel "A" that are permitted as of the date of this instrument or prohibits or materially restricts access to Parcel "A" by vehicles carrying rock or aggregate over the existing causeway traversing other lands of the Grantor between State Route 9-G and the CSX right-of-way, known generally as the "South Bay Causeway";
(c) failure to designate Parcel "B" (the Property conveyed hereby) as a municipal public park, or following such designation, un-designating the property from parkland designation; or
(d) Sale or leasing of all or any part of Parcel "B" (the Property conveyed hereby) to any third party, whether an individual, a governmental entity, a private not-for-profit corporation or a for-profit business enterprise, provided that this provision shall not preclude the Grantee from relocating the State-owned boat launch to the Property, nor shall it preclude the Grantee from contracting with a private operator to operate its waterfront recreation facility.
This Reversionary Clause shall expire on the earlier of
1. The fiftieth anniversary of the recording date of this instrument;
2. The last date of five (5) continuous, uninterrupted years non-use of Parcel "A" as a commercial industrial dock; or
3. The recording date of a mutual agreement of rescission on entered into between Grantor and Grantor's successor in title to Parcel "A" and the City of Hudson.Friedman summed up the situation by saying, "We do better owning [the parcel] than not owning it. It means the port cannot be enlarged." He conceded that there are were problems with the language of the resolution passed on February 11 and admitted that the deed and map should have been made public sooner than yesterday. He concluded by saying, "It's in The Valley Alliance's court."
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