Eminent Domain — New LAUSD School Site Boots Families: LAVoice.org (Los Angeles CA), 5/26/06

By Mack Reed

When you think about the L.A. Unified School District's vast real estate holdings, you picture industrial wasteland sites like Belmont Learning Center and New High School No. 1.

You don't quite picture families and businesses getting kicked out because there's no more suitable site in Wilmington for a new K-8 school than the very land they live on.

The Daily Breeze says landowners are pissed that the district decided it's better to uproot five single-family homes, two multi-family buildings and nine businesses than to mess with any of the, uh, vast industrial wasteland that is most of Wilmington ...
The Daily Breeze says landowners are pissed that the district decided it's better to uproot five single-family homes, two multi-family buildings and nine businesses than to mess with any of the, uh, vast industrial wasteland that is most of Wilmington ...
"I expected to grow old in that home," said Sylvia Viramontes who moved to Wilmington from Tarzana just six years ago, right after the house was built. "If you take that home from me, that's my life."

The preferred site — not far from Banning Park and bounded by Avalon Boulevard on the west, Broad Avenue on the east, L Street on the south and M Street on the north — would displace fewer homes than most of the nearly 40 sites the district examined, school officials said. The Los Angeles school board must now approve the recommendation ...

The new 1,278-seat campus is needed to relieve crowding at Fries Avenue, Gulf Avenue and Hawaiian Avenue elementary schools and Wilmington Middle School.

Construction is scheduled to begin in 2009 and be finished by 2011.

It was either that or spend $20 million moving natural gas pipelines.

Gee. Hmm. Tough call. Oh, well. Better choose dollars over lives.

LAVoice.org: http://www.lavoice.org

Eminent Domain Roulette: Investor's Business Daily, May 30 2006

By Benjamin Powell

Wal-Mart found itself on the other side of the table this week when the Hercules, Calif., City Council decided to use eminent domain to stop Wal-Mart from opening a new store in town. The council voted to seize Wal-Mart’s land. Wal-Mart now finds itself to be the victim of the same strategy it has used to gain a foothold in other communities: using the threat of eminent domain to pressure property owners to sell.

Hercules is a leader in using so-called ”smart growth” policies to plan development. City plans regulate everything from architectural styles to front porches on homes. However, Hercules’s councilmen will be no more successful in centrally planning its local economy than the Soviet Union’s bureaucrats were in planning theirs. The market’s competitive process, which offers monetary profits or losses, is much better than city planners at figuring out which businesses should offer which products in what locations.

City officials want a “village-like atmosphere” in Hercules, with no retailer bigger than 64,000 square feet in this location. Local businesses, however, don’t seem to agree. Doug Mull, a vice president of Lewis Co., which previously owned the land, said that his company couldn’t find any tenants interested in the property under the city plans. That’s when his company proposed to allow Wal-Mart to open a larger store. After the city rejected the proposal, Wal-Mart bought the property and has continued efforts to build a store.

The City Council agreed with outspoken residents who claimed that there is no demand for Wal-Mart’s products in the area and that upscale restaurants, boutique stores, and specialty retailers such as Whole Foods or Trader Joe’s are needed instead. Where were these tenants when Lewis Co. was trying to lease the property according to city’s central plan?

Apparently those businesses don’t estimate the same demand for their products as the city government does. Similarly, Wal-Mart has not made billions of dollars by opening stores where there is no demand for its products. Its eagerness to open a store in Hercules — where the specialty retailers have passed on that opportunity—suggests that there is more demand for Wal-Mart’s products than these other stores’ products.

Hercules Vice-Mayor Ed Balico said that outsiders have to understand that “The city of Hercules is very unique.” Unfortunately, what is unique about Hercules are the draconian measures it is willing to take to enforce the will of the planners. The U.S. Supreme Court opened the door for this type of abuse when it ruled in Kelo vs. City of New London, Conn., that cities can use eminent domain to seize private property from one party to sell or lease it to another private party to promote economic development.

Eminent domain not only violates property rights, it’s also bad economics. Seizing someone’s private property to give it to another private party actually harms economic development, by switching it to less valuable uses. If other businesses valued locating on this property more than Wal-Mart, there is no reason they couldn’t privately purchase the land.

Wal-Mart turned down an offer the city made to purchase the property in March. Instead of offering enough to entice Wal-Mart to sell, the city is now using its power to acquire the property by force. The fact that eminent domain requires the city to pay “fair market value” still does not compensate Wal-Mart fully.

This is the basic economic problem with eminent domain. Forced property transfers to recipients who were unwilling to pay enough to obtain the property voluntarily always constitute an economic takings. The very act of not selling at market price demonstrates that the current owner values the property more than the “fair market value.” Since eminent domain moves property from higher valued uses to lower valued uses, it undermines economic development.

This case of eminent domain is the opposite of what most Californians’ fear. Since the Kelo ruling last June, many property owners are afraid that eminent domain will be used to transfer homes to large retailers such as Wal-Mart in the name of economic development. The “Protect Our Homes” Initiative, which will appear on the November ballot, would help prevent such abuses. Ironically, by protecting homeowners from Wal-Mart, voters would also be protecting Wal-Mart from Hercules’s central planners. The initiative will be beneficial in either case because eminent domain is not good for our economy whether Wal-Mart is the goose or the gander.

Investor's Business Daily: http://www.investors.com

Benjamin Powell, Ph.D., is the Director of the Center on Entrepreneurial Innovation at the Independent Institute, an Oakland-based policy think tank and a professor of economics at San Jose State University.

Landowner sues city, building owner over eminent domain: St Louis (MO) Post-Dispatch, 5/26/06

By Robert Patrick

A downtown St. Louis landowner is suing the city and the owner of the building that sits on its property, Gentry's Landing, claiming they're abusing the eminent domain process to get the land for millions of dollars below market value.

The building owner, Integrity Real Estate Corp., has been working with the city since 2004 to get the property, the suit says. Landowner STL 400 North Fourth LLC, which is controlled by Florida developers Joe and John Seravalli, was told April 28 that it would have to sell by May 12 or face the use of eminent domain.

Lawyer Eric Martin said the Seravallis attempted to negotiate, but were unable to agree on a price.

Martin says Integrity used the threat of eminent domain like a "sword" during negotiations.

"They have made offers — we've just not really been in the same ballpark. I think that part of the problem is that they've got this eminent domain sword that they can use," Martin said.

"Why negotiate … when (using eminent domain) you can sweep in and buy the property?" he asked.

The Gentry's Landing building is in the 400 block of North Fourth Street. The Seravallis also own the land under two other parcels in that block, the Mansion House and the Radisson hotel.

The lawsuit says Integrity "conspired" to use the eminent domain process to get the property below fair market value. The suit also says the city is attempting to use a 1989 ordinance declaring the property blighted. That ordinance expired in 1997, the suit says.

Bob Denlow, another Seravalli lawyer, goes further, saying that allowing the city to become involved in a private negotiation means few downtown properties are safe.

Denlow said the Seravallis paid $8 million for the land under all three parcels, and that he's heard rumblings from all of the building owners about using eminent domain to take the land.

Peter McCann, Integrity's president, could not be reached for comment Friday afternoon. His lawyer, a lawyer for the Land Clearance for Redevelopment Authority, Deputy Mayor Barbara Geisman and a mayoral spokesman also could not be reached.

Last fall, McCann and others involved in the planned redevelopment of all the buildings on the Seravalli land said the work couldn't be financed without ownership of the land. McCann is planning a renovation of the residential building and the addition of a new residential building, both of which would become condominiums.

McCann said the property, which includes the landmark 28-story residential tower, a three-story commercial building and part ownership in the 1,700-space underground parking garage, looks "tired" and needs reviving back to luxury status. He said since purchasing the buildings in 1989, he had invested $19 million.

St Louis Post-Dispatch: www.stltoday.com

Carnahan rejects petitions on eminent domain: Kansas City (MO) Business Journal, 5/26/06

By Jim Davis

A proposed constitutional amendment sharply curtailing eminent domain's use in Missouri is all but dead after Secretary of State Robin Carnahan on Thursday invalidated petitions seeking to place a referendum on the November ballot.

"They did not meet the basic threshold requirements," said Stacie Temple, a spokeswoman for Carnahan.

The petition needed about 145,000 valid signatures. The signatures needed to be spread throughout the state's nine Congressional districts. But these addresses couldn't be verified because record-keeping was insufficient, Temple said.

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

Tuohey, contacted Friday morning, declined to comment on whether the group will challenge Carnahan's decision.

Spencer Thomson, a lawyer at Blackwell Sanders Peper Martin LLP in Kansas City, said he thought an appeal was unlikely.

"The initiative petition that they were seeking to place on the ballot was extreme, and it was unnecessary in light of the Legislature's action," said Thomson, who served on a task force Gov. Matt Blunt appointed last year to study eminent domain.

The General Assembly 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, as well as the Power & Light District and Sprint Center arena.

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.

Thomson said the law will provide certainty for economic development while curbing condemnation abuses.

"The Legislature did a good job of trying to balance the competing interests of economic development with private property rights," he said.

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

End eminent domain: Middletown (NJ) Courier, 5/25/06

Letter to the Editor

By Pat and Andy Walsh

I write to you today as a homeowner that is about to become the victim of eminent domain abuse at the hands of local Township Committee and County Republican Freeholders in the 13th Legislative District.

Using both state and federal tax dollars they have crafted a bridge replacement project (County Brige S-17) that although carefully cloaked in the guise of the public good, fails on the very mission statement used to gain funding: “The project goal is to provide a solution that will improve structural deficiencies, traffic operations and safety to the traveling public and to minimize impacts to the environment as well as the surrounding community.” After wasting our precious tax dollars to propose this plan for a curved, humpbacked bridge, they have failed at the very goal they presented to you and the federal government to gain tax dollars to propose their plan.

What is clear to all who have seen the plan is that this bridge and our property are the gateway to economic re-development of our entire area. They hatched this plan in secret meetings with both governing bodies where no minutes were taken. They held two separate public meetings in which they introduced their plan to the community on nights conflicting with other well-established meetings. They had to be pushed into having another meeting by us in order to somehow allow the communities' voice to be heard. Even after hearing the concerns they have forged forward using a public access channel to promote this ill-conceived proposal to the general public, to build a curved humped-back bridge over the Navesink River.

Let's take a close look at where they fail to fulfill the goals they set before you in order to get our tax-dollars behind this project.

Improving the traffic congestion in this area has long been a concern to many residents of Middletown, Red Bank and the surrounding communities. However to waste our tax-dollars to produce a plan that will leave use with the same congestion sitting outside our front door is a travesty. But for the 20,000 commuters who use the bridge each day it is an insult.

Other ideas have been proposed that might alleviate this problem but as the county engineer has stated, “They were not explored.” Then why not build a bridge in the same footprint, saving tax money and mirroring a similar project on Route 202? That is the question that is in dire need to be answered.

How safe will a curved humpbacked bridge be in the middle of winter? Bridges freeze before roadbeds and this is a major byway for ambulances heading to Riverview Medical Center. With congestion added to this design we are facing a recipe for disaster.

There is no dispute that the underpinnings of the [West Front Street Bridge] need to be replaced, although the study was done over six years ago. But in 1992, using county tax dollars the Freeholders replaced the approaches, shored up the pilings and we willingly sold property to add a turning lane and sidewalk for the community.

The tax-dollars used to do that work came from every homeowner in the county and they will be wasted when this work is destroyed to complete [the county's] ill-conceived plan. Committee members have told the public there is only a 12-inch differential in the height, when in reality it is going from 4 feet to 12 feet, a figure quoted by the designer of the project at a public meeting. There are alternatives that have been proposed that would provide a better traffic pattern, or at best produce a more cost effective design. They have all been ignored.

I have been threatened already with lengthy and costly litigation, condemnation, and I stand to lose one-quarter of our property. I feel like Middletown and the county have put a gun to our head and are performing a robbery, in broad daylight, using the public money to do it. Imagine someone telling you to give up a quarter of your property for “just compensation.” What compensation can be offered when half our waterfront is gone and the other half is a view of a traffic-congested bridge serving as the frontage to our Victorian home that I have been renovating for 20 years?

Think beyond that to the change in our community. The bridge project will change both the ambience of our neighborhood and affordability of homes on both sides of the river. We stand at the beginning of the next Long Branch, the same eminent domain abuse that has gained state and national headlines. What is at stake here is the same thing.

It's time to stop this and stop it now. Join me in our fight to stop this bridge project. Not just for our sake but for the sake of the community and our neighborhood. Eminent domain abuse must be stopped now!

Middletown Courier: http://www.bayshorenews.com

Amendment designed to protect against eminent domain: Leesville (LA) Daily Leader, 5/25/06

By Brian Trahan

Strike one up for the common man, as the Louisiana House approved a constitutional amendment that would make it more difficult for government to utilize eminent domain for economic development.

The amendment, introduced by Sen. Joe McPherson, D-Woodworth, would allow government control to seize land only for public projects such as roads, reservoirs, drainage and industrial development, according to Rep. John Smith, D-Leesville. It would prohibit the seizure of a house, land or both, from a private citizen or family.

“What was happening is that land was being seized under eminent domain and used for commercial development or tax revenue,” Smith said of the expropriation controversy.

It's only happened three times in Louisiana, but all three cases involved commercial property. Still, Smith explained that since the Supreme Court gave local government the right to expropriation, the Legislature felt obligated to protect the rights of small landowners.

The measure passed 89-3 and will need approval from voters to take effect in Louisiana. According to Smith, it could be included in the September election or in December.

As an added protection, the amendment also prohibits expropriation of up to 160 acres of a family homestead. “This amendment passed overwhelmingly and not it's up to the voters,” Smith said.

Leesville Daily Leader: http://www.leesvilledailyleader.com

Bad turn on eminent domain: Johnson County (KS) Sun, 5/25/06


By author

The eminent domain legislation approved by the Kansas Legislature falls far short of a satisfactory solution to this emotionally tinged issue. In fact, legislative emotions appear to have prevented a rational, reasoned outcome.

Few people want their property seized for any reason. Americans have traditionally felt their land was protected through constitutional rights, although many concede land should be given up, with appropriate compensation, for projects that serve the greater public good, such as roads and utilities.

Temperatures flare when private operators attempt to use condemnation for their economic development projects. Public agencies in Kansas have used the power of eminent domain for years in private economic ventures, at times setting off a public furor.

The issue was raised in the Legislature after the U.S. Supreme Court ruled in 2005 that public agencies may require owners to give up their property, with compensation, for redevelopment by private interests.

The measure passed by the Legislature, which was signed into law by Gov. Kathleen Sebelius last seek, allows certain condemnations, among them utilities and street projects.

It has at least two flaws.

The new statute requires counties, cities and state units of government to have the blessing of the Legislature before they allow property to be condemned for an economic development project.

And, the new law does not become effective until July of next year.

The mandate on legislative approval will deprive local officials of making decisions that directly affect their constituents. Instead, final approval of a local project will be in the hands of legislators from throughout the state. They are not beholden to local voters; government accountability will suffer.

The delay of the effective date could open the way for a rash of projects over the next year or so as developers attempt to beat the deadline.

For the most part, debate broke along a line between urban interests and advocates of strict land rights, notably over prohibition of the taking of land for private economic development.

Supporters of condemnation for private-sector development contend it is useful to clear blighted areas that can be unsafe and crime-ridden. That would be helpful mainly in urban sections that include Johnson County.

There are parts of the county, especially in the northern tier of older cities, where renewal projects are needed to create new homes and business sites.

Opponents argue that condemnation is abused by politicians seeking to broaden the government's tax base and private developers intent on making money at the expense of property owners, in many instances ones at the lower income level.

To the opponents, eminent domain powers should not be imposed for private economic development in any circumstance, even though just payment is required.

There is one advantage in delaying the effective date. It provides time for the Legislature to revisit this thorny issue in next year's session, before the law goes into effect.

Legislators need to return eminent domain authority to the local level. They have far too many state-related responsibilities and should not be spending time on matters that cities and counties can and have resolved for years.

Indeed, the Legislature has exceeded its traditional 90-day session six of the last seven years, including 2006.

Kansas should have tightly drawn legislation for economic development condemnation that would strike a fair balance between preserving the rights of landowners and allowing public agencies to, under the most demanding regulations, take property that poses a danger to residents and could be improved by redevelopment.

Johnson County Sun: http://www.zwire.com


Casino exec backs eminent domain : Press of Atlantic City (NJ), 5/24/06

By Donald Wittkowski

One of the country's top gaming executives urged Atlantic City to make greater use of the controversial practice of eminent domain to create space for casino construction.

Peter M. Carlino, chairman and chief executive officer of Penn National Gaming Inc., said eminent domain would help solve the city's critical shortage of developable land and encourage more casino companies to come to town.

“My point is simple: Atlantic City is the poster city why eminent domain is essential for widespread urban redevelopment,” he said in remarks Tuesday at the East Coast Gaming Congress, an annual gathering of casino executives.

Penn National would like to build a casino in Atlantic City but currently lacks a site, Carlino explained during a panel discussion of casino CEOs. Penn National, operator of 16 casinos and horseracing tracks, is the largest gaming company in the country that doesn't have a casino in Atlantic City or Las Vegas.

In Atlantic City, there are only a few remaining spots large enough to accommodate construction of a full-fledged casino project, and those are already owned by other gaming companies.

Carlino noted that the U.S. Supreme Court, in a ruling last June involving New London, Conn., gave communities more power to seize private property for economic development. He said the ruling would make it easier for Atlantic City to condemn land for casino projects, but added that the process should be done in a “thoughtful, comprehensive” way.

In 1998, Atlantic City was the battleground for a high-profile eminent domain case pitting Donald Trump's casino company against an elderly widow and the owners of a small restaurant next to Trump Plaza Hotel and Casino. A New Jersey Superior Court judge ruled against Trump, saying that his attempts to use the state Casino Reinvestment Development Authority to seize Sabatini's restaurant and widow Vera Coking's boarding home for casino expansion were illegal.

Putting the court case behind them, Trump Entertainment Resorts Inc. agreed last year to pay the Sabatini family $2.1 million for the restaurant property. However, the company has not been able to reach a deal with Coking for her former boarding home adjacent to Trump Plaza.

Carlino cited the Trump and New London cases while arguing for broader use of eminent domain as a catalyst for casino development. His controversial remarks prompted jokes from another casino panelist.

Gary W. Loveman, chairman and CEO of Harrah's Entertainment Inc., sarcastically suggested that Atlantic City should condemn Trump Plaza and give the site to Caesars — now owned by Harrah's — for its proposed casino-hotel expansion.

“That's a strategy I never even considered,” Loveman said, drawing laughter from the audience.

Press of Atlantic City: http://www.pressofatlanticcity.com

Eminent domain bill faces hurdle in Senate: (Myrtle Beach SC) Sun News, 5/24/06

By Zane Wilson

One of the things [South Carolina] legislators vowed to do as the session opened in January was to ensure that property can be condemned only for public use.

The bill still hasn't passed and is teetering after attempts in the Senate on Tuesday to change it while only five days remain in the session. One proposal from Sen. Dick Elliott, D-North Myrtle Beach, could have forced owners of property under conservation easement to give land without cost for utilities, roads and other uses.

The amendment was tabled on a voice vote, and so was a similar one from Sen. Jake Knotts, R-West Columbia.

The debate is part of what is called the eminent domain bill. It is aimed at ensuring the government cannot take land for public benefit, which the U.S. Supreme Court ruled last fall is permissible. Instead, lawmakers want it clear that property must be condemned for actual use for something such as a road or school.

Elliott said later Tuesday that his amendment was misunderstood. It was not intended to require free land from privately owned property held in a conservation easement, he said.

But his proposal did allow almost any agency with condemnation powers to take such land, and it should be more restrictive by allowing only a few to use the privilege, Elliott said.

"My amendment was too broad," he said.

He said he will try again with a refined proposal today. It will also include a requirement that use of preserved land or a park for a road or utility line must pass an environmental study, he said.

The point he and Knotts were making was that the public should not have to buy land twice.

If the Department of Natural Resources or state parks have land and an easement is needed across it for a road, power or gas line, the state should not have to pay to buy that land again, they said.

Two senators said the possibility that private land held in conservation could be included in Elliott's and Knotts' proposals could not be allowed.

Sen. Scott Richardson, R-Hilton Head Island, said he had spent 20 years trying to gain landowners' confidence in making conservation easements.

If Elliott's or Knotts' proposal passed, conservation easements would become the target for any new utility lines, Richardson said.

The House passed an eminent domain bill that requires compensation for changes in land use, such as with zoning, but the Senate has said it will not consider that provision.

The Sun News: http://www.myrtlebeachonline.com

Eminent Domain Restrictions on Way To Governor: WVLT-TV (Knoxville TN), 5/24/06

The [Tennessee] House approved an eminent domain bill Wednesday that would limit the power of cities and counties to seize private property in Tennessee.

The legislation is among the least restrictive of about three dozen measures lawmakers proposed on eminent domain and prohibits the taking of property for private development

The measure was approved by the senate earlier this month and now moves on to the governor for his consideration.

The measure follows last year's US Supreme Court ruling to give a Connecticut city the authority to seize property for a private development project.

Governments have long purchased private property for the construction of roads, bridges, dams, sewer lines and other public projects.

If owners are unwilling to sell, governments can use eminent domain to force sale of the property.

One main provision of Tennessee's legislation would require local governments to certify the "public purpose and necessity" of seizing land.

WVLT-TV: http://www.volunteertv.com

Lawmakers approve changes to eminent domain statutes: Boston (MA) Globs, 5/24/06

[New Hampshire] State lawmakers voted Wednesday to make it harder for the government to take private land by eminent domain.

The bill would modify state law to limit takings to land needed for public use or a utility, or to remove structures that pose a danger to the public. It defines public use more clearly and prohibits governments from taking land for economic development.

Lawmakers reacted to last year's U.S. Supreme Court ruling permitting New London, Conn., to take a group of older homes along the city's waterfront for a private developer who planned to build offices, a hotel and a convention center near Pfizer Inc.'s new headquarters.

The New London ruling also led to an attempt to seize the Weare home of U.S. Supreme Court Justice David Souter by eminent domain, because he sided with the court majority in the New London decision. Angry activists wanted to get back at Souter by trying to take his 200-year-old farmhouse to build an inn, but they failed to win the support of town voters.

Lawmakers earlier voted to put a constitutional amendment on the November ballot to limit government's ability to take private land

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

Eminent Domain Continues For Fall House: KFOX-TV (El Paso TX), 5/23/06

The historical [Las Cruces NM] landmark known as the "Fall House" is still in a deteriorating stage.

On Tuesday, the property owner, William Abraham asked city council to lift the order of eminent domain. But the city voted 5-3 to continue with the process.

Abraham declined an interview with KFOX and left city hall with obvious dissapointment.

The scaffolding on the side of the house on 1725 Arizona is a sign of work — work that has been stopped too many times.

"I realize it's a complex issue, anyone who owns an old home like this has a lot of responsibility," said Marthana Bethune.

Bethune would like to see the historical home on preserved. Her great grandfather, Sen. Albert Fall, built the house in 1901 and it's full of history.

"It stands for a fabulous and interesting person, New Mexico's first United States senator," said Bethune.

Abraham has promised to fix the home, but complained about unnecesary road blocks.

"Given the opportunity to get passed these failed inspections with regard to something that's structural in nature that I've hired a structural engineer, to give his opinion, we'd be able to proceed on this project," said Abraham at Tuesday's city council meeting.

City Rep. Beto O'Rourke voted against lifting the order of eminent domain.

"I have a time line here that starts in December 2003, it has a number of mile stones and public meetings in which promises were made by the owner to improve the building and those promises were not followed through," said O'Rourke.

At one time, the "Fall House" was known for its glorious architecture and rich history. It's unfortunate that time has eaten away at the structure and its preservation is unknown.

"We want to have our roots, our background," said Bethune.

O'Rourke said there are some possibilities for the home turning it into a museum.

KFOX-TV: http://www.kfoxtv.com

B’ville OK’s possible use of eminent domain law for Mount Airy tract: Bernardsville (NJ) News, 5/24/06

By David Polakiewicz

While it may never come to pass, the [Bernardsville} Borough Council Monday night authorized the possible use of eminent domain to acquire a three-quarter-acre Mount Airy Road property adjacent to a municipal parking lot.

The authorization, given in an ordinance adopted by the council, may spur negotiations between the council and the property’s current owner, Mountainside attorney Richard Kress.

Eminent domain is when a municipality, citing a public need, forces a landowner to sell it property at market value. The sale price is determined by a third party with real estate expertise.

The ordinance states that if acquired, the parcel would be used for a pocket park. But two audience members Monday questioned whether there might be safety problems by creating a place for children to play adjacent to busy Mount Airy Road.

Councilman Mikael Salovaara said that while he favored giving the borough power to use eminent domain, he continued to have an “open mind” about how to use the parcel, if acquired.

Kress purchased the 22 Mount Airy Road parcel from former owners William Jr. and Emily Howlett on March 10 for $519,000. The Howletts, now in their 80s, and a tenant moved out last July after borough building officials ordered them out pending renovations. The two-family Victorian-style house on the property had become rundown over the years, and the town feared for the occupants’ safety. They had owned the property since 1953.

The borough advanced the eminent domain ordinance several weeks ago after hearing concerns from former Mayor Peter Palmer, who lives on Prospect Street, adjacent to Kress’ parcel. Palmer said he feared intensification of the use of the property based on Kress’ expressed desire to build townhouses there.

Now a Somerset County freeholder, Palmer said he would fight a townhouse plan if it went before the Board of Adjustment. The tract is zoned for single-family use.

Both Palmer and Kress attended Monday’s public hearing on the ordinance, but neither commented. The council approved the ordinance by a 5-0 vote with Councilman Lee Honecker recusing himself. Honecker, an attorney, did so because he once represented a client who sought to purchase the property from the Howletts.

Bernardsville News: http://www.zwire.com

Hercules uses eminent domain to keep out Wal-Mart: San Francisco (CA) Chronicle, 5/23/06

By Justin M Norton, Associated Press

A San Francisco suburb [Hercules CA] voted Tuesday night to use the power of eminent domain to keep Wal-Mart Stores Inc. off a piece of city land after hearing from dozens of residents who accused the big-box retailer of engaging in scare tactics to force its way into the bedroom community.

The overflow crowd that packed into the tiny Hercules City Hall cheered after the five-person City Council voted unanimously to use the unusual tactic to seize the 17 acres where Wal-Mart intended to build a shopping complex.

"The citizens have spoken. No to Wal-Mart," said Kofi Mensah, who has lived in Hercules for more than two decades and said he values the city's authentic feel.

Attorneys from Wal-Mart told the council that the retailer had spent close to $1 million to redesign the property to the community's liking. They said the council couldn't claim it was legally necessary to take the land and that the decision set a bad precedent.

"Today it may be Wal-Mart but the question is where does it end," Wal-Mart attorney Edward G. Burg said.

City officials countered that buying the land was acceptable to ensure it was developed to the community's liking and fit in with overall plans for the city.

Opponents worried that Wal-Mart would drive local retailers out of business, tie up traffic and wreck the small-town flavor of this city of 24,000.

Wal-Mart spokesman Kevin Loscotoff said after the hearing that the company had not decided how to proceed with its plans in light of the decision.

Wal-Mart's initial proposal for a 142,000-square foot store near Hercules' San Pablo Bay waterfront was rejected by the City Council. So the company submitted a scaled-down plan that included a pedestrian plaza, two outdoor eating areas and other small shops, including a pharmacy.

Hercules said no again, and opponents began raising the possibility of eminent domain, a legal tactic where government agencies can take land from its owners for the public good.

Cities sometimes use eminent domain to build roads or redevelop properties, but the owners must be paid fair market value for their land.

The U.S. Supreme Court ruled last year that such seizures are allowable if the construction raises the tax base and benefits the entire community.

Some residents and Hercules city officials say the land, which is currently open space, would be better suited for upscale stores that attract affluent shoppers and give the suburb a classy touch.

Officials say using eminent domain is a new tactic in a fight that's occurred elsewhere. Communities across the country have kept Wal-Mart out by imposing size caps for businesses and laws that set high minimum pay rates.

Jeri Wilgus, 47, said she was proud of the council for standing up to Wal-Mart and said the town could show others how to fight back against big corporations.

"We are setting an example for the rest of the country," she said.

A handful of residents said Wal-Mart could provide a much-needed place to purchase inexpensive goods, particularly for residents who can't drive out of town.

"I know I can go there and get a fair price for a good product," said Glenna Phillips, who has lived in Hercules for 26 years.

San Francisco Chronicle: http://www.sfgate.com

Santa Monica Officials Brace for Eminent Domain Battle: The Lookout News (Santa Monica CA), 5/23/06

By Olin Ericksen

With a ballot battle looming over California cities’ right to seize and resell private land, Santa Monica officials are not waiting for November to begin fighting the controversial state proposition.

How much compensation the City pays for private land, what it can seize and how future public development will unfold in Santa Monica are all at stake, many City officials agree.

In response, the City Council Thursday night will likely ask staff to research how to fortify several City zoning codes, ordinances and policies to limit the effects of the measure, which is known as the Anderson Initiative.

The initiative “purports to be an anti-eminent domain measure, but goes far beyond that,” said Council member Kevin McKeown, who placed the item on the agenda. “It would severely constrain Santa Monica's zoning and environmental policies.”

McKeown noted that the proposed measure comes as the City is updating its Land Use and Circulation Element (LUCE) — key components of the General Plan that will dictate future development in the City for years to come.

Financed by New York developer and millionaire Howie Rich, the initiative takes aim at California cities’ power to purchase private property from an unwilling seller and then sell or lease it back for a different private use — a power generally known as eminent domain.

More than a million signatures were gathered by last week, likely guaranteeing that the measure will come before California voters this November.

If passed, the initiative would mandate that eminent domain be used only when governments want to seize property for public use, such as for highways or schools, according to a legislative analysis of the law.

It would also likely jack up how much the government must pay owners in “fair market value” by redefining the term “as the highest and best use the property would bring on the open market,” analysts said. In addition, owners would presumably be compensated for things such as lost income and relocation costs.

The measure would also “limit government’s ability to adopt certain land use, housing, consumer, environmental and workplace laws and regulations, except when necessary to preserve public health or safety,” according to the legislative analysis.

Proponents of the law say it is needed to keep the government’s hands off of private residences and businesses, which may be standing in the way of a more attractive tax base or future development.

Opponents of the measure — who see it as a threat to municipal powers — began mounting a coordinated campaign against the measure last week, with officials belonging to the well-financed and well-connected California League of Cities voicing some of the staunchest opposition.

Now, Santa Monica City Council members have begun looking to blunt the effects the proposed law would have on the beachside city, asking staff to scrutinize City policies, zoning codes and regulations to try to eliminate the measure’s potential impacts.

While seldom used in recent years, eminent domain has been utilized in several large public developments in Santa Monica, according to Jeff Mathieu, who as the City’s director of Resource Management is a key negotiator for the City on land acquisitions.

Several small businesses on two city blocks were scooped up in the late 1970’s using eminent domain to pave the way for Santa Monica Place, the indoor mall Downtown, said Mathieu

In the 1980’s, eminent domain was used to demolish housing to make way for more than 200 beachside condominiums on Ocean Avenue in the Ocean Park Neighborhood, known as the Sea Colony, Mathieu said.

Most recently, it was employed to gather a few parcels on Sixth Street and Santa Monica Boulevard for the development of the new public library, and create a larger right of way on Cloverfield Boulevard.

While Mathieu said Santa Monica rarely uses eminent domain, he predicted that the Anderson Initiative would have a “far reaching” impact.

In addition to making it more expensive for cities to buy land and setting conditions on what land is purchased and why, it’s largest impact my be unforeseeable, he said.

“It basically has the impact of the unknown,” said Mathieu. “We don’t know what the future generations of Santa Monica will need” when it comes to public development.

Proponents of the law – including conservative state legislators and libertarians – say the reforms are necessary to halt what they see as an abuse of power by governments seizing land from private hands.

And they are putting up the financial backing to make sure the measure goes to the voters.

Rich has invested nearly $1.5 million of his own money to gather the signatures necessary for the ballot and secured high-profile consultants for the campaign, according to news reports

In recent weeks, several paid petitioners have been stationed outside dozens of Santa Monica business gathering signatures, mirroring a statewide campaign.

That’s about a dollar a signature, analysts note, and the ballot battle has only just begun.

The Lookout News: http://www.surfsantamonica.com/ssm_site/the_lookout/news

Richardson First Governor to Veto Eminent Domain Protection: Budget & Tax News, 6/1/06

By Paul J. Gessing

New Mexico Gov. Bill Richardson (D) became the nation's first governor to veto legislation aimed at protecting individual property owners from eminent domain abuse.

On March 7, Richardson vetoed House Bill 746, a measure sponsored by state Rep. Richard Cheney (R-Farmington), which would have prohibited the state or local governments from using eminent domain to take property and turn it over to a developer or other private entity within five years of the property's condemnation.

Cheney's bill had received unanimous support from New Mexico lawmakers.

Richardson explained his veto by saying the bill's ambiguous language could have stopped public projects simply because private entities play a role in the project. Richardson also noted some municipal officials opposed the measure.

Governor's 'Disregard' Slammed
Cheney responded angrily, saying, "The final bill itself was a good compromise" and that he "couldn't understand why the governor would have vetoed it." Cheney added, "I do hope it will hurt him politically, and I believe it will."

Richardson is up for reelection this year. The presumptive Republican challenger, J.R. Damron of Santa Fe, jumped on Richardson's veto. Days after the veto, the Damron campaign held a news conference to denounce the decision as just one more example of how great the governor's disregard really is for New Mexico families.

Protections Passed Unanimously
The bill was offered in response to the June 2005 U.S. Supreme Court decision in Kelo v. New London, which dramatically weakened the Constitution's Fifth Amendment prohibition on the taking of private property for public use without just compensation. Under the Kelo ruling, any eminent domain taking, even for the express benefit of another private entity, is legal so long as the condemning authority has a plan and officials believe some public benefit would result from the taking.

Although the High Court's decision was a blow to property owners nationwide, it explicitly allowed states to place restrictions on the use of eminent domain. That has been happening nationwide since the decision was handed down. According to the Institute for Justice, whose lawyers defended homeowners in the Kelo case, more than 40 states have bills under consideration, and six have already passed bills to address the Court's decision.

Several Protections Presented
In New Mexico, several proposals were introduced during the 2006 legislative session that would have addressed private-to-private takings. The strongest was a constitutional amendment introduced by Rep. Thomas Anderson (R-Bernalillo County). Anderson's proposed amendment never made it out of committee.

While amending New Mexico's constitution was a no-go in 2006, there was bipartisan support for addressing the eminent domain issue through legislation. Cheney introduced legislation that as originally worded would have prohibited the use of eminent domain if the taking is to promote private or commercial development and title to the property is transferred to another private entity.

The protections in Cheney's bill were subsequently weakened to prohibit the transfer of property from one private interest to another private interest for five years. The watered-down wording passed both houses unanimously.

After vetoing the bill, Richardson promised to create a task force to study the eminent domain issue and propose legislation that he said in a statement would appropriately protect private property from condemnation geared solely at private commercial development. The governor offered no details on how he would do this and set no timetable for legislative action.

Budget & Tax News, The Heartland Institute: http://www.heartland.org