Eminent domain hot topic: Gwinnett (County GA) Daily Post, 11/13/05

By Dave Williams

The timing wasn't right during this year's General Assembly session for limiting eminent domain in Georgia.

But that was before the U.S. Supreme Court ruled in June that the city of New London, Conn., was legally justified in boosting its tax base by condemning the homes of longtime residents to make way for luxury housing, shops, a hotel and marina.

Now, egged on by property-rights advocates, lawmakers in Georgia and other states are lining up to limit governments' use of eminent domain to purposes that traditionally have been associated with the authority: roads, utility lines and public buildings.

And Georgia Senate Republicans also are working on a bill addressing a second property-rights issue, the loss of an owner's ability to use property as he or she chooses because of government regulations.

"The amount of backlash (since the Supreme Court decision) caught us by surprise," said Larry Morandi, director of the National Conference of State Legislatures' environment, energy and transportation program.

"The ability of private-property advocates to marshal their resources to get to the media with their arguments gave them the momentum they needed."

Georgia Sen. Jeff Chapman was an early convert. The freshman Republican from Brunswick introduced a bill aimed at eminent domain last winter, months before the Supreme Court ruling.

He said he became aware of the issue when he saw a TV news story about a tire dealer in another state whose store was condemned after he refused to sell it to his local government.

"It really stuck in my craw," Chapman said. "I think that was about the most unscrupulous thing I'd ever heard of."

Cities wary
Chapman's bill cleared the Senate easily enough, 40-10, but couldn't get through the House when opposition emerged from the Georgia Municipal Association.

The GMA, which represents city governments across the state, remains the chief opponent to Chapman's bill as a study committee on eminent domain that he is chairing makes its rounds of the state.

During the three meetings the panel has held thus far, the group has questioned whether it's possible to separate projects that serve the "public good," for which eminent domain has long been considered acceptable, and economic development that benefits mainly private businesses.

"How do you define 'economic development?'" asked GMA spokeswoman Amy Henderson. "Running sewer lines is going to improve economic development."

Henderson said that while cities use eminent domain sparingly, the threat of invoking it sometimes is the only way to get uncooperative property owners - particularly absentee landlords - to negotiate a fair sale.

But Chapman said threats are not a proper weapon for local governments to be wielding against property owners.

"The only people I want our government to threaten are terrorists and enemies," he said.

The Association County Commissioners of Georgia, GMA's counterpart for counties, appears to have found some middle ground with recommendations designed to make restrictions on eminent domain acceptable to local governments.

Limits suggested
The ACCG is suggesting that the power be restricted to elected officials, not authorities or other non-elected government boards, and that eminent domain be used only to get rid of blighted neighborhoods, not blighted properties.

Such a provision might have prevented a dispute involving the city of Stockbridge and a flower shop owner that's now in court.

"Henry County is the fourth-fastest growing county in the United States," said Shannon Goessling, executive director of the Southeastern Legal Foundation, which is representing the shop owner. "Under what circumstances could you describe the City of Stockbridge as economically distressed?"

While the ACCG is working toward a compromise on eminent domain, it is willing to go to the mat on behalf of county governments on the second property-rights bill pending in the Senate.

The measure, aimed at what is known as "inverse condemnation," would require that a property owner who cannot use the land as he or she sees fit because of a government regulation be compensated for that lost value.

It stems from a predicament faced by landowners near a planned reservoir in hilly Lumpkin County. A 150-foot stream-buffer requirement in effect there is preventing them from building on the only flat land they own.

Sen. Mitch Seabaugh, R-Sharpsburg, one of the bill's cosponsors, said that regulation is doing the same damage to them as eminent domain, only indirectly.

"Direct condemnation is clear cut, but some of the regulations that have been passed have reduced property values," he said. "The Constitution says if you take a person's property, you pay for it."

Ulterior motive
But Jim Grubiak, general counsel for the ACCG, said inverse condemnation laws are more about intimidating local governments into failing to carry out their duty to protect the public through their power to regulate.

Grubiak cited testimony from an Oregon property-rights advocate at a recent Senate study committee meeting. David Hunnicutt told the panel that of more than 2,000 inverse condemnation claims filed in Oregon since voters there passed the measure by referendum, not a single local government has made a payment.

"They simply rescinded their regulation," Grubiak said.

Since that Senate hearing, the Oregon law has been overturned by a court ruling. Morandi, the official with the National Conference of State Legislatures, said because of uncertainty over the outcome of the appeal in that case, he doesn't believe many states will take up inverse condemnation bills this winter.

But he predicted that the vast majority of the 44 state legislatures that go into session in January will address eminent domain, if for no other reason than congressional pressure.

The U.S. House passed a bill last week requiring states to place restrictions on eminent domain or face a loss of federal aid. While the bill is still pending in the Senate, the writing is on the wall.

"Even in Connecticut, they're likely to pass a law to somewhat restrict eminent domain," Morandi said.

Gwinnett Daily Post: www.gwinnettdailypost.com

Eminent domain authority questioned: Kinston (NC) Free Press, 11/13/05

BY Barry Smith

State lawmakers next year could be asked to approve a state law or an amendment to the N.C. Constitution that would protect property owners from condemnation for economic development purposes.

The head of an organization representing North Carolina's cities and towns believes such a move would be unnecessary.

The effort arises out of a decision by the U.S. Supreme Court earlier this year which allowed the city of New London, Conn., to use its eminent domain powers to take houses in a neighborhood to use for economic development.

"We're researching the issue and we are looking at what other states are doing," said Rick Zechini, director of regulatory affairs for the N.C. Association of Realtors.

Ellis Hankins, executive director of the N.C. League of Municipalities, said that cities and towns across the state haven't asked for and don't want the power to condemn property for economic development.

"State law does not authorize cities and counties to do what New London, Conn., did," Hankins said. "In our opinion, there is nothing in North Carolina that needs to be fixed."

Eminent domain allows government to take private property for public use, provided the government pays the property owner just compensation.

Gerry Cohen, who heads bill drafting for the N.C. General Assembly, said that state law does not provide any general authority for local governments to use their power of eminent domain for development purposes.

Steve Rose, a staff attorney at the General Assembly, said that the Kelo decision, as it's known, probably would not stand in North Carolina.

"At this point, it's hard to imagine a city trying to use Kelo," Rose said.

Rose said the only thing that state law allows that even comes close to the Kelo decision is a provision that allows governments to take property in blighted areas for redevelopment.

"Typically, nobody much cares if you get in there and knock down a slum," Rose said.

Rose noted that such laws have been on the books in North Carolina for about 30 years.

And, Rose said, there are about 400 local acts that deal with eminent domain, which have yet to be fully researched.

Zechini said that Realtors and other property rights groups might want to get out ahead on the issue and make it crystal clear to prevent the use of eminent domain for economic development.

"The only way to really prevent it is to get a constitutional amendment," he said.

Constitutional amendments require a three-fifth's majority of both chambers of the General Assembly and must then be ratified by the voters in a referendum.

Hankins said he hopes that lawmakers won't approve such a constitutional amendment for fear that it might be too broad.

"It could be more restrictive than the law already is," Hankins said.

Rose said that the Supreme Court's ruling was not a good one.

"It was a lousy decision," he said.

Public purposes generally refer to things used by the public, such as public buildings, schools, roads and water and sewer infrastructure.

"Boy, this does stretch the imagination," he said.

Kinston Free Press: www.kinston.com

Judge dismisses suit on redevelopment plan: Philadelphia (PA) Inquirer, 11/11/05

By Jeff Price

A federal judge has dismissed a community group's challenge to Lower Merion Township's redevelopment plan for Ardmore, a project especially controversial because it threatens to demolish 10 buildings in the historic district.

U.S. District Court Judge Berle Schiller ruled Wednesday that the Save Ardmore Coalition's lawsuit was premature because the township hasn't finalized the plan.

Coalition attorney Robert Sugarman said yesterday that it may not be necessary to go back to court because of "the situation that will be in place in January."

He was referring to Tuesday's election, in which voters picked seven commissioners for the 14-member township Board of Commissioners, only one of whom supported the redevelopment plan - known as Option B - primarily because it could allow property to be taken by eminent domain.

Matthew Comisky, board president, said the election might not have any impact on the current board's effort to "move the process forward." He stressed that the taking of property through eminent domain is not a done deal.

"Some people in the election had indicated that decisions have already been made, and they haven't," he said. Option B's purpose "is to get some creativity and other ideas as to how to continue revitalization."

John Summers, the township's attorney, said the lawsuit has not had an impact on the redevelopment process.

In fact, on the night of Schiller's ruling, consultants explained to a public township planning meeting how an environmental impact statement for a transit center will be drawn up. Its main element will be a new train station. Afterward, residents were able to talk to consultants and submit written comments.

Although the township billed the evening as a chance for public participation, Sugarman said that "no participation was allowed, no information of substance was released, no documents were made available. They didn't even have a definition of the project boundary."

Sugarman said the judge had stressed in his ruling "the importance of meaningful public participation in the continuing planning."

Given the election results, Sugarman said the township should "stop spending money" on the review process.

However, the township will continue to move forward, Comisky said. A request for proposal, a major step in the development process, should be ready for public comment "sometime in December," he said, and ready "to go out to the development world at the end of the first quarter of next year."

Philadelphia Inquirer: www.philly.com/mld/inquirer

Backlash to ruling on eminent domain: Philadelphia (PA) Inquirer, 11/14/05

By Diane Mastrull

The words eminent domain have been throwing a fright into property owners for more than half a century, but never more so than in the last six months.

Setting off the nationwide panic attack was a U.S. Supreme Court decision in June that expanded the concept well beyond its usual bounds. The justices ruled that a Connecticut city could force the sale of homes and businesses in a neighborhood not deemed blighted, to make way for private economic development.

Predictions of wanton land grabs by local governments rumbled across the country.

The eminent-domain juggernaut, though, has not materialized. What has occurred is a stampede of lawmakers in Congress and more than 30 states to prohibit the kind of property seizures the high court allowed in Connecticut. Within a week of the ruling, a bill reining in the use of eminent domain passed in Delaware. Five are pending in New Jersey and four in Pennsylvania, where one could come up for a Senate vote as early as tomorrow.

The legislatures are piling through a door that the justices themselves opened. The majority opinion in Kelo v. the City of New London noted that nothing in their ruling "precludes any state from placing further restrictions on its exercise of the takings power."

In no time, bills to do just that were popping out of politicians' printers.

Legislation to safeguard property rights would seem a sure-fire crowd pleaser. And it has been in places such as Ardmore on the Main Line, where a coalition of residents and small-business owners has been fighting off an eminent-domain threat for two years.

But the bills also have taken a drubbing, especially by redevelopment advocates, who call them "knee-jerk." They warn that the limitations on eminent domain would be so tight, and the process of condemning the most blighted properties so onerous, that hundreds of cities and struggling older communities might never be revitalized.

Eminent domain "is a very, very important revitalization tool," said Herbert Wetzel, executive director of the Philadelphia Redevelopment Authority. Without it, he said, more than 7,300 affordable housing units built in the city since 1992 would not exist.

On Wednesday, Wetzel spent four hours in Harrisburg lobbying for compromise language in the bill about to come before the Senate. Under the proposal written by Sen. Jeffrey Piccola (R., Dauphin), property could not be seized unless it met a considerably narrowed definition of "blight." With few exceptions, eminent domain also could not be invoked to clear the way for private commercial enterprises - hotels, office complexes, shopping malls - even if they generated jobs and tax revenue.

The Kelo ruling "made people sit up and take notice and start to realize that in the face of activist courts and local government, private property rights might very well be threatened," said Piccola, whose district includes Harrisburg.

He and like-minded lawmakers have heard pleas for caution from a variety of land-use and redevelopment-advocacy groups such as 10,000 Friends of Pennsylvania, which is urging more study of eminent domain in the state before any bill is put to a vote.

Late last week, Gov. Rendell's office weighed in with a five-page letter of suggested adjustments to Piccola's proposal, to "strike the right balance between the rights of homeowners ... and the critical needs of Pennsylvania's communities to revitalize."

Also calling for changes, a legislator who had been on Piccola's list of sponsors removed her name from the bill.

"It's not time to move this yet without more thought so we do it right," said Sen. Connie Williams (D., Montgomery/Delaware). Her district includes Norristown, where one of the region's largest revitalization projects is just starting up.

But some speed is appropriate, Piccola said, when the matter at hand is taking "private property from one person and giving it to another."

"This issue," he said, "is ripe."

It is less so in New Jersey, but only because the state has been consumed with a governor's race and assembly contests.

The eminent domain bills there have gotten scant attention, but that is likely to change in the new year. Some would prohibit the condemnation of any property that meets local health, safety and building codes. Others would amend the state constitution so eminent domain could be used only for "public purposes" such as schools, roads and parks, not for economic development.

In its Kelo ruling, the Supreme Court found nothing unconstitutional about New London's use of eminent domain to force property owners to sell (at fair market value) in order to accommodate offices, a hotel and new residences - a project expected to create more than 1,000 jobs and increase tax revenues in the distressed city.

For the first time, economic development qualified as "public use," which under the Fifth Amendment of the U.S. Constitution is the sole reason for acquiring property by condemnation, said lawyer David Snyder, an eminent-domain expert in Philadelphia.

Reflecting the contentiousness of the issue, the justices split 5-4 in Kelo. In her dissenting opinion, Sandra Day O'Connor wrote that "all private property is now vulnerable to being taken and transferred to another private owner."

Thus, the stage was set for the legislative frenzy.

For redevelopment advocates, the most worrisome bill is not to be found in any statehouse but in Congress. The Property Rights Protection Act of 2005 would bar any state or local government that receives federal economic-development money from using eminent domain for economic development. Violators would have that funding withheld for two years.

After sailing through the House early this month, the proposal awaits Senate action. President Bush has endorsed it.

In an alert sent to its 20,000 members, the National Association of Housing and Redevelopment Officials warned, "If signed into law, the [act] would have a devastating impact on state and local governments' ability to pursue meaningful community revitalization."

Scott Mahan doesn't want to get in the way of revitalization, but neither does he want to lose his office supply store on Lancaster Avenue in Ardmore, a business founded 80 years ago by his grandfather.

Lower Merion Township's renewal plan for the downtown historic district could involve the condemnation, through eminent domain, of his building and nine others. So late last month, Mahan went to Harrisburg to testify for Piccola's bill.

If any good came of the Kelo ruling, he said, it is the creation of a "groundswell of opposition" to eminent domain.

"People are afraid of losing their property," he said. "They're demanding that their state and local governments offer them the protection they deserve."

Philadelphia Inquirer: www.philly.com

Eminent domain isn't working for city's residents: (Camden NJ) Courier-Post, 11/13/05


By Olga Pomar

Ambitious redevelopment plans are being pushed forward for neighborhoods throughout Camden. Several of these plans propose acquisition and demolition of thousands of occupied homes through the use of eminent domain, the power of the government to purchase property for a "public use" without the owner's consent. The plans then call for construction of thousands of new housing units, mostly upscale homes.

Frantic residents have called South Jersey Legal Services asking what it means to be in a redevelopment area or to have their house on the acquisition list.

It was painful to explain the redevelopment laws to an 82-year-old woman who insists the city can't take her home because she has owned it for more than 50 years, has kept it in decent shape and has paid her taxes.

Nor was it easy to inform a young father who just moved into a house he inherited from his grandfather that the city plans to knock it down.

SJLS has brought lawsuits challenging some of these redevelopment plans on behalf of community organizations and more than 300 residents. We seek to protect the rights of the most vulnerable of these residents — the low-income, senior citizens and the disabled.

Given skyrocketing housing prices and the shortage of subsidized units, these people are at great risk of becoming homeless or living in overcrowded, unsafe and unaffordable housing.

Many would welcome a program of neighborhood improvement that involves them in the planning process, builds on existing assets and ensures they will be able to remain and enjoy the improved community. They fear these ambitious redevelopment plans, however, were designed with someone else's interests in mind.

Residents of a redevelopment area have legitimate cause for concern because municipalities enjoy expansive powers under current redevelopment laws, while residents are afforded few rights and guaranteed only meager compensation. Once a redevelopment plan is properly adopted, a municipality can enter into agreements to turn land over to private developers without public bidding and with minimal public oversight. And it can acquire properties within the redevelopment area through eminent domain to effectuate these agreements.

The municipality can take title to a property by eminent domain and evict the resident in less than two months. The municipality must pay an owner only the fair-market value of the property in its current condition. Relocation laws provide that an owner also receive moving costs and an amount up to $15,000 for the purchase of a replacement home, which is usually not enough to purchase another property in the region. Renters who are displaced receive moving costs and up to $4,000 to cover a security deposit and a rent increase for a period up to four years, which covers an increase of about $100 per month.

Relocation laws do not require a municipality to create replacement units or guarantee housing will be available to the displaced household within the municipality.

Local governments often give assurances they will do more than what is legally required, making promises to build adequate affordable replacement housing to ensure residents can remain in their community. The problem is that if these promises fail to materialize, residents have little recourse.

Given these seemingly unchecked powers, it is not surprising that local governments used eminent domain in a destructive manner, destroying viable communities and wreaking havoc.

We should learn from the experience of urban renewal projects of past decades, when some 400,000 homes, primarily in African-American and low-income neighborhoods, were destroyed, while less than 11,000 public housing units were built as replacement units.

Yet new redevelopment initiatives in Camden, designed to eventually designate the entire city as a redevelopment zone, and calling for acquisition and demolition of at least 2,000 occupied homes, bear eerie similarities to the redevelopment proposals of the 1950s and '60s.

The discussion about what should be done is just heating up in New Jersey, and what happens in Camden should be a central issue in that debate.

Courier-Post: www.courierpostonline.com

Olga Pomar is an attorney at South Jersey Legal Services and is representing low-income Camden residents in several lawsuits challenging certain redevelopment plans recently adopted by Camden City.