Fresno agency seeks more eminent domain power: The Fresno (CA) Bee, 9/2/05

By John Ellis

Fresno's Redevelopment Agency wants to vastly expand its authority to condemn property in an area southeast of Grizzlies Stadium that the city has chosen for a large mixed-use development.

Currently, the agency has eminent domain powers over about half the properties in an area covering more than 10 square blocks and bounded by Freeway 41, Van Ness Avenue, Inyo and H streets.

A proposed change that will be considered Sept. 20 by the City Council — which also serves as the city's Redevelopment Agency board — would extend those eminent domain powers to the remainder of the parcels in that area.

Taken together, the 85-acre expanse in downtown Fresno is where Forest City Enterprises is working on a master development plan expected to be unveiled in the next few months.

City officials say taking property from landowners against their will would be used only as a last resort and might not be used at all, but they need that power as a tool to assemble properties to meet Forest City's vision for the land.

"It's good to have everything lined up at this point," said Council Member Tom Boyajian, who chairs the city's Redevelopment Agency board. "It doesn't mean everybody goes out. Some buildings and businesses will be able to stay."

The key, he said, is Forest City's plan for the area and what businesses fit into that plan.

Several of the property owners affected by the change, however, are unhappy about the possibility of being forced to uproot their businesses and leave downtown.

"There would be a fight," predicted Mitch Long, president of Valley Pipe & Supply, located at the corner of H and Santa Clara streets.

Evan W. Hammer Jr., who owns Evans Electric Service at the corner of Ventura and Fulton streets, said the city "doesn't have a clue about these businesses that have been around here for 40, 50, 60, 70 years."

The Evans Electric sign has "Since 1928" on it. It first opened on Broadway, a few blocks from its current location.

Both Hammer and Long recalled a redevelopment battle they fought in 1989, when the city wanted to locate a Price Club southwest of the Van Ness Avenue and Ventura Street intersection. The project never materialized.

Valley Pipe has been in business for almost 66 years, all of it downtown, Long said. His grandfather started the business in late 1939, and it moved to its current location in the 1970s.

He said the company's location is ideal because of its proximity to the 99 and 41 freeways. In addition, he said, the land is paid off. "We're here," he said. "We're [the city's] tax base."

Nearby is Graves Upholstering and Manufacturing Co., which was forced to move from Fresno Street and Kearney Boulevard around 1980 because of a redevelopment project.

Now, the business — which was started in 1955 by Rudy Graves' father in his kitchen — is again being targeted. "I'm mixed about it," Graves said. "I'm for revitalizing downtown, but revitalizing downtown should not mean existing businesses move."

In addition, the city's historic preservation community doesn't like the proposed changes.

"Is this really the only way to solve blight, to take 82 acres of citizens' land and turn it over to an out-of-state company?" asked preservationist Jeanette Jurkovich. "I really have a question as to whether or not there isn't another way."

The 10-square-block area that is the focus of the latest Redevelopment Agency action is actually part of a larger area known as the Convention Center Area Community Redevelopment Plan. A plan for that area was first adopted in 1981 and also takes in Old Armenian Town, a project that includes a new home for the state's 5th District Court of Appeal.

Jerry Freeman, project manager for the city Redevelopment Agency, said the original plan was updated in 1998, and some properties that were blighted and in poor condition were added to a list, making them subject to condemnation.

"Hindsight tells us when we first adopted the plan in 1981, we should have made all properties subject to acquisition," Freeman said. "However, that's not what was done."

The city's Redevelopment Agency must go through this exercise because when the redevelopment plan for the convention center area was first adopted, only certain properties were marked for seizure by eminent domain, if necessary. To add properties to that list, the plan must be amended.

A majority of the properties the city proposes to add to the "subject to acquisition" list are on Fulton and H streets and on Broadway. Three entire blocks between Broadway and H from Mono to San Benito are on the list.

But five parcels outside of the Freeway 41, Van Ness Avenue, Inyo and H streets square also are proposed for addition to properties the Redevelopment Agency can take by eminent domain. Among them are the Arco Garage at Kern Street and Van Ness Avenue, the former Mexican Consulate next door, and the Super 8 motel at Inyo and L streets.

Fresno Bee: www.fresnobee.com

Town votes to limit eminent domain powers: Wethersfield (CT) Post, 9/2/05

By G C Gould

The [Wethersfield CT] town council voted unanimously to limit the town's eminent domain powers at a meeting Aug. 22.

The ordinance, which was Republican-introduced but which passed 6-0, places certain restrictions on the use of eminent domain powers in Wethersfield by the Town of Wethersfield or its agents.

Absent from the meeting were Andrew Adil (D), Christine Fortunato (D), and John Cascio (R).

Mayor Russell Morin (D) said the ordinance was a "statement that the town supports its people. It's more of a commitment by the town to let people know we insist on protecting their rights," he said.

The newly passed Chapter 12 of the Wethersfield code of ordinances states: "no owner-occupied residential real property consisting of four or fewer dwelling units may be acquired by eminent domain for economic development purposes pursuant to General Statutes 8-128 to 8-133 inclusive, if the resulting project will be privately owned or controlled. Nothing contained herein shall be construed to limit the use of eminent domain powers for public purposes including but not limited to the construction of sewers, highways, sidewalks, rights of way, flood and erosion control purposes or for any other transaction where the property rights acquired will be held or controlled by the town of Wethersfield."

The ordinance purposely intends to prevent the application of the Supreme Court case Kelo et al. v. New London et al., where the top court decided in favor of allowing the use of eminent domain in order to further the economic development of the city.

The ordinance is accordingly prefaced by the following statements: "Whereas, the town council of the town of Wethersfield views the United States Supreme Court's decision in Kelo et al. v. New London et al. as a threat to citizens and taxpayers of the town of Wethersfield who own residential real estate and live in their homes; and Whereas, it is the intention of this ordinance to prevent the application of the Kelo decision in this community by prohibiting the acquisition of certain owner-occupied residential real property by eminent domain for use in a municipal development project where the property would be privately owned or controlled and where the process would result in the homeowner's losing his home."

Mayor Morin added that people will be hearing more and more about eminent domain at the state level.

"If something comes out of the legislature then we can adjust it," said Morin.

Wethersfield Post: www.zwire.com

Voters approve limits on eminent domain: (Long Island NY) Newsday, 9/2/05

Town voters [in Putnam CT] have approved a measure blocking Putnam from using eminent domain to acquire private property for private or controlled economic development purposes.

The measure was approved 142-32 in voting Thursday. Only 174, or 3.6 percent, of the town's 4,824 registered voters cast ballots in the referendum.

Despite the low voter turnout, backers of the measure said they were satisfied with the outcome and insisted the referendum was necessary.

New London condemned homes in its Fort Trumbull neighborhood to allow private developers to build condominiums and a hotel there in order to boost commercial development. The homeowners took their case to the U.S. Supreme Court, which ruled in favor of the city in June.

Mayor Daniel Rovero said earlier this week he supported the concept of preventing the use of eminent domain for private development, but he felt the ordinance may need to be amended to make it more workable.

Newsday: www.newsday.com

County counters eminent domain ruling: (Medford OR) Mail Tribune, 9/1/05

By Damian Mann

Jackson County commissioners passed an ordinance Wednesday that severely limits government’s ability to seize private property unless there is a clear public benefit.

The commissioners drafted the ordinance in answer to a recent U.S. Supreme Court ruling that government entities can invoke eminent domain to condemn homes in a working-class neighborhood for private development in hopes of boosting tax revenue and improving the local economy.

"I don’t want that to happen here," said Commissioner Dave Gilmour, who urged other municipalities to pass a similar ordinance. "We don’t have the right to take private property to benefit non-public uses."

Commissioner C.W. Smith, citing the need to protect property rights, said, "I am extremely shocked the Supreme Court would take this kind of action."

Commissioner Jack Walker, who is recovering from surgery and wasn’t present at the meeting, previously expressed solidarity with the other commissioners.

The ordinance doesn’t mean that commissioners won’t exercise government’s ability to use eminent domain in situations that benefit the public, such as road and bridge projects. The county approves several eminent domain actions every year.

The ordinance, which will have a second reading on Sept. 14 before fully taking effect, reads: "The Jackson County Board of Commissioners believes that the power of eminent domain should be used to acquire property only for public purposes, as has traditionally been the case in Oregon."

Last year, commissioners rejected a request by Britt Festivals to seize property needed for expansion.

In years past, government agencies have used eminent domain to build Camp White during World War II and Interstate 5 in the late 1960s.

The county also gives land back to property owners in some cases, such as when a road that was planned many years ago is never built or a right of way is no longer needed.

In a dissenting opinion, Justice Sandra Day O’Connor said the government now has license to transfer property from the poor and middle class to corporations and development firms.

Mail Tribune: www.mailtribune.com

Perry signs bill limiting eminent domain: Austin (TX) Business Journal, 9/1/05

A new law will protect Texans against government entities that may want to seize their private property on behalf of private ventures.

"These projects, often in the name of economic development, should not come at the expense of people's private property rights," says Texas Gov. Rick Perry, who signed Senate Bill 7 into law this week.

"There is no bigger supporter of economic development than I. But I draw the line when government begins to pick winners and losers among competing private interests, and the loser is the poor Texan who owns the land to begin with."

In Austin, the fate of Player's, a popular burger joint located near the University of Texas campus, recently became the subject of eminent domain after university officials announced plans to build a new conference center and hotel.

The university was trying to acquire land around the Player's site, located at Martin Luther King Boulevard and University Avenue, to build the conference center and hotel by 2008.

"The legislation I am proud to sign today means mom and pop businesses and residential property must be willingly sold — not unfairly seized — when a project's purpose is private profit-making," Perry says.

Perry added that the law also establishes a commission to further study the eminent domain issue during the legislative interim because this area of the law likely will be subject to great debate and scrutiny.

Perry opened the call of the recent special session to the issue of eminent domain after a U.S. Supreme Court ruling expanded the right of government entities to use their powers of eminent domain to seize private property to allow another private entity to develop the property for economic development purposes.

Perry says government must wield its powers of eminent domain "only when property is vital to achieving a compelling public good," such as in the construction of schools, public roads and utility lines.

Austin Business Journal: http://austin.bizjournals.com

Board passes eminent domain resolution: Barron (WI) News Shield, 9/1/05

By Eric Quade

In reaction to a recent Supreme Court ruling, the Barron County Board of Supervisors passed a motion formally objecting to the Supreme Court's ruling and to ensure that county government refrains from such behavior.

Supervisor Bob Olson wrote the motion and asked the board to support it in an act of solidarity against the Supreme Court's recent New London case ruling.

The motion states that the Court ruling supports "local government's ability to take private property for a vaguely defined 'public good' such as economic development, or increased tax revenues to the local government itself."

Olson said that line 26 of the motion only supports the seizure of private property as a "last resort" and also only for a "public project," which contrasts with the court ruling where private property was condemned under eminent domain and sold to another private entity.

The motion passed with only Supervisor James Stavran objecting.

Barron News Shield: www.zwire.com

State Rep. slams Stockbridge over eminent domain: Henry (County GA) Herald, 9/1/05

He calls it "abuse." They call it good planning.

By Michael Davis

The Stockbridge [GA] City Council last week voted to condemn several properties in its proposed redevelopment area. An appointed city panel minutes later decided to condemn several more.

This week, at least one state lawmaker is criticizing the city's move as "abuse" of eminent domain powers.

Through a press release, state Rep. Steve Davis, R-McDonough called the city's actions "disgraceful" and vowed to support pending legislation that would rein in government's ability to take private property. He said he would support a resolution by state Rep. Bill Hembree, R-Douglasville, to put a constitutional amendment on the November 2006 ballot that would limit government's ability to seize property to public purposes only, not for economic development.

"As I sat in the chambers and watched the mayor and city council pass all the condemnations unanimously, I wondered if they knew what they were doing," Davis said in the release.

Hembree feels the best way to ensure limits on government's seizure abilities was through a state constitutional amendment, which requires a referendum. A law enacted by the Legislature "can be challenged and a judge can throw it out," he said on Tuesday.

The use of eminent domain, the authority granted the government to take property in exchange for compensation determined by a court, has come into question since the U.S. Supreme Court in June bolstered government's ability to use it for economic development.

Since then, local governments in some areas, including the county, have vowed they wouldn't condemn property and turn it over for private development. Henry commissioners, and the city of Hampton, both passed "hands-off" resolutions in July.

Stockbridge city leaders say the town center project will revitalize the city's ailing downtown business district, which sits in the shadows of a bridge over railroad tracks that once brought booming business to the town. City Manager Ted Strickland declined to comment Tuesday on Davis' statements, except to say "I don't want to get into a debate with him."

Last Thursday, the city council and the appointed Urban Redevelopment Agency voted to move forward with condemnation procedures against eight properties that lie in the 22-acre so-called Urban Redevelopment District. Officials said they were unable to come to an agreement with the property owners over a purchase price.

The condemnation mends together the final properties that complete the 18 lot site planned for a new city hall and parking deck and a public park. The Urban Redevelopment plan, which was changed Thursday to put more public buildings on land set for condemnation, also includes selling portions of the property to private developers to develop multi-story retail, office and residential buildings.

Officials hope the city's investment in defining a center of a town devoid of one will spark interest in the project and bolster the city's retail growth. Strickland has said the plan is needed to curb blight in the business district and ensure the economic health of the city.

Henry Herald: www.henryherald.com

State Senate OKs bill to trim eminent domain : San Diego (CA) Union-Tribune, 8/31/05

By Michael Gardner

Jarred by stories of shattered dreams, California lawmakers took a first step yesterday to temporarily harness the power of local governments to seize private homes through eminent domain.

However, tales of mom and pop shops shuttered by public agencies to make way for larger tax-generating retailers failed to persuade senators to extend the same protection to businesses.

Their reluctance could ignite an initiative tapping into what appears to be a growing public backlash to a U.S. Supreme Court ruling that affirmed the broad eminent-domain powers in Connecticut.

In the first crucial test of the California Legislature's response, the Senate Judiciary Committee approved a measure that would impose a two-year moratorium on taking homes for private projects, giving the state time to study whether to impose new limits.

Some Democrats conceded that they remain wary of wading in, but still provided the 5-2 majority vote to keep the bill moving to give supporters time to hammer out some outstanding issues that threaten to keep it from reaching the governor's desk.

"We're asking for an extraordinary remedy, but do we have an extraordinary problem?" asked Sen. Gil Cedillo, D-Los Angeles, who nevertheless supported the moratorium in AB 1162.

Taking stock of the outpouring of reports of businesses, churches and homes being seized to make way for big-box stores and hotels, Cedillo urged caution. "Too often we legislate by hysteria," he said.

Majority Democrats derailed SCA 15, a broader constitutional amendment that would have barred all seizure of private property unless it was for a public use, such as roads or schools. Sen. Christine Kehoe, D-San Diego, and others agreed to shelve a narrower version protecting homeowners, SCA 12, until hearings can be held this fall.

San Diegan Jody Carey, who was ensnared in a high-profile eminent-domain proceeding, argued in vain for a broad ban on seizures.

"They answer to no one," said Carey, whose nearly half-million-dollar City Heights home has been coveted by an obscure redevelopment authority pursuing a large housing project.

The San Diego Model School Development Agency has retreated for now, but Carey says a blanket ban, not a moratorium, is the only way to save his home from being bulldozed.

"The bill will give them two years to lick their wounds and come right back," he said.

But officials with redevelopment agencies that use eminent domain sparingly say problems are overblown and that overreacting could eliminate a valuable tool to chase out drug dealers, remove toxic waste and revitalize neighborhoods.

"It's a nuclear blast," said John Shirey, who represents redevelopment agencies, generally an arm of city or county governments.

But that blast still may be leveled at redevelopment agencies at the ballot box.

Orange County Supervisor Chris Norby, a strident critic of eminent domain, said influential supporters are ready to begin collecting nearly 600,000 signatures to place a constitutional amendment before voters that would restrict the use of eminent domain to public needs, such as freeways and hospitals.

San Diego Union-Tribune: www.signonsandiego.com


The effect of the Kelo decision on Colorado law: Colorado General Assembly, Office of Legal Services

Memorandum — Summary of opinion

Issued by the Office of Legislative Legal Services concerning Colorado law on condemnation for economic development and private toll roads in the wake of Kelo v. City of New London

The effect of the Kelo decision on Colorado law on eminent domain especially for urban renewal purposes
In Colorado, the Kelo decision should not result in a dramatic change in state law governing eminent domain, particularly eminent domain as exercised by urban renewal authorities. Colorado courts have for many years consistently interpreted the term "public use" in addressing takings claims brought under section 15 of article II of the Colorado constitution in a broad and expansive manner similar to that provided by the Kelo court in addressing petitioners' claims arising under the federal constitution. However, Colorado courts have also held that the condemnation must be supported by a public purpose, notwithstanding the fact that an incidental and secondary consideration of the condemnation may result in a transfer of ownership of the property at issue to another private party. In the urban renewal context, long-standing case law has held that the remediation of blighted or slum conditions constitutes a valid public purpose. Thus, it has long been held that section 15 of article II of the Colorado constitution permits the taking of one person's private property for ultimate transfer to another private party as part of an urban renewal plan designed to eliminate slum or blighted conditions.

Because of its explicit requirement that the determination of whether a taking is a public use be made by the judiciary, the Colorado constitution arguably provides more protection for private property owners than the federal constitution. Colorado courts have exercised constitutional authority in this field to invalidate condemnations where it appeared that the primary purpose of the condemnation was to further private interests.

In addition, propelled at least in part by major statutory modifications to Colorado's Urban Renewal Law ("URL") over the past several years by the General Assembly, Colorado law contains a series of requirements on the ability of a public entity to condemn land for urban renewal purposes that do not appear to have been part of the system in place in Connecticut to regulate the use of eminent domain at the time of the condemnation actions giving rise to the Kelo case. For example, in Connecticut at the time of the Kelo decision, it was not necessary for property to be a slum or in a blighted condition for it to be taken for economic development purposes. However, under the URL, the only valid public purpose for which an urban renewal plan may be adopted (with accompanying powers by the authority to condemn property) is to eliminate or prevent the spread of slum or blight. Thus, an attempt in Colorado to exercise eminent domain powers to condemn property solely for economic development purposes in the absence of a blight determination would seem to be expressly precluded by the requirements of the URL.

The effect of the Kelo decision on the power of a private toll road company to exercise the power of eminent domain
The Kelo decision does not appear to directly affect the power of a private toll road company to exercise the power of eminent domain. It has long been unquestioned that the construction of roads and highways is a public use and that governmental entities may exercise the power of eminent domain when necessary for highway construction. Consequently, Kelo would change Colorado eminent domain law with respect to private toll road companies only if it provides to such companies an ability to exercise the power of eminent domain that they did not already have or overrides the power of the state to prospectively restrict private toll road companies from exercising the power of eminent domain. Because section 38-2-101, Colorado Revised Statutes, has long authorized private toll road companies to exercise the power of eminent domain, Kelo cannot logically provide such companies with any new eminent domain power. Moreover, because the Kelo court stated that states may place further restrictions on their exercise of the takings power, Kelo does not affect the plenary power of the General Assembly to restrict the exercise of the power of eminent domain by private toll road companies.

Colorado General Assembly, Office of Legislative Legal Services
State Capitol Building, Room 091
200 east Colfax Avenue
Denver CO 80203-1782

Eminent domain needs to be used for right reasons: (Richmond IN) Palladium-Item, 8/30/05


By Richard Young

Recently the U.S. Supreme Court issued a ruling regarding eminent domain that has caught the attention of many Americans. In the decision, the high court said that federal, state and local governments may seize private property for commercial development if it can be considered of economic benefit to the public at large.

Eminent domain has been an important tool governments can use to improve their communities. It is a necessary evil. However, it's a tool that should be used sparingly and only as a last resort.

Many Hoosiers understand the need for eminent domain when it comes to projects that benefit the entire community — projects like roads, sewers and schools. However, when the government seizes land in the name of economic development or commercial profit, eminent domain is not being used as intended.

The entire premise is based, in my judgment, on the notion that a particular project would benefit the entire community, not just a few individuals. I fail to see the common good when homes and farms are bulldozed in order to make room for another strip mall, office park or more condos and apartments.

A line must be drawn.

Through a summer study committee, the Indiana General Assembly is researching ways to better define when eminent domain can and cannot be employed. Currently, in Indiana, a government can only seize private property if it is located in an area needing redevelopment. However, in light of the recent court ruling, a clearer definition outlining the strict circumstance in which eminent domain can be used is needed.

Hoosiers have worked hard to obtain their property and deserve the right to live without fear of the government taking it away. Be assured that my colleagues and I all understand this and will continue to work to secure your property rights.

The Palladium-Item: www.pal-item.com

Richard Young is minority leader in the Indiana State Senate

County Won't Use New Eminent Domain Power: Polk County (Bartow FL) Democrat, 8/26/05

Polk County commissioners have vowed not to use the power of eminent domain to condemn private property for economic development.

In a resolution sharply critical of a recent United States Supreme Court decision, the commission declared that "the power of eminent domain shall be used only to acquire private property for a public purpose."

Commissioner Paul Senft asked County Atty. Joseph Jarret to draw the resolution, which asserts that the county will not exercise the powers to take private property to sell it for private purposes.

In a controversial 5-to-4 decision, the court ruled in the case of Kelo vs. New London that the city of New London, Conn., could use its power of condemnation for that purpose.

Both houses of Congress quickly filed legislation to prohibit the use of federal funds in such cases.

In its resolution, the Polk County commission noted that historically, the power of eminent domain "has been reserved to the local, state and federal governments for the sole purpose of acquiring private property through the use of condemnation proceedings when said privately held properties are needed for public purposes."

It said the court's New London decision allows local governments "to take private property for a vaguely defined 'public good' such as economic development, or increased tax revenues to the local government itself."

It charged that the decision "put at risk the very right of private individuals to be free from government interference in their right to keep and enjoy their private property and . . . is contrary to and contravenes . . . Constitutional protections against such capricious and willful attacks by any governmental body upon the rights of the citizens."

It says the commission "deems any departure from the original principles of eminent domain to be an assault on our basic foundations of liberty and a threat to the rights of private property ownership."

It encouraged local governments in Florida to encourage the Legislature "to use all means necessary to strengthen the original purpose of the powers of eminent domain within the Constitution of the State of Florida."

Commissioners voted unanimously to adopt the resolution.

Senft noted that while it declares the commission's position in no uncertain terms, the policy could be changed by a future commission.

Eminent domain is used most frequently in Florida to acquire right-of-way for construction of new roads or widening of existing ones. It also can be used to acquire sites for new schools or other public facilities.

Polk County Democrat: www.polkcountydemocrat.com

Is Gotbaum Master of Her Domain? (New York NY) Village Voice, 8/25/05

Public Advocate candidates dispute what's eminent and imminent in the Atlantic Yards deal

What's worse, feigning ignorance or being ignorant? That is the question raised by the latest attack by public advocate candidates Andrew Rasiej and Norman Siegel on the woman they each want to unseat, incumbent Betsy Gotbaum.

In Tuesday's NY1 debate, Siegel asked Gotbaum how she squared her support for the Atlantic Yards project in Brooklyn with her opposition to the use of eminent domain. Siegel opposes the recent Supreme Court decision allowing government "takings" for private development rather than old fashioned public uses like hospitals and highways, and he has provided legal help to opponents of Bruce Ratner's plan to build a Nets arena and housing complex around the MTA rail yards.

In March, Gotbaum told the Brooklyn Rail newspaper that she "will not support any project that is dependent on the use of eminent domain for private use," but then in July called the Atlantic Yards project—and its community benefits agreement that includes jobs for locals and affordable housing—" a wonderful, wonderful example of what development should be all about." She went on to say: "To bring all these different groups together to get everybody on board, to have negotiated like that, Bruce Ratner, I think we can only praise you to the highest."

So, Siegel asked, what gives? According to an unofficial transcript of the NY1 debate, Gotbaum replied:
Well, Mr. Siegel, let me point out to you that I am against the use of eminent domain and . . . it is not my understanding that the developer at the Atlantic Yards is going to use eminent domain. I have been told in fact that that is not the case, so if you know something different that is something I don't know, but I am against the use of eminent domain in the northern part of Manhattan and at the Atlantic Yards. I am concerned about the project at the Atlantic Yards. I am concerned about the size and I am concerned about the traffic and I am also concerned if there is to be a use of eminent domain but I have been told there is not.

Perhaps Gotbaum has new information, but eminent domain's been in the Atlantic Yards mix since the beginning, and it remains part of the equation. It's mentioned in the February memorandum of understanding between Forest City Ratner and the city and state, as well as in the May presentation that Ratner's people made to the City Council, as well as in several articles in the local papers about the Brooklyn deal.

It's true that Forest City Ratner has bought up many of the parcels that lie in the project footprint, but some people so far are refusing to sell out (Besides, selling out with the prospect of eminent domain hanging over your head is a little different from deciding freely to relocate). That's why ACORN's Bertha Lewis, a champion of the Atlantic Yards deal, told the Voice in July that she supports the use of eminent domain "if it's a last resort and they are buildings where there's no other strategy to be dealt with." Gotbaum's salute to the Atlantic Yards community benefits deal can't have hurt the public advocate when she asked for ACORN's endorsement, which she received.

A spokesman for Gotbaum's campaign says simply, "If eminent domain is part of the project she's not supporting it."

The Village Voice: www.villagevoice.com

House committee seeks to restrict eminent domain powers: (Manchester NH) Union-Leader, 8/26/05

By Tom fahey

A [New Hampshire] House committee yesterday voted to recommend tighter language in state law while still allowing local and state government the power to take private property by eminent domain.

The committee voted to allow land to be taken over only for "public use," and in cases of abandoned or clearly blighted property. But it said governments should be barred from using economic development, jobs or tax revenues as reasons for an eminent domain taking.

House and Senate committees are studying state laws on eminent domain power in the wake of a U.S. Supreme Court decision that allowed the city of New London, Conn., to take private homes for a private economic development project that will boost tax revenues.

The state Constitution allows a government to take private property if it is for "public use," but court decisions on the subject have gradually expanded takings for "public purpose" and "public benefit."

The House committee voted to recommend that the Legislature define the words "public use" clearly and narrowly. It would then substitute "public use" anywhere the term "public purpose" appears in state law.

Public use would mean, "the possession, occupation, and enjoyment of the land by the general public, or by public agencies."

Committee chairman Rep. Maureen Mooney, R-Merrimack, said the committee will also cite in its report areas of concern where the House and Senate should work together to determine state policy on eminent domain powers. These include a clear definition of blight, and issues such as urban renewal and redevelopment.

The fear among some committee members is that since the Supreme Court's ruling, state law leaves local and state government too much freedom in determining when to take property, and in how condemned land will be used.

Institute for Justice senior attorney Dana Berliner, who represented property owners in the New London case, known as Kelo v. New London, told the committee the New Hampshire Constitution leaves room for government to take private property and hand it over to a private developer.

Berliner said that the state's Constitution is "no more limiting than the U.S. Constitution is." The state allows eminent domain takings of blighted properties, but references to blight in state law use "an extremely vague definition," she said.

Berliner said yesterday that fixing state statutes would be easier and quicker than trying to amend the state Constitution.

Maura Carroll, general counsel to the New Hampshire Municipal Association and the Local Government Center, urged the committee to be cautious as it looks for solutions.

"I ask you not to overreact to something people have been very upset about nationally because of the Kelo case," she said.

The fact the state Supreme Court has only handled one major eminent domain case in 20 years indicates that local governments have used restraint in exercising their power, she said.

In its proposed definition of "public use," the committee voted to include language that allows taking of clearly blighted or abandoned properties. Government would be able to act, "to cure a concrete harmful effect of the current use of the land, including the removal of public nuisances, structures that are beyond repair or that are unfit for human habitation or use, and the acquisition of abandoned property," the suggested language said.

In the conclusion of the draft statement, the committee said, "We firmly believe in protecting privately owned property from the unreasonable or oppressive use of the eminent domain power. While we recognize that New Hampshire has existing safeguards to protect property rights, we believe that in light of Kelo, these recommendations will further protect this fundamental constitutional right."

Union-Leader: www.theunionleader.com


Corning mulls eminent domain: Red Bluff (CA) Daily News, 8/25/05

By Jerome C Crow

The City of Corning will take Tehama County's lead and study whether the council should take a position on a proposed constitutional amendment that will limit the power of eminent domain.

The item had been discussed at a previous board of supervisors meeting and was scheduled for more discussion on Tuesday, but was pulled from the agenda pending a revision in the wording of the amendment and further study by supervisors.

With the wording completed, Willy Preston, field representative for Assemblyman Doug LaMalfa, R-Richvale, who is sponsoring the proposal in the California State Assembly, addressed the Corning City Council Tuesday evening.

Councilwoman Darlene Dickison expressed her strong desire to support the proposal. She said according to a recent U.S. Supreme Court ruling, the government can come and seize private property to sell to other private citizens if they deem a need, and that's unfair.

"At this point, they can just come in and call something blighted and take it from you," said Dickison. "I don't agree with that."

Councilwoman Yvette Zuniga said she felt that it was an issue that the council should vote on as individuals and not take a stand as a council.

"I don't think this is something we should do as a council," said Zuniga. "We should leave private personal politics private."

Mayor Gary Strack asked the council if it should vote Tuesday to support the issue, which led to a discussion of the city's view on the issue.

Preston said the necessity for an immediate action wasn't as necessary as the deadline to place it on the upcoming November election had passed, but that the city's support would be greatly appreciated.

The legislation addresses the recent U.S. Supreme Court decision of Kelo versus the City of New London, Ct., permitting government to seize the property of ordinary citizens for private gain.

"The notion that government can place a higher value on one person's activity and use of their own assets over someone else's is an elitist and dangerous enterprise that connotes the totalitarian thinking of a few making value judgments over the masses," LaMalfa said recently. "I believe this is contrary to our most fundamental constitutional rights."

Consideration of the item will be carried over to the next meeting.

Red Bluff Daily News: www.redbluffdailynews.com

Property Owners Typically Receive Slim Initial Offers in Eminent Domain Cases, Eminent Domain Expert Says: Lewis Realty Advisors, 8/25/05

Press Release

Property owners who face eminent domain receive insufficient purchase offers from governmental agencies in many instances, says eminent domain expert David M. Lewis, founder of Lewis Realty Advisors.

Lewis Realty Advisors has been involved in thousands of eminent domain cases during its 45-year history. The national leader in its field, the realty consulting firm frequently represents both private enterprise and governmental agencies in the acquisition of private property through eminent domain.

When governmental agencies are acting to acquire a property through eminent domain, the property owner may not be offered a fair price at first.

"While many condemning authorities will make a fair purchase offer initially, some owners may not get just compensation," Lewis said. "We have been involved in thousands of these cases since 1960s and it is quite common for there to be disagreement about a property's value, or damages to the remainder of the property."

Lewis, a MAI-designated appraiser, also has served as a real estate instructor at the University of Houston and a consultant to governmental officials.

Property owners who are facing eminent domain should consider hiring an appraiser experienced in eminent domain, Lewis said. If the offer is insufficient, the property owner should definitely appeal. As is typical in real estate transactions, the buyer rarely produces its highest offer in the initial stage of negotiations.

Eminent domain has been a topic of concern across the nation this summer. In June, the U.S. Supreme Court issued a ruling in the Kelo v. City of New London case. The Court's opinion gives governments the authority to condemn private property for development by private, for-profit investors. The City of New London plans to take waterfront property for a mixed-use commercial development.

"The Supreme Court ruling in the New London eminent domain case was alarming to many Americans," Lewis said.

Since the Supreme Court ruling, many states have enacted laws restricting local government's use of eminent domain acquisitions.

Property appraisals and negotiation in eminent domain cases for commercial properties is one of the specialties of Lewis Realty Advisors. The firm also works as a real estate counselor for municipalities in a variety of circumstances.

Lewis Realty Advisors: www.lewisrealty.com

Lawmakers draft competing proposals on eminent domain: (Long Island NY) Newsday, 8/25/05

By Noreen Gillespie, Associated Press

In theory, [Connecticut] Rep. Steven Mikutel had no problem with the town of Norwich taking his grandfather's farm for a school.

But more than 40 years later, he says the land is still empty.

Mikutel was one of dozens of people who spoke at a public hearing Thursday about proposed changes to the state's eminent domain laws in the wake of a recent U.S. Supreme Court decision that said government can seize homes for private economic development projects.

"Too often they grab more land, more property, than they actually need," the Griswold Democrat said.

Connecticut's legislature and others across the country are reviewing eminent domain laws. State lawmakers drafted more than a half dozen proposals, which would do anything from pay homeowners more for their homes to halting the practice of seizing for private development.

In June, the high court ruled on a 5-4 vote that the city of New London can take homes for a private riverfront economic development project to increase its tax base. The ruling prompted an emotional backlash from homeowners worried their properties were at risk.

But a legal expert urged lawmakers to tread carefully in considering changes. While people are sympathetic to the homeowners, passing laws that cripple development might not be a wise idea, he warned.

Forcing the government to pay fair market value for properties was originally built into eminent domain laws as a deterrent to using the power, said Jeremy Paul, a University of Connecticut law professor. He suggested lawmakers make it more expensive to take a home.

"That's a much more refined tool than attempting to put a straitjacket on municipalities all around the state," he said.

One of the suggestions in the drafted bills is to pay homeowners one-and-a-half times the fair market value. Hartford Mayor Eddie Perez said that while a private project could draw from revenues, cities would likely have to raise taxes to pay for the new fees.

"Without broad eminent domain powers, cities would never be able to negotiate fairly with landowners who may wish to delay or stall the development," Perez said.

Thursday's hearing was the third held on the issue, and another is planned for September or early October. Some, including House Minority Leader Robert Ward, are urging lawmakers to go into special session to pass a moratorium on seizing property in the meantime.

"Ignoring the potential plight facing all property owners is not acceptable; allowing this practice to continue is wrong," Ward, who was out of town, said in a statement.

Newsday: www.newsday.com

American FB President Testifies on Eminent Domain: American Farm Bureau Federation, 8/25/05

Press Release

Agricultural land is extremely vulnerable to condemnation by government entities under the guise of economic development, said American Farm Bureau Federation President Bob Stallman, during testimony before a joint Oklahoma state house/senate task force.

The U.S. Supreme Court earlier this summer ruled land can be confiscated for economic benefit, in its landmark case of Kelo v. the City of New London, Conn. AFBF is encouraging state Farm Bureaus to lead urban and rural property owners to support changes in state laws that remedy this problem. For that reason, a Stop Taking Our Property (STOP) initiative was rolled out this week by AFBF, Stallman said.

“By holding that the U.S. Constitution does not forbid the use of eminent domain to take private property and give it to another party for its own private economic gain, the Supreme Court has essentially put all of our property up to the highest bidder,” Stallman told the senators.

Agricultural lands, especially those in expanding urban areas, provide a ready source for potential shopping malls, industrial parks and housing complexes. Condemnation of this land also results in farmland that has been in a family for several generations simply being taken away, Stallman said.

In the Supreme Court ruling, the court said the Constitution allows states and local governments to take private property for economic development projects, but the court also said that states can enact laws disallowing the taking of private property for economic benefit. Passage of a state law to limit the use of eminent domain is what the Oklahoma Farm Bureau and AFBF are supporting.

Stallman said AFBF saw a major need to initiate the STOP campaign to assist Farm Bureaus to overcome the effects of Kelo. Many states are similar to Oklahoma in not currently protecting residents against use of eminent domain for economic gain by local governments.

In wrapping up his testimony, Stallman said, “The solution lies in your hands and other state legislatures around the country.”

American Farm Bureau Federation: www.fb.org

EDC Urges Town Constraints On Eminent Domain Power: Newtown (CT) Bee, 8/25/05

By Andrew Gorosko

Economic Development Commission (EDC) members are recommending that the town government observe a self-imposed moratorium on using the power of eminent domain to transfer property from one private owner to another private owner.

EDC members voted 5-to-1 in favor of such a moratorium, following an August 16 talk on the subject by State Senator John McKinney of Fairfield. The Republican state senator, who is an attorney, outlined his position on the controversial eminent domain topic at an EDC session.

The eminent domain issue drew wide public attention following a controversial US Supreme Court decision in June that upheld Connecticut state law pertaining to the City of New London's seizure of private homes in the waterfront Fort Trumbull section in order to make way for a city-sanctioned private economic development project.

On August 22, the Supreme Court refused to reconsider its June decision that expanded municipalities' rights to seize homes for economic development projects.

Generally, the power of eminent domain has been exercised by governments to create locations for public facilities, such as roads, schools, or parks. Eminent domain involves the right of a government to take, or to authorize the taking, of private property for public use, with just compensation being given to the property's owners.

In June, in a 5-to-4 decision, the US Supreme Court ruled that the City of New London has the legal authority to seize 15 homes in the Fort Trumbull section to allow construction of a city-sanctioned private development project, including office space, which is envisioned as a way to improve the financially-strapped city's tax base. The owners of the homes to be seized had opposed New London's efforts to acquire their properties, resulting in legal appeals that led to the US Supreme Court decision.

In making its ruling, the US Supreme Court decided that state governments could enact state legislation that bans property seizures such as those in New London.

EDC Chairman Chet Hopper said August 22 that the EDC would reevaluate its call for a moratorium on the town government's using eminent domain to transfer property from one private owner to another private owner, after the state legislature acts on the eminent domain issue.

The EDC is an advisory panel that addresses economic development issues as they affect the town.

Following the US Supreme Court decision, Republican Governor M. Jodi Rell suggested that New London officials seek to incorporate the homes in the Fort Trumbull neighborhood into the private developer's construction plans for the site. The homes would otherwise be demolished for the economic development project.

State Senator Expects Legislation
At the August 16 EDC session, Sen McKinney told EDC members that a large majority of people with whom he has discussed the eminent domain issue believe that allowing private homes to be seized by a government on behalf of a private economic development project is inconsistent with the founding principles of the United States, according to EDC records.

Sen McKinney said he expects there is a good chance that the state legislature will pass a law in its next session that addresses the effects of the US Supreme Court ruling. That session ends in May 2006.

The lawmaker told EDC members that he would support state legislation that would prohibit a government's seizure of homes for the sake of private economic development.

The state Office of Legislative Research estimates that eminent domain is mentioned in 80 Connecticut laws.

Sen McKinney suggested that the town enact a local ordinance on eminent domain, if it chooses to do so, because the state legislature may not necessarily act of the matter in its next session. He suggested that the town enact an ordinance prohibiting the town's seizure of private property for its transfer to a private developer.

In July, the Milford Board of Alderman passed an ordinance limiting that city government's use of eminent domain to acquire certain private properties for private redevelopment. That ordinance would be superceded by any state legislation approved on the subject.

Sen McKinney told EDC members that he considers the US Supreme Court's decision to be a new interpretation of the US Constitution, which expands upon the traditional concept of eminent domain.

Commenting on the EDC vote, which calls for a moratorium, Mr Hopper said, "We do not want to take private property and transfer it to another individual... We don't want to see this happen. We're giving the 'sense' of how we feel about this."

The EDC's recommendation for a moratorium is directed at the Legislative Council and the Board of Selectmen, Mr Hopper said. "We are an advisory body," he noted.

The premise for New London's seizing the Fort Trumbull homes is to create a site for a private economic development project that would ostensibly benefit that municipality through added property tax revenue and new jobs, Mr Hopper said. But such results "not necessarily a foregone conclusion," he added.

Mr Hopper has said he has received many public comments opposed to governmental seizures of private property to benefit economic development projects.

EDC members had discussed the eminent domain issue at a July 19 session, after which they decided to formulate a stance on the topic.

Newtown Bee: www.newtownbee.com

NY Public Advocate Lies About Eminent Domain: Develop, Don't Destroy Brooklyn, 8/29/05

Press release

Public Advocate Betsy Gotbaum Lies About Bruce Ratner's Eminent Domain at Atlantic Yards; Homeowner Faced With Condemnation for Ratner Project Condemns Ms. Gotbaum and Mr. Ratner

During two debates in the past week incumbent New York City Public Advocate, Betsy Gotbaum, displayed an astounding dishonesty or detachment about eminent domain and the 17-skyscrapers and arena proposed in Prospect Heights, Brooklyn by Bruce Ratner's firm, Forest City Ratner (FCR). Ms. Gotbaum stated that Mr. Ratner will not use eminent domain for his project, and that she knows because he told her so.

A homeowner faced with a State seizure of his home to pave the way for the Ratner project, Daniel Goldstein, said, "I had to throw up my arms in disgust when I heard my public advocate speak such bald-faced lies. I'm sure Mr. Ratner has told her that he won't use eminent domain, it's in his interest to tell her that. But it's in her job title to reach out to the public, find out the truth and then represent the citizens she was elected to represent. She hasn't done this and that is a dereliction of her duties of office. She knows the truth, as I, and others, informed her office many months ago. I can only conclude that she is lying or disengaged from one of the key public debates boiling in New York City."

Ms. Gotbaum stated that she is against the use of eminent domain but supports the Ratner project as it's her understanding eminent domain won't be used. She did say that if she learns otherwise, she would not support the Ratner project.

"Its time for Ms. Gotbaum to engage the powers of her office and oppose the use of eminent domain for private gain at Atlantic Yards and everywhere else in the City," Mr. Goldstein said. "Having heard her comments during the debates, I had to write to Ms. Gotbaum to let her know the reality of eminent domain at Atlantic Yards, so she doesn't continue speaking untruths about it. I expect that she will realize that she was terribly incorrect with her debate comments and will withdraw her support for the Ratner project. Anything short of that is hypocrisy and advocacy for a billionaire developer instead of the public."

Letter sent by Mr. Goldstein to Ms. Gotbaum:
Hon. Betsy Gotbaum
Public Advocate of the City of New York
1 Centre Street, 15th Floor
New York, NY 10007

August 29, 2005

Hon. Public Advocate Gotbaum:

On August 23rd, during a televised debate on NY1, and again at a second debate aired on August 28th on NBC, you stated that you would not support Forest City Ratner's (FCR) proposed arena/high-rise project in Prospect Heights, Brooklyn if the project uses eminent domain.

Currently you are on the record as supporting the project. You also said "...the developer has told me that he is still negotiating with holdouts, and will not use eminent domain."

The Ratner proposal would use eminent domain. Knowing that, do you support or oppose the project?

According to the Memorandum of Understanding (MOU) signed by Bruce Ratner, New York City and State on February 18th, 2005, my home is precisely at the location where the proposed arena would be constructed. In that MOU the State agency, the ESDC, agrees to use its eminent domain power and City money is earmarked to be used for "compensation."

As public advocate, it behooves you to fully grasp the public policy issues that are swirling around the FCR proposal. It appears that you are out of touch with those issues, including the threat and use of eminent domain that will be vigorously challenged in court.

I am not a "holdout," as you called my neighbors and me during the debate. I am a person trying to live in peace in the home and neighborhood I chose to reside in釦he State has no right to take it from me to give to a private corporation that will make billions in profit. While FCR has offered to buy my home from me, I have explained to their representatives that my home is not for sale. Those representatives then told me, in very clear terms, that if I do not sell my home to FCR then the State will seize it by using its eminent domain powers. I have neighbors in my community who have been told the same thing; these neighbors are business owners, homeowners and property owners.

Furthermore, any negotiation with the threat of the State's power of eminent domain as a hammer behind the back of the developer is a bad faith negotiation. If you believe that the use of eminent domain at "Atlantic Yards" is wrong, then certainly the threat of it during a negotiation is just as wrong. But your comments explicitly show that you are comfortable with the threat of eminent domain as long as the developer sits at a negotiating table.

You should also be aware that when selling to Mr. Ratner a property owner must first sign a contract infringing upon one's free speech rights (see: www.dddb.net/public/gag), which is not a normal part of property sales. It is immoral to infringe on a citizen's First and Fifth Amendment rights. Why would you support such un-American behavior? As public advocate you must promptly and publicly condemn these tactics.

For two years it has been very clear that eminent domain will be a tool used by the State on Mr. Ratner's behalf. He said just that as recently as two months ago on NY 1.

It is very disturbing that during the debate you said, "...the developer has told me..." Ms. Gotbaum, you are the public advocate, not the corporate advocate. Implicit in your comment during the debate is that you have only spoken with the developer about this issue. Some of us, living under this eminent domain threat for two years now, have spoken with your staff and have made it clear that eminent domain is an integral aspect of the Ratner development proposal. Unless your staff did not inform you of this, it appears that you chose to take the word of the developer over the word of citizens, or simply lied during the debates. Whichever reason it is, it is unacceptable that you'd favor the developer over the citizen.

The developer has lied to you, but you still have time to withdraw your support for the project as you stated you would during the debates. Please understand that I have no intention of selling my home to Mr. Ratner or anybody; my home is not for sale. Thus, for Mr. Ratner's project to proceed he will have to take my home by eminent domain as stated in the MOU.

I look forward to a prompt and public response.


Daniel Goldstein

Bruce Ratner, Forest City Ratner CEO (fax and mail);
Norman Siegel, Candidate for New York City Public Advocate
Andrew Rasiej, Candidate for New York City Public Advocate
Jay Golub, Candidate for New York City Public Advocate
Hon. Mayor Michael Bloomberg
Hon. Congressman Anthony Weiner
Fernando Ferrer
Hon. Speaker Gifford Miller
Hon. Borough President C. Virginia Fields
Dominic Carter, NY 1
Gabe Pressman, NBC
Jim Stuckey, Forest City Ratner VP

Letter sent by Mr. Goldstein to Mr. Bruce Ratner:
Mr. Bruce Ratner
President and CEO, Forest City Ratner
One MetroTech Center North
Brooklyn, New York 11201

August 29, 2005

Mr. Ratner,

On August 23rd, during a televised debate on NY 1, the City's public advocate, Betsy Gotbaum, said that she would not support your proposed arena/high-rise project in Prospect Heights, Brooklyn if the project will use eminent domain. She repeated this in the second public advocate debate aired on NBC on August 28th. She also said that she has been told by you that eminent domain will not be used.

Of course eminent domain will be used if your project proceeds.

According to the Memorandum of Understanding (MOU) you signed with New York City and State on February 18th, 2005, my home is precisely at the location where you plan to construct the arena. That same MOU contemplates the use of eminent domain and earmarks some City money to be used for "compensation." While you have offered to buy my home from me, I have explained to your representatives that my home is not for sale. Those representatives then told me, in very clear terms, that if I do not sell it then the State will seize it using its eminent domain powers. I have neighbors in my community who have been told the same thing; these neighbors are business owners, homeowners and property owners.

For two years now it has been very clear that eminent domain will be a tool used by the State on your behalf. I've seen and heard you say so as recently as two months ago during an interview on NY 1.

I intend to continue living in my home for a long time, until I decide it is time to leave my home. By the way, as you well know, the building I live in is a beautiful renovated warehouse; the renovation is a little over two years old. What you may not know is that it is the only building in New York City designed by acclaimed architect George S. Kingsley. It would be a terrible shame to see you demolish this unique building and immoral to kick me out of the home and neighborhood I chose to live in.

In light of the fact that my home is not for sale to you, will the State use eminent domain to acquire my property on your behalf, as per the MOU signed amongst yourself, the City and the State? I would like to clarify this for myself and for Ms. Gotbaum. Ms. Gotbaum's statements suggest that she is either out of touch with reality at Atlantic Yards, that she was lying or that somebody at your real estate development firm has lied to her.

I look forward to a prompt response, which can hopefully clarify the situation for our public advocate, for the citizens of this City and for myself.


Daniel Goldstein

Hon. Betsy Gotbaum, New York City Public Advocate (fax and mail)
Norman Siegel, Candidate for New York City Public Advocate
Andrew Rasiej, Candidate for New York City Public Advocate
Jay Golub, Candidate for New York City Public Advocate
Hon. Mayor Michael Bloomberg
Hon. Congressman Anthony Weiner
Fernando Ferrer
Hon. Speaker Gifford Miller
Hon. Borough President C. Virginia Fields
Dominic Carter, NY 1
Gabe Pressman, NBC
Jim Stuckey, Forest City Ratner VP

Develop, don't destroy Brooklyn http://developdontdestroy.org


Justice Weighs Desire v. Duty (Duty Prevails): New York (NY) Times, 8/25/05

By Linda Greenhouse

It is not every day that a Supreme Court justice calls his own decisions unwise. But with unusual candor, Justice John Paul Stevens did that last week in a speech in which he explored the gap that sometimes lies between a judge's desire and duty.

Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were "unwise," he said, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."

In one, the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.

Justice Stevens said he also regretted having to rule in favor of the federal government's ability to enforce its narcotics laws and thus trump California's medical marijuana initiative. "I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters," he said. But given the broader stakes for the power of Congress to regulate commerce, he added, "our duty to uphold the application of the federal statute was pellucidly clear."

The court's press office made the text of his speech available.

While the substance of his remarks was interesting, so was the timing. The 85-year-old Justice Stevens, who will observe his 30th anniversary on the court this fall, is a savvy observer of the political landscape. It certainly did not escape his notice that Supreme Court confirmation hearings were looming and that a microscopic examination of the views of the nominee, Judge John G. Roberts Jr., was under way.

Perhaps Justice Stevens intended a gentle reminder that no matter what views Judge Roberts held as a young lawyer in the Reagan White House, the real question was one that only the nominee could answer: not what views he holds today, but the impact he would permit those views to have on his work as a Supreme Court justice.

While Justice Stevens is the only member of the court to have addressed the issue in a speech, others have used their written opinions to acknowledge the conflict between a judge's policy preferences and decisions the judge may feel forced to render because of legal precedent or judicial philosophy.

In March, for example, Justice Sandra Day O'Connor, whom Judge Roberts would succeed, dissented from the court's opinion that declared unconstitutional the execution of those who commit capital murder before the age of 18.

"Were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18," Justice O'Connor wrote in her dissenting opinion in Roper v. Simmons in the course of explaining why, in her view, the Constitution did not support that outcome.

Justice Anthony M. Kennedy, in providing a fifth vote for the court's 1989 decision that burning an American flag as a political protest is protected by the First Amendment, noted that the decision "exacts its personal toll." In his concurring opinion in the case, Texas v. Johnson, Justice Kennedy wrote: "The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision."

For a justice on the speaking circuit, Justice Stevens gives unusually good value. Rather than retreating to the safety of historical anecdotes or constitutional platitudes, as some others do, he often talks about what is actually on his mind. This month, he went to the American Bar Association's annual meeting in his home city, Chicago, and offered some pointed criticism of the death penalty.

Sometimes, of course, justices and other judges express themselves at their peril, as Justice Antonin Scalia learned after criticizing an appeals court decision that barred the recitation of the Pledge of Allegiance in public school classrooms. He was obliged to recuse himself a few months later when the case reached the Supreme Court.

On the other hand, Justice Scalia's more abstract discussion of his jurisprudence, in a book titled "A Matter of Interpretation," has proved a steady seller since its publication in 1997.

Next month, his colleague and occasional debating partner, Justice Stephen G. Breyer, will offer his own very different views of constitutional interpretation in a new book titled "Active Liberty: Interpreting Our Democratic Constitution."

Justice Breyer's book is based on the Tanner Lectures on Human Values, which he delivered last year at Harvard. Justice Scalia's book was based on his lectures in the same series, which he delivered at Princeton in 1995.

New York Times: www.nytimes.com

NRHA seeks appeal in eminent domain case: The (Hampton Roads VA) Virginian-Pilot, 8/24/05

By Battinto Batts

The [Norfolk] housing authority has asked the Virginia Supreme Court to overturn a decision regarding a used auto parts lot the agency wants to acquire through eminent domain.

To help argue its appeal, the Norfolk Redevelopment and Housing Authority has retained a high-powered Richmond attorney – William G. Broaddus, a former state attorney general and partner in the firm McGuireWoods LLP.

The housing authority has been trying to acquire Downtown Used Auto Parts, at 316 E. 22nd St., as part of a conservation plan for the city’s midtown area. The housing authority declared the 1.3-acre lot blighted in 1988. But Norfolk Circuit Judge John C. Morrison Jr. ruled in April that the agency overstepped its power in seeking to acquire the lot and didn’t give the owner, Charles Andrews, an opportunity to fix the property’s deficiencies.

In the ruling, Morrison said he was troubled most by the authority’s 15-year delay between declaring the property blighted and seeking to acquire it. Andrews has refused the NRHA’s $560,000 offer.

The property is near the Mid-Atlantic Coca-Cola Bottling Co. plant. Although no plans have been released, it is thought that Andrews’ land is sought to provide space for more parking at the plant.

Attorneys representing the authority filed the petition with the state supreme court last week. The agency must now wait to hear whether the court will hear the case.

When that decision might come is anyone’s guess, said Donald Schultz, one of the housing authority’s attorneys. “It is hard to tell. It’s on the court’s schedule.”

Neither Schultz nor officials with the housing authority would comment on the addition of Broaddus to the legal team. Broaddus is recovering from surgery and could not be reached for comment Tuesday.

Joseph Waldo, the attorney representing Andrews, called the authority’s hiring of Broaddus an act of desperation. “Obviously they have hired one of Richmond’s biggest guns,” Waldo said. “I respect Bill Broaddus. They wouldn’t have hired him if they didn’t believe they were in deep trouble.”

Agency officials and their legal counsel have refused to speculate how the decision in this case might affect other NRHA conservation districts. Waldo said Morrison’s ruling cannot serve as a precedent because the facts of each subsequent case should be considered on their own merit.

“We don’t think it is important as far as precedent, except that it does show they can be beat,” Waldo said. “Each case is fact-specific. That’s why we think the city’s position is so out of line.”

The acquisition of land is important to redevelopment efforts, said Tim Polk, the city’s planning director. This might explain why the housing authority continues to pursue this case.

“We are 98 percent built out,” Polk said. “We don’t have any vacant land. To be able to put parcels like that together for development is necessary. Not to have that ability will limit what we can do. We have a lot of stuff whose use is outdated, that would never be able to generate the kind of tax dollars needed to support the area. I would think it would be advantageous for us to be able to have that property.”

The Virginian-Pilot: http://home.hamptonroads.com

City considering eminent domain to obtain home: Hamilton (OH) Journal News, 8/24/05

By Lisa A. Bernard

The fate of a home the city has worked more than 20 years to obtain could be left up to the courts.

The property at 1408 University Boulevard is the final piece of land left to be acquired as part of Hamilton’s efforts to transform what had been 77 acres of blighted housing — and an illegal dumping site — into a complex for commercial and office space known as University Commerce Park.

Since 1982 the city has worked to strike a deal with the property owners — Lois Roberts, Carlos and Dennis Sizemore and Christian Herd — to buy the one-story home which sits on an acre across from Miami University Hamilton and the Vora Technology Park.

In March the city made its final attempt to negotiate with the property owners, offering them $66,000. The price was based on an appraisal conducted by American Research Appraisals, said Chris Xeil Lyons of Hamilton’s economic development department.

“The last time we were in contact with the property owners it was rental property for the family,” said Lyons. “They have never provided an opinion of value or an appraisal to the city, or a counter offer for that matter. They’ve just been unwilling to negotiate.”

Neither the property owners nor their attorney, Robert E. Manley of Cincinnati, could be reached for comment Tuesday.

The Hamilton City Council is set to vote on an ordinance this evening that, if passed, would jump start the use of the city’s eminent domain powers through filing a suit in Butler County Common Pleas Court to acquire the property.

Eminent domain is typically used for government projects such as the construction of roads or other public infrastructure.

However, in a decision recently handed down by the Supreme Court, justices ruled that cities may also use such powers for purposes of economic development.

Whether roads or a commercial development is planned at 1408 University Boulevard has not been determined, officials said.

For more than 25 years, the city has used federal grant dollars to buy up hundreds of lots that had been part of the early-1900s housing development known as Peck’s Addition.

“University Commerce Park is a critical element to the development of that whole area,” said Lyons. “The intent (of redevelopment) has always been to create more jobs and foster economic growth for the city of Hamilton.”

The city recently engaged in an engineering study that reviewed options for extending Grand Boulevard near Pleasant Avenue into the commerce park to create a more convenient east-west connection across the city.

“This property is kind of holding up progress,” Lyons said.

Journal News: www.journal-news.com

Eminent domain amendment fails with Board of Supervisors: Grass Valley (CA) Union, 8/24/05

By Becky Trout

Nevada County's top elected officials found themselves divided Tuesday on a proposed state constitutional amendment that would limit how governments can force the sale of private land.

Sue Horne had petitioned her fellow members of the Nevada County Board of Supervisors to support the amendment, which is being discussed in the state's legislature.

Specifically, the amendment would require public agencies to retain property they acquire using the process of eminent domain, preventing situations similar to a conflict in New London, Conn., where the city obtained property to transfer to a developer.

In late June, the Supreme Court reviewed the New London case and approved that practice, a move that spawned nationwide backlash.

Several of the Nevada County supervisors said they disagree with the Kelo v. New London decision but retain reservations about the proposed California amendment.

The board heard presentations from amendment-backing Assemblyman Doug LaMalfa, R-Richvale, and Timothy Sandefur, an attorney with the Pacific Legal Foundation.

But the supervisors opted not to support the amendment. Instead, supervisors Ted Owens and Robin Sutherland voted to support Supervisor Nate Beason's proposal to reserve the county's use of eminent domain only for acquisitions that clearly benefit the public.

That language won't stand legally, Sandefur said, because of the broad interpretation of the word "public." His clarification led Supervisor John Spencer to abstain from the vote.

Horne also abstained, expressing her disappointment the board failed to support the state constitution amendment.

The Placer County Board of Supervisors approved the constitutional amendment with a unanimous vote, Horne pointed out.

The Union of Grass Valley: www.theunion.com

Landowners aim to defend domain: Pauls Valley (OK) Daily Democrat, 8/25/05

By Luke Engan

When an electric authority aimed to string a power transmission line to the Windstar Casino in Love County, it didn't count on Joe Heim.

"They're not used to people like ourselves who got up on our hind legs and fought back," said Heim of six owners who retained an attorney in protest to the plan.

So far, no construction has begun.

Speaking before legislators considering changes to Oklahoma's eminent domain law, Heim said the Chickasaw Nation is paying for the supplemental power line.

It could be built along existing rights-of-way, but the nation chose instead to run it across Heim's property on an Interstate 35 exit, Heim said.

Surveyors who intended to keep the line at the edge of his land mistakenly mapped it across the middle and refused to change their plans, according to Heim.

He said the corporation offered $70 per yard to run the line across his land - then pursued a court settlement to take the easement in the name of the public good.

Tuesday was the second of three meetings for the unofficial task force, led by Sen. Clark Jolley, R-Edmond. The group aims to propose legislation in response to the landmark U.S. Supreme Court decision Kelo v. City of New London, Conn.

The court held that condemning private property for use by private developers is allowed under federal law, prompting property owners around the country to rally for protective state laws.

Alabama won the race to enact a law in response to the June 23 ruling.

Margaret McMorrow-Love, special counsel to the Oklahoma Municipal League, has studied Alabama's statute, which allows eminent domain on blighted property but not eminent domain for retail, industrial or commercial uses.

But she said language in the Alabama ordinance might open the door to condemn blighted property and then turn it over for the same types of private development.

McMorrow-Love said the policy issue is complicated and the Alabama law might need to be interpreted.

Jolley responded that Oklahoma should aim for more clarity.

"So they just opened it up for litigation in Alabama? We're going to try to make sure we don't have that," Jolley said.

McMorrow-Love cautioned against restricting entire categories of development, saying it could pose unwanted consequences like hampering rural economies.

Wider roads and sewer lines, public parks and local shops might not happen without eminent domain, and the projects could lead to more jobs, McMorrow-Love said.

She asked lawmakers to protect eminent domain rights particularly for rural communities in Oklahoma, "so that they don't die and blow away as in the Dust Bowl."

Pauls Valley Daily Democrat: www.paulsvalleydailydemocrat.com

Taxpayers, Homeowners Need Protection from 'Eminent Domain' Abuse Now: National Taxpayers Union, 8/24/05

Eminent Domain Abuse: If They Can't Tax it, They'll Just Take It

Thanks to an unwise U.S. Supreme Court ruling earlier this summer, citizens can't afford to wait for protections from government's power to take private property for economic development: that's the message an expert from the 350,000-member National Taxpayers Union (NTU) gave Arkansas lawmakers today at a joint House-Senate hearing in Little Rock on remedies for "eminent domain" abuse. NTU has approximately 4,000 members in Arkansas.

"Taxpayers have a significant interest not only in maintaining individual property rights, but in protecting themselves against the often misguided and expensive plans of government officials and politically-connected developers," said NTU Director of Government Affairs Paul Gessing in testimony before the House and Senate Committees on State Agencies and Governmental Affairs. "Despite the (U.S. Constitution's) prohibition against taking private property for public use without just compensation, the Supreme Court's 5-4 decision in Kelo throws the door open for eminent domain as long as government officials have a 'plan' and believe there will be some economic benefit from the taking."

In June, the nation's highest court held that the City of New London, Connecticut was justified in seizing the property of Susette Kelo and her fellow homeowners on behalf of a private party that claimed it could generate higher economic activity and tax revenues if the land were put to a different use. Although this power of "eminent domain" has been subject to past controversy, the latest ruling has drawn fire from citizen groups across the political spectrum.

Gessing cited numerous instances from a recent study he prepared on eminent domain abuses from across the country that have cleared the way for taxpayer-subsidized retail outlets, factories, and "mixed-use" complexes. As he told lawmakers, however, "these schemes have often left the local economies they were supposed to benefit worse off than they were before," by chasing away existing businesses and failing to deliver on inflated promises of "jobs" and financial windfalls.

Although Gessing noted that Arkansas' existing laws have made the practice of using eminent domain for private benefit less common than in states like New York and Ohio, lawmakers must take additional steps in light of the Kelo ruling, which has greatly diminished the rights of home- and business-owners to enforce their property rights in court. In addition, Arkansas statutes still provide latitude for abuse in certain areas, such as permitting expansive definitions of "blight" that could embolden local officials to overuse eminent domain powers.

In recommending that the Legislature more specifically define the "conditions under which eminent domain can and cannot be used," Gessing concluded by urging lawmakers to "act as quickly as possible to address this issue... (I)n the course of a busy legislative calendar, it is easy for issues not directly related to the budget process or education to be left unaddressed."

National Taxpayers Union: www.ntu.org

NTU is a non-partisan citizen group working for lower taxes, smaller government, and economic freedom at all levels.

Eminent domain stayed for ex-car dealers: San Diego (CA) Union Tribune, 8/24/05

By Tanya Sierra

One of the original families to own a dealership on the Mile of Cars [in National City] got a three-week reprieve last night from the risk of losing its land to the powers of eminent domain.

The Daily family, which had the first Datsun dealership in National City's famed auto park, now leases its 4½-acre block to Mossy Nissan, which for the past four years has wanted to buy the land.

At last night's Community Development Commission meeting, the City Council, which acts as the board of the redevelopment agency, heard conflicting stories that left it wanting more time to review how the process so far has been implemented. Extra time also would allow for a councilman who was absent, Frank Parra, to return from vacation and vote.

The Daily family contends that Mossy Nissan agreed to buy the property, on National City Boulevard between 26th and 28th streets, for $8 million in February. But the Dailys say they were "undercut" by the city's redevelopment agency when it began issuing letters on behalf of Mossy in March, saying the Nissan dealership had expansion and improvement plans for the property, which falls in the city's redevelopment zone.

Such letters are the initial step required before a hearing is called, such as last night's, where commissioners vote on whether to take a property by eminent domain.

Daily family members, under an impression that Mossy wanted to buy the property, did not respond to the city correspondence until they realized they could be forced to sell their property for less than they say it is valued.

"This eminent domain just knocked us off our feet," said Larry Daily, spokesman for the family. "There's no reason to undercut us and just take it."

The Mossys see it differently.

Peter Mossy, president of Mossy Nissan, said there was never a formal agreement to buy the property.

"We do not have a deal, and we have not had a deal," he said.

Ed Whittler, attorney for the Mossys, acknowledged that one of the Mossy brothers signed a letter of intent in February but said "it was not a binding agreement."

An attorney for the CDC offered to buy the property for $1 million less than the letter of intent the Dailys had with the Mossy group, a Daily real estate representative said.

Mossy provides about $1 million a year in sales and property taxes to the city.

The Mile of Cars, which is the sales-tax anchor for National City, produces more than $5 million in annual sales taxes, City Manager Chris Zapata said.

If Mossy acquires the Daily property, 25 jobs would be created and $200,000 to $300,000 more in annual city sales taxes would be collected within five years, according to city estimates.

The next meeting is scheduled for Sept. 13.

San Diego Union Tribune: www.signonsandiego.com

City urged to keep eminent domain: Milwaukee (WI) Journal Sentinel, 8/23/05

Agency says proposed ban on property seizures would eliminate valuable tool

By Lisa Sink

The city [of Brookfield] redevelopment authority on Tuesday urged the city to reject a proposal to rein in the city's authority to seize private property for economic development.

Ald. Cindy Kilkenny has drafted a measure asking the Brookfield Common Council to prohibit the use of eminent domain to acquire properties to resell for private economic development, a practice used in nearby Waukesha to revitalize the downtown.

Kilkenny has joined state and federal lawmakers in seeking to restrict local government's use of eminent domain, also known as condemnation of property, in light of a U.S. Supreme Court decision upholding the practice.

But members of the city's Community Development Authority said that the city should not rush to pass the ban, and should wait to see whether the Legislature changes Wisconsin's eminent domain laws.

CDA members Gordon Rozmus and Mike Arneson opposed stripping the city of the redevelopment power.

"I think it's a very valuable tool," Rozmus said, adding that the city may need to use it in the future. "This is a tool that cities need and we have to keep."

Member Nate Cunniff called Kilkenny's proposal an "overreaction" to the June court decision.

"We need to keep our collective calm here and not react to one case - or overreact to it," Cunniff said.

Arneson called restricting condemnation powers a "knee-jerk reaction (that) truly doesn't serve a public purpose."

Mayor Jeff Speaker said that the city has not abused its power to condemn properties. It has only done so to acquire land for roadwork, parks, bicycle paths and storm water detention facilities, he said.

Dan Ertl, the city's community development director, wrote in an Aug. 10 memo: "No private property has been condemned by the City of Brookfield for economic development purposes."

But some city officials on the CDA, Plan Commission and Common Council have raised the possibility that eminent domain could be used, or other public assistance tools such as a tax incremental financing district, to spur redevelopment along Capitol Drive near the city's 124th St. border with Wauwatosa.

Kilkenny, who attended and videotaped Tuesday's CDA meeting for possible use in her mayoral election campaign, has said she fears other redevelopment areas also could be targeted for eminent domain. She said that forcibly taking property to sell to a developer is an affront to private property rights, even if the landowner is reasonably compensated, as eminent domain law requires.

City Attorney Vince Moschella said that he believed the news media has inaccurately reported the U.S. Supreme Court decision, and that there are many misconceptions about it. He said that it merely reaffirmed longstanding land-use law.

In a memo to the CDA, Ertl warned that banning the city's use of eminent domain for economic redevelopment "could curtail innovative and creative solutions" to "achieve efficiencies or improvements in providing better city services."

As the city ages, he said that property "could be or may become blighted" and eminent domain use may be needed.

"This may not be a need in 2005, but could be in 2010 or later," he said.

Speaker said that he has heard from property owners in the Capitol Drive area that three or four parties may be trying to buy properties there.

The city has encouraged developers to create a home design center there with home-decorating stores and galleries, or medium-size box stores.

The CDA on Tuesday approved a formal request for development proposals.

Speaker said, "I don't think anybody's going to rush to condemn property right now."

But although he has previously said that he doesn't oppose Kilkenny's proposal, Speaker said Brookfield should "take a deep breath, seeing what the state Legislature comes up with."

Milwaukee Journal Sentinel: www.jsonline.com

Eminent Domain: The Tipping Point: New Jersey Eminent Domain Law Blog, 8/28/05

By William Ward, Carlin & Ward

“Twenty years from now, people will look back at Kelo the way people look back at Roe v. Wade.” -- Grover Norquist, Americans for Tax Reform

The Economist declared that the “Supreme Court ruling that allows the government to seize private property has set off a fierce backlash that may yet be as potent as the anti-abortion movement.” A current list of proposed legislation by the states can be viewed on the Castle Coalition website. Even local ordinances are being drafted by municipalities, such as Middlesex, New Jersey, where Council President Jerry D'Angelo said, "I think it's comforting for individuals to know they're not going to be forced out."

D'Angelo also said a simple label change on the project from redevelopment to either revitalization or rehabilitation may be necessary. By identifying it as anything other than redevelopment, it would ensure that the council could never press for eminent domain. While the resolution is good for only one year — it would have to be reapproved at the January 2006 reorganization meeting — Mayor Ron Dobies said he would "absolutely" continue to support it and encourage its adoption each year. Councilman Michael Hompesch said the change would not affect the project's goal of creating a "nicer-looking area" along Mountain Avenue and Lincoln Boulevard.

Expressions of sympathy by township councils, while helpful in the short term as to as township’s disavowal of the use of eminent domain, are essentially meaningless. In New Jersey, the power of eminent domain is derived from the state Constitution, Article I, Paragraph 20; Article VIII, Section III, Paragraph 1, and the legislature (See the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 and the Local Redevelopment Housing Law of 1992, N.J.S.A. 40A:12A-1.) The power doesn’t go away: It remains. The political will to use eminent domain does change; however, this is as ephemeral as the next election cycle.

Meaningful change will come about only if the New Jersey Senate and Assembly adopt real changes to the above referenced statutes. This requires political will and not just grandstanding.

“The price of democracy is vigilance,” said Senator Robert Smith (D-Middlesex). The city never sleeps; the enemies of your constitutional right to property will be hard at work ensuring that their projects can go forward.

The National League of Cities is troubled by nine bills proposed by members of the U.S.Congress that would limit eminent domain for enonomic benefit: “On June 30, without one hearing and no record of verified abuses, the House of Representatives adopted an amendment to its housing appropriations bill (H.R. 3058) that would prohibit the use of federal funds to 'enforce the judgment' in the Kelo case. The Senate Appropriations Committee averted an anti-Kelo amendment to its housing appropriations bill, but the threat of an amendment is likely to resurface when the bill is considered by the full Senate after the August recess.”

We are entering the hurricane season. Between now and November elections, many states and the federal government will be hashing through proposed changes to the eminent domain laws.

The National League of Cities (NLC) has developed specific talking points that city officials can use with legislators to combat the groundswell of public sentiment against eminent domain. The NLC Grassroots Action Center advises city officials to “localize and personalize their message with examples of projects that would not exist but for the use of eminent domain or the ability to use eminent domain.”

Their talking points:
  • We urge Congress to slow down, take a step back, and consider the facts. The bills that have been introduced would create unintended consequences and severely hamstring our ability to promote the economic health of our cities and towns.
  • For example, without the power of eminent domain for economic development, our community would not have [insert specific examples of economic development projects in your community that would not exist but for the exercise of eminent domain or the opportunity to exercise eminent domain.]
  • The use of eminent domain in our community is already governed by [state statute / local ordinances] that contain appropriate checks and balances. We use eminent domain carefully, prudently and in the sunshine of public scrutiny. And consistent with the Just Compensation requirement in the Constitution, we ensure that property owners are fully and fairly compensated. [Insert specific local safeguards or processes you follow in exercising eminent domain.]
  • Eminent domain is a state-derived power. Decisions about the proper use of eminent domain – including whether additional checks and balances are needed to protect individual rights – are best left to the states and their political subdivisions. Congress should not and need not respond with one-size-fits-all, blunt, and overly broad federal legislation.

Opponents of eminent domain abuse should be equally organized in their calls to action.

New Jersey Eminent Domain Law Blog: www.njeminentdomain.com