Changes needed on eminent domain: Alamagordo NM Daily News, 12/21/06

By Walter Bradley
Since last year's infamous Kelo v. City of New London U.S. Supreme Court decision, citizens across the nation have declared in no uncertain terms their support for private property rights and opposition to the use of eminent domain for private gain.

Eminent domain is the power of the government to take private property against the owner's wishes; both our state and federal constitutions restrict that power only to circumstances where the government is taking the private property for "public use."

In Kelo, however, the U.S. Supreme Court redefined "public use" and allowed the government to condemn property to take from one private owner and hand it directly to another private interest.

Shortly before the one year anniversary of Kelo, Gov. Richardson convened a task force to study the issue of eminent domain in the Land of Enchantment.

Although Kelo now allows for eminent domain abuse under the federal constitution, the task force members came together to study whether current law in New Mexico allows for eminent domain abuse and, if so, what could be done to fix New Mexico's laws and protect our citizens' private property rights.

Alarmingly, we discovered some of New Mexico's eminent domain laws are so broadly written that currently every property in the state is at risk for a Kelo-like taking. Local governments are free to use New Mexico's incredibly broad condemnation authority to take virtually any property in the state and hand it over to private developers.

While most people recognize the need for eminent domain to accomplish traditional public uses, such as schools, roads, utilities and so on, based on the public comments our task force received, the overwhelming majority 99 percent made their position undeniably clear: New Mexico should respect the rights of individuals to keep what they have worked so hard to own, and should protect its citizens from eminent domain abuse.

New Mexicans are not alone in this situation. This fall, voters passed every one of the 10 proposed ballot measures solely reforming state eminent domain laws. All told, 34 states have seen fit to better protect their citizens from the use of eminent domain for private profit.

I am pleased to report that the majority of the task force recommended to the governor that New Mexico's Metropolitan Redevelopment Act be amended to prohibit the use of eminent domain for private economic development. This is the only state law that allows use of eminent domain, and has been used purely for economic development purposes.

To ensure that our citizens' rights will be protected in the future, the task force unanimously agreed that certain procedural protections should be adopted as well.

The task force made the following recommendations to Gov. Richardson and our state legislature:

• Clearly prohibit the power to use eminent domain for private economic development purposes by removing it from the Metropolitan Redevelopment Act;
  
• Rewrite the New Mexico Metropolitan Redevelopment Act to remove existing language that indicates that the interests of private developers outweigh the interests of the private property owners;
  
• Increase notice and hearing requirements so that property owners have earlier notice and a more secure opportunity to participate in the decision-making and planning process.

The governor has already voiced his support for our recommendations. It is my hope that the Legislature will respect the rights of New Mexico's citizens and take the opportunity the upcoming legislative session provides to ensure our citizens will be protected from eminent domain abuse in the years to come.

---

Alamagordo NM Daily News: http://www.alamogordonews.com

Walter Bradley is a former lieutenant governor of New Mexico, and served as a member of the Governor's Task Force on Eminent Domain

California Focus - Next round in eminent domain fight: Orange County CA Register, 12/20/06

Anti-tax group prepares state constitutional amendment to protect property
By Barbara Laraia
Every California property is fair game for condemnation, seizure and transfer to a private developer under the government's power of eminent domain. New and excessive property regulations also could render anyone's property useless, with no financial compensation required.

The defeat last month of Proposition 90, an initiative that would have erected safeguards against the types of abuses mentioned above, has opened the floodgates of the Kelo decision in which the U.S. Supreme Court ruled last year that elected officials may take anyone's private property – with alleged "just compensation" – and transfer it to a private developer to build things like stadiums, auto malls, shopping centers or any other project that the jurisdiction thinks would generate more tax revenue.

In the year-plus Since Kelo, condemnation proceedings have tripled. Because of Kelo, 34 states, but not California, have passed some kind of eminent domain reform.

So what are the options for protecting private property in this state? One approach is another statutory initiative, which would make the ballot after citizens gather valid signatures from a number of people equal to 3 percent of the voters in the most-recent election and meet all other legal requirements. A statute can contain considerable legal minutiae.

A constitutional amendment is more difficult and expensive for ballot qualification because it requires the signatures of a number equal to 5 percent of the voters in the most-recent election. Like a statutory initiative, it requires majority approval, but it is different in that it establishes a legal framework for enduring legal concepts and principles. This makes a constitutional amendment stronger and more protective than an initiative, according to policy analyst Leonard Gilroy.

A few weeks ago the Howard Jarvis Taxpayers Association proposed a state constitutional amendment that states, among other things, that private property may be taken by governments only for public uses, such as schools or roads. The California Property Owners Protection Act [CPOPA] will cost $1.3 million to $1.4 million to qualify for the ballot, according to the group's president, Jon Coupal. He stated that his group will not even consider a statutory initiative and noted that depending on "input from stakeholders" there may be a chance of submitting another measure.

"Failure of Prop. 90 won't make this issue go away," Coupal said.

CPOPA has strong eminent domain protections. "Private property may be taken or damaged for a stated public use. ... Private property may not be taken or damaged for private use." (Sec. 19 (a)). "Public use" means "use and ownership by a public agency or an investor-owned public utility for the public use stated at the time of the taking, including public facilities, public transportation and public utilities," the proposed amendment states.

The definition of public use includes the word "ownership," thereby making the intent of "public use" crystal clear to elected officials who condemn our property.

CPOPA also prohibits property from being "damaged" for any purpose but a stated public use. "Damaged" includes "limiting the price a property owner may charge another person to purchase, occupy or use his or her property." This basically addresses rent control, and might prove a drawback in getting the amendment approved. Rent-control activists may cry foul, even though there are already government programs to help poor, elderly and disabled people with their rent.

Attorney Jennifer Zeigler with the property-rights group the Castle Coalition noted it may be better to put eminent domain reform on the ballot by itself for easier passage and also because of possible legal challenges to the "single subject rule" of ballot measures. However, she agreed that rent control is, in effect, regulatory taking, and reforms of both regulatory takings and eminent domain were allowed on last month's ballot in the form of Prop. 90.

Whichever measure(s) makes it to the ballot, it must be stated that eminent domain will be enacted only for public use and ownership. We need an antidote for the Kelo ruling by amending the state constitution to guarantee our inalienable right to keep and use our property once we purchase it, except in specific instances.

---

Orange County CA Register: http://www.ocregister.com

Builder defends eminent domain project: Hanover PA Evening Sun, 12/23/06

By Ashley Adams
Paul Burkentine says he is in the business of building people their dream homes.

Lately, though, many see him as taking those dreams away.

But Burkentine feels he is being wrongly accused of forcing a Penn Township family out of their home.

Burkentine & Sons Builders Inc. is planning to build a development called Brookside Heights on a 40- to 50-acre tract to the rear of Dana and Bill Heston's property at 823 York St. He has been working on the project since 2002.

Burkentine said that as part of the development and engineering process, he was directed by the township to perform a traffic study. The findings indicated a traffic signal was needed at the intersection of York and Center streets because of the increase in traffic – not only from his subdivision, but from other subdivisions proposed in Penn Township.

Burkentine said there were other traffic studies done by the township and other developers that showed the same need for a traffic signal.

Although installing one at Baer Avenue and York Street was an option, Burkentine said the location of the signal was determined by the traffic engineer, the township and the Pennsylvania Department of Transportation.

"We, the developer, had no say in the matter," Burkentine said.

Penn Township Manager Jeff Garvick has said the need for a traffic light at the York and Center streets intersection dates back to the 1970s and is included in a township comprehensive plan.

"We were directed by Penn Township to determine a design of what was needed to implement a traffic signal at York Street and South Center Street which would tie into Brookside Heights," Burkentine said. "This design is what dictated the properties that were needed to be acquired to implement the traffic signal."

To install the traffic signal, Center Street would have to be widened, meaning the Heston's home and easements from other properties would need to be acquired.

Burkentine has already acquired easements and rights of way with four of the five property owners.

The other acquisitions went smoothly, Burkentine said.

Dana and Bill Heston have said they are happy with their four-bedroom, two-bathroom brick home, which they say a perfect fit for their six children. So they are fighting the issue.

But Burkentine said his original plan for Brookside Heights never showed a traffic signal or access to the development at York and Center streets. The development was suppose to have a cul-de-sac prior to reaching York Street.

He pointed out that it was the township that asked him to change the plan to extend Center Street for public safety reasons.

And, Burkentine said, the Brookside Heights development has other proposed entrances and exits besides the one on York Street.

As shown on the land development plans, the development can be accessed through Brookside Avenue, Baer Avenue, Charles Avenue and Overlook Drive.

But Burkentine agreed to incur all costs and put up a traffic signal for the betterment of the community.

In July 2004, Burkentine said he personally went to the Heston home to speak with Bill and Dana to explain the situation.

To follow up after the meeting, Burkentine said a certified letter was sent to the Hestons in August 2004.

Then, in September 2004, Burkentine made his first offer in writing by sending another certified letter. He said the offer was based on multiple appraisal he did on the house.

Burkentine said he got no response from the Hestons or their attorney.

Then, in December 2004, Burkentine said another certified letter was sent to the Hestons. Again, no response.

Another letter was sent in January 2005 asking the Hestons to meet with the company, Burkentine said. The Heston's attorney finally responded with a counter offer that was more than twice the appraised value of the home, Burkentine said.

In February 2005, Burkentine said he sent a final certified letter stating the company's final offer was $160,000. Which, Burkentine said, is above the appraised value of the home and is still being offered to this day.

Burkentine said he hasn't heard anything from the family or their attorney.

Dana Heston has said the family is willing to move, but they want the fair-market value for their home – something, she has said, hasn't been offered to them. She has also said the family was willing to take the original offer of $160,000 but it was suddenly taken off the table and another offer of $132,000 was given. Since then, Dana Heston has said Burkentine is the one who won't answer her calls nor calls from the family's attorney.

The Hestons have also said they have been threatened by Burkentine with eminent domain.

"I did not, in anyway, mention eminent domain," Burkentine said. "I have no power to execute eminent domain."

He said he told the Hestons that if an agreement couldn't be reached, he would turn all the paperwork over to the township and allow them to solve the situation.

Burkentine said the township has a copy of all correspondence between the company and the Heston family.

In a statement read during Monday's commissioner's meeting, Penn Township Commissioner Joe Klunk said, "Penn Township has not exercised its eminent domain authority regarding the Heston property located at the intersection of Center Street and York Street for intersection improvements. If the township considers eminent domain, it must do so at a public meeting. The township has not even begun such discussions, and certainly has not decided to use eminent domain powers to acquire the Heston property."

Burkentine said he has more than $250,000 of his own money invested in the traffic signal, which is an off-site public improvement to his development, and he shouldn't get blamed for the situation.

"We don't enjoy being put in this situation and feel that is unfair of the township to place the burden completely on Burkentine & Sons," he said.

And because of this issue, Burkentine said other rumors have been flying around town about his company. One such rumor is that his company is in financial turmoil.

"That is totally untrue," Burkentine said.

"We are not happy that the location of a proposed traffic signal imposes on a family's way of living," he said. "This situation is certainly unfair to everyone involved, particularly the Hestons. We sympathize with them and are willing and have always been willing to work with everyone involved to come up with the best possible solution. This has become a situation where everyone needs to work together, including us, the developer, Penn Township and the Hestons."

---

Hanover PA Evening Sun: http://www.eveningsun.com

Judge rules for port authority in eminent domain case: The Business Journal of Jacksonville FL, 12/21/06

By Tony Quesada
The Jacksonville Port Authority can proceed with exercising eminent domain to take property owned by Keystone Coal Company, a judge ruled Thursday.

Circuit Judge Jean Johnson, in 28-page order, found that the authority met its burden in establishing a public purpose and reasonable necessity to take the 65-acre parcel.

The judge did not find merit in Keystone's arguments that the authority acted in bad faith or abused its discretion.

She wrote that based on "constitutional and legislative provisions, the port authority's acquisition and development of property for the purpose of leasing the property to private companies for their use is a public purpose."

She also ruled that the determination of whether the taking is necessary is a legislative decision that the court should tread lightly on.

"We felt we had the better side of the argument," said Joel Settimbrini, lead counsel for the port authority. "There's a wealth of legislation finding that port authorities are good for the people of the state of Florida."

Johnson added that case law and statutes in Florida favor public development of port facilities "without regard" to whether it will benefit a private entity. Keystone had made an issue of the fact that the authority has a tentative agreement to lease the land to a competitor of Keystone.

Johnson wrote that a port authority being able to acquire suitable property ensures that such property will be available for port facilities. She said that allows a port authority "to exercise control over the property's use, so that development of the port is not left to the whims of private owners or the vagaries of the marketplace."

Settimbrini found that language insightful, saying that the property being taken "will be held in public trust for the good of the community as it evolves over time." He said the port authority filed for condemnation "only after a painstaking process that considered whether the property was being used. This property was a closed paper mill."

Simon Bloom, lead counsel for Keystone, said he had not had a chance to review the ruling.

---

The Business Journal of Jacksonville FL: http://jacksonville.bizjournals.com

League dislikes proposed eminent domain bill: Alamogordo NM Daily News, 12/20/06

By Walter Rubel
[New mexico] Gov. Bill Richardson endorsed proposed legislation Tuesday that would restrict the ability of local governments to exercise powers of eminent domain.

Under the proposal, eminent domain powers would be removed from the Metropolitan Redevelopment Act, and both the Urban Renewal Law and the Community Development Law would be repealed. It would not interfere with traditional uses of eminent domain in other existing law.

Richardson vetoed a bill passed this year that had been introduced by Farmington lawmakers Rep. Richard Cheney and Sen. Steve Neville. He said Tuesday the new proposal recommended by a task force he created at the time of the veto will have protections for local governments that the 2006 bill lacked.

"The bill that I vetoed last session would have created more problems than it resolved," he said. "The task force produced a solution that is more realistic, and will not prevent municipalities from cleaning up nuisance properties that place communities at risk. Most importantly, it will protect private property owners from unnecessary condemnation."

However, William Fulginiti, executive director of the New Mexico Municipal League, said that organization strongly opposed the new bill and would work to stop its passage. He said a majority of the task force did not vote in favor of the proposal.
"We think the power of eminent domain should be left in the Metropolitan Redevelopment Act as a tool of last resort when you are trying to clean up slums and blight," he said.

Eminent domain is the power of local governments to condemn a property and pay the owner fair market value. Typically, it has been used for necessary infrastructure, such as for roads or utility lines, or to clean up blighted areas.

But in 2004, the Supreme Court ruled that eminent domain could also be used to condemn property to make way for commercial development. That sparked both controversy and a flood of legislation at the state level seeking to restore protection for property owners.

Fulginiti said there has never been an abuse of eminent domain in New Mexico, and what happened in the controversial Kelso case could not happen in New Mexico under current laws.

But Ben Ward, a deputy legal counsel to the governor who worked with the task force, said the intent of the proposed bill is to eliminate the potential for abuse.

He said by removing eminent domain from the Metropolitan Redevelopment Act, they were directly targeting the use of those powers for economic development purposes.

Sen. Neville said he would take a close look at Richardson's proposal between now and the start of the legislative session next month to ensure it provides the needed protections for property owners.

"I think it's a good approach, but there still may be some loopholes," Neville said. "I haven't gotten a legal opinion yet to see if it's something we should be worried about."

---

Alamogordo NM Daily News: http://www.alamogordonews.com

City dodges eminent domain: Twentynine Palms CA Desert Trail, 12/20/06

By Kurt Schauppner
The Twentynine Palmas City Council avoided a potential bullet Thursday, Dec. 14, when last-minute negotiations meant the city did not have to use eminent domain to acquire private property.

In a situation similar to a case which came before the U.S. Supreme Court, the Twentynine Palms City Council was considering the use of eminent domain to acquire three pieces of property on Calle Todd west of Adobe Road.

The property, city officials said, is needed for street improvements on Calle Todd related to the Turtle Rock housing project.

The need to take the property, including 29,978 square feet from a 217,800-square-foot parcel north of Calle Todd, owned by Eric Shaw, and, two parcels, totaling just over 6,800 square feet south of Calle Todd, owned by Ken Hoffman, was averted by the 11th-hour agreements.

In one, developers of the Turtle Rock housing project reached an agreement with Shaw to buy a section of the trailer park property north of Calle Todd and then turn the right of way over to the city.

In the other, Hoffman, owner of Adobe Self Storage on the south side of Calle Todd, met with Councilmen Steve Flock and Steve Spear and came to an agreement to sell part of the two lots where the self-storage business sits.

According to a copy of the agreement provided by the city, final sticking points included the fate of palm trees planted on the south side of Calle Todd. They will remain after street improvements are made, and the fate of a small block wall, which also will remain.

The agreements were announced following a special session of the Twentynine Palms City Council held Thursday, Dec. 14 to consider the possibility of using eminent domain to acquire the property.

“I think the council feels relieved,” City Manager Michael Tree said Friday. “I don’t think it was a direction they were happy to go in.”

On the other hand, he added, council members recognized the need for the public roadway improvements.

“I think they were relieved that they went to every effort to make sure it did not have to go down that route,” Tree said.

Spear, contacted Friday afternoon, echoed those thoughts.

“I think it turned out very well for Mr. Hoffman and Penca Incorporated and the city,” Spear said.

He described the impasse which led to the special council session “a series of small misunderstandings,” adding that “it was understandable how that occurred.”

He praised staff members for bringing the issue to the city council.

“They did not make the decisions they should not have made,” he said.

Although there were some issues, he noted, council members were able to iron them out.

“Everybody left happy,” he said.

Flock, who served with Spear on a task force created just to work out details of the agreement with Hoffman, agreed that he “got right into it,” within days of taking his oath of office.

“Absolutely. I was very pleased,” he said of the outcome.

“It worked out very well and I’m very happy. I am very concerned with the citizens’ property rights.”

---

Twentynine Palms CA Desert Trail: http://www.deserttrail.com

Landowner Asks Supreme Court to Hear Eminent Domain 'Extortion' Case: Cybercast News Service, 12/20/06

By Nathan Burchfiel
Claiming he is the victim of legalized extortion carried out under eminent domain powers, a landowner in New York is asking the Supreme Court to hear his case.

Landowner Bart Didden claims in a petition that a developer convinced the village of Port Chester, N.Y., to seize his land through eminent domain after Didden had refused to pay the developer $800,000.

As part of a 1999 redevelopment plan, the council had designated Didden's land as a "redevelopment area." This gives the council the power to condemn the property and hand it over to a developer of its choice.

Didden planned to build a CVS Pharmacy on the site, but the developer, Gregory Wasser of G&S Investors, wanted to build a Walgreens there. According to the petition, Wasser threatened to convince officials to condemn Didden's land under eminent domain if Didden did not pay him $800,000 or make him a 50 percent partner in the CVS project.

Didden says he refused the offer on Nov. 5, 2003. On Nov. 6, 2003, the village of Port Chester filed a condemnation petition to acquire the land and transfer the lease to G&S to construct a Walgreens.

Didden calls the case "extortion through the abuse of eminent domain" justified by the 2005 Supreme Court decision in Kelo vs. City of New London, in which the court ruled that the Fifth Amendment "takings clause" allows the government to condemn private property for redevelopment purposes.

"Essentially, the courts have ruled Kelo turns any redevelopment zone into a Constitution-free zone for property owners confronted by politically connected developers," Dana Berliner, a senior attorney with the Institute for Justice, said in a statement.

The Institute for Justice is representing Didden in court. It also argued on behalf of petitioners in the Kelo case.

The U.S. District Court for the Southern District of New York dismissed Didden's complaint because it said he had failed to articulate a claim within three years of his land being declared a redevelopment zone - which first occurred in 1999.

Didden argued that his actual injury did not occur until Wasser approached him with the offer to not seize the land in return for a payment in 2003, but the district court ruled that the statute of limitations had passed.

The Second U.S. Circuit Court of Appeals last April then affirmed the lower court's dismissal, ruling that the payment discussion as described by Didden "was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Didden is now asking the Supreme Court to clarify its ruling in Kelo and direct lower courts on how they should interpret it.

"We want the Supreme Court to rule that the Constitution does not permit governments or citizens acting on their behalf to demand money in exchange for allowing property owners to keep what is rightfully theirs," Berliner said.

"The very fact that we have to ask the highest court in the land for such a ruling underscores how precarious and threatening things are getting for ordinary American landowners," Berliner added.

John Watkins, an attorney for the village of Port Chester, told Cybercast News Service there was no reason for the Supreme Court to take up the case because "the lower courts have properly disposed of the matter."

While the local authority did not directly dispute Didden's account of the meeting, Watkins said it didn't amount to extortion.

"We're not saying the meeting never happened," Watkins said. "The village had encouraged the developer [Wasser] to meet with Mr. Didden to see if they could work something out. It was essentially a negotiation, an offer, a proposal which Mr. Didden refused."

Watkins said G&S had a right to the profit from pharmacy project because it had invested time and money to build infrastructure in the area under its agreement with the village to spearhead the redevelopment project.

He said Didden "wanted to ... take advantage of all of the money and the effort that was put in by both the village and the developer of the project that far."

---

Cybercast News Service: http://www.cnsnews.com

Riverside board not contemplating eminent domain resolution: Riverside/Brookfield Landmark, Oak Park IL, 12/09/06

No TIF referendum seen for now
By Bob Uphues
Riverside is unlikely to add language to its proposal for a downtown tax increment financing (TIF) district that would eliminate the possibility of eminent domain as a way of acquiring property. In addition, it appears that the village board will not seek a village-wide referendum on the TIF issue, despite a request to do so.

Village President Harold J. Wiaduck Jr., while reiterating his opposition to the use of eminent domain for acquiring property, said he was reluctant to take that option away from a future village Board of Trustees.

"I think the marketplace will drive the needs of Riverside and I can't see anything [that would require the use of eminent domain]," Wiaduck said. "But maybe a future board will see a need for it."

Wiaduck's response to the eminent domain issue came as a result of a question at Monday night's village board meeting from Riverside resident Catherine Love. Love asked Wiaduck if the board had considered passing a resolution "to foreswear the use of eminent domain for the TIF district."

Wiaduck was the only member of the village board to respond to Love's request. Resident Mike Jebb later suggested that such a resolution be passed by the village board, even if it were only a symbolic move. Any resolution, he said, could be overturned by a future board. Passing such a resolution, Jebb said, would give residents who live within the proposed TIF boundaries "a way emotionally to feel what you're saying is what you're doing."

"All you're saying is that you're putting in writing that this is our intent," Jebb said. "It's almost meaningless, but at least you're putting down in words what you're saying."

With respect to a possible advisory referendum on the establishment of a TIF for downtown Riverside, Wiaduck said such a decision could be made in the future, although there was no consensus on the village board for such a move now.

In the past week, TIF opponents in the village have begun a push to get signatures on a petition asking village officials to put the TIF to a vote. A copy of the petition has been posted on the www.riversideinfo.org Web site, which has been set up by anti-TIF residents.

Resident Mark Shevitz asked Wiaduck why, if he believed a majority of residents supported a TIF, he wouldn't put the matter to a vote.

"I guess that might be a thing to talk about, but I'm certainly not going to commit to that tonight," Wiaduck said. "If the issue becomes significant enough, it might be a decision we have to make."

But Trustee Kevin Smith was adamant in his opposition to a TIF vote.

"Do you elect people to lead or to follow?" asked Smith. "What kind of trustee would you be if you needed a referendum to solve every issue. It'd be fine if you could guarantee 100-percent turnout, but the way elections work is that you don't get 100 percent or even 50 percent. So you're not much better off than you are in the first place."

Shevitz argued that the TIF was not just another issue.

"We're talking about a $20 million project over 23 years that's going to affect every taxpayer in the village," Shevitz said. "You're also elected to listen."

Wiaduck did clarify at Monday night's meeting that the board would not be making any decision regarding the establishment of a TIF at its Jan. 8 Committee of the Whole meeting. While the trustees will use that session to discuss the issue and perhaps map out a plan for involving and educating the public and winning the public opinion battle, there would be no action taken at that time.

---

Riverside/Brookfield Landmark, Oak Park IL: http://www.rblandmark.com

Eminent domain legal bill is $850K: Cincinnati OH Enquirer, 12/20/06

By Steve Kemme
Attorneys argued in Hamilton Common Pleas Court Tuesday about whether the Institute for Justice should be compensated for attorney fees and expenses in the Norwood eminent-domain case.

The Institute for Justice, a civil-liberties law firm that successfully represented at no charge the property owners who fought Norwood's use of eminent domain, is seeking more than $850,000 in compensation from Rookwood Partners.

Rookwood Partners wanted to build a $125 million commercial development at Edwards and Edmondson roads.

But the Ohio Supreme Court ruled in July that Norwood illegally used eminent domain to acquire properties on the proposed Rookwood Exchange site from people who didn't want to sell.

That ruling stopped the project from being built.

Scott Bullock, attorney for the Institute for Justice, said Ohio law allows non-profit organizations that win cases involving constitutional law to be compensated for fees and expenses even when no fees have been charged to their clients.

Courts in similar cases have supported such compensation requests, he said.

Bullock said it would be an injustice if attorneys who represent their clients for free in eminent-domain cases are denied compensation for fees.

But Tim Burke, attorney for Norwood, and Bryan Pacheco, attorney for the Rookwood Partners, said Ohio law permits compensation only to property owners who have paid attorney fees.

The Institute for Justice doesn't qualify for compensation, he said.

"The Institute's clients paid no attorney fees," Burke said. "The property owners incurred no actual expenses.

Judge Beth Myers said she will issue a written decision in January.

Attorneys for Rookwood Partners have agreed to pay the attorney fees the holdout property owners accumulated during the property valuation phase of the eminent domain case.

Private attorneys, not the Institute for Justice, represented them during those proceedings.

The Gambles lived in their house, Horney rented his house and the Burtons operated a learning center from their building.

---

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

Countywide recognition for fight: Hanover PA Evening Sun, 12/19/06

By Ashley Adams
Sporting buttons and T-shirts against the abuse of eminent domain, people crowded into the Penn Township municipal building Monday in support of Bill and Dana Heston.

And one by one, members of the standing-room-only crowd stood up and asked the township commissioners not to use the power of eminent domain to take the Hestons' property.

There were some powerful voices in the crowd, too. Laura Kohr and her brother Ron – whose family farm, Lauxmont Farms, is being taken by York County through eminent domain – joined county Commissioner Steve Chronister in support of the Hestons.

Chronister said he's gotten to know the Hestons and their six children over the past couple weeks. Although there to speak as an individual – and not in the capacity of county commissioner – Chronister asked the township to leave the property alone.

"For (the developer) to negotiate with the threat of eminent domain is ridiculous," he said. "This family has put two years of their lives on hold because of this and have been harassed by the developer.

"I ask that you say no, you are not going to take their home by eminent domain."

Paul Burkentine of Burkentine & Sons Contractors Inc. is planning to build a development called Brookside Heights on a 40- to 50-acre tract to the rear of the Heston property. He has been working on the project for four years.

Burkentine could not be reached for comment this morning.

A traffic study performed during the planning process showed a signal light is needed at York and Center streets, near the Hestons' home.

Penn Township Manager Jeff Garvick has said the need for a traffic light at the intersection dates back to the 1970s.

To install the traffic signal, Center Street would have to be widened, meaning the Hestons' home would have to be removed. Burkentine has already acquired easements and rights of way on three out of the four corners.

Dana Heston has said the family is willing to move, but they want the fair-market value for their home – something, she said, hasn't been offered to them.

"Make the developer negotiate with the Hestons in good faith," Chronister urged the commissioners. "Eminent domain is a long, drawn-out process. The costs will be borne by the taxpayers and not the developer."

Chronister is familiar with eminent domain, the same process the county is going through over Lauxmont Farms.

The county has started the eminent domain process on 411 acres of the Lauxmont Farms property near Wrightsville. The county is proposing a heritage park at the site.

As Laura Kohr got up to make her remarks to the Penn Township commissioners, she couldn't hold back the tears.

"I've been to countless public meetings over the last three years," she said. "I have cried my eyes out at all of them. Eminent domain is a living hell. It is not something I would wish on my worst enemy."

Kohr said the county's proposal to take the farm that has been in her family for 35 years – and where her parents are buried – would take five of the six homes on the property, including the one in which she lives with her three children.

"This has taken a lot from my family," she said. "You have to fight for your children. You have to fight for your home. Don't do that to these people."

Lynn Madison used to live at 10 S. Center St. Burkentine has already taken her property for the widening of the intersection. But, she said, the developer is now renting out the property and might not be tearing it down.

"Is that fair?" she asked.

In a prepared statement read before the public-comment portion of the meeting, President Commissioner Joe Klunk said, "Penn Township has not exercised its eminent domain authority regarding the Heston property located at the intersection of Center Street and York Street for intersection improvements. If the township considers eminent domain, it must do so at a public meeting. The township has not even begun such discussions, and certainly has not decided to use eminent domain powers to acquire the Heston property."

But Bill Heston said he was told otherwise.

"We have already been told you will declare eminent domain," he told Klunk. "What you just said sounds like crazy talk."

---

Hanover PA Evening Sun: http://www.eveningsun.com

Eminent domain not imminent over West: Appleton WI Post-Crescent, 12/17/06

Appleton school official predicts fight on West athletic plan years out
By Steve Wideman
Homeowners fearing government officials may take their properties for sports facilities at a local high school could face a years-long wait before the matter is decided.

The Appleton school board has yet to discuss using eminent domain to acquire property near Appleton West High School as part of a plan by a school sports booster club for a new football stadium, tennis courts, track and other outdoor facilities, said Supt. Tom Scullen.

Eminent domain is a process by which a unit of government can legally take private property, with compensation to the property owners.

"Fundamentally, we can't do anything. We don't own the properties," Scullen said this past week. "In my opinion, we are years away from a confrontational approach."

On Wednesday, the Common Council is scheduled to consider approving the plan in concept, paving the way for the West Terror Backers to begin a campaign to raise $3 million to buy and demolish 21 homes and turn the property over to the school district. The district would spend about $1.5 million to make the proposed improvements.

Last week, the city's Plan Commission endorsed the idea on 5-1 vote.

Owners of five of the homes have signed on to a lawsuit demanding the booster club abandon fundraising and other activities promoting the plan.

"They are going to have to throw us out of our house. They'll have to invoke eminent domain," Gene Hoks, 513 N. Mason St., one of the litigants, said Thursday.

The situation in Appleton meets the letter of public domain law, but the community must judge its moral implications, said Michael Burayidi, coordinator of urban and regional studies at the University of Wisconsin Oshkosh.

"The intent of eminent domain is to give power to government to take private property for a purpose promoting the public good. The case in Appleton directly meets the public use requirement of the law," Burayidi said. "It will not be a private person using the land."

But the school district will have to weigh the benefit to the school against the loss to the homeowners and community, he said. "Eventually it will boil to what the priorities are in Appleton."

Terror Backers president Anne Levandoski would not comment this past week on eminent domain, but said she remains optimistic that negotiated agreements can be reached with the property owners.

"We are hoping we can make agreements with all the homeowners so everyone is happy with the price they get for their homes," she said.

Scullen said he expects any decision on using eminent domain, if it comes down to that, to be made by a future school board.

"It is our clear preference that the boosters work with residents to see if they can come up with fair market prices for their homes," Scullen said. "It has been my experience that it is far better to work with people and negotiate."

Mayor Tim Hanna, who also serves as the Plan Commission chairman, said the city will not pursue eminent domain because the West project is not a city project.

"It's important for people to understand the city has no role in the project, including financing, acquiring land or using eminent domain," Hanna said.

"I don't remember when the city has gone through the eminent domain process to acquire property. We've always been able to settle with property owners."

Hanna said that if the boosters eventually acquire property for the project and turn it over to the school district, school officials would have to seek rezoning of the sites from residential to institutional use.

Lorn Dilley, an Appleton attorney hired by Hoks and six other homeowners to represent them in attempts to block the possible taking of their homes, said he is angered that school district officials "are going to make these homeowners wait an indefinite period of time to see if they can keep their homes."

"It is terrible for the school board to avoid the issue of eminent domain," Dilley said. "It is necessary to make a decision now. If they are not going to use eminent domain then the project should stop immediately because the boosters have said they need all the properties for the project."

Dilley said he represents a third of the homeowners "and they are not going to sell their homes."

"They told the Terror Backers that in writing," Dilley said. "The only way they are going to kick these people out of their homes is to use eminent domain."

Dan Haen, 703 N. Mason St., was an original plaintiff along with Hoks in the lawsuit, which is pending in Outagamie County Circuit Court.

"I worry about my house being taken (through eminent domain)," Haen said. "Sure, they (boosters) would relocate me and find me another house, but I don't want to move. I don't want to sell my house."

Alan Gibson, 731 N. Mason St., who recently joined Hoks and Haen in the lawsuit, said he fears eminent domain "because no one will say whether they are going to use it."

Scullen said Wednesday if some homeowners do not want to sell, the project could start in piecemeal fashion.

"It could be started in different areas to avoid the homes. We (the school district) are not going to buy the homes," Scullen said.

Gibson said the possibility of his home being surrounded on three sides by school property doesn't bother him.

"Do I mind if they build around me? No. I enjoy having the school in my back yard," Gibson said.

"All the school district or city have to do is tell me they won't use eminent domain and I would sit back and be happy."

---

Appleton WI Post-Crescent: http://www.postcrescent.com

Board to vote on eminent domain: Long Beach CA Press Telegram, 12/18/06

City in process of acquiring property downtown to pave way for two projects
By Don Jergler
The city's Redevelopment Agency Board will vote today whether to start legal procedures to take several properties that would make way for two key projects in downtown Long Beach.

The vote only begins the process of taking the properties, and property owners and the agency could still come to an agreement after the vote.

To take the properties, the board must use eminent domain, a controversial governmental power to legally seize private property to make way for development.

If the board is successful in taking the properties, it would pave the way for the Pacific Gateway residential project on Ocean Boulevard and Alamitos Avenue and the Art Exchange project in the East Village Arts District.

The Pacific Gateway project requires the agency to acquire a parking lot at 19 Lime Ave. and a three-story, 30-unit apartment complex at 645 E. Ocean Blvd. Other parcels have been acquired or are in the process of being acquired by the developer.

Property owners and the agency have been unable to come to terms on the price, said Community Development Director Pat West.

The agency has offered $520,000 for the parking lot. The agency offered $2.5 million for the apartments. Owners of both properties have expressed their wishes to sell, West said.

"At this stage it looks like they're willing sellers, it's just price issues," West said. "(A vote today to use eminent domain) gives us the authority to get very, very serious with the property owners. We can go to court to take the property if necessary."

The area for the Pacific Gateway project includes the former Video Choice site at Ocean Boulevard and Alamitos Avenue.

Plans call for 19-story and 14-story residential towers near the northwest corner of Ocean Boulevard and Alamitos Avenue.

The project would yield 305 residential units, retail and a three-level subterranean parking structure.

The agency is in discussions over the property at 615 E. Ocean Blvd., home to Long Beach Cafe. It's part of the current project plans. However, both the owners of the cafe and the property owner have expressed their wishes to stay.

West said talks over the property are ongoing, and the city can either initiate eminent domain procedures on that parcel or cut it out of the project, which would require a project redesign.

The agency will also discuss taking property in the East Village Arts District to make way for the Art Exchange project, which entails a residential development, an artistic component for art studios and a possible educational use.

The project requires the agency to acquire 340 to 346 E. Third St., 352 to 390 E. Third St., and 269 Elm Ave.

Those properties house Al's Fingerprinting, Jensen Rubber Stamp Co., Chan's Barber and Beauty Salon and Shades of Africa.

West said the agency will assist those businesses in finding another location.

---

Long Beach CA Press Telegram: http://presstelegram.com

Londonderrry landowners lose eminent domain case: Boston MA Globe, 12/18/06

Three [Londonderry NH] landowners have lost their Superior Court fight against the state in an eminent domain case.

The Transportation Department took about 15 acres as part of its plan to build an access road to Manchester-Boston Regional Airport.

Rockingham County Superior Court Judge Robert Morrill rejected the challenge, then denied a request that he reconsider. He ruled taking the land by eminent domain was justified because the land would be for a public use.

Landowner Al Baldasaro called it a land grab and thievery. He and the other landowners say the state does not need their land and did not offer enough.

The state plans to use the land to make up for wetlands that will be filled for the project.

Baldasaro said he hasn't decided whether to appeal to the state Supreme Court.

---

Boston MA Globe: http://www.boston.com

Elkhart County uses eminent domain to acquire property to widen County Road 10: South Bend IN Tribune, 12/18/06

By Adrienne Ruffner
Along County Road 10 in Elkhart, road plans for the future have caused heated debate in the present.

Because of heavy traffic flow, Elkhart County Commissioners Phil Stiver, Terry Rodino and Mike Yoder have decided they want to slightly reroute and widen CR 10 to a four-lane road between County Road 15 and County Road 17. The project is a precursor to construction on the Six-Span Bridge on CR 17.

"After studies of accidents in the area, it became obvious we needed to do something with the intersection at County Road 10 and County Road 17," said Jay Grossman, county project engineer.

However, the development plan selected will require the county to take 12 total properties and 23 partial properties, many of them private residences.

Earlier this year, commissioners considered four different proposals for the CR 10 corridor. Three of the plans, including Plan 4, the one chosen, involved widening the road in the Riverview Drive area, but another plan, called Plan 3, rerouted the road through farmland and involved taking fewer properties.

However, the road in Plan 3 would still cut through several residential lots and halve the property of First Baptist Church on CR 17.

Franklin Troyer, who lives near the rerouting but whose property will not be taken, argues that the government should use eminent domain to take land from private tax-payers only as a last resort. A better solution, he said, would be to take land from the church, which does not pay taxes, and the farmland, which is undeveloped.

"Why would you pick a route like that?" Troyer said. "This is not in the best interest of the public. It's the government at its worst."

In addition to his misgivings about the county's use of eminent domain, Troyer said, the county has not conducted sufficient environmental studies of the impacted area.

"All the runoff water has to go somewhere, and they've never done a study," he said.

Grossman said specific environmental studies are usually not included this early in the planning process.

"We know we have to deal with the water, but we won't know specifics until after we survey the land in January," he said.

With the project's estimated $8.6 million price tag, the county may have to reallocate some funds from other projects or delay construction for an additional six to eight years, Grossman said. He estimated that the project could begin as soon as 2008.

"They're supposed to buy my house and my neighbor's house, but now I've heard it's going to be a few years," said Shirley Sanders, who lives along CR 10.

Other neighbors also said they'd heard of the project but didn't know the details about what was going to happen to their property.

"I haven't heard anything from the county except what I've read in the paper," said Penny Larson, whose house and property on CR 10 are slated to be acquired by the county.

"They won't receive anything from us until we're at least 80 percent done with the designs and know exactly what land we need," Grossman said. "Our department has a good history of doing our best to treat everyone fairly."

Once the county determines exactly what its design plans are, Grossman said, appraisers would visit the properties and will then set up individual meetings with homeowners.

---

South Bend IN Tribune: http://www.southbendtribune.com

A step toward eminent domain: Costa Mesa CA Daily Pilot, 12/15/06

On the Town
By Steve Smith
There are several very important things that every American should expect from his government.

Among them, he should expect that his property will not be seized by the government for the purpose of eminent domain. The prospect of having one's property seized by the government against the will of the owner because it wishes to use it for its own purposes is a move of such horrific proportion that it conjures up images of dictatorships and closed societies.

Several months ago, when Triangle Square — Costa Mesa's failing, ailing mall — finally made it onto the radar of the City Council, one of the options expressed by a council member was to exercise the power of eminent domain.

The comment was not a formal proposal, but the fact that it was mentioned at all brought shudders to many people.

Now, Newport Beach is in the early stages of an eminent domain controversy.

In its too-long effort to find a home for a new city hall, the Daily Pilot reported last month that the city was appraising the tennis facility at the Newport Beach Country Club, a property that was not for sale, in consideration of its development as the site of the new building.

That the City Council has taken this first step is unsettling. That it did so less than two weeks after Newport Beach residents voted decidedly against the general principle of eminent domain is frightening.

One has to wonder why Measure W, the eminent domain vote, was placed on the ballot in the first place if there was no intention of following the voice of the people after the results were tabulated.

The development of a new city hall has dragged on far too long. As it does, costs rise.

It seems to me that there are two logical choices for the new city hall. The first is to build on the existing site. That location is and has been working well for many years.

The other choice is to build on the site near the Avocado Avenue library. I favor this option for a reason that cannot be quantified on a return on investment analysis or put neatly into columns or rows on a spreadsheet.

I just think it would be a better fit with the surrounding area.

Over the last few months, I have spent an unusual amount of time working right across the street from the library site.

There is more of an urban feel there, most of which is provided by Fashion Island's collection of shops and offices as well as the buildings on and near Avocado Avenue.

The city hall project needs to move quickly past the talking stage and into the doing stage. It's time to rebuild on the current site or build on Avocado.

Neither location will satisfy 100% of the city's residents — only one decision will do that. That decision is the one against seizing private property for the purpose.

---

Costa Mesa CA Daily Pilot: http://www.dailypilot.com

Staying the course of eminent domain seizures in Long Branch: New Jersey Eminent Domain Blog, 12/21/06

By Bill Ward
When property owners contest a condemning authority’s right to take, a stay is automatic under the Eminent Domain Act of 1971. The stay dissipates once the trial court issues findings of fact and conclusions of law upholding the right to take the properties.

In the eminent domain proceedings against property owners of Long Branch’s MTOTSA neighborhood, Monmouth County Assignment Judge Lawrence Lawson indicated there would be no stay in his June 22 opinion:

N.J.S.A. 20:3-11 states in part, “When the authority to condemn is denied, all further steps in the action shall be stayed until that issue has been finally determined.”

No stay is warranted here as this court has made a definitive ruling that the taking is authorized by law.

Upon publication of Judge Lawson’s opinion, Long Branch and its developers, Matzel & Mumford (K. Hovnanian) and Applied Management of Hoboken, could have proceeded with acquisition, demolition of the improvements and relocation of the property owners.

The obvious reason they did not is that the residential real estate market changed. The market could change again. This factor, and not the supposed “good faith” of the city of Long Branch, is what is driving the status of the project, despite the fact that the developer has obtained title to more than a half-dozen properties in the MTOTSA neighborhood since Judge Lawson’s decision.

If a stay is not issued by the trial court, a property owner must seek relief from the Appellate Division of the Superior Court. The standard for issuing a stay in the Appellate Division is difficult to meet and rarely given.

The standard for injunctive relief was established by the New Jersey Supreme Court in Crowe v. DiGioia in 1982.

In order to meet the standards, the applicant must demonstrate:

1. That in the absence of such a stay, the claimant will suffer irreparable injury;
   
2. The legal right underlying the plaintiff’s claim is settled;
   
3. A reasonable probability of ultimate success on the merits; and
   
4. The probability of harm to other persons will not be greater than the harm the claimant will suffer in the absence of such relief.

Appellate Judge Jack Lintner issued the stay in the Anzalone case on Nov. 6, thus protecting octogenarians Louis and Lillian Anzalone from any attempt by the city of Long Branch to seize their residence during the appellate process. The stay effectively protects the other MTOTSA appellants, even though their attorney did not apply for a stay.

Long Branch and its legal representatives have sought to minimize the impact of the stay order by stating in the press and in their court briefs that they said they would not file declarations of taking during the appeal.

Such verbiage is scant assurance and could be rescinded at the whim of the developer should the real estate market change. Remember, these are the same people who said the MTOTSA neighborhood would be residential infill and changed course after they reaped the profits from Beachfront North Phase I.

City attorney Paul Fernicola submitted a 20-page brief in opposition to the stay. If this was a conceded point, why would the city waste taxpayers’ money opposing the stay application? The answer is: city and developers want it both ways: They want to appear conciliatory to the property owners at the same time maintaining ultimate control over the acquisition process so they can move forward when the market dictates. The stay order prevents this.

The stay is more than just further assurance against seizures; it is an order of the court that maintains the status quo while the matter is litigated. Most importantly, it is the standard of probable success on the merits of the case. In a recent case involving Readington Township’s attempt to acquire property and developmental rights to Solberg Airport, Somerset County Assignment Judge Yolanda Ciccone granted the Solbergs the right to discovery and an evidentiary hearing.

This is what the property owners in Long Branch urged Judge Lawson to do, but were denied.

Now that the Anzalone case is before the Appellate Division with the stay in effect, and with both the Institute for Justice and the New Jersey Public Advocate participating in the appeal, the MTOTSA appellants should be optimistic about obtaining a reversal of the trial court’s decision.

---

New Jersey Eminent Domain Blog: http://www.njeminentdomain.com

Barbecue icon faces eminent domain: Kansas City MO Business Journal, 12/15/06

A barbecue mecca in downtown Kansas City took a step toward the chopping block this week when the city's Tax Increment Financing Commission's staff permitted condemning the property for a planned office building.

The TIF Commission on Wednesday authorized the developer - interests tied to Copaken White & Blitt - to seize the restaurant's property, owned by Danny Edwards, owner of Danny Edwards Famous Kansas City Barbecue at 1227 Grand Blvd., if a settlement can't be reached.

"Let's hope we don't get to that point," TIF Commission Chairman Peter Yelorda said regarding the use of eminent domain for the property, which sits at the doorstep of the new 18,000-seat Sprint Center arena to the south and the new Power & Light entertainment district to the southwest.

Neither Edwards nor Jon Copaken, a principal with the real estate development company, would specify how much Copaken has offered Edwards for the property.

Edwards said Friday that Copaken had made an offer for the property a couple of months ago that Edwards rejected.

The property's market value is $32,000, according to Jackson County's assessment department.

Edwards leased the building in 1983 with an option to buy, which he did a few years later. In May of this year, he looked at existing space in Barney Allis Plaza but said at the time that "(i)t would cost a lot of money to make that space ready for me, on my nickel."

Edwards also said at the time that the new entertainment district "would be a good place to move to."

In November 2005, the TIF Commission endorsed a plan for a $199 million office building next to the Power & Light District. Copaken said at the time that he wanted to attract a company headquarters.

Copaken also said at the time that the new building could be split among multiple tenants and that he wanted to lease more than half the building's 270,000 square feet before construction starts. The project also includes 50,000 square feet of retail space and a 1,300-space parking garage.

---

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

Judge rules against eminent domain for redevelopment: Carson City Nevada Appeal, 12/15/06

By William Ferchland
A judge's decision may have stalled the timeline for a massive redevelopment project while it kept one store in business for a few more months.

Judge Jerald Lasarow denied the South Tahoe Redevelopment Agency from using eminent domain to transform boutique store Lakeside Landing into a sales office that would use money from presales to help finance construction.

"We are very pleased with the court's decision and happy our employees are secure with jobs and health insurance over the winter season," said Margaret Maxhimer, owner of the store with husband, John.

Lasarow, who heard both sides argue before him in El Dorado County Superior Court last week, ruled Wednesday that the owners of Lakeside Landing will face "substantial" hardship if they closed by Jan. 10, the date requested by redevelopment officials.

Instead, the business will close April 8. Lasarow said representatives with the redevelopment project are allowed to access the property within reason for planning purposes.

In his ruling, Lasarow agreed with Claudia Gorham, attorney for the Maxhimers, who argued the impending closure of a Taco Bell and an existing, neighboring sales office could be used.

"This location (of the existing sales office) is near the major casinos and not far from the ski gondola," Lasarow wrote. "Many visitors walk by this location."

But Eugene Palazzo, redevelopment and housing director for South Lake Tahoe, said that sales office is for a different project.

Palazzo said he needs time to analyze the ripple effect from Lasarow's decision. He was unsure if the projected May date for construction will remain.

"I need to work with the developer to see what this means," he said.

Stacey Sheston, attorney for the redevelopment agency, said modifying Taco Bell or another business into a sales office could be in the six figures. Lasarow said the reasoning was unfounded.

"The plaintiff has failed to show this court what expenditures would be required to remodel other possible locations as compared to the property in question," he wrote. "One of the declarations stated an estimate of 400,000 to 500,000 dollars could be incurred if another location were used for the sales office. This seems to be speculation since there are no estimates submitted as to the actual cost and no breakdown for each of the possible locations."

The proposed $410 million project will face the Marriott timeshare hotels and Heavenly Village along Lake Tahoe Boulevard near Stateline.

---

Carson City Nevada Appeal: http://www.nevadaappeal.com

George Liebmann - There is another way to settle ‘eminent domain’ debate: National Examiner, 12/15/06

Commentary
By George Liebmann
The recent election has seen states adopt constitutional amendments reversing the recent Kelo decision allowing New London, Conn., to condemn private homes for purposes of development.

That decision was applauded by city officials, and was decried by many conservatives, including some seeking to ban all redistributive government activity.

A dialogue of the deaf, similar to that in the abortion and “gay rights” controversies, is under way: A judicial decision ignites extravagant political responses; arguments are cast as absolutes, and underlying problems are not rationally discussed.

Certainly, cities have not benefitted from “the federal bulldozer.” The condemnation of owner-occupied homes so that land can be handed over to developers is wrong. But it is a fact that inner cities do not spontaneously regenerate.

Because of the splintering of lots and the complication of titles, private land assembly is a difficult process; developers are held to ransom by “hold-outs”; and the line of least resistance is to develop on greenfields elsewhere.

Improving single properties is difficult; vandalism renders it infeasible. Although there is re-gentrification in historic neighborhoods and around harbors, decay is the rule, renewal the exception. Those urging that rights of property and “law and order” are all that is necessary to renewal overlook formidable transaction costs.

Several foreign countries have found a method of renewal that utilizes private developers and that minimizes, though it does not completely eliminate, governmental coercion. The technique is known as “land readjustment” and supplies the basis of re-development in the war-damaged cities of Japan, Korea and Taiwan, and in Kiel, Germany, and Rotterdam, Netherlands.

Under it, a percentage of owners in a city block petition a city council or court for creation of a readjustment district. Unlike the situation with government takings, any owner-occupier can exclude his property. If creation of the district is found reasonable, the properties within it are appraised.

Any owner not wishing to remain in the scheme has the right to be bought out at an appraised value, as in eminent domain. The remaining owners frame a redevelopment plan, give shares in it to a developer, and on completion, receive either their improved property and/or shares in a corporate owner.

The method relieves both developers and municipalities of land acquisition costs, and gives owners, in inner cities typically landlords, absentee investors, or municipalities, an incentive to cooperate.

Although a number of American academics have sought to foster the technique, it has never caught fire here, although there is no reason save unfamiliarity, why it should not. Similar devices have been used to consolidate land parcels in cemeteries and failed recreational developments.

Provided that compensation of dissenters is immediate, there are no constitutional obstacles. When the defenders and foes of Kelo are through screaming at each other and celebrating their victories and mourning their election defeats, they might usefully turn their attention to this moderate and hopeful device.

---

National Examiner: http://www.examiner.com

Eminent domain concerns at a head: Ft Collins CO Coloradoan, 12/15/06

N. College businesses worry city is set to resort to measure

By Kevin Darst
Despite assurances to the contrary, Fort Collins seems ready to take private property on North College Avenue to aid in the area's first major retail project.

That's vexing to North College business owners who say the city's assurances they would use eminent domain as a last resort helped smooth passage of the redevelopment plan. The area desperately needs those projects, but business owners are worried they could be the next to lose property under an eminent domain taking.

"The developer is waiting for the city to do their work for them," said Janet Haas, who owns North College Motors, which sits on the northeast corner of North College Avenue and East Willox Lane.

At issue is a rumored King Soopers supermarket northeast of North College and Willox. Developers haven't submitted anything official, though the project might be the worst-kept secret in the area, with a reference to it showing up last week on a power-point slide for City Council.

If built, the supermarket would trigger an expansion of the North College-Willox intersection, including added turn lanes, bike lanes and sidewalks. Those improvements would push North College and Willox onto North College Motors' property, coming within 5 feet of the dealer's door and virtually eliminating space for the dealership's cars.

North College Motors also could lose its prime street-front for a fraction of the price paid for a restaurant property immediately north of the dealership. An initial city appraisal pegged the dealership's land value at $8.24 a square foot, nearly $160,000 for the property and about one-sixth what developers paid nearly two years ago when they contracted to buy Pobre Pancho's restaurant and property.

The restaurant still is open.

Under eminent domain, the city offers fair market value for the property it needs for the infrastructure project. If the property owner won't agree to sell or thinks the offer is too low, the two sides go to a special court, where a judge makes the decision.

An October memo to City Manager Darin Atteberry from Greg Byrne, the city’s director of cultural, planning and environmental services, recommended the city acquire the property through condemnation instead of asking the developer to buy it.

That was based, in part, on Haas’ refusal to let city appraisers on the property for the initial appraisal.

Atteberry said Thursday he hasn’t decided whether to accept Byrne’s recommendation.

“We are always going to use eminent domain as a last resort,” Atteberry said. “Rarely in our history have we ever used eminent domain and when we do we’re very, very careful. Our interest is to minimize any kind of take on the property owner.”

City Council probably would have to approve an eminent domain taking in this case, according to the memo.

“I think there was some premature discussion that was not as open as it should have been,” said council member Karen Weitkunat. “I truly believe City Council will be extremely sensitive to this discussion.”

She said some actions so far have shown “great insensitivity.”

Ben Manvel, the council member who represents the North College area, could not be reached for comment.

Though an urban renewal plan for North College adopted two years ago calls for “good faith negotiations” by the developer and the property owner before the city uses eminent domain, Mike Kronenberger, who manages North College Motors, said he’s never received an offer for the property.

Jim Smith, who owns the property northeast of North College and Willox slated for King Soopers, did not return a call seeking comment.

At a meeting Thursday morning, business owners expressed concern at what they saw as the city’s quick move to the eminent domain route.

“We don’t have good feelings about the intentions,” said Ron Lautzenheiser, a member of the citizen advisory group that advises the urban renewal authority on North College matters. Lautzenheiser owns Grease Monkey and Big O Tire on North College.

The city routinely uses eminent domain, as allowed by law, when it builds streets and other infrastructure projects. But officials acknowledge those takings rarely have the impact this one would have.

Business owners argue the improvements wouldn’t be necessary without the supermarket, making any condemnation a handout to the developer.

---

Ft Collins CO Coloradoan: http://www.coloradoan.com

Arguments begin in Clayton eminent domain case: St Louis MO Post-Dispatch, 12/14/06

By William C. Lhotka
Lawyers for Centene Corporation began their condemnation case this morning seeking a court order to declare as blighted three properties along Forsyth Boulevard west of Hanley Road in Clayton for the company’s proposed $190 million office and retail complex.

Thomas Weaver, an attorney for Centene, used Clayton City Manager Michael A. Schoedel to identify reams of documents in St. Louis County Circuit Court that show Centene and the city of Clayton made all the proper moves in obtaining city approval in 2004 and 2005 for the redevelopment project.

Schoedel testified at the end of the morning session that Centene’s proposed project was in accordance with a Master Plan for Forsyth Boulevard that city officials adopted in 1993. The plan calls for high-density office use along Forsyth, described by Weaver as the spine of Clayton, along with retail operations.

To condemn the properties at Centene’s request, Judge James R. Hartenbach must determine that they are blighted.

In his opening statement, Weaver told Hartenbach that the decision on whether properties are blighted is a determination by a legislative body under Missouri law and, in this case, the Clayton Board of Alderman already made that determination when it approved the project in December of last year.

Attorneys for the property owners, David Danforth, Dan Sheehan and Debbie Pyzyk are expected to argue against a ruling that the well-maintained and highly appraised buildings could be adjudged as blighted.

In a prepared statement before the three-day trial began, Sheehan said: ``It’s very hard for me to believe that a property that is valued at more than $7 million an acre can be in any way considered blighted.''

---

St Louis MO Post-Dispatch: http://www.stltoday.com

TDA Moves Toward Eminent Domain Process: Towerview battle looms: Tulsa OK World, 12/13/06

Dilapidated site targeted; owner's lawyer vows to fight acquisition
By P J Lassek
The Tulsa Development Authority [TDA] approved a resolution Tuesday that starts the eminent domain process against the vacant and dilapidated Towerview Apartments.

But the lawyer for the owner of the targeted downtown property, Luay Aljamal of Oregon, said Aljamal will fight the action.

"Under no circumstances is my client going to go down without a fight in any attempts to condemn or take the property by eminent domain," attorney Phil Owens said in a telephone interview.

The apartment building, located on Cheyenne Avenue between Second and Third streets, was vacated in 2004 after the Tulsa City-County Health Department found several code violations and the owner refused to make repairs.

During a TDA meeting on Tuesday, city Economic Development Director Don Himelfarb said the parcel is part of a one-block area across from the BOK Center that has drawn the interest of a couple of hotel developers.

Himelfarb said the inability to acquire the entire block is hindering development options.

The Towerview property, he said, is "vacant, blighted and an eyesore."

One hotel developer who submitted a project proposal to the city was unable to reach an agreeable acquisition deal for the property, Himelfarb said. A second looked at the site and determined it can't be developed without acquiring the entire block, he said.

Litigation over the property "is a mess," Himelfarb said.

Aljamal is pursuing a lawsuit against the previous owners for allegedly not divulging all of the problems with the building before the sale. The previous owners are countersuing, alleging that Aljamal still owes them money.

All the city is interested in is acquiring title to the property, Himelfarb said. The current price figures being "thrown around have no correlation to anything that makes sense," he said.

Heavenly Hospitality of Anthem, Ariz., has proposed to the city to build a mammoth development on the site including a hotel, condominiums, urban lofts, retail and restaurant space.

Owens said Aljamal and Heavenly Hospitality had a contract signed for the Towerview property, but it was later canceled by mutual agreement.

Larry Dalton, president of Heavenly Hospitality, said the property has a lot of issues with its title and actual value.

A copy of the initial contract between the company and Aljamal listed the sale price as $2,050,000. But, Dalton said, that price was subject to an appraisal of the property and his company would not have paid more than the appraised value.

In 2004, shortly after being closed, the apartments were listed on a real estate Web site for $980,000. It then rose to $2 million and the listing was removed. The price increase occurred well before the hotel made its proposal.

Owens said the contract was canceled because of time frame issues relating to title of the property and escrow deposits. Dalton agreed, but added the price was an issue with the contract cancellation.

"Clearly, the $2 million is a very high price if you don't give value to the building, which we don't. He gives a lot of value to the building," Dalton said. "We think it's a building that needs to come down."

Dalton said he prefers not to use the eminent domain route, but there are complicated issues with the property and getting title to it.

Neither Dalton nor Owens knew that the authority had taken action on Tuesday.

Owens said that if necessary, Aljamal will remodel the property into lofts or some other use before he will agree to eminent domain.

Development Authority Executive Director Brenda Miller said TDA has enough funds to pay a fair market price and for demolition of the building. If the cost goes beyond that amount, the city and TDA will have to work together to find funds.

The TDA resolution seeks to add the Towerview site to the urban renewal acquisition plan for the downtown area and recommends that the City Council pursue acquisition. The recommendation will go to the Tulsa Metropolitan Area Planning Commission for approval before going to the council for approval of eminent domain.

Himelfarb told TDA members that he doesn't know what the council will do.

"I certainly will use my best communication skills," he said. "I think if laid out properly, they'll come to the same conclusion as we have."

---

Tulsa OK World: http://www.tulsaworld.com

Legislator - Domain bills coming: Charlottesville VA Daily Progress, 12/13/06

Cuccinelli wants advisory votes on what tack Virginians think should be taken - if any
By Greg Edwards
Expect several bills in the 2007 [Virginia] General Assembly designed to reel in government's use of eminent-domain powers, says Sen. Ken Cuccinelli, R-Fairfax.

It will be a do-over for Virginia lawmakers.

In reaction to a controversial U.S. Supreme Court decision, the General Assembly tried and failed this year to pass legislation to restrict the use of condemnation power.

In the upcoming assembly session, Cuccinelli plans to call for an advisory referendum on what sort of constitutional amendment, if any, should be adopted to limit eminent domain.

Cuccinelli wants the voters' opinion on two competing approaches that generally reflect bills that were debated by this year's General Assembly.

One of the bills clearly stated that condemnation could not be used primarily for economic development projects. Another would have limited condemnation but allowed it for existing purposes such as blight removal. However, when lawmakers got around to the issue at the end of the assembly session, they decided not to act rather than pass a bill hastily.

A referendum could help break the legislative logjam on eminent domain, Cuccinelli said. Lawmakers resist referendums, but property rights are at the foundation of government, he said.

State law and the state constitution need to be changed to restrict eminent-domain abuses, Cuccinelli said. A provision in the constitution that allows lawmakers to define public use for condemnation purposes undermines the purpose of having a constitution, he said.

"What we're talking about here is the restraining of government power," Cuccinelli said. "Developers get government to do their dirty work for them," he said.

The U.S. Supreme Court's ruling in a Connecticut case last year focused the public's attention on eminent domain.

The court in Kelo v. City of New London ruled that the U.S. Constitution does not bar government from condemning private property and turning it over to another private party for economic development. The high court said, however, that the states were free to put stronger limits on the use of eminent-domain power.

Cuccinelli was one of the three speakers at a news conference in Richmond yesterday sponsored by the Virginia Institute of Public Policy, a libertarian policy group based in Northern Virginia. The institute released a new report on the use and abuse of eminent domain in Virginia.

The Virginia Supreme Court in many cases has given less protection to property owners than the federal court did in the Connecticut case, said Jeremy Hopkins, a property-rights lawyer and the report's author. A debtor who refuses to pay his bills in Virginia is given more rights than a property owner, Hopkins said.

Those with condemnation authority, which includes private utilities, constitute a powerful lobby in Virginia, Hopkins said. Lawmakers who sit on key assembly committees vote on eminent-domain legislation even though they have conflicts of interests from the stock they own and the gifts and donations they receive from lobbyists, he said.

The only way Virginians will get meaningful eminent-domain reform is when people stand up and hold their representatives accountable, Hopkins said.

---

Charlottesville VA Daily Progress: http://www.dailyprogress.com

Salvo Fired in Atlantic Yards Eminent Domain Battle: New York NY Sun, 11/13/06

By David Lombino
The state of New York has issued what lawyers call the legal maneuver required to begin condemnation of private property inside the footprint of the proposed Atlantic Yards project in Prospect Heights, Brooklyn.

In a letter dated December 8, the Empire State Development Corporation sent a letter to property owners inside the 22-acre project footprint stating that based on its findings, the state had determined it should exercise its power of condemnation to clear the way for developer Forest City Ratner's $4.2 billion plan to construct an arena and 16 towers mainly for residential use. The letter stated the project footprint has been a "center of blight and decay," and that "the Atlantic Yards Project will transform this blighted area into a vibrant, mixed use development."

Property or business owners in the footprint have until January 11 to file a proceeding with the Brooklyn Appellate Division for a judicial review of the state's findings. The law limits the areas where property owners can challenge the condemnation.

A lawyer specializing in eminent domain, Michael Rikon, said last night the state's letter represented the "opening salvo" and the "only salvo" in the state's move to condemn. He said that under the existing laws, "It is virtually impossible in New York State to stop a condemnation."

---

New York NY Sun: http://www.nysun.com

Eminent-domain hearing in limbo: Rapid City SD Journal, 12/12/06

The status of a Dec. 22 hearing over the Dakota, Minnesota & Eastern Railroad's request to use eminent domain for an expansion project was uncertain Monday after DM&E asked for a different hearing examiner.

The South Dakota Transportation Commission had scheduled the hearing in Pierre to determine whether the rail line can use the legal procedure to gain the right to cross private land for its proposed $6 billion expansion to haul coal from Wyoming.

Bill Nevin, the attorney for the state Department of Transportation, said the attorney for DM&E recused the hearing examiner who was assigned to conduct the hearing. He said DM&E did not have to give a reason for its request.

"As a result of that, a new hearing examiner will need to be appointed. I expect that will probably happen by tomorrow," Nevin said late Monday afternoon.

Bill Janklow, the lawyer for some landowners, sent motions to the Transportation Commission asking that his clients be allowed to intervene and that the hearing be postponed.

"The motion for continuance is pending," Nevin said. "I assume the hearing examiner will take that up in the near future."

DM&E wants to rebuild 600 miles of track across South Dakota and Minnesota and add 260 miles of new track to Wyoming in order to haul low-sulfur coal eastward to power plants.

Opponents include some southwest South Dakota ranchers along the proposed route; residents in Pierre and Brookings, and the city of Rochester, Minn., and its Mayo Clinic.

Janklow, a former governor and congressman, said his clients had no formal notice of the hearing and limited time to get on the agenda, and would have difficulty traveling so close to Christmas.

Railroads are allowed by state law to take land from unwilling owners only if a project is for a public use consistent with public necessity. Railroads must also have already negotiated in good faith to acquire the property.

---

Rapid City SD Journal: http://www.rapidcityjournal.com

Dear interested party...

Commentary by www.nolandgrab.org
It's hard to imagine what it feels to receive a condemnation notice. In case you have never received one of these things, you can get an idea of what it's like by downloading a copy of the cover letter of the notice hand delivered to property owners in Brooklyn NY, in the footprint of the Atlantic Yards proposal.

www.nolandgrab.org/docs/EDPLcondemnation.pdf

Could eminent domain issue go before voters? New Mexico Business Weekly, 12/11/06

New Mexico's eminent domain opponents are hoping the state will follow in the footsteps of nine other states in protecting private property owners from the government's tool of eminent domain.

Last month, voters in nine states approved ballot initiatives limiting the use of eminent domain for economic development purposes. New Mexico has not put the issue before voters and there is no indication that it will be put on a ballot any time soon.

Instead, New Mexico Gov. Bill Richardson this year appointed a task force to examine the use of eminent domain. It recommended in November that the use of eminent domain for economic development purposes should be removed from the Metropolitan Redevelopment Act, the state legislation that regulates how revitalization areas and improvement districts are to be redeveloped.

Of the 34 states that have limited the ability of state and local governments to take private property for such purposes, only a handful have outright struck eminent domain from their codes. Others focused on procedural protections for private property owners, such as providing adequate compensation and property value for takings under the clause. The use of eminent domain as a federal statute was approved by the U.S. Supreme Court in the 2005 Kelo v. City of New London, Conn. case in which private property was being seized for a private, commercial redevelopment project.

The city of Rio Rancho, northwest of Albuquerque, has utilized eminent domain more than other municipalities in the region. It cites its use in successfully converting outdated property into redevelopable land for public utilities and other investments.

Richardson has not indicated how he might respond to the task force's recommendations. A bill is most likely going to be introduced in January during the 2007 legislative session.

---

New Mexico Business Weekly: http://albuquerque.bizjournals.com

Court - It's OK to stop developers: Penn Live, Harrisburg PA, 12/8/06

Superior court rules eminent domain may be used to preserve land
An eminent domain ruling from [the New jersey] state Superior Court could strengthen a similar case brought by Readington Township officials that is winding its way through the court system.

The ruling Thursday affirms Mount Laurel Township's right to seize land from a developer for open space preservation. Readington Township officials are arguing they have the right to condemn land around Solberg Airport for the same reason.

"Certainly the overriding principle of this opinion is helpful," said James Rhatican, the township's attorney in the case.

While it affirms the right to exercise eminent domain for land preservation purposes, it doesn't ensure a victory for Readington Township officials.

Laurence Orloff, the attorney representing the airport owners, claims officials' true motive has nothing to do with land preservation. He argues officials want to prevent the airport from expanding and serving larger aircraft. He contends officials masked a referendum allowing them to borrow money to fund the purchase as a preservation and environmental issue.

Officials are seeking 624 acres of land and the development rights to the 101-acre airport.

Thursday's court ruling decision "scuttles an argument of pretext," and shows stopping residential development correlates to land preservation, Rhatican said.

The Mount Laurel case centers on a 23-acre piece of land that is quickly losing its once-plentiful open space.

The township tried to buy the land in 2002 before MiPro Homes LLC received a subdivision approval for its plans to build 16 homes there. After being rebuffed, the town's government used its power of eminent domain to acquire the land to preserve open space and to avert problems that can come with more homes, such as traffic congestion and school crowding.

MiPro sued and a trial court judge agreed with the homebuilder that seeking to prevent sprawl was not a sufficient reason for the government to use its takings power.

Last year an appeals court overturned that decision, and on Thursday the state Supreme Court agreed with the appeals court in a 6-1 decision.

Environmentalists applauded Thursday's decision, which strikes a blow to developers, and some argue, private property rights.

Richard S. Van Osten, executive vice president of the Builders League of South Jersey, said the ruling is a blow to property owners.

"If you own property in New Jersey, you are not immune from having the ownership of your land taken by force to preserve open space, whether there is a true plan for it or not and whether you are willing to sell it or not," he said.

The Sierra Club, on the other hand, applauded the ruling.

"Towns can condemn land for private development," said Jeff Tittel, director of the environmental group's New Jersey chapter. "Now they can condemn land to stop sprawl."

---

Penn Live, Harrisburg PA: http://www.pennlive.com

Ranching interests push for eminent domain law reform: Billings MT Gazette, 12/11/06

The Associated Press
After working with the oil and gas industry on a compromise bill to reform Wyoming's eminent domain law, the Wyoming Stock Growers and Wool Growers associations say now they'll lobby for more sweeping reforms.

"Eminent domain is just an incredibly personal issue to ranchers because it can be life or death," said Ogden Driskill, the Wyoming Stock Growers Association's regional vice president for northeast Wyoming.

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, said among other things, the two groups would push for a "public benefit" test to determine whether eminent domain actions for private uses would truly benefit the public, "which should not include minimizing corporate cost or streamlining permitting," according to the joint resolution.

"Ideally, these are what we'd like, and we are going to work through any number of mechanisms to get what we can," Magagna said. The move comes after some members of the ranching groups complained about the compromise bill, which was drafted with input from the Stock Growers and Wool Growers, along with the Petroleum Association of Wyoming, the Wyoming Farm Bureau and others.

Magagna acknowledged that he'd heard criticism from some of his members about the compromise bill. He said the ranching groups would fight - within reason - to get everything their members want.

"Our goal will be to get, to some degree, every one of those recommendations," Magagna said. "But we're going to have to make some judgment calls and some strategy calls along the way."

Bruce Hinchey, president of the Petroleum Association of Wyoming, said he wasn't surprised to see the change in stance from the ranching groups.

But he said landowners have little to fear from eminent domain, which mostly is used for highways and other transportation rights of way.

"I don't think anyone is trying to abuse it," Hinchey said. "I think our companies and municipalities do a good job."

---

Billings MT Gazette: http://www.billingsgazette.net

Eminent domain OK for Nets: New York NY Daily News, 12/9/06

By Elizabeth Hays
The Atlantic Yards project in Brooklyn got a key approval yesterday from the Empire State Development Corp., authorizing the use of eminent domain to build an arena for the Nets, a hotel and 16 residential and office towers.

Now the ball bounces to Assembly Speaker Sheldon Silver's court.

The three-member Public Authorities Control Board gets the project next. In recent years, Silver (D-Manhattan) has used his influence on the panel to kill the proposed West Side Stadium and delay the Moynihan Penn Station proposal.

A Silver spokesman said yesterday it is too soon to know the speaker's position, though a growing chorus of critics is calling for him to delay a vote until after Governor-elect Eliot Spitzer takes office Jan. 1.

The control board's next meeting is Dec. 20.

Empire Development Corp.'s chairman, Charles Gargano, said the board voted on three aspects of Atlantic Yards, approving the general plan, an environmental impact statement and the use of eminent domain for the property.

Supporters say the project, which is slated to be finished in 2016, will bring much-needed jobs and housing to Brooklyn. Critics charge it is too big and will create a traffic nightmare.

---

New York NY Daily News: http://www.nydailynews.com

N.J. court upholds eminent domain: Philadelphia PA Inquirer, 8/8/06

It said preserving open space is an adequate reason to take private property
By Emilie Lounsberry
In a decision highlighting the value of open space in the nation's most densely populated state, the New Jersey Supreme Court ruled yesterday that Mount Laurel acted properly when it seized a developer's land to preserve open space.

"We recognize ... that the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space," the state's highest court said in the 6-1 decision.

Jeff Tittel, director of the New Jersey chapter of the Sierra Club, called the court's action an "important victory" for people and municipalities concerned about the impact of sprawl on the dwindling amount of undeveloped land in the state.

"In the race for open space, New Jersey just picked up a lot of speed," said Tittel.

The case has been closely watched in the wake of last year's U.S. Supreme Court decision giving wider authority to local governments to use eminent-domain powers to seize private property for economic revitalization - not just for more traditional reasons such as building highways and government buildings.

That ruling triggered controversy and fears of cronyism - fears that elected officials could simply condemn private property so a developer could build condos or undertake some other lucrative project that could be touted as economic development.

Such concerns led more than 20 states, including Pennsylvania, to curb or prohibit the use of eminent domain for economic development. In May, Gov. Rendell signed legislation that generally prohibits the use of eminent domain for private development.

Yesterday's ruling came in a court battle over a 16.3-acre parcel owned by MiPro Homes L.L.C., which had obtained approval from the Mount Laurel planning board to build 23 homes on the site. A previous owner of the land had intended to build an assisted-living facility there, but MiPro bought the land and opted to build houses. The township then tried to buy the land. When MiPro refused, officials opted to use eminent domain to acquire the property.

Jeffrey Baron, who represents MiPro, said he has urged his client to ask the U.S. Supreme Court to hear an appeal of the ruling.

Baron said the decision gave unfettered power to municipalities to halt development. "Any municipality in New Jersey now can take any property that would be potentially for development," he said, even after a developer has gotten all approvals.

Baron said MiPro did everything required, and still ended up with its property condemned. "We did everything that we should do, and they took it," he said.

The decision came with a strong dissent from Justice Roberto A. Rivera-Soto, who concluded that the case presented an "improper exercise" of the power of eminent domain, which allows government to take private property as long as owners are fairly compensated.

"In my view, a judge's individualized and idiosyncratic view of what is or is not socially redeeming has no place in determining whether the sovereign's exercise of the power of eminent domain is proper," Rivera-Soto wrote.

Bill Potter, a Princeton lawyer who heads the Coalition to Stop Eminent Domain Abuse, said battles are under way in Mount Holly, Camden, Trenton, Newark and Long Branch over whether the municipality can condemn private property and turn it over to a developer.

Michael Mouber, Mount Laurel's township attorney, said he believes yesterday's ruling will encourage other municipalities to use eminent domain as an additional "tool" in efforts to preserve open space.

A state Superior Court judge had sided with the developer in the Mount Laurel case in 2005, but the township won in the Appellate Division, the state intermediate appeals court, in August 2005.

The New Jersey high court upheld the Appellate Division, which pointed to numerous statutes enacted over the years allowing the use of eminent-domain powers to acquire land for recreation and conservation.

"Even more telling," the high court said, "New Jersey residents have voted repeatedly for the issuance of state and county bonds to provide funding for open space."

That the municipality sought to limit development "does not alter our disposition of this case. The town's motive is not inconsistent with the motive driving the public interest in open space acquisition generally," the court said. The majority also concluded that MiPro should be compensated based on the fair market value of the land.

Potter said the ruling fine-tuned eminent-domain law by making it clear that such an action can commence even after a developer already has received approval for a project.

"It does clear up what was a bit of an ambiguity, which was whether municipalities may use eminent domain after a developer has obtained all their approvals, and the answer is yes," said Potter.

The Ruling and the Reaction

Excepts from the ruling
The state Supreme Court sided with an Appellate decision, ruling that:

"Through numerous statutes enacted over the years, the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space. Some of those statutes provide... the power of eminent domain to acquire land for recreation and conservation purposes."

"A township's motive to limit development and thereby limit overcrowded schools, traffic congestion and pollution that accompanies development is not inconsistent with... the public interest in open space."

Reaction to the ruling

"In the race for open space, New Jersey just picked up a lot of speed." - Jeff Tittel, New Jersey chapter of the Sierra Club

"Any municipality in New Jersey now can take any property that would be potentially for development," even after a developer has gotten all approvals. - Jeffrey Baron, attorney for developer MiPro

"It does clear up what was a bit of an ambiguity... whether municipalities may use eminent domain after a developer has obtained all their approvals, and the answer is yes." - Bill Potter, Coalition to Stop Eminent Domain Abuse

"If you own property in New Jersey, you are not immune from having the ownership of your land taken by force to preserve open space, whether there is a true plan for it or not and whether you are willing to sell it or not." - Richard S. Van Osten, Builders League of New Jersey

---

Philadelphia PA Inquirer: http://www.philly.com