Panel OKs toll-road limits: Denver (CO) Post, 1/20/06

Fight against "takings"

By Jim Hughes

Undeterred by Gov. Bill Owens' veto of the same proposal last year, the Senate Transportation Committee on Thursday unanimously approved a measure that would prohibit private toll-road developers from using eminent domain powers to condemn land.

The Republican sponsor of Senate Bill 78, Sen. Tom Wiens of Castle Rock, said negotiations with Owens' office have so far yielded no compromise on the issue that last spring brought hundreds of activist homeowners to the state Capitol.

The controversy arose when it became known that the Front Range Toll Road Company planned to use a 19th-century law to condemn a swath of land to the east of Front Range communities so it could build a for-profit north-south tollway. Wiens' bill would do away with the condemnation powers offered in that law, forcing toll-road companies to enter into partnerships with governments.

"When your house and your land is in danger of being taken from you, it changes your whole attitude," explained Barbara Fillmore, whose ranch straddling the line between Elbert and El Paso counties lies in the proposed transportation corridor.

Fillmore and a handful of other homeowners attended Thursday's hearing at the Capitol, saying they were gratified to see the committee once again support Wiens' legislation.

Supporters of the bill are hoping this election year for a change of heart from Owens or a willingness in the General Assembly to override another potential veto, said homeowner Patty Sward-Malczewski of Elizabeth. It takes a two-thirds majority in the House and the Senate to overcome a governor's veto.

"If you're up for election or re-election, why would you vote against this?" Sward-Malczewski said. "It doesn't make political sense."

Owens vetoed Wiens' bill last year because he said he didn't want to preclude private solutions to transportation problems in the state, he said.

But that argument does not hold up to scrutiny, Wiens said Thursday. There are other ways for private companies to build toll roads without condemnation

Denver Post: www.denverpost.com

Eminent domain on agenda: Cullman (AL) Times, 1/21/06

By David Mackey

After passing a law designed to curb the use of the "eminent domain" power to seize citizens' property following a controversial decision of the U.S. Supreme Court, Alabama legislators are considering several proposals to go even further. Cullman County's state representatives said they have yet to come out in favor of any of the proposals.

Sen. Larry Dixon, R-Montgomery, has proposed an amendment to the state constitution barring the taking of private property for commercial or industrial development. His amendment would also require that if any property is seized, not used for the stated purpose and then sold, it must first be offered for sale back to the original owner at the price paid to them upon seizure, less taxes.

Sen. Jack Biddle, R-Gardendale, has proposed an amendment nearly identical to Dixon's, but allowing seizures of "blighted" property in urban renewal zones.

An amendment offered by Sen. Steve French, R-Birmingham, bars the state and Alabama municipalities from taking property for "any purpose other than actual use by the public." French's amendment also mandates that property owners are entitled to monetary compensation for any use of eminent domain that restricts their rights to use their property.

The state Legislature passed a law in 2005 barring eminent domain seizures for private purposes after the U.S. Supreme Court declared such takings constitutional in a Connecticut case known as Kelo v. New London.

All amendments to the state constitution must be approved by Alabama voters.

State Rep. Neal Morrison, D-Cullman, said Friday he was "not in favor of anything out there right now."

"I'm looking at all the options, but we've got to be real cautious," Morrison said.

He said he was concerned that a hastily-enacted amendment could inadvertently impede takings for traditional public purposes like building roads or schools. As an example, he spoke of a project to widen Highway 278 to improve safety.

"If it means taking somebody's property, then I'm in favor of taking it ... because it's for the good of the public as a whole," Morrison said.

Rep. Jeremy Oden, R-Vinemont, said he favored French's proposed amendment over the others, and hopes to add a clause of his own if a bill reaches the House.

Oden said he wants any amendment to include a provision that if a seized property is sold within seven years of its taking for more money than was paid to the owner, the original owner of the property would then be paid the difference.

He said he believes the proposed amendments do, and should, allow takings for public purposes.

"Utilities and roads, that's the reason (eminent domain) was developed, not for economic development reasons or anything like that," Oden said Saturday.

State Sen. Zeb Little, D-Cullman, did not return messages seeking comment.

Cullman Times: www.cullmantimes.com

Owners claw against eminent domain bid: Contra Costa (CA) Times, 1/22/06

By Laurie Phillips

Demolition will begin by summer on a handful of buildings along Railroad Avenue, and after the scraps are cleared and fresh lawn is rolled out, a lush green strip will mark the entrance to a city intent on improving its image.

The city of Pittsburg [CA] expects to pay as much as $3 million to acquire the 13-parcel stretch at the corner of California Avenue and construct a sound barrier. But it's not enough, say two men who own parcels the city needs to proceed with the project. They believe the city is lowballing them for prime land adjacent to Highway 4.

"Because no one is challenging them, they do whatever the heck they want," Dave Shepard, who operates a real estate business on one of the parcels, said of Pittsburg's leaders. " ... They really need to understand, 'Hey, you're out of line.'"

Shepard and Jack Moore, who owns a building near Shepard's now leased by an engineering firm and Caltrans, know what the city is doing is legal but don't believe it is fair.

"Justify it? They don't have to justify it," Moore said. "They have eminent domain on their side."

Kerry Lyman, the project manager for the site, said the city has been more than fair in offering both men just compensation for their properties, required by law when cities acquire private land for public projects through eminent domain. Relocation agents have met with Moore and Shepard to explain the process and help them find a new location.

Independent appraisers hired by the city most recently valued Shepard's property at $360,000 and Moore's at $365,000. Garrett Evans, director of the city's redevelopment agency, said the city paid somewhere in the high $200,000s to low $300,000s to buy the other properties along that stretch.

To receive more money, Lyman said, the men must prove their properties are worth it.

"We have a fiduciary responsibility, because this is taxpayer money we're spending, not to just throw dollars at people and make them go away," he said. Noting the men have used arguments about square footage and location to demand more money, he added, "I don't know if I can blame them, but you can only go so far without abusing the system."

While property owners do not see the complete appraisal created for the city for each parcel, Evans said they are offered the highest value for their land based on one of three approaches: income generated by the property, comparable sales in the area or cost to rebuild the building. Using recent sales tends to yield the highest value in this market, he said.

Evans invited Moore and Shepard to submit their own appraisals for consideration. In past cases when the owner produced a valid appraisal that was higher than the city's, he said, the property value was determined by splitting both appraisals down the middle.

Both men said they plan to conduct their own appraisals, but only Moore plans to submit his to the city for consideration. Shepard said he'll submit his in court.

Attorney Mark Epstein of San Francisco law firm Seiler Epstein Ziegler & Applegate, who has worked on many eminent domain cases, encouraged both men to submit their own appraisals to the city. In the process that follows, he said, property owners typically receive more than what they were originally offered for their land.

That said, he added, Moore and Shepard should be mindful of the fact that "a real estate appraiser is looking at what zoning in the area allows to be built there, not necessarily what's there."

The men also wondered why an uninhabitable residential property Shepard used to own elsewhere in Pittsburg was appraised at $360,000 – the same amount he was offered for his land by the freeway.

With some exceptions, Evans said, residential land is worth more than commercial land in Pittsburg because there is higher demand for it.

Shepard must vacate his building by March, Moore after the highway improvements in the area are finished.

"I know in the end, I'm going to come out ahead in this," Shepard said. "I'm going to win. But I feel obligated to take this as far as I can so something happens."

Evans believes people are treated fairly when their properties are acquired by eminent domain, a process that he said allows ample opportunity for public participation.

"When we sit down with somebody (whose property) we're looking to acquire, we encourage them to seek another appraisal, seek legal representation, to make sure that all their legal interests are considered," Evans said. "Our end goal is to seek a resolution to this that both sides can walk away from."

Contra Costa Times: www.contracostatimes.com

Don’t tinker with eminent domain law: (Des Moines IA) Business Record, 1/22/06

Our View

There’s a classic David vs. Goliath battle brewing in the Legislature over the government’s use of eminent domain. In the end, it may not amount to much more than a lot of bluster about a power history shows hasn’t been abused much in Iowa.

Oh, the proposed law will play well in rural Iowa. It’ll play well with entrepreneurial mom-and-pop business owners like some of those in the East Village area who fear failure to bring their buildings up to standards set by new developers may result in their losing their properties in a condemnation battle. It’ll play with libertarian-thinking people who like to keep the government at arm’s length. For all of that chest-thumping on behalf of the little guy, though, a bill in the Iowa Senate that would sharply limit a government’s ability to condemn land looks more like election-year grandstanding than actual problem-solving.

In theory, private property rights, engrained in our national psyche as one of the most basic of human rights, are worth protecting at all costs. The problem with that line of thinking is that it doesn’t address how one party’s property rights are infringed upon by an adjoining owner’s decision to allow property to exist in squalor. Looking at the issue through that lens, it’s hard to argue against eminent domain when it’s used to acquire truly blighted areas so run down that they inhibit development around them, thus spurring redevelopment for public purposes or even another private development that lends stability to a neighborhood. It’s also hard to argue that its use isn’t improving downtown Des Moines’ west side, where the Western Gateway Park was a stimulus for impressive private development projects like the Meredith Corp. expansion and the Nationwide-Allied Insurance, ING Insurance and Wells Fargo Financial buildings.

It should be understood that a government’s condemnation power is effective only when used sparingly and other means of acquiring land have been exhausted. That’s been the tradition in Des Moines and throughout Iowa, and there simply is no evidence, anecdotal or empirical, to suggest that local government officials suddenly will embark on a reckless spree to acquire land for retail stores, manufacturers, hospitality businesses and other economic activities.

But to strip local governments of the power of eminent domain because they might eventually abuse it seems unnecessarily harsh. Talking about it should be warning enough for them to stay on course : Use eminent domain wisely and sparingly, or lose the power altogether.

Des Moines Business Record: www.businessrecord.com

Eminent domain looms over downtown project: (Eugene OR) Register-Guard, 1/22/06

By Edward Russo

It's called the ultimate weapon or the last resort.

Whatever the name, the power of eminent domain, as exercised by the city of Eugene, could play a pivotal role in the unfolding downtown redevelopment drama.

Yet Oregon voters - through a statewide ballot measure regarding eminent domain - ultimately may influence what the city can or cannot do to acquire land along Broadway on behalf of developers.

City officials say they don't want to use eminent domain to acquire land for a proposed shopping, office and entertainment complex on Broadway.

They say they will try to help the developers and property owners reach sales agreements that the developers have so far been unable to accomplish on their own.

"The (City) Council's pretty clear that eminent domain is something that we rarely use," said City Manager Dennis Taylor. "Our charge is to work on how we can get a project to go forward, rather than some type of veiled threat about condemnation."

But city officials haven't ruled out the possibility of using eminent domain, either.

And that's where the ballot measure could come in.

Last year, a divided U.S. Supreme Court upheld the constitutionality of local governments' forcing private property owners to sell in order to make way for private commercial development if there is a legitimate public purpose.

The ruling has prompted backlash efforts to strengthen property-owner rights in several states, including Oregon.

Oregonians in Action, a property rights group, is circulating signature petitions to put a measure on the November ballot that would prevent governments from acquiring land from one private property owner and selling it to another property owner for private use.

"We are trying to remedy the very narrow situation where the government says, `We know better than you what to do with your property, so we are going to declare your property as blighted, take it from you and give it to this developer who will put it to what we think is a much better use,' "said Ross Day, a lawyer for Oregonians in Action.

The Oregon Constitution and state laws give local governments wide latitude in using eminent domain, Day and other lawyers said.

In eminent domain, a court, after hearing arguments from both sides, sets the sale price that a government must pay an owner for his property.

The state constitution allows cities to use eminent domain as long as the property is being acquired for a "public use."

"Public use" is a broad term that can include economic development, said Glenn Klein, an attorney for the city of Eugene.

So, local governments are not limited to using eminent domain for roads, public buildings, parks and other publicly owned facilities. There are no laws preventing governments from acquiring property under eminent domain and then selling it to a private property owner as long as the project is "associated with some kind of public benefit," Klein said.

Public urban renewal agencies have used eminent domain to acquire blighted property, clear sites and improve streets, and then to sell the land to private owners for development, he said.

The Connecticut connection
The use of eminent domain by New London, Conn., triggered last year's Supreme Court case. New London, through a private, nonprofit development agency, sought to acquire private homes along a waterfront and then to sell the land to developers. The developers were to build offices, housing, a marina and other facilities near a proposed $300 million research center by pharmaceuticals giant Pfizer.

Justice John Paul Stevens, writing for the majority, cited cases in which the court has interpreted "public use" to include slum clearance and land redistribution.

Stevens wrote that a "public purpose" such as creating jobs in a depressed city can be used to satisfy constitutional requirements for condemnation. "Promoting economic development is a traditional and long-accepted function of government," he wrote.

If Oregon voters approve the pending ballot measure, that could prevent Eugene from acquiring downtown property through eminent domain and selling it to a private developer, Day said.

However, the ban would not likely stop a condemnation that got under way before the law took effect, he said.

Whenever a government agency gets involved in redevelopment, there's a chance it will consider using condemnation.

The downtown Eugene proposal is particularly volatile because many of the private properties the developers - Tom Connor and Don Woolley and their partner, The Opus Group - want to secure are owned by small-scale business people and are occupied by tenants, including stores, taverns and offices.

If city officials fail to help the property owners and the developers reach sales agreements, the City Council could be asked to approve condemnation. That would test how far councilors are willing to go to support the developers' plan.

"I wouldn't rule out the possibility of condemnation, but you really would have to make a case for that," said Jack Roberts, director of a Eugene-Springfield business recruitment agency, and a joint owner of a Broadway building in the project footprint sought by the developers.

Roberts said he's willing to sell. But many of the other adjoining property owners are more reluctant.

Viable existing businesses
Scott Kirkpatrick, who lives near downtown Eugene, doesn't object to the city helping Connor and Woolley redevelop the properties they own downtown. But, to him, it makes no sense for the city to condemn buildings that house viable businesses, such as the John Henry's and Horsehead taverns. Kirkpatrick, who patronizes those night spots, noted that Connor and Woolley own downtown buildings that are mostly empty, plus the pit on Willamette Street that once was the site of the F.W. Woolworth building.

"I would like to see the energy spent there first, before we condemn businesses that already employ people and bring people downtown," Kirkpatrick said.

Taylor, the city manager, said that in coming weeks city employees will act as ambassadors of sorts between property owners and developers, to see if sales deals can be reached.

City employees could play a similar role to that of Springfield officials, who have sought purchase options on property in the Glenwood area as a possible site for the McKenzie-Willamette Medical Center, he said. In those cases, Springfield officials asked property owners to name their price. About a dozen owners responded with initial prices averaging a lofty $1.1 million an acre.

There are other ways for the developers to acquire property besides agreeing to a high price, Taylor said. Those may include giving property owners an ownership stake in the new development, or rental space in it at favorable rates, he said. "There are a lot of ways to skin this cat," Taylor said.

At a Jan. 9 council meeting, most councilors were enthusiastic about the downtown project. Still, the majority worried about possibly having to weigh the development's potential benefits against the negatives of condemnation.

Council divided
Councilor Chris Pryor said he likes what he's heard of the Connor and Woolley project.

Connor and Woolley are "longtime community residents who want to build something that will be beneficial commercially, and contribute to the overall quality of life," he said.

But the city should use condemnation only "under the most extreme circumstances, where all other options have been exhausted and the community's need has been established," he said.

Councilors Betty Taylor and Bonny Bettman said they were troubled by the prospect of condemnation. They objected to giving city staff permission to work with the developers, but at the Jan. 9 meeting were outvoted, 6-2.

Bettman said the city should use eminent domain only "to achieve a quantifiable and very high priority public good, like health or safety."

Property owners in the proposed development area, some of them "loyal to downtown for decades, should have the right to maximize their investment by selling to the highest bidder, or remain in business if they so choose," she said.

"The targeted businesses are not an obstacle to downtown redevelopment; they are only an obstacle to Connor (and) Woolley's attempts to monopolize solid blocks of downtown property," Bettman added.

Sue Prichard, a real estate broker working for Connor and Woolley, said it's easy to characterize the situation as wealthy developers trying to maximize their profits and the "little guy getting squeezed."

But the project would improve the heart of the city, she said. "Instead of talking about what we don't want, let's talk about what we do want. What I want is a more vibrant, diverse, fun and interesting downtown. And if it takes the combined efforts of the city, the developers and the individual property owners, then that is what we should do."

Register-Guard: www.registerguard.com

Eminent domain legislation goes too far: Indianapolis (IN) Star, 1/22/06

My View

By Matthew Greller

The Indiana Association of Cities and Towns opposes House Bill 1010 on eminent domain. While we affirm that property rights of Hoosiers need to be protected from unreasonable seizure by government, we believe adequate protection already exists in Indiana law.

HB 1010 imposes unreasonably severe restrictions on government acquisition of private property for public ends. It narrows the types of properties where eminent domain may be applied and unnecessarily drags out the process in a manner that would cripple many timely economic development initiatives.

It's possible the bill's sponsors may be overreacting to the much-publicized impasse between the Indiana Stadium and Convention Building Authority and N.K. Hurst Co. over property needed for the new stadium project. This single case should not rush us to judgment that could have unfortunate ramifications.

Eminent domain is a rarely used government action, frequently upheld by state and federal courts, that lets a city or town acquire property with just compensation and relocation expenses to property owners. It may be used only for the public good, with stringent review and public input. It is used only as a last resort after all private negotiations have failed. Without eminent domain, many roads, sewer lines, water resources and other public projects would never have been completed.

Without the possible use of eminent domain, Indiana probably would not have the AM General Plant in Mishawaka, the Toyota plant in Gibson County or the Isuzu plant in Tippecanoe County.

More recently, eminent domain was a factor in the Fall Creek Place project in Indianapolis, the revitalization of an entire inner-city neighborhood that earlier had been plagued with blight and street crime.

In the city's acquisition of more than 250 properties, 28 cases of eminent domain were filed and used only when the owners of the property could not be found.

Responsible Indiana cities and towns historically have and will continue to judiciously balance the rights of private property owners with the interests of the entire community.

HB 1010, with all its new restrictions, is not needed to protect those rights. In fact, in a state where many economic development initiatives are being pursued with a sense of urgency, HB 1010 could well be counterproductive.

Indianapolis Star: www.indystar.com

Eminent Domain Knocking on Church's Door: The Conservative Voice, 1/21/06

By Jerry Falwell

I learned this week that a small Baptist church in Oklahoma is at risk of losing its place of worship because it sits on a site where city leaders want to build a shopping plaza.

This eminent domain business is getting serious.

Since the U.S. Supreme Court’s Kelo ruling last year, we are facing a brand new ballgame in terms of private property and what that term really means.

For the Rev. Roosevelt Gildon, pastor of the Centennial Baptist Church in Sand Springs, Okla., eminent domain is threatening to tear his church apart.

I’ve never met Rev. Gildon — or “Rosey,” as his friends call him — but as a pastor of nearly 50 years, I can imagine the feeling of helplessness this man must be feeling. He’s been leading the flock for seven years at the church. And now the congregation is looking to their shepherd for answers, with government officials threatening to take the church property.

Government officials in Sand Springs have told Rev. Gildon they will be seizing the church property in order to build a “super center.”

This is an alarming development, one that should send shivers down the spine of any pastor reading this column.

In the Kelo case, a group of Connecticut homeowners chose not to accept a corporation’s offers so that a business area could be developed. So the city council authorized the corporation to acquire properties within the designated area. When homeowners refused the offers, the development corporation voted to use eminent domain to acquire the properties, even though the owners were averse to selling.

Following a trial, the case was appealed to the state supreme court, which determined that the use of eminent domain for economic development doesn’t violate public use clauses of the state and federal constitutions. Appeals failed to protect the rights of the property owners.

We are now seeing that “economic development” is more powerful than personal property rights — or church rights, in the case of Centennial Baptist Church.

In a National Review Online (www.nationalreview.com) article titled “Unholy Land Grab,” Heather Wilhelm reported that this church property takeover is unnecessary.

“The way things are now, Centennial Baptist Church could easily live side-by-side with new stores, houses, or businesses,” Ms. Wilhelm wrote. “Yet Centennial remains in the crosshairs — even though two nearby national chains, a taxpaying McDonald’s and a taxpaying O’Reilly’s muffler shop, have been left alone.”

She also reported that Centennial is not run down; in fact, she reports that the building is like new and fully functional. So this isn’t a case of city officials getting rid of a dilapidated old church.

Rev. Gildon has now coalesced with Americans for Limited Government and Oklahomans in Action to fight the takeover bid of his church.

I’m no lawyer, but maybe the federal Religious Land Use and Institutionalized Persons Act or 2000 (RLUIPA) can provide protections for Rev. Gildon’s church. RLUIPA is a federal statute that provides stronger protection for religious freedom in terms of land use. The statute has been beneficial in halting discriminatory zoning laws that target churches across the nation.

In the meantime, my prayers are with Rev. Gildon and his congregation. They should be afforded the right to remain at their present location so that they can serve God and fully minister to their community. Let the money-hungry corporate big boys either build around the church or move on to another locale.

The Conservative Voice: www.theconservativevoice.com