COMMENTARY: Despotism? In Connecticut?
Victorville (CA) Daily Press, 9/17/04

by George F Will

The U.S. Constitution, properly construed by a vigilant Supreme Court, prevents untrammeled power, which is the definition of despotism. But the human propensity for abusing power — a propensity the Constitution's unsentimental framers understood and tried to shackle with prudent language — is perennial. There always are people trying to carve crevices in constitutional terminology to allow scope for despotism. Such carving is occurring in Connecticut.

Soon — perhaps on the first Monday in October — the court will announce whether it will hear an appeal against a 4-3 ruling last March by Connecticut's Supreme Court. That ruling effectively repeals a crucial portion of the Bill of Rights. If you think the term "despotism" exaggerates what this repeal permits, consider the life-shattering power wielded by the government of New London, Conn.

That city, like many cities, needs more revenues. To enhance the Pfizer pharmaceutical company's $270 million research facility, it empowered a private entity, the New London Development Corporation, to exercise the power of eminent domain to condemn most of the Fort Trumbull neighborhood along the Thames River. The aim is to make space for upscale condominiums, a luxury hotel and private offices that would yield the city more tax revenues than can be extracted from the neighborhood's middle-class homeowners.

The question is: Does the Constitution empower governments to seize a person's most precious property — a home, a business — and give it to more wealthy interests so that the government can reap, in taxes, ancillary benefits of that wealth? Connecticut's court says yes, which turns the Fifth Amendment from a protection of the individual against overbearing government into a license for government to coerce individuals on behalf of society's strongest interests. Henceforth, what home or business will be safe from grasping governments pursuing their own convenience?

But the Fifth Amendment says, inter alia: "nor shall private property be taken for public use, without just compensation." Every state constitution also stipulates takings only for "public use." The framers of the Bill of Rights used language carefully; clearly they intended the adjective "public" to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

The Connecticut court, like the courts of six other states, says the "public use" restriction does not really restrict takings at all: It merely means a taking must have some anticipated public benefit, however indirect and derivative, at the end of some chain of causation. Hence New London can evict Wilhelmina Dery from the home in which she has lived since her birth there in 1918.

Fifty years have passed since the court considered whether the "public use" clause allows condemnation for private development. The 1954 case from southwest Washington, D.C., concerned "urban renewal," as such social engineering was confidently called before it became accurately known as "Negro removal." To empower government to condemn slum property — most dwellings had no baths, indoor toilets or central heating; the neighborhood's tuberculosis and syphilis rates were high — the court held that "public use" can mean "public purpose" when the aim is to cure blight harmful to the larger community.

But the Fort Trumbull neighborhood — what remains of it; many residents have been bullied into moving — is middle class. That is the "problem": Residents are not rich enough to pay the sort of taxes that can be extracted from the wealthy interests to whom New London's government wants to give other people's property.

Another step in cutting the Constitution's leash on the awesome power of eminent domain came in 1981. Michigan's Supreme Court allowed the bulldozing of Detroit's Poletown neighborhood — more than 1,000 residences, 600 businesses and many churches — so the property could be given to a more lucrative revenue source, a General Motors plant. In the New London decision, Connecticut's Supreme Court relied on the Michigan decision, which was the principal precedent justifying seizure of individuals' properties in order to increase tax revenues.

But just 149 days after Connecticut's court ruled, Michigan's Supreme Court unanimously reversed the Poletown decision, denouncing it as "a radical departure from fundamental constitutional principles." In considering whether to take the New London case, the U.S. Supreme Court surely sees, at a minimum, the dangerous emptying of meaning from the Fifth Amendment's "public use" provision.

If the court refuses to review the Connecticut ruling, its silence will effectively ratify state-level judicial vandalism that is draining the phrase "public use" of its power to perform the framers' clearly intended function. That function is to prevent untrammeled government power — in a word, despotism.

Victorville (CA) Daily Press: www.vvdailypress.com

George F Will: georgewill@washpost.com


Incentives OK'd for 95th Street
The (Chicago) Daily Southtown, 9/15/04

Developers will get up to $6.4 million to buy land

By Daniel Duggan

Developers of a retail and housing project on 95th Street in Oak Lawn will get up to $6.4 million in incentives from the village under an agreement approved Tuesday.
The money from the village will go toward the estimated $9.4 million it will cost to buy and relocate the existing businesses on 95th Street from just east of Cook Avenue to 53rd Avenue.

The proposed development will bring 132 condominiums, a 60-unit senior housing complex and 10,000 square feet of retail space to the area.

The three buildings will be built around a courtyard that will replace what is currently Cook Avenue.

"This is important to the revitalization and redevelopment of this segment of 95th Street," acting Mayor Ron Stancik said.

The developers of the project, Morningside Group and Mid-America Investment and Development, are close to finalizing real estate deals on the property, said Mike Nortman, a vice president with Mid-America.

He said agreements are in the works with all of the businesses, though a final price has not been set on two properties. Nortman declined to name the businesses.

"I can say price is the only issue with those two," he said Tuesday.

Of the money spent to buy the land, the developers will be reimbursed roughly 75 percent of the cost, up to $6.4 million, according to the agreement.

If the cost of buying and demolishing the property goes over the total budget of $9.4 million, the developers and the village will negotiate how to split the cost differences.

Under the agreement the developers can ask the village to use its powers of eminent domain to help secure property deals. The village passed an ordinance in January in which it agreed to use eminent domain only if the developers can acquire 75 percent of the property on their own.

The village will repay the developers with money available under a tax increment financing district created in 1998. The village will sell bonds for the money, then pay them back with the extra tax money generated by the development.

After the bonds are paid off, the additional tax revenue will be available to other taxing bodies, such as schools and park districts.

A similar TIF district plan is in place to the west where a Metra station, 84-unit condominium complex, five-story parking deck and children's museum is proposed for the area between the railroad tracks and 96th Street, bounded to the east by 51st Avenue and the west by Tulley Avenue.

In that project, the village board approved an $8 million bond sale during Tuesday's meeting to pay for the construction of the project.

Those bonds will be paid back with a combination of the increased revenue on the property and the revenue generated by the parking deck.

On both of the incentives for the 95th Street development and the bond issuance, Trustee Bob Streit (3rd) cast the lone dissenting vote.

"I have been on record of opposing the dense urbanization taking place here," he said.

The Daily Southtown: www.dailysouthtown.com

Long Branch residents say no to deal with developer
Asbury Park (NJ) Press, 9/15/04

by Crol Gorga Williams

For five years during World War II, Louis Anzalone lived in military barracks. When he was discharged from the service, he bought his one and only home, on Ocean Terrace in the city.

Last night, Anzalone, and his wife, Lillian, both 88, came to the City Council meeting to say no deal to a proposal from the developer of the second phase of Beachfront North, who sent residents there a letter offering to discuss the possibility they could receive a condominium in exchange for their homes.

Anzalone and his wife were not alone last night in rejecting any proposal that calls for the destruction of some 26 homes in the area that has come to be known as MTOTSA -- for Marine Terrace, Ocean Terrace, Seaview Avenue Alliance. The area also includes vacant land. Residents there have organized to fight the redevelopment.

The meeting room was crowded with people wearing "Shame on Long Branch" T-shirts and "End Eminent Domain Abuse" buttons. There were standing ovations when people they agreed with spoke and catcalls during the remainder of the meeting.

Roger Mumford, president of Matzel & Mumford, which along with Hoboken-based Applied Development Co., has preliminary approval to build oceanfront housing in the residential neighborhood, authored the letter, which all residents received.

"It is the city's intent, and ours, that longtime owner-occupants have an opportunity to stay in the area," Mumford wrote. "We realize that some of you exist on a fixed income and have lived for many years in your home. It is our hope that for these owner-occupants, we can put together a realistic plan that may include providing you with a condominium in one of our elevator-serviced buildings. Such an agreement would address any concerns you may have about property taxes and condominium fees."

Mumford said the developer also was interested in meeting with those who own investment properties, vacant land or those who purchased and moved into homes after the city formally designated the area for redevelopment in May 1996 to see if a "mutually beneficial arrangement" could be reached.

Oct. 15 is the deadline.

Anzalone said he was rejecting the developer's proposal because his current home was "better and nicer than anything you or the builder can ever provide.

"Now, in the twilight of my life, I have no intention to live in some condo that looks to me like Army barracks with elevator service," he said.

Lori Vendetti, who lives part of the year in Long Branch and part in Newark, said it is possible the city is no longer negotiating with the MTOTSA group in good faith. The group put together a competing plan that proposes "revitalization" of the neighborhood, but City Attorney James G. Aaron has written to them requesting more information.

"They are the ones who stopped negotiating with us," said Mayor Adam Schneider after the meeting.

The big hero of the night was Scott Bullock, who is a senior attorney with the Institute for Justice, a nonprofit Washington firm that fights eminent domain abuse.

"We're watching very closely what is happening in Long Branch, and we're going to do everything in our power to make sure these fine people stay in their homes," said Bullock, who stopped short of saying he would represent the residents.

Asbury Park Press: www.app.com

Former Landowners Sue IPL Over Land Sale

By A.J. Nelson

A group of former owners of land they once sold to Indianapolis Power and Light Company have sued the electric utility to get back some of the profit the utility gained after IPL sold the land.

The attorney representing the group, Richard Boe, filed the lawsuit Monday in Morgan Superior court, asking that the utility return part of the profit from the sale to the former landowners and their heirs. IPL had aquired the land as a possible location for a power plant.

“This is a lawsuit over the taking of private property for public purposes and never used, and sold to reap profits from that,” Boe said.

Boe explained that when IPL first began to acquire the land in 1975, the company talked to several landowners, who say they felt pressured to sell to the utility or risk fighting a court battle they knew they couldn’t win.

“They said, ‘You either give us your property, or you give it to us through eminent domain’,” Boe said. “People sold land to IPL when they came, because they realized they couldn’t stand up to a large utility in court.”

Boe said that none of the 4,000-plus acres IPL acquired in southern Morgan County was done through the eminent domain process in the courts. Property owners were paid for their land.

The lawsuit comes after IPL sold the land to the state and a group of Martinsville natives for a total of $13 million late last year. The state purchased 1,500 acres for $4.5 million, and a group that includes Martinsville residents Gary Etter, Jerry Cragen, Harmon Crone, and John and Ann Marvel purchased the remaining 2,500 acres for $8.5 million.

Boe said the group isn’t seeking a return of the land or money from the state or the Martinsville group, but said IPL wasn’t entitled to profit from land, whose value increased from $500 an acre in the 1970’s to around $3,500 an acre today.

“There are three elements to the lawsuit,” Boe said. “One is, violation of eminent domain statute. The second is conversion, where IPL sold and harvested trees through the years; and third, unjust enrichment, they bought and profited from land that they didn’t use for the purposes intended.”

Boe said the case had the potential to effect property rights laws, not just in Indiana, but across the country.

“You don’t see many cases that have these kinds of issues, as in this case,” Boe said. “What we’re basically looking for is to return that profit taken unjustly to the (former) land owners or their next of kin.

“I think this case could impact other states.”

No initial hearing date for the case has been set yet. Attempts to contact Indianapolis Power and Light for comment on the lawsuit were unsuccessful.

The Mooresville-Decatur times: www.md-times.com


Jury to Decide Whether City’s Southtown Buy is Fair

Owner claims eminent domain proceedings undervalued mall

By Sara Eaton

A jury to be selected today will decide the value of Southtown Mall to settle a dispute between Fort Wayne and the debilitated mall’s owners.

The weeklong trial is expected to bring closure to a contentious eminent domain battle over the property, which is currently being demolished after the city took possession in March.

Several appraisers and city officials are expected to take the witness stand

City officials are eager to begin the long-awaited trial and believe the outcome will be in their favor, City Attorney Tim Manges said.

The other side wants to get the trial over so it can begin the appeals process, said Stephen Fink, attorney for Haywood Whichard, one of the mall’s owners.

Whichard has said repeatedly he believes the property at U.S. 27 and Anthony Boulevard, on the city’s south side, is worth at least $6 million. Whichard, who first fought the city’s condemnation effort, has said that if three court-appointed appraisers did not come back with what he believed to be a fair value, he would pursue the jury trial.

The city paid $3.44 million for the property earlier this year after three court appointed appraisers determined that to be the value.

Whichard, who purchased the beleagured property with other investors in 1998, closed Southtown on Feb. 1, 2003, after giving tenants less than a month’s notice. The mall had lost its anchor stores, L.S. Ayres, J.C. Penney Co. and most recently Sears after slowly losing smaller stores.

In the past several weeks, Allen Circuit Court Judge Tom Felts has ruled on pending motions, including what type of evidence may be introduced to the jury. Felts ruled against Southtown’s introducing any evidence of possible sales of the property that fell through and were not completed.

Most recently, Felts ruled that Southtown cannot factor in the city’s intended plans for the property to the mall’s owners’ equation determining the potential value of the mall.

Manges described the decision by the judge as huge and said it benefits the city’s case.

Fink, on the other hand, believes the city has lost perspective “in its zeal for obtaining the property.”

“The city has convinced the judge to exclude the best evidence,” Fink said. “We will appeal after trial. We do not expect a favorable outcome.”

He expects appeal issues to stem from the judge’s rulings but declined to be more specific about which rulings.

Since the city paid Southtown owners the $3.44 million, Felts has ruled on several motions for payment by various interested parties.

Last week, he issued an order for Southtown’s owners to pay Allen County back owed taxes.

Fink said the Southtown owners have also been ordered to pay the 2004 taxes, which he believes have already been paid, but questions how that is fair since the city has had possession of the land since March.

Fink and Manges both said there are no more outstanding bills to be paid. The sole remaining issue for the trial is the value of the property, they each said.

Both said their parties have been interested in settling the matter without going to trial but both said the other hasn’t made reasonable offers.

The property is being demolished and the demolition is in the first phase, said Craig Berndt, the city’s brownfields redevelopment manager. Berndt is the project manager for the Southtown site for the city.

The next phase will include demolition of the Sears building and USA Billards but the earliest it will begin is late October. The third and final phase will include the Bridgestone/Firestone building, he said.

The demolition is going well so far, he said.

The plan for the 114-acre site calls for a Menards home improvement store, another big-box anchor store and about a dozen other stores, restaurants and businesses, most lining U.S. 27. Menards is expected to break ground in the spring and open for business by the holidays, Berndt said.

Journal Gazette: www.fortwayne.com

Business Owners Unite in W. Harlem

Civil Rights Attorney Takes on Columbia in Manhattanville Plan
By Kate Prengel

Civil rights lawyer Norman Siegel [of the New York Civil Liberties Union] announced Friday that he will represent a group of West Harlem business owners concerned about Columbia's plan to expand into their area. Siegel spoke at a meeting organized by the Coalition to Preserve Community, at St. Mary's Church on West 126th Street. He urged the large audience of residents and businesspeople to stay united and involved in what he called a "David and Goliath-style struggle" between the University and small business owners.

"Black, brown, red, yellow and white together, we will overcome," he told the crowd.

The West Harlem Business Group, which began speaking with Siegel in mid-August, is an alliance of six family businesses located in the area that Columbia is targeting for expansion, from 125th to 133rd Street and from Broadway to 12th Avenue.

Siegel and his clients predict that Columbia, faced with some landlords who do not want to sell their property, may resort to the legal process known as eminent domain in order to get the land. Siegel wants Columbia to guarantee that they will not use this process.

The process of eminent domain allows the public or, in some cases, private groups to acquire land that the owners do not want to sell. Historically, the government has used eminent domain to acquire land for public works, as in the construction of the transcontinental railroads. Private corporations like General Motors have also used eminent domain to acquire land for their own projects.

The University has never said that they are considering eminent domain proceedings. However, Siegel says that Columbia may already be encouraging New York State to condemn the area from 125th to 133rd Street.

The New York City Economic Development Corporation, a non-profit group under contract to the city of New York, has initiated a blight study on West Harlem, Siegel said. Declaring a neighborhood to be "economically blighted" is one of the first steps to having it condemned. If the state condemns the area, then it will be eligible for eminent domain proceedings.

"Columbia has to understand that it cannot use eminent domain as a gun that it holds to people's head," Siegel said later.

He emphasized the need for Columbia to be "forthright" with the people of West Harlem, a concern shared with CPC members who spoke at the meeting.

"The more meetings Columbia holds, the more misinformation and lies they give out," said Nellie Bailey, a CPC member.

To enthusiastic applause, she urged Columbia to "speak plainly to the people. Because in that plainness there is truth, and you will recognize it."

Many of the residents who attended the meeting said they felt encouraged by Siegel's presence and by a sense of community togetherness.

"I'm always happy when I'm reminded of how people can work together," said Ishmael Wallace, a local musician.

He said the expansion plan confused him, but that he was beginning to understand it better thanks to the night's meeting.

"It's slowly becoming more clear," he said.

Columbia Daily Spectator: www.columbiaspectator.com

Connecticut Homeowners Question Eminent Domain

by Terry Pristin

On a quiet peninsula that juts out into the Thames River of Connecticut, weeds and wildflowers cover the empty lots where 90 homes and small businesses once stood - among them the eight houses that used to separate Susette T. Kelo's tidy pink cottage from the blue house that Wilhelmina Dery's grandmother bought in 1901 and where Mrs. Dery and her husband, Charles, still live.

Ms. Kelo and the Derys are among seven property owners who refused to budge after city officials approved an economic development plan to upgrade their 90-acre waterfront neighborhood, known as Fort Trumbull, by creating prime office space, a hotel, 80 units of housing and a Coast Guard museum.

Because these people would not sell their property, the New London Development Corporation took title to it through eminent domain, a decision upheld in March on a 4-to-3 vote by the Connecticut Supreme Court. The Fifth Amendment allows governments to take private property through eminent domain in exchange for "just compensation,'' but only when it is for "public use.''

Ms. Kelo, a nurse, who bought her two-bedroom house in 1997, said she and her neighbors were being swept aside so that wealthier people might replace them. She and Matthew R. Dery, a newspaper executive who lives next door to his parents, said real estate agents had appeared on their doorstep and told them they would have to sell their homes or lose them through eminent domain.

"How come someone else can live here, and we can't?" Ms. Kelo asked as sea gulls circled overhead and ferry boats to Block Island, R.I., and Orient Point, N.Y., were visible in the distance. "I'm being penalized for being a good resident."

But New London city authorities said the condemnations were justified because the city, one of Connecticut's poorest, had endured three decades of economic decline, including the recent loss of 1,900 government jobs, and had few options for increasing its tax base to help pay for schools and services. After officials persuaded Pfizer, the drug company, to open a $270 million research building on the site of a former linoleum plant, the adjacent Fort Trumbull neighborhood seemed ideally suited to attract additional investment, they say.

The neighborhood was already zoned for industrial and commercial use and had a sewage treatment plant, which was covered at Pfizer's request but still gives off odors. The United States Naval Undersea Warfare Center, which occupied 32 acres, closed in 1996. The state had agreed to spend $20 million to create a state park at Fort Trumbull, a mid-19th-century installation where Connecticut troops mustered during the Civil War before heading south.

Despite the Connecticut Supreme Court's ruling, the demolition of the properties has not yet occurred because the Institute for Justice, a public-interest law center in Washington that represents Ms. Kelo and the other homeowners, has asked the United States Supreme Court to review the case. The institute, which has been fighting eminent domain actions all over the country, argues that the case, Kelo v. City of New London, demonstrates how government authorities are increasingly abusing condemnation powers to enrich developers at the expense of homeowners and small businesses.

Legal battles like this one, and a recent Michigan case in which a landmark ruling was overturned, have captured the attention of developers and economic development officials. Maureen L. McAvey, a senior fellow for urban development at the Urban Land Institute and a former developer, said eminent domain was essential for assembling tracts of land for development. But she said the cases have had a cautionary effect, prompting many local officials to re-examine their procedures to make sure that they can clearly show how the public will benefit from a particular project. "Most local entities are looking at their ordinances and practices," she said. "They are getting smarter about how they use eminent domain."

The conflict over eminent domain has led to some unusual alliances, with libertarian groups like the Institute for Justice joining forces with the American Civil Liberties Union and Ralph Nader to oppose condemnations, and environmental groups lining up with developers and community development organizations. Environmental groups say that eminent domain powers must sometimes be used to promote "smart growth" - that is, denser development in older neighborhoods - as a means of reducing suburban sprawl.

The New York Times: www.nytimes.com

Eminent Domain Abuses

Those who follow eminent domain abuses were cheered by the Michigan Supreme Court's ruling this summer that it is illegal for the government to seize private land and transfer it to another private owner for public "benefit."

But that's one state. The abuses will not end until the U.S. Supreme Court stops the land-grabbers.

The predicate for these abusive eminent domain cases is that a private entity -- the government's good buddy, naturally -- will make better use of the land by providing more jobs or greater tax revenue. (Here in Western Pennsylvania, we've never heard such overblown promises, have we?)

In economically distressed New London, Conn., the drug company Pfizer built a research center. Nearby, a piece of waterfront land caught the eye of the government. Why, with the new plant in town, a private developer could turn the 90 acres into a real tax generator.

Some property owners balked at selling, and the city resorted to eminent domain, upheld by the Connecticut Supreme Court, 4-3. The U.S. Supreme Court has been asked to take up the case -- which it must.

Even the communist land reformers operated under the pretense that the farms would go to the people. This is more the naked fascist model: the government in concert with the corporatists against the sacred rights of the individual.

And no wonder: The fascists always leaned a little farther left.

The Tribune-Review Publishing Co
Eminent Domain Attorney

Aurora Again Abusing Small Businesses

City invoking eminent domain near Fitzsimons

It seems there's no rest or relief for the cluster of small businesses near the new Fitzsimons medical complex in Aurora. Once again, the biggest threat they face is from their own predatory city government.

Last year, they beat back Aurora's effort to amortize their businesses, a scheme that would have allowed the city to close them without compensation for not conforming to the view of what the neighborhood should look like. After a barrage of negative publicity, the city council rescinded the amortization ordinance. The state legislature added a punctuation mark by making such moves illegal.

But now the city is back with a more traditional condemnation plan, based on a "blight" designation, that may be legal but is just as outrageous.

The first targets are the 30-odd owners who occupy 17 acres on the southwest corner of Colfax and Peoria. They would get something, as in compensation, but it would be whatever low-ball figure the city offers and a court adjusts. The price would not be set by free negotiations between willing buyers and sellers.

It's the worst kind of condemnation, since it's not for a legitimate public good like a road or an airport. Instead, private property would simply be transferred, through force of law, to another private owner, invariably a politically connected developer. In this case, the developer will be selected from two applicants, who would build a shopping plaza, presumably with more upscale stores. The city is hoping for more sales tax revenue than it gets now from the auto-body shops and other blue-collar enterprises struggling to survive.

The takeover scheme has been temporarily delayed by an incident that would have been embarrassing, if Aurora were capable of embarrassment. The developer it originally selected was entering bankruptcy. Worse is that he took it upon himself to personally bully the owners into selling at what they complained were unreasonably low prices. He got bounced last winter.

The blight designation usually means big problems for owners. Once your property has been so designated - and the city has designated plenty of acreage beyond the 17 acres at issue - your property is almost impossible to sell no matter how ripe it might be for development.

We can only hope local property owners can find, and afford, an attorney to help them through this. After all, the mood of the courts is changing when it comes to condemnation for private purposes. Last March, for example, the Colorado Supreme Court ruled unanimously against the Arvada Urban Renewal Authority's effort to condemn a popular lake, which it wanted so a Wal-Mart could be built.

And a month ago the Michigan Supreme Court unanimously overturned the infamous 1981 Poletown decision that allowed Detroit and Wayne County to seize thousands of homes and dozens of churches and businesses so that General Motors could build a new plant.

Within a few weeks the U.S. Supreme Court will decide whether to hear its first case on whether eminent domain can be used for private instead of public purposes. Perhaps Aurora's small businesses can hang on long enough to see a change in the law.

Rocky Mountain News: www.rockymountainnews.com