Eminent Domain Hits Home: Columbia (MO) Daily Tribune, 12/31/05

Man hopes struggle will instruct others

It took five years and a contested decision from the U.S. Supreme Court, but Doug McDaniel finally has his captive audience.

"Most people, when you start talking about eminent domain, get glassy-eyed and don’t think that it could ever happen to them," he said.

It happened to McDaniel, 49, whose family has lived outside of Linn in central Osage County since 1791. McDaniel complained to legislators, but nothing happened.

Then in June, the Supreme Court drew national attention to the use of eminent domain, ruling property could be taken for private redevelopment that generates more taxes.

Gov. Matt Blunt responded by appointing a task force on eminent domain. Now the issue is among the Missouri General Assembly’s priorities for the 2006 session.

But the new interest comes too late for McDaniel. After negotiations with Ameren produced no agreement, the St. Louis-based power company used eminent domain to acquire the land it needs to build a 345-kilovolt power line that will help Ameren sell electricity in northwest Arkansas. The line cuts through McDaniel’s fields, running six feet from his metal barn and 75 feet from the farmhouse.

"When this first started out, as the landowner, naturally, I thought I had more rights to the land than anyone else," he said. "I was pretty shocked that people other than me had more rights to my land."

Missouri law gives municipal governments the authority to condemn private property for public use, such as the construction of roads and electric and water lines. Although local governments can also use eminent domain to seize property for private developments, such as shopping malls or office buildings, some private companies also have this condemnation authority.

Michael Cleary, a spokesman for Ameren Services, said Ameren does everything it can to work out an agreement so the utility has permission to use the land without the property changing ownership.

Cleary said that sometimes, with particularly reluctant landowners, eminent domain is the only way to acquire land needed for an electrical line.

"The landowner wouldn’t have power if someone somewhere hadn’t granted an easement to get the power to them," he said. "Putting it in someone else’s back yard isn’t really an option, because then you just have another landowner."

The examples of eminent domain use extend throughout the state, yet geography affects the debate.

In rural areas, utility company easements are one of the most common manifestations, because private property is rarely needed for commercial development.

Likewise, larger cities have plenty of power lines, but a city government can increase its tax base by declaring homes or apartment buildings "blighted," thus opening them for development by other private entities.

But the definition of blight is subjective and often has been criticized as a mechanism for taking private property and using public money to redevelop it.

"A piece of property should have to be clearly blighted and not just in worse shape than mine to call it blighted," said Sen. Chuck Gross, R-St. Charles, who served on the governor’s eminent domain task force. "It shouldn’t be a relative figure but an objective standard that isn’t left up to the whim of a local government or the court."

As frustration over eminent domain mounted, a special House committee was named in 2003 to study the state’s eminent domain laws. McDaniel was among those urging change. But the full House never voted on the committee’s recommendations.

Since then, McDaniel’s legal battles with Ameren have continued, and the state is again gearing up to change how eminent domain and easements can be used.

A gubernatorial task force appointed to study eminent domain has recommended its changes, and a slew of bills have been filed. Some would narrow the types of properties that can be seized under eminent domain; one would require businesses that use eminent domain to acquire private property to give 2 percent of the annual earnings from the site to the former landowners.

Had the recent recommendations from the governor’s task force been in place when Ameren began its project in 2001, the company still could have put a power line through McDaniel’s farm, but it would have happened differently.

Ultimately, Ameren condemned and repossessed a tract on McDaniel’s farm. One proposal calls for stripping eminent domain authority from private companies. This would not necessarily include utility companies, but the task force urged the legislature to consider whether utilities and railroads should also have the same condemnation authority as the government.

Under the task force recommendations, McDaniel would have been given information about his legal rights as soon as Ameren indicated it wanted an easement for his land, and he would have had access to a state ombudsman to help him through the process.

In spite of the recent attention, McDaniel said most people still don’t understand eminent domain, which makes them vulnerable.

"People think if they own their home and pay their taxes, it’s theirs, but if someone with more money comes along and wants to develop it, run power lines over it or a sewer line under it, they could lose it," he said.

Cleary said it’s important to differentiate between the instances when utility companies use privately owned land to extend electrical, gas or water lines across property and when developers and municipal governments use eminent domain for redevelopment.

"Utility projects provide a community service that ultimately benefits the entire community," Cleary said. "It’s an entirely different situation than condemning property to turn it over to a private developer for an office building or a shopping center. That’s what’s really raised the public ire."

Columbia Daily Tribune: www.columbiatribune.com

State court rules against Norwich for eminent domain land: Norwich (CT) Bulletin, 12/30/05

A state appellate court has ruled against the city of Norwich in a dispute over the value of a small parcel of land the city seized by eminent domain.

The 198-202 Main St. parcel, already incorporated into the Wauregan Hotel project under construction, was condemned and seized by the city from Bozrah-based Styx Investors in Norwich, LLC in 2003.

In 2004, a superior court decision ruled in favor of the city in determining of the value of the property. But a State Appellate Court decision to be published Tuesday overturns the ruling siding with an argument that the value of the land should be determined in conjunction with the Wauregan project rather than the market value.

The city had proposed an offer of $16,000, which prompted the appeal to superior court. Appraisers for Styx pegged the value at $95,000.

In their decision, the appellate court noted it was publicly known the land was to be used in conjunction with the development of the Wauregan Hotel.

Norwich Bulletin: www.norwichbulletin.com

Eminent domain task force issues final report: Kansas City (KS) Business Journal, 12/30/05

The Missouri Task Force on Eminent Domain issued a list of 18 recommendations Friday to Missouri Gov. Matt Blunt for changes and improvements in how eminent domain is used in the state.

In a written release, Blunt said he endorses the recommendations, which, if enacted, are expected to make a difference in curbing the abuse of eminent domain in the state.

The recommendations include:
  • Legislation to define just compensation, blight, public use and good faith negotiations.
  • Legislation that ensures property owners are made aware of their rights and that property owners have sufficient time to participate in the process.
  • Laws to allow for mediation and cost recovery.
  • Laws to protect landowners if the condemning authority acts in bad faith or doesn't use the land for its original purpose within a certain time frame.
  • Laws that limit eminent domain powers to elected officials and their appointees.
  • Laws that prevent eminent domain use to take farm land for economic development purposes.
  • Studying the possibility of a state government official to help citizens with the eminent domain process.

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

Governments Address Kelo Backlash: The Heartland Institute, 1/1/06

By James Hoare

State and local governments are responding to a groundswell of citizen outrage over the U.S. Supreme Court's June 23, 2005 decision in Kelo v. City of New London. As citizens prove adamant that government should not violate private property rights merely to enhance tax revenue by forcing one private citizen to sell his or her property to another, bills designed to end eminent domain abuse are being authored in legislatures across the nation.

Thirty-eight states have passed legislation restricting eminent domain abuses or are currently in the process of doing so. Support for reform legislation is remarkably bipartisan and evenly distributed throughout the country.

Kansas Represents Bipartisanship
The heartland state of Kansas provides a typical example of the bipartisan support for eminent domain reform. State Senate Majority Leader Derek Schmidt (R-Independence) teamed with Sen. Greta Goodwin (D-Winfield) in September to unveil legislation limiting the circumstances under which government can take one citizen's property and transfer it to another.

"The notion that property ownership is a right doesn't have much meaning if a majority of the city council, county commission, or state legislature can vote to take a person's property and give it to somebody else," explained Schmidt, quoted in Greenwire on September 30.

"I certainly believe that some adjustments are in order to protect private property rights," added Republican colleague Sen. Phil Journey (R-Wichita). "To give land to another person so that person can make money and grow the tax base is outside the purposes of eminent domain and outside the right of government to take private property. There needs to be a very high burden of proof for such actions."

The proposed legislation is equally popular among Democrats. "I just think it's an abuse of power" for government to take property from one private citizen and give it to another, state Rep. Harold Lane (D-Topeka) told the October 7 Topeka Capital-Journal.

Protecting basic property rights "is a people issue," agreed state Rep. Ann Mah (D-Topeka).

Many States Taking Action
While the Kansas proposal waited to be formally addressed by the legislature, other states also took steps to curb eminent domain abuse. The Wisconsin Assembly passed eminent domain legislation on September 27 and forwarded it to the state Senate. The Pennsylvania House passed eminent domain legislation in November. The Michigan Senate passed eminent domain legislation on November 9, and Ohio Gov. Bob Taft (R) on November 16 signed into law a measure preventing local governments from seizing unblighted land for economic development.

"Citizens have been rising up against eminent domain abuse," said Scott Bullock, senior attorney at the Institute for Justice. "It has been an incredible thing to witness.

"With 38 states either limiting eminent domain abuses or currently in the process of doing so, this is a grassroots movement of epic proportions," Bullock said. "There is a real opportunity to change the law, and state legislators from both parties are taking notice."

Local Governments Join Fray
In many cases, local governments decided not to wait for state legislative action and began the process of enacting private property protections of their own. In St. Charles, Missouri, City Councilman John Gieseke introduced a resolution on November 1 to prohibit the city from confiscating private homes for the purpose of giving the land to another private citizen for economic development.

"Can you imagine someone coming to your neighborhood and taking your home to put up a Wal-Mart?" said Gieseke at a November 1 city council meeting, according to the November 6 St. Louis Post-Dispatch.

Local businessman Kevin Rogers, who owns a Dairy Queen, expressed disappointment during the meeting that the resolution applied to homes but did not safeguard other private property.

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

Acknowledging Rogers' concern, Gieseke proposed to expand the resolution. "If the area's not blighted and there's a legitimate business, eminent domain should not be used," Gieseke agreed.

Eminent Domain Abuser Dumped
Local officials who supported broad exercise of eminent domain power did so at their own peril. St. Louis Alderman Thomas Bauer was recalled from office by residents of his blue-collar neighborhood after he played a pivotal role in displacing local residents from their homes for the purpose of building a gas station and convenience store.

Bauer asserted his intention was to improve the neighborhood's economy and convenience with the new business, but his words fell on deaf ears.

More than two dozen documents addressing eminent domain, including the full text of the majority and dissenting opinions in the Supreme Court's Kelo decision, are available through PolicyBot™, The Heartland Institute's free online research database at www.heartland.org. Click on the PolicyBot™ button, and select the topic/subtopic combination Law/Eminent Domain.

The Heartland Institute: www.heartland.org

James Hoare is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon: jhoare@mcgivneyandkluger.com

Petitions oppose eminent domain in Clayton: St Louis (MO) Post-Dispatch, 12/28/05

By Margaret Gillerman

A group of downtown Clayton property owners turned in petitions at City Hall on Wednesday to try to force a public vote on the use of eminent domain for the $190 million Centene Plaza redevelopment project.

"Eminent domain for the enrichment of a private party is wrong," said David Danforth, one of the property owners and the president of Mint Properties Inc. "We have not been offered fair prices, and many of us would rather not move at all."

Members of the group - called the Clayton Committee to Stop Abuse of Eminent Domain - presented the petitions to acting City Clerk June Waters. The petitions ask the Board of Aldermen to repeal two ordinances passed Dec. 13, one allowing the Centene Plaza redevelopment project and one allowing use of eminent domain to obtain properties in the 7700 block of Forsyth Boulevard for the project. Should the board refuse, the petitions seek to force the city to hold a referendum.

City Manager Mike Schoedel said the Centene project had unanimous support from the board. Centene provides managed health care for Medicaid recipients and for children whose family income is too high for Medicaid but not sufficient to afford private insurance.

"We remain convinced that the project to keep Centene's headquarters in Clayton and generate 800 new jobs is in the best interests of the people of Clayton and the entire region," Schoedel said. "It will ... revive an area that has suffered high vacancy rates and plummeting economic performance over the past decade."

Schoedel said the property owners would be paid at least 105 percent of the market value of their property. "The city is obligated to make certain that existing property owners are treated fairly, and we will do that," he said.

The five property owners whose properties would be taken say their properties are well-maintained and house viable businesses. The properties - from 7716 through 7736 Forsyth - include the Dolan and Edward L. Bakewell realty offices, the Kohner Building and a spa, among other businesses. The project would not affect Cafe Napoli and a few other stores immediately east of Napoli.

Both Dolan and Bakewell would have to go, and the companies do not want to move.

"We have been part of the Clayton community for a long time, and we've supported it for a long time, and we would like to continue to do so - at this location," said Daniel F. Sheehan Jr., president of Dolan Realtors and owner of the properties at 7716-18. Dolan has been in Clayton since 1951 and at the site since 1977. Bakewell, one of Sheehan's tenants, has been in Clayton since 1930 and at that site since 1981.

Centene plans to build a new corporate headquarters in a 16-story building at Hanley Road and Forsyth Boulevard, renovate its existing office building, buy a city-owned parking garage and build a new strip of retail stores. Centene is asking for a tax abatement.

The property owners in opposition said they support the Centene project, except for the retail strip.

"Just look across the street. I defy anyone to tell me they see blighted buildings," said Laura Dierberg Ayers, a lawyer representing the Clayton Committee to Stop the Abuse of Eminent Domain. "Clayton voters do not support the use of eminent domain in such an abusive manner ... not tax abatement giveaways."

She said the group gathered about 270 signatures of registered voters, five times as many as needed for a referendum. The next step is for city officials to turn over the paperwork to the county election board to verify that the signatures are valid.

St Louis Post-Dispatch: www.stltoday.com

Use of eminent domain stirs debate: (Lincolnshire IL) Pioneer Press, 12/29/05

By John Roszkowski

Carol Johnson doesn't like the idea of the government taking people's property and then turning it over to a private developer for just another retail center.

Johnson is one of many Lake Zurich residents who has protested recent efforts by her village to condemn five properties in the downtown to pave the way for a new retail and condominium development.

While her property is not directly affected, she worries that her home, which is located only a couple blocks from the proposed development, could be targeted for condemnation in the future.

Supreme court ruling
The use of condemnation by villages to redevelop downtown areas has produced a debate between property rights advocates and village officials. The debate intensified recently with the U.S. Supreme Court's Kelo decision which expanded government powers to condemn property for private development projects.

In the past, governmental units have primarily used eminent domain to provide vital services to the public, such as new roads, hospitals or utilities.

State Sen. Susan Garrett, D-29th, of Lake Forest, has proposed a bill to better clarify when eminent domain can be used for private development and provide more protection to individuals whose property is taken.

"The legislation tries to find a balance between economic development and property rights," she said.

Garrett's bill would limit the taking of property for private development to property that is "blighted" or to areas defined as blighted under the Tax Increment Allocation Redevelopment Act. It also would require the condemning authority to pay reasonable relocation costs to affected property owners, if necessary, and to reimburse reasonable attorney's fees to property owners who contest condemnation if a court determines the taking of property was not warranted.

Garrett said she plans to introduce the bill during the spring legislative session and hopes to get feedback from citizens, businesses, developers and local governments by Jan. 6.

Chris Wilson, executive director of the Lake County Municipal League, which represents 42 cities and villages in the county, said Illinois already has very strong laws in place to protect the rights of property owners when eminent domain is used for redevelopment purposes. She worries the additional expenses could kill important projects.

"It just encourages people to litigate and stall. It doesn't give them any incentive to sit down with local governments and negotiate in good faith," she said.

Earlier this year, Lake Zurich filed eminent domain lawsuits against five parcels in its downtown along Main Street and Lake Street. Four of the properties were residential rental homes and one was a business, the Rock N' Roll Grill.

Lake Zurich Village Administrator John Dixon said all of the properties the village sought were within the village's downtown Tax Increment Financing District. Dixon said a village five-year study found property values in that area were experiencing little growth, and in some years declining.

"We had spent considerably money on infrastructure enhancements in that area, but property values weren't keeping up," said Dixon.

He said Lake Zurich has already reached an agreement with three of the property owners on a purchase price.

But many homeowners like Johnson are concerned about the precedent being set by the village's action.

"If a village can capriciously take a person's property and sell it to a developer, everybody's got to be worried," she said.

Eric Waggoner, a principal planner for Lake County, said the county is monitoring eminent domain legislation at the state level but has yet to take an official position.

Pioneer Press: www.pioneerlocal.com

Eminent domain — Recreation can be legitimate use of this government power Anchorage (AK) Daily News, 12/29/05


Eminent domain, a standard power granted to government under the U.S. and Alaska constitutions, sure is getting a bad rap these days.

It started with a controversial U.S. Supreme Court ruling that allows the government to take property (albeit at fair market value) for private redevelopment projects. Critics on the left and right assailed the ruling. Many states and cities, Anchorage included, reacted with laws saying their governments can't use eminent domain in the way the court had authorized.

It was an understandable and legitimate response. Turning government-condemned land over to private owners leaves too much room for abuse by well-connected development interests. If there's a strong enough public purpose to justify the government forcing someone to sell against his wishes, the property should remain in public ownership.

Now comes Anchorage Assemblyman Chris Birch. He wants to pile additional restrictions on the city's potential use of eminent domain. He's hoping his colleagues will agree to limit the city's power to force the sale of a property interest — even an easement just a couple of feet wide — when it's used exclusively for trails or other so-called "leisure" purposes.

His latest version exempts sidewalks and trails that are done when street and roads are built or upgraded. That change helps limit the damage his proposal might do. But overall, his ordinance is still an overreaction based on the idea that trails and other recreation facilities are somehow frivolous. In fact, they are part of the infrastructure of a healthy community.

Public health officials have pointed out that the nation is in the midst of an obesity epidemic. One major cause is sedentary lifestyles. Getting people active is a legitimate goal of government policy.

The easiest, most popular form of exercise is walking. Making it easier to get around on foot, including purely "recreation" trails, is an important public health measure. In a survey this year by the city parks department, four of the five most popular recreation activities involved trails. Vast numbers of walkers, runners, bikers and skiers ensure the trails are heavily used year round.

An expanding trail network is also part of a balanced metropolitan transportation network. The easier it is to walk or bike or ski, the more people can shop, go to work, or visit friends without hopping in a car. Every time a car is not started, Anchorage's air stays cleaner.

Those who oppose the southern extension of the Coastal Trail hope Birch's ordinance will drive a stake in project's heart. The southern route requires easements along small slices of many properties. Some easements are below the bluff, out of sight of the owner's house. In other places, the trail needs to cross small sections of private property alongside a public street or road.

Birch's ordinance would give the most recalcitrant homeowner veto power over the entire trail extension. Letting one person kill a project that serves thousands of people in the entire community is clearly not in the public interest.

Given the Assembly's conservative tilt, and demonstrated hostility to the Coastal Trail extension, Birch's ordinance may pass. But it's a misguided measure that would make it harder to build the infrastructure that makes Anchorage a healthy community.

BOTTOM LINE: There's no good reason to ban the use of eminent domain for recreational projects in Anchorage.

Anchorage Daily News: www.adn.com

Milwaukee Neighborhood Group Calls for Eminent Domain Use: (Wisconsin) Daily Reporter, 12/23/05

By Sean Ryan

A neighborhood group around the Hartung Quarry landfill wants the city of Milwaukee to unleash its eminent domain powers.

The city-owned landfill is completely surrounded by a classic suburban single-family neighborhood. The Hartung Park Neighborhood Association wants the city to convert the landfill into a public park, but first it wants the city to acquire and rip down the neighborhood’s five remaining apartment buildings, located on North 99th Street. It also wants to see a cul-de-sac of owner-occupied houses built in their place.

“We know there’s all this crap going on up there,” said Margaret Silkey, president of the roughly 45-member association. “We just want to keep the neighborhood a decent, viable place and not have it become a run-down area.”

The local alderman, Jim Bohl, is sponsoring a resolution to order the Department of City Development to plan for a tax incremental financing district to pay for the new park. The plan includes acquiring the five, four-family apartment buildings around the landfill and redeveloping the lots.

Although the resolution orders DCD to make a “good-faith effort” to do that without using eminent domain, Milwaukee Mayor Tom Barrett said he doesn’t want to touch the idea of acquiring the properties for redevelopment.

“It’s a dangerous road to go down,” he said. “I have not seen any member on the council wanting to tear down these homes except the alderman in the local area.”

Kelo ruling
The situation hits a nerve that the U.S. Supreme Court’s Kelo v. New London ruling left raw in 2005 when it said governments could use eminent domain to acquire property for economic development. It’s a case Barrett, Bohl, Silkey and Milwaukee County Supervisor Lynn De Bruin referenced when discussing Hartung.

Bohl said he’s got grassroots backup and that the neighborhood would be ready to pepper the mayor with calls and letters to gain his support. Silkey said she knows Barrett and said, “I can understand why Tom feels like that.”

“We’re going to have to develop some strategy to perhaps enlighten the mayor,” she said.

This looming conflict was news to three of the four property owners caught in the middle. Apparently nobody from the city or neighborhood told them about the discussion over whether or not their buildings should be torn down. Nonetheless, the three said the same thing when they heard the news: I’ll negotiate, but the price better be right.

“I’d be screaming and kicking if it wasn’t worthwhile,” said Dominic Ambroselli, a Milwaukee resident who owns one of the five apartments. “It’s totally a money thing. I could potentially love the plan if they could be in my favor as far as the price. Otherwise, it would be a terrible plan if I could do a lot better on the open market.”

Two of them said they bought the properties because they knew the landfill would turn into a park one day and increase the value of the buildings. Donald Janowski, a Brookfield resident who owns two of the buildings, bought his about 10 years ago, and Ambroselli said he waited 20 years for the city to build the park.

“I have to assume that it would be a good scenario for my property here,” Janowski said about the park. “I don’t know if the city of Milwaukee can afford it, but with all the taxes I pay them ...”

Unlikely scenario
De Bruin, who is working on the park plan with the city as chairwoman of the county Parks, Energy and Environment Committee, said she thought eminent domain was an unlikely prospect.

“The negative of that is those properties might not be gone, but one positive of it is that you won’t have to force people out of their homes,” she said.

Silkey said that, as an ex-realtor, she understands the issues at play but thinks the buildings should go for the greater good of the area. She said the buildings generate police calls, have garbage on the curb and attract an unsavory crowd of tenants.

“It’s a matter of taking away someone’s livelihood — which is the rent from those buildings — so that is a big issue,” she said. “The multifamilies will deter from the beauty and the use (of the park) because there is so much activity going on down in the corner. … It’ll spill over into the park, and people will use it for who knows what.”

Tom Holman, who owns an apartment across the street from Hartung Quarry, said he’s been trying to upgrade his tenants and recently booted one that was causing a lot of trouble. Janowski said he screens his tenants very closely but that the apartment between the two buildings he owns has some problems.

“I’m very cautious and very careful about who I rent to,” said Janowski, who spent $20,000 renovating his properties in recent years. “I try to rent to people that will be good for the neighborhood.”

The city’s Zoning, Neighborhoods and Development Committee is scheduled to consider Bohl’s resolution on Jan. 10.

The Daily Reporter: www.dailyreporter.com