City offers less for property than it did 40 years ago — Peoria [IL] Journal Star, 12/8/04

Attorney for woman who owns small parcel of land on Sears Block says Peoria would rather take land by force

By Jennifer Davis

The city of Peoria is reportedly offering less now for a small parcel of privately owned land on the Sears Block than it did 40 years ago, the owner's attorney said Tuesday, claiming the city would rather just take the land by force.

"Elizabeth Ehrlich is a 77-year-old senior citizen who has lived, worked and paid taxes in this community," her attorney, Eitan Weltman of Bloomington, told the City Council. "The city should not try and pry this property away from her just because they can find a legal loophole."

The city needs Ehrlich's property and three other small parcels of privately owned land on the old Sears block for a city-sponsored megadeal: a new $67 million Lakeview Museum and multimillion-dollar Caterpillar Inc. visitors center. The other three parcels are owned by Helen and Raymond Ulevitch and the SLG Cohen Foundation. Neither could be reached for comment Tuesday.

"We have read several times (recently) about the millions of dollars being invested there and are aware of the revenue it could generate for the city moving forward," said Weltman, adding his client just wants a fair price.

In the early 1960s, the city offered $50,000 for Ehrlich's land. This year, the city made an initial offer of just $43,000, according to Weltman. City officials wouldn't comment on price negotiations.

Also, Weltman said the city and Journal Star over the years has unfairly characterized his client as "unreasonable and unreachable."

At-large City Councilman Gary Sandberg sided with the Ehrlich family.

"There's been no face-to-face (negotiations). We've dictated the process like these people weren't people," Sandberg said. "In the '60s, they were offered $50,000 for the same piece of property. In 1979, they once again were offered money when the city was going to build a mall there. And now, with this good-faith bargaining, we haven't even met that $50,000 mark from the early '60s. And why? Because we've got the 10,000-pound gorilla: eminent domain and quick take."

Still, Sandberg was the only council member to vote against the city exercising its eminent domain authority.

City Manager Randy Oliver noted that Tuesday's action doesn't preclude further negotiations or force the owners to accept a city-set price. If the process continues, a judge will decide if there's been good-faith bargaining and what is a fair price.

The city hopes to take title to all four parcels by the end of February so demolition can proceed on the block.

While the city has planned for years to develop that two-block area between Liberty and Main streets, the council entered into an agreement just last year to allow Lakeview Museum to build a new $67 million regional museum.

Last week, Caterpillar announced its plans to build its worldwide visitors center on the plot. On Monday, the Fortune 500 company announced a large gift to Lakeview - $7 million outright and matching contributions that could total $20 million.

The Journal Star: www.pjstar.com

Petitioners' Opening Brief filed with US Supreme Court in Eminent Domain Abuse case — The Institute for Justice, 12/6/04

In a case with nationwide implications to halt the abuse of eminent domain, the Institute for Justice filed its opening brief today with the U.S. Supreme Court in Kelo v. City of New London. This landmark constitutional case will decide whether the “public use” requirement of the U.S. Constitution allows the government to use eminent domain to take one person’s home or small business so a larger business can make more money off that land and pay more taxes as a result.

“This case will determine whether government officials and big businesses have a blank check to condemn homes and small businesses for private development,” said Scott Bullock, senior attorney at the Washington, D.C.-based Institute for Justice, which represents the homeowners in the case. “If the ‘public use’ requirement of the Constitution means anything, it means that the government may not take a person’s home only to give that land over to another private party who may employ more people and produce more tax revenue.”

Dana Berliner, an Institute for Justice senior attorney and co-counsel in the case, explained, “Eminent domain abuse is a nationwide plague. The Supreme Court must place firm limits on government’s power to take private property for private gain.”

The Supreme Court’s decision will affect homeowners throughout the nation. According to a report issued last year by the Institute for Justice, in just five years, more than 10,000 properties were either taken or threatened with condemnation for private parties.

Chip Mellor, president of the Institute for Justice, added, “Development happens all over the country, every day, with land purchased voluntarily and not through government force. That’s the way our nation was built, and that’s what our Constitution requires.”

The Institute for Justice’s brief argues that condemning the homes at issue in this case for the sole purpose of “economic development” — the mere possibility of more taxes and jobs—violates the public use clause of the Fifth Amendment. As the brief states, “[T]he ordinary benefits that derive from private enterprise cannot constitute a public use under the Fifth Amendment. If all private business development is a ‘public use,’ it will be virtually impossible to distinguish a public use from a private one.”

The brief also argues the particular condemnations at issue are unconstitutional because they lack immediate or reasonably foreseeable uses: “[The City and the New London Development Corporation] seek to take [the property owners’] homes for an office building that will not be built in the foreseeable future, if ever, and for some other, unidentified use.”

A copy of the brief is available online at: www.ij.org/kelo

Institute for Justice: www.ij.org

Cities Use Eminent Domain To Clear Lots for Big-Box Stores — The Wall Street Journal, 12/8/04

By Dean Starkman

Big-box retailers have a message for local landowners: Move.

And the command has the force of law, much to the dismay of Darrell M. Trent, a part-time developer in Pittsburg, Kan. Mr. Trent thought he scored a coup this year when he leased part of a seven-acre parcel his family had owned since the 1960s to a local plumbing supplier.

But the city took the property this spring through its powers of eminent domain and handed it to a developer with a different tenant: Home Depot Inc.

Says Mr. Trent: "After having carried it all this time, for them to step in and take it away from me — it really denies me my corporate livelihood," Mr. Trent says.

Desperate for tax revenue, cities and towns across the country now routinely take property from unwilling sellers to make way for big-box retailers. Condemnation cases aren't tracked nationally, but even retailers themselves acknowledge that the explosive growth of the format in the 1990s and torrid competition for land has increasingly pushed them into increasingly problematic areas — including sites owned by other people.

The village of Port Chester, N.Y., is clearing an entire business district — including a marina, a housewares importer, an antiques store and several other businesses -- to make way for Costco Wholesale Corp., Bed Bath & Beyond Inc. and others. Costco took over another site after the city of Cypress, Calif., condemned a vacant lot as a "public nuisance" to stop a Christian group from building a religious center there. After a public uproar, the city found another site for the church , which says it is satisfied with the ultimate outcome.

The township of North Bergen, N.J., moved to condemn a store in a shopping center occupied by Kmart Holding Corp. in favor of a developer who plans another Home Depot. When the city of Maplewood, Mo., invited retailers to compete for a chunk of choice land, developers for Costco and Wal-Mart Stores Inc. fought a nasty legal and political battle. Wal-Mart's developer won -- and 150 homes and businesses were condemned.

Next spring, Costco will face its second shareholder resolution in two years asking the company to "adopt a policy for land procurement and use that incorporates social and environmental factors," particularly, the wishes of local property owners and community groups. The resolution was brought by Christian Brothers Investment Services Inc., New York, which says its concerns include "reputational risk" from eminent-domain use. "If the company continues to operate in this manner, with the amount of publicity and protests, this could end up impacting shareholder value," says Julie Tanner, a Christian Brothers spokeswoman.

Property-rights advocates say the use of condemnation for big boxes is an abuse of government power that subsidizes big retailers at original landowners' expense. "They're the new generation of robber barons, like the railroads of the 19th century" says Gideon Kanner, a professor emeritus at Loyola University Law School in Los Angeles. "They look upon this as the new way of doing business."

The U.S. Constitution and most state constitutions allow the government to take private property, with compensation, for a "public use." But courts over the years have allowed cities and towns to stretch the definition to include economic-development projects, on the principle that one private owner can better create jobs and increase tax revenue than another.

Retailers say they're doing nothing wrong. Costco, based in Issaquah, Wash., is the most outspoken of the big retailers in defense of the practice. In a candid letter to a concerned shareholder two years ago, the company's senior vice president for legal and administrative affairs, Joel Benoliel, acknowledged that "probably dozens" of its projects involved eminent domain "or the threat of it." He wrote that if Costco didn't do the deals, "our competitors for those sites, like Target, Home Depot, Kmart, Wal-Mart, BJ's, Sam's Club and many others, would ... and our shareholders would be the losers."

Mr. Benoliel says the practice doesn't violate laws or any rules of the free-market economy and rejects as "simplistic" libertarian arguments that condemnations should be confined, as some property-rights advocates argue, to roads, bridges and purely public uses. He says communities, balancing their fiscal needs against the rights of a few, often clamor for a Costco store. "We are viewed as a solution to a problem," he says.

Whether condemnees get full value for their property is a matter of bitter debate. Property owners invariably complain they are strong-armed into accepting low-ball offers. In New York's Port Chester, a working-class city on Long Island Sound, developer Bart Didden says that village redevelopment officials this year offered him $250,000 for a lot that a separate local taxing authority assessed last year at $560,000. He is challenging the village's condemnation in federal court in White Plains, N.Y.

John Watkins, a special counsel for the village, says all offers were based on "highest approved appraisals," as required by state law. He says he understands Mr. Didden's reaction, but adds that tax assessments and appraisals serve different functions — "apples and oranges," as he puts it.

Also in Port Chester, property owners and tenants alleged in several suits filed since 2000 in state court in White Plains, N.Y., that G&S LLC, the town-appointed developers, tried to prod them into settling pending condemnation suits by, among other things, removing sidewalks in front of a restaurant and filling its parking lot with rubble; tearing out street lights around an antiques store and shearing off the roof of a still-operating coin laundry.

Doug Riley, a partner with closely held G&S, Port Chester, says the allegations are both untrue and "100% frivolous." He says that under its agreement with the town, the firm was required to proceed with the project, while working around certain properties still the subject of litigation. "We were proceeding in due course with the project as we were required to do by the village," he says. Suits involving the restaurant, the antiques store and laundry are pending.

Lately, cities' power to condemn property has come under increased legal scrutiny. In August, the Michigan Supreme Court reversed a landmark 1981 ruling, widely cited by other states, that effectively barred condemnations for purely economic purposes in that state.

Then, in September, the U.S. Supreme Court agreed to hear a suit brought on behalf of New London, Conn., property owners challenging the city's plan to clear nonblighted homes and businesses to make way for an office-and-research park. The case, brought by Institute for Justice, a Washington, D.C., property-rights law firm, is the first the high court has heard on economic-development condemnations since the 1950s.

Last year, a federal judge sharply criticized Target Corp. for its role in a condemnation of a St. Louis site. The case began after Target, which was already renting a store on the site, asked its landlord for permission to knock down the store and build a larger one. When the landlord asked for higher rent, Target never called back and turned to a local alderman, who started condemnation proceedings, according to an opinion by Judge Charles A. Shaw in U.S. District Court, St. Louis.

Judge Shaw also found that Target "falsely" threatened the city that it would abandon the store if the condemnation didn't take place. He also found that the Minneapolis retailer and the city commissioned a "blighting study" that found the store's electrical and heating systems had indeed deteriorated — but failed to note that Target itself was responsible under the lease for keeping the systems up. Finally, the judge found, when the city scheduled a public hearing on the condemnation, in November 2002, it sent notice to Target, but not to the landlord — a trust representing the Aaron family of New York and others -- which didn't learn of the hearing until a month later.

Judge Shaw issued a temporary order halting the taking. Earlier this year, the Eighth Circuit U.S. Court of Appeals reversed the order, ruling the case should have been heard in state court. Edward M. Goldenhersh, a St. Louis lawyer for the landlord said the family was disappointed with the appeals-court ruling because the court "ducked the issue." The two sides settled afterward.

A Target spokeswoman declined to comment. A spokesman for Mayor Francis Slay didn't return telephone calls.

Mr. Trent, the Kansan, had a special hardship fighting his case: When it was filed, he was serving as a U.S. ambassador with the Coalition Provisional Authority in Iraq. He says the case began after he rejected a "low-ball" offer from Home Depot's developer, then flew to Baghdad. His lawyer tried to fend off the taking, but a state court in Pittsburg let it go forward this spring. Mr. Trent is challenging the compensation. That case is pending.

Allen Gill, Pittsburg's city manager, says Mr. Trent was well compensated, receiving more than $1 million for his property — a large sum for rural Kansas. He also says Mr. Trent and another owner's opposition blocked a badly needed project that has already sparked other development in town.

"Does the greater good outweigh the inconvenience to the two?" Mr. Gill asks.

In a statement, Atlanta-based Home Depot said the project would bring "good paying jobs and economic development," adding that "the City of Pittsburg identified this site as an area in need of redevelopment, and the Home Depot was receptive to working with the developer who was negotiating with the city."

The Wall Street Journal: www.wsj.com

Property owners sue over blight designation — Newark (NJ) Star-Ledger, 12/10/04

Newark accused of conspiracy to take land

By Jeffrey C Mays

After intense lobbying efforts to keep their neighborhood from the wrecking ball failed, residents and business owners of the Mulberry Street area filed a lawsuit in Superior Court yesterday challenging the city's declaration that 13 acres of the downtown neighborhood is blighted, as well as the administration's intention to reconstitute the area as a community of upscale condominiums.

The lawsuit claims that the city "conspired" with the Mulberry Street Urban Renewal Co. to take the valuable land for below-market rates because of its proximity to the planned $310 million, 18,000-seat arena for the Devils. "The Mulberry Street area was selected as a target for 'redevelopment' at the behest and urging of the private entities ... in a deliberate attempt to enlist the power of government on behalf of private entities so as to avoid the necessity to acquire land for development through the operations of the marketplace," wrote attorney John Buonocore Jr.

Members of the city council and the mayor also were swayed into favoring the project because of campaign contributions made by the planned developers, and the area simply does not meet the legal requirements of a blighted area, the suit says.

"A blighted area means people aren't paying their taxes, it's a slum area, drugs, crime. Everyone's taxes are paid. Blighted means lots of code violations. Blight does not mean we can use it to make more tax revenue," said George Mytrowitz, head of the Mulberry property owners and residents coalition and owner of Market Body Works on McCarter Highway. His group represents 27 property owners in the area the city considers blighted.

Council members deny being swayed by campaign contributions.

The lawsuit comes a month after the council approved the recommendation from the planning board that the area be considered blighted and more than two years after the project was announced.

The 13-acre area is near Route 21 and the federal courthouse. It is a mix of industrial businesses, small shops, parking lots and homes. Mayor Sharpe James says the condominium project, combined with the arena and surrounding development such as a hotel and office space, will spark a revival of Newark's downtown, and by providing a larger tax base, the entire city.

Buonocore said that is not reason enough to declare an area blighted. "Whatever the merits of this project are, you can't do it on someone else's land. Whether this is the best thing that happened in Newark is irrelevant. They can't take private land for what appears to be a predetermined outcome," he said.

Traditionally, eminent domain has been used to take land for clear public uses such as a highway or school. However, in the past couple of decades, eminent domain laws have been used to take private land for private use with the reasoning that it will create more taxes.

The Michigan Supreme Court recently reversed a case cited to justify the use of eminent domain for private development, and the U.S. Supreme Court agreed to hear arguments in a case about eminent domain for private development. Kelo vs. New London, Conn., is a case in which several homeowners are trying to stop the city from using eminent domain to take their land so that developers can build a hotel and office space. It's the first time the court has taken up the issue in 50 years. A ruling is expected in June.

"We are going to do what we have to do to get it turned back the other way," said Mytrowitz. "We just want to stay where we are."

Response: Letter to the Editor, 12/23/04

The proposed "redevelopment" of Mulberry Street in Newark ("Property owners fighting blight tag," Dec. 10) is another example of an archaic law run amok. Local activist George Mytrowitz is absolutely right when he says, "A blighted area means people aren't paying their taxes, it's a slum area, drugs, crime. Everyone's taxes are paid. Blighted means lots of code violations. Blight does not mean we can use it to make more tax revenue."

In 1947, the framers of New Jersey's present constitution put it almost exactly the same way when they included a provision allowing redevelopment laws. However, New Jersey courts have stretched the definition to the point where a parking lot in Princeton qualified as an area in need of redevelopment simply because it was "yesterday's solution." The redevelopment law should be repealed, putting an end to these rampant abuses.
— Robert Moss, Bloomfield

Newark Star-Ledger: www.starledger.com

News Release issued by The Mulberry Street Coalition, 12/10/04

Newark property owners file suit to stop Mulberry Street Redevelopment Plan:
Conspiracy and conflicts alleged

A group of city homeowners and businesses have filed a lawsuit against the Newark City Council today to overturn the city’ss attempts to condemn their neighborhood and give their property to a private developer.

The suit filed on behalf of the Mulberry Street Coalition by attorney John Buonocore Jr. of Morristown, alleges that city officials worked in concert with private developers to use the government’s power to target the area for redevelopment and thereby help the developers avoid the necessity of having to acquire the land through normal marketplace negotiations. The council voted 5-3-1 on November 3 to condemn the neighborhood.

"This is, plain and simple, a land grab on the part of private developers working in a conspiracy with government officials to take these people’s property so the developers can make a fortune redeveloping the site," said Buonocore.

The Mulberry Street redevelopment plan includes razing 14 acres of homes and businesses and replacing them with up to 2,000 housing units and 180,000 square feet of retail space only a few blocks from controversial Newark sports arena. The redevelopment plan was sprung on the community last year without debate or consultation with East Ward residents.

Buying influence
The suit also alleges that after initial efforts to get a redevelopment hearing before the Newark Planning Board failed in May and June of last year, “there ensued a concerted effort by the private entities (developers) to purchase influence with officials in city government, specifically with members of the governing body and with members of the governing body who had voted to rescind the 2003 Planning board resolution” on the redevelopment.

The suit notes that tens of thousands of dollars were contributed by the developers and persons related to their business to members of the Newark City Council. Emilio Farina, a former city council aide and a partner in Newark Redevelopment Corp — one of the developers — served last spring as the fundraising chairman for Councilman Hector Corchado.

George Mytrowitz, spokesman for the Coalition said the donations helped change some votes of city council members who were originally opposed to the plan. He has since written to the U.S. Attorney’s office asking him to investigate the contributions.

“When the developers encountered problems getting their plan through the city council, they started donating heavily to the council members and they managed to get their project revived. This is at best a pay to play scandal and it smacks of political corruption,” said Mytrowitz.

Mytrowitz said several council members, particularly Besse Walker and Hector Corchado should have been excluded from the November 3 Council vote to declare the area in need of redevelopment. The conflicts of interest are noted in the lawsuit, which states that: “Members of the governing body were improperly influenced by personal and financial connections,” to the developers.

Attorney Buonocore said that the city’s efforts to impose large scale redevelopment on area residents by threatening to take their land and give it to a private developer is an improper use of the state’s redevelopment law. He said that while he appreciates the city’s efforts to try to boost tax revenue by wholesale redevelopment, the city does not have the right to condemn a thriving neighborhood that does not meet the threshold definition of an area in need of redevelopment.

“Use of the redevelopment laws to achieve an increase in municipal taxes, or to achieve the highest and best use of the real estate are irrelevant considerations under the law,” said Buonocore.

“The bottom line is that governments in New Jersey can only legitimately take private property for a purpose that serves the public good. Governments can’t take private property and hand it over to a private developer so the developer can maximize his profits,” said the attorney.

Mulberry Street Coalition: info@mulberrystcoalition.com
Thom Ammirato: 973-403-7836


S. Jersey legal group joins eminent domain case — [South Jersey] Courier-Post, 12/9/04

Conn. dispute could affect South Jersey actions

By Jason Laughlin

An Atlantic City organization is getting involved in a Supreme Court case it says has ramifications for developments in South Jersey.

South Jersey Legal Services has filed an amici curiae - or friends of the court - brief in connection with a Connecticut eminent domain case being heard by the U.S. Supreme Court, the organization's deputy director, Douglas Gershuny, said Wednesday.

The case could affect suits the organization has filed against Camden and Mount Holly, two municipalities that have declared neighborhoods blighted.

Defining an area as blighted, or a risk to safety and health of residents, can be a precursor to buying up the property through eminent domain or condemning properties.

But Gershuny's organization fears the eminent domain process is being used to provide developers with property.

Unlike New Jersey, Connecticut does not demand that a property first be declared blighted before eminent domain procedures can begin, Gershuny said.

The Supreme Court case, Kelo v. City of New London, revolves around an accusation against the city that it claimed property through eminent domain not to improve an area but instead to create an area with businesses that would pay higher taxes.

Suzette Kelo, a New London resident who stood to lose her home in the face of commercial development, has argued that the city sets a precedent that would allow municipalities to claim private property solely for the purpose of creating more profitable ratables. The South Jersey Legal Services filed its brief in support of Kelo. The Supreme Court is likely to hear arguments in the case no earlier than spring of 2005.

Camden has declared the Cramer Hill neighborhood blighted and Mount Holly has done the same with Mount Holly Gardens, a townhouse development.

"We feel the neighborhood is not blighted at all," Gershuny said of Cramer Hill. "It's a very viable neighborhood."

South Jersey Legal Services' suits also accuse Camden and Mount Holly of civil rights violations, as the two neighborhoods declared blights are minority neighborhoods.

Randy Primas, Camden's chief operating officer, said the city wasn't using eminent domain to benefit developers or to push out Cramer Hill's current residents.

The developers are going to sell the new homes to current residents for well below their market rate, or at the homeowner's existing mortgage, he said.

"This is an effort to keep them in," Primas said.

Courier-Post: www.courierpostonline.com

MTOTSA ready to hire attorney to fight city — Atlanticville [NJ], 12/9/04

Institute for Justice is monitoring case, coordinator tells group

By Christine Varno

A group of [Long Branch] residents living within a city redevelopment zone say they will be hiring legal representation by the end of the year in the expectation of the taking of their homes by eminent domain.

The MTOTSA alliance — comprised of residents of properties on Marine and Ocean terraces and Seaview Avenue — organized a meeting with the homeowners and family members of residents living within their three-street neighborhood that has been designated the Beachfront North, phase II redevelopment zone.

The meeting, where 32 homeowners were represented, was held on Dec. 2 at the Ocean Place Resort on Ocean Boulevard.

“We [MTOTSA] shared research on the lawyers we have been interviewing and the approaches each one takes,” Olga Netto, MTOTSA core member, said about the meeting. “The meeting was excellent. I was very surprised at the backing we got.”

The group is retaining a lawyer as a last resort after all prior attempts to influence Mayor Adam Schneider and the city council to remove their properties from the redevelopment zone and save their homes from eminent domain have failed, according to a press release from MTOTSA.

Schneider has repeatedly told the residents at city council meetings to hire legal representation if they are living within a city redevelopment zone and are opposed to the city’s plans.

Schneider could not be reached for comment by deadline.

MTOTSA has been interviewing six law firms and has narrowed the search down to one attorney whose name is not being released, according to Denise Hoagland of MTOTSA.

A contract with a lawyer has not been signed at this time, according to Netto, who said MTOTSA is in the final stages of negotiations and a lawyer should be hired within the next three weeks.

“The lawyer we decide to hire must believe in our cause, must have researched our case and the history of eminent domain and must believe that we can win,” Netto said.

The designated co-developers of the MTOTSA area are; Matzel and Mumford Corp., a division of K. Hovnanian, Middletown, and Applied Cos., Hoboken.

The zone is slated for eminent domain, and plans call for the 36 properties to be bulldozed and replaced with condominiums.

MTOTSA is fighting to save their homes from what they say is an abuse of eminent domain.

“We are challenging the right of the city to take our houses,” Netto said. “We [MTOTSA] believe [the city] is threatening to take our properties, and not for public use. Eminent domain cannot be used.”

The Institute for Justice (IJ), a nonprofit agency that provides legal representation to homeowners against threats of eminent domain abuse when private property is intended to be taken by a municipality for purposes other than public use, was represented at the meeting by Steven Anderson.

Anderson, the coordinator for the Castle Coalition, an IJ nationwide grassroots outreach effort that was started to rally against eminent domain abuse, said the meeting went well.

“[IJ] currently has a case [Kelo v. City of New London] before the U.S. Supreme Court, so we are keeping a close eye on the developments in Long Branch.” he said.

“IJ was present because they continue to support our fight,” Netto said.

The intentions of IJ are to assist MTOTSA in the legal battle for their homes if they are available at the time the city initiates the eminent domain procedure, according to Netto.

“But, we cannot challenge anything until something happens,” she said.

Atlanticville: www.atlanticville.gmnews.com

The New Bill of Rights — John Ryskamp

The amicus curiae briefs submitted to the US Supreme Court to date, in support of the petitioners in Kelo v. New London, have focused on arguments which lost in other courts. In the view of John Ryskamp, of Immigration for Professionals, they are trying to raise the level of scrutiny of eminent domain proceedings but "the only way to do that is to elevate scrutiny of the facts in the eminent domain proceeding itself. In Kelo, this is housing." And, Mr Ryskamp explains how to do that in the article: Kelo v. New London: Deciding the First Case Under the New Bill of Rights.

Full article:

Mr Ryskamp believes that this issue hinges on "the essence of the Founders’ intent respecting the Constitution," as voiced by James Madison, sho stated that the Constitution prevents "every assumption of power in the legislative or executive." According to Mr Ryskamp, before Justice Oliver Wendell Holmes' tenure, "eminent domain and the commerce clause and lots of other clauses of the Constitution DID enjoy high scrutiny — and the Court used that scrutiny to strike down every single piece of social legislation they could. Holmes said the Court had to get out of the policy business, and lower the level of scrutiny so social legislation could pass Constitutional muster. This took a long time to accomplish, but it's where we are now, and no Court is going to go back and undo Holmes' work." That's why, he adds, it's necessary to emphasize the conflict between eminent domain and other important facts — it's the only way to win on this issue.

Mr Ryskamp supports this contention by noting that the Kelo petitioners are homeowners, who "are insisting that their opposition to the eminent domain action is not based on the 'private use' of the property; their opposition is based on the fact that the housing involved IS their housing. In short, they think there is some Constitutional reason to distinguish housing AS housing."

John Ryskamp: philneo2001@yahoo.com


Brief Urges Supreme Court to Protect Private Property from Government Confiscation — The Cato Institute, 12/6/04

Can government give your home to someone else, just because the new owner will pay more taxes?

On December 3, 2004, the Cato Institute filed a friend-of-the-court brief in Kelo v. City of New London, which asks the Supreme Court to stop government officials from confiscating private homes to make way for vague private development projects. The Court is expected to hear arguments in the case early in 2005.

The case shines a light on New London, Connecticut, where Pfizer established its headquarters in 1998. The City of New London has decided that the Fort Trumbull neighborhood, which lies in the shadow of Pfizer's corporate offices, is "in the way" of economic growth. In 2000, the city put Fort Trumbull in its cross-hairs, by handing over its power of eminent domain — the ability to take private property for public use — to the New London Development Corporation (NLDC), a private developer. The NLDC is tasked with seizing Fort Trumbull, and razing it to make way for a hotel and office center.

Local resident Susette Kelo and her neighbors immediately sued to save their family homes - and fought the city's plan all the way to the Supreme Court.

Cato's brief, filed on Kelo's behalf, argues the city has violated the Fifth Amendment's Takings Clause. That provision permits government to take private property only for "public" use - such as roads or hospitals - after paying just compensation. But in this case, the city wants to seize property for the benefit of private developers - simply because government accountants believe the new owner will generate more revenues for the city.

The University of Chicago's Richard A. Epstein, the author of Cato's brief, carefully dissects the City's argument, showing it to be without constitutional merit. This case, he adds, puts the spotlight on the "financial ruin" and "psychological devastation" that follow from the confiscation of private homes.

Roger Pilon, Cato's vice president for legal affairs, notes that these seizures are taking place across the country. "It's time for the Court to bring the Constitution's protections for private property down upon this practice," he says. Mark Moller, Cato senior fellow in constitutional studies and co-counsel for Cato on the brief, adds, "A ruling in favor of the City is an invitation to disaster -- since every big business is likely to generate more taxes than ordinary homeowners or small businesses. If the City can take your home for something as nebulous as `economic development,' no property is safe."

The Cato Institute: www.cato.org

The Brief is online at: www.cato.org/pubs/legalbriefs/kelovcityofnewlondon.pdf

‘Eminent domain' case may have area impact — Kansas City Star, 12/08/04

By Kelly Garbus

Does government have the right to condemn and obtain individuals' properties for the sole purpose of economic development?

The U.S. Supreme Court ultimately will answer that question after hearing a case from New London, Conn., in which a working-class neighborhood refused to sell for a riverfront hotel, health club and offices.

The case, deemed one of the most important property rights cases in the past 50 years, involves the practice of eminent domain and could affect redevelopment plans across the country, including projects in Liberty and Gladstone.

Officials with the Washington-based Institute for Justice, which represents the New London, Conn., homeowners, think property cannot be condemned for the sole purpose of private development.

If that is the case, then “no property in America is safe because anyone's home can create more jobs if it is replaced by a business and any small business can generate greater taxes if replaced by a bigger one,” according to a press release on the Institute's Web site.

Jim Gardner, press secretary for the Missouri attorney general's office, said on the state level eminent domain is used almost exclusively through the Missouri Department of Transportation to obtain right of way for road construction.

“It's generally been held that it has to be for public use,” Gardner said. But “public use” can mean different things, from roads to race tracks.

“It often comes down to the courts having to make a determination on these things,” Gardner said.

Robert Bateman, a Gladstone business owner and an opponent to eminent domain for private development, has posted signs at 68th and Broadway decrying its abuse.

Bateman said he is concerned about his rights as a property owner. He said if the U.S. Supreme Court rules in favor of eminent domain for economic development then no one's property is safe.

“These cities all have economic development directors and what is their purpose? It's to steal people's property,” Bateman said. “It's outrageous what is happening and this is just the start.”

In Liberty, city officials in 1997 targeted the Liberty Triangle, an 88-acre parcel bordered by Interstate 35, Missouri 152 and Missouri 291 for redevelopment. Last week, Lowe's, a building supply store, was the first major business to open under the new redevelopment.

Chris Williams, the city's outside legal counsel, said officials have not had to resort to condemnation proceedings on any of the 27 parcels in the project. But he said that doesn't mean it won't happen. So far about five or six parcels have been acquired.

Williams said the city has contracted with LTD Enterprises, LLC, to develop the triangle with the exception of Lowe's. LTD Enterprises is made up of three principles — two of whom are Liberty residents, Dan Carr of CB Richard Ellis real estate and Tim Harris of Star Development. A third partner, Rich Baier, also is with CB Richard Ellis.

“At this point, the law in Missouri provides that you can use eminent domain if necessary for redevelopment,” Williams said. He said the city, through real estate agents, is negotiating with a number of property owners to buy the land instead of using eminent domain.

“Some are not going to want to sell and if it reaches that point that they can't negotiate a purchase, then the city has to decide whether they want to file condemnation action for the property,” Williams said.

Williams said it was difficult to determine what impact, if any, the Supreme Court case will have on the triangle project. He said the triangle area was declared “blighted” by the City Council before proceedings with redevelopment began.

The “blighted” designation strengthens the city's justification for redevelopment.

State statute includes a number of criteria to determine blighted conditions including inadequate street layouts and improper subdivision.

Williams said the triangle has several odd-shaped parcels, including one that is landlocked and can't be accessed through roads.

But Bateman says the “blighted” designation is justification to achieve whatever is wanted by the powers-that-be.

“They will call anything they want ‘blighted',” he said. “It's whatever the politicians want at the time …”

In Gladstone, City Manager Kirk Davis thinks eminent domain is justified in cases of economic development, but said the city has not used it in about 15 years.

“I have concerns anytime I think any economic tools are being compromised,” Davis said about the Supreme Court case. “We have limited tools … and it seems to me you need all the options.”

Davis said redevelopment can generate higher sales tax revenue that keeps property taxes lower in the city and provides services and goods for others.

“Any revenue that comes in to the city goes out in the form of providing services to the citizens,” he said.

With Gladstone at 90 percent developed, most new projects would have to be redevelopment. And now Gladstone has some plans on the drawing board, including a downtown redevelopment project in the vicinity of 70th Street and North Oak Trafficway, calling for a community center, office and retail space and homes. Other redevelopment projects include Gladstone Plaza at 65th and North Oak Trafficway and a new shopping center near 58th Street and Antioch Road.

Davis declined to say whether any of the projects would involve eminent domain. He said he wasn't comfortable discussing that because of negotiations. He said developers traditionally are allowed the chance to acquire the property through negotiations before the city decides to use its eminent domain option.

Davis said there are aspects of eminent domain that protect existing landowners and one of them is “just compensation” for their property.

But Bateman said “just compensation” is rarely just.

“The property owners are the sacrificial lambs,” he said. “They have to accept the price or face years of litigation … and most people don't have that kind of money. It's expensive and cities know that.”

kansas City Star: www.kansascity.com


Brief of Amicus Curiae — Develop Don't Destroy (Brooklyn), 12/6/04

Brief submitted to the United States Supreme Court
in support of the petitioners in Kelo v. The City of New London

High Court's Decision Could Kill Bruce Ratner's
Nets Arena/High-rise Proposal

Develop Don’t Destroy Brooklyn (DDDB) has submitted an amici curiae (“friend of the court”) brief to the United States Supreme Court in support of the petitioners in Kelo v. The City of New London, a case that could overturn decades of abuse of the Constitutionally-granted power to seize private property (“eminent domain”). The brief was filed by Norman Siegel (former Executive Director of the New York Civil Liberties Union) and Steven Hyman and Richard Farren of the law firm McLaughlin & Stern, LLP.

The Supreme Court’s decision, expected by or before June 2005, will have major ramifications on Bruce Ratner’s proposed high-rise and arena complex in Prospect Heights, Brooklyn. Ratner’s proposal includes the possible use of eminent domain by New York State and City, who would take 11-13 acres of private property in Prospect Heights, Brooklyn and transfer it to Mr. Ratner’s development firm, Forest City Ratner.

In February 2004, Develop Don’t Destroy Brooklyn (DDDB) hired Mr. Siegel and McLaughlin & Stern to represent residents, business and property owners in the proposed Ratner footprint. DDDB spokesperson Daniel Goldstein said, “We are ecstatic to file this brief in support of the petitioners in this historic case. We have great faith that the Court will make the right decision and restrict the use of eminent domain to its original public use intentions. We have contended all along that Mr. Ratner’s proposed use of eminent domain is an egregious abuse of the law. Within the next half year, we fully expect the Supreme Court to vindicate our position.”

The power of eminent domain, established by the Fifth Amendment to the Constitution, was intended to allow government seizure of private property for a “public use.” Over the past decades “public use” has been broadly expanded by many courts to include claims of “economic development” and increased tax revenue. But in the past few years, some state courts have turned back this tide of abusive interpretation. The Supreme Court, in hearing Kelo, beginning in February, has given hope to property rights advocates and property owners across the country that the highest court in the land will reinvigorate the “public use” limitation and prohibit eminent domain takings for the purpose of “economic development.”

Mr. Siegel said: “The use of eminent domain has run amok, both here in New York State and across the country. We hope that the United States Supreme Court will hold in Kelo that the Fifth and Fourteenth Amendments to the United States Constitution limit the power of government to condemn private property for public use, but not permit it for private economic development. The decision in the Kelo case could substantially change the way in which eminent domain is implemented. We look forward to the end of the abuse of eminent domain.”

The epidemic of eminent domain abuse is not just statewide, but a plague across the nation. Groups from around the country—including such diverse organizations as the Property Rights Foundation of America, the American Farm Bureau Federation, the Pacific Legal Foundation, and the Rutherford Institute— have also filed their own amicus briefs in support of the petitioners in Kelo.

Download a copy of the DDDB amicus brief: www.dddb.net/public/DDDBamicusbrief.pdf

For further information:
Daniel Goldstein, DDDB Steering Committee Spokesperson: 917-701-3056
Norman Siegel: 212-532-7586

DEVELOP DON’T DESTROY BROOKLYN leads a broad-based community coalition fighting for development that will unite our communities instead of dividing and destroying them. www.developdontdestroy.org


Cascade Policy Institute brief of amicus curiae

In support of the petitioners in Kelo versus New London


This Court's standard of review in regulatory takings cases should be applied in eminent domain cases. The reasons that call for heightened scrutiny when a regulatory taking is alleged apply with equal force when the government seeks to condemn private property through its eminent domain powers. While the public purposes that might be served by eminent domain are the same as those that might be served through the general police power, the eminent domain power is limited by the public use requirement of the 5th Amendment. This limitation serves to protect property owners from being singled out, recognizes that fair market value will often not make property owners whole, assures that the fundamental right to exclude will not be violated without a compelling public purpose, and guards against the abuse of public authority and the corruption of our democratic process.

Reliance on heightened scrutiny in eminent domain cases will not significantly handicap the government in the pursuit of its legitimate purposes. Numerous states have applied heightened scrutiny on the basis of their reading of either the 5th Amendment or of the comparable provisions of their own constitutions. Notwithstanding their heightened scrutiny in public use cases, all of these states have been able to promote economic development, protect their environments, and pursue other public purposes in competition with the other states in the Union.

In reviewing the claims of property owners under the public use limitation of the 5th Amendment, this Court should demand that governments utilize the least burdensome means available. In the instant case, this Court should find that the City of New London has exceeded its legitimate authority in condemning the petitioners' property for immediate lease to private developers. Individual lives and livelihoods should not be so easily sacrificed to the profits of other private parties and the abstract prospect of economic development and increased tax revenues.

Click here for a complete transcript of the brief: www.illinoispolicyinstitute.org/news/Cascade_New_%20London_Brief.pdf

Search weblogs for current eminent domain information

You can search "weblogs" on the Internet for current news and opinions about eminent domain. The Technorati web site has a search engine that captures current postings in the blogosphere that may not yet be accessible in more general-purpose search engines such as google.

Here's a link to Technorati: www.technorati.com

Try searching for "eminent domain" as either two separate words or a phrase enclosed in quotation marks.