Eminent Domain Watch: 03/19/06

3/22/2006

Use of condemnation challenged in Haverstraw village: The (Westchester County NY) Journal-News, 1/21/06

By Ron X Gumucio
Owners of a medical complex [in Haverstraw NY] want to develop their building as they see fit, rather than let the village condemn it so a health-care facility and affordable housing can be built.

Lawyers for Pat Lynch and Ken Griffin, the owners of Graziosi Medical Complex, are challenging the village's plan to use eminent domain to acquire the West Broad Street building for the proposed public use. David MacCartney filed a petition of notice Wednesday in the Appellate Division of state Supreme Court in Brooklyn.

The village and Board of Trustees are named in the complaint and have 20 days to respond. MacCartney said he would then have three months to file legal arguments.

"It is our position that this is a taxpayer-funded tenant acquisition of private property," MacCartney said. "Basically we question why the village is condemning property when the private owners plan to fulfill the same public purpose. ... But they propose to do it with private funds."

Housing Opportunity for Growth, Advancement and Revitalization wants to build a mix of one-, two- and three-bedroom units on the second and third floors above a Hudson River Community Health facility. HOGAR, which rents space in the building, would keep its offices on the first floor.

Lynch said during a public hearing in July that he and his partner wanted to build affordable housing but would use private funds. His plan included a mix of retail stores and professional offices and six to eight affordable-housing rental units.

"We're confident that the court will decide in our favor because it's a public need," said HOGAR Executive Director Edna Rivera. "This is not a private developer gaining a profit. This is a clear need for the community."

Mayor Francis "Bud" Wassmer agreed.

"My opinion is that the village is on very firm ground," he said. "The owner's plan is not consistent with the village's and while this will slow the process, we will eventually be able to move forward."

Rivera said it would cost $4.39 million to expand and renovate the building. If the village successfully condemns it, HOGAR plans to finance most of the purchase using a Community Development Block Grant loan, as well as money from selling the units.

The Ginsburg Development Corp., which is building a $400 million waterfront redevelopment project, would contribute $180,000.

In the complaint, MacCartney states that the village "successfully scared off" all potential purchasers who had outbid HOGAR by saying it planned to acquire the building for a new village hall. This allowed HOGAR to again start negotiations with the former owner of the Graziosi building.

However, a few months after Lynch and Griffin bought the building, the village scheduled a public hearing for the proposed condemnation. The village's actions unfairly benefited HOGAR and would satisfy Ginsburg's requirement to provide affordable housing to the community, MacCartney said.

"It's an abuse of the condemnation powers and it's unconstitutional," MacCartney said.

Wassmer denied any wrongdoing by the village.

Wassmer said Ginsburg does need to satisfy some requirements, "but with or without him, we need affordable housing."

The Journal-News: www.journalnews.com

3/21/2006

Lawyer: Water tank dispute is not misuse of eminent domain: (Beckley WV) Register-Herald, 1/26/06

By Fred Pace
Rick Staton, a Mullens attorney representing the Eastern Wyoming County Public Service District in a lawsuit involving Bud Mountain land owners, says he wants to clarify inaccurate or misleading information about the case.

“This is not an eminent domain case in the context of the U.S. Supreme Court ruling this summer, nor the legislation the House of Delegates recently adopted,” Staton said. “Those issues involved taking private property for a private purpose.”

The water battle revolves around the PSD’s desire to construct a $14.7 million public water system in Mullens, Corinne, Bud, Black Eagle, Wyco and surrounding areas. Land owners that may lose property have accused the PSD of abusing eminent domain powers.

Jo Ann Lester, a family member of one land owner, also claims the PSD was not responding to Freedom of Information Act requests for information about surveys done on proposed sites.

The PSD had petitioned Wyoming County Circuit Court for right of entry to three parcels of land owned by Annie Hagy, Larry and Karen Pressley, and the heirs of Pink Byars. Lester said the land owners reached an agreement several months ago, giving engineers the right to survey proposed sites for the tank and tower.

“Taking someone’s land is taking someone’s land,” Lester said. “This is an eminent domain case in our opinion.”

Staton says the law allows for taking land for a public purpose.

“This matter involves acquiring property for a public purpose, which is providing water to an unserved area inhabited by dozens of families on Bud Mountain,” Staton said. “Many are currently trucking water into their homes. Ironically, many of the litigants in this case do not live on Bud Mountain and do not have to truck their water. The tank is necessary to providing water to these families. Blocking construction of the tank blocks these families’ access to potable water. The acquisition of a part of any property for a water tank has to be proved to the court to be necessary and for a public purpose.”

Staton said Lester’s claim that the PSD is not answering FOIA requests is incorrect.

“The PSD is not hiding the survey results,” Staton said. “In fact, a previous order entered last year which compromised the right of entry on the property specifically authorizes the PSD to share the results with the other parties. They have already been given much information. Further, court rules governing lawsuits would already require that. I know it’s sexier to report that people are withholding information, but that’s not the case. The parties who spoke to you know that they are getting the survey results, and in fact have already received some engineering data.”

Staton said a recent FOIA request was for information that belongs to the engineers, not to the PSD.

“It is not information the PSD has, nor has a reason to have,” he said.

Staton said the sole purpose of the motion last week was to clarify the PSD’s obligations to respond to FOIA requests vs. its responsibilities to provide information to and through attorneys in a pending litigation.

“While FOIA allows information to be requested and exchanged between parties and if applicable their attorneys, rules of the court regarding pending litigation require the information to be exchanged only in the context of that litigation,” Staton explained. “Further, court rules prohibit parties or their attorneys from contacting either side except through the litigation process. In fact, it is technically an ethical violation for me to respond to the FOIA requests on behalf of the PSD while the litigation is pending, unless I do so directly to their attorney. These requests are being made by the litigants, not their attorney, and many times without even their own attorney’s knowledge.”

Staton added it is already public information that most of the “22 alternative sites” land owners claimed were better for the new water tank and tower have already been determined by engineers to not be suitable sites for the project.

“They have provided no engineering reports to the contrary,” he said. “It is wrong for anyone to portray that the PSD is looking at only two of more than over two dozen potential sites for the tank. In fact, the PSD would be abrogating its responsibility by choosing a site that is not good and which requires costly litigation to get the tank placed there. Does anyone reasonably expect that the PSD sat down in some dark room and said, ‘We have better places for the tank we can get more cheaply and faster, but let’s go after these two?’”

Staton says the current litigation was to request access to the property solely to determine whether a portion of either of the properties is suitable for location of the tank.

Legislation Introduced To Block Eminent Domain Law: (Berlin MD) Coast Dispatch, 1/26/06

By Shawn J. Soper
In response to a landmark U.S. Supreme Court decision last year that essentially broadened the powers of local governments to seize private property in the name of economic development, State Senator Lowell Stoltzfus (R-38) this week introduced legislation aimed at tightening Maryland’s application of eminent domain.

Stoltzfus and several of his colleagues this week introduced legislation titled the Property Protection Act of 2006 in the Maryland General Assembly, which, if approved, would eliminate economic development as a valid reason to evoke eminent domain in Maryland. The bill’s introduction comes on the heels of a Supreme Court decision to broaden eminent domain powers to include economic development.

Eminent domain, by definition, is the right of government to seize private property for public use in exchange for payment of fair market value. Traditionally, local governments use eminent domain to take property with compensation to the owners when it is needed for roads, bridges, schools or other infrastructure.

However, the high court’s decision last summer broadens eminent domain powers to a level most property rights enthusiasts are not comfortable with. The Supreme Court voted 5-4 to uphold plans by officials in a coastal Connecticut town to condemn nine private homes along the waterfront to pave the way for a large office complex and marina project.

“It caused a huge outcry, and rightfully so,” Stoltzfus said. “Property rights are fundamental to us as Americans and we like to believe our private property and our very homes are safe from seizure by the government.”

Stoltzfus said evoking eminent domain in the name of economic development opens up all sorts of potential property seizures including many in Worcester County.

“This can be applied anywhere,” he said. “This could be applied in places you wouldn’t even consider. Ocean City is ripe for it if we don’t tighten up our own eminent domain statutes.”

The Supreme Court’s decision allowed the nine waterfront properties to be seized for economic development because the justices believed the proposed project was a better use of the land than what was on the ground.

“Perceived blight should not be used as the basis for seizure,” said Stoltzfus. “If it can, than half of the quaint, waterfront shanties that dot our coastline could be seized if a glamorous project was proposed to replace it. It’s too subjective.”

Maryland Coast Dispatch: www.mdcoastdispatch.com

House OKs eminent domain limits: Ft Wayne (IN) Journal Gazette, 1/27/06

By Niki Kelly
[Indiana] Lawmakers hopped on the anti-eminent domain bandwagon Thursday, voting unanimously in the House to restrict the use of condemnation for private profit.

Hoosiers have shown more concern over the use of eminent domain since a key U.S. Supreme Court decision came down last year.

That pressure gave Rep. Dave Wolkins, R-Winona Lake, the support he needed to pass House Bill 1010, which now moves to the Senate for consideration.

He told his colleagues about a letter he received from an elderly South Bend man who has lived in the same home for almost 60 years. He went to a meeting recently and was told the city was taking much of one neighborhood through eminent domain.

So far, the highest offer for any of the homes on the street is $40,000. “That’s not right,” Wolkins said with a quaver in his voice. “I ask you to help me solve this problem.”

The bill would make it harder – and more expensive – for cities, towns and counties to take private property and then transfer the land to a private, for-profit entity.

For instance, the city of Fort Wayne in 2000 used eminent domain proceedings to force a $2.2 million purchase of the Belmont Beverage lot at Harrison Street and West Jefferson Boulevard. The land was to be used for a third downtown hotel to be owned and operated by a private company.

But now the city has decided against that location, and the land is in limbo.

Traditionally, eminent domain has been used on projects of public use, such as a road or a school or park. But the practice has slowly morphed into public good, such as creating more jobs or adding to the revenue base.

It was the latter approach that the U.S. Supreme Court ruled in favor of last year. The legislation affects an entity that uses eminent domain to acquire a parcel of property from a private person “with the intent of ultimately transferring the ownership or control of the parcel to another private person.”

Under these circumstances, the taking of the parcel would have to be a last resort.

The parcel would also have to meet more specific conditions for a judge to determine it is blighted and available for condemnation, such as being subject to health or housing code violations.

Those sections will make it close to impossible for cities to acquire farmland for a large manufacturing plant or other economic development project, according to a few Democrats who spoke on the measure.

But it was not enough for them to vote no.

“I believe this is one of those efforts that we’re undertaking not for political agenda or partisan reasons but out of necessity,” said Rep. Trent Van Haaften, D-Evansville.

He differs with an exception in the bill for the Indiana Department of Transportation but wanted the legislation to move forward for improvement.

A large portion of the legislation addresses how much money owners of the land would receive in an eminent domain case. Current law requires “just compensation,” but the bill would force cities, towns and counties to pay homeowners 150 percent of the fair-market value, plus relocation costs.

Businesses would not be eligible for the increased percentage but could claim damages, such as loss of income.

Journal Gazette: www.fortwayne.com

Eminent domain bill should pass: Cook County (MN) News-Herald, 1/26/06

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Seitz on panel to study eminent domain: Cincinnati (OH) Enquirer, 1/26/06

By Greg Korte
State Rep. Bill Seitz, R-Green Township, is one of three representatives selected by Ohio House Speaker Jon Husted to serve on a panel that will study Ohio's eminent-domain laws.

The special legislative task force is part of a bill calling for a year-long moratorium on the use of eminent domain for economic development following a U.S. Supreme Court case finding the government takings constitutional.

The review also comes as the Ohio Supreme Court considers a landmark case out of Norwood that pits a developer against homeowners who had their houses taken for an office and retail complex.

Seitz said the task force would try to balance private and public interests while maintaining the government's fundamental right to take property.

Other lawmakers appointed to the panel this week are state Reps. Bob Gibbs, R-Lakeville, and Joseph Koziura, D-Lorain. The Cincinnati area is represented by Probate Judge James C. Cissell, who represents judges, and Dinsmore & Shohl attorney Richard B. Tranter, who was appointed by the Ohio attorney general.

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

Bill would alter eminent domain payment: Myrtle Beach (SC) Sun-Times, 1/26/06

Bill would alter eminent domain payment; Edge version includes zoning restitution

By Zane Wilson
An Horry County House member's attempt to add compensation for loss in value from changes such as rezoning has thrown another dimension into the debate on limiting property condemnations.

State Rep. Tracy Edge, R-North Myrtle Beach, is the lead sponsor of the House version of the bill to limit eminent domain, or condemnations by government agencies, to public use.

Edge's version includes payment for loss of value if property is rezoned or its land use is changed, a situation some refer to as a "regulatory taking" because it is different from an actual taking of the land for a use such as a highway.

Edge and other Horry County legislators were among a group who fought for the same payments several years ago but lost. During those debates, Edge's employer, developer Burroughs & Chapin Co. Inc., had lobbyists working in favor of compensation for regulatory takings.

Edge, a vice president at B&C, could not be reached for comment Wednesday, but no action was taken by a House subcommittee that began work on the bill.

Though he is the lead sponsor, Edge has clout with him on the bill. There are 17 other sponsors including Speaker Bobby Harrell, R-Charleston, Judiciary Committee Chairman Jim Harrison, R-Columbia, and Agriculture and Natural Resources Chairman Billy Witherspoon, R-Conway. All of the sponsors are Republicans.

Also on Wednesday, a Senate subcommittee began work on similar bills, none of which include payment for regulatory takings. Senators said they do not want to include that concept in a bill to limit eminent domain.

Mark Nix, director of the S.C. Landowners Association, asked the Senate to include the payments in its bill, but Sen. Greg Gregory, R-Lancaster, said that was not likely.

Nix also spoke to the House subcommittee, saying far more people are affected by regulatory takings than by eminent domain.

Requiring the payments would "make our local county officials more responsible for their actions," Nix said.

Rep. Ben Hagood, R-Sullivans Island, said that would freeze zoning and hamper attempts to manage growth in high-growth areas, Bo Shetterly, lobbyist for the S.C. Association of Counties, said the bill "is going to do serious harm to land-use planning."

He said the bill as written would require local governments to compensate people in a residential zone if they are refused the right to open a business at their house.

Bob Guild, lobbyist for the Sierra Club and Coastal Conservation League, said "we all benefit" from land use plans and zoning that protect everyone's rights to use their property in a way that does not harm their neighbor's rights.

"Some very valid and interesting points have been brought up today," said Rep. Greg Delleney, chairman of the subcommittee. He told those with opinions on the bill to try to work out an agreement and the subcommittee will consider the proposal again next week.

The Senate subcommittee agreed it should focus on limiting condemnation to public use, and making a better definition for that.

The point is not to allow property to be taken for "public benefit," which means it could be condemned for economic development by another private owner.

The bills are a reaction to a U.S. Supreme Court ruling last year that said condemnation for redevelopment is constitutional.

Staff attorney Paula Benson said state law on eminent domain already demands "public use" but that there are loose ends such as an unclear definition of condemnation for "slum clearance" that should be cleaned up.

Sun Times: www.myrtlebeachonline.com

Hundreds urge legislators to limit eminent domain: Columbia (MO) Missourian, 1/26/06

Senate committee looks at reforming property and land development laws

By Chris Blank, Associated Press
Hundreds of people rallied at the [Missouri] Capitol on Wednesday, demanding lawmakers make it harder to take private property through condemnation for redevelopment by others.

The crowd, which included a mix of people organized by the Missouri Farm Bureau and the Missouri Eminent Domain Abuse Coalition, urged lawmakers to allow the taking of private property only for public uses, such as roads and utility lines.

The use of eminent domain by local governments and some private entities has garnered attention nationally after last summer’s U.S. Supreme Court ruling that communities could condemn property and turn it over to private entities for development to increase the tax base.

Gov. Matt Blunt said property should only be taken under eminent domain for a “compelling public reason” such as for roads or public buildings.

“The idea that we can seize a small business, the government can seize a farm, the government can seize a house, that the government can even seize a church or a house of worship is repugnant,” Blunt told the crowd.

Missouri Chamber of Commerce President Daniel Mehan said there have been abuses with the use of eminent domain, but called for balancing property rights with development needs.

“It’s extremely important for redevelopment in urban areas,” he said. “The city of St. Louis and the city of Kansas City need that tool to revitalize areas of those cities.”

Charles Kruse, president of the Missouri Farm Bureau, said the protesters came to Jefferson City to “infuse a greater common-sense level in this building and around this state.”

St. Louis resident Maxine Johnson, who led several chants during the rally, said she came because eminent domain threatened her basic constitutional rights.

“Whether they offer you $1 or $1 million, it doesn’t matter,” she said. “It’s your house, and you should have the choice of if you want to sell.”

Johnson, 49, lives with her husband and six children in a house built in 1883. She and some of her neighbors have been resisting a townhouse development since 2003.

She said the state needed to get involved because municipal officials have used eminent domain to take private property and do with it what they wish.

“Why should people buy a house when other people can come in and take it 10, 15 years from now?” Johnson said.

The protest occurred the same day the Senate Economic Development Committee heard testimony on several bills to change the state’s eminent domain and tax increment financing laws.

The four measures varied from what one senator called the “nuclear option” — a constitutional repeal of municipal eminent domain authority for “blighted” property — to a tweaking that its sponsor said would correct at least two-thirds of tax increment financing abuses.

Tax increment financing allows local governments to declare certain areas eligible for development for tax breaks.

The use of both eminent domain and tax increment financing often involves local government declarations that an area is “blighted.” But blight carries a fairly broad definition, including “dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; abandonment; excessive vacancies; overcrowding of structures and community facilities; lack of ventilation, light or sanitary facilities; inadequate utilities; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; and lack of community planning.”

The sponsor of what he called the nuclear option, Sen. Kevin Engler, R-Farmington, said the legislature needs to better define blight and change how tax increment financing can be used, or risk a ballot initiative to do it for them.

The committee’s chairman, Sen. John Griesheimer, R-Franklin, introduced his own bill that he said would help limit the abuses of tax breaks designed to prompt development without getting into blight. Over the objections of Griesheimer, an interim legislative committee he led called for changes to the blight definition.

“I reached the conclusion that I don’t know if we can get there and reach a consensus on blight,” Griesheimer said.

Some lawmakers have said the legislature needs to address both eminent domain and tax increment financing. Blunt has said he believes eminent domain concerns can be addressed separately from those concerning tax increment financing.

A special gubernatorial task force that studied eminent domain use recommended several changes — all of which Blunt has endorsed. The task force suggested that the state develop a higher standard of “blight” in eminent domain cases than exists for tax increment financing, but it did not recommend any specific definition.

Columbia Missourian: http://columbiamissourian.com

Committee passes eminent domain bill: (Provo UT) Daily Herald, 1/26/06

By Alan Choate
Changes that would make eminent domain proceedings more transparent sailed out of a Utah Senate committee Wednesday morning.

Eminent domain is the power of cities, counties and other governmental units to take private property for public uses.

Utah law already prevents the taking of land for private uses, which has been a national issue following a U.S. Supreme Court decision allowing such a taking last year, said Sen. Howard Stephenson, R-Draper and the sponsor of the bill.

But not all is well with the implementation of the current rules.

A handout from Craig Call, Utah's property rights ombudsman, listed several problems arising out of the current eminent domain law:

Some mayors have claimed the ability to condemn land without City Council action.

Property owners don't have the right to protest the decision to condemn their property or be notified when a public body is going to consider such a decision.

While state law requires the condemning entity to inform property owners of the options they have in the process, some entities interpret that to mean they don't have to offer the information if they merely threaten to condemn land.

"It just seems like an anomaly to me that a decision can be made to take their land without even notifying the property owner," Call said.

Stephenson's bill would remedy those problems by specifying when the notifications must take place and stating that "only the legislative body of a political subdivision can condemn land, not the mayor or city manager acting alone."

Property owners also would have a statutory right to protest the eminent domain action before a condemnation action is taken.

Call described it as a "fine-tuning" of the process, and said the use of eminent domain — usually employed when a government entity and a property owner can't reach a decision on compensation for the property — is improving.

For example, the state Department of Transportation acquired 23 percent of the property it pursued by eminent domain in 2001, a figure that's now less than 4 percent, said Call.

Still, he added, "it's not needed anywhere near as much as it's done."

The legislation now proceeds to the full Senate.

SB 117 — Eminent Domain Amendments — sponsored by Sen. Howard Stephenson, R-Draper, specifies that only the legislative body of a political subdivision can approve a land condemnation and requires property owners to be given notice and a chance to protest before a condemnation decision is made.

Daily Herald: www.heraldextra.com

3/20/2006

BB&T ends loans for eminent domain: USA Today, 1/25/06

By Paul Nowell, Associated Press
Regional bank BB&T will make no loans to developers who plan to build commercial projects on land taken from private citizens by the government through the power of eminent domain.

"The idea that a citizen's property can be taken by the government solely for private use is extremely misguided; in fact it's just plain wrong," John Allison, chairman and chief executive of the Winston-Salem-based bank, said Wednesday.

No other large U.S. bank has a similar policy, according to BB&T spokesman. The bank declined to estimate how much business they expect to lose as a result of the new policy.

In June, a divided Supreme Court ruled in Kelo v. City of New London that cities may raze people's homes to make way for shopping malls or other private development. The 5-4 decision gave local governments the power to seize private property in the name of increased tax revenue.

BB&T said 38 states have recently passed or are considering laws to ban the use of eminent domain for private development. Similar legislation is pending before Congress.

"While we're certainly optimistic about the pending legislation, this is something we could not wait any longer to address," said BB&T chief credit officer Ken Chalk. "We're a company where our values dictate our decision-making and operating standards. From that standpoint, this was a straightforward decision; it's simply the right thing to do."

BB&T is the nation's ninth-largest bank, with $109 billion in assets and more than 1,400 branches in 11 states and Washington, D.C.

USA Today: www.usatoday.com

Could Eminent Domain Claim Private Property? WIBW-TV13 (Topeka KS), 1/25/06

By Lisa Boschert
Some may call it the American dream. Jerry Morgan started his bike shop with only $900. Recently, it’s turned into a nightmare, "The last six months has been very difficult to get up everyday."

Morgan fixes everything from new bikes to his 1949 car, but right now he's trying to fix something bigger, “I'm real concerned that the power of government is being used for purposes it wasn't intended to be used for."

If the City Council votes to use their power of eminent domain tonight Morgan fears this could be the end of his bike shop.

He says the developer isn't offering him enough money to move elsewhere, and it would be too much to rent from the developer.

But not everyone shares his sentiment.

Councilmen Clark Duffy is leading the campaign, and the developer has said the owners are setting unreasonable prices.

Morgan says he'd like to settle this and get back to business, “Working on bicycles it would be really nice.”

Morgan has offered to renovate his building to fit into the development's retail spaces, but the developer is not accepting that offer.

If the council approves eminent domain, Morgan would be forced to take whatever developers offer him.

WIBW: www.wibw.com

Constitutional Amendment Restricting Eminent Domain Introduced: KPVI-tv (Boise ID), 1/24/06

By Associated Press
A constitutional amendment was introduced in the Idaho Legislature today to limit the power of local governments to condemn homes and private property to make way for economic development projects — like industrial parks, sporting complexes and golf courses.

Republican Representative Lenore Barrett of Challis is the latest lawmaker to introduce legislation to restrict the so-called "eminent domain" authority of cities, counties and other government entities.

Her resolution calls for citizens to vote in November on amending the constitution to ban condemning private property for any project that might stimulate the local economy.

The House Local Government Committee sent the resolution to print this afternoon and hearings on the measure are expected later this session.

KPVI-tv: www.kpvi.com

Bill proposed to curb eminent domain: Des Moines (IA) Register, 1/25/06

By Associated Press
[Iowa] State Rep. Bill Dix introduced a bill Wednesday aimed at curbing the ability of local governments to seize private property for economic development projects.

"Confiscating private property for monetary gain is unacceptable," said Dix, R-Shell Rock. "Our citizens should not fear having their homes bulldozed to build hotels, or their farms seized to build factories."

At issue is a legal concept known as eminent domain, which allows local governments to force the sale of private property for an essential public purpose, such as construction of a road or school.

Dix’s bill and a similar measure introduced in the Senate last week by Sen. Jeff Lamberti, R-Ankeny, were prompted by a recent U.S. Supreme Court ruling on eminent domain in a Connecticut case.

The high court ruled that a local government could take property from one owner and give it to another for economic development, which it deemed an essential public purpose.

The Iowa bills would limit the ability of local governments to use that power.

"Due to the Supreme Court’s ruling, it is imperative that we take aggressive action to protect Iowa property owners," said Dix.

House Judiciary Committee Chairman Kraig Paulsen, R-Hiawatha, said he would put Dix’s measure at the top of the panel’s agenda.

"We will move it forward," said Paulsen. "I do fully expect we will get an eminent domain bill to the governor’s desk."

Des Moines Register: http://desmoinesregister.com

EDC board discontinues eminent domain to seize private land: Boston (MA) Globe, 1/25/06

By Associated Press
In a move supported by Gov. Don Carcieri, the [Rhode Island] state Economic Development Corporation [EDC] will discontinue using eminent domain to take people's property and give them to private developers for economic development.

The policy change came in a vote by the EDC's board on Monday.

"We're trying to send a clear message that when it's owner-occupied we're respecting those rights," said Carcieri, who's chairman of the EDC. He asked the agency last year to revise its eminent domain policy that would protect Rhode Islanders' homes from eminent domain condemnations for office buildings, hotels and other private uses. Carcieri said earlier this month that he plans to introduce legislation to prevent the use of eminent domain for economic development statewide.

State Rep. Charlene Lima, D-Cranston, introduced legislation earlier this month that would prevent the state or a municipality from taking people's property against their will if the land will be more than 10 percent privately owned.

The EDC still plans to use eminent domain for the general public good — such as building bridges or laying utilities. The quasi-public agency also will still use eminent domain for economic use, but only when it involves unoccupied property.

The U.S. Supreme Court ruled last year that states can take property for economic-development purposes if such a move would benefit the public good. The ruling upheld a decision by the City of New London, Conn., to seize seven property owners' land so developers could build a hotel and high-end condominiums to keep pharmaceutical giant Pfizer expanding in the state.

Since that ruling, about 40 states have passed legislation to prevent local governments from taking private property for shopping malls, hotels or other private development, according to The Providence Journal. Some states, such as Michigan, are amending their constitutions to prohibit taking personal property for economic development, the newspaper reported.

The EDC used its power of eminent domain in 2001 to condemn 40 acres of private property in Smithfield so Fidelity Investments could expand its corporate campus along Route 7.

The Boston Globe: www.boston.com

NLV mayor cautions against overuse of eminent domain: Las Vegas (NV) Business Press, 1/23/06

By Arnold M Knightly
As the City of North Las Vegas moves ahead with redevelopment in the downtown area while managing growth elsewhere in the city, Mayor Michael Montandon says the abuse of the expanded eminent domain legal precedent set last June by the U.S. Supreme Court could lead to a loss of an important government tool.

"We will use it if it is necessary and if it is a bona fide, legitimate public use," Montandon said. "But we will not use it for economic development, those kind of purposes."

In a 5-4 decision, the Supreme Court backed a lower-court ruling, stating that a city's redevelopment plan did serve a greater public need and by promoting economic growth it could be classified as a public use project and therefore the land could be purchased for a fare market value from the owners against their wishes.

Older North Las Vegas properties such as this motel might be subject to eminent domain. However, like Mayor Oscar Goodman in Las Vegas, who is also facing redevelopment challenges, Montandon insists that eminent domain will be used for public use, not private-to-private exchanges. Earlier this month, city officials told the Las Vegas Sun that they wouldn't rule out using eminent domain in the pursuit of a new city hall.

LEGITIMATE USES
Montandon stated that eminent domain could be used for public uses, like acquiring land for a waste-water treatment plant or for widening Fifth Street. "Those are legitimate public uses that the city should have eminent domain in their bag as a tool if they need it."

In an application for a brownfield grant for the downtown area, the city stated that it already owns a lot of land within the redevelopment area, but that it "will continue to acquire remaining property" through many channels, including "eminent domain."

Montandon agreed with the dissenting opinion written by Justice Sandra Day O'Connor in Kelo v. New London, Conn., saying he "would have written the exact same opinion."

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The [Constitution's] Founders cannot have intended this perverse result."

As the City of North Las Vegas moves ahead with its master plan as outlined in an 18-page booklet titled, "Visioning 2025 Strategic Plan," city officials expect to face some hard choices during redevelopment.

ATTRACTING NEW BUSINESS
"The reality is you're going to have some displacement," said Jeremy Aguero, a principal at Applied Analysis, who points out that to attract new businesses to North Las Vegas Boulevard, East Lake Mead Boulevard and Cheyenne Avenue that some use of eminent domain may be necessary.

The City of Las Vegas settled an eminent domain suit in 2004 for $4.5 million brought by the Pappas family who lost retail space downtown for the building of the Fremont Street Experience.

"It could be bad because some of those businesses are people's livelihoods," Aguero said. "I don't think you want to discount the reality for those people."

The state Legislature passed, and Gov. Kenny Guinn signed, two bills that could limit the abilities of local governments to use eminent-domain powers. The city must prove that two-thirds of an area claimed for redevelopment is blighted by showing four out of 15 blighting factors. Some of the factors include structural damage, flood problems, sanitation violations and improper land use.

Las Vegas Business Press: www.lvbusinesspress.com

Gov. Sanford, lawmakers announce eminent domain bills: WIStv10 (Columbia SC), 1/24/06

Gov. Mark Sanford joined with lawmakers in the House and Senate on Tuesday to announce legislation designed to limit government’s ability to seize private property.

Three bills have been introduced in the S.C. Senate, with companion bills to be introduced this week in the House, that are aimed at protecting private property rights by limiting governments' eminent domain powers.

In his State of the State address, Gov. Sanford said the recent U.S. Supreme Court decision, Kelo vs. City of New London, Connecticut, has shown a need for further eminent domain protections in South Carolina and that he will work with leaders in the General Assembly to promote that legislation in the coming year.

"A fundamental part of quality of life is the notion of ownership of one's property, and that's what these bills are ultimately all about," Gov. Sanford said. "The Kelo decision means we have to act now to protect property that people have invested money, work and time into over the course of many years. Property ownership is one of our most fundamental rights, and I'll work with the House and Senate in the coming session to make sure that right is secure in South Carolina."

Chip Campsen (R-Charleston) says, "We need to strengthen the definition of public use and reassert that in South Carolina, you can't take private property and give it to another entity. If there is some public benefit there must be an important use before that occurs"

The current bills address a number of areas in the law highlighted by the Kelo decision. If passed, the bills would ensure condemned property would be used for legitimate public uses as well as better defining public use, prohibit public bodies from delegating eminent domain powers, prohibit condemnation simply for 'blight,' and allow property owners to re-purchase property at condemnation prices if the property isn't used within ten years.

Since the Kelo decision, at least 35 other states have begun work on strengthening their eminent domain statutes. Several states are considering constitutional amendments, while the governor of Connecticut, where Kelo originated, has called for a moratorium on cities using their eminent domain powers.

Alabama and Texas both called a special legislative session to deal with the issue.

WIStv10: www.wistv.com

Camden trial to test eminent domain: Philadelphia (PA) Inquirer, 1/23/06

.A judge will decide whether the city's Cramer Hill section - target of a $1.2 billion project - is truly blighted

By Dwight Ott
The hour of reckoning for Camden's redevelopment efforts has arrived.

In a long-awaited court battle over the use of eminent domain in the Cramer Hill section, 200 residents and four large businesses are scheduled to square off today against state and local officials and representatives of developers participating in the $1.2 billion Cramer Hill redevelopment plan.

"The case is critical for the revitalization of the city," said the city's chief operating officer, Melvin R. "Randy" Primas. "What the trial is about is whether or not Cramer Hill is an area in need of redevelopment."

The plan calls for moving as many as 1,200 households to make way for 6,000 new houses, 500,000 square feet of retail space, a marina, and a golf course.

This is the first phase of a two-phase trial, said Olga Pomar, one of the attorneys for the residents.

"The judge has to decide whether the city planning commission and the City Council are correct in their decision that Cramer Hill is blighted or not," she said.

Depending on how many witnesses testify, the case - which involves a dozen or more attorneys - is expected to last about two weeks. The project is on hold until the issue is resolved in the court.
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Resident Mary Cortes said the use of eminent domain in Cramer Hill was "an abuse of the elderly, an abuse of the middle class, and abuse of the children who don't know where... to move."

Said Rich Ochab, a spokesman for developer Cherokee Camden L.L.C.: "The city has made the commitment that residents will have the opportunity to stay" in Cramer Hill if they want to.

If state Superior Court Judge Michael Kassel decides that Cramer Hill is blighted and needs redevelopment, the defendants must prove in a subsequent trial that their plan is not arbitrary and capricious or a violation of the New Jersey and U.S. Constitutions.

If city and state officials lose, the project must go back to the planning board and Council.

Similar cases are being filed across the country by property owners as local governments use eminent domain to develop areas marked as blighted or in need of redevelopment.

Eminent domain allows governments to acquire private property for public benefit with just compensation for the owners.

The Cramer Hill plaintiffs argue that local government is abusing this power. The concern is that the rush to redevelop has blurred the meaning of "public benefit" in distressed cities looking for a revival and in suburbs seeking more revenue amid dwindling resources.

In Kelo v. New London, the U.S. Supreme Court ruled last year that government, through eminent domain, could legally take private property and hand it over to private developers to generate more local tax revenue.

The court found nothing unconstitutional about using eminent domain to force owners in New London, Conn., to sell their property (at fair market value) so it could be replaced with offices, a hotel and new residences - a project expected to create more than 1,000 jobs and increase tax revenue.

The court said economic development qualified as "public use."

Justice Sandra Day O'Connor disagreed, writing in her dissent that "all private property is now vulnerable to being taken and transferred to another private owner."

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

Cramer Hill plan tossed: (Camden NJ) Courier-Post, 1/25/06

By Renee Winkler
A Superior Court judge on Monday invalidated the city's redevelopment plan for the Cramer Hill neighborhood, ruling that the planning board erred when it neglected to swear in two land-use experts before they testified in May 2004.

The ruling by Superior Court Judge Michael J. Kassel invalidated both the planning board resolution establishing Cramer Hill as an area in need of redevelopment and City Council's ordinance creating a redevelopment plan for the neighborhood.

It marked the third time a judge found fault with the way city officials proceeded with the plan, which would require the relocation of about 700 families to make way for 5,000 new housing units, 500,000 square feet of commercial space and a golf course.

But at least one city official who supports the project said proponents will do what they have to do to see it to fruition.

"We are committed to moving forward," Randy Primas, the city's chief operating officer, said after Kassel's ruling. "We think it's a good plan."

Kassel's ruling leaves Cherokee Investment Partners of Raleigh, N.C., as the entity with a contract to carry off the $1.2 billion redevelopment plan but without a designated community in which to work.

Kassel kept intact a court order that bars the purchase of properties through condemnation proceedings in the neighborhood.

City officials now must schedule another planning board meeting, at which testimony again would be taken to determine whether Cramer Hill is a blighted neighborhood.

If the planning board passes such a resolution, the matter would proceed to City Council, which again would have to adopt an ordinance establishing a redevelopment plan.

Both actions require public hearings.

"Those who voted for it are still on the planning board and City Council," Primas said.

Primas and Joseph Kenney, an attorney for the Camden Redevelopment Agency, argued unsuccessfully for a 90-day stay on a trial that was to begin today.

If the plaintiffs who are seeking to block the redevelopment continue their objection, it would cause a lengthy delay while a new lawsuit is filed, Kenney said.

Kassel, who took over as the judge in the case several months ago, said he would keep the case and permit attorneys to rely on depositions and expert reports that already have been completed.

The challenge to the validity of the planning board's vote was a last-ditch move by Jeffrey I. Baron, a land-use attorney retained by Camden businessman William Hargrove to stop the redevelopment project.

Baron, who estimated that legal fees for both sides in the dispute have topped half a million dollars, argued that a review of procedures showed that neither Anish Kuman, the author of a study that found Cramer Hill to be in need of redevelopment, nor city planner Charles E. Lyons were sworn in before giving their reports at two planning board meetings in May 2004.

Jeffrey Miller, an attorney for Cherokee, tried to downplay the importance of an oath, referring to the board's actions as legislative only, not judicial.

Kassel rejected Cherokee's argument, saying, "It's not testimony unless it's sworn. It just words."

After the hearing, Miller acknowledged he was surprised by the judge's ruling but said Cherokee will continue to push for approval of the project.

In the meantime, he said, Cherokee is busy with a redevelopment plan in Pennsauken.

Within hours of Kassel's ruling, Primas was trying to contact planning board members to set up another meeting. He could not estimate how quickly that meeting could be scheduled, but he did say it requires public notice and could possibly be held on a Saturday.

Primas said he believed that misunderstanding about the redevelopment proposal led to residents' opposition, including the appearance of about 800 people at a public hearing before council.

"I think people now understand we're not talking about taking everyone's home," he said.

Two residents who attended Monday's court hearing, however, remained opposed to the plan.

Colandus "Kelly" Francis, president of the Camden County branch of the NAACP and a resident of Camden's Parkside community, said the plan to sell market-value housing in the city's riverfront area is not workable.

"People are not going to pay $200,000 for a home when there aren't good schools, good city services, limited fire protection and limited police," Francis said. "The taxes would kill you. For a $200,000 house, you'll have to pay $9,000 taxes in Camden. Go to Cherry Hill and pay $6,000."

Samuel Benson of North Camden, a city resident since 1958, described the invalidation of the resolution and ordinance as "a huge victory."

"I know they will come back again. This isn't over with," Benson added. "City officials are dealing with billions of dollars. They're not going to turn their back on it."

Benson said he believes the city's next attempt at redevelopment will be in North Camden.

"And we're not going to just give it up," he said.

Courier-Post: www.courierpostonline.com