County may let voters curb eminent domain: Riverside (CA) Press-Enterprise, 7/28/06

By Duane W. Gang

San Bernardino County [CA] Board of Supervisors Chairman Bill Postmus proposed a ballot measure Thursday that, if approved by voters, would ban the county from using eminent domain to give land to a private developer.

Supervisors will vote Tuesday on whether to place the measure, which would amend the county's charter, on the Nov. 7 ballot.

Ever since the U.S. Supreme Court upheld a Connecticut law last year allowing the use of eminent domain for economic- development purposes, Postmus has heard from residents concerned about the court's decision.

"Just because a piece of property might generate more tax revenue under another use should not give government the right to take that property," Postmus said in a statement.

"The role of government is to protect its citizens, not to harm them," he said. "This power must be limited, and used only for necessary public purposes such as highways and flood-control projects."

Postmus did not respond to a request for an interview.

His chief of staff, Brad Mitzelfelt, said the current board would not abuse eminent domain but won't be around forever. The ballot measure "provides a guarantee," he said.

Riverside Press-Enterprise: http://www.pe.com

Update due on eminent domain law: Cincinnati (OH) Enquirer, 7/28/06

By Gregory Korte

At the end of its 58-page decision on eminent domain Wednesday, the Ohio Supreme Court added a footnote that could substantially raise the stakes for lawmakers trying to reform the state's decades-old eminent domain statute.

"Footnote 16," as it's already being called, was a coded message to lawmakers: Reform the law allowing government takings, or the courts may strike down Ohio's eminent domain law.

"I think the Supreme Court in that footnote basically said Ohio eminent domain law had become too pro-government and not enough pro-owner," said state Sen. Timothy J. Grendell, a Cleveland-area Republican who co-chairs the Ohio Eminent Domain Study Task Force.

The Supreme Court decision came just three working days before that task force needs to send its recommendations to the General Assembly.

That report could include:
  • A tightened definition of "blight" that would set a standard for how bad the condition of a property should be before the government can take it.
  • A package of procedural reforms that could allow property owners to get moving expenses, loss of business and attorney fees.
  • A proposed state constitutional amendment that would remove eminent domain from cities' home-rule powers so standards would be consistent across the state. Some lawmakers hoped to send it to voters in November, but it probably won't appear until next year, Grendell said.

"What this says to lower courts is, 'Stop rubber-stamping and start using your own judgment. That's your job,' " said Dana Berliner, the plaintiff's attorney in the Norwood case. "That message is throughout the opinion."

Georgetown University law professor John D. Echeverria dismissed the footnote as a "p.s. to the legislature." The real message came early in the decision, he said. "Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers," Justice Maureen O'Connor wrote for the unanimous court.

That could shift the burden to the government to prove its need for the property.

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

Regents give OSU authority to use eminent domain for athletic village: KTEN-TV10 (Denison TX), 7/28/06

Oklahoma State University officials now have authority to use eminent domain to acquire the final piece of property where the university plans to build an athletic village.

The Oklahoma A-and-M Board of Regents today voted to give O-S-U the authority.

O-S-U President David Schmidly says just one piece of property — a rental house — remains of the 87 the O-S-U Foundation wants to buy for make way for the village. Plans call for a 316 million dollar village with a new baseball stadium, upgraded facilities for track, tennis and soccer and an indoor practice facility for football, baseball and other sports.

Schmidly says he hopes eminent domain isn't needed for the property which the Payne County Assessor's Web site says is owned by McCloskey Brothers Incorporated. Schmidly says negotiations for the property are continuing but declined to say how much is being offered.

KTEN-TV10: http://www.kten.com

Coalition Lobbies for Eminent Domain Restrictions: The Heartland Institute, 8/1/06

By Scott LaGanga

Frustrated by slow progress in the U.S. Senate on eminent domain reform, 53 national and state organizations have banded together to pressure the Senate to address the Supreme Court's June 2005 ruling in Kelo v. City of New London, Conn.

In a letter to Senate Majority Leader Bill Frist (R-TN), the coalition notes, "The freedoms enshrined by the Framers of the Constitution over two hundred years ago must be once again upheld and protected by Congress today. The passage of this type of legislation is an essential milestone in reaffirming the rights of American property owners."

Stalled in Senate
The U.S. House of Representatives has already acted. On October 25, 2005, it passed a resolution condemning the Supreme Court's Kelo decision. On November 4, it voted 376-38 to pass H.R. 4128, the "Private Property Rights Protection Act of 2005," which would withhold federal funds for two years from entities that abuse eminent domain.

Legislatures in 47 states have introduced, considered, or passed legislation aiming to curb abuse of eminent domain. Senate action is being sought to cement the House action of last fall and provide protection from eminent domain abuse to citizens in every state, regardless of whether their state legislatures have acted.

Neither a proposal by Sen. John Cornyn (R-TX) nor the House-passed legislation has managed to reach a committee vote in the Senate. The Senate Judiciary Committee has been occupied by two Supreme Court nominations and recent activity on immigration.

Planners Defend Seizures
The National League of Cities, American Planning Commission, and other organizations representing city officials and administrators have opposed federal and state efforts to restrict the use of eminent domain for private development.

David Parkhurst, legislative counsel for the National League of Cities, said action by federal lawmakers is unnecessary. "States are already taking action. Let the states address any issues regarding the matter," Parkhurst said. "Congress doesn't need to act."

At press time, the Government Accountability Office was expected to release a report on eminent domain, probably by mid-July.

The Heartland Institute: http://www.heartland.org

Scott LaGanga is executive director of the Property Rights Alliance in Washington DC.
email: slaganga@propertyrightsalliance.org

Escondido council members oppose eminent domain proposal: North County Times (Escondido CA), 7/25/06

By David Fried

A recent [Escondido CA] City Council decision to start eminent-domain proceedings on a local restaurant has two council members saying the city is skirting dangerously close to condemning property in order to benefit private development.

Sunset Centers plans to build a Lowe's home improvement store and 164 condominiums on an 18-acre site that used to house a K-Mart and an entertainment center with a miniature golf course and arcade.

The council approved the project in April. And last week, a council majority agreed to hold a public hearing on Aug. 16 that would clear the way for the city to seize a 1.4-acre parcel at 700 W. Mission Ave. in order to widen the street and clear the way for a cul-de-sac planned as part of the development.

Council members Ed Gallo and Marie Waldron, who voted against holding the public hearing, say they support the overall project, but believe the city is drifting down a dangerous path by considering eminent domain on the property.

"The only way you can put the cul-de-sac in is to take out the restaurant," Gallo said. "The way I'm looking at it, we're going to do eminent domain for a private project, and that doesn't sound right to me."

Pat Thomas, director of public works, said that, even if Sunset did not install the cul-de-sac, the city would need a portion of the property that houses El Mexicano taco shop as part of a long-planned widening of Mission Avenue. That would require the city to acquire a roughly 14-foot-wide strip across the front of the property and relocate the taco shop.

Under the terms of the approved project, however, the developer agreed to be responsible for widening Mission, installing traffic signals and adding the cul-de-sac, which would be a public street, and thus "end up being a public improvement," Thomas said.

Sunset Centers has also agreed to cover any costs associated with the eminent domain proceedings, according to city documents.

Attorneys representing the developer could not be reached for comment Monday.

Waldron said that, based on how the cul-de-sac project has been explained to her, she is not comfortable with the idea of starting eminent domain proceedings — which could force the owners to accept the appraised value and vacate the property — on behalf of the developer.

"If it's for private development, then I would not support this," Waldron said. "It would be the same thing as the Kelo decision."

Waldron's reference was to a Supreme Court decision last year that cleared the way for local governments to force property owners to sell out in order to make way for private development.

The ruling stoked considerable controversy and has resulted in cities and states around the country trying to enact legislation to limit the use of eminent domain, including a proposed ballot initiative that will go before California voters in November.

The council will decide at the August hearing whether to follow through with the eminent domain proceeding. But Waldron and Gallo said that the council has already gone too far.

"To me, it's very clear that just the threat of eminent domain is as serious as going through with it," Waldron said.

City officials said condemnation may not be necessary, since the parties are still negotiating a voluntary sale.

Margaret Peterson, whose family has owned the property for nearly three decades, said she was prepared to sell, albeit reluctantly.

The Lakeside resident said she and her siblings are not against giving up the building, so long as they get enough to purchase a similar commercial property that would net them at least $3,700 a month, about what they collect now from the restaurant.

So far, the developer has appraised the property at a little more than $500,000, and offered to pay about $700,000. But Peterson's family would have to pay half of the closing costs on the sale, and end up losing a valuable source of income, an unacceptable proposal, Peterson said.

Since beginning negotiations with Sunset, the developer has pushed the family to accept the deal, saying that otherwise the city would pursue eminent domain, according to Peterson.

However, that may not be such a bad thing, she said, as eminent domain could keep the family from having to pay any fees or taxes on the sale, among other benefits.

"It's progress, and we don't want to stop progress," Peterson said of the Lowe's project. "But we don't want to end up getting screwed, either."

North County Times: http://www.nctimes.com

Forum elicits opposing views on eminent domain: St Louis (MO) Post-Dispatch, 7/24/06

By Shane Anthony

Lawyers, elected officials and St. Charles County residents described eminent domain as a redevelopment tool, a legal debate and a political buzz saw at a forum Monday night in the County Council chambers.

The forum was led by County Council members Cheryl Hibbeler and Doug Funderburk, who invited five panelists to discuss the hot-button issue. Elected officials from throughout the county then asked questions and presented views of what could become a county charter amendment proposal in the future.

Funderburk said the charter change, if it goes forward, could deal with guidelines for the use of eminent domain and definitions of blight. But he said he wants as much information and input as possible before any proposal goes forward.

"If anything, right now it's a white piece of paper," he said.

Thomas Cunningham, a lawyer who often represents local governments, said the 2005 Supreme Court decision allowing use of eminent domain for private development has elicited knee-jerk responses to ban all eminent domain. That response is similar to blaming a hammer for a carpenter's inferior work, he said.

Cunningham said local governments have lost the public's trust. It can be regained, he said, by having cities take the lead instead of developers leading cities. Cities should have clear, specific goals, he said, and, as much as possible, property owners should be brought in at the beginning of the process instead of being allowed three minutes to state their cases when the deal has been made.

Bob Swank, Wentzville's economic development director, said his city always has looked at eminent domain as a last resort. "The developers do not drive the bus in Wentzville," he said.

Richard Ward, CEO of Development Strategies Inc., another panelist, presented a list of projects, primarily in St. Louis and St. Louis County, that have been completed using eminent domain or with the possibility of using it. He also presented a list of projects that have not been successful.

Bob Denlow, a lawyer who has represented people whose property has been condemned or taken from them through eminent domain, said eminent domain law does not compensate property owners for all their losses. Specifically, he said, businesses are not compensated for loss of business or the cost of moving.

Wentzville Mayor Paul Lambi and Dardenne Prairie Mayor Pam Fogarty said they were wary of a charter amendment on eminent domain, saying cities may address the issue better.

Residents will have the chance to air their views on the matter at another public meeting. It had been scheduled for Aug. 1 but may be changed to Aug. 3. Funderburk said more information would be available today.

St Louis Post-Dispatch: http://www.stltoday.com

Eminent sense in Brooklyn domain: New York (NY) Daily News, 7/25/06


As befits a truly grand vision, Atlantic Yards, a $4.2 billion plan by the Forest City Ratner Cos. to build an arena for the Nets and nearly 7,000 units of housing on a Brooklyn site now dominated by an ugly scar of a railyard, has generated a Draft Environmental Impact Statement containing more than 1,000 pages of statistics, charts and text.

While most see this as an exciting opportunity to shape the borough's future, a group of naysayers - Develop Don't Destroy Brooklyn - has publicly signaled that it will scour the document to find grist for a lawsuit attacking the project's expected use of eminent domain. But these opponents are barking up the wrong legal tree.

The United States Supreme Court has ruled that public agencies can invoke eminent domain to purchase land from holdouts and make it available to private developers, provided the project in question follows a preexisting governmental planning process and the public good is served. Atlantic Yards meets both criteria.

In 1968, most of the area was so blighted that city planners officially declared it an urban renewal zone, restating that designation as recently as 2004. The thousands of jobs and the subsidized housing the project would create represent a clear benefit to the public.

But thanks to a few holdouts, eminent domain may still be needed.

Forest City has bought all but nine residences, providing a very nifty profit to the sellers. But four apartment buildings and five private homes along with a handful of businesses are balking. Eminent domain was created for cases like this - instances in which holdouts can be relocated, at no financial loss, to advance the greater good.

Eminent domain is the power that brought us Lincoln Center, the new Times Square and affordable-housing meccas like Melrose Commons in the Bronx, which had long been a moonscape of burned and vacant buildings. Atlantic Yards foes might make better use of their time by negotiating to, say, scale down the project or change the traffic patterns. They should not be holding Brooklyn's future hostage with a frivolous lawsuit.

New York Daily News: http://www.nydailynews.com

County sends out eminent domain notices: Wichita (KS) Business Journal, 7/24/06

By Bill Wilson

Sedgwick County [KS] officials Monday hand-delivered condemnation notices to 22 property owners in the downtown arena footprint.

And on Wednesday, county staff will ask Sedgwick County commissioners to approve a resolution authorizing the start of eminent domain proceedings in Sedgwick County District Court.

Efforts to buy the land outright are stalemated, says Assistant County Manager Ron Holt. The filings will "expedite" the arena project while leaving the door open for property owners to accept the county's offer later.

Commissioner Dave Unruh says he's not disappointed by Monday's developments.

"We've got to get the process going ...," he says. "I suppose that (court proceedings) are the way some of these are going to end up, but we're very confident that our appraiser can justify and defend the values that he's come up with. As a result, we're pretty convinced that we need to stick with our valuations."

John Belford, who owns Belford Electric Inc. at 600 E. Waterman, says he's surprised by the eminent domain notice. However, Belford provided the Wichita Business Journal a copy of a July 13 letter from county project services manager Stephanie Knebel denying his appeal of the county's valuations of the Waterman property and Belford's other building at 326 S. Commerce.

Wichita entrepreneur Fran Jabara, who owns a warehouse at 310 S. Commerce through his company S & J Real Estate LLC, also got a condemnation notice Monday. He says that the county has offered a fair value for the land in the arena footprint. The warehouse, appraised by the Sedgwick County Appraiser's Office at $194,200, has a $300,000 offer pending from Sedgwick County.

"I really don't want to negotiate this case through the media," he says. "We've got to deal with these people. Until we can get this resolved, I don't want to prejudice our case."

Unruh says the commission's decision to proceed with condemnation Wednesday comes down to the concept of fair market value. Sedgwick County has a price it believes is fair market value for the 22 properties. The owners don't agree.

"We have a responsibility to the taxpayers and their money to pay fair market value," Unruh says. "That is what we will do."

Wichita Business Journal: http://wichita.bizjournals.com/wichita

GOP hits on eminent domain: (Hackensack NJ) Herald News, 7/24/06

By Heather Kays

Republican candidates found a new use for eminent domain Sunday afternoon — as a campaign issue.

U.S. Senate candidate Tom Kean, Congressional candidate Vince Micco, and Bergen County Freeholder candidate Bob Yudin visited Costa Trailer Court and Brown's Trailer Park on Route 46, where residents have been fighting to fend off a redevelopment plan that would take their homes through the power of condemnation.

They met for more than an hour discussing the abuse of eminent domain, touring the Costa trailer park and listening to residents concerned about losing their homes.

"Eminent domain is a good issue for these people," said Kendell Kardt, a resident of Costa Trailer Court and president of Save Our Homes. "It's a lever. They can use it to get on the public's good side. It's an important national issue that they can use to get attention because the Democrats aren't willing to touch this."

Save Our Homes is a group of 150 trailer park residents who have been fighting the borough's attempts to take over the parks using eminent domain and replace them with retail space and a senior housing complex.

Eminent domain is the government's right to seize private property for public use in exchange for payment of fair market value. The issue drew national attention last year when the U.S. Supreme Court ruled in Kelo vs. the City of New London that local governments can seize private property for private economic development, if it would benefit the public.

Kean, Micco and Yudin shook hands, distributed campaign literature and promised to fight for the trailer park residents once elected.

Kardt, who sported a teal-flowered Hawaiian shirt, khaki shorts and green flip flops, smoked a Newport out of a plastic cigarette holder as he debated politics with Micco.

Campaign advisers snapped pictures and trailed a few feet behind the politicians as they walked through Costa Trailer Court, stopping to talk to each resident they spotted along the way.

"People wonder why we have no faith in politicians anymore," said Mildred Samuels, 79, a resident of Costa. "It's because we are constantly fighting them.

"We need somebody to stand up for us," Samuels said, addressing Micco. "We need to get some young stuff, like you, onto the Senate."

Micco responded: "If, God willing, I win, I'm going to be a champion, an advocate for private-property owners. Private property rights are sacred."

Yudin said he planned to lobby state legislators on behalf of the trailer park residents.

Kean, who is currently a state senator and is running against Democrat Robert Menendez for the U.S. Senate, said that pay-to-play and eminent domain abuse go hand in hand.

"Eminent domain abuses are the flip side of pay-to-play abuses," he said. "Both need to be significantly reformed if the government is really going to be held accountable for its actions."

Kean vowed to push pending reform legislation through and to help with new reform legislation to protect residents from eminent domain abuses.

Although Kardt said any attention brought to the issue of eminent domain is a help, he wasn't sure how much of a difference today's meeting would actually make in the long run.

"To be honest, I didn't really hear any ideas," Kardt said, after the politicians and their entourage had left. "What I heard was, 'We're on your side. We think eminent domain being used for economic development is wrong. We're against it.' Which is nice, but I didn't really hear any solutions."

Herald News: http://www.northjersey.com

Colorado Eminent Domain Activist Conference, August 19 2006

The Colorado eminent domain activist conference will be held on Saturday, August 19, at the Embassy Suites Hotel, I-70 and Havana Street, in Denver Colorado. Sessions will be from 7:30 a.m. to 4 p.m.

The capacity of the meeting room is limited to 100 attendees, so registration on or before August 13 is strongly recommended to ensure admission

Tom Wambolt
Save Our Lake
Arvada, CO
email: twambolt@viawestd.net

“Friendly condemnations” (but not for renters): Atlantic Yards report, 7/26/06

ESDC plans eminent domain for most of Atlantic Yards

By Norman Oder

So now we know what Empire State Development Corporation (ESDC) Chairman Charles Gargano meant when he used the term “friendly condemnations” two months ago regarding the Atlantic Yards project.

As explained in a public hearing notice released yesterday, the ESDC will acquire nearly all the property in the Atlantic Yards [AY] site via eminent domain, including the 90 percent owned by Forest City Ratner [Corp (FCRC)]. That includes city streets but not a few properties needed by the Metropolitan Transportation Authority.

ESDC spokeswoman Jessica Copen explained: "When a development site is assembled by eminent domain, it is typical for the condemning authority to run any properties already owned by the developer through a 'friendly' condemnation, so as to clear any title defects that may have accumulated over the years."

Getting rid of renters?
Copen's statement does reflect typical practice. However, George Locker, a lawyer who represents 15 of the remaining 55 tenants in the project footprint, contends there's another reason: to evict his clients, who live in FCR-owned buildings but are protected by rent-stabilized leases.

"This is about getting protected residential rental tenants out of buildings," he charged. "ESDC is condemning rent-stabilized leases, contrary to the MOU [Memorandum of Understanding], and in violation of the tenant's rights and benefits, and the landlord's obligations under rent-stabilization. All of this chicanery will be the subject of litigation."

Typically, a landlord who wants to demolish a building containing rent-stabilized tenants to build another building must apply to a state housing agency for a demolition permit and satisfy several requirements — a process that would take much longer than the projected timetable for approval of the Atlantic Yards project.

Property ownership
While Forest City Ratner says it owns or controls 90 percent of the project site, that percentage is a bit misleading; of ten buildings that still contain rental tenants, six are owned by the developer. Even though those six buildings are counted in the 90 percent, FCR has not yet gotten tenants in those buildings to move.

The General Project Plan says that the site includes 73 individual tax lots (not including 53 individual tax lots for condos). Some tax lots contain multiple buildings.

The project site initially included approximately 26 rental buildings, 66 commercial properties, two medium-sized residential buildings with owner-occupied units, and four other buildings with owner-occupied units. (One rental building had one owner-occupied unit, while another had 11.)

Of the commercial businesses, 13 have not signed relocation agreements with FCR, according to the ESDC. Five owner-occupied units remain; some of those owners have agreed to leave, while Daniel Goldstein, spokesman for Develop Don't Destroy Brooklyn has publicly vowed to fight eviction.

Plans announced?
The ESDC's plans regarding eminent domain were announced but not fully confirmed on July 18, when the agency's board met and the General Project Plan and Draft Environmental Impact Statement were released. A memo to the board from Chairman Charles Gargano suggested two options:
With respect to Forest City controlled properties, it is expected that Forest City will either convey title to ESDC at no cost to the Corporation or that ESDC will, with the consent of Forest City, acquire title by condemnation, also at no cost to the Corporation.

The General Project Plan was more explicit, stating:
All of the properties within the Project Site would be acquired by ESDC... through uncontested condemnation in the case of properties owned by the City or FCRC, or through exercise of eminent domain in the case of properties and interests in properties that FCRC has been unable to acquire through negotiation.

Tax exemptions?
One source suggested that the use of eminent domain would secure additional tax exemptions. The ESDC's Copen said no, that the tax exemptions wouldn't derive from eminent domain.

"In most ESDC real estate projects, the land is owned by ESDC and leased to a developer. When land is owned by ESDC, that land is exempt from real property taxes," she said. "The exemption derives from ESDC ownership — it doesn't depend upon whether the land was acquired by eminent domain. If the land owned by FCRC simply was conveyed to ESDC (instead of condemned), that land similarly would become exempt from property taxes."

She continued, "Whether the developer pays mortgage recording taxes also has nothing to do with condemnation. With ESDC projects, such as Atlantic Yards, whether the developer benefits from a mortgage recording tax exemption is an issue negotiated by the developer with ESDC and NYC."

Previous promises
Locker called the move "a textbook explanation of the benefits of condemnation, not a response to clear public documents and public statements that say it will not be used on Forest City Ratner properties." He pointed to the 2/18/05 MOU signed by the city and state regarding the project, which stated that the ESDC would acquire "portions of the Private Properties... necessary to facilitate the Project."

Locker says that suggests the ESDC would condemn only properties not owned by the developer. Now, however, it seems that the ESDC has deemed nearly all the "Private Properties" necessary to the project. [Addendum 3 pm 7/26] However, as another clause (right) of the MOU states, the developer was to convey the properties, not have them condemned.

Locker also pointed to Forest City Ratner's PowerPoint presentation to the New York City Council on 5/26/05, which stated that the developer has "substantially reduced the need for condemnation."

In retrospect, the term "unfriendly condemnation" would have been more precise.

source: http://atlanticyardsreport.blogspot.com

Imminent Destruction? New York (NY) Press, 7/26/06

Willets Point businesses fight off eminent domain

By Sushil Cheema

The scent of brown sugar and cinnamon saturates the air in the warehouse storage area at Fodera Foods. Sacks of different types of flour and containers of canned fruit, sprinkles and chocolate chips pile up to the ceiling. With closed eyes and a deep breath in, this could be a corner of Willy Wonka’s factory.

Along with his brothers and sisters, Tony Fodera runs this 75-year-old, family-owned business, a long-established supplier of bakery and deli products that serves establishments across NYC and the nation from H&H Bagles to General Mills. His pride in the family’s success shines through as he points out a photograph of his grandfather, the founder, on the wall and recites the date—September 26,1930 — on which it first opened. In the early 1970s, the operation moved from Brooklyn to its current location in Queens.

“The location is phenomenal,” Fodera says of being able to ship materials in and out easily by rail. “Coming from the area where we were this was like a breath of fresh air.”

But sometimes a breath of fresh air can bring bad tidings. Employees are cheerful and business is swift here at Fodera Foods. Outside the door, however — just as in Wonka’s world — there are a slew of problems needing attention. The city wants to redevelop this so-called “underdeveloped” area and is currently reviewing proposals submitted by developers, says Janel Patterson, a press agent for the Economic Development Corporation that oversees such projects. “We are working very closely with the business owners” in the area to reassure their staying power, Patterson says.

But the owners here say otherwise. And redevelopment is not what Fodera and the others here are in search of. Instead, they want improvements to conditions that the city has long left neglected.

Located in Willets Point, a corner of northern Queens, Fodera Foods is one of more than 200 businesses. Known as the “Iron Triangle,” most businesses here are auto-related, with one stall after another busy fixing mufflers or painting cars. Fodera is one of the few not related to the auto industry, but, like the others, it employs local residents from Queens. The employees at Fodera complain of the troubles they must endure in getting to work — for those without cars this includes walking through puddles of oil and watching out for electrical wires — but insist on staying because they like their employers.

All the businesses here are facing the threat of eminent domain. Patterson confirms the city has made a case that blight does in fact exist in the area due to an insufficient infrastructure ranging from a lack of storm drains to an abundance of pothole-ridden roads. But it is the city, Fodera says, that caused the blight.

“They never filled the potholes or resurfaced the roadways,” Fodera, exasperated, says. “There are no storm drains, very little police presence, no sidewalks. There is no infrastructure, no services.” When it comes to removing snow in the winter, Tully Construction Company, another local business and a major contributor to WTC site recovery, cleanup and maintenance, clears the streets — a job that would logically be the city’s.

“It’s purposeful neglect,” Fodera says of the city’s lack of attention to area’s needs and unwillingness to maintain it properly. “Condemnation is a harsh remedy for a problem we did not commit.”

“It is blighted because of the lack of infrastructure,” concedes councilman Hirma Monserrate, who represents much of Willets Point. “The city is primarily to blame for it.”

Fodera says the specter of eminent domain shut down plans for an outdoor freezer, backup generators and solar panels. In all, Fodera says he has chosen not to pursue $3 million-worth of projects that could have improved his business and made it more competitive. “My competitors have been able to do all these things, but we can’t!” the slightly shy Fodera exclaims. He adds, “I’m fighting to save my business. Not to relocate it, but to save it.”

“We have great reservations about having a process in place that lacks community input,” says Monserrate. “Eminent domain should not be used. We are opposed to that, particularly when talking about development and using corporate entities.”

In April, Dr. Tom Angotti, a professor of urban affairs and planning at Hunter College, released a study regarding land use in Willets Point and found that the area is a thriving area with a sound economy and that the auto-related focus would be hard to create elsewhere. As the auto-industries here are thriving and the manufacturers like Fodera Foods and the nearby House of Spice are also strong businesses, a commitment to keeping this part of Queens just as it is—but with improvements to the infrastructure—is understandable.

Fodera himself is not giving up the fight anytime soon. “I think this is going to become my life’s work,” Fodera says. “I’m enraged.”

New York Press: http://www.nypress.com

Eminent-domain task force prepares for its final meeting: Columbus (OH) This Week, 7/27/06

By Michael J Maurer

The Ohio General Assembly's Eminent Domain Task Force held its final work session July 13 and will meet July 31 to approve a report to the legislature.

The task force was created last year in response to a controversial U.S. Supreme Court decision on private property rights.

In a case known as "Kelo," the court ruled that government "takings" power allow local governments to take land from one person and give it to another for the purpose of economic development.

The case set off widespread reaction at the time, with critics saying local governments would use the takings power to increase their tax base, but task force members said the issue has faded since then.

"It's got a different temperature than it did a year ago, when everybody thought Motel 6 was going to get replaced by a Ritz Carlton," said attorney Richard Tranter, a proponent of takings for economic development.

Tranter said takings, or eminent domain, is a complex and technical field of law that is an essential part of government, despite its unpopularity with the public.

"There are certain government powers that are never going to poll well," he said.

Task force co-chair Bill Seitz (R-Cincinnati) said he expects the task force to recommend a constitutional amendment that would prohibit using eminent domain solely for the purpose of increasing the tax base, but he said no such proposal would appear on the ballot this fall. One problem is that any amendment must be approved by the legislature before it can be placed on the ballot, and the deadline for this November's election falls only a week after the task force report is due.

"I don't see that my esteemed colleagues in the House and Senate are going to act in eight days," Seitz said.

Several task force members have said they would prefer there be no constitutional amendment at all, but they would support a narrow amendment in the hopes of preempting any stronger, anti-government amendment that might be sponsored by pro-property rights groups.

"If (the General Assembly) has (a draft amendment) in their pocket and can pull it out, it's there," said Gene Krebs, executive director of Greater Ohio, a nonprofit organization dedicated to land use policy.

During several meetings throughout the year, the task force has focused more on technical issues relating to eminent domain than it has on the particular type of eminent domain that was at issue in the Kelo case, referred to by some task force members as "ED4ED," or "eminent domain for economic development."

Among the other issues the task force has examined is eminent domain for traditional government purposes other than economic development, such as for roads, utilities and government buildings and facilities, and to clear blight in urban areas.

The task force has also examined "quick take" laws that allow the Ohio Department of Transportation and other government entities to take land for roadways without court review. In such cases, the landowner has no right to stop the development, but may go to court to set the value of any compensation paid.

During the July 13 meeting, ODOT director Gordon Proctor compared Ohio's laws, which place most of the cost of attorneys fees and expert witnesses on landowners who wish to challenge takings decisions, to Florida laws that require the state to bear much of that expense.

Proctor said Florida spends about six times as much money as Ohio does to accomplish the same purpose in a comparable-size program, spending as much as $370-million annually compared to about $60-million spent annually by Ohio.

Co-chair Seitz acknowledged Proctor's point, saying that spending government money on attorneys' fees would reduce the money available for road work.

Attorney Bruce Ingram challenged Proctor, saying the cost disparity only proves the state is taking advantage of the expense of legal process to prevent landowners from collecting the value of their land.

"Why should it not be the general public's obligation to bear the expense (of obtaining review of government takings decisions)?" Ingram asked, arguing that it is unfair for landowners alone to pay the cost.

Proctor said it would only serve to make land more expensive for the government.

Columbus This Week: http://www.thisweeknews.com

Homeowners win eminent domain fight in Norwood: Business First of Columbus (OH), 7/26/06

By Kevin Kemper

Property owners in southwest Ohio won a major victory Wednesday, when the Ohio Supreme Court overruled an appellate court and declared that a portion of the state's eminent domain statute is unconstitutional.

In a unanimous decision, the seven justices of the state's highest court ruled the city of Norwood didn't have the right to take two houses in its Edwards Road corridor to make way for a high-end commercial and residential development.

The decision overturned the 1st District Court of Appeals ruling that granted the suburban Cincinnati city the right to take the residence of Carl and Joy Gamble and the home of Joseph Horney and his wife Carol Gooch.

Norwood and developer Rookwood Partners Ltd. have plans to redevelop the 10-acre Edwards Road corridor into an apartment, retail and office complex.

Rookwood Partners arranged sale agreements with 66 of 71 property owners. As part of the development, two city-owned parking garages were planned. The rest of the development would have been privately owned and was intended to create jobs and increase local tax revenue.

Three of the five remaining owners settled their fight or were paid an amount determined by a Hamilton County jury. The Gambles and Horney were the holdouts.

Justice Maureen O'Connor wrote in the opinion that the court's decision balances "two competing interests of great import in American democracy: the individual's rights in the possession and security of property, and the sovereign's power to the private property for the benefit of the community."

The high court found that while economic factors may be considered when determining whether private property can be appropriate, those factors alone don't justify the taking of property.

The court also ruled that use of the term "deteriorating area" as a standard for determining whether private property is subject to appropriation, is unconstitutional because it inherently incorporates speculation as to the future condition of a property.

Norwood had hired a consultant that determined the Edwards Road corridor was deteriorating because of its growing isolation from residential areas, its traffic dangers and susceptibility to "piecemeal" conversion from residential to commercial uses.

The Supreme Court also found a section of Ohio's eminent domain law that prohibits a court from enjoining the taking of property after compensation has been deposited with the court but prior to appellate review, is also unconstitutional because it violates the separation of powers doctrine.

Reaction to the decision from around the country was swift.

The Washington D.C.-based National Federation of Independent Businesses praised the ruling.

"We are thrilled with the court's decision," said Karen Harned, executive director of the group's Legal Foundation. "The takings clause in the Ohio constitution was never intended to allow governments to take properties from private owners just to turn and sell these properties to other private entities."

The federation filed a friend-of-the-court brief in the case on behalf of small-business owners who feared losing their property to eminent domain.

It's still unclear what effect the ruling will have on how government and private developers do business, said Bruce Ingram, a partner at Vorys Sater Seymour and Pease LLP in Columbus.

"At a minimum, challenges as to whether a development is for a public use are going to increase," he said.

Ingram noted that before the ruling, it was the burden of the land owner to prove an eminent domain taking wasn't for public use.

"The burden is now on the government," he said.

Ingram also thinks redevelopment of blighted areas may slow.

The case is similar to the controversial Kelo v. New London, taken up last year by the U.S. Supreme Court. In that case, the Supreme Court ruled the city of New London could use eminent domain to make way for an upscale redevelopment of the Connecticut city's waterfront.

That decision dealt strictly with federal law and had no effect on the Ohio case. Nevertheless, the decision sent more than a dozen states into action to change their eminent domain laws.

In Ohio, the legislature enacted a moratorium on the use of eminent domain for non-blighted properties until Dec. 31.

"In addressing these important matters, we have benefited from the wisdom of other courts, which, by the masterly design of our government, are at the forefront of these critical constitutional questions," O'Connor wrote. "Although the judiciary and legislature define the limits of state powers, such as eminent domain, the ultimate guardians of the people's rights, as evidenced by the appellants in these cases, are the people themselves."

Business First of Columbus: http://www.bizjournals.com/columbus


Eminent domain protection not in the cards: Kinston (NC) Free Press, 7/22/06

By Barry Smith

North Carolina landowners won’t be getting any constitutional protection from governments taking their property for private economic development, not this year anyway.

Some argue that no such constitutional protection is necessary because the state’s courts have carefully limited a local government’s eminent domain powers. Others say that without the constitutional protection, landowners are subject to the whims of legislators, who could be caught off-guard in the wee hours of the night during the waning days of a legislative session.

“They (the North Carolina courts) have never allowed us to do anything like Kelo,” said Andy Romanet, general counsel for the N.C. League of Municipalities, referring to the U.S. Supreme Court decision last year which allowed a Connecticut town to use its eminent domain powers to seize land for private redevelopment purposes.

Instead of pushing ahead for an amendment to the N.C. Constitution, the General Assembly has approved a bill repealing a handful of statutes that allowed a handful of local governments to have limited use of eminent domain powers for economic development purposes.

Lawmakers also tightened up the state’s urban redevelopment law, which allows property to be seized in blighted areas. Previously, property could be seized in an area if two-thirds of the land was determined to be blighted.

The change, adopted by the General Assembly, would require any parcel of land to be blighted before it could be seized through eminent domain powers.

That’s a change that Romanet said he expects will have little effect since a lot of money that municipalities traditionally used for such redevelopment projects has dried up.

Efforts have been made in both the Senate and the House for the stronger constitutional amendment banning such uses for eminent domain. However, Democratic majorities have thwarted those efforts.

Last month, in a party-line vote, a House committee considering such a bill voted to send the proposed constitutional change to the House Rules Committee.

One of the sponsors of the bill, Rep. Skip Stam, R-Wake, has tried unsuccessfully to revive the bill.

The other day, Senate Republicans were prepared to push for a constitutional amendment when the eminent domain issue came to the floor. However, the Democratic majority used a parliamentary maneuver to cut off debate and not allow the proposed amendment to come to the floor.

“I think it’s incumbent upon us to at least have a debate on amending our constitution and protecting private property,” Sen. Fred Smith, R-Johnston, who had prepared the proposed constitutional amendment.

The Senate’s minority leader, Sen. Phil Berger, R-Rockingham, said that it’s important for the state to draw a constitutional line on protecting property rights.

“When the Supreme Court says the U.S. Constitution doesn’t protect private property from economic development condemnations, we need to make sure the N.C. Constitution does,” Berger said.

While Berger said that the statutory tightening is good, it’s important to have the constitutional safeguard. He said that sometimes, especially as a legislative session nears its end, a bill can be run through the General Assembly that “nobody’s seen before and half the people are sleep-deprived.”

Romanet, however, said that if the N.C. Constitution is going to be changed, more debate is needed.

“I think you need to have a full discussion on that and run it out because it looks good,” Romanet said. “We’d want to make sure we didn’t violate the law of unintended consequences.”

Romanet said that if a constitutional amendment is adopted, municipalities would like to participate when it is drawn up.

Kinston Free Press: http://www.kinston.com