Eminent Domain: Takeaway for the public good? Beaver County (PA) Times, 8/22/05

By Robyn Russo

The words "eminent domain" had barely settled on the audience before Ambridge Council tabled the resolution.

The measure, introduced at council's Aug. 8 meeting, would have endorsed a recent U.S. Supreme Court decision allowing the use of eminent domain for economic-development purposes "as a last resort." But council quickly veered away from it as soon as residents in the audience, particularly those affected during the borough's last big eminent-domain case when property was seized for a CVS drugstore, began speaking against it.

The Supreme Court ruling sparked an almost instantaneous backlash in Congress, and heated debates in Washington, D.C., for the last month and a half. But while even mentioning eminent domain elicits emotional responses, some local officials say the ruling doesn't really change how Pennsylvania municipalities can use the law, and rushing to add limits now could hurt communities seeking revitalization projects in the future.

"Redevelopment would be much more difficult if we didn't have that tool to exercise in a reasonable and intended fashion," said Frank Mancini Jr., executive director of the Beaver County Redevelopment Authority. "Eminent domain can be abused, but it is a tool Beaver County sure needs when it is absolutely necessary."

In the week after the court's ruling, Ed Troxell, director of government affairs for the Pennsylvania State Association of Boroughs, sent out a memo to the organization's 900 members explaining the ruling and urging officials to "... continue the longstanding tradition of using eminent domain as a last resort."

The ruling, Troxell said, did not expand the power of eminent domain, but simply reaffirmed its use.

Local, state and federal governments have traditionally used eminent domain for public projects, such as roads and sewer lines, although the court has been expanding the definition over the past few decades, allowing municipalities to use eminent domain for private projects that eliminate blight and boost economic development.

The Supreme Court decision dealt with the case of Kelo v. New London, Conn. Justices ruled 5-4 that the city had the authority to take homes for a private development project. Almost immediately, federal lawmakers began introducing legislation to blunt the ruling. The House voted to deny federal funds to any city or state project that used eminent domain for a profit-making project, with a similar measure introduced in the Senate.

"It's like the Supreme Court kicked the door wide open, and then Congress tried to slam it shut again," said Ambridge Manager Pam Caskie.

Beaver County has had its share of eminent-domain cases over the past five years. For instance, proceedings were used for a New Brighton fishing park in 2000, building the parking garage by the county courthouse in 2001 and for sewer lines in Hopewell Township in 2004.

While all were public projects, Mancini pointed to a late-1970s case in Monaca, where private homes and businesses were taken to give land to Phoenix Glass, a private company. The decision was made because Phoenix's former premises had burned down and the company was going to move out of the area if it didn't get the land to expand as it rebuilt, and keeping the company in Monaca was determined to be best for the "public good," Mancini said.

But perhaps the most emotionally charged case came a little more recently, in 1999. CVS pharmacy officials decided to move the Ambridge store to the high-traffic intersection at Eighth and Merchant streets, and while several families who lived there settled immediately with the drugstore's landholding company, four held out. In a controversial September 1999 decision, the borough filed to begin eminent-domain proceedings.

Caskie said she couldn't comment on the 1999 proceedings because she was not working for the borough at that time, but said that eminent domain has not always been "used judiciously throughout history" and that the definition of "blight" is not very strict.

"And every time someone misuses it, it makes it that much harder for when it is really necessary," Caskie said.

Council President David Deiter, who was on council in 1999, said he voted against using eminent domain then because he thought the project was not a valid use of the borough's powers.

"Eminent domain should only be used for public use, and in the case of CVS, it was used for private," Deiter said.

The borough now faces its biggest redevelopment project in memory with a private developer, Australian firm Moltoni Corp. The planned revitalization project would raze the old industrial properties between Duss, Merchant, 11th and 19th streets and build a mix of offices, homes and businesses.

Right now, Caskie said, there are five property owners in the planned area. Moltoni already owns some of the land and just closed on one important sale - the former 14th Street Corporation property - this weekend. The project is planned to be built around one property owner, Steel Built Corp., leaving Edward Toth and Thomas Allen as the two major property owners in the area, Caskie said

Caskie said all of the property owners have shown interest in selling. While she refused to comment about whether any of the owners have asked for unreasonably high sums for their properties or otherwise slowed the project, Caskie said it is still in the borough's best interest to support the use of eminent domain for economic development.

"The threat of eminent domain is a tool of last resort, but it's a tool we need in our toolbox," Caskie said.

Bill Sutton, acting director for Moltoni's brownfields projects in the United States, said the company has no plans to ask the borough to use eminent domain. He refused to comment on negotiations with the property holders except to say that the company is in the process of negotiating sales with two to four owners.

"That's (eminent domain) not the issue with us, and we're not intending to ever have it be an issue," Sutton said. "We're very community-oriented."

Sutton also said the company would not make any decisions about eminent domain, as such proceedings would be handled by the county's redevelopment authority. Troxell said redevelopment authorities use eminent domain "very rarely," and there are already a lot of legal limits on Pennsylvania's local governments.

"It can be good for growth," Troxell said. "All we're asking our member boroughs to do is step back a moment and not let this whirlwind affect them."

Beaver County Times: www.timesonline.com