Middleford has eminent domain option: Medford OR Mail Tribune, 9/6/06

But exercising that part of the contract is not likely, says Medford's attorney

By Meg Landers

City officials may use eminent domain if necessary to acquire property for Middleford Commons, according to a contract set to be signed this week.

The development agreement between the city and Lithia Motors Inc. is expected to be signed by the Medford Urban Renewal Agency today and the City Council on Thursday, launching an ambitious building project between Central and Riverside avenues and Third and Sixth streets in downtown Medford. Lithia's headquarters would provide the anchor for the mixed-use urban redevelopment.

The next step will be to acquire property. MURA has agreed to buy several business lots as part of the contract.

"The agency has the power of eminent domain," said MURA attorney Dan Thorndike. "It would have to make a showing that the whole thing's for public (benefit)."

Exercising eminent domain is "not likely," however, said Thorndike, in part because it's an expensive way to acquire property due to possible legal battles.

"It's not to anybody's benefit, really," he said.

The properties to be acquired by MURA include:
  • The Greyhound terminal at Fifth and Bartlett streets.
  • The Greyhound garage at Fourth and Apple streets.
  • Velma Jennings estate properties, which are surrounded by Riverside Avenue and Apple, Third and Fifth streets.
  • Property owned by Linda Dupray and occupied by Superior Stamp and Sign, on Bartlett Street near Sixth Street.

According to the Jackson County assessor's map, the two Greyhound tax lots have a real market value of $1,037,830; the six Jennings tax lots have a real market value of $1,110,900; and the Dupray tax lot has a value of $158,550, totaling $2,307,280.

Dave Arrasmith, county appraiser, said the real market value is close to the selling price. He said the county did individual appraisals of that area in 1994 and has been making annual adjustments to the value.

The city is awaiting final details on appraisals, which are being done by Christine Pellett, a local commercial appraiser, said Bill Hoke, the city's economic developer.

Don Denman, Medford attorney in charge of the Jennings estate, said though negotiations had not yet begun with MURA, the fact an eminent domain clause was included in the contract did not cast a cloud over the process.

"That's always available," he said. "That's how the laws work."

Denman said it is his understanding that Middleford would qualify as a public project in which eminent domain could apply.

Dupray could not immediately be reached for comment Tuesday afternoon.

A new home has not yet been found for the Greyhound bus station. MURA has said it is hoping to build a new bus station in conjunction with the Rogue Valley Transportation District transfer station on Front Street.

"I would like to see them locate somewhere close to where they are," said Hoke. He said eliminating the Medford station is not being considered.

Lithia car dealerships occupy the majority of the property within the development area. Lithia has the first option to buy most of that property, which is owned by a car dealership property management company. The dealerships will be relocating to 100-plus acres near the airport.

Under the agreement, Lithia will design and construct its 10-story Lithia Tower headquarters, three blocks of urban park space and a parking structure with at least 400 spaces. There's a $14.1 million cap on MURA's financial contribution, which will go to acquiring the Greyhound, Jennings and Dupray properties, buying the developed park blocks from Lithia, building streets, sewers and utilities, obtaining at least 200 parking spaces and any environmental cleanup. As much as $300,000 will be available to remodel the existing Sixth Street parking structure to create a promenade for pedestrians.

Medford, MURA and Lithia see the redevelopment as a catalyst for subsequent private and public investment in and around the project area.

Hoke said a common misconception is that everything has already been decided about the Middleford project.

"We sign the agreement and that begins the process," he said. The developer, Mark Rivers of Boise, Idaho, will go through the planning and building review process as well as any necessary historic and site plan reviews, he said.

Councilman Jason Anderson has said he will recuse himself when the time comes to make decisions about the Jennings property because Denman is a member of his law firm.

Medford OR Mail Tribune:

XU might use eminent domain: Cincinnati OH Enquirer, 9/6/06

Houses stand in way of business college

By Gregory Korte

Xavier University is exploring the use of eminent domain - "as a last, last resort," school officials say - to take privately owned houses in Evanston to build a new business college.

If it follows through, Xavier's move would be a rare - but not unprecedented - attempt by a private university to exert the same land-acquisition powers granted the state, cities and even public universities.

The idea comes at a time when state legislators are rewriting the eminent-domain law in the wake of the Ohio Supreme Court decision that struck down part of the law as unconstitutional.

Xavier has been quietly buying properties near campus for years but has stepped up acquisitions after announcing last year its intention to build a business college on Ledgewood Drive in Evanston.

The 175-year-old Catholic school has bought seven properties for $2.3 million on the street so far this year.

It has paid an average of 2½ times their appraised value by the Hamilton County Auditor's Office. Xavier wants to break ground on the college next year.

Michael Cissell, who owns a house on Ledgewood that he rents to Xavier students, said he's not ready to sell.

"The thing is, I don't have a problem with them buying it. It's progress, and I'm all for that. What I have a problem with is them coming to me and saying, 'We want your property, and if you don't want to sell, we'll take it from you,'" Cissell said. "What's the point of private property if they can take it - Norwood, a private school, anybody? People with money and power will take what they want, and there's nothing we can do about it."

Cissell's uncle is Hamilton County Probate Judge James C. Cissell, a member of the Ohio Eminent Domain Study Task Force that recommended changes to the state's eminent-domain law last month.

Judge Cissell specifically tried to make some of those recommendations apply equally to governments and private entities - cemeteries, utilities and private colleges - which also have powers of eminent domain. That language was cut from the final report.

The unusual situation raises an interesting new wrinkle to the current eminent-domain debate: If the government shouldn't be allowed to take private property to give to another private owner, does it make a difference whether the private interest is a shopping mall, or a private university?

"If it was UC, the answer would be a no-brainer," said state Rep. Bill Seitz, R-Green Township, the co-chairman of the eminent domain task force. "Since it's XU, I don't know what the answer is. It's a very interesting question."

Seitz said he'd be more comfortable with the situation if the Ledgewood Drive properties were blighted - under the new, stricter definition of blight that lawmakers are considering - and asked the city of Cincinnati to clear the property on that basis.

In its July 26 opinion, the Ohio Supreme Court said it was unconstitutional for the government to take property from one private owner to give to another - unless the taking provides some public benefit other than an increase in the tax base. That decision wouldn't apply to Xavier, because the state has held that classrooms and dormitories are a public purpose, even for a private university.

That's been the case since at least 1963, when the state Legislature created the Ohio Board of Regents to coordinate the state's higher education system. The law allowed private colleges to ask the Regents to "borrow" its eminent-domain powers.

Xavier University has "explored how the process works" but has not made any formal request to the Board of Regents, administrative vice president John Kucia said.

"The decision to use eminent domain is such a serious decision that it's an option of last resort," he said. "We're nowhere near that with any of the property owners we've been in discussion with."

A spokesman for the Ohio Board of Regents confirmed that Xavier has discussed the matter with attorneys for the Board of Regents.

State officials can recall only two similar cases, most recently at the private Tiffin University earlier this year. Both settled out-of-court before going to a jury trial.

In Tiffin, a lawyer for the property owners argued that it's unconstitutional for a private college to use the state's eminent-domain powers. That argument never got to a judge before the owners agreed to sell for $430,000.

Tiffin University President Paul Marion said many supported the university's taking of the property, which he described as a "polluted, ugly scrap yard" in the middle of a residential neighborhood.

"Needless to say, there was a lot of support for turning it into an educational benefit for the community as opposed to an environmental hazard. That is not to say there are not a few people who don't like the concept of eminent domain."

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

Help Curb Local Government Abuse of Eminent Domain: Gilroy CA Dispatch, 9/5/06

By Lisa Pampuch

The timing couldn't be better.

With Morgan Hill officials and residents debating eminent domain - some have suggested that the city use eminent domain to "rehabilitate" Morgan Hill Plaza, home to a recently closed Albertson's grocery store; city council members/redevelopment agency directors are talking openly of granting themselves eminent domain powers when they renew the RDA - the appearance of Proposition 90 on the California ballot this November is especially propitious.

Eminent domain is the power of government to force the sale of private property for government use, tacitly acknowledged in the Fifth Amendment to the United States Constitution: "... nor shall private property be taken for public use, without just compensation."

It's important to note that the Fifth Amendment mentions nothing about forcing the sale of private property to spur economic development, remove blight, increase tax revenue or create jobs. Public use was traditionally understood to be projects like roads, sewers, schools, courthouses, city halls, libraries - public facilities built, owned and operated by government agencies.

After last year's ruling by the Supreme Court in the case of Kelo v. New London, government's eminent domain power was exponentially expanded to include anything that enhances the "public good."

The plaintiffs in Kelo sued to block the forced sale of their homes so that a pharmaceutical research facility and other homes could be built by a private developer. When the Supreme Court ruled in favor of the the city of New London, Conn., it decided that the government could force a private property owner to sell his or her property to another private party.

Now there are effectively no limits on the government's power to seize private property. Let's face it: A spin doctor with one hand tied behind his back could construe increased tax revenues, beautified buildings and additional jobs as enhancing the public good. After Kelo, no one's property is safe.

I'm not being reactionary. Well-respected dissenting Kelo Justice Sandra Day O'Connor, now retired, wrote, "The spectre of condemnation hangs over all property. Nothing is to prevent the state replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

That's where Prop. 90 comes in. It's an attempt to limit government power and protect private property rights after the Supreme Court's boneheaded Kelo decision.

When I've discussed this topic with folks who support eminent domain for private development, they tell me I'm cynical, that I should trust elected officials to use eminent domain in a restrained and judicious manner.

How can supporters of eminent domain for private development really think that elected officials can resist the strong influence of wealthy, well-connected developers over the the relatively tiny influence of an individual property owner? When it comes to campaign donations, lobbying pressure, tax revenue potential and hiring hordes of lawyers, individual property owners are at an extreme disadvantage compared to developers dangling tantalizing redevelopment deals before city councils, county supervisors, planning commissioners and similar governmental agencies.

Especially after Kelo made it so easy for elected officials to justify capitulating to deep-pocketed developers, that kind of trust is dangerously naive.

Joshua Kurlantzick's article in the January 2005 issue of Entrepreneur Magazine discusses the costs to small businesses when they are forced to move when the government seizes the property where their businesses are located: "Small businesses can be decimated by eminent domain," says Dana Berliner, a senior attorney at the Institute for Justice [a public-interest law firm fighting eminent domain abuse]. "Location is crucial to their success, and when they move, they can lose out. And while property owners are supposed to get 'just compensation,' few states require that the compensation take into account improvements put in by an entrepreneur."

I wonder, for example, what would happen to my favorite pizzeria, Palmina's, if it is evicted if the city uses eminent domain (or the threat of eminent domain) to force the owners of Morgan Hill Plaza to sell?

Public opinion polls show the vast majority of Americans - as many as 93 percent - disapprove of the forced sale of private property for private development.

According to the eminently helpful Smart Voter web site (www.smartvoter.org), hosted by the nonpartisan League of Women Voters, the central question in Prop. 90 is this: Should state and local governments be prohibited from condemning or damaging private property to promote other private projects?

If, like me, you think the answer to this question is yes, join me in voting yes on Prop. 90. No eminent domain for private development.

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


Commissioners consider eminent domain ordinance: KVBC-TV3 Las Vegas NV, 9/5/06

Proposed ordinance would prevent county from using eminent domain

Eminent domain is a hot button issue close to the heart of many homeowners. The law allows government, at any time, to force a homeowner to sell his or her home if it needs land for a public project such as construction of a new highway.

But that's not all. The government can also take your property, in some instances, if a business wants to build on your land. Now, one Clark County commissioner is proposing to keep this from happening.

This proposed ordinance would not prevent the county from using eminent domain for public works projects. However, it would ensure that Clark County could not take your land and sell it to a private developer.

Clark County commissioner Bruce Woodbury says the county has never used eminent domain for redevelopment purposes and he wants to make sure it never happens.

County commissioners will vote on the issue Tuesday. Woodbury says he knows at least one other commissioner will vote with him to approve this new ordinance. At least four of the seven commissioners need to vote in favor of the ordinance for it to become law.

If this proposed ordinance passes, it will only affect the county's ability to take a homeowner's land for redevelopment. It would not prevent individual cities within Clark County from using eminent domain for that purpose.
Note: Clark County commissioners unanimously approved the proposal. They noted that the current law gives the government too much power to force homeowners to sell their homes in order to boost redevelopment.

KVBC-TV3 Las Vegas NV: http://www.kvbc.com