Senate weigh on eminent domain: Dateline Alabama (Tuscaloosa AL), 3/24/05

By Kim Chandler

When the City of Alabaster wanted to buy Carrie Spence's land for a shopping mall and city hall site, she didn't have to think long.

"It's our home, and it's paid for. You've been living here all your life and they try to take your land for a Wal-Mart or a Target or whatever. No, get out of here," Spence said.

The city filed a lawsuit against her claiming eminent domain, which lets governments acquire private land for public use, as long as the former owners receive "just compensation." The lawsuit was dropped after other families agreed to sell for a higher price. But policy-makers are grappling with just what constitutes public use and whether cities can condemn private property such as Spence's for retail developments that'd increase the tax base.

A bill pending in the Alabama Legislature says they can't and would prohibit cities from using eminent domain for commercial use.

"Quite frankly, I just think it's wrong to take anyone's private property and give it to a retail establishment," said bill sponsor Rep. Jack Venable, D-Tallasssee.

"Eminent domain is very important. We wouldn't have the interstate highway system if we didn't have eminent domain, but at least that's public use, which is what our constitution intended," Venable said.

Venable said that to his knowledge no Alabama government has taken private property for commercial development.

But he said cases in other states show cities' desire to use eminent domain for land to lure big-box retailers or other commercial developments.

The House of Representatives approved Venable's bill 90-1, sending it to the Alabama Senate for consideration. Some cities argue that eminent domain is a key tool for tackling urban blight: Take it away and you could be left with slums.

"When you've got these run-down areas, one of the ways to clean them up is eminent domain," said Perry Roquemore, executive director of the Alabama League of Municipalities.

Sen. Rodger Smitherman, D-Birmingham, said he plans to tack on an amendment that'd exempt the city of Birmingham. The Fifth Amendment to the U.S. Constitution states that private property shall not "be taken for public use, without just compensation." What exactly defines public use has been a matter for debate.

Other states are grappling with the definition, and the U.S. Supreme Court will soon weigh in. Last year, the court heard the case of a group of New London, Conn., landowners trying to prevent their property from becoming part of a riverfront revitalization project. The Washington-based Institute for Justice, a libertarian group representing the New London holdouts, reported that from 1998 to 2002, there were more than 10,000 threatened or filed condemnations involving private developments.

The Georgia Senate earlier this month approved a bill that would prohibit eminent domain when the use is primarily to improve the tax base or economic development.

Dateline Alabama: www.tuscaloosanews.com

District 3 hopefuls take stand on eminent domain: The (Blue Springs/Independence MO) Examiner, 3/24/05

By Stephanie Howard

Blue Springs City Council candidates in District 3 took a strong stand on eminent domain Wednesday.

Incumbent Ron Fowler and challenger Steven Mooers spoke Wednesday afternoon at the Blue Springs Rotary lunch.

Fowler discussed the eminent domain issue, saying the City Council, just two days prior, had approved using the tool to acquire about 2.75 acres of land for the expansion of Moreland School Road.

Eminent Domain is a tool available to governments in which the government can condemn a piece property for public use.

Fowler, who voted in favor of the issue Monday night, said that was the appropriate use because it went for a road. However, he said he would not support eminent domain to take one business' property to give to another business. He cited the recent tax increment finance proposal on Missouri 7.

"The TIF district grew into something I didn't support," Fowler said. "Yeah, I want redevelopment, but we're not going to use eminent domain for it."

Mooers took a stronger stance, saying he didn't think eminent domain should ever be used. Going back to Monday night's vote, Mooers said everyone should be allowed the right to get what they want for their property.

Likewise, Mooers pointed out many of the farms in the area have been in families for generations.

"If a person wants 10 percent more or 20 percent more for their land to push that road through, the city should come up with it, or they don't get the land," Mooers said. "I don't think the government, at any time, should come in and take that land, for any reason."

The two candidates fielded questions about various city issues and agreed on most questions. Fowler concluded the forum thanking Mooers for keeping the campaign clean and friendly compared to last year's divisive city elections.

The Examiner: www.examiner.net

When government takes what it doesn't own: The Bergen (NJ) Record, 3/24/05

By george Mytrowitz

EMINENT DOMAIN - it's a 1,000-year-old concept that poses a contemporary threat to property owners throughout New Jersey. Rooted in English common law, eminent domain is the right of governments to take your house, your business and your livelihood.

President John Adams so feared the government abuse of property rights that he said: "The moment the idea is admitted into society that property is not as sacred as the Laws of God, and there is not a force of law and public justice to protect it, anarchy and tyranny commence. Property must be sacred or liberty cannot exist."

Adams' concerns for private property are ignored by today's petty political tyrants who abuse the power of government to take what it does not own.

In Carteret, an 84-year-old World War II hero, fighting cancer, faces the prospect of being booted out of his house by the mayor's redevelopment scheme.

In Ridgefield, government officials are considering redevelopment schemes that could destroy existing businesses.

In my own case in Newark, the auto body shop owned by my family for 90 years is being targeted for extinction as a part of the city's effort to condemn 14 acres of our neighborhood.

These are but a few of the scores of injustices being committed today in the name of redevelopment in New Jersey.

The politicians argue disingenuously that the taking of homes and businesses is but a small price to pay for the benefits of redevelopment: "more jobs and lower taxes" for the rest of the town's taxpayers. These presumed benefits are never guaranteed and no studies have ever verified if the promises match reality.

Promising more tax revenue is not the same as lowering property taxes - it's just a chance for governments to acquire and spend more money. Similarly, the promise of jobs is usually a distortion. Often high-paying blue collar jobs are wiped out, replaced by low-paying retail or service jobs. Mechanics in my shop earn three times the minimum wage plus benefits. Those wages will not be matched by the Dunkin' Donuts or Gap store that could replace us.

The real beneficiaries of eminent domain are developers and planners who work with compliant politicians to carve out redevelopment districts and then get the government to do what every developer dreams of - force people to sell their property to them. These schemes amount to nothing more than the massive transfer of wealth from one set of private property owners to a private entity that will make millions on the transfer.

Eminent domain is supposed to be employed for a public use - a school, highway or library. But it is hard to see the public use in taking homes and business and replacing them with newer homes and businesses while allowing friends of politicians to make a fortune.

The corrupt nature of these schemes is obvious. In almost every case the developers and architects favored by the government have made sizable donations to the politicians in the redevelopment area. There is never any open competitive bidding for development ideas.

In Newark, we have, as they say, followed the money. And what we discovered was typical. The development for The Mulberry Street area was voted down by the council in 2003. A few months later, after the developers made sizable donations - exceeding $50,000 - to the mayor and council, the project was resurrected and OK'd by the same city council that had turned it down earlier. One of the developers is a former city council aide seen recently dancing up a storm at Mayor Sharpe James' fund raiser. Eminent domain has become an extension of pay-to-play.

Even in cases where the need for redevelopment is substantiated, why is it only the outside developers who benefit from the plans? Why aren't people like me, people who have stayed in the cities year after year - paying taxes, providing jobs - not allowed to share in the prosperity of the city's renaissance?

Politicians are quick to point out that the law provides for just compensation, and relocation assistance for property taken. That's a joke. In many cases heavy industrial business are tough to relocate. Where, for instance does one move a steel fabrication plant or an auto body shop? How many neighborhoods are amenable to such uses?

The larger economic concern for the state is that eminent domain abuse provides a disincentive for investment in the industrial sector and leads to monolithic development patterns - office and retail space and cluster housing in town after town. Why would anyone invest in a new or existing industrial business that could, at the whim of a mayor and council, be targeted for extinction?

State Sen. Paul Sarlo of Wood-Ridge recently held a committee meeting to address concerns about manufacturing jobs in New Jersey. A good place for the senator to start would be addressing the negative impact of eminent domain on industrial jobs.

With a gubernatorial election looming this fall, now would be the time for any would-be state executive to begin addressing the abuses of eminent domain and their impact on people's lives and livelihoods.

The Bergen Record: www.northjersey.com

George Mytrowitz is the owner of Market Auto Body in Newark and spokesman for the Mulberry Street Coalition - a Newark based citizens group opposed to the city's condemnation of their property.

The Evolution of "Public Use" in Redevelopment: American Planning Association, 3/05

Bettman Symposium

By Stephen Sizemore, AICP

Pending before the U.S. Supreme Court is a case, Kelo v. City of New London, whose decision may significantly alter one of the major tools by which communities facilitate redevelopment and economic development — the power of eminent domain.

In recent years, controversial uses of this power have regularly hit the front pages of national newspapers and news. Whole neighborhoods are being condemned to provide sites for new private development that promises to create new jobs and increase the tax base. Is this an abuse of the power of eminent domain, cruelly taking the homes people grew up in and have staked so many aspects of their lives? Or is it a necessary, yet last-resort, means of assembling land for redevelopment that is crucial to revitalizing the area or the city as a whole?

Under the Fifth Amendment of the U.S. Constitution, the power of eminent domain is limited to where exercised for a "public use." But what is "public use"? Is it limited to public facilities, like roads and fire stations? Is it any action that benefits the public? Or is it something between? And does it matter whether the condemned property ends up in the hands of another private entity rather than the government?

These are some of the questions that two speakers and a responding panel of legal experts addressed at Sunday afternoon's session in the Bettman Symposium.

Charles Siemon, a Florida attorney with extensive experience with redevelopment, stressed that U.S. society and its laws have always recognized the need for government to have a broad power of eminent domain, and that the courts have wisely stayed away from second-guessing the judgment of state legislatures as to what constitutes a public use for which the power may be used. Most of the nation's cities face a "crisis in redevelopment," where the fracturing of urban property into small parcels poses a major obstacle to redevelopment needed to revitalize the city. If the government lacks a broad power of eminent domain, one property owner can hold out and preclude the assembly of the land needed for redevelopment, stopping redevelopment and the many public benefits it entails. And what difference does it make to a property owner who ends up with the property, and what use it's put to?

Dana Berliner, an attorney with the Institute of Justice in Washington, D.C. (and attorney for the property owners in the Kelo case), presented very different view of what "public use" should mean. She emphasized that government use of eminent domain to take a home or business touches on something that is very personal to the home or business owner, something central to their identity. They suffer injuries that, though often intangible, are very real — and often not compensated for by payment of the property's market value.

And just as it matters to you what a beggar does with the money you give him, it likewise matters to the property owner how their property is used, and for whose benefit. People are more willing to sacrifice their property taken for a public road, police station, or other facility directly serving the community than as the site for private development that may (or may not) indirectly contribute to the community's economic well-being. Planners often just do not understand this or why people object to use of eminent domain. Instead of contributing to conflicts between public purposes and property owners in redevelopment projects, planners should do more to avoid and minimize such conflicts.

Brian Blaesser, an attorney with the Boston office of Robinson & Cole, noted that those in the real estate community, like people from both ends of the political spectrum, are ambivalent about the issue of how public use should be defined. Although they recognize the desirability of economic development and the need to use eminent domain to achieve it, they also are sympathetic to property owners adversely impacted by such use, particularly where it involves a "private-to-private" taking. But sufficient safeguards against abuses in the use of eminent domain already exist in the form of a number of statutory limitations and procedural requirements at the state level. Even so, more work is needed in reviewing and revising these redevelopment statutes — for example, removing high density and diversity of ownership, both important attributes of smart growth, as defining criteria for "blight."

Shelley Saxer, law professor at Pepperdine University, stressed that controlling the abuses of eminent domain requires a higher standard of review. In an amicus brief in the Kelo case, she and other law professors proposed using the standard applicable to exactions: that there be a nexus and rough proportionality between the impacts of condemnation on individual property owners and the need for the condemnation. Paying market value for condemned property often does [not] equate to "just" compensation, given the property owner's relocation costs and emotional loss.

Deborah Rosenthal (an attorney with Cox, Castle & Nicholson in Riverside, California) spoke about APA's recent development of a policy guide on public redevelopment, noting that it was triggered by increasing concerns about possible abuses of the eminent domain power and legislative reactions to those concerns. The policy guide considers eminent domain as one of many redevelopment tools — one to be used as a last resort, through an open public process, to implement a redevelopment plan that conforms to the community's comprehensive plan. When undertaken in the context of a defined plan, and in a manner that respects the psychic values of affected property owners, eminent domain is far less likely to be controversial.

However the U.S. Supreme Court decides the Kelo case, the issue of how the power of eminent domain may or may not be used for redevelopment will continue to be one of great interest and concern to planners.

American Planning Association: www.planning.org


Toll-road plan bites the dust: Rocky Mountain News (Denver CO), 3/23/05

Senate committee indefinitely delays 'Super Slab' bill

By Kevin Flynn

Lawmakers on the Senate Transportation Committee were greeted by about 750 angry but well-mannered protesters from the plains - many of whom arrived in a school bus convoy from towns such as Peyton, Calhan and Ellicott - and voted 6-1 to postpone House Bill 1030 indefinitely.

That's General Assembly-speak for killing the bill.

"We hope we'll be able to work with the committee to develop some sort of legislation that will protect the landowners' rights," a jubilant Marsha Looper, of Calhan, said after the vote. She was one of many organizers who helped assemble the large public response.

She said the Eastern Plains Coalition, an umbrella for the various groups fighting the toll road, would continue to meet.

It was by far the largest crowd to come to the Capitol on a single bill in the living memories of numerous Statehouse old-timers. Organized in large part over the Internet in just the past three weeks, the crowd represented at least six of the seven counties through which Wells filed a 12-mile-wide, 210-mile-long claim for a superhighway corridor 20 years ago.

After Wells told the committee his highway and express railroad corridor would bring traffic relief to inner cities by removing through trucks and coal trains, those who live out on the plains urged the committee to keep the city in the city and leave the open country alone.

Also riding high was emotion over a private company such as Wells' Front Range Toll Road Co. having the right to condemn private property for the road - an issue not even addressed in the bill, but which Wells has via a 19th century statute that helped open up mining roads

"We're ranchers on the Colorado plains, and now we're forced to take a stand," said an emotional Chuck Kovanda of Keenesburg, recounting how his forebears homesteaded their initial 160 acres, fought battles with Indians and fought in the nation's wars.

"And to make it worse," he said, motioning to Wells behind him, "he's a dude!"

What led to the defeat of the bill, which last month flew through the House 62-3, was concern over such issues as the lack of public input into planning major projects such as the toll road.

Steve Durham, a former legislator representing cable magnate John Malone, told the committee that Malone and his wife bought 65,000 acres of open space in Elbert County with the intent of preserving the area. The toll road would slice through it.

"A project like this was not likely envisioned when the statute was written," said Durham of the 1882 law last revised in 1891. Rules of public projects have changed immensely since then. "This bill completely overlooks the necessity of modern review policies."

A few in the crowd wore cowboy hats and pointed boots - some fresh polished and others dusty. Some wore T-shirts and sweatshirts sporting anti-toll-road slogans. Two hours before the hearing, about 500 of them rallied on the Capitol's west steps to set their resolute mood in granite.

Only about 220 could fit into the Old Supreme Court Chamber, the Capitol's largest meeting room, filling it to overflow capacity. Three spillover rooms were set up on the third floor and the basement with piped-in audio from the hearing.

Given that Wells last month estimated only about 200 property owners might be affected - an estimate he now says is outdated - there were nearly four times that many people out to protest his plan.

Sen. Stephanie Takis, the committee chairwoman, presided firmly over the 5 1/2-hour hearing. After the vote, she said she would ask the joint House-Senate Transportation Legislation Review Committee to take up the contentious issues raised by private toll roads this summer.

Only bill sponsor Sen. Suzanne Williams, D-Aurora, voted against postponing it. Sen. Bob Hagedorn, also D-Aurora, moved for the postponement.

Sen. Tom Wiens, R-Sedalia, asked most of the critical questions of Wells, noting that other private entities with condemnation power, such as utility and communications companies, nevertheless have government regulators overseeing their operations. The private toll road would not.

Wells sat in a front row with a partner and some advisers, arguing near the beginning for the approval of the bill and then listening to dozens of farmers, ranchers, horse breeders, scouting camp leaders and rural residents condemn his 20-year dream of an eastern Front Range bypass route.

Wells remained seated after the vote while others left, and offered no comment.

The bill would have modernized the way tolls are set on private roads and aligned the Wells plan with the rest of the state's toll collection enforcement system. But it also would have authorized more liberal methods of selling off the road's assets, making it more attractive to investors.

Critics were suspicious of the provision and argued that much more public disclosure of the proposal was needed before the first rancher or homeowner was asked to sell out for the road.

Noting that Wells' proposed highway was to run down the center of a two-mile wide open-space corridor, John Byrnes, of Weld County, voiced what many feared with so much territory under corporate control.

"Many of us think the toll road is just a smoke screen for a land grab of biblical proportions," he said.

Rocky Mountain News: www.rockymountainnews.comwww.rockymountainnews.com

Toll project in path of wrath: Denver (CO) Post, 3/22/05

Rapid growth swells corridor's population

By Chuck Plunkett and Jeffrey A. Roberts

Hundreds of people, many waving signs, gathered at the state Capitol in Denver today to protest plans for a $2 billion high-speed toll road running parallel to Interstate 25.

The Senate transportation committee was scheduled to hear public testimony on the issue at 2 p.m. today.

When the mastermind behind the proposed Front Range Toll Road pitched his project to Colorado legislators and the public last month, he suggested its impact would be minimal, affecting only about 200 property owners.

He has grown to regret that representation, which he based on data he amassed nearly 20 years ago, when he first filed with the state for the opportunity to build the system.

Hundreds of residents in dozens of town meetings in the 210-mile project's path have called him on it.

"I shouldn't have used a number," said Ray Wells, who heads the Front Range Toll Road Co.

A Denver Post analysis of 2000 census data - already 5 years old and not accounting for the explosive growth within several areas of the toll road's path - shows that at least 74,000 people live in the project's corridor.

Compared with the Denver metro area, the population is relatively sparse, considering those people live inside an area of about 2,400 square miles. The Post's review - corroborated by an analyst at the Denver Regional Council of Governments - even reveals a handful of vast, wide-open spaces.

But the number and location of people also make it clear that far more than 200 property owners will have to give up their land if the toll road is built.

Wells said his engineers are studying the population, too, but he hasn't updated his estimate of the number of property owners who might fall in the path of his project.

"All I know is, at this stage, I'm very comfortable that we're not going through any subdivisions," said Wells, who has been called "The Godfather" of private, special district developments.

Wells and his investors have earmarked a 12-mile-wide corridor in which he wants to build a 660-foot-wide road and rail system that would combine a four-lane toll road, rail and infrastructure for power and telecommunications.

The toll road and rail system would run from Pueblo to Fort Collins as an alternative to congested Interstate 25.

On Monday, Wells' company released a survey of 12 Front Range counties - including Elbert, Weld, Adams and Pueblo - that shows 51 percent support the project and 18 percent oppose it. "Following a discussion of the toll road," support rose to 69 percent, according to Ciruli Associates, which conducted the survey Wells commissioned March 14-17.

The survey has a margin of error of 4.4 percentage points.

Wells hopes that the state's Senate Transportation Committee today will approve a bill that would streamline how toll rates are set. His opponents plan to fill the committee chambers.

Cable television magnate John Malone, who owns 65,000 acres in Elbert County, sent a letter to the Transportation Committee last week opposing the project.

Malone's property is devoted to raising cattle and preserving open space. On Monday, officials confirmed that Malone has hired a team of lobbyists to oppose the road as planned.

Malone retained Peter Minahan and his firm, Colorado Communique Inc., and lobbyists Steve Durham and Leo Boyle.

When government entities undertake condemnation proceedings, the process is accompanied by financial analyses and public hearings, Durham said. But the toll road bill makes it easier for private entities to pursue what he calls the government's "nuclear weapon" - the power of condemnation - without public scrutiny.

Malone believes there should be a buffer of open space next to densely developed Front Range communities, Minahan said.

"The location of such a major project should not be left to a private enterprise, as it impacts in a very major way the lives, fortunes and environment we share," Malone wrote to lawmakers. "A 'Great Wall' would severely divide the county, adversely affecting lives and property values," he said.

Malone's objections ring true with Jackie Johnson, who raises miniature donkeys and keeps llamas and an adopted mustang on 66 acres in Elbert County.

Johnson and her husband, Milt, bought the property six years ago.

"This is everything to us," Jackie Johnson said.

Many residents in Wells' path question his use of the term "affected." Even if the trucks and cars and trains aren't running through their property, they say, the proximity of such a project would forever alter their quality of life.

Wells argued last week that the area already is experiencing rapid growth, and his road hasn't been the cause.

And, Wells says, the toll project would help alleviate the congestion, rail traffic and pollution of I-25, which runs through a corridor populated by some 2.5 million people.

"It would be absolutely ridiculous if I said there is absolutely nobody that would ever be affected," Wells said.

But not everyone in the path is concerned. Oliver Cook, 55, was born and raised in Elbert County, and he says he could leave it.

The character of the place hasn't been the same for years, he says. There are so many newcomers, and they are so mobile, that he guesses he doesn't know 90 percent of those in his community anymore.

"As long as they give me fair market value," Cook said. "Granted, it's pretty out here, and I wouldn't want to see it destroyed.

"But I can go someplace else that's quiet."

Denver Post: www.denverpost.com


'Super Slab' plan piques tempers: Rocky Mountain (CO) News, 3/21/05

Some residents say they won't let toll road steal their land

By Kevin Flynn

Many folks on the eastern Plains say the proposed "Super Slab" toll road will steal their rural lifestyle, their homes and their land over their dead bodies.

For most, that's figurative. For a few, it may be literal.

The Super Slab is super controversial in rural communities where residents value independence, private property and the Second Amendment. The plan calls for a $2 billion, privately financed toll road and rail corridor from Fort Collins to Pueblo, parallel to the Front Range.

The idea has been around for 20 years, but it has been generating a lot of heat lately because of a bill in the legislature that would smooth a few bumps in its financing. The bill is scheduled for a Senate committee hearing Tuesday.

Opponents have organized a campaign, largely through the Internet, to kill the proposal. Chief among their concerns is that its private investors have the right of eminent domain - property condemnation - if landowners don't want to sell.

The plan is being spearheaded by Ray Wells, former manager of the Denver Technological Center, and unidentified investors. They want to build a four-lane highway, including plazas for fuel, food and lodging, and a double-track railroad mainline.

The highway is aimed at truckers and motorists willing to pay for an uninterrupted 85-mph-speed-limit road that avoids all urban congestion. The tracks would take interstate coal trains out of Front Range cities, cutting pollution, noise and congestion.

Rep. Richard Decker, R-Fountain, supports the project. That's made him a target of opponents, whose shouts at one community meeting led Decker to walk out.

"I've always come out on what I thought was in the best interests of my constituents," Decker said. "If the project goes forward, I want to see that it's done right."

Along each side of the 660-foot right of way for the road and tracks, developers want a one-mile no-development buffer strip. Wells would pay property owners for so-called conservation rights to that buffer.

That means the owners would retain the land and use of it for farming or ranching, but they would forfeit any right to develop it. The no-build buffer would protect residents from growth, but also would ensure Wells less competition for services along the road.

No one knows yet exactly where the concrete and asphalt would go. In 1985, Wells filed a legal document akin to a mining claim on a 12-mile-wide corridor, starting in Larimer County and slicing through Weld, Adams, Arapahoe, Elbert, El Paso and Pueblo counties.

Wells doesn't own any of the land yet. The claim allows him only to keep anyone else from building a toll road within that corridor.

Opponents are suspicious of the secrecy surrounding the company's investors, and they are hopping mad over a private profit-making entity being able to condemn their land just like the government. The rhetoric matches the tempers.

"These people need to understand that we will not back down, under any circumstances," said Brian Cooper, of Peyton, webmaster of www.superslab.org, which has rallied folks against the proposal.

"Nobody wants to see a bloodbath, but these people don't have a very good pulse on the type of people that live out here. We're loners, and we are patriots. Most of the Colorado militia lives out here.

"I get e-mails from little old ladies saying that they went out and bought a new shotgun, and that's just the little old ladies. Some of what I am hearing from the men is unprintable."

Indeed, the comments section of superslab.org has some ominous messages.

"They'll confiscate my land by 'eminent domain' or whatever the heck they call it, over my dead body," a Peyton man wrote.

"You come try to steal my land and you will find out why we believe in the Second Amendment!" a person from Ellicott wrote.

And from a Calhan writer:

"If they try to take my land away from me and my family by 'eminent domain' it will be their 'eminent demise.' If they step foot on my land, it'll be a new angle on the 'Make My Day' law! You get my drift?"

Most of the opposition is not as strident. Cable magnate John Malone argued that it is bad public policy to allow a private venture to condemn land without the same open public process governments must use.

Malone owns about 65,000 acres of Elbert County open space that he said he wants to conserve.

"Clearly, these plans could be severely impacted by a road project that is purely profit motivated, ignoring other important societal values such as conservation," he wrote in opposition to the plan.

Citizens of Adams, Elbert, Pueblo and Weld counties also are organizing opposition.

Patty Sward, of Elizabeth, said it's unthinkable that a private company could force the sale of property for a roadway that the Colorado Department of Transportation said last fall wasn't financially feasible.

Oddly enough, the consultant Wells used to make his case is the same one who did the CDOT study.

"This private corporation is seeking eminent domain rights over a 212-mile-by-12-mile stretch of Colorado without adequate public hearing, disclosure of business plans or business partners," Sward said.

In Bennett, Cindy Bulinski bought her land seven years ago and built a house on it five years ago.

"Our first gut reaction was that we moved to the country and now they're going to bring the city to us," she said. "This is not good for Colorado growth issues."

Opponents are planning to swarm into Denver on Tuesday for the Senate committee hearing on House Bill 1030. One group is renting buses.

The bill sailed through the House last month, 62-3. The no votes came from Democrats, two from Denver and one from Boulder County.

The bill would have CDOT set the Super Slab's toll rates instead of each county's commissioners. That would provide a single, consistent rate through all the counties.

The bill also would make it easier for Wells' company to sell off its assets, making it more appealing to investors. Opponents mistrust this provision, seeing it as a back-door entry to development.

"You don't make the money off a $10 toll from Fort Collins to Pueblo," said Rep. Paul Weissmann, D-Louisville, one of the lawmakers who voted against the plan. "You make the money from building a Holiday Inn or a Super Wal-Mart along the way."

"It could bring massive growth and urban sprawl," said Rep. Jerry Frangas, D-Denver. "I read some of the stuff about condemnation and thought, 'Well, if they were going to do this in north Denver, I'd sure want someone to stand up for me.' "

Wells has said the project can go forward without the bill.

Sen. Suzanne Williams, D-Aurora, the Senate sponsor of the bill, has lined up a few amendments to address some of the resident complaints.

"They're in response to different questions that we've had," she said.

One change would establish a citizens task force to monitor the project. But the basic concern of residents - property condemnation - is not addressed.

Some opponents think killing the bill would deny Wells the right of condemnation. Not so. He already has that authority under a 123-year-old law that allows private firms that build roads and utilities to condemn land, his spokeswoman said.

The 1882 statute permitted Gen. William Jackson Palmer, the founder of Colorado Springs, to acquire land for his Pikes Peak Toll Road. It's the law that allows companies such as Xcel Energy, Qwest or enterprises that build roads, ditches, reservoirs, pipelines, bridges, tunnels and electric or telephone lines to condemn easements or rights of way from unwilling sellers.

Decker said communities couldn't function without private companies having such rights.

"You can't make a phone call or turn on a light or fill your bathtub without enjoying the benefits of eminent domain used by private companies," he said.

Wells' spokeswoman Ellen Dumm said the plan will receive plenty of public perusal. Wells' contract with investors precludes him from identifying them until after the legislation is passed, she said.

Dumm said the highway will follow the easiest path: the fewest hills, the smallest environmental impact and the most willing sellers.

"There's plenty of ground still available," she said. "There are lots of people out there who want to sell, especially the conservation rights."

But the opposition is dug in for a fight.

"All means of nonviolent action will be taken first," Cooper said. "If all legal avenues are exhausted, but to no avail, then it's no-holds- barred.

"What we are saying is that drastic times demand drastic measures. If we have our land stolen, then we will resort to drastic measures. How drastic remains to be seen."

'Super Slab' slate

Players in the debate:
  • Ray Wells, 71, Castle Rock, former manager of Denver Tech Center and driving force behind the project.
  • Richard Decker, 67, Fountain, state representative for the district that includes eastern El Paso County, where part of the road would go.
  • Brian Cooper, 47, Peyton, webmaster of Superslab.org, a Web site organizing opposition to the project.

Toll road facts:
  • What: "Super Slab," or Front Range Toll Road and freight rail line
  • How much: $2 billion in private funds
  • Where: 210-mile corridor on eastern Plains from Fort Collins to Pueblo, parallel to Interstate 25
  • Why: To take truck, train and other traffic off congested Front Range freeways
  • How: Buying 660-foot path for road and tracks, plus conservation rights to one-mile buffer on each side. Condemnation possible if sellers are unwilling.
  • What's next: State Senate Transportation Committee hearing on HB 1030, which would make some changes to the way private toll roads are done, 2 p.m. Tuesday in the Capitol's Old Supreme Court Chamber

Rocky Mountain News: www.RockyMountainNews.com


City could take arena land by eminent domain if needed: The (Fargo -Grand Forks ND) Forum, 3/16/05

By Mary Jo Almquist

If downtown business owners refuse to make way for a $40 million arena and events center proposed for their block, Fargo officials may have to use force to move them.

But the city will use eminent domain - a rarely used tactic allowing the government to seize private property for public use - only as a last resort, Fargo City Commissioner John Cosgriff told about two dozen business owners Tuesday.

If voters approve the taxpayer-funded Renaissance Center May 3, the city hopes to negotiate a fair buyout with everyone involved, Cosgriff said.

For example, if a business wants to come back to the block if and when the Renaissance Center is built, that could be arranged, he said. It's also possible that a temporary location could be secured downtown for businesses waiting for the new facility.

But Cosgriff also warned business owners that the process will be political.

"I cannot promise you this is going to be easy," he said.

The buyout process will only be necessary if voters approve a 3 1/2-year extension of the Fargodome sales tax to pay for the arena and events center, proposed for the block bound by First Avenue North, NP Avenue, Broadway and Roberts Street.

Cosgriff, along with Cityscapes Development President Mike Bullinger and Brad Wimmer, chairman of the arena citizen s committee, on Tuesday tried to paint a picture of what could happen if voters approve the project.

Cityscapes and the citizen's group already have met with several civic groups and local government boards.

Paul Dobbins, owner of PD's on First, organized the business owner meeting at his restaurant. These are people who, like Dobbins, would have to relocate if the arena is built. Dobbins said he thinks the project is a great idea.

Cosgriff explained if the vote goes through, the city would be responsible for acquiring and clearing the land. The portion that would be dedicated to the $60 million private office, retail and condominium tower would then be sold back to Cityscapes for development.

That land could generate about $1 million per year in property taxes, compared to the $58,000 being collected today for the entire block, project backers say.

Without the Renaissance Center, it will probably be 20 years before this block fills in, Wimmer said. With the project, it will take about three years, he said.

One building some historians have expressed concern about demolishing is the old bank building at 52 Broadway.

Bullinger said he recently talked with architects and it may be possible to save the building and incorporate it into the design.

Rick Engen, who owns the property, wants to open a nightclub in the space. If his building can be saved, Engen said he would be all for the Cityscapes plan.

Another major property on the block is the fire station, though Fargo Fire Chief Bruce Hoover said he's not concerned about the looming relocation process. Ideally, the city's main fire station should be a little farther south and west anyway, Hoover said.

Not everyone who attended Tuesday s meeting was pleased with what they heard. Property owner Nachhattar Gill is still concerned about the proposal and about Cityscapes Development.

"This is not the right place to build an arena downtown," Gill said. "This is a bad idea."

The Forum: www.in-forum.com

Smart Growth Fargo is a group formed to fight this abuse of eminent domain involving the taking of property and turning it over to a private developer rather than using it for a specific public purpose. For information about Smart Growth Fargo, click here: http://votenomay3rd.blogspot.com