Newport still using eminent domain: Cincinnati (OH) Enquirer, 12/23/05

By Ryan Clark

After a second appearance before the Newport City Commission, Raymond Butts may have caused some change in the minds of city commissioners.

Butts came before the commission in November imploring it to pass legislation to prohibit the use, or the threat of using, eminent domain to obtain property for city projects.

The commission declined, saying it would be too difficult and would limit the ability of the city to grow through development.

But a month later, when Butts again asked the commission to consider the issue, he brought an example of how the city of Bowling Green, Ky., passed such a law.

Butts, who lives on Joyce Avenue and ran for City Commission in 2002, produced a copy of a Bowling Green ordinance that specified the city would not use eminent domain, or any "threat thereof," unless it pertained to city projects.

Butts said it proved that such an ordinance could be written and passed. And an ordinance could deter developers from threatening to use eminent domain to convince property owners to sell their land, he said.

Still, commissioners declined to take a step toward drafting an ordinance.

"When you make those kinds of decisions, it makes it very difficult to make change," Newport Mayor Tom Guidugli said.

But Guidugli did say he would try to get eminent domain laws changed at the state level.

"I'm going to work with legislators to make sure it's clear and clean and that it's not abused," Guidugli said.

Guidugli said there have been two projects for which the city has used eminent domain: some properties for the development of Newport on the Levee and for land in the Cote Brilliante neighborhood, which has not been developed.

Commissioners previously said there are no current projects for which eminent domain would be used. Butts countered that the city should be able to pass an ordinance saying it would not use eminent domain.

Still, Guidugli said passing an ordinance would limit the city if a future project was devised that required eminent domain.

Guidugli pointed to the good that can come from development.

"Without eminent domain, (Newport on the Levee) would have never happened," he said.

Cincinnati Enquirer: http://news.enquirer.com


Senator wants eminent domain reform on ballot: Sacramento (CA) Bee, 12/22/05

By Daniel Weintraub

California conservatives are forever searching for the next Proposition 13, the property-tax-cutting initiative that tapped into a deep, bipartisan disgust with government in 1978 and ushered in an era of tax reductions and spending limits that ultimately helped pave the way for Ronald Reagan to win the presidency.

Have they found it in eminent domain? That long-standing policy, enshrined in the U.S. Constitution and state laws, allows the government to force the sale of private property for public use as long as it pays the owner fair market value in return.

The definition of "public use," once limited to highways, parks and the like, has evolved over the years to something more akin to "public purpose." Lately, the chief use of the power has been on behalf of economic development, with governments buying land considered blighted and then selling it to another private party to transform into other, more productive uses.

Decades of policy creep that slowly expanded the reach of eminent domain troubled some who followed the issue closely, but never excited the public much. Now that may be changing. Last summer's U.S. Supreme Court decision in the Kelo case has ignited a rebellion across the country that will likely play out here next year.

In Kelo, a case involving a Connecticut woman whose house was the object of the city of New London's desire, the court ruled that it was legal to take one person's home and sell it to another if the proposed new use of the land would produce higher tax revenues for the government. Although legal experts said the case broke little new ground, as an emotional touchstone it was different, and it triggered a countermovement to roll back the power of eminent domain through legislation and state constitutional amendments.

Texas and Alabama were among the first to pass laws limiting the power of local government to take homes and businesses for private profit. Earlier this month, the Pennsylvania Senate, in a unanimous vote, passed the Property Rights Protection Act, which would prohibit the use of eminent domain for commercial development and tighten the definition of blight. Then, both houses of the Michigan Legislature passed a constitutional amendment that would prohibit the taking of private property for transfer to another private entity "for the purpose of economic development or enhancement of tax revenues."

In California, Sen. Tom McClintock, a libertarian-leaning Republican from Simi Valley, introduced a similar measure, SCA 15. That proposed constitutional amendment would allow government to use eminent domain only to take private property for public use and would require that the government agency that takes private property retain ownership of it or lease it to a private entity regulated by the Public Utilities Commission.

McClintock's bill stalled in the Legislature, where Democrats pushed an alternative that would adopt a two-year moratorium on the use of eminent domain to take owner-occupied residential property for transfer to a private use. During the moratorium, the state Library's California Research Bureau would conduct a study on the use of eminent domain in California.

But McClintock isn't going to wait around. He has submitted two versions of his proposal as a ballot initiative, and he intends to begin circulating one of them for signatures early in 2006. One version is almost identical to the measure he tried to move in the Legislature. The other is more sweeping and would also roll back the government's right to restrict a property's potential use, and thus its value, through regulation. McClintock seems to be leaning toward the narrower version.

"There is nothing that stirs the American heart more than a manifest abuse of power that creates an injustice," McClintock told me last week. "Taking one person's home or business to give it to another for personal gain is exactly such an abuse of power." McClintock's proposal could sharply limit the scope of redevelopment in California, forcing the agencies that do such work to deal only with willing sellers if they intend to transfer title of the land to another private party. And even in those cases where property owners are willing to sell their land, the kind of constitutional protection McClintock is talking about would probably drive up the price of property government agencies are seeking to acquire.

Still, McClintock believes his proposal has the potential to attract wide bipartisan support, at least outside the halls of the Legislature.

Advocates for the poor and for minorities have expressed interest in the issue here and elsewhere. Rep. Maxine Waters, a Democrat from Los Angeles, has been working with Republican Rep. Richard Pombo of Tracy on a set of federal reforms aimed at the issue.

"Homes aren't being seized in upscale Republican neighborhoods," McClintock said. "They're being seized in working-class neighborhoods. Major corporations aren't suffering from the seizure of their businesses. It's mom-and-pop shops that are being seized. This is the theft by the politically powerful of property owned by the politically weak. That strikes a chord among honest liberals."

If he's correct, eminent domain may prove to be as powerful a political issue as it has been as public policy.

Sacramento Bee: www.sacbee.com


Land dispute puts eminent domain laws under fire: Atlanta (GA) Journal-Constitution, 12/22/05

By Eric Stirgus

A Stockbridge landowner and his lawyers argued last week that the city's plan to use eminent domain guidelines to take his property violate the purpose of the law.

John Horvath testified in a condemnation hearing last Friday that his seven acres are no slum. City officials have said there are slum areas in Stockbridge, and its redevelopment plan, which encompasses Horvath's property, will revitalize those areas. A city-hired appraiser admitted during the hearing that Horvath's property was in good condition.

"The Horvath property and the surrounding property is not a slum," said Robert Remar, one of Horvath's attorneys.

The city is willing to pay $650,000 for the property, but Horvath is fighting the acquisition. A special master assigned to the case rejected Horvath's plea that the case be tossed out. The three-hour hearing ended without resolution and is scheduled to continue today.

Several property owners have contested the city's plan to redevelop 22 acres near North Henry Boulevard into a new City Hall, surrounded by homes and shops. They argue eminent domain should not be used for private development.

Some state lawmakers have jumped into the fray, saying they will pass legislation changing Georgia's eminent domain laws. State Rep. Steve Davis (R-McDonough) said he will file a bill requesting a 120-day statewide moratorium on all efforts to use eminent domain laws until revised guidelines are created.

"It gives us the time to work this out while protecting the citizens of Stockbridge," he said.

Stockbridge City Attorney A.J. "Buddy" Welch Jr. contends that most residents support the city's plan.

"What the city is doing will be a positive for the city of Stockbridge for the next 50 years," Welch said after last week's hearing. "It's an excellent plan."

Horvath and his attorneys are not convinced.

Horvath, an orthodontist, said he bought the property in 1990 to expand his practice. His property is the largest tract of land that the city wants for its plan. Under one set of plans presented at the hearing, multistory residential and commercial structures will be built on Horvath's property.

At the hearing, Horvath's attorneys argued that the city has proceeded without a clear vision for what it wants to do with the area, citing several plans they've seen. They argued Horvath should have the opportunity to develop his property, not the city.

Welch countered the complaints are "smoke screens" to gain public sympathy.

Horvath is the last property owner who has not either settled on a price for his land or concluded a condemnation proceeding. Three other property owners have said they will appeal condemnation decisions.

Atlanta Journal-Constitution: www.ajc.com

Eminent domain proposal favored in Assembly: Anchorage (AK) Daily News, 12/21/05

ASSEMBLY: Homeowners don't want private property taken for "leisure amenities."

By Richard Richtmyer

The Anchorage Assembly on Tuesday got a taste of opposition to the city's proposal to take private property by eminent domain to build a southern extension of the Tony Knowles Coastal Trail.

South Anchorage Assemblyman Chris Birch has proposed reining in the city's power to take property through eminent domain, forbidding it in instances when the planned public use is for "leisure amenities."

That includes parks, trails and pedestrian paths, greenbelts and a range of other uses that are defined in an ordinance on which the 11-member panel heard public testimony at their meeting late Tuesday night.

Birch's proposal remains on the table even though earlier Tuesday a committee that allocated federal funding for Anchorage transportation projects dropped the Coastal Trail extension from its project list. The panel, Anchorage Metropolitan Area Transportation Solutions, ditched plans to extend the Coastal Trail south and postponed until at least 2010 Mayor Mark Begich's plan for easing congestion at the Lake Otis Parkway-Tudor Road intersection.

Although the proposed Coastal Trail extension isn't mentioned specifically in Birch's proposal, it appears aimed at thwarting the use of eminent domain, which refers to the government's right to acquire private property at fair market value for public uses such as roads, bridges, hospitals and schools.

More than a dozen people lined up to give the Assembly their take on the idea. Most of them spoke out in favor of Birch's plan, and many of them own property that would be affected by the proposed route currently under consideration.

Begich estimates that the extension would need to cross about 80 parcels of private property, but he noted that not all of those pieces would need to be taken through eminent domain.

"Public use has a potential for misuse by special interest groups," said South Anchorage resident Mary Whitmore, who favored Birch's ordinance. "It sounds good, but somebody always wants something at somebody else's expense."

Jan Asserd, who said some of her land was taken through eminent domain when the original Coastal Trail went in, also urged the 11-member panel to adopt Birch's plan.

"Stop the insanity and support this," she said. "We don't have a socialist government."

The Assembly heard testimony from at least 17 people at its hearing Tuesday, which went late into the night. It did not debate or take action on Birch's proposal, however.

Some members suggested that the city wait until similar moves to rein in local government's eminent domain powers move through the state Legislature and Congress before taking action on Birch's plan.

Anchorage Daily News: www.adn.com

Eminent domain’s defenders go to work: Kansas City (KS) Star, 12/20/05

By Kevin Collison

Missouri opponents of eminent domain may open a second front, and the potential new challenge rattled the board of the Economic Development Corp. last week.

In a lengthy discussion of the difficulties that economic development agencies expect to face next year in the Missouri General Assembly — chiefly an assault on eminent domain and tax-increment financing — Spencer Thomson, a development attorney at Blackwell Sanders Peper Martin, tossed a new grenade.

“There is a movement to put before the public a referendum petition to see major curtailment of the use of eminent domain,” Thomson said. “It would be extremely detrimental.”

Thomson, who serves on Gov. Matt Blunt’s eminent-domain task force, said the Institute for Justice, a Washington-based Libertarian public-interest group, was behind the effort.

Kansas City economic development officials have lobbied state lawmakers to soften some of the proposed legislation that would change eminent-domain laws after the furor over last summer’s U.S. Supreme Court decision in Kelo vs. City of New London. The officials say they think they’ve had some success in convincing lawmakers that eminent domain is a vital economic development tool, but they were alarmed by the possibility raised by Thomson that the issue could bypass the legislature and go directly onto the ballot.

“We need a new dialogue with the public,” said Peter Yelorda, chairman of the Tax Increment Financing Commission. “The Institute for Justice is playing to fears that big government will take your property. They don’t understand the economic issues involved. … If it goes to the public, we’re in trouble.”

Scott Bullock, an attorney for the Institute for Justice, said his organization does not organize petition drives directly, but would support a local effort.

That local effort may be led by Missouri First, which supports a strict interpretation of the U.S. Constitution. The group’s Web site, www.mofirst.org, says the group is “dedicated to the sovereignty of Missourians.”

Ron Calzone, a director of Missouri First from Dixon, said his group was “strongly contemplating” a petition effort.

“The General Assembly is subject to politics, and a lot of people with special interests have less than the peoples’ interest in mind,” Calzone said. “This is a populist issue. … We think that whatever the General Assembly decides to do, the people will make sure something happens.”

Calzone said his group was not opposed to eminent domain for needs such as bridges, roads and other uses that are “genuinely publicly owned and used facilities.”

EDC board members said they think that if Missouri eliminates the use of eminent domain for development projects properly defined as being beneficial to the overall public, such as the downtown redevelopment under way, the state will suffer. “We will put ourselves at a tremendous disadvantage to other states,” said Gary Sage, chairman of the EDC’s legislative committee.

Kansas City Star: www.kansascity.com

Petition filed to reign in government right to eminent domain: The Oklahoman, 12/21/05

By The Associated Press

Government's use of eminent domain to obtain private property would be more limited in Oklahoma under an initiative petition filed with the Secretary of State's Office Tuesday.

Members of the citizens group Oklahomans in Action delivered nine boxes containing about 170,000 signatures in an attempt to force a statewide vote on the issue. The group needed 117,101 signatures to put the proposed statutory change in state law on the ballot.

The measure would prohibit state and local governments from condemning private property under eminent domain when it intends to transfer the property to a person, business or corporation for economic development.

Government could still use eminent domain to condemn private property for health and safety reasons, to build roads and bridges and other transportation systems and utilities.

Bruce Niemi of Tulsa, spokesman for the group, said the petition was a response to a U.S. Supreme Court decision in June that allowed the use of eminent domain in Connecticut to take property and give it to a private party for economic development.

The case, entitled Kelo v. City of New London, Conn., said the Constitution allows governments to condemn private property if its development would benefit an economically distressed city.

James Dunn, an Oklahoma City attorney who has represented private property owners in eminent domain issues, said Oklahoma law is different than Connecticut's but that the practice of eminent domain still is abused in the state.

"There's still not adequate protection for private property owners to not have to give up their land," said Dunn, a candidate for attorney general next year.

"People are very upset about the abuse of eminent domain. We've got to protect private citizens' property rights," Dunn said.

Supporters said they know of no organized opposition, but officials at a statewide business and industry group described the petition as a "knee-jerk" reaction to the Supreme Court's decision.

"We support keeping the current statutes as they are," said Ronn Cupp, vice president of The State Chamber. "People don't need to overreact on something in Oklahoma that's really not that big of a problem."

"We hate to see somebody take a knee-jerk kind of reaction," said Jim Mason, the Chamber's vice president of technology. Mason said the change in state law could impede economic growth.

In Oklahoma, eminent domain has been used for a variety of urban renewal projects where blighted areas were condemned to make way for private commercial or residential development, including the University of Oklahoma Health Sciences Center in Oklahoma City.

The petition was the second filed by Oklahomans in Action in as many days. The group, which believes in smaller government, submitted the so-called taxpayer bill of rights on Monday to put new limits on state government spending.

The Secretary of State will verify the number of signatures in each petition before forwarding them to the state Supreme Court, which will decide any protests or challenges.

The Oklahoman: http://newsok.com


Eminent domain clash peaking: Pioneer Press (St Paul MN), 12/18/05

Is road a 'land grab' or for public good?

By Mary Divine

A long-standing fight between Afton landowners over a proposed road comes to a head this week, when the City Council is set to decide whether to launch eminent domain proceedings to build it.

If the city votes Tuesday to go forward and ends up acquiring 1.5 acres of land to build a north-south extension of 45th Street, it would be a first for this small St. Croix River Valley community, officials say.

Boris Popov needs the road to build on vacant land he owns on the bluff above the river. He owns more than 12 acres, but only the lower portion can be reached by road. Popov, who lives nearby in Afton, claims the lower section can't be built upon because of its steep slope; he wants the city to build a road on the bluff from 45th Street to the upper section of his and a nearby parcel.

"It's an ugly scenario, and it's an unfortunate scenario," he said. "But what is worse than taking the land by eminent domain is to deny a citizen the right to use their land."

Mark and Kathy Dahl own two of the three parcels south of Popov's property and oppose the road. Under the city's plan, they would lose about 1 acre on the western edge of their 20-acre plot for the road.

"It's a land grab," said Mark Dahl. "I'm staggered that the city can take someone's land against their will. The fundamental question is, where does it end? Can they take an inch, a half mile or mile?"

Dahl is a surgeon, but he and his wife are also accomplished artists — he is a sculptor and she paints. They bought their land overlooking the St. Croix five years ago so they would have a quiet place to pursue their passion.

"I looked for four years for a property where I could stand in the middle of it and not hear cars," said Kathy Dahl. "We've worked all our lives to have 20 acres and not hear traffic. We don't want a road there, and we don't think it's right to have one citizen of Afton being favored over another citizen of Afton."

Mark Dahl said it is wrong for the city to use eminent domain to acquire property for what he called a private use.

"Why should (Popov) get a second access point when the public is not served by this?" Dahl asked. "The only purpose of this road is to give him more lots, and that's not a legitimate reason to take privacy away from another citizen."

Popov said other nearby landowners also would benefit from the road, which would run about 1,000 feet.

Afton Mayor Dave Engstrom says the city has the power to acquire the land and sees a public purpose to the road.

"We have to grant reasonable access to (Popov's) property," Engstrom said. "The buildable part of the lot is on the top of the hill where he doesn't have access. I would not vote on the variances needed to build where he does have access because of the steepness (of the land)."

The Dahls and Philip and Margaret Thuma, who would lose some of their 9 undeveloped acres for the road, also are challenging the city's claim that the road to Popov's property would follow the path of what the City Council has declared an abandoned roadway.

The Dahls and the Thumas claim that road is simply an old driveway that never reached Popov's land. The Dahls lost a district court case on that issue after a judge ruled it was up to the City Council to decide the matter, but they have since appealed.

Margaret Thuma said the lower part of Popov's acreage could be developed if the proper variances were granted.

"There is no public use served by this road," she said. "Rather, this is a private convenience being provided to one individual. We're going to fight this, and we're not going to grant them access through our property at all."

Engstrom expects the City Council on Tuesday night will authorize staff to proceed with a petition for eminent domain. The first step will be for the city to try to reach a settlement with the landowners.

The mayor said property owners would be paid for any land acquired for the roadway, while "benefiting landowners" will be assessed some of the cost of the road's construction.

City officials have yet to decide who would be declared a "benefiting landowner." That decision will follow appraisals that should be finished in February and would be the basis of purchase offers made to the Thumas and the Dahls.

They would then have up to 60 days to review the offers or have their own appraisals done. If they decide not to accept, the City Council would need to vote again — probably sometime next spring — to take the land through eminent domain. The couples would still be paid for the land in that event.

The Thumas and the Dahls say they would not benefit from the road and should not be assessed any portion of its estimated $225,000 cost.

If Afton does pursue it, the city will be among a small percentage of Minnesota municipalities to have done so. In the last 6½ years, only about one in six Minnesota cities has used eminent domain, according to a survey by the League of Minnesota Cities.

"We know it is often controversial because it is a very awesome power," said Eric Willette, manager of policy analysis for the league. "Cities have to take the power seriously, and it can't be done on a whim. The interest of (a) private property owner has to be placed second to the public good."

The issue has been on the front burner this year following the U.S. Supreme Court ruling that New London, Conn., could seize private property through eminent domain to make way for new private development.

Engstrom said eminent domain has gotten a bad rap lately because of that decision.
"This is not taking from a private party and giving it to a private developer," he said. "This is compensating (landowners) for a strip of land for public use, which is a road. This is a public road for public use."

Pioneer Press: www.twincities.com


Oklahoma Group Urges Citizen Action Against Eminent Domain Threat: Agape Press, 12/16/05

By Allie Martin

A petition drive that seeks to prevent any government official from condemning and then seizing private property in Oklahoma for economic development under eminent domain laws is now in its final days in that state.

This past June the U.S. Supreme Court ruled in the case of Kelo v. New London that government can seize property and transfer it to another private owner if the change in ownership is for the "public good." However, a group called Oklahomans in Action plans to turn in a petition on Monday that would allow the voters in their state to decide the fate of an initiative that would protect Oklahoma residents' property rights.

Pat Highland, one of the people helping to coordinate the Oklahomans in Action petition drive, calls the Kelo v. New London ruling "a frightening expansion of government power." She says people are being asked to sign the petition so "we can stop this in its tracks in Oklahoma. Our state is one of the first that is dealing with this issue since the Kelo decision nationally."

That landmark court case pitted the city of New London, Connecticut, against Susette Kelo, who fought the city for years to keep her home from being seized to make room for a major commercial development. Critics of the decision in that eminent domain case note that it leaves individuals, churches, and other private property owners vulnerable to commercial interests.

Fighting Kelo is important, Highland explains, because private homes and churches generally do not produce a tax revenue. That means government can now legally seize their land pretty much whenever "any developer ... decides they want to come in and take that corner spot and that it's for the 'public good,'" she says.

"This is not the definition of eminent domain," the citizen activist asserts. "This about power and greed that can just come in and say, 'Okay, we want your home, we want your church,' and we really don't own our property, so to speak."

Oklahomans in Action must turn in its petition Monday. Members of the group are also gathering signatures for another petition, which supports asking voters to adopt a plan similar to Colorado's taxpayer bill of rights, or TABOR.

Agape Press: http://headlines.agapepress.org

No eminent domain? Reinforce the promise: Palm Beach (FL) Post, 12/17/05


Today's first of several workshops of the Riviera Beach City Council, meeting as the Community Redevelopment Agency board, should confirm what members have pledged all along: They do not intend to use eminent domain to accomplish the city's downtown waterfront redevelopment.

CRA Director Floyd Johnson says he welcomes the opportunity to dispel rumors.

"We in Florida," he said, "are distinctly different in our ability to exercise eminent domain from what the Supreme Court approved in New London, Connecticut. We are required to demonstrate slum and blight before eminent domain can be entertained. It can't be just for economic reasons, and people have blurred that line between Connecticut and Florida."

That's important because residents such as Martha Babson have challenged the state-required blight study. "We paid hundreds of thousands of dollars for our study," says City Council and CRA Chairwoman Elizabeth Wade. "If it is flawed, the state's process is flawed." Although the study's coauthor acknowledges that every individual building in the undeniably blighted area need not be blighted, however, the Legislature is looking into cleaning up some of its criteria.

Ms. Babson is hardly the face of the redevelopment challenge in the predominantly African-American city. Why thousands more should be denied benefits so she and others can continue living comfortably near the waterfront is the redevelopment plan's politically incorrect question.

But Ms. Wade is correct that relocated residents and businesses "have to be made whole. Every consideration has to be given, and the city has already done what people are now telling the Legislature we have got to do. We have had a relocation package in place since Skypass," the port bridge which she says required no eminent domain.

It is encouraging that Mr. Johnson promises to update the board on how in the two months since being selected as developer, Viking Inlet Harbor Properties has reduced the number of properties needed by quietly amassing them. "We don't want to throw out the Babsons to make room for the rich. We're trying to use the assets we have to accomplish the greater good, and we hope to stay focused on that while being sensitive."

The lay board's infighting and lack of financial acumen have caused delay, thus keeping too many in limbo for too long. Potentially project-busting property prices, meanwhile, have risen. If eminent domain isn't to be an issue, Riviera officials' rosy vision needs to move toward redevelopment reality.

Palm Beach Post: www.palmbeachpost.com

Berks using eminent domain to take over disputed property: Pottstown (PA) Mercury, 12/16/2005

By Sharon Spohn

Berks County played its "trump card" Thursday and filed a petition in county court to take the Antietam Lake property by eminent domain.

The property has been the subject of much controversy after the Reading City Council voted 4-3 to sign an option to buy agreement with M.B. Investments. The lake once served as a reservoir for Reading and the area is presently used for passive public recreation.

The county commissioners voted unanimously Thursday to file the petition.

"I was probably the one least interested all along in filing eminent domain," said Commissioner Judy Schwank. "My hope is when the new council is seated in January, we can withdraw this and move forward."

Commissioner Mark Scott said the action takes the county to higher ground and gives it a position of strength.

"It’s a trump card that should have been played a long time ago," Scott said. "It has the ability to clear the decks of all parties and assures the city gets fair compensation."

Commissioner Thomas Gajewski Sr. had some concerns about wording in the eminent domain paperwork that said public baths may be one of the things the county can construct on the property.

"I doubt anyone would want to create a public bath anywhere," Gajewski said.

Scott said the document was created by professional attorneys the county hired to make sure it has the maximum effectiveness.

"My concern has always been the cost — the final cost of the property," Schwank said.

Berks County offered $4 million for the property and plans to add it to the county park system.

M.B. Investments offered $2.5 million for half interest in the property with the city with a promise to preserve it for 20 years. After that time, M.B. Investments and the city would jointly decide what to do with the land.

"Let’s not forget this property has increased in value considerably," Scott said. "By doing this now we can freeze a point in time, the appreciation."

The county has a 60-day revocation period where it can halt the eminent domain process.

"Let’s hope we begin the new year with the acquisition of this property," Schwank said.

Pottstown Mercury: www.pottstownmercury.com

Is Ardmore eminent domain battle over? Main Line Times (Ardmore PA), 12/15/2005

By Cheryl Allison

Could the eminent domain fight in Ardmore be over? There were signs this week it might just be.

While most followers of Pennsylvania's new eminent domain law effort were taking a cautiously optimistic view of the effect last week's unanimous Senate vote to pass SB 881 might have on the Ardmore situation, one person was ready to say it flat out.

That person was Lower Merion Board of Commissioners President Matt Comisky.

The eminent domain bill, if it becomes law as expected, "will completely change what we can do in Ardmore," Comisky said. "It will limit what our flexibility is."

While Comisky has been a supporter of the controversial redevelopment plan known as Option B, he has consistently pointed out that it never dictated that eminent domain would be used to take several businesses on Lancaster Avenue.

However, he was clear that under the provisions of SB 881, it would not be an option. The bill prohibits taking of private property and transferring it to another private owner for the purpose of economic development. (Exceptions were added late in the debate last week for the cities of Philadelphia and Pittsburgh, and for Delaware County.) The bill, written by Senate Majority Whip Jeffrey Piccola (R-Dauphin), still has to go back to the House, which passed a stronger version in November by a vote of 172-25. It also has to go to Gov. Ed Rendell for his signature. But observers were confident, based on the Senate vote, there are enough votes for an override, even if he should veto it. State Sen. Connie Williams, whose 17th District includes Lower Merion, initially co-sponsored Piccola's bill, then withdrew her sponsorship. She wasn't convinced it would help communities like Norristown, also in her district, in need of redevelopment. Piccola had initially been reluctant to accept amendments to the bill, she said.

Williams voted in favor of the bill last week. "After all that, there was a lot of negotiation. I think we came out with a pretty good bill. It protects Ardmore," she said, but still provides for the use of eminent domain in some cases under a new, stricter definition of blight.

Williams said she expected action on a House version to come fairly quickly, and that it could go to Rendell and be signed "before the end of the year." Because of issues such as the legislative pay raise, "People want to get things done," she said, describing the mood in Harrisburg. The law would take effect 120 days after it is signed.

Comisky said, even with that gap, the Lower Merion board - five new members of which will be seated in January - is "not going to try to rush this" to beat a new law. "There's no possibility," he said. The township still must complete a required environmental assessment for the proposed new Ardmore train station, and it still has not finished writing a request for proposals from developers. That RFP won't go out until at least February or March. A new law "will clearly change the RFP," Comisky said. "Many of the projects [in the plan] will still continue," such as the train station and new parking, he said. "It will be a question of where and how we build it."

Can the township still come up with a successful plan to revitalize Ardmore? Comisky was asked. "I think we have to," he answered. "I view it as an alternative in our plan. We have to move forward."

Sharon Eckstein, president of the Save Ardmore Coalition, which has opposed eminent domain as a part of Ardmore redevelopment, said she is "very pleased and very heartened" by the Senate vote. She noted it was a bi-partisan vote that shows the issue "resonates with people and with our elected officials. ... I'm confident the House and Senate will reach together a bill that will protect Pennsylvania residents from eminent domain abuse."

Without having heard Comisky's comments, Ardmore business owner Scott Mahan, whose Suburban Office Equipment has been among the targeted properties, said that given SB 881's success, "It would make sense to take eminent domain off the table now and not slow down the progress of moving a better plan forward."

That would "channel the energy of SAC and its supporters toward advancing a plan that all could live with," he said.

Main Line Times: www.zwire.com

Officials — Eminent domain initiative likely in Missouri: Kansas City (KS) Business Journal, 12/16/05

By Jim Davis

Missouri voters probably will see an initiative next year on eminent domain, according to a presentation the Economic Development Corp. of Kansas City's board heard Friday.

Spencer Thomson, a member of a state-appointed task force on eminent domain, said the property rights issue has become inflammatory. Property rights advocates, led by the Institute for Justice in Washington, are "exaggerating facts" and "playing to emotions," Thomson said.

Thomson, a lawyer at Blackwell Sanders Peper Martin LLP in Kansas City, said the institute has targeted Missouri. He predicted that a ballot measure on eminent domain could be slotted in August or November.

The issue came to the forefront in June, when the U.S. Supreme Court ruled that the city of New London, Conn., was entitled to take homeowners' property for an office, hotel and convention center complex. Since then, Thomson said, public opinion has galvanized against eminent domain.

Greg Williams, an aide to Kansas City Mayor Kay Barnes, said he's confident the General Assembly won't take draconian action in 2006 after receiving the task force's recommendations.

EDC board member Peter Yelorda said that lobbying needs to extend to labor unions, construction companies and other groups that sway public opinion.

"We can't win this with the dialogue we usually have," said Yelorda, who also chairs the Tax Increment Financing Commission of Kansas City. "We need to have the public understand our position."

Eminent domain regularly enters the TIF Commission's purview, Yelorda said. On Wednesday, property owner Old Republic Title Co. urged the commission to prevent the Power & Light Building's owner from using eminent domain because Old Republic wanted more money than the building owner had offered. The commission didn't accept the argument and voted to let the redevelopment proceed.

Gary Sage, chairman of the EDC's legislative committee, said he expects unprecedented heat next year in Jefferson City on eminent domain and tax increment financing.

"This spring will be the most dramatic shift in economic development priorities in the last 20 years," Sage said.

Kansas City Business Journal: http://kansascity.bizjournals.com

State constitutional amendment on eminent domain to be on 2006 ballot: Craine's Detroit (MI) Business, 12/14/05

would strengthen private-property rights

By Amy Lane

A constitutional amendment designed to strengthen private-property owners’ rights will go before Michigan voters in 2006, in the wake of legislative passage on Tuesday.

Senate Joint Resolution E, if approved by voters, would insert new language into Michigan’s Constitution that would make it more difficult for governments to condemn blighted property.

The measure increases governments’ burden of proof to show why the condemnation is needed, and it creates a higher test of public use that governments must meet in using eminent domain to remove blight.

Governments condemning private property would have to demonstrate by “clear and convincing evidence” that the taking is for a public use. That’s a higher standard than the “preponderance” of evidence required for a general condemnation of private property.

Such groups as the Michigan Municipal League have said the language would stifle redevelopment efforts and make it “prohibitive” for municipalities to use eminent domain in attempts to clear blighted property.

But supporters say it’s appropriate that governments must meet a high standard when taking private property to eradicate blight. Patrick Wright, senior legal analyst at the Mackinac Center for Public Policy, said in a news release that the constitutional amendment “would significantly strengthen private-property rights in Michigan.”

Among other things, the amendment will require “that when government officials base a taking on ‘blight,’ they provide clear and convincing proof of blight on a property-by-property basis, thereby preventing them from casually condemning entire neighborhoods,” he said.

The amendment would also require any entity taking residential property to pay the home owner at least 125 percent of the property’s market value.

Spurring the legislative action is the June U.S. Supreme Court decision in an eminent-domain case from New London, Conn.

In that case, Kelo v. New London, the U.S. Supreme Court said economic development was a legitimate government reason to invoke eminent domain, but states can set their own restrictions on condemnation that give greater protection to property owners.

The court cited Michigan’s 2004 Wayne County v. Hathcock ruling as an example of how states can set stricter standards on takings. Property-rights supporters say further restrictions are needed.

Craine's Detroit Business: www.crainsdetroit.com

Barnitz to sponsor eminent domain legislation: Rolla (MO) Daily News, 12/13/05

By Janese Heavin

Sen. Frank Barnitz plans to sponsor eminent domain legislation and to oppose the governor’s 65 percent plan in the upcoming legislative session.

Barnitz’s bill would allow eminent domain to be used for public infrastructure like roads or utilities but would prohibit the use of eminent domain for economic purposes. It would also redefine how an area is deemed “blighted” and would include a penalty provision for public entities that do not offer a fair price.

Barnitz expects his to be one of numerous eminent domain bills proposed this session.

“Everybody wants to get on the bandwagon,” he said. “There’s no doubt there’s been abuse of eminent domain the past.”

Barnitz said he is 99 percent sure that eminent domain legislation will be approved in the coming year, but he is not sure what the final version of a bill will look like.

Developers testified during Gov. Matt Blunt’s eminent domain task force meetings, touting the benefits of economic development and the need for eminent domain to make those projects a reality. Blunt and the Republican majority have been sympathetic to businesses in the past and have made economic growth a top state priority.

“It’s questionable how strong an eminent domain law will become because of strong issues and interests surrounding the Republican Party,” Barnitz said.

Rolla Daily News: www.therolladailynews.com


Eminent Domain to Benefit Slots: Buffalo (NY) Pundit, 12/12/05

By Jack Davis

Our ne’er-do-well governor and our inept state legislature, with its typical noblesse-oblige way of dealing with Western and Upstate New York, decided that the best thing in the whole wide world to revitalize our moribund economy would be casinos. Indian casinos.

The New York State constitution prohibits Vegas-style gambling (although, apparently somehow Keno, Lotto, MegaMillions, Racetracks, OTB, and video racinos are hunky-dory). Federal law, however, trumps State Law, so we can’t prohibit a federally recognized Indian tribe from setting up casinos pursuant to a compact with the State.

Pataki executed such a compact with the Senecas, granting them the exclusive right to operate casinos in WNY [Western New York]. Specifically, three of them, only one of which is actually located on an Indian Reservation. The other two - one in Niagara Falls, and the other in Buffalo - are sited on little exclaves. Little portions of New York State territory have been carved out and ceded to the sovereign Indian nation, which isn’t technically part of New York.

In return, the State gets 25% of the slot revenues from the casinos. Not the tables, not anything but slots. The State is then supposed to give about 25% of its share to the host municipality.

Buffalo’s casino will be in the Cobblestone District. That’s a whole separate story.

Niagara Falls’ casino was located in the old, leaky Convention Center. It’s the place to go to see septuagenarians smoke cigarettes in a public indoor setting. If you miss walking out of a place stinking like a carton of Lucky’s, this is your go-to place. If you can’t get enough of tan Buicks making right turns at 2 mph, get thyself to the Falls.

Snark, snark, snark, right? Well, until now probably most people in WNY haven’t really given a shit about the casinos. They see them as not the greatest thing, but at best a necessary evil to get some jobs going and some money in local coffers.

Here’s something to piss off even the most die-hard Sandy Beach caller: Eminent Domain.

We all remember the Kelo v. New London SCOTUS decision from earlier this year, which permits governments to take private property under eminent domain and then sell it to a preferred developer for newer, more lucrative private development. Lots of people were extremely upset about that decision. Since then, legislatures across the country have acted to counterbalance Kelo’s ruling.

Now, we have the State of New York taking private property in Niagara Falls by eminent domain and then ceding it to a foreign sovereign nation for casino development.

Patricia Van Egmond’s Fifth Street home has been in her family since 1937. It breaks her heart to imagine a bulldozer knocking it down to make room so a casino can expand.

Van Egmond, 71, opposes a controversial plan by New York State to force property owners to sell 26 acres of Niagara Falls land for use by the Seneca Nation of Indians.

The land - including homes, a hotel, restaurants and a multimillion-dollar water park - would be purchased by the state and turned over to the Senecas.

The Senecas plan to tear it all down and build at least one new hotel, parking facilities and other amenities for their Seneca Niagara Casino. One hotel owner, facing the state’s threat, sold his hotel to the Senecas last week.

The state casino agreement with the Seneca Nation has different provisions for Buffalo, so most people dismiss the idea of a similar situation occurring as the Senecas build a casino in the Cobblestone District.

But in Niagara Falls, the state said it intends to use eminent-domain powers to obtain property for the Senecas. Eminent domain refers to the constitutional power of government to force people to sell their property for use in projects that benefit the public.

According to several experts, the Niagara Falls case is extremely rare - possibly the first time in the United States that a government has used eminent domain to obtain land for a Native American casino.

This makes the facts in Kelo look downright benign by comparison. In that case, the public benefit was more taxes from new waterfront condos. In this case, the public benefit is cash from slot machines. (Assuming the taken property would actually be used for a casino purpose that would benefit the State).

Buffalo Pundit: http://buffalopundit.wnymedia.net

Eminent Domain Revisited: Gotham Gazette (New York NY), 12/12/05

By Mark Berkey-Gerard

Three proposed development projects in NYC that may involve the condemning of private property: Columbia University expansion, Atlantic Yards project in Brooklyn, new Mets stadium in Willets Point, Queens.

Joy Chatel fears she will lose the house that has been her life for decades.

The four-story brick building on Duffield Street in Brooklyn serves as her home, a classroom where she home schools her seven grandchildren, and a business where she operates a hair salon.

Under the city’s plan to rezone and develop downtown Brooklyn, approximately 130 residences and 100 businesses, including Chatel’s, would be condemned. The city says the plan to replace them is a key element in a larger strategy to retain jobs that are leaving for New Jersey and elsewhere – and that it will ultimately benefit the residents of Brooklyn and the entire city.

Chatel argues there is more at stake than her private property. She and several other building owners in the area say that their houses are historic treasures where slaves found sanctuary as part of the “underground railroad,” a claim the city disputes.

“Oral history is all we have to prove there was an underground railroad,” she told the Daily News. “It’s not like they have a neon sign outside.”

In New York City, the government's power to take over private property — eminent domain — is a factor in so many pending development projects that the one involving Joy Chatel’s home is actually among the least-known current battles.

In Prospect Heights, Brooklyn, the real estate developer Forest City Ratner Companies has a proposal to take over private homes and businesses and replace them with the Atlantic Yards project, a basketball arena, thousands of condos, and 16 towers.

In upper Manhattan, Columbia University is considering eminent domain as an option in its efforts to expand its campus.

And in Willets Point, Queens, the city is looking to replace a 13-block area that is home to scrap metal yards and auto shops with a waterfront shopping district to complement a new stadium for the New York Mets.

New York City’s landscape has been remade over and over again, and in the process hundreds of thousands of New Yorkers have lost their private property so that the government can build roads, bridges, public housing, parks, playgrounds, and hospitals.

The concept of eminent domain – and debate surrounding the practice - dates back to the founding of the nation.

“Eminent domain means the power of the crown over his or her domain,” said Dwight Merriam, author of the book Eminent Domain Use and Abuse. “The theory is that the government really owns all of the property and can take it back whenever it wants.”

The nation’s founders tried to address the issue in the Fifth Amendment to the U.S. Constitution, which guarantees citizens “just compensation” when private property is taken for “public use.”

But what exactly is a “public use”?

Until the case of Berman vs. Parker in 1954, the Supreme Court ruled that it was for such clearly public physical structures as bridges, highways, schools, and train tracks.

Today, in an era when government and private developers often work closely with one another, the term “public use” is used for sports stadiums, corporate headquarters, office buildings, museums, and even shopping malls.

In New York State, eminent domain can be used to remove areas of “blight” – which means deteriorating, vacant, or obsolete buildings or even oddly shaped parcels of land. Historically, the courts and lawmakers have used the term “blight” rather liberally.

For 40 years, “master builder” Robert Moses, made use of the power to level entire neighborhoods for projects like the West Side highway, Lincoln Center, and the Triborough Bridge

An entire downtown neighborhood, including a string of small electronics shops known as "Radio Row," was demolished to make way for the World Trade Center.

In the 1980s, the city and state condemned property in Times Square to rid the area of sex shops and other abandoned buildings. Currently, on 43rd Street, the New York Times is building a new headquarters on a property obtained through eminent domain.

In 2001, the state took over several buildings on Wall Street in order to make way for an expansion of the New York Stock Exchange, an idea which never became a reality.

And recently in Harlem, a dozen businesses were demolished to make way for a Home Depot.

The issue of eminent domain gained a new level of attention last summer when the United States Supreme Court ruled that the government could use eminent domain to take away private property and then sell it to a private developer.

In the case, known as Kelo vs. New London, the court ruled in a 5 to 4 vote that the city of New London, Connecticut could take the property of 15 homeowners for the purpose of economic development. The city plans to transfer the property to developers who will build office space, a hotel, housing, and a riverfront esplanade.

The Kelo case has sparked new debate among legal and planning experts.

Some say that while eminent domain is appropriate to build schools or hospitals, it should not benefit private developers, because it can too easily abused.

“We never hear that eminent domain should be used to take a Hyatt and build mixed-income housing,” said Susan Fainstein a professor of urban studies at Columbia University. “It is always about taking property away from poor people and give it to someone who is much better off.”

Others say that if a project produces tax revenue and jobs, economic development can be considered legitimate “public purpose.”

“We shouldn’t think that these projects are `bad’ just because they are the work of private developers,” said Jerilyn Perine, who served as housing commissioner under Mayor Michael Bloomberg.

Concern over the Kelo case has also inspired a flurry of legislation at the national and local level.

In Congress, a bill, dubbed the “Private Property Rights Protection Act of 2005, has already passed the House and is awaiting a vote in the Senate. It would withhold federal aid from states that Congress believes abuse eminent domain.

In New York, there are several bills being considered in Albany, including a package of legislation drafted by Assemblymember Richard Brodsky which would slow down local eminent domain proceedings, create an ombudsman to oversee the use of the law, and require 150 percent of market value be paid for private property that the government takes over. This week, the New York City Council will hold hearings on the subject.

And recently opponents of eminent domain claimed victory when the U.S. Court of Appeals ruled that the city of Port Chester, New York failed to properly alert a businessman of his right to challenge an eminent domain decision before the government seized his four buildings to make way for a convenience store. The court’s decision, some said, was a warning to local governments who may be tempted to take private property without properly notifying the people who own it.

While the experts debate how eminent domain should be used, residents and businesses in neighborhoods where it is being considered struggle to preserve the future of their communities.

Atlantic Yards and Prospect Heights, Brooklyn
In December 2003, developer Bruce Ratner, along with Mayor Michael Bloomberg and Governor George Pataki, unveiled plans for a massive project in downtown Brooklyn, known as the “Atlantic Yards.” The latest version of the plan would build a Frank Gehry designed basketball arena for the New Jersey Nets and 16 skyscrapers with office space and 7,300 apartments.

In order to acquire the 22 acres of land needed for the project, New York’s Empire State Development Corporation is planning to use the government’s power of eminent domain to condemn two parcels of land.

Opponents of eminent domain say that the state would take over approximately 53 properties. Local groups, which oppose the plan, say more than 330 residents, 33 businesses with 235 employees, and a 400 person homeless shelter will be displaced by the project.

And Daniel Goldstein, who works for the group Develop Don’t Destroy [Brooklyn] and lives in the area of the proposed development, warns that the definition of “blight” could apply to any neighborhood in the city.

“On any six square block in this city you will find a property that might be `dilapidated’ or `structurally unsound’ or `vacant,’ and all throughout the city nearly every property could be considered `economically underutilized,’” said Goldstein.

However some in the area, including many local officials, have praised the development, in particular for the "community benefits agreement" with neighborhood representatives that promises that 50 percent of the 4,500 rental apartments will go to low and middle-income residents, with 10 percent of these set aside for seniors. The project also sets aside 35 percent of the jobs for minority workers and another 10 percent for women.

But even some supporters of the project, like Assemblymember Roger Green, question the use of eminent domain.

“Under the definition of blight, as related to poverty or environmental degradation, this definition is not related to Prospect Heights,” Green said at recent state hearing.

Columbia University Expansion, Manhattanville
Columbia University plans to build a new campus in Manhatanville.

Last summer, Anne Whitman, who runs a moving company out of her building on Broadway and 129th Street, received a letter from Columbia University informing her that the institution planned to build a biotech research center where her business stands.

Columbia offered to help Whitman find a single-floor building outside of Manhattan; she rejected the offer.

“Since then,” Whitman said, “it has been all out war.”

Columbia University plans to spend $5 billion over the next 25 years to build a new campus in upper Manhattan. The 18-acre complex would stretch from West 125th Street to West 133rd Street between 12th Avenue and Broadway and would house biotech research facilities, a building for its art school, student and faculty housing, and administrative buildings.

The university says the campus will create 14,500 permanent jobs in the area.

Columbia hopes to convince area residents and businesses that there is a mutually acceptable resolution. Failing that, it has suggested that the state could use eminent domain to transfer control of these properties.

However, local businesses, community board members, and students at Columbia University oppose the plan and criticize its approach to the negotiations with the community.

For some of the area’s landowners, the talk of eminent domain has poisoned negotiations.

“They say ‘deal with us now or deal with the state later,’” said Whitman, who also sits on Community Board Nine. “It’s like having a gun to your head.”

Willets Point, Queens
The area of Willets Point, Queens may become a shopping area next to a new Mets Stadium.

For decades, city planners have had their eye on Willets Point, a 13-block area on a peninsula on the Flushing River that is home to scrap metal yards and auto shops.

In the 1960s, Robert Moses attempted to force out the local business owners to make way for the World’s Fair. In the 1990s, the New York Mets wanted to build a new stadium on the land. Recently, some have proposed a new stadium for the New York Jets football team or facilities for the now-defunct 2012 Olympic bid on the grounds. All of these plans failed.

Now, the city is determined to transform the area to include an attractive waterfront shopping and residential enclave, which would complement another proposed stadium for the New York Mets.

Although the city will not discuss the details of its plans at the current time, scrap metal yard owners fear that eminent domain may be used to move them out.

“Sounds to me like they’re going to pull a sneak attack,” said Richard Musick, president of the Willets Point Business Association.

There is little doubt that the area – which is riddled with large potholes and abandoned cars, and even lacks plumbing in some areas – will meet the definition of “blight.” And some local officials, like Councilmember John Liu expresses confidence that the owners “will be given fair compensation, and relocated, if necessary.”

But the scrap metal and auto shop owners say that it will be nearly impossible to find other neighborhoods that would welcome their businesses.

Gotham Gazette: www.gothamgazette.com

Masters of their domain? St Louis (MO) Post-Dispatch, 12/11/05

By Jason Lee

St. Charles could join ranks with O'Fallon by outlawing the seizure of private property for economic development projects such as a shopping center.

City Councilman John Gieseke, Ward 8, wants the city to forbid the use of eminent domain for economic development without the property owner's consent. The proposed legislation would bar the controversial practice for projects meant to "increase tax revenue, tax base, employment or general economic health."

"If the city wants to redevelop an area, this ordinance will make the developer understand that they're going to have to pay fair market value and work with people who own property in St. Charles," Gieseke said.

However, the city could still approve eminent domain for public uses, such as a road, hospital or military base. The ordinance also wouldn't restrict the transfer of land for use by railroad or utility companies as well as to remove abandoned or uninhabitable properties.

In July, O'Fallon officials unanimously passed an ordinance limiting the use of eminent domain for streets, parks and public water and sewer systems, but not for economic development.

That decision came after the U.S. Supreme Court ruled 5-4 on June 23 that the Constitution requires only the possibility of economic gain for government to acquire private property from one individual for the benefit of another. The decision was interpreted as meaning a developer building a strip mall would be providing as much public benefit as a government organization taking land to construct a new road.

The St. Charles County Council also weighed in by passing a resolution July 11 stating it "sternly disagrees" with the court's decision.

In October, St. Charles officials granted eminent domain power to Lindenwood University to acquire a 4-acre site for construction of its long-planned fine and performing arts center. The parcel included three vacant buildings as well as a heating and air conditioning business. In the end, Lindenwood officials avoided using eminent domain by negotiating sale of the properties, but that didn't deter residents from speaking out against the controversial practice.

One of those was Kevin Rogers, who last month told the council he's concerned the city could eventually force the sale of his Dairy Queen at 2195 First Capitol Drive for redevelopment. Rogers said the restaurant has been at that location since 1962.

"I'm strongly opposed to somebody coming and taking away my Dairy Queen to develop it and make some developer rich," Rogers said.

Gieseke said Rogers' comments weighed heavily on his decision. Gieseke said he wants to offer some comfort to residents and "bring the worry out of people's minds." He said other council members could join him in sponsoring the bill.

"Right now it doesn't matter if a business is successful or not," Gieseke said. "It can still be taken and that's not right."

Limits to eminent domain also could come from Jefferson City. A task force appointed by Gov. Matt Blunt recently recommended 18 changes to state law. Blunt plans to review and present those recommendations to legislators for consideration in January.

Among the recommendations, the report argues property should only be condemned for public use, such as for utilities or tearing down blighted property. The task force also said legislators should tighten the state's standards for declaring property as blighted when eminent domain is used.

St Louis Post-Dispatch: www.stltoday.com

Eminent domain abuse in Colorado

The Colorado Citizens for Property Rights has established a website at www.theccpr.com. The site has links to a number of specific eminent domain abuse cases in Colorado and Texas.