Initiative would tighten eminent domain laws: Arizona State University Web Devil, 8/31/06

Opponents argue proposition could lead to payouts

By Grayson Steinberg

A state ballot initiative aims to stop government efforts to take private property to generate tax revenue, but opponents say this would lead to expensive court claims if passed in November.

Proposition 207 would require fair compensation for property owners if state or local government seizes their land for its own use. The government would also reimburse owners when its actions decrease private property values.

The goal is to discourage efforts to take private property for economic development, said Lori Klein, executive director of the Arizona Home Owners Protection Effort, the initiative's main supporter.

"Government should not be in the private economic development business," Klein said. "That is the realm of the private sector."

The initiative, which will be put to voters Nov. 7, would let owners file a court claim if they think they haven't received just compensation, or governments can grant waivers from ordinances owners feel reduce property values.

Mary Ann Miller, president and CEO of the Tempe Chamber of Commerce said letting owners file court claims for reimbursement when property values fall would lead to governments spending money to settle claims.

"One could conceivably argue that if ASU puts up a dorm right next to your property, the value of your property has been diminished," Miller said.

These payouts would take money from general municipal funds, which finance city services, Miller said.

Klein said these claims wouldn't drain city funds because most local governments can use dedicated money for planning and development to settle claims.

Tempe spokeswoman Nikki Ripley said the city couldn't take an official position on a state ballot initiative.

But the measure could drain state funds, said Ken Strobeck, executive director of the League of Arizona Cities and Towns.

Proposition 101, passed in 2004, specifies that a ballot measure must identify a funding source if it requires the state to spend money, Strobeck said.

The league has challenged Proposition 207 on these grounds, and is appealing a Maricopa County Superior Court decision to leave the measure on the ballot to the Arizona Supreme Court, Strobeck said.

Klein said the initiative wouldn't require the state to spend money because city and county governments handle most local land use and zoning decisions.

Proposition 207 would still allow the government to acquire private property for public uses, such as when property is abandoned or threatens public health and safety.

The U.S. Supreme Court decision in last year's Kelo v. New London case created a need for states to tighten requirements for eminent domain usage, said Farrell Quinlan, vice president of policy development and communications for the Arizona Chamber of Commerce & Industry.

"It flies in the face of the Fifth Amendment to the U.S. Constitution that any such takings are wrong without just compensation," Quinlan said.

The Supreme Court found that the city of New London, Conn., could take private properties for economic redevelopment and such an action could be considered a public use.

Supporters also pushed for Proposition 207 after Gov. Janet Napolitano vetoed a similar bill during this year's legislative session, Quinlan said.

Although dealing with the court claims might burden local governments, courts had to protect property owners from the "seemingly unlimited power of the government," Quinlan said.

Strobeck said the initiative would open governments up to claims on decisions ranging from density changes to allowing off-street parking in neighborhoods.

"I think it will have a chilling effect," Strobeck said.

Arizona State University Web Devil: http://www.asuwebdevil.com

Public advocate joins eminent-domain foes: Asbury Park NJ Press, 8/31/06

He'll take part in appeal of Long Branch decision

By Carol Gorga Williams

Embattled homeowners in a waterfront neighborhood fighting the city's efforts to take their homes for private redevelopment gained a powerful ally Wednesday — their second in two days — in their fight to protect their properties.

State Public Advocate Ronald K. Chen said he would participate in an appeal to block upscale condominiums from replacing homes in the Marine Terrace-Ocean Terrace-Seaview Avenue area, commonly known as MTOTSA, which residents say is a well-established, close-knit neighborhood.

Chen said he would file a "friend of the court" brief in support of the residents' position, saying eminent domain should only be used in "narrow and rare" circumstances.

On Tuesday, MTOTSA residents got help from the Institute for Justice, the Arlington, Va., nonprofit law firm that has handled some of the leading eminent-domain cases in the nation. It announced it would join the residents' fight.

"As of today, this neighborhood is ground zero in the fight against eminent-domain abuse," said William H. "Chip" Mellor, institute president, who joined Chen and residents at a news conference in the oceanview neighborhood to formally announce their appeal of Superior Court Judge Lawrence L. Lawson's June 22 decision that permits the city to use eminent domain to acquire MTOTSA properties.

"It's been a long haul," said Lori Ann Vendetti, a core member of MTOTSA. "We've come this far, and we're not stopping. . . . This is happening throughout the country. We're not going to stop until eminent-domain (abuse) stops here and throughout the country."

Chen criticizes judge
"The facts in this case raise serious concerns regarding whether these homeowners received fair treatment throughout this process, and I believe it is appropriate for the Appellate Division to review this case," Chen said in a prepared release and in remarks he echoed at the news conference, held amid homes where signs such as "fight bogus blight, "ours today, yours tomorrow" and "this land is my land," abound.

In an interview, Chen said Lawson, sitting in Freehold, should have allowed the residents to present evidence to demonstrate whether the neighborhood was blighted, as the city alleges, or not, as the residents contend.

Institute for Justice senior attorney Scott Bullock called it "one of the most outrageous aspects of this case" that Lawson did not permit the homeowners their day in court.

"That rarely happens in eminent-domain cases," he said of a lack of an evidentiary hearing. "That's what we'll be asking the appellate court to do."

Chen also is troubled over whether residents originally were given correct information from the city about whether their neighborhood was threatened. They contend they were told the neighborhood was slated for "infill" housing in the redevelopment plan, meaning the developer would build on available lots.

Mayor: Look at record
Mayor Adam Schneider contends that regardless of the residents' understanding of "infill," he always meant it to mean the neighborhood would be taken, and smaller redevelopment projects would be built there.

Schneider challenged the thoroughness of Chen's research, noting the advocate never examined the record the city has developed over more than a decade, laying out its plan.

"He hasn't talked to me about that issue, he hasn't talked to anyone in the city about that issue," Schneider said of Chen's concerns over the meaning of infill. "I don't understand why he never came and reviewed the record we created over the last 12 to 15 years before he made his decision."

Chen said he would file the brief within two weeks of the filing of the notice of appeal, which both lawyers Peter H. Wegener and William J. Ward, attorneys who are separately representing clients in the zone, said they have done.

On May 18, Chen issued a report that recommended reforms to prevent eminent-domain abuse: He called for tightening the definition of blight, called for changing the way government engages in redevelopment to make it more fair and open to property owners and tenants, and sought to require homeowners be compensated with the replacement value of their homes so they can stay in their communities, if they desire.

"These processes have to be cleaned up so there is complete transparency," Chen said.

Wegener and Institute for Justice attorneys Bullock and Jeff Rowes will act as co-counsels for the majority of the affected residents. The residents have been working with the institute and its sister organization, the Castle Coalition, for years but this is the first formal partnership between the two.

Priority for institute
Bullock said Tuesday that Long Branch would be a priority for the institute, which will not charge the residents for its work.

"It would be so easy simply to preserve this neighborhood," Bullock said. "All we're talking about is a two-and-a-half block neighborhood. . . . Maybe the city will come to its senses."

Although the city continues to negotiate with some MTOTSA residents who voluntarily want to settle, Schneider said he believes the city ultimately will prevail in the appeal.

"I'm not litigating this in the newspaper," Schneider said of MTOTSA's various charges.

Vendetti said that many attorneys would not take their case, or only wanted to take the case to handle the "just compensation" question, that is how much money the residents would accept to move. But Wegener believed the case should be waged on a more fundamental level, one that would assure the residents stay in their homes.

Anna DeFaria of Marine Terrace cried a little when she talked about her ties to her house and the community.

"I'm going to be 81 years old in October. I've lived here for 46 years, with my husband, whose been gone 10 years now, with my six children and six great-grandchildren," she said. "We thought we were going to stay here for the rest of our lives. Now they think they can take what's ours for that over there," she said pointing to the condominiums of Beachfront North Phase I. MTOTSA is designated phase 2 of that development.

"After 74 years here, seven generations have enjoyed 99 Marine Terrace," said Albert Viviano. "My position at 93 years old is I'd like to stay in my own home."

Asbury Park NJ Press: www.app.com

Eminent domain battle ends in favor of landowner: Chattanooga TN Times Free Press, 8/31/06

By Dick Cook

It took seven years and a jury for two Whitwell men to get what they believe is fair compensation from a utility company in its taking of three-tenths of an acre of their land by eminent domain.

A Marion County Circuit Court jury on Wednesday awarded John Shelley and James Cooper $160,000 in incidental damages from the company that took a small portion of the men’s 27 acres of property off state Highway 28 to build a regulation station.

The company paid the men $8,000 for the lot, but the owners said the facility damaged the value of the entire tract.

“We wanted to settle,” said Mr. Shelley, who battled Marion Natural Gas System. “We didn’t want to go to court.”

Chattanooga TN Times Free Press: http://www.tfponline.com

Eminent domain ballot measure could do more harm than good, experts claim: The San Diego CA Daily Transcript, 8/31/06

By Doug Sherwin

The ability of public projects to be built in California could be severely hampered if a proposed ballot measure passes in November, industry experts warned.

In an eminent domain workshop hosted by the San Diego Regional Chamber of Commerce and the San Diego County Bar Association in June, panelists said the measure, dubbed the Anderson Initiative, adversely limits government's ability to acquire property for any project, including schools and roads.

"There will be a thought by some of us about whether or not California is the place to be anymore as a result of the passage of the Anderson Initiative because of its far-reaching implications," said John Shirey, executive director of the California Redevelopment Association.

The measure, which has yet to qualify for the ballot, redefines the amount of "just compensation" for owners whose property is taken as well as redefining the word "damage."

"We can't put a dollar figure on how much more it will cost to do public projects in California as a result of that redefinition," Shirey said, adding it will be significant because "the redefinition doesn't have anything to do with redevelopment. It redefines the cost of acquiring property for all governmental agencies in California for all types of projects -- roads, schools, flood control."

Nancy Graham, president and COO of the Centre City Development Corp., said property owners would then be able to hold out for whatever price they want.

"It's going to have a huge financial impact on trying to do any type of redevelopment because you'll have to end up paying huge amounts of money," she said.

Even property rights advocate Scott Barnett admitted the Anderson Initiative might go too far and doesn't believe that a ballot measure is the best way to affect change.

"We're not against eminent domain," said Barnett, referring to the group ProtectOurProperty.org, of which he's the president. "We know it's an important tool that government needs to have. But we are against the abuses of it and believe that there should be legislation to fix it."

The measure is among a number of proposed remedies in response to the Supreme Court's controversial eminent domain decision last summer.

In the case Kelo v. City of New London (Conn.), the high court voted 5-4 that the city's exercise of eminent domain power in furtherance of its economic development plan satisfied the constitutional "public use" requirement.

The ruling caused a public uproar, fearing the government now had the power to seize any single-family home. Lawmakers in 47 states responded by introducing 325 measures to protect private property. In California alone, 87 bills have been proposed as well as several ballot initiatives.

Shirey blames the media for misreporting the decision with such incendiary headlines as "Supreme Court Rules Cities May Seize Homes" and "Developers Score in Court." He quoted an Associated Press story that read: "Cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue."

Instead of reassuring the electorate that their homes weren't in jeopardy, Shirey said, California's political leaders were "lemmings" and followed the headlines.

"I probably would have argued on the other side if I'd known then what kind of headlines were going to be written," Shirey said.

The California Redevelopment Association is trying to draft an alternative to the Anderson Initiative that would prevent authorities from using eminent domain to take single-family homes for what might be considered economic reasons.

Barnett is concerned that when government is allowed to transfer property from one private party to "basically developers," it gives the development industry unfair political clout because of its ability to make campaign donations.

He wondered out loud at the roundtable if such projects as Petco Park could have been accomplished without the use of eminent domain and went so far as to suggest that CCDC had outlived its usefulness.

"(Redevelopment) is definitely good for business and business downtown, but is it good for city budgets?" he asked.

Graham noted that the San Diego City Council ultimately has the power to disband CCDC and it hasn't seen the need to do so.

San Diego's Bruce Beach, a land-use attorney with Best Best & Krieger, said the appropriate checks and balances to prevent abuses are already in place. "No plan gets approved without going through the City Council or the redevelopment agency," he said. "No property gets condemned without the agency board voting two-thirds to do it. "Nobody is forcing then to acquire a piece of property that they haven't sat down and contemplated as to whether or not to take property by eminent domain."

Shirey said if the Anderson Initiative passes, the California Redevelopment Association likely would consider a post-election challenge to its constitutionality.

The San Diego CA Daily Transcript: http://www.sddt.com

Eminent domain appeal is fight for property rights: Asbury Park NJ Press, 8/30/06

By Jeff Rowes

In September 1943, Joseph Torrisi, a young airman in the Army Air Corps, came home on leave to Long Branch and fell in love with a beautiful beachfront cottage at 78 Ocean Terrace. He returned to duty in Europe but never came home again, dying in fierce combat in defense of our freedom. Not long after, his stricken father bought 78 Ocean Terrace as a tribute to his son's heroism and his dream for the family.

More than 60 years later, Torrisi's younger sister, Rose LaRosa, now an 80-year-old widow, still lives there.

But not for long, if Long Branch has its way. The city is using its power of eminent domain to seize LaRosa's entire neighborhood (called MTOTSA for Marine Terrace, Ocean Terrace, Seaview Avenue) and turn it over to private developers so they can make millions building upscale condominiums for the wealthy.

Long Branch justifies this outrageous land-grab by claiming that MTOTSA is "blighted," pointing to trivial cosmetic defects like cracks in masonry. But the city's absurd definition of blight reveals that these condemnations are not about blight at all.

Instead, they are about the political and financial ambitions of those who stand to gain from using government power to take away property that rightly belongs to someone else. The city is simply replacing modest homes with fancier ones, and working-class families and retirees with trendy professionals.

It is no surprise that this case pits people of modest means against deep-pocketed developers like Matzel & Mumford, a subsidiary of K. Hovnanian, one of the largest property developers in the country. Just last summer, the U.S. Supreme Court, in a narrow 5-4 decision in the justly reviled Kelo v. City of New London case, ruled that the government may give your home to someone else as long as there is a vague hope that increased taxes and jobs will follow.

In her pointed dissent, Justice Sandra Day O'Connor explained who wins and who loses when eminent domain is used for private profit: "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." As for the victims — people like LaRosa — "the government now has license to transfer property from those with fewer resources to those with more."

The scandalous demise of property rights in our nation's highest courts has transformed most lower courts into government rubber stamps. In June, the Superior Court in Freehold approved the "blight" condemnation of MTOTSA without even letting the homeowners present evidence that their homes are not blighted. Unless the New Jersey courts of appeal reverse this travesty, property ownership will be meaningless and every home will be vulnerable to condemnation on behalf of the rich.

The recent re-election of Long Branch Mayor Adam Schneider, the biggest cheerleader for destroying MTOTSA, is irrelevant because politics cannot trump basic constitutional protections. The terrible predicament the MTOTSA residents face is what the framers of the U.S. and New Jersey constitutions had in mind in writing those great charters: unprincipled government officials, acting in concert with powerful financial interests, do something unjust to an isolated few while the majority does nothing or, worse yet, approves.

The framers understood that freedom means nothing unless it means that there are some things that no government can do. Just as the U.S. and New Jersey constitutions forbid searching your home without a warrant, so, too, do they forbid taking it simply to give it to someone else. The home has a place of privilege among our fundamental rights because the home is, as Abraham Lincoln put it, the "fruit of labor," meaning it is the repository of our efforts, symbolic of our dreams, and where we find solace from the turmoil of the world.

Joseph Torrisi did not give his life in the struggle for liberty so unscrupulous Long Branch officials could give his little sister's cherished home to billionaire private developers. Today, the Institute for Justice joined LaRosa, her MTOTSA neighbors and their attorney Peter Wegener to appeal the trial court decision. This fight will determine not only the fate of the MTOTSA neighborhood, but the meaning and vitality of property rights across New Jersey.

Asbury Park NJ Press: www.app.com

Jeff Rowes is a lawyer with the Institute for Justice, which represents the MTOTSA homeowners www.ij.org

Eminent domain proposal must be monitored: Lafayette LA Daily Advertiser, 8/30/06

In two elections - Sept. 30 and Nov. 7 - Louisiana voters will decide the fate of some 20 constitutional amendments. At this point, it appears lawmakers from our area generally agree the hot-button item is an amendment that would place restrictions on expropriations - acts of taking private property under the right of eminent domain for what government decides is in the public good.

Battle lines are forming on the various amendments, and this one is no exception.

Abuse of the right of eminent domain has resulted in private property rights being trampled. The scramble nationwide to change expropriation procedures is a reaction to a recent U.S. Supreme Court ruling that allows local governments to use the right of eminent domain to force property owners to sell their property to developers.

Such action harms property owners and the concept of property rights. Governments engage in such practices when use of property by developers would provide more tax revenue than that produced under the original ownership.

We believe practices such as forcing residents of an entire neighborhood from their homes and businesses so the land can be turned over to a high-powered company that will increase the government revenue base must be prevented.

While property owners must be protected, the arguments of people such as Paul Loy Hurd of Monroe, a real estate and corporate transaction lawyer, should not be ignored. He claims passage of the amendment would actually expand government's power to take private land. He calls it a "Trojan horse."

The proposal is not perfect. To win approval from the Legislature, sponsors were forced to allow opponents to define those "public purposes" for which government could take property. The list does not seem threatening. Purposes would include acquiring land to build parks, convention centers and museums. There are situations in which exercising the right of eminent domain offers the only avenue for progress. In Lafayette Parish, for example, there have been cases in which property owners unwilling to grant rights-of-way have stymied road and drainage construction essential to keeping pace with growth.

We continue to believe, however, that citizens must be protected against government taking a home or business and putting it in the hands of a politically connected private developer.

What we see as the focus of the opposition to the amendment is not its structure and intent, but the fear that the state will allow it to be misused. The question voters will need to consider is whether the state will provide the level of monitoring and oversight needed to prevent that from happening. Backers of the proposal would do well to show how the integrity of the amendment will be maintained - and show it before election time.

Lafayette LA Daily Advertiser: http://www.theadvertiser.com

Flats eminent domain battle set: Crain's Cleveland OH Business, 8/30/06

By Jay Miller

The legal battle that’s likely to determine the fate of the East Bank of the Flats is set to begin Sept. 25 in Cuyahoga County Probate Court.

Probate Judge John E. Corrigan set the date for the opening round in the eminent domain case over land in the Flats that is part of a massive retail and residential redevelopment project.

That first hearing will be procedural — to decide whether 13 eminent domain cases filed by the Cleveland-Cuyahoga County Port Authority against Flats property owners should be heard as a single case.

The Port Authority is pursuing eminent domain after property owners rejected the city-county agency’s offers for their land. The authority wants the land so it can sell it to the Wolstein Group and the developer can begin work on its $230 million Flat East Bank residential and retail project.

Regardless of whether the cases are consolidated, they are an early test of the Ohio Supreme Court’s recent Norwood decision, which tightened the requirements government must meet before it takes property through eminent domain.

Attorney Steven S. Kaufman, one of the attorneys representing the Port Authority, said to the judge that Norwood changed nothing about the law of taking property in eminent domain. He said it only advised judges to “take a closer look” at the way government handled eminent domain.

However, Judge Corrigan suggested that he was paying attention to the Norwood case, if only because of its newness; the decision was handed down in late July. But, he said, restating existing law on eminent domain, property owners are entitled to full and just compensation for their property.

Judge Corrigan set aside three days for the September hearing, but some of the parties said they thought the issues could be presented in one day or less.

Crain's Cleveland OH Business: http://www.crainscleveland.com

Friedman Airport granted eminent domain: Ketcham ID/Idaho Mountain Express, 8/30/06

One-time authorization will only apply to Eccles' land

By Jason Kauffman

Although admitting full well the significance of their decision, the Hailey City Council and Blaine County Commission this week both voted to allow the Friedman Memorial Airport Authority to proceed with eminent domain proceedings on private property south of the airport.

Specifically, the vote by the elected bodies adds a fourth amendment to the Friedman Memorial Airport Authority Joint Powers Agreement. The joint powers agreement between the city of Hailey and Blaine County, which own the airport, established the operating parameters for the governing body of the airport.

The move by the city and county has to do with an apparent deadlock between the Friedman Memorial Airport Authority and the owner of ranch lands just south of the airport.

The owners of the land, the Eccles family, have reportedly refused to allow the installation of solar-powered obstruction lights in towering trees on their property to comply with Federal Aviation Administration safety regulations.

The impasse comes after lengthy discussions between the airport and a representative of the Flying Hat Ranch. Airport officials, including Airport Manager Rick Baird, have indicated that the FAA could end commercial night flights into Friedman if no compromise was reached.

Before the Hailey City Council's vote on Monday night, Baird gave a brief historical sketch of what has led up to the current impasse.

Not achieving a positive result to break the impasse and allow for the lighting of the trees to the FAA's liking could lead to the temporary elimination of instrument approaches at the airport, Baird warned. Such an outcome would mean aircraft using onboard instruments to land rather than by sight, essentially all commercial aircraft, couldn't land at the Friedman Memorial Airport, he said.

"We can't get in a position where we lose that service," Baird said, noting that no flights could land at night under that scenario.

Describing himself as a strong proponent of private property rights, Hailey City Council President Rick Davis said that in this specific case he is more concerned with ensuring public safety.

"Safety is paramount in all of our minds," Davis said. "I would definitely be fine with this (amendment to the joint powers agreement)."

Eminent domain proceedings largely hinge on issues related to the greater public good, Hailey City Councilman Don Keirn pointed out. "I can't think of a greater public good," he said.

Asked by Hailey Mayor Susan McBryant if the Airport Authority intends to pursue litigation, airport attorney Barry Luboviski said such a move is likely if the ongoing negotiations fail to reach any results.

"We're going to have to file if we don't have this worked out quickly," Luboviski said.

Baird and Luboviski attended the Blaine County Commission's Tuesday morning meeting to lobby for that panel's approval of the amendment to the joint powers agreement.

Commissioners Sarah Michael and Tom Bowman approved the amendment. Commissioner Dennis Wright wasn't present for the vote.

The tree-related safety issue just adds to the obstacles Friedman has been facing since the FAA declared the facility does not comply with safety standards required for larger aircraft using the field, such as Horizon Air's Bombardier Q400.

Expanding the field has been rejected by the city of Hailey and Blaine County as too costly and too disruptive on surrounding property. A site for a new airport with a longer, 8,500-foot runway has been tentatively designated in an isolated area in southern Blaine County.

Ketcham ID/Idaho Mountain Express: http://www.mtexpress.com

Landowner sees legal compensation for eminent domain: Weatherford TX Democrat, 8/30/06

Willow Park reimburses Mitchell after condemnation clouds property for months

By Galen Scott

Annetta landowner William Mitchell confirmed a settlement Wednesday with the City of Willow Park concerning approximately 30 acres of land condemned under the power of eminent domain.

Willow Park officials condemned the property, which was identified as a possible location for a regional wastewater treatment facility, in September of last year. According to Mitchell, the city has now agreed to reimburse approximately $15,000 he spent on legal fees defending the property.

The condemnation was lifted weeks after Mitchell sponsored a billboard in February which read, “help stop eminent domain abuse in Parker County.”

Willow Park officials reversed course and joined other area municipalities in a regional wastewater treatment feasibility study designed to address a broad spectrum of issues, including geographic feasibility.

Willow Park Mayor Brad Johnson explained after the city decided to participate in the regional study, it backed off on the condemnation and felt an obligation to reimburse Mitchell for any expenses he incurred.

Johnson noted however, there were negotiations with Mitchell prior to the eminent domain action.

“Eminent domain was not the first step that was taken,” he said. “There were some hoops that we attempted to jump through prior to the eminent domain action.”

Though apparently satisfied with the settlement, Mitchell maintains the move was an abuse of power and said the use of eminent domain is out of control in Texas.

“The land they eminent domained was way out of their city limits and nobody asked them to come outside of their city limits and become a water and sewer provider,” Mitchell said Wednesday. “My definition of eminent domain — stealing the things others work for.”

Johnson said he expects some information from the regional wastewater study by the end of the year or the beginning of 2007.

Weatherford TX Democrat: http://www.weatherforddemocrat.com

Not Just an Ordinary Basement: Brooklyn NY Downtown Star, 8/31/06

By Nik Kovac

If a row of antebellum houses on Duffield Street are torn down to make way for a parking garage, then Brooklyn will lose access to a huge facet of its multi-racial history, and a dozen young children of color will lose access to a summer school for musical theater.

Both of these current resources were on full display last Saturday afternoon, as Joy Chatel and Lew Greenstein offered tours of their basements - which were likely used by DoBro abolitionists to hide fugitive slaves during the 1850s - to politicians and passersby. Then the kids put on a performance of dance, drumming, skits, and spoken word directed by Chatel's daughter, Shawne Lee.

"This is an important part of the history of the United States of America - and of the world," announced State Senator Velmanette Montgomery, who had just visited the sites - which are due north of Fulton Mall and due south of MetroTech - for the first time. "We must hope we don't lose the ability to pass this on to future generations, and that we can maintain access to this part of ourselves forever."

Montgomery had been a supporter, two years ago, of the city's ambitious DoBro rezoning, but now thinks the plans should be redrawn to allow the Duffield Street houses to be maintained in perpetuity as museums.

"There are ways to do it," she told the Star while standing on the sidewalk. "The houses could even be inside a larger building."

Chatel and Greenstein, of course, would like to see their houses - both have lived in them with their families for decades - preserved not just as museums, but also as places to live. They are both willing to open up their basements to the public, and in Chatel's case, her family has already taken an active role in using the history within her home as a means of educating and inspiring the next generation.

One skit put on by the summer school her family hosts every year featured a teenage girl pretending to be a snobby member of the black community "on Pennsylvannia Avenue" in East New York. She was waiting for a bus and looking down on her neighbors, wishing she had some white friends. The other children then burst into a song and dance explaining the important role of blacks throughout world history. "We invented civilization," they told her.

Another skit featured a character called "black dummy." A ventriloquist kept calling a young boy that name, while a dancing chorus of girls sang the refrain, "He's no dummy, he's just been away too long." Eventually the young boy breaks free of the laughing ventriloquist and even turns the tables on him, when it turns out every character in the skit except for the "dummy" was a remote controlled toy robot.

Besides Montgomery, two other political candidates - both running for the same State Assembly seat - spoke at the rally before the summer school's performance. "This fight," said Bill Batson, "has given my run direction. I'd like to dedicate my race to Harriet Tubman."

Chatel quickly pointed out that, while Harriet Tubman was the most famous conductor on the Underground Railroad, it was a different Harriet - Harriet Trusedale - who owned Chatel's house on Duffeild Street during those ugly days in American history when slavery was still legal down south - and blacks in New York City could be sent there in chains.

Freddie Hamiltion, who is running against Batson to succeed Roger Green in the 57th Assembly District, said, "I'm here today in support of Joy. I support this effort and I support her. Joy, no matter what happens in this election, you can call on me. I don't know what help I can give you, but just ask and you'll get it."

Hamilton then made a more general point to the crowd of several dozen sitting on chairs and standing on the sidewalk. "I don't care if you're a Republican or a Democrat. This has to do with history, so that crosses any political line."

Hamilton and Batson disagree strongly on the Atlantic Yards project further east in Brooklyn, but they are a united force in the effort to save the history of the Underground Railroad on Duffield Street from being bulldozed to make way for office towers and parking.

Brooklyn NY Downtown Star: http://www.brooklyndowntownstar.com

Township reversal on eminent domain was right thing to do: Pottstown PA Mercury, 8/28/06


The Earl Township [PA] supervisors have changed their minds, and the Tiki Bar will be remaining in its popular spot along the Manatawny Creek.

The supervisors met last week in a special session to squash the eminent domain proceedings which had been initiated against Jim Finegan to take his restaurant usiness as part of a "hazard mitigation" project in the Manatawny flood plain.

Eminent domain proceedings were brought against nine properties that lie in a flood plain along the Manatawny Creek earlier this year, with the decision to move on the Tiki Bar and one other property reaffirmed at the Aug. 14 meeting.

Township officials would not comment on their decision to squash the eminent domain proceedings.

The plan to acquire the properties through eminent domain is being replaced with a plan to approach property owners with offers to buy the properties, and if the owners don’t want to sell, eminent domain will be withdrawn.

While some property owners may be happy to sell their land to the township through eminent domain, Finegan’s issue was that you can’t put a price on his livelihood.

He was right. The township has made the proper decisionin reversing its move to take the business.

Finegan perhaps said it best:

"It’s the way the world really should work; if they want to buy properties, they should come to the owners and make an offer.

"To use eminent domain to force people to sell is wrong. I’m thankful they came to their senses."

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

Target, state road agency tussle over eminent domain: Palm Beach FL Post, 8/26/06

By Pat Beall

Retail giant Target Corp. and the state's road-building agency are headed for court. Again.

Justices with the 4th District Court of Appeals in West Palm Beach this month ruled that the Florida Department of Transportation and Target will have to face off in a second trial.

At issue is how much Tallahassee owes the retailer in business damages now that it has used eminent domain to force the sale of three Target-owned parcels at State Road 7 and Southern Boulevard in Royal Palm Beach.

It's an unusual case.

First, most of the state road-building agency's eminent domain actions never make it to court, much less appellate court.

Second, it turns the tables on Target. Along with such businesses as Wal-Mart Stores Inc. and CVS Corp. pharmacies, Target has benefited when cities or counties hungry for new business seize land through eminent domain and then make it available to the retailers.

"Target is not the first big-box store that, after having taken advantage of eminent domain, finds itself on the receiving end," said Dana Berliner, senior attorney for the Institute for Justice. The Washington think tank supports curbs on eminent domain.

The retailer's strategy has backfired occasionally. U.S. District Judge Charles A. Shaw rebuked Target in 2003 for strong-arm tactics involved in trying to get St. Louis to condemn a store site.

Target did not return repeated calls for comment.

According to court documents, the tussle between Target and the Florida Department of Transportation has its roots in the 1970s. That's when Tallahassee first started thinking up road plans for Southern Boulevard. For years, nothing happened. Target bought its corner property, built a store and made plans to expand, just as the department finalized its blueprints.

In 2002, the department filed to take the retailer's properties through eminent domain. At trial, both sides could claim half a victory. The department successfully argued that a fair price for the real estate was not $9.4 million, as Target claimed, but $2.4 million.

Target successfully argued that it was owed an additional $2.5 million for business losses, based on its plans to expand, as well as plans to sell some of its property to other retailers.

The department appealed, arguing that Target did not have adequate evidence that its plans to expand business operations, specifically a garden center, were actually under way. This month, the appellate court decided the department had a point. The case was sent back for a new trial addressing how much in business damages, if any, should be awarded.

Jeffrey H. Savlov, a former Department of Transportation attorney who represents landowners, said the key to business damages is that some — but not all — of the business has to be taken as part of a road project. The business also has to have been open at the location for at least five years.

Pursuing a claim also means the business will have to open financial data to public scrutiny. Target, for instance, revealed that after a Wal-Mart Supercenter opened for business less than a mile from its SR 7 site, sales went flat for a year.

That's more transparency than some can stomach. Savlov cites the case of a Florida Sears store that balked at making its finances public, even if that meant not pursuing a substantial claim.

Others think it's worth the disclosure. Adult entertainment mogul Joe Redner was incensed when the department offered him $3.4 million for his trio of Tampa businesses: a bar, a restaurant and a topless nightclub. He pushed the case to trial. A jury last year awarded him $7 million.

No date has been set for a retrial on Target's claimed business losses.

But big awards may not last forever. Florida's Office of Program Policy Analysis and Government Accountability this year reported the Department of Transportation spent just shy of half a billion dollars in 2004-05 to acquire land. Their suggestion for paring costs: Cut out all business damages payments.

Palm Beach FL Post: http://www.palmbeachpost.com

Stop Aug. 29 eminent domain deadline in New Orleans: San Francisco CA Bay View, 8/23/06

Hopes and homes subject to seizure on Katrina’s anniversary

By Stephen Bradberry and Jeffrey Buchanan

The one-year anniversary of Hurricane Katrina, Aug. 29, 2006, should be a day to remember our commitments to our fellow Americans and mourn our collective losses. It should be a day to reflect on what we as American citizens expect from our government in our most dire hour of need. It should be a time to honor the courage of the hundreds of thousands of still displaced Katrina survivors as they struggle to return home one year after the storm broke land.

Instead of commemorating the disaster, Mayor Ray Nagin and the New Orleans City Council have callously chosen the one-year anniversary of Katrina to begin a policy that will demolish what little hope displaced, largely African American, families have of returning to their city. In May, the New Orleans City Council unanimously passed City Ordinance #26031, which sets a deadline for homeowners to gut their homes or potentially lose them.

By Aug. 29, homeowners who have not been able to make the necessary repairs to their battered homes risk having their property seized by eminent domain and bulldozed by the city. The Council’s decision will further “cleanse” New Orleans of its African American low and middle income families, continuing the exclusion and discrimination that have become hallmarks of the reconstruction.

But the survivors of Katrina are not alone. Although the government is not fulfilling its obligations, many non-governmental organizations are trying to help survivors. Groups like the Association of Community Organizations for Reform Now are working around the clock to save homes from demolition and enforce a principle of fairness and inclusion in the disaster recovery process.

Many working-class families cannot return to New Orleans to prevent their homes from being seized. Most are still waiting to receive payment from insurance claims and are unable to pay the roughly $10,000 charged by contractors to gut their home, nor can they afford to take time off to gut their homes themselves.

Low-income families in New Orleans could now lose their homes before receiving a dime from the federal government’s $7.5 billion in community block grants to Louisiana’s “Road Home” home repair grant program for homeowners. Those vitally needed funds, despite being given to the state of Louisiana months ago, remain tied up in red tape by bumbling state bureaucrats as people in New Orleans and around the state wait in desperate need of a helping hand.

ACORN has been able to win some relief for the working-class families who could lose their homes. It convinced the City Council to amend City Ordinance #26031 to make the Lower Ninth Ward a hardship case, protecting those who were hardest hit by the failing levees from the seizure ordinance.

Compounding the injury, many of the affected homeowners are displaced, living out of state and unaware of the home demolition policy. Getting information is very difficult for the more than 200,000 former residents of New Orleans, mostly working class African-American families, who are still spread across 44 different states.

Most have no way of knowing the current state of their homes and neighborhoods – basic issues like whether the water and electricity are running or whether their local schools are open. The overwhelming majority of relevant government decisions, including this ordinance, do not make it into the national news reports or local broadcasts in their new communities.

The City appears oblivious to the crippling lack of information in this crisis. It believes it does not need to directly contact homeowners in accordance with due process, required by the U.S. Constitution, before it can begin seizing property.

After being sued for attempting to bulldoze homes in the Lower Ninth Ward last December, the City of New Orleans settled with local groups by pledging to post seizure information on the City website and in New Orleans’ daily newspaper, the Times Picayune, to fulfill due process requirements.

Never mind that most affected displaced people live outside of the Times Picayune’s distribution area and may not have an internet connection. Displaced families, without actually being notified, will remain completely in the dark as they lose their homes.

ACORN is currently fighting to win protection for families whose properties are listed on gutting lists, as well as fighting for real legal notification for displaced homeowners and a more realistic timeline to clean out homes.

Since December, ACORN has helped survivors by gutting more than 1,500 homes. ACORN is offering families – at no cost – the service of gutting and preserving their home. ACORN is also arranging for homes to be “adopted” by donors, thus covering gutting costs for low-income families. ACORN has also been recruiting volunteers and organizations to New Orleans this summer to help save the homes.

If a foreign government began seizing the homes of vulnerable disaster victims – especially without notification – in an area where the U.S. is providing disaster relief, the U.S. government would not just stand on the sidelines. The State Department and U.S. Agency for International Development have significant programs supporting the protection of the rights of “internally displaced people” (IDPs) – the term for those displaced from their homes to a different part of their country by a disaster – in areas like post-tsunami Sri Lanka.

American diplomats lobby other nations to uphold internationally accepted principles for IDPs that assure things like “property and possessions left behind by IDPs should be protected against destruction and arbitrary and illegal appropriation, occupation or use.” USAID also runs programs assuring displaced people have the right to information about what is going on in their former communities. By some twisted logic, the U.S. government – and the New Orleans mayor and City Council – must think it’s acceptable that Americans be excluded from such rights.

Despite these obstacles, New Orleans will begin seizing not just houses from devastated communities – but also the hopes of thousands of residents returning home – on the anniversary of our nation’s greatest tragedy. City Ordinance #26031 is proof that the interests and human rights of the now disenfranchised displaced victims of the storm are no longer respected in their former communities or by the federal government.

Though the human rights situation in New Orleans remains woeful, there is still a chance to salvage the hopes of these struggling families and to save their homes. You can help honor the upcoming one year anniversary of Hurricane Katrina even if the New Orleans City Council and the federal government refuse to by pledging to volunteer or donate to help community organizations like ACORN in New Orleans.

If you are displaced from New Orleans or know someone who is, call ACORN now at 1 (800) 239-7379, ext. 187, to begin the process of saving your home by putting it on the clean-out list. Other organizations providing free house gutting – and also seeking volunteers and donations – are listed on the City of New Orleans website, http://www.cityofno.com. They include Common Ground, (504) 312-1731; United Methodist Recovery, (504) 461-0425; Catholic Charities, (504) 895-5439; and United Church of Christ, (504) 258-7306.

San Francisco CA Bay View: http://www.sfbayview.com

Stephen Bradberry: laacornho@acorn.org
Jeffrey Buchanan: Buchanan@rfkmemorial.org

Council vows to fight eminent domain attempt: Sunbury PA Daily Item, 8/25/06

By Rob Scott

If the Danville Area School District is serious about invoking eminent domain to build a consolidated elementary school on borough-owned land, the borough is serious about fighting to keep the property.

Council President Brian Witmer said Wednesday, "The only thing I can say is the borough will do what's right for the borough of Danville. If that means fighting it in court, that's what we'll do."

The issue of eminent domain came up at a school board meeting Tuesday when Danville businessman Gib Spradlin told board members Pennsylvania law allows a school district to invoke eminent domain if it is in the public's best interest.

Until a couple weeks ago, the school district and borough were in the process of negotiating a land swap: the district would give up F.Q. Hartman field in exchange for about 30 acres of borough farmland across from the high school.

The parking lot by Danville Elementary School was originally part of the deal, but school board members took it off the table.

However, council members felt the farmland was worth far more than F.Q. Hartman, which Mr. Witmer referred to as "a piece of junk ground," and pulled out of negotiations.

Council members were also concerned because the borough uses the farmland to dump sludge from the sewer plant. Even though the borough owns about 450 acres of farmland, it is allowed to dump sludge on approximately 173 of those acres.

Mr. Witmer referred to the sewer plant as "one of the most important parts of (the borough's) infrastructure" and said if the borough gave the land to the school district, or if it was taken from them, it could have far-reaching consequences.

"That land is too valuable to lose ... There's a big, big, big, big picture here," he said. "Several of us forgot that when we went into negotiations."

If the school district takes the farmland, the borough may have to dump its sludge in a landfill, which would cost about $114,000 a year, he said.

While board members didn't commit themselves to Mr. Spradlin's suggestion Tuesday, they were open to the suggestion and planned on having their solicitor look into the matter.

Mr. Witmer said he hadn't had a chance to talk to borough solicitors Michael Dennehy or Robert Marks yet, but believes the district probably has the ability to take the land.

So far, there has been no official word from the school district.

Mr. Witmer said: "As far as the borough of Danville is concerned, there is no issue ... until we get the paperwork that says they're invoking eminent domain."

But the very fact they're thinking about it obviously didn't sit well with him.

"It feels like they're trying to steal it off us," he said. "And you can print that."

Sunbury PA Daily Item: http://www.dailyitem.com

Eminent domain poses threat to Lawnside: Philadelphia PA Inquirer, 8/24/06

Letter to the Editor

By Alice Harris-Wood

I am a business owner in Lawnside. My grandparents were one of the original families to come to Lawnside [NJ], and I am proud to be part of a town formed by free slaves that is the oldest black incorporated municipality in the North.

Although parts of the town remain open space, the community is well-developed, with desirable residential neighborhoods and thriving commercial areas. Large corporations - including Lowes, Home Depot, UPS and Sears - operate in town.

The adjacent PATCO High-Speed Line station at Woodcrest, in Cherry Hill, and direct access to Interstate 295 place Lawnside 50 miles from Atlantic City, 1-1/2 hours from New York, and 6 miles from Philadelphia.

Despite this, Lawnside retains the character and charm of a small town where everyone knows everyone else.

My concern is that the town is about to lose its sense of community. The very people who are supposed to be protecting us are selling us out.

Let me explain.

I recently returned from Washington, where I participated in a national conference on eminent-domain abuse.

At this conference I learned about how eminent domain can be abused to "redevelop" neighborhoods against the will of the property owners there.

One of the speakers was Hilary Shelton, director of the Washington bureau of the NAACP, and I was very proud to find out that the NAACP is against eminent-domain abuse. This gave me even more reason to stand up against it.

Our local government, in office for more than 20 years, is powerful but without a conscience.

These greedy politicians are willing to sweep aside the wishes of residents and go through with redevelopment plans that will only benefit them and outside development companies.

They won't allow residents to have any say. Our municipal leadership is in bed with rich developers against homeowners who have lived and paid taxes in Lawnside for years.

Our community is small - only about 3,000. Help is urgently needed from residents.

Things residents can do: Come out to council meetings. Write letters to the editor in newspapers. On Nov. 7, cast write-in votes for candidates of United Residents of Lawnside, which is campaigning for better government in the borough.

Philadelphia PA Inquirer: http://www.philly.com/mld/inquirer

Alice Harris-Wood is owner of the Fisher House, a senior-citizen residence in Lawnside; president of the New Republican Party of Lawnside, and founder of United Residents of Lawnside.

Settlement details released in eminent domain case: Stamford CT Advocate, 8/22/06

Associated Press

Property owners received an additional $2.3 million from the state to settle their claims and relocate after a long-fought eminent domain battle against the city of New London that touched off a national firestorm.

The state money is in addition to about $1.7 million that been held in escrow for the six property owners since their homes and businesses were condemned by the New London Development Corp. in 2000, officials said. The city also agreed to waive about $1.1 million in back rent it claimed it was owed from the time the properties were condemned.

The NLDC first proposed the redevelopment project in 1998 and condemned the properties in 2000. The U.S. Supreme Court ruled 5-4 on June 23, 2005, that New London had the right to take the properties to make way for a riverfront project slated to include condominiums, a hotel and office space.

"The reason for the settlement was to avoid additional litigation regarding occupancy now that the U.S Supreme Court has ruled," said Tom Londregan, city attorney for New London.

New London Mayor Elizabeth Sabilia said she was relieved to have the matter settled.

"The city of New London had been vilified for following the law," Sabilia said. "On the other hand, it seems to be a very steep premium for following the law."

The city could have pursued the development without seizing the properties, said Scott Bullock, a spokesman for the Institute for Justice, which represented the homeowners.

"This certainly provides better compensation for them and at least allows them a chance to buy properties comparable to what they have now," Bullock said.

The last two holdouts in New London's Fort Trumbull neighborhood agreed in June to give up their land to make way for private development.

Susette Kelo, the lead plaintiff in the case, agreed to have her pink cottage moved elsewhere in New London. Pasquale Cristofaro, the other holdout, has agreed to give up his home but is entitled to purchase a new one in the neighborhood at a fixed price if new homes are built.

Documents detailing the settlements were released Tuesday after a vote by the City Council.

Kelo received an additional $319,000 on top of the original $123,000 she was offered, records show. The city also waived a claim for back rent of $85,000.

Kelo has until June 15, 2007, to leave her house, while other property owners have departure dates in the coming months.

Cristofaro has said his family won some concessions in the final negotiations that mean a lot to them personally. The city must erect a plaque on the planned Fort Trumbull riverwalk honoring Cristofaro's mother, Margherita, who died in 2003, and must transplant rhododendron bushes and arborvitae from Cristofaro's property.

In its ruling, the Supreme Court said states were free to change their eminent domain laws. Legislatures in 20 states have since passed some form of legislation limiting eminent domain. Connecticut lawmakers, however, have not done so.

The largest payment went to William Von Winkle, who received a total of about $1.5 million for his properties and another $300,000 for an additional building the city decided to buy from him. Von Winkle said he still did not receive fair market value.

"I can't go buy anything with a gun like they did," Von Winkle said. "This money was to make them look good. I will look for something safe from eminent domain, if that's possible in this country now."

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

Dimasi eminent domain case appealed: Cincinnati OH Enquirer, 8/23/06

An 80-year-old Clifton woman who had her home taken by eminent domain has appealed her case to the Ohio Supreme Court.

Emma Dimasi filed the appeal last week after the Ohio First District Court of Appeals declined to reconsider its previous ruling allowing the city to take the Dixmyth Avenue home for a $4 million road project.

Since that decision, the Ohio Supreme Court ruled in a Norwood case that the use of eminent domain for economic development projects is unconstitutional.

Dimasi's son and attorney, Vincent A. Dimasi, has argued that the city really wants the property to give to Good Samaritan Hospital for its $120 million expansion, and that the Supreme Court precedent should apply.

City officials say it has ample evidence from city engineers that the widening of Dixmyth Avenue is necessary for traffic safety.

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


Owner seeking fair deal in eminent domain case: Asbury Park NJ Press, 8/22/06

The three-story Elm Avenue rooming house [in Rahway NJ] Andrianna Karagiannis and her family owned is scheduled to be torn down soon to make way for Park Square, a downtown residential and retail redevelopment project.

But Karagiannis says she hasn't been fully compensated for the building. She said $335,000 has been placed in escrow for the house. She maintains the building is worth more. An appraisal she authorized indicated the property is worth more than $500,000.

"We're fighting for more money," said Karagiannis, who earned about $65,000 a year in income from the building. "It was a top rooming house in Rahway."

A hearing is set for tomorrow to determine the value of the property, according to Peter H. Pelissier, Rahway Redevelopment Agency executive director.

According to Pelissier, the building is listed by the city tax assessor as a two-family dwelling, and he believes it may have been converted to a three-family home in the late 1980s, although it had been operating as a boarding house.

Karagiannis said the building was a legal boarding house. She said her late husband obtained the license in Trenton in 1971 and she renewed it annually.

"It's not a two-family. It was always a boarding house," she said.

Karagiannis said her family has owned the 43 Elm Ave. building, located between Main and Irving streets, since 1971 when her husband, James, who came with her to Rahway in 1960, bought it. Her husband died in 1972. At age 37, she was left to raise her two young children, Maria and Alexander, by herself. She used the income from the boarding house and the diner the family owned in Rahway to raise her children.

A native of Greece, Karagiannis said the building has eight rooms and one three-bedroom apartment. She said each room had a bed, bureau for clothes and a refrigerator. A kitchen shared by tenants was located on the first floor. Tenants also shared three bathrooms. The three-bedroom apartment had its own kitchen and bathroom, she said. Tenants paid about $130 a week in rent.

"I had 11 tenants living here in this house for years and years," she said last Wednesday while standing outside the house. She said one tenant, Fernando Mendoza, served as the building superintendent.

Karagiannis said the tenants were like a family.

But Pelissier said the house was in "deplorable condition" when people lived there.

But Karagiannis said she didn't have any problems until the tenants were told to leave and some broke her furniture. She has not been able to get back into the building to retrieve the remaining furniture.

"It was very clean, my property," she said.

Pelissier said some of the tenants were relocated to Section 8 housing.

The former boarding house, with boarded windows and doors, is the only structure standing in the large empty block bordered by Main and Irving streets, Elm and Elizabeth avenues where Cliff Hardware, Anthony's key shop, a thrift shop, gas station and some homes were located.

The property is being redeveloped into 159 housing units and 6,000 square feet of retail space.

Mayor James Kennedy said work is being done on the soil in preparation for the foundations to be poured on the front part of the property.

Karagiannis, 75, said she's lost her only income, other than the Social Security she receives.

Karagiannis, who previously lost the family-owned Super Diner, 1419 Irving St., to redevelopment in the city, said she feels like a victim in town.

"I'm very upset. I never did anything wrong. I paid my taxes, $1,200 in taxes every three months. I did pay my bills. I obeyed the rules," she said. "It's unfair to say, "we have to take your property.' This is the second of my property they take. They take property like this, why?" she said.

Asbury Park NJ Press: www.app.com

LI Golf Club Saved from Eminent Domain Takeover: WINS-1010, 8/22/06

A wealthy Long Island golf club has been saved from being taken over by the Village of North Hills. The state legislature approved a unique amendment to the eminent domain law, and Gov. George Pataki signed it earlier this month.

The law prevents North Hills Village from taking over the Deepdale Golf Club and making it a public golf course solely for village residents.

The new law says land in a groundwater protection area - which the golf club is in - can not be seized by eminent domain if the municipality plans to use the land for the same thing as the private owner.

Members of the Deepdale Club were threatening state and federal lawsuits to save their 175-acres from being seized by village officials.

The federal suit questioned the village's right to seize the property through eminent domain. The state case challenged the village's alleged abuse of zoning law to cut secret deals with private developers.

WINS-1010: http://1010wins.com

Councilman explains flip-flop on eminent domain: Cherry Hill NJ Courier-Post, 8/22/06

By Wilford S Shamlin

Westville Councilman Woodrow A. Dooley III plans to vote in favor of a $50 million redevelopment plan along Big Timber Creek even if just one of the nearly 30 property owners in the targeted area is forced to sell.

Dooley won a council seat last year after campaigning against eminent domain abuse, as did James A. Pennington Jr. and Susan Rodgers. Only Rodgers held fast to the campaign pledge.

"Many people perceive it as a flip-flop," said Dooley, who said he is pained by daily encounters in a small town with neighbors and others who supported him.

"Before campaigning, I wasn't informed about all the facets of redevelopment and about all the facets of running a town," Dooley said.

There may be political ramifications for elected officials who change their mind in office but their credibility and how contentious that issue really is are also factors, according to one political observer.

"It depends how much that person has the ear of the voters and how much of it actually becomes a campaign issue," Ingrid Reed of the Eagleton Institute at Rutgers University in New Brunswick said.

"And if it's a campaign issue and the incumbent always has to defend his record," she said, "that's a much more riskier position to be in."

An elected official could decide later that circumstances regarding use of eminent domain matters rather than stating that such powers unilaterally should not be used, Reed said.

"In that case, changing your mind is much more palatable to the voters," she said.

Dooley said the issue is less about eminent domain abuse and more about reducing the number of residents who would be affected by turning down the redevelopment project.

Otherwise, he said taxes will continue to escalate and force people on fixed or low income to move away.

"It's really a good plan for the borough. When I realized this, I really thought I was a fool. A lot of people thought I was going to be a hero ‚...‚ and stop the project," Dooley said.

Since unveiling the project in January 2005, Fieldstone Associates has repeatedly stated eminent domain was a last resort, which means it's still possible the borough could seize property legally through court action.

And for that reason alone, Rodgers refuses to support the project.

Pennington did not immediately return phone calls this week.

"Is it right, or is it wrong? That's the basic question," Rodgers said. "Forget everything else. Forget all the reasons why. Do unto others, as you would want them to do unto you.

"I'm for development. I'm not for taking property away when they don't want to sell," she said.

Cherry Hill NJ Courier-Post: http://www.courierpostonline.com

The Spector of Eminent Domain is an Eminent Threat: Gilroy CA Dispatch, 8/22/06


By Lisa Pampuch

Now that South County's only Albertson's grocery store, located in Morgan Hill Plaza, has closed, some people are urging City Council to condemn the strip mall on 7.5 acres at the southwest corner of Dunne Avenue and Monterey Road.

It's an eyesore, they say.

It's a drag on the local economy, they insist.

It's hurting downtown Morgan Hill, they claim.

It has seven owners, making it difficult to come up with a plan to rejuvenate the site that everyone can agree upon, they cry.

What it really comes down to is that the owners of Morgan Hill Plaza aren't using their private property the way some people would like them to use it.

They're not doing anything illegal or violating any zoning ordinance. The strip mall just isn't as pretty or as upscale as some people think it ought to be.

Because Morgan Hill has a redevelopment agency that has renounced its eminent domain powers, city officials are now considering granting themselves those powers when they extend the RDA.

"We are thinking about when we extend the redevelopment agency, we'll grant eminent domain for obviously blighted parcels," City Councilman and mayoral candidate Steve Tate told reporter Tony Burchyns recently.

While I could write a column or two on whether or not the city should extend its RDA (and have done so in the past), I'll limit myself in this column to eminent domain.

Eminent domain should be used only in cases where a property is the only suitable site for a government project or facility.

Unless the city determines that Morgan Hill Plaza is the only suitable location for some government project - a fire station, a police station, a library, a road - it should not condemn private property.

In the case of Morgan Hill Plaza, there's no talk of a government facility for the site - far from it.

"We might have to purchase the land and turn it over to another developer," Jim Dumas, project manager for the city's Department of Business Assistance and Housing Services (that's really the city's RDA department; I've always wondered why they used such an obfuscating name for it), told Burchyns.

But at least one Morgan Hill Plaza owner doesn't want to sell.

"We've been there 30 years. We'd prefer to be here another 30 years," Tom Wilson of Duckett-Wilson, which owns most of the property, said. "We'll continue to maintain the plaza, keep it clean and neat … "

Unfortunately, we have to rely on the city to restrain itself, after a lamentable decision last year by the United States Supreme Court in the case of Kelo v. New London. Homeowners sued when the city of New London, Conn., attempted to force them to sell their properties so it could revitalize a neighborhood with a pharmaceutical research facility, other commercial facilities, and residential development.

In that case, the justices ruled 5-4 that governmental agencies can force the sale of private property (like your home or shopping center) on behalf of other private entities (like a developer that wants to build a factory or fancier homes).

"Promoting economic development is a traditional and long-accepted function of government," Justice John Paul Stevens wrote for the majority.

And Stevens was correct in that assertion. In Canton, Miss., homes were condemned to make way for an automobile factory, and in New York City, eminent domain was used to facilitate the development of the World Trade Center.

But just because it has been done in the past doesn't make it right.

After Kelo, all it takes to legally justify eminent domain is an argument that doing so promotes the public good.

The problem is that "public good" is a subjective measure that cannot be equitably applied and about which reasonable people can reasonably disagree.

One person might believe that increased tax revenue from a proposed factory will benefit a community, but another might argue that the plant's pollution, noise and traffic outweigh those benefits.

Who's right?

One person might argue that a casino will bring jobs, ancillary businesses and tourists, but another might argue that gambling will harm the community's moral fiber and believe that outweighs economic benefits.

Who's right?

While I'd love to see Morgan Hill Plaza beautified and filled with exciting retailers, and while I suspect that would benefit downtown and the city as a whole, I have no doubt that using eminent domain to achieve it will damage our already precarious private property rights.

That's too high a price to pay.

No eminent domain for private development.

Gilroy CA Dispatch: http://www.gilroydispatch.com

California's stealth initiative on land use: San Francisco CA Chronicle, 8/20/06

Prop. 90 purports to protect property owners, but it could also do much harm

By Ray Ring

Backers of Proposition 90 on California's November ballot describe it as a campaign to rein in a government power called eminent domain that has fallen into disrepute. But the measure would have more widespread - and more pernicious - impact.

Governments at all levels use eminent domain occasionally, when they condemn private property and force the owners to accept a buyout to make room for utility lines, urban renewal and other projects that benefit the public. The practice dates back centuries, but it's become the target of public outrage recently, thanks to a 2005 U.S. Supreme Court ruling that allowed a Connecticut city to condemn the homes of Susette Kelo and six others to make room for a global drug company's 100-acre manufacturing complex. The court didn't endorse the condemnation; it only said Connecticut can enforce its eminent domain laws without federal interference.

Since then, more than 30 state legislatures have either passed or considered laws limiting eminent domain power. An effort stalled in the California Legislature this year when cities and planning advocates argued that eminent domain has not been widely misused and that it's a necessary tool.

Meanwhile, ballot initiatives to reform eminent domain have sprung up in six Western states, including California. And there's a pattern to them, because it's really a single campaign.

The initiatives have titles like the Protect Our Homes Act (in California) and People's Initiative to Stop the Taking of Our Land (in Nevada), as if the government is about to come in with bulldozers to sweep everyone off their property. Yet governments use eminent domain on behalf of developers only a few thousand times per year nationwide.

Reforming eminent domain is partly a smokescreen. The multistate campaign has a bigger target: It aims to choke off governments' ability to pass land-use regulations affecting millions of property owners.

The libertarian Reason Foundation of Los Angeles revealed the strategy in an April policy paper that recommended pushing "Kelo-plus" initiatives to capitalize "on the tremendous public and political momentum generated in the aftermath of the Kelo ruling. ..."

What is the "plus" in these initiatives? Libertarians and property-rights activists believe that many common government regulations on real estate, such as zoning and subdivision limits, take away property value. Therefore, they say, government should either compensate the owners or back off.

This may sound like a good idea, on the face of it. But here's how regulatory takings work: If you could fit 20 houses on your land, plus a junkyard and a gravel mine, and government regulations limit you to six houses, then the government would have to pay you whatever profit you would have made on the unbuilt houses, junkyard and mine. Of course, the government can't afford to pay you, so it would have to drop its regulations, allowing the maximum development, no matter what your neighbors think.

The text of Prop. 90 runs four pages, and almost all the wording plays up the eminent domain angle. The regulatory-takings "plus" is tucked into a few sentences that talk about paying property owners for regulations that damage their property. It says the damage includes downzoning and even "limitations on the use of private air space." The Web site for Protect Our Homes likewise hardly mentions land-use regulations while playing up the specter of bureaucrats who want to take away your home by invoking eminent domain.

This anti-regulation campaign is not as populist as it would like to appear. A few big financial backers have provided almost all the campaign money so far. The pro-Prop. 90 campaign raised and spent about $2.4 million through the end of June. Of that total, $1.5 million came from Howie Rich of New York, who grew wealthy in real estate and owns apartments across the country. He funnels his political money through his Fund for Democracy, which is based in his home. Following the money trail, an additional $600,000 of Prop. 90's war chest came from a Montana group whose supporters include a Chicago-area Libertarian group called Americans for Limited Government, where Rich is chairman of the board of directors; and $200,000 came from Fieldstead & Co., an Irvine conduit for Howard Fieldstead Ahmanson, Jr., a savings-and-loan heir who also backs efforts to establish a "Christian nation" and oppose gay marriage and stem-cell research.

In all, Rich's Fund for Democracy and Americans for Limited Government have given more than $2.75 million to the eminent domain initiatives in California, Nevada, Arizona, Washington, Idaho and Montana. Petition circulators were paid as much as $4 per signature, which gave them an incentive to be persuasive.

For specific evidence of what regulatory takings could mean in California, check out Oregon.

Libertarians and property-rights activists persuaded Oregon voters to approve Measure 37 in 2004. Oregon had the nation's toughest land-use regulations, and some loosening-up was needed, but Measure 37 blew huge holes in Oregon's system. It allowed many longtime landowners to escape regulations for protecting landscapes, the environment and neighborhoods.

Despite delays in Measure 37's implementation caused by court fights, Oregon property owners have already filed about 2,700 Measure 37 claims, aiming to develop about 143,000 acres. The claimants demand that governments either waive land-use regulations or pay nearly $4 billion in compensation. In almost all of the 700 or so claims settled to date, governments have waived the regulations.

Oregon property-rights advocates say Measure 37 will work out fine, rolling back a heavy-handed, inflexible land-use system. "We've had a centralized planning system for so long, it created a lot of animosity in people," said Dave Hunnicutt, president of the state's leading property-rights group, Oregonians in Action.

But many Oregonians - including thousands of neighbors who have written official comment letters on the claims - say the new law is a disaster. Many say the campaign was deceptive.

"The way Measure 37 was presented to the public, prior to the election, they paraded the little old lady who had 20 acres in the ads, they had (her) saying, 'Well, my retirement was going to (rely on the) 20 acres, and I was going to sell 5 acres, and the land-use laws won't let me,' " says Ted Schroeder, a doctor in the rural Grande Ronde Valley in northeast Oregon. "In my naiveté, I thought I was voting to help relieve those sorts of situations." Now, a neighboring family, operating as Terra-Magic Inc., has filed a Measure 37 claim seeking to brush aside agricultural zoning and subdivide 1,400 acres of prime farmland into 335 home sites.

Bill Rose, who breeds specialty grasses on 2,100 acres in the Willamette Valley, about 20 miles south of Portland, says he voted for Measure 37 because he wanted to relax regulations enough to allow modest subdivisions on hilly, unfarmable rural land. Then one of his neighbors filed a Measure 37 claim to convert a 40-acre berry farm into lots one-seventh of an acre for a total of 280 houses. The developer wanted Clackamas County to waive the agricultural zoning or pay him at least $3.6 million. The county had no choice but to approve the claim. Now Rose is making a last-ditch attempt to persuade the county to limit the number of new septic tanks. He says Measure 37 claims "will destroy this valley - the best place to live and farm that I know of."

"It's happening all over Oregon," says Renee Ross, who lives on 32 wooded and pastured acres near Molalla, southeast of Portland. Two of her neighbors have filed Measure 37 claims: One wants to build nine houses on 60 acres, and the other wants to dig a gravel mine on 80 acres. Handcuffed by Measure 37, the Clackamas County government approved both claims. "We went from having a very strict land-use policy to having no policy," Ross says. "We don't have any rights at all. It leaves us no say in the types of surroundings we live in, the undesirable businesses that can be put in right next to our property."

The initiatives on state ballots this year vary in their specifics. California's Prop. 90 would affect all new land-use regulations, other than the bare-bones protections for public health and safety. But like Oregon's Measure 37, Prop. 90 doesn't explain where governments would get money to pay affected property owners. The measure is really intended to prevent any new regulations.

Many California communities have land-use regulations that are not as tough as Oregon's, and many regulations need regular tune-ups. Prop. 90 would essentially freeze the communities' planning efforts, with no chance of altering the rules in the future, even when they are hit with population booms and other significant changes.

Under Prop. 90, it's tough luck if citizens want a new regulation in the future to protect their properties or neighborhood from intrusive development, to put conditions on a Wal-Mart Superstore, to protect stream banks from new construction or to require developers to do anything for open space and affordable housing.

Don't be fooled by ads like those in Oregon in 2004 that featured victims of regulations - or, even more compelling, victims of eminent domain.

In Oregon, a huge coalition opposed Measure 37, including environmentalists, governments, planners, architects, nurses, labor, neighborhood associations, the Oregon PTA and the American Cancer Society. They won endorsements from every daily newspaper in the state. They spent twice as much money as the property-rights side. And they still lost, on what consultants called "the fairness issue" -- the Measure 37 campaign managed to portray government as the enemy of property owners.

To defeat Prop. 90, California's advocates for planning and neighborhood rights will have to win on the fairness issue. They need to find compelling examples of people who are helped by land-use regulations. They need to communicate to voters that one person's rights can be another person's ruin, and that strong regulations often raise property values rather than lower them.

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

DeFazio opposes eminent domain in pipeline construction: Roseburg OR News-Review, 8/18/06

By Adam pearson

U.S. Rep. Peter DeFazio has expressed opposition to the proposed route of a gas pipeline across Douglas County.

In a letter he sent Thursday, DeFazio, D-Ore., urged the Federal Energy Regulatory Commission to reroute the proposed 225-mile Pacific Connector Gas Pipeline away from private property and onto existing transmission right-of-ways.

Its builder, Williams - a pipeline engineering and construction firm whose Pacific Connector office is in Salt Lake City - insists the proposed route avoids heavily populated areas. The route crosses private and federally owned land.

DeFazio wrote he is opposed to the company using eminent domain to seize private property to facilitate construction of the pipeline.

"I don't think it's right that a company has such extraordinary power," DeFazio said in a phone interview.

In his letter to FERC Chairman Joseph Kelliher, DeFazio said he opposes the Energy Policy Act that Congress passed and President Bush signed into law in 2005, which by-passes the jurisdiction of state and local governments for utility right-of-ways.

"Given that residents and state and local officials have a better understanding of the economic, environmental, safety, and security concerns that exist in affected communities, I believe it was a mistake to concentrate this sitting power with the federal government," he wrote.

The proposed 36-inch pipeline would stretch across southwest Oregon from a liquefied natural gas terminal in Coos Bay and connect to a main natural gas transmission line in Malin, crossing approximately 55 miles of Douglas County in between. It would be capable of transmitting 1 billion cubic feet of natural gas per day.

The Pacific Connector is in FERC's pre-filing status.

DeFazio said that by routing the pipeline to existing right-of-ways, less impact would made to natural resources and private property. He said that should be the greater factor for Williams consider.

"Their job should be more than just minimizing costs," DeFazio said

Roseburg OR News-Review: http://www.oregonnews.com


Scope of the Project Rule and its effects: New Jersey Eminent Domain Blog, 8/25/06

By Bill Ward

The "Scope of the Project Rule" is an arcane fact of law which prevents property owners whose property is acquired from claiming benefit caused by the project of the condemning authority. There are enormous price differentials between appraisals on property as zoned compared to appraisals on the same property taking into consideration the zoning for the new project. Many people who lose a house, for instance, to a condominium project can’t understand why they cannot value their land for condos. The answer is the "Scope of the Project Rule." However, this may be about to change in New Jersey as it applies to redevelopment projects and property to be acquired under the Local Redevelopment Housing Law.

The following is a brief synopsis of the “Scope of the Project Rule” which is presently the law in the State of New Jersey:
The scope of the project doctrine only excludes value attributable to a governmental project from the date the government is "committed to the project". Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374, 379 (1971).United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed 336, (1943); United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12(1970).

The scope of the project doctrine was articulated in the seminal case of United States v. Miller, 317 U.S. 369, 87 L.Ed. (adv. 251), 63 S.Ct. 276 (1943), as follows:
[S]pecial value [of the condemned property] to the condemner as distinguished from others who may or may not possess the power to condemn, must be excluded, as an element of market value. 317 U.S. at 375

As early as Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934), the U. S. Supreme Court held that because just compensation includes all elements of value that inhere in the property, the land’s most profitable use must be considered, even if that use is the same as the use for which it is being taken.
Nor does the fact that it may be or is being acquired by eminent domain negative consideration of availability for use in the public service. It is common knowledge that public service corporations and others having that power frequently are actual or potential competitors not only for tracts held in single ownership but also for rights of way, locations, sites and other areas requiring the union of numerous parcels held by different owners. And to the extent that probable demand by prospective purchasers or condemnors affects market value, it is to be taken into account.

The scope of the project rule has always been enunciated carefully to limit its application to government projects. For example, in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 USC 34651 et seq.), Title III on Uniform Real Property Acquisition Policy (Sec. 301) it is provided as follows:
Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement . . . will be disregarded in determining the compensation for the property . . .

Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374 (1971) is equally clear that it addressed enhancement or depreciation caused by an "announcement by a public agency that a public improvement was planned for a particular location or area." 58 N.J. at 379 (emphasis added).

In what is by far the most comprehensive judicial treatment of the scope of the project doctrine, the 5th Circuit Court of Appeals defined the scope of the project rule as follows:
The scope of the project rule can be stated easily enough: If the condemned land was probably within the scope of the governmental project for which it is being condemned at the time the government became committed to that project, then the owner is not entitled to any increment in value occasioned by the government’s undertaking the project . . .

The underlying notion of the "no value attributable to Government demand" principle, then is that the Government, when pursuing public benefits through its condemnation power, should not have to spend more for property than would a reasonable and willing private purchaser solely because (emphasis in original) it is exercising its condemnation power on behalf of the public; instead, Government is to be equated to a private purchaser buying the property for its "highest and best" nongovernmental use in an open market (emphasis added). . .

In the cases applying the latter principle, the value excluded is a direct product of the Government’s actions as a condemnor, and is, by definition, a value that could not be obtained from private purchasers; it is an artificial value not to be found in the private market. (emphasis added) US v. 320.0 Acres of Land, More or Less, Etc., 665 F.2d 762 at 781(1979)

As can be seen, the cases are careful to distinguish those elements of value which flow solely from government demand, i.e. an "artificial value" which could never be realized by the owner in the private real estate market, from those elements of value which would exist separate and apart from the government project which are always part of the constitutionally mandated just compensation. Indeed, recognition of and payment for the latter is mandated by the constitutional guarantee of just compensation, Miller, supra, 317 U.S. at 376.

The New Jersey State Assembly has recommended changes to the Local Redevelopment Housing Law, N.J.S.A. 40A:12A-1 et seq. This bill known as the Burzichelli bill (A-3257) passed the Assembly and its companion bill S-2088 is presently before the Senate Community and Urban Affairs Committee chaired by Senator Rice of Newark. Senator Rice has taken no action on the bill but said he will consider it in September. The important provision of the bill as it pertains to compensation in eminent domain cases is that it does away with the "Scope of the Project Rule" as it presently benefits developers on redevelopment acquisitions. See blog of June 23, 2006, Kelo Anniversary, and portions concerning A-3257.

If the Senate passes the present version of the bill and Governor Corzine signs it into law, developers will be facing significantly higher costs in acquiring property for projects. The property owners will now be able to claim the zoning and use contemplated by the project. For example, in Long Branch, New Jersey, where single family residential properties have been acquired, this was the highest and best use permitted under the underlying zoning. Homeowners, where property has been taken, were faced with providing evidence of value based on single family residential. If the law changes, the homeowner could provide proof of what his land is worth for high-rise condominiums. The value would be significantly higher. The additional cost of property acquisition could make some projects uneconomic for the developer.

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

Eminent Domain Decision - Appellate panel affirms Judge Costello in Twp. of Bloomfield v. 110 Washington Street: NJ Eminent Domain Blog, 8/29

By Bill Ward

In a Per Curiam decision released today, the Appellate Division of the Superior Court affirmed unanimously the August 3, 2005 decision of Essex County Assignment Judge Patricia Costello in the matter of Township of Bloomfield vs. 110 Washington Street. Judge Costello dismissed the first eminent domain complaint filed by the Township of Bloomfield in furtherance of its flawed redevelopment project.

The three-judge panel rejected the main argument of the Township of Bloomfield outright. The township argued that a previous decision by Judge Coleman, who dismissed 110 Washington Street’s prerogative writ suit on grounds of lack of timeliness, was dispositive of the merits of the case. The Appellate panel disagreed and refused to apply the doctrines of res judicata and collateral estoppel to bar the challenge in this proceeding. The judges said that the defendants were entitled to a full and fair opportunity to litigate all the issues, since Judge Coleman only focused on the lack of timeliness (i.e., it wasn’t filed within the 45-days required to contest municipal action) and not the merits of the case.

The Court deferred to Judge Costello as to the facts and background of the case developed in the record and concluded:

Given the trial court's view of the facts, however, our independent analysis of the legal arguments presented leads us to substantial agreement with many of the reasons for decision Judge Costello articulated in her letter decision of August 3, 2005 (http://www.njeminentdomain.com/Order%20of%20Dismissal%20-%20Bloomfield.pdf).

The practical effect of this win has been that the 110 Washington Street partners were able to strike a deal with Bloomfield taking them out of the redevelopment plan and thereby letting them pursue their own development objectives for the property.

The larger question is, what does this decision do to the other property owners who are contesting the blight designation?

Last month Bloomfield fast-tracked a reconsideration of the blight issue before its planning board. In less than two hours, the planning board heard a regurgitation of the same report by the township’s planning experts, Heyer and Gruel, with minor modifications which purportedly address the criticisms of Judge Costello. The planning board confirmed the blight designation for the remaining properties at a special meeting on July 20. This decision was put before the mayor and council in executive session in three business days on July 24, and was approved by the council at the next meeting on August 7, 2006.

By the end of this week, the five property owners in the other suit, Lardieri et al v. Township of Bloomfield will file a second prerogative writ suit contesting the blight designation for their properties. This time, they will be within the 45-days to contest a municipal action and the trial court will have to afford the property owners a full hearing on the merits.

The Heyer and Gruel planning report is deficient because there was no reinspection of any of the properties in question, neither interior nor exterior. There was no evaluation of changed conditions of the properties in the intervening five years since the report was originally completed. The report is very similar to the planning report rejected by the Appellate Division in the case of ERETC, L.L.C. v. City of Perth Amboy A-2035-04T2, decided Nov. 15, 2005 (http://www.njeminentdomain.com/ERECTCa2035-04.pdf).

new Jersey Eminent Domain Blog: http://www.njeminentdomain.com