City urged to keep eminent domain: Milwaukee (WI) Journal Sentinel, 8/23/05

Agency says proposed ban on property seizures would eliminate valuable tool

By Lisa Sink

The city [of Brookfield] redevelopment authority on Tuesday urged the city to reject a proposal to rein in the city's authority to seize private property for economic development.

Ald. Cindy Kilkenny has drafted a measure asking the Brookfield Common Council to prohibit the use of eminent domain to acquire properties to resell for private economic development, a practice used in nearby Waukesha to revitalize the downtown.

Kilkenny has joined state and federal lawmakers in seeking to restrict local government's use of eminent domain, also known as condemnation of property, in light of a U.S. Supreme Court decision upholding the practice.

But members of the city's Community Development Authority said that the city should not rush to pass the ban, and should wait to see whether the Legislature changes Wisconsin's eminent domain laws.

CDA members Gordon Rozmus and Mike Arneson opposed stripping the city of the redevelopment power.

"I think it's a very valuable tool," Rozmus said, adding that the city may need to use it in the future. "This is a tool that cities need and we have to keep."

Member Nate Cunniff called Kilkenny's proposal an "overreaction" to the June court decision.

"We need to keep our collective calm here and not react to one case - or overreact to it," Cunniff said.

Arneson called restricting condemnation powers a "knee-jerk reaction (that) truly doesn't serve a public purpose."

Mayor Jeff Speaker said that the city has not abused its power to condemn properties. It has only done so to acquire land for roadwork, parks, bicycle paths and storm water detention facilities, he said.

Dan Ertl, the city's community development director, wrote in an Aug. 10 memo: "No private property has been condemned by the City of Brookfield for economic development purposes."

But some city officials on the CDA, Plan Commission and Common Council have raised the possibility that eminent domain could be used, or other public assistance tools such as a tax incremental financing district, to spur redevelopment along Capitol Drive near the city's 124th St. border with Wauwatosa.

Kilkenny, who attended and videotaped Tuesday's CDA meeting for possible use in her mayoral election campaign, has said she fears other redevelopment areas also could be targeted for eminent domain. She said that forcibly taking property to sell to a developer is an affront to private property rights, even if the landowner is reasonably compensated, as eminent domain law requires.

City Attorney Vince Moschella said that he believed the news media has inaccurately reported the U.S. Supreme Court decision, and that there are many misconceptions about it. He said that it merely reaffirmed longstanding land-use law.

In a memo to the CDA, Ertl warned that banning the city's use of eminent domain for economic redevelopment "could curtail innovative and creative solutions" to "achieve efficiencies or improvements in providing better city services."

As the city ages, he said that property "could be or may become blighted" and eminent domain use may be needed.

"This may not be a need in 2005, but could be in 2010 or later," he said.

Speaker said that he has heard from property owners in the Capitol Drive area that three or four parties may be trying to buy properties there.

The city has encouraged developers to create a home design center there with home-decorating stores and galleries, or medium-size box stores.

The CDA on Tuesday approved a formal request for development proposals.

Speaker said, "I don't think anybody's going to rush to condemn property right now."

But although he has previously said that he doesn't oppose Kilkenny's proposal, Speaker said Brookfield should "take a deep breath, seeing what the state Legislature comes up with."

Milwaukee Journal Sentinel: www.jsonline.com