Hollywood commissioners embrace right to seize property belonging to residents: (S Florida) Sun-Sentinel, 11/3/05

By John Holland

The Hollywood City Commission adopted an eminent domain resolution Wednesday that strongly mirrors a recent U.S. Supreme Court decision giving cities the right to take a private citizen's property and give it to developers.

While cities, states and federal legislators are working on laws to soften the court's actions, Hollywood leaders voted 6-0 to embrace major portions of the ruling. City Commissioner Cathy Anderson did not attend Wednesday's meeting.

The Hollywood resolution allows the commission to take any person's land or buildings if it decides that the taking serves a "public purpose." Five of seven commissioners would have to agree and the vote could only follow a public hearing.

The resolution calls on city leaders to make "all reasonable efforts to acquire the property through negotiations." The city would then be free to take the property and hand it to developers building more expensive projects in the name of "rehabilitation and redevelopment of neighborhoods," according to an explanation accompanying the resolution.

The Supreme Court's decision in Kelo vs. New London, Conn. outraged legislators and private citizens around the country who feared governments would be free to take land at any time.

Hollywood this year made the controversial decision to take the longtime downtown business owned by the Mach family and hand it over to developers of a downtown condominium project.

Several years ago, several city commissioners backed a deal to take beachfront homes worth millions of dollars and give the land, at a large discount, to developer Michael Swerdlow. That deal eventually fell apart.

This week, the U.S. House of Representatives is tackling a bill that would prohibit any city that takes a private home from receiving federal redevelopment dollars.

Sun-Sentinel: www.sun-sentinel.com

Eminent domain limits pass House: Pittsburgh (PA) Tribune-Review, 11/2/05

By Mike Wereschagin

The state House voted Tuesday night to curb local governments' power to take private property and give it to another private owner, a controversial practice that has been used several times in Pittsburgh and was deemed legal by the U.S. Supreme Court in June.

"That's one of the big problems, that developers are simply using the government to take private property for their own use," said Kathleen Walsh, 62, of Ridgemont in Pittsburgh's West End.

Five years ago, the Pittsburgh Urban Redevelopment Authority considered labeling part of her verdant hillside neighborhood "blighted," the first step in condemning the homes and making way for a Home Depot adjacent to the Parkway Center Mall, Walsh said.

"This is a neighborhood of nice, middle-class, well-maintained homes," Walsh said. "We have a couple of people here who have been living here since the 1950s. It was just unbelievably terrible for some of the older people."

If the Senate passes the bill, the URA wouldn't be allowed to start the process that haunted Walsh and her neighbors for nearly a year, said Rep. Daryl Metcalfe, R-Cranberry, a co-sponsor of the bill.

The bill provides for a few exceptions, such as if the property is abandoned or unsafe, or if the owner consents to having the land condemned. Property can be taken for use by a nonprofit hospital or medical center.

"It will help to stop a lot of the abuses that's occurred around the state," including Mayor Tom Murphy's threats to use eminent domain to oust Downtown businesses to make way for a major developer in the Fifth and Forbes corridor, Metcalfe said.

The public opposition that helped derail Murphy's revitalization plan also caused the URA to back away from its plan to condemn Walsh's neighborhood, she said.

Twelve states have considered laws limiting local eminent domain authority since the Supreme Court, in Kelo v. New London (Conn.), declared it constitutional for local governments to take property from one private owner and give it to another if it would result in increased tax money for a community.

"We need to restore private property rights," Metcalfe said. "I think Kelo v. New London was a wake-up call to the states."

Tribune-Review: http://pittsburghlive.com

St. Charles may limit eminent domain: St Louis (MO) Post-Dispatch, 11/01/05

By Mark Schlinkmann

The [St Charles] City Council may take steps to bar use of its eminent domain authority to force the sale of homes to make way for commercial development in many neighborhoods.

The proposed resolution was introduced Tuesday night. One of the sponsors, John Gieseke, 8th Ward, said he wants to reassure residents, despite the U.S. Supreme Court ruling last June that said governments can take private property for economic development purposes.

Under the resolution, the city could still use eminent domain to acquire vacant, abandoned or dilapidated homes. The measure would not restrict the city's ability to force property owners to sell for a direct government purpose such as a new or widened street.

Nor would it keep the city from forcing the sale of businesses to make way for newer commercial developments. That prompted criticism from Kevin Rogers, who told the council that he was worried that he could eventually lose the Dairy Queen that he owns on First Capitol Drive to a redevelopment plan.

In response, Gieseke said he agreed that viable businesses should not be forced to sell either in such circumstances and that he expected the council to discuss that later.

The resolution would not legally bind the council in the future, but it could make it be politically difficult for current members to act counter to it after passing it.

Last month, the council gave eminent domain power to a redevelopment corporation formed by Lindenwood University to acquire land needed for the school's long-planned performing arts/fine arts center.

Supporters said that was justified because the goal was something that would benefit the city as a whole.

Lindenwood's chief operating officer, Julie Mueller, said the school reached a tentative agreement Tuesday with owners of a heating and air-conditioning firm in the buyout area without having to file an eminent domain lawsuit.

She said the school also has worked out a deal to buy two of three vacant commercial buildings on the site. She said an agreement has not been reached with the owner of the third vacant structure. Eminent domain could still be used to force that sale.

St Louis Post-Dispatch: www.stltoday.com

Preston outlaws eminent domain: Norwich (CT) Bulletin, 11/2/05

By Greg Smith

Voters in Preston showed their overwhelming opposition Tuesday to the idea of private land being taken by the town for economic development. At referendum, voters adopted an ordinance against taking land by eminent domain.

The vote comes on the heels of an unpopular Supreme Court decision backing the city of New London in its bid to condemn homes and allow private developers to boost economic growth there.

"I think it was misused in New London. The Supreme Court made a judgment error," said Penny Herring of Preston.

"I think people really became aware of the problem after New London," said Florence Prue, of Preston, who voted in favor of the ordinance. "Not only here in Connecticut, but all over. So when the petition started, there was no way I was not going to get down here and vote."

Putnam passed a similar ordinance in August.

Tuesday's vote was brought to a referendum by the efforts of Teresa Schulz, 72, of Preston. Her son, Tim Schulz, said she wanted a townwide vote to give everyone, especially the elderly, a chance to vote.

"We don't have enough people in the world like her," Schulz said. "It's a shame that, after the decision in New London, people had to petition their government to do the right thing. Leaders in every town should bring this to their voters."

First Selectman Robert Congdon said eminent domain is likely to become a statewide issue.

"I think it sends a message to legislators at the state level about what the sentiment of the town is," Congdon said.

Even before Tuesday's vote, the town could not take land without a town meeting vote, Congdon said. Without opposition, the new ordinance goes into effect in 15 days. It does not stop the state from using eminent domain, however.

Norwich Bulletin: www.norwichbulletin.com

Officials Mull Eminent Domain

SB 1099 would limit use of practice by agencies

By Dania Akkad

Two members of the state Senate agriculture committee held a listening session on Tuesday in Salinas focused on the potential impacts of government use of eminent domain on California agricultural land.

The meeting, attended by several growers, cattle ranchers and representatives of the state and county Farm Bureau, follows a decision in the spring by the Supreme Court that gave local governments broad eminent domain power to take private property for private development.

Committee member Dennis Hollingsworth, R-Murrieta, who was at the meeting with chairman Sen. Jeff Denham, R-Merced, has proposed legislation, SB 1099, that would limit the use of the practice by government agencies to acquire agricultural land.

"The U.S. Supreme Court suddenly convinced every homeowner that their property is at risk," said Bob Perkins, executive director of the Monterey County Farm Bureau, who testified Tuesday. "It's raised new questions about eminent domain... and that's why we are here today."

Farmland, said Perkins and a representative from the California Farm Bureau, is vulnerable to eminent domain transactions because it is relatively inexpensive compared to other land.

Between 1991 and 2003, according to Dennis O'Bryant, division chief of the division of land resources protection with the Department of Conservation, more than 25,000 acres of agricultural land protected under the Williamson Act was acquired by public agencies.

The Williamson Act, administered by the state's Department of Conservation, provides agricultural landowners with tax breaks in exchange for their promise not to develop the land. More than 16 million acres are now enrolled in Williamson Act contracts.

"It is extremely disturbing," said John Gamper, director of land use and taxation for the California Farm Bureau, of the increase in agricultural lands being acquired by public agencies.

After the meeting, Perkins said he couldn't cite any example of an agency taking Williamson Act land with eminent domain and giving the land to a private property owner.

But he said that though he hadn't seen it happen in Monterey County, he was concerned that there isn't a mechanism between local and state agencies ensuring that agricultural land under Williamson Act isn't scooped up by local entities.

"These are all little pieces of the picture. It's not that one is exactly related to the other," he said referring to the Williamson Act and the use of eminent domain. "But the issue is there is a pattern that we believe could lead to that."

Also testifying at the meeting was Tim Hearne, a South County ranch owner who lives near Long Valley, where the Salinas Valley Solid Waste Authority is considering building a landfill. Eighty percent of the valley, he estimated, is preserved under the Williamson Act.

"Eminent domain law does not have enough precautions to prevent public agencies from taking over ag land," Hearne said. "It doesn't seem that the Williamson Act carries any substance at all with these agencies."

Monterey County Herald: www.montereyherald.com
What is Eminent Domain?

Unfair to blast Supreme Court for eminent domain ruling: Rochester (NY) Democrat & Chronicle, 11/1/05

Guest Essay

By A. Vincent Buzard

There has been a great deal of debate about the impact of Kelo v. New London, the recent U.S. Supreme Court decision on the power of municipalities to take property for economic development purposes under the doctrine of eminent domain.

Both houses of the New York state Legislature are holding hearings on the impact of Kelo. One of the roles of the New York State Bar Association is to aid public understanding of the legal system and to answer unwarranted attacks on the courts. Hopefully these thoughts will help in that effort.

A debate over the role of government in bringing about economic redevelopment, and the circumstances under which it should invoke its eminent domain powers, is entirely appropriate until it rises to the level of provoking attacks on the U.S. Supreme Court based on misreading the Court's decisions.

In Kelo, the U.S. Supreme Court held that New London, Conn., could condemn property for the purpose of economic development even though the property itself was not blighted.

The decision was based on the principle that taking the Kelo property was part of a well-designed, comprehensive economic plan.

One of the parties, Suzette Kelo, owned a home on the New London waterfront, in the heart of a redevelopment zone established by the city to create economic growth in an area that had fallen on tough times. A libertarian organization called The Institute for Justice challenged the city's move on Kelo's behalf.

The Kelo decision has been criticized for creating new law because the "taking" of the Kelo property falls outside the scope of such time-honored uses as building a public park, courthouse, or highway. Yet, the U.S. Supreme Court decided 50 years ago that economic redevelopment could be deemed a valid public purpose. In fact, economic development projects have taken place in Rochester as a result of those earlier decisions.

The redevelopment of the area bounded by Main, State, St. Paul and Andrews streets, which includes two hotels, First Federal Plaza, the Crossroads office building, and other office buildings is all a result of an economic redevelopment project, and some of the property was taken by eminent domain even though it was not blighted.

Unfortunately, Kelo has resulted in a renewal of what appears to be a continuing pattern of misunderstanding, misrepresenting and mistrusting U.S. Supreme Court decisions. In referring to the decision recently, Sen. Trent Lott, R-Miss., stated: "We can fight by getting involved in an effort to confirm judges who will interpret the law rather than make it." Lott went on to further chastise the justices for having "taken it upon themselves to write their own laws, essentially bypassing you and your elected representative."

Sen. Lott has it backward. The U.S. Supreme Court was not making new law, but rather relying on a 50-year-old precedent. Contrary to the senator's statements, Kelo gives state legislatures great latitude in defining the parameters of economic development projects in their states.

The role of eminent domain in the redevelopment of communities is an appropriate issue for debate, but not an appropriate excuse for judge-bashing.

As president of the State Bar Association, I am appointing a task force of experts in the field to review existing and proposed legislation regarding eminent domain in New York and make recommendations regarding appropriate legislative and regulatory considerations.

Hopefully, the work of this task force and the legislative committees that hold hearings can shed public light on the real issues while removing some of the hysteria from the debate process and, above all, stop blaming judges for simply ruling on the law to the best of their abilities.

Rochester Democrat & Chronicle: www.democratandchronicle.com

A. Vincent Buzard is president of the New York State Bar Association


Seizure of land leaves Londonderry residents fuming: (Manchester NH) Union Leader, 10/20/05

By Margaret Menge

At least two property owners in north Londonderry have been notified in recent months that the state has taken their land by eminent domain for the airport access road project.

Jim and Lorayne Pincence, who own 112 acres on Hall Road, said they came home one day three weeks ago to find a notice thrown up on their porch saying that all but 3 of their 112 acres were being taken for wetlands mitigation.

Al Baldasaro, a retired Marine Corps sergeant who lives at 41 Hall Road, was served notice in June.

He said he answered the door to see a Rockingham County sheriff's deputy on his doorstep holding a letter from the state Board of Tax and Land Appeals saying that almost 5 of his 6 acres had been taken.

The Pincences and the Baldasaros are among 70 property owners in north Londonderry from whom the state has been attempting to acquire land so that they can put construction of the access road out to bid.

Bob Barry, who's managing the mitigation for the Department of Transportation, said that the federal environmental impact statement for the new road required it.

Negotiations have been under way for more than year, with the state making offers of varying amounts for properties surrounding Little Cohas Marsh that add up to about 750 acres.

An impartial appraiser was hired by the state to determine the value of all parcels of land, as the law requires. The property owners must, by law, be given "just compensation." But the property owners interviewed for this article all said that the amount they were offered by the state was much less than market value.

Baldasaro said the state offered him $10,000 for 4.9 acres. He said he bought the property in 2002 for $287,000.

"My land's not for sale," he said. "But if you're gonna take it, you gotta pay fair market value."

Jim Pincence wouldn't say what the state had offered him but said, "It was a lot lower than anyone else has been offered in the area."

The state made John Goulet, of 18 Hall Road, an offer of $7,800 for 3 of his 5 acres.

"That's peanuts," said his son Mark, "For $7,800, I'd rather just keep it."

Mark said his dad hired a lawyer in the last two weeks and is looking at taking legal action.

Pincence, owner of Pincence Land Clearing, said that once they found out that the state wanted their land a couple of years ago, it put them in a tough place.

"It put a collar on us," he said. "Who would buy land they know they were gonna lose eventually?"

He said his wife, Lorayne, who holds the title on the land, just hired an attorney to look at taking legal action against the state.

Kathleen Kilroy, who lives down the road from Baldasaro and Pincence, grew up in the house where she now lives with her husband and 2-year-old son.

They have two horses in back that they ride on their 59 acres behind the house. The state wants all but 1.29 acres, which is short of the 2-acre minimum that Londonderry requires for horse owners. The state offered just $1,000 an acre.

"Now what are we supposed to do?" she said, "Get rid of the horses — something I've been doing since I was 7 years old?"

She and her husband David have retained the services of a lawyer ever since the state first mentioned that their land could be taken by eminent domain two years ago. But she's not hopeful.

"There's no way you're gonna win this because there's millions of dollars behind this."

She said you can't even bring up the subject with her father, from whom she bought the house. He's beside himself. She said she and her husband have been sick over it — nauseous, unable to sleep and losing hair. They're in the process of hiring their own appraiser to come out and determine the value of their land. They plan to counter the state's offer.

Much of the land that the state is taking for mitigation is wetlands. But Baldasaro and Pincence have been fighting the state on that account since last year.

They say that the land is being flooded by a dam the state was supposed to take down in April of 2004. Baldasaro said he thinks the state is doing this on purpose to devalue his property.

"New Hampshire is quietly taking people's land," he said, "They're taking 700 acres of land from people who can't afford to fight."

His attorney filed an objection at the end of August, saying that since his property is five miles from where the access road will be built, the state hasn't demonstrated why they need it for some public benefit — the standard that has to be met to allow taking by eminent domain.

Baldasaro's case has been referred to Rockingham County Superior Court.

He and his attorney are waiting for a court date.

The Union Leader: www.unionleader.com

Letter to local officials
by Al Baldasaro

Please Protect land owners' rights

Eminent domain has gone wild here in New Hampshire. The Department of Transportation (DOT)had a mitigation project going on in Londonderry and surrounding communities since 1997. A lot of people knew nothing about it, or don't want to know about it.

Recently, they have been quietly stealing over 700 acres for an access road to the Manchester Airport. The sad thing is that our land has nothing to do with the access road. They also claim our land is "wet" but this is because the NH Fish and Game Commission refused to take their dam out after their lease expired in April 2004.

Whether the land is wet or dry, we own it. So the DOT offers us a appraisal on manmade wetland, which they say has no value. It is the state's dam that is keeping it wet! They are not building anything on our land and the airport access road is 5 miles away. This has no financial gain to the state. As a matter of fact, the state does not pay taxes to the towns, and all the towns involved will lose property tax dollars if this goes through.

What is wrong with our State? I served 22 years Honorably in the US Marines (Desert Storm Vet/Disabled Vet), protecting our country, to come home to a Government that can take my property or that of any other NH resident, because the DOT says it's the right thing to do. Hello! Are the tax payers of NH that stupid? This is a sad day in our state, if our elected officials do nothing about this legal thievery.

Sadam did this in Kuwait and you see what we did. I was there and I have the memories of the Kuwaiti people, their happy faces, in my brain after we gave them their land back and their freedom. Something is wrong here in our "Live Free or Die" State! We are suppose to be leading the nation in setting the example on Living Free.

They know that we little people do not have the funds to fight them. I have no choice but to try to take this to court, since everyone else has turned their back on us. Especially the Executive Council and the Chairman of the Special Committee appointed by the Governor. The Chairman — Councilor Wieczorek, along with Councilors Wheeler and Spaulding, did not attend the Bedford-Manchester-Londonderry-Merrimack mitigation hearing but voted in favor of taking our property. They did not not care about the land owners' complaints.

The DOT has forced me to engage a law firm to fight this. Spending money this way takes food of my and many other residents' tables. We want to believe in the American Dream. Something needs to be done to protect all residents of NH.

Al Baldasaro: baldasaro@adelphia.net

Eminent domain threat alleged in Atascadero: St Luis Obispo (CA) Tribune, 10/31/05

An official reportedly called downtown property owners with the threat of litigation

By Stephen Curran

Atascadero City Manager Wade McKinney could have to answer today for a city official who allegedly threatened downtown property owners with eminent domain litigation if they refused to sell.

Marty Tracey, the city's deputy director of redevelopment, reportedly called landowners Pat and Sue Gaughan on Feb. 22 and left a message telling the couple that the City Council, in its capacity as the Atascadero Community Redevelopment Agency, planned to move forward in a closed session that night with eminent-domain procedures on their property at 6040 El Camino Real.

The plan Tracey is said to have described is illegal under a state law that requires eminent-domain votes be approved by a three-fifths majority of redevelopment agency board members in an open session, City Attorney Patrick Enright said.

It was unclear late last week if McKinney, who as the city's redevelopment director is Tracey's boss, directed Tracey to make the call, Mayor Wendy Scalise said.

McKinney is expected to field questions from council members in a closed-door session at noon today.

Enright and other city officials have denied any such plan is in place. Multiple calls to Tracey's office were not returned.

"The council wants to know what happened here," Scalise said. "It raises the question in my mind as to what direction, if any, was given by the city manager."

McKinney was unavailable for comment, a receptionist in his office said. As city manager, he is employed directly by the council.

The city has no definitive record of what went on at that meeting. Like most councils, the Atascadero panel does not record minutes during closed sessions, Enright said.

Reached Friday, Pat Gaughan said neither he nor his wife attended the closed session. According to an agenda from that day's meeting, the board was to review negotiations between Gaughan and McKinney.

"It almost looks like I was there," Gaughan said of wording on the agenda.

The Atascadero couple, who have owned the property since 1984, described Tracey's tone as "cordial" but his underlying message as threatening.

"His voice wasn't harsh," Gaughan said. "He knows he has me."

The Gaughan's property, a now-vacant gas station and auto shop, sits across from the recently renovated Carlton Hotel in the heart of Atascadero's downtown core. So it is considered ripe for redevelopment.

The couple says they are now fielding offers from developers looking to build projects with a mix of housing and shops on the property.

In a statement sent Thursday afternoon, McKinney said the redevelopment agency had been "actively referring developers to the Gaughan's (sic) to encourage them to develop the corner into a retail and residential use."

A single-page agenda posted Friday afternoon lists the council's business that day as a performance evaluation for a city employee followed by "public employee discipline/dismissal/release."

The board cannot directly fire or discipline Tracey, but can direct McKinney to do so, Councilman George Luna said.

Neither Scalise nor Luna would say whether they thought Tracey should lose his job.

"I think that's a possibility," Luna said. "... This is a very serious issue. We'd been making substantial progress (on downtown redevelopment) and this is a black eye."

St Luis Obispo Tribune: www.sanluisobispo.com

Council responds to tax claims, eminent domain: San Mateo (CA) Daily Journal, 10/29/05

By Michelle Durand

Recent allegations that Redwood City improperly used tax dollars on its downtown cinema project will likely be addressed at the council’s next meeting in November, according to one councilwoman.

On Nov. 14, the council will receive an ad hoc committee report on guiding principals for property acquisition, an attempt to avoid future eminent domain issues like those raised by the cinema project.

At that time, Councilwoman Rosanne Foust said, the tax accusations made by Jim Knapp will likely be raised publicly, too.

“We have to talk about at least some of it. We can’t expect any of this to just go away so we need to get through the rhetoric ... and take it all seriously. We can’t ignore it,” Foust said.

Mayor Jeff Ira, though, doesn’t expect any exhaustive discussion.

“It’s not something to bring up unless somebody really has something to discuss. It might otherwise be confusing to the audience rather than helpful,” Ira said.

Knapp, president of Citizens for Accountability, claim the city has been less than forthcoming about the project’s price tag and improperly used public money for a private project. Knapp also claims city charter requires two-thirds voter approval for the hefty bonds but did not take the issue to the ballot.

Foust, like other Redwood City officials, questioned why Knapp is bringing the matter up so close to the election. During her tenure on the Planning Commission, Foust said she has no record of Knapp or anyone from his group publicly speaking out against the cinema or other projects like the Marina Shores proposal.

Instead, he has sent a number of e-mails to public officials that Foust characterizes as insulting and libelous.

Ira told Knapp he would look at any documents he could provide on the alleged problems and, if needed, appoint a task force to research it.

Knapp’s accusations are just the latest bump in the cinema’s road to completion.

In April 2004, Judge Quentin Kopp ruled the city unlawfully seized private property and razed a building to make room for the 20-screen cineplex and parking garage on land bound by Broadway, Jefferson Avenue and Middlefield Road. James Celotti’s two-story building was taken on the grounds that a public parking lot would be built on the land but Kopp ruled it was in fact being used to benefit a private developer.

The city declared the block a blighted area and acquired it using eminent domain. Celotti later received a $3 million settlement.

The San Mateo County civil grand jury knocked the city’s lack of etiquette in the land grab and recommended the redevelopment agency create written guidelines. The jury did not tackle the details of the Celotti agreement but said all the property owners suffered “disproportionate injuries.”

The recommendation propelled the creation of the guidelines to be unveiled Nov. 14.

“It basically lays out the principals of how we expect the process to go and really sets the tone,” said Foust, who served on the subcommittee with councilmembers Barbara Pierce and Jim Hartnett. “We want to have a more sensitive approach to future redevelopment actions.”

Foust does take issue with the civil grand jury not seeking council input into its final report. Likewise, she said if Knapp has a true concern and valid complaint he should approach the city in a different way.

“I have no qualms about doing whatever sort of investigation needs to be done, in the most appropriate way possible,” she said. “But all we’re seeing is that we’re being attacked and he wants to run out names into the mud.”

Ira said it doesn’t matter so much if Knapp has a valid concern or is simply muckraking.

“He is a resident so we’re not just blowing him off. He just need him to follow the process for it to work,” Ira said.

San Mateo Daily Journal: www.smdailyjournal.com

Park agency considers using eminent domain: San Francisco (CA) Chronicle, 10/29/05

Developer balks at selling parcel for $4.9 million

By Patrick Hoge

The East Bay Regional Park District wants to use eminent domain to acquire 238 acres of land on the Richmond shore, picking a fight with a landowner who's promised the agency some of the land and city officials who say their authority is being usurped.

The district says the marshland at the edge of San Pablo Bay must be protected from a 1,092-unit housing development proposed for a section of the parcel, and its board is expected on Tuesday to consider moving unilaterally to acquire the land for $4.9 million.

The landowners, Don and Lonne Carr and a partnership they manage, said they're happy to give the district more than 170 acres of the land at no cost, set aside another 19 acres as open space and create an endowment to maintain the land.

"They (park officials) seem intent on spending millions of dollars when they can accomplish the purpose of having trails for free,'' said Sean O'Connor, the Carrs' Orange County attorney.

Park officials say they have no choice but to take all of the land, with views of Mount Tamalpais and Marin County, because the Carrs are pushing a "silly" project that is far too large.

The proposed development would harm habitat for several protected species, such as the salt marsh harvest mouse and the California clapper rail, said Bob Doyle, assistant general manager of the park district's land division. It also could prevent construction of a portion of the San Francisco Bay Trail, he said.

"It's just ridiculous," Doyle said. "It's almost insulting. They (the developers) know darn well they've picked a fight. We didn't pick a fight."

The district has long made it clear that it wanted to annex the land, which is adjacent to Point Pinole Regional Shoreline.

Doyle said the parks district was willing to accept commercial or industrial development on almost 20 acres of the land, as allowed under the city of Richmond's general plan — a document the district helped write. The rest of the land is zoned for community and regional recreational use.

The Carrs, however, have proposed a project they call the Parkway Transit Village — the transit element, as yet unidentified, is to come later — and have asked the city of Richmond to amend its general plan and rezone part of the land to allow for residential development.

The city has not approved the proposal, but both the City Council and the city Redevelopment Agency have officially opposed the district's use of eminent domain, raising the possibility of a lawsuit should the district move unilaterally to take the land. City officials said such a move would undermine their authority to regulate land use within the city.

Project manager Stan Davis said the development would occupy just 68 acres far from the marsh, with 19 of those acres devoted to open space, including the Bay Trail. The developers also would create wetlands and restore a creek now used as a flood control ditch, he said.

But parks district officials say so much of the land is environmentally sensitive that the Bay Trail most likely could be located only on land that the Carrs' proposed development would occupy.

That is "a major, major constraint of any development, certainly on the scale of anything that these current applicants are proposing,'' said Ted Radke, a member of the parks district's Board of Directors who walked the property with the project architect recently.

Radke said he "remained pretty unconvinced that they're going to be able to get anything like what they are talking about through the (state and federal environmental) regulatory agencies.''

Jean Siri, another board member, was more blunt.

"We're going to vote to acquire it as a necessary piece of property for us, so that will take care of it," Siri said. "Who wants condominiums? It's the edge of a marsh."

The developers have "spent a lot of money doing up all these pretty plans and pretty pictures. They don't like to give in, but I've told them there's not a chance in hell" they will succeed, she said.

Davis, who said the Carrs did not want to be interviewed, said the property is worth significantly more than the $4.9 million the district has offered. The owners bought the land for about $3 million in 2000, but have spent more than $6 million improving it, he said.

San Francisco Chronicle: http://sfgate.com
 California eminent domain

Eminent domain trial set: Davis (CA) Enterprise, 8/28/05

By Elisabeth Sherwin

A critic of Yolo County's attempt to buy the Conaway Ranch by eminent domain has released a document that he says shows the county discussed funding the purchase by selling water to Joint Powers Authority members and out-of-county interests.

The county says the unsolicited letter signifies nothing. And it is moving ahead with an eminent domain trial Tuesday in Yolo County Superior Court.

The county is seeking to acquire the 17,300-acre Conaway Ranch, between Davis and Woodland, from its current owners, the Conaway Preservation Group, which is led by Sacramento developer Steve Gidaro.

Jeffrey Sutton of the Family Water Alliance says a year-old letter from water consultant Eric Robbins to then-Assistant County Administrator Sharon Jensen, which he obtained through a public records act search, is telling of the county's true intent to sell water off the ranch.

“This is very enlightening considering the county has blindly accused the current owners of contemplating this very sin, thus demanding that the county seize the property to protect the resource,” Sutton said Thursday.

“Further, it belies the reasons stated by the county for the use of eminent domain. It has been claimed throughout that it was to preserve open space and the status quo.”

To this charge, county Supervisor Mike McGowan, the head of the Conaway Ranch Joint Powers Authority, asks: “So?”

The letter, he says, proves absolutely nothing.

“This is no smoking gun,” he said.

“It was an unsolicited proposal,” Jensen, the newly appointed county administrator, said this morning. “People are interested in supplying services to the county; it's not unusual to receive these proposals.”

Jensen said more than 3,000 county documents - including the Robbins letter - have been made available over the past year through public records requests about the Conaway Ranch to groups including the Family Water Alliance, the Yolo County Farm Bureau and People's Advocate.

“We reject outright any plan to sell Conaway Ranch water rights outside the county,” Jensen said. “To claim this letter represents the county's position is misleading and entirely inaccurate.”

“The stuff Mr. Sutton cites is static and noise,” McGowan said Thursday. “The letter proves nothing at all and shows a staff person doing her job.”

McGowan said the letter went to a county employee tasked with finding out the different ways the county might be able to pay for purchasing the ranch.

“Some of those ways would be acceptable, some would not be,” McGowan added. “The letter is absolutely no evidence that (selling water) is the direction we intended.”

Sutton released the letter just five days before a hearing - set for 9 a.m. Tuesday in Yolo County Superior Court - to answer the question: Does the county have the right to take the Conaway Ranch from unwilling sellers by eminent domain? Judge Tim Fall is scheduled to hear the case.

The Board of Supervisors, which usually meets at 9 a.m. on first and third Tuesdays of the month, has rescheduled its board meeting that day for 1 p.m. in the County Administration Building at 625 Court St., Woodland, next door to the county courthouse.

“We have full confidence our action is on solid legal ground,” Jensen said.

Attorney Stuart Somach, representing the county, will be the first to give his arguments in the case. Gary Livaich is the attorney representing the Conaway Preservation Group. The county has three witnesses ready to be called; the CPG has 16.

The judge will rule on whether the county can legally force the Conaway Preservation Group, to sell the sprawling ranch, valued for its water and natural gas rights as well as open space and habitat potential.

The county's position has been firm since July 2004, McGowan said. He said it is crucial to preserve the land, including its water rights, for the benefit of county residents. If the county doesn't act, McGowan said, the private owners will develop the land and/or sell the water out of the county.

In an interview with The Enterprise on the ranch this summer, Gidaro said he already is doing what the supervisors say they want to do - preserving the land. He said he has no intention of selling the land for housing developments.

Gidaro acknowledge he is a developer but said he is an avid hunter and landowner committed to wildlife-friendly farming practices and the preservation of wildlife habitat and open space on the ranch. Twenty farmers grow crops on Conaway land, he said.

“The Board of Supervisors has said what they want to do and why,” McGowan added. “There has been no change. We have said that this is a land grab by big-money Sacramento developers. We want to protect the land from the bad guys who will sell off bits and pieces of it.

“I love what Yolo County looks like and I want to keep it that way,” he said. “I've made a life career of saying no development is going to happen here. This is not funny, it is not a game, and I am happy to say that I am getting more understanding and support from the average person.

“Sutton flapping his jaws doesn't change that,” McGowan added.

Davis Enterprise: www.davisenterprise.com

Eminent domain provision draws fire: Bristol (TN) Herald-Courier, 10/28/05

By Joe Geraghty

Some 100 people showed up at a public hearing Thursday night to raise concerns about a controversial redevelopment plan.

More than 20 people spoke out against it, particularly about provisions that could allow the city to seize private property to make way for commercial development.

"I’m 80 years old, and I’ve been in my house since I was 27," Bonnie Turner said. "I hope you all will reconsider and not take our homes from us."

Under the plan, the city could use eminent domain to obtain property necessary for the redevelopment of an area even if the owner of that property were uninterested in selling.

David Wagner, speaking for the city Redevelopment and Housing Authority and for the task force that drafted the plan, said no one in authority had any intention of forcing property owners out onto the street.

"This is not about taking homes, and this is not going to happen tomorrow," he said.

The plan, released publicly earlier this month, identifies four districts for redevelopment.

One of the districts includes most of downtown, another covers the Southside Shopping Plaza, the third encompasses houses and vacant land west of Volunteer Parkway and south of State Street, and the fourth includes the former Cheers Restaurant building on the parkway.

The plan must receive approval from the Housing Authority, the City Council and the Sullivan County Commission.

Any specific redevelopment plan for one of the four districts also would require approval before any action could be taken, Wagner said.

Every person who spoke Thursday night expressed concern about the possibility of losing property in the name of redevelopment.

"I think you need to figure out a way to rework the eminent domain issue," said Tim Valentine, who owns property in one of the districts. "That’s the only real problem anybody has with this."

Wagner said he and others heard residents loud and clear.

"We’ll have to do some homework on that," he said.

It probably would not be wise to remove the eminent domain portion of the plan because it might be necessary in certain situations, Wagner said.

"Do we want a major project held up because we can’t get a five-foot right of way?" he asked.

He said officials might consider limiting the scope of the eminent domain provision.

The redevelopment task force will reconvene within 30 days to consider the comments and try to rework the document to address people’s concerns, Wagner said.

When the group meets, it will consider excluding the properties of those who do not wish to be included in the plan, he said.

"Obviously, there are a lot of issues we need to cover and some changes we need to make to this plan," Wagner said.

Once the task force has drafted a new version, it will be made publicly available and another public hearing scheduled, he said.

Bristol Herald-Courier: www.tricities.com


Eminent domain abuse overblown, says legal expert: Gloucester County (NJ) Times, 10/27/05

By Terrence Dopp

Politicians have engaged in fear-mongering and opportunism since the U.S. Supreme Court earlier this year upheld governments' right to condemn private land for non-public development, according to a Rutgers Camden legal expert.

"It's probably overblown for political reasons in the sense that municipalities have built in reasons why they should be circumspect of using eminent domain willy-nilly," said Damon Smith, assistant professor at the Rutgers School of Law School-Camden.

"There is reason to believe municipalities don't see this as the quick and easy land grab it has been described."

Long an established practice in New Jersey, eminent domain traditionally involved annexing land for a park, road or schools provided they meet established criteria.

Smith said he would support laws requiring government to pay home prices above market value and requiring governing bodies to pay above market value.

But one local lawmaker was skeptical of Smith's claims.

"I think what it did was it brought (condemnation issues) to peoples' attention," said Assemblyman John Burzichelli, D-3 of Paulsboro. "The Supreme Court decision woke a lot of people up and that is not a bad thing because the states still have the right to set their own laws."

Burzichelli said as mayor he has never led condemnation proceedings and the borough does not have any plans to take private land.

He predicted action in the Legislature.

"There is a commitment to restructuring the eminent domain (laws) and proceedings," Burzichelli said.

In New Jersey and other state capitols, legislators have rushed to propose laws that would restrict the ability of local and state governments to condemn private property to turn over to private development firms.

In the Garden State, the main proposal is Republican legislation requiring governments to meet greater burdens of what use would constitute a greater public good before taking private property.

Gloucester County Times: www.nj.com

Bill to curb eminent domain OK'd: Cleveland (OH) Plain Dealer, 10/27/05

Unblighted land safe until 2006

By Julie Carr Smyth and Thomas Ott

A bill preventing cities from seizing unblighted land for economic development through 2006 cleared the state legislature easily Wednesday, as lawmakers responded to public concern that a recent U.S. Supreme Court decision could make the practice widespread.

The bill, which cleared both the House and Senate unanimously, will go into effect as soon as it is signed by Gov. Bob Taft.

Sponsored by State Sen. Tim Grendell, a Chester Township Republican, the legislation creates a 25-person task force to review Ohio's eminent domain laws in the wake of the high court's Kelo v. New London decision. In that June 2005 ruling, the court said economic development is a viable "public purpose" under eminent domain law, even when unblighted land is being seized for development that ultimately benefits a company.

Eminent domain has traditionally been reserved for such public purposes as roads, schools, military bases, highways or parks.

Lakewood, however, gained national attention two years ago when the city threatened to take land for building upscale housing and shops. The 20-acre project, which would have wiped out 700 apartments and 55 houses, collapsed when voters narrowly barred the use of eminent domain.

Supporters thought the vote would discourage cities, but the strategy has resurfaced. Just last week, South Euclid filed for eminent domain against the owners of four acres needed to build housing and stores at Cedar and Warrensville Center roads.

Meanwhile, Pepper Pike has threatened to sue homeowners who refuse to sell and clear the way for 200 townhouses on Cedar Road.

The Greater Cleveland Partnership, which promotes economic development in the area, opposes sweeping restrictions on the use of eminent domain as an economic growth tool, said Vice President Carol Caruso.

Cities need eminent domain to stop individual property owners from holding up critical redevelopment, said Caruso, who testified on the bill. The power is especially important to older cities with scarce room for construction, she said.

"We want people to understand that it is a last resort, and no one wants to use eminent domain," Caruso said. "We feel we have strong arguments and we will be heard."

Bert Gall, an attorney for the Washington, D.C.-based Institute for Justice, said the public outrage spawned by the Kelo decision has been so widespread that 36 states have introduced or intend to introduce legislation blocking eminent domain use that benefits private developers.

"If you look at the opinion polls, several pollsters have said they've seen nothing like the numbers in terms of how it's galvanized the public," he said. "It's united people on all parts of the political spectrum - conservatives, liberals, Republicans, Democrats. This decision literally touches home."

Dan Navin, a lobbyist for the Ohio Chamber of Commerce, said the moratorium and study committee will allow Ohio to take a reasoned look at the issue.

"I think there's a lot of misinformation and almost a frenzy because of what the implications of this lawsuit were, as reported by the press," he said. "It's really stoked a lot of folks who think that this is the most egregious decision issued by the Supreme Court in the last 50 years, and I think some sober analysis of the decision and what's really going on across the state is a good thing."

The Plain Dealer: www.cleveland.com

D.C. Seizes 16 Owners' Property for Stadium: Washington (DC) Post, 10/26/05

As Negotiations With City Continue, Tenants Given Three Months to Vacate Land in Southeast

By David Nakamura

The District government filed court papers yesterday to seize $84 million worth of property from 16 owners in Southeast, giving them 90 days to leave and make way for a baseball stadium.

By invoking eminent domain, city officials said last week, they hope to keep construction of the Washington Nationals' ballpark on schedule to open in March 2008. The city exercised its "quick take" authority, in which it takes immediate control of the titles to the properties.

Under law, the property owners and their tenants must vacate the land within three months unless a judge declares the seizure unconstitutional.

In papers filed in D.C. Superior Court, city attorneys said: "The Properties subject of this action . . . are taken for an authorized municipal use, namely the construction and operation of a publicly owned baseball stadium complex."

A spokeswoman from the D.C. attorney general's office did not respond to a message left for her yesterday evening.

In all, 23 property owners control 14 acres at the stadium site near South Capitol Street and the Navy Yard along the Anacostia River.

City officials said they have agreed to buy land from seven owners, who were not named in the court filing. The city had offered them a total of $13 million, but it is not known whether that was the final sale price.

The other 16 property owners have not agreed to sell, and their holdings include some of the largest and most expensive properties: an asphalt plant, a trash transfer station and adult-oriented businesses.

Negotiations are continuing, city officials said. But M. Roy Goldberg, an attorney for Eastern Trans-Waste, the trash transfer station that the city valued at $8.7 million, said yesterday that the company intends to fight.

The company's owners have told the city their property is worth $14.3 million, plus $18 million if they cannot find another site.

"We're going to fight the amount of the taking and the way they've gone about doing it," Goldberg said. "I don't think they've been negotiating in good faith since Day One."

The city deposited the $84 million in a court-monitored trust. Property owners have 20 days to challenge the constitutionality of the takeover. As long as the District can show that the land was taken for a legitimate public purpose, the court probably will have no objections, land-use lawyers said.

Some activists have argued that the stadium is a private project for Major League Baseball, but District leaders say the $535 million project will create significant tax revenue. Developers have snatched up land just outside the stadium plot in anticipation of a waterfront revival, and the city is planning to create a "ballpark district" featuring restaurants and retail.

If the court does not block the city's action, property owners can continue to negotiate with the city, but in lieu of an agreement, a jury would ultimately decide the sale prices. But that could happen months, even years, after the owners are forced to leave, land-use lawyers said.

The city's offers for the land are about 2 1/2 times as high as the amounts that it had assessed the properties to be worth for tax purposes last year. But some owners said they want more money because owners of property just outside the stadium land have received higher offers from developers.

Patricia Ghiglino, who owns an art studio assessed by the city at $1.7 million, said yesterday that she is meeting with city officials Nov. 14 to discuss the offer. She said she has hired an appraiser to conduct an independent analysis of how much money her property is worth.

"I don't know if the city will want to avoid litigation and just come up clean," Ghiglino said. "But if they decide they don't want to agree with our appraiser, then I guess I don't have too much recourse" but to let the court decide.

Ghiglino, who has been in her property 15 years, said she felt strange that the city now controls the title to her land.

"I've cried so many days since this first came up" last year, she said. "It was very, very personal to me. We created the center. I worked 60 to 90 hours a week here, on Saturdays and Sundays. This became not just a business but also my home. . . . At end, this just becomes a business issue. I have to look for ways that are best for me personally. But we will continue the center regardless of where we go. That's our mission."

Washington Post: www.washingtonpost.com

Eminent domain bill advances: The (Harrisburg PA) Patriot-News, 10/26/05

By Ellen Lyon

State Sen. Jeffrey Piccola's legislation to restrict government power to take private property for redevelopment purposes appears to be on a fast track through the Legislature, despite concerns of some economic development officials.

The Senate Majority Policy Committee held a 21/2-hour hearing yesterday on Senate Bill 881 "because we want it to move quickly," said Fred Cabell, chief counsel to Piccola, R-Susquehanna Twp.

The Senate State Government Committee, to which the bill has been referred, could vote on the measure as early as Monday, and it could reach the Senate floor for a full vote by next Wednesday, Cabell said.

An identical bill introduced in the House by state Rep. Glenn Grell, R-Hampden Twp., unanimously passed that chamber's Judiciary Committee yesterday.

The bills would prohibit the use of eminent domain to take private property for private commercial purposes unless the owner consents or the property is blighted.

The legislation would tighten the definition of blighted to mean property that is a threat to health and safety, is abandoned or is tax-delinquent. It also would require that properties in the majority of an area be blighted before that area could be considered for redevelopment. Currently, only 10 percent of an area has to be blighted for it to be considered for redevelopment.

The bills were drafted in response to a recent U.S. Supreme Court decision that allowed the city of New London, Conn., to seize homes in a working-class neighborhood so a private developer could build a riverfront hotel and office complex.

Representatives of the Pennsylvania Builders Association, the National Federation of Independent Business, the Pennsylvania State Grange, the Pennsylvania Farm Bureau and a citizens' group testified yesterday in support of Piccola's bill.

But representatives of two economic development authorities and the Pennsylvania League of Cities and Municipalities expressed concerns.

Rick Schuettler, deputy executive director of the league, said the Senate is "moving too quickly to pass legislation and relieve public pressure without fully understanding the consequences of the proposed changes to the current law.

"Our main concern lies with passing legislation that does not strike a balance between individual property rights and urban redevelopment projects that truly make an investment for the good of the entire community," he added.

Schuettler wondered if one homeowner should be able to stop a $350 million redevelopment project that benefits the entire community and has community support.

"Our answer is no, and our fear is that Senate Bill 881 may do just that because it prohibits the use of eminent domain if the property to be acquired will be transferred to private commercial enterprise and does not meet its definition of blight," Schuettler said.

"Senate Bill 881 may have the effect of keeping developers away from urban projects for fear of investing time and money in the planning stage only to lose the project because the land cannot be assembled," he added.

Piccola noted that Pennsylvania cities have had unrestricted use of eminent domain for decades, yet they have continued to decline.

Chris Houston, director of real estate development and general counsel for the Housing and Redevelopment Authority of Cumberland County, warned that the bill "will interfere with the planned redevelopment of communities throughout the commonwealth."

Herbert Wetzel, executive director of the Philadelphia Redevelopment Authority, said the bill would set too high a standard for an area to be considered blighted. "Why must we wait for a neighborhood to be completely overwhelmed?" he asked.

Cabell said later that some "tweaking" of the bill may be needed, but "I don't think there'll be any fundamental changes based on the hearing."

The Patriot-News: www.pennlive.com

City Invokes Eminent Domain To Claim Stadium Site: WJLA-TV — ABC-7 (Washington DC), 10/26/05

The D.C. government has filed court papers to seize $84 million worth of property in Southeast Washington, the site of a proposed Nationals baseball stadium.

The city has invoked eminent domain in an effort to keep construction of the ballpark on schedule to open in March 2008.

The property owners and their tenants now have 20 days to challenge the move in court and three months to vacate unless a judge declares the seizure unconstitutional.

If the court doesn't block the city's action, property owners can continue to negotiate with the city, but a jury would ultimately decide the sale prices.

City officials tell The Washington Post that they've agreed to buy land from seven owners, who were not named in the court filing.

The city had offered them a total of $13 million, but the final sale price is unknown.

WJLA: www.wjla.com

Eminent domain takes a hit: The Jersey (Jersey City NJ) Journal, 10/26/05

By Jarrett Renshaw

Hudson County residents are overwhelmingly against expanding government's ability to force people to sell their property, according to a recent poll by The Jersey Journal/New Jersey City University.

A recent U.S. Supreme Court ruling has eased restrictions on when governments can invoke the power of "eminent domain" and force owners to sell condemned properties at "fair market value." Now, instead of only allowing the practice when it benefits the public good - such as a school or highway - governments can use eminent domain in the name of housing developments, corporate headquarters and other private ventures.

Eminent domain was used in Jersey City and Weehawken to condemn waterfront properties to make way for the "Gold Coast" development of the 1980s.

More recently, the deed to the Golden Cicada, a tavern in Downtown Jersey City, was seized in July by the Jersey City Redevelopment Agency with the intention of turning it over to St. Peter's Prep, a private Catholic high school for boys. The school intends to demolish the tavern in order to add 7 yards to an adjacent athletic field.

And this month, the Bayonne City Council announced it was considering using its power of eminent domain to take title to a parcel at North Street off Avenue A that was previously approved for condo development, and instead put a "pee-wee" soccer field there.

When asked whether the government should be able to take private property as spelled out in the recent high court ruling, nearly 50 percent of the county's residents said no way, according to the poll.

Meanwhile, nearly 20 percent said yes, and another 14 percent said they didn't know.

Opposition against the ruling comes from every demographic group, but the strongest opposition comes from those making more than $75,000 a year - "perhaps because under eminent domain they would not earn what they believed was a fair market price for their property," according to the poll's supervisors and authors, Bruce Chadwick of the English department and Fran Moran of the political science department.

Although residents are against the taking of property in the name of corporations and developers, they aren't against eminent domain when it comes to its traditional usage to benefit the public good.

A plurality of respondents - 38 percent - said eminent domain should be used to favor schools. Roads followed at nearly 25 percent, then open space (17 percent). Just 8.9 percent of respondents said eminent domain should be used for more stores.

"This is certainly an interesting choice since new schools usually mean higher property taxes to pay for them. It may reflect increasing unhappiness with county schools, especially in the inner city," the poll's supervisors said.

The Jersey Journal www.nj.com