On Tuesday, the U.S. Supreme Court is scheduled to hear the case of Kelo vs. New London, a hearing that may set precedent on nationwide use of eminent domain. The media seems to assume that this case will not have any effect on eminent domain abuses in Monmouth County. We strongly disagree. We believe our case to be even stronger than that of Kelo. There is no doubt that Long Branch is taking homes and properties and giving them to private developers.
Here are some questions Long Branch residents should be concerned about: Why is the city thinking of purchasing these properties through eminent domain first without the developer's involvement? Is the city banking more property? Where is the developer's agreement and contract? Where is the money coming from to purchase these properties? Another bond for the city's taxpayers to pay off? How much in bonds does that total? The city reportedly used all of a state redevelopment relocation grant, so who is going to pay for this? The developer? Think again! Why is it that Long Branch didn't have a revaluation of properties for 20 years and now there is going to be another assessment in 2007?
The appraisers hired by the city are preparing assessments and photographing the faults of homes, instead of the positives, in order to prepare for condemnation proceedings. They are not presenting fair market values. They also have been making suggestions to senior citizens and others that they cannot win this fight. This is not what I hope the city intended when it hired this firm.
And the failure of the council to pass a pay-to-play bill is outrageous. Why? Because the whole redevelopment structure is based on pay-to-play.
Long Branch, this is going to affect all of you. Please join us Sunday [2/20/05] at 3 p.m. to Walk the Walk. We will be walking from Ocean Terrace to Broadway and back again to show the city that we are not going to lose our city to private developers.
On February 22nd, the future of property rights in America will be at stake as the Supreme Court begins oral arguments in the case of Kelo v. New London. The central question at issue is: should the government be able to use its power of eminent domain to seize property from one private party and transfer it to another?
The seven property owners on the side of Kelo are the last remaining of more than 70 families whose homes and businesses were targeted for demolition several years ago by the city of New London, Connecticut, to make room for a 90-acre private development.
The story of one of the owners, Susette Kelo, is representative. Kelo, a nurse, bought and painstakingly restored a home that initially was so run-down that she needed to cut her way to the front door with a hatchet.
After she had achieved her dream home, she was informed in November 2000 by the local government that her home was condemned, and ordered to vacate within 90 days. She and the other owners remain in their homes only by the grace of a court order, which prevents eviction and demolition until their appeals are exhausted.
What justifies this treatment of Kelo and the other owners, who simply want to be free to live on their own property? The seizures and transfers, the government says, are in "the public interest" because they will lead to more jobs for New London residents and more tax dollars for the government.
This type of justification was given more than 10,000 times between 1998 and 2002, and across 41 states, to use eminent domain (or its threat) to seize private property.
The attitude behind these seizures was epitomized by a Lancaster, CA, city attorney explaining why a 99-Cents Only store should be condemned to make way for a Costco: "99 Cents produces less than $40,000 [a year] in sales taxes, and Costco was producing more than $400,000. You tell me which was more important?"
To such government officials, the fact that an individual earns a piece of property and wants to use and enjoy it, is of no importance all that matters is "the public."
But as philosopher Ayn Rand observed, "there is no such entity as 'the public,' since the public is merely a number of individuals...the idea that 'the public interest' supersedes private interests and rights can have but one meaning: that the interests and rights of some individuals take precedence over the interests and rights of others."
In the context of the Kelo case, the idea that "the public interest" trumps private property rights simply means that the desires of some individuals for property they did not earn and cannot get from others voluntarily trump the rights of those who did earn it and do not want to sell it.
Why are their rights trumped? Because some gang with political pull doesn't happen to like how these individuals are using their property.
This is unjust and un-American. America was founded on the principle of individual rights, including the right to life, liberty, and the pursuit of happiness. What do these rights mean if an individual is not free to remain in and enjoy the house he chooses to build his life around, simply because others are clamoring for a shopping mall?
Just as it would be unjust for the government to shut down the printing presses of a newspaper because its reporting is unpopular, so it is unjust for the government to raze a house that an individual has earned, developed, and loves, no matter how many cry that the land should be put to other use.
If the Supreme Court rules against the property owners in Kelo, then no one's home or business is secure.
As Dana Berliner, an attorney for the owners, explains: "If jobs and taxes can be a justification for taking someone's home or business then no property in America is safe. 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."
Matthew Dery, another property owner in Kelo warns that "People who've never experienced this sort of treatment at the hands of the government should realize that this could happen to them.
You take for granted that, in America, you own your property until you choose to sell it, but that's not the way it is in New London or in Connecticut. If the City [is] allowed to get away with [it] . . . , [t]he knock at your door could be next."
(Larry Salzman is an attorney and Alex Epstein is a fellow at the Ayn Rand Institute in Irvine, Calif. The Institute promotes the ideas of Ayn Rand, best-selling author of "Atlas Shrugged"" and "The Fountainhead"" and originator of the philosophy she called Objectivism.)
GOP Leader Inspired To Act By Situation At Fort Trumbull By Ted Mann
To Rep. Robert Ward, the Republican leader in the [Connecticut] state House of Representatives, it's pretty simple: the government shouldn't take away your house because someone wants to build a hotel.
No potential economic benefit not even an infusion of tax revenue in a struggling, cash-strapped city can justify the use of eminent domain on behalf of a private business. For the second year in a row, Ward has introduced legislation to prohibit the state's eminent-domain law from being used to justify such a taking.
The veteran lawmaker's concerns about the use of eminent domain were galvanized by the controversial redevelopment efforts of the New London Development Corp., which invoked the law to condemn houses in the Fort Trumbull neighborhood, which the city and the NLDC hope to recast as a mixed residential and commercial neighborhood, complete with a hotel and a home for the Coast Guard Museum.
Seven property homeowners have held out, saying the seizure of their homes violates their right under the Fifth Amendment of the U.S. Constitution.
The U.S. Supreme Court will hear oral arguments on the case, Kelo v. New London, later this month, the first time the court has revisited the constitutional limits of eminent domain in decades.
Ward, meanwhile, has set to work on changing the law, with a bill that would ban the acquisition of some residential property by eminent domain if it is to be privately owned or controlled.
The bill would apply to owner-occupied property with four or fewer dwelling units. As currently drafted, it would not be retroactive, and thus would not apply to Fort Trumbull, but Ward said he would consider changing the language if he thought it would draw support.
“It's important because I believe our current law allows individual homeowners to lose their property so that private business interests can make more money,” Ward said. “I find that unacceptable and unjust.”
“If there is a blighted area, I have no objection to the use of eminent domain,” he said. “But you don't destroy non-blighted residential neighborhoods in the name of economic development. The strength of a city is in its people, and you don't make cities stronger by tearing down homes and building hotels.”
Ward's position echoes that of the Institute for Justice, the legal center that will argue the case of the Fort Trumbull homeowners before the court.
It also mirrors similar efforts in states like Colorado and Arizona, said Scott Bullock, the Institute's lead attorney on the case.
“The bills faced vociferous opposition, as I'm sure they will in Connecticut, from government bodies and from developers,” Bullock said in a message left for a reporter.
“In both of those states, watered-down versions of the bills passed,” he said. “... It wouldn't surprise me if the same thing happens in Connecticut on this bill.”
The NLDC and the city have their own vociferous defenders. Among the organizations filing friend of the court briefs on their behalf were development agencies in New York, Massachusetts and California, attorneys general from numerous states, and organizations like the American Planning Association.
Taking private property in order to foster private commercial development is a justified use of eminent domain law, the planning association argues, if the development will plausibly benefit the larger community.
“If you're going to have economic development, somebody's got to come in and assemble the property,” said Patricia Salkin, the chairman of the APA's amicus curiae committee and associate dean of the Albany School of Law.
Proposals like Ward's, she said, “run a significant risk of cutting off government's ability to be a part of the engine of economic development.”
That doesn't mean the proposal is unattractive.
Rep. Ed Jutila, D-East Lyme, said he had followed the New London case from afar, but felt “a little skeptical” that the NLDC's project would result in the boon to the city that the organization claims.
“I'm not sure that the government should be in the business of taking private residential property for other than public use, even though there may be some indirect public benefit that results from it,” Jutila said.
But he was also careful to say that he did not necessarily support Ward's bill, and that he felt sympathy for the city in its efforts to shore up a flagging tax base after years of attrition.
“Towns are out there groping for any means they can find, and I don't fault them for this,” he said.
To push his law through the legislature, Ward will have to focus on the first sentiment more than the second, but it is a feat that he and others say is not out of the question.
A proposal to restrict eminent-domain use “unites people that are typically across the ideological divide,” said Bullock of the Institute for Justice. “It wouldn't surprise me if some Democrats and Republicans who want to protect people's rights joined forces to try to make this happen.”
Ward's similar bill last year easily won approval in the Judiciary Committee last spring, but was killed by one vote in the committee on Planning and Development.
“This is a wild card, and because it's a wild card, the big thing is for him to get the bill out on the floor for a vote,” said Rep. Diana Urban, R-North Stonington, an economist who added that she was, like Jutila, “of two minds” about the proposal.
“The economist would look at this from a utilitarian perspective the most good for the most people,” she said. “If eminent domain issues don't override ... it is clearly a benefit for the entire area. And I think that's what they're resting their hat on in the Fort Trumbull case.”
But Urban nevertheless seemed to lean toward Ward's position.
“Oftentimes we are using eminent domain to go into neighborhoods that work, that are clear communities that have created a community web, and we ruin them,” she said. “I really think that we have not carefully weighed the issues on a lot of these cases, and sort of just gone ahead with tunnel vision.”
“It's all about getting that bill to the floor,” Urban said, where Ward stands the best chance of getting his colleagues in line behind him. “You just can't draw party lines on this one.”
Ward seemed to expect an uphill battle, but having elicited a promise of a hearing from leaders of the Judiciary Committee, he was confident.
The future of Petty's Island is torn between waterfront development and a wildlife preserve
By Elisa Ung
Pennsauken [NJ] officials are poised to take a major step next week toward taking Petty's Island as part of a $1 billion waterfront redevelopment project.
On Wednesday [2/23], the township committee is expected to pass an ordinance authorizing Pennsauken to begin acquiring the 292-acre island through eminent domain. The island's owner, Citgo Petroleum Corp., is opposed to the development and wants to donate the land as a nature preserve.
"We are committed to passing the ordinance and committed to the planned project on Petty's Island and the entire waterfront," Mayor Jack Killion said in a statement yesterday.
Home to a pair of nesting bald eagles, Petty's Island has become a battleground between those who want to preserve it - its owner and state environmentalists - and those who want it as part of the waterfront development. The latter include township officials, South Jersey Democrats, and the developer, Cherokee Investment Partners, which also is redeveloping Camden's Cramer Hill neighborhood.
Cherokee has already gained access to the land for preliminary work. Next week's ordinance would be the next step in the eminent-domain process.
Pennsauken then plans an appraisal of the property's market value, township solicitor David Luthman said. If Citgo balked at its offer, the township could go to court to acquire the island.
The township has the right to take Petty's Island through eminent domain because it is in a redevelopment zone.
"We can't stop them from passing this ordinance, but this doesn't mean the [legal] fight is over," said Robert Mahoney, Citgo's attorney.
Environmentalists also vowed to continue their efforts to kill the project. They have been trying to meet with the U.S. Department of Interior and are lobbying legislators.
However, the state has rejected the donation of the land as a nature preserve, and efforts to gain federal protection have been unsuccessful.
Pennsauken resident Betsy McBride, who formed a 50-member group that supports building housing and a golf course on the island, said members would attend the meeting to counter environmental groups.
"We are environmentalists, as well," she said. "We want the cleanest waterfront. We want development for the sake of the town. We want many of the things they want. We just think we can do it all."
(The Pennsauken Township Committee is scheduled to vote on 2/23 on an ordinance that would begin the acquisition of Petty's Island. The meeting is to begin at 6:30 p.m. in the municipal building, 5605 N. Crescent Blvd.)
Imagine opening your front door, seeing a stranger in your yard, and getting that reply upon questioning his presence there. It may sound shocking, but that is precisely what happened to Tom Thorpe about five years ago.
“About 2000 or 2001, we had a good snow, 5 or 6 inches,” the Fauquier County farmer said. “I went over to the farm to check on some things, and I noticed there were ATV tracks all over the place … and then I saw surveyors. When I confronted them, they told me,‘We can go anywhere on this farm we want to.’”
The surveyors were contractors hired by a telecommunications company sent to Thorpe’s farm to prep for a line installment on the property. In the 1960s, when Thorpe’s parents owned the land, they had made an agreement with the company via eminent domain to have a line installed across the farm. Since, Thorpe estimates five or six new lines have been added.
“They have always been pretty good about the lines,” Thorpe emphasized. “They always pay to fix any land they have to tear up to put a new line in. These contractors they get are a different story, though.”
Thorpe recalled that, after having a heated discussion with the surveyors, he hopped onto his tractor and began moving logs to limit ATV access to areas other than the company’s agreed-upon right-of-way.
“The lead surveyor came over and threatened me, and it wasn’t until I told him I’d make sure he spent the night in jail if he didn’t stop that he left me alone,” he recalled.
While the surveyors completed their task without incident, Thorpe remains angry about the lack of respect the contractors had for both him and his land.
“The company apologized on behalf of the surveyors, but I had a real problem with these people showing up unannounced and doing whatever they pleased,” he said.
A bill scheduled to go before the state Senate Courts of Justice Committee the week of Feb. 21 could help landowners like Thorpe. The bill, which originated in the House of Delegates, would require an entity condemnation authority to notify the landowner prior to entering the property. Those seeking right of entry would be required to give the landowner the names of the companies that would be entering the property and the specific purpose and nature of the entry. Representatives also would be required to carry identification.
Prior to amendments by a Courts of Justice subcommittee, HB 1820 also would have allowed landowners to recover costs of going to court, including attorney’s fees, if their property is damaged by an inspection or survey and attempts at a settlement or alternative dispute resolution fail. The bill was initiated by Virginia Farm Bureau.
“I hope something is done,” Thorpe said. “Prior notification before entering someone else’s property is just common sense and courtesy, and that simple consideration could have a big impact on safety and damage issues too.”
Religious groups don't generate taxes. Could that make them prime targets for eminent domain actions?
By Jane Lampman
Donald Trump doesn't always have the final say. When the real estate mogul wanted a New Jersey redevelopment agency to take Vera Coking's home by eminent domain to add a limousine parking lot to his casino, the state superior court said no. That would be taking private property for private gain, not public use.
Yet David doesn't always defeat Goliath in such matchups. And there are some who worry that churches and the property of other religious groups - which generate no tax revenue - could become increasingly vulnerable parties to eminent domain seizures for economic development purposes.
The US Supreme Court is preparing to hear arguments on eminent domain next week in Kelo v. City of New London (Conn.).
"The exact issue before the court is, can you condemn property solely to generate taxes and create jobs. If the court rules that you can't, it will protect churches. Otherwise, churches will be in grave danger," says Dana Berliner, attorney at the Institute for Justice, the law firm representing property owners in the Kelo case.
In recent decades, synagogues, churches, temples, and mosques have run into difficulty on zoning and land-use matters as municipalities, with tightening budgets, grew more reluctant to support tax-exempt uses within their boundaries. The problem became so widespread that Congress passed a law in 2000 requiring munici-palities to demonstrate a compelling reason for denying permits to houses of worship.
Now some say the Supreme Court could open another path to interfering with religious expression.
The Becket Fund for Religious Liberty, which represents faith groups in zoning and landuse cases, filed an amicus brief in the Kelo case, arguing that such groups would be "singularly vulnerable to being taken" by eminent domain if the court sides with the city.
"Any commercial use is likely to be preferred over a religious use," says Jared Leland, legal counsel at the Becket Fund. "To be able to practice your faith, you need a place to congregate and worship."
Just ask the Rev. Fred Jenkins, pastor of St. Luke's Pentecostal Church in North Hempstead, N.Y. While holding services in a rented basement, his small congregation saved money for a church for more than a decade. In 1997, St. Luke's bought a downtown property with a partially built church they intended to complete. They sought a building permit and parking variance, drew up construction plans, and borrowed money to finish the project.
"Then they sprang the eminent domain law on us," the pastor says. The local development agency condemned the property for retail development. St. Luke's soon learned the property had been targeted for redevelopment back in 1994, but no one told them as they went through the purchase and planning process.
The church has been demolished and the property added to other parcels that are part of a downtown renewal project involving housing, a supermarket, and a bank. North Hempstead held the groundbreaking. While others in the Long Island community are delighted to get the boost for the neglected suburban area, St. Luke's is struggling to survive.
"This has been devastating for our church. Some people have left town and our membership has dropped off," says Mr. Jenkins. "We're still renting the basement and also having to pay off the mortgage for the church building."
The government offered the congregation $80,000 for the property, $50,000 less than they paid for it. St. Luke's is litigating for a fair value for the property. "We spent a lot of money getting prepared for construction, and it was unfair not to have said anything to us," Jenkins says.
The Fifth Amendment to the US Constitution does allow governments to take property for public use - traditionally roads, schools, and parks. A half century ago, the use of eminent domain was expanded to include condemning blighted areas for redevelopment purposes. In recent decades, many citizens are decrying municipal actions to take property for economic development that might yield higher tax revenues than current uses.
In its brief in the Kelo case, the National League of Cities says that eminent domain is "often indispensable for revitalizing local economies, creating much-needed jobs, and generating revenue that enables cities to provide essential services."
For many public officials, that sounds exactly like a public use, even if direct benefit goes to private developers. It is a fundamental economic development tool for the long-term benefit of the community that must be protected, officials say.
As for potential abuses, "there are several checks on the indiscriminate use of eminent domain," says David Parkhurst, NLC's legislative counsel. "If the community doesn't like a certain decision, they can make that known at the ballot box. State law can prohibit its use beyond certain limits. And the media provide a spotlight and public scrutiny when such cases bubble up."
In Cypress, Calif., the Cottonwood Christian Center needed space for a burgeoning congregation and new ministries. In the 1990s, it spent five years assembling land parcels for an 18-acre site to build a large church complex. Cottonwood then went through a three-year process seeking permits to build on the purchased land. But church leaders learned the city had begun seeking a retailer - a large discount store - to locate on their land.
In 2002, when Cypress Redevelopment Agency moved to take the property by eminent domain and make it available to Costco, the church filed a lawsuit, citing violations of US and state constitutions and the 2000 federal law on religious land use. "This is something we hoped would not be necessary, but the city's actions left us no choice," said Pastor Bayless Conley.
Cottonwood's story has a happier ending than St. Luke's, however. A US district court judge granted an injunction preventing the city from seizing the property, saying there was strong evidence its actions "specifically aimed at discriminating against Cottonwood's religious uses." The judge also doubted that turning the land over to Costco was a public use.
"If revenue generation were a compelling state interest, municipalities could exclude all religious institutions from their cities," the judge wrote.
The city then worked out an agreement with Cottonwood amounting to a land swap; the church sold its property to the city and bought 28 acres of a neighboring golf course.
The question is which direction the court will go in Kelo and what impact it might have on such cases. Some expect new limits on government power. A landmark ruling on eminent domain at the state level - used for 20 years as precedent in many cases, including by the state court in Kelo - was reversed by the Michigan Supreme Court just six months ago.
In the 1983 decision in Poletown v. City of Detroit, the Michigan court approved the taking of 500 acres to sell to General Motors for a plant. Hundreds of homes and businesses and six churches were condemned. In July 2004, the court called the Poletown decision "a radical departure from constitutional principles" and overturned it in County of Wayne v. Hathcock.
"[I]f one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, mega-store or the like," the court said.
The US Supreme Court accepted the Kelo case shortly after the Michigan court rendered that decision.
It removes key provisions from two measures, which now head to full committee
By Greg Edwards
Two bills to put more bite into protections for landowners faced with loss of their property for the public good came out of a state Senate subcommittee yesterday missing some teeth.
In a meeting room overflowing with local-government and utility lobbyists and sprinkled with a few land-owning residents, the Senate Courts of Justice Subcommittee on Eminent Domain pulled key provisions from both bills after hours of discussion.
"[Lawmakers] had an opportunity to strengthen the rights of property owners and fell far short," said Susan Rubin, a lobbyist for the Virginia Farm Bureau Federation, after the panel had taken pliers to the legislation.
The bills, which had passed the House of Delegates, had the support of the Farm Bureau and the Virginia Property Rights Coalition, a group that has been working for several years to make eminent-domain laws more landowner-friendly.
Representatives for local governments, utilities and the Virginia Department of Transportation opposed the legislation.
Their big concern: Requirements in both bills for paying landowners' court costs would prompt landowners to reject damage settlements and purchase offers and go to court more often.
But Del. Robert F. McDonnell, R-Virginia Beach, one of the legislation's co-sponsors, said the bills would do the opposite. "The whole idea is to encourage settlements and discussion before the legal fees heat up," McDonnell said.
The bills aim to protect landowners who get offers that are too low, he said. "The whole idea is to encourage earlier resolution of [property-rights] matters."
Eminent-domain lawyer Joseph Waldo said farmers have had tires and harvesting equipment damaged after survey crews placed metal survey stakes on their cropland without proper notice. The crews have also damaged crops by driving pickup trucks through fields and have refused to pay damages, he said.
One bill would have allowed landowners to recover costs of going to court, including attorney's fees, if their property were damaged by an inspection or survey and attempts at a settlement and alternative dispute resolution had failed.
Opponents argued that the legislation could be expensive for those doing the condemning and that it was unneeded because property-damage claims are rare. The subcommittee responded by changing the legislation to make the award of landowners' court costs discretionary for a judge.
The panel stripped language from the second bill that would have required the payment of expert-witness and other court costs, excluding attorney's fees, if a landowner in a condemnation case were able to prove that property was worth at least 30 percent more than the final written offer made for it.
Richmond lawyer Sandy Cherry, speaking for a coalition of opponents, warned lawmakers that, in cases where land is taken through condemnation, juries often see local governments and utilities as having "deep pockets."
Left untouched by the subcommittee were provisions in the first bill that would strengthen the required notice that a local government or public-service corporation, such as a telecommunications or energy utility, must give a landowner when entering land for an inspection or survey.
The panel also retained provisions in the second bill that would require those seeking to exercise eminent-domain powers to offer a landowner the full, fair appraised value of the property. It would also mandate that landowners be paid for their land before being forced to move from it.
The full Senate Courts of Justice Committee will hear the two bills Monday morning.
The New Jersey League of Municipalities (NJLM) has filed a friend of the court brief with the City of New London, Conn.
Kelo vs. City of New London will be going in front of the U.S. Supreme Court this spring.
More than 30 municipal leagues from around the country have filed briefs in favor of keeping the eminent domain law pervasive and vague against the wishes of property owners.
The City of New London is attempting to take seven privately held properties through the use of eminent domain in New London.
The residential owners are trying to keep their homes in the face of an economic revitalization effort along the Thames River.
The same scenario is being played out along six acres of land on Haddon Avenue in Haddon Township. Both cases are legitimate question marks about the use of the public good in the bylaws of eminent domain.
"The courts, up to this point, have been fairly expansive in their rulings of what is a benefit to the public good," said staff attorney Deborah Kole for the NJLM. She noted that the need for redevelopment should maintain its existing range as stated in the New Jersey statutes.
"We feel the economic public value of a municipality is an important thing to maintain. Better tax rateables and taking land that's vacant or being used in an obsolete manner will bring a public benefit and improvements for towns."
The NJLM wants to give state municipalities all the options to create revenue and keep their towns running efficiently.
"Instead of watching cities lose services and die we want them to have the option of revitalization," said Kole, adding without the use of eminent domain in New Jersey towns could end up with dead communities.
"We don't want to see one of the important tools for redevelopment of a municipality taken away."
The Heritage Foundation - a conservative think tank - has a fundamental disagreement with the NJLM's crusade for eminent domain.
"Towns do redevelopment and use eminent domain under the guise of economic revitalization and the benefit for the public at large, but what about the public living in the seized properties?" said Ronald Utt, senior research fellow. The benefit of attracting a couple of new jobs to a town or clearing out modest income homes for expensive ones is a deception of the public good, he claimed.
"If a municipality has unemployment rate of two percent, then who cares if a developer will bring in a handful of new jobs?" said Utt, noting many areas using eminent domain are operating under a double standard.
"Many towns are using eminent domain on what are supposed to be blighted houses; these houses turn out to be no different than any other in the towns. The reason they're blighted is because they happen to be in or near a strategic piece of land that a developer or business wants to use."
The director of the Claremont Institute's Center for Local Government, Ken Masugi echoed Utt's sentiments about the NJLM stance on the issue.
"It's obvious why these leagues of cities take the other side of Kelo. They want all the weapons they can muster in order to benefit the towns when they want to raise taxes," said Masugi.
He noted the leagues of municipalities are not concerned with property rights in this particular case.
"The leagues want to know what the best way is to expand a city budget or to attract economic development. They want to ensure municipalities still have a tool to take property if they need it."
As the case of Kelo vs. City of New London comes to its final hearing, sides are being drawn. Many property advocates think this case could be the end to the proverbial "land grab." Utt said the system of eminent domain being used for the public good is being overtly abused.
"It seems to be okay to restrict the freedom of having private property on the basis of economic development."
IR Your Turn: May corporations such as Best Buy or Target collude with the government and take away your house or business for their own use
By Anthony Sanders
Can a city council throw an 80-year-old couple out of their life-long home because the land would generate higher tax revenues if luxury condos were built there instead? Although Americans may believe the answer to these questions is obvious, the truth in fact is far from clear. All across this country, local governments employing their powers of eminent domain are forcibly relocating long-established homeowners and mom-and-pop businesses and giving the property to wealthy corporations. In the wake of this abuse, next week the U.S. Supreme Court takes up the case of Kelo v. City of New London.
The case arises out of a community in New London, Connecticut, where the city council wants to turn an entire neighborhood over to the drug company Pfizer. The company plans to build a hotel, condos, and other facilities on the land. Some of the residents threatened by the action have resided in the community their entire lives. The council's justification? The city needs more taxes. A company like Pfizer will pay higher taxes for a plot of land than a single-family homeowner. Therefore, argues the council, the families must take their compensation and leave the homes they know and love.
Instead of bowing to their government's wishes, many of the homeowners sued. Now they hope the Supreme Court will do something it has not had the courage to carry out in decades — enforce two little words: "public use." The 5th Amendment to the Constitution commands "nor shall private property be taken for public use without just compensation." This implies that private property may not be taken for private use at all. For most of our nation's history the courts interpreted "public use" to mean what speakers of the English language think it means — roads, railways, schoolhouses, post offices, and other projects that benefit the public as a whole. Taking away someone's home or business and giving it to another private home or business owner was considered unconstitutional.
Then, as our country grew more and more enamored with central planning and the power of the state, courts began to interpret "public use" much more broadly. A famous case in 1981, the hugely-influential Poletown decision, allowed the city of Detroit to bulldoze over 1,000 homes and 600 businesses so that GM could build an auto plant. This set the stage for the rampant eminent domain abuse of the last few decades. Often the justifications for the takings are flimsy at best. In one Ohio case, the city argued that a neighborhood was "blighted," and that therefore it had to tear down the homes and give the land to a private developer. Why was it "blighted?" One reason proffered was that most of the homes did not have two-car garages. Under this logic your home is your castle unless someone else can build a better one on top of it.
However, not all the news is bad. Last summer the Michigan Supreme Court unanimously overruled its decision in Poletown, admitting that its prior interpretation of "public use" was a "radical departure from fundamental constitutional principles." Also, some American localities have refused to jump on the bandwagon. A recent nationwide study of eminent domain abuse found that, from 1998 to 2003, Montana had no reported instances of governments taking property to give to private parties. The legislature has sought to give such powers to the government, but, encouragingly, such efforts have failed.
The temptation to enrich politically-connected businessmen and corporations will remain, however, unless the Supreme Court gives a strong indication that in America the rights of property owners remain inviolate. Many groups from all sides of the political spectrum understand this, which is why the New London homeowners enjoy support from organizations as diverse as the NAACP, the American Farm Bureau, the AARP, and the Cato Institute. They understand that if the Supreme Court sides with the City of New London, the courts will be powerless in stopping a local government from taking your home. After all, any large corporation will provide higher tax revenues than a home or small business. Understanding "public use" to mean "higher taxes" reads that protection out of the Constitution. Let's hope the court agrees and helps reinstall a firm foundation under the American dream.
Fifteen houses are all that remain of Fort Trumbull, a once vibrant immigrant neighborhood on the southeastern Connecticut shore. For years, bulldozers have been leveling houses to make way for a city's high hopes: a hotel and convention center, office space and upscale condominiums.
The homes, surrounded now by swaths of rutted grass and gravel, stand in defiance to the project. Refusing to sell or leave, seven families will go before the U.S. Supreme Court on Feb. 22, arguing their city has no right to take property solely in the name of economic development.
A hodgepodge band of seditionists, they come from a variety of backgrounds. There's an elderly Italian immigrant, a mechanic, a flooring supplier, a school audio-video worker and a former deli owner.
"It's quite an amalgamation of people to be taking this case where it's going," said Matthew Dery, who lives in one of four houses on a compound his family has owned since 1901. "It's a case of the rich eating the poor. Sometimes the poor are difficult to digest."
Leading the charge is Susette Kelo, a 47-year-old nurse and mother of five boys who bought her apricot-colored home in 1997. With a decorative outhouse in the front yard and wind chimes made of silverware, her house doesn't fit in the city's development plans.
"They have over 90 acres now," Kelo said. "It's more than enough room the build on. We never said they can't build. We just said, 'We want to stay."'
City officials say that's impossible.
"They just would not be compatible with all the other uses," said Edward O'Connell, an attorney representing the New London Development Corporation, the quasi-public agency behind the redevelopment effort.
He points to Byron Athenian's low-slung black house as an example: "You're going to put up a $20 million hotel next to that?" O'Connell said.
Besides, he said, if a few holdouts can force an entire city to remake its development strategy, cities could never make plans.
Whether building a highway, laying railroad tracks or eliminating blight, governments have long relied on eminent domain laws to allow them to take private property.
New York used eminent domain to improve Times Square, expand the New York Stock Exchange and build the World Trade Center. Baltimore replaced a downtrodden waterfront with a bustling harbor development.
But Fort Trumbull is not besieged by blight, poverty or crime and New London is not building a highway or government building. The Supreme Court will decide whether governments can take taxpayer property to encourage private development.
City officials say the taxes generated ultimately will benefit the public. They have worked to remake Fort Trumbull since 1996, when the Naval Undersea Warfare Center left town with its 1,400 jobs.
When pharmaceutical giant Pfizer opened a $350 million research center nearby that year, city officials saw an opportunity to create high-end housing, retail shops, a business park and a hotel.
All that was standing in the way were 115 homes.
Faced with the choice of a check from the city or a drawn-out court battle, most people took the money. Ninety houses were leveled, most almost immediately. Those that remain fall into two categories: people who simply won't leave and people who feel they're being cheated out of fair value for their homes.
"The sentimental holdouts are the more difficult to deal with," O'Connell said. "No matter what you offer, they won't consider that sufficient or appropriate. They're just not motivated by the logic of the marketplace."
Kelo says it's not about the money for her. She was raised nearby and when her children moved out, she wanted a house by the water. It's small but cozy, with a turtle shell and fly fishing rods decorating her living room and a painted metal milk can on her front porch. From there, she has a great view of the Thames River.
For William Von Winkle, Fort Trumbull is his retirement plan. He rents out two houses and lives in a third, a real estate investment that pays his bills. He spends his days repairing motorcycles down by the local fish market, checking on his properties and generally enjoying the view.
"I have it pretty well licked," Von Winkle said.
He said the city's offer doesn't account for the money he's making off his property and wouldn't allow him to buy a comparable lifestyle elsewhere. Ditto for James Guretsky, who also owns three houses he plans to retire on.
One of the toughest things for Dery to accept is the fact that New London doesn't know for sure what will replace his neighborhood. The city has a plan, but no developer is under contract to complete it.
But O'Connell said that will come once the land has been cleared.
"What they're saying," Dery said, "is that anything that we put there will be better than you."
From New London To Newark And Beyond, Residents Oppose Government's Use Of Eminent Domain
By Kate Moran
In the two blocks between her pale yellow house and the McDonald's where she sometimes buys dinner, Maribel Cruz passes a liquor store, a laundromat that doubles as a lottery vendor and a row of stucco houses that fetched a handsome price when a developer built them a few years ago.
Houses like these are flying up all around Newark as real estate prices in Manhattan, 12 miles to the east, have forced the middle class to colonize this once declining city. Locals like to call them Bayonne bungalows after the flimsy housing common in a nearby blue-collar city, and Cruz sniffs at the suggestion that they outshine the sturdy brick place she and her husband, Robert, bought nine years ago with the help of the G.I. bill.
These bungalows are one sign that gentrification has finally alighted on the neighborhood around Mulberry Street, an area that once held two major factories but fell into an afterlife of drugs and decline when they closed two decades ago. To speed along the revival, the city of Newark, like New London before it, is preparing to use its powers of eminent domain.
Last fall the city drew a bulls-eye over 13 acres that radiate east and west of Mulberry Street, branding them blighted and in need of redevelopment. The blight label gives the city a pass to condemn private property, including the Cruz house, the liquor store and the laundromat, and hand it to a developer who promises to turn around the neighborhood.
The developers in this case are Metro Homes, a company based in Hoboken, N.J., and the Newark Redevelopment Corp., a private company headed by Emilio Farina, a former aide to a city councilor and the moving force behind the bungalows that Cruz finds so offensive. They want to build 2,000 condominiums and 182,000 square feet of retail space that will feed off a new downtown hockey arena and appeal to the young but upwardly mobile population now getting priced out of New York.
Those who would lose out are residents like Cruz, who was born in the Mulberry Street area and persevered through its decline. She wants to stay now that property values are ticking up thanks to the influence of a prosperous Portuguese enclave just across the railroad tracks.
But where Cruz sees a resurgent neighborhood, the city sees houses and small businesses drizzled haphazardly among prairies of asphalt. Parking lots that serve the nearby post office and federal courthouse cover 60 percent of the neighborhood — an amount city officials say is much too high so close to the downtown business and arts district.
Thus Newark begins the debate that has roiled New London for seven years, as City Hall, in the name of progress and a stronger tax base, tries to take a neighborhood that might not be swanky, but where residents are comfortable and want to stay.
This debate takes on a particular ferocity in neighborhoods like Mulberry Street in Newark and Fort Trumbull in New London, with their mix of retirees who are scared of leaving and young families who have made sacrifices to buy their modest first homes. “We went through a lot of struggles to get this house,” the 35-year-old Cruz says of her yellow brick walkup on East Kinney Street.
The residents and business-owners in the Newark area are watching closely to see whether the U.S. Supreme Court will shore up the rights of private-property owners when it hears the Fort Trumbull case on Feb. 22. In the meantime, the Mulberry Street Coalition has started a Web site, hired an attorney and filed a suit seeking to overturn the city's blight designation.
“I know what's going on here is not legal by the Constitution,” said George Mytrowitz, owner of an auto body shop and the spokesman for the coalition. “We're going to win — the question is how much time it will take and how much it's going to cost.”
The trouble for Mytrowitz and the others is that the city's effort to take their property is, in fact, legal under both state redevelopment law and a 1954 U.S. Supreme Court case called Berman v. Parker.
That year, the court vastly expanded the government's right under the Fifth Amendment to seize property for a “public use” as long as it paid “just compensation” to the owner. Public use was previously a narrow rubric that included the building of highways, railroads and schools, but the Supreme Court ruled in 1954 that the clearing of slums and blight also benefits the public, even if the government turns the property over to a private developer.
Scores of cities like Newark have since relied on the federal precedent to condemn houses, small businesses and sometimes entire neighborhoods to improve neighborhoods or broaden the tax base. A study published by the Institute for Justice, the libertarian law firm that represents the Fort Trumbull homeowners, found that governments around the country seized more than 10,000 properties between 1998 and 2002 and transferred them to private developers.
The city of Baltimore provoked a lawsuit in December when it condemned six businesses in an area called the Triangle where it wants to create a mixed-income development of houses and apartments. In Norwood, Ohio, a developer bankrolled an urban-renewal study that gives the city the power to remove a few stubborn residents who do not want to vacate their houses for a shopping complex. Similar cases have sprouted from Minnesota to Utah to California, where Culver City has declared two trailer parks blighted and chosen a developer that could erect townhouses in their place.
The city of New London opened a new frontier in eminent domain law in the fall of 2000, when it condemned 15 properties on the Fort Trumbull peninsula to make way for a hotel, offices and upscale housing that would generate jobs and higher tax revenue.
When it heads to the U.S. Supreme Court on Feb. 22, the Kelo v. New London case will test whether governments can take private property not for a public-works project and not to remove blight but to promote the general-public benefits that arise from economic development.
John P. Inglesino, the attorney for the Mulberry Street developer, is quick to point out that Newark's Municipal Council followed federal precedent when it hired a consultant to study the Mulberry Street area before voting last November to declare it blighted. New London, he says, never made that claim about Fort Trumbull.
“The difference between Mulberry Street and the Kelo case can be summed up in one word: blight,” Inglesino said. “The condemnation of blight is recognized as a legitimate public purpose. Frankly, it's an open question whether Kelo will pass constitutional muster.”
But in the suit their attorney filed in December, the Mulberry Street owners allege the city cobbled together a bogus blight designation for the benefit of the developers, who funneled thousands of dollars in campaign donations to Mayor Sharpe James and several Municipal Council members. They note the city planning board rejected the blight label in May 2003, only to revive it the following year after the flood of campaign contributions.
Their description of the neighborhood as a colony of well-kept houses, well-used parking lots and viable businesses, including the New Jersey Law Journal and Market Body Works, diverges sharply from the blight study commissioned by the city, which says the desolate stretches of asphalt hollow out what should be a dense and vital urban center.
The disagreement over whether blight is the unfortunate truth about Mulberry Street or simply a trump card for the developer is where eminent-domain law gets complicated. The Kelo case could give governments the ability to bypass the thorny blight question entirely by giving them the right to take property for economic development. Or it could allow a yellow brick walkup in Newark to stand.
In the living room of that yellow walkup hangs a gallery of photographs that highlight the work Robert Cruz, 49, performs as a security guard at City Hall. The centerpiece of the display shows Cruz posing with the mayor of Newark, a map of the city held between them, with various certificates honoring him as employee of the month in constellation around it.
These tokens of civic pride form an ironic backdrop to the conversation flowing between Cruz and his wife, Maribel, who are shocked that the city that cuts his paycheck and honors him with awards would also take their house to make way for a $550 million condominium project.
“We'd leave Newark,” Maribel Cruz says, when asked where they would go if they lose the house. “This hurts. We never thought the city administration would go against the people.”
Her husband has taken off his jacket with the city of Newark badge on the sleeve and is standing in the kitchen doorway in his white undershirt. “Even if you work for the city, you don't get any protection,” he says. Robert and Maribel Cruz have showed up at council meetings to protest the redevelopment of their neighborhood, but they have not joined the 22 property owners who banded together to hire an attorney to fight it in court. They cannot afford the legal fees even if they win, and the cost would be dire if they lose.
“It's a gamble, and I don't want to play the lottery,” Maribel Cruz says. Their house, three stories high and flanked on each side by a vacant lot and a chain-link fence, is typical of the neighborhood. Though well-maintained, it looks the interloper among the empty lots and the nearby garage and liquor store. It is a row house without a row, a vestige of better times.
When the city declared the area blighted, it homed in on the random, syncopated patterns created when houses are dropped among blank lots and businesses. The neighborhood has 24 houses in all, 21 of them owner-occupied, blended among 35 commercial buildings on streets that alternately feel desolate and healthy. The barbed wire around the parking lots has a strange resonance with the grapevines, bare and gnarled in winter, that Portuguese residents have trellised around their fences for making wine.
If there is an anchor to the neighborhood, it is the Pick-It Laundromat and adjacent bodega the Criado family has operated on Mulberry Street since 1971. Residents filed in one recent day to buy lottery tickets and cigarettes from owner Jose Criado, stationed behind a Plexiglas window. But farther north there is little in the way of business other than a new Popeye's franchise and the offices of the New Jersey Law Journal.
Dennis E. Gale, a professor of political science and public administration at the Newark campus of Rutgers University, guesses that Mulberry Street's lack of a strong neighborhood epoxy — the kind of cohesiveness so apparent in the thriving Portuguese community a few blocks to the east — made it vulnerable to the attentions of City Hall.
“The attitude of most city agencies towards a solid residential neighborhood is, we won't go in there and alienate homeowners,” Gale says. “But this was considered part of the downtown without a strong neighborhood identity. I think what's happened is that the owners have since coalesced. They're convinced there's a stronger network there.”
Indignation with City Hall has made a neighborhood out of the laundromat and the auto body shop — separated by a block of asphalt — and out of the immigration offices, universal church, scatterings of row houses and the six-family apartment building that Manuel Mateiro built in 1977 so his six children would always have a place to go.
The oldest among them is Market Body Works, founded by the Mytrowitz family as a blacksmith shop in 1913. The business moved to its current location on McCarter Highway, the eastern boundary of the redevelopment area, in 1941, and owner George Mytrowitz likes to point out it has survived two world wars, the race riots of the 1960s and Newark's subsequent decline.
“Why can't I stay for the boom, too?” he asks. “My family stayed when everybody fled.”
While Mytrowitz gets angry about the money that has flowed from developer to city Hall, his defiance is a matter of practicality as well as principle. He does not want to move his business because it has valuable highway frontage and is within walking distance of Penn Station, where his customers can hop a train after dropping off their car for service.
This proximity to the train station, the huge international airport, the downtown business district and, most importantly, the arena the New Jersey Devils hockey team has agreed to build just north of Mulberry Street has also made the neighborhood prime real estate in the minds of city officials.
City planners see the area as a fulcrum between the Ironbound district — the robust Portuguese neighborhood that city historian Charles F. Cummings calls “Newark's Greenwich Village” — and the business area on Broad Street where City Hall towers among discount shoe stores and jewelry brokers. They say the condominium project could give a huge boost to the entire area.
Newark has hemorrhaged population since the race riots erupted in the 1960s; its size is down from roughly 400,000 to 274,000 residents. As housing prices bolt upward in nearby Hoboken and Jersey City, city officials see a chance to repopulate the area they call the “downtown core” with the middle class that once gravitated toward the suburbs.
A neighborhood checkered with parking lots, where the housing density is only 10 units per acre, strikes them as an obvious target for redevelopment. “Downtown struggles to stay alive after 5 p.m. We have a poor availability of good housing choices to recruit new business,” says Richard A. Monteilh, the city business administrator. “This is a blighted area that makes poor use of our precious little land. The city has a right to survive.”
Like New London, which plays host to three colleges and a hospital, Newark has an inordinate amount of tax-exempt property: four colleges, acres of parking lots, state highways, and cultural venues such as the New Jersey Performing Arts Center. The condominiums proposed for Mulberry Street would swell the area's tax output to $6 million annually, up from the $270,000 it generated in 2003.
“Optimizing our available land is the only way to remain financially stable,” Monteilh says.
Like New London, Newark has a history of failed redevelopment projects, and there are some like Gale, the Rutgers University professor, who are dubious that the hockey arena that has generated such hoopla in Newark will do much to turn around the neighborhoods.
The city is just now tearing down the Renaissance Mall, the shopping center not far from City Hall that became a monument to squandered plans when its developer ran out of money to finish it in the late 1980s.
The new arena was initially supposed to be the home of the Devils and the New Jersey Nets, the basketball team that has since announced a move to Brooklyn.
Given the financial troubles of the National Hockey League and the lack of a hockey following in Newark — Gale calls it a basketball and football town — he can see why fierce opposition has taken root in nearby Mulberry Street.
“There isn't any sort of floodtide of support for building an arena in Newark,” says Gale, who conducted a countywide survey for a book he is writing on New York and northern New Jersey. “If you ask in Newark, you get mixed results.
People can't figure out what the link is between the Newark arena complex and the quality of life in the neighborhoods.”
The residents caught in the trough of progress are certainly skeptical. Elly Martins, who lives in the basement apartment of the six-family building on Walnut Street her father built in 1977, cannot understand why the city would want to replace her mixed neighborhood with a bland and uniform condominium development. “What, is it going to be preppy?” says Martins, one of many in the area who speaks fluently in English and Portuguese.
Like many of her neighbors, Martins is distressed that the city would so casually displace the residents who struggled to buy houses in the area before it became so valuable.
“I saw them bust their butts to get where they got, and now somebody is going to come in and tell them they can't live here anymore?” Martins asks. Augusto Amador represents the city's East Ward on the Municipal Council. He has accepted donations from the developers but does not believe the longtime residents, especially the elderly who have paid off their mortgages, should be forced out by their project. He was one of three among nine council members to vote against the proposed redevelopment.
“The perception that Newark is available to developers at any cost has to change,” Amador says. “Yes, Newark is hot, but we should be concerned about implementing the right kind of development, instead of displacing people who have been there for 30 or 40 years.”
A property rights rally will be held on the Daytona Beach FL Boardwalk, Monday Feb 21 from 3-6.
The theme is "Property Rights are as American as Apple Pie;" Dino Paspalakis, whose business an amusement park that's been in his family for two generations will be giving away free apple pie. The purpose of the rally is to bring attention to the property rights issue, and to show support for the Institute of Justice, who will be presenting oral arguments in Kelo v New London before the US Supreme Court the following day.