Utah Bans Eminent Domain Use by Redevelopment Agencies: The heartland Institute, 6/1/05

By Henry Lamb

Utah Gov. Jon Huntsman Jr. (R) on March 17 signed into law Senate Bill 184, effectively preventing the exercise of eminent domain authority by redevelopment agencies, which otherwise had the power to transfer land from one private entity to another. Local governments may still use eminent domain for more traditionally defined and understood "public purposes."

First State Legislature to Act
Utah appears to be the first state to take legislative action to curb the use of eminent domain by local governments. The use of eminent domain by local governments has grown over the past 30 years as cities have taken private property from one owner to give or sell to another private owner whose proposed use promises increased tax revenue or other economic benefits.

The Michigan supreme court ended the practice there in July 2004 by reversing the infamous 1981 Poletown decision, which had allowed a Michigan city to remove more than a thousand private homeowners from land that was then given to General Motors.

The U.S. Supreme Court is considering a similar case brought by Susette Kelo against the New London Development Corporation, created by the city of New London, Connecticut. New London is trying to use its eminent domain power to take Kelo's home to give or sell to a private developer.

Economic Benefits Insufficient
As in Utah, mayors and city planners across the nation contend economic development is a sufficient "public use" to satisfy the requirement of the Fifth Amendment. Until the Poletown reversal in Michigan, courts generally held in favor of the cities. The U.S. Supreme Court's decision in Kelo will have much broader application than the Michigan decision did. City planners and property rights advocates alike eagerly await the court's decision, expected in June.

Utah's legislation takes the matter out of the courts, by statute placing a higher value on the private property rights of individuals than a city's desire to increase tax revenues. Local politicians in Utah were outmaneuvered by local citizens, who organized and convinced their state legislators to take action to protect property rights.

Municipal Officials Strongly Opposed
While popular among property owners, SB 184 faced stiff opposition from municipal officials in the state. "We feel strongly that this bill not only robs local government leaders of a critical economic development tool but sends the wrong message to business leaders nationwide about the climate in Utah for new business growth," argued Centerville Mayor Michael Deamer in a letter released shortly before Huntsman signed the bill into law.

"The powers of eminent domain simply should not be used when we're talking about private development," State Sen. Curtis Bramble (R-Provo) countered.

"I'm seeing prime commercial ground that would be developed regardless of [eminent domain seizures], and we turn around and give developers the tax increment. Why are we doing that?" Bramble asked.

Trend Foreseen
"The legislators of the State of Utah should be commended for taking the federal and state constitutions seriously," Sterling Burnett, senior fellow with the National Center for Policy Analysis, said. "It is always suspicious when the government takes property in the first place, but when it does so there must be a public purpose for its actions. It is not a legitimate public purpose to use government to take property from one private individual and simply give it to another.

"There must be limits to government playing fast and loose with eminent domain powers that have the potential to dramatically impact someone's life," Burnett said.

"It's one thing to take land — with just compensation — for the building of a road or some other public purpose," said Burnett. "It's another thing altogether to do this for some notion of central planning or mere wealth maximization. People should not have to sell their own property unless they want to or unless there is some pressing public purpose. Increasing the city's tax base merely for its own purpose is neither morally nor constitutionally justified.

"I wouldn't be surprised to see this become a state-by-state trend," Burnett predicted.

Supreme Court Poised to Intervene
The Utah bill is in many ways a prelude to the issue soon to be decided in the federal courts. In the Kelo case, the Supreme Court is deciding whether a local government can use its eminent domain power to seize property from one private party and transfer it to another private party. The seven plaintiffs in Kelo are property owners whose homes and small businesses were "condemned" by the city of New London solely for the purpose of helping a prospective developer acquire 90 acres of land.

According to New London officials, condemnation and taking of the property by eminent domain is necessary not because the property is uncared-for or a nuisance, but because the new development would support more jobs and create more city tax revenues than the current homes and small businesses.

According to Alex Epstein, a fellow at the Ayn Rand Institute, "This type of justification was given more than 10,000 times between 1998 and 2002, and across 41 states, to use eminent domain (or its threat) to seize private property. The attitude behind these seizures was epitomized by a Lancaster, California city attorney explaining why a 99¢ Only store should be condemned to make way for a Costco: '99 Cents produces less than $40,000 [a year] in sales taxes, and Costco was producing more than $400,000. You tell me, which was more important?'"

As reported by Epstein, Institute for Justice attorney Dana Berliner put the issue in more personal terms. "If jobs and taxes can be a justification for taking someone's home or business, then no property in America is safe. Anyone's home can create more jobs if it is replaced by a business, and any small business can generate greater taxes if replaced by a bigger one."

Matthew Dery, one of the Kelo plaintiffs, added, "People who've never experienced this sort of treatment at the hands of the government should realize that this could happen to them. You take for granted that, in America, you own your property until you choose to sell it, but that's not the way it is in New London, or in Connecticut."

The Heartland Institute
19 South LaSalle Street #903, Chicago, IL 60603
312/377-4000, fax 312/377-5000

Henry Lamb is founding chairman of Sovereignty International (www.sovereignty.net) and founder of the Environmental Conservation Organization (www.eco.freedom.org)


Eminent domain for a veto: Rocky Mountain News (Denver CO), 6/2/05

By Vincent Carroll

When legislation sits on the governor's desk for a long time without his signature, it's often a sign that he has misgivings about it - and very possibly that it's destined for the scrap heap. If such becomes the fate of Senate Bill 230, which bars private toll-road companies from condemning property on their own, it would be the strangest veto of the year.

SB 230 is a no-brainer for anyone who resents the increasing use of eminent domain to line the pockets of private businesses. Usually, of course, local and state governments direct this scheme in which property is seized in the name of a higher economic use. They condemn Peter's house on Paul's behalf because Paul says he needs the land to build a shopping center, manufacturing plant or sports arena.

In Colorado, however, the Front Range Toll Road Co. would even like to dispense with the use of a government enforcer. It cites a 19th century statute apparently authorizing private toll companies to condemn property on their own. No fuss. No hearings or other irritating bows to public opinion. The highway goes here, buster, right through your ranch. Got a problem with that?

Admittedly, highways are the sort of basic infrastructure - unlike a sports arena or shopping center - for which the power of eminent domain was invented. But the vast majority of states that encourage private enterprise to build toll roads do not delegate the power of condemnation, too. They require the toll company to enter into a partnership with the state first.

The 14th Amendment to the U.S. Constitution states, in part, "nor shall any state deprive any person of life, liberty, or property, without due process of law." Yet as attorneys Allan Hale and Robert Hoban point out in a legal analysis on behalf of those urging the governor to sign the legislation, "there is a tremendous distinction between the exercise of eminent domain by a government unit vs. a private entity" because the latter "cannot conceivably comply with this due process requirement."

In short, the 19th century law is unconstitutional on its face. But why wait to see if the courts agree?

Rocky Mountain News: www.rockymountainnews.com

Eminent domain no answer for Uptown: Cincinnati (OH) Enquirer, 6/1/05

Your Voice

By Laura Kleckner

In reply to the "Your voice" column by Rick Hiatt titled "UC, city must get serious with crime" (May 15): As a homeowner and resident of Clifton Heights (the neighborhood just south of the University of Cincinnati), I take particular offense to Hiatt's comments regarding the area surrounding UC.

Known as Uptown, this area employs more than 60,000 people - more than any other area in the city of Cincinnati (including downtown). Although I will readily admit the university and its surrounding neighborhoods have problems with parking, security and housing, clearly Hiatt is unaware of the many improvement initiatives under way to address these issues.

On the south side of campus, a $300 million development project is under way. This project will include student housing, parking, retail space and condominiums targeted toward the many area employees interested in living in the community, as well as young professionals looking for an affordable urban alternative to the high prices of Hyde Park, Oakley and Norwood.

Also under way is a transportation study examining access to/from Interstates 71 and 75; parking supply/demand/management; and bus/shuttle services. This is part of an initiative to specifically address many of the problems highlighted by Hiatt without employing the easy solution of eminent domain.

On a smaller scale, area residents participate in Citizens On Patrol, neighborhood cleanups and landscaping, and have recently secured $30,000 for a lighting initiative to enhance safety.

The Uptown community, like many other urban neighborhoods, has problems, yet we are not a blighted community. A deal for eminent domain brokered by the university and the city, as called for by Hiatt, is not the answer. Although Uptown does not have the aesthetic appeal of Hyde Park, it is a vibrant community comprised of more than just the university.

Our community contains conscientious property owners and businesses unique to the Tristate. We are not simply an irrelevant property adjacent to a major metropolitan university. We are working hard to realize our full potential via a balance of large-scale development, increased owner occupancy and grass-roots activism - not eminent domain.

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

Tall Farm likely to be taken through eminent domain: Huntington (CT) Herald, 6/1/05

By Tom Giordano

If and when the city claims the Tall Farm property off Long Hill Avenue through eminent domain, officials may designate the site for a new municipal golf course.
And in view of action by two city boards last week, seizure of the property appears inevitable.

Both the Planning and Zoning Commission (P&Z) and the Board of Aldermen last week paved the way for the city administration to proceed with plans to take more than 30 acres of Tall Farm property for $2.4 million.

The 33-acre property is bounded on the north by the Views of Long Hill, an age-restricted condominium complex; to the east by Old Coram Road, to the south by homes at the end of Stowe Drive; and to the west by the remaining acreage owned by the Tall family.

Both boards met simultaneously in different rooms at City Hall last Thursday. The P&Z was considering a rezoning request by a private company that had contracted to buy 28 acres from the Tall family to build age-restricted housing, while the aldermen took up the city's plan to take the bulk of the property by eminent domain, primarily for open space purposes.

The Board of Aldermen, with all members present, voted unanimously to authorize "the city to acquire by eminent domain proceedings...30.3 acres of the (Tall Farm) property for open space and recreational purposes," said John "Jack" Finn, the lone Democrat on the eight-member board.

The "recreational purposes" mentioned in the motion, according to Finn, leaves the door open for the city to develop parks or other recreational facilities, such as a city-operated golf course. "The city Parks and Recreation Department has had thoughts of developing a golf course there," Finn said. "And even though I don't play golf, I know its popularity is growing. If the city does decide to go with one, I think it will be widely used."

While the Tall family will keep three acres of the property for personal use, Finn said the city also decided to retain conservation easement and development rights on the additional acreage, which prevents the family from constructing any buildings.

To ensure that, "The city will also acquire by eminent domain an additional 1.9 acres for conservation easement and development rights, which takes in the pond behind the Tall family home and the small garden they maintain," Finn added.

"But the family will still have use of the pond and garden," he said. "They just won't be able to build upon it."

Finn said the city has been negotiating with the Tall family over the past year in an effort to buy the land. "Our corporation counsel advised us that the city met with the family numerous times, but the offers were rejected," he said.

Finn said the city had the property appraised, "and the $2.4 million is what it came out to. The money will be appropriated from the city's capital project fund account for the open space program and recreational purposes."

Shortly after the aldermen voted on the eminent domain issue, "the corporation counsel told the Planning & Zoning Commission about the 8-0 vote," said Rick Schultz, Shelton's zoning administrator.

That prompted a unanimous vote by the four P&Z members present to reject two requests by lawyers for Shelton Realty Associates LLC (in care of Chappaqua Capital Corp. of Pleasantville, N.Y.), which has the contract to buy the 28 acres from the Tall family.

"They [Shelton Realty] wanted a change in the zoning to create a new designation to allow housing for 55 and older, and they were asking that the zoning map be changed," Schultz said.

He said that of the four zoning commissioners present (the full board has six members), "I believe three were regular members, and one was an alternate."

In rendering their decision, the commissioners indicated the city already has an adequate number of sites available that are zoned for age-restricted residential development, Schultz said.

During the aldermen's deliberations on the eminent domain issue, Finn said, a letter from a lawyer representing the Tall family was presented. "It was from Allan J. Rosen, who said in the letter that the city's offer to buy part of the Tall family property had to be rejected because of the contract they have with Shelton Realty," Finn said.

Rosen noted in the letter that the contract gives Shelton Realty the right to buy the property, contingent upon P&Z approval of the requested zoning changes, and that "because of the constraints of the contract..." the city's offer "must be rejected at this time."

Meanwhile, Austin K. Wolf, a lawyer representing Shelton Realty, has filed a mandamus action against the P&Z in Milford Superior Court, a legal action that asks the court to require the P&Z to perform its statutory duty and act on the rezoning applications.

Named as plaintiffs in Wolf's complaint, filed May 12, are Shelton Realty, and Lillian A. Tall, Stephen J. Tall, William A. Tall, and Edward G. Tall, all of 628 Long Hill Ave. The Shelton P&Z is named as defendant.

In the complaint, Wolf alleges that the P&Z conducted a public hearing on the applications on Dec. 14, 2004, and continued the hearing until Jan. 25, 2005, when it was closed.

Wolf notes in the complaint that state statutes "mandate the commission render its decision [on the applications] within 65 days after completion of the hearing..." unless the P&Z requests an extension, and that extension is for "no longer than an additional 65 days."

The commission did request that extension, according to Wolf's complaint, and the plaintiffs agreed, setting a deadline of April 30. But because the P&Z failed to render a decision on the rezoning applications by the deadline, Wolf filed the mandamus action.

A "show cause" hearing was scheduled in Milford Superior Court for 9:30 a.m. yesterday (May 31), in which the P&Z would have to show why the mandamus should not be granted.

That "show cause" hearing was withdrawn, Wolf said, "in view of the aldermen's decision last week."

Wolf said his next course of action in the matter will be decided "when we see what the city does."

"As of now, the board has only approved resolutions," he said. "If the city begins to implement the eminent domain process, we will take appropriate action."

When contacted last week, Stephen J. Tall declined to comment on the actions taken by the P&Z and Board of Aldermen.

Huntington Herald: www.zwire.com

Nevada governor gets eminent domain measure: KRNV-TV4 (Reno NV), 6/1/05

By author

A bill restricting the ability of local governments to take private land for redevelopment projects has been sent to [Nevada] Governor Guinn.

The Senate agreed with changes made to the bill introduced by Senator Terry Care to restrict the use of eminent domain by redevelopment agencies.

Care sought the bill as a result of Las Vegas' taking of private property for the Fremont Street Experience a decade ago.

The final version of the bill allows government to take land for open-space purposes but requires good-faith negotiations first.

In the area of redevelopment, the measure would allow the original owner to take the property back if it was not put to use for a project within 15 years.

Owners of commercial property taken for redevelopment also would have to be paid for the loss of business income, not just the value of the property.

KRNV: www.krnv.com


Eminent domain: Shades of big brother: Bucks County (PA) Courier Times, 5/31/05

By Courtney Dentch

The primary election may have cost one Nockamixon family their home.

The township has been eyeing 11 acres on Route 611 to expand its park space, and has discussed taking the land through eminent domain. But with three of the five supervisors against that plan, the house was safe.

Now that one of those three, Supervisor Al Santopietro, lost the Republican primary in his bid for re-election, the odds may have changed for Larry and Joan Comly, who have lived there for 12 years.

"We talked about condemning it," Santopietro said. "I think they're leaning toward taking this guy's property."

Eminent domain cases - where governmental bodies take ownership of land parcels for public use in exchange for just compensation - are not common in Bucks and Montgomery counties.

But that's not much consolation to families like the Comlys. Homeowners in similar situations often say the prices offered for the property do not match the amount they could get in an open sale, said Steven Anderson, coordinator for the Washington, D.C.-based Castle Coalition, a grassroots organization that helps homeowners fight eminent domain claims.

"This is not a market transaction, this is not a willing buyer," he said. "They don't have to compensate you at the market value."

Eminent domain has become a widespread problem across the country, Anderson said. There are more than 10,000 threats or cases of condemnation a year in which the majority of the land is seized for private development, he said. Municipalities can OK eminent domain for private use if the area is blighted or if the proposed development is viewed as providing a public purpose, he said.

In the Comlys' case, and most of the local cases of eminent domain, the towns are seeking the land for public use - parks, sewer or road improvements, for example. The public uses are protected in the Bill of Rights, Anderson said.

"It doesn't make it any more palatable, but we do recognize that there are public uses that are covered by the Fifth Amendment," he said. "But it's a moral issue. The Fifth Amendment is part of the Bill of Rights for a reason. Property rights are part of the pursuit of happiness."

The Fifth Amendment says private property cannot be taken for public use "without just compensation." But without market demand to set a real-world price, offers are usually based on appraisals that fall below true market value, Anderson said.

"When negotiating, we take a lot of things into account," Anderson said. "It's not only the physical cost of the land, but the cost of moving and what the land means to the owners."

Over the past three years, the Nockamixon supervisors have been looking at the land around Veterans Memorial Park, at Marienstein Road and Route 611, to find a way to add parking, baseball diamonds and more to the park, said Supervisor Bruce Keyser. Through a friendly condemnation, by which the town offers to buy a piece of land rather than demanding it, Nockamixon purchased 11- and 57-acre tracts, Santopietro said. The Comly land is sandwiched between those parcels and the park.

The Comlys refused to comment on the situation, but a poster taped to a road sign outside their home last week said, "Kick us out for park expansion? Who's next?"

The township offered to buy the land, but the Comlys were not impressed with the $410,000 proposal, Keyser said. The figure came from the second of two appraisals on the property, Santopietro said. The Comlys paid $155,000 for the land and the three-bedroom house that sits on the property in 1993, according to county records.

"You can't get anything comparable for the same price," Keyser said. "These are people who have lived here for quite some time."

Earlier this year, the supervisors discussed taking the house by eminent domain - the town's plan to convert the land to park space falls under the law's acceptable public uses - but Santopietro, Keyser and Board Chairman Jim Litzenberger voted against it. Supervisors Henry Gawronski and Ken Gross were in favor of the proposal.

"The park does need more parking," Gawronski said.

But the outcome of the vote may change as the members of the board change. There are two seats available, and Santopietro lost his primary battle to Tom Keebler.

Fellow incumbent Keyser is also up for re-election, and he and Keebler will face Democrat Nancy C. Janyszeski in the November general election.

"If they get one more vote in this election ... they will take this house to extend the park," Keyser said.

Keebler said he doesn't know enough about the situation to make a decision, since most of the board discussions have taken place during closed executive sessions.

In Pennsylvania, homeowners can appeal the initial appraisals before a three-member panel composed of an attorney, a real estate agent and an engineer, said Herb Sudfeld, a real estate lawyer with Fox and Rothschild LLP.

They hear evidence on the property's value and determine a price. If the property owners are still dissatisfied with the value, they can appeal to the state court, he said.

That's what happened in one eminent domain case in 2001. New Britain seized 37 acres that had been in Edward Garabed's family for more than 75 years to turn it into passive parkland. The town paid about $400,000 for the Upper Stump Road land, but Garabed argued he had received offers of up to $3 million for the property. His appeals of both the eminent domain claim and the value of the land were denied.

In 2003, the Quakertown Community School District voted to condemn 9.5 acres in Milford to expand and renovate Pfaff Elementary School. The land was split between two property owners, and the school district paid $74,700 for 8.3 acres and $22,800 for 1.2 acres under the separate deals.

Souderton Township is looking to buy land on Main Street to add parking for the business district. If the landowners continue to refuse the offers, the supervisors could seek to condemn the properties. And in Franconia, the Souderton Area School District plans to use eminent domain to seize at least two tracts of land off Lower Road to build a new high school.

Despite the handful of local examples, eminent domain is not something that happens often in Bucks County, Sudfeld said.

"It's not like everyone's out there condemning property," he said. "They try to avoid it where they can."

But the threats of condemnation can be just as damaging as the process itself, Anderson said.

"A lot of towns say eminent domain is a last resort, but it's not. It's a first resort," he said. "If it's on the table you're literally not negotiating anymore. It's negotiating at the point of a gun."

Bucks County Courier Times: www.phillyburbs.com


Southeast retail center caught in the crossfire: Washington (DC) Business Journal, 5/29/05

An eminent domain push could be imminent at Skyland Shopping Center -- if the Supreme Court doesn't negate the debate

By Tim Lemke

D.C.'s National Capital Revitalization Corp. could begin using eminent domain to acquire properties at the Skyland Shopping Center as soon as June 1, paving the way for an upgraded retail complex on the site.

The quasi-public agency would do so even as the U.S. Supreme Court gets ready to rule on an eminent domain case in Connecticut that could stymie NCRC's plans. In the meantime, NCRC is engaging in last-ditch talks to buy through normal means the 14 remaining properties that make up Skyland.

NCRC now owns about 30 percent of the 16.7-acre site at the intersection of Naylor Road, Alabama Avenue and Good Hope Road in Southeast.

In a redevelopment that would be the largest retail project east of the Anacostia River in decades, NCRC wants to turn Skyland Shopping Center into a 240,000-square-foot retail destination with a large anchor store, grocery store and trendy shops.

Landowners who have ardently resisted selling say the shopping center is fully leased and has been sending increasing tax revenue to D.C.

They're also skeptical of recent NCRC efforts to provide them with an equity stake in the new development. Instead, some property owners have come together to present a development plan of their own, calling for a town-center style development with existing retailers but no big boxes like Target.

"We don't want to invest in a project we think will fail," says David Burka, a lawyer representing the Kogod Family, which owns the largest chunk of the remaining land.

NCRC selected McLean-based The Rappaport Cos. to develop the site in 2002. Rappaport says it has verbal commitments from Target and Shopper's Food Warehouse.

The project will cost $48.8 million to develop, according to NCRC, but Burka says that figure is far too low.

NCRC says it will consider the landowners' proposal if the community and Rappaport agree to it.

"We're really pushing for private deals," says Ted Risher, a senior development manager at NCRC. "The eminent domain is something we'll deal with at a later date."

NCRC, however, has been under consistent pressure from the D.C. Council and neighborhood groups to move quickly on the project, in the works since 2001.

The agency insists its plan reflects what the surrounding community wants. It has received support from most of the neighborhood commissioners, along with Ward 7 Councilman Vincent Gray and At-Large Councilman Kwame Brown, a resident of Southeast's Hillcrest neighborhood.

"I've never encountered a person who was against the redevelopment that didn't have a financial stake," Risher says. "This vision was totally driven by the community."

The Supreme Court in February heard arguments in a case from New London, Conn., where the city wanted to take 16 homes by eminent domain and replace them with a hotel, condominiums and office space. The court is expected to decide whether eminent domain can be used for economic development.

"The Supreme Court is hopefully going to define further the boundaries of what constitutes a permissable condemnation," says Earl Segal, a partner with Akin Gump Strauss Hauer and Feld, who has worked on eminent domain cases. "They're deciding it in the context of what can be done in the name of economic development."

Washington Business Journal: http://washington.bizjournals.com/washington

A reservoir of hope: San Bernadino County (CA) Sun, 5/28/05

Lake plan also stirs upheaval

By David Schwartz

It started as a pipe dream a series of lakes and streams to transform the old downtown and solve a host of water woes.

Nine years later, it may become one of the largest redevelopment projects in San Bernardino Valley history.

Called variously Vision 20/20, Downtown Revitalization and most famously, Lakes and Streams, today it carries a more modest moniker: North Lake Project Area.

Despite the name changes, the project still represents a glimmer of hope for many who have watched downtown age and crumble.

As designed, the project would clear a square stretching three-quarters of a mile long on each side. It would demolish 437 houses, six churches and about 30 businesses north of downtown and east of Interstate 215.

In the neighborhood's place, the San Bernardino Valley Municipal Water District would build a 44.5-acre reservoir. The rest of the land would be turned into parkland and developed with 72 houses and 12 acres of shops.

The lake, proponents say, would help ease the problem of high groundwater and speed up decontamination of a water supply for nearly 1million people. By selling the water, officials expect to recoup some of the lake's cost.

Critics doubt it will meet grandiose expectations. And for all its promises, the North Lake Project Area would cost taxpayers more than $150 million and force nearly 1,500 residents from their homes.

"We've been under the ax for seven or eight years,' said Ghassan Abdullah, a 46-year-old physician who lives in the area and takes care of his disabled mother.

Steve Veloz, who lives on G street, has been through relocation before. It was in his sophomore year in high school in the mid-1960s, and the school district cleared out his family's Westside home to make way for Ramona Alessandro Elementary School.

"When you grew up with people you've known since you were a kid, then they bust everyone out of there,' he said. "Then you're living for over 26 years in the area, you establish roots. There are a lot of things here. Sentimental things. I don't want to be moved. To tell you the truth, I don't want to be moved.'

The burly 54-year-old had taken a wood-shingle house built on G Street in the 1930s and stuccoed it, dry-walled it and redesigned it himself.

It's not about the money.

"I'm not going to ever find a house the way my house is,' Veloz said.

Critics argue the project doesn't have to be so large. A proposal in 2003 would have demolished 111 fewer homes than the current plan.

The consultant said the lake needed to be larger and more shallow to address environmental concerns. The final report, though, made no mention of those concerns.

"Did we change the project in an honest and open fashion?' Councilwoman Susan Lien Longville asked. "We didn't. We used a ploy. We used technical issues to eliminate the entire neighborhood.'

Abdullah said, "Displacing 430 households when there are other viable options that haven't been looked at is not the way to get citizens who've been loyal to this city to jump on board.'

The water district says it needs the larger lake to efficiently deliver water.

Water board President C. Patrick Milligan, first elected to the panel in 1964, points to San Bernardino's high groundwater problem. During an earthquake, high groundwater and the sandy soil beneath downtown could create a quicksand-like effect called liquefaction.

An estimated 5.5million acre-feet of water lies beneath San Bernardino, enough to meet the needs of 100,000 families for 55 years without replenishment. The lake, Milligan said, will serve as a hub to sell water to Redlands, Rialto, Colton and Loma Linda. A major step

On April 25, the City Council and the water board agreed to the project's design and certified that it met state environmental laws. Lawsuits filed Friday by residents in the area challenge that assertion.

Approval of the project even with lawsuits looming at the time was a milestone that prompted Milligan to pump his fist and proclaim, "San Bernardino is going to get its lake.'

It didn't come without a fight, though. Protesters packed in, wearing T-shirts that showed Mayor Judith Valles pointing the way out of the neighborhood for broken-looking residents. Yet they were outnumbered by a group of chief executive officers and community leaders who came out to support the project.

An attempt by Lien Longville to get the smaller lake approved failed by one vote.

The project has received its approval and now needs to be built, Milligan said.

"Any people around that think after all these years, all these votes, we're going to resurrect any of these issues, it's never going to happen,' he said. "The time for argument is gone. It has passed. Arguments now are only a matter of history. We're going forward and going to do this project.'

Even longtime opponents are beginning to give up hope.

"I've been fighting this for five years,' said Lucy Romero, whose home that would be demolished is decorated with anti-lakes signs. "But I was at the last meeting. I saw they were for it.'

She has begun to look for a new house.

The water district plans to buy out and compensate residents, renters and business owners in the area. It will pay them enough to find a similar home or apartment nearby, Project Manager John Hoeger said. A downward spin

San Bernardino shares many of the same problems found in urban America.

To understand why bulldozing more than 82.4 acres of houses, businesses and churches appeals to so many is to understand how far the city has fallen.

In the first part of the 20th century, San Bernardino was not just the county seat in name. Route 66 ran through part of the town. Families in dusty desert towns trekked down to Harris' department store to shop in the big city. The railroads from the Pacific Ocean ports carried goods inland, and San Bernardino was a hub.

Perhaps the first blow to the city's future came in 1979, when southbound Interstate 15 split off from Interstate 215 in Devore. The future of retail and housing growth then funneled to Ontario and Rancho Cucamonga, said Nick Cataldo, a local historian.

In 1984, the Kaiser Steel Corp. mill near Fontana closed and 8,800 jobs were lost. Santa Fe Railway's repair shop was moved from San Bernardino to Kansas in 1988, erasing 6,300 jobs. Finally, the city received word in December 1988 that Norton Air Force Base was going to close.

The workers who lived in their small but tidy homes had to look for jobs elsewhere. Investors came in, thinking they were buying low. They rented out the houses, hoping for a quick rebound and a neighborhood on the mend.

Others had the same idea. Entire blocks became rentals. When landlords turned up absent, the area began to deteriorate, said Redlands-based economist John Husing, who studies the Inland Empire.

As jobs and homeowners fled, blight spread. By the mid-1990s, the area north of downtown San Bernardino, on the east side of I-215, had the highest rate of foreclosures in the city.

Like many of the old guard of the city, Edward G. "Duke' Hill was sick of seeing the city deteriorate. A land appraiser, he was active in the community, serving as the president of the San Bernardino Symphony and the Chamber of Commerce.

"It became obvious to me the city had no overall direction, no plan,' Hill said recently.

In 1996, he was headed back from appraising a planned development south of Hesperia, Rancho Las Flores. Nestled in a secluded valley, it is only accessible by a winding road.

He pulled over on his way home and looked out over the valley. He asked himself why people would move to such an inaccessible location and started thinking about solutions for San Bernardino.

Tear up the street grid system. Pump water under the city above ground, flooding the creeks that feed the Santa Ana River. Build some houses and businesses along the banks.

Not long after, he vacationed in Maui. While walking the beach, he spoke into a dictation machine, laying out his vision. That turned into a bound pamphlet titled "San Bernardino: The Future Runs Through It.'

At the same time, Milligan saw that Louis Fletcher, then general manager of the San Bernardino Valley Municipal Water District, was exploring using San Bernardino's high groundwater for a reservoir in Redlands, Milligan said.

"I said Louis, 'I like that idea,'' Milligan recalled.

But he wanted the reservoir to be in San Bernardino.

"We have high groundwater, we're shipping it down to Orange County for free, why don't we use some of it to improve quality of life?' Fletcher remembers thinking.

So Hill, Fletcher and Milligan began talking to Rotary and Kiwanis clubs, at local chamber of commerce events, to everyone who would listen.

"I think we had a very positive response from everybody,' Fletcher said. "It makes sense. If we have all this water, let's use it, not lose it.'

He had thought everything would go smoothly.

"Everybody would love to have the lake, Warm Creek flowing again, pathways, bikeways,' Fletcher said.

That was nine years ago.

Larger lake in
To move the project forward, the City Council and water board hired RBF Consulting in Ontario to prepare the environmental impact report for the project.

The smaller version of the lake, the one that integrated the old housing with the new housing and met the water district's needs, was supposed to be the project's scope.

On June 18, 2003, about six months after being hired, Kevin Thomas, the environmental services manager for RBF, said the lake needed to be more shallow, according to minutes of the San Bernardino Regional Water Resources Authority, which was formed by the City Council and the water board. In order to store enough water, it also had to be wider.

Thomas said RBF's research found problems with the high groundwater level, water fluctuation and clay importation, making the larger option a necessary project, according to the minutes .

The lake expanded from 34 acres to 44.5 acres. Now, 437 homes would be demolished.

When the final environmental report was released, the technical concerns raised by RBF Consulting nine months before were gone. Instead, the smaller project was discounted because it wouldn't provide enough redevelopment opportunities.

At the April 25 joint meeting of the City Council and the water board t o certify the environmental document, Lien Longville made a fiery but ultimately unsuccessful speech advocating a smaller lake.

Valles said she was grandstanding. Milligan accused Lien Longville of bringing up her concerns at the last minute.

Residents, though, said they felt like they had a new ally.

"Getting 83 acres, when the whole project is for a 40-acre lake, and you're going to sell the land back to private developers?' asked Abdullah. "It's cheating the citizens of the city. I would think if you're going to do a project of this size, you'd impact the least amount of people.'

Valles said the decision to go with the larger lake was to meet the needs of the water district.

"This is a better choice of the two,' Milligan said. "I do not believe it was an effective reservoir. I never, ever had much enthusiasm for the smaller lake.'

Sherrie Gundlach, business development coordinator for RBF Consulting, referred questions to the water district.

Water woes
To Milligan, it's not a lake. It's a reservoir. He has always maintained that the redevelopment opportunities are only a side benefit to the water issues that the project would solve.

Rain and melted snow rush down the slopes from the mountain peaks and into San Bernardino. Water sinks beneath the city into what is called the Bunker Hill Basin.

Dammed off by the San Jacinto Fault, 5.5 million acre-feet of water about the size of Lake Shasta when it's full builds up underneath downtown.

The resulting high groundwater, combined with silty and sandy soil, puts much of downtown San Bernardino at risk during an earthquake.

When the groundwater rises too high, the loose sandy soil becomes saturated. In an earthquake, the grains of sand try to slip together but can't get any traction because they're surrounded by water, according to a report prepared by the U.S. Geological Survey.

The ground that buildings use for support becomes similar to quicksand.

"Essentially, everything underneath the buildings just becomes soft and soupy, almost like Jell-O,' said Katherine Kendrick, a research geologist at the USGS.

Scientists say buildings can sink or tilt over.

"It's most common when you have loose sediments, a high groundwater table and the possibility of an earthquake,' said Sally McGill, a professor of geology at Cal State San Bernardino. "We definitely have all three of those factors in downtown.'

Milligan said, "We need the reservoir-lake so we can pump all the water we need out of the basin to keep this city safe.'

McGill said the high groundwater problem could be solved without the lake project.

"It's important to try to lower the groundwater, but you don't have to link lakes and streams to groundwater,' she said.

McGill doesn't have a position on the project.

"That's a question more for people who know about urban planning,' she said.

Lien Longville, who is also associate director of the Water Resources Institute at Cal State San Bernardino, said the project would have little effect on liquefaction. She called that argument a "scare tactic.'

"It is preposterous,' she said. "It may be a good water project, but it sure as hell is not a public safety project.'

Milligan said the reservoir would allow the water district to sell the high groundwater beneath San Bernardino.

"You can't just forever pump water unless you have somebody to pay the bill,' Milligan said.

He maintains that the lake can only be at its proposed site because of the higher elevation and the location of existing pipes.

"It has to be where it is,' he said. "If moving a half- or quarter-mile would have worked, we would have done it.'

The alternative, he said, was to build a farm of steel tanks to help deliver the water, which would only add to the city's blight.

"The city needs to go to work to plan on how it's going to accept this gift and turn it into a diamond for the community,' he said. "It sure needs one.'

The 3 R's
Residents of the area are skeptical. They have heard the buzzwords before. Renaissance. Revitalization. Rejuvenation.

Projects like Carousel Mall and Seccombe Lake were pitched with the same prospect of saving downtown. Instead, they have come to symbolize the city's decline.

"The idea that they're going to put a lake in here and people are going to flock to San Bernardino is ridiculous,' said Deanna Adams, whose banquet hall, Victory Chapel, would be demolished.

When Valles was asked why the city should have faith that this project will be the forerunner of real change, she said with a laugh, "Because it's me. I don't want to be boastful, but I take a great deal of pride in my integrity.'

Valles said that a better comparison than Seccombe Lake would be The Hub project, where a residential community was uprooted. It is now a booming commercial area.

Some see this lake as just a test run for the future. If it succeeds, neighborhoods will clamor for their own lakes.

"This is just peanuts,' Hill said. "This is just the beginning.'

The decision-makers have wrestled with conflicting interests, some telling them to build bigger, others to build smaller or not at all.

What they've settled on is a gamble in financial, political and human costs. It's also something that will take years to complete, even under the most optimistic projections.

For all the unknowns, it's what many bank the city's future on.

"The area is lingering and dying,' Valles said. "We need the project to regain our rightful place as the county seat, culturally and economically."

San Bernadino County Sun: www.sbsun.com

2 suits target lakes plan: San Bernardino County (CA) Sun, 5/27/05

Action seeks court injunction against SB project

By David Schwartz

[San Bernadino] Residents filed two lawsuits Friday challenging the lakes project that would destroy their homes.

The first suit, filed by 10 homeowners, says the final environmental impact report approved April 25 fails to meet state environmental standards. Deanna Adams, who owns and operates Victory Chapel, filed the other lawsuit.

The lakes project would clear out 473 homes on 82.4 acres north of downtown and east of Interstate 215. In their place would be a 44.5-acre lake, with land left over for parks and the development of 72 homes and 12 acres of stores.

The lawsuits, filed in San Bernardino Superior Court on Friday, seek a permanent injunction against the project. They also ask for attorney fees.

"The mass of the demolition of affordable homes and growing businesses is sort of stunning,' said Lou Goebel, the San Diego-based lawyer who filed the lawsuits.

John Hoeger, the project manager, defended the document.

"The (environmental impact report) took years to prepare, hundreds of hours of study,' he said. "It's a well-thought-out document.'

Hoeger, City Attorney James F. Penman and Bruce Varner, the lawyer for the San Bernardino Valley Municipal Water District, had not seen the lawsuits and would not comment on them directly Friday.

"Challenges of (environmental impact reports) are not unusual. It's kind of an expected thing,' Hoeger said.

The lawsuits challenge the environmental document that the City Council and the water board separately certified on April 25.

The lawsuits claim the environmental impact report:

  • Gives inadequate details about relocation.
  • Doesn't deal with the effects on the neighborhood and where people will move.
  • Doesn't consider a smaller option that would have displaced fewer residents.

Even though the April 25 vote was hailed as a major step for the project, many obstacles and potential tripping points remain.

The water district has hired a firm to create a relocation plan, a necessary step required under state environmental law before the water district buys land and relocates residents.

The water district has almost $60 million, but the project is expected to cost at least $150 million. Hoeger said homes might not start to be acquired and residents relocated until more is known about the funding.

The water district "could choose to do this with their own funds, but they'd do it at some risk until they have enough money to complete the project,' Hoeger said. The board of directors, who are elected, have not made that decision yet.

Residents questioned where they'd move to.

"Do you know where 400 affordable homes are for sale in the area? I don't,' said Ghassan Abdullah, one of those suing the city and water district.

"This project is not for the people,' said Steve Veloz, who also lives in the area and is involved in the lawsuit.

The lawsuits question why some of the data in the area is based on old numbers, including the 2000 census.

Veloz was skeptical that residents would be fairly compensated, given the increased home prices and lack of affordable housing.

Veloz said, "There's a house shortage here for regular people.'

It remained unclear how this would affect the project.

Although the residents who are suing can seek a temporary restraining order, Goebel said it was unlikely they would do it immediately.

"Since they're not bulldozing right now, we're going to wait to see what happens next,' he said.

A hearing is set for July 28. Judge John Wade will hear the case.

San Bernardino County Sun: www.sbsun.com


Landowners cry foul in eminent domain push: The (Palm Springs CA) Desert Sun, 5/28/05

By Nelsy Rodriguez

When Cathedral City City Council voted in March to exercise eminent domain over one of the largest undeveloped pieces of property left in the city, it was seeking to put about 60 acres of land together for possible development.

The 12 small business owners in the area - ranging from the Villa Bakery to Jaguars Only - and the landowners of the area near Sarah Street and Ramon Road were told the city did not have a development plan on the table.

But with the approval on Wednesday of a possible 40-acre RV dealership north of Ramon Road. that has changed - and some of the landowners say they have been taken by surprise.

The City Council approved this week a memorandum of understanding with Merritt RV to negotiate the possibility of building an RV sales and service station on 40 of 63 vacant acres north of Ramon Road.

The business fits part of the profile that city planners had mentioned in calling for the power of eminent domain: A big business that will generate much-needed sales tax for the cash-strapped city's general fund.

The plan is moving fast and some of the landowners are stunned.

A portion of the 40 acres is owned by Dr. Kurt Bochner of Palm Springs and his son Clifford Bochner of Murrieta. The elder Bochner did not return calls for comment, Friday, but said at the council meeting Wednesday that he had planned to develop the land and leave it to his kin as his legacy.

"I'm kind of emotionally shook," Bochner told the City Council before it voted to approve the memorandum of understanding.. "(The city had) assured us that there weren't any (other bidders for the land)."

But as Bochner realized, he doesn't have the final say over what happens to his legacy.

The city's Redevelopment Agency, following the March vote, has the power of eminent domain over the land in question. The City Council in March agreed with the RDA that it was important to secure the right to acquire the land, whether the property owners wanted to sell or not, to assure its further development.

The city then told the owners of Katsu's Laundry, Villa Bakery, Jaguars Only, Cathedral City Car Pros, 7-Eleven and all the others on Sarah Street and Ramon Road consideration would be given to keep them included in whatever large project would come.

"It was like a child and you can't give up a child," Mayor Kathy DeRosa told the group in March, assuring them that as a small business owner herself, she would suggest using eminent domain only if it became absolutely necessary.

The memorandum of understanding allows the owner of Merritt RV 120 days to negotiate with the city about developing an RV sales and service complex and related amenities in that area, according to city staff reports.

The memorandum does not guarantee that an agreement will come, but it does restrict the city from negotiating with any other developers for the time period.

The only exception is with property owners.

Redevelopment Projects Manager Keith Scott said the property owners at this point still could influence what happens with the land, "some of which is occupied, some vacant and some of which the property owner may have a project," Scott said.

Scott said Bochner and all other property owners have a right to compete to develop the land.

Mayor Kathy DeRosa did not return telephone calls requesting comment on Friday.

Bochner, who told the City Council he had invested money in forming plans to build low-income housing on his land, said the city wasn't acting fairly by first telling them that no one had expressed interest in the land and suddenly having an interested party.

"I'm 74 years old," Bochner said, "Now we are asked to compete with an outside (developer) in order to develop our own property?

"I don't think the presentation is fair."

The Desert Sun: www.thedesertsun.com