Council answers blight question — The (Brazoria County TX) Facts, 10/22/04

By Michael Baker

[Freeport TX] Council members reiterated promises that they have no intention of taking any homes by eminent domain as a man who stands to lose business property by the process questioned a city-funded report that denoted several homes as "blighted."

Wright Gore III asked council members to explain a section of the city's
master plan, approved in 2002, referring to the blight in Freeport's residential areas. Gore's father's company, Western Seafood, is battling the city over some docking property it could lose to eminent domain for a marina project. He said other cities have used the "blighted" designation as a green light to take residential property by eminent domain, too.

"One of the criteria is that something has to be labeled as blighted," Gore
said. "That makes it easier to take these homes by eminent domain."

Gore specifically referred to a page in the master plan that described 640
homes, about 95 percent of residential homes, as blighted.

Lee Cameron, director of the city's economic development corporation, said
the master plan was merely pointing out that the city could benefit from beautification efforts. The plan's authors used criteria such as torn screens, broken windows, peeling paint and littered yards to determine how much of the residential area is blighted, he said.

Mayor Jim Barnett said the designation was made by the plan's authors, not
the city. Although the city approved paying for the plan, it has not given a blanket approval adopting its contents, he said.

"It's of no consequence at all," Barnett said.

The exchange between Gore and the council members, specifically Barnett and
Councilman Jim Phillips, was heated at times. The city officials continued to insist they have no plans to take people's homes by eminent domain. Gore questioned the city's urban renewal project, in which they city is using eminent domain to take a few uninhabited lots for an eventual subdivision in the Velasco side of the city.

Phillips also took a jab at an advertising campaign when Gore carpeted the
city with fliers in April, around the time he launched his Web site, scandalinfreeport.com.

"The first indication I had that my home was blighted was when you put a
hanger on my doorknob stating my house was blighted," Phillips said.

The Facts: www.thefacts.com


Residents ask city to wait for eminent domain ruling — (long Branch NJ) Atlanticville, 10/21/04

Schneider says Supreme Court case won’t affect plans

By Christine Varno

Residents of Long Branch’s redevelopment zone pleaded with the City Council last week to put a hold on eminent domain proceedings involving their properties until the Supreme Court rules on the issue.

“The Supreme Court has taken the eminent domain case,” Harold Bobrow, of Ocean Boulevard, said at the Oct. 12 council meeting. “Put this [the redevelopment plan] on hold until after the decision of the Supreme Court. Once [the homes in the redevelopment zone] are down, they are gone, kaput, goodbye.”

On Sept. 27, the Supreme Court agreed to hear Kelo vs. New London, which would set limits on eminent domain under the Constitution, according to Scott Bullock, an attorney with the Institute for Justice in Washington, D.C. He said the New London case is similar to what is taking place in Long Branch.

“Apparently, there is some thought by the Supreme Court that something is unconstitutional in eminent domain law,” said Bobrow, whose home is in the city’s Beachfront South redevelopment zone and slated for eminent domain.

Long Branch Mayor Adam Schneider responded that he does not think the Supreme Court’s decision to hear the case will affect what is happening in Long Branch.

“It’s a very different issue,” he said, “that is grounded in the rights of a governmental body solely [taking land] for economic purposes.

“Long Branch can establish public use and purpose.”

The city adopted a resolution on Aug. 4, designating K. Hovnanian Shore Acquisitions, of Middletown, as developer of the 12 acres of Beachfront South that is bordered on the east by Ocean Avenue, on the west by Ocean Boulevard, on the south by North Bath Avenue and on the north by Morris Avenue.

Schneider said the plans call for bulldozing the properties and constructing 270 units to 350 mid-rise condominiums and townhouses on the site.

“Long Branch is turning into a privatized nightmare,” Katina Tsakiris, of Beachfront South, said.

Schneider said he and the council are doing what is for the best for the entire city.

“We knew full well that the area [Long Branch] clearly was in terrible shape and getting worse,” he said. “We could have [redeveloped] one block, but it would not have worked. We needed a large area.”

He said the intent of the council is to continue with the redevelopment plan.

“You can criticize what we are doing as much as you want, but the plan is clearly working,” he said.

Residents living in the Beachfront North Redevelopment zone, phase II, which includes Marine and Ocean terraces, and Seaview Avenue (MTOTSA), also want to save their homes from being razed and replaced with townhouses and condominiums as well.

“Please don’t take us away from our homes,” Tom Bellucci, of MTOTSA, said.

When the plans for the MTOTSA area were in the beginning stages in the Planning Board meetings in 1996, Lori Vendetti of MTOTSA said she was at the meetings and the plans at that time called for MTOTSA to be revitalized and called for in-fill around the properties.

“I was here in 1996 and the plan said revitalization,” Vendetti said. “We didn’t care because it was in-fill of empty lots. You did not say you were taking our homes.”

Schneider said the original plans called for a number of different things.

“My guess is you heard what you wanted to hear,” Schneider said. “One being exactly what is happening now.

“The whole point of the plan and process is to get the community involved,” he said. “Coming to one meeting 10 years ago is not getting involved in the process.”

Bruce MacCloud, whose home on Cooper Avenue in the city’s redevelopment zone was taken through eminent domain, said he was a victim of the Schneider development plan.

“I see one new development to deal with,” he said. “And that is [for Schneider] to resign.”

Schneider said he has been unable to engage in a serious conversation with city residents at council meetings because he said they do not present serious discussions.

“That is unfortunate, especially for MTOTSA,” he said.

Schneider applauded one resident at the last meeting for speaking to the council calmly and allowing the council to respond to the questions asked.

Atlanticville: www.atlanticville.gmnews.com

Court must limit useof eminent domain — The (Northeast OH) News-Herald, 10/21/04

Editorial Opinion

Whenever you see the term "eminent domain" in the paper, you know one thing for certain - some governmental body is attempting to take property away from an unwilling private owner.

If the rightful owner were willing to sell his land, that person obviously would reach an agreement with the city, state or other governmental unit that is orchestrating the land grab.

The purchase price would be agreed upon, the governmental unit would write a check, and the deal would be closed.

But in many instances, the government wants land that the owner does not want to sell. So the government goes to court, files an action for eminent domain proceedings and - virtually every time - the court allows the government to take the property.

It was through the use of eminent domain that the city of Mentor took the Mentor Lagoons away from owners Jerry and Rick Osborne.

The Osbornes didn't want to sell. They wanted to develop their land. They had visions for its future that would have been attractive, visionary and in the best interests of the city in many positive ways, not to mention their own best interests as the developers.

Mentor citizens, by a majority referendum vote, authorized the city to proceed to acquire the Lagoons through eminent domain.

Under the pressure of the eminent domain lawsuit filed in Common Pleas Court by the city, the Osbornes, rather than going through a trial, agreed upon a purchase price and sold the Lagoons to Mentor for something more than $8 million.

So Mentor paid the Osbornes for the land, possibly fulfilling the "just compensation" element of the Fifth Amendment.

Let's just say that Mentor is now the proud owner of the Lagoons, the city satisfied the court that it had a need for the land and the issue is settled and no longer debated.

Similarly, the Lake Metroparks system bought Camp Kline in Concord Township for an agreed-upon price under the pressure of a pending eminent domain court action.

Syndicated columnist James Kilpatrick wrote a thoughtful article on the subject in these pages Monday in which he noted that the Bill of Rights stipulates that private property shall not be taken for "public use" without payment of just compensation.

Both the city of Mentor and the parks system offered persuasive arguments to substantiate the public-use element of their eminent domain proceedings.

A far different usage of eminent domain is one that some governmental bodies employ to acquire property from an unwilling owner or owners so that it can be developed in a way to produce greater real estate tax revenues for the governmental body.

Lakewood tried taking homes away from people who had lived in them for many years so the land could be developed commercially to produce more taxes - and ran into a buzzsaw of opposition that gained national attention.

The issue came to a vote of the people of Lakewood, and the city lost.

There is another hotly contested eminent domain case in Bainbridge Township in which the property owners, the Cipiti family, are also fighting the taking of their property by the township for use as a park.

Kilpatrick wrote of a land grab that ended up in the U.S. Supreme Court because the seizure promises no public use at all.

The case involves the city of New London, Conn., which wants to take the home of a woman, pay her market value for it, demolish it and then lease it to a private developer for the next 99 years.

The woman, Suzette Kelo, is fighting the city tooth and nail. As Kilpatrick noted, the proceeding has nothing to do with slum clearance or the elimination of blight, and everything to do with raking in more tax revenues to pad the city's coffers.

There is good reason for having the laws of eminent domain - when the property that is acquired is to be used for a legitimate public purpose.

But eminent domain should not be used by government, at any level, as a routine way of doing business to grab private property or as a means of coercion to deprive rightful owners of their land.

The news-Herald: www.zwire.com

Ginsburg reveals plan for $100-million White Plains development — The (Westchester, Rockland, and Putnam County NY) Journal News, 10/21/04

By Susan Elan

Nearly a year after announcing plans for a luxury condominium tower on Main Street, developer Martin Ginsburg last night unveiled his proposal to the Common Council for a $100 million venture.

The 148-unit project, called Pinnacle, has been designed to rise to 280 feet, the Hawthorne-based developer told the council during a work session at City Hall. One- to three-bedroom homes in the sleek, copper-capped tower designed by architect Michael Graves would sell for between $450,000 and $2.5 million.

But Ginsburg has not assembled enough land under city zoning law to build higher than 230 feet or about 23 stories. So he is asking the council to use the power of eminent domain to seize a corner parcel along Main Street owned by Louis Cappelli, developer of the adjacent $350 million residential, entertainment and retail City Center.

The two developers have negotiated for about six months over the use of the corner lot, home for two decades to a popular lunch spot called the Corner Nook Cafe. Discussions over the coveted 6,000-square-foot parcel recently broke down, Ginsburg said.

To put together the 100,000-square-foot parcel required by city zoning law to make his plan for 250 Main St. work, Ginsburg also needs to convince White Plains officials to include 0.66 acres of the municipal City Center Garage land in the calculation of his holdings.

Ginsburg said there are two powerful incentives to get the city to agree to his requests. First, his development plan would improve the look of Main Street. In place of a maze of driveways connecting with the City Center Garage, Ginsburg said he would expand a 5-foot sidewalk into a landscaped public plaza fronting on Main Street that would include a café and two restaurants.

Second, Ginsburg said, acquiring Cappelli's corner parcel and gaining council permission to build to 280 feet would make it economically feasible to construct nine below-market housing units within the luxury building at a cost of about $3 million. Other developers who brought plans for luxury condominium developments to the council last night asked for permission to contribute to a city fund to create affordable housing off-site.

Council President Thomas Roach said after Ginsburg's presentation that he finds the design of the granite and brick-clad building "unique and dramatic," but he is hesitant to seize private property from one developer to assist another.

"Eminent domain should be used sparingly and only for public use," Roach said.

Councilwoman Rita Malmud questioned whether the city would have the right to allow Ginsburg to incorporate any portion of the City Center Garage in his land calculations.

Cappelli, who did not attend the meeting, said later in a telephone interview that construction of Ginsburg's 280-foot-high condominium tower with a 50-foot-high copper spire on top would interfere with the view of his City Center tenants and those who buy condominiums in Trump Tower, a second 35-story development he shares with Donald Trump.

The Journal News: www.thejournalnews.com

Nonprofit firm appeals Norwood eminent domain decision — (Cincinnati OH) Business Courier, 10/21/04

By Lisa Biank Fasig

A nonprofit law firm today appealed a county court decision that allowed the City of Norwood to forcibly acquire a rental property to make way for a mixed-use development.

The Institute for Justice also asked Hamilton County Court to halt any possible development of the property while the ruling is in appeal.

The Institute filed the appeal on behalf of John Horney, whose rental property, on Atlantic Avenue, is among five hold-out business and personal properties deemed as blighting. As such, Hamilton County Court Judge Beth Myers in June gave the city clearance to acquire the properties, so they can be redevelolped.

Sixty-six others have agreed to sell their properties to make way for Rookwood Exchange, a proposed mixed-use development of offices, rental properties and retail. It is being developed by Rookwood Partners, a partnership of Jeffrey R. Anderson Real Estate and Miller-Valentine Group.

The hold-out property owners, including Horney, vowed to appeal the June ruling, but could not do so until after attending jury hearings to determine fair compensation for their property.

Horney's hearings took place the week of Sept. 20, with the jury awarding a property value of $233,000.

The next hearings are scheduled for Oct. 25, for Joy and Carl Gamble, the only homeowners who are holding out.

After the Horney hearing, the city made the required deposit for the property, obtained the court order, and the title of property was transferred to Norwood, said Timothy Burke, an attorney representing the city.

"The city of Norwood has since that time transferred the title to Rookwood Partners," Burke said. "They took title subject to the fact that Horney, his wife and tenants are entitled to a 90-day notice, which has been given.

"We're going to comply with the law," Burke said, "and actually, we don't own the property anymore, the developer does."

This is one of the issues the Institute for Justice is taking up.

"They transferred the property so quickly," said Bert Gall, an attorney with the Institute who is working on the appeal. "We think that's an attempt to frustrate the appellate process."

The Institute, whose hearings were with the city, is now seeking to bring Rookwood Partners into the case, since the developer now has control of Horney's property.

"What we're asking for is really quite reasonable," he said. "Since Rookwood is the owner, they have to be party to the process, because to stop it, they have to stop them."

He said the Institute will file appeals on behalf of the other property owners as well, when the time comes.

Business Courier: cincinnati.bizjournals.com/cincinnati

Caution is the watchword on eminent domain — (Cumberland County NJ) Daily Journal, 10/21/04

Editorial Opinion

Millville Mayor James Quinn said he couldn't "let the city down." He said he wouldn't be able to sleep if he didn't support, and the City Commission didn't approve, an ordinance giving the city power of eminent domain over businesses standing in the way of a new shopping center along Route 47.

Considering what the shopping center would do for this city — 1,000 new jobs and millions of dollars in property tax revenue — it's easy to understand the mayor's point of view.

The mayor says the facts are in black and white. We suggest, however, that before the city uses its eminent domain power, it not only calculate the numbers but also count and weigh the human cost and possible loss of trust that could accrue if the city were to relocate or shut down an established business in favor of a new one. City officials must consider the fact that these businesses have provided jobs to local residents for years and during tougher economic times for Cumberland County.

Opponents of eminent domain say it's unconstitutional in this case — using it to condemn property to favor one business over another because of the ratables and jobs a business will provide. The power of eminent domain originated to further the public good for projects such as roads and bridges.

We urge city officials to use all their powers of persuasion to get the developer (Goodman Properties) and the businesses involved to work out a fair agreement that is satisfactory to everyone. Eminent domain is a powerful tool that should be used as an act of last resort, if at all.

Daily Journal: www.thedailyjournal.com


Eminent domain used — Bridgeton (NJ) News, 10/20/04

By Jaime Marine

[Millville NJ] City commissioners approved an ordinance Tuesday night which would authorize the condemnation of eight parcels along Route 47 should an agreement not be reached between property owners and developers of a proposed shopping mall.

"Do I feel good about eminent domain? Absolutely not," Mayor Jim Quinn said. "Do I hope we have to do it? I hope we never have to do it."

The unanimous decision to approve the condemnation ordinance came after various individuals spoke during a public hearing.

While Dr. Harold Blumenthal of the Animal Hospital of Millville has settled with the developers, he took the time to address the commission and share his thoughts on the ordinance.

"Development happens all over the country, every single day, with lands that are purchased voluntarily," he said. "That is the way our nation was built and what our constitution requires.

"You ask people to give up their property so someone else can make a profit and that is a bad policy. It is not how government should behave toward its people."

Blumenthal said he felt like the city was forcing him to settle.

"The city used the threat of eminent domain to force me to make a deal, even if I didn't want to," he said.

Attorney Gary Wodlinger, council for developer, Goodman Properties, said his clients have only been making fair deals and that all but two owners have come to some sort of settlement with the company.

"We are going to continue (discussions) in an attempt to reach a resolution with them," he said. "I would hope we could reach that conclusion. However, only time will tell."

Wodlinger declined to say which two property owners had not reached a settlement with the company.

During the public hearing, Wodlinger also made it clear that the condemnation of residential properties was never part of their plan or this ordinance.

"No homeowner has been targeted by the city and the suggestion of that is factually inaccurate and not applicable to this project or any I'm aware of this city commission doing in (regards to) eminent domain or economic development," he said. "These are business in an area that the city – after hearings – determined was blighted and was in need of redevelopment."

If this parcel of land were not available, Wodlinger told the officials the businesses would go to other communities because there would be nowhere else for them.

"If they were not going to come here, they would go to a neighboring community and bring the business, ratables and taxes elsewhere," he said. "If the public could see the negotiated deals, compensation for the property owners and the economic value they are getting for their property, they would know no one has been taken advantage of anywhere."

Quinn agreed and said the city has been pleased with the dealings between Goodman Properties and business owners – in some cases the developer has offered to relocate businesses.

"We could lose Target, Kohl's and these shopping centers to neighboring communities if the developer and these people don't know the city is sincere about supporting them and bringing them in," he said. "I understand how difficult this is, but I could not sleep at night if I let the people of Millville down. We can't let this go."

The proposed $40 million shopping mall – which would be located near the Millville Town Center – could bring 1,000 jobs to the area.

It would also collect approximately $1.6 million in property tax revenues – not counting Urban Enterprise Zone monies.

The eight properties – with two not functioning – currently collects about $42,710.49 in tax revenues.

"It was just something that had to be done," Quinn said. "I know in some areas it may not be popular, but I don't see any other choice."

The Bridgeton News: www.nj.com

Developers are trying to steal our property

By Dino P. Paspalakis

The City of Daytona Beach FL is trying to use eminent domain to take property on its Boardwalk from the owners, to give it to developers to build an additional hotel/condo project. If you don’t believe that local governments can use eminent domain to transfer property from one individual to another private individual, check a recent article by Jacob Sullum at:

Here is my story:

My sister and I own the Joyland Amusement Center on the Boardwalk, a successful oceanfront property in Daytona Beach. sSalivating developers, who have succeeded in getting a majority of the City Commissioners to back them through political contributions, are trying to steal our property from us. We are fighting the takeover in court, and our litigation is scheduled for November 2004. Details and comments about the case, negative and positive, are online at:

For purposes of background, several years ago, the Boardwalk property owners hired Rick Swisher, an Orlando architect who has worked for both Disney and Church Street Station, to design plans for us to redevelop our properties. When we approached the City of Daytona Beach, redevelopment director, Jerry Langston, told us that the plans "were crap". We disagreed, but, in an effort to be accommodating, and, based on Jerry's recommendation, we hired the Miami form of Spillis and Candella, whose work includes Coconut Grove and many waterfront renovations. The City loved those plans and even included them in some of its literature (I have copies). However, the City told us to not to renovate but to wait until the hotel projected to be built west of our area is ready to go forward so the project would have a unified theme. The City then betrayed us by offering our oceanfront property to the developers, in an effort to entice them to build another hotel

Now, everything will be coming out in court, including some additional information that will prove embarrassing to the City officials. Within the last 2 years, my family has spent over $1,000,000 in the Midway Fun Center, not to mention additional investments in both the Mardi Gras and the Joyland. The Midway now has brand new bumper cars imported from France, a Himalaya ride, a merry-go-round, and other rides and games.

You may be in a similar situation. Regardless of what your development goals are, the issue is property rights. If a government could take your property solely based on the increase in tax revenues that could be generated, then no one's property is safe. If your neighbor could build a bigger and more expensive house on your property, then he would be entitled to your land. This communistic approach to redevelopment is contrary to the teachings of Adam Smith in "The Wealth of Nations."

It is a shame that our City staff thinks that redevelopment cannot happen without eminent domain. The City recently purchased, without eminent domain, all the property south of Main Street, including the pier, in order to build "Ocean Park." Eminent domain wasn't used in that situation because Florida Forever fund specifically prohibit the practice. This shows that developement can be encouraged with tax increment financing (TIF) money and other means without the use of eminent domain.

To make things clear, I want to state that my property is not for sale; I want to remain on the Boardwalk. You must understand me in order to know why I don't want to sell out. I graduated from the University of South Florida with honors in Accounting; I went to Stetson and took classes in their master's program. I chose to take over my father's business, along with my sister. This is my livelihood, and I also believe that my father, who spent his whole life working his butt off trying to buy the Joyland, would be proud to see what we have done with what he started. The improvements that we have made to the Joyland are much more than "nominal". Last year alone, there was over $600,000 spent on the Joyland.

Bill Geary, the chosen developer, leases 200 feet of the Boardwalk. Geary is responsible for removing the merry-go-round, twirl-a-whirl, spider, bullet and the Ferris wheel. Thereafter, he replaced these rides with a bungee swing. Even when Marc Brenier, a local radio host, came to the Boardwalk, his biggest problem with the appearance was Geary's properties.

Also, don't forget that the Boardwalk is in the top ten tourist attractions of Central Florida, according to Florida Trends magazine. I invite you to come down and take a look for yourself. However, don't hold against me the properties that Geary owns, including but not limited to, the 200 feet of unimproved property on the Boardwalk, the boarded-up McDonalds, the non-confirming dirt parking lot, and the Beach Bunny Club (the redevelopment's only topless bar).

There was a deal that was mentioned on the Marc Brenier Show, in which my property would be relocated in the new development, as a corner piece of property with the same square footage and with same building specifications and front footage as I currently enjoy. This deal was offered by the previous mayor in order to stop us from getting the citizens to come to City Hall to protest this governmental abuse of eminent domain. However, after countless letters by my attorney, the developers decided to renege on the offer. However, with or without a deal, do I think it's fair for our City to threaten its citizens the way they are doing? No. Do I feel that property rights are being abused? Yes. Do I believe that I will prevail when the developers decide to screw me? Yes, I do.

Dino P. Paspalakis: midwayfuncenter@aol.com


Localities await Supreme Court ruling on eminent domain — The (Hampton Roads VA) Virginian-Pilot, 10/18/04

By Battinto Batts

The city has a plan to redevelop riverfront land as the site for a hotel, a health club and offices.

The development could bring millions in additional tax revenue and enhance the city’s tourism market.

But there is a hitch. The city can’t get the people who own and live on the land to sell. So the city is trying to take the property through the use of eminent domain, the constitutional power that enables municipalities to acquire private land for the public good.

This scenario in New London, Conn., is similar to what has played out in localities across the country, including in Hampton Roads. The eminent domain process often forces municipal governments and the landowners into court to battle over whether the land can be acquired as well as a fair price for it.

The landowners in New London have taken their fight to the U.S. Supreme Court. The landowners argue the taking of their property and giving it to a private developer does not fall under the public good requirement of eminent domain.

The high court agreed late last month to hear the case this term, which ends in early summer 2005.

Opinions vary about whether the ruling will have any effect in Hampton Roads, which has had a couple of high-profile eminent-domain cases recently.

“The writ granted by the Supreme Court to hear the New London case is going to make the housing authority in Norfolk and other condemning authorities very cautious when they take property from one private owner only to transfer the use of that property to another private individual,” said Norfolk attorney Joseph T. Waldo.

Waldo, whose firm, Waldo & Lyle, has made a living representing landowners, believes eminent domain has been abused by cities. He represents the owners of Downtown Used Auto Parts, which is fighting plans by the Norfolk Redevelopment and Housing Authority to condemn its property for a parking lot expansion of the nearby Mid-Atlantic Coca-Cola bottling plant.

“What started out truly as slum clearance by housing authorities has turned out to be a land grab by city governments and other condemning authorities,” Waldo said. “They need to do whatever they can to expand their tax base, but this is America. This is the United States.”

Sandy Cherry, a Richmond attorney who has represented the Virginia Department of Transportation and Norfolk Southern in condemnation cases, doesn’t believe the Connecticut case will have an impact here.

“Virginia follows a pretty conservative rule with public use. It’s called the predominant use test,” Cherry said. “Some other states construe any public benefit to be public use. Virginia’s courts have a stricter standard. It doesn’t mean the use has to be 100 percent by the public, but the public has to have control and the public use must dominate over the private use.

The right of municipalities to acquire land for public use is spelled out in the Fifth Amendment of the Constitution. The Founding Fathers saw the potential need to compel private landowners to sell their property to a governmental body when needed for such things as roads or a public building.

The constitution states “nor shall private property be taken for public use without just compensation.”

States have used that provision to remove blight from communities by creating redevelopment areas and allowing development authorities to acquire depressed properties.

Connecticut is one of several states that allow condemnations for private business development if it will result in increased tax revenue, regardless of the condition of the property.

The case, Kelo v. New London, challenges what constitutes public use and whether it is appropriate to take land from a private owner and give it to developer.

In a 4-3 decision earlier this year, the Connecticut Supreme Court ruled in favor of New London.

In Virginia, like other states, municipalities typically first determine a parcel of land and any existing structure on it are blighted. The municipality drafts a redevelopment plan for the property and then approaches the landowner with an offer to buy it.

If the two sides can’t reach agreement, the governmental body has the right to invoke eminent domain.

Kathy Warren, director of development for the Portsmouth Redevelopment and Housing Authority, is watching the Supreme Court case closely.

“It would be detrimental to the city if we didn’t have it,” Warren said of eminent domain, which she likened to a last-resort trump card to be used when all else fails.

“But it is a very powerful and helpful tool to us,” she added.

Eminent domain cases often are pushed by housing authorities, and occasionally municipal and other governmental units are forced to use it.

Typically, it is a lengthy and often expensive process.

“For the city itself it’s very rare,” said G. Timothy Oksman, city attorney for Portsmouth. “In the vast majority of cases we are able to successfully negotiate the acquisition. We find that advantageous in most circumstances. Not only because of not having to spend litigation costs but because if a case gets caught up in litigation it can take a long time to get resolved.”

The threat of eminent domain can often help speed up negotiations, Warren said “It has assisted us in just getting the attention of the landlord to get them to improve the property or sell the property,” Warren said. “They may not return your phone calls. But once you step in with a possible condemnation, then you get their attention.”

The hope is to achieve an outcome that is beneficial to all parties involved, she continued. “Our goal with any type of acquisition is to create a win-win. As a government agency we are trying to improve properties and neighborhoods.”

Waldo doesn’t question the need for eminent domain, he thinks the benchmark of a public use has been distorted and that property owners get hurt.

Although the courts sometimes side with the property owners and say they should be paid more for their land than offered, those settlements don’t cover the cost of litigation, the loss of business or relocation, Waldo said.

“It’s going on everywhere, every day all over Virginia,” he said. “Many property owners are afraid of taking on the government. They believe in the adage, 'You can’t beat City Hall.’”

The Supreme Court case, he said, will give other landowners the courage to fight.

The Virginian-Pilot: www.PilotOnline.com

Strict Construction Required when It Comes to Eminent Domain — Universal Press Syndicate, 10/14/04

James J. Kilpatrick

Two weeks ago, the Supreme Court agreed to hear argument in the case of Kelo v. City of New London, Conn. The court's announcement stirred scarcely a ripple of interest in the press, which is odd, because this is a Big One. It reaches to the very heart of what constitutional law is all about.

The case involves two words in the Bill of Rights. Private property, says the Fifth Amendment, shall not be taken for "public use" without payment of just compensation. Here the city of New London proposes to seize the home of Susette Kelo and pay her the market value, then demolish it, and lease the land to a private developer for the next 99 years. The seizure promises no public use at all.

Ms. Kelo is the lead plaintiff in a suit challenging the city's power of eminent domain. Six other homeowners in the Fort Trumbull neighborhood of New London have joined in what promises to be a landmark case in the high court. The proceeding has nothing to do with slum clearance or the elimination of blight. It has everything to do with raking in some higher taxes on upscale development.

Among those who will be driven from their homes are Charles and Wilhelmina Dery. She was born in her Fort Trumbull home in 1918. She has lived there for her entire life. In the petitioners' brief they make their position clear:

"Petitioners have poured their labor and love into their homes. They are places where they have lived for years, have raised their families, and have grown old. Petitioners do not want money or damages. They merely seek to stop the use of eminent domain to take away their most sacred and important of possessions: their homes."

The case began four years ago, when the city adopted a development plan for 90 acres of land along the Thames River. To repeat: The area is not "blighted." It is not a "slum." All the homes and businesses have the usual amenities -- electric power, indoor plumbing, garbage collection. It is an old neighborhood, but as Daniel Webster said of Dartmouth College, "there are those who love it."

Ms. Kelo and her neighbors won a partial victory in the New London Superior Court. After a seven-day bench trial, the court ruled that the city had not demonstrated a necessity for the taking. On appeal to the Supreme Court of Connecticut, the homeowners lost 4-3, but the judgment against them was stayed for appeal to the U.S. Supreme Court (news - web sites).

This is the question: Is it lawful -- is it constitutionally permissible -- for a city to condemn unoffending private property for private business development? Some states say yes, some say no. The petitioners' counsel describe an inconsistent picture. Seven states allow such condemnations for purposes of tax revenue and job creation; these are Connecticut, Kansas, Maryland, Michigan, Minnesota, New York and North Dakota. Eight states forbid such abuse of eminent domain; these are Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington. Supreme courts in three states -- Delaware, New Hampshire and Massachusetts -- have indicated an inclination to construe the key words public use strictly.

In their opinion last March in the New London case, four of the Connecticut judges defended "a flexible approach" to the term. In their view, "public use" may well mean public usefulness, utility or advantage, or what is productive of general benefit. "The power of eminent domain requires a degree of elasticity to be capable of meeting new conditions and improvements and the ever-increasing necessities of society."

Judge Peter T. Zarella, speaking for the three dissenters, asserted that there must be limits on the power of government to take private property "when the public purpose is private economic development." He agreed with the majority that the term "public use" defies absolute definition, but he was certain that courts must preserve "our nation's long-held commitment to protect private property from unnecessary takings."

My own thought, voiced in this column ad infinitum if not ad nauseam, is that the Constitution must allow plenty of wiggle room for changing times. A Constitution that speaks of armies and a navy can plausibly embrace an air force. But some terms, such as "public use," should be fixed. Wiggle them not!

Universal Press Syndicate: www.uexpress.com
James J Kilpatrick: kilpatjj@aol.com

Council to review eminent domain policy — North County (San Diego & Riverside CA) Times, 10/17/04

By Laura Mitchell

The [Murrieta CA] City Council will consider Tuesday approving a new policy on eminent domain cases, where government has the right to take land at a fair market value, as determined by a court of law.

The council agreed last week to review its policies after coming under fire for several months for some eminent-domain cases where the city initially offered nothing for land needed to widen Jefferson Avenue from Murrieta Hot Springs Road to Juniper Street.

Under the proposed revised policy, the city will offer a fair market value for the property — an offer based on the value of the land only, not taking into account the cost of road improvements — a calculation that led to the "zero dollar" offers to the five Jefferson property owners.

Mayor Jack van Haaster said Friday the city considered the value of the road improvements — which the city is paying for — but that scenario assumed the owner is ready to sell the property soon.

"If the property owner is not ready to do that yet, if he wants to stay in the house, the idea that the road improvements have value diminishes," he said.

The proposed policy, to be considered by the council at its 7 p.m. meeting Tuesday at City Hall, 26442 Beckman Court, will also get the council involved in the process sooner, eliminating what some council members have called a heavy-handed process.

"I didn't like how we had the iron hand in this," said Councilman Warnie Enochs. "It makes the council look like a bully, and I didn't like the idea of being a bully."

Van Haaster said he thinks it's important for the council to have a chance to look at each case before deciding to begin eminent domain.

In the past, the first time the council got involved is when the city and the property owner couldn't reach an agreement. But as the elected body, the council has discretion with money and can decide to make an appropriate offer, if it is a responsible use of taxpayer funds, van Haaster said.

Once the case goes to a public hearing, the council is not supposed to talk about the value of the land, only if taking the land is for the public good, he said.

Enochs said the new policy change would only be effective if the city hired fair appraisers. An appraiser should look at the property while considering the needs of the property owner, not the needs of the city, he said.

A fair appraiser would consider that the city requires homes be 20 feet from the road, Enochs said. Some of the recent eminent domain cases would have had Jefferson Avenue as close as 6 feet from the front of some of the homes.

The city has asked its appraiser to re-evaluate his approach to the properties.

"The city needs to follow it's own ordinance on setbacks," he said. "If the home is that close to the street, the city needs to move the house or find the owner another residence."

North County Times: www.nctimes.com

Eminent domain is contrary to prosperity — (Nevada) Lahontan Valley News and Fallon Eagle Standard, 10/16.04

Letter to the Editor

By Floyd Rathbun

Thank you for including the guest editorial "Court Should Swing Back the Pendulum" in the Oct. 8 edition of the LVN. The author objects to the use of "eminent domain" to take private property from one owner and giving it to another private party. I agree with author. The only thing wrong with the editorial is that it is too short to adequately deal with the property rights issues.

Examples I've seen are carefully worded to make it sound like everyone will benefit greatly with huge piles of cash, open spaces, sustainable communities, a marvelous quality of life for everyone and all for free. Except it is never "free", because the loss of protection of private property rights always results in loss of productivity and wealth. The clever words are just a smoke screen to cover social engineering that is designed to "redistribute" private property for the good of society, regardless of who it hurts.

People either believe that the redistribution of property is a good thing or that it is evil. After all, history tells us that entire nations believe that property should be given to each "according to his need" and taken from each "according to his ability." Advocates believe that it is good to fulfill their lofty vision of how our society should look, especially if they can do it at someone else's expense and at the same time increase the number of regulatory employees in the local planning office.

Opponents argue that it is another sign of evil in a deteriorating society when we disregard individual rights and thumb our collective noses at three of the Ten Commandments. God told us through Moses to never covet what other people own (Tenth Commandment), never steal the property that we covet (Eighth Commandment), and don't lie about it when we get caught (Ninth Commandment). The author of this editorial explains that government officials are willing to do all of these things, and it must be stopped.

An early example of this abuse of power was the condemnation of private property in Poletown (Detroit), Michigan in 1981. This action was endorsed by the Michigan Supreme Court and became the standard used to justify this abuse of government power every since. By coincidence, the Michigan Supreme Court recently reversed the 1981 use of eminent domain to benefit General Motors.

The Poletown condemnation of property was done on the basis of GM promises of industry, jobs, tax revenue, etc. to the community leaders. So 4,200 people lost their homes, churches were bulldozed, the neighborhood lost 140 local businesses, and local people were violently evicted, many of whom represented families that had lived there since the 1870s. The GM plant was built but did not produce any where near the promised largesse to the city, and no one was accountable for the failure or the damage to the citizens.

For the last twenty years, communities all over the US have used the Poletown example to condemn the property of citizens, but that won't be possible now. The current Michigan Supreme Court ruled that the 1981 decision was completely wrong and that a new proposal to condemn 1,300 acres for an industrial park is unconstitutional. The current judges explained that the "economic benefit" argument for Poletown cannot be accepted because it would allow bureaucrats to use the same argument to falsely justify any eminent domain action that they could imagine. The Justices also said that ..."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..."

Until about fifty years ago, everyone understood that one of the primary purposes for having a government was the protection of private property ownership from any sort of theft or violence. That protection was designed to prosecute self employed criminals such as bank robbers and, more importantly, to protect property owners and businesses from unpredictable and arbitrary actions of the government. It was understood that prosperity, like ours, is only possible because private ownership of property meant that citizens would risk private investment for the rewards of free market economies and capitalism.

Last Friday's guest editorial is a great reminder that we can only continue to be a prosperous Nation, as our Founding Fathers promised, if we return to the moral principles that protect private property ownership. I pray that we will once again understand that property belongs to the person who owns it.

Lahontan Valley News and Fallon Eagle Standard: www.lahontanvalleynews.com

Government grabbing homes – who'll be next? — World New Daily, 10/16/04

By Henry Lamb

Be it ever so humble, there's no place like home – unless the government wants it.

Until 1954, a man's home was his castle, where no one could enter without an invitation or a warrant. Then, under the watchful eye of the U.S. Congress, the city of Washington, D.C., decided to exercise eminent domain to take land from poor blacks to redevelop a blighted area. The action was upheld by the Supreme Court [Berman vs. Parker (1954)].

The city of Detroit expanded on the idea in the 1980s and exercised the power of eminent domain to take the homes and businesses of 4,200 people so General Motors could build a new automobile plant in an area known as "Poletown." The action was justified on the basis of increasing tax revenue and stimulating the local economy. The Michigan Supreme Court upheld the decision.

Soon, municipalities across the country began using the newfound power of eminent domain to take land from one private owner and sell it to another private owner to increase tax revenue and stimulate the local economy.

In July, the Michigan Supreme Court reversed the Poletown decision, which effectively eliminates the practice in Michigan.

The city of New London, Conn., used eminent domain in 2000 to take 90 acres of private riverfront property in an effort increase tax revenue and stimulate the local economy. Most of the owners acquiesced, but ten owners said no, and their case has now been accepted by the U.S. Supreme Court (Kelo vs. City of New London).

Bruce Fein, a constitutional lawyer, argues passionately in a Washington Times column that the power of eminent domain applies to the middle class and wealthy in new London, Conn., just as it applies to the poor blacks in Washington, D.C. [See item below, "Eminent Domain, Eminent Nonsense," and the critical commentary immediately preceding it, "Kelo and Marxist Class-Based Schadenfreude."]

But he misses the point.

Government is authorized to take private property by the Fifth Amendment of the U.S. Constitution for "public use" – not for public benefit. What is legitimate "public use"? Pretty good guidelines are offered in Article I, Section 8 of the U.S. Constitution: "... forts, magazines, arsenals, dock-yards, and other needful buildings. ..."

If government remains empowered to take private property for whatever it perceives to be a public benefit, the concept of private property will vanish; the United States will be no different from a communist nation where government decides how all property must be used.

Take, for example, the Everglades Restoration Project in South Florida. Government has taken thousands of acres of private property, uprooting hundreds of private owners, to develop a project, not for government use, but which government says will result in a public benefit. The so-called benefit being the restoration of the Everglades to its "natural" condition.

Like the people in New London, most of the affected people gave up when the government declared its intention. Some who fought spent their life savings in legal fees, only to see their homes bulldozed into oblivion. There is one man, however, who still believes that his humble home is his castle. He has issued no invitation to the government, and he believes the eminent domain proceeding to take his land goes way beyond the power granted to government by the Constitution.

The government wants Jesse Hardy's 160 acres, not for a "... needful building," but to restore a "sheet flow" of water across the Everglades. Ironically, according to engineering studies, the sheet flow will not touch Jesse's land because of its elevation. But they still want his land because, according to Nancy Peyton of the Florida Wildlife Federation, which has promoted the project from the beginning:

It is remote from any public facilities. It is remote from schools and from even a supermarket. It is not a good location for people to be, and the best and highest use [of Jesse's land] is to restore it.

Neither Nancy Peyton, nor the governments of Florida or the United States should have the power to take private property from an individual because they decide that "... it is not a good location for people to be," or because they want to use the property for some purpose that suits their vision.

Nancy Peyton, and the governments of Florida and the United States should heed the words of founder John Adams, who correctly declared that:

The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is no force of law and public justice to protect it, anarchy and tyranny commence. Property must be secured or liberty cannot exist.

World Net Daily: worldnetdaily.com

Henry Lamb is the executive vice president of the Environmental Conservation Organization and chairman of Sovereignty International.