State High Court Will Hear Appeal Of Eminent Domain Case — The (New London CT) Day, 11/25/04

Seafood company seeking money for value of equipment

By Kate Moran
The state Supreme Court has agreed to hear an appeal from Foss & Bourke, the company that lost its seafood warehouse at Fort Trumbull to eminent domain and is seeking compensation for the industrial equipment that used to be inside.

Unlike residents who refused to give up their homes to eminent domain, Foss & Bourke never challenged the city's right to seize its brick warehouse at 82 Trumbull St. for economic development. However, the owners believe that the city should pay them not just for the real estate but also for the heavy equipment they cannot move to another location.

George Kanabis, the company's attorney, will argue that the city should compensate Foss & Bourke for the loss of an “assembled economic unit” that includes the warehouse and its fixtures –– a 15,000-gallon lobster tank, a 9,000-cubic-foot cooler and special lights, insulated walls and windows, sprinklers, drains and an electric system.

Kanabis said Wednesday that the city and the New London Development Corp. were unable to find a new and affordable location that met the needs of the wholesale seafood business, including proximity to the water. He argued that the equipment lost value because the company had no new location where it could get the machinery up and running.

In other words, selling the equipment as salvage would not bring a price equal to the value the equipment has as part of a functioning business.

“You value it not as equipment per se but as the totality — having everything in place and what that means for the business,” Kanabis said. “Take an old dishwasher in a restaurant. If you have to sell it, it's not worth much, but in place, it has a lot of value.”

In addition, Kanabis said the city should reimburse the company for the special lighting and cooling systems Foss & Bourke installed to keep the seafood fresh — amenities he said would have to be duplicated if the city had found a location where the company could move.

Edward O'Connell, an attorney for the city and the NLDC, said Wednesday that his clients already had factored in the lighting and other features as part of the value of the building.

“Some of these things that their appraiser called trade fixtures were really part of the real estate: the electrical wires and conduits, elevators, window casements, loading docks and things like that,” O'Connell said.

The state Appellate Court agreed with him in a decision issued in September, when a three-judge panel declined to supplement the $336,000 the company got for the building four years ago with additional money for the fixtures.

Judge Barry R. Schaller, writing for the panel, said the company was seeking compensation for the loss of its business, although legal precedent does not award damages for that cause.

The Appellate Court notes in its decision that Connecticut courts have not adopted the “assembled economic unit doctrine” that is recognized in Pennsylvania but which courts in other states, including New York, Ohio, Florida, Alabama and West Virginia, have rejected.

Kanabis argues the state has implicitly adopted the principle and that “it's time now for the Supreme Court to make a decision and let everybody know whether this doctrine is going to be applied in Connecticut or not.”

---

The Day: www.theday.com

Judge hears Norwood eminent domain case — The Cincinnati Post, 11/25/04

By Kimball Perry
A judge must decide if a Norwood house should be razed to make way for a commercial and residential development, or whether the former owner can appeal a court ruling that awarded the home to the city under its eminent domain laws.

"The point has been that our clients want to keep their property," attorney Bert Gall told Hamilton County Common Pleas Court Judge Beth Myers in a Wednesday hearing.

But attorneys for Norwood and the development countered that the building no longer belongs to Joseph Horney and he should have no say in what happens to it.

Gall -- and his employer, the Institute of Justice, a Washington, D.C.-based agency fighting eminent domain cases across the country -- represents Horney.

Horney is one of five Norwood property owners who refused to sell their property to developer Jeffery Anderson so he could build Rookwood Exchange, a proposed development in the Edwards Road corridor for 200 condominiums or apartments, retail space and 550,000 square feet of office space.

"(Horney's attorneys) say you can have the right to own the property but not the right to use it as you see fit," said attorney Mark VanderLaan, representing the development.

Horney and four other property owners fought Norwood's attempt to take their homes, using eminent domain laws to perform urban renewal on an area Norwood deemed blighted. That was a move the property owners believed was Norwood lending its government power of land seizure to benefit the developer.

Norwood officials insist the move is desperately needed for the financially strapped city, noting it needs the $1.8 million in annual earnings tax the project would add to city coffers as well as the $300,000 per year it would raise for Norwood schools.

Hamilton County Common Pleas Court Judge Beth Myers ruled in June that Norwood could take the property and ordered property valuations trials to determine how much Norwood should pay for each property.

In September, Horney was awarded $233,000 for his property, which he rents out to two tenants. Within days, Norwood placed $233,000 in an account controlled by the Clerk of Courts and then deeded the property to the developer.

Horney wants to appeal that decision but the developer, Norwood and their attorneys, insist that because Horney no longer legally owns the property there is nothing to appeal.

The judge said she would consider Wednesday's arguments and make a ruling at an undetermined future date.

---

The Cincinnati Post: www.cincypost.com

Eminent domain: new bully in town — Cleveland (OH) Plain Dealer, 11/12/04

Letter to the Editor

By LeMarr and Patricia French, Willowick OH
Communities like Lakewood and Willowick that have reached the stage known as "full build-out," described in a Nov. 3 Plain Dealer article, go too far when they attempt to seize land for development through eminent domain. Besides being unconstitutional, the taking of property that will not be owned and used by the public is a symptom of a government and a community driven to acts of greed by their hunger for new taxes.

One can only imagine the rage felt by homeowners when government decides that other uses for their property are more desirable because they will produce higher taxes. Imagine the anger created by the pretentiousness of a government that decides that someone's home can be put to a "higher and better use."

In Willowick, city officials have approved a master plan that calls for the construction of condos along the lakefront, including the area where we live. Willowick's Council president has signaled his willingness to use eminent domain in support of this master plan.

Our home, which is on the National Register of Historic Places and which we have no desire to leave, is not to be found in these plans. Instead, upscale condos are shown on top of its bulldozed remains.

---

The Plain Dealer: www.cleveland.com

Urban eminent domain case has implications for farmers — California Farm Bureau Federation, 11/24/04

Press Release

By Robyn Rominger
In a case that has significant implications for farmers across the nation, Farm Bureau has taken a position on an eminent domain case that's being heard by the U.S. Supreme Court.

The case is a situation in which the city of New London, Conn., is exercising its power of eminent domain to take waterfront property from private property owners Susette Kelo and others, and give it to a private commercial entity that plans to develop it into a waterfront hotel, office space, luxury homes and other retail businesses.

The U.S. Supreme Court will decide whether governments may seize people's homes and businesses for economic development projects that create more jobs and increase property taxes.

The American Farm Bureau Federation and about a dozen state Farm Bureaus, including the California Farm Bureau Federation, oppose the taking of the private property by the city of New London for this purpose, and plan to file a "friend-of-the-court" brief stating their collective position.

"This is now at the U.S. Supreme Court and it's the biggest property rights case in a long time," AFBF General Counsel Julie Anna Potts said. "That is very important."

CFBF General Counsel Nancy McDonough is also working on this case.

"This is an extremely important property rights case for farmers and ranchers," McDonough said. "It has significant ramifications with respect to local government's ability to take valuable farmland for the purpose of increasing the tax base."

In terms of the Kelo case, "There are homeowners in a working class neighborhood in New London, Connecticut, whose properties are along a waterfront," Potts explained. "The city has decided that they can increase the tax base and make more money for the city with increased economic development in this area. So, despite the fact that some of the homeowners have lived there for decades and do not want to move, they've decided to exercise eminent domain, take these homeowners' private property, and give this property to a private entity to develop."

The city of New London solicited a private development corporation, New London Development Corp., to assist the city in developing the waterfront.

"The city claimed that the economic development was for a public use," Potts said. "Pfizer Corp., a big pharmaceutical company, was building a big research facility on adjacent property. A significant part of New London Development Corp.'s development activity was to create a development that would complement that facility and provide Pfizer's people a place to live, a place to shop and a place to park while visiting Pfizer's facility and give business people a place to stay in a waterfront hotel. And all of this, of course, was a whole lot more money to the city of New London."

She noted that "a bunch of homeowners gave up right away and said, 'We'll take the money that you're offering us and go away,' but there are a few hold-outs. The named plaintiff is Susette Kelo. She bought this little house, likes it and its location, and wants to stay there, so she's been the poster child of defending private property rights."

Originally the case went to a Connecticut state trial court, which ruled in favor of the property owners. Following an appeal, the case went to the Connecticut Supreme Court, which ruled in favor of the city of New London. So the property owners filed a petition for review by the U.S. Supreme Court, which accepted the case for review.

"Now they're going to hear about why this state Supreme Court decision should be reversed or upheld," Potts said. "We believe it should be reversed and are supporting the private property owners. So we're going to file our brief at the same time as the Kelo petitioners are filing their opening brief. We're going to advance our arguments on behalf of agriculture and say that, as a matter of law and a matter of good public policy, individual property rights, including the right to feel secure in your home, will not be condemned for a purpose such as this. Land available for agriculture is constantly diminishing as it is and the taking of private property for this kind of thing could really deal a tremendous blow to farmers and ranchers around the country if it's upheld.

"I just think this issue is so important to Farm Bureau members that every single Farm Bureau member should watch this," Potts added. "This decision will reverberate around the country."

Farm Bureau opposes the taking of private property for public use unless no possible alternative can be demonstrated.

"The California Farm Bureau moved to protect our members on this type of taking over a decade ago when, along with the Riverside County Farm Bureau, we sued the City of San Jacinto over their attempt to 'redevelop' 2,383 acres of productive agricultural land, most of which was protected by the Williamson Act," McDonough said. "Our Governmental Affairs Division then sponsored a change in California's Redevelopment Law to provide added protection to agricultural land from being included in redevelopment projects."

The AFBF board of directors voted to support the homeowners at its October meeting.

"Shortly after that we sent out word to all of the state Farm Bureaus that AFBF was going to be participating in this important case and invited them to join AFBF in this brief," Potts said. "California Farm Bureau was on top of this right away. They were instrumental in getting the law firm who is going to be filing this brief on behalf of Farm Bureau."

The Los Angeles-based law firm is Manatt, Phelps & Phillips. The firm's attorney for the Farm Bureau is Michael Berger.

"He is highly experienced and knowledgeable in this area of law and has an excellent reputation in handling 'takings' cases, including eminent domain cases, and in fact has argued five such cases before the U.S. Supreme Court," Potts said. "He's a renowned expert in this area and the fact that he's doing this on behalf of Farm Bureau is wonderful and it's all thanks to the California Farm Bureau."

---

California Farm Bureau Federation: www.cfbf.com

American Farm Bureau federation: www.fb.org

Putting freedom into words — The Orange County (CA) Register, 11/22/04

Anaheim City Council bans the use of eminent domain for improper purposes

Editorial Opinion

Your home is your castle. So is your business. Those foundations of liberty were reinforced Tuesday at the meeting of the Anaheim City Council. It passed a resolution 3-1, with one abstention, prohibiting the city from using the power of eminent domain to grab one piece of private property for the benefit of another private person or business.

The resolution was authored by Councilman Tom Tait, a fitting cap to an almost 10-year career on the council spent defending liberty. Term limits made Nov. 16 his last council meeting.

New City Council Policy No. 220 stipulates that "it is the policy of the City of Anaheim that the power of eminent domain not be used by the City Council or Redevelopment Agency to acquire property from private parties, for the express and immediate purpose of conveying such property to any other private person or entity for commercial uses, when there is no public purpose for the acquisition except the generation or increase of sales tax or property tax revenues to the City."

We couldn't have put it better ourselves.

Obviously, the city still can use eminent domain for truly public purposes, such as building roads or schools. But it cannot do so for anything else, including the alleged "public purpose" of bulldozing people's homes and businesses to put up shopping centers that generate more sales tax revenue.

The most famous recent case in which that was attempted, before a federal judge intervened, was in Cypress, Calif. The City Council there tried to take the property of Cottonwood Christian Center and transfer it to Costco.

"It's a clear direction of where Anaheim stands in taking people's property and giving it to another property owner, that we won't do it," Mr. Tait said.

Although doing so currently is allowed by state law, he said that in his opinion the new policy "is an unambiguous message to the world and to the staff that we're not going to do it. It's not just wrong, but unconstitutional. Maybe it could serve as an example to other cities."

Indeed, the U.S. Supreme Court currently is considering Kelo v. City of New London, Conn., where waterfront homes were taken using eminent domain powers to benefit private developers.

Mayor Curt Pringle said that the city already has operated as the new policy stipulates for several years. "But many times people have to be reassured and see what your intent is."

As with the other recent commendable council policy of reducing regulations, that intent is clear: Anaheim protects private property and wants to make it as easy as possible to be a citizen or business in the city of the Angels. However, the new policy could be revoked. So city residents need to remain vocal in telling the council how right it was to ban eminent domain abuses.

The new Anaheim policy should be adopted by every other City Council in California. In honor of the man who pushed the idea, let's call them Tait Policies.

---

The Orange County Register: www.ocregister.com

CRA continues to meet residents' needs — Miami (FL) Herald, 11/21/04

Letter to the editor

By Gary Wolforth

Director of Economic Development, North Miami Beach
In the course of public debate, the most important responsibility a government official has is to be truthful and forthright with the citizens he or she serves. Therefore, I am writing to address issues raised in Brian Rook's Nov. 7 letter [Beware: CRA could take your property], regarding the creation of a Community Redevelopment Agency in North Miami Beach.

In the letter, a concern was raised about the use of eminent domain. As most citizens are aware, governments have had the power of eminent domain since the adoption of the U.S. Constitution, and North Miami Beach has had this authority since it was incorporated in 1926. The only time the city has used eminent domain in all that time was to secure a vacant lot to build the police department headquarters.

It is the intent of the mayor and City Council to not use eminent domain to take any property that has Homestead Exemption. The mayor and Council have instructed me to ensure that the redevelopment plan they adopt clearly mandates this protection.

The CRA will not have the authority to acquire homestead-exempted properties from any owner who does not desire to sell his or her property. Any statement otherwise is false.

Additional concern has been raised regarding the creation of the CRA itself. CRAs have existed in Florida since 1969, and approximately 140 of them are in operation. Establishment of this agency will allow our city to capture tax dollars that would have normally gone to Miami-Dade County. Combined with the city's contribution, this money will be used for public improvements, property improvements and business development in the redevelopment area.

Numerous communities have improved themselves by using the resources provided to CRAs, including Hollywood, Fort Lauderdale, Delray Beach, West Palm Beach and Boca Raton.

The city's leadership is currently preparing a CRA plan that will meet the needs identified by the citizens through the public hearing process.

We welcome and urge continued participation and guidance from the citizens, property owners and business owners that this agency is designed to serve.

---

The Maimi Herals: www.miami.com

Phoenix, ASU plan eminent domain use — East Valley (Phoenix AZ) Tribune, 11/21/04

By Jason Emerson
The Arizona Board of Regents and Arizona State University are backing a plan that will let Phoenix obtain private property for a downtown campus by using eminent domain.

The regents on Friday unanimously approved an agreement with Phoenix that anticipates the use of eminent domain to get property from land owners who are unwilling to sell because of disputes over real estate values.

The agreement also calls for Phoenix to buy and condemn property in the city’s name, take care of paperwork and other obligations related to condemnation cases and land purchases, and provide lawyers for cases.

The deal states that ASU would seek action by the regents, if necessary, to help Phoenix.

Phoenix is assembling land for a 15,000-student ASU campus that would occupy several blocks near the Phoenix Civic Center. The site is generally bounded by Van Buren and Fillmore streets, First Avenue and Third Street. The project is a joint venture between the city and ASU.

ASU officials said they expect difficulties as they build the campus because some land owners are holding out for inflated prices. Eminent domain would ensure land is sold at fair market rates, according to the agreement.

Governments use eminent domain to take private property for a public use. Land owners must get fair value, which is generally defined as the highest price someone would pay to a willing seller. Litigation can result if the parties disagree on the value.

Richard Stanley, ASU’s senior vice president and university planner, declined to give specifics on anticipated condemnation cases.

Tim Keller, a lawyer with public interest law firm Institute for Justice, declined comment on the specific case but said eminent domain abuse comes in many forms, including the government using condemnation to obtain land at below market prices, he said.

The Fifth Amendment guarantees that property owners are justly compensated, Keller said.

Phoenix’s media relations office didn’t return a message last week seeking comment.

---

East Valley Tribune: www.eastvalleytribune.com/index.php