PSU files petition for eminent domain: Pittsburgh (KS) Morning Sun, 3/3/05

By Jessica Tims

Pittsburg State University has filed a petition for eminent domain to acquire the last piece of property it needs to construct a new student health center on south Broadway.

Negotiation between the university and JD and Irene Ransom of Joplin, Mo., the owners of the property at 1803 S. Broadway, have been back and forth since January 2004. Because the negotiations have been going on for more than a year and the parties are still in a deadlock, the Kansas Board of Regents has given the university the authority to use eminent domain to acquire the property. The school filed the petition on Friday.

"This is something we would only do when we need the property and negotiations become futile," said PSU Attorney Darron Farha. "That's what's happened here. These negotiations between us and the Ransoms have not been about their unwillingness to sell the property, it's been about the price of the property."

Standing in the way of the negotiations is state statue KSA 76-147. That law states regents institutions must get two appraisals before purchasing real estate and that the institution is prohibited from paying more than the amount of the highest appraisal.

On April 2, PSU Director of Purchasing Jim Hughes and the Ransoms met at the property with two appraisers - Chuck Hosman and Bob Langford. According to the university, it chose Hosman and the Ransoms chose Langford. However JD Ransom said it wasn't that cut and dry. He said he picked Langford off a list provided to him by the university.

"They threw out some names," Ransom said. "I am from Missouri, so I just picked one out. I am paying for the next one myself."

Hosman appraised the property at $53,000 and Langford appraised the property at $56,500 - the Crawford County Appraiser's Office lists the property value at $44,500.

On May 17, John Patterson, vice president of administration and finance for PSU, sent a letter to the Ransoms formally offering them $56,500 for the property. On June 14, JD Ransom asked for $100,000.

"When they first approached me, that's what I told them because I didn't want to sell it because it's part of my (retirement) portfolio," Ransom said. "I threw out that figure just to get them off my back because I didn't want to sell it. I didn't think they would come in and use the law to take it."

Because of the state statute, the university could not pay more than $56,500 for the property. So in a letter dated Dec. 15, 2004 Farha informed the couple again that the state law would not allow the university to purchase the real estate for more than the highest appraised value. Farha told the couple the university would keep the offer of $56,500 open until Jan. 31, 2005. In the letter Farha also made the Ransoms aware that the university could use eminent domain to obtain the land.

At that time the Kansas Board of Regent was holding a meeting, and on Dec. 15 and 16 the regents gave the university the authority to use eminent domain. Soon after Farha said he spoke with JD Ransom and Ransom said he would have a new appraisal when the two men met again on Jan. 26.

At that meeting Ransom did not have another appraisal. Ransom said he tried to hire an appraiser, but the man he was dealing with did not want to become entangled in an eminent domain battle.

At that meeting Ransom told Farha $67,000 was the lowest he and his wife would go. Farha said he told Ransom the most the university could offer was the $56,500, plus some reasonable appreciation since the appraisal had been done nearly a year before. In an e-mail on Feb. 4, Farha offered to have two more appraisals of the property done. But Ransom said he wants to hire his own appraiser. He said he has already found a new appraiser who is licensed in Kansas that is willing reappraise the property and get involved with the eminent domain proceedings. Ransom will pay for that appraisal himself.

On Feb. 15, Ransom wrote a letter to the Kansas Board of Regents offering them his lowest price of $65,000 for the property. But, again because of KSA 76-147, the board declined the offer.

On Friday, Pittsburg State filed the paper work to acquire the land.

There is still not a timeline for when the new health center will be constructed, however the university would like to have the last piece of land now so that it can use the land for additional parking until construction starts.

The university has already acquired three other properties from two other landowners in the area that will be the new student health center. According to Hughes, the university was approached by those property owners to purchase their land.

"We very seldom go out and ask somebody to sell us a piece of property," Hughes said. "It is generally somebody coming to us to ask if we want a piece of property."

A consideration hearing will be held at 9:30 a.m. on March 31 at the Crawford County Judicial Center in Pittsburg. At that hearing a judge will decide whether or not PSU has the right to acquire the property using eminent domain. If it is determined the school does have that right, three appraisers will be appointed to value the property.

The Morning Sun: http://morningsun.net

Eminent Domain Has Broken City Hearts: The (New London CT) Day, 3/3/05

Letter to the Editor

By Rose Cerreto, New London

When I read the letter titled “Eminent domain can revive New London,” published Feb. 27, I had to smile. The writer has been here for only one year. What would she know about New London and eminent domain reviving it?

I've lived here all my life. I am 86 years old, but I remember when I was 41 years old. The great eminent domain kicked us all out of our homes in east New London. Yes, that's what I said, kicked us out of our homes.

When my brother, Tom, who has since passed away, went to see C. Francis Driscoll, the head of redevelopment in New London at the time. Mr. Driscoll told my brother that we had to get out. If we didn't, they would put the money — $8,000 — in the bank and every month that we stayed in our homes they would take the money out of the bank and in the end there would be no money and no home. His words were that we were stopping progress.

Please, go there and see what progress we were stopping. As far as I know, there is nothing there after about 40 years.

I heard a well-known bus company wanted to build a bus station there, but New London said no. Just think how that would have revived New London and the taxes the bus company would have paid.

I praise Fort Trumbull residents for what they are doing, but I hate to say this — they are not going to win.

We all lost our homes and there were a lot of broken hearts.

The Day: www.theday.com

Eminent domain resolution off the agenda: The Haddon (NJ) Herald, 3/3/05

By Timothy Green

A crowd of residents and a news crew from Comcast's CN8 went to last week's Haddon Township Commissioners' meeting expecting the commissioners to pass a resolution to use eminent domain, but the item was mysteriously dropped from the agenda.

Commissioner Kathy Hogan said she was given an amended copy of the agenda on Feb. 18, which listed the acquisition of three private residences, but they did not appear on the agenda handed out at last Tuesday's meeting.

Mayor William Park Jr. said the item was not introduced because he would like to come to a compromise with residents living in the redevelopment zone instead of using eminent domain.

"I don't feel comfortable with having anyone lose their homes," he said. "I'd rather see there be an agreement reached."

But one resident thought the item was taken off the agenda because of the media scrutiny placed on the township.

"The microscope has been put on you three from the news people and the TV people," said John Sandone as he addressed the commissioners. "That's what stopped this. This is not the act of a good conscience." He added that Haddon Township is only threatening to use eminent domain because it is being influenced by Fieldstone Associates.

Sandone is currently suing Haddon Township because he, too, is in danger of losing his property through forced condemnation. Another resident, Leonard Ruediger, whose home on Center Street was one of the properties listed for acquisition on the original agenda, has joined Sandone's lawsuit.

A letter from Kenney & Kearny, the law firm representing the two men, was read into the public record by We C.A.N. coordinator Pat Seidman on Ruediger's behalf. The letter was dated Feb. 22, the same day of the commissioners' meeting.

Resident John Smith questioned if Ruediger's property would still be on the agenda if he had not joined the lawsuit.

Park said the township would like to work with Ruediger to "explore other options." He said he would try to help Ruediger relocate to an area of town closer to the Speedline.

If an agreement can be reached with Fieldstone to purchase Ruediger's property, by law it would have to pay any relocation costs. But, if the township uses forced condemnation, then the costs would fall to the township, according to redevelopment council Kathy Ward.

The agenda did list the purchase of property from two residents, but Park said that in these instances it was voluntary.

The possibility of using eminent domain to take away the property of people living in the Dy-Dee Wash redevelopment zone has long been on the minds of township residents, especially those people living in the redevelopment zone. Hogan wanted something done to protect those people who either live or own businesses in the redevelopment zone.

"I move that we radically revise the contract with Fieldstone," Hogan said. "If this contract is not revised I think we should take the proper steps to rescind it. I feel that I was lied to and the people of Haddon Township were lied to."

This statement garnered applause and cheering from the attendees, many of who were wearing "eminent domain abuse" stickers, and silver whistles as a sign of support for Hogan, who has been referred to as a whistleblower.

Haddon Herald: www.zwire.com

Eminent domain debated: Edwardsville (IL) Intelligencer, 3/3/05

Hot topic addressed by local law firm during seminar

By Norma Mendoza

Rene Bassett Butler wasted no time in getting to the point about eminent domain.

"Can the Illinois Department of Transportation take your land?" she said. "Yes, they can. Can you do anything to stop them? No, you can't."

Bassett was opening a free seminar about eminent domain sponsored by the Bassett Law Office at the Collinsville Holiday Inn last week. Rene and her father and law partner, Merle Bassett, were the presenters. Advertised in several issues of local newspapers, the seminar promised to discuss the rights of owners of farmland, residential and business properties.

As it turns out, when the issue is the power of eminent domain by IDOT, property owners have few rights. They do have the right to be represented by an attorney in their bid to be justly compensated for the property and they have the right to a trial by jury in determining what is just compensation.

Governmental bodies are given the power of eminent domain in the Fifth Amendment to the U.S. Constitution. However, the Constitution requires that property owners must be given "just compensation." It also states that the intent of the government must be to use the land for the public good.

That is often a bone of contention in eminent domain cases — just what is the "public good?" Many claim it should be for a road, but in some cases it could be for a school. When there is a dispute about whether it is for the public good, the issue is usually decided in the courts.

An extreme form of eminent domain is the power to quick-take property. Outside of Chicago, only the state of Illinois (IDOT) and the Southwestern Illinois Development Authority have the power of quick take.

The Illinois Supreme Court ruled in 2002 that SWIDA overstepped its authority when it agreed to the request from Gateway International Raceway in Madison to use its power to quick take the property of National City Environmental for Gateway to use for a parking lot. SWIDA temporarily lost its quick-take power over that one.

Last year, closer to home, Sunnyside Nurseries lost its battle to keep IDOT from quick taking six acres of the nursery land for Governor's Parkway.

The difference in the two quick takes was that SWIDA tried to take property from one private entity for the benefit of another private entity and the Sunnyside property was taken for a road.

The road was deemed to be for the public good while the parking lot was deemed to be for private gain even though SWIDA claimed it would ultimately benefit the public.

The issue of eminent domain has come to the forefront as local governments discuss the I-55 Corridor Plan and the 158 Connector Road. Property owners have become nervous about whether their land will be taken. Many remember when land was taken for Interstate 270 and again for Interstate 255.

In both cases, several property owners put up fights to save their land, but in the end the highways were built.

Bassett Butler advised the three dozen or so attendants at the seminar to get prepared if they believe their land is in the way of an IDOT project. She said not much can be done until they are notified by the agency that it proposes to take their land. She said they should wait until that point to have an appraisal done and contact an attorney.

Bassett Butler noted that she and her father have been representing landowners for the past seven years. Before that, Merle Bassett was a special assistant attorney general and handled land acquisition for the state in Southern Illinois. It is this experience, she said that gives the Bassetts familiarity with the state's procedures.

"Aren't you walking both sides of the fence?" one man said.

Bassett said he only worked with SWIDA on behalf of the municipalities that hired SWIDA to help them with eminent domain issues.

Bassett Butler also touted the law firm's network of appraisers who are also experts in the field of eminent domain.

"We're finding out that the state appraisers are doing this on contract and they're what we call windshield appraisers," Merle Bassett said, indicating they do "drive-bys."

One man asked if anything can be done about land that was taken in 1955, but never used by IDOT. Merle Bassett said there is recourse when the state abandons an eminent domain claim.

"A landowner went to court over land taken in 1965 and won," he said.

He told another questioner that if a new highway comes within 10 feet of a landowner's house, the state has to buy the entire property, but if it's an already established road and is being widened, the state only has to buy a portion of the property.

Some criticized the Bassett Law Office for presenting the seminar. Bassett Butler was up front about welcoming new clients, but presented a straightforward informational seminar.

Edwardsville Intelligencer: www.goedwardsville.com


Government exceeds its domain: (Yucca Valley CA) Hi-Desert Star, 3/2/05

The Hi-Desert Star's view

In a small Connecticut city, a struggle is taking place between homeowners and their local government - a struggle that reaches far beyond the East Coast, and into every county and town in America.

The New London, Conn., city government wants to buy the properties of seven residents, to bulldoze the houses and make way for a development project that would include a hotel, conference center, offices and health club.

All would be owned by private companies.

The city says it has the right to seize the property thanks to eminent domain - the government's right to buy private property for public use.

The Fifth Amendment allows governments to take private property - as long as they pay the owners "just compensation" and as long as they use the property for the public good.

Eminent domain is used all the time across America, to secure land for schools, roads and other public uses. In Yucca Valley, the town government is seizing property to secure land for a community center in the south side of town.

We have questioned the wisdom of the Town's declaring eminent domain on private property to build its new community center, arguing the town council is setting a dangerous precedent.

We still wonder if building a second community center in this area is worth the act of seizing private property - albeit for "just compensation."

But by seizing land for private companies, the City of New London has the Town of Yucca Valley beat by a mile.

The New London government argues it needs the offices, hotel and other projects to boost jobs and sales-tax revenue for its struggling city.

It has offered the homeowners money for their property - but that's not the issue. They simply do not want to leave their homes.

The property owners have taken their case all the way to the Supreme Court.

In the past, the Supreme Court has been unwilling to interfere when eminent domain has been challenged. The judges have deferred to state and local elected officials.

We hope they do not fail to issue a ruling in this case. They are not being asked to expand the Constitution or even to reduce local powers - because seizing land for private development is a power local governments should not have. It is a power no government should have.

To allow such a practice to stand is to ignore an implicit threat to all property owners in the country - right down to the Morongo Basin.

Hi-Desert Star: www.hidesertstar.com

Sumner County asks state for changes to eminent domain law: The (Gallatin TN) News Examiner, 3/2/05

By Katrina Cornwell

Sumner County [TN] landowners who find themselves in the path of planned infrastructure improvements could be entitled to additional compensable damages in the future under a measure approved by the Sumner County Commission Monday.

The commission passed a resolution Monday that encourages the Tennessee General Assembly to amend state law as it applies to compensable damages to landowners whose properties are condemned for infrastructure improvements under the eminent domain law.

The legislation asks that property owners be compensated for future damage and loss of use of the overall parcel as an element of damage, which could be considered when awarding damages for condemnation of property.

The issue of additional compensation for landowners was raised recently by property owners who are impacted by a proposed 30-mile natural gas transmission line, which would cross Sumner and Trousdale counties.

Sue Carr said she and her husband Kenneth oppose the pipeline crossing their 185-acre farm mainly because it will come through some their “choice land on Alexander Lane.”

“The proposed gas line is coming through the very middle of it. The very prime choice land that we have,” she said.

County law director Leah Dennen said the issue about compensable damages under the state’s current eminent domain law was raised by District 2 Commissioner David Cummings.

State law does not address the damages the county’s resolution lays out, she said.

“When you lose land, it sets out what damages you’re entitled to,” Dennen said. “One thing that you haven’t been able to get is future use. It’s so speculative. What happens if they take a third of your property and it really damages the entire parcel. It is really asking the general assembly to look at those laws.”

Meanwhile, state lawmakers have several new pieces of legislation to consider concerning both eminent domain law and the proposed gas transmission line.

The State House of Representatives passed House Joint Resolution 7 Monday, asking the Federal Energy Regulatory Commission to deny Midwestern Gas Transmission Company’s Eastern Extension Project.

The resolution passed with 94 “yes” votes and no “no” votes, and because it is a joint resolution between the state House of Representatives and the state Senate, it will now be considered by state senators. It would take 17 votes to carry the measure.

McDonald was pleased with the showing of support among state legislators on the resolution.

“I was very pleased,” he said. “We worked very hard to explain the situation in Sumner and Trousdale counties. I worked with all the interested parties. Several came to see me on that resolution. We were able to explain the problem and the project isn’t necessary according to the independent consultants that made a presentation on the project at the county administration building. All those things made a difference too.”

McDonald has also sponsored another piece of legislation in support of landowners in Sumner County who are opposed to the Midwestern Gas Eastern Extension Project.

He introduced House Bill 106 Jan. 31 and if it is approved, it would require a petitioner for eminent domain to obtain written permission from a landowner before entering onto any parcel of land.

McDonald recently spoke before representatives of the Federal Energy Regulatory Commission, who held a “scope meeting” at the Sumner County Administration Building Feb. 24 to gather citizens’ input about the proposed pipeline, which would cross 157 tracts of land.

Standing next to him were state legislators Sen. Diane Black, R-Gallatin; Sen. Mae Beavers, R-Mt. Juliet and Rep. Stratton Bone, D-Lebanon.

McDonald said he opposes the Midwestern Gas transmission line project for several reasons.

“I continue to oppose Midwestern’s Eastern Extension project because one I don’t think it’s necessary and two I’m gravely concerned about the environmental impact,” he said. “Three, I’m concerned about safety issues, and four, I’m concerned about the devaluation of the property that the folks own. For those reasons, I continue to be opposed to it.”

The news Examiner: www.gallatinnewsexaminer.com

Patents Pending: The American Prospect Online, 2/23/05

A D.C. official takes a renegade approach to get lower-priced drugs for residents

By Barbara T. Dreyfuss

Unless the drug industry starts to negotiate significantly lower prices, it may find itself battling debt-strapped states for control over the manufacture of drugs. States already take land and other property in order to benefit the public by building things such as roads and schools. Now some legislators and officials are saying they should be able to take away a drug company’s intellectual property, its patent. They want to give these patents, which allow a company to manufacture a product, to competitors that agree to sell the drugs to the states at much lower prices.

Patents are the key to huge drug-company profits. The industry will fight vociferously to protect them. In West Virginia, where the issue came up last summer, industry lawyers warned a legislative advisory council away from proposing such action on patents, claiming it would be unconstitutional. With virtually unlimited resources, the drug companies could drag states through courts for years. Still, the specter of states compelling companies to license their patents to other firms terrifies the industry. And even the fight to do this would open the industry to further scrutiny on pricing policy. All of which, some officials hope, could make drug companies more willing to negotiate discounts.

That’s what District of Columbia Councilman David Catania hopes will happen. Catania, a Republican who recently registered as independent after breaking with President Bush over the same-sex-marriage issue, introduced a compulsory license bill February 1. It authorizes Washington, D.C.’s mayor to declare a health emergency and, under eminent domain authority, issue a compulsory license to a generic firm to produce select patented drugs.

Under eminent domain requirements, the patented drug company would be given “just compensation” for the patent. The councilman argues that if drug companies were smart, they would “start talking about price reductions now rather than leave themselves open to a long, drawn-out due process review and hearings to determine just compensation.” Such review and hearings, he warns, would expose “just how pervasive the price gouging and profiteering has been.”

That’s precisely what happened when the Bush administration’s former health and human services secretary, Tommy Thompson, wanted to pressure the Bayer Corporation to give the government better discounts on its antibiotic Cipro during the anthrax scare. Thompson started threatening to have generic companies make Cipro if Bayer wouldn’t offer the government better pricing. Bayer immediately gave the government dramatic price discounts. Thompson acted after the Canadian government said it would override the patent and contracted with a generic company, Apotex Inc., to make Cipro. Catania, who chairs the District’s health committee, plans hearings March 22 with Washington health-care leaders, AARP, drug-company representatives, and a key legal architect of the bill, West Virginia University law professor Kevin Outterson. Outterson argues that states (the District of Columbia has all the legal powers of a state, notes Catania) derive the legal authority to have a company manufacture a patented product owned by another firm from two sources. First, states already take property for building roads and government sites under eminent domain powers, and could extend those powers to intellectual property, such as drug patents. Second, in a 1999 U.S. Supreme Court opinion (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank), the Court said that a state’s infringement of a patent, for a public purpose, is not by itself unconstitutional, so long as the state compensates the patent owner for the loss of the patent. To meet the public purpose clause of the Court’s ruling, Outterson proposes that states only break a patent to make drugs for public employees and Medicaid enrollees.

Outterson explained his ideas in late January at a meeting of the National Legislative Association on Prescription Drug Prices, a group of senior legislative leaders of eight Northeast states, Hawaii, and the District of Columbia. Outterson told them he knows of two states where legislators are drafting bills based on his proposal, and at the meeting Vermont legislators publicly indicated interest in doing so.

Catania says he doesn’t know if this bill “will be the silver bullet that brings sanity to pricing pharmaceuticals in the District,” but he believes states will be watching closely to see what happens with this “very new, fresh approach.” While the idea of a state seizing drug-patent rights and giving them to a generic manufacturer may seem extreme, remember that a growing number of state leaders, both Republican and Democratic, are already advocating illegal action, namely importing drugs from Canada, in a desperate attempt to get lower priced drugs.

States have always been a laboratory for innovative policies. Given the tremendous budgetary and constituent pressure on legislators to do something on drug costs, patent pending may take on new meaning.

The American Prospect Online: www.prospect.org

The pain of eminent domain: 3/2/05

By Richard A. Epstein

Few Supreme Court cases in recent years have attracted more attention than Susette Kelo's battle against New London, Conn. New London, which claims it is a depressed city, wants to boot Kelo and her neighbors off their property to promote economic development.

Before they can do so, the Supreme Court has to answer a deceptively difficult question: What, if anything, does the Constitution require of a government when it takes property for a public use?

Most people think their homes are their castles - and hence, they are somewhat stunned to hear that their castles can be taken. But their feelings are somewhat assuaged if they think that the property will go to build a road or a military base - from which they would quickly conclude that the taking is for a public use, even if the road leads to nowhere and the military base is nonessential.

But for more than 150 years, such guidelines have been regarded as too narrow for government. Early cases have allowed the state to take or condemn property for focused public uses. Let's say, for example, that a mine is separated from a railroad spur by a tract of scrub land. The only way to move ore from mine to railroad is by aerial tramway over the scrub land. Without condemnation, the owner of the useless scrub can hold out to extract a small fortune from the mine owner. Hence the willingness of courts to come to the mine owner's aid.

Kelo's case is on the opposite side of the spectrum. She places a high subjective value on ownership of her home. Meanwhile, her house does not block the creation of any public project. Nor is any in the offing for years.

Kelo has become a cause celebre because in 1954, the Supreme Court cut local governments more slack than they deserve by holding that any slum clearance project was for a public use even if it meant removing some sound structures.

The Supreme Court's attitude was, and may still be, that state legislatures should determine what is a good plan and what is a bad plan. That is why Justice Sandra Day O'Connor has asked what standard should be used to "second guess" the legislature. The implicit subtext is that urban renewal projects are tough to understand and it is too bad if small people get unceremoniously dumped in the name of urban improvement. After all, if courts don't ask about the benefit from the public road, why ask about the benefit for urban renewal?

Fair question, for which there is, I think, a fair answer. We know roads are needed, and that individual landowners (like the owner of scrub land) could hold out for fortunes if condemnation were not allowed. But why do we "need" this particular urban renewal plan? It can't be because the lawyer for New London, Wesley Horton, trots out his master plan in oral argument and urges the court to assume that once Ms. Kelo and her neighbors are removed, this plan will materialize and tax revenues will increase. Truth is that the only pretty thing about this plan is his diagram. Otherwise, everything is in complete disarray for reasons that have nothing to do with Kelo's last stand. New London has spent $73 million in state money for environmental cleanup, infrastructure improvement, and the like, but at this time the city can't name a single project that will go on the nearly 90 acres it already owns, and can't imagine a single public use for the private homes it is so eager to condemn. And no sane lender would ever advance a dime to the city on the strength of optimistic tax projections that don't have a chance of being realized, given the downward spiral of this program since its inception.

Will at least five members of the Supreme Court be willing to open the doors to this Potemkin village? If they will just turn the doorknob, they might articulate a test that says, minimally, that before the city can adopt an urban renewal program, it has to present an integrated plan that requires inclusion of private homes. Just wanting to build fancy single-family homes doesn't cut it: Lots of developers do creative in-fill work all the time in Philadelphia and elsewhere, without condemnation powers. What is needed is evidence for a large plant or facility that cannot be located elsewhere. New London's lust for the Kelo home doesn't come within a country mile of meeting that overgenerous standard.

Richard A. Epstein is a professor of law at the University of Chicago, the Bedford Senior Fellow at Hoover Institution, and a commentator on the National Constitution Center's "Constitutional Minute."
e-mail: repstein@uchicago.edu.


City's Eminent Domain Stand Is ‘disgusting': The (New London CT) Day, 3/1/05

Letter to the Editor

By Jackie Quercia, Norwich (CT)

It is unconstitutional, immoral and downright disgusting for New London to be in the business of taking people's homes by using the lame excuse that it will increase the local tax base. If that were the only criterion needed, then we are all at risk of losing our homes.

It is happening — and successfully — all across this country that elitist developers are trying to take property by using such tactics.

This is not a free country when you can lose your home or business on a whim or because someone decides that he or she has a better use for it.

I have been under the misguided impression that the laws in this country were put in place to protect us. It certainly does not appear so, at least not in New London.

I have never been so angry at anyone as I am at the city “fathers” who made this decision. They are bullies, and if I owned one of the homes they are trying to take away, I would chain myself to my front door. Every person in this country should be very afraid of what is happening.

We all need to take a strong stand against such tyranny.

The Day: www.theday.com

Eminent Domain Huge Threat To Homeowners: The (New London CT) Day, 3/1/05

Letter to the Editor

By Daniel Bavasso, Westerly CT

In response to the letter to the editor titled “Eminent domain can revive New London,” published Feb. 27. The writer's home, property or business could be next for the overall good. So, New London can become the next Stamford.

Not to worry — they will give you fair-market value, which means they will give you squat compared to what it is really worth. This big, wonderful project could be a big white elephant in five years. Nobody knows.

One more thing, a person's home doesn't need to be “historically significant” to be valuable to the person who lives there. I didn't know the writer is an expert on blight. She seems to assume quite a bit for someone who has lived in New London a whole year — unlike the affected people who have lived there most of their lives, if not all. I don't know what business the writer is in, but she can assume this — she'll never get mine.

The Day: www.theday.com

Board delays eminent domain: (Univ of North Carolina) Daily Tar Heel, 3/1/05

By Sam Shepard

The ongoing struggle to acquire a local satellite campus for Durham Technical Community College was continued Monday when the Hillsborough Town Board decided to delay the use of a tactic that could get it the land.

The Trump Group, the Florida-based developer hired by the town to acquire the property, and the landowners, the heirs to Marvin Glenn and Doris Huckabee, still had not reached an agreement on the sale of the land Monday.

The Town Board was scheduled to discuss the possibility of using eminent domain - the process by which a town can acquire private property for public use - Monday if no agreement had been reached between the parties.

But the board decided to table the issue until at least Thursday.

"They seem to be real close on negotiating a deal," said Mayor Joe Phelps.

The town decided to delay a decision on whether to use eminent domain - which first requires a 30-day notice - to see if the two sides can reach an agreement.

When the parties failed to reach an agreement earlier this year, the Trump Group requested at the town's Jan. 10 meeting that it use eminent domain.

But after a meeting Feb. 17, the town decided to wait until Monday to discuss such action.

The land in question is a parcel of land the college needs to provide access from N.C. 86 to the proposed satellite campus.

The college set an April 15 deadline for the land's purchase.

"This plan has been going on for years," Phelps said. "We do feel like it's a good proposal for Hillsborough."

Now, if the parties have not completed the contract by Thursday, the town will take the first steps toward using eminent domain.

But both sides seemed confident Monday that the contract will be signed in the next day or two.

"I've signed for my side," said Peter Henn, executive director for the Trump Group, adding that the only step left in the process is for the landowners to sign.

Henn informed the board that the only issue that still needs to be worked out is a minor disagreement over phrasing.

He declined to provide specific details, but he told the board that the landowners' lawyer, Ry Winston of Collett & Associates in Charlotte, was working on his clients' side of the contract Monday night.

But in order for the deal to come through, 14 landowners must sign the contract - a number Henn said could create minor problems.

Barbara Baker, dean of student services at Durham Tech, said the college chose the parcel of land in Hillsborough out of 17 possible locations.

"I think it's a great location for the college," she said.

"I am just assuming it's going to get worked out."

Durham Tech hopes that the new campus will offer new opportunities for students, including support services and computer lab space, Baker said.

Baker said that in the next six weeks, the county and the college board of trustees will look to move forward with their plans.

"We're in the process of selecting an architect," she said.

Daily Tar Heel: www.dailytarheel.com

End the misuse of eminent domain: Mansfield (OH) News Journal, 3/1/05

The U.S. Supreme Court may decide whether eminent domain can be used to secure private property for private uses.

Private property must be protected.

There is a growing fear for property owners that their property may not be as sacred as it once was.

And the U.S. Supreme Court is at the center of what might be considered a state's rights issue over eminent domain, the government act of converting privately owned land into public land, subject to reasonable compensation.

We aren't sure where it will end, but recently there's been a new and disturbing twist to this issue.

In years past eminent domain was used only to secure private land for public purposes, such as building highways through cities, building schools, parks, buildings for water plants and other facilities that would benefit the public.

That made sense. But now there is a case before the high court of an attempt to secure private property for private development. We think that's crossing the line.

A developer in New London, Conn., wants the city to use eminent domain to further a privately financed project.

The nation's high court struggled last week to balance the rights of property owners against the goals of town officials who want to sweep away old neighborhoods and turn the land over to private developers.

Riverfront residents who are suing the town of New London say their working-class neighborhood is slated for destruction primarily to build an office complex that will benefit a pharmaceutical company that built its research and development headquarters nearby.

The justices expressed sympathy for the longtime residents. At the same time, they questioned whether they have the authority to stop the town's plans.

The outcome could have significant implications. Where does the public good begin and end? We're sure there will be more court cases, litigation and a continued gray area over what can be declared under eminent domain.

In recent years, there have been more than 10,000 instances of private property being threatened with condemnation or actually condemned by government for private use, according to the Institute for Justice. The group represents the New London residents who filed the case.

We can only wait for the high court ruling and hope private property ownership continues to be protected.

Mansfield News Journal: www.mansfieldnewsjournal.com


Council members wary of eminent domain: (Lincoln NE) Journal Star, 2/28/05

By Deena Winter

The future of an east downtown block is now in the City Council's hands.
Developer John Q. Hammons has proposed building a hotel on this Lincoln block, bounded by P and Q and 17th and 18th streets.

Do council members vote Monday to approve redeveloping the block, likely paving the way for a $16 million hotel the mayor said will generate an extra $485,000 in tax revenue per year?

Or do they refuse to give city officials the power to evict existing property owners, possibly derailing the fast-tracked hotel plan?

They appear to want it both ways.

They may have to choose.

The hotel plan likely would die if the council approves redeveloping the block but doesn't arm city officials with eminent domain, said Dallas McGee of the city's Urban Development Department.

"The council could do that, but I believe if they did that it would probably kill the project," he said. "We do need the ability to use eminent domain in order to assemble the block. Because without it we would not be able to acquire the property, and neither would a developer."

Because the property isn't for sale, he said, it would be difficult to negotiate a price with the owners.

The council will have a public hearing Monday and likely vote on whether to redevelop the block, now home to a convenience store, restaurant, car lot, repair shop and parking lot.

Council members were generally supportive of the hotel when interviewed Friday. But they also said they didn't want business owners hurt in the process.

Here's where they stood days before the hearing:
  • Jon Camp senses the council supports the hotel, he said, but is reluctant to authorize eminent domain. Although he is not sure how he'll vote yet, he said, one thing is certain: "I'm going to ask a lot of questions."

  • A council member known for asking questions, Jonathan Cook, said he wants the property owners treated fairly.

    "I'm not sure that's happening," he said.

    He said developer John Q. Hammons — whose public company owns 44 hotels and manages another 14 — should negotiate directly with property owners and not expect the city to assume that role.

    "It's always easy for somebody who wants to build something to have the government do the dirty work," he said. "I think we need to consider this more carefully and not be starry-eyed."

    He also questions whether the hotel would reap new revenue or siphon it from existing hotels.

    "You can do a cost-benefit analysis (to justify) anything the government wants to do," he said.

  • Terry Werner said the hotel would be good for Lincoln, but he wants the city to take care of existing businesses.

    "I think we're just going to have to listen to public testimony and make a tough, tough decision," he said. "I support the project but my goal is to make sure the property owners are taken care of."

  • Annette McRoy said she's still wrestling with the proposal. "I hope we can come to an agreement with these property owners without using eminent domain. I want to treat everyone fairly if we do this."

  • Patte Newman is leaning against authorizing eminent domain. She said the block is not like the vacant lots near 48th and O streets, an eyesore that property owners haven't cleaned up.

    "Generally what I've been hearing from everyone is this is absolutely morally wrong and un-American," she said. "This community respects local business owners."

  • Ken Svoboda supports the hotel proposal, he said, and he'll listen to both sides of the debate. But he opposes the use of eminent domain — especially because the project is on a fast track to meet Hammons' ambitious timeline. He fears that as deadlines loom, the city would resort to condemning the property.

    He likely would support a plan allowing the city to proceed without the eminent domain authorization.

  • The Journal Star was unable to reach the only remaining member, Glenn Friendt.

The Journal Star: www.journalstar.com

Eminent Domain - Your Home Is Your Castle! Mortgage News Daily, 2/28/05

Or, maybe the punctuation is wrong. Perhaps the headline should read “Your home is your castle?

In other words, don’t get too comfortable in that recliner in front of the big screen TV while the kids whoop it up on the swing set in the back yard.

Why? The right of the government – federal, state, and local (even the school board) to evoke a right called Eminent Domain.

Eminent domain (it would be nice to abbreviate this as ED, but, gosh, Bob Dole has made that almost impossible) is nothing new. It is guaranteed by Article [sic — it's Amendment, not Article Five of the United States Constitution and has made possible the building of highways, dams, schools, and other crucial public works projects across the country for over two hundred years. Basically, eminent domain is the right of the government to take private property (after providing fair and equitable compensation) for the public good [sic — its public use, not public good].

Imagine if you will, the Interstate Highway System looking like a slalom course as it crosses the country, weaving in and between the homes and farms belonging to people who refused to sell their property to make way for the bulldozers. Countless farmers, businesspersons, homeowners, sometimes entire towns, have been forced to leave property behind so that massive projects such as the Quabin Reservoir in Massachusetts or the Glen Canyon Dam in Utah/Arizona could be constructed.

Some of these projects are easier to justify than others, and there will always be critics who say that the off ramp or the elementary school should have been put in a different location – perhaps where public lands already existed or landowners were willing to sell. Still, for over a hundred years, these takings by Eminent Domain were for public works projects and could at least stake a claim to serving the common good.

Then, in 1954, in Berman v. Parker, the Supreme Court ruled that cities can apply eminent domain to raze crime-ridden or decrepit areas for private purposes, making way for what became known as urban renewal.

Apparently, well under the radar, or at least unnoticed by the mainstream media, this ruling has slowly morphed into what local municipalities now consider a right to condemn private property in order to turn it over to other private ownership for development.

In Ogden, Utah the City Council wants to replace an older “blighted” neighborhood containing 34 homes and eight businesses with a Wal-Mart.

San Bernardino, California successfully evicted homeowners and a motel to build a new shopping center.

Riviera Beach, Florida has developed a plan to condemn 1,700 homes and apartments. While the city is probably years away from acting, these plans have substantial impact on homeowners’ ability to sell or desire to improve their properties.

According to The Institute for Justice as quoted by the Associated Press, there have been over 10,000 cases where private property was either threatened by condemnation or actually condemned by government for private use. (A second source quotes this figure for the time period 1998 to 2001.)

This all came into the spotlight earlier this week when the Supreme Court heard the case of Susette Kelo v. City of New London and New London Development Corporation. In this case, the City of New London, Connecticut, has condemned a stable, working class neighborhood near the Thames River to allow a private developer to build a glossy new office and residential complex. The development is intended primarily for use by Pfizer, the pharmaceutical mega-company, but will also house a hotel, river walk and a marina. By all accounts, the existing neighborhood was not blighted (much of it has already been leveled); it is occupied by middle-class homeowners who love their homes and maintain them. New London has justified the taking because the new project would, conceivably, provide more taxes and more jobs which it views as critical to the economy and future of a depressed New England town. The city plans to give the developers a 99 year lease on the property for one dollar a year.

Under eminent domain, the government generally notifies owners that a property is being considered for a public use and, after surveys and appraisals, makes an offer for that property. If the owner does not consider the price to be fair, or if he simply does not wish to give up his home or business at that, or maybe any, price, the government can then take the land. The owner is usually free to negotiate for a higher price for the property prior to the actual taking. But, under most rules, only after actual condemnation can the owner contest the price in court. Such court challenges are often well beyond the financial and emotional capabilities of those being displaced. Homeowners in New London freely admit that they would have been unable to fight eviction had it not been for the support of The Institute for Justice which has headed the Supreme Court challenge.

In the New London case specifically, but in many of the takings currently being protested throughout the country, the courts must feel like King Solomon trying to decide custody of the baby. Should the property rights of a few homeowners (seven in New London) outweigh the economic benefits that might accrue to an entire community? Should the economic interests (and profits) of Wal-Mart or a commercial developer be traded for the often more emotional interests of less affluent land owners who were, after all, there first?

In oral arguments before the Supreme Court on Monday, both attorneys and Justices showed the ambiguities that must be addressed by any decision. Even Scott Bullock, a senior lawyer with the Institute of Justice conceded, under questioning from Justice David Souter, that it could be a legitimate public purpose for a city to use tax money to buy up property for economic growth, but, in his view, only when people want to sell. Justice Souter than asked if there could not be a similarly legitimate public purpose in requiring people to sell. Bullock then retreated to a position that, perhaps government could force a sale for such purposes in certain cases, but only where the taking is certain to generate precise benefits.

Justice Sandra Day O’Connor asked New London representatives whether there should be any limits on government power in eminent domain proceedings. An attorney for the City said that the power of the people to vote representatives out of office constituted such a limit.

Aside from the issues raised in the New London case, there are others that may not be quite so obvious.

Should government be allowed to designate entire neighborhoods for “renewal” years ahead of any intention of acting? Property owners within such areas are placed in limbo for years, often unable to sell property, possibly even refinance it, because of a looming threat of condemnation

Does the earlier Supreme Court ruling that “blighted” neighborhoods are fair game discriminate against the elderly and the poor, those most likely to live in such areas?

Should property owners be able to avail themselves of court protection at an earlier time than after condemnation has actually occurred? Might there be a mediation process established above the level of the government agency doing the taking that can level the playing field for property owners?

The New London case has stirred the pot. There have dozens of public protests this week in areas with ongoing eminent domain controversies, so perhaps this issue will, at long last, get the public airing it deserves.

Meanwhile, don’t get too comfortable in that recliner.

Mortgage News Daily: www.mortgagenewsdaily.com

Trans-Texas Corridor

The proposed Trans Texas Corridor is a massive toll road project that — if implemented — will swallow up over a half million acres of rural land via eminent domain. That land will be used not only for transportation but as State owned rental property for essentially unrestricted business use.

The enabling legislation is online at www.corridorwatch.com/ttc/law/hb3588-text.htm

You can keep up to date on this evolving situation at www.transtexascorridor.blogspot.com

Porkus Maximus Tex: distantdetails@mac.com


Growth of eminent domain is a troubling omen: (Fairfield CA) Daily Republic, 2/27/05


By Bill James

A case before the U.S. Supreme Court could ultimately shape the future of Suisun City's redevelopment plans for Old Town.

In case you missed the front page story a few days ago, the high court is struggling to rule on a suit brought by residents of a small Connecticut town against City Hall. City leaders plan to use the power of eminent domain to take control of homes and businesses in a working-class neighborhood and turn the properties over to a private developer.

Sound familiar?

Suisun City voted unanimously last year to restore its power of eminent domain so it might use it as a tool to improve blighted areas around the community. During discussions at the time, it was clear the City Council was targeting some Old Town buildings and at least a couple of apartment complexes.

At the center of the discussion in Washington, D.C., is the contention of the attorney representing the city of New London, Conn., who said the increased tax revenues was enough of a legal basis for the city to exercise its power of eminent domain.

Justice Sandra O'Connor asked the attorney, Wesley Horton, if the city wanted to seize the property to turn "a Motel 6 into a Ritz-Carlton Hotel, would that be OK?" His answer was, "Yes."

That is extremely bothersome.

This attorney just scoffed at the protections of the Fifth Amendment that limits the taking of private property for public use with just compensation.

Oh, the city is willing to pay the multitude of property owners in New London.

The problem is many of New London's residents don't want to sell and a number of the properties aren't run down.

One report tells of Susette Kelo, a nurse who bought a run-down property in the New London neighborhood. She restored it into her dream home, only to learn a short time later the city had condemned it. A court order is the only thing keeping her from eviction. What the justices decide will seal her fate.

Using the reasoning of New London's attorney arguing the case before the court, no property in America is safe. If a government agency deems it can make more tax revenue by razing "blighted" property, it should be able to move forward anytime, anywhere.

That would mean Suisun City could take control of the entire west side of Main Street if chose to and then sell it to a private developer.

Using that same argument - that any big box retailer would generate more retail tax than a couple of small "mom and pop" stores - the bulldozers should be rolling soon.

I can see it now: Wal-Mart replacing Kmart. Why not Disney building a new theme park on the Lagoon Valley property? Why settle for a golf course, some executive homes and a business park? "Disney Valley" will certainly generate more tax dollars.

One of the discussion points before the court by the homeowners' attorney is the lack of standards that currently exist when cities grab whole neighborhoods for economic revitalization.

Few would argue with the premise that Suisun City's use of eminent domain to clear out the old Crescent neighborhood more than decade ago was a good application of the law. Victorian Harbor has been a key element in Old Town's steady improvement.

What I would hope would come out of this case is this: The Supreme Court should establish some clear standards that apply when invoking eminent domain.

Preventing decay of neighborhoods is important. And no one wants to see the equity of someone's home or business being sucked out because of neighboring blighted properties.

But without specific justification, forcing the sale of someone's property because someone has more political pull goes against the basic philosophy of our democracy, which should protect life, liberty and the pursuit of happiness.

The Daily Republic: www.dailyrepublic.com

The public 'use' and private wrongs of eminent domain: Universal Press Syndicate, 2/27/05


By James Kilpatrick

The Supreme Court heard argument last week in the most significant case it will hear this term. The case is Kelo vs. City of New London. By the time the court's term ends in June, we may have a better picture of what has become of the concept of private property in the United States.

The facts are brutally simple: Susette Kelo owns her modest home in New London, Conn. She wants to keep it. The city of New London wants to take it away from her. Mind you, there is not the slightest vestige of an iota of a scintilla of evidence that the affected area is a slum.

Under the city's plan, her house and a dozen other private homes would be demolished. The cleared land then would be leased for private development. If the city wins, and everything goes according to plan, the developers will make a potful, the city will tax the enhanced real estate, and Mrs. Kelo will be out on the street.

In case you arrived late for this exercise in despotic democracy, New London is invoking its power of eminent domain. The power is embedded in the Fifth Amendment to the Constitution. It permits government to acquire private property for public use upon payment of just compensation. The power is an indispensable tool of civil government. It lets us build public streets and public highways, public schools and public libraries, public parks and public capitols.

The key words in all this are "public use." The Constitution does not authorize New London to take private property for public "benefit" or public "convenience" or for some inchoate public "purpose."

For a century and a half the two words were precisely construed. Then came the landmark case of Berman vs. Parker in 1954, perfectly exemplifying the maxim that bad cases make bad law. Here the Supreme Court unanimously approved the public condemnation and private redevelopment of a rancid slum in Washington, D.C.

Justice William O. Douglas flew into flights of eloquence: "Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river."

Once Douglas was wound up, there was no stopping him. A legislative body, he decreed, may consider values that are "spiritual as well as physical, aesthetic as well as monetary." It is within the legislative power "to determine that a community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled."

Then came the conclusion that struck some commentators, including this one, as indefensible:

"Property of course may be taken for redevelopment which, standing by itself, is innocuous and unoffending. Nothing in the Fifth Amendment stands in the way."

Thus began the crooked trail that led to last Monday's oral argument before the Supreme Court. The Berman case concocted a piece of semantic legerdemain. Presto! "Public use" became "public purpose." A constitutional dam was fatally breached. Little by little, in thousands of cases across the country, courts have authorized seizures under the power of eminent domain.

Whatever may have been the slum-clearing merits of the Berman opinion of 1954, these have been offset by the subsequent erosion of property rights as old as Magna Carta. Every schoolboy knows the story. In 1215, a band of barons gathered at Runnymede. There they laid down an enduring principle of human rights: A peasant's humble home is his castle. Mrs. Kelo's innocuous and unoffending little home in New London is her castle. Those barons met on a meadow overlooking the Thames River of England. By nice coincidence, the Kelo house overlooks the Thames River of Connecticut. A good omen.

James J. Kilpatrick: kilpatjj@aol.com

Consider eminent domain amendment : Cincinnati (OH) Enquirer, 2/27/05

Your Voice

By Paul Szydlowski

Owning one's own home is at the heart of the American dream - and has been since the framers of the Constitution wrote protections against government seizure of private property for public use into the Fifth Amendment. But rampant abuse of eminent domain, made possible by a liberal interpretation of the "public use" standard, has put that dream at risk. Now the Supreme Court is considering a Connecticut case that may put the power back in the hands of the people. Let us hope they do.

Eminent domain has long been a tool of government in taking private property, but at some point the standard of public "use" became one of public "good." That is a critical distinction, and hopefully one that the court sees fit to reverse.

Public use conjures images of highways, dams, airports and other public facilities owned, operated or managed by a government entity. Public good is a much broader definition, opening the door to the use of eminent domain to grab property for such nebulous purposes as spurring economic growth, or worse, expanding the tax base.

Such a basis for eminent domain puts virtually any property not maximizing its tax-revenue potential at risk of government seizure. All it takes is someone who can promise a higher tax revenue stream from the property. Suddenly, owners of homes, farms, forests and fields are little more than caretakers waiting for someone with a better (meaning higher tax-generating) plan to come along.

And provisions limiting seizure to blighted areas provide little protection. In California, for example, undeveloped desert land was designated "urbanized and blighted" so it could be seized for a Hyundai test track. It's hard to see how God could be accused of blighting the wilderness, but since the track promised millions in tax dollars, who are we to argue?

Public good is far too broad a test for violating a principle as sacred as property rights. We can hope that the Supreme Court shifts the balance of power back in our direction. But if they fail, a simple constitutional amendment could do the trick:

Government shall not seize private property for the purpose of giving, leasing or selling it wholly or in part to another private citizen or entity.

Those 25 words would stop the land grab by government for the benefit of those who care not about the public good, but about personal profit.

The Cincinnati Enquirer: http://news.enquirer.com

Eminent Domain Can Revive New London: The (New London CT) Day, 2/27/05

Letter to the Editor

By Donna Pearlman

I appreciate The Day for its usual thorough, unbiased and well-reported and written coverage of this crucial New London eminent domain case before the Supreme Court of the United States.

As a resident of New London for more than a year now and the owner of a small business, I envision New London as “the next Stamford” and think this precedent-setting case will finally allow this city to achieve its wonderful potential.

I agree completely with this quote from one of your excellent articles, “Attorneys for the city have persuaded the courts in Connecticut that the taking was justified because its primary purpose was not to benefit Pfizer or another corporate entity, but to revive the local economy, improve the waterfront and help the public at large by generating jobs and tax revenue.”

We need to bolster business, generate revenue and help New London achieve its full potential. These structures are not historically significant from what I have seen of the evidence, and the benefits to many will be tremendous, not only in New London, but if this case is decided in favor of the city, for many other blighted neighborhoods and people who need jobs.

The Day: www.theday.com

Will court curb eminent domain? Boston (MA) Globe, 2/27/05


By Jeff Jacoby

BEGINNING his oral argument in Kelo v. City of New London, the Connecticut eminent-domain case the Supreme Court took up last week, Scott Bullock of the Institute for Justice puts the stakes bluntly:

‘‘Every home, church, or corner store would produce more jobs and tax revenue if it were a Costco or a shopping mall,’’ he says. If state and local governments can force a property owner to surrender his land so it can be given to a new owner who will put it to more lucrative use, no home or shop in America will ever be safe again.

That’s just what New London wants to do to Bullock’s clients, the last remaining homeowners in the city’s working-class section of Fort Trumbull. When Pfizer, the big pharmaceutical firm, announced in 1998 that it would build a $300 million research facility nearby, the city decided to raze Fort Trumbull’s modest homes and shops so they could be replaced with more expensive properties: offices, upscale condos, a luxury hotel.

But can the government kick people out of their homes or businesses simply to make way for new development?

Under the Bill of Rights, the power of eminent domain may be used only when land is needed for a public use. ‘‘Nor shall private property be taken for public use without just compensation,’’ the Fifth Amendment commands. A school, a post office, a right of way for a railroad — those are the kinds of public uses for which property owners have traditionally been made to relinquish their land.

But that isn’t why New London wants to tear down the 112-year-old Victorian that Susette Kelo worked so hard to renovate, or the house at Walbach and East streets where Wilhelmina Dery has lived for all of her 87 years. The city doesn’t want their land for a public facility or a new road. It simply wants the expanded tax base and economic growth that will come with new development. Is that what the Constitution means by ‘‘public use’’ — the trickle-down benefits of private use?

Once, Supreme Court justices would have given short shrift to such a claim.

‘‘The despotic power ..... of taking private property when state necessity requires, exists in every government,’’ Justice William Paterson wrote in a 1795 case, Vanhorn’s Lessee v. Dorrance, but the state must not invoke that power ‘‘except in urgent cases.’’ He could not imagine any situation that would justify ‘‘the seizing of landed property belonging to one citizen, and giving it to another citizen. ..... Where is the security, where the inviolability of property, if the legislature ..... can take land from one citizen, who acquired it legally, and vest it in another?’’

But there is no echo of Paterson’s spirited defense of property rights as the justices consider Fort Trumbull.

When Bullock argues that New London wants to throw people out of their homes for the sake of ordinary economic development, Justice Ruth Bader Ginsburg asks why that’s a problem. New London is depressed, she says; what’s wrong with trying to ‘‘build it up and get more jobs?’’ If the city could buy property on the open market and turn it over to a developer, wonders Justice David Souter, why can’t it use eminent domain to achieve the same end? Justice Stephen Breyer notes that there is bound to be some public benefit from almost any land taking. Isn’t that enough to satisfy the Constitution’s ‘‘public use’’ requirement?

It is a depressing colloquy for anyone who believes that property rights are fundamental to liberty. But there is worse to come. Justice Sandra Day O’Connor presses Wesley Horton, the lawyer for New London, on whether eminent domain can really be deployed to condemn any property that could be put to better use.

‘‘For example, a Motel 6,’’ O’Connor says. ‘‘A city thinks, ‘If we had a Ritz-Carlton, we’d get higher taxes.’ Is that OK?’’

‘‘Yes, that’s OK,’’ Horton replies.

Justice Antonin Scalia: ‘‘You can take from A and give it to B, if B pays more in taxes?’’

Horton: ‘‘Yes, if it’s a significant amount.’’

Got that? Anyone’s property can be taken by eminent domain if the government identifies another owner who could use it to earn a higher profit. New London isn’t alone in making such an outrageous claim. In planning commissions and redevelopment authorities nationwide, the Fifth Amendment’s ‘‘public use’’ requirement has been ignored for years. The question now is whether five Supreme Court justices will agree to kill off this piece of the Bill of Rights for good, or to bring it back to life. The fate of more than just seven Connecticut homeowners is riding on their decision.

The Globe: www.boston.com/news/globe

Issue of fairness: The (Westchester, Rockland and Putnam NY) Journal News, 2/27/05

By Bob Baird

Accountant Bruce Kanner's family still owns the property on the Haverstraw waterfront where his father operated the Empire State Chair Factory and where developer Martin Ginsburg plans eventually to build part of a luxury housing development.

Just when and how Ginsburg will come to own the property has Kanner and his elderly mother watching the U.S. Supreme Court, which last week heard a case from New London, Conn., where property owners challenged the city's right to use eminent domain solely to promote economic development by creating jobs and boosting property taxes.

Several years back, Haverstraw created an urban renewal area to promote redevelopment of largely abandoned industrial sites on its Hudson waterfront. As part of that, the village can use eminent domain laws to condemn property - like the old site known as the "Chair Factory." Before that, the developer may try to buy the property, but in Kanner's case, that hasn't ended in a deal.

Ginsburg has made two offers - one in 2000 and another last October - but Kanner says neither was realistic relative to the worth of real estate on the river.

Kanner's relations with Haverstraw and Ginsburg have been cool from the beginning, in part because the Kanners have to pay about $90,000 in annual property taxes while getting no benefit from their property. The family recently paid $100,000 to demolish the old factory.

Kanner's also upset because Haverstraw entered the property without permission to do environmental tests. Haverstraw Village Attorney J. Nelson Hood acknowledged in an August letter that debris from another property had been deposited on the Chair Factory site by the village.

The major concern for Kanner remains that Ginsburg can wait until he's good and ready to develop the site, and then have Haverstraw condemn the property for a fraction of its market value.

Although the amount paid is not known, that's basically what happened when Ginsburg and property owner Ruby Josephs couldn't come to terms on a piece of land for the project's first phase. After three years of talks, Haverstraw condemned it.

Kanner says it's his understanding that some units in the first section of Ginsburg's project are selling for between $600,000 and $1 million. Without specifying the amount of Ginsburg's most recent offer, Kanner says, "He's offering me the price of one unit for something he's going to put 150 units on."

He would be happy to sell the property for a realistic sum, or develop it now himself, Kanner says, but the village's agreement with Ginsburg doesn't permit that.

Andrew Maniglia, director of development for Ginsburg Development Corp., has another view of how dealings with the Kanners have played out. "We've suggested that both parties get appraisals; we've suggested that we meet for negotiations, and we've made an offer and we haven't heard back from them," he says.

That offer, which Maniglia says was for $1.5 million, was made late last year. He says it could be five to seven years before the company is ready to build on that property, but it is willing to make a deal before that. "We remain interested in an amicable solution," he says, "but we can't reach one alone."

In addition to Ginsburg's project, eminent domain is being used in more traditional ways elsewhere in Rockland.

The same power that gathered the land for the New York State Thruway is now being used by Rockland County Sewer District No. 1 to construct a wastewater treatment plant.

With a merger of Haverstraw's town and village police departments progressing, the town is using eminent domain to acquire a site on Route 202 near Town Hall - a private home owned by Hector Luis Mateo.

Mateo's family purchased the property in September 2003 from Jaris Fancy Ltd., whose principal officer is County Legislator Ilan Schoenberger.

After the sale and about $130,000 in renovations, the town informed the owners of the plan to condemn the property.

Initially, Mateo challenged the condemnation in state Supreme Court, but then filed a $25 million federal suit against the town.

Budget concerns have put plans for the $11 million building on hold, but Mateo still has to pay the mortgage on a property he may ultimately lose to condemnation.

Schoenberger has said he had offered to sell the property to the town, but they hadn't completed a feasibility study and wouldn't act until it was done. Haverstraw Supervisor Howard Phillips has said the town's offer to Mateo was more than fair. Mateo's lawyer called it "an insult."

Mateo says of eminent domain, "It's good when the law is applied for the public good." But in his case, he says, "They abuse the power of the law to protect a powerful politician and take advantage of a middle-class person."

Kanner says the Supreme Court permitting use of eminent domain for private development "would be a horrible empowerment of government. Then no home is safe; no business is safe - certainly no house of worship is safe."

The Journal News: www.thejournalnews.com

Supreme Court decision could upset local case: The (Brazoria County TX) Facts, 2/27/05

By Elliott Blackburn

Attorneys in a land debate that will determine the future of
downtown Freeport are hopeful that a similar case argued before the U.S. Supreme Court will help their cause.

The law is clear on a government's power to compel the sale of property for
public use, called eminent domain, University of Houston law professor John Mixon said.

But a conservative shift in the Supreme Court makes the justices' review of that power an interesting situation, Mixon said. The Court heard arguments on the first of three eminent domain cases last week, a move that is surprising because the case is so unremarkable, he said.

"There's nothing new about it," Mixon said. "It's the sort of thing we would have said, 10 years ago, there's no question about it as long as they're willing to pay."

Western Seafood Co. is fighting the City of Freeport and the Freeport Economic Development Corp. for 330 feet of waterfront property along the Old Brazos River that belongs to the 50-year-old business.

Freeport wants the land for a $7 million marina project the city hopes would inject tourism, new jobs and higher property values into the economically depressed downtown area. The city has posted double-digit unemployment numbers since 1992.

Freeport desperately needs redevelopment to turn that situation around, economic development coordinator Lee Cameron said.

"The economy that worked 50 years ago just does not work today for the city," Cameron said. "It may work for a few individuals, but it doesn't work for the city."

Wright Gore III, son of Western Seafood Co.'s president, said the land the city wants is where boats unload their shrimp and is critical to his family's business.

"We're fighting for survival, plain and simple," Gore said. "Without access to that piece of the property, we're simply unable to conduct our business."

In August 2003, Freeport approved committing $6 million to a 250-slip marina project along the Old Brazos River, to be developed by a private developer contributing $1 million.

Condominiums, restaurants and other businesses would follow, city officials hope.

"What we're trying to do is revitalize the economy, and that means doing some hard, hard things," Cameron said.

More than 1,800 miles away and three years earlier, the New London, Conn., City Council had similar plans. City leaders targeted a 90-acre, economically depressed area in the shadow of a brand new Pfizer Inc. global headquarters for a commercial and upscale residential district.

Like Freeport, New London authorized use of eminent domain to acquire properties from owners who refused to sell to the economic development corporation. A nurse named Susette Kelo and six other homeowners living in the neighborhood fought the plan, and in Dec. 2000 filed a lawsuit that traveled through the Connecticut judiciary and into the U.S. Supreme Court.

Urban planners and city leaders across the United States have anxiously watched the case, which could change the way eminent domain is used. Though a last resort, redevelopment projects like Freeport's marina would be lost without eminent domain, Cameron said.

"We did not want to use eminent domain," Cameron said. "I think we have very fairly and very straightforwardly tried to deal with everyone involved and have gotten nowhere. I think that without the tool of eminent domain, we would have had to say good-bye to this improvement in Freeport."

U.S. Southern District Court Judge Samuel Kent ruled in August in favor of Freeport's use of eminent domain to purchase the property.

Western Seafood Co. appealed that decision to the 5th Circuit Court, and a ruling at that level has stalled, waiting for the outcome of Supreme Court arguments on Kelo et al v. New London, Conn.

Last Tuesday, Supreme Court justices, after hearing arguments in the case, expressed sympathy for the plight of the homeowners in New London, but doubt that they had the power to stop the town's leaders.

It was encouraging that the court heard the eminent domain case at all, Western Seafood attorney Randell Kocurek said. Several other eminent domain cases also were scheduled for argument before the Supreme Court, he said.

"They could hand down a lot of those decisions all at once, and clean up a lot in eminent domain," Kocurek said.

John Hightower, a Houston attorney representing Freeport and the economic development corporation, said Tuesday's arguments made him "cautiously optimistic," but that it was a mistake to read too much into oral arguments.

"Obviously, there's some concern that the Supreme Court took the case in the first place," Hightower said. "This eases the concern a little bit."

Both attorneys felt there was enough difference between Western Seafood v. The City of Freeport and the Freeport Economic Development Corp. and the New London case to free their pending arguments from completely hinging on a Supreme Court ruling for either side.

Residents, not a business, were the plaintiffs in the New London case, Hightower noted. The developer in the Connecticut case was not the homeowner's neighbor, Kocurek said, referring to the fact that the developer is a relative of a neighboring landowner.

In the end, it will come down to politics, Mixon said.

The court has tilted to the right in recent years, which probably is why civil liberties litigation group Institute for Justice took up the homeowner's case, Mixon said.

Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas were likely to support the property owners, he said. Justice Ruth Ginsberg and others would support the town's right to condemn, and Justice Sandra O'Connor seemed to be on the fence, Mixon said.

Even if the court was more conservative, a revision of eminent domain would be a surprise, he said.

"It would take a substantial shift in doctrine for them to say that New London can't do this," Mixon said.

A decision on the Kelo case is expected by July. Gore put a longer time frame on his business's efforts.

"As long as misguided politicians use eminent domain to eliminate one business and enrich others, we'll continue to fight for survival," Gore said.

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