Eminent Domain — New Jersey's Public Advocate reports: New Jersey Eminent Domain Law Blog, 5/21/06

By William Ward

On Thursday, May 18, 2006, New Jersey Public Advocate Ronald Chen issued his report to the governor and Legislature on eminent domain. The report addresses the Local Redevelopment Housing Law (LRHL, N.J.S.A. 40A 12-1 et seq.) In so doing, Chen goes right to the epicenter of the eminent domain controversy: most of the debate surrounding eminent domain abuse arises in the context of redevelopment projects undertaken by municipalities pursuant to the LRHL.

Chen gives the history of blight in New Jersey from its inclusion in the 1947 Constitution to its metamorphosis into an “area in need of redevelopment” as contained in the present version of the LRHL, N.J.S.A. 40A: 12-5 (a.-h.).

A constitutional understanding of the term 'blighted area' can also be derived from statements made by delegates to the 1947 Constitutional Convention. The language that became the 'blighted area' clause in the Constitution was sponsored by Delegate Jane Barus, who introduced an amendment to Committee Proposal No. 5-1. Ms. Barus’s amendment, which was approved without change and which ultimately became Article VIII, § III, ¶ 1 of the Constitution, stated:

‘The clearance, replanning, development or redevelopment of blighted areas shall be a public purpose and public use, for which private property may be taken or acquired. Municipal, public or private corporations may be authorized by law to undertake such clearance, replanning, development or redevelopment, and improvements made for these purposes and uses, or for any of them, may be exempted from taxation, in whole or in part, for a limited period of time during which the profits of and dividends payable by any private corporation enjoying such tax exemption shall be limited by law. The conditions of use, ownership, management and control of such improvements shall be regulated by law.’

The Local Redevelopment Housing Law was enacted in 1992 by the Legislature and revised in 2003. There are eight criteria that define an area in need of redevelopment. These criteria are supposed to comport with the constitutional “blighted area” clause, even if the word “blight” was left out of the LRHL. In Chen's opinion, criteria (e) and (h) are unconstitutional. This analysis is contrary to two Appellate Division decisions, Concerned Citizens of Princeton and Forbes v. South Orange, which affirm the constitutionality of the statutory provisions.

The Blighted Area Act of 1951, which was repealed in 1992, stated that blight could be found in an area with a "...growing or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein and other conditions, resulting in a stagnant and unproductive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare."

Then, in 1992, the Local Redevelopment Housing Law was enacted. It replaced the language in the above passage “stagnant and unproductive condition” with “stagnant or not fully productive.” Chen states that under the current criteria (e), “stagnancy is no longer a requirement, in direct contravention of the deep-rooted understanding and definition of blight.... Furthermore, an area need not be ‘unproductive’ either. Instead, under criterion (e), an area can be deemed blighted if it simply is ‘not fully productive,’ which by definition must focus on alternative, future uses of the land.... Simply put, if the criterion only requires that an area be ‘not fully productive,’ then eminent domain can be used to seize non-blighted areas, in direct violation of the limitation the New Jersey Constitution places on eminent domain for private redevelopment purposes.”

Criterion (h) addresses “smart growth planning.” (Smart growth areas in New Jersey are identified as Areas 1 and 2, excluding the Highlands and the Pinelands.) This also does not comport to the constitutional definition of blight. Under criterion (h) an area is blighted if “[t]he designation of the delineated area is consistent with smart growth planning principles adopted pursuant to law or regulation.” N.J.S.A. § 40A:12A-5.h. Chen argues that this criterion violates the constitutional limitation. Smart growth looks to future change and alternative uses for land. Blighted area, historically, focuses on the present use of the land and not possible future uses. Blight, by its plain meaning, implies that the deleterious condition has already occurred. Thus, Chen argues, there is no logical connection between an area designated for smart growth and a blighted area, leading to the conclusion that criterion (h) is unconstitutional. An area designated for smart growth, therefore, could be automatically declared blighted by this criteria, and significant swaths of New Jersey could be “in need of redevelopment” as this category is interpreted.

The framers of the Constitution never envisioned the Legislature having full power to determine the redevelopment boundaries of any area. One proposal presented to the Constitutional Convention of 1947 read:
The acquisition of real property for development or redevelopment of any area in accordance with a plan duly adopted in a manner prescribed by the Legislature, whether the uses to which such area is to be devoted be public or private uses or both, is hereby declared to be a public use. The Legislature shall make laws governing acquisition, use and disposal of such property by an agency of the State or a political subdivision thereof.

One of the delegates noted that because the proposal did not provide guidelines for determining whether an area needed redevelopment, it could “lead to a great deal of possible abuse.” - PROCEEDINGS OF THE NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947, Vol. III, at 544.

The framers did not adopt that proposal. Instead, Chen tells us, they gave us the “blighted area” clause to restrict the use of eminent domain in redevelopment and to limit the ability of the Legislature to broadly define the scope of the takings power.

It is clear from Chen’s review of the history, starting with the Constitution and leading up to the latest version of the LRHL, that the New Jersey Legislature has impermissibly expanded the concept of blight. Hopefully, this will be rectified with changes to the LRHL recommended by the Public Advocate and presently being considered by Assemblyman Burzichelli’s Commerce and Economic Development Committee. Absent a change from the Legislature, the New Jersey Supreme Court should revisit the concept with an eye toward reversing Forbes and Concerned Citizens of Princeton on the blight issue.

Download the report and read the appendix.

Listen to Public Advocate Ronald Chen present his findings at the May 18 meeting of the Assembly Commerce and Economic Development Committee.

New Jersey Eminent Domain Law Blog: http://www.njeminentdomain.com

Merchants in Peekskill fear eminent domain: The Journal news (Westchester NY), 5/21/06

By Brian J Howard

Business has been so good at La Placita Market, owner Wilson Narvaez never thought someone might consider it an example of downtown blight.

But Narvaez, who opened the Main Street grocery store in 2004, doesn't know what to think now that the city has commissioned a blight study of the surrounding neighborhood.

"Your future's not secure. You're spending your money, and you're not secure in your business," he said. "I'm not in favor of it or against it until I know how they are going to handle it."

Voting 4-3 along party lines, the Common Council approved hiring Cleary Consulting of Northport, on Long Island, for $8,500 to study the four blocks bounded by Main, Bank, Brown and South Broad streets.

By the same vote, the council agreed to pay Warshauer Mellusi Warshauer Architects of Hawthorne $75,000 for a redevelopment plan for the same area.

The 20-acre study area includes a lot left vacant by 1960s urban renewal, a municipal parking garage and the Crossroads Plaza shopping center. It also includes Hudson River HealthCare, one of the city's largest employers.

Mayor John Testa said the study is the first step toward downtown revitalization.

"It's not really about getting rid of buildings," Testa said. "It's about bringing people to live downtown, creating public spaces and giving people places to go."

"Blight study" is a bad name for what is simply an inventory that will form the basis of a redevelopment plan, consultant Patrick Cleary said. However, he conceded, the study would give the city the power to take property under eminent domain.

That has stirred fears among Peekskill business owners.

With good reason, says an attorney who represents clients in eminent-domain cases from Port Chester to New London, Conn.

The New London case formed the basis of a controversial 2005 U.S. Supreme Court ruling that upheld municipalities' use of eminent domain for private redevelopment as well as for traditional public works projects, like new highways or road widening.

Even if officials promise not to use eminent domain now, the blight study could be used to invoke it years from now, said Dana Berliner, senior attorney at the Institute for Justice in Arlington, Va.

"If they won't rule it out, it's absolutely a terrible idea for this neighborhood, assuming any of those businesses want to stay there," Berliner said. "If they want to stay there, they should be fighting this."

Seth Weinstein, who owns the Peekskill Laundromat on Park Street, was among a handful of business and property owners who packed a recent Common Council meeting to protest the blight study and who have been meeting since then to formulate plans to oppose it.

"I'm really nervous," said Weinstein, a father of two. "I just spent a lot of money remodeling."

Testa said their fears are unfounded and promised the process would be open. But as was the case with the $200 million waterfront redevelopment now under review, the mayor would not rule out the use of eminent domain.

Councilwoman Mary Foster, one of three Democrats who voted against the study and redevelopment plan, said the issue was not discussed publicly before the May 8 vote and came up only in a closed-door session a week earlier.

Testa first raised the issue of downtown redevelopment in an April 14 memo he provided to The Journal News at the time.

Foster said she prefers a market-based approach over Republicans' government-directed tack.

"I think we've all seen that that approach doesn't work," Foster said. "If you do this, what then gives any comfort to future business owners or developers that this isn't going to happen to them?"

Arnie Paglia, who owns two commercial properties within the study area and a restaurant just outside, said business owners support downtown revitalization. They just don't want to be cut out of the process.

"They developed this behind closed doors. Business doesn't work that way," Paglia said. "We have to reverse this trend of eminent domain, of government deciding what's best for the people."

The Journal News: http://www.thejournalnews.com

Eminent domain: report "blighted": Asbury Park (NJ) Press, 5/21/06


The [New Jersey] public advocate released a report Thursday that concluded what everyone already knew: The eminent domain laws in this state must be changed.

Unfortunately, the report's recommendations fall short of what is needed to protect the rights of property owners.

[The report is online at http://www.state.nj.us/publicadvocate.]

In a preface to his recommendations, Ronald K. Chen detailed the abuses that prompted his call for reform. Those abuses warrant more than reform. They scream out for a complete ban on the seizure of any owner-occupied private property — residential or commercial — for private economic redevelopment.

The report noted state law allows municipalities to declare virtually any area "blighted," a prerequisite for using eminent domain for private redevelopment. It also pointed out how the definition of "blight" over the past 40 years has shifted from four narrowly drawn criteria to seven broader ones. The report said the Legislature's interpretation of the state Constitution's blighted area clause "has expanded to the point where it provides virtually no limitation on taking private property."

The report recommends tightening the definition of blighted, providing greater public notice when towns are contemplating the use of eminent domain and increasing compensation for seized property. But it still leaves the door wide open for the seizure of private property for economic redevelopment. It doesn't provide fair value for those who are being forced from their homes and it doesn't prevent property owners whose homes are not blighted from being subject to eminent domain if they live in neighborhoods that are classified as blighted by the governing body.

The use of eminent domain in New Jersey has reached epidemic proportions. Its spread has been accelerated by the scarcity of developable virgin land in the suburbs and rural corners of the state. A New Jersey Builders Association report says redevelopment accounted for more than 50 percent of the building permits issued in the state last year. For the first time in eight years, Ocean County failed to lead the state in new permits. Urban Hudson County headed the list, followed by Middlesex, Essex and Bergen counties. Ocean County was fifth and Monmouth County, which had ranked second in permits issued from 2000 to 2003, was sixth.

The pressure to acquire land belonging to others for private redevelopment will continue to intensify, not only in the cities but along the Jersey coast. Along with it will come fierce lobbying by developers and many public officials to head off major modifications to eminent domain law.

In dealing with this issue, the choice facing the Legislature is not, as some suggest, between allowing or not allowing the redevelopment of blighted neighborhoods. Rather, it is whether redevelopment will be handled as a partnership among property owners, the community and developers or shoved down property owners' throats. Redevelopment can proceed without eminent domain. It may not be as pretty. But when it comes to private property, individual rights should take precedence over being pretty.

Asbury Park Press: www.app.com

New eminent domain law will help renewal effort: Pittsburgh (PA) Tribune-Review, 5/21/06

By Ron DaParma

Urban renewal efforts have been good and bad, but Arthur P. Ziegler Jr. of the Pittsburgh History & Landmarks Foundation believes there's now hope for more of the good because the state has adopted a law governing the taking of private property for renewal.

Ziegler, president of the South Side-based preservationist organization, applauded when the Legislature passed and Gov. Ed Rendell this month signed two companion bills designed to clarify the state's eminent domain law.

"We would like to see people protected from use of eminent domain," said Ziegler. "We have seen it used or threatened frequently here, and some of the results have been negative."

As examples, he points to efforts in the 1950s and 1960s that he calls some of the "worst cases of urban renewal we have seen."

Those include efforts to revitalize the city's Lower Hill District (the area near Mellon Arena), the development of Allegheny Center on the North Side, and the "Circle" in East Liberty — a project that diverted most vehicular traffic from the main Penn Avenue business district.

"And of course, the threat of it was used by the administration (of Mayor Tom Murphy) in various instances, including when he was developing plans for the Fifth-Forbes business district," Ziegler said.

"This bill protects the rights of property owners above all other interests," said Rendell. "Eminent domain should be used in a community's best interests, not the specialized interests of a few."

One section of the legislation amends the state's eminent domain code by prohibiting, with some exceptions, an agency's ability to take private property in order to use it for private enterprise.

It provides standards that single, blighted properties must meet before being taken by eminent domain. It also extends the criteria to include properties that are unmarketable, pose environmentally hazardous conditions, or have multiple instances of blight. Multiple properties can be taken by eminent domain if they also meet geographic conditions related to a blighted area.

The new law also says no political subdivision can use eminent domain authority against land in another municipality without the approval of the other political subdivision. It also outlines land condemnation procedures.

Pittsburgh Tribune-Review: http://www.pittsburghlive.com/x/pittsburghtrib

Eminent domain panel wants more details: Ventura County (CA) Star, 5/20/06

By Anna Bakalis

A Moorpark [California] citizen advisory committee reviewing the Redevelopment Agency's wish to reinstate eminent domain says it can't give a recommendation to the City Council without some straight answers.

"We're still flying in the dark," said Chairman Dale Whitaker. "We're getting conflicting information, and I don't know how we can make a recommendation by next month."

Members of the Project Area Committee were visibly frustrated after a slide show presentation by consultant Urban Futures that explained eminent domain, in text and rudimentary graphics, and how it might be applied in Moorpark. About 75 people sat in the audience. A Spanish translation was available through headsets that were distributed.

It was the sixth meeting of the PAC.

"We're no better off today than we were at the first meeting," Whitaker said after the meeting.

The issue of eminent domain — the power of a public agency to forcibly acquire private property for public use — was started last year by city leaders who have long hoped to rejuvenate downtown. The agency's authority to use eminent domain was allowed to lapse in 2001, and city leaders are hoping for a recommendation from the PAC by June 16.

The PAC said there are two main points that are of concern that need to be addressed before they can make a recommendation: One is that city staff members told two members of the committee that there were no plans for a widening of Walnut Canyon Road. But it was found out later that widening is one of the city's top priorities. The other concern for the PAC is that officials are using a zoning map that was not created through the proper channels, Whitaker said. The last time a zoning map was updated was in 1993. The PAC contends this is different map.

To get answers on how they intend to use the authority, Whitaker told the city staff he wanted a private meeting with Mayor Patrick Hunter, another council member, two PAC members and the director of Community Development.

Three maps of the eminent domain project area hung in the room for the audience to view.

Blue, pink, red and yellow blocks indicated areas that would be affected by the new authority.

At the end of the Urban Futures presentation, it was said that no specific parcels have been identified for acquisition.

"In my book, everything that has a piece of color is being looked at for acquisition," said PAC member Will Whitaker, Dale Whitaker's brother. They own a hardware store on High Street.

David Moe, Redevelopment Agency manager, said there was not enough money to acquire all the property that was identified on the map.

The next PAC meeting is scheduled for June 8.

Ventura County Star: http://www.venturacountystar.com

Eminent domain initiative could echo Prop. 13: Ventura County (CA) Star, 5/17/06

By Tim Herdt

If you were too young or not around back then and you're tired of hearing old-timers talk about California's great political earthquake of 1978, maybe it's time to strap down the water heater.

There's a new rumbling along the state's ballot-initiative fault line that, before it's over, could mimic the Proposition 13 quake of '78.

Just as before, it involves private property. Just as before, it involves distrust of government. Just as before, it could unite every county, city and school district in opposition, potentially joined by big business and law enforcement. Just as before, on the other side will be conservatives devoted to limiting the power of government.

Proponents this week submitted 1 million signatures to qualify an initiative for the November ballot that seeks to strip government agencies of their power to purchase private property from an unwilling seller and then sell or lease it back for a different private use.

The "Protect Our Homes" initiative was motivated by the U.S. Supreme Court's 2005 Kelo v. New London decision, in which the court held that the city of New London, Conn., was within its rights to condemn a half-dozen homes in its effort to assemble sufficient land for a new manufacturing complex.

Although the decision broke no new ground — the practice had been in use for decades in the redevelopment of blighted and crime-ridden neighborhoods — the facts of this case caused an outcry.

These homes weren't dilapidated. The neighborhood wasn't crumbing. The city fathers, in their zeal to promote economic development, simply purchased the land against the homeowners' wishes and turned the property over to an international pharmaceutical conglomerate.

This, many observers believed, was an assault on private property rights. It was evidence, they asserted, that the power of eminent domain had gone too far.

In California, when an emotional issue arises, an initiative can't be far behind.

With $1.5 million from an advocacy group funded by New York developer Howie Rich, backers were able to pay $1 per signature to get a million Californians to sign on the dotted line. Signatures were submitted Monday; given the high number of signatures, it is virtually certain to qualify.

The measure would require that eminent domain could only be used in situations in which a government agency intends to acquire and maintain the property for public use, such as a park, school or freeway.

It would also redefine much of existing law governing eminent domain and offer a more generous definition of the "fair market value" a government agency must pay.

The League of California Cities immediately sounded an alarm. Its executive director, Chris McKenzie, called it "an assault on our environment and taxpayers dressed up as eminent domain reform."

League spokeswoman Megan Taylor expanded on that when I talked to her Tuesday. She said the initiative would broaden the definition of "taking" and require government agencies to compensate homeowners if they make a zoning decision that runs contrary to a landowner's desire for future use of his property, or if they impose environment regulations that might restrict a property's later use.

She also said it would outlaw the public benefits from classic cases of redevelopment, such as when a city condemns a drug-infested apartment building and then turns it over to an owner who "will make that property a safe place to live."

Proponents will tell emotional stories, too — stories of family-owned businesses that have been run out of town to make way for a Home Depot, or of families dislocated to grease the skids for a new Costco.

Kevin Spillane, the political strategist handling the initiative campaign, said he expects a vigorous fight from the political and economic establishment. Although most of the initiative's backers, including Sen. Tom McClintock of Thousand Oaks, are Republican, Spillane said the campaign will be nonpartisan.

"We're going to have a lot of Republican big-business interests lined up against us," he said. "This is going to be classic David versus Goliath because most of the people who are the victims of eminent-domain abuse are minorities, immigrants, working-class people and mom and pop businesses."

Proponents will argue that California's redevelopment law, because it requires a finding that blight exists, is much more protective of property rights than was Connecticut's. "We're not in a Kelo situation here," Taylor said.

The fault lines are already beginning to form. Voters will be pushed from each side.

Which will they believe is the greater threat: the government knocking on their door with an eviction notice, or libertarians who want to take away the government's ability to reshape a neighborhood for the public good?

We'll find out in the fall, after a considerable amount of rumbling.

Ventura County Star: http://venturacountystar.com

School district to reconsider eminent domain: KRDO-TV (Colorado Springs CO), 5/19/06

Monument School District Plans To Buy Ranch Through Eminent Domain Drew National Attention

By Dave Rose

Lewis-Palmer Monument School District 38 is having second thoughts about its plan to use condemnation to acquire the Wissler Ranch and build a new high school on the property.

The school district has come under heavy criticism from critics of condemnation.

87 year old Marie Wissler lives on the ranch and doesn't want to sell it.

District 38 says its taking a second look at several alternate sites it previously rejected.

KRDO-TV: http://www.krdotv.com

Curb on eminent domain could go to Missouri voters: Kansas City (MO) Business Journal, 5/19/06

By Jim Davis

Missouri voters could consider a referendum in November on a state constitutional amendment that would sharply curtail eminent domain's use, board members of the Economic Development Corp. of Kansas City heard on Friday.

The initiative needs to be certified by the Secretary of State, said Greg Williams, an aide to Kansas City Mayor Kay Barnes. State officials must verify that the petition received about 145,000 valid signatures. Williams said the review will take until August.

EDC Chairman Warren Erdman said this timetable would leave little time for supporters of the state's current eminent domain to mount a campaign to preserve the status quo. These efforts would be coordinated by Missourians for Responsible Growth, a lobbying group.

Eminent domain was hotly debated during the General Assembly's session, which ended May 12.

The Legislature passed House Bill 1944, which continues to let blighted property be condemned for private development. This power was essential in assembling property for H&R Block Inc.'s new downtown headquarters.

The law, which takes effect Aug. 28, also requires a premium to be paid for "historic homesteads," residential property that has been held by the same owner for at least 50 years.

Williams said Barnes supports the law, though provisions such as the historic homestead premium are onerous. But he said this compromise would be nullified if voters approve the constitutional amendment.

Missourians in Charge, the group that circulated the petitions, is led by Kansas Citian Patrick Tuohey.

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

Sebelius signs bill to restrict eminent domain: Kansas City (MO) Star, 5/19/06

By Steve Painter

[Kansas] Gov. Kathleen Sebelius signed a bill Thursday placing new restrictions on cities’ ability to force owners to sell their properties.

Future use of eminent domain powers for economic development will require legislative approval.

That provision does not take effect until July 1, 2007. Lawmakers delayed the effective date so projects already under way could continue. They also assigned the topic to a study committee, which could recommend further revisions before the law takes effect.

In Kansas and across the country, legislatures have taken up proposals to restrict forced property sales after a 5-4 U.S. Supreme Court ruling last year upheld the practice.

“While we promote economic growth, we also need to respect the important rights of property owners,” Sebelius said in a prepared statement. “This bill strikes an important balance between the two, while also setting out clear guidelines that help enhance the rights of property owners.”

After July 1, 2007, taking private property for the purpose of transferring it to another property owner will be permitted without legislative approval if the property is deemed unsafe for occupation, has a defective title or ownership cannot be determined, or it is to be used by a public utility, pipeline company, gas-gathering service or railroad.

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

City puts limits on use of eminent domain: Simi Valley (CA) Acorn, 5/19/06

By Michelle Knight

The city of Simi Valley will not take homes and hand them over to developers.

The city council approved a resolution last week that prohibits Simi Valley from using eminent domain against residential property owners, except when widening streets and providing public facilities and infrastructure.

A public agency must pay the owner a just price for the property when using eminent domain.

"I want to thank Glen (Becerra) for pushing that issue," Mayor Paul Miller said. "I think it puts people at ease."

Earlier this year, Councilmember Becerra asked that the city establish a clear policy that protected homeowners' rights. Last year the U.S. Supreme Court ruled in a Connecticut case that local governments could take property through eminent domain and hand it over to developers for the purpose of economic development.

The ruling sent chills down the backs of homeowners and some legislators. Several states and cities responded by limiting their use of the policy. California has yet to pass any significant legislation to modify its use of eminent domain.

Simi Valley has exercised its power on rare occasions but never to acquire residential property that resulted in a home being demolished or left unlivable.

Brian Gabler, the city's economic development director, said the last time the city seized property was in 2003 after negotiating with the owner of a "blighted" parcel at Tapo and Eileen streets for more than two years.

Redevelopment plans for the old Sears and Pic N Save property include building townhomes, senior apartments and office and retail space.

The city also acquired industrial property through eminent domain for the construction of the Madera Road and 118 Freeway interchange and residential land for the widening of Alamo and Cochran streets through eminent domain.

The policy, which goes into effect immediately, doesn't affect the city's right to use eminent domain in acquiring commercial and industrial property, however, and in acquiring residential parcels for street widening projects.

The Acorn: http://www.simivalleyacorn.com

Public advocate releases eminent domain plan: The Daily Record (Parsippany NJ), 5/18/06

By Gregory J Volpe

[new Jersey] Public Advocate Ronald K. Chen released his proposals today to protect residents from government unfairly taking their land for development. [The report is online at http://www.state.nj.us/publicadvocate.]

Billed as his first major task since taking office as New Jersey's first public advocate in more than a decade, Chen's report calls for:
  • More specific and objective criteria to deem a property blighted.
  • Giving property owners more notice of redevelopment plans and an opportunity to redevelop themselves.
  • Compensating homeowners who lose their property based on what it would cost to buy a similar home in town.

Chen is scheduled to discuss his proposals at 2 p.m. today before the Assembly Commerce and Economic Development Committee, which has been studying whether eminent domain laws need to be changed.

Sen. Ronald L. Rice, D-Essex, chairman of the Community and Urban Affairs Committee, today announced legislation that he says would require adequate notice and public forums before land is taken and fair market value if it is taken.

The Daily Record: http://www.dailyrecord.com

Court rules Bridgeport can take Steel Point by eminent domain: WTNH-TV (New Haven CT), 5/17/06

A Superior Court judge has rejected an attempt by United Illuminating to block the city of Bridgeport's plans to take the power company's Steel Point property by eminent domain.

Judge Richard Gilardi says the city has met all its legal requirements to take the 11-acres for an economic development project.

But the judge says he will wait to issue the city a certificate of taking, pending a decision on the takeover by the state Department of Public Utility Control.

The company and the city told state regulators yesterday they will need several weeks to resolve a dispute over the price of the parcel and cleanup costs.

The city plans to put apartments, shopping a hotel and a marina on the land.

WTNH-TV: http://www.wtnh.com

Eminent domain task force focuses its attention on blight: Columbus (OH) ThisWeek, 5/18/06

By Michael J Maurer

The [Ohio] General Assembly's eminent domain task force changed directions May 11, electing to back off an examination of a constitutional amendment to address controversial takings of private properties for economic development.

Instead, the task force focused on blight and compensation to aggrieved property owners.

One of the key questions the task force decided to examine was whether the state should adopt a law that prohibits governments from taking private property from one landowner to give it to another "solely" for the purpose of economic development.

"The operative word would be 'solely,'" said state Rep. Bill Seitz (R-Cincinnati), task force co-chair along with state Sen. Tim Grendell (R-Chesterland).

Task force members said they thought such a provision would be a good strategic move in light of general public outrage against takings.

"I like where you're going with that, politically," said Gene Krebs, director of Greater Ohio, a land use policy organization that supports farmland preservation and economic development.

However, the task force members also acknowledged that such a provision would be essentially meaningless, since it would be rare that any government entity would ever acknowledge only a single purpose for taking private property.

"Anybody that could be so stupid as to say that doesn't deserve to take it anyway," Seitz said.

One of the other main grounds that justifies the government's involuntary taking of private land is "blight," and the task force decided to focus much of its attention on how blight is defined and used.

The importance of blight to the question of eminent domain was demonstrated by the progression of the task force's organization of its subcommittees: The co-chairs initially suggested four working groups, but almost no members wanted to serve on any subcommittee except the one that dealt with blight.

As the May 11 meeting began, Grendell and Seitz initially agreed to establish four subcommittees to look at takings procedures; compensation issues, such as whether governments should pay "supercompensation" and homeowners' attorneys fees; the definition of "blight," which allows the government to take homes in blighted areas even if the homes are sound; and a fourth subcommittee to look at the necessity for a constitutional amendment.

After objections from the state director of development, Lt. Gov. Bruce Johnson, and task force member Richard Tranter, a proponent of strong government takings powers, Grendell and Seitz agreed to drop the constitutional amendment subcommittee.

Once the roll call began, however, it became clear that almost none of the task force members were interested in either the procedures subcommittee or the compensation subcommittee. Instead, nearly everyone wanted to participate in how the state would define blight.

Faced with such lopsided interest, the task force decided to create only two subcommittees, one to examine compensation and procedural issues and a second to examine the meaning of blight. In addition to deciding whether to ban "solely" economic development takings, the blight subcommittee also decided to examine how blight is defined, what percentage of land within a takings area must be blighted and how home-rule governments would be affected by state law on eminent domain.

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

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

In addition to periodic regional meetings that are being held for public comment outside of Columbus, the task force agreed to meet again May 25 at the Statehouse in Columbus. Its final report, to recommend any changes to state takings law, is due Aug. 1.

Columbus ThisWeek: http://www.thisweeknews.com

Eminent domain headed to House floor again: WIS-TV10 (Columbia SC), 5/16/06

[South Carolina] House members who oppose requiring local governments to compensate property owners for zoning decisions were successful today in keeping the amendment out of eminent domain legislation.

The House Judiciary Committee voted 11-10 to remove the regulatory takings amendment from the proposed constitutional amendment, just minutes after members voted by the same margin to add it.

The measure cleared the Senate in February.

It now heads to the House floor, where the issue will be debated for the second time this session.

WIS-TV10: http://www.wistv.com

Eminent Domain — Looking for consensus on the N.J.Commerce & Economic Development Committee: New Jersey Eminent Domain Law Blog, 5/17/06

By William Ward

Assemblyman John Burzichelli, D-3, Chairman of the Commerce and Economic Development Committee, will recommend a consensus bill in June which will attempt to address eminent domain issues. Eminent domain has been the subject of two committee hearings held in the past few months.

Assemblyman Burzichelli and his committee will attempt to draft a bill which will be an amalgamation of eminent domain revisions suggested in over a dozen bills introduced by legislators in 2006. An outright ban on the use of eminent domain for economic development is not in the cards, nor is a moratorium on the use of eminent domain as has been suggested by several legislators.

What is unclear is how Assemblyman Burzichelli’s efforts interplay with Public Advocate Ronald Chen, who has been charged by Governor Corzine to address the eminent domain issue and prepare a report to the governor and the Legislature, presumably recommending eminent domain revisions. The Public Advocate has been invited to brief the Assembly Commerce and Economic Development Committee on his fact finding regarding the use of eminent domain for economic development purposes at tomorrow's meeting.

Burzichelli announced at the committee meeting on May 11 that the modifications are geared to changes in The Local Redevelopment and Housing Law (P.L. 1992, c.79). We have said before, and it’s worth repeating, eminent domain reform cannot be done piecemeal. The Legislature and the governor need to consider comprehensive reform which will address the following laws:
  1. The Eminent Domain Act of 1971, N.J.S.A. 20:3-1 et seq.
  2. The Relocation Assistance Act, N.J.S.A. 20:4-1
  3. The Relocation Assistance Regulations, N.J.A.C. 5:11-1
  4. The Local Redevelopment Housing Law, N.J.S.A. 40A:12-1 et seq.

A comprehensive reform can only be accomplished over a six month period by a bipartisan committee composed of retired judges, academicians, eminent domain practitioners, representatives of municipalities, the Department of Transportation, and other condemning authorities. Anything short of a comprehensive review will be mere window dressing on a problem which should be given the full attention of the assembly, senate and the governor.

At the May 11 meeting, Assemblyman Burzichelli's committee considered the following bills:
  • A-537 sponsored by Assemblyman Michael Panter, which would prevent the use of condemnation to acquire residential property under redevelopment laws.
  • A-582 sponsored by Assemblyman Kean, which establishes minimum amounts for eminent domain relocation assistance and additional homeowner payments.
  • A-1220 sponsored by Assemblyman Diegnan which requires DCA approval for designation of areas in need of redevelopment and requires referendum before condemning land for private economic development.
  • A-1290 sponsored by Assemblyman Louis Manzo, which requires “just compensation” for condemnation of single-family residences to be based on cost of comparable relocation properties.
  • A-2017 sponsored by Assemblyman Sean Kean, which would require increased notice to affected property owners for proposed redevelopment and rehabilitation areas.
  • A-2018 sponsored by Assemblyman Sean Kean, which would require payment of an extra $100,000 to owners whose property is condemned for private economic development purposes.
  • A-2019 sponsored by Assemblyman Sean Kean, which would require municipal referendum prior to condemnation of private property when sale or transfer to private entity for economic development purposes is contemplated.
  • A-2423 sponsored by Assemblywoman Charlotte Vandervalk, which would place a temporary moratorium of 48 months on certain uses of eminent domain and create the Eminent Domain Study Commission to examine its use Statewide.
  • ACR-138 sponsored by Assemblyman Richard Merkt, which would propose a constitutional amendment to limit exercise of eminent domain to acquisition of land for essential public purposes.
  • ACR-161 sponsored by Assemblyman Michael Patrick Carroll, which would propose a constitutional amendment to limit the use of condemnation to traditional public purposes and repeal constitutional provision allowing condemnation and long-term tax exemptions for redevelopment projects.
  • ACR-168 sponsored by Assemblyman Christopher Connors, which would propose a constitutional amendment to restrict use of condemnation power against non-blighted property for private economic development purposes.

Seven legislators testified: Assemblymen Robert Gordon, Richard Merkt, Joe Pennachio, Sean Kean, Louis Manzo, Guy Gregg, and Assemblywoman Charlotte Vandervalk. All the lawmakers testified to the public's desire to see eminent domain reform.

New Jersey Eminent Domain Law Blog: http://www.njeminentdomain.com

Eminent domain legislation whisks through Minnesota Legislature: ECM Publishers Inc (Coon Rapids MN), 5/16/06

By T. W. Budig

Less than a year after a controversial U.S. Supreme Court decision affecting the taking of private property, eminent domain reform legislation whisked through the Minnesota Legislature on Monday (May 15).

“It (the legislation) takes away the unfair advantage government has when negotiating to take private property,” said Sen. Tom Bakk, DFL-Cook, Senate eminent domain bill author.

The U.S. Supreme Court’s Kelo v. City of New London decision last summer — a decision affirming a city’s right to take private property and transfer ownership to a private developer — amplified the previously quiet eminent domain reform debate at the Capitol.

Republicans and DFLers rallied around the issue — House and Senate quickly passed bills — and the eminent domain conference committee conferees speedily sent a final bill to their respective floors.

Several provisions in the reform legislation affect business.

For example, if a business is destroyed by an eminent domain action — something the owner must claim within 60 days of their first court hearing — the owner could be compensated beyond the loss of buildings but for the entire business.

Another provision could have them paid for the loss of driveway access.

In one of the more controversial provisions, the attorney fees and cost of fighting an eminent domain action must be picked up by the condemning authority when the final cost of damages is judged at least 40 percent greater than the last offer.

Attorney fees may be awarded
Courts may award attorney fees when final judgement is determined to be from 20 percent to 40 percent higher than last offer.

“The attorney fee provision was a big victory for small business and any other landowner and it will help a lot of people,” said Mike Hickey, state director of the National Federation of Independent Business.

In another business-related provision, condemning authorities must reimburse business owners up to $50,000 to help reestablish their displaced business.

Rep. Mary Liz Holberg, R-Lakeville, said the reform legislation could increase the cost of highway projects.

But she believes the public will accept the additional cost as long as people are being treated fairly.

House Minority Leader Matt Entenza, DFL-St. Paul, called the legislation a “good accomplishment,” a credit to bipartisanship.

Not all lawmakers were pleased.

Rep. Barb Goodwin, DFL-Columbia Heights, argued passage of the bill will leave her city stuck with a redevelopment project already costing $1 million and likely to cost more. “I’m disappointed, obviously. My city is disappointed. My taxpayers are disappointed,” she said.

But Rep. Jeff Johnson, R-Plymouth, House eminent domain bill author, countered that it was “a bit of a stretch” to believe the reform would result in Columbia Heights being stuck with a untenable project.

The eminent domain bill passed the Senate on a 56-9 vote.

It passed the House 115-17.

Other bill provisions:
  • The “right of eminent domain” will be changed to the “power of eminent domain” in state law.
  • Prior to the start of an eminent domain proceedings, the condemning authority must hold a public hearing at which interested parties must be given time to testify.
  • When a condemning authority is taking property for blight mitigation, to address a public nuisance, or for contamination remediation, it must identify the public costs and benefits — how the action serves the public good.

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

Don't oversimplify the eminent-domain issue: Providence (RI) Journal, 5/15/06


By Daniel W. Varin

THE MAY 4 Commentary column "Time to reform eminent domain in Rhode Island," by Scott Bullock and Justin Gelfand, starts with the phrase "Your land is not yours anymore."

This preposterous claim probably achieved its objective: to scare the public. In fact, people who own land will continue to do so until they sell it, give it away, or fail to make their mortgage payments and lose it to foreclosure.

A very small percentage of all land sales are made through eminent domain. The chances of this happening to any of your readers are extremely small.

Eminent domain is one of three powers of state governments. States delegate this power to utility companies and to their local governments and other agencies, often for very limited purposes. But the Institute for Justice is trying to peddle the notion that this can happen to anyone at any time, for no clearly stated reason.

The U.S. Constitution says that private property shall not be taken for public use without just compensation. State constitutions include the same or very similar language. "Public use" has for a century and a half been interpreted as use by a government, not by private persons.

But this distinction has never been clear-cut. Land has always been acquired by eminent domain for roads although the roads' users are almost all private parties, in privately owned vehicles. The same blurring of meaning extends to "public" schools, in which private persons are educated, and to dams that produce water used by private parties to drink, cook, wash, water lawns, and fill swimming pools. Land for parks is often obtained by eminent domain although the benefits accrue almost entirely to private parties.

The meaning of "public use" has changed as the needs and concerns of society have changed. It was extended to permit acquisition of dilapidated or unsafe buildings, and entire blighted areas, more than a half-century ago, although most of the underlying land was later re-used for private purposes. Brownfields are another situation in which communities may wish to acquire abandoned property, achieve a private re-use, and thereby strengthen their tax base. In these and other instances, eminent domain has often been the only way to determine who owns a piece of land.

Use of eminent domain for economic development is a more recent event, but does not different greatly from the other uses accepted as "public" over the years. Yet it has aroused controversy and is often accompanied by significant pros and cons. The authors of the May 4 article cite the case of Joseph Mollo Jr., in Smithfield, a case that illustrates both.

The authors cite an important "con": loss of a profitable small business and the home of its owner. This is a real loss, and cannot be shrugged off. But the authors somehow forgot to mention the "pro" side: A private company has decided to build a private building on private property for its private business, and will employ 1,000 people to do.

The authors don't address that all communities must deal with the use of land and buildings as a never-ending process. Towns and cities must adapt their patterns of development to changing economies and changing site requirements, and must accommodate activities not thought of (or even existing) when earlier, now obsolete development occurred.

This is a difficult, often disruptive process, particularly in older industrial centers saddled with multi-story buildings in flood-hazard areas not accessible by arterial highways and closely surrounded by housing — buildings that have no place in economic development when traditional manufacturing has moved to other countries. Use of eminent domain is sometimes essential to the continued vitality of these communities, especially if they depend on property taxes for revenue to support such "public" services as police and fire protection.

The May 4 article's authors, despite their substantial failings, are correct in asserting that it is "[t]ime to reform eminent domain." Yet reforms must be carefully thought through, and their effects, both desired and undesired, must be identified. A blanket exclusion of the admittedly dangerous power of eminent domain is not reform.

Subjects for informed examination include careful definition of "public use," through determination of the kinds of public activities meant by the phrase; ensuring that the "just compensation" demand of both of our constitutions is achieved; placing the responsibility for decisions to use the power of eminent domain in elected bodies; and, most important, making use of eminent domain only as a last resort, after all other alternatives have been eliminated.

Providence Journal: http://www.projo.com

Daniel W. Varin is a former director of the Rhode Island State Planning Office


Mayor Using Eminent Domain to Take Family Farm: The Conservative Voice, 5/14/06

By Sher Zieve

Piscataway, New Jersey Mayor Brian C. Wahler is said to be using eminent domain to take the family-owned Halper farm. In 2005, the US Supreme Court ruled in Kelo v New London that the US Constitution’s eminent domain clause now allows private developers in conjunction with municipalities to seize citizen-owned private property — if a community’s tax base will be increased by the seizures and subsequent new developments.

Logan Darrow Clements, who recently worked toward creating the Lost Liberty Hotel, advised in a Saturday e-newsletter that he and his crew had attempted to interview Wahler. Clements wrote: “We found Mayor Wahler and started questioning him. He walked away. We followed him and kept questioning him. Within a few moments police officers confronted us. Wahler's answer was that the farm was being taken for "open spaces". When I indicated that a farm is already an open space he walked off again. Now a large group of police officers surrounded my two cameramen and myself. The police formed a circle around us and demanded our identification papers. We refused. One of the officers grabbed my arm as if to take me away. Other officers did their best to block the cameras.”

Clements advised the confrontation with the city’s police continued with: “By now we were surrounded by an even larger swarm of police officers that were demanding our identification papers while at the same time demanding that we leave. I made reference to a once-popular document called the Constitution with its provisions of freedom of the press and freedom of speech. This was of little interest to the police officers surrounding us.”

The Mayor and City of Piscataway claim that the township has “been in litigation with the proprietors of the family owned Halper Farm property for years” and that “parts of the property contain hazardous contaminants”. Halper family members have until 24 May to vacate their property.

The Conservative Voice: http://www.theconservativevoice.com

City acts to skirt eminent domain bill: Miami (FL) Herald, 5/12/06

A week after the Legislature approved a bill aimed at curbing local governments' use of eminent domain, the City Council here pushed ahead with a contract for a massive redevelopment project that could displace more than 5,000 residents.

Council members on Wednesday approved a contract with developer Viking Inlet Harbor Properties that they hope will protect the city's right to build the $2.4 billion waterfront redevelopment, even if the use of eminent domain is necessary.

The move will likely now pit the city against state lawmakers who stripped municipalities like Riviera Beach from using its eminent domain powers to seize personal property to hand over to private developers.

''We know our enemy is now the Legislature,'' said Mayor Michael Brown, who insists the project will benefit all residents in this downtrodden town, even those who may be displaced.

Gov. Jeb Bush has not yet signed the bill into law.

Riviera Beach officials claim that the Legislature's actions violate their constitutional right under a clause that lawmakers cannot interfere with an existing contract, and that they should be exempted from the restrictive bill.

''Governor Bush intends to sign the legislation as soon as he receives it,'' Bush spokesman Russell Schweiss said Thursday. ``It is important to protect Floridians from having their property taken away from them by local governments, only to then have it given away to a private developer for their profit.''

Schweiss did not address how the city's hasty contract approval may affect the overall protections.

Fort Lauderdale attorney Bruce Rogow, a constitutional law expert, said Riviera Beach may have acted just in time.

''It's not a law until the governor signs it,'' Rogow said.

Miami Herald: http://www.miami.com/mld/miamiherald

Eminent Domain Ruling Raises New Questions About Initiative Petition: KOTV-6 (Tulsa OK), 5/14/06

A[n Oklahoma] state Supreme Court decision involving an eminent domain case in Muskogee County is the best evidence yet that an initiative petition to beef up state eminent domain guidelines is not needed, according to opponents of the plan.

But supporters say they won't give up and will pursue the proposed constitutional amendment until voters have a chance to decide the issue at the ballot box.

``I think it's still needed,'' said Rick Carpenter of Tulsa, spokesman for the citizens group Oklahomans in Action, which spearheaded the initiative petition drive. ``Interpretations of the law can change. Codifying the law is a good idea.''

The initiative petition was delivered to the state's highest court in January after the Secretary of State's Office verified that 163,375 signatures had been collected. The group needed 117,101 signatures to get the issue on a statewide ballot.

But the measure, State Question 729, remains in the Supreme Court, where a coalition of business groups led by The State Chamber has challenged it.

``Our eminent domain law is working,'' said Ronn Cupp, vice president of The State Chamber. ``Our position is we don't need it.'' Other organizations involved in the legal challenge are the Oklahoma City Chamber of Commerce and the Oklahoma Professional Economic Development Council.

Opponents are concerned that changing eminent domain guidelines might interfere with urban renewal projects where blighted areas were condemned to make way for private commercial or residential development in the state, like University of Oklahoma Health Sciences Center in Oklahoma City.

Supporters hope to resolve the challenge in time for the November general election.

Eminent domain is a legal term that refers to the lawful power of the state to expropriate private property without the owner's consent, either for its own use or on behalf of a third party.

It is most commonly used by government when property is needed for a public project, like a road, and the owner of the required property is unwilling to negotiate a price for its sale.

Opponents of eminent domain were energized last year after the U.S. Supreme Court allowed the use of eminent domain in Connecticut to take property and give it to a private party for economic development.

The case, entitled Kelo v. City of New London, Conn., said the U.S. Constitution allows governments to condemn private property if its development would benefit an economically distressed city.

``I think there's been a great deal of concern over the Kelo case,'' said Bruce Niemi of Tulsa, head of Protect Our Homes. ``Blight has always been kind of a term of urban planners to just go in wholesale and destroy neighborhoods. But one person's blight might be somebody else's long-term home.''

The initiative petition would prohibit state and local governments from condemning private property under eminent domain when it intends to transfer the property to a person, business or corporation for economic development.

Government could still use eminent domain to condemn private property for purposes of public use and to clean blighted areas.

New questions were raised about the initiative petition last week when the Oklahoma Supreme Court handed down a 22-page decision in which justices said economic development alone cannot be construed as a ``public purpose'' that justifies the seizure of property by public entities.

The Supreme Court ruled it is unconstitutional to acquire private property for right of way easements for water pipelines, two of which would solely service Energetix, a private electric-generating plant proposed for construction and operation in Muskogee County.

``The court was pretty strong,'' said Cupp of The State Chamber. ``It basically said, Muskogee County, you can't do this for economic development. That was really a reaffirmation of what we said since Kelo came out. We're not like Connecticut.''

Supporters of the initiative petition agreed that the high court's decision was a victory for citizens who want to rein in government's eminent domain powers.

``It certainly supports the goals of the eminent domain petition,'' Niemi said. The decision indicates that eminent domain guidelines in the Oklahoma Constitution are tougher than the U.S. Constitution's 5th and 14th amendments' prohibition against the taking of private property for public use without due process and just compensation.

But Niemi said a court's interpretation of the law can change over time as priorities and members of the court change. He also said the decision did not address issues where government acts as a middle man and acquires property that is then turned over to private developers, as in the Kelo case.

``We do feel that there is still a need,'' said Pat Highland of Tulsa, a member of Oklahomans in Action. ``Anytime you're dealing with landowners, you have all kinds of issues. We need solid laws on the books.''

The eminent domain petition is one of two that Oklahomans in Action have pending before the Supreme Court. The other is the so-called taxpayers bill of rights in which state government spending is limited to increases in population and inflation.

Like eminent domain, the TABOR petition is being challenged. In both cases, opponents allege the initiative petition drives were funded primarily by out-of-state anti-tax organizations in violation of state law.

The state Constitution requires anyone who circulates an initiative petition to be a qualified elector of the state, meaning at least 18 years old and a resident. Signatures taken by an unqualified circulator can be thrown out.

KOTV: http://www.kotv.com

Try a compromise: Philadelphia (PA) Inquirer, 5/12/06

Letter to the Editor

By Mary Berko

In Haddon Township [New Jersey], the potential use of eminent domain for a redevelopment project is far different from the situation in Camden.

In Camden, activist Carmen Ubarry-Rivera and others disagree on the need to designate parts of her Cramer Hill section as blighted and in need of redevelopment.

Everyone in Haddon Township agrees that the site of the defunct Dydee Diaper Service plant is blighted and recognizes the need to redevelop it.

Unfortunately, included within the designated redevelopment area are some very well-maintained business properties and houses owned by taxpaying business owners and residents who do not wish to negotiate a sale to the chosen developer.

That is their right, but the threat of eminent domain looms.

The plans for the site may indeed be attractive and add to our tax base, but at the expense of forcing out taxpaying residents.

The obvious benefit is to the out-of-town developer who reaps more profit.

The township's commissioners and planning board should fight to protect the rights of property owners.

Residents of Haddon Township should go to the planning board meeting at 7:30 p.m. Monday and voice their support of property owners' rights.

Insist that the developer limit his plans by excluding those property owners who do not wish to sell. It is time to compromise and move on.

Philadelphia Inquirer: www.philly.com

Mary Berko is a resident of Haddon Township

Let the people stay: Philadelphia (PA) Inquirer, 5/12/06

Letter to the Editor

By Bill Potter

Using eminent domain and redevelopment laws to remove lower-income people for the purpose of attracting wealthy people creates a human problem. It is government-sponsored gentrification, if not worse.

The United Nations convention on genocide prohibits the targeting of population groups for physical or mental harm based on their membership in certain identity groups, such as religion or race.

That's not why the framers of the [New Jersey] state constitution adopted Article VIII, Section 3 permitting legislation to combat blight.

People are not sources of blight. Properties are - if they are abandoned, contaminated, uninhabitable, drug houses, etc.

Only specific properties should be subject to blight declarations and potential eminent-domain takings. Even then, the first effort should be to rehabilitate them, not tear them down in hopes a redeveloper will carry out his promises.

That brings up another easily overlooked downside to the process: Developers promise revitalization but may deliver only delay and demands for concessions, tax abatements and the like, until the bulldozed land finally becomes what it was not before: a source of blight.

Philadelphia Inquirer: www.philly.com

Bill Potter is chairman of the New Jersey Coalition Against Eminent Domain Abuse

Redevelopment helps: Philadelphia (PA) Inquirer, 5/12/06

Letter to the Editor

By Angel Fuentes

Eminent domain is a frightening term. In fact, it is only one tool available to a community striving to achieve redevelopment goals that bring widespread and long-lasting benefits. In Camden, it is absolutely the last resort.

As president of Camden City Council, I have grappled with redevelopment questions regularly for more than three years.

Our city needs a stronger tax base. Our housing stock is generally older than 50 years and needs rehabilitation. Long-term economic dependency on the state is not feasible.

If we turn our back on redevelopment, we will lead our citizens further down a destructive path. This is our opportunity to set Camden in a positive direction.

Our tax base has practically vanished. Industry once concentrated in Camden is either defunct or spread throughout the region. Our schools are troubled. Our crime rate, while declining, is the subject of national news. Houses are abandoned or falling down in just about every neighborhood.

But all is not lost. Redevelopment - in which the city's business, industrial, governmental, medical and educational base works in concert with its strong and diverse communities - will lift the city from its dire circumstances.

Redeveloped neighborhoods can bring about economically and ethnically integrated communities that build our tax base. Job opportunities will increase at our hospitals, universities and industrial centers.

A stronger tax base translates into improved schools, city services and police protection.

Redevelopment projects require lots of adjoining land to be successful. Blocks rather than individual properties must be addressed.

Eminent domain - a hot-button issue nationwide - refers to the forced purchase of property from an owner to redevelop the land. Before this tool is used, the city negotiates purchase and relocation options with the owner, including:

Fair market value for the property, based on an independent appraisal.

For homeowner occupants, a brand-new replacement house of a size similar with the same mortgage.

Expenses to move anywhere they choose in Camden or within 50 miles.

If none of these options is satisfactory to the owner, and the city still needs the property for redevelopment, the use of eminent domain can become a reality. Indeed, we have gone beyond redevelopment laws to ensure choices and opportunities for residents.

The words eminent domain instill fear in our citizens because they are tossed around as a weapon by the uninformed, who wish only to keep Camden's residents in a lower quality of life.

Citywide redevelopment will create a better quality of life for all citizens, those who may be relocated, newcomers, and our longtime residents.

Philadelphia Inquirer: www.philly.com

Angel Fuentes is President of the Camden NJ City Council

N.J. strives to curtail eminent domain: (Camden NJ) Courier-Post, 5/12/06

By Richard Pearsall

Eighteen states have imposed restrictions on eminent domain in the wake of last summer's U.S. Supreme Court ruling that government may seize private property to promote development by private interests.

New Jersey is among 21 other states considering changes to answer the backlash the high court's decision created.

Assemblyman John Burzichelli, D-Paulsboro, said Thursday that the Assembly Commerce and Economic Development Committee he chairs will have what he calls a "consensus" bill ready for consideration when it meets next month.

Burzichelli made his prediction at the close of a hearing at which the committee took testimony from a half-dozen legislators on the topic. The legislators offered proposals ranging from tinkering with the amount of compensation that property owners receive to amending the state constitution to prohibit the condemnation of any private property for private use.

An outright prohibition of eminent domain for private use seems unlikely to win approval in a state where hundreds of redevelopment zones have been created, despite the impassioned pleas of legislators such as Guy Gregg, R-Washington Township, Morris County.

"Personal property should be yours unless you horribly abuse it," Gregg said.

More than a dozen bills have been introduced in the Legislature concerning eminent domain.

Burzichelli hopes to craft a single bill that will advance with the support of the Democratic leadership.

"Our idea is that these ideas, plus others, will be assembled in a compromise bill," Burzichelli said at Thursday's hearing.

His committee has held two previous hearings on eminent domain, one to hear from experts, the other to take testimony from the general public.

Speaking for a coalition that includes both the New Jersey League of Municipalities and NJ Future, a nonprofit group that promotes so-called "smart growth," Assemblyman Robert Gordon, D-Fair Lawn, outlined a number of principles around which, he said, a consensus has formed.

Among those principles are a more transparent process, including more public involvement in the selection of developers; more specific criteria to define blight; and greater compensation for those whose property is taken.

"These are principles we've heard from everyone," Burzichelli said.

Assemblywoman Charlotte Vandervalk, R-Montvale, urged the committee to endorse a moratorium on the use of eminent domain until a study commission can determine the right course.

"Our intention is to take a run at it," Burzichelli said. "If we stall, we'll look for an alternative."

Courier-Post: http://www.courierpostonline.com

Rendell signs eminent domain bills into law: Main Line Times (Ardmore PA), 5/11/06

By Cheryl Allison

Ardmore was a prime example throughout Pennsylvania's debate on tightening eminent domain laws.

So it was only fitting that, when Gov. Ed Rendell signed two bills into law, Ardmore business owners were at his side.

Betty and E-ni Foo, owners of Hu-Nan Restaurant on Lancaster Avenue, were invited guests at a ceremony last Thursday afternoon at the Bellevue Hotel in Philadelphia, as Pennsylvania became the 18th state to enact eminent domain reform since the U.S. Supreme Court's Kelo decision last June.

After two years of uncertainty, while the business they have operated for 30 years was under threat of taking and demolition as a part of Lower Merion Township's Ardmore Redevelopment Plan, E-ni Foo said the signing was not just a relief for his family.

"When he signed the bills, it really represents the victory of the common people," he said.

The pair of bills, which passed both the state House and Senate on unanimous votes late last month, significantly narrow the circumstances under which local governments and other agencies can take private property. They take effect in 120 days.

Senate Bill 881, the Property Rights Protection Act, generally prohibits the taking of property for private enterprise, while maintaining governments' rights to use eminent domain powers for public uses such as roads. It also redefines the standards under which properties can be declared blighted and taken for redevelopment, and sets a time limit on the blight declaration.

House Bill 2054, a companion bill, sets a structure for the revised eminent domain code, spelling out the process by which properties can be condemned, the notice that must be given, and how property and business owners will be compensated.

The legislation "protects the rights of property owners above all other interests," Rendell said in a statement. "Eminent domain should be used in a community's best interests, not the specialized interests of a few," he added. "This law will provide an important tool for state and local governments to take action on private lands and properties when necessary, but keeps a property owner's rights intact."

In Kelo, the nation's highest court set off a firestorm of dissent by finding, in a 5-4 decision, that private properties could be taken and turned over to a private developer for a public purpose of economic development, rather than the higher standard of public use. The U.S. House of Representatives responded by passing a resolution within days that federal funds should not be used for such projects.

Since last June, legislatures in 47 states have introduced, considered or passed legislation to reform their eminent domain codes.

The court decision also struck a chord in Lower Merion, where the township, having declared an area of downtown Ardmore blighted, had adopted a redevelopment plan that envisioned the taking and demolition of several properties in a block of Lancaster Avenue's historic business district.

In state hearings, Ardmore, and the Foos' situation in particular, became an illustration of the problems of a too-broad definition of blight and the potential impact of eminent domain for private development.

In March, with five newly elected members and state eminent domain reform on the horizon, Lower Merion's board of commissioners passed a resolution, effectively taking eminent domain for private enterprise off the table and reopening options for Ardmore redevelopment.

At the same time, groups like the Save Ardmore Coalition, which formed to fight the use of eminent domain in the township's plan, continued to push for passage of the state legislation. Sharon Eckstein, SAC's founding president and current vice president, said with the signing, one of the group's goals has been achieved. "We set our eyes on local things, the local election and the resolution, and then statewide and federal goals."

There are exceptions under the new laws. In a compromise that helped get SB881 passed, certain municipalities, including Philadelphia, Pittsburgh, Chester and Norristown, can still condemn properties in areas that have already been designated as blighted. The exemption expires in 2012. New actions in those cities will have to meet the more stringent definition of blight.

Other municipalities will also be able to take properties for redevelopment, if they meet the new standards. Properties would have to be abandoned, beyond repair, or unfit for habitation; pose environmental hazards or other threats to public safety, for example. A certain percentage of properties would have to present those conditions for an area to be declared blighted.

It was unclear this week how the new blight definition might affect Ardmore redevelopment. Lower Merion Assistant Planning Director Angela Murray said the legislation would have to be reviewed by the township and redevelopment authority solicitors.

For E-ni Foo, however, the new laws are the firmest answer he has heard in two years to his worries about eminent domain.

While he and Betty never expected to be in the spotlight, "The real important thing for us is ... how the community got together and supported us," he said. "Now we know we're going to stay,we're looking forward to the future to make Hu-Nan even more hospitable."

Main Line Times: http://www.zwire.com

Legislature fails to pass eminent domain ban: Stratford (CT) Star, 5/11/06

By Tony Giordano

Proponents of changes to Connecticut's eminent domain laws who were hoping for a special legislative session to deal with the issue shouldn't hold their breath.

A special session on the restrictions to eminent domain use is not likely, according to state Democratic leaders, including House Speaker James A. Amann, D-Milford.

The legislature failed to act on the matter before adjourning last week, after Senate Republicans tried to amend proposed legislation with language to limit eminent domain.

The effort failed mostly along party lines, causing Republicans to blame Democrats for the legislature's failure to act. Democratic leaders said there were too many unresolved issues to reconcile in the House and Senate versions of the proposed eminent domain reform bills.

Amann said those differences would have taken too long to iron out and the debate would have lasted up to last Wednesday's adjournment deadline without a resolution. "I'm not going to waste the General Assembly's time if we're not going to accomplish anything," he said. "It doesn't take a brain surgeon to know that one bill was going to die in one chamber, and another was going to die in the other. We couldn't get a consensus."

While Amann has stated publicly that he's pleased with the legislature's accomplishment in the recent session, State Sen. John McKinney, R-Fairfield said the legislature's biggest failure by far "is our inability to deal with eminent domain."

Initiatives in Connecticut and other states across the nation to limit eminent domain powers came as a result of a U.S. Supreme Court ruling a year ago involving a New London case.

The court ruled 5-4 that New London's development agency could use eminent domain to take homes in the Fort Trumbull area for an economic development project. But the court also said in its ruling that states could pass laws to restrict the taking of property through eminent domain.

Some progress made
Some Connecticut legislators said while the issue died this session, some progress was made before they adjourned. Some $200,000 was allocated for a new state property rights ombudsman who will mediate disputes and inform homeowners and municipalities of their rights and duties during eminent domain processes.

The post was created under a spending bill of the Office of Policy and Management and also was proposed in one of the eminent domain reform bills that died.

Paul S. Timpanelli, head of the Bridgeport Regional Business Council (BRBC), doesn't see a need for a special legislative session, nor does he think the state's present eminent domain laws have to be changed.

Timpanelli said, "Current laws on the books can handle any problems with eminent domain."

Connecticut property owners "are well-protected by current laws and the judicial appeal processs," he said.

The BRBC president said municipalities need access to the eminent domain process, especially to rid cities of blighted areas. He noted that Bridgeport was successful in eliminating a blighted area and replacing it with 60 units of artists' housing using the eminent domain process. "The area was run down and the building was boarded up and hadn't been used for 15 years, creating quite an eyesore," he said.

House Speaker Amann, however, is skeptical about the protections Timpanelli cited. "In my own hometown of Milford in the late 1950s, waterfront properties were taken by eminent domain with promises of a new public beach," he said. "What we ended up with was a 20-year landfill. Over the past two decades we worked hard to get past local in-fighting and earn funding support from the state to finally create what is now known as Silver Sands Beach. A great ending to be sure, but another example of questionable use of eminent domain."

Amann's position when the issue first surfaced last year was that the legislature should not blame New London for the controversy over eminent domain. "The city played by the rules and prevailed in our nation's highest court," he said at the time. "And while tempting, a blanket ban on eminent domain is unwise...It would be irresponsible to simply tie the hands of local government in a hasty reaction to an unpopular court decision."

He said Connecticut should adopt legislation that "raises the eminent domain standard to a level that exceeds what was used in the New London case.

"Several other states - with more certainly to follow - allow such taking only on blighted property," Amann noted. "This would be a good start, but we need to examine the other 80-plus references to eminent domain in state law to better protect property owners and avoid more unintended consequences."

There are "perils and consequences when eminent domain becomes part of the plan," he continued. "The door is open for Connecticut to act. Property owners can be assured that this legislature will."

A developer's viewpoint
Though people may think the Supreme Court's ruling would brighten the hearts of developers, at least one major developer in this region thinks the current eminent domain law that allows the taking of private property for economic development in Connecticut is "un-American."

Robert D. Scinto, a prominent developer who resides in Fairfield, is chairman of Robert D. Scinto Inc. of Shelton. He said Connecticut's eminent domain law "is probably the worst law anyone could put on the books.

"Anyone can make a case on any development, claiming it will benefit the community," Scinto said. "But who can say if the project they want to put up, like a hotel, will be successful?

"Yet, you took someone's private property to do it. It's so un-American that one man can take another man's property on the pretense it's going to benefit the community.

"The courts have said a state can make its own rules, and we should pass a law that says you can't use eminent domain for economic development," He said

Scinto cautioned that such municipal powers often open the doors for chicanery between public officials and unscrupulous entrepreneurs at the local level "which is worse than the California gold rush."

Stratford Star: http://www.zwire.com

Domain bill's tough talk has holes: Fairview (TN) Observer, 5/12/06

Land can still be taken, expert says

By Travis Loller

A bill designed to make it harder for the government to seize private property talks big but may not deliver the goods.

After the U.S. Supreme Court ruled last year that the city of New London, Conn., could seize 90 acres of private land for redevelopment and sale to private individuals and businesses, legislatures across the country looked to beef up their eminent domain laws. Tennessee lawmakers filed no fewer than 41 separate bills.

The one that looks likely to become law soon clearly states that eminent domain — which allows a governmental or quasi-governmental agency to seize private land for a public purpose — cannot be used to turn over land to private developers where the sole public benefit is economic, such as increased taxes and more jobs.

But the exceptions to that clause are the very things that local governments usually use to justify eminent domain seizures: building public transportation projects (such as roads and bridges), installing utilities, redeveloping blighted areas and developing industrial parks.

"An industrial park is what they did in (New London)," Harvard Law School professor David Barron said last week.

Local lawyer Jim Murphy, who practices in the area of eminent domain, said he did not know of any land seizures that have taken place in Tennessee that were not justified by one of the exceptions the new law still allows.

The new bill would not help someone like Mark Saroff, a Knoxville developer who has been buying empty warehouses in the downtown for years, hoping to turn them into housing. The redevelopment project is under way, he said, but he is being threatened with having them condemned as blighted and conveyed to other private developers.

"Anything can be determined blight," he said. "It's totally subjective."

With the exception of South Dakota, new eminent domain legislation in other states is similar to Tennessee's law, Harvard's Barron said. It talks tough but still gives local governments a lot of leeway to use eminent domain for economic development. Taking away their ability to condemn private land "would cripple a city's ability to do meaningful planning," he said. "Legislatures have been very reluctant to restrict that."

Murphy, the local lawyer, said there has been some discussion of changing the law to make it harder to abuse. For example, blighted areas are sometimes declared in neighborhoods where only a minority of the properties fit the definition for blight.

"It's the tail wagging the dog," Murphy said. "Some states have looked at tightening up the definitions of blight and requiring more scrutiny. There've been discussions about doing that (in Tennessee), and a variety of groups are interested."

The Tennessee bill, which was crafted with the help of the Tennessee Farm Bureau, does tighten the definition for "blight" somewhat. It also specifies that agricultural land can never be considered blighted.

A proposed amendment to the bill that would have required a city or county to hold a public hearing on a seizure and approve it by a two-thirds vote was tabled in the Senate on Monday. Another amendment that would have protected buildings of cultural, historic, religious, educational or economic significance also failed.

Larry Mornadi has been tracking eminent domain legislation throughout the U.S. as part of his job as director of state policy research for the National Conference of State Legislatures. He said some states are tightening the loopholes left in their new legislation.

Alabama passed a new law last year that is "very restrictive, but with an exception for blight," he said. "And their blight statute was very general. So this year they came back and amended the definition of blight."

Something similar could be in the works for Tennessee.

State Sen. Doug Jackson, D-Dickson, who co-sponsored the bill in the Senate, said that this summer the General Assembly will form a task force, which will include eminent domain experts and other interested parties, to take a more comprehensive look at the issue.

Governments derive the power of eminent domain from the Fifth Amendment to the U.S. Constitution, which says private property cannot be taken for public use without just compensation. The recent Supreme Court decision stated that "public use" has long been interpreted more broadly as "public purpose." Courts were left to decide what qualifies as a public purpose.

Harvard's Barron said the decision held that the New London property seizure was permissible because it provided economic benefit to the larger community within a comprehensive development plan, a plan that included a public investment of $70 million to clean up contaminated industrial land, fill the flood plain, build roads and sidewalks throughout the property, and build a pathway along the Thames River.

But some people have said the decision will inevitably lead to a worst-case scenario in which a Motel 6 could be seized to build a Ritz-Carlton. Some experts say that is unlikely.

"Everybody now thinks because of (the Supreme Court decision), Wal-Mart can come into a town and say, 'Take that block,' and it would be fine," New London City Attorney Thomas J. Londregan said. "But that's not what the court said."

Scott Bullock, the attorney for the other side, disagreed. "The court clearly held if land could be put to a more productive use," he said, "that is justification for eminent domain."

The Tennessee Senate bill sponsored by Sens. Doug Jackson, D-Dickson, and David Fowler, R-Signal Mountain, passed by a 31-0 vote on Monday. The companion House bill, sponsored by Rep. Joe Fowlkes, D-Cornersville, is scheduled to be heard next week.

Fairview Observer: http://www.fairviewobserver.com

Western Seafood v City of Freeport (TX) to be heard by 5th Circuit Court

The case brought by Western Seafood v the City of Freeport TX is scheduled for oral argument on June 7th at the 5th Circuit Court in new Orleans. This is the first federal appellate case to challenge a private taking since the US Supreme Court's Kelo decision.

The Western Seafood case, which involves the taking of company riverfront land for a marina development, is focused on the "impermissible favoritism to private parties" as described in Kennedy's concurring opinion in Kelo, among other issues. The Institute for Justice and the Pacific Legal Foundation have filed amicus briefs supporting the plaintiffs.

Appellate briefs and other case details are posted at:
An entry about the case by Professor Ilya Somin of the George Mason Law School is also posted on the Volokh Conspiracy website at:

Wright Gore, Western Seafood: wright@scandalinfreeport.com


Help a small farmer save the farm

We live in Harrison County Indiana. Recently, county surveyors came to our small farm and staked off part of the land in our fields and in front of our house.

We later learned they want to make the county road straighter, and want to take our land to do it. The problem is that it will only make the road straight to the end of our property. It will then again have to make a sharp turn to go around a old one-room school house that is historically protected.

I plan to fight this. There is already a road in place. And, in the 13 years we have lived here, there has only been 1 car accident — and this was more the fault of alcohol than road conditions.

The only things the project will do are to decrease the value of our property and make it more difficult for us to farm. It will not have any real impact on the traffic situation because of the turn that can not be corrected at the end of our land.

I do not know how to search for laws in Harrison County or in Indiana. Any suggestions or advice anybody could offer would be fantastic.

Please help a small farmer save the farm.

Paul and Paula Hamilton: PandP2000@aol.com


Reappraisal is set in eminent domain: Chicago (IL) Tribune, 5/11/06

By Dennis Sullivan

With eminent domain proceedings against an elderly couple's property set to begin on June 5, a Forest Preserve District committee has acknowledged the district's appraisal is three years behind the times.

Land Acquisition Committee members voted unanimously last week to order a new appraisal of the 66-acre property in southwest Will County.

The action responds to concerns raised by attorney Mark O'Toole, who represents octogenarian property owners Lawrence and Charlotte Domagalla and their adult son, Randy.

O'Toole contends the district's last offer works "an undue hardship" on his clients because land prices "have exploded" in the past 30 months.

The Domagalla property is southeast of the village of Manhattan, which is undergoing significant expansion.

The district wants the land — approximately half of the 125-acre Domagalla farm — to provide public access at the Laughton Preserve's north end, and to buffer the floodplain north of Forked Creek's centerline in the preserve.

The new appraisal is the first ordered by the district since September 2003, when commissioners authorized the eminent domain lawsuit against the Domagallas.

Jim Moustis (R-Frankfort), who chairs the district's Finance Committee, said the new appraisal would give the district "the flexibility of at least making another offer that is more in line with current market values."

The district uses eminent domain when negotiations with "willing sellers" have deadlocked, officials said. In the legal proceeding, a court official ultimately establishes a price. The district, however, typically settles most cases out of court.

Chicago Tribune: http://www.chicagotribune.com

Pate proposes bill to regulate eminent domain: Goldsboro (NC) News-Argus, 5/11/06

By Andrew Bell

Rep. Louis Pate, R-District 11, filed bills with other Republicans in both state Houses that would change North Carolina's constitution to restrict eminent domain.

The constitution would be amended so that the state government, any local government or political subdivision could not take property by eminent domain for the purpose of economic development, which includes increasing the tax base or the quality of employment in a community.

"I think it's very unfair for the government to exercise that power on a private citizen to benefit another private citizen," Pate said.

If the land is taken for the purpose of a highway that benefits the entire community, Pate said it is an understandable use of eminent domain, but it should not be used for any other economic development purpose.

The United States Supreme Court ruled last year the town of New London, Conn., could use eminent domain to take private property to construct a hotel and convention center. Pate said North Carolina legislators should prevent "going down the same road" as Connecticut.

"The Supreme Court made the determination that Connecticut was within its rights to exercise eminent domain for the private gain of someone else. It's an unfortunate decision. I don't know where in the Constitution the justices saw to give a state that kind of power," Pate said.

Bills were filed in the state Senate and House. The House bill recommended a constitutional amendment, which can only be approved through a statewide referendum.

If the bill passes, the amendment will be on the Nov. 7 ballot. Pate said the only way to ensure property rights are protected is through a constitutional amendment and this is an issue that has affected people throughout the state.

"I think it would have a very good chance of passing. Of course, it would need to be explained to the people. But this has touched a raw nerve with a lot of people and they'd be more than willing to explain this to those that are unfamiliar with it," Pate said.

Goldsboro News-Argus: http://www.newsargus.com

Eminent Domain Victim's House Saved From Wrecking Ball...For Now: FOX19 (Cincinnati OH), 5/19/06

The 80 year old woman forced from her home over the weekend is getting a temporary repreive.

However the news might have come a little too late for Emma Dimasi who has already moved out of the home she lived in for close to 50 years.

The state appeals board says her home that sits on the corner of Dixmyth and Clifton Avenues will be sparred the wrecking ball until her appeal can be heard next month.

Cincinnati used an eminent domain ruling to force her from her home on Dixmyth Avenue for a widening of the road which the city says will make that intersection of Dixmyth and Clifton safer.

Dimasi's son Vincent says that his mother's property was taken so that Good Sam Hospital can expand on the land where Dixmyth currently sits.

FOX19: http://www.fox19.com

Eminent domain reform sails past bipartisan panel: Mesabi Daily News (Virginia MN), 5/10/06

Measure will strengthen property rights

By John Hendrickson

The [Minnesota Legislature's] conference committee on the eminent domain reform bill gave it a unanimous nod Wednesday night.

“This is a very strong bill,” said Sen. Tom Bakk, DFL-Cook, the chief author of the Senate version. “This is a huge victory for property rights.”

Rep. Jeff Johnson, R-Plymouth, authored the House version.

The bill defines public use and prohibits the government from allowing one private individual to take another private individual’s property based on economic development or an increase in tax base.

A public use must be defined for government entities to use eminent domain.

“Government cannot take property unless it is for a public use,” said Bakk.

The conference committee report tightened up language in terms of “just compensation.”

Bakk said “people are treated a lot more fairly” in the reform bill. The measure also gives individuals an opportunity to receive some or all of their attorney fees returned to them.

The bill also puts a value on businesses if the business cannot relocate. Currently, the law requires only payment on the land and the building.

Bakk said this will benefit displaced businesses because many of the owners “have spent years putting their business together.” A provision also includes help with relocation costs and to “re-establish a customer base.”

The bill would be effective the day after it is signed into law.

“This levels the playing field for a property owner negotiating with a government entity,” said Bakk.

Bakk said his bill is “a little bit stronger than when it was passed through the Senate.” He also said that the committee worked in a bipartisan fashion to reach a compromise.

Bakk predicts that the reform bill will pass both the House and Senate sometime early next week, and then be signed into law by Republican Governor Tim Pawlenty.

Mesabi Daily News: http://www.virginiamn.com