Eminent domain challengers ask court: What is "public" use? Asbury Park (NJ)Press, 5/5/05


By Martin L Haines

New London, Conn., adopted a redevelopment plan in 2000 to permit the construction of a hotel, conference center, office space and costly living accommodations on properties currently owned by private parties, including homeowners. The properties are not in a blighted area. The municipality intends to condemn the properties and lease them to a private development company that will arrange for the construction of the proposed facilities.

Those new facilities will generate much more tax revenue than the properties now do. The project will provide jobs and will accommodate employees of a recently constructed Pfizer pharmaceutical plant located nearby, the arrival of which promoted the condemnation plan.

Not everyone is happy with the proposal. Several dwellings are affected, some occupied by families who have lived in them for many years. They oppose the condemnation of their homes; they want to stay where they are. Their opposition has generated a lawsuit to prevent the city from proceeding with its redevelopment plan. The suit, Kelo vs. New London, was argued before the U.S. Supreme Court on Feb. 22. A decision is expected in June.

Under state and federal law, including New Jersey law, private property may be taken for "public" use provided "just compensation" is paid to the property owner. This is the power of eminent domain. New London is prepared to pay that compensation. The private property owners are not interested. They don't want money. They want to continue living in their long-time homes.

They argue that the city's proposed condemnation, since it is designed only to obtain economic benefits, is not a "public" use. They have sued to stop the project.

The Connecticut Supreme Court's decision was against them. It held that the New London taking was permissible, that it represented a public use of the property. It said:

"We conclude that economic development projects . . . that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization satisfy the public use clauses of the state and federal constitutions."

Takings for purely economic reasons are not unusual. According to the Institute for Justice, which represents the New London property owners, its research has discovered more than 10,000 such takings nationwide.

The issue has never been decided by the U.S. Supreme Court. The Michigan Supreme Court addressed it more than 20 years ago. It held that Detroit's taking of property, and its sale to General Motors (at a discount) for the construction of a new plant, was a public taking.

The power to condemn private property purely for economic reasons was challenged in Michigan two decades later. This time, its Supreme Court held that a proposed taking by Wayne County was unconstitutional. The court said that its earlier decision was a "radical departure from fundamental constitutional principles." This 2004 ruling may help the New London homeowners in their case before the U.S. Supreme Court.

Obviously, takings for solely economic reasons, like the one in New London, pit the rich against the poor. Such takings are attractive to developers, construction companies and business enterprises of all kinds. Large profits from the supposed improvement of the properties involved are realistic expectations.

This conflict of public vs. private interests is not easily decided. One's sympathies are with the homeowners, but the public interest is considerable.

If the court honors that interest, the homeowners will be heavily penalized. They will suffer permanent and unwelcome changes. They may have a long wait to receive their compensation. Condemnation proceedings, often subject to problems of compensation and other issues, can take time. The money the homeowners receive for their homes may be taxable, at least in part. They will have difficulty, especially in today's real estate market, in finding comparable replacement housing. Worst of all, they will lose their long-cherished homes, their familiar neighborhoods and their familiar friends.

New London's insistence that the taking is for a public use raises its own questions. Redevelopment success is a guess, not a certainty. The project may fail. How is that concern to be considered? How is a municipality's judgment to be weighed?

Reasonableness is a test we use in other areas of the law. It would be appropriate to use it here.

Asbury Park Press: www.app.com

Martin L. Haines, of Moorestown NJ, is a retired Superior Court judge.


Judge voids Cramer Hill vote: Camden (NJ) Courier-Post, 5/4/05

Council has 90 days to reapprove project

By Luis Puga

A Superior Court judge on Tuesday ruled city residents were not properly informed of a public hearing on the $1.3 billion Cramer Hill redevelopment project last February and ordered the City Council to try - for a third time - to adopt the plan.

Judge Francis Orlando gave the city 90 days to approve the ordinance.

Orlando also upheld a restraining order barring the city from engaging in eminent domain - its right to take private property for a public purpose - but said people could still sell their property to the city voluntarily.

Richard Ochab, a spokesman for Cherokee Camden, the developer of the project, said the delay was unfortunate.

"But following the appropriate procedures and process is very important to this redevelopment project," he said, noting the company is committed to continuing the project.

Orlando's decision came during a hearing on pretrial motions in a lawsuit involving several Cramer Hill property owners opposed to the project.

The project has been the subject of at least two other procedural missteps by the City Council in the past - first in June 2004 when two council members who lived in the neighborhood voted on the project, and then in February, when the council did not give proper public notice to residents about the public hearing.

"What are we doing here if there is no plan," argued Fred Levin, an attorney representing Cramer Hill-based Riverfront Recycling, slated for acquisition. He asked Orlando to void the entire plan.

"The city was not trying to act in secrecy," Orlando noted. "They made a misstep."

Elesha Johnson, a staff member at the city clerk's office, told Orlando she faxed notice of the public hearing in February to reporters for the Courier-Post and the Philadelphia Inquirer 47 hours before the meeting. Orlando ruled that state law strictly requires 48-hour notice.

Orlando declined to rule on three alleged conflicts of interests that have been raised by plaintiffs. They include allegations that council President Angel Fuentes owns property in the neighborhood and Councilman Israel Nieves rents property in the neighborhood. Both could receive relocation assistance from the city under the plan.

Also, Councilwoman Dana Redd is chairwoman of Camden's Housing Authority, which operates Ablett Village, a complex that would be razed under the plan.

All three voted for the plan's first adoption in June 2004. Fuentes and Nieves did leave the room when the council readopted the plan in February.

The Courier-Post: www.courierpostonline.com

Parkway proposal is slap at Slab: Rocky Mountain News (Denver CO), 5/5/05

Plains residents target developer

By Kevin Flynn

What's good for the goose is good for the gander, or in this case the developer.

Two plains residents whose homes are in the Super Slab toll road corridor have filed papers for a toll road of their own.

No surprise, their Castle Rock Alternative Parkway, or CRAP, plows right through Super Slab developer Ray Wells' living room off the third fairway of the Plum Creek Golf and Country Club.

"My car-pool buddy and I came up with it on the ride in to work," said David Reed, of Elizabeth.

He figures the name of his road will allow him to post signs near Wells' house saying, "Watch out for CRAP coming!"

Folks along the 210-mile corridor between Pueblo and Fort Collins that Wells has staked out for his high-speed toll road and railway corridor have been hopping mad over the private plans that could result in condemning their properties.

Under Colorado law, a private company that plans to build a toll road can have the power to condemn after laying claim to a corridor. Wells did that 20 years ago and has been working on his plans since then.

"It's such a joke, this law," Reed said. "It cost me only $50 to get condemnation power."

Wells' need for legislation this year to aid his project led to an explosion of awareness among plains communities that had never heard of Super Slab.

"Ray Wells has created a lot of informed citizens in eastern Colorado," Reed said. "We don't want to be caught by surprise anymore."

Reed, a software programmer in the Denver Tech Center, runs a Web site called NoSuperSlab.org opposing Wells' plan.

He and car-pool buddy John Lamprech, of Kiowa, filed a corporation with the Colorado secretary of state last month staking their claim to a 600-foot-wide pathway from Interstate 25's mile marker 180 southeast to Colorado 83's mile marker 34.

Wells' house, his neighbors and a good portion of the fairways of the Plum Creek golf course fall within it.

"I'm ready to sell," an unflappable Wells said when told his house was in the path of CRAP. "All I need is an offer."

On Wednesday, state Sen. Tom Wiens and another Super Slab opponent, Marsha Looper, filed a proposed amendment with the legislative council that would eliminate private toll road companies' power of condemnation.

Wiens has a bill pending in the Senate to do that, but Gov. Bill Owens said he would consider vetoing it if it passes.

Rocky Mountain News: www.rockymountainnews.com


Queach Road property battle sparks special RTM meeting: Branford (CT) Review-News, 5/4/05

By John Rook

The battle over the controversial Queach Road property has spilled into the political arena as town Democratic officials have called for a special meeting of the [Branford CT] Representative Town Meeting [RTM] to discuss the issue.

Democratic Town Chairman Michael Milici last week called on RTM moderator Raymond Dunbar to include an item on the meeting's next agenda to establish a special meeting where all RTM members would have a chance to voice their opinions on the possible acquisition of the property.

"We need to act on this right away," said Milici. "We need a special meeting devoted to this one issue to examine all possibilities and alternatives to place this property in the control of the Town of Branford."

At issue is 160 acres off Queach Road currently owned by developer Alex Vigliotti. The town is interested in purchasing the parcel for open space, but has run into problems revolving around the asking price of the property.

According to town officials, the property has been assessed, for tax purposes, at approximately $900,000 and the town has offered $1 million to purchase the land. That, according to officials, is an adequate offer for the parcel.

Vigliotti, however, has evidently refused that original offer. According to officials, depending on whether all of the property were sold for open space, or only a portion of it, Vigliotti has been asking for anywhere between $4 million and $20 million for the property. Any property not sold for open space would be subject to extensive development, officials stated.

Those asking prices have forced the town to examine possibly acquiring the property via eminent domain for public purposes.

But town Democrats have criticized the handling of the property purchase by First Selectman John Opie and his administration, suggesting that Opie has "dragged (his) feet" on the issue.

"The town should have negotiated with (the former owner) in title, then the town would have gotten Vigliotti's price for the land of $1 million," said Cheryl Morris, a candidate for the Democratic nomination for First Selectman. "Instead, we are forced into the current position of paying a more exorbitant amount of money or facing potential litigation for exercising the right of eminent domain. Town Hall was asleep at the switch on this issue."

Milici and other Democratic officials are hopeful that a full meeting of the RTM could open the door for other options in securing the property.

Opie on Tuesday responded to the allegations that he, and his administration, had dragged its feet on the issue, stating that there was, in his mind, no time in which the town could have purchased the land.

According to Opie, he contacted the former owners of the land, Queach Corp., to see about possibly purchasing the land late last year and was told, at that time, that a tentative agreement with Vigliotti had already been reached. Before that time, according to Opie, no one was sure as to the exact value of the property.

Queach Corp. sold their portion of the land to Vigliotti in December of last year.
Opie stated that he immediately began discussing the issue with Vigliotti but came to the conclusion over the last few weeks that a negotiated price would be hard to come by.

"We have been going back and forth for a few months now," said Opie. As far as a possible agreement in the future, Opie stated that, while he remained optimistic something could be negotiated, there was no evidence that would happen.

"The important factor is that the property is open for sale for some price," said Opie. "Obviously the Board of Finance is aware that the property is worth $1 million so if you walked in and said that you wanted to pay $4 million for it, they would probably balk at that notion. However, could something be worked out, would the BOF be willing to pay a little more if it avoided going down the road of eminent domain? That is a possibility."

Eminent domain, described by Opie as the town's last resort, would allow the town to take the land for the price it felt was reasonable. The act would most certainly prompt legal action on the part of Vigliotti.

Because of that Opie stated that he wanted to give Vigliotti every chance to negotiate a deal.

"If things keep going as they are, I could see us filing our paper work (for eminent domain) by July 1," said Opie. "I would like to give Mr. Vigliotti at least a couple of weeks to come in and chat before that happened, however."

Branford Review-News: www.zwire.com

Funding Eminent Domain: (Yolo County CA) Daily Democrat, 5/4/05

County gambling with tribal money

By Jim Nielsen

How would you like the money you lost gambling to be gambled by elected officials in a manner that might short-change schools, roads, police and fire protection and even hit you in the pocketbook again through taxes or fees?

Public records disclose that Yolo County supervisors are considering using tribal gaming mitigation money to pay for the eminent domain acquisition of the Conaway Ranch. It appears other financing options such as bank loans and Proposition 50 funds have not panned out and self-imposed deadlines to have financing in place are not attainable. The county appears desperate to find money for land speculation.

Documents titled "Project Financing and Financial Issues" contain entries for the Pomona Fund and the Tribal Fund as sources of financing for the Conaway Ranch. The Pomona Fund accrues around $1 million a year and the Tribal Fund accrues around $1.2 million a year, increasing to $2 million in four years.

These funds are negotiated between local governments and sovereign tribes for the purpose of helping with the financial and other impacts of locating casinos in counties and cities. Tribal funds are used to pay for public needs such as schools, roads, public protection and environmental impacts.

Under the Yolo County agreement with the Rumsey Band of Wintun Indians the county received $3.5 million of tribal mitigation funds in 2004-05. Forty percent of the funds are directed into the general fund and 60 percent to specific programs or projects.

A tribal advisory committee makes recommendations to the county as to the distribution of the general fund allocation. Funds are recommended for things like a sheriff's patrol in the Capay Valley, community enhancement projects, and for non-county entities and county departments to pay for the impact of having a casino located here. I would be surprised if the advisory committee found that county land speculation on the Conaway Ranch is a worthy expenditure.

A total of $2.2 million annually (increasing to $4.2 million by the fourth year) is proposed as a source of Conaway financing. Public documents report a total of "ongoing annual payments" of tribal funds of up to $1.6 million to the general fund by 2005-06 and up to $2.4 million to specific projects or programs. So much for the county promise that no general funds would be used for the Conaway Ranch. If these funds are spent to buy the Conaway Ranch they won't go to any public projects or programs.

It is no stretch to conclude the county may attempt a re-negotiation with the Rumsey Tribe to provide that these annual distributions are paid lump sum, up front giving the county cash for the cost of the Conaway. It is also interesting that more recent documents indicate a Conaway Ranch purchase price of $80 million - up considerably from an earlier projection.

It is alarming that the county would have the temerity to consider such a significant general fund diversion while projecting annual budget shortfalls that range from $10.8 million to $15 million from 2003-2004 through 2007-2008. Last week the board voted to oppose a state special election. Board Chairwoman Helen Thomson bemoaned the $300,000 cost to the county for a special election observing, "$300,000 is nothing to sniff at." Guess not, but then why has the county expended considerably more than that on consultants and attorneys attempting to take the Conaway Ranch off the tax rolls while exposing the county to an $80 million liability and legal risks?

One budget document discusses strategies to deal with the county's budget shortfall. Savings are suggested from salaries and benefits, services and supplies, contracted services, fixed assets and capital improvements. County employees have already endured a furlough. The counties feeble rationale for acquiring the Conaway Ranch cannot justify ignoring more critical needs for tribal funds.

The proposed tribal fund raid was disclosed only through a pubic records request ­ not in open meetings. For more than a year probably the most significant financial obligation in the history of the county has been veiled in secrecy. There has been little opportunity for the public to be a part of Board meetings and the only other venue, the Joint Powers Authority meetings, were discontinued when the public started showing up.

Based on conversations with many people over time I question whether even the supervisors have been availed all information about this Conaway takeover. This is not the way this county has historically been run and it is not in the best interests of the people.

Eighty million dollars is a lot of money to obligate for speculation. It is increasingly clear that there are real risks, direct threats to services the county provides, a trifling with money not intended for land purchases all at a time the county is in fiscal trouble.

Daily Democrat: www.dailydemocrat.com


Council Had Deaf Ears Over Eminent Domain: (New London CT) Day, 5/3/05

Letter to the Editor

By Heather Grigsby, Uncasville

I read with amazement and confusion the comment by New London City Councilor Beth Sabilia in the article titled “NL, Norwich grappling with budget problems,” published April 30.

Ms. Sabilia said, “Nobody anticipated we would be where we are in terms of Fort Trumbull.” What did the city think would happen when the Institute for Justice took the case of seven homeowners in 2000 and pledged it would fight eminent domain all the way to the U.S. Supreme Court?

Did no one from the city even look into the Institute for Justice and see this was not some fly-by-night threat and that it meant business?

The City Council heard from many people at each council meeting about ways to compromise and get on with the project. These pleas fell on deaf ears except for Lloyd Beachy, who advised that “these people” will not go away.

So, tell me, after all these years, would it have been so bad to save the houses, give some a facelift and build everything the Municipal Development Plan required? After all, there was plenty of room to have it all.

The Day: www.theday.com