Stricter eminent domain bill gains rural support: Columbia (MO) Missourian, 10/14/05

The bill would stop private property from being taken for private gain

By Kathryn Buschman

Rural Missouri democrats announced a bill Thursday that would prohibit the state from taking private land for private development. The group said the governor’s task force on eminent domain was failing to fully consider the needs of rural Missourians.

The Private Property Protection Act would prohibit private property being taken for private gain. The bill would not stop the traditional use of eminent domain to take land for public use such as schools and roads.

“Eminent domain is a tremendous power, and using it for something like property for a private developer is wrong,” said Rep. Rachel Bringer, D-Palmyra. “I think it is very clear that the state has the power to stop something like that and that is what (we) want to do.”

Gov. Matt Blunt created the Missouri Task Force on Eminent Domain in June to study the use of eminent domain in the state and to recommend specific legislation to be considered in the upcoming legislative session. The task force will meet again Oct. 27.

Rep. Wayne Henke, D-Troy, said the task force’s preliminary proposals are inadequate.

Task force member Rep. Steve Hobbs, R-Mexico, said it was obvious that many people did not read the entire report the task force submitted to the governor Oct. 1.

“These are topics that have been brought to us that we are going to consider, they are not recommendations, they are topics we will be considering,” Hobbs said.

Henke said the task force also did not hear from enough people in rural areas facing eminent domain issues.

At Thursday’s meeting, the task force heard testimony from several farmers. Some farmers complained about the condemnation process, where the state can condemn private property for public use.

Byron Baker, whose farm has been in his family since 1856, said companies can’t negotiate in good faith when they know they have the power of condemnation.

“That is giving special interest privileges to private owners of a company over the rights of a private land owner,” Baker said, “This is something I don’t think our founding fathers would have approved of.”

Farmer Loren Jensen from Macon had a power company run a transmission line through part of his property. Jensen said farmers are at a disadvantage because a lot of them don’t have the money to hire attorneys.

“If a piece of ground here is worth five thousand dollars an acre, don’t go down the road and tell the next guy his is only worth one thousand, there has to be some happy meeting place in the middle somewhere,” Jensen said.

Columbia Missourian: http://columbiamissourian.com

Eminent domain ordinance fails: Stratford (CT) Star, 10/13/05

By Deanna Holgerson

Fearing it might stop development in Stratford, the Town Council said no to the eminent domain ordinance Tuesday.

The ordinance, which would have banned the town from condemning private property by eminent domain for economic development purposes, died in a 5-4 vote. Although it received five votes, it needed six for approval.

It might have passed if two councilmen who were expected to vote for it, Ray Voccola, D-5, and Phil Pepin, R-7, had not been absent.

Town Council Chairman Joe Crudo, R-at-Large, who cast the last no vote to defeat it, called the ordinance shortsighted.

It doesnt allow development for the benefit of all citizens, said Crudo, whose final vote killed the ordinance.

Councilman Alvin ONeil, D-2, agreed stating that the ordinance limits the town from developing property or redeveloping areas that need it.

We have to have businesses in town, said ONeil, who voted against the ordinance. The only way to reduce the tax burden on residents is for businesses to pay their share.

I would hate to see this ordinance cripple the town, he said.

There are many areas in Stratford that are crying out for economic development, said Councilman Norm Aldrich, R-8.

Im not in favor of taking someone's property for less than fair market value, Aldrich said. I believe that this ordinance will put unnecessary constraint on the town. Thats why Im voting against this ordinance.

Councilwoman Jennifer Hillgen-Santa, R-1, proposed the eminent domain ordinance, which bans the use of condemnation of any kind of property for economic development.

I dont believe the town should take real property without paying for market value, Hillgen-Santa said. If the taxes are being paid on the property, then the town should be willing to pay for it.

Hillgen-Santa, who voted in favor of the ordinance, wrote the eminent domain law, which is similar to what some other communities in Connecticut have already approved. These ordinances stemmed from a recent U.S. Supreme Court decision to uphold an eminent domain law in New London that claimed private property for a waterfront project.

As part of its decision, the court ruled that more stringent state and local law could supersede federal law, prompting the recent rush to adopt such legislation.

Crudo and Aldrich supported Hillgen-Santas original ordinance proposal but opposed the version that was passed by the Ordinance Committee.

Hillgen-Santas original ordinance language would have limited the condemnation ban to owner-occupied residential property with four or fewer units. The revised language, which is similar to a proposal made by Republican mayoral candidate Dominic Costello, bans condemnation of any property for economic development.

Councilmen Jim Feehan, R-9, and Mike Henrick, R-10, both said the ordinance should state that developers should buy residential properties at market value, not fair market value. Feehan and Henrick voted in favor of the ordinance.

I dont believe that property should be taken at fair market value and given to a developer who often has more money then they know what to do with, Feehan said.

Councilmen Gavin Forrester III, D-3, and Angelo Stavola, D-4, voted for the eminent domain ordinance, and Councilman Tom Grega, R-6, voted against it.

Stratford Star: www.zwire.com

Williams co-sponsors bill that would change eminent domain: Main Line Life OnLine (Ft Washington PA), 10/13/05

By Cheryl Allison

State Sen. Connie Williams, whose district includes Ardmore, has joined the ranks of Pennsylvania lawmakers weighing in on the use of eminent domain powers for redevelopment.

Williams (D-17), is a co-sponsor of SB 881, recently introduced by Sen. Jeffrey Piccola (R-15), which would enact new, more specific limitations on the use of governments' powers to take private property. It also seeks to restrict the use of eminent domain in redevelopment areas, and revise the definition of blight used to designate such areas. The current definition in state law has been criticized as too vague and subjective.

In an interview this week, however, Williams said the legislation, if passed, would likely have no impact on the situation in Ardmore, where Lower Merion Township's potential use of eminent domain for redevelopment of the downtown has been a divisive issue.

The legislation would not be retroactive, she said, so it would not affect the findings of blight which led to the designation of the Ardmore Redevelopment Area. And, under an exception included in the proposed law, the transfer of private properties to a developer might be permissible.

The Senate bill is one of several proposals to provide stronger state protections against eminent domain abuse introduced in the wake of the controversial U.S. Supreme Court decision in the Kelo v. City of New London case this summer. The decision, by a narrow 5-4 margin, upheld a Connecticut Supreme Court ruling that the city could take a number of homes for a private development project because it served a "public purpose" of economic development.

In issuing its decision, however, the court affirmed that Congress and state legislatures could provide property owners greater protections if they so choose.

Some bills, including two Pennsylvania House bills introduced by Rep. Thomas Yewcic (D-72) and co-sponsored by more than a hundred other House members, would have flatly prohibited municipalities from taking property to turn it over to a "nonpublic interest" or solely to "add to or increase the tax base."

In public hearings this summer, there was testimony that eminent domain powers should be available to governments in some cases. There was agreement, however, that the current definition of blight, under which areas are declared in need of redevelopment, should be significantly tightened.

In the interview, Williams said the Kelo case brought the eminent domain issue to the fore for many legislators. "It made us all get back and look at what eminent domain means." She also said she agreed that a better definition of blight is needed.

Williams said, however, that she thinks some of the House bills "overstep their bounds." She decided to support Piccola's bill because, "I felt it was concise and workable."

Williams pointed out that her district includes areas such as Norristown and parts of Delaware County in addition to Ardmore and Lower Merion. The bill, while prohibiting the use of eminent domain for private business, includes some exceptions and a much more specific definition of blight that could help communities like Norristown deal with persistent problems.

For example, the bill's provisions for eminent domain in redevelopment areas would permit governments to take individual properties that are abandoned or in such poor physical condition that they are deemed a public nuisance. Multiple properties could be taken, and an area declared blighted, if a majority of properties meet the definitions.

In Ardmore's case, the finding of blight in the downtown might not have been possible under those definitions.

In addition, one exception to the restriction on taking properties for private business might apply to Lower Merion's plan to potentially take and demolish several existing business properties on Lancaster Avenue, she said.

The exception says that properties could be transferred to a "private entity that occupies an incidental area within a public project, such as a retail establishment on the ground floor of a public building." Lower Merion's redevelopment plan envisions building a parking garage for the new Ardmore Transit Center, with new retail storefronts and upstairs apartments facing Lancaster Avenue.

In Norristown, officials are trying to get retail on the ground floor of garages that might otherwise "ruin a streetscape." The proposed legislation "certainly helps Norristown," Williams said.

Main Line Life OnLine: www.zwire.com


Realtors push for new eminent domain laws: Henry (County GA) Herald, 10/13/05

By Justin Boron

A group of Georgia Realtors on Wednesday launched a media push that advocates changing the state's eminent domain laws to protect residential and commercial property from being seized by governments for private development.

Hoping to pressure legislators to close ”the loophole“ in the laws, the Georgia Association of Realtors has committed $100,000 to radio ads, started a Web site, and will rally its 36,000 members for the cause, said Jan Baker, the president for the group.

Focus on eminent domain laws sharpened nationwide after the U.S. Supreme Court bolstered local and state governments' ability to condemn property for economic development. The Court permitted New London, Conn., officials to take a group of older homes along the city's waterfront for a private developer who plans to build offices, a hotel and convention center. The court said states can pass more restrictive laws.

Since the ruling, Stockbridge in Henry County and Clayton County has become the center for state debate on the issue. Unable to negotiate with property owners, the city has condemned commercial property for a mixed use project that includes government facilities, retail stores, and residential buildings. Mark and Regina Meeks, who owns the flower shop condemned by the city, are challenging the process in court.

State lawmakers plan to meet with the public on the issue this Friday.

Steve Davis, R-McDonough, who also is a Realtor, said the city is expediting its condemnation to ”usurp“ the Legislature before it can take up the issue during the General Assembly.

”These municipalities do not need to be working as land brokers,“ he said. ”Hopefully, we can get it stopped in time to save the people in Stockbridge.“

Baker said the Realtor group is favoring a Constitutional amendment that if approved by the Legislature, would appear on the 2006 General Election ballot.

Amy Henderson, a spokeswoman for the Georgia Municipal Association, said its concern is that legislative changes could ”take away the cities' power to do good things with eminent domain.“

She also reminded those powers, which cities often uses to improve ”blighted or ”economically depressed“ neighborhoods, existed before the Supreme Court ruling.

Tim Kibler, the coordinator of government affairs for the Realtors group, said the definition of words like ”blight“ that cities use to justify eminent domain need to be tied closer to real public health conditions such as unsafe structures or areas that fail to meet existing civic health codes.

”Blight right now is what the city council says it is,“ he said.

Henry Herald: www.henryherald.com

Condemnation of eminent domain imperils valuable county tool: Charlotte (FL) Sun-Herald, 10/13/05

By John Haughey

Blunting proposed laws that could diminish eminent-domain powers is among Charlotte County's top priorities during the upcoming state legislative session.

Commissioners were briefed Tuesday by lobbyists Cari Roth and Dave Bitner about a range of topics that will be debated in Tallahassee in 2006 which could affect the county.

Growth management, taxation, finances and tourism top the list, with possible changes in eminent-domain laws and Save Our Home exemptions the burning issues.

The county's goal: not getting burnt in the backlash against the U.S. Supreme Court's June decision that upheld the use of eminent domain for economic development.

In the high court's 5-4 ruling in Kelo v. City of New London, Conn., justices said governments can seize private property and give it to a developer to use it to generate more tax revenue.

The U.S. Fifth Amendment's eminent-domain clause allows governments to take private property for public use.

Traditionally, it has been used to build roadways, schools and other public amenities.

Since the Kelo decision, Alabama, Delaware and Texas have enacted legislation to restrict eminent domain.

There are similar proposals in as many as 30 states — including Florida.

Florida House Speaker Allan Bense, R-Panama City, formed a committee to study eminent-domain legislation.

Gov. Jeb Bush has said eminent domain should be used sparingly, and several Florida municipalities have drafted restrictions, including Polk County, Oldsmar, near Tampa, and Palm Bay in Brevard County. Flagler and Volusia counties will consider similar laws.

With momentum building against eminent domain, Charlotte County and other municipalities fear they could lose a valuable tool.

Allowing "emotions to drive the train" instead of viewing the issue from a rational perspective is a mistake, Commissioner Adam Cummings said.

Like most politicians, he said, using eminent domain is distasteful.

"It's not a good way to get yourself re-elected. It's contrary to our interest," Cummings said. "I get to be the one who says, 'We're taking your house away.'"

The perception that eminent domain is acceptable for roads and schools, but not as a growth-management tool, is short-sighted, Cummings said.

When used preemptively, it is most effective. "If you don't like eminent domain, you should be supporting its use for good growth management," he said.

The Murdock Village project is an example of why eminent domain is needed, not exploitive, he said.

If the county allowed the 3,000 mostly vacant parcels in the 1,100-acre area to develop haphazardly, Cummings said, it would have created infrastructure problems — and forced the eventual condemnation of "thousands and thousands of lots for road projects."

For every Murdock Village lot condemned, the county won't have to use eminent domain in four lots elsewhere, he said.

"There are a number of experts from out of town who are making all sorts of misrepresentations of what we've done in Murdock Village," Commissioner Matt DeBoer said, noting "experts" come from as far away as California.

DeBoer was likely referring to the Pacific Legal Foundation, which is representing some Murdock Village landowners in court.

However, he said, some changes within the state's eminent-domain statutes are warranted.

For instance, DeBoer said, landowners whose property is being taken could be permitted to participate in the process as partners.

Had laws permitted it, the county could have offered Murdock Village landowners a lot or a housing deal within the project, he said.

This would be more politically and socially acceptable, and less expensive in the long run, DeBoer said.

Weakening eminent domain would cripple the powers invested in community redevelopment agencies, county officials say.

Commission Chairwoman Sara Devos said this would be a blow in a county where many projects are in the planning stages or just getting under way.

"That has been a wonderful tool for us," she said. "I'd hate to see them take this away from us."

Roth, a lawyer-lobbyist with Tallahassee-based Bryant Miller & Olive PA, said the legislature will debate the issue "in a very deliberate manner."

There are a "wide range" of views on this, she said, ranging from "leave as is" to eliminating it, she said.

The "tougher question" for Charlotte County, Roth said, is finding the right argument to preserve its ability "to do a Murdock Village-type project."

There's no need to search hard for that argument, she said. The county "has a great story to tell here — a story that needs to be told to the Legislature," she said.

Sun-Herald: www.sun-herald.com

Eminent domain letters evoke anger, distress: Atlanticville (Long Branch NJ), 10/13/05

MTOTSA will stage rally Saturday in support of property rights

By Christine Varno

Anna DeFaria’s 21/2-year battle with the city of Long Branch came to a climax a week ago.

That was when she received a letter giving her two weeks to negotiate the sale of her longtime home or lose it through eminent domain proceedings.

“When I read the letter I was devastated,” said DeFaria, Marine Terrace.

“I am 80 years old and a widow. Where do you go if they take your home away?”

DeFaria has lived in her oceanfront home for 45 years and raised her four children in the house.

“It was my first home, and my family loved it here,” she said.

“I feel safe and secure here. I thought I would stay here until I died.”

Rose LaRosa, DeFaria’s neighbor in the three-street zone slated to be bulldozed and redeveloped as upscale housing, described the moment she received a similar “14-day letter” as “dreadful.”

“It is so unbelievable that something like this could happen here in America,” LaRosa said. “It is a nightmare.”

LaRosa inherited her home in 1983 from her parents, who bought the home at the corner of Ocean and Marine terraces in December 1943.

“My brother had come home on leave (during World War II), and we were looking at homes to buy,” LaRosa said. “My father showed him this house, and my brother told him when the war was over we should buy it.”

But three months later, LaRosa’s brother died in a plane crash, and she said her father immediately went to the Long Branch shore and bought the home in his memory.

“I love it here,” she said. “My history is this home. I take care of this house with love. The city does not want our home because we are blighted, they want it because we are in a desirable location.”

The letters both neighbors received from the city read: “We prefer to acquire the property by mutually acceptable agreement and do acquire most parcels in this manner. However, if we are unable to reach a negotiated agreement with an owner at what appears to be a fair price, the city is authorized by law to resort to statutory condemnation proceedings.”

DeFaria and LaRosa are among the 38 property owners in the three-street neighborhood known as MTOTSA (Marine and Ocean Terraces and Seaview Avenue), some of whom have received letters from the city giving them two weeks to negotiate the purchase of their homes by the city before eminent domain proceedings begin.

Among the city’s six redevelopment zones, the area is designated Beachfront North, Phase II. Plans call for redeveloper MM-Beachfront North II — consisting of co-developers Matzel & Mumford, a division of K. Hovnanian, Middletown, and the Applied Cos., Hoboken — to bulldoze the neighborhood and construct three buildings consisting of a total of 185 luxury condominium units in its place.

An alliance of MTOTSA residents has retained Peter H. Wegener, of Bathgate, Wegener and Wolf, Lakewood, who said last week that the group’s position is to reject the offers in the 14-day letters, based on the belief that the city is abusing its power of eminent domain.

For residents who choose not to negotiate with the city, such as the MTOTSA alliance, 14 days after the letter is received the city can file a complaint asking the state Supreme Court to determine if the process of eminent domain was properly exercised; the judge will then determine a fair value for the property, according to Wegener.

An order is then filed in the courts, asking for a final judgment for the taking of the properties, according to Wegener, who said that at that hearing, MTOTSA will raise the objection that proper eminent domain proceedings were not followed and will move to dismiss.

Members of MTOTSA will stage a rally at 2 p.m. Saturday to bring attention to what they say is a violation of their constitutional right to own property.

The rally will begin with a walk from Ocean Terrace to Morris Avenue and back, followed by a screening of the movie “The Castle.”

The group will be joined by representatives of the Institute for Justice, a Washington, D.C.-based law firm that specializes in the protection of private property rights when eminent domain is not used for public purpose.

The rain date for the rally is Oct. 22.

DeFaria said she sees the rally as a walk of hope.

“We hope that the rally will help eminent domain cease,” she said. “I have a lot of faith. It is your home and you have to do what you can to fight for it.”

She said redevelopment and eminent domain are a nationwide crisis that is not going away anytime soon.

“There has to be a guinea pig, and if we cannot save our own homes, then let us be the guinea pigs for everyone else,” she said. “Me today, you tomorrow. They are not stopping.”

Atlanticville: http://atlanticville.gmnews.com

Paramus law would restrict eminent domain: northjersey.com (Hackensack NJ), 10/13/05

By Merry Firschein

A proposed ordinance would limit the borough's powers in taking private property for economic development.

The ordinance restricting eminent domain was introduced unanimously Tuesday by the [Paramus] Borough Council.

It would prohibit the borough from taking private property except for public use: "including but not limited to a road, hospital, military base, sewer, water line, sidewalk, right-of-way, flood control, park, open space, erosion control mechanism and the like," the proposed law states.

The ordinance is tentatively scheduled for a public hearing and vote on Oct. 25.

It would protect residents for years to come, Mayor James Tedesco said Wednesday.

"I don't believe it handcuffs us or any future elected officials in the borough," Tedesco said "I believe it gives us and them and the residents, more importantly, a safety net."

The borough's ordinance stems from a U.S. Supreme Court decision in June. In that case, Kelo v. City of New London, the high-court justices decided in a split decision that municipalities could use the power of eminent domain to take private property for economic development.

Prior to the high court's decision, eminent domain could be used solely for public use. This had been interpreted as something to benefit the public, such as a hospital or park or road, not a shopping center or office buildings as New London, Conn, wants.

Paramus' proposed ordinance prohibits that kind of action.

"Taking private property for development is unacceptable and will not happen while we are running the government of Paramus," said council President Frank Ciambrone. Ciambrone, a Democrat, introduced the measure.

Council Republicans praised the proposed ordinance.

"I'm glad to see we can make this a bipartisan effort and protect our people in the community," said Republican Councilman Frank Scott. He seconded the motion introducing the measure.

This is the second time the council has taken on the issue.

In September, council Republicans wrote a resolution banning eminent domain. That resolution, which is not binding law, was unanimously pulled from consideration because council members wanted the borough attorney to check the document's language.

northjersey.com: www.northjersey.com

Fresno Expands Eminent Domain Authority: KFSN-TV (Fresno CA), 10/11/05

More Downtown Fresno property owners could be forced to sell to make way for a master development that hopes to bring housing and shopping to the city's center.

Fresno's city council approved expanding eminent domain authority for an area Forest City Enterprises wants to develop south of Grizzlies Stadium.

Plans include over 500 housing units and two anchor retailers, including perhaps a Bass Pro Shops.

Some familiar names, including Chip Pashayan, a former congressman, protested the eminent domain expansion.

Two councilmembers, Henry T. Perea and Mike Dages, opposed the expanded eminent domain authority.

Land sales could still be years away and might not happen at all if the Forest City project falls through.

KFSN-TV: http://abclocal.go.com/kfsn

Lodi to fight ruling on eminent domain: Newark (NJ) Star-Ledger, 10/12/05

By Ana M Alaya

Lodi officials plan to fight a judge's ruling rejecting the borough's proposal to replace two mobile home parks on Route 46 with upscale senior housing and shops.

The town lost the eminent domain battle last week when Superior Court Judge Richard Donohue ruled Lodi cannot condemn the trailer parks and that the redevelopment proposal is "vague."

Mayor Gary Paparozzi, who has said the redevelopment would generate sorely needed tax ratables and improve the Bergen County community's image, said yesterday that Lodi will either resubmit its plan or appeal Donohue's ruling.

"I'm not going to let that go without a fight," Paparozzi said. "It's just not right. Nowhere on Route 46 throughout the state is there a trailer park. We have to move forward. In Bergen County especially, mobile homes are an antiquated situation."

The owners of the Costa and Brown trailer parks, which house about 500 people combined, sued in 2004, claiming Lodi arbitrarily designated the 20-acre property for redevelopment.

The borough's redevelopment plan calls for Lodi 46 Renewal LLC to build a gated senior community with 250 housing units and 112,000 square feet of retail space. The project would bring in $3 million in annual tax revenue instead of the $250,000 the borough collects now, officials have said.

In his ruling, Donohue said he "appreciates" the borough's goal of generating tax revenue, but that such a goal requires the court to inspect the town's motives with "heightened scrutiny."

He also said that while the borough may have proposed a plan classified as a "public purpose" required by state eminent domain laws, its planners failed to prove the trailer park land is either obsolete, underutilized or meets other criteria necessary to be considered for redevelopment.

The judge said the town's planners failed to inspect the trailers, failed to identify health hazards and came up with "superficial" observations of the mobile homes and businesses on the property.

"In short, there was a complete lack of detailed specific proofs as to why the property should be designated as in need of redevelopment," Donohue said.

Kendell Kardt, a Costa Trailer Court resident and president of Save Our Homes, said residents were ecstatic over Donohue's ruling, but wary because they expect the town to fight. If redevelopment is allowed, residents could be forced to rent apartments since there is little trailer park space left in New Jersey, Kardt said.

Paparozzi said yesterday that the borough is a victim of the uproar over eminent domain generated by the U.S. Supreme Court's Kelo vs. City of New London, Conn., decision earlier this year. In that case, the court ruled, 5-4, that municipalities have broad power to condemn people's property in favor of private development to generate tax revenue.

In his ruling, Donohue said the Kelo decision also precludes any state from placing further restrictions on eminent domain powers. He said he based his decision on New Jersey's statutes, which are stricter than Connecticut's.

Further, Donohue said he did not intend to judge New Jersey's statute or Lodi's political motives.

"This court's role is not to determine whether the actions taken by Lodi are sound decisions or effective governance, but rather, if Lodi has acted in accordance with the law," Donohue wrote in his decision.

Star-Ledger: www.nj.com

Panel approves city plan to seize more than 15 properties in Heart of Boynton: (South FL) Sun-Sentinel, 10/12/05

By Edward Sifuentes

The [Boynton Beach] Community Redevelopment Agency Tuesday approved an agreement that it join the City Commission to take more than 15 properties in the Heart of Boynton neighborhood by eminent domain.

The agreement, which still must be approved by the city, would set in motion a process to condemn properties along Martin Luther King Jr. and Seacrest boulevards. The project is the first phase of a plan to redevelop the area.

"It's something that should have been done three years ago," said Jeanne Heavilin, agency chairwoman.

After months of negotiations, the agency convinced fewer than half of the more than 30 property owners in the neighborhood to either sell or go along with the plan. Roberts Restaurant, the EZ Market and Triumph the Church of Kingdom of God, at Martin Luther King Jr. and Seacrest boulevards, are among the properties recommended for acquisition by eminent domain.

Board member Don Fenton, who cast the only "no" vote, said it was wrong for cities to take people's property for economic reasons.

"I simply will not vote to put people out of their homes," he said.

Other board members pointed out that most of the properties slated for eminent domain are churches, businesses and vacant lots. All the single-family homes have already been purchased, they said.

The allegation that people will be driven out of their homes "is just utter nonsense," Vice Chairman Henderson Tillman said. "I'm appalled by that."

Property owners will get fair-market value for their land under eminent domain. Those who sold earlier to the CRA received more than fair market value for their properties, plus relocation money.

CRA members said negotiations with the property owners will continue, but the agreement sets the conditions to declare eminent domain. It also says that expenses associated with the process will be paid by the CRA.

"There will still be notices, negotiations and a waiting period," City Manager Kurt Bressner said. "The soonest anything would happen would be the end of the year."

Sun-Sentinel: www.sun-sentinel.com

Monroe Selectman Proposes Ordinance on Eminent Domain: (Woodbury CT) Voices, 10/12/05

By Audrey Grasso

[Monroe CT] First Selectman Andrew Nunn is proposing an ordinance on how the town would use eminent domain. Mr. Nunn has turned the proposal over to the town attorney and town council.

"There has been a lot of confusion around the state regarding the use of eminent domain as a result of the Supreme Court's Kelo vs. New London decision," the first selectman noted. "Currently, the General Assembly is discussing potential changes to the state's eminent domain statutes.

"In the past, the town of Monroe has used eminent domain for public purposes, such as acquiring the property for Rails to Trails," he said. "However, I feel it is important to clearly define how we, as a town, would use eminent domain."

The first section of the proposed ordinance, the Monroe Homeowners and Property Protection Ordinance, defines economic development as "any activity to increase tax revenue, tax base, employment or general economic health, when the activity does not result in the transfer of land to public ownership, such as for a road, hospital or military, OR, the transfer of land to a private entity that is a common carrier such as a railroad or utility OR the transfer of property to a private entity, when eminent domain will remove the harmful use of the land. That includes removal of a public nuisance, removal of structures that are beyond repair or that are unfit for human habitation or use OR acquisition of abandoned property."

The proposal suggests that no town official, elected or appointed agencies or officials can authorize to propose, approve or appropriate funds for the use of the power of eminent domain to take private property unless the property to be taken meets one of the following criteria:
  • The property is to be owned by Monroe and is to be set aside for one or more public facilities such as streets, bridges, sidewalks, parks, playgrounds, schools or public sewer, water or waste disposal or transfer facilities.
  • The property is to be owned by Monroe and set aside for permanent open space or drainage or erosion control facilities
  • The property poses a danger to public health or safety as a result of physical deterioration, pollution or contamination and is to be taken by Monroe for the purpose of remediating such conditions or minimizing danger to the public.

Neither the town nor any of its subdivisions may use eminent domain to take private property without the consent of the owner to be used for economic development.

In the final statement of the proposed ordinance, it is noted that: "Not withstanding any other provision of the law or this ordinance, private property acquired through eminent domain without the consent of the town shall not be dedicated, sold, leased in substantial part, or otherwise transferred to a private person, partnership, corporation or any other entity for a period of 10 years following the acquisition of the property by the town."

There are exceptions: The property may be transferred to leased to private entities that are public utilities or common carriers and, to private entities that occupy an incidental area in a public project, such as a retail establishment on the ground floor of a public building.

If any portion of the proposed ordinance is determined to be unlawful or to be in conflict with any governing state or federal law, the remaining provisions of the ordinance will remain in effect.

Voices: www.zwire.com

Drawing the line on eminent domain: The Washington (DC) Times, 10/9/05

By Joyce Howard Price

Jim Seelbach, 83, lives in a suburb of St. Louis and he is about to lose his home of 20 years. The city wants it to make way for a shopping center.

Mr. Seelbach and several dozen neighbors in the city of Sunset Hills face an eminent-domain order that could seize their properties to develop the $160 million complex filled with stores and offices.

Even if he were amenable to moving, he says the money offered for his home would make it impossible to find similar housing.

Mr. Seelbach has refused to accept the $118,000 offered for his two-bedroom, one-bath frame dwelling in the Sunset Manor subdivision near St. Louis.

"I can't find another home for $118,000, and at 83, there's no way I can even obtain a mortgage," he says.

Likewise, his neighbor, John N. Hogan, 79, a Korean War veteran who has lived in his house for nearly 50 years, doesn't want to move and doesn't think he has a fair offer for it.

"They want to take my three-bedroom, two-bath redwood home for $147,000. But I can't buy anything in this area for $147,000," he says.

Both men have filed lawsuits to block their ousters. They're not alone in their anger.

Homeowners nationwide are seeking to undo a June 23 Supreme Court ruling they see as the death of private-property rights. At issue is the high court's 5-4 decision in the Connecticut case of Kelo v. City of New London, in which justices said government — typically, cities and counties — can seize private property from its owner and give it to a private developer who promises to use it to generate more tax revenue.

"This was, perhaps, the most universally unpopular Supreme Court decision in recent memory," says Dana Berliner, a senior lawyer with the Institute for Justice, a libertarian public-interest law firm that was involved in the legal case. "It is a universally despised opinion."

In the Kelo case, the institute represented nine New London homeowners, who tried to halt the city's takeover of their properties for economic redevelopment. Miss Berliner argued their case before the Supreme Court.

"A lot of Supreme Court decisions affect only a small number of people. But this ruling affects everyone, since everybody either owns a home or hopes to own one someday. It changes what it means to own a home or a business," Miss Berliner says, adding that the property now can be seized to make way for anything from strip malls to amusement parks under what the institute calls the Supreme Court's "expanded" interpretation of eminent domain.

Pennsylvania state Rep. Thomas Yewcic, a Democrat sponsoring a bill to prohibit the use of eminent domain for "nonpublic uses" in that state, agrees.

"This was an absolutely disgraceful Supreme Court decision. Property rights are the fundamental building block of what America is all about. Taking people's property for private use is un-American," Mr. Yewcic says.

Common tactic or not
Don Borut, executive director of the National League of Cities, says there is some uncertainty about how often the taking of private land for private use occurs.

"We don't know how often this happens. We want to see how this is being used and how often. ... Where there have been abuses, they need to be addressed," says Mr. Borut, whose organization says the practice can be beneficial.

A report by the Institute for Justice, however, suggests it is more common than most people think. The institute found that from 1998 to 2003, there were 10,000 cases of eminent domain nationwide.

"In 3,000 cases, the properties were condemned," says a staffer with the Pacific Legal Foundation [PLF] who was familiar with the study.

Mr. Borut disputes the idea that the Supreme Court ruling "changed anything" with the Kelo decision, saying, "it was not a matter of giving anyone new authority or new power." Instead, he says, the high court upheld the constitutionality of condemnation practices that governments have used as a "last resort" to create jobs and "enhance the overall good of a community."

As evidence of the frequency with which this type of eminent domain is used, the Institute for Justice points out that right now it is being used in three neighborhoods in Missouri — Sunset Manor, Arnold and Richmond Heights — all within 20 minutes of St. Louis.

Both Sunset Hills Mayor James Hobbs and a spokesman for Novus Development Co., the firm planning the shopping center, insist local opposition to the proposed redevelopment project is small. For the project to proceed, the city required that two-thirds of affected residents approve.

"They did, and I understand now 90 percent of the people are behind it," Mr. Hobbs says.

Craig Workman, who until recently was a spokesman for Novus, says the 90 percent support figure is correct.

Several of the 229 Sunset Hills families that have signed contracts with Novus have formed a group called "We're Ready to Go" and have established a Web site (werereadytogo.com) detailing developments in the eminent-domain battle.

"Most of the families in Sunset Manor ... support the Novus buyout and are ready to go. Instead, we are held hostage by others ... who have formed the 'Stop the Land Grab' opposition group. They are funded by Westfield [a development firm that runs a rival shopping center in the St. Louis area]," according to the group's Web site.

Paul Ferber, an attorney for several Sunset Manor residents who want to keep their homes, confirms that Westfield is involved in the case, as it owns four homes that would be condemned.

There is uncertainty about the redevelopment project, given that Novus announced in late August that its financing to acquire the homes had been withdrawn. "And now it looks as if there never was any financing for this project," Mr. Ferber says in an interview.

He says that Novus originally was to have paid for houses of those who agreed to sell in August but then asked them "to extend their option contracts until Sept. 30." That deadline passed, and Novus told residents last weekend it needs more time to close on their homes and build a shopping center and office complex.

Worth the effort
There also has been uncertainty about whether the redevelopment project proposed for Sunset Hills can be successful.

One 12-member commission that examined financial questions says it would not be in the best interest of the region. But the panel's vote was nonbinding, and Sunset Hills aldermen and the mayor disagreed.

Kathy Tripp, a single mother in Sunset Manor who is resisting the loss of her home, says she believes this could be a "test case" for the Supreme Court's Kelo ruling.

However, that distinction could fall to a case in Ohio, given that that state's Supreme Court became the first to accept an eminent-domain case since the Supreme Court ruled.

In the Ohio case, private developer Jeffrey Anderson wants to demolish houses and business offices in the city of Norwood to build a complex of chain stores, condominiums and office space. According to the Institute for Justice, the Norwood government wrongly characterized "the well-kept neighborhood 'deteriorating' [in a study] so it could use eminent domain under Ohio law."

In the Kelo case, Susette Kelo and other homeowners fought New London's seizure of their homes. The homes on Fort Trumbull Peninsula are near a 90-acre waterfront site that is to be developed to support the recently opened global research center operated by pharmaceutical giant Pfizer Inc.

The unhappy New London residents argued unsuccessfully that the city does not have the right to take their property to give it to private developers.

The city said it wanted to in order to create more jobs and raise additional tax revenues.

The Fifth Amendment's eminent-domain clause allows government to take private property for public use. Traditionally, this has meant land to build highways, roadways, schools and other public facilities. The owners are paid what the government considers fair-market value for the condemned properties.

In the Kelo case, however, the court was asked whether economic development projects that transform private property to other private uses constitute a "public purpose."

Justice John Paul Stevens and four other justices decided they do.

Mr. Borut, of the National League of Cities, complains there has been a "rush to judgment" about the Supreme Court's ruling in Kelo and what it means.

"We need to see the consequences and implications [of using eminent domain for economic development] across-the-board" with an eye toward "balance."

"It's not an all-or-nothing situation, in that jobs are being created that wouldn't otherwise be there. .. . It should be used according to the needs of a community. Elected officials won't make such decisions arbitrarily. They are trying to balance the need to protect individual rights and the overall community good. There is a tension there."

Michael Brown, mayor of Riviera Beach, Fla., says a posh billion-dollar waterfront yachting and housing redevelopment project proposed there will bring his impoverished city "out of the economic doldrums."

But the project will displace 6,000 residents, and some of them say there has to be a better way to revitalize the poor, predominantly-black beach community.

States' rights
In the majority opinion, Justice Stevens noted that state legislatures are free to enact laws that prohibit condemnation of property for private development.

In a recent speech to the Clark County Bar Association in Las Vegas, Justice Stevens said that if he were a legislator, he would oppose a program to "take homes for private development."

Few state legislatures were still in session when the Kelo opinion came down. Of those that were, along with some that are in session now, some quickly addressed the issue.

In Alabama, Delaware and Texas, legislatures already have enacted legislation, signed by the governors, to restrict eminent domain.

The Alabama law prohibits governments from using their eminent-domain authority to take privately owned properties and turning them over to retail, industrial, office or residential developers.

"The Alabama [and Texas] legislation is much more specific than the new law in Delaware, which restricts the use of eminent domain to a 'recognized public use.' But it doesn't define it," says Larry Morandi, a program director for the Denver-based National Conference of State Legislatures.

So far, there have been proposals in as many as 30 states to restrict eminent domain to public projects or to private projects in rundown areas, according to the Institute for Justice and other groups. However, in some cases legislators have merely expressed an intent to draft such legislation.

In addition to Pennsylvania, the list includes California, Colorado, Connecticut, Florida, Georgia, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, New Jersey, New York, Ohio, Oklahoma, Oregon, Rhode Island, Tennessee and Virginia.

Legislators in several of those states want the new restrictions in the form of state constitutional amendments. Several states, including Kentucky and Rhode Island, are seeking amendments to the U.S. Constitution.

Before the Kelo ruling, six states — Maryland, Connecticut, Kansas, New York, Minnesota and North Dakota — allowed government to "take" private property for economic development.

At least nine other states — Arkansas, California, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington — restricted condemnation for economic development to private property in "blighted areas."

Reviews of eminent-domain laws either under way or planned in most states will include a closer look at the definition of blighted areas.

That's vital, Miss Berliner of the Institute for Justice says, as definitions of blight are vague and "prone to abuse." In some cases, she says, it is defined as land that is "economically underutilized."

Mr. Yewcic, the Pennsylvania state representative pushing for eminent-domain reform in that state, says his bill would do three things: prohibit the use of eminent domain to increase the tax base, prohibit its use for nonpublic projects and ensure that land inappropriately taken reverts back to the original owner.

The Yewcic bill does not authorize the continuation of condemnations of private property in blighted areas of Pennsylvania. But he says he would be open to an amendment allowing the taking of abandoned property in regions that need upgrading.

"What's going on now is legalized plunder," Mr. Yewcic says. He says he anticipates passage of a reform measure before the current legislative session ends in November 2006.

"Pennsylvanians realize that what happened in Connecticut could happen here," he says. "It's already been happening in the city of Pittsburgh, which has used eminent domain for private development and forced businesses out."

In Connecticut, Gov. M. Jodi Rell, a Republican, has endorsed an eminent-domain seizure moratorium until the legislature can revise existing law to protect property owners. Mrs. Rell says she believed the voluntary moratorium put on hold New London's plans to take the homes in the case decided by the Supreme Court, but the developer says it did not.

In Florida, House Speaker Allan Bense, a Republican, has tapped a special committee to revisit eminent domain in that state.

Towson Fraser, spokesman for Mr. Bense, says "the definition of 'blight' is so broad, it's useless. So they will be looking at that, as well as the meaning of the term, 'full compensation,' which Florida law says will be paid to those whose property is condemned."

At this time, the Pacific Legal Foundation is representing landowners in Charlotte County, Fla., whose vacant lots and dwellings are targets of condemnation proceedings. PLF says they are "victims of a redevelopment agency's bogus 'blight' designation." As many as 3,000 lots are involved, of which 80 have homes on them.

Valerie Fernandez, a lawyer in the Institute for Justice's Florida office, says of that state: "Florida engages in condemnation all the time. It is the leading abuser ... in the United States."

But there is some opposition in high places in the state.

"Gov. [Jeb] Bush feels eminent domain should not be used to take property to build condos or something like that. He believes it should be used for projects that are really needed, such as highways and schools," spokesman Russell Schweiss says.

"As a result of the Supreme Court decision in Kelo, there will be a lot more condemnation for private development, and there will be a lot more people trying to stop it," says Miss Berliner.

Immediately after the Supreme Court ruled against the New London homeowners, the institute filed a motion, asking that it rehear the case. The high court refused.

Public opinion
Less than a week after the Kelo ruling, the Institute for Justice and its 3,000-member Castle Coalition announced a $3 million "Hands Off My Home Campaign." The organizations described this effort as an "unprecedented financial commitment to halting eminent domain for private profit."

Polls have shown unusual unity on strengthening property rights, with the percentage of support consistently in the high 80s and in the 90s.

A number of bills addressing this same issue have been introduced in Congress with strong bipartisan backing. Supporters range from liberal Rep. Maxine Waters, California Democrat, to Rep. Tom DeLay and Sen. John Cornyn, both conservative Texas Republicans.

In the District of Columbia, a proposed congressional ban on providing federal money to communities that use eminent domain for private development could threaten the Skyland Shopping Center project in Southeast.

The project, which has been in the works for 15 years, would condemn several small businesses in an area designated as blighted to make way for a large discount retailer, a restaurant and a bookstore. Merchants fighting the takeovers say the city never proved the area is blighted.

Miss Berliner says she has no doubt many states will pass legislation restricting eminent domain. "I recognize lobbyists for local governments and developers will be very active," promoting condemnation of private property for economic development.

"But public opposition to using eminent domain for private development is so overwhelming that lawmakers will have to do something."

The Washington Times: www.washingtontimes.com

Preliminary eminent domain report released: Rolla (MO) Daily News, 10/9/05

By Janese Heavin

Recommendations made by the State Eminent Domain Task Force shouldn’t affect the City of Rolla’s ability to use eminent domain to redevelop the corner of Highways 63 and 72, said John Peterson, city development director.

The task force — created by Gov. Matt Blunt following the U.S. Supreme Court ruling that allowed the City of New London, Conn., to take a home for private development — has heard suggestions from experts and is slated to make formal recommendations to the governor Dec. 31.

One suggestion in the task force’s preliminary report is that the legislature pass a bill prohibiting private to private transfer for economic development to increase tax revenue.

In Rolla, eminent domain could be used to acquire property needed for the Sansone Group to redevelop the Highway 63, 72 area. City officials have said they will avoid using eminent domain if possible but reserve the right to do so if necessary to complete the project.

The development area includes 10 acres starting at the former Callens and extending eastward down Highway 72, plus four more acres south on Highway 63 to Williams Road.

If the state passed a law prohibiting eminent domain from being used for economic development, Peterson said it would not hurt the Sansone Group’s chances of building a shopping center at that corner because Missouri law allows eminent domain to be used to eliminate blight.

But it’s the state’s loose definition of blight that allows entities to abuse eminent domain powers, a panelist told the state task force.

Missouri is one of the worst abusers of eminent domain in the nation, according to Stephen Anderson, Castle Coalition Coordinator for the Institute for Justice in Washington, D.C., who made a presentation to the task force. Anderson said the abuse is made possible by the state’s current definition of blight. Statutes are so vague that virtually any property could be considered blighted enough on some level to allow for use of condemnation, he said.

The eminent domain task force has not yet recommended that the state change its definition of “blight.” The group will address blight in its final report, which is due Dec. 31.

Even if the state tightens the definition of blight, Peterson said he doesn’t think the Rolla redevelopment would be affected.

“That area’s a poster child for blight if I’ve ever seen one,” he said. “Not every parcel has to be considered blighted for an area to be blighted as a whole.”

The Rolla City Council has reserved the right to use eminent domain to take the 10 acres along Highway 72 but has said eminent domain should not be used on the four acres along Highway 63.

City Administrator John Butz said the council could reverse that decision with a future vote, if necessary. That decision would be made by the council, not the Tax Increment Financing [TIF] Commission, he said.

The TIF Commission’s responsibility is to determine if the redevelopment plan is feasible, Butz said. The commission does not address or make decisions regarding the use of eminent domain nor does it determine how many acres should be included in the final plan, he said.

Eminent domain has been a hot topic of state and federal discussion since the Kelso decision this summer.

Federal lawmakers have eyed a proposal that would withhold federal funds from entities that abuse eminent domain.

Some states have already passed new laws since the U.S. Supreme Court decision.

In Ohio, the Senate unanimously approved a bill designed to prohibit state and local governments from taking property for use by private developers until 2007. The measure comes as the Ohio Supreme Court considers a case involving a suburban Cincinnati city’s takeover of a neighborhood it said was deteriorating, The Associated Press reported.

Texas passed a similar law in August.

Gov. Blunt spokeswoman Jessica Robinson stopped short of guaranteeing that Missourians can expect an eminent domain bill this coming session.

“While his legislative agenda hasn’t been finalized, the governor remains concerned about the U.S. Supreme Court ruling and is actively working to ensure that what happened in Connecticut does not happen anywhere in Missouri,” she said. “The governor is proud of the good work this volunteer commission has done to bring attention to this important issue and he looks forward to studying their recommendations.”

State Rep. Bob May said eminent domain is a concern he has had for several years.

“We need progress, but at what cost?” he said.

May said there are instances where eminent domain is appropriate, however the state should strike a balance between economic development and protecting property rights.

“I don’t think you could really eliminate use of eminent domain, but we need to be very careful not to repeat abuses that have happened,” he said. “It has to be (a priority) for all of us, and I think it is. Most people, when you talk about individual property rights, say yeah, we have to address it and be fair to people.”

Rolla Daily News: www.therolladailynews.com

Protests Against Eminent Domain Speak to Deeper Problem — Distrust: Washington (DC) Post, 10/7/05


By Judy Coleman

This year's story about property rights is a tale of two cities.

The first is New London, a Connecticut port town whose economy depends upon two pieces of property: a submarine base and a planned waterfront development, which has been the subject of legal wrangling since 1998.

The city seized homes to assemble land for the project, which includes a research center for the drug giant Pfizer that's already been built. One resident, Susette Kelo, sued, claiming the city had abused its powers of eminent domain by taking her property for a redevelopment project. The Supreme Court recently ruled in the city's favor in Kelo v. New London. The result was a firestorm of public resentment that cut across party and ideological lines.

The second city is New Orleans, center of a colossal rebuilding effort costing an estimated $200 billion. Much of this funding will go to tax incentives and multimillion-dollar contracts with private corporations. Eminent domain, to clear blighted and flood-devastated areas, will no doubt be involved.

Had Kelo turned out the other way, the rebuilding of New Orleans would certainly have taken a different tack. That incendiary public reaction has influenced how lawmakers think. A House committee recently nixed a provision that would have enlarged federal eminent domain powers so that new oil pipelines could be built to back up those damaged during Hurricane Katrina.

It's not surprising that Kelo incited a hostile reaction. On its face, the ruling appears to dilute classical American values, such as the right to own property and the freedom from government intrusion. That's certainly how many commentators and editorial writers have interpreted it, and letters to the editor from San Diego to Sarasota echoed that view, invoking Madison, Jefferson and Enlightenment philosophers as support.

These arguments are poetic and viscerally powerful. They're also overstated and abstract. After the hurricane, it was easier to see why so many different people felt threatened by eminent domain. What fuels their outcry is not the more abstract concept of freedom but a very concrete fact of American life: class inequality. The poor residents of New Orleans and the middle-class homeowners railing against Kelo agree on at least one thing: The rich are about to get richer.

Through eminent domain, the government theoretically sacrifices the property rights of a few to create public projects that benefit the many. Because corporate interests invariably take the lead in developing these projects, though, some people have come to see eminent domain as benefiting the privileged few at the expense of the hapless many.

This division between the rich and the rest explains the reaction to Kelo. Members of Congress have expressed their disapproval and 30 state legislatures have taken action on bills and constitutional amendments proposing limits on the power of eminent domain. Governors in three states have declared moratoriums on property seizures.

Nevertheless, Kelo actually changes little in the legal landscape. Citizens still have two options when government acts in ways that negatively affect their property: They can go to the voting booth, and they can go to court. Elections certainly work, while the courts have been less amenable.

For decades, both federal and state courts have deferred to local governments on the use of eminent domain. In the 1954 landmark case Berman v. Parker, the Supreme Court decided that the Fifth Amendment's "takings" clause allows government to seize land for any "public purpose." The court defined public purpose broadly, to include, for example, economic redevelopment to solve urban blight.

The Berman decision came after World War II, a time of great optimism about the power of government. Cities were embarking on massive urban renewal efforts using federal funds. These plans, despite meeting the "public purpose" requirement, often met with failure rather than success - parts of many American central cities look like ghost towns.

The "public purpose" served by the Pfizer development is New London's very economic survival. In the 1990s, a state agency declared the city a "distressed municipality" after its unemployment numbers hit double the rate in the rest of Connecticut. The Supreme Court made clear it was deferring to the city's judgment that the development would be "a catalyst to the area's rejuvenation." New London would be allowed to seize Susette Kelo's home.

Generally, the right to private property has never been absolute - think of taxes, or zoning laws. So why did Kelo strike such a powerful chord?

The letters, columns and commentary on Kelo had a common theme: The government's motives were suspect. The city might have invoked the "public good," but opponents of Kelo saw the government as a too-eager partner of private interests - in this case, Pfizer.

There's a deeper distrust at play here. Many opponents feel alienated from their elected leaders, and disenfranchised with respect to property rights. It's not just that government can seize your property, it's that government is taking it to benefit people who matter more - because they can pay more.

The Institute for Justice, which represented Susette Kelo, has compiled a list of over 10,000 such "abuses" of eminent domain. Among them: Ace Hardware convinced the city of Mesa, Ariz., to condemn a nearby auto repair shop so it could build a bigger store. Donald Trump, using the leverage of a local redevelopment agency, tried to evict an elderly woman from her Atlantic City home.

It seems everyone can dream up a different, well-heeled villain. A Florida man, in a letter to the editor, tells a cautionary tale about a mobile home park condemned to make way for a townhouse development. A professor writing online in a legal blog, the Volokh Conspiracy, warns that Wal-Mart will be able to capture city governments and leapfrog over citizen opposition. Justice Sandra Day O'Connor, in her Kelo dissent, lists the Motel 6 chain and Ritz-Carlton hotels as likely beneficiaries of future eminent domain decisions.

Multinational franchises make easy rhetorical scapegoats. But the real problem here is a malfunction of democracy. The middle class believes it has lost equal citizenship with the rich. Hurricane Katrina revealed a dangerously entrenched caste system in America; Kelo alerted members of the middle class that they weren't at the top of it.

When the people in power are not affected by the decisions that affect everyone else, citizens have good reason to start distrusting government. Some eminent domain opponents have turned to action: An enterprising Californian has filed a petition to condemn the New Hampshire home of Justice David Souter, who voted with the Kelo majority. This forceful statement turned the tables on someone in power, one unlikely to have his home seized because he is a member of the elite.

The situation in New London is a time-extended version of the crisis in New Orleans. Lawmakers in New London observed a long economic decline that would culminate in the city's obsolescence if government did not intervene. The city benefited from having time to make a choice about its future, but has lost public support exactly because it had time to choose otherwise. Now a state moratorium on property seizures has stalled the plan yet again.

New Orleans saw its demise in the course of days, not decades. There was no choice but to create a package of initiatives that would bring the private sector in on the rebuilding effort. In some areas, eminent domain may be the only answer. The urgency of government planning, however, is offset by the fact that the first contracts have gone out to some of the usual suspects - namely, corporations with strong ties to the administration in Washington.

Neither New London nor New Orleans presents a clear case of representation at its finest, nor cronyism at its worst. What matters is that citizens are increasingly likely to see only the latter. Just as the future of New Orleans depends upon the ruling in Kelo, the legacy of Kelo will depend on how government uses New Orleans to erase the fault lines of class that the case laid bare.

The washington Post: www.washingtonpost.com

Judy Coleman is a third-year law student at Yale University; she edits the Pocket Part, the online magazine of the Yale Law Journal.

Some N.Y. legislators push eminent domain reform: Rochester (NY) Democrat and Chronicle, 10/8/05

By Nick Reisman

Debbie Kubiak, 49, has lived in the same 1,600-square-foot house in Cheektowaga, Erie County, all her life.

That almost changed when real estate developer Dominic Piestrak came to her neighborhood. He was interested in building "Renaissance Village" — a development for upscale homes and a small shopping center.

Her neighborhood would be condemned through eminent domain — traditionally used by local governments to secure land for a new street, a bridge or other public improvement. But in a growing number of cases, the tactic is being used for commercial purposes. A local government can declare an area "blighted" and then turn the property over to a private developer for the "public good."

Construction of the proposed housing development would force Kubiak and 300 fellow neighbors out of the area.

"It's like a great big happy family more or less, and that's the reason people are fighting this so hard," Kubiak said of the neighborhood.

This week, the Cheektowaga Town Board blocked the project. Some lawmakers are trying to put a permanent stop to the use of eminent domain for anything other than public projects.

"We can't make innocent victims out of regular people," said Assembly Richard Brodsky, D-Greenburgh, Westchester County.

The lawmaker, who is also running for attorney general, has two bills before the state Legislature that he says will reform New York's eminent-domain laws so they are fair for both property owners and developers.

The reform package would set aside $100,000 for a commission to study the state's eminent-domain laws. The proposal calls for a panel composed of lawmakers and legal experts.

Sen. James Alesi, R-Perinton, is holding a series of public hearings around the state to study the issue. The first one was held this week in Rochester.

"I am acutely aware of the benefits new businesses can bring to a community and that there are limited circumstances when the use of eminent domain is appropriate," Alesi said in a statement.

He stressed that seizure of property "could lead to an abuse of authority."

In July, the U.S. Supreme Court ruled in favor of developers in New London, Conn., to build a shopping center along the town's waterfront, displacing property owners. Lawmakers have pointed to this case as the basis to take action in reforming eminent-domain laws.

Rochester Democrat and Chronicle: www.democratandchronicle.com

Trump again sets sights on Plaza neighbors' land: The Press of Atlantic City (NJ), 10/12/05

By Donald Wittkowski

Their bruising five-year court case finally came to an end in 1998, leaving Clare and Vincent Sabatini exhausted but triumphant.

In what amounted to a real-life version of the Monopoly board game, they were able to fend off Donald Trump from snatching their family-owned restaurant to make room for a casino project.

Then a congratulatory call came from an unlikely well-wisher.

"This is Mr. Trump," said Clare Sabatini, recalling the introduction from the man on the other end of the line. "We were in court for five years, but you were always kind to me and never said anything derogatory."

Seven years later, Trump may come calling again - this time with cash in hand to buy Sabatini's Restaurant, a fixture at the corner of Pacific Avenue and Columbia Place for four decades.

Trump Entertainment Resorts Inc. is in talks to acquire the restaurant and another business next door, a cash-for-gold pawnshop, for an expansion of Trump Plaza Hotel and Casino.

"My view is, we should offer a reasonable price for those properties. But it's their property. They own it and have a right to say no," said Trump Entertainment president and chief executive officer James B. Perry, confirming that negotiations are under way.

Perry said efforts by Trump Entertainment to reach a deal with a third property owner, Vera Coking, have been unsuccessful because her price is too high. Coking, an elderly widow, has a long history of clashing with casino developers who have sought to buy her three-story former boarding home on Columbia Place.

Trump Entertainment wants to clear out the block between Missouri Avenue, Columbia Place, Pacific Avenue and the Boardwalk for a new hotel tower and other attractions at the Plaza. Perry stressed that the expansion project is in the early stages and could take eight to 10 years to complete.

Sabatini's Restaurant, Coking's home and the Golden Island pawnshop were the properties Trump sought in 1998 during a headline-grabbing court case that ended with a judge rebuffing the gaming mogul and the state Casino Reinvestment Development Authority, a government agency.

Trump wanted the CRDA to use its power of eminent domain to condemn the private property and give it to him so that he could build a limousine parking lot to complement a previously completed expansion project at the Plaza.

In siding with the property owners, a Superior Court judge ruled that the land seizure was illegal because it would have principally benefited Trump and had no apparent "public purpose."

CRDA had offered the Sabatinis $700,000 for their property in 1998, but the buyout was rejected. However, the Sabatinis had made it known then that they would be willing to sell "if the price was right."

Now, Trump and the Sabatinis reportedly are close to reaching a deal. Clare Sabatini declined to comment about the negotiations, but spoke highly of Trump despite their former legal squabbles.

"There is a side of him that the world should know," she said.

She remembers his complimentary phone call after the court case and noted that he had called her another time when she was in a convalescent home recuperating from a coma.

Sabatini said Trump was simply acting as an astute businessman when he tried to use the CRDA to seize her property. She directed her criticism at the CRDA, lashing out at the agency for abusing its government power of eminent domain.

"My fight was with the government," she said. "Government should not back the Donald Trumps of the world because it reinforces that type of behavior. It was a reward for inappropriate behavior when they tried to condemn our property."

Clare Sabatini and her husband Vincent won the sympathy of "Doonesbury" cartoonist Garry Trudeau, who lampooned Trump as a greedy casino tycoon in a series of comic strips that chronicled the property dispute.

During the court case, the CRDA had offered Coking $251,250 for her house and $189,500 to brothers Peter and Josef Banin, who own the building where the cash-for-gold pawnshop is located.

The Banins could not be reached for comment about the latest negotiations with Trump. Glenn A. Zeitz, Coking's attorney, declined to comment.

Perry characterized Coking's current asking price as too high, but did not divulge any figures. In 1998, Zeitz said Coking was seeking at least $1.2 million for her property.

Coking first gained publicity in the early 1980s, when she spurned buyout offers from Penthouse magazine publisher Robert Guccione to make way for his never-completed casino project on land now owned by Trump.

The Press of Atlantic City: www.pressofac.com


Eminent domain restrictions proposed: Lawrence (KS) Journal-World, 10/8/05

Two Lawrence-area legislators have proposed legislation to restrict governments’ eminent domain powers to take private property.

“It is imperative that Kansas send a loud and clear signal that the rights of private property owners will not be bulldozed by private developers,” said Rep. Tom Holland, a Baldwin Democrat, whose district includes parts of south Lawrence.

He was joined by Rep. Ann Mah, D-Topeka, whose district includes southwestern Douglas County.

Their bill would prohibit the state, a city, county or other Kansas governmental entity from acquiring private property by condemnation for a private business development or use. The bill includes an exception for blighted properties.

The measure is needed, the legislators said, in response to a U.S. Supreme Court ruling in a Connecticut case that allowed a city to condemn homes for private business development.

Lawrence Journal-World: www2.ljworld.com

Lawmakers asked to curb eminent domain: The Stamford (CT) Advocate, 10/7/05

By Tobin A Coleman

Citizens and state and municipal officials told [Connecticut] lawmakers yesterday that the power of government to take private property for economic development should be stopped or severely limited.

"The General Assembly must send a strong message to municipalities that tearing down neighborhoods to replace them with office buildings or a big box retailer must stop," said Michael Cristofaro of New London, a plaintiff in the landmark U.S. Supreme Court case that has led to 21 states passing or considering laws to limit the power of eminent domain.

The Legislature's Judiciary Committee heard from about 30 people at a public hearing that lasted about 6 hours. Some had personal stories of what they labeled eminent domain abuse in cities and towns including Derby, Bloomfield and Ridgefield.

Others expressed outrage at the court decision and asked for reforms as a result of the June court ruling that said the families in the Fort Trumbull section of New London must turn over their single-family homes to a private developer who wants to build a hotel and office complex.

At the core of most of the five proposed bills that were the subject of the hearing was either a complete prohibition or new restraints on state and municipal power to seize private property for economic development and turn it over to a private entity.

The Supreme Court ruled that municipalities could use such a practice if the purpose was to spur economic growth in order to raise new tax revenue. But the court invited state legislatures to regulate or ban the practice.

Connecticut, one of the few states that directly allows taking of private property under such circumstances, is considering changes not only to that practice but even in cases where blighted areas are under consideration for revitalization, a practice known as urban renewal.

Stamford and Norwalk redevelopment officials testified they do not oppose reforms but asked that the basic tools of eminent domain — now being employed in a downtown Stamford project and in Norwalk's Reed-Putnam development — remain.

Tim Sheehan, executive director of the Norwalk Redevelopment Agency, told the panel that holdouts standing in the way of urban renewal projects are the reason cities and towns should be able to keep eminent domain powers as a last resort.

Sheehan defined a holdout to the committee as, "that landowner who refuses to sell an essential piece of property for a realistic market . . . value and thereby thwarts an important public economic development improvement project."

Sheehan's agency has been in court for years with Maritime Motors, a car dealership on West Avenue in Norwalk, over the agency's condemnation of the dealership to make way for the Reed-Putnam mutliuse project.

Michael Freimuth, Stamford's director of economic development, spent more than 30 minutes testifying and answering questions. Freimuth was representing the Connecticut Economic Development Association.

Freimuth said the state should abandon its own rules and adopt federal rules for compensating homeowners and business owners whose properties are taken by eminent domain.

"Federal rules are more flexible, more liberal and more accommodating of fair compensation, just compensation," Freimuth said.

Judiciary Committee co-chairman Sen. Andrew McDonald, D-Stamford, questioned several witnesses about their understanding of public use of a condemned property, which most agreed should still be permissible under the law, and a private use.

Institute for Justice attorney Scott Bullock, who represented the Fort Trumbull homeowners argued that the state should outlaw the taking of property from one private owner to give to another. The marketplace can take care of the need for economic growth, and developers can pay private owners enough money to buy their parcels without the threat of eminent domain hanging over their heads, he said. Otherwise, there are creative ways to design projects to accommodate the holdouts, Bullock said.

"Most situations that I'm aware of, when people refuse to sell, development still moves forward around them," Bullock said.

Bullock and others also argued that the state's laws allowing eminent domain to be used for blight removal should be tightly written so that they are not used as a back door to allow private developers to take properties that aren't deteriorated.

"I'm concerned that we define blight in a way that won't be struck down by the courts as vague," said state Sen. Edward Meyer, D-Guilford.

Committee co-chairman Rep. Michael Lawlor, D-East Haven, said the committee and legislative leaders will likely take the best elements of the five competing proposals and hammer out a compromise to further protect home and business owners from having their property taken for commercial use.

House Minority Leader Robert Ward, R-North Branford, has proposed one bill that would completely outlaw that use of eminent domain. Ward wants an immediate moratorium on the takings until a new law is passed, or, alternately, he wants the state statute that allows such takings repealed.

"Taking private properties and turning it over for essentially private use, our statute 132 allows that and I think this is clearly wrong," Ward said. "Repealing Chapter 132 is simple and easy to do and a simple process to accomplish."

Gov. M. Jodi Rell has asked cities and towns to hold off on using eminent domain until the Legislature can work out a deal. So far they have complied. A bill could get a vote as early as this month as the Legislature is set to go into special session on Tuesday.

Stamford Advocate: www.stamfordadvocate.com

In practice, eminent domain ruling should not pose problems: Yale (Univ) Daily News, 10/7/05

Guest Column

By Tom Lehman

The Supreme Court ruled on June 23 that the Constitution does not prohibit cities from taking privately owned land to make way for commercial developments. The decision has led to widespread criticism and even a proposal to take revenge on Justice Souter, who joined the majority opinion, by building the "Lost Liberty Hotel" over his childhood home.

While the constitutional merits of the Kelo v. New London decision may be up for debate, the ruling's implications give no reason for concern. Critics attack the decision on the grounds that it reads out the constitutional requirement limiting takings to public use, and that may be. But from a policy perspective, this provision does nothing to ensure that a taking be justifiable.

Kelo's detractors are right to be skeptical of all exercises of eminent domain. The consent of both parties to a sale ensures mutual benefit. When the state transfers ownership of property without its owner's consent, it risks giving the property to someone who values it less than the original owner.

For example, suppose Bertrand owns his childhood home, valued at $5 on the open market. However, Bertrand is sentimental, and so he privately values the home at $10. Kurt, one of Bertrand's neighbors, would like to extend his yard onto Bertrand's land, and so it is worth $6 to Kurt. Kurt contributes 50 cents to the campaign of a prominent government official; in exchange, the official uses the state's eminent domain power to "buy" Bertrand's land for $5 and sell it to Kurt for $5. Thus, Bertrand loses $5, and Kurt and the official each gain 50 cents, for a net social loss of $4.

This sort of scenario worries most critics of Kelo. However, if one wants to avoid such a situation, he should advocate banning takings altogether — not limiting them to public works projects. The public use provision of the Constitution does nothing to ensure that land will not be taken from one party and given to another who values it less.

Again, let's look at Bertrand. Suppose a highway constructed though Bertrand's property would be worth $6 to motorists (excluding construction costs). Since the state knows it only has to pay Bertrand $5 for his house (though he still values it at $10) it does so and builds the highway. Motorists gain $6, society pays $5 in taxes, and Bertrand loses $5, for a net social loss of $4.

Circumventing the market is dangerous regardless of the purpose of the taking. It is unclear why using a public use provision as a litmus test is at all attractive. After all, no one would argue it should be permissible for the state to take anything besides land to provide a public good. Building highways requires cement, and highways are surely for "public use," but this alone does not authorize the state to take the cement and pay market value. The state buys cement when it builds a highway, why shouldn't it buy land? It most cases, it should. The mere existence of a potential public good should not give the state a blank check to use eminent domain at every turn.

So why not ban takings altogether? Because eminent domain is sometimes necessary, albeit for a reason orthogonal to the public-private use distinction. In some cases, eminent domain is needed to avoid transaction costs, specifically holdouts. These arise whenever a large plot of land needs to be purchased in small parcels sequentially from several owners, irrespective of the land's intended use.

Suppose, for example, that building a certain highway is worth $10 to motorists, but requires building over the land of three individuals, each of whom values his land at $1. Clearly it is socially efficient for the highway to be built. However, once the state has purchased the first two parcels of land, the third owner will hold out for $9.99, knowing that unless the state purchases his land, it forfeits the $10 surplus the highway generates. Therefore, before beginning the project, the state anticipates spending $11.99 ($1 + $1 + $9.99) on a highway worth only $10, so it will not undertake the project in the first place.

Of course, these same transaction costs can arise when a private entity needs to purchase a large contiguous plot of land. A company could value a manufacturing plant at $10, and each owner could value his plot at $1, and the company still would not build the plant, despite the potential social benefit.

Since the distinction between public and private use is irrelevant, it should not be disturbing (from a policy perspective) that the Supreme Court read it out of the Constitution. But given our analysis above, should we replace it with a more relevant restriction, perhaps some sort of "transaction cost minimization" provision? If the answer is yes, then the core of what the Kelo critics argue, that there must be some judicial oversight over takings, is correct. However, adding such a provision to the Constitution would be absurd; judges have neither the expertise nor the resources to appraise the possibility of holdouts.

That courts should not be in the business of policing eminent domain should not be too hard to swallow given that most matters of economic policy are rightly left to legislatures. The empirical questions surrounding economic policy are simply not within any court's capacity to answer. No one would argue that it should be unconstitutional to enact a protectionist trade agenda, even if he believes such an agenda to be wildly inefficient. Those who support limitations on eminent domain must rely on the democratic process to see their preferred policies enacted, just like those who support free trade.

Of course, by and large, this is what is actually happening: many states have passed constitutional amendments and statutes limiting takings power. Some would call the democratic anti-Kelo backlash evidence that the ruling was a disaster, but it is in fact confirmation that when it comes to eminent domain, legislatures are capable of self-regulating.

Yale Daily News: www.yaledailynews.com

Eminent domain — Bill looks to review policy: The (OH State Univ) Lantern, 10/7/05


A bipartisan, statewide bill is leading the charge in responding to the uncertain and overbearing ruling passed by the Supreme Court earlier this year. That ruling reaffirmed the right of local government to seize property through eminent domain.

Senate Bill 167 was passed unanimously on Wednesday in the Ohio Senate by Democratic Sen. Kimberly Zurz, and will move from the Senate to the House of Representatives where it is expected to be passed by the end of the year.

The bill would create a two-year moratorium on the use of eminent domain in Ohio in order to study the new powers granted by the Supreme Court to local governments in the landmark case Kelo v. New London.

Primary sponsor Republican Sen. Tim Grendell and co-sponsor Zurz crafted the bill from their talks in working groups over the summer months. The bill looks to review Ohio's process and laws regarding eminent domain by establishing a task force to review and revise the definition of "blighted properties" and "just compensation" for seized property.

Properties are considered blighted after an inspection by the city deems them as run-down or uninhabitable.

Under the new Supreme Court ruling, non-blighted properties, such as suburban area homes or property near commercial developments, are now open to government seizure without yielding to the same process for blighted properties. No safegard is in place to protect property owners from government overreaching.

Grendell and Zurz's bill is a responsible step in reviewing Ohio's eminent domain provisions. Court's are inclined by duty to decide cases based on interpretation of documents and precedents, but it is the legislators duty to review and revise those rulings by making regional law.

Eminent domain is an idea that, if used justly, should facilitate service to the public through seizure of properties for contributions to the community, such as roads or schools. SB 167 recognizes that if left unchecked, eminent domain can be a loosely-regulated device for big business and corporate entities to apply influence on local government. To prevent this, Ohio needs to protect itself and enact clear and concise eminent domain laws. SB 167 is just that law.

The Lantern: www.thelantern.com

If at first you can't blight Sunset Manor, try, and try again: St Louis (MO) Post-Dispatch, 9/29/05

By Martin Van Der Werf

When is an area blighted? And how many chances does a city get to try to prove that?

Documents unearthed in a lawsuit against Sunset Hills show that the city kept asking for new evidence that the Sunset Manor subdivision was blighted, despite a finding by its consultant that it was not.

The area is the proposed site of a $165 million shopping center to be built by Novus Development Co. The company was supposed to close on the 254 houses to be torn down in late August, but it did not have the money. It asked homeowners for an extension that expires Friday.

A message on a hotline the company established said that closings by Friday are "not practical," but "not impossible."

The Board of Aldermen voted 7-1 in May to grant Novus $42 million in tax increment financing [TIF]. To qualify for the funding, an area must be declared blighted or a conservation area - meaning it will become blighted without substantial improvement.

The shopping center would be built between Interstate 44 and Watson Road, just east of Lindbergh Boulevard.

The city's consultant, PGAV Urban Consulting, concluded in August 2001 that the area did not meet the criteria, especially the houses in the eastern part.

"A blighted or conservation area designation is not possible except under the weakest of arguments," wrote PGAV Vice President John Brancaglione in a letter to City Attorney Robert C. Jones. The houses in the western part might have met the criteria, the letter said, under certain conditions: if property values were decreasing, if the area had a disproportionate amount of crime, if infrastructure were inadequate or if there were numerous code violations.

However, research later showed that property values had increased 17 percent in the previous three years. Sunset Manor made up less than 2 percent of the city's crime, and while there were problems with the storm and sanitary sewers, those were the responsibility of the Metropolitan Sewer District, not the residents.

Nonetheless, the city decided to designate the area as blighted and eligible for TIF. At that point, PGAV hired a Brentwood architecture and engineering firm, Stewart, Schaberg & Turner, which concluded in December that nearly two-thirds of the properties had at least three deficiencies that would qualify the neighborhood as a "conservation area."

Among the reasons: Houses were obsolete, because they had bedrooms in basements. That indicates that "the house, as built, does not provide for the inhabitants of the dwelling." Porch stairs had settled and were out of compliance with codes. Some windows were too small for emergency escapes.

After seeing the report, PGAV changed its recommendation.

A state Senate committee looking into abuses of the state TIF laws will want to look more closely at this creative application of the term blighted.

St Louis Post-Dispatch: www.stltoday.com

Lawmaker: No eminent domain without referendum: (Morris County NJ) Daily Record, 10/6/05

By Gregory Volpe

A [New Jersey] state lawmaker wants to forbid municipalities from condemning property for private economic redevelopment without first having a public referendum on the matter.

Assemblyman Patrick J. Diegnan Jr., D-Middlesex, announced Thursday he will introduce a measure this fall requiring public votes on eminent domain. He also wants the state to have to approve all municipal resolutions designating redevelopment areas, some of which can now take effect if the Department of Community Affairs fails to issue an opinion.

"Towns and developers interested in employing eminent domain should be required to seek the approval of families and business owners living in those communities before repossessing properties," Diegnan said.

Daily Record: www.dailyrecord.com

Legislative panel to hear eminent domain testimony: The Stamford (CT) Advocate, 10/6/05

By Tobin A Coleman

The national political storm created by the U.S. Supreme Court decision allowing the condemnation of private homes for commercial development will move into the [Connecticut] state Capitol today as legislators consider laws to limit the power of eminent domain.

Today's public hearing is the second before the Judiciary Committee, which is considering five bills that would curtail the powers of state and local government to take private property.

Some of the bills aim to prohibit the takings in all cases where the goal is only economic development, as in the Kelo v. New London Development Corp. case decided by the Supreme Court in June.

One bill, proposed by the Institute for Justice, the nonprofit legal entity that represented the homeowners in Kelo, would end the use of eminent domain simply to raise more tax revenues.

Scott Bullock, senior attorney at the Washington, D.C.-based institute, who represented the homeowners in the Kelo case, said the other four bills would not limit enough government's power to take private land under that scenario.

"That practice will not stop under most of the proposals that are being floated before the committee," Bullock said in a telephone interview.

The Institute for Justice bill would still allow the taking of property in situations where a city or town is trying to clean up a slum or blighted area. But the proposal would also tighten the definition of blight, exorcising current language that allows property to be taken that is "deteriorating" or that impairs the "welfare" or "morals" of a community.

Bullock said such terms are antiquated and can be construed much too broadly.

"Redevelopment laws now allow government to take ordinary neighborhoods to turn them over to businesses to develop more tax revenue," he said. "Our proposal would stop that."

Judiciary Committee Co-chairmen state Rep. Michael Lawlor, D-East Haven, and state Sen. Andrew McDonald, D-Stamford, authored a bill that would set strict conditions on all of the state's eminent domain laws, restricting its use to certain provable public purposes.

Lawlor said their bill would outlaw in Connecticut a situation outlined by Justice Sandra Day O'Connor in her dissenting opinion in Kelo. O'Connor warned that the decision would allow government to take a small hotel and replace it with a larger hotel simply to increase property tax revenues.

"The court today significantly expands the meaning of public use," O'Connor wrote. "It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use."

Lawlor and McDonald's proposal would outlaw such a practice in Connecticut, Lawlor said.

Stamford and Norwalk redevelopment officials are expected to testify today.

Timothy Sheehan, executive director of the Norwalk Redevelopment Agency, said he will testify that cities such as Stamford and Norwalk, that are highly developed with few vacant parcels left, need eminent domain to remain viable.

"The tools should remain," Sheehan said. "If there are ways in which they want to see or guide the employment of the tool that's fine. But to take the tool away from cities, it's going to be difficult to employ a host of economic development projects in Norwalk, and going into the future, how are you going to implement smart growth alternatives?

The Stamford Advocate: www.stamfordadvocate.com