Bill limiting eminent domain use moves forward: Belleville (MO) News Democrat, 4/3/06

By Chris Blank, Associated Press

A [Missouri] House panel endorsed a scaled-back proposal [HB 1944] Monday intended to protect property owners faced with losing their land, homes or businesses through eminent domain.

Before approving the measure, the House Judiciary Committee first stripped out some of the provisions that had been included in the original bill to protect property owners.

Judiciary Committee Chairman Bryan Pratt said the panel faced a daunting challenge in balancing attempts to better protect property owners from abuses while ensuring it is still possible to redevelop urban areas.

Pratt, R-Blue Springs, said eminent domain should be limited to clear cases of public use, and the committee's changes would "go a long ways to stopping eminent domain abuse in Missouri."

Concerns about the taking of private property have grown nationwide after a U.S. Supreme Court ruling last summer upheld the right of local governments to condemn private property so it can be transferred to other private entities that could generate more taxes.

But Leslie Holloway, the Missouri Farm Bureau's director of government affairs, said the changes made for a weaker bill.

"This will cut back on eminent domain abuse in Missouri, but the original bill might be more effective," she said.

The bill's sponsor, Rep. Steve Hobbs, R-Mexico, adopted most of the recommendations made last December by a gubernatorial task force charged with studying eminent domain. He said his goal is to limit when property could be taken through eminent domain and make sure landowners who will lose their land understand their legal rights and are fairly compensated.

He said despite the changes he still supports the bill. But he would like to make it more difficult to take private property for economic development and ensure landowners are reimbursed for losing land they have owned for a long time.

The provisions in the new proposal that soften the initial legislation include:
  • The removal of a requirement that property taken through eminent domain either be declared "blighted" or be for public use.
  • Allowing all the property in an area slotted for redevelopment that is "predominantly blighted" to be taken - whether each individual property is actually blighted or not.
  • Backing up when landowners must be given written notice spelling out their rights from 30 days before actual negotiations begin to 30 days before formal proceedings are filed with a court seeking the property.
  • Requiring groups that seek private property to pay for an appraisal only if the land is worth more than $15,000.
  • Eliminating requirements that landowners be reimbursed for factors such as how long the property owner had owned the land and the expected future profits to be gleaned from transferring it to a new owner.

Rep. Michael Vogt, who was the lone member of the committee to vote against the proposal, said the city of St. Louis should be exempted from the bill because the restrictions go too far and would hamstring redevelopment efforts there.

Vogt, D-St. Louis, said he thinks the bill would work in rural and suburban areas but would do more harm than good to efforts to reclaim old neighborhoods.

"For the first time in a generation, the arrow is pointing up," he said. "Now, we've got the Farm Bureau trying to stop us from being able to keep our progress up. The city of St. Louis needs to have the tool of eminent domain."

The bill must next be approved by the House Rules Committee, which will either set a debate schedule for the bill or refer it back to the House Judiciary Committee for more changes.

Belleville News Democrat: http://www.belleville.com

Eminent domain bill raises concerns: Hutchinson (KS) News, 4/2/06

By John Green

City and highway officials worry that provisions in an eminent domain bill passed by the [Kansas] House last month, if it survives, will significantly drive up the cost of public improvement projects.

Highway advocates say it would likely kill a number of road projects and place an ever-greater burden on taxpayers for routine development.

The controversy stems from drastic revisions that change the eminent domain property appraisal process and inflate the compensation paid to owners of condemned property.

"Obviously it's an ill-advised amendment," said Sandy Jacquot, general counsel for the League of Kansas Municipalities. "It would make even public improvement projects cost prohibitive. You couldn't do it if you had to use eminent domain."

Hutchinson City Manager John Deardoff said he worries about what might come out of a legislative conference committee.

"I don't think it's going to be good for cities," Deardoff said. "Whether you believe its right or not, it's a tool that needs to be there and no one has shown me where municipalities in Kansas have abused it."

Why the change?
Local and state governments have traditionally used eminent domain to secure land for public projects like expanding roadways or putting in water lines. Some locales around the country have used it for economic development projects.

The U.S. Supreme Court ruled in a Connecticut case last year that municipal entities could use eminent domain to transfer property from one private owner to another to spur economic development.

In response to an effort to restrain use of the procedure for economic development in Kansas, a number of entities, from the Kansas Farm Bureau to the state chamber of commerce, wrangled for weeks over a compromise bill.

When a Senate version of that bill reached the House floor for debate March 23, however, lawmakers significantly altered it and then approved it 117-4.

Determining values
An amendment introduced by Rep. Arlen Siegfreid, R-Olathe, changed the valuation process.

In current law a judge appoints three "disinterested residents of the county," including two experienced in valuations, to examine the property and propose a fair market value, which the judge uses to determine compensation.

Under Siegfreid's amendment, each party - the landowner and the government entity - select its own appraiser to determine a value. The process then averages those two values.

"Our concern with that change is it sets up an adversarial system," said Sally Howard, chief counsel for the Kansas Department of Transportation. "We know there are appraisers who testify for landowners and some for condemning parties. They may see their role differently under this, as an advocate rather than a neutral party serving the court."

Then, under another provision of the Siegfreid amendment, the process multiplies that average value by 200 percent to determine compensation.

The bill no longer includes any definition of "fair market value" as determined by the court.

Inflated costs
Jacquot noted that, while either party can appeal the value, a judge or jury has nothing to use to evaluate the award.

"You're really not even starting at fair market, and then you multiply that by 200 percent," Howard said.

Jacquot cited a recent case in Johnson County to illustrate the potential impact. A city condemned land for a sewer project. One party appealed the award set by the appraisers. A jury ultimately awarded the landowner $10,900.

Yet the highest appraisal in the case came in at $480,000, Jacquot said. Using the jury award as the low, the two appraisals averaged out at $245,000.

"Times 200 percent, the award would have been $490,900, while in reality the award was $10,900," Jacquot said.

The determination of award would apply on all public improvement projects, Jacquot said, not just economic development projects originally targeted by the bill.

"I don't think the average citizen wants to see government have to pay a grossly inflated amount for a piece of property for a sewer line," Jacquot said.

The change will put pressure on tax rates or utility rates - or government will forego improvement projects and people will live with substandard streets or bridges.

Thinking of homeowners
Siegfreid explained that he simply wanted to give fairer compensation to landowners.

"Having a realtor background I'm very much aware when you first buy your home, at that point you have less equity and cash than ever when owning a property," Siegfreid said. "I don't think it's fair to take property when someone has owned it only a year or so and there's no requirement you pay more than 125 percent for it. You can't even find a new house and move for that, particularly in urban areas."

The Senate bill included graduated awards only for property taken for economic development projects - not public improvement. The House amendment changed it entirely.

As proposed, it required 125 percent of fair market value for a home owned less than five years, then increased 25 percent for every five years of ownership, up to 200 percent for a 15-year resident.

Siegfreid said he changed the process for determining value to involve professional appraisers. He doubted that a homeowner might hire an appraiser who would inflate the value.

"If they are unethical and intentionally inflate property, they can lose their license," he said.

Siegfreid also said government should not undercompensate property owners to reduce the cost of public roads.

"I'm not in stone on this, but I will resist going back to 125 percent very strongly," he said.

Sen. Terry Bruce, R-Hutchinson, sits on the conference committee that will attempt to work out a compromise bill, probably when lawmakers return for a wrap-up session April 26.

"It looks like there's going to be quite a bit more ironing out than intended," Bruce said, noting that the House version deviated pretty substantially from the Senate bill.

He said representatives worked through a Thursday night until 4 a.m. Friday, then returned to work later that morning and took up the eminent domain bill at the end of the day.

"I think some of the amendments by the House were done not knowing the full consequences," Bruce said.

He said the Senate wants government to retain eminent domain power for traditional uses - private carriers, public utilities, streets, bridges and roads.

"What we're really trying to limit is government taking from private individual and giving to another private individual," Bruce said. "We want it used strictly for government purposes."

Deep impact
Howard, at the transportation department, said the bill could have "a negative impact" on highway projects.

"We'd have fewer dollars to spend on construction, because we'd be spending more on land acquisition," she said. "We're trying desperately to stay ahead of development and do corridor management and this would just kill us."

Max Zimmerman, a longtime proponent for expanding U.S. 54/400 through Kansas, said he thinks the changes could make it impossible to build highways in the state.

"There's never been much trouble working through the courts to determine a value," Zimmerman said. "Appraisers normally take into consideration the value of the property, not as farmland particularly, but whatever value it would have with improvement. That 200 percent seems so arbitrary. It could kill a lot of deals."

For highway projects, Zimmerman said the current eminent domain process worked satisfactorily.

Hutchinson News: http://www.hutchnews.com

Strike balance with eminent domain laws: St Paul (MN) Pioneer Press, 4/2/06

By Edward Lotterman

The Minnesota Legislature, like those in many other states, wants to limit the power of local government to exercise eminent domain. This is good. Taking land from private citizens and transferring it to another private entity for "economic development" has become abusive. In curbing such abuse, however, we must not swing to the other extreme.

The U.S. Constitution recognizes societal benefits of giving government some power to take private property for public use. The Fifth Amendment requirement that no private property can be taken without "just compensation" acknowledges that legitimacy of the underlying power.

No one wants to remove the power of cities or counties to take land for roads, schools or parks. Many are outraged, however, by the growing practice of condemning useful homes or businesses so that land can be passed to some private developer.

In the controversial case in New London, Conn., the U.S. Supreme Court did not say such taking of property for "redevelopment" is good. The court merely said that state laws allowing it do not violate the U.S. Constitution, and states are free to pass laws to limit condemnation.

That is happening right now in the Minnesota Legislature and in several other states. On the whole, this is a good thing. Existing practices were unfair and economically inefficient.

At the same time, we need to recognize the implications of swinging to extreme limits on eminent domain powers of local government. Some want an absolute prohibition on taking any property for any use other than building public facilities.

At a gut level, this appeals to me personally. But we need to be clear-headed and think through the implications. Existing urban properties can become run-down. Time and the economy change. Businesses move away. Facilities become outdated.

In such a situation you might have nine property owners eager to sell to someone who wants to build a new facility. But if a 10th property owner is strategically located amid the rest and there is an absolute prohibition on exercising eminent domain, the sole holdout has enormous power.

If the holdout has an absolute right to keep the property, she is in a position not only to get top dollar for her own property but also to capture some of the potential value of the other sellers' properties.

One owner's tough bargaining can keep the nine others from making a desired and beneficial transaction.

Economics is about responding to incentives. In such holdout cases, the absolute ban on condemnation will reduce renewal and redevelopment in central cities and will increase development of lower-priced land on urban fringes. Neither is necessarily good for society.

The Legislature seems close to a reasonable balance between curbing existing abuses of eminent domain on the one hand and contributing to the stagnation of urban property on the other. If lawmakers carry this balance through to law, they should be applauded.

The Pioneer Press: http://www.twincities.com/mld/pioneerpress

Edward Lotterman is an economist based in St Paul: elotterman@pioneerpress.com

Eminent domain bills go to House: Charlotte (FL) Sun Herald, 4/2/06

By John Haughey

Three bills restricting government's eminent domain powers will be introduced onto the floor of the Florida House of Representatives this week.

All three diminish community redevelopment agencies' abilities to condemn private property for public uses.

And all three are opposed by local governments, including Charlotte County.

But Commissioner Matt DeBoer told fellow commissioners last week that continued opposition to the house bills "could undermine our credibility."

"Don't throw yourself under the bus," he warned. "It's just not worth fighting for."

DeBoer said the county would need all the credibility and political clout it can muster to derail a bill still being pondered by the Senate Judiciary Committee.

That bill — Senate Bill 2168 — not only limits CRA powers, but would be retroactive, meaning it could imperil the county's Murdock Village Redevelopment Project.

The county borrowed $82 million to buy nearly 3,000 lots it condemned within the 1,132-acre Murdock Village CRA.

Commissioners will award the contract to develop the 871-acre CRA redevelopment project on April 11.

However, there are 73 Murdock Village landowners who can still appeal the condemnation one more time before the 2nd District Court of Appeals, DeBoer said.

If SB 2168 is approved by the state Legislature, those Murdock Village landowners will have incentive to file their appeal and, perhaps, win, he said.

DeBoer has testified several times before the 15-member committee chaired by Rep. Marco Rubio, R-Coral Gables.

The committee has been meeting since September, following the U.S. Supreme Court's June ruling in Kelo vs. the city of New London.

That decision essentially upheld economic development as a public benefit that justifies government seizure of private property through condemnation procedures.

Previously, public benefit was restricted to acquisition of private property for community uses, such as schools and roads.

The ruling sparked a nationwide backlash. Florida is among 47 states pondering changes in eminent domain statutes.

DeBoer said his emphasis in testifying before Senate and House committees has been to discourage retroactive legislation.

"We have commitments from two senators (on the subcommittee) to hold us harmless," he said. "I think in that part of the legislation, we are in good shape."

The three house bills — HB 1567, HJR 1569, HJR 1571 — emerged from the House Select Committee on Private Property Rights last week without opposition.

The legislation would change the state's 1969 Community Redevelopment Act, redefining how property deemed "blighted" can be condemned through eminent domain.

A CRA could take private property only when necessary to eliminate a threat to public health or safety. Local government would have to prove that to a judge — property by property.

"You can't declare areas blighted anymore," DeBoer said. "Basically, what they are doing is they are making it so eminent domain must be applied property by property and putting a heavier burden of proof" on local governments.

Sun Herald: http://www.sun-herald.com


Eminent domain task force to issue report: Columbus (OH) ThisWeek, 3/30/06

By Michael J Maurer

A legislative task force on eminent domain held the first of an expected eight traveling public meetings Monday at Ashland University's Ashbrook Center for Public Affairs, where fans of "economic development" eminent domain were hard to find.

The philosophical imbalance was sufficiently pronounced that task force co-chair Sen. Tim Grendell, R-Chesterland, invited several speakers to come to Columbus to speak to the entire task force, instead of the small subset that attended Monday's session.

Grendell said he wanted task force members who advocated "collective good" eminent domain to hear the strong private property views of scholars at Ashbrook, Case Western Reserve University and the University of Chicago.

"The advocates for the 'collective good' (believe) in takings for the purpose of creating jobs," Grendell said to Ashbrook fellow Robert Alt. "How do you respond to that?"

Alt described property ownership as being among the most fundamental of rights, which could not be circumvented for such purposes.

"It's very rare that there is only one plot of land suitable for a particular usage," Alt said. "The state is simply choosing sides in the fight (between buyer and seller)."

Monday's meeting contrasted with several previous working meetings of the task force, which has met six times since Feb. 16. Many task force members have defended the right of local governments and the state to take land from private owners, so long as proper comprehensive planning has been done.

The task force was established last year shortly after a U.S. Supreme Court case known as "Kelo" that said local governments could, without violating the U.S. Constitution's protections of private property, force an involuntarily sale by private landowners to other private developers.

Proponents of broad takings powers have said the Kelo decision only affirmed decades-old precedents that allow cities to take large swaths of land to clear blight, while proponents of narrow takings powers said the decision marked new territory, allowing private developers to use local governments to their own advantage.

The task force has been charged with issuing two reports, including a preliminary report April 1 and a more detailed report Aug. 1 recommending specific changes to state law.

Despite the anti-Kelo tone of much of Monday's testimony in Ashland, much of the discussion during the task force's working meetings in Columbus has suggested that the general public does not understand the takings issue and that the press has misreported the controversy.

Kimberly Gibson, spokesperson for the Ohio First Suburbs Consortium and a Mid-Ohio Regional Planning Commission employee, has asked that the task force take no action in response to the Kelo decision, arguing that Kelo is perfectly consistent with sound public policy.

"There is sufficient constitutional authority justifying cities' use of the eminent domain power for promotion of economic development objectives and other public welfare or economic welfare purposes," Gibson said.

In central Ohio, Ohio First Suburbs members include Bexley, Grandview Heights, Upper Arlington and Worthington.

During a working meeting March 23, several task force members expressed fears that private citizens might put a referendum on the fall ballot. If that happened, they said, a constitutional amendment would probably pass overwhelmingly, depriving the General Assembly of an opportunity to put forth what task force co-chair Rep. Bill Seitz, R-Cincinnati, called a "less preposterous" alternative.

Task force member Gene Krebs, director of Greater Ohio, a land use policy organization that supports farmland preservation and economic development, said public support of restricting eminent domain powers is undeniable.

"Polling indicates that 90 percent of the electorate opposes eminent domain for economic development," Krebs said. "And that's without pushing. If you push, it goes to 98 percent."

Krebs said such limitations could be crippling to efforts to bring large employers to Ohio. He cited an example in Alabama where a similar restriction on eminent domain powers raised doubts about whether the state could condemn land for a railroad spur to an automobile manufacturing plant.

Rather than wait for the outcome of a court fight, the manufacturer simply went to Georgia, Krebs said.

"They said, 'I'm not going to wait. I've got money to lay down'," Krebs said.

ThisWeek: http://www.thisweeknews.com

Ruling postponed in eminent domain case: The Facts (Brazoria County TX), 3/30/06

Brazoria County Court-at-Law Judge Marc Holder delayed ruling on a summary judgment motion Tuesday in Western Shellfish Corp.’s bid to prevent Freeport Economic Development Corp. from taking a section of its property by eminent domain.

Lawyers from each side will submit further information from cases relevant to the issue before Holder issues his ruling.

A summary judgment would allow the court to decide the case without a full trial, said attorney Loren Smith, representing Freeport.

Attorney Margaret Pollard, representing Western Shellfish, requested the summary judgment, arguing the statute for eminent domain cannot be applied to cases that were on file at the time the law was passed. The Texas Legislature passed a revised eminent domain law last summer during the second special session.

The condemnation case involves whether the development agency can use eminent domain to acquire 100 feet of waterfront property owned by Western Shellfish. The city plans use the land, in conjunction with additional waterfront property held by Western Seafood, for construction of a marina.

The Facts: http://thefacts.com

Doyle signs eminent domain bill: (Duluth MN) News Tribune, 3/30/06

Associated Press

Wisconsin governments can't seize private property that isn't blighted and hand it over to companies for redevelopment under a bill [AB 657] Gov. Jim Doyle signed into law Thursday.

The Republican-authored measure comes in response to a U.S. Supreme Court decision last June that held eminent domain laws allow the federal government to seize property for economic development.

The court ruled that cities may raze people's homes to make way for shopping malls or other private development. The 5-4 decision gave local governments the power to seize private property in the name of increased tax revenue.

The Wisconsin bill prohibits governments - ranging from counties to state agencies to the University of Wisconsin System - from condemning property that isn't blighted if the governments plan to convey or lease the property to a private entity.

Property can't be considered blighted unless it has been abandoned or converted from a single dwelling into multiple units and the crime rate in or around the property is three times higher than in the rest of the city, according to the bill.

Before a government can seize blighted property, its officials must make written findings that include a legal description of the redevelopment, the reasons for condemnation and the reasons why the property is considered blighted.

"This bill is important to ensure that eminent domain laws are used the way they were intended," Doyle said in a statement.

News Tribune: http://www.duluthsuperior.com

Eminent domain bill faces Senate deadline: (Mobile AL) Press-register, 3/29/06

Property legislation may have to wait until 2007

By Bill Barrow

Any constitutional amendment changing Alabama's eminent domain law, which grants government entities the right to take private property for public benefit, likely must pass the state Senate today or wait until the 2007 legislative session.

Several senators predicted Tuesday that there is only slight hope of a deal on the complicated matter, which has been a subject of legislative maneuvering for weeks.

"The time is running short for that or any other bill," said Senate Rules Committee Chairman Jim Preuitt, D-Talladega, sponsor of one of several eminent domain proposals.

Under legislative rules, today is the last day of the maximum 30-day session that a bill may be sent from one chamber to the other without unanimous consent of the members. That allows just one lawmaker to keep a proposal from moving forward.

Preuitt has presided over several closed-door sessions with lobbyists and lawmakers in recent weeks attempting to hammer out a compromise version of the constitutional amendment. Any amendment would require three-fifths approval by each legislative chamber and then must be approved by a majority of voters in a statewide referendum.

The goal, Preuitt said, is to come up with a version that keeps government entities from using eminent domain to seize private property from one owner and transfer it to another, such as a private developer. The veteran lawmaker, whose committee sets the Senate agenda each day, also said he'll accept only a version that contains no loopholes allowing the government to abuse "blight" statutes in an effort to take property.

Preuitt and supporters of tighter restrictions cast their position as one of free-market property rights long enshrined in American history. Opponents, among them organizations representing municipal and county governments, say further limitations could hamper economic development. Mobile Mayor Sam Jones, the Mobile Chamber of Commerce and the Alabama State Port Authority are among those who oppose tighter restrictions.

The debate is the latest outgrowth of the U.S. Supreme Court's controversial 2005 decision in Kelo v. New London. In that case, 5-4 majority of justices declared it constitutionally permissible for a Connecticut town to seize private property for use by a private developer.

The court reasoned the increased tax revenues and overall economic growth met the intentions of "public use" spelled out in the eminent domain clause to the Fifth Amendment of the U.S. Constitution. But the court also stated explicitly that states are free to further restrict the practice.

Legislators last year made Alabama the first state to pass such restrictions, but property rights advocates, led by the Alabama Farmers Federation, have argued that the bill did not go far enough.

As an example, Preuitt cited Tuesday that it is still legal for a seizing entity to declare a broad area "blighted" and take even isolated, non-blighted parcels within that area. "We can't accept that," he said.

Senators adjourned early Tuesday evening, over Preuitt's objections, without taking up the issue. That could result in the death of several bills, said Preuitt, whose committee sets the upper chamber's agenda. He said he is not inclined to carry over his eminent domain proposal to get to other bills in the event of a protracted debate.

"If they are worried about their bills, they should have stayed and worked today," he said of his colleagues' adjournment vote.

Press-Register: http://www.al.com/news/mobileregister

Eminent domain bills all but dead in Annapolis: Maryland Business Gazette (Annapolis MD), 3/29/06

Proponents hold out hope that some bill will get through the legislature

By Douglas Tallman

Eminent domain reform, which had been a top priority for Republicans and at least two business groups, appears all but dead in the 2006 [Maryland] General Assembly session.

A Senate bill was pulled from voting Friday. Because of the Senate action, the House did the same thing with that chamber’s measure.

Sen. Robert J. Garagiola, who was ushering the bill through floor votes, refused Monday to admit defeat.

"The one way this could come out is if colleagues recognize we can make some possible progress with half a loaf as opposed to a full loaf,” said Garagiola (D-Dist. 15) of Germantown.

Although senators and delegates are far apart on some points of the bill, both would increase compensation for property taken by government agencies and offer greater protections to farmland.

"I really think the residents of Maryland have lost an opportunity to see their property protected,” said Sen. Allan H. Kittleman (R-Dist. 9) of West Friendship.

Kittleman had led an effort to institute a constitutional ban on using the government’s power of condemnation for economic development.

The effort, fueled by the Republican caucus, gained some converts among Democrats. Rather than face a vote on a constitutional amendment, which would need voter approval, the Senate Judicial Proceedings Committee pulled the measure for preliminary votes on the Senate floor.

The amendment would need only a simple majority to pass. But a constitutional ban would need a three-fifths majority, or 29 votes, to pass the Senate.

"I think if we could get the 24 votes to get it as a constitutional amendment, then I don’t think it would have been that hard to get the five more votes,” Kittleman said.

But Garagiola said senators would have to agree to put aside the push for a constitutional amendment for the committee to allow the floor votes to proceed.

Del. Maggie L. McIntosh, whose Environmental Matters Committee was handling eminent domain reform in the House, had been critical of several provisions of the Senate bill. But she said she favored some reform.

"I believe we need to update our compensation for businesses and homeowners,” said McIntosh (D-Dist. 43) of Baltimore. "It’s upsetting and sad we lost the compensation piece in this bill.”

The interest in eminent domain follows last summer’s ruling by the U.S. Supreme Court upholding the right of New London, Conn., to seize property for a hotel and luxury apartments.

The ruling did not affect Maryland law, but a number of lawmakers saw the decision as a reason to rein in the power of the state — and of the cities and counties — to condemn property.

The National Federation of Independent Business and the Maryland Retailers Association pushed for condemnation reform.

NFIB’s State Director Ellen Valentino refused to believe all legislative avenues were exhausted.

"I’ve been to many dead bill signings before. This is an important issue,” Valentino said. "There’s still time to push a proposal through that helps small-business owners and property owners.”

Maryland Business Gazette: http://www.gazette.net

N.J. to craft policy on eminent domain: Asbury Park (NJ) Press, 3/28/06

By Gregory J Volpe

Ronald K. Chen, the state's first public advocate in more than a decade, announced Monday that his first initiative will be reviewing the use of eminent domain for private development.

During a ceremonial swearing-in at Rutgers Law School, where he was associate dean for academic affairs, Chen said: "We're going to take a thoughtful process and garner all the facts. This is a complex issue. It's obviously one of the great concerns to the people of New Jersey. But they deserve a very thoughtful process. So I have reached no conclusions, no findings."

Chen said he will report to Gov. Corzine the fair and proper way for government to use eminent domain. He said he didn't have a timetable or protocol for his review yet.

During the campaign, Corzine pledged to protect residents by limiting the use of eminent domain to "rare and exceptional circumstance," with safeguards for homeowners.

The governor didn't call for a ban on government taking land for private development, then or during Monday's announcement.

"I think it is better that we do a thorough review," Corzine said. "It's better to have an overall policy than prejudice this process."

A group of beachfront homeowners in north Long Branch have gone to court to try to stop city officials from acquiring their homes through eminent domain as part of a massive redevelopment project. The homes would be replaced by multistory condominiums.

The Assembly Commerce and Economic Development Committee has begun hearings on whether eminent domain laws need to be changed. Chen said his office would work with lawmakers as they study the issue.

Besides eminent domain, Chen said he will focus on civil liberties, the elderly and ratepayers.

Chen said his office will join lawsuits in certain matters, but "we will not be in business of providing legal knee-jerk response to the headlines of the day. . . . Litigation will be a last resort."

Chen is the first public advocate since 1994, when lawmakers and then-Gov. Christie Whitman cut the department. It was re-established under a law enacted last July and officially opened the doors to its Trenton office Monday.

Colleagues at Rutgers Law School, where he worked for nearly 20 years after earning his law degree there in 1983, described Chen as intelligent, hard-working, effective, enjoyable and tenacious. He held positions with the United States Rowing Association and the American Civil Liberties Union. He has focused on constitutional law, including due process, eminent domain, right-to-know and religious freedom.

Asbury Park Press: www.app.com

Eminent domain reform morphs into broader battle: Sacramento (CA) Bee, 3/28/06

By Daniel Weintraub

It's beginning to look as if Californians will be asked to vote later this year to reform the laws of eminent domain - and do a lot more to protect private property rights.

Several separate ballot measure drives have begun, and sputtered, since a U.S. Supreme Court decision last year confirmed the power of government to force the sale of private property then transfer that property to another private owner for development.

But now a New York-based foundation has dropped $1.5 million into a campaign led by Americans for Limited Government, a national libertarian group, to qualify an eminent domain reform initiative in California. With that kind of money behind it, the measure is almost certain to qualify for the November ballot.

The far-reaching proposal, however, is also likely to shatter what had been a fragile but growing bipartisan consensus on the need for reform.

Known as the "Protect Our Homes" initiative, the measure would prohibit the government from using eminent domain to force the transfer of property from one private owner to another. Any property purchased by the government without the consent of the owner would have to remain in government hands or for a public use regulated by the government.

That's an idea that has won support from Republican state Sen. Tom McClintock of Thousand Oaks, a fierce advocate of private property rights, and the California Democratic Party, which was persuaded that eminent domain is often abused by local government to take the property of homeowners and small business owners, often minorities, and sell it to wealthy developers. Many inner-city Democrats, including Rep. Maxine Waters of Los Angeles, have joined a movement in Congress to limit eminent domain.

But the new proposal heading for the ballot here would also require the government to compensate property owners for what are known as "regulatory takings" - actions that reduce the value of property without forcing its sale, typically associated with regulations designed to protect the environment.

That idea is likely to be far more controversial, because it will be seen as a threat to California's existing environmental laws - even though the measure would apply only to takings that grew out of laws and regulations adopted after the initiative took effect.

McClintock has dropped his narrower proposal on eminent domain - he said he couldn't raise the money needed to qualify it for the ballot - and thrown his support behind the Protect Our Homes measure.

"I preferred a clean version that simply dealt with the issue of rich people taking poor people's property," McClintock told me. But he said he also believes that property owners should be compensated for regulatory takings, and he thinks the issue can win support in California, as it has in Oregon, another state with a strong environmental constituency.

"Most people instinctively realize that if a government agency by its own actions reduces the value of your property, that they ought to pay you for the damage they have done," McClintock said. "The cost should not be borne by the property owner."

But others in the movement to limit eminent domain are not as comfortable with the broader idea.

Loraine Wallace Rowe, a spokeswoman for the San Jose-based Coalition for Redevelopment Reform, said she is personally sympathetic to the idea of limiting regulatory takings, but she believes the issue would likely kill the concept of eminent domain reform in California. Wallace Rowe is leading an initiative drive for the California Eminent Domain Limitations Act.

"We had a lot of public meetings when we were drafting our initiative, and many people who came said they would do anything to stop eminent domain, but this is a whole different ballgame," she said. "They would say, 'I can't support this because of what would happen with respect to the Endangered Species Act, with respect to these environmental regulations."

Wallace Rowe said her group has been collecting signatures using an entirely volunteer, grass-roots effort. They have until April 30 to gather about 600,000 valid signatures for their measure.

"We're working really hard," she said. "We're really happy with the way it is moving."

In recent history, however, very few initiatives have qualified for the ballot in California without the help of professional petition circulators who are paid to gather signatures.

That means that, most likely, the Protect Our Homes measure will be the only eminent domain initiative on the ballot this fall.

And Californians who believe that it's wrong for the government to force you to sell your home or business so that someone else can develop the land will have to vote for the broader reform if they want any reform at all.

There is one other possibility. Eminent domain reform stalled in the Legislature last year when Democrats who were skeptical of the proposed changes blocked McClintock's bill and tried to push for a moratorium and a study of the issue.

Perhaps now, with the very real possibility of a much more far-reaching measure moving to the ballot, the Legislature will reconsider the narrower version so that voters have a true choice among policies rather than the all-or-nothing confrontation that seems to be heading our way.

Sacramento Bee: http://www.sacbee.com

Eminent domain legislation passed by Senate; blight amendment fails by one vote: ECM Publishers (Coon Rapids MN), 3/28/06

By T.W. Budig

The [Minnesota] Senate passed eminent domain legislation on Monday (March 27) and came within a vote of eliminating “blight” as an acceptable reason for the use of condemnation by government.

“One person’s blight is another person’s bliss,” said Sen. Warren Limmer, R-Maple Grove, who supported removing blight from the eminent domain lexicon.

As defined in the Senate bill, a blighted area is where 50 percent or more of the buildings are structurally substandard — the building is unsafe or to remedy its outstanding code violations would cost more than half the value of the building.

Sen. Julianne Ortman, R-Chanhassen, proposed an amendment that would have stricken blight from the Senate bill.

“I like the flavor of your amendment,” said Sen. Tom Bakk, DFL-Cook, Senate eminent domain bill author. But Bakk explained he could not support it. “This is an issue that breaks the deal,” said Bakk, referring to a loose agreement between government associations and eminent domain reform activists.

But Sen. Mike Jungbauer, R-East Bethel, supported the amendment. Jungbauer argued that many older homes are probably out of code — gist for eminent domain action.

Ortman’s amendment drew a tied vote; tied votes fail.

Four DFLers sided with Republicans on the amendment vote.

An attempt to increase the blight definition threshold from more than 50 percent to 75 percent also failed, though the vote was less close.

Eventually, the eminent domain bill passed the Senate with just two dissenting votes.

One of its provisions includes an entitlement for attorney’s fees when property owners can prove that eminent domain on their property is not for public use.

Another is that businesses may be compensated for the loss of their business beyond the loss of property when the business cannot be relocated.

Interest sparked by U.S. Supreme Court ruling
Interest in eminent domain reform was sparked by a recent U.S. Supreme Court ruling that upheld that private property can be taken for economic development through eminent domain and transferred to other private owners.

Current eminent domain legislation doesn’t entirely rule out such an scenario in Minnesota.

But Rep. Jeff Johnson, R-Plymouth, who is carrying eminent domain legislation in the House, explained that laws are being tightened. “New London can’t happen; but economic development still can,” said Johnson, referring to the U.S. Supreme Court case. “But you’ve got to show something is wrong with the property,” said Johnson.

“I do not think government should take someone’s property and transfer it to another for economic development when there’s nothing wrong with the property,” he said.

Johnson hopes his eminent domain bill will be on the House floor sometime next week.

He’s certain an eminent domain bill will pass the Legislature this session.

Johnson believes the House eminent domain legislation in several areas is stricter than the more “government friendly” Senate bill.

ECM Publishers: http://www.hometownsource.com

Highway claims famed Rock Shop by eminent domain: St Louis (MO) Post-Dispatch, 3/26/26

By Todd C. Frankel

Betty Sheffler stubbed out her cigarette in the turtle ashtray, shifted in her motorized scooter and, with a whiff of resignation, signed the papers.

She'd get her money in a week or so. For now, the 80-year-old woman lit into the young man from the Missouri Department of Transportation.

"It is a house of history. And it seems such a shame, such a pitiful shame for so much thought to be put into any place," Sheffler said, "and have it destroyed."

They were gathered inside Sheffler's horseshoe-shaped house in the state's northeast corner. The highway - the reason for this awkward meeting - runs close by on its way to the Iowa border. The home's exterior walls were covered with exotic, multihued rocks from all over the world. Inside there was even more rock - Mexican calcite, Brazilian quartz and thousands of Keokuk geodes, rocks unique to this region.

For years, hobbyists and tourists have stopped here, at Sheffler Rock Shop [in Alexandria MO], to buy, talk, or spend a few hours digging for their own rocks at Sheffler's geode mines.

Sheffler's place is considered a treasure for collectors, and an ever-more valuable one as the places open to rock hunters become increasingly hard to find, just like the rocks themselves. "They have quite a reputation all over the country," said Steve Weinberger of the American Federation of Mineralogical Societies.

But the rock shop and the house, and perhaps even the mines, will soon be gone. Sheffler has until May 1 to leave the land she's owned for nearly 60 years. The state needs it to expand Highway 61 to four lanes from two, part of the Avenue of the Saints running from St. Louis to St. Paul.

Sheffler fought the state. But the state pushed back with a court-ordered condemnation under eminent domain. Which is why the man from the highway department was visiting last week with the promise of compensation.

"I'd just as soon tear up the check and set fire to it and stay home," Sheffler said. "But it's not my home, now is it?"

The man from the highway department stood with his hands clasped in front of him. He said nothing. Off to the side sat an old cash register with a large sign reading, "All Sales Final."

Bit by "rock bug"
Sheffler grew up a few miles from Alexandria, in Keokuk, Iowa, just over the Des Moines River. That's where the "rock bug" bit early.

As a young girl, she hunted geodes - ordinary round rocks that belie their sparkling crystal interiors. They were easy to find back then. The Keokuk region has one the highest concentration of geodes in the nation. Most were deposited more than 300 million years ago when a shallow sea covered the land. Keokuk geodes are favored because of their colorful bursts of crystals - yellows, pinks, blacks and purples.

"The rough exterior is not very pretty," Sheffler said. "But you look inside and it is beautiful."

In 1947, she married and moved to the property she is now losing to the highway. She recalled how her late husband was astonished at the truckloads of rocks that came with his new bride. Twelve years later, she opened her rock shop. In 1960, she opened her first geode mine. And in 1971, she and her husband finished the horseshoe-shaped house with 60 tons of rocks laid in the walls.

The aboveground mine looks like an old excavating pit with walls of dirt-covered shale. That's where the geodes hide. Sheffler started out charging $2 per person to mine. She closed one mine and opened another. Last summer, the price was $15 per person for 50 pounds of rocks.

It is one thing to show a geode in a display case, Sheffler said. "It is another thing to let people go in and dig their own and get the thrill of it."

Steve Rudloff knows the thrill. A short time after the highway man left Sheffler's house, Rudloff arrived looking to dig. He'd driven the 160 miles from Jefferson City that morning.

"I thought I'd give it a shot before the highway comes through," said Rudloff, 57.

He was covered in orange mud. Rudloff wore an insulated jumpsuit and gloves to protect against the chill. Sitting on his knees, he swung a hammer against a chisel pointed into the shale. Tap, tap, tap. He moved the chisel a bit. Tap, tap. He tossed broken pieces of black rock over his shoulder. He set aside two small geodes.

He hit the chisel a few more times and stopped. He picked up a gray geode that had split open. He held it in the sun. The light caught a wealth of crystals colored gold and shaped like tiny squares.

Rudloff smiled.

"I've just never found one that nice before."

"It's a terrible thing"

The 526-mile Avenue of the Saints project is completed except for a 17-mile stretch around Sheffler's place. The narrow highway is considered treacherous. Trucks fly past with only a double yellow line in between. In 2000, this stretch emerged as a symbol of unsafe roads when a teenager, just weeks from her high school graduation, was killed in a head-on collision.

Sheffler has known for years that the state might take her land. Last August, the highway department went to court, invoking the government's right to take private property for certain purposes. In January, the state paid $632,868 to compensate Sheffler for the loss of 21 acres, according to state records. She will keep about 30 nearby acres.

Most of the land is empty. But the highway and a new interchange will run through her house and between the two geode mines, coming perilously close to them, if not closing them entirely.

"That's right where the interchange needs to be," explained Tom Batenhorst, a state highway project manager. "It's unfortunate."

Sheffler's son, Tim, manages the business for his mom. He wants to reopen the shop in a new location. He doesn't know what will happen to the mines. He expects the mines to be closed this year, and perhaps forever.

Keokuk, a town of 11,000 residents, had declared Sept. 20, 1997, "Betty Sheffler Day." There were T-shirts and speeches. Last year, the town hosted its first Rocktober Geode Fest. Sheffler's place was one of the main attractions. Most prime rock hunting spots are off-limits due to concerns about liability insurance and trespassing.

Rockhounds, with numbers estimated at more than 50,000 nationwide, say they don't know what they'll do without Sheffler's place. There are perhaps fewer than a dozen such geode mines in the country, and none as well-known.

"It's a terrible thing for all of us," said June Culp Zeitner, of Rapid City, S.D.

Zeitner, known as the "Queen of Mineralogy," has authored nine books on rocks. At age 90 and with the days of climbing rock piles behind her, Zeitner is working on a new book. This one is about geodes. She has visited Sheffler's mine many times.

"Every place we lose, we can't get back. It was the last place that I know of where we knew we could find something and it was legal," Zeitner said.

Back at her house, Sheffler recalled one of Zeitner's visits. She sat in her scooter in an area crammed with now-empty glass display cases.

"We sat here, right where you're standing and pulled out geodes. She loves dew-drop geodes. And the dew drop is so lovely," Sheffler said. "So lovely."

Sheffler recalled the crystal's appearance from memory. Her bright blue eyes see little these days. She can make out the shadows of a visitor standing in front of her, but not a geode's fine crystal fingers. The beauty of rocks she collected her entire life are beyond her now.

"I miss them. I really miss them," she said.

Soon, Sheffler will leave her house of rock.

Tim Sheffler secured two halves of a large geode with masking tape. His mother asked if it was one of her favorites. He asked her to describe it.

"Selenite from one side to the other, probably 20 some-odd sprigs of selenite," she said.

"It's the same one," he responded.

"The exterior felt different to me," she said.

Tim Sheffler finished wrapping the rock and packed it away for the move.

St Louis Post-Dispatch: www.stltoday.com

Industrial park plan a go despite domain law: (Evansville IN) Courier & Press, 3/27/06

By Byron Rohrig

A[n Indiana] state law restricting government acquisition of property by eminent domain will cost the city more to acquire land for the proposed Center City Industrial Park in Pigeon Township.

But Mayor Jonathan Weinzapfel says despite the "setback" represented by House Enrolled Act 1010, "I think we can move forward with the project." He added, nonetheless, the measure "severely limits the extent to which a city, county or other government entity can do to acquire property by eminent domain for economic development."

The bill narrows the circumstances in which government can classify land as blighted and thus eligible for eminent domain. It also requires public entities to pay more for the land taken "with the intent of ultimately transferring ownership or control to another private person."

In another development, Department of Metropolitan Development staffers discovered on Wednesday that the city received three additional responses to a request for qualifications from potential project developers. They were discovered when a staff member examined accumulated mail addressed to Director Gregg LaMar, who had been away for several days because of illness. He returned for most of the day on Thursday.

Before the discovery, Redevelopment Specialist Jane Reel lamented receipt of only one apparent response, from QEPI (Quality Environmental Professionals Inc.). Metropolitan Development will issue a request later for proposals on the project. The additional qualifications discovered Wednesday were from local concerns: Evan Beck of Woodward Development and Construction, Danetta Hiatt of FC Tucker Commercial Realty and Ken Newcomb Jr. from FC Tucker Commercial.

Center City, seen as a generator of jobs and increased assessed valuations in one of the city's most depressed areas, targets 50 to 60 acres deemed worthy of development in a total area of 140 acres. The area north of the Lloyd Expressway between Pigeon Creek and First Avenue is fed by a revamped Fulton Avenue and an industrial rail route.

All but certain to be signed into law by Gov. Mitch Daniels, the Indiana House measure would require a city or county to pay 150 percent of fair market value to the owner of an occupied residence and 125 percent for agricultural land. Weinzapfel noted the bill's effect is to force a government agency to look at individual parcels rather than an entire area when the goal for use of condemned land is economic development and increasing assessed valuation.

The government entity also would be responsible for relocation costs and some legal expenses. Weinzapfel said Evansville's project could fall under a provision of the new law inserted to accommodate a plan to redevelop a South Bend brownfield where Studebaker automobiles were manufactured. It allows a government entity to consider land of multiple parcels as a block when it comprises at least 10 acres and when the entity acquires clear title to 90 percent of the parcels.

But Weinzapfel said his administration is committed to negotiating with property owners, avoiding eminent domain except as a last resort. "We've used it only on utility projects in my 2½ years in office," he said. Public utilities are not subject to the new Indiana law. A nationwide state legislative movement on eminent domain this year was fueled by a 5-4 U.S. Supreme Court ruling in June in favor of New London, Conn., which seized some waterfront homes for an economic development project.

Courier & Press: http://www.courierpress.com


Fight the power of eminent domain: Orange County (CA) Register, 3/26/06


By Steven Greenhut

A little over nine months ago, people's eyes would glaze over in utter boredom when I would rant about one of my favorite topics: eminent-domain abuse. By the time I could define eminent domain - the power of the government to take property by force, upon compensation to the owner - and then describe how that ability is twisted by local governments to benefit developers rather than to build public works, well ... I typically lost my audience.

I couldn't even get to the part about how cities typically rip off the property owners in their payment of "just compensation," or how they avoid the "due process" requirement in the Constitution.

These days, people come up to me and rant about the topic - and not just policy wonks, but ordinary folks of various political perspectives. Friends from all over the country send me newspaper clips of eminent-domain abuses in their community, with yellow sticky notes bearing their outraged comments.

The sea change occurred June 23, 2005, when the U.S. Supreme Court ruled, 5-4, that cities should be granted the utmost latitude when they decide to condemn homes, businesses and whole neighborhoods and turn the properties over to big-box retailers, auto malls, condo developers or whatnot.

The lights went off. Most of the public understood what Justice Sandra Day O'Connor explained in her dissent: "Today nearly all real property is susceptible to condemnation on the Court's theory. In the prescient words of a dissenter from the infamous decision in Poletown, '[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner's, merchant's or manufacturer's property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a "higher" use.'"

It's been a different game since then. Redevelopment advocates are in a dither now that more than 40 state legislatures have proposed some limits on eminent domain for economic development. Local projects, such as the Yorba Linda Town Center, have been abandoned in the wake of fevered public opposition because of the likely abuse of eminent domain. The County Board of Supervisors has voted to place Measure A on the ballot in June, which would outlaw nonpublic uses of eminent domain by county government.

"This issue is the third rail right now," said one eminent-domain advocate in a Jan. 18 New York Times article. "You step on it, you die."

Unfortunately, Democrats in California's Legislature stopped meaningful reform, even though the state Democratic Party later approved a resolution condemning the use of eminent domain for economic development.

Although his tough eminent-domain reform proposal failed in the Legislature in 2005, state Sen. Tom McClintock had planned to introduce it as an initiative. The Howard Jarvis Taxpayers Association had also planned an initiative drive on its separate anti-eminent-domain measure, although it would have included limits on rent control. Neither one is moving forward, due to a lack of sufficient money to collect enough signatures for the November ballot.

But petition-gatherers are on the streets hawking the Protect Our Homes initiative, which already has $1.5 million in backing, from the New York-based group the Fund for Democracy. The honorary state chairwoman is Assemblywoman Mimi Walters, R-Laguna Niguel. Republicans who support property rights should jump on this campaign, but so should Democrats. As Justice O'Connor noted in her dissent in the so-called Kelo case: "[T]he government now has license to transfer property from those with fewer resources to those with more." Since when do Democrats believe in robbing the poor, minorities, the elderly and the working class to benefit developers and companies such as Wal-Mart?

The most significant provision in Protect Our Homes: "'Public use' shall have a distinct and more narrow meaning than the term 'public purpose'; its limiting effect prohibits takings expected to result in transfers to non-governmental owners on economic development or tax revenue enhancement grounds, or for any other actual uses that are not public in fact, even though these uses may serve otherwise legitimate public purposes."

That's significant, given that redevelopment officials and the courts have allowed the clear meaning of public use - i.e., a government-owned project such as a road or school - to morph into the amorphous "public purpose." City officials use fanciful arguments to explain why, say, a Costco is a public purpose because it brings in more tax revenue than the neighborhood that was there before it. With that simple twist of a phrase, essential constitutional property protections have been obliterated.

The other wonderful verbiage from the initiative: "If private property is taken for any proprietary governmental purpose, then the property shall be valued at the use to which the government intends to put the property, if such use results in a higher value for the land taken."

You might own a small warehouse, but a developer wants to build a new high rise on the site. The government will come in and offer you the value of the warehouse (and will usually lowball the price and often force you to go to court to get a higher price, where you will pay your own legal fees). Then the city turns the land over to a favored developer, who gains vast value in the changed use from warehouses to high rise.

The initiative would force the city to pay the warehouse owner based on the land's true worth as determined by the new use, not the old value. The current situation results in vast government-enforced wealth transfers from owners, who may have sat on a property for decades waiting for values to go up, to newcomer developers who cast their greedy eyes on other people's land.

City officials and developers have been trying to convince the public that none of these changes are necessary, that property rights are safe and sound in California. But that's a lie. Take a look at Long Beach, where the City Council voted 6-0 this month to take the Filipino Baptist Fellowship Church and give it to a condo developer. The church building is quite nice, by no means a blighted facility, but the property is in a prime location near downtown.

Such abuses will continue unabated until the state passes an initiative similar to the one being circulated. So, don't get angry and don't give yourself heartburn over the ongoing injustices. Get busy circulating petitions and getting voters out to the polls once Protect Our Homes qualifies for the ballot.

Let's give the redevelopment industry heartache for a change.

Orange County Register: http://www.ocregister.com

Steven Greenhut is author of Abuse Of Power: How The Government Misuses Eminent Domain (Seven Locks Press)

Eminent domain ruling may take 30 days: Asbury Park (NJ) Press, 03/25/06

Owners rally; lawyers argue plan to seize homes for condos

By Carol Gorga Williams and Karen Sudol

Owners of property in an oceanfront area of Long Branch will have to wait a little longer to learn if the city can take their homes for redevelopment after a Superior Court judge on Friday said he needed time to consider the arguments on both sides.

Superior Court Assignment Judge Lawrence M. Lawson told a packed courtroom that he would render his decision in the eminent domain case as quickly as possible but that it could take as long as 30 days. In the meantime, he intends today to visit the affected area … the Marine Terrace, Ocean Terrace, Seaview Avenue section … where many property owners are represented by the MTOTSA Alliance. The neighborhood is targeted for redevelopment as upscale condominiums under Beachfront North Phase II.

"Everybody is stone-faced," said Louis Anzalone, who with his wife, Lillian, owns 32 Ocean Terrace, one of the threatened homes, after more than two hours of legal arguments at the Monmouth Court Courthouse. "You can't tell."

MTOTSA homeowners have been fighting for years to save their homes, although City Attorney James G. Aaron said during the hearing they failed at least six times to raise objections in a timely fashion.

"What does all this mean legally?" Aaron asked rhetorically during the hearing. "Any challenge to the redevelopment plan is far too late, 10 years too late."

The city adopted its redevelopment plan in 1996 with what officials said was widespread support. At the time, the city was in a deep decline, its once-glorious past a distant memory with a devastating ocean pier fire in 1987 a final blow.

"This is a hot matter," Lawson said of the court case. "It is a very contentious matter. Someone is going to win. Someone is going to lose. That is the way it is going to be."

The city wants the judge to appoint three commissioners to establish values for the homes, maintaining the owners have failed to engage in good-faith negotiations. The home owners want the city's case dismissed.

Peter H. Wegener and William J. Ward, the lawyers for the property owners, also want Lawson to order a hearing on issues surrounding the redevelopment plan. Before the hearing, the lawyers want the right to conduct discovery and permission to depose the following witnesses: Aaron; Alan Davis, an attorney with the city's contract firm of Greenbaum, Rowe, Smith, Ravin & Davis; Gregory Russo of Applied Development; Roger Mumford of Matzel & Mumford, co-redeveloper of Beachfront North with Applied; city Business Administrator Howard Woolley Jr.; and City Council President Anthony Giordano III.

Like Aaron, Giordano has connections to Monmouth Community Bank, where Applied secured a line of credit, a possible conflict, according to Ward.

Ward also wants Aaron's firm's billing records with Long Branch from 1996 to the present and the Greenbaum's firm billing records with K. Hovnanian and Matzel & Mumford, which is a subsidiary of K. Hovnanian, from 1996 to the present.

Ward is seeking to prove a conflict of interest between Aaron's firm, Ansell Zaro Grimm & Aaron, which handled three legal cases involving K. Hovnanian between 2000 and 2002, and one involving Greenbaum's firm in which Greenbaum advised the city at the same time its senior partner, Arthur Greenbaum, also served on the board of directors of K. Hovnanian.

Aaron called it "a deep-sea fishing expedition" meant to delay the process.

City officials have said Greenbaum played no role in the selection of developers.

But both Wegener and Ward allege the city changed its redevelopment plan, which previously called for "infill" housing at the MTOTSA site to a planned development such as that favored by Beachfront North to maximize profits for Hovnanian-linked developers.

The city has denied such claims.

"This is a tragedy because people who want to keep their homes will lose their homes, because people who want to stay in their homes chose not to even explore" options such as the condo swap, said Aaron of the developer's offer for discounted condominiums in the development … an offer taken by two homeowners.

Ward called the offer a public relations move because many who live in that community already own their homes and could not afford the condos, without taking on new mortgages.

Wegener called the condo swap "nonsense," and said an offer of tax relief was "probably unconstitutional."

"This is a typical, normal neighborhood," Wegener said of MTOTSA. "It is not a rich neighborhood. It is not a blighted neighborhood." He said there was little public benefit for the community but there was a $120 million "windfall" for the developer, based on the value of condos in the first phase.

"That's just plain wrong," he said.

Lawyer Scott G. Bullock of the Institute for Justice, the Washington, D.C.-based group that focuses on individual and property rights, attended a pre-hearing rally outside the courthouse and said later his organization had helped prepare legal briefs for the case and would likely seek permission to join the property owners' legal team.

The rally drew some 50 to 60 people, many carrying signs, some reading: "Our homes today. Yours tomorrow," "Find your own land," and "Condos are not a public use."

Lori Ann Vendetti, a MTOTSA member with homes in Long Branch and Newark, described the neighborhood as a close-knit beachfront community.

"It's not going to end here. We're going to fight this forever," Vendetti said at the rally. "We're going to fight this injustice, and we're going to win."

Long Branch "is one of the most … if not the most … egregious examples of eminent domain abuse in this country," Bullock said after the hearing.

"Where can I go at 93 years of age?" asked Albert Viviano of 99 Marine Terrace at the rally. "Eminent domain can sweep the land right out from under you."

Asbury Park Press: www.app.com

Panel's draft wouldn't ban eminent domain in private use: Cincinnati (OH) Enquirer, 3/24/06

By Gregory Korte

A state task force on eminent domain is prepared to recommend only procedural and policy changes in state law - but not a wholesale ban on government takings for economic development.

A draft report circulated among members of the task force Thursday recommends a statewide definition of blight - setting clear standards for when cities can take property for urban renewal.

Those changes, if adopted by the Legislature, would level the playing field for property owners, but preserve the right of cities to take private property.

In doing so, the draft report attempts a balancing act between cities "struggling to make the transition from a manufacturing economy to the new economy" with the right of citizens to "acquire, preserve and pass on property in a way that they see fit."

The 24-member task force - with representation from developers, cities, judges, farmers, small business owners and other interest groups - is only advisory. State lawmakers established it last year as part of a year-long moratorium on government takings for economic development - a reaction to a U.S. Supreme Court decision in Kelo v. New London that ruled such actions constitutional.

The task force's preliminary report is due next week, after which it will have until August to make specific proposals on key issues:

Compensation: Some on the task force have floated changes that could increase the amount of money property owners receive. They now receive the fair market value as determined by a jury, but lawmakers could add relocation expenses, attorney's fees and punitive damages if the government's initial offer is deemed too low.

Procedures: Under current law, the burden of proof is on a property owner to show the government abused its authority in taking the property. The task force is debating changes that could put the burden on the government - and give property owners the ability to appeal a court decision on the issue even before a jury decides what the property is worth.

Blight: State law allows the government to take all properties in a redevelopment area if a majority of them are blighted. But there's no statewide standard of what constitutes blight, and some argue that one property owner shouldn't be penalized because his neighbor hasn't kept up his property.

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

High court blocks downtown eminent domain: Kansas City [MO] Business Journal, 3/24/06

By Jim Davis

The Supreme Court of Missouri has blocked a long-running downtown property-condemnation effort by the Tax Increment Financing Commission of Kansas City.

The court ruled Tuesday that the TIF Commission couldn't use eminent domain to force the owners of a surface parking lot next to Kansas City Southern's headquarters at 427 W. 12th St. to sell the property because its condemnation payment wasn't made within five years of the Kansas City Council's authorizing a redevelopment plan.

The ruling overturned a July decision by Circuit Court Judge Michael Manners in Independence. In October, a court-appointed panel set the parcel's value at $3.23 million.

The award was the second made for the property. In 2001, the TIF Commission sought to condemn the site for DST Realty Inc. to construct an office building. The project was to have been built on a speculative basis, without named tenants. DST Realty built Kansas City Southern's headquarters.

But the TIF Commission chose not to make the purchase because it said the initial appraisal of $4.08 million was too high.

The commission filed another condemnation petition on Sept. 13, 2004, five years and a day after the City Council's redevelopment plan ordinance took effect.

The supreme court ruled that the condemnation needed to be completed within five years of the ordinance's effective date.

Steven Mauer, a lawyer with Bryan Cave LLP who represents the TIF Commission, said an appeal is unlikely. Another alternative would be to ask the General Assembly to review the statute establishing the five-year limitation.

Mauer said the supreme court's logic could prove problematic.

"All other limitations say you have to commence action, not complete the litigation," he said. "This is the only limitation that says you have to get the lawsuit done."

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

Senate signs off on eminent domain reform: Atlanta [GA] Business Chronicle, 3/24/06

By Ryan Mahoney

The Georgia Senate on Friday gave its blessing to Gov. Sonny Perdue's broad-based eminent domain reform package.

Senators' 53-0 vote in favor of House Bill 1313 and 52-2 vote for House Resolution 1306 means the state is just a few steps away from adopting eminent domain laws touted by proponents as the most comprehensive in the nation.

Legislators began working in 2005 to eliminate government's power to take private property for economic development after the U.S. Supreme Court ruled in favor of the city of New London, Conn., in just such a case.

Among other changes, the legislation also would strictly define the conditions of blight and public use under which property may be taken; require those conditions be applied on a property-by-property basis, rather than across entire neighborhoods; and require elected city and county officials to sign off when housing and development authorities attempt to use the power.

By a narrow vote of 27-25, senators shot down an amendment by first-term state Sen. Jeff Chapman (R-Brunswick) that would have eliminated entirely government's ability to clear blighted property through eminent domain.

"I believe our Founding Fathers got it right the first time," Chapman said. "The power of eminent domain should be restricted to public use."

He drew fire from powerful Senate Rules Committee Chairman Don Balfour (R-Snellville), who sponsored the measures in the upper chamber and said they already are worded to prevent governments from arbitrarily declaring property blighted in order to take it.

"When the cities and counties complain this is too tight," Balfour said, "we've probably done the right thing."

The state House of Representatives, which on March 9 approved the package by a similarly large margin, can either accept the Senate's version or work with it on a compromise in a joint committee.

Assuming Perdue signs whatever they agree on, the final step would be a voter referendum in November to help strengthen the changes.

Atlanta Business Chronicle: http://atlanta.bizjournals.com

Lower Merion backs off use of eminent domain: Philadelphia (PA) Inquirer, 3/24/06

A resolution amending a controversial plan that had authorized the taking of 10 buildings in Ardmore's historic district by eminent domain was approved Wednesday night by the Lower Merion Board of Commissioners.

The measure, approved by a vote of 12-0, with two abstentions, said that the township shall not use eminent domain to acquire "any of the particular properties in the Ardmore Redevelopment Area solely for the purpose of private enterprise, development and gain."

Philadelphia Inquirer: www.philly.com

Escondido delays decision on sale of eminent-domain land: San Diego (CA) Union Tribune, 3/23/06

By Booyeon Lee

A[n Escondido] City Council decision to sell land, which it bought using the threat of eminent domain, to a developer for a profit has been continued to April 5.

The controversial decision, scheduled for yesterday's council meeting, was continued because Mayor Lori Holt Pfeiler was absent.

In 1995, the city forced the Redding family to sell the 10-acre parcel for $345,000 after initiating eminent-domain proceedings.

The city had planned to use the land for a water reclamation project, which never materialized. The land, just east of the city limits off Mary Lane, was never used. Now the city wants to sell the land to a developer for $775,000.

Three weeks ago, the Redding family said it wanted to buy it back. The city offered to sell it for $596,000. The family offered $358,502, which includes property taxes but no earnings by the city. In response, the city ended the negotiations.

This week, the Redding family increased its offer to $450,000, but it is unclear whether the council would consider the new offer.

John Heard, 76, a retired construction company owner who lives next to the parcel, told the council yesterday that its decision to sell the property to a developer has “outraged the public.”

“Give the property back to the owner with interest,” he said.

The council voted 3-1 to delay a decision because the mayor was not present. On Monday, Pfeiler had rushed to Reno, where her father had emergency double bypass surgery yesterday after he suffered a heart attack while on vacation. The surgery was successful, said Councilman Ed Gallo, who presided at yesterday's meeting.

San Diego Union Tribune: www.signonsandiego.com

Task force — changes likely needed to Ohio's eminent domain law: Ohio Farm Bureau Federation, 3/23/06

A task force is leaning toward recommending lawmakers make changes to [Ohio's] eminent domain law.

During a 2 1/2-hour long meeting today, task force members stated their position on three questions: should nothing be done to change Ohio's state eminent domain law, do procedural changes need to be made to state law and does Ohio need a constitutional amendment?

"I think doing nothing is not an option," said Sen. Tim Grendell, co-chair of the task force, at the end of the meeting, echoing the feelings of most of the committee.

The 25-member committee, which includes Larry Gearhardt, director of local affairs for Ohio Farm Bureau Federation, was created last year in wake of the U.S. Supreme Court's infamous "Kelo" decision. The high court ruled that a government could take private property to advance the economic development efforts of another private entity. The task force has until April 1 to recommend to legislators whether some type of change is needed to state law or the constitution. If the committee decides changes are necessary, it has until Aug. 1 to make specific recommendations.

On Farm Bureau's behalf, Gearhardt submitted a four-page proposal for revising Ohio's eminent domain law. Because eminent domain is an issue that touches every property owner, he said Ohio residents should be given a chance to voice their opinion by voting on a constitutional amendment that would limit the taking of property as in the Kelo case.

"Individuals need to have their private property rights protected from government," he said. "I think we owe it to the citizens of Ohio to let them weigh in on a constitutional amendment."

Task force members seemed to favor not recommending a constitutional amendment until Gene Krebs, state director of Greater Ohio, pointed out that other groups were poised to place a constitutional amendment on the ballot. He noted that a constitutional amendment crafted by the task force would probably be more fair and realistic than one written by a private group. If two eminent domain constitutional amendments were on the ballot, the one with the most votes would win.

"If we don't do (a constitutional amendment), the public will do it. We may get a worse alternative," Grendell said.

Rep. Bill Seitz, task force co-chair, said that if the constitution was not amended cities and villages would still have the power of home rule and could set their own eminent domain standards.

"They could say that in 1912 we gave you home rule and they will do whatever they want," he said.

Grendell, Seitz and other task force members said they were impressed with Farm Bureau's proposal. Some members who recommended little change to state law admitted that the taking of farmland needed to be more fully addressed.

"We need protection for citizens. I'm liking a lot of the proposals Farm Bureau is bringing forward," said Sen. Kimberly Zurz.

Some of Farm Bureau's suggestions for eminent domain law revisions include:
  • Never consider agricultural land enrolled in the CAUV real property tax program to be blighted.
  • Have landowner's fees and costs (including appraiser fees) paid if a jury awards more than a specified percentage of the last offer by the government agency. In addition to fair market value plus attorney fees, compensation should include damages to the residue of the property, complete relocation costs and lost business profits for businesses forced to relocate.
  • Define blight based on objective standards only; subjective standards such as "deteriorating" and "deteriorated" should be eliminated from the definition.
  • Require the government agency, not a private interest such as a developer, to pay for a blight study.
  • Prohibit a non-elected board from using eminent domain or require that a non-elected board have the appropriation approved by an elected body after a public hearing.
  • Require a de novo hearing to be completed through the appeal process before a compensation hearing starts.
  • Give landowners the opportunity to buy property back at the original purchase price if land was taken but not used for a project.
  • Reverse or change the burden of proof that is currently on the landowner to prove that the government is wrong.
  • Have an ombudsman for landowners to consult in eminent domain proceedings.

Ohio Farm Bureau Federation: http://www.ofbf.org

Yorba Linda rejects Town Center eminent domain: Orange County (CA) Register, 3/22/06

By Cindy Arora

The [Yorba Linda] City Council unanimously approved a resolution eliminating its power of eminent domain in the city’s Town Center area.

Council members, acting as the Redevelopment Agency on Tuesday, agreed not to use eminent domain for economic development, to generate tax revenue or to transfer private land to private developers.

Staff members were directed to return April 4 with a report on all the names and addresses that will be affected by the decision.

“I am supporting this primarily because we are in the process of assuring our community that this is important to us,” Councilman Ken Ryan said.

Some community members slammed the plan, saying the limits should extend citywide.

Yorba Linda Residents for Responsible Redevelopment has led opposition to the city’s plan for a high-density urban village in the Town Center that would have brought dozens of homes and shops. A petition drive forced council members to rescind new zoning rules for the area, and the group is championing a June 6 ballot measure that would give voters the final say over major projects.

City Attorney Sonia Carvalho answered concerns posed by residents, specifically why eminent domain could not be eliminated citywide.

Carvalho said the redevelopment agency, not the City Council, has had the power to use eminent domain in blighted areas. By adopting the resolution, the agency made it impossible to restore eminent domain authority in the Town Center unless it makes new blight findings. This is in line with Section 3399 of the state Health and Safety Code (California Redevelopment law.).

“By passing this resolution we cannot come back ever unless we find new blight. And the standard for that is very difficullt,” Carvalho said.

Orange County Register: http://www.ocregister.com


Newport Beach may restrict use of eminent domain: Orange County (CA) register, 3/22/06

Newly appointed City Council member today announces plans for a law barring the city from seizing private property for private development

By Jeff Overley

A newly appointed City Council member today announced plans for a law that would restrict the city’s use of eminent domain.

Keith D. Curry, who ascended to the council last month to fill a vacancy, said the proposed ordinance would bar Newport Beach from seizing private property for the purpose of allowing different private development.

Such actions were upheld as lawful last year in a much-publicized U.S. Supreme Court ruling that Curry said motivated his proposed ordinance.

Curry’s law would not restrict the use of eminent domain for public purposes, such as street widening, a step Newport has used in the past.

Newport has never pursued eminent domain for private benefit, Curry said. But the councilman added that the city’s upcoming takeover of redevelopment in East Santa Ana Heights and West Santa Ana Heights could lead down a path to eminent domain.

"We've never used eminent domain to take private property (for private benefit)," Curry said. "But I think it’s an opportunity for the City Council here to make clear that that’s not a practice we’ll engage in."

The proposed law will be taken up at the council’s Tuesday meeting.

Orange County Register: http://www.ocregister.com

House debates eminent domain proposal: Kansas City (KS) Star, 3/22/06

By Carl Manning, Associated Press

Kansans couldn't be forced to sell their property except for public use under a proposed constitutional amendment receiving first-round approval Wednesday in the House.

To clear the chamber, the measure needs a two-thirds majority, or 84 votes, on its final vote Thursday. If it passes the House and then the Senate, voters will decide in November whether to make it part of the Kansas Constitution.

"It has a chance of passing, but it's always hard to get a two-thirds vote," said House Speaker Doug Mays, R-Topeka.

Mays said the chamber Thursday will debate a Senate-passed bill covering the same topic. He said that proposal could have a better chance because it requires only 63 votes in the 125-member chamber and it already has cleared the Senate.

Supporters say making the proposal part of the state constitution would protect the new safeguards from court rulings and future legislative action.

"We've abused eminent domain. We've corrupted it for private use," said sponsoring Rep. Frank Miller, R-Independence. "It's a continuing decay of freedom in our country."

He said the right to own property is fundamental to a free society, and governments shouldn't be allowed to force someone to sell property so it can be turned over to someone else to make a bigger profit.

It's become a growing concern as urban areas encroach on rural sections, Miller said.

In June, the U.S. Supreme Court ruled local governments may seize people's homes and businesses against their will for private economic development. At issue was the scope of the Fifth Amendment to the U.S. Constitution, allowing governments to take private property through eminent domain if the land is for "public use."

The court gave local governments wide power to seize private property for conversion into projects such as shopping malls to generate tax revenue. But it also said states are within their rights to pass additional laws restricting condemnations, prompting the Kansas proposals.

At least 30 states have considered limiting the practice. New Hampshire lawmakers on Wednesday gave preliminary approval to a proposed constitutional amendment to limit government's ability to seize property.

In Kansas, the House proposal says no property can be taken through eminent domain for use by any private commercial enterprise, economic development or any private use unless the property owner is willing to sell.

The proposal also requires governments to pay 50 percent more than a property's appraised value in most forced sales. In cases where the taking was done to eliminate a public health or safety threat, a court would determine the amount paid.

When a government takes property, it must hold it for at least seven years before giving it to a third party. The proposal still allows property to be taken for public uses such as building highways and bridges, lakes and parks.

The Senate bill restricts state and local governments' power to force a sale so property can be turned over to another individual or company. State law says forced sales are presumed to promote "public use" of the property.

The bill allows six instances in which state governments can force a sale so property can be turned over to another individual or company, such as building roads, stringing utility lines or dealing with abandoned and uninhabitable property.

The Senate bill also requires the Legislature to approve each attempt to force a property sale for an economic development project.

The Institute for Justice, a Washington law firm that champions property rights, called Kansas "one of the worst abusers of eminent domain, especially in comparison to other states with similar population size."

  • Eminent domain amendment: HCR 5025
  • Eminent domain bill: Sub SB 323

Kansas City Star: http://www.kansascity.com

Senate passes eminent domain bill: Radio Iowa (Des Moines IA), 3/22/06

By O.Kay Henderson

A[n Iowa] Senate committee has passed a bill that still retains local governments' ability to seize land for economic development projects, but establishes new hurdles. The bipartisan compromise which cleared the Senate Judiciary Committee would force two-thirds of a city council, for example, to vote to condemn "blighted" land that is to be turned over to a private developer.

Senator, Keith Kreiman, a Democrat and is from Bloomfield, says it's in response to a U.S. Supreme Court ruling many interpret as giving cities broad authority to seize land and turn it over to private developers. Kreiman says the bill is tougher and more workable than the legislation that cleared the Iowa House.

Senator David Miller, a Republican from Fairfield, says lawmakers are acting because private property rights are just as important as the freedom of speech and freedom of religion. "We're going to look out for the little guy and try and protect the private property rights of individuals," Miller says. But Clinton city leaders are concerned that if the bill becomes law it would thwart the planned expansion of Clinton's Archer Daniels Midland plant onto adjacent property and endanger jobs.

Senator Roger Stewart, a Democrat from Preston, says just one-third of the land needed for the A-D-M expansion has been acquired, and the city might need to use its power to condemn property to obtain some of the remainder. "It's a great economic boon to Clinton to get this done," Stewart says. A-D-M plans to build a new plant that would make plastics out of corn.

It would be adjacent to A-D-M's wet corn mill plant in Clinton. Stewart says he and Clinton-area leaders are worried any changes in Iowa's condemnation procedures might delay the project. "Clinton was chosen over other sites in the country," Stewart says. "It's a good thing for the Clinton area."

Radio Iowa: http://www.radioiowa.com

Lawmakers mull limits of eminent domain: Broomfield (CO) Enterprise, 3/22/06

Officials say bill could be bad for Broomfield

By Amanda C. Sutterer

As proposed legislation to limit the power of eminent domain is being hashed out in the capitol, some critics argue the constraints will hurt more than help.

But proponents of the limitations contend it is a crucial step in protecting property rights.

On March 14, Rep. Al White (R-Winter Park) proposed a ballot issue that would limit municipalities from using eminent domain to seize property and transfer ownership to another party for economic development.

The eminent domain controversy ignited June 23, when the Supreme Court ruling in Kelo vs. New London, Conn., enabled the federal government, states and municipalities to use eminent domain as a right to condemn property and force its sale to benefit public use.

The ruling defined "public use" as anything that could benefit the community through economic development, allowing municipalities to condemn private property and turn it over to developers for that purpose.

But the proposed constitutional amendment could be a detriment to Broomfield residents, Assistant City and County Manager Tonya Haas said.

If the legislation passed as is, it would preclude Broomfield from condemning any property to provide for the economic well-being of the community, Haas said.

"A willing property seller couldn't realize tax benefits for selling under a threat of condemnation if the sale is for the economic benefit of a community," she said.

"The only condemnation for private use that would be allowed is that which is necessary to alleviate conditions that are injurious to the public health or safety."

Broomfield has never used the power of eminent domain to seize property, but has designated commercial areas as "blighted" to set up urban renewal areas, which are vital to Broomfield, Haas said.

"Broomfield has one of the best examples of a conservative use of urban renewal in the state," she said. "We used urban renewal to build the 96th Street interchange on U.S. 36, financing it with the tax increment from the Omni Interlocken hotel and golf course."

The mall alone brings $15 million every year to the state in sales tax revenues, and another $5 million to the school district in property tax revenue," she said, because the Omni Hotel and golf course and 96th Street Interchange is an urban renewal area.

"The TIF (tax increment financing) from the Omni and golf course paid for the interchange. Without the interchange, no mall, no Interlocken, etc. Interlocken was a large, unusable cul-de-sac before the 96th street interchange," she said.

Rep. Bill Berens (R-Broomfield) said without urban renewal designation, the city would have a different face today.

"It doesn't allow any city or county to take property for urban renewal projects," Berens said. "We didn't use eminent domain powers when I was on City Council or mayor, but if one business had decided not to move, the '50s Broomfield town center may still be there instead of Target," he said. "Al White's bill would take all eminent domain powers in regard to development, taking revitalization out of the mix. If this bill passes, the north side of 120th from Sheridan to Lowell might look that way forever."

But Dana Berliner, senior attorney for the Institute for Justice, sees the proposed constitutional amendment in a different light.

"The way that it works now is a city declares an area to be a 'redevelopment area' and can take the property within that area and do whatever with it," she said.

"That 'whatever' often includes transferring it to a private developer. If this passes, it would protect Colorado home and business owners from having their property taken for private commercial development because it doesn't allow the use of eminent domain for private parties," she said.

That could become problematic for Broomfield in the future, though the city doesn't now have any such situations, Haas said.

"If we have a private developer and everybody wants the project to go forward and one landowner won't sell, it means that one landowner could kill the whole deal," she said.

Broomfield business owners and residents also could lose out on possible tax breaks, Haas said, offering the Barbers as a hypothetical example.

The Barbers own Barber's Poultry Inc. and asked the City and County of Broomfield for at least $10 million to make way for a Wal-Mart.

The retail giant offered the family $7.6 million for their land on 120th Avenue east of Sheridan Boulevard.

"If the city paid money to the Barbers to help them relocate, they could take their time doing it — two and a half years — because they could say they were under the threat of eminent domain," Haas said. "The Barbers would receive a tax benefit from being under the potential of eminent domain, because it's in an urban renewal area, even though it's not in the cards. If this law goes through, if you can't acquire property for private use under eminent domain, they wouldn't get the tax benefit."

If White's bill passes by two-thirds of the House and the Senate, voters will have the opportunity to vote on the issue in the November election.

The bill was heard on second reading on Tuesday, but no date has been scheduled for a House or Senate vote.

Broomfield Enterprise: http://www.dailycamera.com