Eminent domain ruling not understood: [Fairfield CA] Daily Republic, 8/5/05


By Robert Lando

Given the media sound bites, it's easy to understand why public opinion has weighed so heavily against the Supreme Court's ruling in Kelo vs. City of New London, Conn.

In that case the court ruled that the city of New London could use its power of eminent domain to purchase 15 homes on property needed to implement an ambitious redevelopment plan that would result in the condemned property being owned by a private developer. What made the case newsworthy was New London's frank admission that the area was not "blighted," a designation ordinarily used to justify redevelopment. Rather that city needed to implement its redevelopment plan in order to help relieve the community's "economic distress."

The court's opinion outraged conservative California congressman and governor wannabe, Tom McClintock, who declared that a government agency could now "literally take a house from someone it doesn't like and give it to a person it does like."

That comment, although breathtakingly wrongheaded, was typical of the angry denunciations of the Kelo decision by conservative property rights advocates at one end of the political spectrum and liberals, at the other, who railed against the notion that governments should have the power to side with greedy developers against homeowners.

Redevelopment laws have been around for at least 50 years. Those, like California's redevelopment statutes, give local governments the power to cure "blight" by acquiring private property, either voluntarily or by condemnation, and then selling it to private interests who must develop it in accordance with an established redevelopment plan. In addition to the obvious benefit of clearing slums and other blighted areas, laws such as California's give communities monetary incentives for implementing redevelopment by allocating to them a disproportionate share of the real property tax increases that result from development.

Under the tutelage of former City Manager, B. Gale Wilson, Fairfield was a leader in the creative use of redevelopment laws. In fact, Fairfield's proclivity for finding open space to be "blighted" within the meaning of those laws caused the Legislature to tighten the definition of that word for redevelopment purposes. Even so, California, like most states with redevelopment laws, gives cities broad discretion in determining what constitutes blight and what land can be included in a redevelopment area (and therefore made subject to the power of eminent domain) in order to cure blight.

The reaction to the Kelo case indicates that the public's attitude toward the power of eminent domain is lagging about 50 years behind its attitude toward land-use controls and zoning. It is settled law that governments can exercise enormous control over the uses that can be made of land. It can legally charge huge fees for building permits, limit development to one unit per 260 acres in agricultural areas, limit the establishment of certain kinds of new businesses in commercial areas to protect existing businesses from competition and impose bewilderingly detailed standards for the size, color, height, and design of structures.

The majority of voters seem quite happy with the benefits derived from modern land use controls and the recent trend toward "smart growth" policies that restrict the outward expansion of cities in favor of filling available areas inside existing urban boundaries with high density development.

Faced with growing opposition to urban sprawl and limitations on development in the form of state and federal laws protecting wetlands, endangered species and farmland, it is not surprising that local governments would want the power to use eminent domain to purchase property that blocks the implementation of important land-use plans.

Assuming that it is appropriate to force the owner of a well-kept house with a nice yard in a very bad neighborhood to sell in order to implement a plan that would eliminate neighboring slums and crack houses (a common situation when blight removal is the focus of redevelopment), it would not be unreasonable for a city to want to use the power of eminent domain to purchase a hog farm blocking development of a modern industrial park or a machine shop located in the middle of a planned, low-cost housing project.

California's housing, energy and transportation crises are all largely the result of abandoning old ways of doing things without first creating the institutions needed to implement the new ways. California's legislators should carefully consider this sad fact before rushing to judgment about the Kelo case.

Daily Republic: www.dailyrepublic.com

Robert Lando is a Fairfield attorney who specializes in real estate law

Committee to hold hearings on eminent domain: Drovers Magazine, 8/1/05

On Friday [7/29/05], the House Agriculture Committee Chairman, Bob Goodlatte joined Reps Henry Bonilla (R-Texas) and Stephanie Herseth (D-S.D.) to introduce the Strengthening the Ownership of Private Property [STOPP] Act.

The bipartisan legislation was introduced in response to the narrow 5 to 4 U.S. Supreme Court decision, Kelo v. City of New London, giving local governments broad eminent-domain power to seize private property from one party and give it to another. Goodlatte was announced that the Ag Committee has been granted primary jurisdiction of this legislation and pledged to hold hearings on the issue in early September.

“This appalling (court) decision strikes a serious blow to the core values of our nation, and has far-reaching implications,” says Goodlatte. “In defining 'public use' so expansively, the Court essentially erased any protection of private property as understood by the Founders of our Nation."

The Supreme Court’s recent ruling gives local governments broad power to seize property to generate tax revenue. State and local governments can now use eminent domain to take away the property of any individual for nearly any reason, including taking property for the benefit of another individual or corporation. Cities can now bulldoze private citizens' homes or seize farmland to make way for shopping malls or other development, essentially ensuring that no citizen's property is safe, said a committee news release.

The STOPP Act will prevent governments from taking property from one private party and giving it to another. When abuses occur, the STOPP Act will prevent localities and states from receiving federal economic assistance on all economic development projects, not just those upon which abuses occur. The legislation will also make state and local governments subject to the Uniform Relocation Act, which provides fair-market value and moving expenses relocated citizens.

“I am pleased to join my colleagues in introducing the Strengthening the Ownership of Private Property Act,” continues Goodlatte. “I am committed to the principles of private property and limited government. I believe this legislation is necessary to ensure that our homes, farms, businesses, churches, and other private property will not be bulldozed in abusive land grabs that only benefit private individuals.”

Drovers: www.drovers.com

New Jersey Loses Eminent Domain Case, 8/4/05

Press Release
Forest City Ratner Bloomfield Project in Jeopardy

Carlin & Ward, Attorneys at Law

Essex County Assignment Judge Patricia K. Costello issued an order and opinion yesterday dismissing the condemnation case filed by the Township of Bloomfield against 110 Washington Street Associates. This was the first condemnation case filed by the township in its redevelopment project for the downtown center.

The decision of the court is a major setback for Bloomfield in its efforts to acquire property through eminent domain proceedings. The town’s plan was a joint venture of Forest City Ratner and Toll Brothers and included 650 residential condominiums and a 65,000 square foot Stop and Shop with an elevated parking deck.

The court found that the underlying planning process was fatally flawed. The Heyer and Gruel Planning Report improperly designated 110 Washington Street as meeting the definitions of blighted property under the Local Redevelopment Housing Law. The court said, “The record in this case is devoid of any finding that the property is detrimental to the public health, safety or welfare.”

Daniel Goldstein, spokesperson for Develop Don’t Destroy Brooklyn, a community coalition fighting Forest City Ratner’s proposed use of eminent domain in Prospect Heights, Brooklyn, said, “If Forest City Ratner and New York’s Empire State Development Corporation try to make similar blight findings in Brookyn, we are sure they will meet the same fate they have in Bloomfield, New Jersey. And clearly the lack of a planning process for the Ratner proposal in Brooklyn is a fatal flaw, as it was in Bloomfied.” Goldstein continued, “We are very happy for our allies in New Jersey, and that justice has won out, as we expect it to do so in Brooklyn.”

In addition, the court ruled that it was improper for attorney Steven Martino to represent both the planning board and the mayor and council during the consideration of the redevelopment plan and the approval of the plan by the municipality. The court said, “The Defendant argues that the attorneys’ conflicts of interest in dual representation of both the Planning Board and the Township have tainted the determination that the subject property is in need of redevelopment. Clearly, the attorneys should not have represented both public entities at the same time. Such representation is expressly barred by statute. N.J.S.A. 40:55D-24. In addition there are numerous opinions criticizing the same conduct.”

110 Washington Street previously filed an action in Lieu of Prerogative Writ which was dismissed by order of Judge Claude M. Coleman on May 27. Judge Costello ruled that Judge Coleman’s decision did not preclude her from dismissing this complaint since Coleman’s ruling was based strictly on the matter having been filed after the 45-days within which a property owner can challenge municipal action. Judge Coleman did not make any findings of fact or conclusions of law on the merits of the case.

In a companion case which was consolidated with 110 Washington Street, Lardieri et al v. Township of Bloomfield, Judge Coleman entered an order dismissing that complaint on July 20. “It is unlikely now, given the ruling of Judge Costello yesterday, that the township will file any additional condemnation complaints for the project which would include the properties owned by Alessandro Lardieri, Victor and Debbie Lewis, Lewis Santus, and Myrna and Lita Cicero, the plaintiffs in the companion case,” said William J. Ward, principal attorney of Carlin and Ward of Florham Park, N.J.

Both Ward and his partner, James M. Turteltaub, appeared on behalf of the litigants in these cases against Bloomfield. The Township of Bloomfield was represented by Catherine E. Tamasik of DeCotiis, Fitzpatrick, Cole, and Wieseler of Teaneck, N.J.

Carlin & Ward, Box 751, Florham Park NJ 07932
973-377-3350, fax 973-377-5626

The full text of the order of Dismissal and the Opinion are online at:

Alabama limits eminent domain: The Washington (DC) Times, 8/4/05

By Donald Lambro

Alabama yesterday became the first state to enact new protections against local-government seizure of property allowed under a Supreme Court ruling that has triggered an explosive grass-roots counteroffensive across the country.

Republican Gov. Bob Riley signed a bill that was passed unanimously by a special session of the Alabama Legislature, which would prohibit governments from using their eminent-domain authority to take privately owned properties for the purpose of turning them over to retail, industrial, office or residential developers.

Calling the high court's June 23 ruling "misguided" and a "threat to all property owners," Mr. Riley said, "A property rights revolt is sweeping the nation, and Alabama is leading it."

The backlash against the judicial ruling has not received much attention in the national press, although legislative leaders in more than two dozen states have proposed statutes and/or state constitutional amendments to restrict local governments' eminent-domain powers.

Besides Alabama, legislation to ban or restrict the use of eminent domain for private development has been introduced in 16 states: California, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee and Texas.

Legislators have announced plans to introduce eminent-domain bills in seven more states: Alaska, Louisiana, Oklahoma, Ohio, South Dakota, South Carolina and Wisconsin, and lawmakers in Colorado, Georgia and Virginia plan to act on previously introduced bills.

In addition, public support is being sought for state constitutional prohibitions in several states — Alabama, California, Florida, Michigan, New Jersey and Texas.

In an elaborate signing ceremony in the State Capitol's historic Old House Chamber, Mr. Riley said, "Alabamians can rest assured that their homes, farms, business and other private property are safe from being seized by government for a shopping center, or a factory, an office building or new residential development."

The signing immediately won praise from leading property rights advocates who had condemned the ruling and have lobbied state legislatures to block such practices.

"Kudos to Alabama political leaders for taking the first step toward protecting their citizens from eminent-domain abuse," said Dana Berliner, a senior attorney at the Institute for Justice, a public policy organization that conducted the first nationwide study of abusive property seizures.

The law came in response to a 5-4 decision by the high court that ruled that the Fifth Amendment's takings clause — "nor shall private property be taken for public use, without just compensation" — did not prevent the city of New London, Conn., from taking Susette Kelo's property for the expressed purpose of private development in order to gain higher tax revenue.

Although the Alabama law that the governor signed yesterday would prohibit such eminent-domain seizures, it contains an exception that would permit takeovers of blighted properties that could be turned over to private interests — a provision that critics call a loophole for future abuses.

"Alabama's blight law is particularly prone to abuse and must be reformed," Ms. Berliner said. "If legislators close the blight loophole, Alabama will be one of the best states in the country for protecting the rights of home and small business owners."

Jeff Emerson, spokesman for the governor, said yesterday that Mr. Riley would "like to talk to Berliner about this to see how it can be remedied."

The property rights movement, which had been somewhat moribund before the court acted, has spawned what many political strategists expect to be a major issue in the 2006 election cycle.

A number of bills have been introduced in Congress where the issue is winning strong bipartisan support — from California Rep. Maxine Waters, a liberal Democrat, to Texas Sen. John Cornyn, a conservative Republican.

Polls show unusual unity on strengthening property rights. A Quinnipiac University poll, for example, found that 89 percent of voters in Connecticut want the legislature to limit eminent domain. A University of New Hampshire poll found that 93 percent of state residents were opposed to taking property for private development.

The Washington Times: www.washingtontimes.com

Can anybody out there help?

It all began over 15 years ago. A friend of mine got me a job at a cute neighborhood tavern & grill in downtown Cary, Illinois. I worked there for 9 years bartending, waitressing & learning the business. In 1999, I finally persuaded the owner to sell me not only the flourishing business, but also the property, a small lot with the bar and two apartments above. On January 1st, 2000, I became the very proud owner of a fun little place I called The Cuckoo's Nest.

I had succeeded at "The American Dream". Small-town girl makes good.

Over five and a half years later, business is good. I have done some remodeling & updating. I have made The Cuckoo's Nest a great, comfortable place to eat lunch, listen to bands, or sing some home-grown karaoke. It is a financially sound business on a lucrative property on a main thoroughfare. Here is where the nightmare begins.

Last week, another business owner on my block asked me if anyone had come to see me about buying my property. I told him no and he filled me in on all the rumors about some "big-wig" developers who were going to tear down all our properties (about 13) to build a strip mall. I went to see a few other neighboring business owners only to learn that they had been made offers on their properties. The offers were for about 1/4 of their values and ZERO compensation for their businesses. Nobody has bothered to offer me a dime.

After some research, I have found out why. It is called Eminent Domain.

Friday morning, I went directly to The Village of Cary's zoning and planning commissioner. He told me that yes, they were planning on "redeveloping" a large parcel and that I am smack dab in the middle of it. After being uncomfortable with my barrage of questions, he called in the Mayor of Cary, Mr. Steve Lamal.

Mr. Lamal told me that he had been courting developers to buy "your whole block" and found one that he wanted to "work with". He told me that in the end he would use "condemnation" on any and all holdouts who would not sell. Mr. Lamal also proceeded to remind me that he, as Mayor and Cary Liquor Commissioner, holds my municipal liquor license which could be rescinded at any time. Veiled threat? You betcha.

Some of us are getting together, but we are not sure just what to do.

Can anybody help?

Cathy Joseph: cuckoo1@earthlink.net

Eminent domain even has the legislature grouching about greed : The Tennessean, 7/31/05

The late Matt Lynch, the greatest labor leader Tennessee has ever produced, was a firm believer in the devil theory of politics.

Under this theory, a successful political theory, party or candidate must set up a position in opposition to evil and cry it from the rooftops. In other words, everyone needs a devil to campaign against. Democrats, for example, used the devil of Herbert Hoover for half a century; before that, it was William Jennings Bryan's Cross of Gold.

Tennessee's legislature, reeling under the escalating ethics scandals of the past two months and eager to change the subject, has found the perfect devil. It's a devil both the left and right can rail against.

It's called eminent domain, and it's been a part of our government since the very beginning. It's the process where government condemns land held by private citizens and uses it for something else, usually a public improvement.

The current incarnation of the devil began with a U. S. Supreme Court decision in June involving a development in Connecticut. The city of New London [CT] condemned several private homes for the construction of a hotel and other private developments, using as an excuse that it would increase the tax base.

The Supreme Court, divided 5-4, said that was OK. In essence the court upheld the status quo since it said states and cities can use eminent domain however they wish. Or not.

The Tennessee Constitution, in its statement of basic rights, declares that "no man's particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefore."

If lawyers weren't involved, that would seem to mean clearly that eminent domain can only be for "public use." And, to a point, there hasn't been widespread abuse in Tennessee.

But legislators already are rushing to file bills prohibiting condemnation for the purposes of private redevelopment or to expand the tax base, anticipating the January resumption of business. Some want to amend the perfectly good constitution.

Hatred of eminent domain, for whatever purpose, is deeply engrained in Tennessee's psyche.

Maybe it started with the TVA and its dam partner, the Corps of Engineers, in the 1930s and 1940s. The agencies condemned hundreds of bottomland farms to build lakes, uprooting the living and the dead (family cemeteries were dug up and relocated). It still rankles many communities.

In the following two decades, thousands more farms were taken for the interstate highway system.

We see it as a good thing today, but the state condemned and tore down dozens of homes (and a few houses of ill repute) to redevelop Capitol Hill in the 1950s. (Only cynics would argue that another house of ill repute has sprung up there in modern times).

In the 1960s, Vanderbilt University used Nashville's eminent domain to expand its campus south into pleasant neighborhoods, and the bitter taste lingers in some quarters.

Nashville probably wouldn't have had the East Bank renovation with The Coliseum, or the Gaylord Entertainment Center, without at least the possibility of condemnation. The new West Bank development with its ballpark is a different proposition; Metro already owns most of the land. And, obviously, private interests are making a profit there.

As difficult as it may be for some private property owners, few people would want to live today without Tennessee's lakes and interstate highways. Or, for that matter, Monroe Carell Jr. Children's Hospital at Vanderbilt University.

As usual, when the legislature rushes into things to curry public favor, it risks the law of unintended consequences. No one wants to condemn someone's farm to give Wal-Mart more space, but what about industrial parks? And, in a time of diminishing tax revenues, public-private developments (such as Nashville's new ballpark) are increasingly common.

There is a certain irony in all this.

The legislature got where it is by pandering for decades to business and the divine right to make a profit; that's what those 600 lobbyists hanging around are up to. This is a legislature that describes itself as "business friendly."

Now, among Democrats and Republicans, there is something that sounds very much like a populist outcry, with lawmakers wanting to defend homeowners and farmers against greedy big businesses that would rip off poor folks under the cloak of government.

Don't bet on that becoming a trend. But it could be refreshing while it lasts.

The Tennessean: www.eharmony.com


Bills aim to restrict eminent domain: Pittsburgh (PA) Tribune Review, 7/30/05

By Mike Wereschagin

Two bills are awaiting action in Harrisburg — and more legislation is in the works — to protect property owners from a U.S. Supreme Court decision last month that allows governments to take private property in the name of economic development.

Rep. Tom Yewcic, D-Johnstown, introduced a pair of bills in the House that would bar governments from taking property from one private owner and giving it to another. Sen. Jeffrey Piccola of Dauphin County, a Republican gubernatorial hopeful, has a team of lawyers working on a bill for the Senate, as does Sen. Jim Ferlo, D-Highland Park.

Pennsylvania is among nine states with legislation pending in their state legislatures, according to the National Conference of State Legislatures. Lawmakers in 27 states have either moved to curb the use of eminent domain or are considering measures that would do so, according to the Institute for Justice, a Washington, D.C.-based libertarian law firm.

Yewcic introduced his bills July 1, eight days after the Supreme Court issued its decision.

The case, Kelo v. New London, involved 15 homeowners who refused to make way for a massive redevelopment project in the depressed town of New London, Conn. The Institute for Justice represented the homeowners and has since started a grassroots movement, called the Castle Coalition, to support state efforts like Pennsylvania's.

Five Supreme Court justices sided with New London, saying the "public use" clause in the Fifth Amendment allows governments to take property even if the property won't become publicly owned — for parks or roads, for example. Public use, in the court's opinion, includes the public benefit from private redevelopment projects that bring in more jobs and more tax money.

"That's nothing more than legalized plunder," Yewcic said. "This whole decision is un-American."

Justice John Paul Stevens however, writing for the five-justice majority, said that nothing in the court's June 23 decision "precludes any state from placing further restrictions" on eminent domain.

Yewcic's bills would put three restrictions on the use of eminent domain in Pennsylvania:

The government wouldn't be allowed to take the property from one private owner and give it to another.

The purpose of using eminent domain could not be for increasing a municipality's tax base.

If, after the property is taken, it is ever used for a "nonpublic purpose," the deed must go back to the original owner or the owner's heirs.

The House Committee on State Government has scheduled public hearings for Yewcic's bills in Harrisburg on Aug. 9 and in Philadelphia on Aug. 31. A hearing in Pittsburgh will be scheduled for Sept. 20 or 21, Yewcic said.

"The issue is something we're very interested in," said Steve Miskin, spokesman for the state House Republican Caucus. "I think the Yewcic bills will be the catalyst. ... We're definitely going to take steps to protect people's property."

Pittsburgh has a long, storied history of using eminent domain for economic development. The land for PPG Place, Gateway Center and Mellon Arena, among others, were bought using eminent domain, and the land was then passed on to private companies.

The debate still rages over whether it's been a boon or a bust. Pittsburgh native John Tierney recently wrote a column in The New York Times decrying Pittsburgh leaders' use of the power. Mayor Tom Murphy responded with a column of his own, defending the practice and saying Tierney should apologize.

Murphy threatened to use eminent domain in his bid to remake Downtown with a $522 million shopping complex along Fifth and Forbes avenues. Owners who stood to lose their buildings organized an opposition group, and the project died in November 2000 when the complex's main prospective tenant, a Nordstrom department store, pulled out.

Joseph Gariti, general counsel for the city's Urban Redevelopment Authority, said eminent domain is a useful tool to revitalize blighted areas, and it usually isn't used to take property from an owner who doesn't want to sell.

"When you run into (blighted) areas, a lot of times you'll find a lot of these properties have liens on them that exceed the value of the property," Gariti said. Often, the properties have been abandoned and the owners can't be found. "The only way they can be reused is if we clear the title to the property" by taking the land through eminent domain.

One such redevelopment project ran into a snag when the owner of the Garden Theatre in the North Side, which shows pornographic movies, refused to sell his property for redevelopment. The URA and the owner, who is the last holdout among 41 properties the city wants to raze in the depressed area, are awaiting a decision from the Pennsylvania Supreme Court. The U.S. Supreme Court decision — which deals with the right to due process and just compensation as required by the Fifth Amendment — won't affect the case because the Garden's owner is fighting the URA by claiming his First Amendment right to free speech is being infringed upon.

Allowing the government to take property to lure in businesses and homeowners is "contrary to what the framers of the state and U.S. constitutions had in mind when they created eminent domain," Piccola said. Kelo v. New London "brought to everyone's attention that public use can mean anything, as long as its couched in economic development."

Piccola said he's not sure he wants to prevent governments from using eminent domain as a development tool because it can help revitalize blighted areas. He is considering adding a provision in his bill that would change how people are paid for their property, though. Rather than paying them what the property is worth now, they might be entitled to be paid what the property is worth to the new developer, he said.

Piccola said he expects to have a draft bill ready in a few weeks.

Pittsburgh Tribune-Review:

Eminent domain issues not always so imminent: The Connecticut Post, 7/29/05

By Charles Walsh

It all comes down to this: How much do Americans trust their government?

Not much, if the results of this week's Quinnipiac Poll on eminent domain are any indication. The poll found that no less than 89 percent of Connecticut's registered voters favor a state law that would restrict government's power to take private property for private development projects.

If we could identify the 11 percent who apparently do not favor greater restrictions, we suspect many would list their occupations as elected officials, urban planners and developers.

As the lopsided poll results reverberated through the halls of government buildings all over the state Thursday, a couple of state legislators were gathering people on both sides of the eminent domain issue for an informal forum to discuss the explosive controversy.

Last month our we-know-which-way-the-wind-blows state lawmakers vowed to put some crimps in the state's easy eminent domain laws.

The purpose of the session, said Rep. Michael Lawlor, D-East Haven, and Sen. Andrew McDonald, D-Stamford, was to find common ground on how to stop government from abusing its power to seize property, without totally destroying what many consider a vital weapon in the fight to restore crumbling northeast cities.

Eminent domain popped way up on the public's radar last month when the U.S. Supreme Court ruled the government can indeed force a person to sell property and, in turn, transfer it to another private owner such as a developer. The only reason the government needs to justify the taking is that the new use for the land will, theoretically at least, yield more tax dollars than what the old owner was paying.

Suddenly people in once-safe suburban enclaves were thinking: "Hey, they could take my house!"

People in long-unsafe urban neighborhoods' reaction was this: "So what else is new?" For decades, maybe centuries, poor city residents have stood by helplessly as politicians and developers conspired to take their homes in the name of community betterment. Much of the time the betterment turned out to be vast stretches of vacant lots.

The Supreme Court case involves a group of homeowners in New London who are trying to stop that city's development authority from taking their properties and giving them to a developer who wants to build a hotel and shopping center.

The homeowners, including Susette Kelo, the courageous woman whose name is on the lawsuit, were schedule to speak at Thursday's Hartford session.

There was no lawsuit a couple of years ago in Bridgeport, when houses in a few square blocks located between Seaview and Central avenues just south of the railroad tracks were being scooped up by Bridgeport Economic Development Corp. (BEDCO).

The agency wanted the land for what its Web site still describes as a "competitively priced business incubator space" called the Bridgeport Innovation Center. Most of the homeowners merely took whatever "fair market value" the agency offered them and moved on.

One exception was Ruth Joel. BEDCO offered her the absurd sum of $69,000 for the 13-room house on Central Avenue, where she and her extended family had lived quite contentedly for decades. Joel dug her heels in. Eventually BEDCO caved and found her a comparable house not far away for considerably more than that first paltry offer.

Today most of the two- and three-family houses — Joel's among them — have been bulldozed away to provide that "incubator space."

As is often the case, very little incubation or innovation has taken place so far on the newly vacant lots.

The Connecticut Post: www.connpost.com

Rell seeks limit on eminent domain: Stamford (CT) Advocate, 7/30/05

Governor backs seizure of new London homes
By Tobin A. Coleman

Gov. M. Jodi Rell wants the Legislature to craft a proposal to limit the power of eminent domain, but believes the New London redevelopment project that sparked what has become a national controversy should move forward.

The homeowners who challenged the city and lost should have their houses spared if at all possible, she said.

At her regular monthly news conference, the governor said she planned to meet yesterday afternoon with her legal staff to discuss specifics of the "very complicated and very personal" issue of eminent domain Last month, the U.S. Supreme Court ruled New London has the right to take homes and give them to a private developer for an economic development project.

Rell quoted the dissenting opinion of Justice Sandra Day O'Connor, who sided with the Fort Trumbull, New London, neighborhood homeowners in their claim that one person's private property should not be turned over to another private entity merely because a city can raise more tax revenue from the new development.

"Her statement has been used largely to encourage more people to become involved, and that is, who knows, it could be your private home that is next to be used for a strip mall," Rell said. "While she was in the dissenting opinion, that has really triggered a lot of reaction from people all across the nation."

Rell said the state has "a lot of money invested in that project and it should go forward." But she added: "If there is a question, can we co-exist with those houses that are currently there, I think we should make every effort to do so. In areas where we have already taken property by eminent domain, in those areas it was a blighted area, and by all means that was a good use of eminent domain."

She added that she hopes the Legislature, which this week held hearings on changing the law, would not overreact because of the strong national reaction to the decision.

Stamford Advocate: www.stamfordadvocate.com

A stealth war on the poor: Newark (NJ) Star Ledger, 8/2/05


By Bill Potter

By now much of the nation is up in arms over Kelo vs. New London, in which the Supreme Court by a 5-4 majority upheld a municipality's power to take a person's home, pay the homeowner "just compensation" and then hand it over to a new owner who has an approved plan for "economic development" — promising more jobs or higher tax revenues.

In short, after Kelo, your home is not your castle if somebody convinces your mayor and council that he has a better idea for it.

But now the public is aroused. According to a recent Star-Ledger article, 25 states are amending their laws to put "public use" back into the equation so that governments cannot take your house or business for a mere "public purpose," namely economic development. Only if it is needed to make way for a new highway, school or park or other legitimate public use should your property be taken.

New Jersey needs such a law, which must also delete the "underutilization" rationale for a taking. Under that standard, a property gets judged not by what it is but by what it is not. So a modest cottage can be declared "underutilized" and a source of "blight" because it is not a McMansion. A mom-and- pop general store is "underutilized" and an "area in need of redevelopment" — the statutory euphemism for "blighted area" — because it is not a WalMart. When "economic development" is linked with "underutilization," not a house, building, business or acre of New Jersey is safe from a municipal taking.

Democratic gubernatorial candidate Sen. Jon Corzine has announced his support for limiting future "takings" if elected. His Republican counterpart, Douglas Forrester, has signed on in equally strong terms. So hope springs eternal that whoever wins in November will restore balance to a system that now favors the same developers and consultants who have made pay-to-play their favored means of doing business in the Garden State.

But don't count on it, not just yet anyway. The same forces that "liberalized" New Jersey's 50-year-old Blighted Area Act in 1992 — so that, a decade before Kelo, almost any property could be declared a "redevelopment area" under the "underutilization" claim, then taken away and handed over to a "redeveloper" selected without competitive bidding — will doubtless be revived.

At the least, the next governor must persuade a majority of 80 Assembly members and 40 state senators to join him in restoring the public to the process. This will require several procedural changes — such as giving notice of municipal reviews to tenants and not just to landlords who may not care if their buildings are "taken," provided the price is right.

For at its core the economic development rationale for "takings" is often a euphemism for a stealth war on the poor and near poor. Getting them out to make way for tonier new residents is often the unspoken agenda for replacing garden apartments with high rises or malls.

In Long Branch, retired cottage dwellers will be displaced to make way for condos for the rich; in Lodi, trailer park dwellers face eviction to make way for upper-income housing and shopping — and on it goes across the state.

Yet the economic development often falls far short of expectations. Few mayors or council members are competent in matters of commercial development, however hard they may try. Will new chain stores attract new growth or will they sap customers away from locally owned businesses, causing "vacancy" signs to sprout on Main Street? Will a new mall boost a town's employment or is it a minimum wage-paying blighted area in waiting? Some of today's redevelopment is directed at weed-choked parking lots left over from the "urban renewal" movement of the 1960s.

Finally, developers are typically far better negotiators than are locally elected officials. They know how to insert escape clauses inside mind-numbing redevelopment agreements that only a blurry-eyed few will ever read and fewer still will comprehend. So when rosy projections of future income or rents plummet, redevelopers almost always have an "out" to take the money and run.

To be sure, every mayor or candidate for local office wants more jobs and increased tax revenues; what, then, is he to do when developers come knocking at city hall, promising the next urban "renaissance" if only the town will hand them a big slice of property and abate their taxes for 20 years?

These three tips should help:
  • First, reject any proposal that calls for removal of local residents. If those living in that "blighted area" won't gain from the project, it's a war on the poor by another name.
  • Second, never go into direct "partnership" with a developer. This creates a conflict of interest between governing and helping for- profit partners. Princeton Borough made this mistake with its $13.7 million redevelopment project, which at least stayed on municipal land. The council and mayor have tied the town's finances to the business fortunes of a builder who's now short of cash to complete the job. The council thought it would retain more "control" in this way, but the control can work the other way just as easily.
  • Finally, think small. Big projects mean big risks. Thinking small means cultivating local business and entrepreneurs who will put their sweat equity into redevelopment, one building or one block at a time.

In short, Kelo vs. New London may have been a tragedy for Mrs. Kelo, but it has done us all a favor by awakening the public and politicians to the need for reform — before the next taking takes place in your town or mine, your house or the one I call home.

Star Ledger: www.nj.com/news/ledger

Bill Potter, a former assistant state public advocate, is a lawyer in private practice in Princeton. He is an adjunct professor of environmental law at Rutgers Law School in Newark and was a lecturer in the politics department at Princeton University.

Nevada Restricts Eminent Domain Abuses: The Heartland Institute, 8/1/05

Democratic senator's perseverance results in hard-fought protections

By James M. Taylor

Nevada citizens have gained important protections against aggressive eminent domain takings by local government agencies.

A bill passed by the Nevada legislature on May 30 prevents local governments from taking private land for redevelopment unless at least two-thirds of the land taken is determined to be blighted. Owners of the taken property must be paid for loss of business income rather than just the market value of the property.

Bill Faced Many Obstacles
State Sen. Terry Care (D-Las Vegas) introduced the legislation early in the 2005 legislative session and successfully navigated a minefield of obstacles to see the bill gain the approval of the legislature. The bill became law on June 4, after Gov. Kenny Guinn (D) failed to either sign or veto the legislation.

In its original version, SB 326 required that before a redevelopment agency can take a private property, there must be a finding that all parcels taken for redevelopment are blighted. Additionally, the original version of the bill would have precluded the use of eminent domain merely for the purpose of acquiring or preserving open space.

Facing stiff opposition from county governments and environmental activist groups, Care declared his bill had reached a dead end on May 10. "I'm not going to push for legislation I know is not going to pass," Care told the Reno Gazette-Journal.

Bipartisan Spirit Prevailed
However, buoyed by bipartisan sentiment that a scaled-back version of the bill would benefit the citizens of Nevada, Care removed the open-space provisions and compromised on the share of private land that must be determined to be blighted before a redevelopment agency could take it.

Foremost among SB 326's supporters was Senate Judiciary Committee Chairman Mark Amodei (R-Carson City), who put aside partisan politics to champion Care's bill. As Care was prepared to abandon the measure, Amodei argued local governments already had many tools at their disposal to acquire property, but private citizens had few protections against overly aggressive takings actions.

"This [unrestricted eminent domain power] is dangerous whether you see yourself as pro-environment, pro-property rights, or something in between," said Amodei, as quoted in the Gazette-Journal.

"I don't think there's any doubt the time has come for the Legislature ... to do something about the abuses that occurred in eminent domain," said Care.

Blunt Instrument Pocketed
Economic and environmental consultant Wallace Kaufman explained why Nevada legislators sought to limit the state's eminent domain powers.

"Taking by eminent domain is a blunt instrument even for the most necessary public uses," Kaufman said. "An objective market value limits the amount of 'just compensation.' What the government takes, of course, are other values that often have no assignable dollar figure. The economic value to the particular user is usually not reflected in the uses for which the market is willing to pay. This could range from a craftsman's shop to a highly specialized business."

For example, Kaufman explained, "personal or family history is completely ignored. During a court case involving the Jordan Dam in central North Carolina, the attorney for the Corps of Engineers asked tobacco farmer Jim Diggs why he wouldn't sell his land if it was as valuable as he claimed. Diggs answered, 'Because my father farmed this land and my grandparents farmed this land, and my great grandparents farmed this land, and I don't want to leave it.'

"A genuinely necessary public use may require the use of eminent domain even in light of the above shortcomings," summarized Kaufman. "However, requiring a person to sacrifice both monetary and personal interest for the profit of the county or another citizen in the dubious name of 'public benefit' is another story altogether."

The Heartland Institute: www.heartland.org

Ordinance proposed to limit eminent domain: New Milford (CT) Spectrum, 7/29/05

By Lynda Wellman

New Milford resident Joe Ribeiro wants the Town Council to adopt an ordinance that would prohibit municipal acquisition of property by eminent domain for privately held or controlled economic purposes.

Governments use the power of eminent domain to acquire property needed for public projects but are required to pay fair compensation.

“Do the right thing for homeowners,” Mr. Ribeiro urged the council on Monday. “Protect private citizens.” Mr. Ribeiro, who was endorsed as the Democrats’ 2005 mayoral candidate Tuesday, presented the council with a draft of a proposed ordinance adapted from a Milford ordinance. He said other towns across the state have adopted similar ordinances and New Milford should, too.

He said the recent U.S. Supreme Court decision in Kelo vs. New London is a threat to citizens who own real estate. In that decision the Supreme Court sided with the city of New London against homeowners who protested the city’s seizure by eminent domain of property for a private hotel and convention center, office space and condominiums.

New London argued the tax revenue and jobs would benefit the public and, in a 5-4 decision, the high court agreed.

Mr. Ribeiro promotes an ordinance that would prevent the application of the Kelo decision by prohibiting owner-occupied property from being acquired by the town by eminent domain for a municipal development project that would be privately owned and controlled.

He said his proposed ordinance would not limit the town using eminent domain to acquire property for municipal purposes and would not conflict with any state law enacted in a similar vein.

Mayor Pat Murphy said she also had been researching similar ordinances.

She said Tuesday it is nice of Mr. Ribeiro to present a draft but it’s hard to imagine the town taking property for a private entity.

“I can’t think of an administration that would have done that,” the mayor said Tuesday. “None of us would do that. When it comes to eminent domain for private development, I don’t see it happening here.”

Councilman Ray O’Brien called for the town attorney to review Mr. Ribeiro’s proposal and asked the mayor to put the matter on a council agenda in September.

New Milford Spectrum: www.spectrum.newmilford.com

Legislators start review of eminent domain: Greenwich (CT) Time, 7/29/05

By Tobin A. Coleman

The main plaintiff in the landmark New London eminent domain case yesterday told state lawmakers she won't leave her home, despite the U.S. Supreme Court's ruling that the city can seize her house for a private developer.

Susette Kelo spoke at a special General Assembly hearing where lawmakers heard testimony on the power of local governments to seize private property and give it to developers in order to increase tax receipts and create jobs.

"That is deeply offensive to the sense of fair play, no matter how much compensation is eventually offered," Kelo said at a joint hearing of the Judiciary, and Planning and Development committees. "While the city has owned my house for years, it is still my home and I am never going to leave it."

The U.S. Supreme Court decision created an outcry across the country from people worried it would open the floodgates for cities and towns to seize their homes.

In its ruling, the Supreme Court said that New London had the right to take the homes in the Fort Trumbull neighborhood and allow developers to build a condominium, office and hotel project to achieve the public purpose of increasing taxes and creating jobs.

But the court also invited state legislatures to tighten restrictions as they saw fit and Connecticut lawmakers have taken up the challenge.

Scott Bullock, senior attorney at the Institute for Justice, which represented many of the homeowners in the court case, said there are 26 states, including Connecticut, now considering changes in eminent domain laws as a result of the ruling.

"It is one of the most serious and potentially despotic government powers," Bullock told the committees.

While the Supreme Court ruling dealt only with eminent domain takings for economic development projects, the lawmakers are also looking at tightening a related law that allows properties to be seized in blighted areas. They have raised concerns that the definition of blight is too broad, giving communities too much leeway in taking properties.

Bullock proposed changing the law to end the taking of private homes for private development projects. He also proposed changes to the blight statute that would tighten the definition so that properties now defined as "deteriorating" or that threaten the "public welfare" would be excluded under the definition of blight.

The powers of eminent domain to remove blight were used together with those for economic development in Stamford when parcels for the UBS headquarters on Washington Boulevard were assembled in the mid-1990s. Norwalk is still in a legal battle over one parcel in the Reed-Putnam development along and near the Norwalk River.

Attorneys for New London, a group representing developers and the Connecticut Conference of Municipalities, said the legislators should go slowly when considering changes.

"Eminent domain in Connecticut has elaborate checks and balances in an atmosphere of full disclosure," said Phil Michalowski, executive director of the Hamden-based Connecticut Economic Development Association. Michalowski argued that Connecticut cities and towns have little room to grow and that the powers of eminent domain, used correctly, help communities revitalize while easing pressures that create sprawl.

"I have great confidence, as the Judiciary and Planning and Development Committees begin their work today, that this legislature will find common ground and an appropriate response to the eminent domain issues raised in Kelo v. New London," said House Speaker James Amann, in a statement. "The Supreme Court's decision is an express invitation for states to clarify the line between just and unjust uses of eminent domain, particularly in cases of economic development. Following due diligence, I look forward to bringing new legislation to the House floor for a vote."

Also yesterday, a new Quinnipiac poll found 89 percent of Connecticut voters want the legislature to pass laws limiting the use of eminent domain, compared to 8 percent who did not. And 61 percent of voters disagree somewhat or disagree strongly with the tradition of using eminent domain for public uses such as schools and roads. The poll has a margin of error of +/- 3 percentage points.

Gov. M. Jodi Rell has come out in favor of changes in the law, siding with homeowners.

"The recent U.S. Supreme Court decision in the Fort Trumbull redevelopment case has rightly created enormous concern among homeowners," Rell said in a recent statement.

Rell supports a moratorium suggested by legislators that would halt all eminent domain proceedings until the legislature acts. Lawmakers gave no timetable for when they might propose a bill or if they would go into special session to deal with the matter. The regular session of the legislature begins Feb. 8.

Greenwich Time: www.greenwichtime.com

Americans Reject Eminent Domain Ruling: Human Events, 7/29/05

Reaction to Kelo Decision Reveals Ignorance Over Property Rights

By Philip Klein

The U.S. Supreme Court’s decision to grant a local government unprecedented power to seize its citizens’ homes has triggered a fierce backlash from New York to California.

Property-rights advocates have long warned of governmental abuse of eminent domain powers to acquire land for private purposes, but the issue exploded into the mainstream last month. On June 23, the Supreme Court ruled 5-4 on the side of New London, Conn., which is planning to seize the waterfront homes of Susette Kelo and her neighbors as part of a plan to build offices, a marina and a retail complex.

Americans reacted with almost universal outrage to the ruling, and politicians have taken heed. In 28 states, lawmakers have initiated actions ranging from re-examining eminent domain laws to voting for constitutional amendments to limit government takings. Additional bills have been introduced in the U.S. House and Senate.

“People are in utter disbelief that the Supreme Court could issue that decision,” said Bert Gall, an attorney with the Institute for Justice, which represented the homeowners in Kelo v. New London. “They understand that this means open season on their homes and businesses.”

The Castle Coalition, a network of activists opposing eminent domain that was put together by the Institute for Justice, has seen its membership double to more than 2,800 in the weeks following the Kelo decision.

The furor generated by the Kelo ruling should also bolster conservative arguments in the upcoming confirmation battle over John Roberts’ nomination to the Supreme Court.

The court’s most conservative justices (Clarence Thomas, Antonin Scalia and William Rehnquist) voted with Sandra Day O’Connor on the side of the homeowners in Kelo. Liberal justices, including Ruth Bader Ginsburg and Stephen Breyer, comprised the majority.

“[Kelo] is about private property rights, which is something that has a broad appeal to Americans,” said Wendy Long, counsel for the Judicial Confirmation Network. “The decision can show people that the Supreme Court nomination is not just an issue that should be of concern to social conservatives, but … to all those who care about faithfulness to the Constitution.”

Meanwhile, the battle over eminent domain has moved to the states. In Texas, the House unanimously approved a bill that would amend the state constitution to prohibit local governments from using eminent domain for private economic development. Similar legislation has been proposed in California. Lawmakers in more than a dozen other states have passed or proposed bills that would aim to protect homeowners.

In Missouri, Republican Gov. Matt Blunt formed a task force to study eminent domain, and in New York, an assemblyman introduced a bill that would give homeowners more time to appeal condemnations. In Connecticut, where the Kelo case originated, the legislature voted down a bill that sought to limit property seizures, but Republican Gov. Jodi Rell called for a moratorium on all eminent domain actions in the state until the legislature can re-examine the existing law.

In addition to actions in the states, Sen. John Cornyn (R.-Tex.) has proposed a bill that would deny federal funds to projects in which eminent domain is used for private economic development. A similar bill has been introduced in the House.

Human Events: www.humaneventsonline.com

Florida, Texas Legislators Vow to Limit Eminent Domain: The Heartland Institute, 8/1/05

Kelo decision motivates state-level protections

By James M. Taylor

Legislators in many states reacted with indignation to what was widely characterized as an erosion of private property rights in the U.S. Supreme Court's June 23 Kelo v. City of New London decision. Most notably, legislators in Florida and Texas have vowed to push for stronger state-level protections against over-aggressive takings of private property.

Florida House to Investigate
In Florida, House Speaker Allan Bense (R-Panama City) announced he will create a subcommittee to study existing property rights protections and identify areas of potential improvement. Rep. Marco Rubio (R-West Miami) will chair the subcommittee.

A central focus of the subcommittee will be to ensure no loopholes in state law allow local governments to take property merely for economic gain.

The subcommittee's task, said Bense in a media statement, "will be to identify any areas of ambiguity and recommend appropriate changes to make sure the unfortunate situation we've seen in Connecticut is not repeated in the state of Florida."

Lawmakers Troubled by Ruling
State Rep. Bill Galvano (R-Bradenton) told the June 25 Bradenton Herald he was troubled by the Supreme Court's ruling and hoped to serve on the new subcommittee.

"If it [a permissible economic 'taking'] is subject to interpretation by each of the 50 states, that's very problematic," Galvano told the Herald.

Attorney Jon Tileston told Tampa Bay's Bay News 9 television station that Florida's protections are already better than those in many other states. Although takings can occur, he noted, Florida property owners tend to be fairly compensated for their property.

"Florida law is very good to owners," said Tileston. "It would be valued at its highest and best use."

'Absolute Last Resort'
Texas State Sen. Todd Staples (R-Palestine), chair of the Senate Committee on Transportation and Homeland Security, was even more adamant that his state legislature would commence work on safeguarding the property rights of its citizens.

According to the June 23 Houston Courier, Staples described the Supreme Court's ruling as a "travesty" that approves the confiscation of private property for even "loosely organized" economic development. Calling government's eminent domain power an "absolute last resort" for development purposes, Staples vowed to prevent in Texas the type of economic taking at issue in Kelo.

"I think it would be fair to say that the Legislature will closely monitor all actions in light of the Supreme Court issue," Staples told the Courier. "We need to keep laws that favor landowners and not government. I expect (eminent domain) to be a premier issue for the 80th legislature.

"We can study those statutes in other states and hopefully benefit from the work that has been done," Staples said. "We need to evaluate our laws and see to what extent they need addressing. But we need to be careful. If the language of a new bill is wrong, it could have negative, unintended consequences."

States Can Increase Protection
Sterling Burnett, senior fellow at the National Center for Policy Analysis, called the Kelo ruling "an awful decision" from a public policy perspective. But states can enact their own protections, he noted. "It places the issue of over-aggressive eminent domain actions back at the state level. Utah and Nevada provide outstanding examples of what states can do to protect their citizens."

"A majority of the Court voted for yet another expansion of the government's power to confiscate the property of ordinary citizens, this time holding that local governments can grab private homes if they turn them over to rich developers who will make 'better' use of the land," Cato Institute Senior Fellow Mark Moller said. "It's a decision that not only strikes at the heart of property rights but falls most heavily on small and middle income homeowners."

Added Burnett, "Absent private property protections, what kind of security do individual homeowners or even businesses have? What kind of stable business climate does it create? It is wrong that an unelected council of business development boards can run roughshod over citizens and businesses. Who will want to buy homes or set up business in such places?"

The Heartland Institute: www.heartland.org

Bill would restrict eminent domain: Long Island (NY) Newsday, 7/29/05

By Emi Endo

Suffolk County would be barred from wielding the power affirmed by the U.S. Supreme Court to seize private property for commercial development under a bill proposed by a county lawmaker.

Legis. Allan Binder (R-Huntington) offered the measure, which is similar to proposals under consideration in Albany and other state capitals, in seeking to blunt the impact of last month's high court ruling that allows state and local governments to use eminent domain for economic revitalization.

"Property rights in this county matter," Binder said Tuesday at a news conference in Huntington. His bill would prohibit the county from taking private property for someone else's private use for any reason, including economic development. It states that Suffolk "may only take property if it actually uses or gives the public a legal right to use the property."

Suffolk County Attorney Christine Malafi said her office would review Binder's measure.

Ed Dumas, a spokesman for County Executive Steve Levy, said the county "has always wielded its power of eminent domain very judiciously and will continue to do so ... " He added that Levy would consider whether Binder's approach was necessary.

County officials said Suffolk has condemned property only for road projects and limited park and open space projects.

M. Allan Hyman, who heads the real estate tax certiorari and condemnation law practice group at Certilman Balin, said Suffolk County does not have the legal power to control eminent domain practices of other local governments.

But the county "may have the right to limit its own power of eminent domain."

The Supreme Court decision left it to states to restrict their own power, prompting a flurry of legislation from states such as Delaware, Texas and Alabama, according to officials at the National Conference of State Legislatures.

New York state legislators, including Assemb. Richard Brodsky (D-Westchester) and Sen. John DeFrancisco (R-Syracuse), have been drafting such proposals in Albany.

Brooklyn Councilwoman Letitia James and Westchester Legis. James Maisano (R-New Rochelle) said they planned to put forward local legislation.

Under the Constitution, government can condemn private property for "public use" as long as it pays "just compensation."

Binder, who is challenging Democratic Huntington Supervisor Frank Petrone, also wants to approve a symbolic "sense of the legislature" resolution requesting that all the towns in the county adopt similar restrictions.

Petrone said Wednesday that the town was already "cognizant" of the rights of property owners and that community input is part of the town's eminent domain procedures.

Newsday: www.newsday.com


Eminent domain used to acquire River's Edge properties: Medford (MA) Transcript, 7/28/05

By Timothy J. Lavallee

A recent U.S. Supreme Court ruling that increases the government's power to take private property has some wondering if it will have an effect in the tri-city area.

Malden and Medford are both densely populated cities with very little new development space left. Most of the new construction in the coming decades will be the result of redeveloping existing properties.

An example of this, though without the use of eminent domain, is Station Landing, a mixed-use residential and retail community in Wellington Circle near Krispy Kreme. The property combined a parking lot, a gas station and a flower shop, and passersby can now see the steel frame going up on the corner of routes 16 and 28.

But that was privately acquired and developed. So were properties in Malden Square on the corner of Pleasant, Abbot and Exchange streets, which are being turned into a luxury apartment complex by Malden-based Combined Properties.

All of this redevelopment raises the specter that Malden and Medford are very desirable for redevelopment, and it's conceivable to think that both cities could be asked to take private land for private construction following the Supreme Court's decision last month in Kelo et. al. v. City of New London, Conn.

That decision expanded the definition of the "public use" clause of the rules for eminent domain - a guarantee that allows the government to take land away from private landowners in exchange for fair market value. The case involved a group of homeowners who lived along a waterfront area and a developer who wanted to build a hotel and other private ventures.

"I was surprised it passed because of the cases involved," said Stephen Wishoski, executive director of the Malden Redevelopment Authority. "The city was taking a viable neighborhood. I can't ever imagine us ever using that in this city. It's the ultimate power of government over the individual; where the government can come in and take property."

Although the Malden Redevelopment Authority had wider powers for taking land than individual cities and town, previously granted by state law, the decision "is a real boost in the power of cities and authorities in acquiring," Wishoski said.

Until this decision, the authority couldn't actually go in and start the eminent domain process without first developing a plan and having it approved by the governing body of the city. For Malden and Medford, that's the City Council in each city.

"I often tell clients that the power of eminent domain needs to be used judiciously, and in a redevelopment case, that needs to be underlined," said Jeff Mullen, an attorney with Boston law firm Foley Hoag, LLP, who is experienced with government land takings. "The key is to use it in a reasonable and judicious in a way."

Mullen has advised the Malden Redevelopment Authority and the River's Edge governing body known as the Mystic Valley Development Commission, which is composed of representatives from Malden, Medford and Everett. It is the closest example, geographically and legally, of government using eminent domain to redevelop land for private use.

Eminent domain was the primary form of land acquisition for about 200 acres worth of land along the Malden River now known as River's Edge. First conceived of as a research and development hive for the then-burgeoning telecommunications industry, the TeleCom City project intended to take an urban wasteland and turn it into an example of modern urban renewal.

After the telecommunications industry bottomed out earlier this decade, the project soldiered on in its attempt to reclaim contaminated industrial land. The goal now is to build some form of housing along with commercial buildings.

While some of the land will become a park along the eastern bank, most of it is intended for private development by Preotle, Lane and Associates, the company that won the bid to develop the property. Although it will be privately owned when complete, the taxes generated from the properties will go to MVDC and then will be proportionally distributed to the cities.

But the Supreme Court decision in New London case now allows this type of development in a more broad sense. For River's Edge, it was about taking publicly hazardous land, in many cases, and turning it into an amenity. For New London, it was about bringing in more tax dollars from the hotel and attendant properties, which bring in more tax revenue than single-family homes.

"I think the MVDC is more like urban renewal, given that site, but it's not very far from that. Kelo clears the way and provides the underlying constitutional permission to permit cities to do this," Mullen said. "Underperforming properties that aren't generating enough taxes? I don't know. That starts to get to a point where you have to ask the question: How private is private?"

How private is private?
"The whole idea of taking property by eminent domain is supposed to be for the betterment of the community," said Malden Ward 7 Councilor Chris Simonelli, whose ward has recently started to show signs of private redevelopment. "I probably wouldn't have been in favor of taking it by eminent domain and turning it into condos. I would have like to have seen it become a fire station or a joint police and fire station. I do kind of like the idea of using eminent domain powers of going after dilapidated commercial property. That's something that I wouldn't mind seeing the city using eminent domain powers for."

However, it's not likely anyone is going to be coming after an individual property owner anytime soon, Wishoski said. Malden and its redevelopment authority will continue to use eminent domain for public use, but it will still follow the same procedures it has in the past.

The most important aspect of that, Wishoski said, is to be fair to the landowner.

"Our goal when we go in is never to steal their property," Wishoski said. "Our approach has been to try to settle and not to underpay."

Medford Transcript: www2.townonline.com/medford

Eminent domain ruling just 'Darwinism': (Jackson MS) Clarion Ledger, 7/28/05

Letter to the Editor

By Robert E. Hays, Pearl MS

June 23, 2005, like Dec. 7, 1941, was another day in history that will live in infamy. That's the day the U.S. Supreme Court said a government can seize the private property of its citizens in order to give title to that property to some other private entity — all in the name of "economic development."

Through an edict, the Supreme Court has once again passed what will become "the law of the land." This "law" says that your town or county can take your home and give it to some other private entity simply because it will produce more tax revenue.

This is the application in law of Darwinism — the survival of the biggest and strongest — and with the help of government officials, the most corrupt.

If ever there were a reason to pray for President Bush to be able to get originalist justices on the court, this must be it. Because of the action of five liberal activist judges, the property of every property owner in the nation is now in jeopardy.

It's time for the American people to say to every elected official in our nation, with one voice: "Come to get my home to give it to some other private entity, and they'll carry you out feet first," and mean it.

Clarion Ledger: www.clarionledger.com

Eminent domain law merits scrutiny: The (Univ of Iowa) Daily Iowan, 7/28/05

EditorialBy author

State lawmakers discussed the use of eminent domain last week, possibly previewing future proposals to limit the use of the controversial tactic. In Kelo v. New London, the U.S. Supreme Court ruled 5-4 this spring that eminent domain can be used to seize land for private development. This practice has long been used to convert residential areas into government expansion projects such as new roads, but this case expanded the practice to any economic-development project.

Kelo allows cities to condemn property for any later upgrade. The court's ruling concurred with the Connecticut Supreme Court in citing that the project was "projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city."

Iowa legislators, led by Speaker of the House Christopher Rants, R-Sioux City, highlighted the need for restrictions on the use of eminent domain in a Des Moines Register piece published July 22. We agree with limitations on the use of eminent domain; the possibility of anyone with a more productive use of one's land in mind seizing control of the property scares us.

Based on past actions, it would be logical to assume that conservatives would favor the use of eminent domain, and creating another tool for economic development and increased property values, in higher numbers than progressives, but that has not been the case thus far. Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, widely considered to be the three most conservative members of the court, were part of the minority in the decision. And it was Republican lawmakers who most vocally voiced words of constraint in the Register piece. Our own Gov. Tom Vilsack stressed patience, emphasizing a national response may take care of the issue. Apparently, concerns over individual property rights and the scope and power of government supersede economic growth and development.

Some liberal groups oppose the ruling because of concerns that poverty-stricken and high-density housing areas would be the most likely targets of new eminent domain use, which would unfairly burden the poor.

The argument can be traced back to one's definition of the term "public use." If economic growth is included in the definition, eminent domain can and should be used to condemn property for private development. Iowa law does not explicitly ban this interpretation, which is why we are hearing calls for further limits. Already, eminent domain must be accompanied by just compensation and fair warning, and most governments have been careful to use it only in extreme cases that are easily justifiable to the public.

The policy of eminent domain sparks visceral reactions by home- and small-business owners afraid of losing their property to large industrial parks. We question whether governments can handle the power of eminent domain justly, and it is a good thing local and national legislators are responding so quickly.

Daily Iowan: www.dailyiowan.com

Eminent domain stirs fear: (South FL) Sun-Sentinel, 7/28/05

Legislators try to ease worry over property

By Shannon O'Boye

Politicians around the state and the nation are trying to calm citizens who were frightened and outraged last month when the Supreme Court ruled governments can bulldoze private property to make way for redevelopment.

In Tallahassee, Rep. Marco Rubio, R-Miami, is leading a committee that will study the state Constitution and make recommendations on how to strengthen private property rights.

Gov. Jeb Bush has said he would support legislation that protects property owners.

The use of eminent domain has caused a stir in South Florida, too.

In Delray Beach, for example, dozens of people have attended city meetings to express their fears about what the city might now do.

City officials contend the recent Supreme Court decision has no bearing on local laws. Besides, the city's track record when it comes to eminent domain, according to City Attorney Susan Ruby, shows Delray Beach has mostly gone after vacant lots or commercial property.

The city's Community Redevelopment Agency recently filed a lawsuit against three Delray Beach property owners to acquire their vacant lots, but they are in a blighted area with contaminated soil, said Bill Doney, the CRA attorney who specializes in eminent domain.

"The difference is in Florida, under the redevelopment act, the government has to prove that an area is slum or blighted and once that proof is made, there is generally pretty broad power for the agency to acquire property and promote redevelopment," Doney said.

The distinction with the Supreme Court case is "the property was not blighted" and Connecticut had created a state rule that said economic development was a public purpose, Doney said.

In Washington, U.S. Sen. Orrin Hatch, R-Utah, jumped into the mix recently by proposing a bill that would force governments to fairly negotiate with property owners, including paying fair compensation.

The bill also would establish a federal ombudsmen's office to inform property owners of their rights and to order disputes into mediation, if needed.

At least five other U.S. senators and representatives have announced plans for legislation to chip away at the Supreme Court's decision, even though, in the past, justices have overturned congressional attempts to supersede their decisions.

West Palm Beach Commission President Ray Liberti called the Supreme Court's decision ridiculous. Although commissioners have yet to discuss how the city might protect homeowners, Liberti said they likely would in the near future.

"I think it's probably something that needs discussion," he said.

The legislative flurry is in reaction to a 5-4 Supreme Court ruling June 23 in Kelo v. City of New London, Conn. The justices said municipalities have broad power to force the sale of people's property to build private development for the sole purpose of generating tax revenue and jobs.

The decision drew a scathing dissent from Justice Sandra Day O'Connor, who said it favored rich corporations.

Historically, eminent domain has been used for such things as building roads or schools.

In their ruling, the majority of the Supreme Court stressed states can enact stricter laws, if they choose, to give property owners more protection.

Florida already does, according to Attorney General Charlie Crist.

State law says only property in "blighted areas" can be taken through eminent domain for redevelopment, Crist said, "and then only if it would primarily serve a public purpose."

"Quite simply, eminent domain is not available in Florida if the benefit to a private party is the paramount purpose of the project," Crist said.

Frank Schnidman, an urban redevelopment expert at Florida Atlantic University, said he wished Crist's opinion was correct, but it's not.

Schnidman argues Florida's definition of "blight" is so broad and vague almost any area can qualify.

"If, in fact, the property at issue in the New London case was in a CRA in Florida, the result would have been exactly the same," Schnidman said. "... The Attorney General has to stop and re-evaluate what's on the ground, not what's in the books."

There are 37 CRAs in Miami-Dade, Broward and Palm Beach counties, according the FAU Center for Urban & Environmental Solutions Web site.

As politicians rush to soothe homeowners, getting buried are the interests of small business owners who stand to lose the most if local governments expand the use of eminent domain, Schnidman said.

Small business owners are taking a backseat because they usually don't give big campaign contributions and sometimes don't live in the cities where they own businesses.

It will be up to the state Legislature to grant protection to all property owners, Schnidman said.

"Flat out, if the Legislature is serious, they have to reverse the trend of loosening up the definition of blight," he said. "... The Legislature has to be really careful. They need to change the definition of blight so you can still take truly slum properties and do something with them, but they've got to be able to stop this foolishness."

Sun-Sentinel: www.sun-sentinel.com

Koziura trying to limit eminent domain: The (Lorraine OH) Morning Journal, 7/28/05

By Matt Suman

A local state representative hopes to amend the state constitution in response to a controversial U.S. Supreme Court decision last month that says a government can take a person's property to promote economic development.

State Rep. Joe Koziura, D-Lorain, said he hopes the May 2006 ballot can include a constitutional amendment that would prohibit the use of eminent domain when its driving force is business development or economic gain.

His constitutional amendment proposal is in response to the controversial June 24 U.S. Supreme Court decision in a Connecticut case, Kelvo v. City of New London, that said local governments could seize private land and turn the property over to private developers for economic development.

''That's just not right,'' he said. ''A man's home is his castle. The goal here is to give Ohioans a chance to protect themselves from an unnecessary intrusion of government into the lives of families and small business owners.''

Eminent domain was designed with the public interest in mind, Koziura said. It was intended to be used for roads, schools and other public works, not private business ventures that benefit a few, he said.

The power of eminent domain has also traditionally been used to eliminate slums, he said. Koziura mentioned that in the past, a person had to be a property owner just to be eligible to vote.

He said he's shooting for the May primary election because he's not likely to get rapid support from the General Assembly before the Aug. 10 deadline to submit a Constitutional amendment to the Ohio secretary of state for the November ballot.

Three-fifths of the Legislature would have to support Koziura's joint resolution for the issue to be placed on a statewide ballot.

Lorain County Commissioner Ted Kalo and Avon Mayor Jim Smith said they agree with Koziura's proposed amendment.

''Doing eminent domain for private concerns are totally wrong. I don't know where the Supreme Court came up with that idea,'' said Smith.

He said Avon would not even entertain an idea to seize a person's property for private development.

Kalo mentioned an instance when the city of Lorain used eminent domain with the HarborWalk housing development on the shores of the Black River about five years ago.

''I think there has got to be a whole lot of checks and balances,'' Kalo said.

Lorain Mayor Craig Foltin could not be reached for comment.

The Morning Journal: www.morningjournal.com

Poll finds CT voters want to limit eminent domain: WFSB-TV3 (Hartford CT), 7/28/05

A Quinnipiac University poll has found that Connecticut voters want to limit eminent domain, keep the Navy submarine base open and limit the influence of money on public officials.

The poll released today found that 89 percent of the registered voters questioned say the legislature should pass new laws putting limits on the taking of private property. Sixty-one percent oppose the use of eminent domain to take property for public projects and 88 percent oppose using the power to take private property for economic development projects.

On the issue of the Pentagon's plan to shut down the submarine base in Groton, 87 percent are against it and 85 percent say keeping the base open should be a high priority for the state's elected officials.

When it comes to politics, the poll found that 87 percent think that lobbyists and state contractors have too much influence on state officials because of campaign contributions.

However, 47 percent oppose public financing of political campaigns and 51 percent support a ban on political contributions from lobbyists and state contractors.

WFSB-TV3: www.wfsb.com

Farmland battle shows eminent domain in practice: The Sacramento (CA) Bee, 7/28/05


By Daniel Weintraub

When Steve Gidaro gazes out across the sprawling Conaway Ranch, sandwiched between the Sacramento River and the city of Davis, he sees waterfowl to preserve and hunt, rich farmland producing rice, wheat and tomatoes, and huge, open tracts that hold value as habitat for the endangered Swainson's hawk and giant garter snake.
Gidaro grew up in suburban Sacramento but began hunting at a young age and learned from his father a love for Northern California's wetlands. Although he is a local developer, he says he has no desire to build on the ranch he owns with several partners.

"We can do wildlife-friendly farming and conservation and make money at the same time," Gidaro told me this week.

But when the members of the Yolo County Board of Supervisors look at the same land, they see a threat. They worry that Gidaro or some future owner will fallow the land and sell its water rights, try to build thousands of homes or commit so much of the land to habitat preservation that commercial farming, a key part of the county's mostly rural economy, will no longer be viable.

"It's our land," Supervisor Mike McGowan told me.

It isn't, yet. But McGowan and the other members of the board's majority would like the land to be owned by the government. And since Gidaro and his partners aren't selling, the county has gone to court to seek a forced sale, through the power of eminent domain.

Eminent domain has been in the news a lot lately. The U.S. Supreme Court, in a decision last month, ruled that government can force the owner of private property to sell and then transfer the land to another private owner for no greater reason than that the use the public agency has in mind might produce more tax revenue than is being paid by the people who own it now. A California state senator, meanwhile, has proposed a state constitutional amendment that would limit the use of eminent domain to cases where the public controls or uses the property it forces someone to sell.

Neither the decision nor the proposed new law would come into play on Conaway Ranch, because here the government - Yolo County - intends to retain ownership of the land and manage it on behalf of the public. But the case still bears watching as a breathtaking example of the sweeping powers that eminent domain vests in the hands of a few people, in this case a four-person majority on the county's five-member governing board.

Consider that the county is talking about buying, by force, a ranch that covers 17,000 acres, nearly three times the size of the nearby city of Davis, home to a campus of the University of California. The land is farmed by 20 different operations, comes with rights to 50,000 acre-feet of water and is dotted with working natural gas wells. Nearly half the land sits within the Yolo Bypass or the Cache Creek Settling Basin, two areas that while farmed, are subject to frequent winter flooding.

The county, despite its desires, doesn't have the money to buy the ranch, even in a forced sale. So it is counting on a grant or loan of as much as $50 million from the Rumsey Band of Wintun Indians, who operate a casino up the road (approved by the county). So far, nobody has spelled out exactly what the tribe would get in exchange for its generosity. But the county is backing legislation that would permit the Rumsey Band to serve as one member on a new governing board that would manage the ranch's assets and could earn income off its resources.

The entire proposal is troubling. The county seems to assume that these acres would be better managed by a public agency than private owners, but the land has been in private ownership for more than a century and, even according to the county, remains a jewel to be protected. The ranch is managed now by the same people who have been its stewards for more than 15 years. Given the restrictions that are already on the land, the ranch's owners have an economic incentive to preserve the vast majority of the property in its current state.

Still, county officials say they are worried that, even if no visible threat exists today, nobody knows what the owners will do in the future. Yet the land is currently zoned for agriculture and is limited to that use in the county's general plan.

The Board of Supervisors would have to approve any change. And while the county complains that the current owners will not guarantee that they will never seek to build on the land, the county itself is not willing to offer such an ironclad promise.

The bottom line: Land that is under competent, private management and is being put to economically productive yet environmentally sensitive uses would be taken by the government through a forced sale in a sort-of pre-emptive strike against potential and entirely hypothetical future harm.

That just doesn't seem right.

Sacramento Bee: www.sacbee.com

Sen. Harmon: Eminent domain ruling doesn’t warrant the ‘hoopla’: Wednesday Journal (Oak Park & Oak Forest IL), 7/26/05

State Sen. Don Harmon said last week that the media attention being paid to the Supreme Court’s recent eminent domain ruling is overblown.

Harmon said he hasn’t read the entire ruling, but that it is not much different from what has been allowed by Illinois state law for years. Municipalities may use eminent domain to purchase properties they will use as part of a development plan. The process is public, he said.

"I don’t think the hoopla is quite warranted by the facts," Harmon told the crowd of mostly local business men and women and community leaders gathered at the Carleton Hotel Friday morning to hear the senator. The event was hosted by the Business and Civic Council of Oak Park.

Harmon said the General Assembly might address eminent domain laws to restrict how local governments can use condemnation to obtain properties for development.

Wednesday Journal: www.wednesdayjournalonline.com

Resistance grows to eminent-domain ruling: Ft Wayne (IN) Journal Gazette, 7/27/05


In the wake of the U.S. Supreme Court ruling expanding government’s eminent-domain powers, House Democratic leader Nancy Pelosi of California told The Hill newspaper: “This is almost as if God has spoken.”

Fortunately, the vast majority of House members, including Pelosi’s fellow Democrats, are more agnostic about the controversial Kelo v. New London, Conn., decision, which affirmed that government can force homeowners to sell their property to make way for private development.

The House roundly condemned the ruling, with 365 members registering “grave disapproval.” A second measure, HR 3135, intends to give teeth to that denunciation by limiting use of federal funds in any state or local project that uses eminent-domain powers from Kelo.

The bill, by House Judiciary Chairman James Sensenbrenner, R-Wis., has attracted bipartisan support, including liberal partisans Sheila Jackson Lee, D-Texas, and Maxine Waters, D-Calif. They’re on board because their poor and working-class constituents stand to be bulldozed by government-aided developers – just like the benighted folks in New London.

Meantime, in the Senate, Bill Nelson, D-Fla., is co-sponsoring a companion Republican bill that’s also gathering support on both sides of the aisle. A coalition ranging from the NAACP to religious groups to farmers has signed on, as well.

A few hard-liners are holding out in Pelosi’s unreconstructed camp, however. They support allowing seizure of private property to benefit other private enterprises that could generate more tax revenue.

This position is legally and morally slippery, and the majority in Congress is moving to halt the slide. As Sensenbrenner says, “American taxpayers should not be forced to contribute in any way to the abuse of government power.”

Even the author of the Kelo decision, Justice John Paul Stevens, acknowledged that nothing precludes states “from placing further restrictions (on) the exercise of the taking power.”

That’s sound strategy and something American residents should also weigh when choosing their local councilmen and commissioners. Whatever else happens in Washington, this Supreme Court decision must not stand in the way of government by the consent of the governed.

Journal Gazette: www.fortwayne.com/mld/journalgazette

Property Rights — Tom McClintock's "Kelo Protection" Amendment: The Claremont Institute

While bloggers were still swarming over the text of the now infamous Kelo decision, State Senator Tom McClintock promised to introduce a constitutional amendment to protect property rights in California. Wednesday he held a press conference to "announce the introduction of SCA 15 and ACA 22 to restore the original property rights protections of the American Bill of Rights that were ripped out of the Constitution by the Kelo decision of the U.S. Supreme Court two weeks ago."

The proposed amendment to the California constitution ought to be taken as a model for other states in the wake of the enormous wave of Kelo-inspired outrage still swirling throughout the nation. With or without Kelo, state law can still provide adequate protection against sloppy jurisprudence at the national level.

In California, as in many other states, a large and likely unnecessary bureaucracy exists in the name of "redevelopment" — the government's active involvement in planning and developing land. Citing the sort of loose definition of "public use" that Kelo legitimizes, local governments across the nation often run roughshod over citizen's property rights.

It should come as no surprise that redevelopment bureaucrats will likely be the major source of opposition to McClintock's "Homeowner and Property Protection Act."

John Shirey, executive director of the California Redevelopment Association, said California already has laws carefully restricting the use of eminent domain. But sometimes redevelopment agencies need to seize property if it is particularly blighted, he said. (Harrison Sheppard, LA Daily News)

Now it is true that under California law, local governments are supposed to use eminent domain in "blighted" areas. Yet, as we will never tire of explaining, local governments habitually designate whatever they happen to want to seize as "blighted." As colleague Conor Friedersdorf posted yesterday, "everything is blighted" according to the currently elastic definitions promoted by redevelopment advocates. This case study from our newsletter explains how redevelopment works in practice—the city of Claremont simply labeled its wealthy downtown area "blighted" in spite of the obvious.

Executive Director Shirey also laments that McClintock's "... amendment eliminates the use of eminent domain for economic development purposes." Um, yes. That’s the point. As the amendment says:

It is the intent of the Legislature that private property shall not be taken or damaged for the use, exploitation, or management of any private party, including, but not limited to, the use, exploitation, or management of property taken or damaged by a corporation or other business entity for private profit, as is currently permitted under the United States Constitution under Kelo v. City of New London...

This solution to protect property rights in spite of the [US Supreme Court] ought have widespread bipartisan support. It deserves a great deal more press than it has so received so far...

The Claremont Institute: www.claremont.org

National City may widen eminent domain, including development area: San Diego (CA) Union-Tribune, 7/27/05

By Tanya Sierra

[National City CA] officials continued their redevelopment push last night by moving another step closer to approving a development deal and increasing their ability to take private property.

In one move, the City Council approved expanding the city's eminent-domain territory in concept, but will hold off on a final vote for two weeks to accommodate a last-minute change to exclude several properties from the new territory.

The new area would include nearly the entire redevelopment area, which is a large chunk of the city west of Interstate 805.

City officials also moved closer to sealing a deal with an international architect who plans to build a 20-story tower and a seven-story building housing condominiums and retail space next to City Hall.

The development deal got competitive in the last few months when property owner Daniel Ilko refused to sell his corner land to the Constellation Property Group, led by Australian Eugene Marchese.

When Ilko refused to sell, city officials offered him the chance to propose his own project, which was considered along with Constellation's project.

An announcement was made last night about a pending agreement between Ilko and Constellation before the Community Development commissioners, who are also the council members, had to choose between the two projects.

The final vote to give Constellation permission to move forward with its development will be made at a future meeting.

Several residents have opposed the city's desire to expand its eminent domain power, which allows officials to take over private nonresidential property within the redevelopment zone.

City officials say they will use the authority only as a last resort. Still, they made some concessions to ease residents' fears. They cut the length of time the expanded eminent domain authority would be in effect, from 12 years to eight, and stated more clearly in documents that eminent domain will not affect residences.

Another compromise includes not instituting eminent domain on the city's west side until the area's specific-plan process, now taking place, is finished.

Nevertheless, dozens of people crowded into the Martin Luther King Jr. Community Center last night to protest.

"Don't mess with our neighborhoods," longtime resident Alfonso Hernandez said. "I consider all of National City my neighborhood."

The eminent domain territory will be expanded from National City Boulevard and the Harbor District to include Highland Avenue, the city's west side, East Plaza Boulevard, parts of the Eighth Street corridor and parts of 30th Street and Sweetwater Road.

At least 16 people wrote letters to the Community Development Commission objecting to the expansion or requesting clarification on what is considered blighted property – a measure officials use when considering eminent domain.

However, even in cases where a property is not blighted, if it is in the eminent domain jurisdiction, the CDC can still choose to take it if a development proposal more beneficial for the city is found.

In Ilko's case, for example, a car-rental business sits on his property and is clearly not blighted. But because city officials liked Constellation's condo proposal so much, Ilko came out on the losing end.

Councilman Luis Natividad requested that a number of residential properties be excluded from the eminent-domain territory since the power would not apply to them anyway.

City Attorney George Eiser recommended holding off on a vote so the properties could be officially identified by parcel numbers.

Union-Tribune: www.signonsandiego.com