Nevada court fight starts over eminent domain limits : Las Vegas (NV) Sun, 7/20/06

Associated Press

Various government entities and other groups and individuals went to court Thursday to block a ballot proposal to restrict land seizures by government agencies.

The Clark County District Court lawsuit seeks a finding that the Nevada Property Owners Bill of Rights proposal be declared illegal and kept off the November ballot. Advocates of the plan recently qualified for the ballot with 109,454 valid signatures. The minimum needed was 83,184.

"All of us who filed this lawsuit are deeply concerned about the devastating consequences that the implementation of this initiative would have," said Clark County Commissioner Bruce Woodbury, who joined in the litigation.

"We all share the general public's concern about potential abuses of eminent domain in redevelopment cases, but the trial lawyers who authored the initiative are attempting to manipulate that concern to create a huge financial windfall for themselves," he added.

Woodbury said the plan would allow for "unlimited new lawsuits" that could be filed by lawyers who wouldn't face sanctions for frivolous actions - and would leave many state and local agencies in "grave financial difficulties."

Among entities that joined with Woodbury in filing the action are a group called Nevadans for the Protection of Property Rights Inc., Clark County, the Las Vegas Chamber of Commerce, Nevada Contractors Association, Associated General Contractors, Nevadans for Nevada, Southern Nevada Water Authority, Las Vegas Valley Water District and the Regional Transportation Commission of Southern Nevada.

Las Vegas Sun: http://www.lasvegassun.com

IRB voters likely to consider new library, eminent domain issues: Bellaire (FL) Bee, 7/19/06

By Jared leone

The [Indian Rocks Beach] City Commission is poised to leave a couple of decisions to voters at referendum.

Voters could be determining the future of a new city library and a city code adopting a prohibitive eminent domain amendment in the Nov. 7 general election. Commissioners will have to work fast to meet requirements to get both items on the November ballot. The commission plans to have a straw poll ready by its Tuesday, Aug. 1, meeting.

“We are the last community of our size without access to a full service library,” Vice Mayor R.B. Johnson said.

The commission has talked about constructing a 6,000-square-foot library. Commissioners speculated the extent of costs for the proposed library and staff.

“We are looking at a couple of million dollars for our library,” Commissioner Jim Palamara said.

Other costs to factor in are the $64,425 salary for a librarian and costs of membership to the Pinellas County Library Cooperative. Johnson said costs to be part of the co-op could be as much as $179,000 per year. Commissioner Jose Coppen noted that the referendum for the library should have all the costs laid out.

The commission also brought up the idea of putting a prohibitive eminent domain law on the November ballot. Mayor Bill Ockunzzi said the amendment should be modeled after an ordinance passed by the city of Dunedin.

Dunedin residents voted in March 2006 for an amendment that would allow the city to take private property only if it would then be used for a public purpose. The city would be barred from seizing private land if it would be used for another private commercial, financial, retail or industrial purpose.

Bellaire Bee: http://www.tbnweekly.com/pubs/belleair_bee

Lawmakers override eminent domain veto: Osceola (IA) Sentinel-Tribune, 7/19/06

By Chris Dorsey

The Iowa Legislature, for the first time in more than 40 years, voted Friday to override Gov. Tom Vilsack’s veto on the eminent domain bill.

Lawmakers passed the eminent domain bill with an overwhelming majority in the Iowa House and Senate in April. That bill did restrict using eminent domain - or government bodies using condemnation powers to take property owners — for water source lakes that have plans for private development and/or recreational purposes.

Local officials have been discussing building a multi-purpose lake northwest of Osceola for the past two years. A new water source lake in Clarke County has been discussed for decades.

Legislative leaders have been been calling for the special session since Gov. Vilsack vetoed the bill in June. In Friday’s special session, the Iowa House voted 90-8 and the Senate 41-8 to override the veto.

“As Governor, I approach decisions with the long-term interest of our state in mind,” Gov. Tom Vilsack said following the special session. “I made a decision to veto this bill after tremendous thought and review.”

State Representative Mike Reasoner, D-Creston, supported the bill in April and voted to override the veto.

“Protecting the rights of private property owners is too important to wait until the 2007 legislative session,” said Reasoner. “I listened to the people of my district who overwhelmingly asked me to override the Governor’s veto and I’m pleased this issue is now behind us.”

The new protections for private property owners will take effect immediately, Reasoner said.

“I do not believe government should force private property owners to sell their land to a private developer so they can make more money,” Reasoner said.

Osceola Sentinel-Tribune: http://www.osceolaiowa.com/Sentinel

Council delays decision on eminent domain on theater, nightclub: Asbury Park (NJ) Press, 7/20/06

City manager says language in proposed ordinance changed

By Nancy Shields

The [Asbury Park NJ] City Council postponed a decision Wednesday night on the use of eminent domain to acquire the Baronet Theatre and the adjacent Fast Lane nightclub in the 200 block of Fourth Avenue.

City Manager Terence Reidy said the council made that decision because of a wording error in the ordinance. It introduced a corrected version of the ordinance with the public hearing to be held next month. A large crowd had turned out to oppose the eminent domain measure. Twenty people spoke, asking the council to preserve the Baronet.

Councilman Jim Keady said the city should save the Baronet because it is a historic asset, the current owners are operating it and plan on showing $2 movies this summer.

"And I haven't seen concrete plans Asbury Partners has for this block," Keady said.

Asbury Partners, the beachfront developer, asked the city to begin the eminent domain process, saying negotiations broke down with owner Patrick Fasano. Fasano had bought the shuttered properties for $575,000 each on Dec. 22 of last year from Walter Burns and Maurice Roberson.

According to documents provided to City Council members, Asbury Partners offered Fasano $390,000 for the Fast Lane and $325,000 for the theater.

Fasano said Wednesday he wants to reach a deal with Asbury Partners to develop the entire block but does not believe Asbury Partners will allow him to do what he wants — entertainment, affordable residential lofts and parking. He said he believed Asbury Partners wants higher density residential units on the block.

The appraisals from Asbury Partners on the properties were $225,000 for the 500-seat Baronet and $290,000 for the Fast Lane.

One of Fasano's partners, Dennis Dubrow, announced recently that the 1913 theater is open for movies and some live entertainment this summer. He said Nelson Page of the Galaxy Movie Theater chain will operate the movies.

The Fast Lane voluntarily shut down two summers ago under its previous owners after three stabbings and a shooting.

Fasano also owns the Wonder Bar at Fifth and Ocean, which he helped renovate the past two years.

The eminent domain action does not pertain to a third property in the block, the popular Asbury Lanes, owned by Ralph Ayles' family since 1962.

Ayles said he received a registered letter from Asbury Partners Monday making an offer on his property. He would not say how much the offer was but said he believed it to be "ridiculously low."

Asbury Park Press: www.app.com

Judge to rule next month on eminent domain petition: Princeton (MN) Union-Eagle, 7/20/06

By Joel Stottrup

Four attorneys, one judge, a pastor, a deacon, a city administrator, an engineer and about a dozen landowners crowded into courtroom No. 2 at the Mille Lacs County [Minnesota] courthouse last Thursday for a different kind of hearing.

It was about the city of Princeton’s eminent domain petition before Seventh Judicial District Judge James Ruble.

The city wants to extend city sewer and water mains from about Pine Loft Restaurant and Lounge west to beyond First Street.

That requires land easements. Eminent domain allows governmental units to acquire land or easements by force if it meets a public purpose. A panel of three members who are called commissioners deliberate to come up with a price for the land or easements.

But Judge Ruble has to first determine if the city’s reason for the eminent domain fits the public-purpose criteria.

Secondly, the judge has to determine if the city’s reason for wanting immediate possession is justified.

Testimony was taken for nearly three hours in the courtroom Thursday, after which Judge Ruble said he would have a ruling by sometime in August.

The two people testifying were Michael Nielson, one of the city’s consulting engineers, and City Council member Lee Steinbrecher.

The attorneys doing the questioning were Richard Schieffer, for the city; Jim Mogan, representing landowner Jane Odgers; and Joseph S. Mayers, representing New Life Christian Center.

The attorneys for the landowners concentrated on whether the city’s proposed route for the utilities extension is the best, and whether the city followed correct procedures.

Some of the questions centered on whether the proposal was ever brought to the city planning commission.

Engineer Nielson responded that the commission had seen the proposed route when it reviewed the proposal for the 519-unit Heritage Village housing development, even if the commission had not gotten the proposal as part of the eminent domain effort.

Heritage Village, which was proposed on a city-annexed 200-acre piece of land west of First Street, has since been put on hold.

As Nielson was peppered with questions about whether a better route could have been chosen, he maintained that he reviewed several other routes with the city and concluded they were either more costly or less effective.

There are “infinite” possibilities, he said. Someone could actually start at “one end of the world and come up the other side,” and although it would work, it would be too costly, he said.

Nielson ended up on the witness stand for about an hour.

When Steinbrecher was called to testify, attorney Schieffer worked to establish why the city would want to extend utilities right away.

(Steinbrecher has been on the council three and a half years and on the planning commission about six years.)

Schieffer began by asking if the planning commission had ever had discussions about exhibit No. 1 that was up in the courtroom. It was an aerial photo of the area where the utilities extension would go, and also showed the Rivertown Crossing area located between Highway 95 and First Street, and between Highway 169 and Pine Loft Road.

Steinbrecher answered that the commission has frequently discussed that area and has frequently gotten inquiries about it the past six months.

Steinbrecher talked about the city’s comprehensive plan for land use and how so-called “big box” stores such as Wal Mart, Target, Menards and Home Depot and other commercial property could go into Rivertown Crossing. The comprehensive plan actually looks at land use extending as far north as Long Siding, Steinbrecher noted.

Schieffer asked Steinbrecher about the benefit to the city of having “big box” stores. Steinbrecher said they would increase the tax base, create jobs and spur other city growth.

Schieffer asked what the planning commission looks at to attract clients to a development and Steinbrecher answered, “We try to encourage infrastructure.”

The reason is because it takes quite a while to install utilities and “big businesses don’t want to wait three years for us to get our act together,” Steinbrecher answered.

When Schieffer asked if Steinbrecher or anyone at City Hall had recently talked to a potential commercial client, Steinbrecher dropped this bit of information.

He said he and City Administrator Karnowski and others met for most of the day on July 10 with someone representing a “big box” company. The person was looking at an area south of Highway 95 on the west side, Steinbrecher said.

Steinbrecher added that because of the sewer and water lines that were extended into the Rivertown Crossing area, the city has chosen that area for its new package liquor store.

The Union-Eagle asked Steinbrecher later that day if he could say more about the representative he visited with on July 10. Steinbrecher declined comment, other than to say he could have some news in a few days.

Among the people following the testimony in the courtroom was Chuck Pruett, pastor of New Life Christian Center. The city is seeking to run the sewer and water extension across that church property.

Pruett was asked on Friday what he thought of the courtroom proceedings and his thoughts on his church possibly granting an easement.

Larry Doose, a deacon with the church, was also with Pruett in the audience in the courtroom. Doose earlier this year told the City Council how concerned New Life Christian Center was about the potential assessment it would have from city water and sewer mains going past.

A few years ago the church had inquired about getting city sewer and water extended there. But as Nielson testified Thursday, the city was not ready to do that at the time the church underwent a large expansion.

Now the church has up-to date water and septic systems and doesn’t need city sewer and water, Pruett and Doose have told the city.

Pruett said Friday that he is not negative on the idea of the utility extension.

“We just want the right thought processes involved in the extension proposal and want to know whether it has to go through at this time,” he added.

Odgers and Karnowski were asked separately how they think the testimonies went for their sides.

They gave contrasting pictures of the court proceedings.

Karnowski said he didn’t understand why Odgers’ attorney asked if Nielson had shown the proposed utility route to the planning commission right before being given to the council. Seeing the conceptual route as part of the Heritage Village proposal should have been enough, Karnowski said.

Karnowski also said he thought Nielson was well prepared for the questions.

“I think it went well for us,” said Odgers, claiming the testimony brought out “some of the shortcomings of the city.”

An example was not showing the route as a separate proposal to the planning commission before going to the council, she said.

A comment Judge Ruble made shows how seldom eminent domain has been used in this geographic area.

Some of the commissioners once used for the panel to help determine a price for land in eminent domain proceedings are no longer around, Ruble said. Therefore, some new land commissioners for an eminent domain panel will have to be obtained, he explained.

The process calls for three land commissioners and two alternates.

Princeton Union-Eagle: http://www.unioneagle.com

In Push for Atlantic Yards Project, State Touts Eminent Domain: New York (NY) Sun, 7/19/06

By David Lombino

The state [of New York] yesterday released thousands of pages of documents in which it outlined its justification for the use of eminent domain and for overriding local zoning laws to clear the way for the 22-acre Atlantic Yards project in Brooklyn.

A "blight study" released as part of the state's general project plan said "public action" would be required to improve the area around the Vanderbilt rail yards, which is "characterized by blighted conditions including structurally unsound buildings, debris-filled vacant lots, environmental concerns, high crime rates, and underutilization."

The causes of the area's blight include the presence of the rail yards and a "diversity of ownership" that "hindered site assemblage that is necessary for redevelopment," according to the state's study.

Opponents of the project, including neighbors who say the proposed density will destroy the neighborhood, are expected to mount a legal challenge to any condemnation of private property necessary to complete the project.

A lawyer for Develop Don't Destroy Brooklyn, Jeffrey Baker, called state's finding of blight "an artificial construct," and said it is likely to be central to litigation brought by opponents.

"The private redevelopment effort in that area came to a screeching halt after December '03, when they announced this project," Mr. Baker said.

The state's general project plan details the need for eminent domain to clear as many as 22 different tax lots, containing both commercial and residential property — and about 118 people — that remain in the project's footprint but have not sold to the developer. The existence of blight will likely be used as the state's rationale for using eminent domain to condemn the remaining properties, as well as circumventing the city's land use approval process, which would ordinarily prohibit a project of the density proposed for Atlantic Yards.

The plan and a draft environmental impact statement were released by the leading state development agency yesterday for developer Forest City Ratner's proposal to build basketball arena and 16 towers containing more than 2,300 market rate condominiums, 4,500 rental apartments, and office and retail space in Prospect Heights.

The state's plan said the project would cost $4.2 billion, $700 million more than expected. Cost estimates had already risen to $3.5 billion from $2.5 billion. The latest increase is due to rising construction, interest, and fuel costs and more accurate estimates, according to an executive for Forest City Ratner, James Stuckey.

The developer also faced unexpected costs acquiring the private land around the site to "minimize the amount of condemnation involved in the project," Mr. Stuckey said. He would not say how much money the developer would profit from the proposal.

The draft EIS and general project plan will go before a public hearing on August 23 and a "community forum" on September 12. A final plan and EIS will be prepared by the state after consideration of all comments. Before construction can commence, state officials and the Public Authorities Control Board must approve those final documents, and any legal challenges must be cleared. The state's study said the arena would be completed by October 2009. The project would not be fully built out until 2016.

A spokesman for Develop Don't Destroy Brooklyn, Daniel Goldstein, who owns a condominium in the project's footprint and has vowed a legal fight, said yesterday that 60 days is not enough time to prepare for the public hearing. He said the documents released today were riddled with inaccuracies, including the estimates for the project's public cost and benefits.

"Any politician or elected official who is going to stand by this document with a straight face is a lunatic," Mr. Goldstein said.

Governor Pataki and Mayor Bloomberg cite job growth and the creation of affordable housing as reasons for their support of the project.

Yesterday, the state said the development would support an annual average of 6,573 new jobs in New York City and generate $1.1 billion in city and state tax revenues. The city and state have agreed to provide $100 million each for the project.

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

Kelly introduces legislation to block eminent domain attempts by NYRI: Mid Hudson News Network (Newburgh NY), 7/18/06

Congresswoman Sue Kelly introduced legislation in Congress Tuesday that would close a loophole in national energy law and proactively preempt New York Regional Interconnect [NYRI] from invoking eminent domain to carry out its power-line project that would run from Oneida County to Eastern Orange County.

"Eminent domain is a tool that will likely be sought to advance this widely-opposed plan,” said Kelly on the floor of the House. In an effort to block that, Kelly introduced the Protecting Communities from Power Line Abuse Act.“

The proposed legislation would rescind a provision in the Energy Policy Act that allows permit holders to petition the U.S. District Court for a right-of-way to construct power lines via eminent domain. Kelly voted against the Energy Bill when it passed Congress in 2005, and she also opposed the legislation during attempts to pass it into law in 2003-2004.

"This gives eminent domain power not to an accountable government entity, but rather to private companies," Kelly said on the House floor. She noted that until this provision is repealed, local residents as well as their local and federal governments are powerless in preventing a permit holder from seeking eminent domain to build power lines.

NYRI is applying to construct a 1,200-megawatt electric transmission line across a 200-mile span of New York. The route proposed by NYRI will travel through the federally protected Upper Delaware Scenic and Recreational River - an area which is part of the National Park Service's National Wild and Scenic Rivers System.

Mid Hudson News Network: http://www.midhudsonnews.com

Listing the provisions of Blunt’s eminent domain reform: Rolla (MO) Daily News, 7/16/06


By Stephen E. Sowers

I believe the extended discussions about eminent domain over the past several months warrant me listing the major provisions of the eminent domain reform law, House Bill 1944, signed into law last Thursday by Gov. Matt Blunt.

Here they are:
  1. The law addresses the U.S. Supreme Court Kelo decision by placing restrictions on the use of eminent domain for economic development.
  2. Fair market value of condemned property shall include not only comparable sales and replacement costs but also the property’s highest and best use.
  3. Condemned property owned by the same family for 50 or more years will receive a heritage value at 150 percent of the fair market value.
  4. Condemned homesteads will be compensated at 125 percent of fair market value.
  5. Farmland shall not be blighted for purposes of eminent domain.
  6. At least 60 days before filing a condemnation, the condemning authority must identify the purpose of the acquistion and inform the property owners of their legal rights.
  7. At least 30 days in advance of a condemnation petition, the condemning authority must give the owner a written offer.
  8. The condemning authority must provide the owner with an appraisal or explanation for determining the value of the property.
  9. Before making any offer to purchase property for a power plant, the condemning authority must provide public notice in a local newspaper and make efforts to inform affected property owners.
  10. If an easement is not used for ten years, the owner of the property may petition the court to declare the easement vacated.
  11. If condemning authorities do no act in good faith negotiations, the condemnation petition will be dismissed and the court can require reimbursement of the property owner’s legal fees.
  12. If any condemning authority abandons a condemnation before final judgment, the property owners shall be reimbursed for attorney fees, damages and other expenses.
  13. Condemning authorities must consider all alternative routes suggested by affected property owners.
  14. Additional negotiations with landowners shall be required for the expanded use of existing easements.
  15. Blanket easements that do not specify how the property will be burdened are in general prohibited.
  16. Displaced residents shall receive increased relocation costs.
  17. An office of ombudsman for property rights is created to provide assistance to citizens and report annually on condemnation casework.

Rolla Daily News: http://www.therolladailynews.com

Erie Twp. rail plans produce debate over eminent domain: Toledo (OH) Blade, 7/16/06

1800s laws could decide residents' fate

By David Patch

Beyond the shade trees draped over Madge Ausmus' back porch, soybeans grow in fields that have belonged to her family for generations.

On either side of her Erie Township [Michigan] home live relatives whose houses were built over the years on lots split off from the original Burgard homestead along Erie Road.

"This property was ours before Michigan became a state," Mrs. Ausmus said.

Beyond those soybeans lie three railroad tracks, the closest one belonging to the Canadian National Railway. The presence of that CN track is a key to a conflicting - and controversial - vision for the future of Mrs. Ausmus' property and that of her neighbors.

It's a vision whose realization may depend, at least in part, on laws enacted during the 19th century giving railroads the same land condemnation powers that governments possess to build roads and other public works.

U.S. Rail, a short-line railroad operator chartered in Michigan but with offices in Sylvania and rail operations in southern Ohio, is proposing to construct an "intermodal" terminal where freight containers are transferred between trucks and trains on 400 acres along the CN track between Erie and Luna Pier roads.

John Hall, an executive vice president with U.S. Rail, said the site has ideal features for such a terminal: proximity to two I-75 interchanges, room for growth, and direct railroad line access extending all the way to the Pacific Coast.

In particular, those lines stretch to Prince Rupert in Canada's British Columbia province, a port whose development could shave up to five days off the transit time for importing Asian consumer goods into the Great Lakes region.

When fully operational, U.S. Rail predicts the facility will generate up to 700 jobs, with wages ranging from $12 to $28 per hour plus benefits.

But critics question both that forecast and U.S. Rail's financial capability and say the project will bring trucks, noise, and pollution to a peaceful rural community.

"They should move it someplace else. I don't want it here," said Mrs. Ausmus, 77, who as the oldest of 11 siblings was born in a house down the street. She recalled her father "truck-farming" vegetables on the property in bygone years before he took a factory job with Dana to secure a steady income. Since then, she said, various relatives have farmed the family property.

A rail terminal would be a disaster for the area, Mrs. Ausmus said: "Who wants to have that in your backyard - all that noise, all the diesel fumes, and the trucks going in and out? You couldn't live with that."

"I bought this house because it would be my dream home," said Tim Ramirez, who moved in across the street, and several houses down, from Mrs. Ausmus in 2004.

"This will totally lower my property value - it'll be a real eyesore."

What has really irked residents of the area, both said, is the threat of U.S. Rail using decades-old authority granted to railroads to condemn property through eminent domain to build the facility if the company doesn't find willing sellers.

And if the proliferation of "No Eminent Domain" and "Not For Sale" signs along Erie and Luna Pier roads and in the surrounding countryside is any indication, few willing sellers exist.

"I'm upset that this was done so secretively, like we don't have any say-so," Mrs. Ausmus said of U.S. Rail's proposal. "That's what makes it so sad."

The concept of public agencies seizing private land for public purposes, such as roads, airports, and government buildings, is centuries old - so much so that the Fifth Amendment of the U.S. Constitution requires that "just compensation" be provided when government pre-empts private property rights.

Less known is that during the 19th century, states including Ohio and Michigan granted eminent domain authority to privately owned railroads too. The reason for this was so that individual landholders could not obstruct the expansion of the railroads, which were then fast becoming the primary form of transportation across America. Railroads were treated as public utilities, like electricity and gas suppliers who hold eminent-domain power to obtain easements needed to build transmission lines, substations, or pipelines.

While railroads have been eclipsed by motor vehicles as the principal means of transport for people and for many types of goods in North America, their eminent-domain power remains. These powers were perpetuated in Michigan when the state's entire code was overhauled in 1993, and updated in Ohio in 1953.

Linda Oswald, a business law professor at the University of Michigan business school, said she doubts the Erie Township landowners have "any real recourse" against condemnation if U.S. Rail pursues it to acquire their property.

"I feel for them. I understand where their anguish is coming from," Ms. Oswald said. "But terminals are a necessary part of a railroad."

The professor quickly added: "Not that they can't turn to a political solution, and try to sway public opinion."

And that's exactly what local landowners have done.

Residents opposed to U.S. Rail's proposal have formed Erie Neighbors and Residents Against Eminent Domain (ENRAGED), a group that has distributed signs, organized a petition drive, and lobbied local and county officials to oppose the project.

The Erie Township board on Tuesday passed a formal resolution opposing the project "and the eminent domain process," saying it would be detrimental to the quality of life there and a strain on public services. Similar resolutions have been passed by the Monroe County commissioners and several other townships in the county.

"I oppose taking anybody's land like that," said Walt Wilburn, a Bedford Township supervisor who joined his colleagues in passing a resolution supporting their Erie Township neighbors.

"People should not have the right to take property away from the property owners," said Jerry Oley, chairman of the Monroe County Board of Commissioners. The county board passed its resolution on June 27, and Berlin and Frenchtown Charter townships passed their versions last week.

U.S. Rep. John Dingell, (D., Dearborn), Michigan's Democratic U.S. senators, Carl Levin and Debbie Stabenow, and Michigan State Rep. Kathy Angerer (D., Dundee) co-signed letters to U.S. Rail and several public agencies seeking more information about the proposal.

Congressman Dingell told The Blade that, so far, he doesn't know enough to pass judgment on the merits of U.S. Rail's project.

"There appears to be a significant shortfall in the availability of facts to the people," Mr. Dingell said. "All of the government leaders are opposed - I haven't yet found anybody who is for it. Until I know more, I will be incapable of supporting it, considering the local opposition."

Alan Ackerman, a Troy, Mich., attorney who specializes in condemnation cases, said he believes there are chinks in U.S. Rail's eminent-domain armor.

Mr. Ackerman said he questions U.S. Rail's standing as an appropriate "entity" to condemn property in Michigan, an issue that will come up when the company petitions the federal Surface Transportation Board to establish its proposed rail operation in Erie Township.

"The Surface Transportation Board has to find an appropriate public need," said Mr. Ackerman, who has consulted with several of the potentially affected property owners. "If they granted it, we would challenge that. This is a private take."

In response, Mr. Hall said his company has obtained legal opinions supporting U.S. Rail's eminent-domain standing, should the matter come to that.

Critics have questioned building such a facility on farmland when there are numerous vacant industrial sites just a few miles away in Toledo. But Mr. Hall said two years of site research revealed that none of those sites offers the combination of features that the Erie Township location would provide.

Mr. Hall estimated that the terminal will require use of 17 properties in the area. Though most of them have no structures on them, "three to five" are occupied by homes. The project's engineers and designers are expected to attend a "finalization meeting" on Tuesday to determine the exact extent of property U.S. Rail will seek, he said.

U.S. Rail hopes to build the terminal next year, opening in time for the annual autumnal surge in consumer-goods shipments that precedes Christmas.

Toledo-area transportation planners say that on a conceptual level, the U.S. Rail proposal fits well with their visions for establishing the metropolitan area as a major warehousing and logistics hub.

"From the perspective of a transportation professional, I'd say, 'Oh, yeah, this makes sense. This [site] fits the profile for a facility of this magnitude,'" James Hartung, president of the Toledo-Lucas County Port Authority, said, concurring with forecasts that the rail terminal would attract additional development.

Toledo Blade: http://toledoblade.com


Eminent domain looms over arena site: Pittsburgh (PA) Tribune Review, 7/15/06

Shop gets offer it can't refuse

By Andrew Conte

Mark and Goldie Bertenthal got an offer they can't refuse. No, really.

For 27 years, the Bertenthals have run a sign shop out of their Uptown building on Fifth Avenue. But that's where the city-county Sports and Exhibition Authority wants to build a new arena.

A broker contacted the couple this week, seeking a sales agreement by the end of July and saying the SEA would try to take the property by eminent domain if they refuse to sell, Mark Bertenthal said.

"That was about the third (thing) out of his mouth — eminent domain," he said.

Under a recent change in state law, the SEA has until Sept. 2 to decide whether to invoke eminent domain and try taking any of the land it wants for the arena, Executive Director Mary Conturo said Friday.

The change prohibits public agencies from using eminent domain to take private property for private use. Although the arena would be publicly owned, it would be leased to and operated by a private entity.

The SEA probably could skirt the new law by arguing an arena would be used for a public purpose, said Jake Haulk, president of the Allegheny Institute for Public Policy, a conservative think tank based in Castle Shannon.

As with other recent projects such as the proposed African-American Cultural Center, PNC Park and Heinz Field, officials want to be able to threaten taking property even if they do not intend to do it, Haulk said.

"The threat has gotten people's backs up," he said.

The SEA is working on a timeline to act before the law takes effect, Conturo said.

"We are trying to get a decision on the site by the end of the summer," she said. "We need to make a decision whether that site's feasible."

If not, the arena could be built on the Mellon Arena site, she said.

The SEA and Penguins want to build the arena between Centre and Fifth avenues, east of Washington Place. The arena would sit diagonally between Epiphany Catholic Church and the Beth Hamedrash Hagodol-Beth Jacob synagogue.

The site includes 10 private properties. The SEA wants to buy them this summer, relocate tenants by January and have the site ready for construction a year from now. A new arena could open by fall 2009.

Property owners said they had not received SEA purchase offers.

Prices are expected to reflect an increase in property values since Isle of Capri Casinos started acquiring purchase agreements on nearby properties where it wants to build a slots parlor.

"I really don't want to move, but I wouldn't hold up the arena," said Julian Elbling, whose family has owned J&B Sales on Fifth Avenue since 1927. "They really need something here."

The Bertenthals are not refusing to move either. They have started scouting places to relocate, and said they want to make enough on the sale to open at a new location.

The couple's two Fifth Avenue properties — the shop and a parking lot — are assessed at $157,800. They think it will cost much more than that to replace them.

"If they just give us the money for our building and send us on our way, that's like putting us out of business," Goldie Bertenthal said.

The SEA does not own property where the sign shop could locate, but Conturo said the agency would "do whatever we can to make this an easy transition for everybody."

The state has committed to giving the SEA $26.5 million to buy Uptown properties and prepare the site for a new arena. The money would be repaid with gambling profits from the group that wins the license for Pittsburgh's slots parlor.

The Penguins' lease at Mellon Arena expires following the 2006-07 season.

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

Fears of eminent domain linger along West Avenue: Stamford (CT) Advocate, 7/15/06

By John Nickerson

A dozen [Norwalk CT] business and property owners within the West Avenue redevelopment area met with state Sen. Bob Duff, D-Norwalk, yesterday to express concerns about proper compensation if their properties and businesses are acquired by eminent domain.

The midafternoon meeting at Wachovia Bank on West Avenue — a property within the core development area — lasted about an hour as Duff listened and talked about the state legislature's failed bid to create an eminent domain reform bill during the last session.

Keel Evans, owner of European Auto Center on West Avenue, said he purchased his repair shop three years ago for $750,000.

Now, Evans said, presumptive developer Stanley Seligson hasn't offered anything near the $2 million he figures it would cost to relocate to an area with comparable customer traffic in Norwalk.

"We are not being treated fairly. . . . We have to be protected," Evans told Duff. "We would like to know what the state's outlook is on this."

Doug Adams, director of development for Seligson Properties, the firm that has right of first refusal to build the redevelopment project, sought to allay concerns when reached after the meeting, which he was not invited to attend.

"We intend to treat everyone fairly," he said. "We are just beginning the process and want to work with every property owner to reach an agreement."

Adams said Seligson Properties hasn't been chosen by the Common Council and city Redevelopment Agency to develop the 19.8 acres bordered by West Avenue, Academy, Chapel and Orchard streets.

"If we are named the developer, we hope to work with each landowner privately to reach an agreement that both parties think is best," Adams said.

Duff said he was disappointed that the legislature could not agree on eminent domain reforms. He said lawmakers had a range of views on the topic, with some saying that eminent domain should never be used and others agreeing with the current law, which allows land to be taken for anything from a public school or project to private economic development.

Duff, who will face Republican challenger Fred Wilms in his re-election bid this fall, said he would work next term for laws offering better protection for property owners seeking fair compensation.

Tim Currie, who owns Currie Tire on West Avenue, said the idea of redeveloping the neighborhood has been floated since 1988, but no one from the city has ever visited his shop to talk to him about it.

Currie also said two possible development projects for his property fell through because of fears the city may take his land.

"The state should make sure people are taken care of the proper way. . . . People should be compensated for what they are giving up," Currie said, adding that his family business has been at the same location for 78 years.

Joe Tomas, who owns a three-family home and a large building for his electrical company, said he has not been offered enough to relocate his business.

Tomas, who has owned the property for 10 years, said Seligson's offer wouldn't come close to covering moving costs and lost business opportunities.

Duff told the group that it would be two to five years before any properties could be seized through eminent domain. Redevelopment Agency officials have said that it is far from certain whether the city will use eminent domain for any of about 40 properties within the core plan area.

Last month, the Common Council approved the West Avenue redevelopment plan, then amended it to stipulate that the decision to condemn any property would be made on a case-by-case basis.

Stamford Advocate: http://www.stamfordadvocate.com

North Providence bans eminent-domain land takings: Providence (RI) Business News, 7/15/06

Town acts after 2 bills fail to clear Assembly

By Justin Sayles

North Providence [RI] Town Councilman Paul Caranci had been waiting for a statement on eminent-domain takings of land for economic development.

But when it came, it wasn’t handed down by the R.I. General Assembly. It came from Caranci himself.

In a unanimous vote this month, the North Providence Town Council approved a Caranci-sponsored ordinance that strengthens the safeguards against takings of land for public purposes, forcing the town to hold two public hearings before it can seize any private lands, and prohibits the town from taking private land and handing it over to another private entity. The state still has the power to do so.

The North Providence ordinance came two weeks after the close of the 2006 General Assembly session, which saw the introduction of at least six pieces of legislation aimed at prohibiting or further restricting the R.I. Economic Development Corporation’s ability to exercise the power of eminent domain.

The legislature itself was attempting to address the issues highlighted by the U.S. Supreme Court’s Kelo v. New London decision, the 2005 ruling that governments can take land through eminent domain for purposes of economic development, provided that no ordinance or law is in place prohibiting it.

Despite the passage of one bill in each house, the legislators adjourned late last month with the issue still unsettled. The Senate and House bills – sponsored, respectively, by Sen. James C. Sheehan, D-North Kingstown, and Rep. Charlene M. Lima, D-Cranston – failed on the last day of the General Assembly session, when each chamber abstained from putting the other’s measure to a vote.

Under Lima’s nine-line bill, eminent-domain seizures would have been prohibited if undertaken by any “public corporation, municipality, quasi-state agency, state agency, or any political subdivision thereof … for the purposes of conferring a private benefit or use for a particular private entity.”

Sheehan’s four-page bill would have placed greater safeguards on eminent-domain takings for private development, but it would still allowed them in some situations, after a lengthy review. The Assembly and the governor would have had the ultimate say on a project, but only after the RIEDC had submitted comprehensive impact analyses and public hearings had been held. His bill also called for reimbursement to the property owner that Sheehan said would go beyond “just compensation” – the current standard.

Land seizures for private use can be necessary, Sheehan said. For example, if Bristol-Myers Squibb had decided to locate a facility at Quonset Point, instead of in Massachusetts, several businesses might have needed to be relocated. “It’s those types of projects that could suffer if we had an absolute moratorium for any kind of taking,” he said.

But Lima said she couldn’t support a measure, like Sheehan’s, that still would allow such private-development takings. People “have a constitutional right to [their] homes that should never, ever be taken away,” she said.

“It’s unfortunate that we weren’t able to get a state law in place this year,” Lima said. “But I felt I would’ve been selling out the people if we settled for legislation just to say we passed eminent domain.”

Both Lima and Sheehan have been attempting to address the issue since before the Supreme Court made its ruling in Kelo; both vowed this month to resubmit their bills during the Assembly’s 2007 session, should they be re-elected.

Caranci, the North Providence councilman, is also a member of the Government Affairs Committee of the R.I. Association of Realtors. He said that the real estate board had considered both pieces of legislation “palatable,” but that Sheehan’s bill received wider support among Realtors because it went further in details, including the specific assertion that the taking of private commercial property was restricted.

Caranci said he believes all private-development takings should be banned.

Ironically, his interest in the issue arose more than 20 years ago, when he was in charge of eminent-domain takings for the R.I. Resource Recovery Corporation and the organization took land from a family of Polish immigrants. The family was being paid more than fair market value, he said. But on the day the deal closed, the wife came in sobbing.

Caranci said he asked whether they felt they had been fairly compensated. The husband believed they had, but the taking was still disheartening to a family who had come to this country seeking to achieve the American dream of owning their own home, as they had never been able to do in Poland.

“As soon as they finished, the government came and took it,” Caranci said.

Providence Business News: http://www.pbn.com

Eminent Domain Takes a Hit in Town of North Hempstead : The Northender (Oyster Bay NY), 7/14/06

The [New York] State Senate has this week passed legislation (S. 7358-A) sponsored by State Senator Michael Balboni (R-East Williston) that would prohibit municipalities within the Town of North Hempstead from invoking eminent domain to seize private recreational facilities and open them to the public. Senator Balboni’s office says that the measure resulted from a proposal by an unspecified municipality to seize a private golf club for use as a residents-only municipal golf club.

“Eminent domain has its roots in the feudal lords of Great Britain, who used that power to seize whatever land they wished,” Senator Balboni said. “Here in America, while governments may utilize the power of eminent domain for legitimate and important public uses, this local example pushes that power too far. That’s one of the reasons I sponsored this legislation which will not curtail the traditional rights of municipalities. Enactment of this legislation will also help protect school districts and property taxpayers who would have to shoulder the burden if the private golf facility were taken off the tax rolls and safeguard the environment because the facility in question is located in a special groundwater protection area.”

The Northender: http://www.northender.com

Eminent domain: 'It's David against Goliath': Joplin (MO) Globe, 7/14/06

States tighten use of policy

By Andy Ostmeyer

Landowners are often outgunned when battling large corporations and municipalities wielding the power of eminent domain, said John Scorse.

“It’s David against Goliath,” said the Galena, Kan., resident who owns, manages or leases more than 1,500 acres of land in Missouri, Kansas and Oklahoma.

On Thursday, Scorse was present when Missouri Gov. Matt Blunt signed into law restrictions on the use of eminent domain. Scorse believes the new law will help shift the balance to landowners when challenges arise over eminent domain.

“It’s a positive move forward,” he said. “This law is starting to level, or at least give our judicial system an opportunity to help ensure fairness.”

Scorse had earlier testified before the Missouri Task Force on Eminent Domain formed by the governor last year.

“It is a good step,” said Steve Anderson, coordinator of the Castle Coalition with the Virginia-based Institute for Justice, which tracks eminent-domain issues and legislation. “It is really good for farmers.”

States are passing laws in response to last year’s U.S. Supreme Court decision, Kelo v. City of New London, in which that Connecticut community was granted authority to use eminent domain to take private property for a redevelopment project.

In the last year, 26 other states attempted or took steps similar to Missouri and Kansas, Anderson said.

“Heritage value”
Neither Scorse nor Anderson believes reforms enacted in Missouri or Kansas this year go far enough, but each praised what has been accomplished.

“They’ve tried to include items like ‘heritage value’ if the family has owned it (land) longer than 50 years,” said Scorse, referring to the Missouri law. “For a lot of people, land is a part of their family. It’s a way of life. It’s a way to raise your children.”

That designation could add as much as 50 percent to the fair market value of the land in Missouri.

Scorse also likes the fact that, under the Missouri law, farms cannot be declared blighted and that those using eminent domain are required to look at alternative routes that may have less impact on landowners.

Anderson said Missouri needs stricter definitions.

“The problem in Missouri is that factors used to determine blight are vague,” he said.

Anderson also praised Kansas officials. Kansas law now prohibits property from being acquired and transferred from one private owner to another except in limited circumstances. The Kansas law also tightens up blight definitions and limits the abilities of municipalities to take property for economic development.

‘Not good’
Allen Gill, city manager in Pittsburg, Kan., said the new Kansas law probably would have blocked a development that he believes has been good for that community.

In recent years, Pittsburg paid $3.3 million for seven properties that eventually became the site for the Home Depot development on the north side of town. The city used eminent domain to acquire two of the properties, including 7.5 acres from Acton Development Corp.

City officials saw eminent domain as a last resort after failing to reach a deal with Acton, Gill said.

Calls to Acton Development were not returned, but Gill said that without the use of eminent domain, the city would not have been able to develop an area with environmental problems.

Gill also said the development brought in 150 jobs and will — when tax-increment financing is paid off — provide additional revenue for the city.

“This whole project was a $28 million investment,” he said, but more than that, it spun off other growth around one of the city’s entry portals.

“What the project has done for the city is resulted in numerous other developments on North Broadway,” he said.

Gill also said that laws such as those passed in Missouri and Kansas could make it tougher for cities to develop core areas, and could push development to the edge of communities, gobbling up farmland, “and inner cities will be left to rot.

“One of the things it is going to do is make urban-renewal projects a lot more difficult, if not impossible," Gill said. "It’s not good public policy, not sound environmental policy, not sound urban renewal policy.”

Joplin Globe: http://www.joplinglobe.com

Eminent Domain soars since U. S. Supreme Court Ruling: Bayshore Courier (Middletown NJ), 7/13/06

The Real Deal

By Joseph Azzolina

The U.S. Supreme Court’s decision last year to allow cities and states to seize property for “private” development opened the floodgates to eminent domain actions nationwide.

In the year since the Kelo, Connecticut decision, nearly 6,000 properties nationwide have been threatened or taken under that precedent, more than the number that had been seized over a previous five-year period, according to a report by the Institute for Justice.

Long Branch [NJ] residents have been hit hard by the Supreme Court ruling, which allows municipalities to take private property for the purpose of putting up more expensive homes and businesses to rake in more tax revenues for local governments.

If this is not unconstitutional, I don’t know what is. The Kelo decision is a disgrace for what America stands for – freedom, liberty and the right for everyone to own a home and live the American Dream.

“There has been a huge rise in the number of threats to use eminent domain since Kelo. Cities are wielding eminent domain as a club,” said Dana Berliner, a senior counsel with the Institute for Justice and the author of the 100-page Institute report.

People threatened with eminent domain are vulnerable, Berliner said, because they feel compelled to sell or have their home or business seized for a fire-sale price.

At the same time, she said, residents have become more active in trying to thwart land grabs and promoting changes to state law to bar the use of eminent domain, according to a report in The Washington Times by staff writer Joyce Howard Price.

Since the high court’s 5-4 decision in Kelo V. City of New London, Conn., a year ago, 5,783 properties nationwide have been either seized or threatened with seizure under eminent domain.

That number compares with 10,281 examples over the five-year period from 1998 to 2002, The Institute found. The Institute is the public interest law firm that argued the Kelo case before the Supreme Court.

During that period, threats were made to seize 6,560 properties, and 3,721 condemnation filings or authorizations were recorded.

Constitutionally, municipalities are allowed to confiscate private properties for “pubic” uses, such as roads, bridges, dams, forest fire protection and other public interest uses.

But the Supreme Court decided to take “private” property to help older communities to generate more tax revenues. This, to me, is not the American way.

In the past year, 5,429 property seizures have been threatened for economic redevelopment projects, plus 354 condemnation filings or authorizations. In the Kelo case, the Institute represented nine Connecticut homeowners who tried unsuccessfully to halt New London’s takeover of their properties for economic development. The court held that private development has a “public purpose” if it will increase jobs and tax receipts.

Give me a break!

“The court ruled that the U.S. Constitution allows government to use eminent domain to take and bulldoze existing homes and businesses for new private commercial development, holding that the mere possibility that a different private use could produce more taxes or jobs is enough reason for condemnation,” the report said.

“Opening the Floodgates” documents 117 projects in the District of Columbia (DC), including Maryland, that have involved the use of threatened use of eminent domain for private development in the past year.

“The vast majority involved the removal of lower-income residents and smaller businesses to attract wealthier people or more prominent businesses, Berliner reported.

“Of the 117 projects, nearly half involved taking low-income houses, apartments and mobile home parts to construct upscale condominiums or other upscale residents and new retail development. Cities across America are working hard to drive out the working poor,” she said.

Baltimore is “on an eminent domain spree” because it intends to seize 75 properties for private development in this year alone.” Berliner said.

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

Federal eminent domain limits still important: Farm Week (IL Farm Bureau), 7/12/06

While Farm Bureau policy specialist Rick Krause believes Illinois “has done its job” at least tentatively to block private use of eminent domain, the work remains unfinished across much of the U.S. and in Washington.

Recognizing concerns over last summer’s U.S. Supreme Court ruling that upheld government eminent domain “takings” for private economic development, President Bush recently issued an executive order declaring that federal agencies cannot seize private property for anything other than public projects.

The order directs the U.S. attorney general to provide federal agency guidance on eminent domain takings. American Farm Bureau Federation President Bob Stallman was “appreciative” of Bush’s order — calling it a “positive step” toward blocking use of eminent domain for commercial projects — but stressed continued need for state and congressional remedies.

Nearly two dozen states this year have eyed measures to curb eminent domain use, and a recently approved Illinois bill awaits Gov. Rod Blagojevich’s signature, which is required by month’s end if new protections are to be implemented.

The measure shifts the burden of proof for takings from the homeowner or landowner to local agencies, which would be required to present “clear and compelling” evidence that a taking was in the public interest or would help remedy a “blighted” area. It would provide compensation for eminent domain sellers that more closely matches federal law.

However, Illinois Farm Bureau director of state legislation Kevin Semlow noted private projects that receive federal funding are subject to federal eminent domain authority.

Federal eminent domain statutes remain more restrictive than prospective Illinois law, and thus Illinois landowners still could be vulnerable in some cases.

Further, Semlow cited U.S. cases where “open territory” has been considered part of a blighted area, opening the door to potential ag takings. Pennsylvania lawmakers recently voted to apply the “blight” requirement exclusively to residential areas.

“A lot of the problem is at the state level, but you could have some problems at the federal level, which is why we need to have federal legislation,” Stallman told FarmWeek.

“But time is growing short before the November elections. There are some big issues still on the table for Congress. To be honest, I don’t know what our prospects are.”

AFBF’s Krause said Bush’s order could help spur congressional action to limit eminent domain use. U.S. Sen. John Cornyn (R-Texas) proposes to bar federal funding for state- or locally supported projects that use eminent domain.

Meanwhile, property rights advocates are looking to the lower courts to head off the impact of the 2005 Supreme Court decision.

Norwood, a Cincinnati suburb, used eminent domain to seize a reportedly unblighted neighborhood for a proposed shopping mall, and the Ohio Supreme Court is expected soon to rule on the municipality’s action.

However, an Ohio district appeals court ruled in late June against an 80-year-old woman who had fought Cincinnati’s attempt to take her house for a road project that purportedly would benefit a $122 million hospital expansion.

“Depending on what happens, I think (the Norwood case) could be the next (U.S.) Supreme Court case,” Krause said.

Farm Week: http://farmweek.ilfb.org

City's eminent domain move reaches court: Princeton (MN) Union Eagle, 7/13/06

By Joel Stottrup

A land-condemnation hearing continues in court in Milaca [MN] today (Thursday) regarding property the city of Princeton wants easements on for extending sewer and water mains.

It appears there are about 10 parcels the city is still seeking easements for on the city’s west edge after a few landowners settled with the city.

Property owners named on the eminent domain petition from the city are Robert W. and Madelyn N. Soule, New Life Christian Center, Scott J. and Paula J. Schmidt, Paul C. and Susan G. Walker, Matthew J. Walker, Robert M. and Shearon D. Pontious, Michael F. and Toni J. Williams, Jane E. Odgers, Frank D. Simon Jr., Carol Simon, and Gale D. and Dennis M. Hatch.

Some banks and limited liability partnerships, as well as United Power Association, are also listed involved in some of the titles.

The City Council declared on March 10, 2005, that it would go through eminent domain, also known as condemnation proceedings, if it had to in order to acquire the easements.

Eminent domain allows units of government to force an owner to sell their land or grant an easement if the purpose meets the law.

Eminent domain has been a controversial subject because of the forced method and because of some cases of property owners saying the amount of compensation was too low for the value of the land.

The big push for the city wanting the easements came when Solid Ground Development more than two years ago proposed putting in a housing development called Heritage Village on about 200 acres.

It actually was originally called Lakes of Heritage Village and the shortening of the name was one of the many changes during the proposal process. The last visible hang-up in the 519-unit proposal was over the value of what Solid Ground was willing to give as part of a park dedication fee. Solid Ground claimed the city was asking too much.

The city annexed the 200 acres in increments and after about two years of wrangling between Solid Ground and the City Council about requirements, Solid Ground placed the proposal on hold early this year.

City Administrator Mark Karnowski told the council last spring the city should still get the land easements before any laws are changed that would make it more difficult.

The Minnesota Legislature did alter some language in the 2006 session in the state’s eminent domain law. Landowner Odgers noted that the city’s move to proceed with eminent domain in court took place before Gov. Pawlenty signed the bill.

Even without Heritage Village needing the city sewer and water now or later, there is other developable property the mains could serve.

The hearings are being presided over by Seventh Judicial District Judge James Ruble.

The first hearing was June 28 and two questions were asked that day for Ruble to decide.

One is whether the city’s petition for the eminent domain proceedings meets the purpose allowed under law, and the second is whether the city is entitled to immediate possession upon 90 days after the city’s notification that it would be asking the court to grant the easements for the amount of money the city is offering.

The 90-day period would end late this month, according to the city’s consulting attorney for civil law cases, Richard Schieffer.

The questions put to Ruble were not decided at the June 28 hearing.

Schieffer said last week the offering amount will not be determined until three land commissioners determine the value of the land. The judge will appoint those commissioners.

Mike Nielson from WSB and Associates, the city’s consulting engineer for the sewer and water main extension, was a witness for the city at the June 28 hearing.

The city had three exhibits at the hearing.

One was an aerial photo of the city, the second was an outline of the 1,800 acres that would be served by the water mains, and the third was a council’s resolution.

The water mains would be a little more than three-fourths mile long, Schieffer said.

Schieffer, who has dealt with many eminent domain proceedings during his career as an attorney, laid out the basics of how it works.

If the judge rules that the petitioner (the city) has met the rules, the judge appoints the three land commissioners and three alternates.

“The commissioners kind of take over from there,” Schieffer said.

The land commissioners’ first meeting is within 10 days of the judge’s order and the meeting is open to all involved.

The second meeting of the commissioners is at the location of the “improvement,” in this case where the mains would be extended, Schieffer said.

This meeting at the site is called a viewing, according to Schieffer, and the purpose is to walk the site and get a view of the involved property.

If any property owner or the city disagrees with the price the commissioners decide, either can petition the decision back to the court, said Schieffer. Then there is a jury trial.

If either party is dissatisfied with the jury’s findings, they can appeal it to the Minnesota Court of Appeals.

“It could be a long process and there are a lot of checks and balances,” Schieffer said.

Schieffer called eminent domain an unusual and “quite technical” procedure for most lawyers.

“It should be that way, because you’re taking an interest in someone’s land so you must follow the statutes,” Schieffer said. “And I like to do it that way.”

Landowner Odgers said she thinks the concerns of the landowners who have not come to an agreement with the city on the eminent domain action is this:

“The reason to go forward [with the sewer and water main extension] doesn’t exist at this time because Heritage Village is on hold and the landowners are not in agreement with the amount the city is offering, and they are concerned with the assessment.”

Odgers explained how property owners deemed to benefit from the water and sewer mains running past them would be assessed.

The Odgers property the city wants an easement on is where her home sits, not her dental office on the west end of the property. Her home is surrounded by evergreens and she said she doesn’t want to lose any of them. The easement would be 33 feet wide and 1,000 feet long.

She also noted that 33 feet of easement is being sought across from her easement, meaning the city wants a 66-foot wide easement, which is the width for a road.

The City Council said it isn’t planning on a road now but wants the ability to have one someday along the easement.

Odgers also said that she feels what she is being offered for her easement is below the market price.

Princeton Union Eagle: http://www.unioneagle.com

Derby businesses fear eminent domain: Derby Valley Gazette (Derby CT), 7/13/06

By Kenneth Hoffman

As Derby [CT] begins its downtown revitalization in earnest, the specter of eminent domain has soured the process for some business owners in that area.

Carl Yacobacci and Brian Calvert are leading a group of six Main Street business owners in a push for the Board of Aldermen to pass new restrictions on the city's use of its eminent domain powers.

The proposed ordinance calls for a variety of controls over the city's ability to use eminent domain in obtaining privately owned property.

The crux of the matter is in paragraph E: "The city shall not sell, lease, transfer, or in any other way convey any private premises taken by it to a private individual or business entity."

In other words, the business owners want to prohibit city officials from taking property through eminent domain and turning it over to private developers.

Several other states have passed such restrictions in the wake of a Supreme Court ruling on the matter, but Connecticut has not.

The issue of eminent domain is on the agenda for the July 27 Board of Aldermen meeting, and the fate of the ordinance is still in doubt.

Board of Aldermen President Kenneth Hughes said the aldermen "don't feel confident passing the ordinance while in negotiations" with property owners over the project.

A representative of Ceruzzi Derby Redevelopment LLC, the developer for the downtown project, was unavailable for comment. However, Mayor Anthony Staffieri, who co-owned a downtown restaurant until recently, said city officials and the developer "are looking to deal [with the business owners] in a fair and equitable way."

The redevelopment plan entails demolishing many of the buildings along Main Street and replacing them with multi-use structures.

These new buildings would house shops, restaurants and living spaces. There would also be a parking garage and grassy town square.

Being heard
The coalition led by Calvert and Yacobacci have been making themselves heard lately.

They handed out literature at Derby Day with copies of the proposed ordinance, information sheets on eminent domain, and a petition they asked Derby residents to sign in support of the ordinance.

They plan to attend the July 27 Board of Aldermen meeting to ask the board to pass the ordinance.

"To take one's private property to give to a private company ... it's just really wrong," said Yacobacci, who owns a cabinet shop.

Though they are not willing to give up the fight for their businesses, Calvert said they do support the redevelopment project.

"We have a big stake in this," he said. "We want to see Derby progress. We need some action, and we want to be part of it."

Calvert, who owns Calvert Safe and Lock Ltd., said he just wants the right to "sit at the table" and negotiate with Ceruzzi Derby Redevelopment.

He said the only offer he has received for the site that houses his business was more than a year ago, for $235,000.

"We don't want money," Calvert said. "We want a building." He said the business owners are willing to move and they want to stay in Derby.

"We've got our bags packed," he said. "Just tell us where to go."

Calvert's fear is that he and the other five hold-outs will be cut out of negotiations and will be forced to accept too little for their property.

He likened it to selling a car, but being told by the manufacturer what the price should be.

"It's just wrong," he said. "Absolutely un-American."

Calvert said he is torn by his support for the redevelopment and his personal worry about being forced out through eminent domain.

"I don't want to be sacrificed on the altar of redevelopment," he said.

"Instead of being the joyous, wonderful project that it is," Calvert sighed, "there is this cloud."

Where to go?
Calvert said he is willing to move his business to the so-called Department of Transportation (DOT) property near BJ's Wholesale Club, off Pershing Drive.

This is one site the city may consider for relocating the downtown businesses.

Hughes said the city has hired relocation expert Phil Michalowski to examine the options.

Joseph Orazietti, who is a member of the Derby Redevelopment Agency, chairman of the Derby Democratic Town Committee and former president of the Board of Aldermen, said he is in favor of moving the downtown businesses to the DOT property.

"I think it is something the city should look at very seriously," he said.

Orazietti also said he does not think eminent domain is a wise course for Derby officials to take.

"I don't think it is a good thing, because everyone involved is unhappy," he said.

The mayor and the Board of Aldermen are enthusiastic about the redevelopment project, and everyone seems to be anxious for work to begin.

"Everything is going in the right direction," Staffieri said. "It's going very well."

Matthew DeBarbieri, Republican First Ward alderman, said, "It's really moving along well. It is reasonable to assume that in five years, we could have buildings up."

Ronald Sill, the lone Democratic alderman, was also optimistic.

"I'm all for pushing this through," he said. "It's a shame that it's taken this long."

They both seemed loath to consider the use of eminent domain in Derby.

"We haven't even discussed it as a possibility," DeBarbieri said.

As a last resort to protect the businesses, Sill said he would support the proposed ordinance.

Staffieri was even stronger in voicing his opinion on it. "Derby has no intention of using eminent domain," he said.

Derby Valley Gazette: http://www.zwire.com

Governor signs bill restricting eminent domain: Homer (AK) News, 7/12/06

By Hal Spence

Gov. Frank Murkowski has signed a bill clarifying and restricting how Alaska governments may use the power of eminent domain.

House Bill 318, sponsored by Rep. Lisil McQuire, R-Anchorage, and co-sponsored by Kenai Peninsula legislators Reps. Kurt Olson, R-Soldotna, and Paul Seaton, R-Homer, takes effect immediately.

The new law limits eminent domain from being used to take private property to benefit private economic development, except under certain specific conditions. It also prohibits the taking of all or part of someone’s primary residence for recreational facilities or projects.

A 2005 ruling by the U.S Supreme Court in a Connecticut civil case (Kelo v. City of New London) prompted the Alaska Legislature to pass HB 318. In that case, the court upheld the city’s power to take private property for a private development project, reasoning that the new development would have a broader public benefit by expanding the city’s property tax base, among other things.

The ruling drew immediate criticism around the country, including in Alaska. It prompted the Kenai Peninsula Borough Assembly to amend the borough code in 2005 preventing the borough from taking private property from one owner for the exclusive use by another private party.

Upon signing HB 318 into law, Murkowski said Alaskans were justifiably upset by the Kelo decision and wanted the use of eminent domain limited in Alaska.

“Out of 365 million acres of land in Alaska, fewer than 2 million acres — less than one percent — are owned privately by individuals,” the governor said. “An out-of-control government, deciding that taking private property through condemnation to benefit private economic interests, was simply unacceptable to Alaskans. In light of that legitimate concern, it was my pleasure to sign HB 318.”

Seaton agreed that eminent domain should be used for public projects for the public’s benefit, not to enhance the private projects of private parties.

“It’s important because private property rights are something that Alaskans hold very dear and rely on for planning for the future,” Seaton said.

“I had some real concerns about the Connecticut decision,” Olson said Friday. “To go in and take private land and use it for hotels or condos, I don’t think it is right.”

The new provisions in the eminent domain statutes do provide some exceptions to the ban on takings for private benefit. For instance, a taking is allowed when the property owner losing the property agrees or when the Legislature authorizes the taking by passing a separate statute covering that specific case.

Private property also may be transferred through eminent domain to create a “way of necessity” for essential access to land for the extraction or use of resources.

Asked who makes the judgment deeming something “essential,” Seaton said that in all likelihood it would be the courts unless the property owner and the property taker reached an out-of-court accord.

A provision banning the taking of a private property owners’ primary residence for recreational facilities or projects also bans taking land within 250 feet of that private residence. That clause gave Seaton pause, and he said he opposed it primarily because in some locales, such as in small cities like Homer, a reluctant private property owner could thwart development of otherwise public benefit projects like inner-city bike and pedestrian paths.

Lawmakers added another subsection to the law providing a way around the new limitations including the distance restriction. To do that, the Legislature must pass a separate bill specific to a project.

Seaton said that allows governments to come before the Legislature and show why a taking within 250 feet of a private residence, for instance, is in the public interest.

Homer News: http://www.homernews.com

Eminent Domain Legislation Signed Into Law: KMBC-TV9 (Kansas City MO), 7/13/06

Critics Say Reforms Focus On Helping Those In Rural Areas

[Missouri] Gov. Matt Blunt signed legislation restricting use of eminent domain Thursday, saying it bolsters the rights of private property owners.

The measure comes in response to a Supreme Court ruling last summer that allowed the taking of private property through eminent domain for economic redevelopment.

"That's not a sufficient standard," Blunt said while surrounded by farm and business interests and lawmakers at a Capitol bill signing ceremony.

Blunt called the bill "a tremendous step forward for homeowners and family farm owners and property rights in our state."

The Missouri law bars the taking of private property "solely" to increase taxes or create jobs. In addition, property owners whose land, homes or small businesses are condemned under the new standards would get a boost in their compensation. An earlier version of the bill would have set a tougher standard of barring property taking for "predominantly" economic development reasons.

"Owning private property is as sacred an issue as anything we have in this country," said Charlie Kruse, Missouri Farm Bureau president, adding that with the new law, "it's going to be a higher hurdle, which it should be, to climb in order to take people's property from them."

The Farm Bureau had raised concerns during the legislative process that the bill wasn't doing enough to protect private property owners but was satisfied with the end result.

Sen. Chris Koster, R-Harrisonville, said the law recognizes that fair market value is not a sufficient standard when taking property by eminent domain because the property owner is unwilling to leave. So the law includes a 25 percent bonus, and if a home or small business has been owned by the same family for at least 50 years, a 50 percent bonus.

The measure also bars blighting of farmland, a trigger for taking property through eminent domain. But lawmakers did not change the definition of blight, even though some say its original intent has been stretched to the point of abuse.

Critics have said the reforms focus on helping farmers and those in rural areas while doing little to help city dwellers.

The Arlington, Va.-based Institute of Justice praised the changes in law, including the limits on which entities can use eminent domain power and the ban on blighting of farmland. But the organization, which pushes to protect personal property rights, said Missouri's blight definition still needs to be narrowed.

"Even with this bill, the state's blight laws still contain such broad, sweeping language that leave perfectly fine homes and businesses at risk of being condemned," said lawyer Steven Anderson, coordinator of the institute's Castle Coalition.

"Citizens will only have meaningful protection against eminent domain abuse when blight can only be used to describe property that is an actual danger to public health or safety."

Missouri is the 27th state to enact eminent domain restrictions following the 2005 Supreme Court ruling, according to the institute.

Under the new Missouri law, property owners also would get more information about the proceedings. The bill includes a "Property Owner's Bill of Rights," which those subject to eminent domain takings must receive, explaining what property a condemner seeks, why it's wanted and the landowner's legal rights, such as getting an appraisal at the condemner's cost.

KMBC-TV9: http://www.thekansascitychannel.com

Earl plans to take popular bar through eminent domain: Pottstown (PA) mercury, 7/12/06

By Brandie Kessler

A decision by [Earl Township PA] officials to take several properties along Manatawny Creek has one business owner frustrated and confused.

The township supervisors voted Monday to begin eminent domain proceedings on nine parcels of land, including The Tiki Bar, which Township Supervisor John Hetrick said is one of nine properties the township wants to acquire as part of a "hazard mitigation project."

"Everyone of those properties constitutes a hazard to the community and the environment, not to mention the people," Hetrick said.

Hetrick referenced floods in August 2005 and October 2005, saying the Manatawny Creek resembles the Colorado River when the water rises, and said floods put a spotlight on hazards like propane tanks that were washed down the creek during flooding.

Hetrick said the floods themselves are a hazard and are the reason the land is being taken. The plan, Hetrick said, is to make the area, including where The Tiki Bar, owned by James Finegan, sits, open space.

Finegan, who has owned and operated his outdoor restaurant for the past 17 years, said he is confused by the township taking his land, which is home to a successful, well-known business.

"In 17 years I’ve had the most successful outdoor restaurant in Berks County," Finegan said. "For Earl Township to decide they want to build a park (on my property) is ridiculous."

Finegan said he has heard the township’s reasoning about safety, and doesn’t believe any of it. "They’re completely full of crap," Finegan said.

Finegan said he has complied with all the township’s requests to make his property safe, including securing his propane tanks, which were anchored at cost to his supplier, Eddinger Propane Gas, having his sewer closed so that sewage cannot get into Manatawny Creek in the event of flooding, and his well is vented above flood level.

"I’ve done all the work I’m supposed to do, and now they’re gonna take the property anyway," Finegan said.

Finegan believes that the township may be acting, at least in part, on residents complaints about the Tiki Bar, which he said has been a common occurrence since he has owned the property and new residents have moved in — even despite his settlement with the township to make arrangements to closing his establishment at midnight, when he could stay open until 2 a.m., as a courtesy to residents around The Tiki Bar.

"I see this as the final act in a long play of (Earl Township) screwing with me," Finegan said.

Finegan said he has only experienced problems with flooding twice since he’s been at the site, and both times he was able to make a timely recuperation and get back to business. Finegan said he has flood insurance, and losing this restaurant would be more costly than any flood.

"It’s my livelihood," Finegan said. "If the government goes and buys your house, you can go and buy another house. A business is a little different. You can relocate a house — you can’t relocate a business. I’ve spent the prime years of my life establishing this business. How does any government come in and say, ‘OK, you’re not allowed to earn a living anymore?’"

Finegan said he doesn’t know what to do yet, but believes he will have to go before a judge to keep his property, or be justly reimbursed for his business, which he said he needs to have for at least another 10 years to get back financially what he has put into it.

"I’m self-employed, I don’t have a retirement program," Finegan said. "I have The Tiki Bar. They’re not going to give me $40,000 and walk away. They’re going to retire me and they’re going to retire me large."

Hetrick denied that complaints from residents had anything to do with the vote to acquire The Tiki Bar property.

"There’s no way on God’s Earth that I would support getting rid of nine properties just to get rid of The Tiki Bar," Hetrick said.

The eminent domain process is lengthy and involves hearings in Berks County Court.

Pottstown Mercury: http://www.pottstownmercury.com

Grand jury's eminent domain stance lauded: (Redding CA) Record Searchlight, 7/12/06

Property owners who would be affected hope the report stops city from using the law

By Marc Beauchamp

The Shasta County [CA] grand jury's views on the use of eminent domain were hailed Tuesday by the owners of two high-profile properties the city of Redding has long eyed for redevelopment.

"We're pleased as punch, exceedingly happy," Demetra Kutras said of this week's grand jury report, which recommends against use of eminent domain for private development of the Park Marina riverfront and the Parkview Market near City Hall "without a binding referendum to determine public sentiment within the city."

Hardev Bal, who bought the Parkview Market in 1994 after arriving from India, said a referendum is a "good idea, they can see whether this is desperately needed. They (the city) can't come in and do whatever they want. There should be some kind of checks and balances."

City planners envision a multi-story mixed-use development on Bal's property as part of efforts to revitalize the Parkview neighborhood.

Eminent domain "should be really only for public use like schools and those kind of things and not for private developers to make money," Bal said.

Demetra Kutras said she hopes the grand jury report "will put an end" to talk of using eminent domain on the riverfront property, which has been in her family since the 1930s. It's now owned by Kutras, 53, and her brother Chris, 55.

But much of the land is controlled by the McConnell Foundation, which acquired long-term leases on the property in the 1990s. Most of the leases expire in 2020.

The city and McConnell have discussed transforming the riverfront property — now home to many aging commercial buildings and businesses such as an aqua golf driving range and a trailer park — into a showcase of parks and trails with some limited commercial development.

The Kutrases maintain they weren't consulted on the plans. In the past, family patriarch George Kutras has been sharply critical of Lee Salter, head of the McConnell Foundation, and Mike Warren, who retired as Redding city manager in April.

A year ago, a committee appointed by the Redding City Council held several meetings about Park Marina that included the Kutrases and representatives of the foundation.

Although there has been no breakthrough, Demetra Kutras is hopeful of progress. "We feel we can all work together," she said.

She praised Kurt Starman, Redding's new city manager, whom she described as "very sound, energetic and forthright — a man who has lived here his whole life. I look forward to working with him."

Record Searchlight: http://www.redding.com

Legislative leadership's move to kill Eminent Domain amendment: Cherokee Sentinel (Murphy NC), 7/12/06

Letter to the Editor

By Kieran Shanahan, N.C. Property Rights Coalition

A [North carolina] State House Committee refused to even hear a bill calling for a constitutional amendment to prevent government from using eminent domain authority to take our private property for economic development purposes. Instead of allowing this important bill to be heard, it was sent to the Rules Committee to die without fair consideration.

The legislators who voted to kill this important bill would have you believe that legislation passed earlier during this session ensuring that our private property is safe from the long arm of eminent domain, and it does not provide North Carolinians with the level of protection we deserve. Legislators come and go, and laws can easily be changed. That's why we need a state Constitutional amendment to ensure that North Carolinians' private property is safe from eminent domain abuse.

Cherokee Sentinel: http://www.cherokeesentinel.com

Voters get say in eminent domain: Desert Dispatch (Barstow CA), 7/12/06


Californians may have the opportunity this fall to right a massive wrong the Supreme Court perpetrated last year when it ruled that local governments can abuse its power of eminent domain to take private property and sell it to private developers.

The California Protect Our Homes Coalition has gathered enough signatures for the November ballot for an initiative to restrict the use of eminent domain.

Last year, the Supreme Court, in the Kelo v. New London decision, authorized governments to take private property and sell it to private developers as long as a public benefit could be shown. This serious misinterpretation of the intent of eminent domain shocked property rights advocates across the political spectrum.

The Protect Our Homes Act would restrict the use of eminent domain in California to actual public works — roads, public schools and the like. Local government would no longer be able to force a small business owner to sell his property to the city and then turn around and sell the land back to some national business chain in the hopes of getting more tax revenue.

Eminent domain may not seem like a serious issue in Barstow right now, but if you've followed the city's growth trajectory over the past couple of years, we could see problems down the line if government authority in this area isn't reined in.

A large chunk of Barstow real estate was named an Enterprise Zone by the state last year. This designation provides for tax credits and benefits for companies that locate within the zone.

While most of the attention has been bringing business into the large undeveloped areas within the zone, such as the proposed Wal-Mart distribution center in the Lenwood area, it's important to note that the zone includes much of the Main Street area in Barstow, including a number of homes and small businesses.

Under last year's Supreme Court ruling, Barstow City Council could use eminent domain to take ownership of a number of Main Street businesses and then turn around and sell the land to Circuit City to develop (just as an example), all in the name of increasing Barstow's tax revenue and allegedly serving the public good.

We don't foresee the current City Council doing something so radical, but this example wasn't developed in a vacuum. Stories like this are taking place across the state.

If a city's growth requires that personal liberties be violated by the government, we would take that as a lesson that the economy of the area wouldn't support the growth on its own. Eminent domain should only be used for public projects, not as a plum deal between city governments and big developers.

Desert Dispatch: http://www.desertdispatch.com

Eminent Domain May End American Fork Land Dispute: KUTV-TV2 (Salt lake City UT), 7/10/06

Negotiations for private land needed for a new freeway connector have stalled and the city [of Pleasant Grove UT] may have to exercise eminent domain in order to complete construction.

The highway project is a five-lane road designed to connect the Interstate 15 interchange from American Fork to Lindon.

Talks will continue between the city and the Smith family for their land in American Fork, but only for a time, said city administrator Frank Mills. Construction has already begun in Lindon to avoid delaying the project and losing an estimated $5.2 million in federal funds, he said.

Stan Smith said his family refuses to work with Pleasant Grove because the city has not met their financial conditions for the more than 3,900 feet of land needed for the highway project. The city three years ago offered the family credits of $100,000 per acre that would go toward future improvements for development, but Smith said the family wanted cash.

“We cannot deal with the city because they cannot deal straight up and pay what the ground is now worth, three times what it was, and every day the price goes up,” he said. “The public needs the road, but it is not our responsibility to donate land.”

The stalemate could leave the city with no other choice but to use eminent domain.

“If they still say ‘no,’ the only other choice is to step in and condemn the property and the owners will receive fair market value for their land based upon current appraisals,” Mills said.

Mills said the city is carrying on with the project while negotiations continue.

KUTV-TV2: http://kutv.com

Eminent Domain - Protecting Property Rights and Job Growth, 7/11/06

Press release

By Tom Vilsack

The public deserves an informed debate and discussion about eminent domain. While some would have you believe this is a simple, black-and-white issue for our state, cities and towns and property owners, they are leaving out important pieces of information that all Iowans have a right to know. I have worked hard on this issue to try to understand the balance between the rights of property owners and the opportunities that some communities are trying to create for themselves.

The United States Supreme Court caused a real uproar last year when it confirmed the ability of the government to use eminent domain for economic development purposes. Many states sought appropriate restrictions on the use of the power and rightfully so. In doing so they sought to strike the right balance between proper restrictions and economic opportunity.

Years ago Iowa struck a balance between the need to protect the arbitrary taking of private property and the common good that can be served by projects that create jobs or provide valuable infrastructure. The legislature created an elaborate process for the taking of property under limited circumstances complete with a requirement for paying fair market value for any property taken and appeal rights if property owners were not satisfied.

In light of the U.S. Supreme Court’s decision, the Iowa legislature this year attempted to draft new legislation to strengthen that process, but during the crafting of the bill the dilemma of striking a proper balance between restrictions and economic opportunity surfaced in a real way.

The initial draft of the legislation fixed July 1, 2006 as the start date when new restrictions would go into effect. As the legislation moved its way through the process the community of Clinton raised objections. The start date and some of the restrictions the legislature proposed would prohibit them from building a new $280 million plant and creating over 100 good paying jobs.

Leaders in Clinton and the surrounding area urged the legislature to move the start date so their project could move forward. The legislature had to choose between restrictions and opportunity. When confronted with that choice the legislators chose opportunity and delayed the implementation date to October 1, 2006.

I think the legislature made the right decision in this instance. The new plant will be a significant boon to Clinton. But they forgot to think about all of the other “Clinton’s” who are trying to create and retain good paying jobs and offer economic hope to their citizens.

When the bill came to me for signature I faced the same choice that the legislature did, but on larger scale. I had to think about the entire state and the affect this legislation would have on projects in Dyserville, Burlington, Pella and who knows how many others down the road. Should I sign a law knowing that other projects and jobs important to communities and the common good would be lost or veto the legislation and urge legislators to work with me to strike a better balance?

In essence, I made the same choice as the legislature and vetoed the bill while offering to work with them to strike a better balance. Some in the legislature were willing to do so while others wanted to attempt to override my veto in a special legislative session.

Since I took action on this bill, I regret that there has been a lot of overblown political rhetoric and not enough debate on the substance of the issue. As public officials our job is to find solutions and in this case that means passing an eminent domain bill that protects both private property rights and job growth in our state.

To that end, I will be offering eminent domain legislation this week that I hope legislators will take a serious look at as they come back into special session. Putting all of the rhetoric and campaigning aside, I think legislators will see what I am offering to be very similar to the bill they passed with a few exceptions that allow us to better protect property rights and job growth.

I continue to stand ready to work with legislators to improve the law so we can protect the property rights of homeowners and others and maintain the opportunity for economic growth for Iowa communities. With hard work we can achieve both.

Tom Vilsack is governor of Iowa