State task force seeks constitutional amendment: Columbus (OH) ThisWeek, 8/10/06

By Michael J Maurer

The Ohio General Assembly Legislative Task Force to Study Eminent Domain has called for a constitutional amendment to establish a single, statewide standard for eminent domain, or "takings," the power of government to force private property owners to sell involuntarily.

The task force was established last year, following the U.S. Supreme Court's decision in Kelo, which found that cities could take property and transfer it to private developers for the purpose of economic development. Although the decision was met with widespread public outrage, the court also noted that states could adopt a more protective standard.

The task force issued its report on its statutory deadline, Aug. 1, culminating six months of work, including sessions in Columbus, regional meetings around the state and extensive research by the Legislative Service Commission.

The constitutional amendment recommended by the task force would abrogate "home rule" powers of cities, which otherwise might be able to adopt differing standards for eminent domain.

In final comments, task force co-chairs state Sen. Tim Grendell, R-Chesterland, and state Rep. Bill Seitz, R-Cincinnati both said a uniform state standard is essential.

"In a word, private property rights must be protected the same in Ashtabula as in Zanesville," Seitz said, saying that of all the task force recommendations, "none is more important than the proposed constitutional amendment."

Home rule cities that seek to use broad takings powers for economic development are certain to disagree, said task force member Joseph Ditchman, representing the National Association of Realtors and Ohio Association of Realtors.

In addition to abrogating home rule powers, the amendment would also preclude takings "solely" for economic development.

Some task force members, including co-chair Seitz, have said that whether economic development may be a factor in addition to other factors is a distinct question.

Other task force recommendations include changes to the definition of "blighted property," speaking to when a property has become so dilapidated that it is subject to government taking, and "blighted area," which would allow the government to take even well-cared for properties if the area surrounding them is sufficiently blighted. The task force recommended that "blighted area" takings be allowed only when at least 50 percent of all properties in the area sought to be redeveloped meet the blighted property definition.

During its extensive meetings, the task force addressed three different types of takings, including "economic development" takings that were the subject of the Kelo decision; "blight" or "urban renewal" takings, which are used by cities to redevelop areas or individual properties that are declared to be below community standards, and "traditional" takings for commonly accepted government uses, such as roads, utilities and government facilities, or private uses long accepted to serve a public purpose, such as utilities.

Some task force members felt the task force report was not sufficiently protective of private property rights. Columbus attorney Bruce Ingram criticized the task force for not recommending that the government pay attorneys fees for taxpayers who lose property involuntarily to the Ohio Department of Transportation and other government agencies.

"The eminent domain task force has abdicated its responsibility to the vast majority of Ohio landowners whose property is taken by eminent domain," Ingram said, arguing that ODOT has too much power to take land without review by a judge.

With the filing of its report, the task force has completed its work and disbanded. Any further work on eminent domain is expected to be the province of the legislature. State Rep. Jon Husted, R-Kettering, Speaker of the House of Representatives, said last week he did not expect the General Assembly to act on the matter this year.

Columbus (OH) ThisWeek: http://www.thisweeknews.com

Churches and Eminent Domain: A Move in Congress to Once Again Make Churches Privileged Landowners: FindLaw, 8/10/06

By Marci Hamilton

On Capitol Hill, Senator Kennedy is circulating a "Dear Colleague" letter suggesting that churches should be protected from the government's power of eminent domain. In particular, Kennedy favors amending the Religious Land Use and Institutionalized Persons Act (RLUIPA) to bring eminent domain within the definition of "land use regulations" - and thus to apply RLUIPA's demanding standards to any use of the eminent domain power that affects a religious landowner. (I discussed RLUIPA's standards, and how they work in practice, in a prior column.)

As the majority of courts have held, RLUIPA - as it currently stands -- does not cover "eminent domain." Its express language goes only to "zoning and landmarking" land use regulation, and eminent domain does not fall within these categories. Moreover, the legislative history of the statute did not touch on eminent domain.

Expanding RLUIPA to cover eminent domain is a very bad idea, as I will explain.

The Kelo Decision: Sparking Congress' Interest in the Eminent Domain Power
It's the Supreme Court's recent Kelo decision that has gotten Congress interested in eminent domain. In that case, an elderly woman (among other plaintiffs) was forced to move out of her home in order to make way for private development.

The plaintiffs argued that this was not a taking for "public use" within the meaning of the Constitution's Takings Clause. But the Supreme Court disagreed: It held that local governments retain significant latitude to define what is "public use."

The result was a loud hue and cry. The Court was criticized for setting too lax a standard for what counts as "public use" under the Takings Clause. A few states passed laws responding to Kelo, and Congress has mulled how to react.

Thus far, the House has passed a bill addressing the Kelo issue. But it is expected the Senate will not take action on the House bill.

Now, Kennedy is now trying to stir up interest in providing extra protection for churches and other religious institutions - and for them alone - through RLUIPA. So much for the elderly Mrs. Kelo and the other plaintiffs in her case. Kelo outraged the public because it held that the government could force people like her to give up beloved family homes to give way to malls and the like. In this sense, Kennedy's proposal does not respond to the outcry about Kelo at all.

Kennedy's Bill Is Bad Policy: The Empirical Evidence Goes Against It
Kennedy's "Dear Colleague" letter and draft bill make broad statements about the "need" for an amendment to RLUIPA to protect churches from the government's exercise of the eminent domain power. There are no statistics, but rather just claims about the evils of eminent domain. And as usual, there is absolutely nothing about the other side of the equation: either the larger public good or the likely Establishment Clause violation here.

In truth, the evidence suggests there is no real issue when it comes to churches and eminent domain.

Notre Dame Law Professor Nicole Garnett studied this issue and came to the conclusion that churches tend not to be targeted by eminent domain. In fact, governments tend to avoid it, because there is strong community resistance and probably local politicians do not relish the prospect of uprooting a church. She points to the Chicago highway projects, which buried neighborhoods, but steered clear of most churches.

When governments do go forward with a taking of a church's land, typically it is only because the government has concluded the taking is absolutely necessary. No one should think that churches always cooperate with what is in the larger public's interest. An excellent example is the Holy Redeemer Catholic Church in Chinatown, Philadelphia, which blocked the construction of a much-needed artery within the city for more than three decades. .

Giving Churches Special Protection, as Kennedy Would Do, Is Unconstitutional
It is very hard to argue that such an amendment to RLUIPA would be constitutional.

First, it would dramatically alter the current constitutional standard, set forth in Kelo, for assessing instances in which the eminent domain is exercised under the Takings Clause: rationality review. RLUIPA's standard is the much more demanding "strict scrutiny."

Such a dramatic jump cannot be justified as "congruent and proportional" to the data Garnett gathered, or to the unsupported claims offered by Sen. Kennedy. Therefore, under Court precedent, Congress could not enact the law pursuant to its power under Section 5 of the Fourteenth Amendment. Nor can it unilaterally determine the constitutional standard under the Takings Clause, without transgressing the separation of powers: That standard is for the Supreme Court to set.

Second, this is a violation of the Establishment Clause. Churches would be receiving extraordinary protection for their land and buildings against takings for public use, but no other landowner would receive such a benefit. Public projects would, by necessity, fall disproportionately on land use not dedicated to religious purposes. By singling out churches, the federal government would, once again, just as it has done with RLUIPA generally, create two classes of landowners: those who have to obey local and state land use law and who are subject to takings; and those who are religious and do not. This would be a classic case - even in today's extraordinary movement to shift public resources to religious entities - of politicians defaulting on the public good to put churches in superior financial positions.

It Is Foolhardy to Expand RLUIPA Without First Holding Hearings to Examine Its Actual (and Unintended) Consequences for Communities and Neighborhoods

Before either House of Congress thinks about amending RLUIPA, its members might want to hear from their constituents about the actual, on-the-ground impact of RLUIPA on residential neighborhoods and about local concerns, such as open space, environmental needs, and market value. There are many, many neighborhoods in every state that are currently being negatively affected by RLUIPA, and their residents are mad as hell.

What the denizens of these neighborhoods are coming to realize is that even though religious groups are the ones using RLUIPA to alter the character of their neighborhoods and communities, the ultimate entity responsible for what is being done to them is Congress - where their elected representatives passed RLUIPA without a single thought of how private property owners and community aspirations would be adversely affected by giving special treatment to religious landowners' projects. Nor did Congress pause to ask who exactly was going to pay these churches attorneys' fees when they sued local governments in federal court to exercise their special privileges - of course, with the fee-shifting provision, it's the taxpayers.

Rep. Nancy Johnson of Connecticut sensibly has asked Chairman Sensenbrenner, of the House Judiciary Committee, to hold hearings to get to the bottom of RLUIPA's real impact. Her call should be heeded, and soon. Such hearings may force Congress to come to terms with the fact that it has created an aristocracy of landowners - those that are religious - which has disserved many private property owners.

Meanwhile, members of Congress should resist Kennedy's "Dear Colleague" letter. The public process is already protecting churches, and expansion of RLUIPA - already a bad idea - is an even worse one.

FindLaw: http://writ.news.findlaw.com

Marci Hamilton: hamilton02@aol.com

Eminent domain turned on its ear in Brewerytown: Philadelphia (PA) Inquirer, 8/11/06

Amid upscale redevelopment, a "strategic" center for poorer residents challenges city plans

By Jennifer Lin

For the last year, Alston, 42, has fought to save a new neighborhood center he started - smack in the middle of the luxury Westrum development transforming one of the poorest sections of Philadelphia.

The Songhai City Cultural Center, named for an ancient African empire, is short on curb appeal. It's a plain, cinder-block building painted white with two high, turquoise garage doors. Urban cowboys, who once kept horses on the block, used it as a clubhouse before it was reinvented as a community center.

Alston sees the cultural center as vital for the neighborhood - both as a gathering point for the community and a way to prevent the area from being overwhelmed by an influx of well-to-do homeowners attracted by Westrum's development.

"We'll give the community a reason to come to this neighborhood every day," Alston said.

The Westrum company got the city's Redevelopment Authority to condemn the property a year ago. But Alston refused to let go and, as a result of events since June, will not have to.

In a surprise move, the RDA board voted July 25 to let Alston keep his property, ending a lawsuit and politically charged tug-of-war. Escaping condemnation, Songhai City opened its doors for bingo Saturday.

The battle over 3117-27 W. Master St. will resonate in many corners of the city.

Philadelphia is experiencing a robust revival in its real estate market, causing inevitable tension in neighborhoods where the change is coming fastest.

Nowhere is the transformation as pronounced as Brewerytown in North Philadelphia. The Westrum project and others will add more than 700 upscale homes and apartments in a neighborhood where one out of three households lives below the poverty line.

To keep his building, Alston had to reverse the formidable powers of eminent domain. And he had to go up against one of the biggest developers in the city: John Westrum.

Westrum, 42, is hailed in City Hall as the "poster child" of Mayor Street's Neighborhood Transformation Initiative, a far-reaching effort to rid the city of blight.

Westrum, of Fort Washington, switched his attention from building houses in the suburbs to planning the first large-scale private development in the city under NTI.

The mayor's aides credit the $200 million Westrum project for drawing investment to the struggling area north of Girard Avenue, between 30th and 32d Street.

"Mr. Alston does not see eye-to-eye with Westrum," said Kevin Hanna, secretary of the Office of Housing and Neighborhood Preservation. "I don't want to assign motive, but no one person should single-handedly inhibit progress and development."

Westrum wanted to tear down the Master Street building to make way for three or so townhouses. Now the builder will have to design around it.

With Westrum controlling land on either side of the building, Songhai City will sit in the middle of more than 100 luxury condominiums.

"It's sad," John Westrum said in an interview, "that you have to have the next phase of a beautiful community built around an existing garage."

The property sits in an "urban renewal area," a blight zone for NTI planning purposes.

The Redevelopment Authority decision, Westrum said, "sets a precedent for the failure of NTI."

"While the garage has been improved, that could go anywhere in the Brewerytown area," Westrum said, "but not necessarily in the middle of a master-plan community."

Alston, a computer expert who worked nine years for Microsoft Corp., paid $400,000 for the building and put $100,000 more into repairs. Songhai City has new plumbing and wiring; a patched roof and updated kitchen; four flat-screen televisions, and a bingo system with an electronic scoreboard.

He said the price tag for the building was "higher than what I wanted to pay."

But he said the property had "strategic value."

"It was the only building available that could prevent Westrum from creating an economically segregated community," Alston said.

Quietly buying property
Songhai City was once the clubhouse for the Philadelphia Western Club, a band of black cowboys who kept horses in stables next door and gave the neighborhood its quirky personality as an urban riding center.

The building had an odd dual life. The front bays were leased to an auto mechanic, and the big main room, with its long bar and DJ booth, was used for get-togethers. "I got married there on June 16, 2001," said Lemuel Thornton, the former owner.

The property was a bull's-eye in the 14-acre master plan for Brewerytown. Beginning in 2001, the Westrum company quietly started buying property in the area, picking up a big parking lot, the derelict Red Bell Brewery and Pyramid building, as well as scattered vacant lots.

Thornton wanted $400,000 for his building. The price was high, he said, but the Redevelopment Authority had already condemned another building he owned on the block for what he thought was too low a price.

Thornton said agents for the developer made offers as high as $125,000. He said they also took him to see three other buildings in the city for a swap.

The Westrum company turned to the Redevelopment Authority for help. It told the agency it was unsuccessful in "amicably" buying Thornton's building, according to authority board minutes from April 13, 2004.

The agency had the power to condemn the property through eminent domain - the controversial seizing of private property in the name of the public good. The authority calculated that it would have to pay the owner $90,000 for the property, with Westrum reimbursing the agency for all costs.

In a letter, Thornton was informed by the Redevelopment Authority that it was "contemplating condemnation."

'Let the market decide'
Enter Al Alston.

Alston wanted to buy the site from the start and testified against condemnation at a City Council hearing in June 2004. He headed a group called the African American Business and Residents Association (AABRA).

"We opposed using city resources to take this building," Alston said. "We said, it's a waste. Let the market decide."

The AABRA group also saw the Westrum project as creating a large community of "haves" right next to an even larger area of "have nots." Prices for the first batch of 144 Westrum condominiums start at $289,000. The median household income in Brewerytown is $21,099, according to the 2000 U.S. Census.

Alston grew up in Brewerytown, the 10th of 11 children, and knows its struggles as an isolated, depressed community. He graduated from Princeton and the University of California at Berkeley, before going to work for Microsoft in New York and Washington.

Today, Alston lives on Girard Avenue, owns several properties, and runs a variety store with a U.S. Postal Service contract branch. He spends most of his time as a community organizer. "You can't expect someone else to improve your community for you," he said.

Neighbors respect him for that. "Al gives the impression he's really trying to do all he can for his people," said Bobbie Tyler, 68, a retired state liquor store clerk who joined AABRA.

Proof it wasn't blighted
On May 16, 2005, Alston bought the Master Street building, raising some of the money from the sale of other properties he owned on Girard Avenue.

A month later, the Redevelopment Authority took formal court action to take it.

The only way Alston could reverse that was to prove the building wasn't blighted - and persuade City Councilman Darrell L. Clarke, a supporter of the redevelopment who represents Brewerytown, to spare it. Although the authority has the legal right to condemn properties, it is known that City Council members have the political influence to save them.

As AABRA members painted walls at Songhai City, Alston pushed his eminent domain case through the courts. Alston, a computer and electrical engineer by training, represented himself.

Alston deposed authority officials. He filed motions and appeals. He also invited Gov. Rendell's Philadelphia point man - former city Managing Director Joseph Certaine - to take a tour.

"He really wanted to have a community center here," Certaine said after meeting Alston. "He really didn't want to see people forced out of the community."

On June 21, Alston got the visitor he wanted: Clarke. Alston had all of his building permits lined up on a table. Clarke came alone and said little.

In an interview later, Clarke said, "I thought it was appropriate for the government to allow him to proceed with his proposal."

The Redevelopment Authority board voted to return the building.

A supermarket and more
On the top floor of a sample apartment in Brewerytown Square, John Westrum waves his hand across the scene outside a window.

"If where we're sitting hadn't been built," Westrum said, "everything you see around us doesn't exist."

Not the supermarket that Westrum plans to build on a vacant lot.

Not the new headquarters for Pennrose Properties, a for-profit affordable-housing developer, across the street.

Not the 161 new lofts in the old Acme building, including 61 at subsidized rates.

And what of Alston's claims that Brewerytown is being gentrified?

"We provide market-rate housing," Westrum said. "What happens in the surrounding community is what the market will do."

He said the company is in talks with Clarke and another community group about adding affordable housing to its overall mix. It also has partnered with a minority contractor - Gensis Group - to build as many as 21 lower-priced homes on side streets.

"What happened, happened," Westrum said. "We're designing around it."

Around the corner, in the cool main hall of Songhai City, Al Alston is showing a neighbor named Peaches how to use the new bingo equipment.

Alston said the nonprofit will use proceeds from bingo every Wednesday and Saturday for community work, including building homes that neighbors could afford. He wants to use the nonprofit center for everything from birthday parties to art shows, entertainment nights to training classes.

Judy Chapman, 70, a block captain and AABRA member, said Songhai City will help the neighborhood. "It'll be for all of us," she said.

Philadelphia (PA) Inquirer: www.philly.com

Throw the bums out: NationalPropertyRights.Com, 8/10/06

The Supreme Court gave city governments the power to trample our property rights, and the zealots in California’s City Halls have taken every opportunity to abuse it. But it’s not just the poor and the elderly who bear the brunt of America’s post-Kelo binge. Even the most powerful, financially-rich companies are at risk.

The Hercules CA city council voted to invoke eminent domain – the rawest form of power in the hands of the government – to confiscate property legally purchased by Wal-Mart where it intended to open a new store that would have created hundreds of jobs for the community. The City Council voted unanimously to seize the property claiming, in the words of Mayor Ed Balico, that “The City of Hercules is very unique.”

Sadly, it’s not. Kelo has opened the Pandora’s box of property seizure putting every citizen and business at risk across the entire United States. One deluded resident of Hercules, Steve Kirby, said in support of the Council’s action "Throw the bums out." Well, that’s exactly what happened to Susette Kelo who was tossed out of her home when the Supreme Court ruled that the New London , Connecticut City Council had the authority to remove her from her home. Mr. Kirby needs to think again. If the government can take Wal-Mart’s property, nothing stands in the way of it taking Steve Kirby’s home, too.

NationalPropertyRights.Com: http://www.nationalpropertyrights.com


Sweden ponders eminent domain: (Rochester NY) Democrat and Chronicle, 8/9/06

By Alan Morrell

[Sweden NY] Town officials are considering forcing a property owner to sell land on Brockport-Spencerport Road as part of a project that would bring a Lowe's home store to town.

Lowe's has agreed to build sidewalks and turning lanes as part of the project, said Supervisor Nat Lester.

All property owners except one — identified as the Dragani family — have agreed to sell easements to their property, said Dan Spitzer of Buffalo, a lawyer hired by the town for the eminent domain issue.

"I'm not fond of taking private property, but it's for the overall good of the town," Lester said. "It's a dangerous stretch of town there, and this is a wonderful opportunity ... to have (the Draganis' refusal) hold it up would be horrible for the town."

The Draganis could not be reached for comment. Town officials said at least one member of the family was in Italy, and that they had contacted another family member by fax only. Spitzer said he did not have a way to contact the Draganis; Ronald Bronstein of Paradigm Development in Colden, Erie County, who will develop the Lowe's store, said the same.

"We're interested observers," Bronstein said.

"It's really between the town and the landowner. If the town is able to acquire the property, we've said we'll build the sidewalks. But we're not going to go after individual landowners."

Raymond L. Sciarrino of Mount Morris, Livingston County, who has represented the Dragani family in past real estate transactions, said the family retained another attorney for this matter. The process of eminent domain could be taken because the sidewalks and other improvements would be in the public interest, Lester said.

A public hearing about acquiring the Dragani land, the first step in an eminent domain proceeding, was postponed from Tuesday night because of a discrepancy between the survey map and the area described in a legal notice. That public hearing now is scheduled for September, Lester said.

Regardless, Lester said, the Dragani land matter will not hold up the project.

"Lowe's is definitely coming to town," he said. "They have their permits in place."

Bronstein said that he could build sidewalks up to and around the Dragani property, if the town could not acquire the land.

Plans call for a 136,000-square-foot Lowe's store, along with a 28,000-square-foot garden center, to be built on the southeast corner of Owens and Brockport-Spencerport roads. Those plans were first submitted in August 2005, said Phyllis Brudz, secretary to the Planning Board and deputy town clerk.

The project would be built on a 55-acre parcel, Brudz said. The Lowe's store and garden center would encompass roughly 20 acres, with the remainder to be developed commercially in phases.

The Town Board rezoned the land from industrial to commercial last year.

The only necessary approvals were from the Planning Board, which gave its OK in January.

The Dragani home has been vacant for years, and town officials have cited the property for code violations, Lester said.

"Some would call it an eyesore," he said.

Bronstein said he plans to break ground on the project in October.

(Rochester NY) Democrat and Chronicle: http://www.democratandchronicle.com

Judge keeps Nevada eminent domain initiative on the ballot: Las Vegas (NV) Sun, 8/8/06

By Kathleen Hennessey, Associated Press

A Clark County (NV) district judge on Tuesday ruled against government groups that want to prevent an initiative aimed at curbing eminent domain abuses from appearing on the November ballot.

Judge Mark Denton rejected arguments from opponents of the People's Initiative to Stop the Taking of Our Land [PISTOL], who argued that the measure addresses several separate issues in violation of a state law requiring initiative petitions to deal with only one subject.

"Basically, the judge used a lot of common sense and realized the entire initiative petition is about eminent domain and the rights of people in eminent domain-type functions," said Don Chairez, a former judge and a Republican candidate for attorney general who led the petition drive.

Clark County Commissioner Bruce Woodbury, one of the PISTOL opponents who filed the complaint, said the group will appeal to the Nevada Supreme Court.

PISTOL, which gathered 137,698 signatures, would stop governments from acquiring private land through eminent domain and then selling the land for private development. The effort was a reaction to last year's U.S. Supreme Court ruling allowing governments' eminent domain authority to be used to obtain land for commercial purposes that generate tax revenue.

The high court also said states are free to ban acquiring property under eminent domain for such projects. Nevada is one of several states considering such bans.

Woodbury said he agrees that eminent domain should not be used to take land for commercial projects, but argues that other provisions in PISTOL could make the state ineligible for some federal transportation funding. He cited an undated Federal Highway Administration internal memorandum, obtained and circulated by the Regional Transportation Commission, which says the petition is "in direct violation" of federal rules governing financial aid for transportation projects.

"It's all of the fine print, which is the vast majority of the wording in the petition and which would have a very devastating effect on public works programs," Woodbury said.

Chairez called such concerns, "premature."

Tuesday's hearing was limited to a discussion of the "single subject" rule.

Among entities that joined Woodbury in challenging the initiative were 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 (NV) Sun: http://www.lasvegassun.com

Eminent domain debate not finished : Council Bluffs (IA) Daily Nonpareil, 8/9/06

By Phil Rooney

Iowa's eminent domain law is set to change on Oct. 1.

It may not be the last time.

The new law - HR 2351 - will require 75 percent of a tract of land be designated a slum or blighted before a local government can condemn private property on it for use in economic development. The old law required only that an area be declared slum or blighted, with no percentage threshold.

The Legislature met in special session on July 14 to override Gov. Tom Vilsack's veto of HR 2351, which had passed during the regular session. Two weeks later, Vilsack announced he would not challenge the action, in part because he'll leave office before the issue would be settled.

That statement came despite an opinion from Attorney General Tom Miller's office that Vilsack has the standing to challenge the Legislature's action. Miller's office also restated a 1998 opinion that state law prohibits holding a special legislative session for the specific purpose of overriding a veto.

Some have wondered why the attorney general's office isn't taking any action. Others are wondering what comes next, but it appears the final chapter has yet to be written on eminent domain.

Bob Brammer, spokesman for Miller's office, said the opinion was simply a legal general view.

"It's our view of how a court would interpret the situation if someone would challenge it," he said. "It doesn't have the force of law."

The attorney general's office would have represented the governor if Vilsack had chosen to challenge the Legislature, but it's not clear that the office has standing to bring action, Brammer said. The office couldn't take the Legislature's side because it has issued an opinion against legislative action.

It's not a situation where a criminal law was violated, when the office would act. Instead the office offered an interpretation of the Constitution. Brammer said a party with interest in the matter must file the lawsuit if one is to be filed.

In essence, the governor is the client and he decided not to pursue the case, Brammer said.

Mark Norman, vice president of economic development for the Council Bluffs Chamber of Commerce, said an effort would be made to change the law.

"Whether or not a city is going to challenge is yet to be seen," he said. "We're operating under the assumption the law is going to go into effect on Oct. 1."

In January, the Chamber of Commerce and other groups involved with economic development will likely lobby the Legislature to revise the law to make it more accommodating to economic development. Norman pointed to the Iowa Chamber Alliance, chaired by Council Bluffs Chamber President and CEO Bob Mundt, as one likely partner in the effort.

Norman said the new law, with its 75 percent blighted or slum requirement, makes the redevelopment of underutilized properties much more difficult.

"What that's going to do in the long run is foster more urban decay and lead to more urban sprawl," Norman said.

If communities are limited to developing new projects on their outer boundaries, more farmland will be lost, he said.

"Iowa is going to suffer immensely," he said. "It's going to be too expensive to take on a lot of those redevelopment projects that are going to need to happen in Iowa over the next five to 10 years."

Norman said the Legislature went from one extreme to another with its changes.

"The chamber's position has always been that there needs to be a compromise," he said. "There needs to be protection of private property rights, but there needs to be the ability to undertake redevelopment projects for the need of the community."

Norman said he imagines there will be several court cases challenging the law because of wording that he considers unclear.

"What we're going to end up with is a lot of little fixes to the situation as years go by," he said, fearing that could add to the confusion.

Norman pointed out what has been referred to as the ADM Amendment, allowing Archer-Daniels-Midland to continue with a project in Clinton, as demonstrating to lawmakers there will be problems with the new law. In Vilsack's veto message, the governor pointed out several other projects that would be at risk if HR 2351 passed.

Norman's first preference would have been to see the law not enacted. Now, he hopes to work through the system with other economic development professionals to change the law.

"It's going to cause a lot of problems," he said.

Council Bluffs (IA) Daily Nonpareil: http://www.zwire.com

Signatures Gathered for Eminent Domain Issue: KXMC (Minot ND), 8/8/06

Many North Dakota homeowners don't want the government to have the power to take over private property for public use.

That's the idea behind a petition thousands of North Dakotans have signed.

Volunteers for the Citizens Restricting Eminent Domain have been hard at work looking for people to sign a petition against eminent domain.

So far, 32,000 people have signed it.

Today, those signatures were taken to the Secretary of State's office to be reviewed.

If approved private property rights will be up for vote on the November ballot.

Heidi Heitkamp, Citizens Restricting Eminent Domain, stated "You know I've said this, if people need to take people's private property to promote economic development they aren't doing a very good job at economic development. There's a lot of opportunity and there's a lot of resources in North Dakota. There's a lot of people who would sell their property for economic development. I'm sure they'll be able to find those folks."

Heitkamp says she thinks there will be little opposition to the petition and it will pass this November.

KXMC (Minot ND): http://www.kxmc.com

Eminent domain battle now on national stage: Edison (NJ) Sentinel, 8/9/06


Long Branch Mayor Adam Schneider and the members of his "Schneider Team" should be so proud - they've gone from being villains on a local and regional level to villains of national renown.

If you read a daily newspaper, chances are that last Sunday you noticed that a Long Branch family, the Hoaglands, were featured on the cover of Parade magazine, along with the headline "Will the Government Take Your Home?" Also featured on the cover were a poster urging a halt to eminent domain abuse and a photo kicker stating, "A family fights back."

The three-page story that accompanied the cover photo chronicled the battle that the Hoaglands, and others around the country where local governments are taking property by eminent domain for redevelopment, have undertaken to save their properties.

It even included a take-out box outlining what you can do if the government says it wants to take your property for redevelopment, and discussed the national backlash that resulted from last year's decision by the United States Supreme Court in the Kelo v. City of New London (Connecticut) case. In that case, the court ruled that local governments do have the power to seize homes and turn the property over to private developers, on the theory that the new developments will bring in more tax dollars.

The Hoaglands are members of MTOTSA (Marine and Ocean Terraces and Seaview Avenue), the group of homeowners who stand to lose their properties to eminent domain, so a developer can build 185 expensive condominiums. Their story has gone from creating outrage around New Jersey and the region, to creating outrage on the national stage in the pages of publications like The New York Times and now Parade magazine, the largest circulation publication (35 million weekly) in the entire United States.

Long Branch has truly become the national poster child for eminent domain abuse, its sad story shared with what Parade magazine claims were likely 78 million readers last Sunday alone.

Over the last two years, Greater Media Newspapers 9publisher of the Edison Sentinel] - in particular the Atlanticville and reporter Christine Varno - have written dozens, if not hundreds, of stories about the eminent domain battles in Long Branch. We were on the story long before any other publication in our area, and we have stayed on it week after week because we believed, and still believe, that this conflict playing out in our backyards has significant implications for every homeowner - not only in New Jersey, but in every other state in our nation - who goes to sleep at night under the mistaken impression that his home is safe from the whim of a government that might decide that a new Starbucks or Pump 'n Munch franchise is a better use for the property.

The national spotlight now being trained on Long Branch proves that we were right, and I expect other national publications will pick up the story in the very near future.

Parade magazine used one of our photographs by staff photographer Miguel Juarez, but did not mention the body of work we have published on the eminent domain controversy in Long Branch. So last week, before the Parade article was published, I asked Sean Flynn, the author of the article, what had drawn his attention to that community.

Initially, he said, his interest was piqued because the eminent domain dispute in Long Branch was brought to his attention by someone at the Institute for Justice, a national nonprofit organization that has taken the issue on as a crusade. He visited the city in early June.

"It's a beautiful, beautiful place but the tension between the city's need to redevelop and the people's rights to live in their homes was dramatic," he said. "In my mind, what is going on in Long Branch really crystallized the issue. I certainly wouldn't say those properties are blighted ... the shabbiest part was the 'Stop Eminent Domain Abuse' signs."

Will the national attention help the MTOTSA families save their homes? Flynn doesn't know.

"I don't know if it will do them any good," he said. "You look back at the Kelo case, and it didn't do those people any good."

But Kelo did start a national backlash, and Flynn agrees the Long Branch dispute is serious fuel for the fire.

On July 30, Adam Liptak, writing for The New York Times, discussed that very subject, the national "tidal wave of outrage" generated by the Kelo case.

"Sometimes," he wrote, "Supreme Court cases have a way of highlighting issues that had been absent from the national agenda, and the cases can provoke reactions that have a far greater impact than the ruling itself."

He quotes Douglas Laycock, a law professor at the University of Texas, who said, "I always tell my students that one of the best things you can do is lose a case in the Supreme Court."

And later, he quotes Dana Berlinger, from the Institute for Justice, who said, "The decision brought to light this incredible rift between what lawyers and cities thought was the law and what the American people thought was the law. This is certainly the situation of losing the battle and winning the war."

In other words, the Kelo decision didn't help the people who lost their property in Connecticut, but it may wind up saving the properties of thousands.

By extension, the national outrage generated by the coverage of the Long Branch battle may be too late to save the MTOTSA members' homes, but it may steer the country's course when it comes to future cases of eminent domain abuse.

That, in reality, will be the "Schneider Team's" legacy. To go down in American history as the leaders of the community that caused a nation to say, "Enough is enough."

Edison (NJ) Sentinel: http://ems.gmnews.com

Eminent domain laws in need of makeover: The (Vancouver WA) Columbian, 8/8/06

By Don Brunell

A speeding freight train is bearing down on our state Capitol just like it is many other states. Legislators still have a chance to stop it, or at least slow it down, if they will only act. The train is fueled by resentment, frustration and anger over issues related to eminent domain.

The power of eminent domain allows government to take private property for "the public good." Historically, governments have used this power judiciously for significant public projects like highways, dams and bridges, but in recent years, government has expanded its reach, seizing property for relatively minor projects like bike paths.

While Washington's constitution affords additional protections from local governments taking private property for a private use, other eminent domain issues exist. For example, the Seattle Monorail Project used the power of eminent domain to purchase 34 businesses, homes and properties, sometimes over the objections of the owners.

In the end, the Monorail Project died, but officials did not give any of the other owners a chance to buy back their homes or businesses at the original price. Instead, Monorail officials are selling those properties at a profit to pay off the project's debts.

In 2003, Sound Transit condemned Kenneth and Barbara Miller's property for a park-and-ride lot without telling them. The Millers knew officials were interested in their property, but they did not hear anything more about it. The Millers were not even notified about the meeting at which the decision was made.

The Millers sued but lost.

Officials may be buoyed by their court victory and the ability to retire debt by selling off seized properties at a profit. But they shouldn't be. Unless lawmakers act to protect home and business owners in our state from unfair seizures of property, voters will take measures into their own hands through the initiative process.

The Legislature did not specifically address these issues as they relate to eminent domain. Lawmakers should reconsider, because Washington has its own examples of eminent domain abuse.

The intense anger over eminent-domain-related abuses should not come as a surprise. Seizing someone's home or business is not just another real estate transaction. In America, there is a special, powerful dynamic involved in taking a person's private property. In fact, our founding fathers equated the ability to own property with liberty itself.

President George Washington said, "Private property and freedom are inseparable."

President John Adams wrote, "Property must be secured, or liberty cannot exist."

John Jay, the first chief justice of the U.S. Supreme Court, wrote, "No power on earth has a right to take our property from us without our consent."

If recent trends continue, Washington voters could approve even more restrictive measures in the future. If that happens, lawmakers and public officials will have only themselves to blame.

Initiatives are not the ideal way to make law because poorly written measures and technical errors can cause unintended consequences. State lawmakers could head off an initiative by modifying eminent domain laws to provide clear and adequate notice, and allow private property owners to buy back their homes and businesses for the original purchase price when public projects are canceled.

The (Vancouver WA) Columbian: http://www.columbian.com

Don Brunell is president of the Association of Washington Business, Washington state's chamber of commerce: www.awb.org

Eminent domain wasn't intended to burn bridges: Scripps News (Washington DC), 8/8/06

By Peter Callaghan

Sound Transit insisted all the way to the Washington state Supreme Court that posting an agenda four clicks deep into a government Web page is adequate notice of an eminent domain action.

No phone call. No letter. No posting on the property. The law requires notice, but unnoticeable notice such as a Web posting was legally adequate, Sound Transit's lawyers insisted.

And the court bought it.

But now that the agency has won, and now that the court has set a goofy precedent, Sound Transit seems to be trying to improve its practices.

Property owners now get a letter telling them the time and place of the board meeting if the condemnation of their property will be talked about.

The chances of dissuading the board are slim. Voting no is often equated with wanting to slow a project down. Still, a personal letter equals real notice, and Sound Transit deserves a back pat for improving the process.

But better doesn't equal good. Take the case of Paul Tegantvoort, who received such a letter in June.

He runs a wholesale auto parts business near the planned Sounder platform in South Tacoma. Tegantvoort had already lost part of his property for the project, being paid $65,000 for property he bought in 1990 for $50,000.

It wasn't enough, he thought. But he lost in court and decided to walk away from the fight. Rather than grow his business in Tacoma, he'll do it in Auburn instead.

"They just wore me out," Tegantvoort said of Sound Transit.

But the June letter left him with a feeling of here-we-go-again. It said Sound Transit wanted more; this time land he uses for parking. Before the board meeting, Tegantvoort got a small bit of good news; the agency wasn't seeking to buy his property outright, just an easement to use it during construction.

But even that would disrupt his business. So he went to the board meeting to testify.

He wasn't allowed to.

When the meeting reached the public comment section, Pierce County Executive John Ladenburg, the board chairman, said no one had signed up to testify. He then moved on to the next item.

Signed up? Tegantvoort hadn't seen a sign-in sheet. He waved his arm from the back, hoping to get Ladenburg's attention. When that didn't work, he approached a staff member sitting on the end of the board's meeting table.

He'd like to speak, he said.

Sorry, she told him. He hadn't signed the sign-in sheet, so he couldn't address the Sound Transit board.

Tegantvoort left before the board voted unanimously to use his property during construction. Soon after, an agent offered him $500 for using his property for two months.

He countered with $30,000; not because he thinks it is worth that much and not because he expects to prevail, but because he is fed up.

"I said, 'I'll never sign that,'" he said of the $500 offer. "I said, 'I don't like you guys. You have an adversarial relationship with me forever.'"

Sound Transit spokesman Geoff Patrick said the agency needs the property access while it builds the Sounder rail extension to Lakewood.

But he also said the agency regrets that Tegantvoort was not allowed to speak. It's changing procedures to try to make sure this doesn't happen again.

"I would view this as a significant lapse in our process," Patrick said. "He has a very valid concern."

From now on, the sign-in sheet will be easier to find. And announcements will be made at the start of meetings to alert attendees of the sign-in process.

"Public comment is important to the board," Patrick said. "We want to make sure our procedures fit with that."

Tegantvoort was pleased that Sound Transit seems to be hearing the message that it needs to treat property owners better. But that hasn't changed his feelings about the agency.

"I'm still not going to help them," he said.

Scripps News (Washington DC): http://www.scrippsnews.com


Mr Ratner's neighborhood: New York Magazine, 8/14/06

A reporter from New York Magazine, who lives near the Atlantic Yards project proposed for Brooklyn, does some soul searching about the pros and cons, the reasons some people support the development while others oppose it. And, in the end, sides with the opponents.

The article provides background about the deals struck by the developers — Forest City Ratner Corp — with various city and state politicians, agencies, and community groups. Unfortunately, the role played by threats of eminent domain in advancing property acquisitions are not covered.

Read the report at http://nymag.com/news/features/18862/

Eminent domain task force work ends in uncertainty: Columbus (OH) ThisWeek, 8/3/06

By Michael J Maurer

The Ohio General Assembly's Eminent Domain Task Force wrapped up six months of work during an all-day session Monday, and task force co-chair state Sen. Tim Grendell, R-Chesterland, promised a final report by midnight Tuesday, the statutory deadline.

Despite an immense amount of work by a phalanx of experienced attorneys and association representatives, with testimony having been heard at locations around the state from dozens of interested citizens and representatives of interested agencies such as the Ohio Department of Transportation, task force members found themselves uncertain of the results Monday.

Grendell described the members as "punchy" as the eight-hour session wrapped up, and Cincinnati-area attorney Richard Tranter half-jokingly and half-seriously told the several legislative members that politics would be more important than the task force's work.

"You guys are going to do what you want on this," Tranter said. "Who are we fooling?"

The confusion was exemplified by the task force's final vote among more than a dozen votes held during Monday's session.

The last question the task force had to decide was whether to recommend a constitutional amendment to change Ohio law on takings. The amendment would abrogate Ohio's "home rule" law that gives cities the freedom to adopt their own laws, and instead require that every property in Ohio be subject to a uniform takings standard.

Task force co-chairs Grendell and state Rep. Bill Seitz, R-Cincinnati, had clearly expected the task force to recommend a constitutional amendment that would ensure that all property owners in the state were subject to the same standards.

But when the roll was called, late in the day after several task force members had already left, the tally was first tied, 9-9, and then after a re-tally, the recommendation failed, 10-9.

A nonplused Seitz said the roll would remain open to allow absent members to vote, raising cries of "unfair" from pro-government representatives who wanted cities to be able to exercise broad takings powers to relieve blight and promote economic development.

The task force had been given a difficult task after last year's U.S. Supreme Court Kelo decision that said cities could take private property and give it to developers for the purpose of economic development. The decision outraged much of the public, and, while several states passed statutes or constitutional amendments to limit the practice, Ohio established the eminent domain task force to examine what, if anything, should be done in response. Grendell said that when the task force began its work in February, eminent domain, or "takings," included three basic areas: "traditional" takings such as for roads or utilities, a government power that has existed since before the nation was founded; "blight," typically associated with urban renewal, which has been widely accepted since the 1950s; and "economic development" takings, which was the focus of the Kelo decision.

Only last week, however, the Ohio Supreme Court issued a unanimous decision in a case known as Norwood that strongly disparaged economic development takings. Although a few task force members urged caution about the meaning of the Norwood case — "We don't know (what it means), because the Norwood decision is only five days old," Seitz said — most task force members who addressed the issue said economic development takings had been eliminated in Ohio.

"If the (Ohio) Supreme Court has made one thing clear, it is that there is no such thing as an economic-development take anymore," said attorney Margaret Cannon.

Despite the apparent elimination of Kelo-style takings in Ohio, however, the task force found itself facing contentious internal division over eminent domain in general, including for both urban renewal and even traditional takings for roads and utilities.

Ohio Farm Bureau representative Larry Gearhardt was among those saying Ohio should reexamine all takings, not just economic development takings.

"We are focusing on the type of take it is, rather than the (property owner's) rights issue," Gearhardt said. "The (more important) question is, are you (as a property owner) treated fairly?"

Most of Monday's session, and most of the task force's work since February, focused on matters such as the definition of blight — for example, when should a city be able to take a well-kept house, not because the house itself is a problem, but because too many nearby houses are a problem — and whether the Ohio Department of Transportation is acting appropriately with property owners.

Columbus (OH) ThisWeek: http://www.thisweeknews.com

The proposed state constitutional amendment, voted down 10-to-9 by the Task force, would add a provision to the existing eminent domain section in Ohio's Bill of Rights.

The existing Article I, Section 19, adopted in 1851:
"Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."

The proposed amendment would add this section:
"No public authority shall take private property for a public use solely for the purpose of increasing the revenues available to any public authority, nor shall the fact that a taking of private property may result in increased public revenues be used as evidence that a private property is blighted. Municipal corporations shall have the same authority to take private property for a public use as the state itself, provided that the municipal corporation exercises that power in conformity with the statutes the General Assembly enacts to govern takings by the state. The provisions of this section shall control in the event of any conflict between this section and Sections 2p and 145 of Article VIII, Ohio Constitution, or Sections 3, 4, 7, and 10 of Article XVIII, Ohio Constitution."

Land battle brewing over eminent domain: Clovis (NM) News Journal, 8/4/06

By Marlena Hartz

A three-year-old land dispute between a Clovis [NM] property owner and the city grew more tangled last month when the owner declined the city’s offer to purchase a strip of his land.

His decline allows the city to seize the strip under the law of eminent domain, which gives government entities the right to acquire private lands for public use, with or without the owner’s consent.

City officials intend to construct a 30-foot open drainage channel across 1.3 acres of Daniel and Pauline Griego’s 15-acre farm at Rodeo and Humphrey roads. The ditch would provide drainage for a growing residential development there, according to city officials. A pond near the development regularly floods when it rains, City Commissioner Randy Crowder said.

“The ditch is needed in order to avoid flooding of that entire neighborhood,” Crowder said.

The Griegos’ lawyer disagrees.

“We just don’t see a good public reason for this,” said the Albuquerque lawyer who represents the family, Donald Sears Jr.

“We attempted to negotiate with the city fairly and in good faith. The Griegos just want to make sure they are not taken advantage of,” Sears said.

The Griegos did not return Clovis News Journal phone calls.

Currently, the city is appraising the land, for the second time, said City Manager Joe Thomas.

For a deed to the land and an easement, the city offered the Griegos $13,560, a copy of the city’s unconditional offer to them shows. That sum could alter depending upon the result of the appraisal, Thomas said.

By law, the city must pay the Griegos just compensation for the land.

Sears said he will file for an injunction as soon as the city attempts to seize the property. If granted, it would freeze the city from further action until the dispute is settled in court.

“If the city (seizes) the property, we want the proper compensation, and we want them to do it in a way that is not damaging to the property,” Sears said.

The Griegos earlier this year asked the city to consider building an underground drainage ditch instead of an open channel, acknowledging its higher cost but contending it would require less maintenance and offering to contribute land to the city.

However, the city rejected the suggestion because the underground pipe system was too expensive and would require more complex construction and maintenance, Thomas said.

Clovis (NM) News Journal: http://cnjonline.com

Please stand with us

Our parents own property at 1065 and 1063 Terrace Dr. Napa, California. They have owned this property for over 40 years and sacrificed a lot of blood, sweat, tears and time with it.

They were approached many years ago about selling thee property to a developer, The O’Brien Group, but were not interested in doing so. Then The O’Brien Group purchased property behind our parents land for development.

A prior development, years before, ran a street up to the side of our parent’s property. Now, The O’Brien group says they want 864 sq ft from our parents. Our parents were not interested in selling just a piece of the land. They consider the piece in question important due to privacy trees that were planted on it more than 40 years ago.

After several requests our parents decided to listen to what The O’Brien Groupthey would offer. They would only listen if it were for the full piece of land and not just the 864 sq ft strip. They do not want to see their land pieced away. The O’Brien Group presented them with about a 40-page contract, so filled with loopholes, they would have ended up with the strip, and not paying for it. Needless to say, that contract was rejected.

The O'Brien Group tried again with a condensed version, but still full of loopholes, and still not meeting our parents' needs or protecting our parents' rights. Then, last year, The O’Brien group came to Napa City Council meeting, and said if the project is approved, they will pay an additional $50,000 to the City of Napa. That is a bribe. Soon afterwards, they got permission to start grading their property.

They trespassed on our parents' property when doing the work. When told to leave, they would not so our parents had to call the police. Now, The O’Brien group has entered into an agreement with the City of Napa. They will pay for all costs involved if the city of Napa takes our parents' property by eminent domain.

The O’Brien group seems willing to spend money to get the property they want, not by buying it from the people who own it, but by paying off the City. And the City of Napa has allowed them to proceed, even though officials know that the The O’Brien Group does not own enough property to complete the project.

At one of the Napa City Council meetings, a Counsel member asked if the O’Brien group were not developing their land, would the city pursue eminent domain to acquire our property. The answer was "no." And the answer was "no" because there is no need for the city to acquire it. There is no need to put in a dead end street. There is no need that would serve the greater good of this city. There is no benefit, except to The O’Brien Group

The O’Brien Group continued stating that all they want is only 864 square feet. What they neglected to mention that there is also over 1500 square feet needed for slope and drainage, which we will not be allowed to touch or use, that they did not want to pay for. There is over another 1000 square feet that we would be forced to give up during the construction phase, which has 30+ year-old trees on there, which nobody seems to care about, or wants to compensate us for.

So, we are actually talking about 3500 square feet. The bottom line, besides corruptive corporate greed and some elected officials not fulfilling their job with the integrity expected, is that the underlying project is a private venture for profit. It is not a firehouse, a school, a freeway, or anything that serves the greater good of this city. This is not a necessity.

The city went ahead and approved to move forward with the "taking" by eminent domain. The fact that developers are getting away with taking land away from people for their own private profit is unfair. Our parents have the right to stay on their property as long as they want. Not to be forced to start having it taken away from them because developers want to build homes.

Who says that someone else has the right to decide what happens to peoples' property? Our parents paid for it, they worked and they have loved it for all these years. What is this country coming to that developers can just come in strong-arm senior citizens because they feel that they have had enough time with their land?

People should have the right to continue to own all the property they own or to sell it when they are ready. We need stronger laws to protect the rights of the Americans. This land is a legacy of what our parents have been through. They have the right to pass this land down to their children if they want to do so. Now our parents have to go through court trials and cost to try to save their rights.

I am not fighting just for our parents, but for every American that owns land. Again if it is something that is necessary like a firehouse to protect the citizens or a school to help with educations,that is different. We know that there are laws that are being worked on to protectland owners. What is needed right now is a “stop gap” measure to stop these unjust taking of land.

Please stand with us and support the “little people” of America and stop these corrupt greedy developers.

Steven and Kimberly Hennion
176 N. Viceroy Ave.
Azusa, CA 91702

From the Napa Sentinel, 8/4/06: http://napasentinel.com

... the Napa City Council Tuesday night stood firmly behind a developer who needed to take land from a private property owner to serve the developer’s new 25-unit subdivision. A battle raged between Vice Mayor Kevin Block and Councilmember Harry Martin. The Council in a 4-to-1 vote sided with Block.

The property seized was at 1063 and 1065 Terrace Drive owned by Charles and Elisabeth Hennion, who have lived on the property for 40 years. The developer was the O’Brien Group – a questionable development company who has built homes on Terrace and Coombsville Drive, behind Queen of the Valley Hospital, Garfield Lane and a proposed 72-unit subdivision in Browns Valley known as the Hussey project. O’Brien Group has a local reputation for not following building codes such as time not to work, etc.

A few months ago, Martin provided stacks of letters, e-mails and other correspondence between O’Brien and Hennion showing the negotiations. The documents indicate that O’Brien was not totally earnest in those negotiations. The developer was instructed that in order to develop the property he would have to obtain a road access. Yet without that acquisition, O’Brien is already grading the land.

The argument with this issue was that Block saw the seizure as the development of Capitola Road. Martin saw it as seizing private land for the profit of the developer. When O’Brien could not make a successful deal to obtain part of the property they made an offer to buy the entire parcels owned by the Hennions. O’Brien then came to the city and asked them to seize the property under eminent domain. O’Brien even threatened the Hennions in their negotiations that if they did not agree with O’Brien’s price they would have the city seize their property.

The fallacy of Block’s argument that this was about building Capitola Road was that the road might not be build for 10 years – or longer with a money-strapped City which had a bleak report on their diminishing funds that same night. The focus of the issue was Hennion vs. O’Brien. A member of the Hennion family called Block a liar on two occasions during the hearing. Even in the staff report it states, “Until properties to the north are developed and the associated through street connection is completed to Fairview Drive, the portion of Capitola Drive at the Hennion property will provide the ONLY access to serve the 25 lots in the Napa Terrace subdivision.” The report also states, “Without the acquisition, the road could likely still be extended to the subdivision, but it would not be as wide as it should be to accommodate various needs.”

But Block’s argument overlooks the fourth point in the staff report. “Further, the acquisition of the subject property interests will facilitate the City’s pursuit of its circulation connectivity goal by allowing for APPROPRIATE CONNECTIONS TO THE SUBDIVSION and POTENTIALLY, beyond. The word POTENTIALLY does not imply any definite commitment beyond O’Brien’s 25-unit subdivision.

Block accused Martin of “grandstanding” stating the issue is Capitola Road, when the Staff report differs.

Martin said that it was Block who was grandstanding by taking focus off the main issue and playing to the community on Capitola Drive. “This stinks,” Martin said. “It is just like the Connecticut seizure of private property so a private developer could build an office complex.”

The eminent domain seizure required a four-fifths vote of the Council. It passed 4-to-1. The Hennions only recourse is to fight the issue in court.