Monticello Won't Exercise Eminent Domain: The (Pine Bluff AR) Commercial, 2/17/06

By Patty Wooten

The Monticello City Council on Thursday night declined to exercise its power of eminent domain to acquire an easement needed to provide city services to a developer interested in building apartments near the University of Arkansas at Monticello.

Tony Rodgers, who owns property at the corner of Bowser Road and U.S. 425 South, asked the city council in December to extend a sewer line to the south side of Bowser Road, across the street from Johnny Donaldson’s Weevil Run apartments, where a sewer pump is located.

Donaldson agreed to provide Rodgers the easement for $20,000, but Rodgers believed the cost was too high and obtained an appraisal indicating the easement is valued at $1,380.

Though the city paid $32,000 toward the cost of extending city water and sewer lines to Donaldson’s property, Donaldson said he paid about $94,000 of the cost, including 11,000 feet of pipe, and obtained the necessary easements himself.

Rodgers said he doesn’t want to tie onto the pipe, he wants to tie onto the pump, which he contends the city paid for.

“You spent $32,000 of taxpayer money and other taxpayers should be able to benefit from it,” Rodgers told the council.

Alderwoman Claudia Hartness told Donaldson she believed it is only right that he grant an easement “at a very low cost,” considering the $32,000 the city spent on his utility extension.

Donaldson said he would accept Rodgers’ offer of $1,380 for the easement “but the hook-on fee” would be $20,000.

“If he’ll sign my easement, I’ll give him $1,380,” Rodgers said.

“If he’ll pay me the hook-on fee, I’ll sign it,” Donaldson said.

Rodgers declined Donaldson’s offer and Alderman Clifton Bond made a motion that if Rodgers obtained his own easement the city would “work with” him.

“‘We’ll work with him’ is very vague,” said Hartness. “Does that mean we’ll give Tony $32,000?”

“We’re not giving anybody $32,000 ever again!” Alderman Tim Chase said.

Bond’s motion passed 6-2, with Alderwoman Carolyn Brown and Hartness casting the dissenting votes.

Mayor David Anderson then presented a proposed resolution defining the term “cost” in a May 2001 resolution. The resolution would effectively require the developer or property owner to pay the cost to extend sewer lines to projects that are not “city sponsored.” Those costs would include all expenses incurred for obtaining easements, all legal fees, engineering costs, materials, labor, inspections and any fees required by regulatory agencies.

“Who asked you to do this resolution?” Hartness asked City Attorney David Hoffman.

Anderson told Hartness that he did.

Hartness said it seemed to be a conflict of interest for Hoffman to prepare the resolution. She was referring to Hoffman’s disclosure in December that he had a potential conflict with the Donaldson and Rodgers issue because he represents Donaldson on private matters.

The proposed resolution failed.

Pine Bluff Commercial: www.pbcommercial.com

Kelo Exposes Deeper Problems With Eminent Domain: Hawaii Reporter, 2/17/06

By Robert H. Thomas

“You work for the American dream – you don’t steal it.” So says the protagonist to his cohorts in the 1998 film A Simple Plan, after finding a duffel bag laden with cash. Last summer’s U.S. Supreme Court decision in Kelo v. City of New London triggered a visceral reaction nationwide because it revealed that the government could steal the American dream from innocent homeowners. Not surprisingly, the public is shaken that the Court would condone the use of eminent domain to bulldoze homes to make way for a hotel, health club, and marina.

After all, the U.S. Constitution’s Fifth Amendment is supposed to prohibit takings unless the property is condemned “for public use” and the owner receives “just compensation.” In Kelo, however, the Court accepted the government’s argument that the taking was for public use because it was claimed the new owner would make “better” – more intense, and therefore more publicly beneficial – use of the property. The decision eviscerated the public use” requirement as a meaningful limitation on eminent domain, except in a few circumstances.

Eminent domain is not a new phenomena. This ancient attribute of sovereignty has its roots in the ability of English kings to seize their subjects’ lands. Traditionally, the power was invoked to take property for schools, government buildings, and military bases. Since the 1950’s, however, it has been increasingly exercised for uses which are not obviously public such as urban redevelopment, land redistribution (Hawaii’s Land Reform Act), and, as in Kelo, “economic development.”

Kelo comes as no real surprise to those who follow eminent domain law, as it is just the latest in a long line of cases upholding the government’s broad power to take private property for virtually any reason. Yet, the public has finally expressed unprecedented revulsion to the manner in which this power is often exercised. Perhaps the contrast between the positions of the parties had never been drawn as starkly: the properties of Mrs. Kelo and her neighbors are well-kept middle class houses, but they were condemned so that another private owner could put them to more economically productive use.

It appeared the government was strong-arming widows and families. Minorities, the poor, the elderly, and those without political clout often find that their properties are targeted. Although the Court eventually upheld government’s power, Kelo shone light on the harsh inequities inherent in eminent domain which had for too long passed unnoticed, and laid bare the fable that property rights are only asserted by the rich and the powerful. Public reaction cut across the political spectrum, with traditional adversaries finding an issue on which they could agree: eminent domain is being overused, and has strayed from its original purpose.

Just ask the farmers, ranchers, small business owners, charitable trusts, churches, families, and homeowners whose properties have been threatened. Next to being wrongly charged with a crime, there is nothing like forced dispossession to make innocent citizens feel violated by their government. When the overwhelming power of the state is leveled directly at property owners, the Constitution should also protect them, and it is no coincidence that the limitations on eminent domain are contained in the same Fifth Amendment which also sets forth the rights of the criminally accused.

Kelo was not the last word on the subject, as it only removed federal law from the equation. The U.S. Constitution sets minimum standards and the states remain free, the Court said, to provide property owners with more protection. Forty states, Hawaii included, responded quickly to Kelo’s invitation to reform their eminent domain laws. Article 1, section 19 of the Hawaii Constitution, and chapter 101 of the Hawaii Revised Statutes are now the first-line protection. Several proposals are now pending in the Legislature to reform eminent domain.

Limiting reform to the Kelo issue and only prohibiting “economic development” takings will not curb abuse, however, because a condemnor bent on acquisition will simply create some other reason to support the taking. Piecemeal limitations on eminent domain have never been effective at ensuring the power is used properly. For example, although several states require that property is deemed “blighted” before eminent domain may be exercised, the government strains to label perfectly good property as “blighted” in order to take it. The courts for the most part do not disturb blight findings, regardless how spurious they appear.

Broader reform is needed to provide more protection to property owners than the current system allows. Several proposals to reform eminent domain procedures are now pending in the legislature to address the greater problems which were exposed by Kelo. To be effective, the Legislature must establish broad checks on eminent domain power, while allowing takings for genuine public uses to continue.

  • First, the public use for the property should be expressly stated. Currently, condemnors need only hypothesize (in other words, make up) reasons supporting the taking if challenged in court.
  • Second, eminent domain should be used as a last – not first – resort. Under the current law, it is often cheaper and easier for a condemnor to take property by eminent domain than to attempt its purchase on the open market.
  • Third, the property should be owned or operated by the government or a PUC-licensed entity. This prevents a Kelo situation where the government’s power is used to force transfers of property primarily for private benefit.
  • Finally, if the property taken is not used for the stated public use, it should be offered for sale back to the former owner at the price at which it was taken. This prevents pretextual or “temporary” ownership by the government.

Without meaningful reform, eminent domain can turn a property owner’s American dream into the American nightmare. Government should work to support the dream, not steal it.

Hawaii Reporter: www.hawaiireporter.com

Robert H. Thomas is the Managing Attorney for Pacific Legal Foundation's Hawaii Center: rht@hawaiilawyer.com

Eminent domain arm-twists: The Washington (DC) Times, 2/28/06

By Jacob Sullum

Indianapolis Mayor Bart Peterson wants to dispel "inaccuracies and stereotypes" about use of eminent domain for economic development, a practice the U.S. Supreme Court upheld in last year's notorious Kelo v. New London decision.

Last fall Mr. Peterson told a Senate subcommittee that when the government threatens to condemn people's property because it thinks someone else can make better use of it, "a majority of the time, most people agree to sell."

Interesting. Given the choice between selling and fighting an expensive legal battle they will almost certainly lose, after which they will have to give up their land anyway, probably on less advantageous terms, most people "agree" to sell.

"Cities use eminent domain most often as a negotiating tool with property owners," explained Mr. Peterson, speaking for the National League of Cities. "Just having the tool available makes it possible to negotiate with landowners." Sure it does — in the same way having a gun available makes it possible for a bank robber to negotiate with a bank teller.

With the nearing Feb. 22 anniversary of oral arguments in Kelo v. New London, state legislatures consider bills to rein in use of Mr. Peterson's "negotiating tool." They should not fall for false assurances from local politicians, city planners and developers — a powerful triumvirate determined to block meaningful eminent domain reform.

Reform opponents say Kelo did not really change the law, forcibly transferring property from one private owner to another had been upheld by state and federal courts. But until Kelo, the Supreme Court had not said the Fifth Amendment, which restricts eminent domain to "public uses," allows local governments to take perfectly good (not "blighted") homes and businesses on behalf of private developers.

By agreeing any private use expected to increase tax revenue and create jobs counts as a public use, the court gave a green light to politicians who might otherwise have hesitated because of the lingering legal uncertainty. As Justice Sandra Day O'Connor said in her dissent, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping center, or any farm with a factory."

Mr. Peterson claims "eminent domain is used sparingly." Yet the Institute for Justice, which represented the property owners in Kelo v. New London, found 10,000 cases in which condemnation was used or threatened for the benefit of private developers during a five-year period. The true number is probably much higher, as the study relied on newspaper articles and recorded cases, reflecting a fraction of such land grabs.

But don't worry, Mr. Peterson says: Cities can take your property only if they have a plan and follow certain procedures. When politicians draw up plans to justify decisions they've already made and follow procedures they specify, these requirements provide property owners little protection.

Speaking of phony safeguards, Mr. Peterson is willing to go along with "legislation that prohibits the use of eminent domain solely to provide for private gain." Such condemnations are illegal even under Kelo v. New London and in any case do not officially exist, since any private use can be said to provide ancillary public benefits.

In practice, that is all it takes to seize people's homes and businesses: the unilateral judgment of politicians that society would be better served if the property were in different hands.

Mr. Peterson asserts "a natural tension... between individual rights and community needs" that wise men like him must resolve to "achieve a greater public good that benefits the entire community."

Mr. Peterson is not talking about public nuisances or about traditional public uses such as roads or courthouses but about systematically overriding people's plans for their own property. State legislators should reject this collectivist vision, which elevates amorphous "community needs" above individual rights.

The Washington Times: http://washingtontimes.com

Jacob Sullum is a nationally syndicated columnist

Town Council Rejects Eminent Domain Power: Westerly (RI) Sun, 2/18/06

By Emily Dupuis

Rest assured, the town [of Westerly RI] cannot seize and replace your home with a hotel, office park or chain restaurant.

Westerly Town Council members have approved an ordinance this week barring themselves and other town officials from invoking the power of eminent domain to take local private property for economic development purposes.

Officials, however, may still appropriate monies to confiscate property to be owned by the town for a public facility or use. This includes streets, bridges, sidewalks, rights or way, parks, playgrounds, schools, permanent open space, drainage and erosion control facilities and public sewer, water or waste disposal or transfer facilities, according to the ordinance adopted Monday.

The statute, approved during the council's regular meeting this week, also allows the town to seize properties dangerous to public health or safety because of physical deterioration, pollution or contamination.

"I think we're taking a step in the right direction for this ordinance just for Westerly," said Councilor Mary Jane DiMaio, following the council vote.

Councilor Caswell Cooke Jr. agreed: "I think it's a good move with this issue having been in the news this past year."

Eminent domain powers took center stage in June after the Supreme Court ruled 5-4 that New London could take seven homes in the Fort Trumbull neighborhood to build a privately owned hotel and offices because it would create more jobs and generate tax revenue. The court also said states are free to ban the taking of property for such projects.

The Kelo v. New London high court decision spurred more than half of U.S. states to enact legislation restricting eminent domain powers.

In Rhode Island, Sens. Dennis L. Algiere, R-Westerly, and James C. Sheehan, D-Narragansett, introduced legislation late last month restricting eminent domain power to protect residential property owners from governmental seizures for economic development.

The bill has been co-sponsored by senators from Smithfield, East Greenwich and Jamestown, drawn support from Lt. Gov. Charles J. Fogarty and been sent to the Senate Judiciary Committee for review.

In the House, Rep. Charlene M. Lima, D-Cranston, reintroduced similar legislation barring governments from seizing property to be owned by more than 10 percent private ownership.

And late last month, the Rhode Island Economic Development Corporation's (EDC) board voted to no longer use eminent domain to take occupied residences for economic development.

More than 10,000 properties were threatened or taken by eminent domain between 1998 and 2002 and thousands continue to be, according to the Institute for Justice, a libertarian public interest law firm fighting eminent domain abuse.

In 2001 in Rhode Island, the EDC attempted to oust a Smithfield farm and garden shop owner from his family's 8.5-acre property to provide nearby Fidelity Investments room to expand. The property owner reportedly has since settled and sold his property to the EDC for $1.65 million.

The Sun: www.thewesterlysun.com

Padilla relents, wants eminent domain on ballot: San Diego (CA) Union-Tribune, 2/18/06

Measure would limit what Chula Vista could condemn

By Janine Zúñiga

[Chula Vista CA] Mayor Steve Padilla announced yesterday that he would ask fellow council members on Tuesday to place an eminent domain measure on the June ballot.

If the City Council votes to place the measure on the ballot, which Padilla had initially opposed, a group that has been organizing a ballot petition will not have to scramble to add more signatures the city said were required.

After Padilla's announcement, Councilmen Steve Castaneda and Jim McCann issued a joint press release urging the City Council to “act in good faith and allow the initiative to move forward.”

A few hours later, Councilman Jerry Rindone released a memo to the City Council saying he also would propose placing the initiative on the ballot.

The measure would limit the city's eminent domain authority by requiring the city to use its powers of condemnation only for public use, such as building a school.

It also would require the city to keep eminent domain properties it acquires for at least 10 years before selling them.

Despite his own reservations about the measure, Padilla said he thought placing the measure on the ballot was the right thing to do.

“There was confusion about it and, at this point, it doesn't do the community any good to haggle about it,” Padilla said yesterday. “Thousands of people signed the petition and they want to vote on it. In keeping trust with the public, it's important to support their wishes.”

The confusion began two weeks ago when Chula Vistans for Private Property Protection submitted signatures for the measure to the city clerk but fell short by 236 registered voters. Members of the group turned in 14,195 signatures, safely more than the 10,000 they thought they needed to make a March 10 deadline to qualify for the June ballot.

But the City Clerk's Office told the group that this particular type of measure required signatures from 15 percent of registered Chula Vista voters, or 14,431 signatures. At the time, the clerk said the group could not resubmit or add more signatures. Then Wednesday, city attorneys decided to allow the group to add more signatures.

Castaneda said yesterday he was pleased the mayor was “finally seeing the light.” He said that had the group been told the correct number of required signatures in the first place, the council would have been compelled to place the measure on the ballot.

“This continues to divide the community and we need to heal it,” said Castaneda, who announced Wednesday that he was running for mayor.

McCann, who is running for re-election, and Castaneda said the group clearly has shown that residents want to see the initiative on the ballot, as demonstrated by the signatures of more than 14,000 people.

Councilwoman Patricia Chavez said yesterday she also supported placing the measure on the June ballot. She is running for a council seat in June.

Padilla, who announced in December that he would seek a second term, said he was concerned that if the measure was flawed it could be ruled invalid, leading to potential lawsuits.

Still, he said, he no longer wants to delay a vote before the council. He will bring up the issue at Tuesday's meeting.

Chula Vistans for Private Property Protection said in a statement released yesterday, likely before the mayor's news release, that it has redrafted and submitted the text of the measure as a “people's ordinance” that would “force” city officials to place the issue on the ballot with the signatures of only 10 percent of registered voters.

Steve Haskins, an attorney representing the group, did not return a call seeking comment yesterday.

City Clerk Susan Bigelow confirmed that the group filed a notice of intent Feb. 10 to circulate an initiative petition.

The group's statement also said the city clerk's recent actions regarding the handling of the petition “are only the latest in a pattern of efforts by city officials to frustrate reform efforts and block ballot access.”

Bigelow said it was her job to uphold the state Elections Code and that the initial signatures were rejected “solely because they did not comply with the number required to place a charter measure on the ballot.”

Bigelow said she was never asked by anyone from the group what was required for their particular measure and that the group followed the wrong process.

San Diego Union-Tribune: www.signonsandiego.com

Farmland owners fighting Troy eminent domain suit: Bellville (IL) News-Democrat, 2/17/06

By Jayne Matthews

Troy and owners of farmland beside Interstate 270 remain at odds over how much a developer should pay for 175 acres to build a new shopping and business center.

The city is attempting to exercise its powers of eminent domain to take the land. The owners are fighting in court to make the city's developer negotiate a price without the guarantee he will ultimately get the land.

A lull now is over the courtroom action, while lawyers for both sides build their cases, Troy Mayor Tom Caraker said.

"It's in discovery and deposition right now," Caraker said.

Owners initially put an asking price of about $147,900 an acre on the land. At that price, the total cost to Koman Properties of Clayton, Mo., would be about $25.8 million.

Negotiations to buy the land began more than two years ago, after the city chose Koman to build what has been called Troy Town Center.

Koman already has commitments from Walgreen's drugstore and Shop 'n Save supermarket to locate in the area.

Company President James Koman could not be reached for comment on the land price dispute.

The land is along Interstate 270, between U.S. 40 and Illinois 162. It is controlled by a trust set up by two families that own the property.

One of the owners, Shirley Schlemer of Granite City, declined comment on the court case and possible land sale.

Troy city attorney Steve Wiggington could not be reached for comment.

News-Democrat: www.belleville.com

Ohio task force to begin look at eminent domain: Cincinnati (OH) Inquirer, 2/17/06

By Jon Craig

A state task force studying the use of eminent domain in Ohio promised to meet an April 1 deadline for initial recommendations on balancing economic development interests against private property rights.

During its first meeting Thursday at the Statehouse, legislators said more detailed recommendations would be made by August. These could include proposed new laws or possible amendments to the Ohio Constitution.

At the Statehouse, Rep. Bill Seitz, R-Green Township, and Sen. Timothy Grendell, R-Chesterland, co-chairmen of a 24-member task force, said they will take suggestions from the public at a series of regional hearings.

Legislators also said they expect a state Supreme Court decision in a lawsuit brought by property owners against Norwood before the task force's work is completed this summer. In the meantime, the Ohio General Assembly banned all eminent domain actions outside of blighted areas through Dec. 31 as it studies the issue. Re-examination of Ohio law was prompted by a divided U.S. Supreme Court ruling in June broadening the definition of "public use" to include economic development by other private property owners.

The state task force will meet 1 p.m. every other Thursday beginning March 2.

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

Skowhegan resident voices his concerns: Portland (ME) Morning Sentinel, 2/17/06

By Susan M Cover

Skowhegan resident Hank Clark told lawmakers Thursday the state didn't notify him or his neighbors that their homes were in the path of a proposed downtown bypass.

It was only after a town selectman called that he found out about the new proposal.

"This is a horror story," he told members of the Judiciary Committee. "The previous path of the bypass had been accepted."

Clark was referring to a state Department of Transportation plan for a new link between U.S. Route 2 and U.S. Route 201, just southeast of town, that would help alleviate traffic congestion in downtown Skowhegan.

Clark, who said he was representing 30 Skowhegan-area residents, testified in support of two bills that would strengthen the state's eminent-domain laws.

One bill, sponsored by Rep. Deborah Pelletier-Simpson, D-Auburn, prohibits the use of eminent domain authority for private retail, office, commercial, industrial or residential development.

Simpson said she sponsored the bill after the U.S. Supreme Court ruled in a Connecticut case that it was permissible for government to take private land for use by a private developer as long as it benefitted the greater public good.

Simpson said in its ruling, the court gave states permission to adopt tougher standards.

That's what she wants Maine to do.

"We shouldn't have to worry that Wal-Mart has its eye on our land," she said.

The other bill, sponsored by Rep. Barbara Merrill, an Appleton independent, requires any political subdivision with eminent-domain power to make sure it is "absolutely necessary" to take the land and that it takes the "minimum amount necessary."

But the state Department of Transportation opposed the bills, saying they would hamper its ability to fix roads and bridges in emergency situations.

"We only take what we consider is absolutely necessary," said Toni Kemmerle, real estate attorney for the transportation department. "We have no desire to take more land than we need."

Kemmerle said the state also must abide by federal regulations and does the best it can to identify the footprint of what's necessary to take in order to complete a project.

And Greg Nadeau, a transportation department spokesman, said the Skowhegan project is in the preliminary stages and that there will be plenty of time for additional public feedback.

At least two lawmakers on the committee said they were concerned that the transportation department believes it has absolute power to take land.

And another lawmaker said he believes the public doesn't have the power to fight back against the government when it wants to take land.

"Most people whose properties were taken didn't have the means to fight the state," said Rep. Charles Crosby, D-Topsham. "The odds were so stacked against the property owner, it was an insurmountable task that the project could be questioned."

Morning Sentinel: http://morningsentinel.mainetoday.com

Iowa House approves eminent domain rules: Quad-City Times (Davenport IA), 2/18/06

By Dan Gearino

The Iowa House passed new rules this week that would sharply curb local governments’ power to acquire private property through eminent domain.

The bill, approved 83-15, says that local governments must have the consent of the property owner to acquire land for commercial purposes, with few exceptions.

The measure was inspired by the U.S. Supreme Court ruling last year in Kelo vs. New London, in which the court found that a Connecticut city government had the authority to use eminent domain to acquire private property for an economic-development project.

Rep. Jeff Kaufmann, R-Wilton, one of the lead sponsors of the bill, said the court ruling has chilling implications that require immediate action by the Legislature.

“I’m hearing a roar” from Iowans who want stronger property rights, he said, at the beginning of a four-hour debate.

Meanwhile, the Bettendorf and DavenportOne chambers of commerce announced that they are taking a stand against the state’s efforts to change the eminent domain law. Both chambers, which represent thousands of business owners in the Quad-Cities, believe the use of eminent domain for economic growth — when used properly — is an important tool to grow Iowa’s economy. Lawmakers in Des Moines are debating this week on scaling back the power of local governments’ ability to use eminent domain to take over private property.

“The rights of individual property owners are extremely important, but so is civic redevelopment,” said Scott Tunnicliff, Bettendorf’s chamber president. “Cities and counties in Iowa have been extremely reluctant to use eminent domain, in part because of the barriers already in place to prevent abuse by government. We are concerned that some state legislators may be seeking to end abuse where none exists.“

Both chambers are encouraging their members to contact their legislators and ask them to oppose any new restrictions on eminent domain that will hamper urban redevelopment efforts.

“Unintended consequences of further restrictions on eminent domain would impede efforts to rebuild Iowa communities, causing more problems than they intend to solve.” said Dan Huber, DavenportOne CEO.

Quad-City Times: www.qctimes.net

Chula Vista group can add signatures: San Diego (CA) Union-Tribune, 2/17/06

By Shannon McMahon

City [of Chula Vista] officials have decided they can legally accept additional petition signatures from a group seeking to put an eminent domain measure on the June ballot, despite saying earlier the group had fallen short of the required number and could not submit more.

Chula Vistans for Private Property Protection submitted its proposal to limit the city's power of eminent domain two weeks ago. City Clerk Susan Bigelow informed the group that since it was attempting to change the city's charter, it needed signatures from 15 percent of registered Chula Vista voters – 14,431 signatures. Bigelow said the group submitted 14,195 valid signatures. She also said the group would not be able to resubmit or add signatures.

However, city attorneys agreed Wednesday to allow the group to add to the signatures it already had and resubmit the measure.

The group is facing a tight deadline. The Registrar of Voters requests 30 business days to verify signatures. After the signatures are verified, the City Council must vote to approve adding the measure to the ballot. That approval must be returned to the registrar by March 10.

The registrar's office would not comment on whether enough time remains to add the amendment to the June ballot. Robert Pennisi, chief deputy of the Registrar of Voters, said he was not aware the group was submitting additional signatures and called the circumstances “unique.”

The City Council can eliminate the petition verification process by voting to add the eminent domain amendment to the ballot. The council will discuss that option at its meeting Feb. 28.

The amendment filed by Chula Vistans for Private Property Protection would require the city to use eminent domain only for a strictly defined public use, such as building a road or school. The petition also states that if eminent domain is used, the city should keep the acquired property for at least 10 years before selling it.

The group was originally under the impression it needed roughly 10,000 signatures to add a measure to the ballot.

The city clerk's announcement that the group would not be allowed to file additional signatures drew sharp criticism from dozens of community members who spoke at council meetings, sent angry letters to elected officials and threatened to recall Mayor Steve Padilla.

“It seemed that when they saw you were winning, they changed the rules,” Councilman Steve Castaneda said of the city at a protest outside City Hall on Tuesday. “They can't do that.”

Castaneda announced yesterday he is running for mayor.

Councilman John McCann, who is seeking re-election, said he supports adding the initiative to the June ballot.

“This is a no-brainer,” McCann said. “This is about democracy.”

Padilla called the push to add the proposed amendment to the ballot “a political stunt.”

“This could have a heavy taxpayer cost and could potentially lead to a lawsuit,” Padilla said of the proposed amendment.

Padilla said the council would be “expedient” in deciding what to do, but he would not support a measure that could cause the city to be “sued or is going to be considered invalid the minute we adopt it.”

Steve Haskins, a Bonita attorney representing the residents' group, called Padilla's comments “patronizing.”

“We can decide what we want,” Haskins said of the amendment, “and we want this on the June ballot the way it is.”

San Diego Union-Tribune: www.signonsandiego.com

Eminent domain awards rejected; Anoka to pay costs: Anoka County (MN) Union, 2/16/06

By L A Jones

Downzoning multiple-family districts in Anoka has been a controversial issue enough. But now Anoka will also have to considerably downsize its ambitious plans for the North Central Business District (NCBD).

Court-appointed commissioners in charge of determining condemnation awards in eminent domain proceedings for four parcels owned by Tom Boros and for a single parcel owned by Andy Morse along Third Avenue and Van Buren and Harrison streets within the NCBD recently presented the numbers in Anoka County District Court.

The parcels are located at 228 Harrison St., 229 and 241 VanBuren St. and 2215 and 2223 Third Ave.

And the Anoka City Council, in executive closed session prior to its regular meeting Feb. 6, reviewed these numbers awarded by the commissioners, which the Anoka County Union obtained from a source and independently verified.

For the single Morse parcel alone, an appraiser hired by the city valued the property at $250,000. The subsequent award by commissioners was for $432,283 – rejected along with the four other awards for the Boros parcels as part of the council’s consent agenda Feb. 6. No addition to the council’s regular meeting agenda was announced by the mayor or council members at the start of the regular Feb. 6 session.

Awards of $435,375, 311,825, 427,635 and 485,298 for the four Boros parcels, as verified by his legal counsel, Dave Oslund, were also rejected by the council as part of its consent agenda.

The five awards totaled $2,092,416. And according to Community Development Director Bob Kirchner, the city will no longer pursue obtaining the parcels to be included in the NCBD redevelopment effort.

The portion of the NCBD occupied by the properties, although part of the proposed redevelopment effort, would have likely followed plans for those areas along Second Avenue and to the north, above the older lumber yard site.

“It could have been a second or third phase,” Kirchner said.

Kirchner told the Anoka County Union that the city’s expenses for proceeding with eminent domain and rejecting the bids had not yet been determined. Regardless, any unit of government rejecting an award from the court for condemnation must pay all legal and other costs of those who have been taken to court for condemnation – in this case the costs incurred by both Boros and Morse.

The council on a 3-1 vote May 16, 2005 authorized eminent domain proceedings against the parcels. Councilmember Dori Schumacher excused herself from the vote because of a possible conflict of interest, and Mayor Bjorn Skogquist voted no.

It was Skogquist’s opinion at the time that the two men who want to redevelop own these properties, according to the May 16, 2005 council minutes. The city has given time to the rest of the area, but has not given time to these men who might want to participate on their own without any intervention by the city, Skogquist said.

Kirchner at the May 16, 2005 meeting, according to the minutes, said there had been an ongoing and fairly long discussion with both property owners about the acquisition of these properties. There had been discussion of Boros being a developer himself and he did bring in a plan for this whole area, according to Kirchner.

However, two weeks later he took the plan back, Kirchner said. In both cases there had been an attempt to begin negotiations for purchase, including trying to obtain access for appraisals and relocation assessments, which had not been successful, he said.

Appearing before and perhaps forewarning the council on Nov. 7, 2005, Erik Skogquist, 1815 3rd Ave., said eminent domain is sometimes a necessary thing, but in some cases this has been expanded to include things like redevelopment projects and economic development.

Responding to a bill the U.S. House of Representatives had been discussing about the way cities had been using eminent domain, Erik Skogquist said it was his understanding that at the time the city started dealing with these properties, the property owners were willing to work with Anoka.

According to the Nov. 7, 2005 minutes, Erik Skogquist said he did not know what happened to those negotiations, but now there was a hearing scheduled on Dec. 14 to discuss the city’s appraisal and taking of the properties.

All of the sudden it went from working together to fighting each other and butting heads, Erik Skogquist said, addressing the council

Additionally, Erik Skogquist said he understood there were times to use eminent domain, but he thought this was an example of the city abusing eminent domain.

In response to a U.S. Supreme Court ruling upholding the right of communities to use eminent domain in such cases, numerous bills have been mentioned by lawmakers prior to the 2006 session of the Minnesota Legislature beginning March 1.

Anoka County Union: http://www.abcnewspapers.com

Eminent Domain Concerns in Fresno's Chinatown: KFSN-TV30 (Fresno CA), 2/16/06

Some Fresno [CA] business owners are not happy with a developer's plans to transform the Chinatown district.

Fresno's Redevelopment Agency wants to extend the power of eminent domain to cover the entire area.

It would give the developer the power to buy any property in the district.

Even supporters of Chinatown's redevelopment say the proposal hasn't been clearly explained.

"When that doesn't happen, you have a lot of confusion," said Chinatown activist Kathy Omachi. "You have a lot of people feeling they might be run over by the process."

Additional public meetings on the Chinatown plan will be held over the next two weeks.

It goes before the city council in mid-March.

KFSN-TV30: http://abclocal.go.com/kfsn

Lake Project Could Challenge Eminent Domain Law: KCCI-TV8 (Des Moines IA), 2/15/06

Lawmakers To Debate Issue

Should the government have the right to buy your property — even against your will — for a public project or even economic development?

[Iowa] Lawmakers plan to debate the issue of eminent domain.

A bill in the House would forbid government from using eminent domain to enhance a community's economy.

In Clarke County, local leaders wonder how that could affect a proposed water project.

In south central Iowa, it's dry. West Lake in Osceola is 51 inches below normal. The lake is the area's primary water supply, and leaders throughout Clarke County think the county needs a second reservoir.

There's one on the drawing board. Local governments throughout the county have settled on four possible sites for a lake.

"I think it would benefit Clarke County, and I think it would benefit southern Iowa," said Clarke County Supervisor Jack Cooley

But the benefit comes at a high price to those in the proposed lake's path. The county would put a dam on Squaw Creek, northwest of Osceola, which would affect several farms and houses.

Two of the proposed reservoir sites would flood out one area. That means Mike Kelly would lose his property and his home.

"We've lived here for 22 or 23 years, raised our kids there, my family, I grew up in that area, and I plan on retiring there. I just believe that I ought to be able to live there the rest of my life," Kelly said.

If any landowners fight the project, the county could try to use its power of eminent domain. But a bill in the Iowa House could limit that power.

Osceola Mayor Fred Diehl said he's watching the debate closely.

"If you didn't have eminent domain, and, say, one person right in the middle of this project said, 'No, I'm not interested, regardless of the price, regardless of what happens, I'm just not interested,' that could hold up the whole project," Diehl said.

KCCI-TV8: www.kcci.com

Eminent domain tops agenda of NFIB: Kingsport (TN) Times-News, 2/16/06

The National Federation of Independent Business (NFIB), Tennessee's largest small business advocacy group, said Wednesday that its 2006 legislative agenda will include adopting private-property rights protections, restoring vendors' compensation, and giving small businesses regulatory flexibility.

"Tennessee must better define the circumstances in which governments can invoke the awesome power of eminent domain," said NFIB/Tennessee State Director Gary Selvy, noting 90 percent of NFIB/Tennessee members are in accord with this objective. "Small business wants to ensure eminent domain is never used to seize private property for private commercial enterprises or for economic development purposes."

More than 20 eminent domain bills have already been filed in the Tennessee General Assembly, and NFIB is expected to work with lawmakers to share concerns from its 10,000 members across the state.

Kingsport Times-News: www.timesnews.net

Eminent domain should be the last resort: (University of Oregon) Daily Emerald, 2/16/06

Illustrating absurdity

By Kirsten Brock

Last Friday, private property owners were handed a victory in Eugene when developers Tom Connor and Don Woolley sent a letter to Eugene Mayor Kitty Piercy. In it, they said that they don’t want the Eugene City Council to use eminent domain to help them acquire downtown property.

The issue started when developers Connor and Woolley presented their plans to the Council to revitalize Eugene’s ailing downtown. To spur economic growth, they wanted to work with the Opus Group to build a parking structure, a hotel, a movie theater, apartments, restaurants and shops on Broadway. Connor and Woolley already own some property in the area, but said their plan couldn’t go through without purchasing a neighboring parcel that includes local businesses. The businessmen asked the Council to obtain the land for them, which the city admitted might have involved condemning property using eminent domain.

Eminent domain is a right reserved for the government that allows private property to be condemned so it can be seized and put to public use. Traditionally, public use meant building a neighborhood playground or widening a road, for example. Recently though, the government has been interpreting public use much more widely. In this case, the reasoning might be that Connor and Woolley would be able to build businesses that are more profitable than those they're trying to buy. More profits mean more taxes, which the city can then use for public projects — hence “public use.”

For weeks, a debate has been raging in Eugene over the matter. Should the Council be able to use eminent domain to condemn private property and then sell it to another private party? Sane people said “no”; widening a road is one thing, but condemning property and selling it so the government can make more money is completely different.

Luckily for us, the developers don’t want to see the city strong-arm its citizens into selling their family businesses. Connor and Woolley want to try to work with their neighbors and try to reach an agreement that satisfies both parties. Hopefully the city will be able to help the local businesses relocate to other sections of Eugene in return for selling their land downtown.

Eugene is not the only city dealing with this threat to private property rights. After the U.S. Supreme Court ruled in favor of the government’s right to seize property for private development in Kelo et al. v. City of New London in 2005, people across the country have been facing losing their homes and livelihoods to developers.

The landmark decision in 2005 was about the city of New London, Conn., trying to seize a number of homes along a riverfront for commercial development. The case was appealed all the way to the Court, which ruled 5-4 for the city. In the majority opinion, Justice John Paul Stevens wrote that “promoting economic development is a traditional and long-accepted function of government.”

And all this time I thought that protecting private property had been a “long-accepted function of government.” Silly me, it seems.

Even before the decision, local governments found ways to use condemnation to improve living conditions. The Institute for Justice, a nonprofit Washington D.C. public-interest law firm, has counted more than 10,000 cases between 1998 and 2002 where eminent domain was used to sell private property directly to other citizens. Even though that number is staggering, it’s almost certainly less than the real amount because Connecticut is the only state that counts the times it uses condemnation. The only way for the institute to find how many cases of cities using economic eminent domain there are nationwide is to count news stories and court cases, raising the question of how many went unreported.

While I am as pro-business as the next Republican, I can’t stand developers being given special rights over small business and home owners. The fact that our government believes that it has a responsibility to force economic growth is both frightening and infuriating. Using condemnation to increase tax revenue or make a city prettier is something I hoped I’d never see.

Daily Emerald: www.dailyemerald.com

Bills attempt to limit possibility of eminent domain being used: Sioux City (IA) Journal, 2/16/06

Farmers and city-dwellers, lobbyists and private citizens all lined up Wednesday in support of tightening Nebraska's eminent domain law to stop the taking of land for private economic development.

But city attorneys and others who work on economic development opposed changing the law, saying eminent domain is rarely used in Nebraska but it is an important and needed tool.

The fundamental right to own property is being subverted through the misuse of eminent domain, supporters of making its use more restrictive told the Legislature's Judiciary Committee.

"There is no gray area on this issue for me," said Sen. Deb Fischer of Valentine, introducer of one of four bills before the committee. "It's black and white."

The bills come in the wake of a U.S. Supreme Court decision issued last year that allowed the city of New London, Conn., to take private property through the use of eminent domain for a private redevelopment project.

While it allowed the New London project to proceed, the high court also noted that states are free to ban the practice.

"I don't want what happened in Connecticut to happen here in Nebraska," Fischer said.

Nebraska lawmakers are not alone in looking at their eminent domain laws following the unpopular court ruling. Four states passed laws reining in eminent domain since the June ruling and roughly 40 others, including Nebraska, are looking at changes.

In Congress, the House voted to deny federal funds to any project that used eminent domain to benefit a private development, and a federal study aims to examine how widely it is used.

The bills before the Nebraska Legislature generally would tighten qualifications that must be met for a property to be considered for eminent domain and prohibit the taking of land for private economic development purposes.

The U.S. Constitution says governments cannot take private property for public use without "just compensation." Governments have traditionally used eminent domain to build public projects such as roads, reservoirs and parks. But for decades, the court has been expanding the definition of public use, allowing cities to employ eminent domain to eliminate blight.

Gothenburg City Attorney Mike Bacon said he has never seen properties condemned in the western Nebraska cities he's worked with on redevelopment projects.

Omaha's City Attorney Paul Kratz, who also opposed the bills, said only property that is determined to be blighted and substandard is targeted under the eminent domain law. He detailed high-profile projects in downtown Omaha that have involved eminent domain.

"This process has been invaluable to the city of Omaha," he said.

Other opponents included the League of Nebraska Municipalities, Lincoln's urban development department, South Platte United Chamber of Commerce and the North Platte Community Development Corporation.

Eminent domain is necessary for the public good in some cases, Fischer said, but that doesn't include taking property from one individual and giving it to another strictly because that person is poised to make more money off the land.

Frankie Pane, who fought the city of Omaha for years over its attempt to use eminent domain to take his property, said his struggle was the most stressful thing he has ever endured. Any reform effort must stop cities from targeting properties as part of a redevelopment project, he said.

Other supporters of tightening eminent domain restrictions included the Nebraska Cattlemen, Farmers Union, Farm Bureau, Women Involved in Farm Economics and the National Federation of Independent Businesses.

Fischer has prioritized her bill (LB924), meaning that if it can clear the committee it likely will be debated this year. It may contain elements of the other similar measures (LB799, LB910 and LB1252) introduced by Sens. Tom Baker of Trenton, John Synowiecki and Pam Redfield both of Omaha.

Sioux City Journal: www.siouxcityjournal.com


93-year-old tenant wins eminent domain case: MSNBC, 2/10/06

Hospital will have to pay five times its original offer if it condemns house

By Joe Bellacomo, Associated Press

A jury decided that a Georgia hospital is going to have to pay nearly five times what it offered if it wants to condemn a rental house where a frail, 93-year-old woman has lived for nearly three decades.

The jury said Thursday that Phoebe Putney Memorial Hospital would have to buy the 60-year-old brick duplex for $200,000 — it has been appraised at $50,000 to $60,000 — and give the tenant $51,000 to help her move from her home of 26 years.

“It just proves that no one can assume absolute power over someone’s life without having to answer to the legal system,” said attorney Eddy Meeks, who represented the tenant, Julia Lemon, and the home’s owner, Julie Montgomery.

Lemon, who walks with a cane, said she wished she could stay in the home.

“I lost my husband, a son, my daughter and a granddaughter while I was living here. So I’ve got a lot of memories, some happy, some sad,” she said as she watched television from an easy chair in a bedroom.

Hospital wants property for day care center
Phoebe, southwest Georgia’s largest hospital, condemned the property last year so that it could expand a child development center for employees’ children. Phoebe officials said they may appeal the verdict.

Meeks said he may appeal the condemnation, which was approved by a court last year.

The jury verdict came a day after Gov. Sonny Perdue called for a state constitutional amendment to provide Georgia property owners with more protections from government seizure of their property.

He also announced a new bill reforming the state’s eminent domain laws in response to an unpopular U.S. Supreme Court decision that gave governments power to take land for private development.

About 40 other states are also re-examining their laws in response to last June’s ruling, which gave officials of New London, Conn., the authority to condemn a group of waterfront homes for a private developer.

Lemon plans to start looking for a new home and said she might even buy one.

“This place is quiet,” she said. “I want a quiet place.”

MSNBC: www.msnbc.msn.com

Eminent-domain bill clears Senate: Rapid City (SD) Journal, 2/14/06

By Celeste Calvitto

Calling it a model of legislative cooperation, the South Dakota Senate on Tuesday unanimously passed a measure that is designed to protect private-property rights.

“This bill is truly a work of art,” Senate Minority Leader Garry Moore, D-Yankton, said. Moore commended HB1080’s chief sponsors, Sen. Jim Lintz, R-Hermosa, and House Majority Leader Larry Rhoden, R-Union Center, for working with interested parties in crafting the legislation.

HB1080, which ensures that government agencies cannot condemn land for economic development, stems from a controversial U.S. Supreme Court decision last summer regarding eminent domain.

Lintz told lawmakers that he and Rhoden began work on the legislation the day after the Kelo v. New London decision.

“Our phones were already ringing,” he said. “It created quite a backlash because people thought they were protected by that kind of action.”

The Supreme Court ruled that the city of New London could condemn private homes for the construction of a hotel and convention center because the new development would generate more tax revenue. But the court also said that states could put further restrictions on eminent domain.

Lintz and Rhoden said that although South Dakota has taken a conservative approach to condemnation issues, they wanted to make sure state law would prevent what occurred in Connecticut from happening here.

Under HB1080, counties, municipalities and housing and redevelopment commissions cannot transfer property to private or nongovernmental entity primarily for “enhancement” of tax revenue. It also stipulates that after seven years, if land isn’t used for the purpose for which it was acquired, it must be offered for sale to the original owner of the property.

Lintz said he and Rhoden wanted to get everyone on board.

“We knew it was something that all the people of South Dakota were concerned about,” Lintz said.

HB1080 was passed by the House last month. Thirty-one of the 35 senators were co-sponsors, and they passed it unanimously on Tuesday.

Rapid City Journal: www.rapidcityjournal.com

Putting a Leash On Eminent Domain: Business New Jersey (NJBIZ), 2/13/06

A pet-supply maker outfights a school board’s attempt to take his land

By Brian Quinlan

With battles over eminent domain raging across the country, Clifton businessman William Van Ness found a novel way to foil a local school board’s effort to seize some land he owned near his plant. He hired a public relations firm and launched a $65,000 media campaign to claim the industrial area in which the site is located was too polluted, noisy and full of traffic for a new middle school the board wants built.

The campaign paid off when Clifton voters overwhelmingly rejected a $49 million bond issue to build the school next to the Van Ness Plastics factory, which makes kitty litter pans, food dishes and other pet products (See NJBIZ Aug. 22, 2005).

In moves that could be a model for other eminent domain dissidents, Van Ness sent out mailings before the Jan. 24 vote, wrote op-ed pieces in local papers and attended more than a dozen public meetings to lobby for his land. His attention-grabbing campaign led to a heavy turnout in which nearly 9,000 voters cast their ballots in a town with a population of some 80,000.

Voters nixed the new school by a margin of 58% to 42%.

Denyse Dabrowski, a spokesperson for The Marcus Group, a p.r. firm that Van Ness retained, says part of the school building would have been just 30 feet from the factory and close to its loading docks. “People are passionate about this issue,” Dabrowski says.

“Obviously it’s frustrating,” says Joseph Klodziej, president of the Clifton School Board. “On top of being able to spend a lot more money than the school district was, he didn’t have to be completely honest.” Klodziej says the Van Ness camp exaggerated the environmental and traffic concerns.

Klodziej says it was difficult fighting Van Ness, who wasn’t bound by the same advertising rules or spending limits as the school board, which is barred by law from spending tax dollars to influence a vote.

Van Ness paid Verizon Wireless $1.1 million for the site in 2004 and plans to build a 98-car parking lot for his 256-employees. Dabrowski says the factory owner has spent $300,000 on site preparations.

The parcel was one of three on which the school for more than 1,500 pupils was to have been constructed. The school board last year purchased one of the sites from Mayer Textiles, which has an office there, and has been negotiating with Mayer to acquire the other site.

The proposal called for the board to build part of the new school from the ground up and retrofit part of the old Mayer factory.

Klodziej says recent environmental studies have shown the land to be suitable for a school. A district elementary schools is located two-thirds of a mile away on Brighton Road.

“Anyone who is a Clifton resident knows that Brighton Road is essentially a country road compared to the other roads in Clifton,” Klodziej says. “Basically, [Van Ness’s] argument was that the site is not suitable for a school because he’s a bad neighbor and makes all this noise pollution and fumes.”

Klodziej says the vote was a strong indication that residents don’t want a school on the land. Nevertheless, he says the board “won’t rule out” trying to pass the referendum again. He notes that in 2004 voters approved a 500-pupil school facility on the Mayer Textiles site that the board went on to acquire. Plans for the school were later dropped.

“There’s no question that there’s a need for a new school and the board is going to go back to the drawing board to address other options,” Klodziej says. “But based on [the vote], I don’t think the board members are going to be willing to put this referendum up again.”

In an opinion piece Van Ness submitted to The Herald News, he argued that the proposal would violate zoning laws, drive business out of the area and jeopardize students’ health. “Must students dodge trucks and freight trains on the way to school because the school board refused to follow Clifton zoning laws?” Van Ness wrote.

Dabrowski says the school board can put the referendum before town voters two more times. If it’s rejected, she says the board can still petition the state to overturn the vote.

NJBIZ: www.njbiz.com

Eminent-domain switch: (Richmond VA) Times Dispatch, 2/14/06

By Greg Edwards

A delegate ambushed an eminent-domain bill yesterday with an amendment that apparently would make it impossible to condemn blighted property and turn it over to a private developer.

The House's preliminary approval of the amendment, offered by Del. Johnny S. Joannou, D-Portsmouth, essentially gutted a measure sponsored by Del. Terrie L. Suit, R-Virginia Beach.

Suit's bill and Jannou's amendment were both offered to counter a U.S. Supreme Court decision last June that said the U.S. Constitution does not bar the use of government condemnation powers for economic development.

Joannou's amendment passed the House 50-47 and then survived by a 51-45 vote a parliamentary maneuver to kill it. The measure faces a third and final vote by the House today.

Joannou called upon the ghosts of George Mason and other Founding Fathers and quoted from the Virginia Declaration of Rights and the Declaration of Independence in arguing for tighter controls on eminent domain than Suit had proposed. The right to acquire and own property is an inalienable right on which the legislature cannot compromise, he declared.

Joannou's amendment defines public uses for which land can be condemned under the state constitution to "embrace only the ownership, possession, occupation, and enjoyment of land by the public or public agencies." It also would allow eminent domain powers to continue to be used for roads, utilities and railroads.

The Joannou measure also bars consideration of economic development goals such as increasing taxes or jobs when determining whether a proposed condemnation is for a legal public use. The bill also would ease the standard by which a property owner can challenge a condemnation from arbitrariness or fraud to a "preponderance of the evidence."

Suit's approach, which is now dead in the House, would have forbidden the use of eminent domain if the "primary purpose" was for the "enhancement of tax revenue." It would have retained nine existing sections of state law, including blight removal by housing authorities and the preservation of historic resources, under which land could be condemned and turned over to a private person or entity.

Joannou's measure would prevent land from being condemned and turned over to private parties in any circumstance, including for public-private road and school projects, Suit complained. In removing blight, the only thing a housing authority could do would be to retain ownership of the land and build public housing projects on it, such as those localities are now trying to be rid of, she said.

Suit said Joannou's proposal might prevent the construction of access roads, water and sewer lines and broadband connections to new businesses in distressed areas because the projects could improve the value of surrounding property. She argued that her approach had been developed with the participation of parties interested in eminent domain and had their backing.

The Virginia Farm Bureau Federation had supported Suit's proposal. Farm Bureau, however, is not opposed to Joannou's approach, and it more closely mirrors the state's largest farmers group's original position on the eminent domain issue, said Farm Bureau lobbyist Martha Moore.

Joannou said he was a bit surprised his amendment was successful, but from a philosophical standpoint, the amendment does what the majority of homeowners in Virginia want. "I just hope the bill meets some success over [in the Senate]."

A bill very similar to Suit's is still alive in the state Senate, sponsored by Sen. Kenneth W. Stolle, R-Virginia Beach. Stolle's bill was endorsed by his Courts of Justice Committee yesterday and goes to the Senate floor for a vote today.

Efforts by Sen. Ken Cuccinelli, R-Fairfax, to make the bill more restrictive on condemnation uses generally failed but he succeeded in inserting language preventing eminent domain's use for creating jobs.

Times Dispatch: www.timesdispatch.com

Senate to consider eminent domain: Farmington (NM) Daily Times, 2/13/06

By Diana M. Alba

A measure limiting the power of governments to seize land using eminent domain gained unanimous support in the House on Saturday.

The bill would prevent land from being seized from a private owner in order to promote private or commercial development.

Though the bill and similar proposed legislation have support from many lawmakers, some state officials think it's an overreaction and could serve to hinder beneficial development.

The House bill follows last summer's U.S. Supreme Court decision allowing a Connecticut city to take land for a revitalization project from a handful of owners who refused to sell.

Rep. Al Park, D-Albuquerque, said the city of Rio Rancho is already taking property for economic development purposes. The bill would prevent the type of seizure the Supreme Court allowed in the Kelo vs. New London case, he said.

"Nobody wants their property taken for government purposes," he said.

"What's not acceptable is to take one person's private property and give it to another person ... The government has no role in that."

Rep. Donald Tripp, R-Socorro, said he, too, supports the bill.

"For those of us who believe in private property rights, it's absolutely essential we send that message."

Rep. James Roger Madalena, D-Jemez Pueblo, sent a ripple of laughter through the gallery with his comments.

"Nobody wants government to take away private property," he said "Now we know how the Indian feels."

Though the bill had broad support in the House, two state agencies say it could serve to hinder economic development.

"The promotion of economic development, even if it means allowing public purpose to be advanced through transferring title of private property to another private entity ... is a long-standing though unused power of New Mexico municipalities," reads a concern listed by the Department of Finance and Administration. "While (eminent domain) may be a last resort, its presence enables marketplace-set levels of just compensation to rule, not exorbitant or unreasonable rates that can prevent community-desired development ... from occurring."

Also according to the DFA, the bill, along with others like it, is trying to fix a problem that doesn't exist in the state.

"Local governments usually bend over backwards to accommodate private property owners; for instance, Rio Rancho, when exercising its power on a 1000-acre parcel, only condemned raw land, and it gave vouchers to land owners to obtain lands plumbed with infrastructure in other parts of the city," according to the fiscal report attached to the bill.

The bill must still clear the Senate and be signed by Gov. Bill Richardson before becoming law.

Farmington Daily Times: www.daily-times.com

Official defends eminent domain: Centre Daily Times (Centre County PA), 2/13/06

By Mike Billips

[Georgia] Gov. Sonny Perdue tried to head off criticism last week that his proposal to rein in eminent domain powers might be too weak.

Perdue's bills would strip eminent domain power from development and housing authorities, but still would allow local elected governments to seize land from unwilling sellers in the name of cleaning up urban blight. Some lawmakers, however, say eminent domain power should only be used to acquire land needed for public uses, like roads and schools.

"There are those who would demagogue this issue," Perdue said. "But I think we have built a threshold that is a high one."

Perhaps too high, said the man responsible for rebuilding some of Macon's most rundown streets. Eminent domain is a useful tool in cleaning up abandoned and derelict properties, said John Hiscox, executive director of the Macon Housing Authority.

While Perdue's proposal wouldn't prevent future neighborhood rebuilding projects, Hiscox said, it would complicate them and slow the process. And tougher measures pushed by some legislators might make it much more difficult to replace crack houses and vacant lots with new homes, he said.

"The question is, are you going to give a single property owner veto power over the redevelopment of an entire neighborhood?" Hiscox said.

Perdue's bills would have little impact on Middle Georgia development bodies, said attorney Kevin Brown, who represents several Macon-area authorities.

"I don't know of any (development authorities) in Middle Georgia that have used eminent domain condemnation," Brown said.

Few housing authorities use the power, either, Hiscox said, but those in Macon and Athens have used it extensively.

In order to rebuild blighted neighborhoods, Hiscox said, the local housing authority decided about a dozen years ago that it needed to clean up all the properties in an area being rebuilt.

In some cases, property owners want a price for their property that is far above its appraised value, and the housing authority uses eminent domain to force a sale. But in many cases, it is very difficult to find or negotiate with the owners.

Ordinary code enforcement procedures are useless when the actual property owner lives out of state or is unidentified, Hiscox said.

"For one property, the last known owner lived in St. Louis, and refused to return phone calls or pay any attention to court summonses," he said. "In some cases, the person whose name is on the deed has been dead for years, and the real owner won't admit to it because they're worried about back taxes or city citations."

Often, eminent domain proceedings amount to "friendly condemnations," Hiscox said. The property owners benefit by getting a fair market price for property they couldn't otherwise sell for lack of a clear title.

Without exercising condemnation and forced purchase, all the city can do is demolish a derelict building and place a lien on the property, Hiscox said.

"At great cost, you've exchanged a derelict building for a vacant lot," he said. "Vacant lots blight neighborhoods, too."

The housing authority still would be able to do neighborhood redevelopment if the City Council had to authorize each condemnation with a vote, Hiscox said.

But eliminating blight cleanup as a purpose of eminent domain would have severe impact, he said.

"Any time you have a great burning issue, you're going to have to simplify it and have voters vote on it, and then live with it," he said. "We just need to be cautious about it."

Eminent domain is a hot topic at statehouses across the United States this year, because of a Supreme Court decision last June in a Connecticut case. A divided court said that the city of New London, Conn., could force people to sell their property in order to make way for new development, with the public purpose being the increased tax revenues the local government would bring in.

Similar "abuses" of eminent domain have occurred in the Southeast, including a case in Jacksonville, Fla., where a neighborhood was demolished after government condemnation, to make way for the "economic development" of a Super Wal-Mart.

In Stockbridge, just south of Atlanta, a florist is fighting city plans to demolish her store to make way for a new city hall and retail complex.

"The whole country is going through this tsunami of public opinion, because there have been abuses," Hiscox said. "Insensitive and stupid bureaucrats have abused their power."

Some eminent domain critics say that the traditional use of eminent domain, a forced purchase of land from a private owner for public purposes, has been stretched beyond recognition.

"Eminent domain was intended for government use," said Sen. Jeff Chapman, R-Brunswick. Chapman has authored several bills to limit eminent domain, and believes Perdue's proposed legislation doesn't go far enough.

House Bill 1313, introduced Thursday by the governor's floor leader, would still allow city and county governments to condemn property to eliminate "blighted" properties, such as those with large tax delinquencies or derelict buildings.

"I believe that will always be an unhealthy exercise," Chapman said.

A companion constitutional amendment, House Resolution 1306, would change the state Constitution to limit eminent domain power to elected governments, and require a vote for any condemnation.

Chapman is pushing his own bill, Senate Bill 86, which passed the Senate last year, as well as a four-month moratorium on eminent domain. Some merging of the measures might happen, said Speaker of the House Glenn Richardson.

Regardless, "we will pass legislation that will protect private property owners' rights," he said.

Centre Daily Times: www.centredaily.com

Restrictions on eminent domain draw criticism: St Louis (MO) Post-Dispatch, 2/12/06

By Jason Lee

A group of Frenchtown residents say a proposal to restrict the city's use of eminent domain would cripple their efforts to redevelop rundown areas of the historic neighborhood.

"This would be the end of a dream for a lot of people," Frenchtown resident Kim Vest told the St. Charles City Council Tuesday night.

Vest was one of several to criticize a bill that would limit the city's power to allow developers to seize property for economic development projects.

The group urged the council to delay action until they present a Frenchtown redevelopment plan Monday to city officials. They said eminent domain could be part of their proposal and shouldn't be restricted.

Later in the meeting, the council postponed the scheduled vote to allow further discussion. The bill was introduced in December.

Eminent domain has been a controversial issue since the U.S. Supreme Court's June 23 ruling that upheld the right of cities to seize homes and businesses to make way for private developments, if the private use is considered to be of public benefit. The decision was interpreted as meaning a developer building a strip mall would be providing as much public benefit as a government organization taking land to construct a new road.

Councilman John Gieseke of Ward 8 has proposed legislation to limit the city's ability to grant such power for projects meant to "increase tax revenue, tax base, employment, or general economic health," according to the bill.

Gieseke said he wants to ease residents and business owners' worries over property being seized for use by private developers. He said the option for developers to seek eminent domain power "takes creative deal-making out" of negotiations with landowners.

However, Maureen Bouxsein of the Frenchtown Neighborhood Association argued such limits could hinder economic revival in the area if condemnation is needed for a developer to acquire rundown property.

"We've been waiting for 30 years to have something positive done for Frenchtown," Bouxsein said.

Frenchtown resident Mark Richmond said he thought eminent domain should only be used as a "last resort," but added that limiting its use would be "irresponsible."

"I can't understand why we're going to throw one of our tools out of the toolbox," Richmond said.

Council President Rory Riddler, whose Ward 1 includes Frenchtown, said he opposes restricting eminent domain because "not all laws fit every case that comes up." Riddler added that eminent domain provides a tool for "private dollars" to help rejuvenate neglected areas of the city.

"If this passes, I'm afraid we won't have a level playing field to compete with other neighboring commercial areas," Riddler said.

Gieseke's proposal includes some exemptions for limiting eminent domain.

The legislation doesn't prohibit the city from approving the use of eminent domain for public uses, such as a road, hospital or military base. The proposal also wouldn't restrict the transfer of land for use by railroad or utility companies as well as to remove uninhabitable properties.

In addition, property that has been vacant or without a business license for at least six months as well as land "where the assessed valuation has decreased by fifty percent or more in a two-year period," would be exempt from the law.

Post-Dispatch: www.stltoday.com

Eminent domain bill seeks to protect private property: (Grand Rapids MN) Herald-Review, 2/10/06

By Bill Hanna

When lawmakers gather for a compacted legislative session on March 1, awaiting them will be a proposed eminent domain law for Minnesota that was triggered by a U.S. Supreme Court ruling last April.

The power of government to take private property has always been of concern in a country born out of revolution against England and its sovereign claim to all property in the colonies. But it became energized coffee shop/water cooler/bar talk anew when the nation’s high court broadened the government’s reach in Kelo v. New London (Conn.). The ruling held that the Constitution allows governments to take homes and businesses for potentially more profitable, higher-tax uses.

State Sen. Tom Bakk, DFL-Cook, sees the bill, co-authored in the House by Republican Rep. Jeff Johnson of Plymouth, as both addressing a real concern in the state and also serving as a pre-emptive strike against more aggressive government demands on private property for business development in the wake of Kelo v. New London.

“This will not block economic development. Nor does it infringe on needed public projects. But it will provide some protection for private property owners, individuals and small businesses, who should not be at the mercy of government power,” Bakk said.

The Bakk/Johnson bill represents a bipartisan coalition itself — the state senator from the traditional DFL bastion of northeastern Minnesota and the state representative a conservative Republican from a western Minneapolis suburb.

In addition, the group Minnesotans for Eminent Domain Reform shows an equally diverse mix of supporters, which include among others: The Hispanic and Hmong chambers of commerce, the NAACP, Minnesota Family Council, Minnesota Chamber of Commerce, Minnesota Auto Dealers Association, Outdoor Advertising Association of Minnesota, Minnesota Truckers Association, the Farmers Union and Farm Bureau and Hospitality Minnesota.

Bakk said opposition may come from the League of Minnesota Cities and other groups with concerns that the bill could block economic development projects for communities. A call to the League of Minnesota Cities for comment was not returned.

But Bakk said such fears are unfounded. He said the measure just calls for safeguards to protect homeowners and small businesses from feeling intimidated by governments that want new development no matter the personal loss.

“The power of using eminent domain remains. We’re just better defining the ‘public use’ part of it,” Bakk said.

And Lee McGrath, executive director of the Institute for Justice/Minnesota Chapter, said the bill is needed to level the playing field for individuals in eminent domain conflicts with government entities.

“Eminent domain should be the last resort, but too often it has been the first resort for governments. And that creates a lot of intimidation,” said McGrath, whose group defended Susette Kelo and other property owners in the New London Supreme Court ruling.

Bakk and McGrath said the bill’s most important element is clarity to “public use” in eminent domain proceedings. The bill states in part: ... The public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health, do not by themselves constitute a public use or public purpose.”

However, they said it’s also important that people know what the bill will not do, meaning it won’t block legitimate “public use” development.

“Public use means that land can be taken for parks and government buildings, utilities’ projects, to mitigate blight or to reduce abandoned property that is causing a public nuisance, such as an environmentally contaminated area,” Bakk said.
Regarding abandoned property and blighted areas, the bill has specific language. For abandoned property it states: "... property not occupied by a person with a legal or equitable right to occupy it and for which the condemning authority is unable to identify and contact the owner despite making reasonable efforts and that has
  1. windows or entrances boarded up or closed off,
  2. multiple window panes broken,
  3. broken or unhinged doors, or entrances that are continuously unlocked,
  4. gas, electric or water service terminated or
  5. rubbish, trash or debris accumulated."

For blighted areas it states:
  • Seventy percent of the area is occupied by buildings, streets, utilities, paved or gravel parking lots or other similar structures.
  • More than 50 percent of the buildings in the area are dilapidated. It then spells out what constitutes a dilapidated building.
    Regarding what is an environmentally contaminated area, the bill is also specific:
  • An area that contains, in more than 50 percent of its surface area, any substance or substances defined, regulated or listed as a hazardous substance, hazardous material, hazardous waste, toxic waste, pollutant, contaminant or identified as hazardous to human health or the environment under state or federal law or regulation.

Regarding just compensation for eminent domain acquisitions, the bill reads in part: "If the final judgment or award for damages, as determined at any level in the eminent domain process or by the parties themselves, is more than 20 percent greater than the last written offer of compensation made by the condemning authority prior to the filing of the petition or the amount deposited with the court, the court shall award the owner reasonable attorney fees, litigation expenses, appraisal fees, other experts fees and other related costs in addition to other compensation and fees already authorized."

McGrath said the eminent domain decision by Richfield, Minn., to get homes and several businesses to clear the way for Best Buy Co.’s international headquarters on Interstate 494 is the “poster child” for the issue in Minnesota.

“Two car dealers, 67 homes and several small businesses were taken by eminent domain. And in 2001, the Minnesota Supreme Court voted 3-3 to uphold a Court of Appeals ruling that it was for a public use,” he said.

McGrath also pointed out that even though only 15 of the 115 homeowners involved in Kelo v. New London officially balked at being bought out for a commercial development, eminent domain can be a tool of intimidation that affects others behind the scenes.

“And don’t the rights and wishes of the minority also deserve consideration?” he asked Bakk said the bill will have to clear several legislative committee hurdles in a short 2 1/2-month session. But he does believe it can be done and that there will be bipartisan support for it. He said the governor’s office has also indicated its support for an eminent domain bill in some form.

One lawmaker who has worked with Bakk on the bill said just what “form” it does take will be open to plenty of debate in the session, although she predicted it will pass.

“Oh it will pass in some way this session. But there are areas such as blight and compensation and other areas where some modifications are needed, especially regarding utilities. It’s a more complicated issue than it may seem on the surface. There are many underlying issues to also consider,” said Sen. Sheila Kiscaden, a former Independence Party lawmaker who on Jan. 9 switched to the DFL. She is also DFL gubernatorial candidate Kelly Doran’s lieutenant governor choice.

Herald-Review: www.grandrapids-mn.com

Host of bills seeks to curtail eminent domain: East Valley Tribune (Mesa AZ), 2/12/06

By Dennis Welch

Tempe businessman Del Sturman’s long and expensive fight against City Hall ended quietly last week when he gave them what they’d wanted for years — his property.

Since the beginning of this decade, the blue-collar machinist had fought to keep his land out of the hands of developers wanting to build a $200 million shopping center.

But finally, tapped out and burned out, Sturman said he could no longer continue and agreed on Wednesday to sell his land near Rio Salado Parkway and McClintock Drive.

While he can’t legally discuss the financial details, the deal makes him the last of a group of holdouts to sell their land, making way for the future Tempe Marketplace.

Unable to pay the continuing attorney’s fees as the city threatened to appeal the case up the judicial ladder, Sturman said he was left with no options.

“I have to get on with my life, now,” he said Friday afternoon. “I don’t like what happened, don’t like the outcome, but it’s time to move on.”

Ironically, as Sturman was reluctantly giving in, a host of eminent domain bills that could have helped him continue his legal challenge was working its way through the Arizona Legislature.

Specifically, one of the bills called for municipalities to pay all legal fees associated with eminent domain cases. Had that been the law of the land, Sturman said he would never have agreed to give up.

Cases such as Sturman’s as well as other high-profile eminent domain hearings over the past couple of years have helped fuel an increasing desire by state legislators to enact more laws regarding the issue.

So far in the 2006 session, lawmakers have filed nearly 20 bills either banning or adding further restrictions to eminent domain.

On Thursday alone, about a half-dozen of those bills were considered in the House and Senate, including one giving property owners the option of a jury trial before any government entity could seize their land.

In addition, a U.S. Supreme Court ruling last year expanding local government’s power to condemn private property has added to the Legislature’s sense of urgency.

That case thrust eminent domain into the national spotlight because the high court ruled in Kelo v. New London, Conn., that local governments can force property owners off their land for private economic development.

According to the court’s decision, property can be condemned strictly for economic benefits even if the proposed project’s success is not assured.

That strikes at the heart of Sturman’s case, as Tempe wanted to seize private property so a real estate developer could build a shopping center.

Now, property rights activists and owners say Arizona residents need more protection from municipal governments because that ruling greatly increased their power.

But others, including members of the powerful utility lobby, contend the state’s “kneejerk” reaction to the high court’s decision carries unintended consequences that could damage local communities.

Russell Smoldon, manager of government relations for Salt River Project [SRP], said the company opposes most of the legislation because it paints too broad of a stroke.

He said SRP only uses its power to condemn property to provide public benefits as allowed by the Arizona Constitution.

SRP officials fear that some of the proposed legislation would interfere with their efforts to install basic infrastructure that local communities need, such as power and sewer lines. That, Smoldon said, could have a damaging effect on local communities.

The main problem, Smoldon said, is that some municipalities have used their power to condemn for the purposes of private economic development and not public benefit.

Tim Keller, president of the Arizona Chapter of the Institute for Justice, agreed. He said towns and cities have a number of tools other than condemnation to use for economic redevelopment.

He has been pushing for legislation that would overhaul the state’s slum and blight definitions. He said cities have been exploiting that broad definition to justify seizing private property. Arizona has tough laws that restrict public takings to only projects that provide a public benefit — such as a road or a hospital.

But some legislative observers say lawmakers are worried that future rulings in state courts could weaken those laws and further embolden cities and towns.

Rep. Chuck Gray, R-Mesa, has sponsored several eminent domain bills being considered this year. Despite the state’s strict standards that limit its use, he said it’s prudent the Legislature add extra safeguards to protect property owners from future attempts to weaken the laws. As for Sturman, he said he has about 50 days to leave his property. But he said he’ll be cheering from the sidelines, hoping the state clamps down on the use of eminent domain. “I hope the Legislature passes these bills so that it could help out people like us in the future,” he said.

Senate bills:
SB1110: Stipulates that economic benefit alone is not a public use for which eminent domain can be used to seize property. Status: Adopted by the Senate and now moves to the House for approval.

SCR1002: A ballot measure that would give property owners the right to a jury trial before any governmental entity could condemn their land. Status: Adopted by the Senate and now moves to the House for approval.

House bills:
HB2062: Requires a written description of the proposed project, including all costs and all aspects of work to be performed, to be given to the property owner. Status: Preliminary approval given by the House. A final vote is scheduled this week.

HB2063: Prohibits public bodies from discussing eminent domain in closed-door sessions. Status: Preliminary approval given by the House. A final vote is scheduled this week.

East Valley Tribune: www.eastvalleytribune.com


Legislative Watch 2006 — Eminent Domain: KCRG-TV9 (Dubuque IA), 2/11/06

By Katie Wiedemann

If the government wants to buy your home or business to make way for construction, you'd better start packing. It's called eminent domain. But state lawmakers are now discussing a plan that would protect a person's property. A senate committee approved a bill that would make it illegal for the government to condemn private property for economic development projects.

For the past 60 years Art Frommelt has been watching birds and squirrels from his kitchen window. “I think I’m as close to heaven as I can get."

But these days instead of nature, Frommelt is watching his neighborhood disappear. The city of Dubuque is expanding a detention basin and it needs to tear down these homes to make way. The Frommelt home is next.

State law allows government to purchase private property even when the owner doesn't want to sell. Dubuque Chamber of Commerce President Steward Sandstrom says the law is a necessary evil that boosts economic growth. “It's not nice, we don't even want to do it but it's for the public good." Sandstrom points out if eminent domain laws were not in place, the America’s River Project would not have happened. “There were sizable pieces of property that we needed the eminent domain laws to compel property owners to be willing, not very willing but willing enough."

As for Frommelt, he says his home is his castle. And he just wishes he was still its king. “After all these years of paying taxes and taking care of everything, now they're pushing me out. so I don't have any rights."

The Dubuque chamber is urging its members to get involved by writing state legislators. The proposal that would protect a person's property is just out of committee.

It would still need support from the full house, senate and the governor.

KCRG-TV9: www.kcrg.com

Eminent domain bill sent to full House: (Hampton Roads VA) Virginian-Pilot, 2/11/06

By Harry Minium

This time, the hearing was a little longer and a bit more rowdy for a bill designed to counteract the U.S. Supreme Court ruling allowing governments to condemn properties for economic development projects.

But in the end, the result was the same.

HB94, sponsored by Del. Terrie L. Suit, R-Virginia Beach, advanced to the floor of the [Virginia] House on Friday after it cleared the Courts of Justice Committee 15-4.

It also advanced on a voice vote on Monday, but was brought back for further discussion after delegates complained to Suit that committee chairman David B. Albo, R-Fairfax County, pressured them not to debate or offer amendments.

Albo did much the same Friday when the discussion got intense. With two delegates offering amendments and asking questions, Albo said: “As soon as you make one amendment, the whole deal unravels and you don’t have an eminent domain bill for this year.”

Minutes later, the committee rejected attempts to amend the bill.

The bill is a reaction to the Supreme Court’s decision that government can force homeowners to sell for economic development if it is allowed under state law.

Virginia’s courts have ruled that’s not allowed in the commonwealth. Suit’s bill is designed to make sure that is reflected in the Virginia code.

Suit’s bill defines the public purposes for which land can be condemned. One of the most controversial parts of the bill states that eminent domain is not allowed “if the primary purpose is the enhancement of tax revenue.”

“I feel like this is a hole you could drive a truck through,” Del. Ben L. Cline, R-Amherst, told Suit. “It is very easy to say the primary purpose is one thing when it’s really another.

“The people in my district have told me that there should never be a seizure of private property for the enhancement of tax revenue.”

Suit noted that the wording for that part of the bill was suggested by Attorney General Bob McDonnell.

Del. Terry G. Kilgore, R-Scott County, who chaired a subcommittee that held a four-hour hearing on the bill, said it wasn’t perfect.

“It was basically decided this was the best wording we could use,” Kilgore said. “Any wording we use is going to have some litigation. This is the best way we felt we could get there.”

Cline voted for the bill, but Suit said she expects attempts to amend it on the floor .

“There are just a number of people out there who believe the power of eminent domain is something that should never be used,” she said.

Virginian-Pilot: http://home.hamptonroads.com

Lawmakers back measures to restrict use of eminent domain: KVOA-TV4 (Tucson AZ), 2/10/06

Arizona legislators are moving to bolster property owners' protections from forced sales to government through the power of eminent domain.

The Senate on Thursday voted 23-5 for a resolution (SCR1008) to ask voters to enact a law creating a new right to trial by jury on whether a condemnation by the state or a local government is for a public use and therefore allowed under state law.

The Senate also approved, 24-4, a bill (SB1110) to declare that a projected increase in tax revenue or other economic benefit doesn't qualify as a public use for which eminent domain can be used.

Meanwhile, the House has given preliminary approval to bills to require that public bodies disclose the scope and cost of projects involved with eminent domain (HB2062), consider eminent domain actions in public (HB2063) and reimburse private property owners for legal costs in some instances (HB2064).

Supporters contend the various pieces of legislation are needed to help property owners facing possible loss of their property, while representatives of local governments contend the measures are unnecessary and overreaching.

Introduction of the measures for this year's legislative session followed a U.S. Supreme Court ruling last year which allowed a Connecticut condemnation for economic development purposes to go forward.

The Arizona Constitution already contains protections for property owners that courts invoked in separate rulings that rejected proposed condemnations for high-profile redevelopment projects in Mesa and Tempe. In each case, a court ruled that the acquisition for private redevelopment didn't qualify as an allowed public use.

KVOA-TV4: http://kvoa.com