Lawmakers oppose eminent domain : The (Syracuse NY) Post-Standard, 7/8/05

Resolutions aimed at limiting OCIDA's power may not be legal, legislative chair says

By Rick Moriarty

Onondaga County Legislator James DiBlasi and Salina Town Councilor Mark Nicotra said Thursday they will introduce resolutions opposing the use of eminent domain against private property needed for the proposed Destiny USA Research and Development Park.

DiBlasi and Nicotra, who are running for re-election this year, said their resolutions also would call for no use of eminent domain condemnation proceedings unless they were approved by an elected body. They said a government body whose members do not have to go before the voters in an election should not have such power.

Robert Congel, the research park's developer, has asked the Onondaga County Industrial Development Agency to use its eminent domain powers to acquire private property he says he needs for the 325-acre park at the southeast corner of Interstates 90 and 81 in Salina. The private land includes 29 businesses, most of which are at the southeast corner of I-81 and Seventh North Street.

The agency has taken no action on the request, with several members saying they opposed using eminent domain and others saying they were concerned that the 29 businesses would be driven out of business if their relocation costs were not completely paid by the developer.

The agency's directors are appointed by the county Legislature. But the agency gets its eminent domain powers and other authority from state law, and most of its actions including condemnations of private property under eminent domain do not require the approval of an elected body.

Nicotra said he will introduce the resolution Monday to the Salina Town Council. DiBlasi said he will introduce it to a legislative committee possibly the planning and economic development committee soon.

They said they were not opposed to the research park itself, just the taking of private property for a private development. Under state law, industrial development agencies can take private land for economic development projects, but must pay the owner the fair market value of the property. The U.S. Supreme Court recently ruled that such takings are constitutional even if the land is turned over to a private developer.

"It's just an awful precedence for a private developer to take private property for their own gain," said Nicotra.

He said the resolutions would not be binding on the industrial development agency, but would put town and county elected representatives on the record "for or against" the use of eminent domain for the research park.

Nicotra represents Salina's 4th Ward, which includes the proposed site of the research park.

DiBlasi represents the county's 7th District, which does not include the park site, but does include land on Syracuse's North Side where Congel has talked about building a convention center.

Legislature Chairman Dale Sweetland questioned whether the resolution is necessary in light of the fact the research park project may be dead, at least in Salina.

A Destiny executive, David Aitken, said last week the company pulled all of its personnel off the research park's planning after the industrial development agency refused June 22 to approve an agreement that would have committed the agency to using its eminent domain powers. He would not say if the company would continue pursuing the site, look for another location for the park or drop the project.

Sweetland said there also may be a question about the resolution's legality since the industrial development agency gets its authority from state law. It might have to be framed as a request for the state Legislature to change the law, he said.

OCIDA has threatened to use its eminent domain power twice in the past - for an industrial park and for a waterfront redevelopment project, both in Clay. Both times, it wound up negotiating purchases of the land.

The Post-Standard: www.syracuse.com

Whose domain is eminent? The (Greenville MI) Daily News, 7/8/05

Guest Column

By Arthur M. Compton

If there is anything in our Constitution that with some justification is called a necessary evil, it can probably be found in the Fifth Amendment.

That amendment says, in effect, that governments — such as cities — may seize the property of private citizens as long as (1) the seized property is to be put to public use and (2) the owner shall receive "just compensation." That legal process is known as "eminent domain."

It seems to have been generally agreed, until now, that public use meant to create things like roads and bridges that would be used and owned by the general public.

The term "just compensation" can be argued endlessly without resolution and so probably has had a negative effect on public opinion, which is that the seller, under duress, has been "taken" along with his property.

My only observation of the process at work is the experience of a friend whose home was involved in a highway widening project some years ago in Grand Rapids. Eminent domain descended upon him and made him an offer. His home, an elderly piece of property, had been for sale for some time without success.

The city offer was the best he had so he quickly accepted. Ray feels that he won that transaction. Having seen his new modern home on Hake Street, I'm inclined to agree with him.

What has brought eminent domain to the front page today is the recent decision of the city of New London, Conn., to make, through the use of eminent domain, certain properties available to a development for a privately owned office complex. In time, this will provide an increase in tax revenue for the city.

The New London owners appealed to the Connecticut Supreme Court, contending that tax revenue did not constitute public use. The court disagreed. A later appeal to the U.S. Supreme Court agreed with the lower court.

I dislike the courts' decisions because it seems inappropriate that either private of corporate profit should play a part in eminent domain negotiations. Both courts have stretched the term "use" out of all semblance to that intended originally.

However, commenting on the amendment in its present form, the World Book Encyclopedia says, "In some cases, governments give the power of eminent domain to corporations that intend to use privately owned land for projects that benefit the public."

Possibly it was that precedent that influenced both courts in their New London decisions.

The Daily News: www.thedailynews.cc

Arthur M. Compton is a retired consulting engineer

Legislature steps into eminent-domain battles: In Business Las Vegas (NV), 7/8-15/05

By Alana Roberts

Although the U.S. Supreme Court recently ruled that government bodies can take away private property in the interest of economic development, the Nevada Legislature has made the process more difficult.

The Legislature passed two bills during the recent session that make it more difficult for governmental bodies to take private property. One revises Nevada law so that it requires governmental bodies to meet four out of nine criteria to condemn a piece of property before taking it. The other forces governmental bodies who take land for open space projects to pay the property owners not only for the property but also for "goodwill" costs such as lost business income.

Christina Dugan, director of government affairs for the Las Vegas Chamber of Commerce, said the two bills go a long way toward protecting the rights private property owners have.

"We're very supportive of the two bills passed this session strengthening the eminent domain regulations and the burden government has to meet to take your property," Dugan said. "We're very concerned about that (U.S. Supreme Court) ruling, but we feel some of the legislation passed will help Nevada to prevent what happened in Connecticut."

Dugan said although some companies, particularly larger or more profitable ones, do benefit from land takings, she said it's in every land owner's interest to have their rights protected.

"Allowing too much discretion makes it difficult for businesses to engage in long-term planning, no matter what their size," Dugan said. "At the end of the day, it's about protecting the fundamental rights all businesses have. When you start to erode property rights no one is immune from a taking."

However, James J. Leavitt, an eminent-domain lawyer at the Law Offices of Kermitt L. Waters, said the new Nevada legislation doesn't go far enough to protect property owners from unfair takings. He said the legislation that requires governmental bodies to meet more criteria to condemn private property for public use doesn't allow for the property owner to fight the government's decision in court unless there's a finding of bribery or fraud.

"In my opinion I think that statute is meaningless," Leavitt said. "The government can come forward and say they've met these four criteria and no one can challenge that unless there's a finding of bribery or fraud. That's just silly. What we need... is that the findings by governmental bodies are subject to judicial review."

Leavitt represented the Pappas family in its 11-year eminent-domain fight against the city of Las Vegas. He said his firm is working to start an initiative petition to change the Nevada Constitution to implement a property owners' bill of rights. He said his firm hopes to get the issue on the 2006 general election ballot.

"What that bill of rights would state is that private property could not be taken from one private land owner and given to another to increase the tax base," Leavitt said.

He said the firm doesn't oppose takings that will be used for "true" public use such as for a school or a roadway.

"The hot issue is redevelopment," Leavitt said. "Ninety-nine percent of the time the government takes private property to build a public road or a park. What becomes very disturbing is when they take private property and give it to another private entity."

Doug Kurdziel, an eminent-domain lawyer at Jones Vargas who has represented both land owners and governmental bodies, said the new U.S. Supreme Court ruling doesn't necessarily mean the end of the right to own property. He said the ruling strengthens the court decisions already made on the issue.

"The Constitution is still alive and well," Kurdziel said. "I think it reaffirms what the courts already said. They (property owners) still have the right to say, 'No, not today. This is wrong.' If they do that there's still going to be a judicial decision."

In Business Las Vegas: www.inbusinesslasvegas.com

The Tyranny Of Eminent Domain : (Marin County CA) Monthly Coastal Post, 7/05

The government should not be able to seize property from one
private party and transfer it to another.

By Larry Salzman and Alex Epstein

You do not own your property. That is the meaning of the Supreme Court's June 23 ruling in Kelo v. City of New London, which held that local governments may use the power of eminent domain to transfer private property from one private owner to another in pursuit of "the public interest."

This result ended the hope and the battle of seven property owners - the last remaining of more than 70 families whose homes and businesses were targeted for demolition five years ago by the city of New London, Connecticut, to make room for a 90-acre private development, including offices and a proposed hotel. Susette Kelo, a nurse, and one of the property owners, bought and painstakingly restored a home that initially was so run-down that she needed to cut her way to the front door with a hatchet. After she had achieved her dream home, she was informed by the local government that her home was condemned, and ordered to vacate within 90 days.

What justifies this treatment of Kelo and the other owners, who simply want to be free to live on their own property? The seizures and transfers, the government says, are in "the public interest" - because they will lead to more jobs for New London residents and more tax dollars for the government. A study cited by the dissenters showed that this type of justification was given more than 10,000 times between 1998 and 2002, 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?"

To such government officials, the fact that an individual earns a piece of property and wants to use and enjoy it, is of no importance - that matters is "the public."

But as philosopher Ayn Rand observed, "there is no such entity as 'the public,' since the public is merely a number of individuals . . . . the idea that 'the public interest' supersedes private interests and rights can have but one meaning: that the interests and rights of some individuals take precedence over the interests and rights of others." In the context of the Kelo case, the idea that "the public interest" trumps private property rights simply means that the desires of some individuals for property they did not earn and cannot get from others voluntarily, trump the rights of those who did earn it and do not want to sell it. Why are their rights trumped? Because some gang with political pull doesn't happen to like how these individuals are using their property.

This is unjust and un-American. America was founded on the principle of individual rights, including the right to life, liberty, and the pursuit of happiness. What do these rights mean if an individual is not free to remain in and enjoy the house he chooses to build his life around, simply because others could use it to create more jobs or tax revenue? Just as it would be unjust for the government to shut down the printing presses of a newspaper because its reporting is unpopular, so it is unjust for the government to raze a house that an individual has earned, developed, and loves, no matter how many cry that the land should be put to other use.

The Supreme Court's decision against the property owners in Kelo is, in the words of Justice Clarence Thomas from his dissenting opinion, a "far-reaching, and dangerous result." As Justice Sandra Day O'Connor, another of the four dissenting justices, wrote: "all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded - i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public - in the process." And as Dana Berliner, an attorney for the owners, argued, this means that no one's property or home is truly safe: "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."

Property owners beware: the next casualty of "the public interest" might be you.

The Coastal Post: www.coastalpost.com

Larry Salzman is an attorney and Alex Epstein is a fellow at the Ayn Rand Institute in Irvine, Calif. The Institute promotes the ideas of Ayn Rand — best-selling author of Atlas Shrugged and The Fountainhead and originator of the philosophy of Objectivism.

Eminent domain decision surprises officials: Ambler (PA) Gazette, 7/8/05

By Linda Finarelli

The recent U.S. Supreme Court decision expanding a municipality's ability to seize private property for economic development has taken some public officials and land use experts by surprise.

While the power of eminent domain has long been used by government to take land for highways, parks and other public uses, and more recently blighted areas for redevelopment, the June 23 ruling appears to have expanded that power.

In a 4-3 decision, the high court ruled that New London, Conn., could seize a neighborhood through the use of eminent domain and permit a private developer to build a hotel and office space in its place that would generate much higher tax revenues.

"I was shocked by it," said state Rep. Kate Harper, R-61, a land use attorney and former Lower Gwynedd Township supervisor.

The ruling "seems to be an expansion of eminent domain," which goes back to the Magna Carta and is an essential part of the law, permitting government to seize a property for public uses with the property owner getting just compensation, Harper said.

"I've often counseled municipal clients to be careful that [their use of] eminent domain be viewed as a public purpose," she said, "not a substitute of one owner for another with a greater tax potential.

"I think eminent domain can be an important tool for government to use for public purposes, for parks and highways," Harper said. "I recognize [Lower Gwynedd] would not own Penllyn Park without eminent domain," she added, referring to the seven-year fight by Lower Gwynedd to obtain the parkland during Harper's tenure on the township board.

The concern is taking land not for a public purpose, Harper said, and whether the high court's ruling "is a signal that it's OK to replace non-blighted properties to get more tax revenue."

"Urban redevelopment and renewal is an important strategy in our growth," she said, but "we need to make sure areas [seized] on the basis of blight and redevelopment are really blighted."

"It's fundamentally un-American," state Rep. Josh Shapiro, D-153, said of the high court ruling. "This country was founded on the right to property, beliefs, speech. This decision seriously undermines the right to property."

The Connecticut statute talks about acquisition for economic development and redevelopment, but not all states do, noted land use attorney Marc Jonas with Eastburn and Gray in Blue Bell. In Pennsylvania, municipalities have the power to condemn land for public purposes and some redevelopment authorities have the power to seize land for redevelopment in blighted areas.

The Supreme Court's decision presents a possibility for abuse, he said. "In a blighted neighborhood [eminent domain] is a good tool," Jonas said. "In other areas, where you could gain more tax revenue [by seizing property], it could be abused."
Jonas said he has seen an increasing use of condemnation by municipalities "to effect redevelopment or for the common good.

"A number of towns are in sore need of a shot in the arm, but it's one thing to take land for a public purpose and a whole other to flip it into the hands of a private developer," Jonas said.

Pennsylvania courts would not have sanctioned taking non-blighted property and putting it in the hands of a private developer prior to the high court's ruling, he said. "Now it opens the door."

In his opinion, Jonas said, "the court went too far in not really including specific standards to prevent the potential for abuse."

The decision does say that states could weigh in with greater restraints, Jonas noted. To condemn land and put it in the hands of a private developer - "the Legislature could try to plug that hole. I see an opening for the states to rein in on that."

"I would support legislation at the state level to make it difficult, if not illegal, to take [private property] for economic development purposes," Shapiro said.
The decision seems to imply, that if Abington, for example, felt it was necessary to revitalize an area for tax purposes that it could take properties and build a shopping mall, Shapiro said. "I think that's fundamentally wrong.

"I would have a more narrow definition of public use - for roads and bridges and public parks," he said. "For economic development is a real slippery slope."
The ruling has caused "great consternation" in Harrisburg, Harper said July 1, noting a bill limiting eminent domain in the state had been introduced that day.
"My worry is that in the rush to restrict [eminent domain], we might throw out the baby with the bath water; it does have some valid and useful purposes," she said. "We should define the uses for which eminent domain can be put in Pennsylvania ... we need a tighter definition of blight."

Ambler Gazette: www.zwire.com


Texas gov wants lawmakers to curb eminent domain: Reuters, 7/8/05

By Joan Gralla

Texas Gov. Rick Perry on Friday called on the legislature to curb the state's power to seize land through eminent domain, reacting swiftly to a recent Supreme Court decision that hurt property owners' rights.

The Texas governor called for "limiting the use of eminent domain to take private property for private parties or economic development purposes." He also urged the legislature to support amending the Texas constitution to shore up Texans' rights to own property.

"The Supreme Court's ruling would allow the government to condemn your family's home, bulldoze it and build a new shopping mall or some other kind of economic development project simply to generate more tax revenue," the Republican governor said in a statement.

Last month the governor, aiming to reform school funding, called the legislature back for a special session.

Even before the nation's top court ruled a city can take a home or business that stands in the way of a development project, two states enacted laws to restrict this use of eminent domain, according to Larry Morandi, a director with the Denver-based National Conference of State Legislatures.

Utah and Nevada this year approved the measures before the Supreme Court on June 23 decided that New London, Connecticut, could take 15 properties for a project that would complement a nearby research facility by the Pfizer Inc. drug company.

Only about 10 state legislatures are still in session and could consider ways to protect property owners this year, Morandi said. But he looks for a burst of new bills in January, when about 44 legislatures will return and have a chance to address the Supreme Court's controversial ruling.

The states likely will take one of two approaches: adopting outright bans on using eminent domain to restore blighted areas, or setting tougher standards for determining whether an area is so downtrodden the state should step in and restore it, Morandi said. The second strategy could also include enacting stiffer laws requiring a state to negotiate with property owners before taking their properties, he added.

Utah came close to banning the state from taking land for economic development, while Nevada adopted somewhat less strict curbs, Morandi said.

Reuters: www.today.reuters.com


WR council ... blocks eminent domain: The (Macon GA) Daily Telegraph, 7/6/05

By Julie Hubbard

[The Warner Robins GA] city council passed a resolution against any form of eminent domain in Warner Robins.

"The City of Warner Robins shall not take private property for future use by another private developer for the sole purpose of economic development or redevelopment," council member Steve Smith read from the resolution that disagrees with the recent U.S. Supreme Court ruling giving city or state governments the power to seize property for redevelopment.

"This kind of thing is not for us," [Mayor Donald] Walker said.

Daily Telegraph: www.macon.com

Legislature may limit eminent domain powers: The Daily Texan (Univ of Texas at Austin), 7/6/05

By Marie Delahoussaye

Legislation that would limit government power to seize private property passed through a state House committee Tuesday at the Capitol.

State Rep. Frank Corte, R-San Antonio, proposed the constitutional amendment as a reaction to a U.S. Supreme Court ruling last month that authorized the taking of private land for private development.

Corte's amendment would prohibit use of eminent-domain seizures, if the primary purpose is economic development.

"The protection of private property dates back to the writing of the Magna Carta in 1215," Corte said. "I intend to take up this call to arms."

Under current Texas law, a governmental entity, such as a city or state may use the power of eminent domain to seize private property for public use.

The University is currently considering using eminent domain to seize property now occupied by Player's hamburger restaurant in order to build a 1,000-car parking garage.

Player's co-owner Carlos Oliveira said he's determined not to sell Player's and doesn't think UT has the right to take it from him.

James Wilson, director of the Campus Real Estate Office, said he's no lawyer, but the parking garage would benefit the public good by improving a public university.

"If a parking garage is not part of the public purpose of running the University of Texas, I don't understand it," Wilson said.

In a press conference last week, Corte referenced the Player's controversy as a case in which eminent domain is being abused. At that point, however, he was unclear whether the language in his proposal would apply to public universities.

The version of his proposal the committee passed Tuesday solved the problem by clarifying that the state, and therefore all public institutions of higher education, are included in the law. However, in order to benefit from the new legislation, Player's would still have to show that the primary purpose of the University's project is "economic development."

Corte's proposal raised questions in committee over how to determine the primary purpose of a project and what constitutes public use.

In the recent decision, the Supreme Court gave explicit authority to the states to define public use but ruled that it can include economic development.

"We may need to go the route of defining public purpose," said Rep. Robert Cook, D-Eagle Lake. Cook said the law needs to be specific to prevent governments from invoking key phrases to justify anything as a public purpose.

While many members agreed the issue would likely require further consideration, they agreed to pass the proposal without delay in hopes that it will be addressed by the whole Legislature during the special session ending later this month.

Gov. Rick Perry said that until public school finance reform is solved, he will not expand the call of the special session to address other issues.

If passed, Corte's constitutional amendment will be up for voter referendum in November.

The Daily Texan: www.dailytexanonline.com

Protesters Target Eminent Domain: (New London CT) Day, 7/6/05

Scores rally against ‘injustice' of events in New London case

By Kate Moran

It might be the law, they said, but that doesn't mean it's right.

Scores of protesters packed the sidewalk, the steps and the wide concrete railings leading up to City Hall on Tuesday evening with a message for the city councilors who were gathering upstairs for their biweekly meeting: they can still discard their plans to remove seven homeowners from the Fort Trumbull neighborhood to make way for a commercial development.

Dissent, voiced in letters to the editor and phone calls to city leaders, had been building in the two weeks since the U.S. Supreme Court validated the city's plan to use eminent domain to promote economic growth, and it coalesced Tuesday when protesters from around New England gathered to say the decision, whatever its legal justification, simply does not sit right with the average person.

“I came because of the injustice of it all,” said Flo Stahl, a resident of Avon. “It's so clear that it's unfair. If it can happen in New London, it can happen anywhere.”

Opponents of eminent domain found a sympathetic ear in state House Minority Leader Robert Ward, the North Branford Republican who plans to introduce legislation during a special session that would forbid governments from seizing property to foster private development. In a speech during the rally, he said the state should adopt a moratorium on all takings until the state can consider the legislation.

Ward said his efforts to curb the eminent domain power had gathered momentum since the public began agitating against the Supreme Court decision. He had gathered signatures from two-dozen legislators who supported the bill, including those of Democrats, such as Steven Mikutel of Griswold, who also spoke at the rally.

Gov. M. Jodi Rell, whose predecessor, John G. Rowland, was instrumental in the Fort Trumbull redevelopment, issued a statement Tuesday in support of a special legislative session in which lawmakers could address public concerns about eminent domain.

“Gov. Rell strongly believes that the rights of homeowners should not be trampled upon in favor of the advancement of economic development interests,” said a spokesman, Adam Liegeot.

Scott Bullock, an attorney for the Institute for Justice, the law firm that represented the Fort Trumbull homeowners, hailed state lawmakers for their bipartisan efforts to curb the reach of government power, a response he said was refreshing during this era of political divisiveness.

The “amazing thing” about the Supreme Court decision, said Bullock, is that it has “met with universal condemnation and outrage from across the nation and across the political spectrum.”

Yet at least one Republican group was trying to leverage the eminent domain issue to tarnish the other party. Common Sense CT, a conservative lobbying group, will begin airing a radio spot today portraying Democrats as in favor of “big business and big government” and against the interests of “people like you and me.”

Such partisanship was not on display at the protest, where participants from as far as Kentucky waved posters, sang folk songs and chanted and clapped in support of the property owners. Police, who corralled protesters behind barricades so they would not block street traffic, estimated their numbers to be several hundred.

They wore tricorner hats and invoked the language of the Constitution to portray the rights of individuals as sacred and superior to the rights of government, which some called tyrannical and out of touch with common people. They also appealed to logic and good sense: the government, they said, did not need the 15 houses at Fort Trumbull when they had nearly 90 other empty acres where developers could build.

“Kelo v. New London never argued against development in the Fort Trumbull area. What we found difficult to understand was why we couldn't be a part of it,” said Susette Kelo, the plaintiff who gave her name to the case. “And this has never been about money, as some people would have you believe. There is no amount of money that could replace our homes and our memories. This is where we chose to settle, and this is where we want to stay. This is America, the home of the free, isn't it?”

After the rally, many of the protesters filed into the council chambers, where they continued to plead with city leaders to remove the threat of eminent domain. None of the council members responded to the criticism except for Deputy Mayor Bill Morse, who clarified a minor point made by one of the protesters.

In an e-mail message Tuesday, the chief operating officer of the New London Development Corp. said the city had adhered closely to the Constitution and the Bill of Rights when it invoked eminent domain to promote economic development.

“What has happened in this particular instance is that the highest court in the land has said that the interpretation of these documents that has existed for many, many years is still valid,” David Goebel wrote. “Nothing the city or NLDC did in carrying out their responsibilities deviated from the rights imposed on citizens. We are a land of laws — laws that must be observed.”

The Day: www.theday.com

Eminent domain cheats owners: Indiana Statesman (Indiana State Univ), 7/6/05


By Chuck McDonald

On June 23 the Supreme Court ruled in a 5-4 decision that cities and states may take private homes, businesses and land for its owners and give it to other private companies that could provide the city or state with more tax revenue but the purported tax revenue does not always come to pass often times because big business are given breaks to bring their company to different areas.

The ruling stemmed from a New London, Connecticut case in which city officials want to take home owners' land by using eminent domain to apply to "economic development" because it will increase tax revenue by allowing a 270 million Pfizer research center. The government generally uses the law to condemn slums as well as build highways, parks and other public use facilities. Justice Sandra Day O'Connor wrote in a dissenting opinion, "The court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use." Justice O'Connor is correct.

The new program's proponents of the new development say the government will use it carefully and not abuse the power. The government can not be trusted. The government is an entity that continually takes more power little by little or in this case large chunks at a time and invades our lives. Once the government usurps power from the people it is never returned. This use of eminent domain sounds like a communist line of thought in that the government distributes resources.

One critic of the new policy, Logan Darrow Clements, suggested to town officials in New Hampshire that Justice David Souter's home be taken to create a hotel to increase tax revenue. Justice Souter joined in the majority of the Supreme Courts decision in favor of the new use of eminent domain.

Congress is also working to prevent abuse by local governments by not allowing government funds to go to private companies that benefit from eminent domain use in a bill sponsored by Republican representative Scott Garrett from New Jersey.

If a private company wants to use land owned by individuals it should be willing to pay for it on its own and not use eminent domain. Property owners are required to be paid market value for their property when a government uses eminent domain. This is sensible when the land will be used for parks, highways, or schools but when a private company wants to use the property the value goes up because the owners know the suitors can pay more and should raise their price. That is part of being in a capitalist society which is the way it should be.

Property owners all over the U.S. should be outraged. Citizens should boycott businesses that take over people's personal property because they want cheap land and the local government wants more tax revenue. As officials get the smell of more money in their noses it is likely to spread to all areas in the U.S.

Congress needs to do more by defining a set of rules to reign in rogue towns that wish to pull private property from owners for other private interests. Ideally states would govern the local eminent domain but since the Supreme Court ruled on the issue Congress will have to create the rules. Property owner's should write their representatives and demand the stop of the eminent theft of their land.

Indiana Statesman: www.indianastatesman.com

Eminent Domain vs Economic Development: KFVS-12 (Cape Girardeau MO), 7/6/05

By Ryan Tate

The United States Supreme Court ruling in the Kelo vs. City of New London case has Heartland politicians wanting to take action.

"I think everybody should be concerned about the Supreme Court's Ruling," Missouri Governor Matt Blunt said.

Last month's ruling gave cities and municipalities the opportunity to take land from private citizens under the Constitution's Fifth Amendment. In the past, leaders could take land under "eminent domain," for the betterment of the community. The court's ruling broadens that scope, stating the land can be taken for "economic opportunity" as well.

"We need to do something in Missouri to protect that most important right of an American, and that is to own a home," Sen. Jason Crowell said. Crowell represents the 29th District in the Missouri Senate.

"We're not going to do it on a whim for a restaurant or hotel, it will have to be a major project for us to consider it," McCracken County Judge Executive Danny Orazine said.

"The folks of Southern Illinois should be ticked off. They need to look at judge candidates who support private property rights," Representative John Shimkus of Illinois said.

Blunt says he developed a task force to review federal and state eminent domain laws to come up with criteria that state and local governments meet before they shift property from private to public use.

KFVS-12: www.kfvs12.com

Eminent domain gets public hearings: Wisconsin Radio Network, 7/5/05

By Jackie Johnson

Eminent domain will soon get even more attention in our state. With so many questions, fears and confusion, Wisconsin Attorney General Peg Lautenschlager has decided to have four public hearings in the state to discuss eminent domain and how homeowners would be affected. Lautenschlager says she's concerned about the definition of the US Supreme Court interpretation of what could be an appropriate public taking. "If not more narrowly defined, [it] really leaves open the door for public corruption because high bidders could, by political favor, attempt to get from government properties which they desire."

Lautenschlager says she wants to have town hall type meetings, with people representing all sides of the issue. "You know many public takings do indeed enhance the public good. But it also, as I said, opens the door for political corruption. It certainly does impede on individual property rights. So I think all of these things need to be discussed and bring people into their government in terms of having their ideas and thoughts be known."

Last week's Supreme Court decision leaves considerable discretion up to the states in terms of defining public purpose on eminent domain laws. Lautenschlager says it pretty much leaves the door wide open for the states to do what they want. State law needs to be clarified one way or another, whether by constitutional amendment or clarifying state statutes. Lautenschlager says she'll consult with attorneys general in other states on the matter. She says she wants to avoid lawsuits based on ill-defined public purposes. No time or dates have been set for the meetings that will be held in Eau Claire, Janesville, Milwaukee and Wausau.

Wisconsin Radio Network: www.wrn.com

House Votes on Eminent Domain: Black Hills (SD) Portal, 7/6/05

Stripping Home Owners of Property Rights Will not be Federally Funded in Spite of Supreme Court Ruling

By Family Research Council

Recently, the House voted to use the spending power of Congress to reign in a Supreme Court ruling in Kelo v. City of New London which strips the property rights of private citizens by granting the government power to seize private homes and transfer it to a private developer.

The House measure, which passed 231-189, denies federal money to any city or state project that used eminent domain to force people to sell their property to make way for more profitable private projects.

"The threat to freedom from the Kelo decision is very real. If a hostile government decides a shopping mall would produce a more profitable tax base than your family home or the family business then the government could grab that land for use by a private developer," says Tony Perkins, President of Family Research Council.

"This instance is exactly why the President needs to promote judges to the Supreme Court who are for a fair judiciary. Allowing private interests to seize homes, non-profit organizations and other businesses is a distinct abuse of power and while, it might be economically beneficial to a specific community, this opportunity for private developers could spell disaster for families and local entrepreneurs."

Black Hills Portal: www.blackhillsportal.com

Your Land Is My Land: The New York (NY) Times, 7/5//05


By John Tierney

Two questions I'd like to ask candidates for Sandra Day O'Connor's job:
  1. Does the Constitution forbid the government from seizing your home and giving it to someone else?
  2. If you're not sure, would you be willing to tour Pittsburgh before taking this job?

Justice O'Connor had no problem with the first question. Noting that the Fifth Amendment allows property to be taken only for a "public use" like a road, she rejected arguments that it could be given to a developer just because the public could benefit from new jobs and tax revenues. By that logic, she argued in one of her last opinions, no one's home or business would be safe from anyone with a better use in mind for it.

But her side was outvoted, 5 to 4, by justices not inclined to be too literal about the Bill of Rights. They were pragmatists, arguing that land grabs like this had previously been allowed, which is quite right. And that's why I recommend a trip to my hometown to see the long-term effects.

Pittsburgh has been the great pioneer in eminent domain ever since its leaders razed 80 buildings in the 1950's near the riverfront park downtown. They replaced a bustling business district with Gateway Center, an array of bland corporate towers surrounded by the sort of empty plazas that are now considered hopelessly retrograde by urban planners trying to create street life.

At the time, though, the towers and plazas seemed wonderfully modern. Viewed from across the river, the new skyline was a panoramic advertisement for the Pittsburgh Renaissance, which became a national model and inspired Pittsburgh's leaders to go on finding better uses for private land, especially land occupied by blacks.

Bulldozers razed the Lower Hill District, the black neighborhood next to downtown that was famous for its jazz scene (and now famous mostly as a memory in August Wilson's plays). The city built a domed arena that was supposed to be part of a cultural "acropolis," but the rest of the project died. Today, having belatedly realized that downtown would benefit from people living nearby, the city is trying to entice them back to the Hill by building homes there.

In the 1960's, the bulldozers moved into East Liberty, until then the busiest shopping district outside downtown. Some of the leading businessmen there wanted to upgrade the neighborhood, so hundreds of small businesses and thousands of people were moved to make room for upscale apartment buildings, parking lots, housing projects, roads and a pedestrian mall.

I was working there in a drugstore whose owners cursed the project, and at first I thought they were just behind the times. But their worst fears were confirmed. The shopping district was destroyed. The drugstore closed, along with the department stores, movie theaters, office buildings and most other businesses.

You'd think a fiasco like that would have humbled Pittsburgh's planners, but they just went on. They kicked out a small company to give H. J. Heinz more room. Mayor Tom Murphy has attracted national attention for his grand designs - and fights - to replace thriving small businesses downtown and on the North Side with more upscale tenants.

The city managed to clear out shops and an office building to make room for a new Lazarus department store, built with $50 million in public funds, but Lazarus did not live up to its name. It has shut down and left a vacant building. Meanwhile, the city's finances are in ruins, and businesses and residents have been fleeing the high taxes required to pay off decades of urban renewal projects and corporate subsidies.

Yet the mayor still yearns for more acquisitions. He welcomed the Supreme Court decision, telling The Pittsburgh Post-Gazette that eminent domain "is a great equalizer when you're having a conversation with people." Well, that's one way to describe the power to take people's property.

But I think a future Supreme Court justice would have a different view of eminent domain after touring Pittsburgh's neighborhoods, especially those that escaped urban renewal: the old-fashioned business districts with crowded sidewalks and the newly gentrified neighborhoods with renovated homes and converted warehouses. The future justice would quickly see what sets the success stories apart from Gateway Center and East Liberty. No politicians ever seized those homes and businesses for a "better use."

For Further Reading

New York Times: www.nytimes.com

John Tierney: tierney@nytimes.com

Local Florida Agency Sues to Acquire Properties Through Eminent Domain: South Florida Sun-Sentinel, 7/5/05

By Mireidy Fernandez

A Delray Beach, Fla., agency has filed a lawsuit against three Carver Square property owners who have turned down offers to sell their vacant land so the city can build affordable housing in the area.

The eminent domain action, filed Wednesday in Palm Beach County Circuit Court, claims the Community Redevelopment Agency must acquire the seven lots for a redevelopment project.

The CRA has offered to pay owners $33,000 per lot, based on the land's appraised value. None of the owners accepted.

"We've been unable to reach an agreement because they want more money," said Bill Doney, the CRA attorney. "If we can't work it out, we'll try to get a judge to rule that the CRA can get the property."

But the attorney for Harry and Kathleen Webb, who own four of the lots, said his clients don't want to sell. They would like to build houses instead, said Kerry Schwencke, the couple's attorney.

"We have an expert witness that tells us the lots are worth more," he said, noting negotiations continue. The other two lot owners couldn't be reached for comment Thursday, despite attempts by phone.

The vacant land in question is part of a two-block area in the Carver Square neighborhood where the soil is contaminated. For years the site was used as an illegal landfill, upon which homes were built later. The properties are south of West Atlantic Avenue, in the vicinity of the 700 blocks of Southwest Second Terrace and Southwest Second Court, and Southwest Third Street.

Part of the affordable housing initiative includes buying 12 deteriorating homes in Carver Square. The CRA has been negotiating deals for those homes. Out of a total eight vacant lots, the city owns one.

The CRA's legal battle to get the properties came days after the U.S. Supreme Court ruling that extends the rights of governments to seize private property, or use eminent domain, for public use to increase an area's tax base or create jobs. But Doney said there's no connection between that high court's ruling and what the CRA is trying to do.

"It's more of a coincidence," Doney said. "The U.S. Supreme Court's decision deals with economic development as opposed to redevelopment. In Delray, this is more of a blighted area where there are problems with the soil."

In fact, the CRA estimates it will spend about $400,000 to excavate and clean up the contaminated soil, dispose of the debris and replace it with fill. In addition, it would cost the agency $50,000-$60,000 to demolish the 12 homes.

CRA officials have maintained all along the goal is to bring affordable or workforce housing to the city, where land values are increasingly high and fewer people who work here can live here. The median price of a home in Palm Beach County is $390,000, said Joe Gray, CRA assistant director.

"We need to have all the property so we can have an affordable housing project there," said Diane Colonna, CRA executive director.

And the need for affordable housing is immense, said Lamar Shuler, a lifelong city resident who serves on the CRA board.

"We just want to get people into homes and into nice developments and make them feel good ... to get them out of the mentality that they have to live in a slum," he said.

Aside from revamping certain pockets or neighborhoods in the city, the CRA has worked on a plan to restore West Atlantic Avenue, where minorities have historically settled. As redevelopment continues west, people will be displaced, Shuler said, so the CRA is looking to alleviate some of the housing crunch when that happens.

"We want to try to have something in the works so that those that will be displaced will have a place to go," Shuler said.

South Florida Sun-Sentinel: www.sun-sentinel.com

Eminent domain ruling not seen as having impact locally, for now : Jacksonville (NC) Daily News, 7/5/05

By Bernhardt Dotson

While there should be no immediate impact from a recent U.S. Supreme Court decision regarding local governments and property rights, that doesn't mean it will stay that way.

The High Court's decision regarding eminent domain, local governments and property rights won't be an issue until the General Assembly decides to make it one, according to legal experts like David Lawrence with the Institute of Government at the University of North Carolina.

Jacksonville city attorney John Carter agreed.

"The city operates under the jurisdiction of the state," Carter said.

"The matter wouldn't effect us in North Carolina, because the legislature hasn't given local authorities the OK to do anything."

But the ruling does open the door for legislators to possibly change the current state law.

The court ruled that New London, Conn., has the authority to condemn property - with payment or just compensation - in carrying out a development plan to revitalize its economy. The court said that the condemnation was for a public use, and not unconstitutional under the Fifth Amendment.

Current state law outlines nine conditions under which cities and counties can condemn private land, including those to create or expand roads, parks, sewer lines and government buildings. Private development isn't a part of the list.

"This decision is based on Connecticut law, which allows for use of eminent domain for economic development purposes," said S. Ellis Hankins, executive director of the North Carolina League of Municipalities. "North Carolina statutes do not authorize local governments to use eminent domain for general economic development purposes. Therefore, this decision will not change the authority (N.C.) municipalities and counties exercise in this area."

The case, Kelo v. New London, Conn., saw justices vote 5-4 that New London officials could condemn residents' houses and raze them to make way for a private office complex. New London officials argued that private development plans served a public purpose of heightening economic growth that outweighed homeowners' property rights.

The ruling comes amid Jacksonville's talks about a proposed $46 million civic center complex along Marine Boulevard. That proposal - $15 million of which would be the city's share - includes a conference center/hotel and an accompanying privately funded military museum. The proposal is mired in economic and political squabbles, drawing criticism on everything from location to taxpayers' funding of it.

The ruling did help protect some important interests for cities, Hankins said.

"If the Supreme Court had ruled against the city of New London, however, the decision might have raised constitutional concerns about condemnation by our local governments to improve blighted areas and build or expand airports and other public facilities related to economic development," said Hankins.

"We were pleased to see that the court majority decided that the Fifth Amendment leaves room for judicial deference to legislative decisions by local elected officials. It is ironic that the closing of the New London submarine base was proposed while this case was pending, further underscoring the need for reasonable government efforts to help create jobs."

Jacksonville City Councilman George Mainor said he values the rights of property owners. He doesn't foresee much local impact.

"I believe that property rights are important," he said. "From what I understand, I don't think the ruling effects local governments - not in North Carolina anyway."

Daily News: www.jdnews.com

Effort afoot to revisit eminent domain; protesters rally in New London: (NY NY) Newsday, 7/5/05

By Susan Haigh, Associated Press

The top Republican in the [Connecticut] state House of Representatives gathered support Tuesday for a bill that would ban eminent domain for economic development projects.

House Minority Leader Robert Ward, R-North Branford, collected about two dozen signatures from House members, including Republicans and some Democrats. All of them support voting on the legislation during a possible summer session planned in the coming weeks to consider bills vetoed by the governor.

Ward's staff said he needs 76 co-sponsors for the bill to be taken up. But Democratic legislative leaders said they are not certain that would guarantee a debate on the legislation. Some Senate Republicans have also said they want a special session.

Gov. M. Jodi Rell, a Republican, announced Tuesday that she supports Ward's efforts to have the General Assembly call itself back into session to deal with eminent domain. Rell has not said whether she would use her powers to call lawmakers back to the Capitol.

Ward's effort comes in the wake of last month's U.S. Supreme Court ruling that allows New London to seize 15 homes in its Fort Trumbull neighborhood to make way for a private riverfront economic development project. The 5-4 decision broadens the eminent domain power, granting local governments greater rights to seize private property to generate tax revenue.

But the court also ruled that states can restrict that power. At least eight states — Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington — already forbid eminent domain for economic development unless it is to eliminate blight.

"We have an obligation as elected officials to protect the rights of property owners and we must act swiftly before more rights are trampled upon to accommodate some developer looking to make a profit," Ward said in a written statement.

Fort Trumbull residents and their supporters rallied Tuesday at New London's city hall to call attention to their case.

About 300 protesters, from as far away as Kentucky, Maryland and New Jersey, gathered in advance of a City Council meeting at which residents asked that the decision to take the property be reversed.

Susette Kelo, whose unsuccessful lawsuit went all the way to the U.S. Supreme Court, said the court's decision "should scare a lot of people."

"Minorities and middle class people will lose their property rights and rich people, too, because there's always somebody richer than you."

The City Council heard comments from residents and others, but took no action Tuesday.

Councilwoman Margaret M. Curtin, who said she's received e-mails from around the United States denouncing her as a communist and a Nazi, defended the actions by city officials.

"The biggest part of this community believes that what we've done is proper," she said.

New London resident Bill Cornish told city officials they should be ashamed.

"Shame. Shame for allowing this eminent domain to continue this long," he said. "Turn this mess around. Let our neighbors live in their homes."

Ward, the Republican leader of the House, had proposed a bill during this year's regular legislative session that would have restricted the use of eminent domain, but the bill died in the Judiciary Committee. Last week, Republicans attempted to resurrect the issue during a special session, but Democrats who control the legislature argued that lawmakers should wait and draft a comprehensive bill during next year's regular session.

"It's certainly an issue we're going to be working on, whether it's in the veto session or not," said House Majority Leader Christopher Donovan, D-Meriden. "I want to hear from the people. I know I want to hear from my constituents. Right now I'm not prepared to vote on it. I need to know more."

Senate President Pro Tempore Donald E. Williams Jr., D-Brooklyn, said he prefers to wait until February, when the next regular legislative session convenes.

"This is no different than what we were addressing during the special session," he said. "It's a very complicated issue that we want to look at as part of the regular committee review process, with due care and consideration, and not be rushed into by a press release."

Ward, an attorney, said his bill is based on months of research by his staff and himself. His proposed changes would strike the section of existing law that allows development agencies, with local approval, to acquire property by eminent domain.

His bill would not affect government's ability to take private property in blighted areas.

"The effect of these changes would be to prevent the unfair taking of private property for the purpose of economic development, while at the same time preserving the rights of municipalities and the state of Connecticut to acquire property under eminent domain for true public use," Ward said in a letter to his fellow House members.

Newsday: www.newsday.com

Lawmakers Move to Mitigate Court’s Eminent Domain Ruling: The NewStandard (Syracuse NY), 7/5/05

by Jessica Azulay

Rare alliances are forming in response to a controversial Supreme Court ruling that the Constitution allows governments to force people to sell their homes to make way for private development projects. Late last week, some conservative lawmakers joined with liberal Democrats to introduce legislation that would deny federal funding to redevelopment projects that acquire land through eminent domain, a policy allowing governments to seize private property for public use.

The Supreme Court last week ruled in Kelo v. New London that local governments have broad authority to determine how "public use" is defined. According to the decision, governments can even condemn privately-owned homes and give the property to private developers if they believe that the public will benefit.

But critics of the 5-to-4 ruling fear that private developers will exercise political and economic clout to pressure lawmakers, while individual homeowners or small businesses will have relatively little influence.

"I worry about these little cities and towns where big, wealthy developers can influence elected officials with large campaign contributions and undermine what public use and eminent domain was meant to be," Representative Maxine Waters (D-California), who co-introduced the legislation in the House, told the San Francisco Chronicle.

The legislative attempt to mitigate the impact of the Supreme Count ruling was joined by Republican Representative Richard Pombo, also of California, and other conservatives who have long promoted the primacy of property rights.

In a first step toward the legislation, the House voted 231-to-189 Thursday in favor of an measure introduced by Representative Phil Gingrey (R-Maryland) ammending an appropriations bill that would bar the departments of Transportation, Treasury, and Housing and Urban Development from providing money "to enforce the judgment of the United States Supreme Court in the case of Kelo v. New London."

The NewStandard: http://newstandardnews.net

Eminent domain case hardly a Trail of Tears: Manchester (CT) Journal Inquirer, 7/5/05

By Chris Powell

Just how far do individual property rights in land go? Connecticut's latest legal controversy was also its first. For the state's aboriginal inhabitants had no conception of individual property rights in land, and so were rudely surprised when the goods they accepted from the European settlers were construed not as simple reciprocations of hospitality but as bills of sale, terminating the rights of the original occupants to the land they had long lived on.

Now the occupants of New London's Fort Trumbull neighborhood are almost as rudely surprised by the U.S. Supreme Court's 5-to-4 approval of the termination of their property rights by the city's power of eminent domain. Indeed, the Fort Trumbull residents and property-rights absolutists across America wail that the court's decision in the case of Kelo v. New London has destroyed property rights everywhere in the name of redevelopment.

Although the New London decision may be closer to the Indian view of property - collective rather than individual ownership of land - than anything since Georgia "redeveloped" the Cherokees into Oklahoma, it's really not likely to change much.

For in holding that the power of eminent domain, recognized in the Fifth Amendment of the U.S. Constitution, can be invoked for economic development, rather than just for a public-owned facility, such as a road, parking lot, school, dam or airport, the Supreme Court only reaffirmed earlier decisions. And the high court left state courts free to interpret their own state-constitutional provisions on eminent domain and left states and municipalities free to decide whether to use eminent domain for economic development.

Further, as the Supreme Court's majority noted, if government's taking property was not to be judged in itself a "public use" - but, rather, was to be judged according to the degree of future public use of the property - the courts would be forever deciding which were good uses and bad uses: decisions of policy, and thus best left to the elected agencies of government.

Besides, a determined government might easily get around a more restrictive interpretation of the Fifth Amendment - the interpretation that the Fort Trumbull property owners sought - by first putting seized property to the simplest of traditional public uses (such as a parking lot) for a few years before moving on to use it for economic development.

In fact, even within a more restrictive reading of "public use" (a road, parking lot, school, dam, airport), individual ownership of property in land has never been absolute in the United States.

Since the country's oldest tax may be the property tax, U.S. citizens have never really owned property in land as much as they have rented it from the government. Those who fail to pay their tax are foreclosed upon. Of course the government also claims royalties for any wealth that is removed from the land - oil, gas, minerals, water. Absolutism in property rights in land is less a characteristic of democracy than of feudal states with hereditary privileges.

Yes, there will always be both good and bad economic-development plans: plans with more benefit to the public and plans with more benefit to special interests, such as politically influential developers.

But that is true of everything in government; there is policy that benefits the many and policy that benefits the few. Yet when bad policy is made by the elected agencies of government, democracy can do something about it. When bad policy is made by courts, which are usually unelected, doing something about it can be virtually impossible.

That's why the Supreme Court's decision in the New London case is the last word only in federal constitutional law; it is not necessarily the last word in the city or state. For the Fort Trumbull property owners may still appeal to the City Council and the Connecticut General Assembly.

Besides, in New London the complaint about developers is phony, for the Fort Trumbull property owners would not be the least assuaged if the city were doing the construction work and planning to own the hotel, conference center, housing, and offices it envisions for the land at issue. Government has long used private companies to accomplish its ends.

As much as the property owners may be entitled to sympathy, New London is entitled to more. It is a struggling city of 26,000 with the second-smallest area of Connecticut's 169 municipalities. The average Connecticut municipality has 33 square miles, but New London has only 5½ - most of it built up and much of it rundown.

Yet because of its location, at the mouth of the Thames River, the city has enormous potential. If that potential could be realized, the city might again become prosperous. But because the city is already so built up, this cannot be achieved without changing some property arrangements, without making higher uses of property - and, yes, without some of what is called gentrification.

Paying seven families fair compensation for their property - compensation determined by a court, if they wish; compensation they can spend to acquire other property in the city - isn't going to put anyone out on a new Trail of Tears.

Journal Inquirer: www.journalinquirer.com

Task Force Planned On Eminent Domain Issue: KOTV-6 (Tulsa OK), 7/5/05

A couple of state lawmakers are forming a task force to study eminent domain issues in Oklahoma.

The US Supreme Court ruled last month that local governments can seize people's homes and businesses against their will for private development.

The decision gives cities wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue. But it has raised concerns in Oklahoma and elsewhere about private property rights.

State Representative Mark Liotta of Tulsa and Senator Clark Jolley of Edmond are organizing the task force. The Republican lawmakers say they want to develop legislation that will give greater protection to private property owners in the state.

KOTV-6: www.kotv.com

Eminent domain decision affects all: South Bend (IN) Tribune, 7/5/05

Our Opinion

The Supreme Court ruling in favor of the city of New London, Conn. and private developers, and against the rights of private property owners who will now lose their homes, is one that should be viewed with concern by all Americans.

The individual's right to his home and property has always been sacred in American law.

The use of eminent domain by communities seeking to replace blight or make needed public improvements is not new. It has allowed governments to condemn private property and then use it for airports, highways, schools, parks and other improvements deemed to be in the best interests of the community as a whole.

What is new, according to Justice Sandra Day O'Connor in her dissent, is the endorsement of economic development as an appropriate public use.

"The government now has license to transfer property from those with fewer resources to those with more," O'Connor said. "The founders cannot have intended this perverse result."

In Indiana, the subject of eminent domain became an issue before the General Assembly when Rep. David Wolkins, R-Winona Lake, sought to ban state or local governments from condemnation of private property for commercial uses unless the owners had rejected offers of at least 150 percent of assessed value.

Unlike Connecticut, where the city of New London sought to take well-kept homes, Indiana law only allows condemnation in blighted areas. The law also requires that property owners be fairly compensated for their property.

Wolkins' bill, opposed by local governments, was not successful, but the idea behind it is to be the subject of a state study commission.

Justice John Paul Stevens said he found it surprising that the definition of what constitutes a public use had never been defined.

In his majority opinion, Stevens determined that public use should be defined as "public purpose" and said he saw "no basis for exempting economic development from our traditionally broad understanding of public purpose."

He said the plan in New London "unquestionably serves a public purpose."

O'Connor countered: "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded."

In our view, the definition of what is a "public use" ought to be limited to what can be used by the public — a highway, for instance, or a public building.

A private development is not necessarily a public use just because it enhances the tax base.

The decision does not prohibit states from putting their own restrictions on the use of eminent domain powers, as Indiana has done and should continue to do.

There is nothing wrong with eminent domain. It is a tool that every community needs to maintain its viability and rid itself of blighted areas.

It is the potential for misuse that must be guarded against.

South Bend Tribune: www.southbendtribune.com


Eminent case of domain poisoning: The Washington (DC) Times, 7/4/05


By Mark Steyn

Do you know Nancy Pelosi? Her job is leading the Democratic members of the House of Representatives. They should have asked for references. Here's her reaction to the Supreme Court's recent decision on "eminent domain"
"It is a decision of the Supreme Court," said the Minority Leader. "So this is almost as if God has spoken."

That's not how Abraham Lincoln saw it: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers."

I'm with Abe. On this Independence Day weekend, the people might wish to give some thought as to how they might reclaim their independence from the godlike Supremes.

Rule by the judicial interpretation of principles is problematic enough for some of us. But rule by the judicial interpretation of lack of principles takes us to dizzying new heights. Last week, in two rulings, the Supreme Court decided that (a) displays of the Ten Commandments are constitutional and (b) displays of the Ten Commandments are unconstitutional.

Don't worry, all nine judges aren't that wacky, just the deciding vote in both 5-4 decisions. That belonged to Stephen Breyer, who nixed the Ten Commandments in Kentucky but gave 'em two thumbs up in Texas. His basis was that the Texas Commandments had been there 40 years and were thus part of "a broader moral and historical message reflective of a cultural heritage," whereas the Kentucky display was newer and "a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive."

Really? Not as "certainly likely" to prove divisive as grandfathering the display of some Commandments but not others, so the only way to be sure yours is constitutional is to sue over it. For one thing, Justice Breyer didn't identify the year in which he believes the Commandments ceased to be constitutional -- 1968, 1973?

Or maybe a sliding scale? If you put up the Commandments before 1965, you can have all Ten; between 1966 and 1979, you can have six firm Commandments plus a couple of strong recommendations; from 1980 to 1991, it's two Commandments and a half-dozen lifestyle tips?

To be sure, the Supreme Court took other factors than the year of manufacture into consideration — whether the display was inside or outside, whether it was surrounded by a full supporting cast of religious artifacts or secular knick-knacks, etc. But it's hard to discern any principles here, at least when compared to their one-size-fits-all abortion absolutism.

To the best of my knowledge, Justice Breyer has never claimed you can have a first-trimester abortion in the parking lot, but for the full partial-birth you must be indoors.

A couple of days earlier, the majesty of the law had turned its attention to "eminent domain" — the fancy term for what happens when the government seizes the property of the private citizen. It pays you, of course, but that's not much comfort if you've built your dream home on your favorite spot of land. Most laymen understand the "public interest" dimension as, oh, they're putting in the new Interstate and they don't want to make a huge detour because one cranky old coot refuses to sell his ramshackle dairy farm.

But the Supreme Court's decision took a far more expansive view — that local governments could compel you to sell your property if a developer's proposal would generate greater tax revenue. In other words, the "public interest" boils down to whether or not the government gets more money to spend.

I can't say that's my definition. Indeed, the constitutional conflation of "public interest" with increased tax monies is deeply distressing to those of us who happen to think letting governments access too much dough too easily leads them to create even more useless government programs that enfeeble the citizenry in deeply destructive ways.

Nonetheless, across the fruited domain, governments reacted to the court decision by sending the bulldozers round to idle expectantly on John Doe's front lawn: Newark. N.J., officials moved forward with plans to raze 14 downtown acres and build an upscale condo development; Arnold, Mo., intends to demolish 30 homes, 14 businesses and the local Veterans of Foreign Wars to make way for a Lowe's Home Improvement store and a strip mall developed by THF Realty.

Get the picture? New Hampshire businessman Logan Darrow Clements did. He wants to build a new hotel in the town of Weare, and he's found just the right piece of land — the home of Supreme Court judge David Souter. In compliance with Justice Souter's view of the public interest, Mr. Clements' project will generate far more revenue for Weare than Mr Souter's pad ever could. The Lost Liberty Hotel will include the Just Desserts Bar and a museum dedicated to the loss of freedom in America.

I don't know about you, but the last time I was in Weare, N.H., I couldn't help thinking what the town urgently needs is a good hotel. If it will help the Board of Selectmen in their decision, I personally pledge to take the most expensive suite in the new joint for the first month it's in service. I'll be sluicing plenty of big columnist bucks around town, racking up big New Hampshire Meals Tax payments at Weare's finest restaurants and, along with my fellow guests, doing far more for the local economy than one ascetic, largely absentee bachelor like Justice Souter could. Indeed, under Judge Souter's definition, it would be hard to think of a property doing less for the public interest than his own house. So let's get on with putting his principles into action and with luck his beloved but economically moribund abode will be rubble by the end of the year.

North of Weare, by the way, many Granite State municipalities face problems with land that generates even less revenue than David Souter's. In small North Country towns like Warren, for example, half the land belongs to the White Mountain National Forest, and thus is off the tax rolls. Can the Select Board of Warren force the federal government to make way for a logging camp? Or even for a rusting doublewide for David Souter once he is booted out of Weare?

How does that banned-in-Kentucky Commandment go? "Thou shalt not covet thy neighbor's house, nor his ass." However, if thy neighbor is an ass and thou hast financing for a luxury hotel, covet away.

Lincoln was right about a robed state: a handful of whimsical commissars settling the rights of 300 million citizens is not republican government. This Independence Day, America needs a "new birth of freedom."

The Washington Times: www.washingtontimes.com

In eminent domain cross-hairs: Pasadena (CA) Star-News, 5/4/05

Monrovia officials eye site of auto repair shop for housing development

By Sonya Geis

When Bernard Buller bought an old gas station in Monrovia 22 years ago, the corner lot facing railroad tracks and a cemetery must have seemed like the last place anyone would want to put houses.

But Monrovia has changed. Now, with a decades-long city agenda to upgrade Monrovia's image and property-tax values, and a red-hot housing market, Buller's lot has become a prime development site.

Buller doesn't want to sell his property, at the corner of Duarte Road and California Avenue. But city officials insist they need his lot to improve the whole block. And they're initiating eminent domain proceedings to get it.

The city has been buying property on the block for years, some of it vacant and crime-ridden, Scott Ochoa, Monrovia city manager, said. "We really wrestled with what to do with this property we assembled," he said.

Soon there will be a major development nearby where the Gold Line will stop, he said. Given that, and the need for affordable housing, "all these issues come together in terms of the best use of that land, which is residential home-ownership," Ochoa said. And without Buller's land, "it's not really a usable development site."

The city wants to put in 15 to 25 condominiums on Buller's corner, Ochoa said. They have offered Buller increasing sums for the property, now home to Buller's hobby activities and two tenants, an auto mechanic and a smog-tester. The last offer was $709,000, Ochoa said. Buller wouldn't even consider it.

Buller, 67, lives in San Dimas. He spent his life savings to buy the property in 1981 to have a place to work on cars. He understands the city's position, he said.

"The thing they're thinking of building is very high-gloss, very fancy," he said. With a developer eyeing the site, "they've got Mr. Dollars out there saying, ‘I'm not going to put up housing there and have people looking out their windows at that (junk).' "

Buller says nearby properties the city already acquired were used as drug houses or were magnets for drunken fights on Friday nights.

But he's paid off the mortgage on his property. He relies on his tenants' rent for income. He can't find any other suitable place to work on cars. He just doesn't want to leave.

"I'm dug in there, big time," Buller said. "Everything in this world is not about money. This is my life. This income I have coming in, I need that to live. And what I'm doing with my life is my hobby. I like my life the way it is."

The city will hold a public hearing at a regular City Council meeting Tuesday night at 7:30 in City Hall to initiate eminent domain proceedings on the land.

Pasadena Star-news: www.pasadenastarnews.com

High court eminent domain ruling spurs local worries: Business Journal of Phoenix (AZ), 7/3/05

The U.S. Supreme Court's ruling last week backing up government eminent domain powers in redevelopment cases has Arizona property rights advocates distressed such powers will run amuck to the determent of homeowners and small businesses.

The court decision in a Connecticut property case could help regional redevelopment efforts by taking the federal courts out of the picture for those appealing eminent domain moves.

Greater eminent domain powers could help government entities acquire parcels for Arizona State University's downtown campus, the Tempe Marketplace shopping center and revitalization efforts in south Scottsdale, downtown Glendale and along Grand Avenue in west Phoenix.

That worries property rights supporters in the political and legal realms.

"The decision has put wind in the sails of redevelopment-minded cities and developers who would get into bed with those cities," said Steve Hirsch, a condemnation expert and attorney in Bryan Cave's Phoenix office.

Hirsch said he could see the city of Tempe attempting to use wider eminent domain powers in efforts to acquire parcels for the development of the 1.3-million-square-foot Tempe Marketplace shopping center slated to be built by Vestar Development.

That center is expected to be home to a number of big-box stores (Target, Barnes & Noble, Best Buy) as well as a Harkins Theatres movie complex, but some property owners on the site do not want to sell to the city and developer.

The city of Phoenix also is expected to use eminent domain powers to purchase downtown parcels for an expansion of ASU's downtown campus.

Greater eminent domain and government- taking powers also could help in Phoenix Mayor Phil Gordon's program to redevelop a corridor between the state Capitol and ASU's Tempe campus.

Local property-rights experts point out that the state constitution limits eminent domain powers to public projects, not private ones. That provision played out in the city of Mesa's failed attempt to forcibly acquire a small brake shop and turn the site over for an Ace Hardware store.

"Before the central-planning crowd in Arizona gets too excited about a new tool in their toolbox, they should be reminded that Arizona's founders were far too smart to leave property rights to the federal government." said Steve Voeller, president the Arizona Free Enterprise Club, a conservative advocacy group. "The Arizona Constitution provides us added protection."

Hirsch said he also believes the Mesa case involving Bailey's Brake Shop will protect state property owners from government takings for private developments.

Jay Kaprosy, vice president of the Greater Phoenix Chamber of Commerce, said his business group received a number of calls from small businesses worried about government property powers.

Kaprosy expects to see tightening of eminent domain powers by the Republican-dominated state Legislature next year.

"The decision does not preclude states from placing further restrictions on eminent domain, and it appears likely that the Legislature will take action to clarify Arizona's policies," Kaprosy said.

That could include legislation or a ballot question.

Economic developers and redevelopment supporters welcomed the decision, hoping it will help clear up future eminent domain disputes that may hamstring key projects.

"I feel that the judicious use of condemnation for redevelopment purposes does make sense as an important tool, but past abuses have led to a backlash in Arizona against this," said Scottsdale Economic Vitality Manager David Roderique.

Roderique said he does not expect to see widespread use of eminent domain in Arizona, even after the Supreme Court decision. He also worries that cities lack a comprehensive set of tools to encourage in-fill development or new projects and that it remains easier to build in outlying suburbs with undeveloped land.

John Bowers, director of the Arizona Association for Economic Development, defended eminent domain, saying that without it, key projects won't get built.

"Without the leverage afforded by eminent domain, the last parcels needed for any large projects requiring land assembly will have infinite value, and those projects just won't happen," said Bowers.

The Connecticut case, Kelo v. New London, involved government efforts to forcibly acquire residential properties and turn the land over to pharmaceutical giant Pfizer for a research facility. Pfizer is paying a $1 a year lease on the parcel, and some of the displaced homeowners have lived in the impacted homes for decades.

The court decided by a 5-4 decision that the economic benefit of the Pfizer project is a worthy reason for eminent domain. Conservatives on the court, as well as Justice Sandra Day O'Connor, dissented, arguing the ruling erodes private property rights and the less-influential will get pushed aside in the name of redevelopment.

Raymond Hunter, a partner with the Phoenix law firm Galbut & Hunter, said the Connecticut ruling means that local eminent domain cases will be fought out here in Arizona.

"Local ordinances will continue to apply to local decisions. Local governments are free, if they wish, to make eminent domain more stringent than the 5th Amendment requires," said Hunter. "Thus, eminent domain disputes will continue to be fought and resolved at the state and local level."

Business Journal of Phoenix: http://phoenix.bizjournals.com/phoenix

Property Owner Wins Eminent Domain Battle: Fox News, 7/4/05

The sign at the edge of Romulus, Mich. proclaims: "Industry and its citizens working together." But try convincing cabinet shop owner Ed Hathcock.

"I just cannot imagine how we can give such a broad brush of power to local, municipal government," Hathcock said.

Hathcock's property abuts Detroit's airport where the county had planned a 1,300-acre industrial park. But when Hathcock turned down the county's buyout offer, the local government made a play to take his land to use on the project.

The Supreme Court of the United States' recent ruling that local governments can seize private property for private economic development has put the affected property owners across the country in a fighting mood, but those in favor believe taking property is justified if it suits the public good.

"Our constituents, our citizens are saying: 'We want more opportunity; we want more jobs in the area,'" Wayne County executive Bob Ficano said.

The majority of landowners accepted Wayne County's buyout offer for the industrial park, but Hathcock claims he got a raw deal.

So the county took him to court to seize his land, wielding its power of eminent domain. Hathcock lost in two lower courts but won a ruling last year in Michigan's Supreme Court.

"Every American believes that ... they have sanctity in their land, that holding land is a right and that it's not a right that can be alienated by a politician because he feels he has a better use for it," Hathcock said.

Hathcock's victory reversed two decades of legal precedent in Michigan and made the state's eminent domain laws among the strictest in the nation. For a government to take land from a private property owner, it has to be for public projects only, such as road construction or for parks.

But many in government here say that Hathcock's case undercuts Michigan's ability to lure business.

"The economy now is global. A company says, 'Do I locate in China or do I locate in the Midwest? What are the advantages that I have?' One of the biggest advantages is being able to assemble land," Fiacano said.

Fox News: www.foxnews.com

Rein in Abuse of Eminent Domain: Victoria (TX) Advocate, 9/30/04

Guest Column
By Henry A Miller

A chain of events caused construction of 277 huge transmission towers in Karnes and Goliad counties. In 1998 the Texas Public Utility Commission and electric utilities decided to take private property in order to construct huge transmission lines across the state prior to deregulation taking effect. Commissioners and utilities agreed the only problem facing them was just how contentious land owners might be (Wall Street Journal, 1999). There would be no regulatory problems because the chief regulator, Chairman Patrick Henry Wood, III was in their pocket.

Americans supposedly have property rights protected by State and federal constitutions. Laws and regulations are supposed to govern the taking of property. The law of eminent domain requires a public need.

When your property rights are threatened by a profit making company helped by the government, you can give in or fight. In fighting you are going against all odds. The trend over the last twenty to thirty years has been that when your property rights are threatened you might as well give up because the big and powerful can not be stopped. The courts tended to approve the takings. This has caused those wanting to take your property and the regulators to become lax in following the laws. Why bother, property owners are defeated before the start.

100 or so property owners first knew of the proposed line in July 1999. Most took conventional wisdom and gave up. Some decided to see what could be done. We sought expert legal advice from lawyers that deal in eminent domain and procedures at the PUC. One said it was pointless to practice before the PUC. One said Commissioner Wood made up his mind that the 277 were needed. Wood controlled the other commissioners and was judge and jury in power line matters. Public need is supposed to be the reason that private property is taken.

A short chain of events was to rubber stamp the application. Utilities apply. The charade of following procedures was to happen. Application approved, no one the wiser, no matter what, a done deal. “No matter what” happened, contentious property owners chose to question the process? Two lawyers were found. A principled administrative law judge was assigned.

The utility asked to be ordered to construct the 277. The PUC had the right to do so and avoid a hearing to prove the need. Knowing it was a mere formality; the PUC ordered a hearing where the utility was to prove the line was necessary for the service, accommodation, convenience, or safety of the public. Knowing it was just a part of the charade the utility didn’t bother much in their attempt to prove the need. To the actors’ surprise, Administrative Law Judge Barbara Owens ruled that the utility failed to prove the line was necessary… and recommended the application be denied.

Regulations give the PUC limited rights to overrule the ALJ. Going beyond the limits, Wood overruled the ALJ saying the line was needed to improve market conditions. Market conditions serve the utilities and the power generating companies for their profit.

“When government can take property to give it to private parties, interest groups will try to commandeer that power to enrich themselves. The force of the state becomes a prize to be won in a political contest. Groups which hope to profit from forced redistributions of property will attempt to influence the government to use eminent domain in their favor. But, properly applied, the public use limitation prevents this by making it impossible for interest groups to profit”, Pacific Legal Foundation, in reference to a July 2004 decision by the Michigan Supreme Court said to have national implications. That court reversed a twenty year trend that allowed governments to take from one and give to another in order for the other to make a profit.

The 277 towers symbolize government taking from A and giving it to B so B can profit. Lawyers, Catherine J. Webking and Shannon K. McClendon have taken our case through the administrative hearing, district court, 3rd Court of Appeals, and on August 24 filed with the Texas Supreme Court.

Wallace Jefferson has been appointed Chief Justice, Texas Supreme Court. “He is perfect for the job because he will decide issues based on the law — he has no political agenda whatsoever, and he is not beholden to anyone," Lamont Jefferson(lawyer and brother of Wallace) (San Antonio Express 9/14/04). The same can be said of ALJ Barbara Owens, not so of Chairman Patrick Henry Wood, III.

The Texas Supreme Court now has the opportunity to right a wrong, to force the PUC to follow the law and to take away the utilities’ political prize.

We are therefore hopeful that the 277 towers will come down.

Note: The Texas Supreme Court declined to rule on the case. On April 4, 2005 a request for rehearing was filed at the Supreme Court. The Court has ordered the PUC and the utilities involved to file a response, due 6/29/05, to our filing for a rehearing. The Texas Farm Bureau on 6/29/05 filed an amicus brief in support of our case.

Victoria Advocate: www.thevictoriaadvocate.com

Henry A Miller: hamiller@awesomenet.net


Eminent domain set to be discussed: (Bowling Green KY) Daily News, 7/3/05

By Jim Gaines

An ordinance that would prohibit Bowling Green from using its eminent domain power to buy property and turn it over to private developers is back on the city commission’s agenda for Tuesday night.

Commissioner Brian Strow proposed the ordinance in January, but it was tabled by a 3-2 vote in anticipation of a U.S. Supreme Court ruling on whether eminent domain could be used for such economic-development purposes.

That court ruling came down June 23, granting governments sweeping latitude in using eminent domain.

Immediately afterward, Strow renewed his proposal to create a new section of city code to assure city property owners that the city won’t use eminent domain as part of its ongoing downtown redevelopment efforts.

Commissioner Brian “Slim” Nash said Friday that he has been in discussions with Strow about the matter.

“But it has really been more of a process discussion, asking him when he would bring it back up,” Nash said.

Strow could not be reached for comment.

Nash said he has studied the complete Supreme Court ruling and has been soliciting input from constituents, asking them to respond by noon Monday.

“As for where I stand now on the ordinance, I have yet to make a decision,” he said.

The proposed ordinance states: “The city, or any agent of the city, shall not use eminent domain, or the threat thereof, to take private property from a private property owner, except in those specific instances herein stated: the building, expansion or maintenance of public buildings, public parks, public utilities, public roads, public bridges and public rights-of-way.”

Mayor Elaine Walker said June 24 that she opposes the ordinance change.

The city’s redevelopment plan was written in part to specifically allow that use of eminent domain, and several of the projects now under way were turned over to private developers. Although none of the land sales for those projects were forced through eminent-domain proceedings, some downtown property owners say the explicit threat of eminent domain makes any negotiations inherently unfair.

Daily News: www.bgdailynews.com

Eminent domain ruling likely won't have local impact: (Michigan City IN) News-Dispatch, 7/3/05

By Jason Miller

A controversial vote by the U.S. Supreme Court last week to make the taking of personal property by local municipalities easier likely won't effect efforts by Michigan City to purchase the Blocksom and Co. property.

"If we're looking at acquiring property for public access or redevelopment, then the decision will have no impact," Mayor Chuck Oberlie said. "The tool is there regardless of that decision."

Last week the Supreme Court ruled 5-4 that local governments may seize people's homes and businesses against the owner's will for private economic development.

The ruling seemingly expanded parameters of the Fifth Amendment, which allows governments to take private property through eminent domain for public use.

Indiana law also allows for the taking of private property for public use if the property or surrounding area is considered a blight on the community.

The city - which wants to tear down the Blocksom factory at the corner of Fifth Street and Michigan Boulevard and redevelop the area - has yet to begin negotiations on the purchase of Blocksom.

In recent months, however, the notion the city might look into taking the property by eminent domain has popped up.

Blocksom President Andy Swann agreed with Oberlie, saying eminent domain is a state issue and could be brought to the table regardless of the court's recent decision.

He didn't know, however, when negotiations might begin.

"We're trying to be cooperative with the (city's) Redevelopment Commission," Swann said of the department responsible for negotiating with Blocksom. "We're going by Indiana law. It may not be an issue for us."

Oberlie has maintained throughout talks about Blocksom that eminent domain should be used only as a last resort. He has said, though, that determining fair value through the courts - which is what eminent domain proceedings accomplish - is sometimes the best option.

"Sometimes it's best to go that route, though, if there is a large sum of money involved," he said. "It assures everyone involved that the process was done properly."

The current process and that approved by the Supreme Court last week both walk a line between maintaining personal property rights and taking them away.

In that light, Oberlie said, the new ruling - which he thinks will likely be appealed and possibly overturned - should be used sparingly because it could force state-level legislators to look more closely at their own statutes.

"I was surprised (by the ruling). The ability to hold private property is pretty sacred in this country," he said. "A public need must be determined. You can't just take someone's house to put up a fireworks stand once a year.

"You have to really figure out what the level is that makes doing it worthwhile."

The News-Dispatch: www.thenewsdispatch.com