Justices will pick up with 'mess' from last term
Seattle Post-Intelligencer, 9/25/04

Potomac Watch

by Mark Helm

The Supreme Court returns to work next week to weigh whether to hear several key cases that could be the hallmarks of its new term, including whether a Connecticut city can take away a person's home to clear the way for upscale development.

The court also will consider whether to hear appeals in four cases involving displays of the Ten Commandments on public property.

The court will officially start the term on Oct. 4 by hearing oral arguments in some of the 40 cases it has already accepted.

The Connecticut case involves Susette Kelo's pink house on the Thames River in New London and whether the city of New London can take her land away and sell it to real estate developers because they promise to pay more taxes and create jobs by converting the neighborhood into trendy condominiums.

"This case hits at the heart of the American dream ... a person's home," says Gregory Garre, a former law clerk to Chief Justice William Rehnquist and a former assistant to the solicitor general. "The idea that the government can kick you out of your home because they want expensive condos in your neighborhood really scares people."

But the issue is much bigger than the fate of one house on the Thames -- businesses, developers and homeowners throughout the United States have a stake in its outcome, says Garre, who doesn't represent any party in the case.

The Constitution allows governments to take private land for "public use," also known as the eminent domain authority.

Garre says many constitutional scholars consider the phrase "public use" to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

But the Connecticut Supreme Court said the term "public use" means that a taking need only have some anticipated public benefit, such as increased tax revenues and improving the area's economy. Kelo lost in the state courts and is asking the U.S. Supreme Court to hear her case.

"If the court agrees with the Connecticut Supreme Court on the definition of 'public use,' cities would have a much easier time justifying the taking of any property," Garre says.

In one of the Ten Commandments cases, Thomas Van Orden challenged a Ten Commandments monument that has stood on the grounds of the Texas state Capitol in Austin since 1961. The 6-foot-high granite monument includes several religious and patriotic symbols, including the Star of David.

Three other cases involve displays in courthouses in McCreary County, Ky., and in schools in Adams County, Ohio, and Harlan County, Ky.

The justices already have accepted 40 cases for the term, about half the number expected to be heard for the entire session.

The court's first order of business when it returns will be to "clean up a mess left over from last term," says Donald Verrilli Jr., a Washington lawyer, referring to federal sentencing guidelines.

Federal judges throughout the country have been grappling with the legality of federal sentencing guidelines since the high court ruled on June 24 that a similar sentencing system used by the state of Washington was unconstitutional.

In that case, Blakely v. Washington, the high court ruled 5-4 that Washington state's sentencing system violated a person's right to a trial by jury because it allowed judges to make findings on factors that were never presented to jurors. Such a system lets judges increase a sentence dramatically.

The Justice Department later complained that the Blakely ruling has created chaos in the courts and confusion over "tens of thousands" of pending sentencings nationwide. In an effort to clear up pending questions, the Supreme Court agreed to hear two cases involving federal sentencing rules.

The court also will attempt to end confusion on the issue of medical marijuana. In a case involving Angel Raich of Oakland, Calif., and Diane Monson of Oroville, Calif., the court will decide whether Congress has the authority to prohibit the medical use of marijuana in states where the voters or the Legislature have approved the drug's use under a doctor's care.

The Justice Department argues that state laws making exceptions for medical marijuana are trumped by the federal law banning the use of marijuana.

But last year, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that prosecuting medical-marijuana users is unconstitutional under federal law if the pot isn't sold, transported across state lines or used for non-medicinal purposes. In another case out of Lancaster, Calif., the court will consider whether that state can segregate inmates by race during their first 60 days of incarceration. The state has defended the policy, and the 9th U.S. Circuit Court of Appeal in San Francisco has upheld it, as a sensible way to minimize interracial violence at the reception centers where inmates are housed while being screened for long-term placement.

But civil rights groups argue the policy violates the 14th Amendment's protection against racial discrimination.

Seattle Post-Intelligencer: www.seattlepi.com

Experts' panel rejects Ardmore renewal plan
The Philadelphia Inquirer, 9/24/04

The thumbs-down could doom a proposal to demolish buildings. The experts urged a more preservationist approach.

By Matthew P. Blanchard

The plan to demolish 11 buildings in downtown Ardmore suffered a likely death blow yesterday when a panel of national architecture and planning experts issued a public rejection of the idea.

The team of nine experts from the Urban Land Institute in Washington had been called in to referee a nasty dispute over the Ardmore Transit Center Plan, a $140 million proposal to remake 10 blocks of Ardmore into a vibrant urban shopping village.

The plan called for demolishing shops on the north side of the first block of East Lancaster Avenue. That provoked 200 merchants and their supporters to march in protest twice this summer. Accusations and conspiracy theories were commonplace, and public meetings often filled with rage.

After a weeklong study, the experts pronounced the proposed demolitions a mistake and urged a gradual, preservationist approach to fixing Ardmore's vacancy-plagued shopping district.

"Cities need old buildings so badly it is probably impossible for vigorous streets and districts to grow without them," panel chairman Charles R. Kendrick said, quoting a prominent urban-design guru. "This panel agrees with Jane Jacobs, which is why we think there should be no demolition."

"Sometimes," Kendrick wrote in the final report, "it's what you don't do that makes all the difference."

The report carries no legal weight but wields considerable influence by virtue of brain power. The nine experts are prominent architects, traffic planners, real estate developers, and consultants from cities including Boston; Fort Worth, Texas; Cincinnati; and Baltimore. They were invited by township government to provide a fresh look at the project.

The decision rests with the 14 Lower Merion commissioners. The commissioners' president, Joseph Manko, called the findings in the report "excellent." He said he favored abandoning demolition and predicted that many of his fellow commissioners would agree.

Begun in public "visioning" sessions last year, the transit center plan has more recently been championed by township planning staff as local resistance grew intense. Yesterday's report opens a window for all sides to reject parts of the plan that involve eminent domain or demolition.

Merchants celebrated, some after months of fretting about where they would go if forced to sell their properties. Betty Foo has owned and run Hu-Nan Restaurant at 47 E. Lancaster Ave. for 30 years, working 362 days a year.

"This is incredible. We have been under such stress for such a long time," she said. "Now, we will definitely do whatever we can to work with the township."

There is much to do. Of the original six proposals in the plan, the team urged immediate work on three:

Build a parking structure on the lot occupied by Main Line Honda, east of the Township Building.

Replace Ardmore's low, bunkerlike train station with a grander structure and fashion a narrow "town square" on Station Avenue.

Restore building facades on Lancaster Avenue, many of which are scarred by neglect or ham-handed renovations.

The remaining proposals can wait, the panel said.

Quoting author Malcolm Gladwell, panelists stressed that instead of dramatic demolitions, Ardmore should gently push itself toward the "tipping point," at which the accumulation of small improvements will precipitate a turnaround for businesses.

"Other communities would give their eyeteeth to have what Ardmore has: a train station, a historic downtown, Suburban Square," said panelist Christopher Kurz, a real estate financier from Baltimore.

"It's a great town," added panelist Sandra Kulli, a real estate marketing consultant from Malibu, Calif. "We think the tipping point is very close."

The Philadelphia Inquirer: www.philly.com

Jury judges price of Norwood home
The Cincinnati Enquirer, 9/25/04

First of five in eminent-domain battle

By Sharon Coolidge

A Hamilton County jury Friday put a price tag on the first of five properties at the heart of a two-year eminent domain battle in Norwood being watched nationally.

Jurors said Joe Horney's rental home on Atlantic Avenue is worth $233,000, which is $125,000 less than the $358,000 he argued that his property is worth. But the jury's value is $43,000 more than the $190,000 the city offered to pay for it so it could be torn down to make way for a high-end development.

The triangular-shaped neighborhood where Horney's home is located is at the center of a legal tug of war pitting the city of Norwood, 66 property owners and the developers of the proposed Rookwood Exchange against Horney and four other property owners and the Institute for Justice, a civil-liberties law firm in Washington, D.C.

Horney and the four other owners, including three businesses and another homeowner, challenged Norwood's use of a state law used to seize their properties in order to turn them over to Jeffrey R. Anderson Real Estate and the Miller-Valentine Group.

The developers want to build the Rookwood Exchange, a $125 million complex of offices, shops, housing and restaurants. The homes and the businesses on all 71 properties in the neighborhood would have to be demolished for the project, between Edwards Road and Interstate 71.

In June, a Hamilton County judge upheld Norwood's right to seize the property.

The jury's verdict Friday means he is the first of the five who can appeal that judge's decision to another court, which will continue the legal battle and delay the development.

Horney will appeal the eminent-domain action in 30 days, but the appeals court might wait to hear all five cases at once, his lawyer in the eminent-domain action, Scott Bullock, said.

"I didn't lose my house today," Horney said. "This issue goes on.

"You can't place a value on something you don't want to sell. Now I can focus on the city's right to take my property."

The other property-value hearings, which happen one at a time, are expected to be completed by mid-November.

Lawyer Tim Burke, who represents Norwood in the case, said the city won't challenge the jury's verdict.

"It's close enough to what was offered that it wouldn't be economical to appeal," Burke said.

The Institute for Justice, which is representing the property owners for free, wants to appeal, which lets them again challenge a city's use of using eminent domain to take properties from their owners.

But first, according to Ohio law, juries must determine the price Norwood must pay for the properties.

Jurors are asked to determine the property's "best market value."

Horney and his wife, Carol Gooch, bought the property in 1986 for $63,000, always intending it to be a rental property. Since then, it has increased in value, he said. The real-estate developer earlier offered the couple $200,000, which they rejected.

The eight-person jury deliberated a little more than five hours before arriving on a value.

The sticking point came when jurors looked at how much income the property could generate in the coming years, said one of the jurors, Pam Brown, a 47-year-old Forest Park woman.

Two female jurors, both of whom wanted Norwood to pay Horney $300,000, abstained from voting. In the hearing, Ohio law requires only six members to come to an agreement.

One juror suggested Norwood pay $180,000, the amount the house was refinanced for last year, Brown said.

Others, she said, wanted the city to pay $260,000, and one juror refused to go lower than $240,000.

In the end, the jurors took the dollar amount each believed Norwood should pay Horney and averaged them together.

"That's how we came up with $233,000," Brown said.

After juries determine the selling price of each of the five properties, the Institute of Justice will file its appeal.

Horney and the other holdouts say they will continue to appeal and are prepared to take their case to the U.S. Supreme Court if necessary.

The Cincinnati Enquirer: www.enquirer.com


Many upset in Southeast
The Washington Times, 9/24/04

By Jon Siegel

It came like a blizzard on a hot summer's day. And was about as welcome.

Merchants and residents in the Southeast neighborhood were stunned to learn that their community on the Anacostia River was chosen as the preferred site for a Major League Baseball ballpark by District officials earlier this week.

People in the largely industrial community, which also has a small number of row houses, were shocked and saddened by the news. They now face the prospect of losing their businesses and homes should the city exercise eminent domain to take over the 20 acres to build a stadium, which is expected to cost more than $400 million.

"This is really upsetting," said Bob Siegel, a resident who owns 11 properties in the targeted area. "I might fight it. The city is going to have to contend with the best eminent domain lawyers. I don't want to move. It's happening too fast."

The ballpark site near South Capitol and M streets was thought to be the third choice behind a New York Avenue NE site and the RFK Stadium property. The Southeast location is now expected to be the new home of the Montreal Expos if Major League Baseball decides to move the club to Washington.

Eung Joon Chung was forced to move his auto transmission repair franchise to South Capitol Street south of N Street less than three years ago after eminent domain took his previous location to put up a big building. Now he wonders if he can keep his small business since AAMCO assigns him a specific district and he is unsure if there is another suitable location where he won't infringe on another franchiser's territory.

"I spent $150,000 here," Chung said of the current site. "Now I might have to move to another place."

The refrain was similar in the small but tightly knit community, which includes some 25 businesses and 11 townhouses. Calvin Reid, whose company does commercial building, fears businesses like Atlas Manufacturing will be chased out of the city.

"Industrial commercial space is already limited," said Reid, 44, while surveying his business at Half and O streets. "To displace blue-collar businesses is a mistake. ... Mayor [Anthony Williams] doesn't have a clue about the local business community. He is only interested in big business."

Rose Butler is concerned about losing her row house on N Street where she has raised seven children since 1957. Butler, 64, is in favor of baseball coming to Washington but not if it destroys her community.

"I guess I can't stop it," Butler said while watching one of her 17 grandchildren in the two-story house yesterday. "I love it here. I have been here all my life. I can't imagine living anywhere else."

Butler is one of many who question the city's decision to choose her community over the previously front-running site at RFK.

"Why spend a lot of money for something that is already here?" she said. "It seems ridiculous to me."

Siegel also is distressed about the possibility of losing his home of nearly 30 years. The civic leader owns a shop called Glorious Health and Amusements that sells pornographic magazines and videos catering to gays.

"The businesses I am the landlord of cannot be moved anywhere else," he said. "This strip for 30 years has been a strong segment of gay life. I am proud of that. My hands are tied as to what to do right now."

The frustration was perhaps best summed up by Michael Parker, who took a break from his job as facilities manager at the Washington Sculpture Center to walk a dog along Half Street. His nonprofit business recently has spent about $200,000 in upgrades.

"We go to every community meeting, but we heard about [the site choice] in the newspapers," Parker said. "They didn't want to give us time to get armed and fight back. It was out of the blue to target this area."

The Washington Times: www.washingtontimes.com

United Front Opposes Use of Eminent Domain at Community Board 9 Meeting
Columbia (University) Daily Spectator, 9/24/04

In a rare 29-0 vote, Community Board 9 opposed Columbia's use of eminent domain on neighborhood buildings

By Z.L.R. Stavis

The voices of Harlem business owners and residents reverberated in unison last night, as members of Community Board 9 unanimously voted to oppose the potential use of eminent domain in Columbia's expansion into Manhattanville.

"I don't think I've ever seen such unanimity," said Secretary Theodore Kovaleff.

The resolution passed with all 29 members voting for it. "29 to 0; I've never seen better," said Norman Siegel, an attorney for the West Harlem Business Coalition and a prominent civil liberties lawyer.

"I've never seen that in New York. That's the writing on the wall. This will send a strong message to Columbia that we're fighting back."

The board passed a resolution to recommend to the city not to use eminent domain, a legal path by which the city can forcibly purchase properties to be cleared for public use. Columbia is allegedly urging the city to use eminent domain to make way for its Manhattanville expansion plan, which includes the area between 125th and 133rd Streets between Broadway and 12th Avenue.

"Eminent domain has been abused for over 25 years," Siegel said. "It is for public use, not private gain. Public use is a library, a public school, not a private school and not for private use."

Twenty community members also expressed their support for the resolution at the meeting. LaVerne Williams works for an organization that houses Harlem artists; the non-profit recently renovated a building in Columbia's expansion area. "Hopefully Columbia will not usurp the land and will consider that Harlem needs to be Harlem and not Downtown Uptown," Williams said.

"It will not happen, only over my dead body," said Jordi Reyes-Montblanc, Chairman of Community Board 9. For what he said was the second time in 10 years, Reyes-Montblanc stepped up to the podium to speak personally on an issue. "They will have to drag my dead body to pass it. Other than that, Columbia is a nice organization," he joked.

Tom Kappner of the Coalition to Preserve Community proposed an alternative to eminent domain. "197-A Plan provides for a measured and balanced development, not a plan to bulldoze the area," Kappner said, stressing the importance of unity.

Tom Demott, also of the CPC, said, "The fact of the matter is, Columbia's trying to Godfather the community. The fact of the matter is, they're making us an offer we can refuse."

Seigel said, "This is a David and Goliath issue. I hope Community Board 9 winds up on the side of David. And for cynics who say that you can't win, I remind you, historically and biblically, David did win and so will we," a line that was greeted by loud applause.

Other issues raised at the meeting included installing a disability ramp at St. Luke's Hospital, renaming 141st to 145th Streets after Harlem performing artist Dorothy Maynar, as well as promoting a scholarship for computer technician training, an independent job development company, and the Harlem School of the Arts.

Columbia Daily Spectator: www.columbiaspectator.com


Eminent domain not imminent
The Bridgeton (NJ) News, 9/22/04

By Jaime Marine

City commissioners approved an ordinance on first reading Tuesday night authorizing the condemnation of eight parcels along Route 47 should business owners and the developer of a proposed mall not come to a settlement agreement.

While this ordinance still has to go through various steps before receiving final approval, Mayor Jim Quinn said city officials are hoping settlements will be reached by all the parties involved.

"We hope and pray we don't have to use this," he said. "Goodman Properties (the developer) has been great and we hope that negotiations will continue."

On Monday, Dr. Harold Blumenthal of the Animal Hospital of Millville accepted an offer from the developer to build the animal hospital a brand new facility in exchange for his parcel of land.

Quinn said this is the way the city would like to see the other parcels — which include a Goodwill Store and Pizza Hut — handled.

"This (the Blumenthal settlement) is a good thing," he said. "No one is going to lose. They will all be compensated. We would never, ever want to do eminent domain and, hopefully, they will come to a meeting of the minds."

Steve Durst, a representative from Goodman Properties, addressed the commission and said they are working hard to come to an agreement with all involved.

"We are not looking to come into the arena and strong arm anyone," he said. "When we develop, we stay. We move in as a neighbor."

Durst said his company has no involvement with the eminent domain issue and that they are not looking for the city to do their negotiations.

Goodman properties is looking to construct a $40 million shopping center near the Millville Town Center on Route 47.

The group -- which said they have received interest from stores such as Target, ShopRite, Kohl's, Pet Smart, Office Max, Office Depot and other smaller units -- is expecting to submit a preliminary site plan within the next 30 to 60 days.

The facility could bring approximately 1,000 jobs to the area and ratables, which the city needs.

The Bridgeton News: www.nj.com/news/bridgeton

City loses minority on council - Longtime councilman has plan for future
Shelby County (AL) Reporter, 9/22/04

By Fred Guarino

When the new Alabaster [AL] City Council takes office this October, for the first time in 28 years, the city will be without minority representation.

Bobby Lee Harris, the only black member of the current council, recently discussed the reasons behind his failed re-election bid and said he sees the day coming when the impact of no minority representation will be felt.

Harris said he blamed his defeat on a redistricting plan approved by both the City Council and the U.S. Justice Department as well as retaliation for his support of the city's recent eminent domain efforts. [emphasis added]

During this administration, the city of Alabaster approved a re-development plan for the Interstate-65, Exit 238 area where Colonial Trust Properties is developing what is being touted as the largest shopping center in Shelby County.

During the effort to obtain the land for the re-development area, the council initiated eminent domain proceedings against minority residents in the area to gain property for public use.

But Harris said he doesn't regret his support for eminent domain.

He said he believes there is a way to bring minority representation back with future elections through a system he calls "cumulative voting."

Incumbent Harris, of 102 4th Place N.E, was defeated for the Ward 1 council seat by Jerry Workman, 104 Selwyn Abbey, in the Weatherly community.

Ward 1 was redistricted by the City Council in September of 2003 to include 35 percent black, 63.56 percent white and 1.44 percent '"other" voting age persons.

Previously, in accordance with what was then federal law, the ward included a much closer ratio of blacks to whites with a 40.39 percent black voting age population, a 58.35 percent white voting age population and a 1.25 percent other voting age population.

At the time the re-districting plan was approved, Council President Rick Walters said consideration was given to use of natural boundaries, keeping neighborhoods intact and wards intact as much as possible as well as reducing the number of legal challenges.

He also said a proposal that would have included a 66.72 percent black voting age population majority in Ward 1 would have violated the "one man, one vote rule," which is current federal law.

Harris said the U.S. Justice Department approved the re-districting plan because of the contiguousness (actual contact of the land involved) in the district. And, he said, with that consideration, white residents outnumber black residents in the ward.

Harris said that with previous lawsuits and supreme court tests upholding contiguousness, the Justice Department had to approve the plan where the numbers fell.

But Harris has a solution for the future.

"I think there needs to be minority participation. I believe if we're going to teach our children in school how to live with one another and be inclusive, we need to fix the system where there can be minority participation on all local boards and in all municipalities," Harris said.

"I think one way you can do that is come up with a system known as cumulative voting.

"Under this system, everyone will have an opportunity to vote for one person or seven persons."

He explained that citizens could vote for seven different individuals, all running at large, or cast all seven votes for one individual.

He indicated that if minorities cast all seven of their votes for one man or one woman, there could be minority representation on the council.

"The top seven vote-getters, running at large, will make up the city council," he said.

Harris said one town in Alabama, Centre, already uses this system and received Justice Department approval.

According to the Center for Voting & Democracy in Takoma, Md., towns in Alabama with cumulative voting include Centre, Guin, Heath and Myrtlewood.

As to the second reason for his defeat, Harris said, "I do not regret my support for eminent domain.

"My reasoning is more people are going to be helped in Alabaster with the new development than would have been helped without the developments ... all people," he said.

"Jobs are going to available for the citizens of Alabaster. Conveniences will be available we did not have before. All city service will be improved from my support of eminent domain, and I can't wait to see that day happen."

Harris said no other blacks sought to run against him because the word had gotten out in the community that a candidate was going to run from Weatherly. And, he said, it was concluded that person would win.

"I think the greatest effect (of his council seat loss) is going to be felt when there is an outcry for minority representation," Harris said.

"When there is a killing or suspected brutality in a minority community, there is always an outcry. And there is an outcry for someone to represent us. That's when I see minority representation is going to be needed the most."

The Shelby County Reporter: www.shelbycountyreporter.com

District's diplomacy eases plans to expand
The (Cleveland OH) Plain Dealer, 9/22/04

Lakewood schools, landowners strike deals

by Patrick O'Donnell

Asking has worked better than seizing when it comes to acquiring land for public projects in Lakewood [OH].

By avoiding the use of eminent domain, the tactic that derailed a $151 million proposal to redevelop the city's West End, the school district has managed to quietly acquire more than 20 homes to expand schools.

"We're not doing eminent domain, on the heels of what happened in the West End," said Treasurer Richard Berdine.

The district needs the land to convert Harrison and Garfield Elementary schools into middle schools and to improve parking and playgrounds.

The two projects are part of its $170 million plan to replace aging buildings and cut the number of schools from 14 to 10.

The Plain Dealer: www.cleveland.com


St. Charles touts First Street plan
(Chicago) Daily Herald, 9/20/04

By Lisa Smith

A new First Street is good for you.

Like a mother trying to coax her child into eating vegetables, St. Charles city officials are gearing up to convince residents and business owners that redeveloping First Street will breathe life into downtown.

First street plans

It's an attempt to counter the backlash that followed the council's decision to take by force several longtime businesses if the owners and city officials cannot agree on a purchase price.

With the first phase of a new $50æmillion redevelopment plan expected to be approved tonight by the city council, officials will have a solid proposal to show residents and business owners wary of change. The developer hopes to complete engineering work in the spring and break ground in the summer.

"The hardest part of this project from beginning has been misunderstanding and lack of communication," Mayor Sue Klinkhamer said.

Klinkhamer said she hasn't heard any criticism of the proposal's latest incarnation, a concept plan created by St. Charles developer Bob Rasmussen and partners unveiled at last week's planning and development meeting. Realizing many people have yet to see it, Klinkhamer hopes to answer their questions before they're asked.

Residents can view the plan and drawings at city hall and, soon, the library. The drawings along with other information about the project also will be included in the upcoming city newsletter, and a news conference will be held to bring even more attention to it.

"The whole concept I think is really well thought out," Klinkhamer said. "Obviously, we're going to open it up to the public."

Klinkhamer is expected to announce today the names of civic and business leaders she has appointed to a committee that will provide input to the plan's developer and spread word about how the plan's realization will benefit St. Charles -- and how leaving things the way they are will cause an eventual downturn.

"I feel strongly if we don't do something, we're going to be very sorry down the road," said Alderman Betsy Penny.

Penny and most other city council members said Rasmussen's plan was an improvement over a similar redevelopment proposal created by the Evanston-based Davis Street Land Co. That company withdrew its plans earlier this year because representatives of the family-owned Blue Goose supermarket would not commit to relocating the business.

Rasmussen's vision, designed with Deerfield-based architect Knauer Inc., incorporates the Blue Goose in its existing location on First Street. It also includes twice as much parking, with a 580-space multi-level garage, a 63-vehicle parking lot and an additional 85 on-street parking spots.

Other highlights include:

  • A community-centered plaza running parallel to Main Street, terminating with a fountain beside the Fox River,
  • Some 235,000 square feet divided almost evenly among retail, office and residential uses (apartments and condominiums, with townhouses planned at a later phase),
  • On-street parking along a widened First Street,
  • An arched pedestrian walkway over First Street linking the parking deck on the west side to the restaurant and office space on the east side,
  • Architecture complementing the city's existing buildings and former businesses, including the Piano Factory.

Although they make up a continuous facade along the west side of First Street, the individual tenants will occupy buildings of varying color, width and roofline type to give the impression that the development took place over a longer period of time.

Alderman David Richards, also director of the Downtown St. Charles Partnership, said the proposal would create a new First Street that is an extension of the existing downtown business district.

Richards was quick to point out that Rasmussen's group did not tout its version as "upscale" -- a buzzword used by the Davis Street representatives that had insulted patrons of The Manor, a longtime downtown casual dining restaurant that likely will be forced to move to make way for the new First Street.

But Rasmussen said he envisions The Manor fitting within the First Street development, albeit in a different spot.

"We left it up to them with the opportunity to relocate in the First Street project," Rasmussen said. "We need a nice breakfast, lunch, dinner casual dining restaurant."

Rasmussen and four of his five partners in First Street Development LLC live in St. Charles. An engineer by training, Rasmussen is co-owner and developer of the Heritage Square One and Two residential and business developments at Fifth and Illinois avenues; West Towne Market on the former General Mills site; Leroy Oaks business park on Dean Street; and the Al Piemonte Cadillac dealership under construction on east Main Street.

First Street, however, would be the Rasmussen's largest project, with an estimated price tag of $50æmillion for the first phase. His previous developments have ranged from $4æmillion to $12æmillion each.

It also would be the biggest redevelopment project in the history of the city, which created a special taxing district to help defray the costs of land acquisition and infrastructure improvements.

On Sept. 10, the city filed eminent domain paperwork seeking to condemn La ZaZa Trattoria and Harris Bank's drive-through location. Proceedings against two other businesses -- Frontier Dodge and St. Charles Cleaners -- were filed in Kane County Court earlier this year, court records show, and the city council has authorized using eminent domain to purchase The Manor and Vi's Last Call, a tavern.

Most city council members tempered their praise of the newest plan by pointing out that it's at the preliminary stage. More detailed plans, coupled with a more specific cost estimate, are expected within the next few weeks.

Members of the public, plan commission and historic preservation committee also are expected to weigh in.

"When people get a chance to see the concept, people will be excited about it," Richards said. "It's good we now have something to show them."

The First Street Project would be city's largest in history

The Daily Herald: www.dailyherald.com


Finding Property Rights in the Rubble
The Washington Times, 8/11/04

by Jacob Sullum

Just before dawn on July 14, 1981, Detroit police hooked a tow truck to the basement door of the Immaculate Conception Church on Trombly Street and tore it off its hinges. They stormed in and arrested a dozen parishioners making a desperate, doomed attempt to save part of their neighborhood from an assault by an unbeatable alliance of big government, big business and big labor.

This was the last stand in the battle over Poletown, a lower-middle-class, racially integrated neighborhood of Detroit razed at the behest of General Motors more than two decades ago. To make room for a GM assembly plant, the city cleared 465 acres, incidentally destroying some 1,400 homes, about 140 businesses and several churches.

In a shameful capitulation, the Michigan Supreme Court approved Poletown's demolition as a legitimate exercise of the city's eminent domain powers. It accepted the argument that the jobs and tax revenue the GM plant was expected to bring rendered it a "public use," as required by the Michigan constitution (as well as other state constitutions and the U.S. Constitution).

Last month the court finally acknowledged that its ruling in Poletown Neighborhood Council vs. City of Detroit was a mistake that opened the door to the potentially unlimited expropriation of private property in the name of the greater good. While considering a Wayne County attempt to seize land for a 1,300-acre "business and technology park," the court's seven judges unanimously overruled the Poletown decision.

"Poletown's 'economic benefit' rationale would validate practically any exercise of the power of eminent domain on behalf of a private entity," the court noted. "If one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore,' or the like."

Then-Justice James L. Ryan, who dissented from the Poletown decision, said much the same thing in 1981, warning that the ruling "seriously jeopardized the security of all private property ownership." A lot of damage has been done since then, both in Michigan and in other states where courts have copied Poletown's reasoning.

The Rev. Joseph Karasiewicz, pastor of Poletown's Immaculate Conception Church, was prescient when he explained to The Washington Post why he was resisting GM's government-backed invasion. "This is an evil law, and we have to fight it," he said of the statute authorizing condemnation of the neighborhood. "You can't establish some type of crooked law and then say you did it legally. This has national implications and national scope. It sets a bad precedent."

In the wake of Poletown, courts across the country have endorsed forced transfers of land from its rightful owners to people with more political clout — from homeowners to condominium developers, from small businesses to large businesses, from churches to retailers.

Last fall the Nevada Supreme Court cited Poletown in upholding condemnation of land to be used for Las Vegas casino parking.

"Poletown was the first major case allowing condemnations of areas in the name of jobs and taxes," explains Institute for Justice attorney Dana Berliner, who co-authored a brief urging repudiation of the decision. "It is cited in every property textbook in the country."

An aspect of the decision intended as a safeguard — a requirement that a project's economic benefit be "clear and significant" — has had a perverse impact, encouraging larger seizures of land and hyperbolic predictions about jobs and revenue. Even in Poletown, employment at the heavily subsidized GM plant fell far short of the 6,000 jobs the company promised.

In the case that prompted the Michigan Supreme Court to reconsider Poletown, Wayne County predicted "thousands of jobs," "tens of millions of dollars in tax revenue," a broader tax base, and "accelerated economic growth." But if the project failed to deliver those results, no one would be accountable.

Such projections are, in any case, beside the point. "It's the principle of the thing," Poletown resident Kris Biernacki told The Washington Post in 1981. "I think the whole thing stinks. I just don't believe it happened. It's breathtaking. We didn't have a voice in it — not a voice. We didn't want to move. We were literally forced to move out. We were just told to go."

The Washington Times: www.washtimes.com
Jacob Sullum is a senior editor at Reason Magazine: www.reason.com


Law reforms eminent domain
The (Westchester NY) Journal News, 9/18/04

by Ken Maniace

Nearly four years after a Port Chester property owner went to court to challenge New York state's rules for taking private property, Gov. George Pataki has signed a law reforming condemnation procedures.

The new law means property owners in New York no longer need to pore over tiny legal notices, searching for clues of government plans to take their land; governments will need to notify each property owner by certified mail or personal delivery.

The eminent domain law reform was signed Tuesday by the governor and was announced by his office yesterday.

It grew out of a battle by Bill Brody, a 42-year-old businessman from Rye, to hold onto four sites in Port Chester's downtown redevelopment area.

"I'm very glad that the governor agreed with what I have been saying all along and that the state is going in the right direction," he said yesterday in front his building-supply business in the Bronx.

Brody said he never saw the condemnation plan announcement in a July 1999 legal notice, which neither named him nor identified his Port Chester property by address. Because of that, Brody said, he failed to challenge the condemnation in the 30-day period allowed.

The new law has no effect on Port Chester's taking of Brody's property for a 27-acre retail and entertainment complex under construction, but his case continues in federal court in Manhattan, where a ruling is expected this fall.

Brody's case was one of several taken up in October 2000 by the Institute for Justice, a nonprofit group in Washington, in an assault on New York's eminent domain rules, which the group called "among the worst in the nation."

Not only did the old law fail to require property owners to be properly notified of condemnation plans, it also failed to inform them they had a specific 30-day period for challenging condemnation.

"Cities were telling people that these public hearings were opportunities to express their feelings about a proposed project, not that this was a hearing where they had to put forward their reasons why government should not take their property," said Dana Berliner, a senior attorney with the Institute for Justice. "Now, at least, owners have a chance to defend themselves."

Sponsored by Assemblyman Richard Brodsky, D-Greenburgh, and state Sen. Vincent Leibell, R-Patterson, the legislation unanimously passed both houses in June. A version was vetoed by Pataki last year after it, too, unanimously passed both chambers.

Pataki's office said he vetoed the earlier law because it required title searches to identify every property owner involved in a proposed condemnation, an expensive feature.

The new legislation relies on government tax assessment records to identify owners.

Leibell called the bill "pro-consumer legislation."

Brodsky said the law would protect property rights.

"People deserve real notification when the government wants to take their property," he said.

The new law takes effect in about four months.

Although the law improves a major flaw in the state's eminent domain procedures, Berliner said New York has another problem: It often resorts to eminent domain to acquire land for private development rather than for a public purpose, such as a park or road. Though other states have done so, New York is among those that most often use condemnation as a tool for private development.

Government officials have justified the practice by saying condemnation for private development serves a public purpose because it improves a municipality's tax base.

Though Port Chester may have benefited from the old law, Mayor Gerald Logan said yesterday he was pleased the new one would afford property owners more legal protection.

"Now, at least, someone has the opportunity to make themselves heard," Logan said.

The Journal News: http://www.nynews.com/