Eminent domain case — Las Vegas (NV) Review-Journal, 1/13/05


In an editorial this week, The Wall Street Journal revealed the disturbing news that the Bush administration may side against property owners in a Supreme Court case involving the abuse of eminent domain. [emdo note: see item below]

The matter, which is scheduled for oral arguments on Feb. 22, involves more than a dozen New London, Conn., homeowners and small businesses. The city has threatened to use eminent domain to turn their property over to a more powerful private special interest.

The Connecticut case offers the high court justices their first chance since 1954 to weigh in on the pernicious practice of allowing government entities to abuse the awesome power of eminent domain.

Eminent domain was intended to allow governments to seize private property — after ponying up just compensation — for an important public use such as a highway or a fire station. The fact that the courts have allowed it to morph into a tool for municipalities to forcibly seize private land for the sole purpose of transferring title to a more favored private owner is a chilling indictment of the judiciary's respect for the Fifth Amendment.

The Journal reports that "Business Roundtable types" are likely pressuring the administration to come down on the side of New London. But if the Bush administration hopes to be remembered as a friend of liberty and property rights — in other words, key ideals on which this nation was founded — it should stay out of Kelo v. New London or, better yet, file a friend of the court brief on behalf of the beleaguered property owners.

Las Vegas Review-Journal: www.reviewjournal.com

Send an e-mail message or telephone the White House or the Dept of Justice asking the Bush Administration not to side with the developers in opposition to the property owners on this vital issue.

Telephone comment numbers and email addresses are as follows:
The White House (202-456-1111): president@whitehouse.gov
The Dept of Justice (202-353-1555): AskDOJ@usdoj.gov

Ownership Society — The Wall Street Journal, 1/12/05


On the campaign trail last year, President Bush said a priority of his second term would be to "build an ownership society, because ownership brings security, and dignity, and independence." Sounds good to us. But the rhetoric doesn't square with news that the Administration may file an amicus brief against property owners in an upcoming Supreme Court case concerning eminent domain.

Never mind that there's no pressing reason for the federal government to weigh in at all on the case, Kelo v. New London, since the issue before the court is a matter of state and local authority. What's more strange, given the President's ownership agenda and stated affinity for strict constructionism, is that the Bush Justice Department would consider siding with opponents of property rights.

Eminent domain stems from the takings clause of the Fifth Amendment to the Constitution, which allows the government seizure of private property for "public use" with "just compensation." Historically, courts and local governments have understood "public use" to mean roads, bridges, schools and the like.

But in a 1954 decision, the Supreme Court allowed Washington, D.C., to use eminent domain to appropriate land in a slum neighborhood and sell it to private developers. In time other cities, seeking higher revenues from richer taxpayers, followed course and cited urban renewal as a "public use" justification for taking a citizen's private property.

Matters worsened in 1981 with the Michigan Supreme Court's infamous Poletown ruling, which stretched the definition of "public use" further by blessing the city of Detroit's decision to seize an entire community on the grounds that expansion of a nearby General Motors assembly plant would create more economic benefits.

The GM plant was never built, but the floodgates were opened. One analysis of cases between 1998 and 2002 found more than 10,000 instances where local governments — often citing the Michigan precedent — had attempted to use eminent domain to obtain properties not for "public use" but for private development. And nothing is sacred. In 1999, two Atlantic City churches were bulldozed for an MGM casino.

Last year, the Michigan Supreme Court overturned Poletown, calling it a "radical departure from fundamental constitutional principles." In a unanimous ruling, the Court said reversal was necessary "to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

Elsewhere, however, eminent domain abuses continue. Just last week a federal judge in New York upheld a Village of Port Chester decision to condemn well-maintained rental properties belonging to William Boyd, a small-business owner, and transfer them to a developer with plans for a Stop & Shop parking lot. And in Norwood, Ohio, a judge has ordered Carl and Joy Gamble out of their home of 35 years to make way for office and retail construction.

The Kelo case, which is scheduled to be argued before the Supreme Court on February 22, also involves developer-driven encroachment. A Connecticut developer in cahoots with local officials and Pfizer is seeking to raze more than a dozen homes and small businesses. This will be the High Court's first chance in 50 years to provide some guidance on eminent domain, and property rights advocates nationwide are hoping the Justices will use the opportunity to remind states and lower courts of what the Founders intended.

Worried that a Bush Administration brief against land owners is in the works, the National Taxpayers Union, the Competitive Enterprise Institute and other free-market groups signed a missive sent to the White House in October. No doubt, Business Roundtable-types are pressuring Mr. Bush on the other side, along with states and localities that feel that private property can be taken and then parceled out to maximize tax revenues. The letter urges the Administration to "affirm its support for property rights and refrain from filing a brief in Kelo." So far, the response has been a troubling silence.

The Wall Street Journal: http://online.wsj.com

L. Merion planners back demolitions in Ardmore — Philadelphia (PA) Inquirer, 12/13/05

By Matthew P. Blanchard

A Lower Merion Township [PA] plan to demolish eight buildings in downtown Ardmore took another step forward Tuesday night, as the Planning Commission lent its formal endorsement in a 5-2 vote.

Business owners threatened with relocation have spent a year making impassioned speeches against the plan. Slated for demolition is Pennywise Thrift Shop, a charity that has donated more than $3 million to patient care at Thomas Jefferson University Hospital since it opened in the 1960s. "It seems as though no matter what we do, nobody's listening," manager Bobbi Simons said.

Robert Fox, Planning Commission cochairman, said the use of eminent domain was justified because the township had a public purpose: to revitalize Ardmore as a whole. The eight businesses are adjacent to the site of a new train station, which planners say will anchor a more vibrant Ardmore. The dispute appears destined for the courts but will first head to the Montgomery County Planning Commission. No date has been set for that hearing.

Philadelphia Inquirer: www.philly.com/mld/inquirer


Eminent domain may be necessary for Painted Post Airport improvements — The Corning (NY) Leader, 1/12/05

By Jeffery Smith

The Erwin Industrial Development Agency may use eminent domain to acquire land needed to make improvements to the Painted Post Airport.

The IDA held a public hearing Tuesday night to hear opinions on the plan.

Two affected land owners accused the board of making lowball offers for their properties.

The IDA has agreed to pay $588,000 to purchase a 41-acre lot just south of the airport from John Vine. The agency purchased the airport land from Joe Costa for $378,000.

"There is a 10-fold difference in the value (the agency) paid to the other land owners and what you are offering," said Byron Paris, who said he has been offered $12,000 for a six-acre parcel near the airport.

John Sullivan, who owns a 22-acre parcel targeted by the eminent domain, called the situation "insulting." Sullivan said he has been offered $48,000 for his parcel.

"We have been offered between $1,500-$2,000 an acre for our land," Paris said. "Compared to the $15,000-$20,000 per acre (the agency) paid for the other land to be used for the proposed improvement."

Wayne Wegman, a town aviation consultant, said the purchase offers were based on appraisals conducted of each property.

Erwin Town Attorney David English said the start of the eminent domain proceedings does not mean the agency plans to use the power.

"We would like to come to an arms-length agreement with (the property owners)," English said.

Paris and Sullivan each said they would be willing to negotiate a sale price for their parcels if the negotiations were done in good faith.

"Just treat us fairly." Paris said.

The parcels are needed to complete a renovation of the airport that will bring the facility to Federal Aviation Administration standards.

The 40 acres to be acquired from Vine will be used to move the landing strip away from Interstate Highway 86. The Federal Aviation Administra-tion has mandatory setbacks for airstrips near interstates.

The relocation of the runway is part of a major renovation project expected to begin at the 75-year-old facility - previously known as Costa's Airport - in the spring. Improvements will convert the airport into all-season facility.

Upgrades will include building a 3,000-foot paved runway, adding lighting and security systems and expanding maintenance operations. The balance of the federal funding will be used to pay for the upgrades.

In all, federal money will pay for 95 percent of the project. The remainder of the cost will be split between the state and the Erwin Industrial Development Agency, which owns the airport.

The Corning Leader: www.the-leader.com

Eminent domain feared in LL — San Bernardino County (CA) Sun, 1/12/05

Residents confront City Council on proposal to stretch city's rights

By Janet M Harp

The [Loma Linda] City Council heard an uproar of complaints Tuesday night in response to a proposal that would allow the city to seize residents' homes.
At press time, more than 30 of the hundreds of people attending the overflow meeting addressed the council about the amendment to stretch the Redevelopment Agency's eminent-domain rights to include occupied property. The Redevelopment Plan currently allows eminent domain, the power of government to appropriate private property without the owner's consent, only for unoccupied areas, City Manager Dennis Halloway said.

"This scares me very much,' said Tricia Kaiser of Loma Linda, her voice trembling. "The thought that someone would even want to do that is very threatening and intimidating. We want you to leave us alone. We like things the way they are.'

Eminent domain is most commonly used to turn private property into a project for public use, such as a school or street. But cities have extended the "public use' requirement over the years to work for economic or community developments, often seizing property to allow developers to come in and build more expensive homes or retail, increasing the city's property tax revenue. The city often only needs to show that an area is blighted and a certain project would improve it and benefit the public.

Residents of Loma Linda's older neighborhoods are worried this is just a way for the city to bulldoze them off their land and bring in more aesthetically pleasing subdivisions or lucrative businesses.

"As I walk around Loma Linda, I don't see blight,' said 50-year resident April Haindl before the meeting. "They use their own judgment about what's unlivable or what's displeasing. But most people who own property try to keep it up. You don't see things falling apart or graffitied.'

Haindl, whose brother spoke against the issue at the meeting, said she doesn't know if her area is targeted, but it is included in the city's redevelopment project area, which surrounds Loma Linda University and its medical center. City officials said there are no particular homes in mind, but Haindl said she doesn't trust them.

"They wouldn't be bothering to put this in place if they didn't have some certain areas in mind for why it's even needed,' she said.

At the meeting, Mayor Karen Gaio Hansberger insisted that using eminent domain would be a last resort for the city.

"I want to say again, it's not about any specific property,' Gaio Hansberger said. "We're not going to go and take your parents' house. This is about giving the city, and it could be right or wrong, the power to take it under a certain prescribed time as well as having to do with a certain project.'

With eminent domain, the government buys property and pays the owner a determined fair market value.

"A lot of houses are 20, 30, 40 and 50 years old there's no way they'll get true market value,' said resident Rebecca Ludwig, 62. "People work hard to get their homes and now here comes the city who wants to get more power to control.

"Why do you need eminent domain if it's not for greed? It's overkill.'

Ludwig said development in Loma Linda is going backward and pushing out its diversity.

"It's like segregation, we're going back to that,' she said. "We're going back to the dark ages, and these are supposed to be my golden years.'

The council was unable to vote because of procedural requirements to respond to letters received that the city must respond to before taking action. The item was continued to the Feb. 8 meeting.

San Bernardino County Sun: www.sbsun.com


City takes chance on eminent domain — St Paul (MN) Pioneer Press, 1/10/05

Tactic used in dispute faces test in U.S. Supreme Court

By Mary Bauer

The Vadnais Heights City Council has entered the murky waters of eminent domain in its ongoing battles with Carolyn Alexander and her son Kenneth Staeheli.

The council voted in December to end its dispute with Alexander over a revoked mobile home permit by acquiring the 5-acre property on County Road F through eminent domain. The action came amid accusations of illegal tree cutting, wetlands tampering and nighttime carousing in the woods.

Vadnais Heights is waiting to proceed until the U.S. Supreme Court weighs in on a Connecticut case to decide the limits of a tool cities have used to redevelop blighted or nuisance properties. The court won't hear arguments until February.

But the city's direction raises an important issue: Can a government condemn a property because of an individual's behavior?

Mayor Sue Banovetz and city staff members compared the case to one in early 2002 in which the city purchased a house because neighborhood tensions were rising.

A lawyer who specializes in eminent domain, however, said there's a world of difference between buying and forcibly acquiring property.

"If this was a legitimate tool, you'd see an awful lot more condemnation going on at the municipal level," said Dan Biersdorf with Biersdorf and Associates, a Minneapolis law firm that specializes in eminent domain cases. "I don't see their justification for taking property."

Condemnation proceedings, he said, must either serve a public purpose or enforce police powers such as public safety. It appears that neither threshold has been met, he said.

Officials say the city has spent too much time and too many resources trying to get Alexander to remove the mobile home, being used by her 90-year-old mother. The mobile home's permit was revoked in July 2003.

"There's been a lot of foolishness and a lot of time wasted," said City Administrator Gerry Urban.

Alexander's court appearance for allegedly violating the city's mobile home ordinance has been postponed twice because of illness and is rescheduled for Jan. 24. Staeheli's trial on contempt of court charges for allegedly ignoring a ban on tree cutting has also met with delays and is scheduled for Feb. 28.

In December, several of Alexander's neighbors approached the City Council with a fresh batch of complaints, saying Staeheli had girdled trees that are now threatening their town homes. And brush piles have been placed on the property line, creating a fire hazard, they said.

"He just made a big barricade like he was building a stockade," said Roger Larson, who lives on the north side of the property and who said he has had yelling matches with Staeheli. "You wonder what he's capable of doing."

If Alexander's house were unsafe or blighted, the city might have grounds, Biersdorf said. But the threat of fire on vacant property would be unusual grounds for eminent domain acquisition, he said.

Vadnais Heights officials say their largest concern is that disputes among neighbors are spiraling out of control.

Owners of town homes on the ridge above Alexander's property, many of them retirees, told the council Staeheli is engaging in "psychological warfare," running electric cords near one home to power an electric saw in the middle of the night and tripping their security lights at odd hours.

"He's been a real nuisance," said neighbor Patty Warner.

By the time sheriff's department deputies arrive, Staeheli is always gone, they said.

"We're concerned about this escalating" into a physical confrontation, Urban said. "One of the duties of a city is to ensure public safety."

Staeheli denies the accusations. He says town-home owners are harassing him because of improper drainage across his mother's property, an issue raised recently with wetland agencies.

"Every time they hear a twig snap, they're calling the sheriff," he said.

The neighbors, he said, also confuse the lots owned by his mother and father, who are divorced. He is banned from cutting trees on his mother's lot, but not on his father's.

Such problems sound like matters of civil and criminal law to Biersdorf. "I'm sure they're exasperated," he said of city officials caught in the middle, but he's never heard of condemnation being used to settle squabbling among property owners.

As it awaits the U.S. Supreme Court's decision, the city is not actively pursuing condemnation. And officials must weigh the financial impact of acquiring a large lot in the face of a 5 percent increase in property taxes this year, Urban said.

Alexander said invoking eminent domain is overkill, given the improvements she and her son have made to the property, removing trash and diseased trees. She and Staeheli say they're moving as fast as they can without hiring help they can't afford.

"The people over there have more power than I do with the city," she said, nodding toward the town homes. "They treat me like I'm Ma Barker."

Pioneer Press: www.twincities.com

'Big-box' invasion can flatten us all — The Providence (RI) Journal, 1/10/05

By Froma Harrop

As city residents go, I'm pretty trouble-free. I pay my property taxes. I recycle the garbage. The fire department visited only once, when a roast in my oven set off the smoke alarm. All in all, I've been a good deal for the city.

But that doesn't mean the city couldn't do better by getting rid of me. It could level my house and tomato patch, and have Costco build a big box in their stead. Because Costcos take up a lot of room, the city would probably have to grab 15 of my neighbors' houses, as well. No problem. A Costco could pay more taxes than all of us combined.

There is a problem, however. We like where we live, and this is America. In America, property owners don't have to give up their homes because someone else wants the land. Right?

Not necessarily. States and local governments across the country have been condemning properties and giving them to private businesses. They do so in the name of "economic development:" The new owners will create jobs and pay more taxes, so the old ones should go.

But not everyone is meekly turning in the front-door keys. They've been challenging these takings of property - all the way up to the U.S. Supreme Court.

The justices are now considering a case that pits New London, Conn., against property owners in an old blue-collar neighborhood called Fort Trumbull. The drug maker Pfizer had built a research facility nearby and wanted the area spiffed up. So the plan was to raze the area's weathered cottages and auto-body shops, and replace them with upscale condos, restaurants and office parks.

The case is really about the rules covering eminent domain - the right of the state to take property for public use. Governments have always had this right. What's changed is the definition of "public use." Traditionally, this referred to such obviously public facilities as roads, post offices or military bases. Now governments want "public use" to include developments that bring in more tax money.

The law does require governments to pay "just compensation" for condemned properties. But what if the owner doesn't want to sell at any price? For example, Fort Trumbull, Conn., resident Wilhelmina Dery was born in her house 86 years ago. She wants to die there.

Suppose the property owner doesn't want to sell at the price offered. That was the case of Leon Howlett, a farmer in Glendale, Ky. The state wanted to take his family farm for a Hyundai assembly plant. Howlett said he really didn't want to sell his 110 acres but would go along if given $10 million for the land, rather than the $1 million offered. (Hyundai ended up building its plant in Alabama.)

Condemning private property can cause great pain even when the use is clearly public, as for a highway. But when improving the tax base is deemed a "public use," feelings can quickly turn raw. For example, Riviera Beach, Fla., voted to oust 5,100 lower-income residents for a yachting, shipping and tourism complex. Merriam, Kan., condemned a used-car business to help a fancy BMW dealership expand.

These flashing abuses have pushed state courts to tighten up the rules. Last summer, the Michigan Supreme Court stopped Detroit and Wayne County from taking private land near Metro Airport for a new high-technology park.

In doing so, the court overturned its infamous Poletown decision. That 1981 ruling had let bulldozers flatten thousands of homes, churches and businesses in an old Polish neighborhood in Detroit to make way for a General Motors factory. Governments everywhere saw the Poletown decision as a green light to take private property for economic development - which came to include upscale shopping and ritzy residences.

A quick word of sympathy for Wayne County, New London, and other local governments starving for tax revenues: They need economic development badly. But there are still rules of the road. States and local governments can work with property owners or work around them. They just can't drive through them. You don't have to be a property-rights fanatic to see what's wrong with forcibly taking one person's home or shop to attract a better class of taxpayer. Let us hope that the Supreme Court drives a stake through this scary idea.

The Providence Journal: www.projo.com


Legal Plunder — The Cato Institute, 1/9/05

By Doug Bandow
Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Ronald Reagan

For more than two decades the Michigan Supreme Court's decision in Poletown Neighborhood Council v. Detroit allowed governments in that state to take most any property they wanted to transfer to most anyone they wanted for most any reason they wanted. The U.S. Constitution's "public use" restriction was satisfied, the court ruled, even when Detroit seized an entire ethnic neighborhood to hand over to General Motors for a new factory.

Alas, this case was no anomaly. As Steven Greenhut, an editorial writer for the Orange County Register, observes in his timely new book, Abuse of Power: How the Government Misuses Eminent Domain (Seven Locks Press, 311 pages, $17.95), "governments increasingly use eminent domain to take property from one private owner in order to give it to another private owner." A small home owner or businessman then "must surrender his home or business because a wealthy developer — perhaps a big campaign contributor and mover and shaker in the community, or an out-of-town corporation promising an expanded tax base for the city — has bigger and better plans for it."

The abuses are legion. But sometimes property owners — "ordinary heroes," Greenhut calls them — fight back and beat city hall. Today they often do so with the aid of the Washington-based Institute for Justice, which has made protection of property rights one of its most important objectives.

So rank have been the outrages that in July the Michigan Supreme Court expressly overruled its Poletown decision "in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law." The new case, Wayne County vs. Hathcock, barred use of eminent domain to construct an industrial and office park. Michigan may no longer seize private property for "economic development," that is, to hand to new private owners who might pay more in taxes.

Although the case has no formal legal force outside of Michigan, it reflects a slow renaissance of judicial respect for property rights. The Poletown decision was oft-cited by other courts as they ruled that public officials could take land at their pleasure. Wayne County will help shift legal currents in the other direction.

Indeed, all legal eyes now fall on the U.S. Supreme Court, which is considering a case involving the city of New London, Connecticut. The Connecticut Supreme Court, relying upon the reasoning of Poletown, upheld the plan by the New London Development Corporation to take scores of modest riverfront homes and businesses to build luxury houses, expensive office space, and a hotel. "How come someone else can live here, and we can't," asks Susette Kelo, one of the dispossessed landowners.

It's a good question, and Steven Greenhut's answer is that someone else gets to live there when local officials decide to engage in social engineering for fun and profit. Not always, of course — sometimes eminent domain is used for traditional purposes as road-building.

But increasingly government deploys eminent domain in an attempt to create "high-valued," meaning taxable, development. That goal often supplements the desire to benefit local elites, usually with the connivance of the usual civic boosters, including the media. Greenhut dissects how journalists routinely fail to question even the most obvious eminent domain abuses.

The heart of Greenhut's book is a series of examples of government's routine misuse of power. There's abundant bad news. Public officials typically favor the wealthy and influential because they are wealthy and influential. But Greenhut also found good news: though property owners often lose, increasingly they are fighting back and winning.

For instance, the city fathers of Garden Grove, a working class community south of Los Angeles, decided to turn a tidy neighborhood of 400 into a theme park. Explains Greenhut: "There was no developer in mind, just an idea in the head of the city's top planners and bureaucrats. They were going to do what they had been doing on a smaller scale across the city: play land developer by condemning property, then trying to market the acquired tracts to some big out-of-town development company."

Officials attempted to deny the obvious, while treating the neighborhood as blighted. No normal person would have thought that but, writes Greenhut, "Blight, as advocates of redevelopment and eminent domain often point out, is a legal term rather than a descriptive term."

Happily, homeowners organized effectively and forced the city to back down. Garden Grove removed the neighborhood from its "redevelopment" area, while proceeding with similar efforts elsewhere.

Equally outrageous was the attempt by Cypress, another southern California city, to seize Cottonwood Christian Center in order to transfer the property to Costco. Churches don't deliver much in the way of property or sales taxes, a black mark in the view of city councilmen dedicated to the old principle of tax, spend, and elect.

In Cypress, writes Greenhut, "City officials did not dress up what they were doing in legalistic language. They were brazen in their goals. They ridiculed church members at public meetings. They bragged about their ability to use eminent domain for whatever reason they chose, and they made it clear that the government's desires should take precedence over the desires of `a narrow special interest,' which is how city officials repeatedly referred to the church."

The 4,500-member interdenominational congregation fought back, aided by the Becket Fund, which specializes in defending religious liberty. To its credit, the church rejected an offer by Cypress to trade for the property next door — which the city would seize from its owner through eminent domain. Eventually, Cypress, which lost a preliminary court ruling, agreed to a voluntary land swap which yielded the church more room for its new worship center.

Adverse publicity helped derail an abusive taking by Atlantic City. Vera Coking, a widow, was unfortunate enough to live across from Donald Trump's casino. He asked the local redevelopment agency to take her property for a limousine parking lot for high rollers. With the help of the Institute of Justice, Coking won: the term "blight" could be most accurately applied to Trump's enterprise, which has veered towards bankruptcy.

Eminent domain was long thought to be justified for a genuine "public use," that is, something used by the public. That's why the framers of the Constitution included a limited power to take property in the Fifth Amendment. Yet today the public use requirement has almost disappeared, as officials, with judicial approval, regularly take property from Peter to give to Paul. Only if officials forget to invoke an alleged public interest could it be stopped.

Although the courts have been more willing to enforce the provision requiring payment of compensation, they too often have allowed governments to take advantage of property owners. Moving expenses, business goodwill, advantageous locations, as well as real values often are lost or minimized when figuring compensation.

The result would still be rank injustice even if the property was taken for a real public purpose. Instead, more often than not eminent domain is now used as a form of corporate welfare, intended to enrich billionaire retailers like Costco and millionaire real estate moguls like Donald Trump. Other favored beneficiaries are owners of hotels, race tracks, and sports franchises. Its "legal plunder," Greenhut writes, just like the historical experience of mercantilism, which featured "a powerful central state that worked in concert with established, private interests."

Greenhut's worthy call to arms concludes with a practical primer on how individuals, families, churches, and communities can fight back. Most important is an aroused citizenry prepared to defend their rights. "Ordinary heroes" helped create this nation more than 200 years ago. They helped preserve America through many difficult trials in peace and war. They can help restore life to constitutional provisions that were meant to protect all of us from government misuse of its power of eminent domain.

The Cato Institute: www.cato.org

Downtown businesses facing uncertainties — Bowling Green (KY) Daily News, 1/9/05

As new city leaders address owners’ concerns, eminent domain issue still perplexing

By Jim Gaines

In the late 1980s, Bowling Green city officials were pleading for businesses, any businesses, to move into the dwindling downtown.

DJ’s Upholstery answered the call, along with several other businesses that dealt mostly with automotive products.

But the city’s downtown revitalization plan, which seeks to buy sites for several large-scale projects, now seeks to give those same loyally civic-minded businesses the boot, say DJ’s co-owners Melissa and Terry Tarrance.

DJ’s, at 723 College St., occupies a small section of the site where city planners and baseball enthusiasts would like to see the stadium for a minor-league team – or, depending on how projects shake out, the Southern Kentucky Performing Arts Center.

In any event, DJ’s and similar firms are targeted as “nonconforming uses,” businesses that don’t fit the vision endorsed by the previous city commission of a pedestrian- and family-friendly downtown that would attract tourists and new residents. So not only is the building slated for eventual demolition, but DJ’s could not just move down the street. It and other automotive-linked businesses have been officially declared unwelcome in a 29-block area of downtown. The city’s redevelopment plan, in force for almost two years, announces that nonconforming uses may be bought out and forced to move.

But when owners of such businesses asked the city when they could expect an offer, they were told “six months to 20 years,” Terry Tarrance said.

He would like to make some repairs to his building – and possibly some cosmetic changes, to make it fit better into a neighborhood that’s being revived – but can’t see the point of wasting his money on a building slated for demolition, he said.

In fact, several downtown business owners complain that the uncertainties of redevelopment are making downtown worse: Owners are letting buildings fall into disrepair because they’ve been told that the city won’t pay any more for spruced-up buildings, making improvements a waste of money, they say.

For Tarrance and others, it comes down to a simple question: When?

“If they’d just keep us more informed, most of us would be willing to work with them,” he said.

The Tarrances and several other downtown business owners said they want to hear regular updates on city plans, have a probable timeline of redevelopment efforts and get notice of the next area or areas to be targeted – and they hope that the newly seated Bowling Green City Commission will heed their requests.

To that end, downtown businesspeople have been talking among themselves for some time, and have met separately and as a group with the new city commission – most recently, in a large meeting the day before new commissioners were sworn in on Dec. 31.

And incoming officials say that they’re listening.

“I think the biggest thing is that we truly need to change the way that we have handled the whole property-acquisition process,” Mayor Elaine Walker said Saturday. “We need to keep the property owners in the loop. We need to make sure that they are the first informed, and make sure that they are given regular updates.”

Property and business owners haven’t been saying that they are resistant to moving or selling out, but that they feel badly treated because they’ve been left uninformed, she said.

Walker agreed that tagging a building for eventual demolition logically leads to neglect in the meantime. So the city needs to target its moves precisely, and give owners a real timetable, she said.

“We’ve got a good plan for downtown redevelopment,” Walker said. “We just have to make sure that the way that we move forward benefits everybody – and that includes the property owners. I think that we are amenable to taking a look at individual properties to see if we can change the designation for nonconforming use.

“This is probably the most important issue that we’re facing right now, and I think we’re going to spend a lot of time on it because I think it needs to happen.”

Downtown businesspeople also ask that a yes-or-no decision be made on whether “nonconforming” businesses will eventually be asked to move, or can just be fixed up to blend in. And they want to see a detailed review of the exact types of businesses that are currently labeled as “nonconforming.” More than 100 addresses appear on the city’s original list.

“I think they’re absolutely right,” Commissioner Brian “Slim” Nash said. “We do need to re-examine the nonconforming list.”

The city’s plan and the downtown ideals it embodies are good, he said.

“But some of my very first public comments were, ‘Who actually gets to decide what businesses stay and what businesses go?’ ” Nash said.

Those businesses that have moved downtown, or stuck it out for years while others left, should be rewarded rather than told they’re unwanted, he said.

“Nothing, if I were a business and property owner, would make me angrier than that,” Nash said.

But in order to create the downtown atmosphere that the city wants, those businesses may be required to alter their appearance along detailed guidelines, he said.

“To me, that seems like a great balance,” Nash said. “Everybody’s got to give to get, I think. Nobody wins in a power struggle. Even the people who think they’ve won, haven’t.”

Commissioner Brian Strow, backed by Commissioner Mark Alcott, introduced an ordinance at the new commission’s first meeting to bar the city from using its eminent-domain power to force purchase of private property if that property would then be turned over to another private entity for redevelopment.

Commissioners voted 3-2 to table Strow’s ordinance; they said that they agreed in principle, but didn’t want to make such a major decision at their first meeting, or without careful study – especially since the U.S. Supreme Court is scheduled to decide a case on that very subject this year.

The city’s redevelopment plan was written in part to specifically allow that use of eminent domain, and several of the projects now under way were turned over to private developers. Although none of the land sales for those projects was forced through eminent-domain proceedings, some downtown property owners say that the explicit threat of eminent domain makes any negotiations inherently unfair.

Charles Meredith, president and owner of Randolph, Hale & Meredith electrical suppliers at 319 State St., said that he respects commissioners’ desire to study the issue, so long as they do return to it. He compared the potential use of eminent domain as a shortcut past negotiations for private developers to an unscrupulous old-West land grab.

“It’s kind of like someone putting a gun to your head and saying, ‘OK, we want to buy your property and here’s what we’ll pay you – take it or else,’ ” Meredith said.

Any real estate contract declares itself to be between “a willing seller and a willing buyer,” he said – but the threat of eminent domain makes it difficult to negotiate in good faith.

“I don’t go along with transferring property by governmental force from one private entity to another private entity,” Meredith said. “Eminent domain should be reserved, I think, for public projects. And I don’t mean redevelopment projects, but schools, roads and things like that.”

Prohibiting the use of eminent domain for private developers’ benefit would probably slow downtown redevelopment, Nash said.

“There’s going to be, in my opinion, kind of an ebb and flow of downtown redevelopment,” he said, noting that the original plan called for very slow movement, but that several large grants made some projects leap ahead of schedule.

Meredith said that he is not averse to moving his business – which has been downtown for more than 40 years – if he can stay in the same general area.

“But what I’ve been told by the previous people is, ‘We may never purchase you,’ ” Meredith said.

That leaves him in limbo, unable to figure out what to do or plan for, he said.

Commissioner Delane Simpson said that city staff will be talking to Meredith very soon about his concerns, and he hopes that more business owners will be consulted one-on-one.

“Absolutely, the people who have a vested interest in properties downtown must, as far as I’m concerned must, be made aware of what’s going on, just like we need to know what’s going on,” Simpson said.

In the meantime, lack of communication is actually costing local businesspeople money, according to Ed Wilbanks, owner of several pieces of downtown property. He offers himself and his building at 112 College St. as an example of the damage that mixed signals from the city can do. The city announced plans to buy it more than a year ago.

“They actually came down and looked at that property, made an appraisal on the property and made an offer – which was unrealistically low, but they made an offer – and sent a letter to all my tenants, saying they would have to move, all before we consummated the deal,” Wilbanks said.

One tenant did, he said.

“The end result is, they did not buy the property,” Wilbanks said. “But they told me they was taking it, either by my taking their offer or by eminent domain. They sent me a letter saying they had rescinded their offer, but it left me in kind of two bad positions.”

The building’s roof needed repair, but since the city said it would soon buy and demolish the building, Wilbanks waited. But the city took no action, and a leaky roof began damaging the interior, he said.

“In addition to that, I held another building open on Clay Street so that I could move into it, and one of my tenants to move into it,” Wilbanks said. “So I’ve lost rent on that building for a year. About $66,000 that’s cost me, in lost rent.”

Walker said that Wilbanks has told her his tale of treatment by the city.

“It’s just wrong,” she said. “It’s wrong that he was not kept informed.”

Nash said that he has heard complaints similar to Wilbanks’ and the Tarrances’.

“There is no doubt, in my opinion, that the city has done a poor job of communicating with downtown property owners,” he said.

Since taking office, Nash has talked to city staff and asked them to clearly define what properties they’ll be interested in within the foreseeable future. As a result, staff will meet with one property owner next week to tell him that he’s off the list, Nash said.

“I know that that’s one small step, but in order to get anywhere we’ve got to take that first step,” he said. “And I hope that that property owner – and other property owners downtown – at last feel like we’re trying to move in the right direction.”

The Odd Fellows lodge, 710 College St., has been tapped for purchase for an as-yet-undetermined new development adjacent to Circus Square, the large park that planners hope will become the centerpiece of a new downtown.

But the Odd Fellows, too, say that they’ve received conflicting and sketchy information from the city. The only clear message, according to lodge member Auston McCay, is that they will have to move out – sometime.

About two years ago, the city established a six-month moratorium on major building alterations downtown as a kickoff to its redevelopment plans.

“They came down there and told us then that our property wouldn’t be touched for 20 years,” McCay said. “That was probably around January or February of 2003. Then we see in the paper that fall that our property is going to be one of the next ones to be taken. Nobody had talked with us at all.”

After the city had the building appraised, silence fell. Odd Fellows trustees heard nothing – despite several attempted inquiries – until they sent a registered letter in fall 2004 to Richard Rector, who was then the city’s Housing and Community Development director.

He replied that the city would contact the Odd Fellows by Nov. 15, but that it would have no money available for purchase until at least that time, McCay said.

“We still have heard nothing further from anybody,” he said. “And if we move, we have no idea what our cost is going to be in moving.”

McCay helped organize the recent meeting between about 30 downtown business owners and new city officials, and says there are three main issues on downtown owners’ minds.

“The first thing is that they’re not necessarily opposed to moving, but they’re opposed to the idea that the city would come in under eminent domain and move out good, taxpaying businesses ... and maybe replace them with something else, that doesn’t pay near as much in property or payroll taxes,” he said.

Business owners are also unreassured about receiving adequate moving expenses from the city, and finding an affordable new location in an area zoned to allow their businesses, McCay said.

The third issue is the current deterioration of buildings because property owners have been told that the city won’t pay any more for recently repaired buildings, he said.

The city needs to pledge not to use eminent domain for private redevelopment projects, and re-evaluate its downtown goals, McCay said.

“I think we’re still millions of dollars away from completing somebody’s dream,” he said.

Consultant Will Linder of Berea authored the redevelopment plan, which city commissioners ratified in 2003. It lists a number of business types to avoid downtown, including “automotive.”

The Tarrances say they are puzzled by the seemingly arbitrary decisions on who to move and what types of businesses to discourage. All automotive businesses aren’t created equal. Unlike a junkyard or body shop, an auto upholsterer causes no visible mess, Melissa Tarrance said.

Built in 1933, the concrete-floored building with garage doors at either end has a long history of housing automotive-themed businesses, Terry Tarrance said.

He doesn’t mind moving, but shifting and arranging everything would cost him two weeks’ lost work, he said. And his $400-per-month rent is less than a quarter of what a comparable building would cost him elsewhere in the city.

If the city wants to put businesses within walking distance of downtown residents, Terry Tarrance asks, won’t there be a need for auto-repair shops nearby?

Word of the city’s plans has already hurt DJ’s business, the Tarrances say. Their work carries a one-year warranty, and customers now wonder if that will be honored if the business isn’t there.

“We’re not interested in the money,” Melissa Tarrance said. “We just want to stay here.”

Bowling Green Daily News: www.bgdailynews

Eminent domain before high court — Camden (NJ) Courier-Post, 1/9/05

Transferring private land to other private hands at issue

By Richard Pearsall

The U.S. Supreme Court will hear oral arguments Feb. 22 in a case that could have a major impact on New Jersey's redevelopment law.

Kelo v. New London is a Connecticut case that deals with "eminent domain," the right of government to seize private property for public use.

Eminent domain is the 800-pound gorilla at the center of the debate over redevelopment in New Jersey.

Without eminent domain, says David Speegle, president of the businessmen's association in Riverside, redevelopment would proceed more smoothly.

"If they could take that clause out, if that wasn't part of the hammer, it might go over better," Speegle said, speaking of his township's plan to redevelop the so-called Golden Triangle and the area around it.

The right of government to take private property for public use is rooted in both federal and state constitutions and is based on the assumption that some projects - highways, for example, - are so important that seizure is justifiable.

It is enshrined in the Fifth Amendment to the U.S. Constitution in a single phrase: "nor shall private property be taken for public use, without just compensation." Connecticut case

In the New London, Conn., case, the plaintiffs are a group of longtime homeowners, landlords and businessmen in what is described as a working-class neighborhood.

They contend their local government overstepped its authority in condemning their properties for "private" use - the construction of a hotel, health club, condominiums and offices.

"Does the U.S. Constitution allow the government to take property from private party in order to give it to another private party because the new owner might produce more profit and more taxes for the City from the land?" their legal team at the Institute for Justice, a Washington-based public interest group, asks.

The Connecticut Supreme Court sided with New London, ruling 4-3 that the economic development the condemnation is intended to promote is sufficient justification for the municipality to proceed.

"This ruling is an invitation to disaster," the plaintiffs' legal team responded, "because every business generates more taxes than a home and every big business generates more taxes than a small one. If the ruling stands, any property can be taken through eminent domain.

"The U.S. Constitution and every state constitution requires that private property only be taken for `public use,' such as a road or public building, not for private economic gain," the plaintiffs' attorneys argue. "The use of eminent domain for the creation of tax revenue is the broadest and most dangerous expansion of eminent domain yet realized."

Supreme Court
In September, the high court agreed to hear the plaintiffs' appeal.

The issues in the case are similar to those that have been raised in New Jersey.

Here, the debate is not over stimulating growth in areas the private sector has walked away from, but over government substituting one private property owner or use for another.

It is an issue that has emerged in Riverside.

Support for redevelopment of the Golden Triangle, a 30-acre former industrial area there, has been strong.

But as the plans have unfolded, they have been expanded to include the surrounding areas - the theory being that a "buffer zone" is necessary.

Stu Scott, 52, has lived in Riverside all his life and has run an auto repair business across the street from the Golden Triangle for more than 20 years.

The future of his and other auto repair ships on Pavilion Avenue are threatened because a developer interested in building townhouses and offices will not want such grimy neighbors in close proximity, township planners reason.

"I know we're out of here," Scott said, wondering just who is going to benefit from the "renaissance" of his town.

"These guys all want Cherry Hill," Scott said of the politicians and businessmen he believes are pushing the redevelopment project. "Well, let them move to Cherry Hill."

Clarence Newton, who operates the Volkswagen repair business next door, has a similar view.

Newton, 62, has lived in Riverside since he was 2.

"I'm a Riverside person," he said, "so if it's good for the town as a whole, I'm for it."

But he knows he's unlikely to find another spot large enough to accommodate the hundreds of old Volkswagens he has accumulated for parts to keep other "Bugs" and "Beetles" running.

And he wonders if it's really Riverside or its residents who will benefit.

"If it's going to be anyone's future, it should be the people who are here, not a gold mine for someone else."

On the other side of the Triangle, on Kossuth Street, Speegle operates a machine shop.

Rising to speak at a public hearing in November, Speegle noted that the list of permitted uses for his area included town houses, professional offices and day care centers, but nothing that seemed to include his business.

"I don't see anything in here for manufacturing," Speegle said. "I've been here since 1986 and have invested a good deal of money in this business."

Speegle was told that it was "very unlikely that the (land use) board would approve a site plan that would do away with a going business" and that, "if you're a pre-existing use, you get to stay."

Speegle stressed that, as a businessman and taxpayer in Riverside, he's not against redevelopment.

"The township will ultimately benefit if it brings in more ratables, and residents benefit if property values go up."

But he's worried nonetheless.

"Basically they tell you, `Don't worry. It's grandfathered.' But if you're in a redevelopment zone, you're in limbo."

Courier-Post: www.courierpostonline.com