Bloomberg Says Power to Seize Private Land Is Vital to Cities: New York (NY) Times, 5/3/06

By Diane Cardwell

Wading into yet another contentious national debate, Mayor Michael R. Bloomberg came out vigorously yesterday in support of the government's right to seize property by eminent domain, and said Congressional attempts to limit those powers would have dire consequences for the nation's cities.

His remarks come in the wake of a 2005 Supreme Court decision establishing the right of localities to seize properties for economic development projects. That ruling set off a firestorm that has spread across the country and in New York, where the potential use of eminent domain has drawn opposition in such projects as the proposed Atlantic Yards complex in Brooklyn.

"You would never build any big thing any place in any big city in this country if you didn't have the power of eminent domain," Mr. Bloomberg said, speaking at a ground-breaking ceremony in Times Square, which was redeveloped in part through government condemnation of private property. "You wouldn't have a job, neither would anybody else standing here today. None of us would."

Of late, Mr. Bloomberg has ramped up efforts to influence a range of national policy issues including immigration and gun control. But on this issue he is taking a position that could be at odds with the feelings of New Yorkers wary of development or suspicious of government efforts to seize private property.

The mayor is most concerned that the pending legislation would cut off all federal economic development funds to state or local governments for up to two years if they use eminent domain in private development projects. Bloomberg administration officials warned that passage of the bill in Congress could, at a minimum, mean the loss of hundreds of millions of dollars and almost 100,000 jobs for the city.

"There are some in Albany and Washington," Mr. Bloomberg said, who do not "appreciate the crucial importance of eminent domain to our ability to shape our own future. They mistakenly equate it with an abuse of government power, and ignore the benefits that come to us all from responsible development of formerly blighted areas."

The bill, passed last year by the House of Representatives and now pending in the Senate, is one of many federal and state measures aimed at constraining the government's power to seize private property that have been proposed or adopted in the wake of the Supreme Court ruling.

Since the ruling, which upheld the authority of New London, Conn., to condemn homes to allow for private redevelopment, conservative and liberal members of Congress have joined together to fashion new federal limits on eminent domain seizures. At the same time, lawmakers in nearly every state have advanced bills and amendments, addressing an issue that is often emotionally fraught among their constituents.

"The vast, overwhelming majority of Americans are opposed to using eminent domain," said Dana Berliner, a senior lawyer at the Institute for Justice, a leading advocate for curtailing its use.

"There's still in the United States a very strong ethic that you work hard so that some day you or your children can own a home," she said, adding that using eminent domain for private development makes a mockery of those aspirations.

"The only people who are really supporting it are government, planners and the developers that take advantage of eminent domain," she said.

In New York, for example, the proposed use of eminent domain by the developer Forest City Ratner to bring a basketball arena and a swath of residential, office and commercial towers to the Atlantic Terminal area touched off fierce opposition, especially in surrounding neighborhoods.

The concept, though, proved unpopular elsewhere as well. A New York Times poll in April 2004 found that only 18 percent of city residents favored the construction of a new basketball arena in Brooklyn it if it required the demolition of homes and businesses. (Forest City Ratner is the development partner of The New York Times Company in building its new Midtown headquarters, a project that itself involved government condemnation of private property.)

To the Bloomberg administration, however, the wheels of economic development would grind to a halt without the use of eminent domain. Low-cost housing developments like the Nehemiah homes in East New York, Brooklyn, and Melrose Commons in the Bronx would not have been built and Times Square would remain "the poster child for a seedy, dangerous, unattractive, porno-laced place," Mr. Bloomberg said.

City officials also argue that New York State law protects property owners from abusive uses of eminent domain because it requires property to be designated as a blight before it can be seized for private development and because people have access to the courts. But many critics dismiss that argument.

"New York's blight designation is a joke," Ms. Berliner said. "You can call anything in the state blighted under New York's definition."

New York Times: http://www.nytimes.com

Columbia’s Domain: New York (NY) Sun, 5/3/06


While [New York] Mayor Bloomberg, speaking from Father Duffy Square, was offering another discourse on the importance of eminent domain as a tool in private development, a not so little eminent domain drama was unfolding uptown, where Columbia University is seeking to expand into West Harlem and is being resisted by a business owner, Nicholas Sprayregen.

He recently sent each of the university’s trustees another letter asking them to respect his property rights. The latest word was that the letters were received Monday, but as of yet there has been no response. If Mr. Sprayregen’s past experience is any guide — he’s been down this road three times already — the
silence will grow only more deafening. Columbia wants a site roughly between Broadway and 12th Avenue from 125th Street to 133rd Street, and it expresses willingness to seek the aid of the state.

Mr. Sprayregen fears that they will get it. Columbia has assembled deeds to about 70% of the properties in the proposed footprint for its new West Harlem campus, which it calls Manhattanville. Of the remaining 30% of the properties, Mr. Sprayregen owns the largest chunk of any private property owner. Most of it is devoted to his family’s self-storage business. Mr. Sprayregen professes no interest in selling out, hoping instead to pass the business on to his children. He worries that relocation is not a feasible option since the success of his self-storage operation depends on physical proximity to his customers. He worries about the impact of closing the business on those customers, not to mention his 25 to 30 employees and his commercial tenants, which include a supermarket and a hair salon.

The university makes some compelling arguments. Columbia is certainly an important institution for the city. It has been here since New York was a colony. Its proposed expansion at Manhattanville would, it says, bring thousands of jobs and millions of dollars to the city’s economy, while giving a new face to a neighborhood that hasn’t always been in the best shape. Administrators claim that assembling a contiguous campus is key to its educational mission by enabling better cooperation between scholars in different departments that might otherwise be scattered around the city.

Ordinarily, the market would sort all this out, but New York’s eminent domain laws make this a far from ordinary situation. Because the university reserves the right to ask the state to seize Mr.Sprayregen’s land in the name of “economic development,” the situation has become anything but a normal business negotiation. The deck is stacked in favor of Columbia getting all and Mr. Sprayregen getting scant compensation. Even if Columbia doesn’t need to get the state to invoke eminent domain in the end — and that process is invariably more expensive and time-consuming than a private purchase — the threat encourages landowners like Mr. Sprayregen to sell out sooner than they ordinarily would.

Not only is this bad for property owners, but it can be bad for the surrounding
communities. Such,at least,has been the observation of none other than a professor of clinical psychiatry and public health at Columbia,Mindy Fullilove. In a recent book, “Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It,” Dr. Fullilove describes her experiences touring cities that were transformed by urban renewal projects. When we spoke to her this week, she faulted Columbia for not understanding the damaging effects a project of this sort can have on the surrounding community. She suggests that Columbia has not been effective enough at communicating with the neighbors. With the possibility of eminent domain in the cards,we’d posit, it doesn’t need to.

As it stands, almost two years ago, the deputy general counsel of Columbia, Howard Jacobson, executed a letter with the Empire State Development Corporation in which the school and the ESDC agreed to consider condemning some of the properties on the site. The university now claims that it is not proceeding with efforts to get the state to invoke eminent domain, but even if it is not — Mr. Sprayregen points to the 2004 letter as evidence that it is — the school refuses to close the door on the possibility. No doubt all of this is being watched in Washington, where the Senate is in a knot over a bill that passed the House overwhelmingly and would put a stop to eminent domain abuse. This is a time for advocates of the use of eminent domain to use that power very gingerly.

New York Sun: http://www.nysun.com

Some Rockford IL cases involving eminent domain: Rockford (IL) Register Star, 4/20/06

A dispute over a 23-acre parcel for a second Hononegah High School in Rockton heads back to court April 27. The Hononegah School Board wants land near the intersection of McCurry and Willowbrook roads, but officials and owner Chris Hodges were unable to agree on a sale price.

Ed St. Germain of Machesney Park accepted $167,000 — the village even chipped in $2,300 for his moving expenses — in December 2005 for his mobile home and land along Illinois 173, which is in the middle of a retail boom.

The Winnebago Park District started eminent-domain proceedings to buy Roy Gayle Baseball Complex when the Texas-based funeral services company that owns the land wouldn’t budge on the asking price. After an initial court hearing in September 2005, Service Corporation International said Rockford Pony Baseball could continue to play ball for an indefinite period while negotiations for the land sale continue.

Rockford officials invoked eminent domain in 1999 to acquire Los Torres Market on South Main Street to develop a $7 million Gray’s Fine Foods supermarket. Owner Guadalupe Torres sold the property to the city for $224,000 in 2000; he died in 2003.

Rockford Register Star: http://www.rrstar.com

Eminent domain bill may be sidelined: Denver (CO) Post, 4/20/06

The sponsor of a proposed constitutional amendment is upset with changes made in the House

By Chris Frates

A proposed constitutional amendment to prevent governments from taking land for economic development purposes could be killed today unless major changes are made, the sponsor said Wednesday.

House lawmakers gave preliminary approval to House Concurrent Resolution 1001 on Wednesday, but they changed it so significantly that Republican Rep. Al White, the bill's sponsor, said the final product "is just abhorrent."

"It goes in the opposite direction of where I wanted to go," the Winter Park lawmaker said. "I don't have any faith that it will be amended in the Senate so I'm going to kill the bill."

But Democratic House Speaker Andrew Romanoff of Denver said he may delay a final vote on the bill to see if a consensus can be reached.

White said he would not allow the bill to pass the way it stands now.

If White kills his proposal, he said, he and other supporters would continue the effort to petition a less refined proposal onto the ballot this November.

HCR 1001 would have allowed governments to condemn a property in a blighted area if necessary to improve the area, even if the property itself is not blighted. It would have also allowed for consensual condemnation, White said.

But Democratic Rep. Paul Weissmann of Louisville won narrow approval for an amendment that made several major changes, including one that would allow governments to condemn whole swatches of property.

Weissmann said he was trying to reach a balance between private property and public use.

Meanwhile, a House committee unanimously passed a bill detailing the requirements a private toll road developer would have to meet before building a road.

"It's tough to balance this stuff, but I think this sets up a process that anyone affected by a toll road would have lots of opportunity to comment on it and affect the decisions," said Democratic Rep. Jack Pommer of Boulder, the bill's sponsor.

Denver Post: http://www.denverpost.com

Who's exempt from eminent domain? Free Market News Network, 4/20/06

Missouri legislators made an attempt to clarify state eminent domain policy last week; however, the debate quickly broke down into a debate over special situations for minority groups, according to the Kansas City Star.

Last year the U.S. Supreme Court ruled that state and local governments could use eminent domain to confiscate property for redevelopment. The decision has forced state and local lawmakers to create their own property rights laws. In Missouri, the eminent domain debate quickly spiraled out of control as lawmakers began to propose non-uniform exceptions to the state’s right to confiscate property.

First, the House unanimously approved legislation to exempt any house of worship from being subject to eminent domain, citing Constitutional protections of religion. After witnessing the success of that legislation, another bill was proposed to exempt gun retailers with the argument that the Second Amendment should protect them. Next, supporters of the health care industry and stem-cell research proposed that research facilities and hospitals should be exempt because they provide care for people with chronic diseases and save lives.

The debate continued for five hours before a joint bill to exempt both research facilities and gun retailers was voted down. The spiraling debate over private property is not unexpected. Legal historians point out that the right to private property is so fundamental to the rights defined in the Constitution, that when eminent domain is questioned all other rights are questioned as well.

Free Market News Network: http://www.freemarketnews.com

State Cracking Down On Eminent Domain: CBS-TV2 (Chicago IL), 4/19/06

[Illinois] lawmakers are moving forward with even stronger limitations on local governments' ability to take private property for economic development.

The House voted 85-to-six today for the measure brokered by lawmakers and municipal officials.

It's in response to a U.S. Supreme Court decision last year that expanded governments' eminent domain powers.

The newest version would make governments meet a stronger burden of proof for why private property should be taken.

In cases where that burden is met, the measure would give those private owners more money for giving up their property.

The measure now heads back to the Senate, which approved a different version last month.

But supporters of the House plan say it is more acceptable to municipal officials who feared the Senate version would hurt redevelopment of blighted areas.

CBS-TV2: http://cbs2chicago.com

Local Family Fights County to Protect Land from Eminent Domain: WVNS-TV59 (Ghent WV), 4/18/06

The Pocahontas County commission is threatening to take a family's land to build a sewer treatment facility

By Natalee Nabors

Pocahontas County faces a growing sewer problem.

"The stream is now being polluted by the several inadequate systems, including numerous packaging plants and the Snowshoe treatment plant in itself," said Joel Callison, president of the Pocahontas County Commission.

Now, the county is threatening to take land from private owners, the Sharp family, to build a sewer plant.

It's land the family has owned for more than 200 years, and it has a lot of history.

"The log cabin that Robert E. Lee visited during his first campaign as General through Pocahontas County sits on this land," said Tom Shipley.

Shipley is a member of the Sharp family and is leading the battle against the county commission in an effort to keep the family’s land.

They say most of the county's sewage problem can be traced to one source, the Snowshoe ski resort, and he says it’s only fair that Snowshoe bear the cost of fixing the problem.

"There is not much here, except Snowshoe, and that's why it's so odd that they would want to come 14 miles off the top of the mountain to come and put a sewer treatment plant on our farm," said Shipley.

And there are other concerns. Sinkholes throughout the property have some questioning whether the land is even safe enough to support a sewer treatment plant.

The family is also concerned about trout that breed in a nearby stream and how the odor from a nearby plant would effect their bed and breakfast business across the street.

"This burden should never be placed on a family," Shipley says.

There is some hope for the family. At Tuesday's county commission meeting, engineer George Phillip proposed a new plan.

It would use state property and would avoid the expense and headache of a legal battle.

"I proposed today to the county commission that we partner with WVU College of Engineering to build a timber frame bridge using grant money available, so this site can be used as an alternative to the Sharp Farm site," said Phillips.

The family hopes the county will go with Phillips' plan or come up with another that spares their land.

"We're not trying to stop economic development. We're not trying to stop Snowshoe. We can't understand why this is happening and it's not necessary," said Shipley.

WVNS-TV59: http://www.wvnstv.com

Legislature failed property owners on eminent domain: Decatur (AL) Daily, 4/19/06


Most voters wanted two things from legislators when they went to Montgomery in the winter to begin a new session.

Voters didn't want additional taxes, and they wanted tighter control over government and private parties' ability to condemn their land.

Legislators, in an election year, were not about to raise taxes, and managed to give some people a brief reprieve from sales taxes on the first weekend in August when parents do heavy back-to-school buying.

But they couldn't overcome the pressure from city and county government lobbyists and developers who see new restrictions on use of eminent domain as an impediment to progress.

Legislators had lame excuses for the proposed constitutional amendment not going on the July ballot for voters to approve. One reason, they said, was that the House-Senate compromise came so late on the last night that not enough House members remained in the chamber to pass the bill.

Another reason, they said, was that the proposal would have been on the July 18 primary election runoff ballot when fewer people tend to vote.

Obviously, not enough House members cared about the bill passing for them to stick around for the vote. So, take that you property owners who vote!

One sure way to spice up the run-off election would have been to have the proposed amendment on the ballot.

The U.S. Supreme Court ruling in a Connecticut case that allowed private developers to seize waterfront land for redevelopment frightened property owners everywhere. After the court's decision last year, the Legislature rushed through a bill that gives more protection but it leaves many property owners feeling vulnerable.

Decatur Daily: http://www.decaturdaily.com

Idaho Group Urges Support for Measure Blocking Eminent Domain Seizures: Agape Press (Tupelo MS), 4/19/06

By Allie Martin

A Christian values and religious freedom advocacy group is urging pastors, their congregants, and others in Idaho to support a petition drive to protect churches and church members' private property from eminent domain abuses.

Last year, the U.S. Supreme Court ruled in the case of Kelo v. City of New London, Connecticut, et al. that the Constitution of the United States does not prevent government officials from condemning churches and private homes under eminent domain and seizing the property for commercial development projects.

However, individual states can pass laws prohibiting abuses of "eminent domain" and of the government's condemnation powers. The Kelo decision has prompted citizen activists in a number of U.S. states to push for such protections and to urge their lawmakers to move on enacting the necessary legislation.

Pastor Bryan Fischer is executive director of the Idaho Values Alliance. He says a petition drive has been initiated in an effort to put on the November ballot a proposed state law that would protect individuals and churches from entities seeking to exploit eminent domain to take their property. The proposal would prohibit local governments from condemning churches, homes, or businesses for private development projects.

"Any church in America can be vulnerable to eminent domain abuse," Fischer observes. "In fact," he notes, "the more attractive the location of a church is, the more vulnerable it is to abuse because greedy local governments can look at the best locations as prime spots for commercial development."

The Idaho Values Alliance spokesman believes the Kelo decision placed the free-speech rights of religious individuals and institutions at stake. "The motivation seems to be clear," he notes. "Churches generate no property tax revenue for local governments, and businesses do; so it's made churches especially vulnerable to eminent domain abuse."

Organizers must gather 70,000 signatures by April 30. Fischer is mobilizing an army of volunteers to gather the needed signatures by the deadline in order to get the proposed law on Idaho's November ballot.

Agape Press: http://headlines.agapepress.org


City of Bedford Seeks to Exercise Eminent Domain Powers: Lynchburg (VA) News and Advance, 4/17/06

By Janet Nguyen

The city of Bedford [VA] has asked Bedford County Circuit Court to use eminent domain to acquire about 44 acres of land that has been polluted by the city’s old, leaking landfill.

The property belongs to Mike Schrock of 1477 Draper Road. He filed a $2.5 million lawsuit against the city in Bedford County Circuit Court in February.

Schrock’s lawsuit states that the city’s operation of the now-closed landfill has caused “harmful and toxic chemicals, hazardous substances and pollutants from and in the landfill … to negatively impact the air, the groundwater, and the surface water on, within, and under the Schrock Farm.”

The city believes it could better clean up groundwater contamination if it owned the property. The old landfill opened in the 1960s and closed in 1994.

The city has attempted to acquire the tract of land for several years, but Schrock has said it was not feasible to sell just a portion of his land. Instead, he offered to sell his entire 92-acre farm, but was unsatisfied with the $300,000 the city had offered.

“I did not feel that was a reasonable or realistic offer,” said Schrock Monday.

Instead, he agreed to allow the city to test the groundwater on his property as long as it shared the results with him.

Schrock said in July that the city had offered him $132,000 for the 44-acre tract.

“Our offer is fair based on the value of the property and the actions approved by DEQ (the Department of Environmental Quality) to address any alleged impact on Schrock’s property,” said John W. Daniel II of Troutman Sanders, which represents Bedford City, in a news release.

Former city manager Craig Meadows said in July that the city and county had discussed using eminent domain if Schrock refused to sell.

Under eminent domain, the government can seize private property for a public use.

“We prefer to reach a settlement with Mr. Schrock,” said Daniel in the press release.

“They can attempt it, but I don’t know how they can legally prevail in the courts,” said Schrock.

According to the release, Schrock has refused to respond to the city’s offer and has refused to make a counter offer.

“That is a totally untrue statement. I have made them several counter proposals and they know exactly what those counter proposals are. They chose not to accept them,” said Schrock on Monday.

“They’re trying to get the property because they don’t want to pay for it, so they’re using eminent domain as a backdoor approach,” said Schrock.

“We have tried to resolve this matter without delay and in an amicable way,” said Daniel.

“The city has a responsibility to the taxpayers to insist on a reasonable solution to this issue that is fair to the citizens.”

In March 2004, the city announced that six homes along Bell Town Road had wells contaminated by leakage from the landfill.

The contamination triggered the city to construct a waterline that would supply city water to the six homes. As part of the city’s corrective action plan, the waterline was completed in December.

News and Advance: http://www.newsadvance.com

Improving Tennessee's Eminent Domain Laws: The (Chattanooga TN) Chattanoogan, 4/17/06


By Susan Lynn

This Session the Tennessee General Assembly is at work trying to guarantee and reassure the citizens of their private property rights where eminent domain is concerned. More than 60 bills seeking to protect the public were filed in February. Some of the ideas attempt to change the process; some attempt to amend definitions. Very quickly, one bill known as the Farm Bureau bill, rose to the top and passage seems imminent. Like all of us, farmers want protection from seizure of their private property for private economic development.

While my respect for the Farm Bureau is very great, after being worked through committee, this bill essentially guarantees very little protection for Tennesseans when it comes to eminent domain. To quote Sandra Day O'Connor in her dissent of the Kelo decision, the "specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The bill states that 'public use' shall not include either private use or direct public benefits deriving from private economic development or private commercial enterprise, including the benefit of increased tax revenue and increased employment opportunities - except in the case where eminent domain is used for; roads, public utilities, private utilities, housing authorities, community development agencies for urban renewal or redevelopment plans; or for industrial parks. Looking at that list, I really can't think of any exception for private economic development by eminent domain that the bill leaves out.

The bill also sets up a mechanism for taking land for industrial development. One merely makes an offer that is declined and then heads to Nashville to the Department of Economic Development for a certificate of need. Tennesseans with family farms reading this article who hope to hand their land down to their offspring may wonder how well the Department of Economic Development will protect their property from a seizure for private industrial development. One may ask why the certificate shouldn't come from the Department of Agriculture.

The opening clause of the bill purports to quote Article 1, Section 21 of the Tennessee Constitution by stating there should be no use of eminent domain "unless the taking is for public use and accompanied by just compensation" but this restatement omits one other very important criterion "the consent of his representatives." You see the Tennessee Constitution includes an accountability clause. Elected representatives must guard their constituent's interests and protect their rights while at the same time balancing the "common good." Faced with such a decision, most representatives would very soberly consider the rights of their voter verses the benefit to the public from such a seizure and therefore vote accordingly.

Another aspect of the bill that remains suspect is a clause that allows for the disposal of previously seized property by resale to a private person or corporation. Certainly fairness would dictate that any land acquired by eminent domain that the government wishes to dispose of should be offered to the previous owner, if living, for the right of first refusal.

Several other areas of the bill cause me to pause and wonder just what this bill is trying to secure or protect for the public. The Kelo decision shocked many of us and shattered our traditional understanding of the government's eminent-domain powers and the rights of private property owners. Traditionally, public use includes a public highway, public school, or a military base. Public use has also included firms and government entities that offer government regulated services to the public and need property for right of way including water, railroads, and power generation.

The legislature must protect the citizens of Tennessee against the potential for abuse at the hands of our own government. Tennesseans should insist that the law require developers to purchase private property on the open market. The process this bill sets up actually increases the likelihood that an unethical state official could abuse eminent domain for personal gain or political favors. Please contact your state representatives and encourage them to pass an eminent domain bill that strengthens the hand of property owners.

The Chattanoogan: http://www.chattanoogan.com

Susan Lynn is a Tennessee State Representative

Proposed amendment tackles eminent domain: Contra Costa (CA) Times, 4/18/06

By Jordan Rau and Virginia Ellis

California law restricts the use of eminent domain to areas that the government has decreed are blighted.

A Democratic proposal pending in the California Legislature would tighten the rules of how property could be seized. But it does not go far enough for Republicans, whose stricter measures have been rebuffed in the Democratic-led body, and they are trying to take the issue to the November elections.

Republican Sen. Tom McClintock has made the subject a central part of his campaign for lieutenant governor. In addition, property rights backers have submitted a number of proposed initiatives. The one considered to have the best chance of making it on the November ballot is a constitutional amendment called the "Protect Our Homes Act." The Fund for Democracy, a New York-based property rights group whose leaders include libertarian developer and term limits advocate Howie Rich, last month contributed $1.5 million for signature collection.

Dave Gilliard, a Republican consultant working on the effort, said the campaign has collected nearly half a million of the 598,105 signatures necessary to place it on the ballot, and expects to file the petitions for verification with elections officials next month.

Like some of the other ballot proposals, the Protect Our Homes Act would amend the Constitution to ban the seizure of property for private uses. But it would also expand the definition of who is affected by government takings in ways that would allow neighboring property owners to receive compensation if their assets become devalued as a result — a potentially costly change for governments.

Contra Costa Times: http://www.contracostatimes.com

Eminent domain foes’ scare ad ignores steps courts have taken: East Valley (Mesa AZ) Tribune, 4/17/06


An inflammatory radio ad was broadcast across the state [of Arizona] last week, in an effort to pressure the Legislature into rushing out a badly drafted state constitutional amendment related to private property rights.

We have explained previously our concerns with the amendment and its possible negative impact on proper zoning regulations. But we alarmed now that groups with noble intentions are using misleading information to pollute the debate on this critical topic.

The radio ad was created by Americans for Limited Government and Arizona HomeOwners Protection Effort to promote legislation that would add new restrictions on government use of eminent domain to seize property. The bill, and a companion initiative drive, are part of a nationwide response to last year’s unsettling decision by the U.S. Supreme Court that the federal Constitution doesn’t forbid government from taking a person’s home or business and giving it to a developer to generate more tax revenues.

The radio ad reflects generic, nationwide concerns about the issue instead of recognizing we have much stronger protections here in Arizona. It begins by describing how “grandma’s ho has been seized by the government . . . jus so they can build another strip mall.” The narrator then says the only way to preven this from happening again is for the Legislature to adopt SCR1019.

Lori Klein, a spokeswoman for Arizona HomeOwners Protection Effort, admitted proponents of SCR1019 want the Legislature to act because the initiative drive might not gather enough petitions to qualify for the November ballot. But Klein defended the ad’s approach by saying we can’t trust the courts.

“When you have laws that are open to interpretation, we need to have statutory rules that make it clear how to protect private property rights,” Klein said.

That might have been a valid concern years ago, when some cities were taking property for economic development and no one really challenged the condemnations as unconstitutional. But recent cases involving Bailey’s Brake Shop in Mesa, the Pillow family of Tempe and the Tempe Marketplace project have changed the situation dramatically. A series of court decisions has clearly established that our constitution bars the use of eminent domain to benefit another private party.

Unless judges start ignoring these landmark rulings, grandmas in Arizona never will have to worry about city hall taking their homes to build shopping malls.

We urge private property rights advocates to be more responsible with their efforts to encourage change. Otherwise they risk alienating potential allies who understand what Arizona law does, and does not, allow.

East Valley Tribune: http://www.eastvalleytribune.com

Eminent domain is dead! (Long live eminent domain!): The Boston (MA) Globe, 4/16/06


By David Barron

Last summer in Kelo v. City of New London, the Supreme Court upheld a redevelopment plan for New London, Conn., that involved seizing private homes to enable commercial development near a major pharmaceutical company. New London argued the plan would jump-start the stalled local economy, and the decision, a 5-to-4 vote, affirmed the government's power under the Consitution to use eminent domain to take private property for economic development as long as just compensation is paid.

No sooner had the court issued its decision than widespread opposition arose. Spurred by the warning in Justice Sandra Day O'Connor's dissent that the ruling threatened to trade in every Motel 6 for a Ritz, press accounts played up the likelihood that cities would soon seize middle-class homes and small businesses to enhance the local tax base. The result was a broad legislative backlash that has been portrayed as stunningly successful.

A recent front-page headline of The New York Times announced, ''States Curbing Right to Seize Private Homes." It joined other recent stories-including a similar piece on the front page of USA Today-that suggest the Supreme Court's decision will soon be a dead letter. ''It's open season on eminent domain," Larry Morandi of the National Conference of State Legislators told the Times. And that's more or less how the Times and others have played it.

But while virtually every state, including Massachusetts, is considering legislation to curb Kelo, a closer look at the legislative response reveals a different story. As moving as the plight of holdouts like the Connecticut resident who was the lead plaintiff in Kelo may be, Americans have long been of two minds when it comes to property rights. On the one hand, there is the old notion that ownership is inviolable, a home is a castle, and the government has no business messing with private property. On the other hand, there is the equally old notion that no one is an island and that the value in any individual's property is deeply interconnected with the health of the community as a whole. Eminent domain may be a power that people love to hate, but it's also one that communities that are serious about planning are rightly reluctant to restrict-and one that should not have to be used only in poor and minority neighborhoods, where residents usually have the least amount of political influence.

As a legal matter, the Constitution says the government can only take private property for a ''public use," but more than a century of precedent interprets that requirement to mean government may use eminent domain for a ''public purpose." Just as government took private property to promote private railroads and mills a century ago, it has done so in recent decades to promote commercial building to revitalize urban areas, from the Inner Harbor in Baltimore to Lincoln Center in New York City.

New London's effort to address its severe economic distress by using eminent domain for private waterfront development seemed well within bounds to the court's majority, even though it involved taking homes in good repair. Nevertheless, the decision came as a shock to many unfamiliar with constitutional case law, generating a groundswell of opposition spanning the usual left-right divide.

Anything opposed by both the conservative Institute for Justice and the liberal NAACP would not seem long for this world, the authority Kelo upheld has thus far survived largely unscathed. As many as 50 anti-Kelo bills are pending in some states, and, at last count, 14 states have enacted laws against it. But to this point, only one has a new law that actually limits eminent domain to government-owned development projects, such as roads, schools, and airports. And that state is South Dakota - which has a legislature that is not big on nuance lately, having just banned abortions in all cases except to save the life of the mother.

The other anti-Kelo state statutes all have more bark than bite-and, interestingly enough, tend to allow exemptions for eminent domain aimed at redevelopment in blighted areas. For example, Alabama's, the first to pass, provides that eminent domain can't be used for economic development except ''on a finding of blight in any area covered by any redevelopment plan or urban renewal plan." That means even a fine house in a ''bad" neighborhood may be taken as part of a broader redevelopment project.

Texas's law contains strong pro-property rights rhetoric before providing that taking private property and handing it to private developers is just fine so long as the private benefit results incidentally from community development or urban renewal efforts aimed at improving ''blighted areas." Another section permits eminent domain in connection with a pending stadium project for the Dallas Cowboys, while yet another allows it for constructing a museum.

Idaho, Kentucky, West Virginia, Utah, and Wisconsin have enacted similarly porous legislation. Indiana and Georgia arguably have somewhat stricter new laws, but they, too, exempt blighted properties, and Indiana's law expressly permits takings for technology parks. Laws passed by Colorado, Delaware, and Ohio are even less aggressive, and Michigan has simply kicked the issue to voters by calling for a constitutional referendum. Thus, the Institute for Justice, which once seemed poised to win a clean sweep, now merely touts the fact that many states have ''in some way" responded to Kelo.

Of course, it's only been one year. But the pending legislation is itself riddled with carve outs in which the very thing that supposedly must be stopped-using eminent domain to transfer property from one private person to another-is expressly permitted.

For its part, Congress has enacted one symbolic anti-Kelo bill, while another bill has passed the House that bans federal funds to states that do not bar the kind of takings Kelo permits. But the federal government is on the hook for lots of money to redevelop areas ravaged by Hurricane Katrina, and eminent domain involving transfers to private developers is likely to be a key feature. What's more, many real estate developers, known to make political contributions, strongly defend the decision. It's unlikely that federal legislation restricting eminent domain will go too far.

But it's more than the developer lobby that's slowing the backlash. Large numbers of communities in America are in need of revitalization while others are eager to maintain themselves as lively, attractive places. Eminent domain is one tool for improving the conditions of neighborhoods. One of our own area's most successful community development organizations, the Dudley Street Neighborhood Initiative, for example, lobbied to be given the power of eminent domain in the 1980s so it could revive a long-depressed neighborhood in Roxbury. By taking privately owned abandoned property, and developing housing in its place, the private community group was able to do just that.

But while the real story of the Kelo backlash should be welcome news for those concerned about the future of cities, the power it upholds can be abused. The potential for corruption is great, and, as Justice Clarence Thomas powerfully argued in his Kelo dissent, poor and minority communities may be hurt by redevelopment plans that claim to help them. The federally subsidized urban renewal programs of the 1950s cleared many close-knit neighborhoods in order to promote private development. The dubious results, combined with the massive displacement that resulted, led many to refer to urban renewal derisively as ''Negro removal."

The fact that many anti-Kelo bills restrict the use of eminent domain to blighted areas should therefore trouble even the decision's supporters. ''Blight" is often code for black and poor. One of Kelo's striking features was that it permitted a city to use eminent domain even without showing that the targeted neighborhood was blighted, so long as it implemented a real plan for redevelopment. In that way, the court indicated cities should not have to do redevelopment on the backs of poor and minority residents in order to comply with the Constitution. There's nothing to cheer in a legislative reaction that would now limit local governments to doing just that.

Rather than banning eminent domain for economic development, or restricting it to ''bad" neighborhoods, we should focus on reforms that would ensure the communities in which it is so often used have a say in the planning process. That means ensuring those who are least likely to have a voice in economic redevelopment get one.

Shifting decision-making power over eminent domain from unaccountable redevelopment authorities to local city councils is a start. So, too, is requiring community development corporations to be part of the planning process and to make that process meaningful. But prohibiting our cities and towns-and the poor and minority residents within them-from reaping the benefits of a powerful development tool that can attract new jobs and improve deteriorating conditions makes little sense.

Thankfully, the Supreme Court has enabled us to determine how useful a tool eminent domain can be. Equally important, the opposition Kelo stirred has not yet resulted in the overreaction that once seemed inevitable.

The Boston Globe: http://www.boston.com

David Barron is a professor at Harvard Law School

Lawmakers consider proposals to limit eminent domain and TIF: Kansas City (MO) Star, 4/12/06

By Kelly Wiese and Chris Blank, Associated Press

Legislators in the [Missouri] House and Senate took initials steps Wednesday toward limiting the use of eminent domain and tax breaks in certain redevelopment projects.

The Senate gave first-round approval to legislation [SB832] that tweaks how tax breaks for redevelopment projects can be used. The House later voted 150-7 to give initial approval to a bill [HB1944] designed to limit the use of eminent domain.

The general issue of how the government intercedes on behalf of developers gained attention nationally after a U.S. Supreme Court decision last summer allowing the use of eminent domain to transfer property from one private owner to another for economic development purposes.

Gov. Matt Blunt and legislative leaders made the enactment of new eminent domain restrictions a top priority for the 2006 legislative session. With that has come a re-examination of tax increment financing [TIF] districts, which often rely on the same "blighted" designations used in eminent domain to declare an area eligible for developer tax breaks.

TIF districts allow a portion of the future taxes generated by a development to pay for the project's costs instead of going to schools, cities and other government entities.

In the House, members overwhelmingly defeated an amendment that would have barred the use of eminent domain for projects "primarily" designed for economic development. Lawmakers instead opted for the lower standard of barring eminent domain for projects "solely" for economic development.

Rep. Mike Daus, D-St. Louis, said the lower standard welcomes the return of past abuses of eminent domain, because developers or their attorneys "will always be able to come up with an excuse" to justify how a project is not solely for economic development.

But others, Democrats and Republicans, said barring the use of eminent domain primarily for economic development purposes would stifle economic development and kill jobs.

"The reality is that in the real world it's simply an unworkable definition," said Rep. Bryan Pratt, R-Blue Springs.

The eminent domain bill, sponsored by Rep. Steve Hobbs, R-Mexico, would give a bonus to landowners whose property is taken - on top of any other compensation - based upon how long they owned their land. It also would require that property owners facing eminent domain proceedings be given written notice of their rights. But it would not require that property taken through eminent domain be for a public use or declared to be "blighted."

The House considered but rejected by a 134-21 vote a new definition for blight.

Even so, "the development community is going to have difficulties with this bill, because they will not willy nilly be able to secure some stretch of the definition of blight," said Rep. Tim Flook, R-Liberty.

Although lawmakers from both parties backed the bill, even some supporters said it didn't do enough. Rep. Rick Johnson, D-High Ridge, said "too often in recent years, eminent domain has been eminent demise for our families, homes and history and heritage."

Lobbyists for organizations on opposite sides of the debate - such as utilities and rural landowners - expressed disappointment with the bill, either for going too far or not far enough.

The Senate legislation generally requires approval by a special commission for TIF districts to proceed. If a local government wants to press on despite the commission's opposition, it would need a public vote or a two-thirds vote of the local government body.

The bill prohibits using tax increment financing on greenfields, or vacant areas outside city limits, in the St. Louis region. It also bars using it on vacant land for solely residential developments. It allows projects to have a residential component, but in those, two-thirds of the local government must sign off on the projects. Otherwise, the taxes generated from the residential piece of the project go to schools and other local entities as they normally would, rather than to a fund to pay off development costs.

That provision was a compromise worked out to appease rural interests. Previously under the bill, the prohibition referred to predominantly residential developments, and local school district interests on the special commission had to agree to the projects.

The bill by Sen. John Griesheimer, R-Washington, does not alter the definition of "blight," one of the criteria local governments use to seize property in redevelopment projects, because the senator said it was too controversial.

Some lawmakers wanted to scale blight back to what they said was its original intent, basically limiting its use to improving areas of urban decay.

Sen. Chuck Gross, R-St. Charles, proposed that to be found blighted, a property would need to be in an area of high unemployment and low income, compared to the surrounding area, and have a lower property value.

"If we want to take TIF back to what it was originally designed for, then we'd pass this in a heartbeat," Gross said.

Others, however, said Missouri can't be shortsighted in removing that option when it's competing with surrounding states for business.

"It's being driven by a competitive nature and it's a national problem," said Sen. Matt Bartle, R-Lee's Summit. "If we take a unilateral step back I fear that we've closed our eyes to the market reality we're immersed in."

Gross withdrew the amendment without it coming to a vote.

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

House passes eminent domain restrictions: Columbia (MO) Daily Tribune, 4/13/06

By Josh Flory

If nothing else, the speaker was impressed.

The Missouri House this morning approved a measure that would impose new restrictions on the government’s ability to take private property through eminent domain. The issue has been a top priority for legislative leaders after last year’s U.S. Supreme Court decision in a Connecticut case that upheld a municipality’s right to seize property for private developments that generate tax revenue.

The measure won first-round approval yesterday on a vote of 150 to 7. Rep. Steve Hobbs, a Mexico Republican who represents part of northern Columbia, sponsored the bill and helped direct traffic during more than six hours of debate.

Shortly after last night’s vote, House Speaker Rod Jetton approached Hobbs in a side gallery. "Who would have dreamed that you could" get "this bill passed with seven nos?" Jetton said.

There’s still plenty of work to do. The bill likely will face changes in the Senate. After the debate yesterday, Hobbs said the effort was a good start.

"Is it perfect?" he said. "No. Is it what everyone wants? No. But is it the best we can do here today? I believe so."

The bill clearly wasn’t what the Missouri Farm Bureau wanted. In a statement, Charles Kruse, president of the influential organization, said the bill didn’t answer the call of Missourians to stop eminent domain abuse.

The House, Kruse said, had "bowed to the pressures of developers, utility companies and other special interests in tentatively approving a watered-down version of eminent domain reform legislation."

The bill makes several changes, including a ban on the use of eminent domain solely for economic development purposes or to take property where a place of worship has been located for at least 10 years. The bill does allow the use of eminent domain to take property in blighted areas, even specific parcels that are not blighted.

Rural and urban lawmakers clashed over the exact terms used in the portion of the law that bans taking property "solely" for economic development, defined as boosting the tax base, tax revenue or jobs. Rural lawmakers, including Rep. Wayne Henke, D-Troy, pushed for language banning the use of eminent domain on projects that are "primarily" for economic development.

Rep. Rachel Bringer, D-Palmyra, argued that the "solely" standard was too narrow. For example, she said, it would be easy for a developer to condemn a group of homes to build a mall, then dedicate a small space - such as a community meeting room - for public use.

But urban lawmakers said the "primarily" standard would inhibit economic development in cities.

Hobbs had previously called for the "primarily" standard, but said last night that he changed his mind after talking to eminent domain lawyers who said that wording would cause more cases to go to condemnation proceedings.

The bill includes a premium for sellers who have owned their property for a long time by requiring that the calculation for damages caused by eminent domain take into account a property’s "heritage value." An amendment offered by Hobbs added 1 percent to the fair market value for every year the property has been owned by the same family. The heritage value of a property would be capped at 100 percent.

Legislators kept intact the definition of a blighted area that can be targeted for redevelopment using eminent domain. The definition includes outmoded design, age or obsolescence that contribute to health problems or crime.

All five lawmakers who represent Boone County voted in favor of the bill.

Columbia Daily Tribune: http://www.columbiatribune.com

Columbia Heights meets eminent domain: Duluth (MN) News Tribune, 4/15/06

City officials in the Twin Cities community believe the use of eminent domain is vital to improving the area

By Patrick Condon, Associated Press

This small suburb [Columbia Heights MN] contains the highest elevations in the Twin Cities, with hilltops that offer smashing views of the Minneapolis skyline just to the south.

But there's not much else to attract new residents or businesses to Columbia Heights. High crime rates, crumbling buildings and vast swaths of grimy industrial wasteland have helped to make property values lower on average than in any other Twin Cities community, and its main business corridor along Central Avenue is pocked with vacant storefronts, dingy discount outlets and trash-strewn parking lots.

"We're at the bottom of the food chain here," said Bob Streetar, the city's director of community development.

It's Streetar's job to change that. That's why he's so worried about bills barreling through the Legislature to put strict limits on government's ability to seize private property through a process called eminent domain. Streetar said eminent domain is the most important tool he has in trying to make Columbia Heights a better place.

Last year, the U.S. Supreme Court ruled that government has wide power to seize private property and turn it over to other private owners. Since then lawmakers in states like Minnesota have rushed to make it harder, as critics bring forward story after story of homeowners and businessmen forced under government's thumb by eminent domain.

Take Gary Graham, who with his wife has operated a quilting shop for the past five years in Rosemount, another Twin Cities suburb using eminent domain to spiff up its image. The Grahams face eviction as Rosemount seeks to tear down several houses to make room for a large residential, retail and office development.

The owner of several properties that include the Grahams' business doesn't want to sell, but the city can force it by using current eminent domain laws. It's that power that most angers critics of eminent domain, who say it's unfair that government can force a private owner to sell his property to another private owner.

"We're just disappointed that the city is basically saying we're not as important as new development," Graham said. "We don't want to move. We don't want to be in a strip mall."

But city officials in places like Columbia Heights say there's another side to the story.

In the past few years, Columbia Heights has used eminent domain — or the threat of it — on several major redevelopment projects aimed at improving the city and boosting its tax base. Currently, one-fifth of the city's population is older than 55 years old, and 50 percent of its housing was built before 1960.

"We're a community that is wearing out," Streetar said.

The city has claimed large portions of a former industrial park just south of its downtown that was once home to Honeywell and a steel foundry. Now, it's a barren eyesore and an environmental hazard.

"You had a guy storing old snowplows back there, abandoned semi-trailers, boarded buildings covered by gang graffiti," said Randy Schumacher, the city official overseeing the area's conversion into a condominium complex. "We called it little Afghanistan."

The city also claimed a vacant Kmart store on Central Avenue, now the site of the Grand Central Lofts.

Under the changes to eminent domain now being considered in the House and Senate, Streetar said, those two projects would have been difficult or impossible. He said standards are set almost impossibly high for getting property designated as blighted or environmentally contaminated — a necessary designation if property is to be transferred to new private owners, like those undertaking the condo projects.

Columbia Heights officials are also worried about projects under way right now, particularly a ramshackle strip mall on top of a former dump site that they'd like to see torn down. They also would someday like to tackle a neighborhood of run-down rental houses and duplexes, across the street from the former Kmart site, that they said has long been a magnet for drug dealers and prostitutes.

Without strong eminent domain capabilities, Streetar said, he fears that the mostly absentee landlords who own those properties will be able to hold out for inflated sale prices.

But Streetar knows his side is losing the argument at the Capitol.

The challenges facing Columbia Heights are not unusual, and can be found in inner-city neighborhoods, aging suburbs and small cities in the rest of Minnesota. Laura Harris, a lobbyist for the League of Minnesota Cities, predicted that lawmakers are setting up the state for years of litigation over the types of economic development projects that cities say they need to survive.

"I don't see the long-term view being taken," Harris said. "There are going to be unintended consequences."

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

Camden Council affirms eminent domain powers: Philadelphia (PA) Inquirer, 4/14/06

By Dwight Ott

By a 4-2 vote after spirited debate, [Camden NJ] City Council last night killed a measure that would have put a two-year halt on Camden's use of its eminent domain powers in its redevelopment plans.

The vote drew hisses and boos from some of the nearly 40 people in the audience.

The use of eminent domain - which forces property owners to sell their land for public use - has become a major tool in Camden's efforts to implement its multimillion-dollar, state-funded, five-year Recovery Act.

Camden is adopting redevelopment plans that cover the entire city, potentially exposing all property owners to displacement via eminent domain, according to Councilman Gilbert "Whip" Wilson, who proposed the moratorium.

But he mustered support only from Councilman Ali Sloan El.

In a statement last night, Council President Angel Fuentes said the ordinance would have damaged revitalization efforts. He said Wilson and Sloan El were playing to residents' fears.

"To put a stop to everything with a rashly enacted moratorium... would be an incredible disservice to the residents and business entities," Fuentes said.

Councilwoman Dana Redd and Councilmen Frank Moran and Curtis Jenkins also voted against the moratorium.

Furthermore, Camden's state-appointed chief operating officer, Melvin R. "Randy" Primas Jr., had indicated he would have vetoed it.

Redd said last night: "No one wants to take anybody's property by eminent domain. We want to do it in a responsible way... . Responsible redevelopment is what we stand for."

Several lawsuits have tied up massive projects that call for the use of eminent domain in the Cramer Hill and Bergen Square neighborhoods.

Wilson said last night that he did not oppose redevelopment, but still had questions. He said he was especially concerned about seniors and others on fixed incomes who might not be able to afford the taxes if property values rose rapidly.

Sloan El said last night that governments across the country were reconsidering their use of eminent domain. "Thirty of the 50 states are putting together legislation against eminent domain," he said.

Although voting against the moratorium, Moran and Jenkins said Council needed to pay closer attention to the issue, particularly how it affects seniors and those on fixed incomes.

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


Eminent domain in motion: Branson (MO) Daily News, 4/14/06

By Cliff Sain and The Associated Press

The Branson Board of Aldermen this week approved a bill that would force property owners along a portion of 76 County Boulevard to sell portions of their land.

City officials said they need the land to make improvements at the intersection of 76 and Fall Creek Road, where the city wants to realign Fall Creek Road as part of a $7 million project to extend the street to Roark Valley Road.

“Negotiations have been under way for several weeks for the additional right-of-way needed for the project from some remaining property owners, but an agreement has not been reached despite good-faith negotiations,” City Engineer David Miller said.

The properties affected are the former California Bar & Grill, Ramada Inn, Travelodge, Dogwood Inn, a parcel of land owned by James P. Keeter and Thomas W. Schaefer, and Silver Fountain Inn.

Despite the approval of condemnation proceedings, Miller said the city would continue to negotiate with the property owners.

“The court date will not occur for several weeks and so, until that time, negotiations will continue,” he said. “There may still be a holdout, but hopefully we can get them all resolved.”

Wayne Kennedy, owner of Travelodge, said the city was too quick to use its power of eminent domain, which allows the city to force a property owner to sell land for public use.

“I’ve known some of you for years,” he told the aldermen. “You could have sat down with some of us to talk about our property, but that never happened. That hurt. I’m a little frustrated and angry that you would do this.”

As with the other property owners, the city needs just a portion of the property. In the case of the Travelodge, Miller described the needed portion as “a sliver” along the highway, and that the city needs to construct a new driveway for the business. He also said the city has been in contact with the Kennedy family.

“I’ve talked to his son five times in the last month,” Miller said.

Miller also said the city’s quick action is due to time constraints imposed by the Missouri Department of Transportation, which owns 76 and is sharing some of the cost with the city. The city also could not make an offer until it had appraisals on the property, which the city received a few days earlier, Miller said.

The subject of eminent domain has been a hot-button issue at the state level this year. The House voted 150-7 to give initial approval to a bill designed to limit the use of eminent domain.

The general issue of how the government intercedes on behalf of developers gained attention nationally after a U.S. Supreme Court decision last summer allowing the use of eminent domain to transfer property from one private owner to another for economic development purposes.

Gov. Matt Blunt and legislative leaders made the enactment of new eminent domain restrictions a top priority for the 2006 legislative session.

In the House, members overwhelmingly defeated an amendment that would have barred the use of eminent domain for projects ‘‘primarily’’ designed for economic development. Lawmakers instead opted for the lower standard of barring eminent domain for projects ‘‘solely’’ for economic development.

Rep. Mike Daus, D-St. Louis, said the lower standard welcomes the return of past abuses of eminent domain, because developers or their attorneys ‘‘will always be able to come up with an excuse’’ to justify how a project is not solely for economic development.

But others, Democrats and Republicans, said barring the use of eminent domain primarily for economic development purposes would stifle economic development and kill jobs.

‘‘The reality is that in the real world it’s simply an unworkable definition,’’ said Rep. Bryan Pratt, R-Blue Springs.

The eminent domain bill, sponsored by Rep. Steve Hobbs, R-Mexico, would give a bonus to landowners whose property is taken — on top of any other compensation — based upon how long they owned their land. It also would require that property owners facing eminent domain proceedings be given written notice of their rights. But it would not require that property taken through eminent domain be for a public use or declared to be ‘‘blighted.’’

Branson Daily News: http://www.bransondailynews.com

Eminent domain claim could be savior for Flats: The (Case Western reserve University) Observer, 4/14/06

By Jeffrey Verespej

In June 2005, the United States Supreme Court ruled in favor of eminent domain used by local and state governments for economic development, even if the seized property was not considered blighted. This ruling opened the floodgates for land-hungry developers looking for real estate and citizen activists to fight the overpowering government. Since then, there have been multiple court cases where local governments have battled to seize valuable property from citizens who claimed their rights as landowners. As has been proven, there needs to be further clarification on this ruling before any property owner can lose their land for a shiny and new shopping mall. One case, however, can benefit from the Supreme Court's decision – the situation in the East Bank of the Flats.

The Flats were Cleveland's hotspot from the mid-1980s to the mid-1990s. Drawing national attention as a music and nightlife hotspot, the prosperous properties were synonymous with a good time in Northeast Ohio: Shooters, Peabody's, and the Powerhouse. As the trendy crowd moved up the hill and into the Warehouse District, the business owners attempted to stretch their success by offering many 18-and-over nights, as well as being known for sketchy bars where illegal activities went unnoticed. This change in clientele sent the Flats into a downward spiral to where they are today: deserted and dangerous. A majority of the buildings are abandoned, and those that remain pride themselves on their young clubbing crowd or strippers. Just months ago, a local teenager from Glenville was murdered in a violent riot that was the nail in the coffin for the once great Flats.

Local developer and philanthropist Scott Wolstein has a greater vision for this land – instead of bars and nightclubs, he envisions a riverfront neighborhood with condominiums, apartments, a river walk, bookstore, and cinema. Having worked for several years, Wolstein has acquired nearly 75 percent of the property on the East Bank. However, the few holdouts are causing quite a commotion, preventing this development from happening.

These landowners, knowing the incredible potential for this land and the depth of Wolstein's wallet, are trying to finagle more money for their land than they should receive. For the past several years, these businesses have appealed their taxes to the Internal Revenue Service, claiming that their property is not worth the government appraisals due to the lack of business in the Flats. However, now that Wolstein is attempting to acquire the land, these same businesses are demanding compensation for their property that are higher than the government appraisals that were too high for their taxes. This clear and disgusting game playing is selfish and dishonest. The Flats business owners claim that if they continue to be "slighted," they will create their own redevelopment and make an "entertainment Mecca" out of the Flats. To clue them in, that was already tried – the Flats were an "entertainment Mecca," but then fell into disrepair and poor management.

The Flats East Bank neighborhood would have a spill-over effect that would benefit more than just that area, and it should be pursued quickly and completely. To keep the Flats as is would be a waste of the most precious land Northeast Ohio has to offer – if those land owners do not acquiesce to Wolstein's requests, then a case for eminent domain should be made. Anyone from Cleveland, either as a lifelong resident or a fourth-year student from Michigan, can clearly see the sad shape of this land. This would not be a case of local government overstepping their boundaries, as the Flats are in clear disrepair and do not show any signs of improvement without a distinct change. Abandoned and blighted property has negative effects on an entire area. The Flats are no different – in this situation Cleveland should act as a mediator and solve the issue with eminent domain.

The Observer: http://observer.case.edu

Candidates Agree On Eminent Domain: Harrisonburg (VA) Daily News Record, 4/14/06

Takings, Threats Of Condemnation Are ‘Last Resort’

By Jeff Mellott

Eminent domain should be the tool of last resort, candidates for Harrisonburg City Council said on Thursday during a forum at Massanutten Regional Library sponsored by the Harrisonburg-Rockingham Chamber of Commerce.

The question came to the candidates in the context of last year’s eminent domain decision by the U.S. Supreme Court. The court ruled that the city of New London, Conn., could condemn privately held land for future private development to promote the city’s tax base.

Candidates were also asked if they supported James Madison University’s board of visitors’ decision to threaten condemnation of the Kyger Funeral Home to make way for a new performing arts center on South Main Street.

Harrisonburg Mayor Larry Rogers, who is also a member of the board of visitors, said he had to support the law of the land because of the Supreme Court ruling. He added that Kenny Kyger, the funeral home’s owner, eventually received twice what the land was worth based on a state assessment.

Vote to Condemn
As a member of the board of visitors, Rogers voted for the resolution that said the university was prepared to take whatever action was necessary to acquire the Kyger property. At the time, Rogers said that the university had to look at all its options. Rogers had hoped that condemnation would not be necessary.

"It makes sure taxpayers are treated fairly," he said. Asked about private property owners, Rogers said, "It’s our responsibility to treat them fairly."

In the end, condemnation was not necessary. Kyger and the university reached an agreement, Rogers pointed out. The funeral home owner was paid $5.5 million, when the value of the property was established during negotiations at $2.7 million, Rogers said.

Carolyn Frank, running as an independent, said the funeral home had no price on it because Kyger did not want to sell.

"I think it was appalling what happened to Kenny Kyger," said Frank, who served on the council from 2000 to 2004. She served as mayor from 2000 to 2002.

"No amount of money matters if you don’t want to sell," she said.

"Last Resort"
Republican Dorn Peterson, who also served on the council from 2000 to 2004, said the city will need eminent domain from time to time, but the locality needs to be careful when it is used. He could not support the use of eminent domain to increase the tax base.

"A tool of last resort," Peterson said.

As for the Kyger Funeral home, Peterson said the matter was decided by the board of visitors and not the council.

Republican candidate and political newcomer Ted Byrd said the university had treated Kyger fairly.

Harrisonburg, he said, was a small community where negotiation should take place when it comes to land. Eminent domain should be considered as a last resort, he said.

Daily News Record: http://www.dnronline.com

Sonoma Hospital Board Votes to Drop Eminent Domain Bid: CBS-TV5 (San Francisco CA), 4/13/06

With the overwhelming support of Sonoma residents, the Sonoma Valley Hospital District's board of directors voted unanimously tonight to begin negotiating the purchase of 15 acres of land at Broadway and Napa Road to build a new hospital.

The five members of the board also voted unanimously to rescind the board's support for Measure C, a $148 million bond measure. If passed, the measure would have authorized the seizure through eminent domain of 16 acres of farmland owned by the Leveroni family in order to construct a 70-bed, 150,000-square foot hospital.

"The whole Leveroni chapter is over," said Steve Page, co-chair of the Save Our Hospital Committee.

The vote followed two hours of public comment in meeting so well attended it had to be moved to a larger room, Sonoma resident Bruce Stephens said.

Three of the five parcels of land now set to be the site for the new hospital were purchased by Stephens on April 4 solely for the purpose of making possible an alternative site for the facility, he explained tonight.

The two other parcels are owned by the Sarafini and Zepponi families, according to Page. They contain a home and the Moose Lodge.

The new site is on the southwest corner of Broadway and Napa Road, just outside the city limits.

Stephens has signed contracts with the hospital board to assign the properties to them, he said.

Overall, there's a huge sigh of relief in this town, Stephens said. "Now we can start to bring the community together" and talk about what we need in a hospital and how big it should be, he added.

Environmentalists and conservationists had sided with the Leveroni family in opposing Measure C, claiming a new facility on Leveroni land would be located in a greenbelt around Sonoma and would open the door to urban sprawl.

Tonight's vote makes the results of the Measure C election moot, although Sonoma County Election officials have said the election can't be stopped. The voters' mail-in ballots were mailed out April 3 and will be counted May 2.

CBS-TV5: http://cbs5.com

San Jose RDA pledges not to use eminent domain: Silicon Valley/San Jose (CA) Business Journal, 4/14/06

By Timothy Roberts

Faced with a backlash against the use of eminent domain, California's largest redevelopment agency is taking the unusual step of repeating its promise that it will not take single-family homes away from their owners in 19 neighborhoods in San Jose redevelopment areas.

"We understand that people may fear that their homes will somehow be taken through eminent domain for commercial purposes," Harry Mavrogenes, the executive director of the San Jose Redevelopment Agency, the state's largest, said in a statement. "Although this has not been the case in San Jose Strong Neighborhood Initiative areas, we want to reassure our residents that it won't happen."

The Strong Neighborhood Initiative has directed $45 million in redevelopment money into 95 projects in 19 San Jose neighborhoods since the program began in 2002.

The redevelopment agency has raised fears about the use of eminent domain in the past, in particular when it sought 40 sites for residential development in the downtown San Jose in 2001 and threatened to use eminent domain.

Concerns that cities might take privately owned property for purposes that have not traditionally been considered in the public interest took on heightened national concern last year when the U.S. Supreme Court ruled that, in fact, cities could take property for economic development purposes. That court ruling spawned ballot initiative proposals and possible legislation in California that would reign in powers of eminent domain, although in California, a government agency must show that a property it would like to take is blighted.

The redevelopment agency is now asking the city council, which also serves as the board of directors of the agency, to "reconfirm its practice to not use eminent domain authority for any single-family, owner-occupied properties in the Strong Neighborhoods Initiative Project Area," according to a statement. The recommendation is on the agenda for the May 2 city council meeting.

Silicon Valley/San Jose Business Journal: http://sanjose.bizjournals.com

Senate approves eminent domain bill: Des Moines (IA) register, 4/13/06

The legislation toughens rules on when cities can confiscate property

By Jonathan Roos

The [Iowa] Legislature moved a big step closer Wednesday to restricting local governments' power to confiscate property for business development.

"For the grandmother in Waverly or the grandmother in Des Moines, this makes sure their house is protected," said Sen. Bob Brunkhorst, a Waverly Republican, in calling for Senate approval of an amended version of House File 2351.

Opponents warned of unintended consequences that could hamstring cities and hurt the state's economic development efforts.

The legislation threatens to tie the hands of city councils "to satisfy a political opportunity that you all think you're going to get out of this" in the next election, said Sen. Jack Hatch, a Des Moines Democrat.

Sen. Brad Zaun, a Republican who is a former Urbandale mayor, said no one had shown that governments' use of eminent domain had been abused in Iowa. "I want to hear the horror stories in the state of Iowa," Zaun said.

The legislation was sparked by a U.S. Supreme Court decision last year that found it permissible for governments to seize private property to make way for business development. The Connecticut case involved a city's seizure of property for a project to develop offices, a riverfront hotel and health club.

The Senate's version of the bill is designed to avert a conflict between proposed condemnation restrictions and a major industrial project in Clinton.

Archer Daniels Midland Co. plans to build a new plant next to its wet corn mill in Clinton. The plant would make biodegradable plastics from corn. The industrial expansion involves a residential urban renewal area established in 1981.

The legislation toughens requirements for a city to take property within urban renewal areas. The areas would have to be heavily blighted for condemnation powers to be used.

However, lawmakers made the effective date of the change Oct. 1, thereby enabling the Clinton project to move ahead, said Sen. Keith Kreiman, a Bloomfield Democrat.

House File 2351, passed by the Senate on a 43-6 vote, returns to the House for more debate.

Des Moines Register: http://desmoinesregister.com


International Kelo Days, June 23 & 24, 2006

I and my group, some Cramer Hill [section of Camden NJ] Residents Association members, joined a statewide group of abused citizens on eminent domain. We are called the New Jersey Coalition Against Eminent Domain Abuse: www.njcaeda.com.

I hereby wholeheartedly suggest strongly that we announce to our country, the United States of America, that on INTERNATIONAL KELO DAYS, June 23th and 24th of 2006, we are protecting our rights to life, liberty and the pursuit of happiness in this national demonstration of solidarity in defending our homes, businesses and churches from the hands of "the private use" clause of the Supreme court decision.

Let's march around our city halls on Friday the 23th with signs against eminent domain abuse. On Saturday the 24th, we will paper up our neighborhoods with all signs of disapproval like the "Hands Off My Home" sign, the slashed-circled redevelopment posters, the "Don't Tread on Me" stickers, etc.

Many people have come up with this idea, so let's make it happen.

Undocumented immigrants have shown their defiance to fear, yet we can't even take a day off from work to save the very roof we are working for. We don't even defend our neighbors' homes because ours are not on the list. Businesses have no real say because very very few homeowners live in commercial strips and won't fight "so-called-progress-not-for-public-use".

Quick rich schemes and prosperity dreams have increased greed out of proportions. Hearts have hardened. Eyes have narrowed. Ears have grown deaf to cries of despair. All for the mighty dollar, filthy lucre. Had our local government honestly managed taxpayers' monies correctly, we need not take — snatch — court order families out of their penny-pinched four walls and a roof.

Mary Cortes: Cortescamden@aim.com

Newport Beach moves forward with eminent domain law: Orange County (CA) Register, 4/12/06

The city plans to restrict its ability to seize private property to allow different commercial development

By Jeff Overley

[Newport beach CA] Officials late Tuesday voted to move forward with a law that would curb the city’s use of eminent domain.

The City Council unanimously backed a plan that would bar Newport Beach from seizing private property to allow different commercial development.

It’s a response to a recent U.S. Supreme Court decision where justices said condemning private property to allow new business could in some cases provide a larger public benefit and was therefore lawful.

Under the proposed Newport Beach law, condemnations that pave the way the way for purely public projects, such as roads or water pipelines, would still be legitimate.

In the short-term, the council aims to adopt a law banning the practice. But wary that future councils could overturn the vote, officials plan to place a measure on the fall ballot to amend the city charter and enshrine the law for good.

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

Eminent domain not cut and dried: Shreveport (LA) Times, 4/11/06

Protect from abuse but don't overreach

Efforts to protect private property from government seizure while worrying about its impact on community economic development is tying the Louisiana Legislature in knots.

After the U.S. Supreme Court legitimized a Connecticut economic development agency's power to take property then turn it over to a private, for-profit venture, it certainly is prudent for each state to review its laws and ensure safeguards against abuse.

The danger is, as the chancellor of LSU's Paul Hebert Law Center said in March hearing reported by The Advocate, that a "blunderbuss" approach unintentionally could harm communities. John J. Costonis argued against blanket bans on land expropriated for private development.

Much of the current debate surrounding Senate Bill 1 by state Sen. Joe McPherson, D-Woodworth, has to do with port facilities needing room to grow and create more terminal space that, in turn, creates jobs. Of course, a huge looming arena of concern is recovery in hurricane-devastated areas as local governments there seek to rebuild, sometimes envisioning tracts differently than their pre-storm uses.

But seeking compromise threatens legislative convolutions. A number of local government associations and public entities are opposed to the proposed constitutional amendment or at least fretting about the potential roadblocks it could raise to economic development. Among the fears is that trying to list or bar private or public-private exceptions in existing eminent domain laws — laws normally used for public uses such as roads or schools — could, in fact, open up loopholes.

In public-private ventures, is there an acceptable percentage of private use? If some of the property is open to the public as a museum or boat launch, what about the private areas leased to gift shops or marinas?

It perhaps may be possible to list some worst-case ventures into state law. Banning expropriation for a golf course could probably find support. But what about a venture such as Bossier City's Louisiana Boardwalk. The city, in part, used its legal powers to help accumulate a tract of land for the popular retail and entertainment venture although the city built and continues to operate a public parking garage.

Enlightened urban planners urge caution particularly for communities trying to breathe new life into older neighborhoods, for which assembling sufficient property for redevelopment is a key. Rather than rewriting the law, perhaps more tests and hurdles could be added to keep government in check. It should be noted, according to the Louisiana Municipal Association, that only three economic development projects, including the Shreveport Convention Center, have used expropriation power in the past 10 years.

While a consideration of the legal implications of the Supreme Court decision is prudent, the state needn't get caught up in a prairie fire of overreaction along with the rest of the nation's state legislatures. The issue of property rights is such a bedrock American concept that its focus nationwide nevertheless is subject to political exploitation no less than the issue of gay marriage or flag burning.

What's needed is a sober, studied review and careful tinkering. The governor, who has offered limited support for the bill though presumably with modifications, would do well to urge reason and deliberative caution.

The Shreveport Times: http://www.shreveporttimes.com

House Prepares for Debate on Eminent Domain Reform: digitalBURG.com (Warrensburg MO), 4/10/06

Representative David Pearce, R-Warrensburg (121st District), believes that House Bill 1944, passed out of the [Missouri] House Judiciary Committee by a bi-partisan 9-1 vote, will significantly improve landowner protections against eminent domain abuse.

"I am a full supporter of eminent domain reform," said Pearce. "Many constituents of the 121st District have encouraged me to vote for this legislation." Eminent domain legislation unanimously passed out of the Rules Committee on April 7 and is expected to be taken up this week.

Representative Steve Hobbs, R-Mexico (21st District) and sponsor of HB 1944, is confident that the bill restores the right balance between competing interests, although he anticipates engaging in thoughtful, serious debate with his colleagues before the bill becomes law.

"A lot of work has gone into this bill," said Representative Hobbs, "and I believe that work will pay off in helping us meet our number one goal: Giving Missouri property owners the protection they deserve."

Last year, the Supreme Court's ruling in Kelo v New London expanded government power to take property from individuals and give it to developers in the name of economic development.

The Court's ruling drew anger from citizens across the country, but allowed state legislatures the freedom to restrict eminent domain. Governor Matt Blunt responded by establishing a Task Force on Eminent Domain. The resulting bill repeals nine sections of Missouri law and enacts twenty-three new sections in their place.

"Reforming eminent domain law in Missouri is no simple matter," Representative Hobbs admitted.

In a direct response to Kelo, HB 1944 stipulates that private property can be taken through eminent domain only for public use or blight. Farmland cannot be declared blighted and, therefore, is protected from eminent domain. Churches and non-profit organizations, both of which could be threatened under Kelo's "economic development" justification, will be protected. The bill allows authorized entities, like governments and utilities, to continue using the power of eminent domain to build public schools and libraries and to provide vital infrastructure like highways, railroads and electricity.

The bill also proposes a number of pro-landowner measures to further protect property owners' rights when their land is condemned. The condemning authority must give the landowner thirty days written notice both before beginning negotiation for the land and before filing a condemnation petition. The condemning authority also will be required to provide a "Landowner's Bill of Rights" that gives a plain understanding of the condemnation process.

"The Kelo decision was unfortunate," said Speaker Rod Jetton, R-Marble Hill (156th District), "but this bill provides a reasonable and firm solution. It covers all the bases."

digitalBURD.com: http://www.digitalburg.com

City appeals ruling in condemnation: Henry (County CA) Daily Herald, 4/10/06

By Michael Davis

The city of Stockbridge [Georgia] is taking its high-profile condemnation of a local flower shop to a higher court.

The City Council voted Monday to appeal a judge’s order throwing out its attempt to force the sale of Mark and Regina Meeks’ Stockbridge Florist and Gifts. The vote is the second affirmation in as many weeks by the council of its attempt to take the property for the city’s downtown redevelopment project.

The council voted unanimously to ask the Georgia Court of Appeals to overrule Henry County Superior Court Judge Arch McGarity’s dismissal on April 3, which came a week after the council moved to continue with the case.

City leaders say the couple has been unreasonable in negotiating for the property, but the Meekses claim the city only offered a fraction of what a private developer was willing to pay.

“I don’t have the right to vote,” said Mayor R.G. “Rudy” Kelley, who asked the council last week to back down. “I have the right to recommend and they chose to go the other way.”

Stockbridge plans to include the flower shop in its current redevelopment project, which includes a new city hall and parking deck, as well as land that will be turned over to private developers for shops and residences.

The Meekses say they were offered a spot in the redevelopment project for a condo and a new shop, but the city has said the deal, made by a hired envoy, was unauthorized.

In a September condemnation hearing, a special master awarded the Meekses $421,500 in buy-out and relocation expenses. The couple’s attorney argued they had a deal with a private drug store developer for nearly $750,000 before an ordinance change limiting the size of pharmacies in the city soured it.

The case has caught the attention of state lawmakers, who in light of last June’s U.S. Supreme Court decision affirming the taking of several homes in Connecticut to boost the town’s tax base, passed laws this year somewhat restricting local government’s seizure power.

But the new rules, which were signed into law last week, don’t apply in the Meekses’ case, which was already in the courts.

The Meekses’ attorney, Scott Jacobson, asked the city to reconsider its appeal Monday.

“We don’t consider [the vote] to be final so we’d like to continue with that request,” he said.

He argued the city already has plenty of property in its so-called downtown redevelopment district to complete its project.

“With the current property demolition and grading, it appears the city has amassed a significant site ... ” he said.

But because litigation has begun, the courts will have to decide the outcome according to City Councilman Steve Moon.

“We’ve started a project and we’ve started a process and we feel like (it’s a valid project),” he said.

The city, which has fought legal battles with several property owners in the redevelopment district over takings, has tried to be reasonable from Moon’s perspective.

“I understand why people would be up in arms about eminent domain and that’s why we went to each of the property owners and asked them to buy in,” he said. “For right now, our plan, we’re staying true to it.”

Henry Daily Herald: http://www.henryherald.com

Camden councilman wants to block eminent domain: Philadelphia (PA) Inquirer, 4/11/06

By Dwight Ott

A Camden city councilman plans to introduce an ordinance Thursday calling for a two-year moratorium on the use of eminent domain - a move that could stall the city's multimillion-dollar recovery effort.

Councilman Gilbert "Whip" Wilson's proposed measure was discussed during last week's Council caucus. President Angel Fuentes reportedly read a letter from Melvin R. "Randy" Primas Jr., the city's state-appointed chief operating officer, opposing the moratorium.

"We had a heated discussion," Fuentes said. Wilson, he said, "is not going to have support of the majority of my colleagues. A moratorium for the next two years is going backwards. We're experiencing a renaissance in the city. A moratorium would just hurt the city. ... It's not going to pass."

Primas said he would veto the ordinance if it did. As the city's financial czar under the five-year, state-funded Recovery Act, Primas has been given that power by the state.

"To keep throwing roadblocks at Camden's redevelopment doesn't make sense," he said.

Several lawsuits have already tied up massive projects that called for the use of eminent domain in the Cramer Hill and Bergen Square neighborhoods.

Camden has been one of the nation's most aggressive users of eminent domain, with thousands of families facing an uncertain future.

Primas said eminent domain was the power of government to take and redevelop private property for the "greater good." Detractors call it a "land grab."

Mayor Gwendolyn Faison said Camden officials trying to stop eminent domain should make sure of their facts.

"Eminent domain is not all wrong if used the right way," she said.

Wilson's ordinance would block the acquisition of about 2,200 occupied homes and 160 occupied businesses.

He said he did not oppose redevelopment, but had questions.

"Camden is in the process of adopting redevelopment plans covering the entire city, potentially subjecting every family business in the city to displacement via eminent domain," his ordinance states.

"We're being asked to go out here on a leap of faith," Wilson said. "I have a lot of faith. But I'm not leaping until I can see the plans."

Philadelphia Inquirer: www.philly.com

Eminent domain revision concerns economic development backers: Des Moines (IA) Business Record, 4/9/06

By Joe Gardyasz

After facing the threat of having his business properties taken away to make way for more upscale development in the East Village, Brad Hamilton is hopeful that proposed changes to Iowa’s eminent domain law will preclude any further efforts by the city to condemn the properties.

Hamilton, who owns storefront properties at 422 and 424 E. Locust St., said he believes the media attention surrounding his case was the reason the city “backed off,” but that the proposed legislation will provide him some assurance for the future.

“I think the thing to do is to ease up and give people incentives to fix up their properties, rather than threatening to take it away,” Hamilton said.

On the other side of the dispute, city and economic development groups remain concerned that proposed changes to Iowa’s law governing eminent domain may make it more difficult to condemn land for key projects, and that it could make it tougher to make a case for condemning blighted properties for urban renewal projects.

“At the end of the day when the dust is settled, we still think on balance this bill goes way too far and has a chilling effect on economic development,” said Tom Bredeweg, executive director of the Iowa League of Cities. “I think city officials are concerned that (legislators) need to back this off to a much more narrow bill. Whether they will do that remains to be seen.”

A possible exception to the bill’s provisions, which would enable Archer-Daniels- Midland Co. to proceed with development of a proposed plastics plant in Clinton, points to the need for legislators to think more broadly about how the legislation might affect future economic development projects, Bredeweg said.

“I cannot understand why legislators aren’t more sensitive about the next (economic development project) that’s going to happen a few months from now,” he said. “Occasionally these projects come along; there’s a consensus that they’re badly needed.”

Of particular concern to some city officials is language in the bill that would require that at least 75 percent of properties in an area must be considered “slum” or “blighted” before condemnation can take place.

“What that means is that property will deteriorate to a level that it will become quite an eyesore before you can utilize eminent domain,” said City Councilwoman Christine Hensley. “That’s not a win-win for any of us.”

The legislation, House File 2351, would allow eminent domain condemnation to be exercised only for projects involving a public purpose, use or improvement. It would tighten the definition of “public use” to exclude a broad range of economic development activities. It would also expand the requirements for public notice, expand the ability of property owners to challenge condemnation proceedings and enable landowners who were subject to eminent domain to reclaim properties not used for the intended public purpose within five years.

Amendments proposed in the Senate would also broaden the reach of the bill to restrict the use of eminent domain for creating lakes to projects large enough only for drinking water purposes, and which would prohibit lake developments from being transferred to private developers.

Virtually all state legislatures have addressed the eminent domain issue since June 2005, when the U.S. Supreme Court ruled that the use of eminent domain by the city of New London, Conn., to condemn a blighted area for economic development purposes was allowable because it served a “public purpose.”

By a 5-4 vote in Kelo vs. City of New London, the court held that a redevelopment plan devised by the city of New London to condemn and redevelop a blighted 90-acre neighborhood served a “public purpose” under the public-use provision of that state’s constitution, even though it would benefit private individuals.

The original suit was brought by seven landowners who refused to sell their property to the non-profit development corporation, saying the city’s use of eminent domain violated both the U.S. and Connecticut constitutions. The economic development plan was to create an area to complement a facility that pharmaceutical maker Pfizer Inc. was planning to build.

“This year, 43 states have come into session, and 42 of them have taken it up,” said Larry Morandi, director of state policy research for the National Conference of State Legislatures. “It’s a very prevalent issue, and so far this year, we’ve got six states that have passed bills that the governor has signed; two have passed bills that are still on the governor’s desk; and one has passed that the governor vetoed.”

The states that have enacted eminent domain revisions are Idaho, Indiana, Kentucky, South Dakota, Utah and Wisconsin. Bills in Georgia and West Virginia are pending signatures by those states’ governors, while New Mexico’s governor vetoed that state’s bill.

“The three approaches that seem to be the most in vogue are defining traditional public uses of eminent domain, prohibiting it for economic development or added tax revenue, or redefining what blighted property is,” Morandi said. “So we see a lot of these statutes redefining what ‘blighted’ is. It’s got to really pose a problem to public health and safety to be blighted.”

According to a position paper the city of Des Moines provided to the Legislature in December, more than 90 percent of contested property cases reach a settlement without having to use eminent domain procedures. Some examples of past redevelopment projects include Guthrie Business Park, Central Place and Western Gateway.

“I still contend (legislators) are reacting to a situation that exists on the East Coast, not Iowa,” Hensley said.

Outside of Iowa’s cities, 1000 Friends of Iowa is advocating a move to apply eminent domain limitations to lake development projects. Under proposed Senate amendments, new lakes would be limited to the size necessary to provide a new source of drinking water, and local governments would be restricted from selling newly developed shoreline property to developers.

“The main context for our concerns is that we always want to make sure land use decisions are made that are fair to the individual as well to the community as a whole,” said Jonna Higgins-Freese, executive director of the group, which advocates environmentally responsible development. “From as far as we can see, there is no evidence that those projects will bring economic benefit to the entire community, not to just a few people.”

Doug Gross, a Des Moines attorney who has been a major advocate for recreational lake development for economic development in Iowa, could not be reached for comment.

Within the city, Hamilton said he believes the threat of using eminent domain for economic development purposes has had the effect of slowing improvements by property owners.

“There were a lot of people around me who weren’t fixing up their properties because they were waiting to see what was going to happen,” he said.

Des Moines Business Record: http://www.businessrecord.com