Eminent domain challenged: The Boston (MA) Globe, 2/5/06

By Matt Gunderson

Saying that Groton misused its powers to take property, a developer has sued the town for giving selectmen the authority to seize land off Lowell Road by eminent domain at a special Town Meeting last fall.

In a lawsuit filed in Middlesex Superior Court last month, Washington Green Development says the eminent domain vote taken at Town Meeting in September was illegal because the town was using the measure to derail the company's 44-unit townhouse development.

The Groton Electric Light Commission had said at Town Meeting that it wanted to purchase the property because it was an ideal location for its department offices. The Light Department currently has its headquarters on Station Avenue.

"There is clear, abundant evidence that the impetus for, and dominant purpose of, the taking is to prevent the development from being built on the property," the lawsuit states.

Doris Chojnowski, manager of the Groton Light Department, said she had no comment on the lawsuit, except to say that the department has not altered its plans to locate its new offices on Lowell Road.

The department had agreed to pay $500,000 for the property as part of the land taking.

"Lowell Road is the best location for the Light Department, and that's where we are headed," Chojnowski said.

The lawsuit marks the second time in the last year that Groton has faced legal issues involving eminent domain.

In June, a jury awarded the Casella family more money after the family disputed what the school district paid for land it took by eminent domain.

That land is the site of the new high school on Chicopee Row, and the Groton-Dunstable Regional School Committee has opted to appeal the verdict. The case is awaiting a hearing.

Attorney Ray Lyons, who represents Washington Green, said his client still hopes to build the development if it prevails in the suit. It applied for the project under the state's affordable housing law, Chapter 40B. In communities that do not meet the state's threshold for affordable housing, the law allows developers to bypass local zoning if they set aside at least 20 percent of the housing units at below-market prices.

"I personally view it as a good site for the town to make headway on its 40B goals," said Lyons.

The special Town Meeting on Sept. 12 was well attended, and voters debated the eminent domain article at length. The measure ultimately passed with little opposition.

The townhouse plan had faced opposition from local officials since last spring, when Washington Green appeared before town boards.

Last March, the Zoning Board of Appeals denied the permit on grounds that the housing plan created health and liability risks for the town because it was close to an electric substation.

Washington Green appealed the decision, and in September the Massachusetts Department of Housing and Community Development's Housing Appeals Committee overturned the zoning board's decision, saying the health and liability risk for residents living in the housing was not a sufficient reason to deny the permit, according to the complaint.

Gloria Fuccillo, who owns the Lowell Road property, was angered by the Town Meeting vote, saying she had originally offered to sell her 13.5 acres to the Light Department, but had been refused. The Light Department had already taken steps to put its offices on Sandy Pond Road and didn't need her property for its offices, she said she was told.

"The only reason [the town] wants it is because of that 40B," said Fuccillo. "I'm definitely rooting for the contractor."

Because the case is pending, local officials interviewed on the issue were reluctant to comment specifically on the allegations. George F. "Fran" Dillon Jr., chairman of the Board of Selectmen, said that, generally speaking, "There is nothing that I know of that the town is doing illegally. But it's up to the court and the [Housing Appeals Commission] to decide."

Boston Globe: www.boston.com

The Eminent Domain Problem is Bigger Than Kelo: Upper Valley Free Press (Idaho Falls ID), 2/06

By Heather Anne Cunningham

The problem with current Idaho eminent domain laws goes far beyond the fact that existing statutes permit a Kelo v. New London type taking (for increased tax revenue) to occur here. These problems may not be apparent to those who have only occasional contact with eminent domain cases. But those who deal with eminent domain full time know that our laws need work, because citizens need protection from eminent domain abuses.

No statute can, or should, revoke the government's power of eminent domain, but we can and must act now to stop the abuses of condemnors. The laws so far have largely been written in favor of those with the power to take property. Some bills this session aim to change that.

Although condemnors are obligated to pay "just compensation," many attempt to acquire property for the lowest price they can, rather than a fair price. Condemnors know that most property owners can't afford to resist, since they could end up with even less than the low offer after paying costs and attorneys fees. While some states require condemnors to pay costs and fees for property owners in condemnation if the owner proves the value offered was unfair, in Idaho, your costs may or may not be paid. There should not be an out-of-pocket cost to prove the government wrong. (SB1248 would allow reasonable costs and fees to property owners if they prevail).

Some condemnors penalize property owners who resist their offers by firing their initial appraisers and hiring new ones, with far lower opinions. Sometimes higher appraisals are even hidden rather than disclosed to property owners. (SB1245 would require that a condemnor can't pay an owner less than they previously admitted was owing).

Condemnors decide what property they want to take, but if you spend money to prove that just compensation for that taking is substantially more than the condemnor anticipated, the condemnor may re-define the take, ignoring their previous express representations. (SB 1243 would require condemnors to clearly define what is being taken and stand by that).

If the government only needs one acre of your land, they can take twenty acres instead, and sell the other nineteen. (SB 1242 would require that condemnors only take what they need).

In Idaho, if your house is taken for a road, your relocation is paid for by the government, but if it's taken for any other purpose, relocation assistance isn't required. (SB 1246 would ensure all citizens are treated equally when displaced).

If your property is taken by an educational institution, you can be required to go through two court proceedings, not just one, doubling your costs for appraisers. (SB 1247 would allow single proceedings in all takings).

In all other types of cases, a jury decides all questions of fact, but in eminent domain, judges, not juries, decide facts and the jury only determines value. (SB 1273 would give you the protection of having a jury decide the facts one of the most important protections we have against abuses of government.) What jury would have approved of taking someone's home to give to a drug company as in the Kelo case?

Several proposals aim to address the public use problem at issue in Kelo, including SB 1244, HB 408, and HJR 3. It is time for Idaho citizens to start participating in the process of revising Idaho's eminent domain laws. Let your legislators know what bills you support, and ask them to look beyond Kelo and address the imbalances in our current condemnation system.

Upper Valley Free Press: www.free-press.biz

Heather Anne Cunningham is an attorney with Davison, Copple, Copple & Cox. For the past ten years, the majority of her practice has been representing property owners facing condemnation.

State bills aim to control scope of eminent domain: Contra Costa (CA) Times, 2/5/06

By Bonita Brewer and Scott Marshall

In June, when the U.S. Supreme Court ruled government has the right to seize homes to make way for private redevelopment, it set off fear in the hearts of homeowners and lawmakers alike.

A flurry of bills and state ballot initiatives have been introduced in response to concern that the court's decision can put anyone's property up for grabs through eminent domain.

That case, Kelo v. City of New London, Conn., involved seizure of waterfront homes to allow the nonprofit New London Development Group to develop a hotel and health club near a new research center. It wasn't a blighted area, but redevelopment is expected to create jobs and economic gain for the city.

"The use of eminent domain has gotten totally out of control," said Ken Hambrick of Walnut Creek, president of the Alliance of Contra Costa Taxpayers. "The only way to fight it is to sue, and most people don't have the money to do that. They use our taxpayer dollars to fight us in court."

But several East Bay redevelopment agencies, including those of Pleasant Hill, Livermore and Contra Costa County, say eliminating eminent domain powers could seriously thwart their plans to revitalize "blighted" areas. They say California law is more stringent than Connecticut's, and that they use the power only as a last resort when owners refuse to sell at fair market value or, in some cases, at any price — standing in the way of progress.

Eminent domain is a power available to redevelopment agencies from San Pablo to Pleasant Hill to Pittsburg and the threat of losing it "is serious," said Kevin Roberts, Livermore's economic development director.

"It basically takes away one of the most powerful tools a redevelopment agency has to eliminate blight and help revitalize a city or a downtown or a neighborhood," he said.

A state constitutional amendment by state Sen. Tom McClintock, R-Thousand Oaks, would allow the government to continue to apply eminent domain for public uses such as roads, schools and libraries, even while potentially driving up costs by redefining "just compensation."

But it would forbid redevelopment agencies from forcibly taking properties for private redevelopment, such as retail centers, condo projects or hotels.

"It means you can't take one person's property and give it to another for private gain," McClintock said. "It's a fundamental American freedom in the Bill of Rights that your house and shop are secure and nobody can take them away from you against your will for private gain."

He hopes to get it on the November ballot by a two-thirds vote of the Legislature or through the ballot initiative process. A similar initiative has been filed by the Howard Jarvis Taxpayers Association.

Max Neiman of the Public Policy Institute of California said eminent domain is such a hot-button topic that it likely would be easy for the initiatives to get enough petition signatures to qualify for the ballot. But he said getting voter approval is another matter.

"There would be opposition from every local government in the state of California," he said.

State Sen. Tom Torlakson, D-Antioch, said he has introduced "a more balanced" constitutional amendment that would forbid application of eminent domain by redevelopment agencies to take owner-occupied, single family housing for private use. A separate Torlakson bill would provide more protections for land owners.

Critics say the Kelo decision allows big government to walk all over the property rights of the little guy, whose business or residential property can be confiscated — often without fair compensation — and then turned over to for-profit developers. They complain that although California law requires findings of "blight" for a property to be taken through eminent domain, that definition is too broad.

But Jim Kennedy, Contra Costa's redevelopment director, said the definition has been tightened over time.

In the 1980s, the county applied eminent domain to acquire some of the 250 primarily residential properties it needed near the Pleasant Hill BART station, where 2,400 homes and more than 2 million square feet of offices and hotels have gone up.

Under today's laws, the "blight" finding probably couldn't be made, he said.

But true blight does exist elsewhere. He said McClintock's proposal could thwart agency plans to acquire some 40 homes in a "blighted" Bay Point neighborhood for a high-density housing project near Pittsburg-Bay Point BART.

Concord is considering expanding its redevelopment area beyond the greater downtown. It would be the first such change in 25 years and would bring tax dollars — and the possibility of eminent domain to make it happen.

"I think some people like to characterize it as the big bad boogeyman," said Concord City Councilman Bill Shinn. However, "There's the other view, that eminent domain is a tool to develop for the betterment of the community."

San Ramon's redevelopment agency, just now considering re-establishing its eminent domain power, could be stopped in its tracks if McClintock's legislation is approved.

San Ramon business owners along Beta Court are worried the threat of eminent domain would force out service-industrial businesses on the city's north side, in favor of housing.

In Pittsburg, hundreds of homes have been razed and replaced with new ones in part through eminent domain. But City Manager Marc Grisham said he's not too worried about the legislation because most needed properties have been acquired, and he expects to have the rest soon.

Legislation might not come soon enough for Jack Caprio, who owns a 6,000-square-foot downtown building Pittsburg wants to demolish to make way for a condo/retail project. Caprio said he was offered $207,000 for the property, which he says is worth $525,000 and which a local group says is historically significant and should be preserved.

"I don't think that after 30 years, I should be going with a frown on my face," Caprio said. "I feel like I'd be walking away with nothing."

Livermore Cyclery owner Steve Howard, who owned a downtown Livermore building acquired for redevelopment, said he made out better than he might have because he fought hard and got legal help from a friend. But he said he still was not made whole in the deal, which took two years to resolve.

"It really burned through a lot of life energy, and I got some gray hairs over it," he said. "You feel beat up. It's the process, the nature of the beast."

John Shirey of the California Redevelopment Association says fewer than 3 percent of acquisitions by redevelopment agencies have to be resolved by a court.

While critics say even the threat can force people to accept the first offer, "If the threat is not there, there is no limit on how much you can ask for your property," Shirey said. "These initiatives will increase the cost of all property acquisitions by government."

According to the Center for Economic Development, in 2002-03, California redevelopment agencies generated $31.8 billion in total economic activity.


Government has long applied eminent domain to buy land for public uses, such as for libraries, roads and schools. It is constitutionally allowed if owners are "justly compensated" for property seizures through negotiations or, failing that, through a court ruling. But over time, "public use" was expanded to mean "public purpose," with redevelopment agencies using it to generate more tax revenue.

To take private property for private redevelopment, state law requires agencies make findings of "blight" that cannot be redeveloped through private investment alone. Physical factors leading to blight include buildings either unsafe or too small, lack of parking, and adjacent uses incompatible with each other, preventing economic development.

California law requires the initial offer of compensation be based on an independent appraiser's estimate of fair market value, and that tenant businesses and residents be paid relocation costs. The redevelopment agency must adopt a "resolution of necessity" before court action.

Roughly 40 percent of the state's redevelopment areas don't have eminent domain power in their charters. Another 30 percent have self-imposed limitations. Livermore's redevelopment agency, for example, gave up its power to apply eminent domain for owner-occupied houses.


  • SCA 20 — A state constitutional amendment proposed by Sen. Tom McClintock, R-Thousand Oaks, would let the government continue to apply eminent domain for public purposes. But it would forbid forced sale of residential or business property and turning it over to a for-profit entity for redevelopment. Negotiated sales could continue.
  • SCA 12 — A state constitutional amendment proposed by Sen. Tom Torlakson, D-Antioch, would forbid taking owner-occupied single-family homes through eminent domain for private redevelopment.
  • SB 1210 — Also proposed by Torlakson, this bill would clean up the eminent domain process used for redevelopment. It would give property owners a say in who appraises their land, and require redevelopment agencies cover landowners' legal costs if the ultimate ruling favors the owner. It also would prohibit public officials from taking campaign contributions from private developers receiving redevelopment property through eminent domain.
  • HR 4128 — Resolution would withhold federal economic development money from governments that apply eminent domain to obtain or use private property for economic development.

Contra Costa Times: www.contracostatimes.com

Vexing court ruling, local excesses demand new law: Rocky Mountain news, 2/4/06


By Rep. Cory Gardner

As Americans, we believe that property rights transcend government authority. This is deeply embedded in our political traditions. Founding Fathers such as James Madison understood the necessity of placing protections for private property in the Bill of Rights.

The Fifth Amendment, which Madison wrote, declares that private property may be taken only for "public use."

Since the adoption of the Bill of Rights, though, courts have driven a stake through the heart of private property rights.

This was brought home in last summer's astonishing Supreme Court decision, Kelo v. City of New London. In Kelo, the court allowed the city of New London, Conn., to use its eminent domain authority to take private homes away from their owners to make way for private office space and parking lots.

The court's justification for such a broad exercise of state power was the "public benefit" of creating more tax revenue.

In a strong dissent, Justice Sandra Day O'Connor summed up the brave new world ushered in by Kelo. "The government," she wrote, "now has a license to transfer property from those with fewer resources to those with more."

But there is cause for hope. While Kelo allows the government to transfer property from one private party to another, states can enact laws to prevent this from happening. This is why Colorado must act swiftly and decisively to defend private property rights from the ever-growing threat of eminent domain abuse.

Some think Colorado law is already clear - that Kelo could never happen here. But urban renewal authorities still possess significant tools to condemn private property by declaring such property "blighted." Still, the definition of blight is so subjective, so fraught with loopholes, that a clever lawyer can drive a Mack truck through it. And therein lies the threat.

Examples of eminent abuse are, unfortunately, abundant. In 2005, the Lakewood Reinvestment Authority performed a blight study. It found a "blighted" area 4 miles long and 4 blocks wide, which includes more than 1,000 homes and businesses.

Inclusion within this "blighted" area, alone, is justification for the use of condemnation power. It was a breathtaking overreach, but one that is justified under current state law.

In Arvada, the Arvada Urban Renewal Authority determined that a lake was "blighted" in order to accommodate the wishes of a commercial developer. In addition, Arvada has designated open space as "blighted" in order to facilitate a large-scale development project. These are not legitimate uses of eminent domain.

The truth is that it is not necessary to use the condemnation powers of eminent domain to accomplish urban renewal, but local governments have been trained to use it as tool of first resort to assemble large-scale projects.

With the use of market-based mechanisms, tax incentives such as the enhanced sales tax incentive program offered by many local governments, project overlays, and simple enforcement of local land use and zoning ordinances, properties will not become "blighted" and the need for invasive governmental takings will be obviated.

The government's role is not to be a developer, but rather to facilitate conditions that are friendly to business. The use of condemnation takes this role too far.

That is why I have introduced House Bill 1099, a bill that will prevent government from taking private property and giving it to a private party for the purpose of economic development or to increase tax revenues. By forcing government to condemn land for a true "public use" and not merely for economic development or tax increases, the bill restores the fundamental right of private property, a right our Founders guaranteed.

Rocky Mountain News: www.rockymountainnews.com

Rep. Cory Gardner, R-Yuma, joined the Colorado General Assembly in July 2005. He serves on the Agriculture and Natural Resources Committee, Appropriations Committee, as well as the Judiciary Committee.

Revision of condemnation powers unneeded, costly: Rocky Mountain News (Denver CO), 2/4/06


By Sam Mamet

Right now, the [Colorado] legislature is considering laws that would limit eminent domain after last year's U.S. Supreme Court decision in Kelo v. City of New London. City and town leaders are quite concerned with the outcome of the debate, which seems to be long on emotion and short on facts.

Part of the problem with measures like House Bill 1099, which would limit the condemnation of private property to only "public use," is its lack of clarity.

As one key example, the definition of public use in this legislation - a key part of the bill - is not entirely clear and raises doubts whether traditional urban renewal projects could continue. We also think the legislative declaration of the bill interprets the existing case law imprecisely in an effort to give an advantage to individuals who wish to sue local governments.

The current state of Colorado law is well-settled and firmly established as to the do's and the don'ts of condemnation and urban renewal.

We anticipate costly lawsuits will be necessary to clarify the bill's application to the efforts of municipalities to revitalize themselves. And, when the municipality gets sued, it's the taxpayer's pocket that gets picked.

As lawmakers ponder this and other measures regarding eminent domain this session, we hope these facts might be considered:

  1. Cities and towns do not use eminent domain loosely; in fact it is hardly ever used for redevelopment purposes.

    Research conducted by the Colorado Municipal League indicates that between 1999 and 2005, of the 40 urban renewal authorities currently active in the state, 31 have not used their condemnation powers at all. Only six have completed eminent domain proceedings in order to assemble properties for redevelopment purposes. Urban renewal authorities are the only local entities that can use eminent domain for redevelopment. There is simply not an indiscriminate use of this power by municipal officials.

  2. In 2004, lawmakers spent all session crafting HB 1203, which significantly and substantively amended the state's urban renewal law to provide new protections to private property owners when condemnation is used.

    Now, in order to use eminent domain solely for economic development purposes, a city council or town board must first determine that a property meets certain standards regarding slum conditions or blight. Lawmakers have also narrowed the definition of blight in the past several sessions.

  3. The Colorado Supreme Court weighed in on this in 2004 as well. The justices ruled that urban renewal authorities lacked both the legal authority and a valid public purpose to take property through condemnation without a proper and legally constituted blight analysis.

Eminent domain can be an important tool to advance the redevelopment of our cities and towns when a strict finding of blight is made.

Just look at the Broadway Marketplace, which replaced the old Montgomery Ward site on South Broadway, or the Colorado Business Bank building, at the core of Denver's downtown.

Lakewood's Belmar project has been nationally recognized as a prime example of smart growth and infill development. Riverside Plaza in Estes Park became a crown jewel as a revitalized riverwalk, after the devastating Lawn Lake dam broke and wiped out much of the downtown core of Estes Park in 1982.

All of these projects are successful because eminent domain was used as part of the urban renewal process.

Could all of these proposals be done just the same under the constraints of measures like HB 1099? Who knows?

The proponents of the bill will say, "No problem." And that's exactly the problem.

Before state lawmakers start to slice and dice urban renewal this session, we hope that they reflect upon the facts as well as the emotion of this complex issue. They might start by picking up the phone and calling a mayor or two.

Rocky Mountain News: www.rockymountainnews.com

Sam Mamet is the executive director of the Colorado Municipal League, a statewide association of 265 cities and towns. He can be reached at smamet@cml.org.

Senate panel moves to limit eminent domain: Huntington (WV) Herald Dispatch, 2/4/06

By Jenifer Bundy, Associated Press

Cities [in West Virginia] could continue to use eminent domain to take private property but that right would have new restrictions under a bill a Senate panel endorsed Friday.

The Senate Economic Development Committee gutted a bill (HB4048) the House passed last month and replaced it with provisions that spell out the circumstances under which eminent domain can be used. All the reasons involve a future "public use" of the property.

The new version specifically says "public use" does not include using the property for private economic development.

Urban renewal authorities still could use eminent domain to take property designated as a slum or blighted area. The bill says urban renewal authorities must give notice to property owners when they intend to condemn land.

The House bill would have repealed the slum and blight exceptions in current state law.

Republicans and Democrats alike have sought to restrict eminent domain since the U.S. Supreme Court ruled last year that economic development, with its promise of jobs and tax revenue, counts as a "public purpose" that can trigger eminent domain.

"We need to do some more work on the bill as it passes through the process," said Sen. Don Caruth, R-Mercer.

Sen. Brooks McCabe, the chairman of the committee, agreed.

McCabe said his goal was to give opponents and supporters of the House and Senate bills a chance to talk to senators and then frame their arguments in a bill that the Senate Government Organization Committee and Senate Judiciary Committee can perfect. The chairmen of both those committees sit on McCabe's committee.

"A bill will ultimately come out of the Senate that focuses on taking for private economic gain," said McCabe, D-Kanawha. "Some of the other issues probably will have to be looked at in interim studies. There's a lot to it."

Lisa Dooley, executive director of the West Virginia Municipal League, said the league supports the Senate version.

Herald Dispatch: www.herald-dispatch.com

Humble Church Is at Center Of Debate on Eminent Domain In Sand Springs: The Black Chronicle (Oklahoma City OK), 2/3/06

With bulldozers churning up the earth at the front door, the small Centennial Baptist Church in [Sand Springs OK, a] struggling industrial hub west of Tulsa seems about to fall to the wrecker.

The construction, though, is just roadwork, for now, and that is all it will ever be if the congregation has its way.

“The Lord didn’t send me here to build a mini-mall,” the congregation’s longtime pastor, Rev. Roosevelt Gildon, said.

In what a local newspaper called “a battle between God Almighty and the almighty dollar,” Sand Springs is moving ahead with a redevelopment plan to clear the church and other occupants from the rundown district near downtown to make way for superstores like the Home Depot.

“I’m open to anyone telling me how we’re going to pay for city services,” Mayor Bob Walker said.

He said the city was seeking to negotiate fair prices with Rev. Gildon (41 offers have been accepted) and other property owners, and would use eminent domain only as a last resort.

Strengthened by a U.S. Supreme Court ruling last summer that approved the condemnation of private property by New London, Conn., for resale to other private interests for what the court called “public purpose,” municipalities around the country are considering similar forced takings, to a chorus of opposition by local interests and state legislators.

Bills to block such seizures are on the docket in Oklahoma and many other states, along with other ballot initiatives. Last summer, the Texas Legislature banned the taking of private property for more lucrative public ventures.

Here in Sand Springs, a city of 17,600 on the Arkansas River founded by Charles Page, the oilman, industrialist and philanthropist, the redevelopment plan dates from 2003. County voters agreed to add fractions of a penny to the sales tax for special projects, in the Sand Springs case $14.5 million to acquire private tracts on 96 acres along the highway for redevelopment.

However, the project was thrust into the national spotlight on Jan. 17 with an article posted on National Review Online by a conservative group, Americans for Limited Government, based in Glenview, Ill., that has been working with Oklahomans in Action and other groups to gather signatures for the Protect Our Homes Movement and budget-curbing measures on state ballots.

“It’s not just grandma’s house we have to worry about,” Heather Wilhelm, communications director of the limited government group, said. “Now, it’s God’s house, too.”

The Sand Springs Leader stepped up coverage of Rev. Gildon, and a local radio host, Dillon Dodge, broadcast a program on the dispute. “Hanity and Colmes,” the talk show on the Fox News Channel, plans to program from Sand Springs soon, Mrs. Wilhelm said.

City officials, mortified at being portrayed as villains, protested that they had not seized any property and might not.

“Eminent domain is not being used at this time to acquire property,” City Manager Loy Calhoun said in a statement Friday. “Media reports to the contrary are inaccurate.”

In interviews, though, Mr. Calhoun and Mayor Walker acknowledged that it remained a last resort if the city and property owners could no agree on price.

Mr. Gildon, sitting in a pew of the church that he has led for 14 years, the last seven years in a new building that cost $90,000, said he and other leaders of the congregation met last week with a relocation agent working for the city, the Cinnabar Service Co., and came away believing that they had little choice but to sell.

“If you tell me this is going to happen,” he said, “that tells me its eminent domain.”

He said the offer of $142,000 for the church and two extra lots was not enough to move to a new location where he could serve his 50 or so regular members. He said he was “praying over” the question of a counteroffer.

“If I have to move,” he said, “we’re not going out of existence.”

Mr. Gildon, 48, who works full time for a machine tool manufacturer and is paid $520 a month by the church, said he was not leading a crusade on the issue and made a point of not bringing it up it up in his sermons.

“I’ve had to say, ‘Don’t let it go to your head,’ ” he said he told congregants. “We’re not celebrities. We’re here for God.”

On the other hand, he said he was no pushover, either. He taped the meeting with the Cinnabar agent, John Thomas, and said he told city officials, “The Lord did not lead me here to sell out the church.”

If the parties cannot agree, a team of three appointed appraisers devises a final offer, and whether or not the seller is happy, the city can take it for that price, and sell it to someone else.

Other property owners in the first 25-acre redevelopment zone said they felt that the city’s initial offer of $1 a sq. ft. was far too low. A fairer figure, several said, would be $8.50.

“I don’t have a problem with the city,” Joe Harrison, who runs the Firestone dealership downtown, commented. “I just don’t want them stealing my land.”

In the Muffler Stop a few blocks from the church, Ernie Nanney said the city first offered him $65,000 “which is less than I paid 25 years ago.” He said that he counter-offered $350,000 and that the city came back with $85,000.

In her small wood-frame house on Oak Street, Ray Jean Smith Knight, 72, said that, when she grew up a few houses away, the neighborhood was an “a little old Wall Street” of Black professionals, and survivors of the Tulsa race riot of 1921 were welcomed to Sand Springs by Charles Page.

Mrs. Knight said that she had yet to receive a buyout offer and that despite the deterioration of the area did not relish leaving.

“I’m not happy about it but I don’t have a choice,” she said. “So many people have passed away that used to be fighters. One or two cannot fight.”

Ruth Ellen Henry, founding director of the Sand Springs Cultural and Historical Museum, recalled a cleanup of the neighborhood a dozen years ago that removed a million pounds of debris but failed to halt its slide.

She still has many friends there, she said, “but you can’t say they tore down paradise and built a parking lot.”

The Black Chronicle: http://news.mywebpal.com/partners/356/public/news694505.html

Camden's 'renewal' is really just a landgrab: The Philadelphia (PA) Inquirer, 1/15/06

By Jonathan Last

In a few days, New Jersey Superior Court Judge Michael Kassel will begin hearings to determine the future of the Cramer Hill neighborhood of Camden. It is a neighborhood whose existence, like many others across America, is threatened by the abuse of eminent domain.

Camden, the city of my birth, is - stop me if you've heard this - something of a national joke. Over the years, many attempts have been made to revitalize the city. Successes have come slowly, but they have come.

The latest plan to save Camden focuses on the residential neighborhood of Cramer Hill, an area near the river with about 40 small businesses, 700 homes, and 500 units of low-income housing. But this plan is not urban renewal. It is a simple landgrab, by, and for, the rich.

In April 2004, Cherokee Investment Partners, a development company from North Carolina, submitted to the city both a study of Cramer Hill and a plan for the neighborhood's future. One wonders which was written first.

The study explained that Cramer Hill was a blighted area ("blight" and "area in need of redevelopment" are legal terms of art now used interchangeably by developers). The plan called for Cramer Hill to be razed. In its place, Cherokee proposed to build 6,000 houses, 500,000 square feet of retail space, a marina, and - just what residents of Camden have been pining for - a golf course.

The study's conclusions seemed predetermined. It claimed, for instance, that Cramer Hill suffered from the large-scale abandonment of industrial and commercial sites. But while there are some abandoned industrial sites in the neighborhood, almost 70 percent of Cramer Hill is residential. As for those homes, the study concluded that the homeowners in Cramer Hill were not keeping their houses in "fully productive condition."

By the study's own reckoning, 84 percent of Cramer Hill homes were in fair condition; only 7 percent were in poor condition; only 6 percent were vacant. Mind you, Cramer Hill wasn't Haddonfield: Nearly 20 percent of the residential lots were vacant. Surely these small percentages couldn't justify the demolition of two entire census tracts?

But to developers with a hammer, every neighborhood is a nail. Camden adopted the plan. The city began moving forward with proceedings to declare Cramer Hill a "redevelopment zone." Once that designation stands, the city will be empowered to take the homes of every property owner in Cramer Hill, hand them a few dollars as "fair payment," and send them on their way. Cherokee can then freely build its houses and marina and golf course for use by younger, richer citizens. "Fully productive condition," evidently, means "owned by people who aren't poor."

Melvin R. Primas, Camden's chief operating officer, has promised that anyone whose house is taken will get a replacement home for the same mortgage, but that's not quite what the plan says. As Legal Aid attorney Olga Pomar noted in a letter to the city, "The Plan provides that 'up to 1,200 units' will be constructed and does not guarantee these will be subsidized or otherwise affordable." Note the phrase up to.

The power of government is mighty, and sometimes terrible. Once a redevelopment zone has been declared, any property within it can be taken and handed to another party. In a May 2005 deposition, Primas explained that city officials were "desirous of having all of Camden come under first a neighborhood plan and then ultimately a redevelopment plan." Which means that private property would, as a practical matter, cease to exist in the city of Camden.

Don't be fooled. This isn't about enhancing the lives of those who live in blight. It's about further gilding the lives of the wealthy. There are plenty of poor communities in inland New Jersey, but developers don't want that land. Why? Because wealthy people don't want to live by the Pine Barrens. The reason the residents of Cramer Hill are in danger of losing their homes isn't that their community is "blighted." It's that they're poor people with water-view homes.

The message of eminent domain abuse is simple: "You aren't rich enough to deserve the land you own." If the right to private property isn't inviolable, then it's no right at all. It becomes merely a privilege of the wealthy and well-connected.

Philadelphia Inquirer: www.philly.com

Razing New Jersey: The Weekly Standard, 2/13/06

In which developers in league with city hall have come up with a curious definition of "blight."

By Jonathan V. Last

OCEAN AVENUE runs, with only a few interruptions, more than 40 miles along the New Jersey coast, from the northern tip of Long Beach Island all the way up to the southern entrance to Sandy Hook Bay — the effective end of the Jersey shore.

Driving north on Ocean Avenue, you're never more than a few feet from the beach, and the small towns whip by quickly, each with its own peculiar character. There's the Richie Rich enclave of Sea Girt with its multimillion-dollar mansions next to the merely wealthy town of Spring Lake, with its million-dollar homes. There's middle-class Belmar and working-class Bradley Beach. A little further north is tiny Ocean Grove — where the town's Methodist Church owns the land and leases it to homeowners. Next comes Bruce Springsteen's crumbling hometown of Asbury Park, where the girls comb their hair in the rearview mirrors and the boys try to look so hard. Go a few more miles still, and you arrive in Long Branch.

Long Branch was once a thriving resort town. From the 1860s until World War I, seven different U.S. presidents summered there. In 1869, Winslow Homer painted Long Branch, New Jersey, depicting a pair of Victorian women on the bluffs overlooking the surf. But, as the years passed, Long Branch declined.

Part of the decline was an unexpected consequence of urban planning. In the 1960s, in neighboring Newark, the city fathers began to experiment with public housing. They bulldozed much of the heavily Italian First Ward to clear space for housing projects. Newark residents fled to the suburbs. Some could afford the ritzier towns in Monmouth County; those of more modest means chose places such as Long Branch. By 1965, the influx of working-class residents finished off much of what remained of Long Branch's resort culture. Downtown businesses moved out, and the town went into further decline, which wasn't helped when, in 1987, the town's last tourist attraction, a large pier on the boardwalk, was destroyed in a fire.

Today, however, Long Branch is on the brink of a rebirth. Young people with wads of disposable income are flocking to it; upscale businesses — trendy coffee shops and hip designer boutiques — are back. These victories are the fruits of 12 years of planning done by the mayor, city council, and a consortium of local businesses. It is a testament to the power of eminent domain, as blighted old neighborhoods were bought up and cleared to make way for the new developments. But, while Long Branch may look like a success story, it is actually a cautionary tale.

The traditional American understanding of eminent domain is summed up in the text of the Fifth Amendment, which places two limits on the power of federal and state governments to take private property. Land can be taken only "for public use" — a new highway, for instance — and it cannot be taken "without just compensation." Last year, in a controversial 5-4 decision known as Kelo v. New London, the Supreme Court upheld the extremely elastic definition of "public use" that undergirds most modern urban renewal schemes — namely, that a private developer's promise of "increased tax revenue" counts as a "public purpose." In other words, simplifying only slightly, the government can compel you to sell your house to a developer who promises to build a more expensive one. In the wake of the Kelo decision, Long Branch is a case study in what the use — and the abuse — of eminent domain means to middle-class America.

WHEN THINGS WENT AWRY for Long Branch after the 1960s, the city of 31,000 hollowed out. Drugs became rampant, much of the town fell into disrepair, crime took hold. It got so bad that, on February 21, 1994, in the middle of a heated mayoral election, a drug-related riot broke out, with a crowd of 300 residents throwing bottles, vandalizing cars, injuring two police officers, and burning down two vacant homes. Five rioters were arrested, and Mayor Adam Schneider was forced to declare a curfew. Schneider won reelection in 1994 and is still mayor today. From that hotly contested race, the plan to redevelop Long Branch was born.

Schneider had long been a proponent of redevelopment, and in 1994 the stars began to align. The Monmouth County beaches, diminished from years of erosion, were about to get a facelift, courtesy of the Army Corps of Engineers. A group of some 40 local businessmen headed by Robert Furlong, who owned a number of local clothing businesses, had just established a private redevelopment arm, Long Branch Tomorrow, to help goose the process.

Furlong's group raised $165,000, and used the money to hire the Boston urban design firm of Thompson and Wood. Long Branch was playing in the big leagues: Thompson and Wood had been responsible for redesigning Baltimore's HarborPlace, Boston's Faneuil Hall, and Washington's Union Station, among other projects. According to Planning, the magazine of the American Planning Association, Furlong made this move "entirely on his own." Over the next seven months, planners from Thompson and Wood met with members of the Long Branch government and Long Branch Tomorrow more than 20 times to discuss what redevelopment of the town's coastline might look like. In July 1995, they delivered their master plan, a slick, 67-page document that outlined a dramatic vision.

The basic idea was to take 135.5 acres of land along the ocean and turn it into a mixed-use, urban renewal utopia, complete with bike paths and walkways and condominiums and high-value commercial zones. The plan called for private developers to invest nearly $1 billion in creating residential and business units and another $16 million in "public improvements" for the beachfront area. The document was public, and some residents — particularly those in the prospective redevelopment zone — were nervous. But the master plan was filled with reassuring language. "Not by sweeping reform but by an incremental process, new buildings and blocks will fit in among the old," it promised.

"To avoid the clean-sweep practices of contemporary urban renewal yielding antiseptic uniform 'projects,'" the plan continued, "we recommend an incremental approach that is rather like repairing a valuable patchwork quilt." On the proposed map, some of the land was slated to be remade in its entirety; other portions were marked as "residential infill."

One such "infill" neighborhood, known by the unwieldy acronym MTOTSA (for Marine Terrace, Ocean Terrace, and Seaview Avenue, the three streets which bound the area), was a refuge for longtime homeowners. Unlike many other parts of Long Branch, the MTOTSA neighborhood was still an enviable place to live. It wasn't chi-chi, but its 37 well-cared-for properties, home to both retirees and working families, made it one of Long Branch's last middle-class enclaves.

Since the MTOTSA neighborhood was marked for infill, not demolition, on the plan's colorful maps, there was no great objection to the master plan. Amid all the happy talk, a single sentence, buried on page 29, might have set off alarms in the mind of a wary citizen. There the master plan recommended "small-parcel infill with the option of upgrading and densifying existing dwellings to multi-family units." No one noticed this important modifier.

The city of Long Branch adopted the plan.

THAT WAS ONLY THE FIRST STEP. Since the late 1970s, developers along the Jersey Shore have been forced to deal with the state's byzantine Coastal Area Facilities Review Act, administered by the state Department of Environmental Protection. By forcing developers through a rigorous clearance process, the act often slows down redevelopment in beach communities. According to Planning, the Long Branch planners "decided that the only way to 'beat' CAFRA was to change it. They believed the agency could be persuaded to give the Long Branch plan blanket approval." They were right. In May 1997, after two years of lobbying, the state ceded its CAFRA authority to Long Branch. In effect, the city of Long Branch was now responsible for signing off on the environmental protections for its own project. The setup was unprecedented and so attractive that five developers immediately submitted plans.

Two years later, the city council selected its developer: Applied Development, of Hoboken, New Jersey. For the president of Applied, Joseph Barry, the deal was a labor of love. His son, David Barry, told NJ Biz that when Joe was a teenager he spent his summers in Long Branch. "Nostalgia" was one of the reasons Applied bid on the job, David said.

Of course, there were other reasons. Governor James McGreevey, at the groundbreaking ceremony in April 2002, reaffirmed an $11.2 million pledge in state aid to Long Branch. The city in turn sold some parcels it owned to the developer at below-market value, and then helped arrange $18 million in state low-interest loans to acquire other properties, paving the way for a condo development known as Beachfront North Phase I. To help with the project, Applied brought on a partner, Matzel and Mumford, a subsidiary of development giant K. Hovnanian.

In Phase I, Applied acquired 140 homes. Most of the residents went quietly. After all, in a February 2000 Asbury Park Press article, Joseph Barry had warned, "The holdouts will be losers." Nonetheless, some residents held out, causing the city to invoke its power of eminent domain. Bruce McCloud was a loser. Forced out of his home a few days before Thanksgiving, he was put in a motel and given $140,000 as "fair compensation" for his 17-room Victorian house, 400 feet from the beach. Many other homeowners were given similarly meager compensation. For instance, Fred and Dorothy Strahlendorf were given $179,500 for a house 235 feet from the beach. Twenty-one homeowners sued the city after the fact, with varying degrees of success. The Strahlendorfs, for instance, had their compensation adjusted upwards to $500,000.

On the land acquired in Phase I, the developers built not the glorious, integrated residences imagined by the master plan, but a series of bland, cookie-cutter condos and townhouses — a total of 283 units, which sold for between $600,000 and $1.2 million.

THERE WERE OTHER UNPLEASANT SURPRISES in store for residents who had been impressed by the original master plan. Somewhere along the way, the MTOTSA neighborhood was marked for "redevelopment" — not infill. Thirty-eight homes were about to be obliterated, against their owners' wishes. No formal announcement was ever made about the change of plans, but MTOTSA residents noticed strange signs — the first of which was that they could no longer get city permits to improve their homes. For instance, when Denise Hoagland sought a permit to lift the roof of her house in 2000, her application was denied. After she was rejected, the city asked her to sign a waiver saying that if she did raise her roof, she would waive her right to compensation should redevelopment occur.

By November 2003, the city had all but given up the pretense that the MTOTSA neighborhood would be spared in the next round of redevelopment. Residents presented the council with a petition with 500 signatures protesting Phase II. Mayor Schneider took a sympathetic stance: "We're going to get you involved in the process," he told the Asbury Park Press. "Let's hear [residents'] ideas about how and why their homes can be saved." MTOTSA homeowners provided the city with an alternative plan, which the city council rejected.

In January 2004, residents met with Schneider and Paratap Talwar, the Thompson and Wood designer who had authored the master plan. According to the press account of the meeting, Talwar explained that, contrary to the vision of his original plan, razing the MTOTSA homes was "necessary to the success of the plan." Schneider, for his part, claimed to have done the homeowners a favor. The Asbury Park Press reported that the mayor thought "the city could have acquired the homes in 1997 when the development was getting under way, but instead allowed those residents to reap the benefits of redevelopment." According to a report in the Asbury Park Press, however, Schneider told an October 2004 city council meeting that the plan couldn't be changed because "the city in 2000 signed a contract with the developer, and so any diversion from that would have to be consensual."

Residents, however, might have missed the mayor's flip-flops because of some distracting news: That same month, Joe Barry, the president of Applied Development, was sentenced to 25 months in prison. Barry had been caught making $115,000 in payoffs to the executive in neighboring Hudson County. In addition, he was fined and ordered to repay $1 million he had scammed from federal agencies. At the sentencing hearing, Barry's attorney argued for leniency based on his client's passion for "social justice." David Barry, the son, took over the helm at Applied. The redevelopment in Long Branch rolled on undisturbed.

BY 2005, THE EFFORT to save the MTOTSA neighborhood was gaining wider attention. A February rally drew 250 eminent domain protesters to Long Branch. The New York Times and National Public Radio both did stories about the fight. The town council, girding for a legal battle, began doling out contracts to law firms. At an April meeting, the city awarded a $25,000 contract to the firm of Ansell, Zaro, Grimm, and Aaron — the Aaron of which was James Aaron, who also held the post of city attorney. A $75,000 contract was given to the firm of Greenbaum, Rowe, Smith & Davis to handle eminent domain proceedings. A month later, yet another firm was retained for $25,000. At a town meeting, after Aaron's firm was given an additional $30,000, a resident asked the city attorney who was paying for all of the lawyers. "The developers are funding it," he replied.

Which brought on an interesting moment in May, when a local weekly paper, Atlanticville, broke the story that Arthur Greenbaum, of Greenbaum, Rowe, had a personal stake in the redevelopment: He sits on the board of directors of Hovnanian Enterprises — the parent company of Matzel and Mumford, the developer that Applied had quietly let in on the action after winning the contract to remake Long Branch.

The city administration went into damage-control mode. Mayor Schneider flatly asserted that Greenbaum's dual roles "will not be a conflict of interest." Aaron, the city attorney, declared that "the interest of the city and K. Hovnanian are the same." Greenbaum held on for awhile, but in July "reluctantly" withdrew his firm as counsel, insisting there was "no basis to suggest that the city has been engaged in 'impermissible favoritism.'"

Meanwhile, the city negotiated with MTOTSA residents, to little avail. One resident was offered $625,000 for his house — a property that includes rental units. Three others were given offers in the low $400,000s. One of these, by way of example, is an 1,800 square-foot bungalow with ocean views, a block from the beach. Six offers were in the low $300,000 range; one, a two-story cottage a block and a half from the ocean, was for $210,000. The offers were not comparable to local real estate prices on the private market. Over the last three years, one local reporter calculated, the average sales price of single-family homes in Long Branch was $464,507. As of December, there were 103 active listings in Long Branch with an average asking price of $658,773; few of these boast the ocean views enjoyed by many of the MTOTSA homes.

Nonetheless, the city moved ahead with its eminent domain proceedings. The Newark Star Ledger explained the Orwellian nature of the affair: "The city has already declared these homes 'blighted,' although they are neat bungalows and ranch houses with solid roofs, carefully tended lawns, and flowerpots on porches." The reason for this declaration of "blight"? "Under New Jersey law . . . towns are allowed to seize only blighted properties." The irony, of course, is that the MTOTSA neighborhood is one of the few sections of Long Branch that isn't blighted.

As the fight intensified, some local politicians rallied and held a fundraiser for MTOTSA. Mayor Schneider began to come unhinged. "You can't do [massive redevelopment] on a patchwork basis," he protested, abandoning the comforting "patchwork quilt" metaphor in the city's master plan. In another fit of pique, Schneider said that the MTOTSA residents had only themselves to blame. They should have lawyered up as the city did: "If they had gotten proper legal representation and put together a plan to oppose this project when we began to study it in 1995," he explained, "it's likely this project never would have passed." The mayor had a good point. Which may be why the original plans went out of their way to reassure residents their homes would be safe.

Perhaps sharing his imprisoned father's passion for "social justice," developer David Barry described the residents as "opportunists looking for higher prices for their property, or the limelight."

In December, Long Branch filed a complaint in state Superior Court asserting its right to take the MTOTSA properties. It wants to bulldoze them to make room for 185 more condominiums. Atlanticville's Greg Bean predicts that the units will sell for between $400,000 and $2.2 million. "The total amount offered to MTOTSA property owners named in the complaint," Bean writes, "is just south of $4.1 million." The residents of MTOTSA are fighting back, and the beginning of the court brawl is scheduled for February 24. The homeowners have worked closely with both local counsel and with the Washington-based Institute for Justice, which represented Susette Kelo in her case against New London, Conn., which ended up before the Supreme Court last year.

The leaders of Long Branch are undeterred by a court fight. Four days before Christmas, the city council authorized another $300 million redevelopment zone, Beachfront South, which will empower K. Hovnanian to raze 30 properties in 2007 and replace them with 352 condos, priced from $600,000 to $1.2 million. Some of the doomed properties present an even stranger picture of "blight" — big, beautiful houses facing the ocean, with nothing between them and the beach except wide, rolling lawns. They would not look out of place in a Homer painting.

In many ways, Long Branch is the perfect storm of the Kelo era: a misleading master plan, an unprecedented exception from state environmental regulation, shifting redevelopment zones, a developer jailed for corruption, a lawyer working both sides of the deal. New Jersey residents are particularly vulnerable to this kind of forced redevelopment. As the Institute for Justice's Scott Bullock explains, the prime targets for developers are typically low to middle-income communities with waterfront homes within commuting distance of a major city. New Jersey is essentially two giant suburbs — of New York and Philadelphia — with an enormous coastline, as well as numerous interior rivers. That's why there are redevelopment clashes shaping up all along Ocean Avenue — in Belmar, Neptune, Asbury Park, and other towns. Currently 64 municipalities in New Jersey are pursuing redevelopment through the power of eminent domain, with developers trying to seize homes everywhere from Camden to Stanhope.

When Justice Sandra Day O'Connor wrote in her Kelo dissent that "the specter of condemnation hangs over all property," she wasn't scaremongering. No one wants to use eminent domain to redevelop the parts of Long Branch that are actually blighted — such as, for instance, the abandoned building across from city hall. The logic of Kelo-style takings is to redevelop attractive land — regardless of who lives there.

Now that the Supreme Court has declined to protect homeowners, that duty has fallen to the states, with mixed results. Six states have already held that "public purpose" economic condemnations are constitutional. Nine have decided that they are not. The other 35 are scrambling to figure out the politics of the issue.

In New Jersey, the MTOTSA residents are hoping for salvation from the courts, but if that fails, they may find relief in the political process. Last fall, state senator Diane Allen proposed legislation for a two-year moratorium on eminent domain takings. That measure stalled, but during the gubernatorial race, candidate Jon Corzine also made noises friendly to the idea: "My principle on this issue is a simple one," he explained. "There should be no taking of homes for economic development except in rare and exceptional circumstances." Now that Corzine has been sworn in as governor, it remains to be seen how he defines "exceptional circumstances."

In Long Branch, it isn't clear that redevelopment has made anyone happy. The intricate, flavorful visions of the master plan have been realized as drab monoliths that look uncomfortably like Yuppie versions of Soviet-era housing projects. One wonders if the townsfolk will find the benefits enough to make the project worth the trouble. Even the master plan's idealistic projections envisioned only an extra $7.8 million in new tax revenues, and the "public use" features are modest: A series of "gateways" by the boardwalk that will house restrooms and storage space; one of them will host a concession stand. Robert Furlong, who conceived the Long Branch plan, died in 2000, before even one of the condominiums he had fought so hard for was built.

For his part, Mayor Schneider has internalized the struggle. He refers to himself as the "poster child" for Kelo protesters. In a recent speech to New Jersey's League of Municipalities, he boasted, "Six months from now, I'm going to run again. I don't know if the Institute of Justice [sic] is going to fund the campaign against me, but I can live with that." The event was sponsored by K. Hovnanian.

As they wait to learn their fate, the longtime residents of MTOTSA are worried and dismayed. As 79-year-old Anna Defaria told the Star Ledger, "We lived through the slum era and this is the thanks we get."

The Weekly Standard: www.weeklystandard.com

Eminent Domain in Asbury Park: An offer you can refuse — New Jersey Eminent Domain Blog, 1/30/06

By Bill Ward

The dictionary defines goniff as a Yiddish word for a “thief.” Having received an offer for their property from Asbury Partners LLC, the designated developer for the Asbury Park beachfront, Thomas and Donna Orlando now know the meaning of that term.

The Orlandos purchased a fully renovated three-family house located two blocks from the beach for $575,000 in September 2004. In December 2005, the Orlandos received the offer and appraisal from Asbury Partners in the amount of $330,000, premised on the appraisal of Donald Moliver. This offer is significantly less than the first mortgage on the property.

Under normal circumstances, we would expect Mr. Moliver and Asbury Partners would consider the sale of the subject property and the fact that the beachfront real estate has increased since 2004, not only in Asbury Park but in New Jersey in general. Therefore, a reasonable starting point would be at least ten percent over the purchase price or approximately $630,000.

Under normal circumstances, a homeowner would not need a lawyer in an eminent domain action of this sort, because a recent arms-length sale of the subject property is the best evidence of value. But this transaction, like others we’ve seen in Long Branch and Asbury Park, is driven by greed. The developers are dictating the terms, and their objective is to buy the property as cheaply as possible. The municipality is complicit in this arrangement as they will institute eminent domain proceedings to acquire the owner’s site, absent an agreement with the owner. This scenario, while outrageous, is by no means unusual where the unholy alliance is at work., i.e. developers and compliant politicians.

The settled rule in New Jersey and other states is that any increase or decrease of the market value of the property acquired or caused by the project of the condemning authority should be factored out of the market value determination. See the following cases:

  • Jersey City Redevlopment Agency v. Kugler, 58 N.J. 374, 379 (1971);
  • Housing Authority, Atlantic City v. Atlantic City Expo., 62 N.J. 322 (1973);
  • Jersey City Redevlopment Agency v. Mack Properties Co. No. 3, 280 N.J. Super. 553, 568-69 (App. Div. 1995);
  • State, Dept. of Environmental Protection v. S. Nalbone Trucking Co., Inc., 128 N.J. Super. 370, 377 (App. Div. 1974);
  • United States v. Miller, 317 U.S. 369, 375, 87 L.Ed. 251, 63 S. Ct. 276 (1943).

The Moliver appraisal perverts this rule by claiming that all market increases are attributable to projects of the City of Asbury Park and Asbury Partners LLC. This position is unsupported by the reality of prior abortive redevelopment efforts undertaken by Asbury Park. The entire beachfront has been blighted since January 1984. The initial redevelopment efforts by Carabetta and Vaccaro were stopped as a result of Carabetta’s bankruptcy in 1992.

Asbury Partners LLC, using money from M.D. Sass Company, purchased Carabetta’s rights in the bankruptcy proceeding and paid the City of Asbury Park $6.5M for tax liens on the properties. These funds were desperately needed by the City of Asbury Park to stave off its own pending insolvency. For these payments Asbury Partners took over Carabetta’s project and developed a new plan. Carabetta, it should be noted, never completed anything. He left a rusting structural steel monument at Ocean Avenue and Second Street for the last fifteen years. Asbury Partners LLC also have not completed anything, although they have grandiose plans. Where then is the enhancement to the real estate market which they claim in Moliver’s appraisal to be attributed to their project?

It’s not there. Rather, value in the market in Monmouth County in general and in beachfront properties in particular have dramatically increased in the last ten years. Properties like Mr. Orlando’s – two to three blocks from the beach - are difficult to find. The Orlando’s property is in a quiet residential area, adjoining second Avenue and the lake. This property is valuable because of its location. Asbury Partners LLC, and their “project” such as it is, have had little impact, yet they use the “scope of the project" rule to argue Orlando’s property is worth $330,000 as of December 2005. This is $245,000 less than the Orlandos paid for the property in 2004.

Last week, the Appellate Division in the case of DM Asbury Realty LLC et al v. The City of Asbury Park and Asbury Partners LLC unanimously, in a 65-page opinion issued by Judges Conley, Weissbard, and Winkelstein, decided that the property owners numerous issues raised on appeal were without merit. The opinion affirms an earlier unreported opinion by Judge Lawson, A.J.S.C. Monmouth County, who similarly dismissed all of the arguments raised by the property owners. The appellate panel concluded that the law division judge properly granted summary judgment on each of the plaintiff’s claims. Download the opinion.

The issues raised included:

  1. Whether the plan’s failure to permit property owners to develop their own properties, except with the approval of the designated developer constituted a taking
  2. Whether the City improperly ceded its legislative authority to the designated developer, a private entity;
  3. Whether the plan placed an illegal 30-year moratorium on private development within the redevelopment area
  4. Whether the manner in which the properties were chosen for redevelopment violated plaintiffs equal protection rights
  5. Whether the City had improper motives for including certain properties in the plan
  6. Whether the City’s reliance on an unlicensed planner rendered the passage of the ordinance invalid and
  7. Whether plaintiffs were denied adequate discovery.

Unless this case is granted certification by the New Jersey Supreme Court, which is unlikely, the municipality and the developer are now free to prepare their appraisals and make acquisition offers to the affected property owners. In all likelihood, if Moliver has been hired to do all the appraisals for the Asbury Park beachfront project, a skewed approach to market value will be evident to all property owners once they receive their offers. But unlike an offer from the Godfather, this is an offer you can refuse.

New Jersey Eminent Domain Blog: www.njeminentdomain.com

Pennsylvania Senate Passes Eminent Domain Reform: The Heartland Institute, 2/1/06

By James Hoare

The Pennsylvania Senate on December 7 passed eminent domain reform legislation significantly curtailing the ability of state and local government to condemn private property for non-public uses.

The bill, S.B. 881, the Property Rights Protection Act, responds to the U.S. Supreme Court's June 2005 decision in Kelo v. City of New London and the widespread abuse of eminent domain throughout the state.

Limits 'Blight' Designations
S.B. 881, introduced by state Sen. Jeffrey Piccola (R-Dauphin/Northern York) and approved by the Senate in a unanimous vote, prohibits the use of eminent domain for commercial development and considerably tightens the definition of blight. Tightening that definition was particularly important because defining a property as blighted is a prerequisite for condemning it and transferring it to another private party.

Exceptions were inserted to exclude from the bill's reach property in Pittsburgh, Philadelphia, and Delaware County that has already been designated as blighted. The exceptions, however, will expire after seven years.

Explaining the need for his bill, Piccola said the Kelo ruling "made people sit up and take notice and start to realize that in the face of activist courts and local government, private property rights might very well be threatened," according to the November 14, 2005 Greenwire.

Limited to Public Uses
"For too long, some local governments have threatened property owners in Pennsylvania with eminent domain for private profit," Piccola said in a December 7 news release. "My legislation will help end these abuses but not touch local governments' ability to acquire property to build everything traditionally considered a public use, such as roads, bridges, schools, and courthouses.

"The idea that a citizen's property can be taken by the government and turned over to another citizen for non-governmental use is simply an outrageous proposition and something that was never intended by our founding fathers. The Property Rights Protection Act makes certain that home and small business owners in Pennsylvania know that they can keep what they have worked so hard to own," Piccola added.

Far-Reaching Effects
"Pennsylvania law was in dire need of reform," said Dana Berliner, a senior attorney at the Washington, DC-based Institute for Justice. "It allowed government condemnation of property merely for being 'economically or socially undesirable.' This definition put literally all property at risk.

"This bill places unprecedented limits on eminent domain abuse," Berliner added. "The one glaring shortcoming is the temporary exceptions for Pittsburgh and Philadelphia, but even that does not dampen the near total victory this bill provides."

"The Pennsylvania senate bill is the most comprehensive legislation in the country," said Steven Anderson, coordinator of the grassroots Castle Coalition. "It slams the door on runaway eminent domain abuse and completely redefines the overly permissive definition of 'blight' that has been repeatedly used as an excuse to take property from one private citizen and give it to another private citizen."

Bipartisanship Noted
"The bipartisan nature of this legislation is especially encouraging," Anderson added. "All around the country, Democrats and Republicans are uniting to put an end to eminent domain abuses. Of course, with poll after poll showing that upwards of 90 percent of the American public disagrees with the Kelo decision and feels that government should not take away a person's property merely to give it to another person for economic development, it shouldn't be a surprise that legislators from both parties are responding to the overwhelming will of the voters."

"Take away the exceptions for Philadelphia and Pittsburgh and S.B. 881 stands as a model for other states looking to prohibit eminent domain for the benefit of private businesses and developers," added Institute for Justice staff attorney Bert Gall in a December 7 news release. "Both cities have abused eminent domain in the past and certainly need no exception now, particularly since citizens that live in the excepted areas receive much less protection than everyone else. Fortunately, the exceptions will expire in seven years and all cities will then play by the same rules."

Broad Coalition for Reform
The bill received support from a broad range of organizations, including the Pennsylvania State Conference of NAACP Branches, the League of United Latin American Citizens, the Mexican American Legal Defense and Education Fund, the Farm Bureau, and the National Federation of Independent Business.

The bill now heads to the state's House of Representatives, which overwhelmingly passed a similar and slightly more stringent eminent domain reform bill in November 2005 and is expected to approve the Senate bill.

"The unanimous nature of the Senate vote speaks volumes to the bipartisan support for property rights and eminent domain reform," said Scott Bullock, another senior attorney for the Institute for Justice. Republicans and Democrats should both be applauded for passing this bill.

"As the Pennsylvania legislature illustrates, the tide is turning against state and local governments that engage in eminent domain abuse," Bullock added.

The Heartland Institute: www.heartland.org

Attorneys fees in eminent domain cases questioned: New Bern (NC) Sun Journal, 2/2/06

Government legal expenses are paid with tax dollars, property owners must pay own charges

By Barry Smith

Some [North Carolina] lawmakers looking into state laws regarding the government’s right to acquire land from property owners are questioning if it is fair to have tax dollars pay the legal fees of the government while the people whose property is being taken have to pay for their own attorneys.

“That person has to bear the cost of the condemnation that the government is doing,” Rep. Mickey Michaux, D-Durham, said during a hearing by a House committee Wednesday.

He said that attorneys fees on eminent domain or condemnation cases are usually based on the amount of money the property owner receives in excess of the government’s original offer. Michaux said the going rate is about one-third of that amount.

Leanne Winner, representing the N.C. School Boards Association and N.C. Council of School Attorneys, said that requiring attorneys fees be paid could hurt a school board’s negotiating position.

“If mandatory attorneys fees and other compensation are awarded to landowners, there will be no incentive for the landowners to negotiate,” Winner said. “Our belief is the current law strikes a fair balance between public interest and private property rights.”

That prompted Rep. Robert Grady, R-Onslow, to thank Winner for her honesty but comment that it could invigorate property rights proponents to call for more protections.

“I have to tell you that if we had a C-SPAN in North Carolina and your comments were played on the air that I would have 300 calls from my constituents tonight telling me why we need to pass a constitutional amendment,” Grady said.

An amendment to the N.C. Constitution is among the options being considered by lawmakers in the wake of what has become known as the Kelo decision by the U.S. Supreme Court last year. That decision said that a Connecticut town, New London, could take private land and give it to another private entity for economic development.

After the meeting, Grady said that the current setup for legal fees puts the private property owner at a disadvantage.

“It seems very, very unfair to me that the person taking the property gets a tax-paid attorney and the person who is losing their property has to pay for an attorney personally.”

He said that governmental bodies taking property have unlimited legal budgets while the property owners do not.

Rep. Lucy Allen, D-Franklin, said that “rhetoric” and “panic” coming out of the Kelo decision “just astounds me.”

The co-chair of the committee, Rep. Wilma Sherrill, R-Buncombe, said that she gets about 25 e-mails a day asking for lawmakers to adopt a constitutional amendment protecting private property rights as a result of the Kelo decision.

Steve Rose, a General Assembly staff attorney, told committee members that current North Carolina law allows for eminent domain powers to be used in limited areas when it comes to private development.

He outlined the areas that come under the N.C. Urban Redevelopment Law.

Generally, the law requires such takings to be in blighted, dilapidated areas that impair sound growth, have seriously adverse effects on surrounding development and are detrimental to the public health, safety, morals or welfare to the community, Rose said.

Unlike other condemnation proceedings, the governmental body condemning property under the Urban Redevelopment Law must pay the property owner’s attorney’s fees. Such fees are determined by the court.

Sun Journal: www.newbernsj.com

County has place in battle over eminent domain: Arkansas City (KS) Traveler, 2/1/06

By John Hanna, Associated Press

Decades ago, Bill House chose ranching over practicing law. Developers expressed interest a few years ago in buying his property in Cowley County. House wasn't much interested but soon learned there were ways to force a sale.

House came Tuesday to the Statehouse — a week after celebrating his 90th birthday — to ask legislators to enact legal and constitutional protections for property rights. He and other Kansans want legislators to limit the power of state and local governments to force property sales.

The issue became hot last year, after the U.S. Supreme Court ruled that states could force sales for private economic development projects without violating property owners' constitutional rights. House and other Kansans don't like the idea that they could be forced to sell their property so that someone else can develop it.

The Senate Judiciary Committee is reviewing two proposed constitutional amendments and three bills on the topic, including a measure backed by the League of Kansas Municipalities. The panel began hearings Tuesday and planned to continue them Wednesday and Friday.

House, recalling his law-school lessons from the 1930s, noted that protections against eminent domain — the legal term for government taking property — go back to the Magna Carta of 1215, when angry English barons forced King John to accept written limits on his power.

Developers wanted House's land so they could create a lake and build a resort around it. Local opposition caused legislators to intervene and block the project in 2004, but until then, House said, the developers were confident they could obtain his property.

"They indicated pretty strongly that they could take it,'' House said. ''I couldn't believe it."

The proposed amendments to the Kansas Constitution would prevent the transfer of property from one private owner, through government hands, to another.

One version would create a total ban; the other would allow the Legislature to make exceptions to the ban.

The league's bill would require governments taking private property for economic development purposes to see that its owners are paid 25 percent more than its fair market value. Also, each project would require a plan and public hearings.

Don Moler, the league's executive director, said after Tuesday's hearing that it's seeking middle ground. He said legislators can't divorce the debate over eminent domain from economic development.

For example, he noted the commercial development around Kansas Speedway in Wyandotte County, which required the purchase of 150 properties, a handful through eminent domain.

"This state needs all the economic development tools available," he said.

And Gene Merry, of Burlington, a Coffey County commissioner, said local officials are cautious about using their power to force sales. He said he has never voted to use eminent domain for economic development projects.

"We view the power of eminent domain as a last resort," he said.

But Donna Martin, who lives near Dexter, said Kansans shouldn't have to face the prospect of being forced to sell their property.

"Real economic development in America doesn't want or need land grabbers," she said. "We do not want to be thrown away in order for someone more powerful and more influential to take away what it took us a lifetime to build."

Legislators in 40 states are considering limits on governments' power to force sales, but Kansas is among those where the potential for abuse is greatest, said Steven Anderson, coordinator of the Castle Coalition, a national property rights effort.

Kansas and North Carolina are the only states without constitutional provisions limiting governments' power to take property.

"Kansas property owners now stand naked and unprotected," said Kris Kobach, a University of Missouri-Kansas City law professor.

Arkansas City Traveler: www.arkcity.net

Bill To Allow Voters to Decide on Eminent Domain: WLTX-TV19 (Columbia SC), 2/1/06

A [South Carolina] Senate subcommittee has passed a bill allowing voters to decide whether to change the state constitution and limit government power to take private land.

A Senate Judiciary subcommittee approved two ballot questions Tuesday.

One question asks voters to clarify that private property can only be taken when it will be owned and used by the government or by everyone.

Having a public purpose or public benefit wouldn't be enough.

The other question would eliminate a part of the constitution allowing less than a dozen counties authority to clear slums.

The full Judiciary Committee decided today to delay action on that bill until next week.

But the committee sent a second bill to the floor that sets up a special Senate-House committee to study how the state's existing eminent domain laws have been used.

WLTX-TV19: www.wltx.com

Chula Vista group: Laws are too lax — San Diego (CA) Union Tribune, 2/1/06

By Shannon McMahon

A community group [in Chula Vista] has submitted about 14,000 signatures to put a measure on the June ballot that would limit the city's eminent domain authority.

Chula Vistans for Private Property Protection, a group that began its effort in mid-December, filed its ballot petition with the City Clerk's Office on Monday.

The group contends that laws protecting citizens against eminent domain are too lax and heavily favor the government. Eminent domain allows government officials to acquire land to complete a public project or redevelop blighted properties. In recent years, officials across the country have used eminent domain to seize land and sell it to private developers to generate more tax revenue.

The proposed ballot initiative in Chula Vista would require the city to use eminent domain only for a strictly defined public use, such as building a road. The petition also states that if eminent domain is used, the city must keep the acquired property for at least 10 years before selling it.

Deputy City Attorney Elizabeth Hull said the city has acquired one property in the past 10 years using eminent domain. Hull said the city does not use eminent domain to take residential property in a residential zone.

The city's real property manager, Richard Ryals, said since 1995 the city has acquired about 30 properties after it began the eminent domain process. In those cases, the property owners settled on a sale price before the cases went to court.

“In almost all of those cases, we settled (out of court) not because of the threat of attorney's fees, but because we reached an amicable agreement,” Ryals said.

Steve Haskins, a Bonita attorney representing Chula Vistans for Private Property Protection, disagreed. Haskins said the eminent domain process is “inherently unfair” for the land owner.

“If a landowner has to pay attorney's fees and does not have enough money, they are forced to sell,” Haskins said. “They are forced by the pressure of the lawsuit.”

Haskins also said renters or homeowners who live in redevelopment areas or areas zoned mixed-use are not protected from eminent domain.

“There is a rule not to condemn an owner-occupied residential property in an area that is zoned residential,” Haskins said. “But rentals and renters are not protected.”

The city will verify the petition signatures, then send them to the Registrar of Voters. The petition must contain signatures from 9,620 registered voters in Chula Vista to qualify for the June ballot.

For more than a month, signature collectors have stood outside grocery stores and public buildings decrying eminent domain. The group has also sent mailers to residents that read “This Christmas The Grinch Can Steal Your Entire House!”

“Do you want to have your home taken?” asked one signature collector who was standing outside Albertsons on Third Avenue in December. The collector would not give his name. When asked, he said he did not know the city's rules on eminent domain, he refused to say on whose behalf he was collecting signatures and he could not describe how the petition would change city law.

The county Registrar of Voters office will approve or reject the signatures within 30 days of receiving them. City Clerk Susan Bigelow expects to deliver the signatures by Friday.

San Diego Union Tribune: www.signonsandiego.com

Eminent Domain Petition Delivered To The Oklahoma Supreme Court: KOTV-6 (Oklahoma City OK), 1/31/06

An initiative petition that would restrict government's ability to use eminent domain to obtain private property was delivered to the Oklahoma Supreme Court Tuesday.

A total of 163,375 signatures were verified by the Secretary of State's Office, which received nine boxes of signature pamphlets from the citizens group Oklahomans in Action on December 20th. The group needed 117,101 signatures to get the issue on a statewide ballot.

The Supreme Court will verify the the count and decide any protests or challenges that are filed before State Question 729 is forwarded to Governor Brad Henry to set a statewide election date.

KOTV-6: www.kotv.com

Proposals before Senate Judiciary Committee on eminent domain: Wichita (KS) Eagle, 1/31/06

Associated Press

  • SCR 1616: Adds a new section to the Kansas Constitution's Bill of Rights to protect property rights, banning the use of eminent domain power "to transfer real property from one private owner to another."
  • SCR 1612: Adds a new section to Article 15 of the constitution, saying governments couldn't transfer property from one private owner to another "except as the Legislature may provide by law."
  • SB 323: Enacts a law prohibiting governmental transfer of property from one private owner to another unless there is no reasonable alternative to meet a public purpose and the property is unsafe, in a state of disuse or has been unoccupied for five years.
  • SB 398: Changes eminent domain laws to make it easier for owners to go to court to challenge an appraisal of their property when a government seeks to force its sale.
  • SB 446: Proposal by the League of Kansas Municipalities that says when governments seek to force people to sell property for a private economic development project, the owners receive 25 percent more than the fair market value. Also, every project must have an economic development plan and be subject to public hearings. Approval of a plan requires a two-thirds majority of the governmental body.

Wichita Eagle: www.kansas.com

Pennsauken Mart's Closure: Philadelphia (PA) Inquirer, 1/31/06


A not-grand plan had too many losers

The hardworking merchants of Pennsauken Mart deserved better than to be evicted for a fuzzy vision that could just as easily fade into oblivion.

The 50-year-old mart closed Sunday after a five-year battle over the Camden County Improvement Authority's plans to redevelop the site for homes and businesses where Routes 73, 130 and 90 intersect.

The merchants, who are renters, not property owners, were never in a position of power. But they paid taxes and had devoted customers (who turned out in droves over the weekend to say good-bye). The survivors in the quirky kiosks deserved a smoother transition to new storefronts, if Camden County, indeed, envisioned redeveloping the county's northwestern gateway without them.

This time, not only the little guys, but all county residents stand to lose.

The improvement authority's grand plan, which originally included a convention center and minor-league hockey team owned by Democratic Party power broker George Norcross, began unraveling almost as soon as it was announced in 2001.

By early 2005, county officials had admitted the economic margins of a public civic center were "shaky" and scaled back their vision. Shortly afterward, the Living Faith Christian Center successfully sued to block eminent domain, which whittled the 65-acre redevelopment parcel by nearly half. Plans for a hotel and artisan village came and went.

Now the county dreams of 350 to 500 houses for empty nesters or young professionals, and a few offices and stores. A county committee claims it will pick a developer by April, but such repeated "any day now" promises are growing stale.

There was no urgency to displace the mart merchants. They're unfairly homeless until their new marketplace in Willingboro is finished.

Freeholder Director Louis Cappelli Jr. believes that clearing the mart property - removing the "eyesores" - will make it more attractive to developers. Perhaps. But vacant land produces no revenue. A $24 million Casino Reinvestment Development Authority grant requires the tract to contain something valued at $40 million by 2009. The clock is ticking.

The county was legally bound to fairly relocate the merchants or buy them out. It didn't have to chase them out of business prematurely.

The blunders already committed give county residents no reason to believe this project will ever succeed.

Philadelphia Inquirer: www.philly.com


Eminent domain a major issue for assembly: Nashville (TN) City Paper, 1/30/06

By Judith R. Tackett

Eminent domain will be a major issue for the General Assembly when its members convene for their regular session after Gov. Bredesen’s State of the State address Feb. 6, with more than a dozen different bills filed already.

Government agencies most often use eminent domain as a tool to acquire property for public uses such as infrastructure projects.

However, political attention was drawn to the subject last summer after the U.S. Supreme Court decision in Kelo v. City of New London, in which the court established that the U.S. Constitution does not prohibit the use of eminent domain for economic development purposes. Instead, the establishment of standards to use eminent domain is left to the states.

Tom Lee, an attorney with Waller Lansden Dortch & Davis, said Tennessee’s eminent domain law differs from the law in Connecticut that ruled in the Kelo decision.

“In Connecticut, the state law specifically provided for the city’s right to exercise powers of eminent domain for economic development purpose,” Lee said. “Tennessee does not have that law, and there is no statute on our books that would permit the local government to take for that purpose.”

Lee said opinions whether Tennessee should change its current eminent domain provisions differ depending on whether the issue is seen from the perspective of a developer, a municipality, or someone concerned with private property rights.

“My guess is that, given the political timing, municipalities would be content to keep the law as is for now and revisit the issue at another time, without making it perhaps harder to create that power,” Lee said.

Several other states, among them Alabama, Colorado, Ohio, Nevada and Texas, have attempted to tighten up eminent domain laws.

But in some states, eminent domain legislation has failed because developers realized it could restrict their participation in possible revitalization efforts, said Jeff Ockerman, an attorney with Stites & Harbison.

“We need to be careful we don’t shoot ourselves in the foot and put restrictions on our [development tools] that … have been used for good purposes in our recent history, and to make sure that we can continue to use eminent domain powers in redevelopment districts for those good purposes.”

In Tennessee, only public housing authorities can use eminent domain for revitalization efforts in redevelopment districts. A redevelopment district is a housing tool that allows public housing authorities to give developers financial incentives such as tax credit incentives to encourage the revitalization of mostly inner-city areas.

“We need to make sure that the progress we’re making in Nashville now in redeveloping our core downtown and our core urban areas doesn’t get stopped because of an overreaction to a Connecticut state law in a case that hasn’t come up in Tennessee and isn’t likely to come up in Tennessee,” Ockerman said.

The Metropolitan Development and Housing Agency (MDHA) is the local entity that initiates eminent domain in Nashville’s redevelopment districts.

Ockerman said MDHA has carefully scrutinized situations before making use of eminent domain over the past few years and has utilized it sparingly — for example, the Coliseum and the Gaylord Entertainment Center.

The main criticism MDHA has faced in the recent past regarding eminent domain is whether the agency has offered real market value to original property owners. In some cases, a court has ordered MDHA to pay more.

“So that’s been the real question here, whether or not in the case of an eminent domain taking there’s been the proper value paid for the property,” Ockerman said.

Meanwhile, not only are states re-examining their eminent domain powers, but several bills in the U.S. Congress are also pending. The House of Representatives, for example, approved a bill that would prohibit federal funding for state and local projects that use eminent domain for economic development.

The House also introduced a proposed constitutional amendment that would prohibit the transfer of property from one private entity to another, unless the purpose was for public conveyance or transportation.

And legislation before the U.S. Senate would create a federal ombudsman for property rights.

Nashville City Paper: www.nashvillecitypaper.com

Eminent domain laws must protect city and citizens: Huntington (WV) Herald Dispatch, 1/30/06


Two areas of public policy and individual rights are colliding in the West Virginia Legislature. The result will affect how cities fight crime and how secure private citizens feel in owning their property.

The House of Delegates has approved HB4048, which clarifies that eminent domain can not be used to seize private property for retail, office, commercial, industrial and residential development. It has moved along to the Senate, which has referred the bill to its Economic Development Committee.

The concern among several cities is that the bill does not include an exemption for local governments to declare an area blighted or a slum and then use their eminent domain powers to acquire private property to be used for private development.

"If we don't have the ability to use eminent domain in slums and blighted areas, then we have no vehicle to protect citizens from the deterioration of properties that are unsafe, overgrown and a health hazard," said Dorothy Turner-Lacy, a community development specialist for the city of Huntington.

Sen. Evan Jenkins, D-Cabell, has introduced his own bill that allows the use of eminent domain to clear slums and blighted areas.

Some lawmakers contend that the state's definitions of a slum and blighted area are too broad. Exempting them from the limitations would leave a loophole that governments could use to take someone's home for economic development purposes, they say.

Huntington is in the early stages of a redevelopment plan for a blighted area of Artisan Avenue. The area is known as a drug market because of the rundown condition of many properties. To carry out its plan, the city must acquire 31 vacant lots or homes and replace them with new homes. One stubborn property owner could ruin the plan.

The city needs an aggressive program to clear blight. Eminent domain should be used only as a last resort and only to clear truly blighted areas.

Lawmakers will have to craft a definition of the word "blight" that does two things. One allows cities to clear areas favored by drug dealers. The other prevents government from abusing its power of eminent domain to transfer property from one private party to another.

This truly is an area where the Legislature had better tread carefully.

Herald Dispatch: www.herald-dispatch.com