Hospital district assailed: Los Angeles (CA) Daily News, 5/12/05

Palmdale's mayor criticizes possible move to stop project

By Jim Skeen

[Palmdale CA] Mayor Jim Ledford said Antelope Valley Hospital officials can forget about getting a bond measure passed after the revelation they are considering the use of eminent domain to stop a competing private hospital.

Palmdale residents won't be willing to tax themselves to build a Palmdale hospital for a government agency that blocks a private effort to provide medical care in Palmdale, Ledford said Thursday.

"The hospital district has shot themselves in the foot on this bond," Ledford said. "Why would anybody approve a bond for this type of action?"

Pennsylvania-based Universal Health Systems, operator of Lancaster Community Hospital nearly four years ago reached an agreement for city help in building a hospital in west Palmdale, near 10th Street West and Palmdale Boulevard.

Since then, Antelope Valley Hospital officials have expressed fear the new private hospital would draw off patients with insurance coverage, leaving Antelope Valley Hospital with a higher proportion of indigent patients unable to pay for their care.

"What we're seeing is protection of their market," Ledford said of the eminent domain idea. "How long can that game go on?"

Antelope Valley Hospital officials said Thursday that no decision has been made to pursue eminent domain action on the west Palmdale hospital site or to go for a bond.

"The bond is not a bond yet. We are just right now trying to educate the community on the health care needs, that there are not enough emergency and critical care beds," hospital spokeswoman Jackie Weder said.

As for Ledford's claim that the hospital was trying to protect its market, Weder said the hospital is "protecting the community."

"Universal Health Services has been promising a new hospital to Palmdale for some years. The Antelope Valley Health Care District wants to see that the community gets what they deserve and what they need, more emergency and critical care beds," Weder said. "We really want the community to get what they deserve. We want a Palmdale hospital to become a reality."

Antelope Valley Hospital officials have paid for a telephone survey among potential voters to gauge support for a bond to finance renovation of the Lancaster hospital and to build a new hospital in Palmdale. Hospital officials spoke Wednesday at an Antelope Valley Chambers of Commerce luncheon about local health care needs.

A glossy Antelope Valley Hospital mailer received this week by Palmdale voters doesn't mention a bond measure, but says on its cover: "Want a new hospital? Your input is needed: Make a new hospital in Palmdale a reality."

Universal Health Services is on track to open its Palmdale hospital in 18 months, said Bob Trautman, chief executive officer for Lancaster Community Hospital. The first in a series of required state approvals for the project is expected this week, which will allow construction work to start.

On Monday, the City Council approved a $370,000 contract for grading for street work and utilities in support of the hospital project.

One of the first facilities to emerge for the project will be a medical office building that will adjoin the hospital.

"If all goes well, we will have this building occupied next year," Trautman said Thursday.

Trautman declined to comment on the eminent domain concept, saying that UHS will focus on the positive things it is bringing to the community. UHS plans to run advertisements in local news media showcasing its Antelope Valley efforts.

City officials said they have been seeking partners to open a Palmdale hospital for years and that the Antelope Valley Hospital District has either been unwilling or unable to participate.

Even if the hospital district were able to get a bond passed, there are no guarantees when or even whether a Palmdale hospital would be built, Ledford said. State approval of hospital designs can take years.

Palmdale officials complain that the hospital district, which is a government entity that collects no tax dollars but is governed by an elected board, has a history of underserving their city.

City officials said the hospital district is in default on an agreement by which the city contributed $1 million in street work and other help toward opening a clinic on Palmdale Boulevard and 40th Street East.

The agreement called for the clinic to provide 24-hour service there and expedited ambulance service. Neither of those conditions are being met, said Michael Adams, Palmdale's housing manager.

Los Angeles Daily News: www.dailynews.com


Eminent Domain is a hostile legal act: Swampscott (MA) Reporter, 5/12/05

Letter to the Editor

By David Dishman

I have read Warrant Article 25 in which the Rail Trail Implementation Committee (via a 2/3 Town Meeting vote) is seeking to take the entire abandoned Marblehead-Swampscott rail corridor by an eminent domain "land taking."

I wish to comment here from the legal perspective. To begin with, National Grid does not own the entire corridor in fee simple, and they have stated so in public at a selectmen's meeting on Jan 18, 2005. The fact is that for a significant length of the right of way, the railroad (and then the utility) only had an easement for layout of the track. Thus, if Town Meeting passes this measure, the town must seek to take land not only from National Grid, but also from private property owners, who have right to title.

Please make no mistake about this ...despite what the editor of this paper claims, the hostile taking of land involves eminent domain process. Eminent domain is a hostile legal act and must, by definition, involve an expenditure of significant legal resources and time. Some of these activities are outlined below.
  1. Town counsel (and their legal team) must research the situation and understand the complicated issues of land conveyance that dates back to antiquity; this involves researching all affected properties and their titles (at the Salem Registry and perhaps at Land Court and National Archives) back to the late 1800s (when the railroad was built across the old estates).
  2. Two professional appraisals of the value of each of these parcels of land must be made and submitted for study by attorneys representing the abutters with right to title and National Grid; these appraisals must be fair and reasonable and must take into account the true value of these properties. Any attempt to undervalue these parcels of land, as has been suggested by some proponents, would be subject to challenge in court.
  3. All 150+ properties (from Burrill Street to Bellevue Ave) must be surveyed professionally by a vendor approved by the town to delineate the exact location of a neighbor's property as it abuts the right of way.
  4. Finally, and most importantly, the town taxpayers, not the Committee and particularly, not its leadership, must bear the cost of litigation and any awarded damages. Remember, National Grid is on the record as saying that if the town comes after this land by eminent domain, they will protect their assets and sue for damages.

Let's not be naive here... this will be a nasty, risky and expensive process. Swampscott needs to prioritize any increase in its already significant tax burdens. I believe our citizens would rather see the essential subjects of art, music and gym remain in our schools, rather than support a few lawyers who would profit from this endeavor.

Swampscott Reporter: www2.townonline.com/swampscott

Eminent domain is expensive and nasty: Swampscott (MA) Reporter, 5/12/05

Letter to the Editor

By Michael Gibeault

I was taken aback after reading your editor's notes in last week's Swampscott Reporter regarding one letter from me and one other regarding Warrant Article 25.

No matter how much the Implementation Committee tries to embellish the wording of the article, whether now or at Town Meeting, it remains eminent domain spelled out in black and white with its intent clear for all to read for themselves.

Eminent domain is an expensive and nasty proposition. The Implementation Committee does not want voters to realize this, but their Article will eventually also involve taking land from private residents.

If the town is capable of actually going through with this, then all Swampscott residents should beware. Why would the Town stop here? There are many great ideas out there that could involve usage of land that is not currently owned by the town.

For example, why should only the people who own beachfront property be allowed to enjoy the coastline? Shouldn't all residents, tourists and the general public be able to enjoy it? Why not create a recreational trail along the shore? We could "acquire by eminent domain a recreational easement." The town could also qualify for a number of coastal grants available for such projects. I think you get the idea.

This is just another case in the now rampant misuse and abuse of eminent domain.

Swampscott Reporter: www2.townonline.com/swampscott


Home sweet home: Chester (PA) Daily Local, 5/11/05

By Adam Cirucci

Dick Saha’s home is his again.
The city [of Coatsville PA] never took possession of his family’s horse farm, but at times during the six-year eminent domain battle he said it sure felt that way.

"There are certain fields that we didn’t cut because we didn’t know what would happen," Saha, 75, said Tuesday. "Now, until we die or give it to our children, it’s ours. There are no fences, no boundaries, other than what is on the map."

Saha and Coatesville City Council officially put an end Monday to the land dispute that for years hung over the city’s bold redevelopment plans like a dark cloud.

"It’s a relief. There are no two ways about it," he said of the settlement. "It’s a chance for the city to move on and we’re just ready to go on with our lives."

Under the agreement, which council voted unanimously to adopt at Monday’s meeting, the city and Dick and Nancy Saha agreed to terminate all litigation between them, including the revocation of the eminent domain case.

Excluded from the agreement is a defamation suit filed by the Sahas against the city in May 2003 over a newspaper advertisement. That case is now being defended by the city’s insurance carrier.

According to the agreement, Saha will sell the city five acres of land along an abandoned railroad bed. The price was not disclosed, but Saha said it was less than the estimated $300,000 he spent on legal fees.

The city is expected to develop a series of nature trails on that land.

The agreement also calls for the Sahas to give the city an option to acquire up to an additional 32 acres if they ever decide to sell more of their 48-acre property.

The Sahas first learned of Coatesville’s plans for their land in April 1999, when city council approved condemnation of seven properties, some of which were located in Valley and West Caln, to make way for a municipal golf course.

Since then, the Sahas have been fighting the city in the court of law and public opinion, while periodically attempting to negotiate a settlement.

Saha said that last month’s departure of City Manager Paul G. Janssen Jr. was a major breakthrough in resolving the dispute.

He said Janssen’s second-in-command, now acting City Manager E. Jean Krack, was "easier to work with."

Janssen, who had championed the proposed 18-hole Iron Hawk Golf Course, resigned suddenly April 6 to take a job as municipal manager in Norristown.

Reached by telephone Tuesday, Janssen said that he was pleased to hear of the settlement and hoped it would bring some peace to Coatesville’s often turbulent political atmosphere.

"I’m very happy. I had said that I hoped that my stepping aside would make this possible," he said.

Janssen also expressed confidence in Krack’s abilities as city manager.

"Jean is doing a great job. He is the guy that can get it done and that is one of the reasons why I left when I did," he said.

City officials originally maintained that the proposed Iron Hawk Golf Course was essential to the success of the $60 million regional recreation center, the cornerstone of an ambitious redevelopment plan estimated to bring $700 million in private investment and thousands of jobs into the city in the next decade.

Councilman David DeSimone, who supported the condemnation and golf course project, said Tuesday that the settlement would bring stability to the city and its revitalization efforts.

"It was time to make sure that development happens," he said. "My concern was that there were certain factions out there that were willing to jeopardize and sacrifice the entire city’s revitalization for this."

DeSimone said he felt that everyone in Coatesville could breathe a little easier on Tuesday morning.

Saha has experienced the same uncertainty over the past six years.

"You don’t know how or when the court rulings were going to come down," he said. "You might wake up the next day and see bulldozers out there."

Councilman Edward Simpson,a longtime Saha supporter, said Krack was instrumental in negotiating the agreement.

"You could tell that (with Janssen) there was this animosity there," he said. "When he left, it opened up the door. Jean Krack took the initiative from day one. He extended an olive branch to Dick (Saha)."

Simpson pointed out that it took Krack about a month to accomplish what Janssen couldn’t do in six years.

Krack agreed that Janssen’s departure gave him an opportunity to re-establish an open dialogue with the Sahas.

"In any situation like this, you always carry a certain amount of baggage — whether you attend to it or not," he said. "He (Saha) worked with me. He negotiated and I respect that."

Krack attributed the settlement to simply "the art of negotiation and compromise."

"There is no winner on either side, we were finding some middle ground," he said. "People sat down and talked, but we talked about different things and that is what made the difference."

Krack also emphasized Tuesday that the settlement does not necessarily amount to a nail in the coffin for the golf course project.

He pointed out that if Saha ever chooses to sell his property, the city can obtain the acreage needed for the project.

Simpson said that while council has yet to take any official action on the project, at this point, it is obvious the 18-hole golf course is indefinitely on hold.

The regional recreation center, however, is still part of the big picture of the city’s redevelopment, he said.

But one thing is clear, as long as Saha retains his property, the city simply will not have the necessary space for the propsed golf course project.

West Chester-based developer Randy White, who plans to build a five-story apartment building on East Lincoln Highway, said he was glad to hear of the settlement.

"I’m very happy that the city has come to an agreement to put this behind them," he said. "I think it’s going to help the project move ahead at full steam."

White, of TR White Inc., said the eminent domain dispute had the potential to be a major obstacle to city’s redevelopment.

Developer Don Pulver, who plans to build a hotel and conference center at the intersection of Route 82 and the Route 30 Bypass, said he too, was pleased by news of the agreement.

"It’s great to get rid of the controversy," he said. "Now the main thing is to keep it (redevelopment) moving along."

And Saha could not agree more.

He said he was fighting eminent domain abuse, not the city’s redevelopment.

In total, the city spent about $8 million on land acquisition and legal fees associated with the golf course and regional recreation center, but Saha said his family has invested the most.

"When we started out, our lawyers gave us a 5 percent chance of winning. They didn’t think we’d last this long," he said. "But I just hope that it gives hope to people who find themselves in the same position. Not false hope, but some hope."

Chester Daily Local: www.dailylocal.com

Park South waits, worries: Albany (NY) Times-Union, 5/11/05

Fearing eminent domain, residents are hesitant to improve their properties

By Brian Nearing

Dennis Bagley still doesn't have an answer to the question foremost in his mind. Whose homes and businesses in the troubled Park South neighborhood may be demolished under one of the city's most ambitious rebuilding plans since the Empire State Plaza was created in the 1960s.

Bagley, 37, invested more than $70,000 to renovate 94 Morris St., a two-story home he bought two years ago after it was damaged during a fire next door. He's proud of his bright and airy apartment, with skylights, a new kitchen and polished marble shower. He rents two apartments on the first floor to help cover his mortgage.

He was going to replace the building's ugly and faded facade, which still includes the name of a long-gone plumbing supply shop barely visible through a thin coat of whitewash. But he decided against spending the $15,000 it would take. He's going to wait.

"It doesn't make any sense for me to do that before I know what's going on," said Bagley.

Many people like Bagley are waiting to see what the city is going to do in Park South, a nine-block, 26-acre swath between Washington Park and Albany Medical Center that has sagged in recent years under the growing weight of poverty, crime and neglectful landlords.

Uncertainty has hovered over the neighborhood since the city announced nearly two years ago that it was hiring a Baltimore consultant to recommend a rebuilding plan to revitalize Park South.

In March, the city declared the area blighted under state law, which gives the city the power of eminent domain. That means the city can seize private property for public use — or even for private development, if it benefits the public.

Sometime this summer, the city will put either Boston-based Winn Development or a local team headed by BBL Development Group in charge of the multimillion-dollar project. A third group also made an offer but was rejected. That group included State Street Partners LLC, XO Projects and the Albany engineering firm of Hershberg & Hershberg, city Development and Planning Commissioner Lori Harris said.

While the city insists eminent domain will only be used as a last resort, the developers have tiptoed around the issue.

Creation of a mix of new offices, shops, apartments and homes, including housing for up to 400 students, would be one of the largest development projects in the city. However, exact plans that will detail which buildings will stay and which will go will emerge only after the city chooses the developer. Then, it could be 18 months or more for a groundbreaking.

But longtime neighbors who have weathered years of decline fear they could lose their homes and receive little compensation in return, because property values have sagged, said Pat Kelly, coordinator of the Park South Walk and Watch. She has lived in a Dana Avenue apartment for 43 years.

"It wouldn't be fair to people who have stuck it out here for so long," Kelly said. She said the city needs to help residents by tougher enforcement of laws and building codes. "A lot of people want to stay here."

Some residents are looking to a Washington, D.C.-based think tank, Castle Coalition, to assist in their fight.

The not-for-profit group offers legal help and other support to property owners threatened with eminent domain. According to an April 2003 report by the coalition, there were nearly 10,300 cases of eminent domain for private development filed or threatened in 41 states between 1998 and 2002.

"It's an insidious alliance between tax-hungry municipalities and land-hungry developers," said Steven Anderson, the group's coordinator. Eminent domain laws are so vague that they can be applied to any neighborhood, he said.

Peter Rinne, who has lived on Morris Street for decades, said while things can be bad in the neighborhood, they aren't as bleak as the city maintains. He accused the city and the media of orchestrating a "propaganda campaign" at the expense of the neighborhood.

If the city decides to take property, it should give former owners a chance to buy back in, based on how well they've taken care of their property, Rinne said.

Lou Hacker owns 20 apartment units on Morris Street. Since buying the properties starting in 1998, he's invested tens of thousands of dollars in improvements, like new floors and appliances, and worries that he'll take a bath if the city takes his property.

"I'm almost 60 years old. This is my retirement," said Hacker, a former regional sales manager for a Michigan-based publications company. "I've already had tenants decide against taking apartments after they hear where it is. They say, 'That's the place they're going to tear down.'"

He said uncertainty causes many owners to delay improvements. "I should repair the stonework in front of my place over there," he said, pointing to units at 99 and 101 Morris St. "But that work could cost me thousands. Is the city going to give me that if they end up wanting the property, just because it has nice stonework?"

Winn Development Project Director Gilbert Winn said his company, which has developed more than $1.5 billion worth of projects across the country, has never been involved with eminent domain before.

"We don't want to upset the community," he said. "Before we start, we spend a lot of time meeting with residents, getting them on our team."

He said housing for senior citizens is a possibility, but the firm has not begun mapping the Park South area, a process that would identify the key areas for rebuilding.

"Right now, we have no possible way to tell what will be there at the end of the day," Winn said last week at a City Hall meeting with several Common Council members and about a dozen Park South residents and property owners.

The president of BBL Development Group, Peter Cornell, told the meeting, "There are times when eminent domain could have to be embraced," although it is too early to say if that will happen in Park South.

Cornell added that condemnation might be needed in cases of "landlords with unsavory tenants in buildings with ridiculous price tags."

"A scattered site approach will not lead to successful revitalization," said Dan Sitler of Saratoga Associates, which with BBL is teaming up with Conifer Realty LLC, Einhorn Yaffee Prescott and Columbia Development Cos. "We need to aggregate parcels and chunks of land. A house here, a house there, will not be noticed."

Andrew Harvey, president of the Park South Neighborhood Association, said he preferred Winn's philosophy. "It's more of a scalpel approach," he said.

Common Council President Pro Tempore Richard Conti, who heads a council committee that will recommend a developer, urged people not to prejudge the plan. "I don't think this is going to be as big a project as people are afraid of," he said.

The Common Council opened the possibility of eminent domain in March, when it named Park South as an urban renewal area under state laws that target blight.

Meanwhile, a real estate bubble may be forming in Park South as sellers and buyers are trying to benefit before the project starts.

Last year, the average selling price for real estate increased more than 40 percent from the previous year to more than $70,000, according to figures compiled from the state Office of Real Property Services. Compare that to 2003, when the average sale prices were up just 3 percent.

Albany Times-Union: http://timesunion.com


Eminent Domain Battle: New York Newsday, 5/8/05

When David Meets Goliath

By John Riley

When it all started in 1997, Claire Gaudiani was the president of Connecticut College, a specialist in French literature and philanthropy who had become a flamboyant and fabulously successful fund-raiser at the pricey school on a hill overlooking this economically depressed old whaling port.

She saw it as her social obligation to spearhead an ambitious redevelopment plan - a Pfizer pharmaceutical headquarters anchoring a waterfront hotel, upscale new housing, and retail and office space - that would revitalize the city's tax base and give hope to those less fortunate.

"It was a very idealistic vision," said Gaudiani, now a lecturer at New York University, in a recent interview.

But Susette Kelo was in the way. She had just bought an inexpensive little pink Victorian with views of Long Island Sound and the Thames River in Fort Trumbull, the peninsular low-income neighborhood with a smelly sewage plant in its midst that was the target of Gaudiani's idealistic raze-and-rebuild vision.

Kelo was no college president, just a nurse, a daughter of two factory workers who had grown up in the neighborhood. And her vision was that she, her disabled husband and her kids would continue to live where they wanted to live.

"Nobody ever pushed my mom around," Kelo said. "Nobody ever pushed my grandmother around. It's a long line. I've never liked being told what to do."

Eight years later, in the shadow of a gleaming new Pfizer research facility, Kelo's pink Victorian and the houses of six neighbors are still standing with defiant "Not For Sale" signs in the windows amid the rubble of an otherwise demolished neighborhood. And the clash between one woman's stalled civic vision and another's property rights has become the focus of a U.S. Supreme Court case that could change the face of American land use law and alter development projects from Brooklynto California. The issue: The Constitution allows government to seize private property for "public use" as long as it pays "just compensation," a power called "eminent domain" that has traditionally been used to clear the way for such projects as public roads, prisons and reservoirs. But in New London and many other cities and states, the power also has been used to take property and flip it to private, for-profit parties - companies with jobs, or developers of projects for the affluent that will enhance the tax base and thereby assist the public goal of economic development.

Nine states currently prohibit such takings under their state laws. But in Connecticut, New York and elsewhere, the approach has been used prolifically. From 1998 to 2002, according to a Washington institute helping the New London homeowners, there were more than 3,700 takings of homes and small businesses nationwide for the benefit of parties ranging from auto dealers, raceways and condominium developers to The New York Times, Costco and Nissan Motor Co.

Not a public use
Until now, most lawyers thought the Supreme Court had assented to that extension of the condemnation power. But Kelo and her fellow holdouts have challenged it, arguing that taking their homes to help attract Pfizer and create an upgraded, privately developed, tax-rich neighborhood was not a "public use." And the court's decision to hear the case, with a ruling expected in June, indicates at least some justices may be interested in reining in the power.

"There is no limit on eminent domain if that is permitted," said Scott Bullock, of the Institute for Justice, the Washington public-interest law firm representing the Fort Trumbull holdouts. "Every business produces more tax revenue than your home. Every larger business produces more tax revenue than a smaller business."

Indeed, in Supreme Court arguments last month, lawyers for New London were unabashed in telling the court that, hypothetically, they believed a city could condemn a Motel 6 and give it to Ritz-Carlton to increase tax revenues. The city and a panoply of supporters - including New York State, New York City, and backers of developer Bruce Ratner's proposed basketball arena in Brooklyn - warned the court in briefs that if it restricts the power, cranky property owners would be able to stall projects such as the original World Trade Center, and the redevelopment of Times Square and Baltimore's Inner Harbor.

"It would be a serious realignment of the way city and county governments do their economic development," said Edward O'Connell, the lawyer for New London's development authority. "A city like New London would not be able to rejuvenate itself despite its best efforts."

New London's project was designed as a lifeline for a city that for decades had suffered from shrinking population, high unemployment and a declining school system, and lost another 1,400 jobs in 1996 when the Naval Undersea Warfare Center in Fort Trumbull closed. Pfizer, which had run out of expansion space in Groton across the river, seemed like a golden opportunity.

The Pfizer Global Research headquarters, built on a city-owned site adjoining Fort Trumbull that was once the site of a linoleum plant, was opened in 2001, and has already boosted New London with 2,000 new jobs. But the hotel, upscale housing, offices and retail shops once imagined by the company and civic leaders remain a dream. The redevelopment authority controls more than 95 percent of Fort Trumbull's 90 acres and 100 of its 115 lots, but have accomplished little aside from demolition.

'Poster child' for effort
Gaudiani still defends her vision. "I understand the complaints, but I was looking at a city with no more developable land, no industry, and 75 percent of the kids on public assistance," she said. "It's a problem for me to keep raising millions of dollars for a swanky liberal arts college while doing nothing for all these low-income kids. There's a really deep moral issue here. Do you just say, 'Who cares if these kids get a break?' "

As residents fought to save their homes, one of Gaudiani's published comments - "Anything that's working in our great nation is working because somebody left skin on the sidewalk" - became a symbol of the alleged callousness of the effort. That, combined with a high-voltage personality and her marriage to a Pfizer executive, made her what she called "the poster child for the monster."

But three years after leaving New London, Gaudiani still makes the same point in different words. "There are circumstances in which the one gives to the many," she says. "E Pluribus Unum. We always want to protect the one. But the expectations for the one have to be looked at in terms of the many lives that will be helped."

A historic view
Kelo and her fellow holdouts in Fort Trumbull don't buy that logic. "They act like you should get out for the greater good of the community," said Bill von Winkle, who owns several rental properties that he bought with the profits from a lunch deli he ran for workers at the now-departed undersea warfare center. "I'm not sure why the homeowner has to do that."

They see the battle through the prism of class and history. Matt Dery, a circulation manager at New London's daily newspaper, said his family settled on their little corner lot in Fort Trumbull more than 100 years ago, when it was an enclave for new Italian immigrants. His parents, both in their 80s, live next door, and two adjoining properties are rented. They don't want money, he said, they just want to be left in peace.

Somehow, he said, government's grand civic visions always skip over the homes of millionaires, and target people of modest means as the ones who have to sacrifice for the many.

"They thought they could steamroll us because we're undereducated, lower-middle-class people," said Dery. "They looked at our view of the river and said, 'This isn't the highest and best use.' We're going to take it. . . . The only thing that protects anyone is being rich or politically well connected."

The history of the project provides at least some support for such bitterness. The smell from the sewage plant, for example, was long ignored by the city - until Pfizer came and insisted that it be fixed. The only structure in Fort Trumbull spared from condemnation was the squat, one-story Italian Dramatic Club, a hangout for local and state politicians.

And Kelo pointed to recently published remarks by lawyers for the city, acknowledging that they hope refurbished housing will attract young professionals from Pfizer to Fort Trumbull - people with "leadership qualities to remake the city."

Those comments, she said, reflect the social snobbery driving a plan that could more easily have been executed by renewing the neighborhood around the houses of those who didn't want to sell.

"They don't want us rubbing elbows with the bow-tie boys from Pfizer," she said. "It has been a class issue from the start - we're uneducated and poor, and it's OK to do that to the poor."

New York Newsday: www.nynewsday.com

Clear the Way, Fellows. The Yellow Brick Road Is Coming Through: The New York Times, 5/8/05

By Peter Applebone

In this corner we have what's certain to become the greatest thing to hit upstate since the Erie Canal: DestiNY USA, the developer Robert Congel's ever-elastic field of dreams. To be picky, three years after construction was to begin, it doesn't yet exist. Still, at the moment it promises the biggest, greenest most enviro-friendly mall and entertainment project in the galaxy and the first 21st century "technology cluster," which will be to this century what Silicon Valley was to the last one: 250,000 jobs! $65 billion in taxes created over 30 years! 100 percent fossil-fuel free! "The most visited single leisure destination on earth!"

And in this corner, we have Tim Follett of Brannock Device Company, which makes those things they use to measure your foot at the shoe store; Robert Strutz of Butch's Automotive and Transmission; Brian Osborne of Syracuse Crank and Machine; and more than 20 other businesses, most of them in low-rise buildings in Salina, near the intersection of the New York State Thruway and Interstate 81 near Syracuse.

So it may turn out Syracuse will be home to the biggest tourist draw in the world, and removing 29 little businesses through eminent domain, by which the government can forcibly buy private property for "public use," is a small price to pay for DestiNY's proposed $2.67 billion research and development park announced in February.

But when Mr. Follett, Mr. Strutz, Mr. Osborne and others met at Sposato Floor Covering on Friday, you had to wonder. The most immediate question is the fairness of uprooting or destroying businesses people have poured their souls into for the latest twist in a project that so far hasn't delivered much more than an empty moonscape.

Another question, now before the United States Supreme Court, is what constitutes "public use" anyway. It once meant highways and schools; now it's as likely to mean big-box stores and megaprojects. "Everything I and my family have worked for over the past 25 years is at stake because of the way eminent domain is being abused in this state and across the country," Mr. Osborne said. "And I'm not going to sit back and watch it all go up in smoke because the government drank this guy's Kool-Aid."

This guy is Mr. Congel, one of the richest men upstate, who has produced either a marvel of visionary planning or a Taj Mahal of hype. Mr. Congel, who has left behind some huge developments and ugly controversies in the past, unveiled plans for DestiNY USA in 2001.

It was the successor to an earlier, somewhat less grand plan to expand his existing Carousel Mall. It envisioned a project with the square footage of two Empire State Buildings, including 400 stores, 4,000 hotel rooms, a saltwater aquarium, a 65-acre park under a Biosphere-like dome and a miniature Erie Canal. Price tag: $2.2 billion, with construction to start in July 2002.

Except, despite Gov. George E. Pataki's appearance at a ceremonial groundbreaking that July, nothing has been produced other than more and bigger proposals, each one requiring more land and tax breaks.

The technology park is the newest and most urgent proposal, one so pressing Mr. Congel needs 325 acres, including the existing business property just about this instant, even though nearly all the properties are supposed to be in the project's third phase, to happen years from now.

Many brilliant lawyers are arguing over how eminent domain should play out, but any fool could look at the Salina 29 and see three things you might want before the government takes away one person's business for another's: it should be absolutely necessary for a project with a big public payoff; it should be for a project with a near certainty of happening; and uprooted businesses should get not just the value of their property, but enough to reopen elsewhere.

The Salina 29 think DestiNY flunks all three. DestiNY officials and a key local ally, Onondaga County Executive Nicholas J. Pirro, did not return calls for comment.

The truth is, upstate desperately needs big ideas and big investment, and it's likely no one will ever again come up with something that promises so much. "It's like Las Vegas," Mr. Follett said. "You're down to your last 10 bucks. Why not roll the dice and see what happens?"

But the Salina business owners also say they deserve more than being swept away with the trash, and that at the very least, DestiNY should show some results before gobbling up more land.

"Here's the difference," said Philip Jakes-Johnson, who owns Solvents and Petroleum Service. "We're here. We pay our taxes. We built companies and run them without tax breaks. So we don't have what he has. We have something better."

The New York Times: www.nytimes.com


Demolishing Sports Welfare: Reason Online, 5/05

Two court cases could mean the end of publicly funded stadiums

By Daniel McGraw

When Dallas Cowboys owner Jerry Jones asked Arlington, Texas, voters to pay for a fancy new stadium last November, he did not call the classic plays from the sports welfare handbook. He could not say that America’s Team needed a state-of-the-art facility to compete, since Texas Stadium (in the Dallas-adjacent suburb of Irving) has more luxury suites than any other in the National Football League, and the Cowboys won three Super Bowls in the 1990s. He could not say he was financially strapped, since his franchise ranks sixth in the NFL in profits and second in revenue, according to Forbes magazine. Most important, he did not use the team owners’ favorite and most effective threat—to move to a new city—because the Cowboys have always had very strong local fan support; the Dallas–Fort Worth media market is the fifth-largest in the country, and Dallas Cowboys is a powerhouse global brand name.

But Jones had three key deadlines to beat. His lease in Irving was scheduled to run out in 2009, so a new stadium deal needed to be done quickly. Electorally speaking, there was no better time to pass a tax increase than during the high-profile presidential vote of 2004; special elections usually draw low turnouts, and the anti-tax older folks show up in droves. But perhaps the most important deadline of all loomed in 2005, when the window for public financing of sports stadiums in the United States may be slammed shut by two court decisions expected to be handed down during the year.

Kelo v. New London, which the Supreme Court is scheduled to rule on by summer, could decide once and for all when or even whether governments have the right to use eminent domain to acquire private property for the benefit of private businesses. Meanwhile, Hamilton County v. Cincinnati Bengals Inc., which is being heard in federal court in Cincinnati, is challenging football’s federal anti-trust exemption, forcing all NFL teams to open their closely guarded books, and arguing that the Bengals’ demand of build-it-or-we-can’t-compete is tantamount to fraud.

Jones’ P.R. people swear the lawsuits were not on his radar screen. But sports business specialists around the country say these two cases could bring the taxpayer-financed stadium-building boom of the last 15 years to a merciful halt. For whatever reason, the Cowboys’ flamboyant owner convinced the Arlington City Council in August 2004 to rush hikes in sales, rental car, and hotel taxes onto the November 2004 ballot. He then unleashed a mass media blitz starring old Cowboys heroes such as Roger Staubach and Troy Aikman, spending more than $5 million in all—an extremely high amount for a local election, even in the high-stakes stadium game.

The tax hikes passed 55 percent to 45 percent, and the Cowboys will move into a new retractable-roof stadium in 2009. But it could be the last deal of its kind. On the same day Jones received his gift, voters in Kansas City and St. Louis rejected similar measures to fund sports facilities. Since then, Washington, D.C., has agreed to build a new stadium for the relocated Expos baseball team (now the Nationals), but its city council insisted that it be financed with a significant amount of private money. Public sentiment may finally be turning.

From 1990 to 2003 there were 66 major construction and renovation projects for professional sports stadiums and arenas in the U.S., costing $17.3 billion, according to the League of Fans, a sports welfare watchdog group founded by Ralph Nader. Sixty percent of the funding, or an estimated $10.3 billion, came from the public purse. With the economy and stock market no longer booming, and with the public becoming more skeptical about the rosy economic claims of billionaire team owners, the era of easy money already was drawing to a close. Now the two court cases are poised to determine whether the fund-raising tactics of professional sports teams and their local boosters are even legal.

The Right to Take
Technically, the eminent domain case before the Supreme Court has nothing to do with sports. The high court is hearing a lawsuit involving a New London, Connecticut, real estate project, in which the city agreed to tear down a neighborhood so developers could build a condominium complex and office park. No claim of blight was involved. The city said the development was a “public use,” as required by the U.S. and Connecticut constitutions, because it would generate new tax revenue. Several property owners refused to sell. The Supreme Court will decide if they have to.

The Court has rarely visited the eminent domain issue. In 1954 the justices ruled that a neighborhood deemed “blighted” could be torn down and redeveloped if the local government had a better use for it. There have been several more decisions since then, but most have been very narrow in scope.

Meanwhile, the use of eminent domain has mushroomed. The Institute for Justice, the nonprofit law firm that is arguing the New London case before the Supreme Court, has documented more than 10,000 cases between 1998 and 2002 in which local governments have transferred or threatened to transfer property from one private party to another. Blight is no longer the issue; the question now is simply whether the deal helps the local economy in some way.

Sports owners have long used eminent domain as a way to acquire property cheaply. Sports economists estimate that half of the post-1990 stadium and arena construction has involved eminent domain—and even when it wasn’t invoked, it was understood that condemnation could be a last resort if the teams encountered stubborn landowners.

One of the most famous eminent domain cases involved the Cowboys’ future home of Arlington, where baseball’s Texas Rangers, at the time owned by George W. Bush, convinced local voters to approve a 1991 tax increase that helped build a new $191 million stadium. The city of Arlington used eminent domain to acquire the property from hundreds of private owners, claiming that the stadium was a “public use,” just like highways, schools, or government buildings. Several property owners were lowballed, and court decisions increased their take. (The city, not the team, was responsible for the larger payments. The compensation for one 13-acre plot was increased from $877,000 to $5 million, for example.)

The stadium clearly benefited the Rangers’ owners more than anyone else: Bush turned his initial $600,000 investment into $15 million when the team was sold in 1999. But it has produced little of the promised economic benefit to Arlington, and there has never been a real “public use” factor aside from baseball fans’ paying their money to see games.

Opponents of stadium deals argue that teams and local governments are getting around the public use issue by placing the stadium or arena in the ownership of a “public sports authority.” The property is then tax exempt, and the teams pay nominal rent that is often less than they would have owed in property taxes. The lease arrangements are often lopsided in favor of the teams; many, for instance, allow the franchises to move after a certain time if revenues do not hit projections. This threat to pull stakes and run gives teams strong leverage to renegotiate. If the sports facility were privately owned, there would be no lease to haggle over, and the team would be less willing (and able) to leave.

Without eminent domain, acquiring enough property for a stadium could become expensive. A handful of property owners could hold up an entire complicated deal. “If the court makes the ruling that this is not a valid use of eminent domain, there will be some problems,” says Scott Powe, a law professor at the University of Texas. “Huge problems. No doubt, there will be lots of litigating.”

In resolving the Connecticut case, the Supreme Court is expected to decide whether the promise of local economic benefits is enough to justify the use of eminent domain, and whether local governments have to prove such benefits are likely. If the Court requires such evidence, stadium boosters will be in serious trouble.

During the last 15 years, economists such as Stanford’s Roger Noll, Smith College’s Andrew Zimbalist, and Cleveland State University’s Mark Rosentraub repeatedly have shot down the claim that new stadiums benefit local economies. “There is no dispute in the economic community about who gets the primary benefit from the subsidy,” says Raymond J. Keating, chief economist for the Washington-based Small Business & Entrepreneurship Council and an expert on sports facility financing. “It is very clear a ruling against how eminent domain is now used will change some of the issues used by local government and teams in making their case for public financing of sports facilities.”

Rosentraub estimated Arlington would lose roughly $235 million over 30 years as a result of the new Cowboys stadium, a far cry from the city’s (and team’s) projected $7 billion gain over the same period. (The raised taxes for the stadium would actually take spending money out of the local economy.) Local businesses tend to be largely unaffected, Rosentraub has found, because teams attempt to control almost all of their fans’ entertainment spending, including shopping and dining. This leaves little room for the promised spillover growth around the stadium.

“The reason you build new facilities is to bring in that consumption,” Rosentraub says. “That’s why in the absence of a plan for an overall development of any district, the ‘Disneyfication’ aspect works against you. People drive to games, and those that don’t eat at the ballpark usually eat at their favorite restaurant—not necessarily in the city where the stadium is located—and have generally well-defined consumption patterns.”

Without a spillover effect on the neighborhood, owners and cities would have to scramble to justify using eminent domain. “They would have to prove a defined public use and benefits that go to the community,” Keating says. “Obviously the clear benefits go to the team owners and the players.”

Kelo v. New London could have a sweeping impact not just on sports but on how local governments arrange deals for shopping malls, big-box retail outlets, housing developments, and more. If the Supreme Court restricts the use of eminent domain, private developers and sports owners will have a much harder time acquiring land and negotiating sweetheart leases with quasi-public landlords. If the high court decides a flimsy promise of economic benefits is enough to justify condemnation, it may signal a new building boom. Or the whole question could be tabled until another, more definitive lawsuit comes along.

Monopoly Powers?
The Cincinnati Bengals case is simpler. Basically, the Hamilton County commissioners claim the team they built a stadium for — and the league that oversees the team — cheated them out of $600 million. One of the most controversial pieces of evidence is the Bengals’ win-loss record: The team said it needed more money to be more competitive, but the Bengals still stink.

The Bengals moved into their new publicly funded facility in 2000. Local voters had approved a half-cent county sales tax hike in 1996, and the stadium complex — one for the Bengals, one for baseball’s Reds — cost $750 million. There was a $210 million cost overrun, which the county was forced to pay.

The new address did not produce the promised improvement on the field. In the five seasons prior to moving in, the Bengals’ record was a lousy 29-51. For the first five seasons after, it was an even worse 28-52. The Hamilton County commissioners say the team told voters they would have to pay for a new stadium if they ever wanted a Super Bowl championship, an assertion the lawsuit claims violated anti-trust laws. Because the number of professional football teams is artificially limited, Hamilton County argues, the NFL and the Bengals improperly used monopoly powers by threatening to move to another city unless the stadium was built. Because the NFL has the most shared revenues of any professional sports league — and a hard salary cap that limits pay for players — every team is theoretically profitable and should be equally competitive.

The lawsuit is designed to drive the Bengals and the league back to the bargaining table. Like most stadium deals, the Bengals have a tiny annual lease payment (about $1 million), and they keep all revenues, even for nonfootball events. Because sales tax receipts have declined, the county’s bond repayment, initially scheduled to take 23 years, is now expected to take 35. According to sources close to the lawsuit, the county wants the Bengals to pay about $200 million to keep the bond payments more in line with the original plan.

“You can’t use your monopoly status purely for driving up your profits,” says Hamilton County Commissioner Todd Portune. “That was the business plan of the NFL, and they have used their monopoly status illegally, we believe. All the evidence we have since uncovered shows that false statements were made by both the team and the league. The team was financially stable. There was no real talk behind the scenes of moving the team to another city. But the Bengals and the NFL perpetuated these lies to take money from the taxpayers and…to make lots of money for a private business.”

That, Portune contends, was illegal. “Congress has laws in place that prevent the public from being taken advantage of by private businesses by using their monopoly powers,” he says. The Bengals, he concludes, should “come back to the bargaining table and remedy how disproportionate the benefits were to the team and the league, vs. the cost to the taxpayers.”

Neither the Bengals nor the NFL would comment on the case. But the suit is already having effects on teams. U.S. District Judge S. Arthur Spiegel has ordered the NFL and all its teams to show their financial books to Hamilton County’s lawyers. The NFL has long avoided opening up its books, and the possibility of having municipalities around the country be privy to the league’s real financial health would almost certainly make it harder to sell stadium deals in the future.

Still, the Hamilton County case is fraught with problems for the plaintiffs. The Bengals and the NFL can claim that since voters properly approved the bond, it is not open for renegotiation. The league also argues that teams with more revenues from luxury boxes can sign better players by having the funds for signing bonuses. And the NFL has always maintained that it is not 31 separate businesses but a single, 31-branch business — one that can’t be a monopoly because it competes for entertainment dollars in every market.

“With all these cases, it just depends on the decision,” says Jeffrey Kessler, a New York lawyer who specializes in antitrust cases. “If the decision is that the league violated laws, and the league is punished for it, it could have a huge impact. But I seriously doubt that a court ruling in a case like this would do things like open the door for unlimited franchises. However, a decision against the league and the teams might change how teams deal with cities and local government in setting up their stadium deals.”

The Turning Point?
The stadium deal for Jerry Jones and the Dallas Cowboys is weighted heavily on the side of the team. The Cowboys emphasized during the tax initiative campaign that they were putting up half the money for the stadium — $325 million — but that isn’t quite true. While the city will use the new taxes to retire its side of the debt, Jones will be able to slap his own 10 percent “tax” on tickets and a $3 tax on parking to retire his side. This will amount to about $10 million a year, or $300 million over 30 years.

But that’s hardly the limit to Jones’ new revenue streams. He’ll also get 95 percent of the corporate naming rights revenue for the new facility, which could be worth $250 million to $350 million. That’s extra money, since the team’s current home, Texas Stadium, has no corporate naming contract. Jones could also earn more than $100 million by selling personal seat licenses (priority rights for buying season tickets), and the NFL is giving the Cowboys a $100 million loan they don’t have to pay back.

So before he even sells a ticket or luxury box or hot dog or beer, Jones will be up about $800 million. Take away the $325 million, and he is still ahead $475 million. Since studies have shown NFL teams usually double their profits in new digs, Jones’ estimated annual take of $40 million could balloon into an additional $1.2 billion over the life of the 30-year deal.

The city of Arlington never asked to see the Cowboys’ books before deciding to put the issue before voters. As with the Texas Rangers stadium before it, eminent domain likely will be invoked to assemble land for the football stadium; the Arlington City Council already has threatened to use it if any property owners decide to hold out. The city has claimed the area where the stadium will be built is blighted and full of crime, neither of which is true; the local housing prices and crime rates are about average for the city.

Such spurious claims in the service of forcing small property owners to sell to larger ones have become all too common. If the Supreme Court requires the justifications to be even slightly more rigorous, and if Hamilton County succeeds merely in publicizing the NFL’s notoriously secret finances, then the balance of power will shift away from the teams. And if the judges take decisive action, 2005 could be the year the public stopped lining the pockets of billionaire owners and millionaire players by paying for the places where they earn their living.

Daniel McGraw is the author of First and Last Seasons: A Father, A Son, and Sunday Afternoon Football (Doubleday).

Reason Online, The Reason Foundation: www.reason.com

Whose House Is It Anyway? AARP Magazine, 5/05

By Barry Yeoman

When a city's quest for renewal means the death of an old neighborhood Wilhelmina Dery has lived her entire 87 years in a blue sea captain's house near the banks of Connecticut's Thames River. From the ground floor, her family ran a grocery where the neighborhood's Italian women congregated Saturday mornings, buying freshly stuffed sausage and wedges of Parmesan cut from large wheels. Across the street, the river was thick with traffic: swordfish, tuna, and lobster fishing boats; Coast Guard ships; and, during Prohibition, the rum-running vessels that gave New London its reputation as a crossroads of the illegal liquor trade.

Wilhelmina met her husband, Charles, now 85, at a USO dance during World War II, just before he shipped out to the South Pacific with the Merchant Marine. Of their four kids, only the youngest, Matt, survives. He lives next door with his wife and teenage son in a three-story house with skylights and oak trim, converted from the brick-oven bakery where Wilhelmina's immigrant father once worked. Several times a week, Matt or a family member carries a heaping plate of homemade pasta across the driveway.

Charles likes this balance of intimacy and privacy. "He has his space and I have mine, you know?" the older man says of his son. "I love him to death, but I realize that you've got to let him breathe a little."

The Derys' neighborhood, Fort Trumbull, has never been a tidy suburb. It butts up against a train yard, and until recently reeked from a nearby wastewater treatment plant. But it was close-knit nonetheless, a place of nighttime basketball games, Easter dinners, and huge funerals where the whole small community turned out. "Nobody locked their doors," says Matt, who is 48 and works as a sales manager at New London's daily newspaper. "You just walked in and yelled. You'd get fed wherever you went." In 1976, Matt took over the family grocery, by then a sandwich shop where employees of the Naval Undersea Warfare Center came for grinders filled with chicken Parmesan and teriyaki rib eye. He eventually gave the store to his brother, who ran it until he died in a 1994 fire. (Another brother died accidentally as an adult, and a sister died in infancy.) When the Warfare Center closed in 1996, it spelled an end to the family business.
In the late 1990s, Fort Trumbull residents suddenly noticed real estate agents poking around their rutted streets. The neighbors suspected something was in the works, and in December 1999 the news hit: the city of New London planned to acquire all 90 acres of Fort Trumbull and turn the land over to private developers. Spurred by the imminent opening of Pfizer Global Research and Development's $300 million headquarters next door, the city envisioned a "waterfront urban village" of offices, luxury condominiums, and a four-star hotel with river views.

About 80 property owners, many of them elderly, voluntarily sold their homes when the city came knocking. The remaining seven, including the Derys, refused. In response, the city-chartered New London Development Corp. (NLDC) seized the remaining houses through a process called eminent domain, which allows governments to buy property from unwilling owners. The houses are currently occupied, but their future remains in legal limbo — at least until the U.S. Supreme Court rules on Fort Trumbull's fate.

The court's decision, expected by the end of June, could set a sweeping precedent concerning the rights of governments to buy people's homes for private redevelopment. To property-rights advocates, a ruling in New London's favor could mean open season on older neighborhoods — and the older Americans who frequently inhabit them. According to Chip Mellor, president of the Washington, D.C.-based Institute for Justice, a libertarian law firm representing the Fort Trumbull neighbors, the retirement plans and life savings of people 50 and older "can be shattered in an instant" when a government has the right to take their property and give it to another private party.

But some local officials have a different perspective. They say that a city has rights too — particularly the right to control its own destiny for the common good. Cities and towns have many tools to do this: zoning laws, billboard regulations, historic preservation rules, building codes. While eminent domain is a drastic tool, they say, it's sometimes necessary in places that are suffering from chronic unemployment, underfunded schools, and shrinking tax bases.

"For many communities to be sustainable, they need to redevelop," says Jeffrey Finkle, president and CEO of the Washington, D.C.-based International Economic Development Council. Converting land to denser uses beefs up the tax base, which helps pay for the police department, fire department, roads, and social programs. When houses and businesses stand in the way of these efforts, Finkle says, cities need the power to obtain the properties. "Poor land-use judgments 40 years ago should not dictate the survivability of a city in 2010," he says.

The battle over Fort Trumbull is not a tale of villains looking for personal gain. "Really what is involved is conflicting dreams," wrote the Connecticut Superior Court in a 2002 decision. Fort Trumbull's residents dream of living peacefully in their own homes, the court said, and "any threat to that dream is understandably forcefully and emotionally opposed as it should be in a free society." On the other hand, the court wrote, New London's leaders have their own dream, "to provide an economic and social uplift for their city." However the U.S. Supreme Court rules, this much is clear: only one of those dreams can come true.

Traditionally, we associate eminent domain with road building, school construction, and other tax-funded projects. If the government wants to run a highway through your neighborhood, it can seize your home without your consent; this happens all the time. In exchange, the U.S. Constitution promises "just compensation" when your property is taken for "public use."

The controversy arises when your land is to be turned over to a for-profit business. What if a city decides that it needs a sports arena, a shopping mall, a handsome new downtown? What if a major employer wants to build a factory that will provide hundreds of jobs? Do these needs constitute public use? This is what the Supreme Court has been asked to determine.

The U.S. Constitution promises "just compensation" when your property is taken for "public use."
In the past half-century, the courts have ruled that under some circumstances — clearing slums or breaking up land monopolies — a government can indeed seize property and turn it over to private interests. But the issue is far from resolved. In 1981, the Michigan Supreme Court ruled that Detroit could condemn the working-class neighborhood of Poletown for a General Motors plant, in order to preserve jobs in the beleaguered city. In 2004, while reviewing another eminent domain case, the court decided to revisit the Poletown case — and, in a surprise move, overturned the earlier decision. By then, of course, it was too late for 4,200 Poletown residents, whose homes had long since been bulldozed for a plant that produced far fewer jobs than expected.

At the same time, some of the nation's most stellar urban-revitalization projects have also relied on private redevelopment. Baltimore's Harborplace, which turned crumbling docks and warehouses into a waterfront shopping and dining mecca, required the seizure of private property. So have stadiums throughout the United States.

While individual redevelopment projects have been controversial, the eminent domain issue itself attracted little national attention—until the Institute for Justice rallied to the defense of an Atlantic City, New Jersey, widow whose home was threatened by Donald Trump's plans to build limousine parking for his casino. (The institute prevailed in 1998.) In a hefty report published in April 2003, the institute identified 3,700 properties across the United States that were condemned for private use over a five-year period. Though there's no reliable historical data, some experts believe these takings have become considerably more commonplace. Jeffrey Finkle estimates they doubled during the 1990s.

What has definitely become more commonplace is criticism by legal activists who believe that when the Founding Fathers said "public use," they weren't referring to stadiums and shopping centers. "The Constitution has a limitation. To say 'We have a great need; let's suspend the Constitution' is not a great argument," says Gideon Kanner, professor emeritus at Loyola Law School in Los Angeles. When influential land developers convince governments to use eminent domain on their behalf, he adds, "it's a form of civic corruption. This is really raw power when people are kicked out of their homes."

Even supporters of eminent domain agree that it's sometimes misused. But focusing on the abuses, they say, misses the bigger issue: elected officials have the right and responsibility to shape the way their communities grow. If they neglect that responsibility, city centers will die while farmland morphs into miles of traffic-choked highways sprouting fast-food restaurants and big-box retailers.

Lost in this rhetoric is the human struggle that has repeated itself across the United States. One side fails to acknowledge the suffering of families like the Derys, who have lived in their neighborhoods for decades and can't bear the thought of relocating. The other side dismisses civic leaders, like New London's, who grapple daily with shrinking tax bases and underfunded schools, and who can't envision any solution that doesn't uproot people from their homes.

At its peak as a 19th-century whaling port, New London was a curious mixture of aristocratic mansions and rough-and-tumble establishments catering to sailors on shore leave. These days, New London has a split personality of a different kind. On the south end of town, elegant shingled homes sit on private beaches with 180-degree views of Long Island Sound. Downtown, though, antique shops alternate with empty storefronts. Since 1960, the city has lost almost one quarter of its population, shrinking from 34,000 to 26,000.

"We have terrible economic woes," says Ed O'Connell, an attorney who represents the New London Development Corp. Unemployment is high. Tax revenues have been stagnant, forcing the city to cut back the police and fire departments and lay off literacy tutors.

Hemmed in by water and more affluent municipalities, New London has no place to grow. To expand its tax base, it must make better use of the six square miles that make up the city. Otherwise, says O'Connell, the city will continue its downward spiral and plunge deeper into poverty.

That's why, when Pfizer announced it would locate a global research facility on a trash-strewn peninsula next to Fort Trumbull — the largest in-state business expansion in Connecticut's history — the plan was viewed as a singular triumph. The new complex, where scientists would design and manage clinical drug trials, would employ more than 1,500 people. Pfizer spokesperson Liz Power insists that the drug firm's only preconditions for moving to New London were a cleanup of a waterfront park, odor reduction at the wastewater treatment plant, and citywide infrastructure improvements. Internal Pfizer documents, however, suggest the company's "expectation" for Fort Trumbull included upscale housing and a hotel and conference center.

Whatever the extent of Pfizer's demands, New London's leaders envisioned turning Fort Trumbull into an urban showpiece. Along with the townhomes and hotel, there would be office buildings, marinas, a river walk, and possibly even a Coast Guard museum. As many as 1,400 jobs could be created, the city predicted, along with $1.2 million in annual property tax revenues. "This was a chance the city of New London would have once in its history," says O'Connell.

There was, however, the matter of evicting the neighborhood's existing residents.

If New London's dire straits lent its leaders a certain moral high ground, the city's actual tactics squandered any chance of winning Fort Trumbull's goodwill. From the start, the neighbors felt bullied into selling their homes. They claim that NLDC's agents phoned at night and visited during Sunday dinners, contracts in hand. "They started calling my parents at all hours of the day, saying, 'Listen, you need to sell this property. If you don't take what we're offering, we're going to take it [for less money] by eminent domain,' " says Mike Cristofaro, whose family had had another home seized in the 1970s to make room for a seawall that was never built. "To me, that's harassment." O'Connell, NLDC's attorney, says it's normal for real estate agents to conduct business at night and on weekends.

The Supreme Court could limit the government's power to buy private homes without their owners' consent.

NLDC began seizing title to holdout properties starting in 2000. Around the same time, demolition crews came into Fort Trumbull with excavators that looked like dinosaurs, leveling the houses the owners had sold to the city voluntarily. Amid the dusty cacophony, Byron Athenian, a retired body shop owner who helps care for his severely disabled granddaughter, found his house cut off from the street by barricades and a ditch. Now Athenian and the wheelchair-bound girl must enter the building through a side door at the end of a pothole-ridden path. "It's like living in a bunker," he says.

One clear day in November 2000, a brick wall from a house being demolished next door crashed into Matt Dery's yard, destroying the garage and all its contents. "It was like an airplane had struck my house," recalls Matt's wife, Suzanne. "The whole house shook." When Matt tried to rebuild the structure, the city denied him a permit.

The neighborhood grew tenser. Two months after the garage incident, police were summoned to a brick apartment building, where NLDC padlocked some of landlord William Von Winkle's tenants into their homes and ordered others into the street. O'Connell calls the evictions legitimate, explaining that Von Winkle had defied a city order to keep the apartments vacant. (NLDC later agreed to permit Fort Trumbull's landlords to rent on a month-to-month basis.)

Meanwhile, a lawsuit filed by the Institute for Justice wended its way through the courts. In March 2004, Connecticut's Supreme Court ruled in the city's favor, noting that the rebuilding of Fort Trumbull would create hundreds of jobs. While NLDC was still temporarily barred from bulldozing the houses, it did the next-best thing: it sent the Institute for Justice a notice that the institute's clients owed back rent for living in their own homes. Von Winkle owed $301,756 for his house and rental units. The Derys owed $229,900. "If we stay here much longer, we'll have to give them a dog and maybe some furniture," Matt Dery says sardonically.

Ed O'Connell, the attorney, says the city and NLDC were just trying to safeguard the public purse. Since New London owns the houses, he argues, its officials have a responsibility to earn money from the buildings. "It's not like we charged them rent as a way of grinding salt into their wounds," he says. "There's taxpayer dollars involved."

In reality, there's been plenty of salt grinding, intentional or otherwise. Twice, The Hartford Courant quoted former NLDC president Claire Gaudiani as saying, "Anything that's working in our great nation is working because somebody left skin on the sidewalk." ("It's fine to say when it's not your skin," Matt Dery grumbles.) Gaudiani's husband, a Pfizer executive, made matters worse when he publicly declared, "Pfizer wants a nice place to operate. We don't want to be surrounded by tenements."

With the Supreme Court about to rule in the New London case, cities across the United States are wondering whether their own redevelopment projects will be allowed to move forward — and homeowners in the path of those projects are wondering whether they'll be allowed to stay put. "There are dark clouds on the horizon for cities," warned Utah's Salt Lake Tribune last December, hinting that if the Derys win, the city of Ogden might find it harder to condemn 34 homes for a planned Wal-Mart superstore. Other places awaiting the high court's decision include Bowling Green, Kentucky; Camden, New Jersey; New Brighton, Minnesota; and Liberty, Missouri.

However the court rules, though, it'll be too late to save Fort Trumbull. These days, where neighborhood kids once romped, there are mostly rubble-strewn lots pocked with the occasional holdout house. One salmon-colored cottage, dating to 1893, is adorned with birdhouses and folk art and a sign that says "not for sale."

If you walk around Fort Trumbull, it's hard not to think of war zones. But the remaining residents don't think of their neighborhood that way. They want to stay. It's their home. At night it's quiet enough to feel like the countryside, dark enough to see the stars. Besides, they say, there's the principle. "If this all goes through, any house, anywhere, can be taken for higher tax dollars," says Von Winkle. "No house is safe."

The residents say they're willing to coexist with the new development. O'Connell says that's out of the question. The older houses wouldn't be in keeping with the planned development's character. "You can put up a hotel," he says, "but you're not going to get a guest to pay $150 to look out at isolated buildings."
Besides, O'Connell adds, Fort Trumbull's residents romanticize their neighborhood. "This is not a garden spot," he says. "It was not some old Italian neighborhood. They were not passing cannolis across the fence to one another. It was one of the nondescript areas you see along the side of railroad tracks."

Matt Dery begs to differ. Friends still come by unexpectedly, then stay for a beer and a bowl of his wife's seafood-tomato soup. And the cross-driveway pasta shuttle continues. Says Matt: "As long as there's one 16-year-old kid ferrying a big tray of ravioli over to his grandparents and telling his grandmother that he loves her and getting a hug and a kiss, this is still an Italian neighborhood."

AARP Magazine: www.aarpmagazine.org

Court eyes eminent-domain rules: (Harrisburg PA) Patriot-News, 5/8/05

Decision could have impact on HIA case

By Joel Berg

Under current law, Harrisburg International Airport likely would prevail in its legal battle to take private land from a nearby business, observers said. But, a U.S. Supreme Court decision expected in June could shift the balance of power against the airport.

The right of eminent domain — a government's ability to take privately owned land for a public purpose — is part of the Fifth Amendment to the U.S. Constitution. The issue before the court centers on the grounds for exercising that right.

Few people question government's authority to seize private land to build a road, a bridge or even a new airport runway. That power provokes greater controversy when it drives out businesses or homeowners to clear a path for economic development, as in the case at HIA.

In March, airport officials said they wanted to take over Cramer's Airport Parking, a neighboring business, and develop the land for privately run, airport-related operations, such as a cargo base or maintenance facility. The Susquehanna Area Regional Airport Authority, which owns HIA, has offered to pay about $1.57 million for the property.

The Cramer family objects to the move. It has cited, among other issues, antitrust allegations that the airport wants to knock out a competitor to its new parking garage.

"We're in business. We intend to stay in business. We want to remain in business," said Solomon Cramer, son of owner Stanford Cramer and a manager at the company. "This isn't a matter of not being happy with their offer or anything else. We don't want to sell."

Fred Testa, HIA's aviation director, has said the airport's intent isn't to shut out a rival. "Anything that the Cramers are claiming in the lawsuit will be answered in the lawsuit," he said.

The Cramers face an uphill struggle, given the courts' traditional attitude toward the use of eminent domain, attorneys said.

Ever since a Supreme Court case in 1954, judges have not interfered when governments and public authorities say a particular seizing of land serves a public purpose, said Joel Burcat, an attorney in the Harrisburg office of law firm Saul Ewing. Typically, courts decide only how much money a landowner is due in return for losing property.

Burcat believes courts should be more skeptical.

"There have been many instances over the years where condemning bodies have taken properties, they've said that there is a public purpose and, in reality, it was a very shady public purpose," Burcat said. "The public purpose was putting in a hotel. The public purpose was keeping a football team. The public purpose was replacing an old department store with a new department store."

Depending on its outcome, the case before the Supreme Court could give judges a bigger say in whether a public purpose is being served, Burcat said. He questioned whether the airport's move to take Cramer's serves a true public purpose.

The Supreme Court case involves a homeowner named Susette Kelo who is fighting an economic development plan in New London, Conn. Public officials condemned a residential neighborhood, which includes Kelo's home, and plan to turn the property over to a private developer. The developer is expected to bring in new businesses, create jobs and provide more tax revenue for the city.

If the court rules in favor of Kelo, the Cramers and other landowners might have more leeway in resisting eminent domain, Burcat said. He filed a brief in the case on behalf of a client in York County, the Kohr family, whose farmland is being sought by county officials for a park.

"After 50 years, for the courts to even agree to hear a case on this subject says that they must be seriously reconsidering their decision," Burcat said. "Otherwise, why would they take it?"

John Echeverria expected the court to stick with tradition. He is an attorney with the Georgetown Environmental Law and Policy Institute in Washington, D.C., and filed a brief in the Kelo case in favor of New London.

"The long-standing Supreme Court precedent has provided strong support for the use of eminent domain by government to achieve public purposes, including when private property is transferred to other private parties," Echeverria said.

An airport serves a public purpose, he said. If the airport needs land for related operations, taking the land is a sensible choice, even if the land goes from one private user to another.

The Supreme Court is unlikely to reverse precedent, agreed David Lehman, an attorney with McNees Wallace & Nurick in Harrisburg. But, he said, "These are strange times politically. Who knows what can happen."

No government or public authority exercises the right lightly, said David Black, president and chief executive officer of the Harrisburg Regional Chamber and the Capital Region Economic Development Corp.

But, he said, "I think it's something that probably has to be done to look out for the long-term interests of the airport, keeping it competitive and helping it become the economic engine that it can and should be for our region."

How land is used before and after it is taken helps to determine whether a public purpose is being served, said Neal West, general counsel for Harristown Development Corp. In the 1970s, the organization had used eminent domain to redevelop downtown Harrisburg.

"At some point, you do cross the line," West said.

Patriot-News: www.pennlive.com/business/patriotnews

A steamroller at Flowerfields: Newsday (Long Island NY), 5/8/05

By Charles V. Zehren

It's fitting that the state [of New York] wants to build a virtual reality center on private property it seized from a company that once manufactured pilotless drones.

For there's an absurd quality to the situation the business community finds itself in after a unanimous decision by four justices of a New York appellate court on April 25 that paves the way for Stony Book University to annex through eminent domain 246 acres of a 314-acre parcel belonging to Gyrodyne Co. of America of St. James.

Critics say if you need more evidence of the abridgment of private property rights, here it is. Developers, landlords and small businesses think they "own" their real estate and the "market" sets the price. But that's an economic illusion in a community where dozens of local governments, state lawmakers, university trustees and the courts exert ultimate control over the value of property through restrictive zoning, confiscatory taxation, open space acquisitions and outright seizure.

Originally acquired back in the 1950s as a flight-test facility, the tract stands as the sole asset of Gyrodyne, a thinly traded corporation held by investors speculating that the ultimate sale of the property will yield a tidy windfall on their shares. South of Route 25A and adjacent the Stony Brook campus, the scenic "Flowerfields" has been described by its owners as among the most valuable real estate east of Manhattan.

Not all Gyrodyne shareholders have been happy, filing complaints with the Securities and Exchange Commission, accusing company executives with dragging their feet on potential land sales while pulling down large salaries for managing what amounts to a passive investment. The executives deny such claims, saying over the years they've been stymied trying to develop a $220 million golf course community, which would require a change in zoning.

The stock bumped up last year when the university expressed interest, but talks fell apart, the university accused Gyrodyne of bad faith, invoked its condemnation power, went to court, and won the right to seize the property at "fair market value," ostensibly to build Republican Gov. George Pataki's Center for Excellence in Wireless and Information Technology.

The university says it wants to use 73 acres to build nine buildings totaling 830,000 square feet housing high-tech research and some private businesses by 2017. It also intends to provide payments in lieu of property taxes for those portions of the buildings occupied by private businesses.

But the university could still be in the business of taking land off the tax rolls for de facto environmental preservation as plans now call for setting aside 172.5 acres for perimeter buffers, land preservation and and a "field study area." Let's hope SUNY doesn't hire the same post-modern-Stalinist architects this time around.

"The balance of power has tilted so far in favor of the condemning authorities that property owners have extremely limited rights," said Peter Pitsiokos, Gyrodnyne's chief operating officer. "It's been 40 years since the state university system has condemned this volume of property."

Even though it's called "fair market value," the courts and the board of trustees - not market forces - are now effectively charged with setting the price of the very property the university covets. That's all the more startling given that the state has moved to take the property even though there is no rock-solid guarantee that it has the money to pay for it, even if Pataki holds a groundbreaking ceremony. The university has set aside $18 million to buy Flowerfields - $86 million less than the $100 million Gyrodyne wants.

"At the appropriate time, when the value is set, the university will be there with a check," promises state Sen. Ken LaValle (R-Port Jefferson), who is playing a central role in shepherding the deal. Gyrodyne says university president Shirley Strum Kenny may tap the Stony Brook Foundation, a tax-deductible nonprofit dedicated to financing "mission-essential initiatives." A university spokesman declined to comment on that possibility.

A large part of the university's success is attributable to the lawyer it hired to argue its case against Gyrodyne, M. Allan Hyman of Sands Point, partner in Certilman Balin's Real Estate Tax Certiorari and Condemnation practice group. The law contains myriad mechanisms to protect individual property rights and gives holders the courts as a forum to defend their interests, he told me. After Gyrodyne rebuffed the university's "fair and reasonable" offers, the school was well within its federal and state constitutional rights to seize the property through eminent domain, Hyman explained, adding that the $100 million price tag is "unrealistically optimistic."

The decision will be hung up in court for quite a while. The judge now seated in the Court of Claims, where the price will be set, is none other than James Lack, the former Republican state senator from East Northport. Sen. Chuck Schumer evidently senses there's PR hay to be made. An internal fax between the Democrat's aides sent apparently by accident to our office last week noted that the Gyrodyne flap "is a great issue, we should think of some federal involvement."

A compromise could involve striking a public-private partnership between the university and Gyrodyne that would allow the company to retain some of the property, build and then lease space to tenants as part of a corporate center. Such a plan would serve the university, Gyrodyne and local residents by generating additional property tax revenue instead of taking it away.

But no matter how much land the state seizes to create "centers of excellence," little will happen to bolster local business until companies are able to attract high-quality employees who can afford to own a home and pay taxes on Long Island. As long as that's not the case, businesses - even those coming out of virtual reality incubators - will elect to forge their futures elsewhere.

Players in the Gyrodyne case
  • The lawyers
    • Peter Pitsiokis, Gyrodyne chief operating officer and a Republican who worked as a Suffolk County prosecutor and ran unsuccessfully for state Assembly in 1992
    • M. Allan Hyman, Republican and partner with Certilman Balin, an East Meadow firm with strong ties to the Nassau GOP.

  • Appeals Court judges ruling in favor of SUNY
    • Republicans: Robert Lifson, former Huntington GOP chairman
    • Robert Schmidt, former Nassau County and Town of Oyster Bay attorney
    • Robert A. Spolzino, former counsel to state Sen. Nicholas Spano (R-Westchester)
    • Democrat: Fred T. Santucci, who was appointed by then-Gov. Mario Cuomo

  • Judge likely to set the price
    • Judge of the Court of Claims James Lack, former Republican state senator from East Northport

Newsday: www.newsday.com

Eminent domain - used carefully - can mold destiny: Syracuse (NY) Post-Standard, 5/7/05

By Dick Case

The water in Ley Creek runs muddy through the Seventh North Street district these days.

In March, Bob Congel and his helpers at Pyramid Cos. unpacked their newest sheaf of renderings of a Destiny USA research and development park that would straddle Seventh North where the Thruway and I-81 intersect, a place we like to call the "Crossroads of New York State."

The cost: billions.

This newest entry to the Pyramid wish list would turn a 325-acre marsh into the cross patch of New York state; the 29 business owners on the half of the site south of Seventh North aren't happy with the notion Pyramid will ask OCIDA (the Onondaga County Industrial Development Agency) - a public benefit corporation controlled by the county Legislature - to use its power of eminent domain to condemn their property and turn it over to the Congel partners.

This is going down hard, as we heard at a meeting of the agency this week, when some of the owners spoke. Later, they said they'd fight the idea of a public authority taking private land and giving it a private developer.

They weren't thrilled to hear Robert Baldwin, the OCIDA chairman, say out loud that board members "didn't have to be here." He cautioned against early panic for a project that has many approvals to clear.

The owners aren't napping. They've founded a "Stop OCIDA" coalition, with posters, signs, buttons and a Web site (stopocida.com).

Meanwhile, on the north side of the road, where two county agencies have trash and sewage operations, Pyramid faces other challenges on what used to be a landfill. The developer looks to this land to hold Phases I and II of the project; number three's the small industrial park to the south.

The Onondaga County Resource Recovery Agency - our trash busters - has a transfer station on the land I'm told it's not anxious to move. Rather, director Tom Rhoads told me in March, the agency hopes its nine-acre operation could become part of a research park.

At the same time, the county Water Environmental Protection Department, the engineers who look after our sanitary needs, has a pumping station on the lot that can't be relocated.

Aside from the concerns about the development agency and Pyramid wanting the businesses to lie down and play dead, the owners tell me they're not comforted by what they heard from County Executive Nick Pirro.

I paraphrase: I'm not going to turn Onondaga into another Erie County, a reference to the financial woes of the Buffalo area. They don't think Nick's using his critical powers to evaluate a Pyramid proposal that looks, right now, like all of the other Pyramid proposals: lovely gift-wrapping with no gift inside.

There's another issue here, and it's bigger than Seventh North: defining eminent domain as a tool for the public's "health, safety and welfare." As we speak, the concept is being tested before the U.S. Supreme Court in a Connecticut case that also involves a public agency condemning private property for a private developer.

Just now, we don't have a choice except to trust that members of that industrial agency board - all appointed by the Legislature - will do what's best for all of us, not just Congel Inc. Public benefit corporations such as this one were created by the state in 1970 to assist established businesses and help new ones relocate to places like Onondaga County.

"Assist established businesses" means both The Pyramid Cos. and the 29 entrepreneurs south of Seventh North.

One thing is clear this week: The project is not the done deal Pyramid suggested in March. Educated guesses suggest OCIDA will end up telling the developer it will withhold the eminent domain favor until the board sees Phases I and II rising. Maybe even the Other Destiny: the entertainment and retail complex promised for old Oil City.

That's the kind of "irresistible power" of true destiny.

Syracuse Post-Standard: www.syracuse.com

Fighting The Power To Take Your Home: Washington (DC) Post, 5/7/05

More Owners Are Challenging Government Plans to Seize Land

By Kirstin Downey

Prince George's County [MD] Executive Jack B. Johnson set off a furor in March by warning during a radio broadcast that the county might tear down some crime-riddled apartment complexes if the owners didn't do more to step up security.

Within days, dozens of renters who lived in the apartments had staged rallies in defense of their homes, demonstrating at a government building and one of the apartment buildings. Johnson quickly backed off, but one thing was clear: Even an off-hand mention of the mighty government power to seize people's property set off powerful emotions.

Defending the Neighborhood

Are there rumors that your neighborhood is slated for major change? Are you worried you could lose your home to eminent domain? Here are some tips from the Castle Coalition, a libertarian advocacy group opposing what it calls "eminent domain abuse."
  • Do your research. Go to the local planning department and ask for information about any redevelopment plans in your area, including proposed highway improvements. Call elected officials who represent your area to find out what they know. (Ideally, you should have done this before you purchased the property.)
  • Get copies of all planning documents relevant to your property.
  • Take notes, with dates, including the names, titles and telephone numbers of every official who gives you information.
  • Attend scheduled public hearings on planning issues related to the possible project.
  • Share information with neighbors and others who will be affected by the plans. Consider organizing a group to monitor events and schedule protests if necessary.
  • If you find that your home or business is in danger of condemnation, consult a lawyer who specializes in eminent domain. The Owners' Counsel of America maintains a list of attorneys who focus on property rights issues. Some require hourly payment but others will accept a contingency fee based on the difference in the price you were initially offered and the final price. (Such a payment system would require that you eventually relinquish the property.)
  • Ask questions. What is the timeline for this project? What are the deadlines for challenging eminent domain decisions? When might a condemnation action be filed? How is compensation handled? How much are relocation expenses?

The words Johnson used were "eminent domain," the condemnation process by which government agencies are allowed to take land from property owners. Under the Fifth Amendment to the U.S. Constitution, governmental entities can take private property for public use, as long as the owner is given a fair price, or what the amendment calls "just compensation."

Eminent domain is a phrase that is increasingly cropping up when people talk about land use in the Washington area. In the District, for example, the government has sent letters to 33 property owners telling them it intends to buy their properties to build a baseball stadium in Anacostia. The District is also pushing ahead with its plan to buy 16 properties to redevelop the Skyland Shopping Center in Southeast Washington, with a Target store as the proposed centerpiece. In both cases, the D.C. government has said it will use eminent domain to compel the property owners to sell if they do not do so voluntarily.

In Maryland, 30 to 50 homes would be affected if the long-proposed Intercounty Connector, a highway linking Montgomery and Prince George's counties, were to be constructed. The project has been mired in controversy for 40 years, but may have additional traction now because Maryland Gov. Robert L. Ehrlich Jr. (R) has made it a priority.

And in Virginia, public hearings will be held next week on the proposed Tri-County Parkway, a new 10.5-mile highway that would cross Fairfax, Loudoun and Prince William counties. It is not funded, but if it were to go forward, 13 to 22 houses would be taken.

So how should homeowners react if they find themselves in such a situation?

Most people accept the practice of eminent domain, even if they consider it unpleasant and distasteful, particularly when the government takes the land for something that is clearly a public use, such as a school, a highway overpass or a bridge. They realize millions of people benefit from the land transfer, from children sailing boats at New York's Central Park, to Washington commuters riding Metro to work, to tourists strolling at Baltimore's Inner Harbor, to motorists driving from soccer practice to shopping centers.

But another kind of eminent domain is receiving critical scrutiny. Many municipalities use eminent domain to assemble land for redevelopment, either to revitalize downtowns or to boost tax revenues. A case pending before the Supreme Court, Kelo v. New London , concerns a redevelopment plan in Connecticut; it questions the use of eminent domain when governments take the land from some property owners to make it available to other property owners, alleging that the private use makes the land transfer unconstitutional and illegal. The case's success in reaching the Supreme Court has re-opened a policy debate that started in 1954, when a landmark case involving the redevelopment of Southwest Washington allowed governments to use eminent domain for urban renewal and slum removal projects.

In an interview this week, Washington Mayor Anthony Williams (D) said the outcome of the Kelo case could affect the Skyland Shopping Center project. "It would have severe long-term effects on many government projects," said Williams, who also serves as president of the National League of Cities. "It would jettison" the long-sought shopping center redevelopment, he said.

About 90 percent of condemnations, however, involve properties acquired for purely public purposes, and they make up most eminent domain actions, said James L. Thompson, a Rockville real estate lawyer whose firm has handled more than 200 eminent domain actions over 25 years.

Many property owners who find themselves in the middle of such a land transfer do not object to leaving, but for many others, the process is fraught with emotion. Connecticut nurse Susette Kelo, for example, the lead plaintiff in the case pending before the Supreme Court, has staged rallies and protests, testified and fought a seven-year legal battle to protest the condemnation of her Victorian house to make way for a luxury waterfront hotel and office park. Similarly, homeowners at the site of the proposed Washington baseball stadium and the commercial tenants at the Skyland Shopping Center have denounced plans to relocate them to permit the land to be used in other ways.

Sometimes the wrangling lasts a lifetime. Elizabeth Beall Banks, who died in January at age 93, had spent much of her adult life fighting off efforts to redevelop her 138-acre farm on Route 28 in Rockville, once waving a shotgun at Montgomery County park and planning officials who used the eminent-domain process to claim part of her property for road expansion. As traffic congestion grew over the years, government officials used eminent domain there to widen the Muddy Branch Road and Great Seneca Highway, Merle Steiner, a longtime friend of Banks, said recently.

Nobody knows exactly how many properties change hands each year through government action, partially because so many government agencies — city and county governments, state transportation departments, the federal government, even public utilities — have the power of eminent domain. The transfers often involve small pieces of land, such as a 10-foot strip to permit a wider turning lane for cars pulling onto a highway, and they attract little or no controversy.

The libertarian group that is funding the Kelo lawsuit, the Institute for Justice, which focuses on eminent domain used on behalf of for-profit operations, has studied news reports and court filings nationwide and calculated that from January 1998 to December 2002, 3,722 condemnation procedures were filed by government agencies on behalf of private entities, including big-box retailers such as Target and Costco or for casino parking lots.

The cases typically pit individual rights against public rights, or at least the public rights as some perceive them.

"I wouldn't want eminent domain either, if it were my house," said Lora Lucero, a lawyer with the American Planning Association. "When you're the target of eminent domain, you aren't going to like it. . . . But without eminent domain, we'd hamstring the general public's interest at the expense of one individual."

Many people learn they are at risk of eminent domain when they hear about plans for future development near their homes. Houses near major roads often are included in master plans for highway expansion, but the owners may never know it because the master plans are never funded. They hear the news as a rumor in the neighborhood or in an vaguely-worded article in a local newspaper recounting a recent planning meeting. For homeowners, even the existence of such a plan is worth noting — and for many, worth protesting at forums such as planning meetings.

The eminent domain process varies from state to state and county to county, making it difficult to generalize, but typically the chain of events that results in property loss begins with a letter in the mail. A government employee, sometimes called a "right-of-way agent," contacts the property owner to say his property is needed for a particular purpose, such as a road, and that the agency, the Virginia Department of Transportation, for example, will be sending an appraiser to look at the site and try to establish its value. The property is inspected. Soon after, the property owner is contacted for a meeting.

Most homeowners are incredulous at this point, Thompson said. About 20 percent became "very emotional."

"The first thing they say is, 'Jim, I want you to stop this,' " he said. "They are passionate. . . . Business people look at it in a more objective way. They say, 'Can they do this?' And I say, 'Yes, the law permits them. The question is mitigating the damage and paying compensation.' "

And while some people, like Banks, may be able to hold on to much of their land, for many others fighting eminent domain means fighting to get the most money possible out of the government.

The government entity tells the property-owner how much it is willing to pay. Often that figure appears surprisingly low, Thompson said. But it can be just the opening round of negotiations.

"Many, many times the appraiser for the state appraises many properties for the state," Thompson said. "They get to be favorites because they appraise at low numbers. They come back again and again with low appraisals."

Dana Berliner, senior attorney at the Institute for Justice, said that many property owners are lulled by seemingly sympathetic government officials into believing they will be treated generously.

"Often the city will say, 'Don't worry, we'll take care of you,' and that isn't true," Berliner said. "If you think the local government will take care of you through the goodness of its heart, that's not a good idea."

Not everyone has such a negative experience. Brandt Mensh, managing partner of Let's Connect Wireless, a business in Rockville, was distressed when he learned the townhouse where his firm operated was being taken by the city for the Town Center redevelopment project. But the townhouses were "old and falling apart," and the city paid compensation and relocation costs. He declined to say how much he was paid.

Property owners can boost the purchase price they receive by producing evidence of comparable sales, providing information on valuable home improvements, and hiring an appraiser to give expert testimony about valuation. A lawyer who is experienced in eminent domain questions and has valuable local political connections can help to ensure a better price as well.

"When you get into the process, it can be expensive," said real estate lawyer Steven VanGrack, chairman of the Maryland Real Estate Commission. "Part of the problem is the government has government lawyers, city attorneys, state or county attorneys to pursue this process. The landowner has to pay to hire an attorney. The cost to the government doesn't include legal counsel but the cost to the individual homeowner can be enormous."

One way to keep legal costs down is to find other people in the same situation and agree to share the costs. One-tenth of a legal bill is cheaper than 100 percent of a legal bill.

Another big uncertainty property owners face is how long the process will take. The condemnation timeline varies dramatically from situation to situation, depending on local law, and the power wielded by the individual agency. It can happen within months, or take years to be completed.

The process is often quicker in Maryland, Virginia and the District than in some other states, Thompson said, because "quick take" laws in the three jurisdictions allow the process to happen more quickly than in places where property owners have more time to appeal.

The Maryland State Highway Administration, for example, can take raw land via quick-take within about 90 days after initiation of negotiations. When a case involves a home, the quick-take process takes about three months to a year. Without the right to quick-take, or when the government decides not to use it, the process can take a year or more.

If the price appears about right, however, and the seller is agreeable, the deal can be struck quickly. If the owner says no, there is a public hearing where people can testify. In Maryland, for example, the government agency adopts what is called a "resolution of necessity," which sets forth the reason for the condemnation.

Then the government agency sues in state court. It is also required to post the purchase money it has set aside at the price it intends to pay. Both the property owner and the government present testimony. A jury hears the suit. Two separate issues are in question: whether the property is indeed suitable for the purpose the government has said, and what the price should be. If the property owners lose, they can appeal.

An increasing number, such as Kelo and her eight co-plaintiffs in New London, are fighting longer.

"People are challenging eminent domain now," Berliner said. "As they realize they can and do win, you will see more legal challenges."

The Washington Post: www.washingtonpost.com