Eminent domain case shows hard-nosed court: Decatur AL Daily, 9/14/06


Republicans chased every single Democrat off the Alabama Supreme Court with one message: We don't make law, we just interpret law.

That sounds awfully good and suggests that political or financial interests swayed the courts before the Republican coup. Now comes a case where the state's highest court showed absolutely no compassion in an eminent domain case appeal.

Did a hard-nosed court make law or did it interpret law in the case of a Covington County man whose land the state condemned for a highway?

The court said that Craig Boutwell lost his right to appeal the condemnation order because he was one day late in filing, even though he followed the advice of the probate judge in his county, who is an attorney.

The court said the deadline for appealing begins running when a probate judge signs a condemnation order, not when the judge officially files it.

Thus, which filing date starts the clock ticking on appeals put the court either in a law-making mode or left it to explain "what the Legislature meant."

Unfortunately, the Legislature never answered the question over the years. But the Court of Civil Appeals did. It said that the 30-day deadline must begin at the filing of the condemnation order in probate court. Otherwise the probate judge could make an order but delay filing it and deny the landowner enough time to appeal.

Neither the courts nor the Legislature has specifically defined at what time a probate judge makes a condemnation order. Because neither has, Mr. Boutwell asked the court to make an exception for him and give him a chance to appeal the price the state is willing to pay for his property.

The court's answer is that it was "mindful of the potential unfairness" but it must follow the meaning of state law.

But couldn't the court have shown a bit of compassion and easily have gone the other way in its "interpretation" of the law?

Decatur AL Daily: http://www.decaturdaily.com

State sues Killeen firm offering protection from eminent domain: Austin TX News-8, 9/14/06

Associated Press

The Texas Attorney General's Office is suing to stop a Killeen-based firm that claims to protect property owners from land seizures for the Trans-Texas Corridor.

The firm is called You Can't Take It. A company attorney said it planned to charge customers to develop commercial projects on their land that would increase property values.

The property owner could then fight eminent domain by claiming that the commercial use of the land would create more tax revenue than if the land was seized for public use.

The attorney, Hale Stewart of Houston, said a 2005 U.S. Supreme Court ruling made tax revenue from a new project a factor in whether a condemnation under eminent domain is viable.

Attorney general's spokesman Tom Kelley said the state contends that “nothing the group is doing is legal.'' He said the state seeks both temporary and permanent injunctions against the business.

Company owner Lou Ann Fuller said the business and its Web site have been shut down.

Austin TX News-8: http://www.news8austin.com

Legal champion for the rights of homeowners: Long Branch NJ Atlanticville, 9/14/06

Wegener: Shift to taking homes for private gain has come in last 5 years

By Christine varno

Attorney Peter H. Wegener has made a career of protecting the rights of property owners whose homes were in the way of public projects.

In the last five years, he said, taxpayers increasingly are facing off against their own towns in the fight to save their homes from being taken for private redevelopment projects funded by developers.

According to Wegener, the change has happened almost overnight.

"Most cases in the old days were with the DOT [state Department of Transportation] and if not them, then it was the county, and they were about road work, or parks or the bridges. But those are all classic and appropriate uses of eminent domain," he said in an interview last week.

When Wegener began building his decades-long experience as a property rights litigator, he said he was mainly representing property owners fighting the taking of their property by public entities, but in the late 1990s, unicipalities "discovered" economic redevelopment.

"It is just not justifiable, at least not in the United States where I grew up. There is a power ofgovernment being abused, and this is an issue that needs scrutiny." - Peter H. Wegener, attorney

"Municipalities just did not do much redevelopment in my earlier years," he said. "It just was not done."

Today he said almost every municipality has some area of town that might be considered an eyesore, such as a junkyard, and local government officials are resorting to eminent domain as the cure.

"Towns always have 'blighted' areas," Wegener said. "Now eminent domain is a favored way and courts have just rubber-stamped what municipalities are doing."

Wegener said cases of local governments taking private property for private redevelopment have mushroomed.

"I was asked to speak at a conference in Princeton last year," he said, "and I was expecting a room of about 23 or 30 people. But when I got there, there was a huge ballroom filled with over 400 attorneys and everything was focused on eminent domain."

When Wegener was asked to represent a group of Long Branch homeowners fighting to save their homes from eminent domain, he said the decision to take the case was obvious.

With 30-plus years of experience protecting property owners' rights in court, he said he instantly recognized that the Long Branch city government was abusing its power of eminent domain.

Wegener, 67, who resides in Brielle and practices law at Bathgate Wegener and Wolf in Lakewood, said that his career representing property owners whose rights are being infringed upon came about as a matter of circumstance.

"This just happened," said Wegener. "Early on I found that I had three or four cabinets filled with condemnation cases. All of a sudden I was an expert on eminent domain."

A little more than two years ago, the group of homeowners on the Long Branch oceanfront retained Wegener as counsel. The homeowners were facing the loss of their homes to a redevelopment plan in which the city would turn the properties over to a developer who would replace them with homes for wealthier people. The residents considered this use an abuse of the city's power of eminent domain.

Today, Wegener is representing some 22 property owners in the city's Beachfront North, phase II redevelopment zone, known as MTOTSA, an acronym for the three streets in the neighborhood - Marine and Ocean terraces and Seaview Avenue.

Wegener, along with the public interest law firm Institute for Justice (IJ) as co-counsel, is appealing a lower court decision that permits the city's use of eminent domain to condemn, seize and bulldoze the MTOTSA properties and construct luxury condominiums in their place.

Throughout his career, Wegener has represented hundreds of property owners fighting a similar battle, including residents in the Long Branch Beachfront North, phase I and Pier Village redevelopment zones.

Historically, property owners lose their properties in most eminent domain cases, Wegener said, and getting just compensation for their properties is one of a series of problems these property owners face.

"In a redevelopment case, you cannot get comparable sales in the area," he said. "For [MTOTSA], if you go into Elberon, they say no, no, it is different. So they go inland, by the railroad tracks, which in no way reflects the value of these oceanfront homes."

Wegener said he believes that realistically, MTOTSA can win this case, and he has the experience to back up his confidence in an outcome favorable to the homeowners.

Wegener received his law degree from Rutgers University in 1966 and after graduation served as a law clerk for the N.J. Supreme Court for a one-year term.

While serving as a law clerk, Wegener worked on several eminent domain cases, including Texas Eastern Transmission v. Wildlife Preservation, which he said involved Texas Eastern proposing to lay a transmission line through property set aside for a wildlife preserve.

"It was a landmark case," he said, "because it dealt with the question of under what circumstances eminent domain could be used.

"In the end result, Texas Eastern prevailed and the court did not determine that it was an arbitrary, capricious or unreasonable use," he said. "But guidelines were being set."

Wegener went on to serve at McCarter & English, Newark, where he practiced for three years.

In 1970, Wegener and Lawrence Bathgate opened Bathgate and Wegener.

Wegener's first eminent domain case was in 1972 and involved property owners fighting the DOT for taking private property to widen Route 70.

Soon after, more property owners came to Wegener when the DOT was using eminent domain for the widening of Routes 9 and 195.

"This field is not like medical school," Wegener said, "where you take a residency in your specific area. In law, it does not work like that. Any lawyer can do whatever they want if they feel competent.

"I was exposed to several eminent domain cases when I worked as a law clerk with the state Supreme Court. I found that they were interesting. I started doing condemnation cases in the 1970s, and I realized my skills as a litigator were particularly helpful in eminent domain."

The power of local government to exercise eminent domain has been primarily expressed as a win-win situation for municipalities and developers, Wegener explained.

"Just look at the money we are talking about in redevelopment," Wegener said. "Especially from 1996 to 2006, there has been a rise in the market and a demand for real estate. Developers just want to get in and municipalities see eminent domain as a way to solve the town's problems.

"Well, the town is getting rid of something it was not happy with and it will bring in some ratables. And the developers get a pile of money from selling units.

"But who loses?" Wegener asked, before answering, "The property owners. The ones who invested in property developed years ago, but the town sees these properties as less desirable than condominiums."

Could there be a better way to revitalize a community?

Wegener says, absolutely.

"What about code enforcement, for one," he said.

In 1996, the city of Long Branch designated the MTOTSA neighborhood as an area in need of redevelopment.

"By naming an area in need of redevelopment, people cannot go in and buy these homes and improve them," Wegener said. "Once you designate an area, it discourages people from improving their property. It will force them to go down hill.

"So these properties start to deteriorate, as the city knows and anticipates it will. Then the city goes in and gets property for cheaper."

Wegener said without the designation, Long Branch neighborhoods may have had the chance to redevelop themselves, like other surrounding beachfront communities.

"Look at Belmar and Bradley Beach," he said. "It redeveloped itself without eminent domain. People bought homes in these towns, enlarged them, improved them and homes that once looked rundown turned into beautiful beachfront homes."

Wegener tried some landmark cases early in his career that he said have helped property owners across the state over the years, including the State of New Jersey v. Hope Road in Monmouth County.

"These cases helped property owners introduce evidence to get the value of their property based on its highest potential use, not necessarily its current use," he said. "In the old days the courts said that evidence was speculative and it was excluded. But we were successful in changing those guidelines."

For MTOTSA, he said the city has an easy solution.

"The city's redevelopment plan [for MTOTSA] called for residential infill," Wegener said. "The city could go in and decide they can do the project with infill and preserve a number of the homes and then maybe build a new townhouse project comparable to the neighborhood."

IJ's presence in the Long Branch case will help MTOTSA prevail, Wegener said. IJ, based in Arlington, Va., argued the Kelo v. New London ( Conn.) case in the U.S. Supreme Court. The high court ruled 5-4 in favor of New London, permitting eminent domain to further a private redevelopment project.

According to Wegener, the Supreme Court gave governments the go-ahead to take private property for private uses in the ruling.

"I think with the Kelo loss, a lot of [attorneys] representing property owners were a little disappointed," Wegener said. "We had hoped the U.S. Supreme Court would have stepped up.

"To take someone's home and put up another home for someone else is not a public use. That is a private use and the Supreme Court did not say that," he said.

"This just shocked people across the country," he said, adding, "IJ has helped to call attention to the abuse going on."

Property owners losing their property for private redevelopment is an abuse that Wegener said he will continue to fight.

"It is just not justifiable, at least not in the United States where I grew up," he said. "There is a power of government being abused, and this is an issue that needs scrutiny."

Long Branch NJ Atlanticville: http://atlanticville.gmnews.com

Norwich agency - Eminent domain rule is unnecessary: Norwich CT Bulletin, 9/14/06

By Dorothy Schneider

The [Norwich CT] Redevelopment Agency is making known its opposition to eminent domain restrictions that will go before the City Council Monday for a vote.

Chairman Tom Marien asked for agency support Wednesday night for a letter pointing out "many flaws" in the proposed ordinance. The group voted 8-1, with member Renee Kohanski opposed, to send the letter in advance of the council's public hearing on the issue.

"To imply the average citizen in this community has any reason to have concern about eminent domain is just incorrect," Marien said, pointing out the RDA has only used the tool once in his tenure and, even then, not on residential property.

Alderman John Crooks introduced an ordinance that would strengthen the existing eminent domain statute by requiring a super-majority vote and a review by the Administrative, Planning and Economic Development committee to approve any action on residential property. Alderwoman Jackie Caron joined as a co-sponsor at the council's Sept. 5 meeting.

Another component of the ordinance extends protection to any occupied dwelling unit, not limited to owner-occupied properties, which Marien argued could help protect "slum lords."

RDA member Brian Curtin said it is disgraceful Crooks, who is running for state representative this fall against State Rep. Jack Malone, D-Norwich, would try to use such an emotional issue for political gain.

"You understand how political this stuff is," he said. "It's great when you've got a campaign going."

Crooks has acknowledged in the past his sponsorship of the measure is intended to make good on campaign promises he's made to protect concerned citizens from eminent domain powers. The U.S. Supreme Court ruled in Kelo v. City of New London last year the city could transfer land from one private owner to another to further economic development.

Crooks could not be reached Wednesday for comment.

Kohanski said she voted against Marien's letter because she agrees with some parts of the proposed eminent domain ordinance.

"The recent U.S. Supreme Court ruling gives whole new flavor to eminent domain authority," she said. "I do want to see extra protection added."

Norwich CT Bulletin: http://www.norwichbulletin.com

Eminent Domain: Property Rights Act of 2006: New Jersey Eminent Domain Blog, 9/14/06

By William Ward

Just in the nick of time, and two weeks before the United States Senate will adjourn, Senator James Inhofe (R-OK) introduced the "Property Rights Protection Act of 2006" (S3878). The bill is the same as H.R. 4128 (http://www.njeminentdomain.com/HR%204128%20TEXT.pdf) which was passed by the House of Representatives in 2005 (325 affirmative votes to 38). H.R. 4128 has been dormant in the Senate Judiciary Committee, despite the efforts of many property reform groups to see some action.

The new bill, S3878, will go directly to the floor of the Senate, requiring Senator Majority Leader Bill Frist to put eminent domain reform on the agenda. Other Republicans, including Arlen Specter, Bill Frist and President George Bush are missing in action on this issue. Eminent Domain reform is an important issue nationwide and will not go away.

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

The Institute for Justice has issued an alert that the above bill is being held up by Senate Majority leader, Bill Frist. The text of the alert is as follows:
Last week, Senator James Inhofe introduced S. 3873, the "Private Property Rights Protection Act of 2006." This bill is identical to the House of Representatives' terrific eminent domain reform bill, H.R. 4128, which has been stuck in the Senate Judiciary Committee since it passed the House last November by an overwhelming majority of 376-38. S. 3873 - which is now the vehicle for eminent domain reform in Congress - will go straight to the floor of the Senate, bypassing the hold-ups other eminent domain bills are encountering in the Senate. However, Senate Majority Leader Bill Frist will not put eminent domain reform on the Senate's agenda, effectively prohibiting the Senate from voting on this bill!

There are only 15 days left before the Senate adjourns. It is more important than ever that you make your voices heard. Call Senator Frist now and ask him to put S. 3873, federal eminent domain reform, on the Senate's agenda and allow a vote. Explain that the American people are strongly opposed to the abuse of eminent domain, both politically and morally - and this opposition will only continue to grow. Then contact your own two senators and urge them to support S. 3873.

You can use the following link to send an email message to all members of the Senate directly: https://action.popuvox.com/default.aspx?actionID=286.

Christina Walsh
Institute for Justice

No eminent domain vote on November ballot: St Louis MO Post-Dispatch, 9/13/06

By Steve Birmingham

Supporters of ballot issues that would limit state spending and eminent domain have ended their fight to put the proposals before voters Nov. 7.

Missourians in Charge had appealed a ruling by Missouri Secretary of State Robin Carnahan that the petitions submitted by the group were invalid.

The group decided to drop any further appeals when the Missouri Supreme Court decided last week against hearing their appeal of Carnahan's ruling, said Patrick Tuohey, president of Missourians in Charge and a Kansas City-area market research executive.

It means the constitutional amendment will not appear on the ballot.

"It's a real shame to see that these reforms, changes that hundreds of thousands of Missourians wanted a say on, have been blocked by lawsuits from special interests," Tuohey, said in a statement released last week.

"From the start, we have faced a slanted and biased opposition from officials who clearly did not want these reforms on the ballot," he said. "When government bureaucrats change the rules of the game mid-play, the people always stand to lose."

Missouri Secretary of State Robin Carnahan's office ruled the order of petition pages turned in were not in sequence, which made the petitions containing over 220,000 signatures invalid.

Missourians in Charge sued to overturn her decision, but a Cole County judge ruled in July the petitions turned in by the group were not numbered correctly and upheld Carnahan's decision.

Missourians in Charge also complained about the amendment's fiscal impact statement prepared by Missouri Auditor Claire McCaskill.

Tuohey started Missourians in Charge in February in response to the June 2005 U.S. Supreme Court decision in Kelo v. City of New London decision. In that case, the Supreme Court ruled government can seize property and transfer it to another private owner if the change in ownership is for the "public good."

Tuohey said two different Cole County judges ordered Missouri Auditor Claire McCaskill to rewrite fiscal impact statements she attached to the amendments, which he said was described by the courts "insufficient and unfair."

"Where we disagree is whether the actions of a single corrupt or incompetent state auditor have the ability to stop the efforts of Missourians to petition government, a right guaranteed by the state constitution," Tuohey said.

"The whole point of the petition process is to go around the executive and legislative branches," he said. "If the secretary of state and state auditor can thwart the process through corruption or incompetence, then the people have no such right at all."

Tuohey said he was grateful for the hundreds of thousands of people who signed the petitions to place the question on the ballot.

"I am buoyed by those who have taken up the fight to defend themselves and their property from the abuse of government power—in Ozark, in Richmond Heights, in Kansas City, in Sunset Hills and throughout St. Louis," Tuohey said.

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

Palm Springs may use eminent domain to purchase a parcel: Palm Springs CA Desert Sun, 9/13/06

Lois Anderson is wedged between a Hard Rock

By Stefanie Frith

Eminent domain could be used by the city of Palm Springs to purchase a parcel to help the proposed Hard Rock Hotel expand and rise up to 100 feet, sources said Tuesday.

Owned by Lois Anderson of Anderson Travel, the property is the last piece Nexus Development needs to complete a 10-acre parcel at Tahquitz Canyon Way and Calle El Segundo. Nexus is working to bring the Hard Rock hotel and condo combination to town, something the city has touted as a way to help revitalize downtown.

The city of Palm Springs stepped in when it became clear Anderson didn't want to sell her land, said City Manager David Ready. While the city hasn't made a decision about eminent domain yet, it is something it "could do," he said. [As of now, the City of Palm Springs understands that Nexus Development and Lois Anderson are still negotiating for the sale of her property and that the city has only sent a letter to Anderson to make her aware of tax incentives if she sells her property.]

"They (the city) said it was very important I help Palm Springs by doing this," said Anderson.

[Lois Anderson has a web site to gain support for refusing to sell her building at http://psnoeminent domain.typepad.com]

Eminent Domain
Eminent domain is the right of a government entity to acquire private property for public use. The property is acquired through condemnation — a court action during which the court deems the use is a public use and decides the price to be paid to the owner.

How does it happen?
A government entity expresses interest in a property and gets it appraised; an offer is made on the property.

A “resolution of necessity” is adopted by a two-thirds vote (in Palm Springs’ case, by four of five council members) that allows the eminent domain proceedings to begin. The entity then has six months from the adoption of the resolution to file a condemnation case.

After an eminent domain case is filed, it could take anywhere from three to four months before the court orders that the condemning agency may take possession of the property after depositing funds with the court.

If a settlement is not reached, the eminent domain case continues. Litigation of an eminent domain case could take a year or more, depending upon courtroom availability.

At any point, the municipal entity and owner could settle.

Cathedral City
[Separately, Cathedral City] officials recently approved a 23-acre residential and retail project in downtown that initially proposed to demolish two landmark restaurants — El Gallito and Red Tomato. The property would have been taken via eminent domain laws. Following a grass-roots movement initiated by the restaurant owners, the city backed off of its plan and members of the City Council now say that the project will be built around the two eateries.

Palm Springs CA Desert Sun: http://www.thedesertsun.com

CAMPAIGN 2006: Proposition 90 - Scope of property rights issue debated: San Francisco CA Chronicle, 9/13/06

By Patrick Hoge

In November, [California] voters will be asked to decide on Proposition 90, the so-called "Protect Our Homes Act" - a property-rights initiative that would amend the state Constitution to limit the use of eminent domain

The initiative would make it impossible for cities or counties to seize land in order to eventually transfer the property to a different private owner, such as a shopping mall developer.

It would also require public agencies to compensate property owners for "regulatory takings" - times when a government decision prevents a property owner from developing or using land. This could happen, for example, when a city puts land off-limits to developers in order to protect the environment.

And though supporters deny it, two nonpartisan organizations - including the state Legislative Analyst's Office - say the initiative may affect more than land. It might also cover intellectual property, such as patents affected by government actions.

Proponents almost exclusively talk about stopping cities from colluding with developers to take the homes and businesses of small property owners. Prop. 90, they say, is a reaction to the June 2005 U.S. Supreme Court ruling that allowed a Connecticut city to seize the home of Susette Kelo and others. The city wanted a different owner to build a hotel, condominiums and commercial space on the land.

Supporters of the initiative also point to what they say are local abuses of governments' use of eminent domain. For example, the city of Oakland last year seized two auto shops where a developer wanted to build a condominium project that will include some below market-rate housing.

Prop. 90 would require state and local agencies to use land they acquire through eminent domain for a stated public use, such as a prison or school. Under the initiative, governments would still be able to use eminent domain in some cases to abate nuisances such as blight or environmental problems.

City redevelopment officials say they seldom use eminent domain powers and that Prop. 90 would hamper efforts to revitalize blighted urban areas. Some opponents of the measure agree that some reform of eminent domain rules may be needed to prevent rare abuses, but they believe Prop. 90 goes too far.

Groups such as the California League of Conservation Voters say the initiative could increase the price that governments would have to pay to build things like roads and schools because of the new costs of reimbursing property owners. They also argue it could hamper cities' ability to regulate where development should happen.

The state Legislative Analyst's Office concluded the measure "could have a major effect on future state and local government policymaking and costs."

Under the initiative, governments would have to pay landowners if they set limits on how tall buildings or homes could be built. The analyst's office said the initiative could force governments to pay landowners after establishing limits on pollution levels or high apartment prices.

Yes on Prop. 90 campaign spokesman Kevin Spillane said the legislative analyst's report was full of "wild-haired distortions" and pointed to overwhelming public support for curbing eminent domain powers.

A Field Poll released last month showed Prop. 90 ahead, especially among Republicans, although only about 28 percent of voters were aware of the initiative. Prop. 90 has been endorsed by the California Republican Party and 42 Republican state legislators.

The most high profile Prop. 90 supporter is New York real estate investor Howie Rich, a Libertarian linked with organizations that have given millions of dollars to as many as 19 initiative drives under way this year in a dozen states. Most seek to expand property rights or limit government spending; some have been disqualified for various reasons.

"This is an ideological thing," Rich said. "I believe that property rights in many respects have been taken away from many property owners."

Organizations that Rich leads have given $1.77 million so far to the Yes on Prop. 90 campaign. In addition, an early contribution of $600,000 came from Montanans in Action, a new political group that has not disclosed its donors. Another $200,000 came from a longtime funder of the libertarian Reason Foundation think tank.

On the other side is a coalition of opponents, including cities and counties, environmental groups and the banks that underwrite redevelopment bonds. Collectively they have given at least $1.5 million to fight Prop. 90, according to the most recent campaign filings.

The biggest chunk - $755,000 - came from municipalities, primarily through the League of California Cities. Environmental groups, led by the Nature Conservancy, have given more than $300,000. The California Public Securities Association, which represents banks involved in municipal finance, gave $400,000, the single biggest donation.

James Cervantes, the association's chairman, accused Prop. 90's backers of being "intellectually dishonest" for hyping the eminent domain angle and downplaying the wider potential impacts.

Spillane countered that the opposition is driven largely by people who benefit from abusing eminent domain.

"Their campaign is funded by people who make money from taking your home or small business," he said.

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

Citizen Group Adds to Eminent Domain Debate in Texas Governor Race with Online Video Campaign: The Open Press, 9/12/06

The Trans-Texas Corridor (TTC) project championed by Gov. Rick Perry will bring about mass evictions of Texans from their homes, farms, and ranches, according to an online video released by a citizen group.

An official web site promoting the TTC project confirms plans for use of eminent domain to evict families from their homes in record numbers.

"This is the largest land-grab in Texas history. Perry plans to force Texas families from their homes, kicking and screaming, so a foreign company can profit for the next 50 years. And, the details of the land grab are still being withheld from the public, for more than a year." said Sal Costello, founder of People for Efficient Transportation PAC.

A new video has been created by the group to help inform more Texans of the more than half a million acre Perry TTC plan, and it is easily available for viewing online at StopPerryLandGrab.com. The video was also created to shine a light on the secret deal made between Gov. Perry and Cintra behind closed doors that will result in the start of the massive evictions in order to begin construction the TTC, according to Costello.

In an effort to help the public visualize the impact of the TTC, the video shows a cartoon of Perry literally kicking families out of their homes and off their farms and ranches all across Texas.

"Texas families getting kicked out of their homes to benefit foreign construction companies is a horrific lottery with scary odds," said Costello. "They are forcing the TTC on Texans, and depending where they draw the line on the map will determine who gets booted from their homes."

The Texas Dept. of Transportation (TxDOT) has confirmed the plans in the "Myth vs. Reality" section of a web site created to promote the TTC plans.

"The video also focuses on the TTC contract that has been kept a secret for over a year. A lawsuit (Cintra Zachry, LP and the TxDOT vs Greg Abbott, District Court of Travis County, GN502207) was filed in June of 2005 to keep the details from being made public. The attorney general ruled the contract must be made public over a year ago. Why is the deal still a secret after a whole year?" asked Costello.

The [TxDOT] site does not deny the concerns expressed by the opposition of thousands of angry Texans who have appeared at recent hearings. Instead it provides excuses and justifications for the actions that are planned, and actually confirms those plans.

"Their own web site clearly states that property will be taken through eminent domain, and that they plan to use ‘Quick Take' authorized by HB 3588 to force homeowners out in just 91 days. They even state that they plan to do this just as soon as the environmental process and public hearings are completed," explained Costello.

"They admit that large amounts of farm land will be divided by the TTC, but they excuse it away by saying they will build cross over roads and places for livestock to cross under. They also admit that hundreds of thousands of acres of properties will be taken off the tax roles, costing local governments in lost taxes," he added.

The TTC site responds to concerns that the right of "quick-take" will be used to take private property for the TTC project by explaining how quick-take works. It does not, however, deny that quick-take will be used.

"The state has attempted to create an illusion that there is nothing to worry about and the fears that have been expressed at hearings all over the state are unfounded. In reality a careful reading of their own web site reveals that the state has confirmed all those fears," said Costello.

The Open Press: http://www.theopenpress.com

Sal Costello: 512-288-9991, Sal@TexasTollParty.com

Orem to acquire land by eminent domain: Provo UT Daily Herald, 9/12/06

By Heidi Toth

Orem [UT] city officials voted unanimously Tuesday night to move forward with an eminent domain action against a property owner.

The property in question, at 1835 S. Sandhill Road, is about 8,210 square feet of land that is now occupied by Project Ascent, a youth rehabilitation home. The city needs the land to go forward with widening Sandhill Road through that area.

"This is not for commercial properties or anything else," Mayor Jerry Washburn said. "This is for the public welfare in terms of roads and streets and public improvements."

Several officials emphasized that they do not like eminent domain, which authorizes a municipality to take private property for public use and pay the owner fair market value for the land. But they also agreed with Washburn that in this instance, public good trumped private good.

Assistant City Attorney Steve Earl said the city originally made an offer to the owner, KSP Investments, for $253,000. The owner made a counteroffer for more than $380,000 and asked to be allowed to replace the house that's on the property with the same footprint but including a basement, which increases the structure's total square footage, according to the staff report. The current use is already non-conforming to the zone on this property.

"What we've basically informed them, because it's being torn down against their will, is that they can rebuild at the same square footage in the same area," Earl said.

The city decided to move forward with eminent domain, Earl told the council, because in talking with the property owners the city staff did not believe a compromise was possible. The eminent domain action will not end negotiations, he added; should a solution be reached outside of the courtroom on which both parties can agree, it's done. This just moves the process forward, so construction on the road can begin.

City Council members questioned what kind of timeline the city is looking at with the eminent domain action and if the city incurred additional costs because of the delay; Earl said no. Most likely construction wouldn't have been ready to begin as originally scheduled anyway, even without this property snafu, and he had no way to guess how construction costs would differ six months from now. As for the timeline, that's anybody's guess.

"I don't know that there is a typical timeline," he said, citing the best-case scenario of just a couple of months and the lengthier example of Provo city trying to get land to connect 4800 North to Canyon Road. "It just depends on what you run into, and you never really know for sure."

The money issue also raised questions of what the city might be paying; Councilman Mark Seastrand said he wanted to make sure the city wasn't taken advantage of and also that the city wasn't taking advantage of the property owner.

"What's the process so we have that reassurance?" he asked.

The appraisal on this property was done in January; Earl said real estate prices have been climbing since then, and the values on similar pieces of property have climbed as well. They are willing to pay a comparable price, he said, and the city typically adds consideration of expenses and inconvenience as well.

"We feel that the city actually does really go out of the way to make it fair," he said.

Provo UT Daily Herald: http://www.heraldextra.com

Friedman implements eminent domain authority : Sun Valley OnLine (Hailey ID), 9/12/06

By Gary Stivers

In a brief special meeting of its governing board early Tuesday morning, Hailey's Friedman Airport indicated it's ready to seize the control they need over trees protruding into the newly-lowered approach path into the valley's only airport with airline services.

The Friedman Airport Authority has tried for more than a year to persuade its southern neighbor, the Flying Hat Ranch owned by Cleone P. Eccles and Spencer F. Eccles, to allow the airport to place solar-powered flashing red lights atop aluminum poles in the upper tree trunks so pilots can see and avoid the treetops as they approach Friedman's runway to land.

From the Eccles' point of view, the cottonwoods lining their driveway weren't in Friedman Field's glideslope before the runway threshold was moved 600 feet closer to the ranch last Spring and therefore, the airport has created the problem, not them.

The Airport Authority, operating in public and observed by the press, selected to move the runway south to avoid having to install and maintain an EMAS – Engineered Materials Arresting System - to catch aircraft before they cross highway 75 and motor into Roberta McKercher Park, as one local executive jet once did. The EMAS costs $3.5 to $5 million, obliges its owner with $50,000 in annual upkeep expenses even if it's never used and it's centered right at the end of the runway, able to catch only those out-of-control aircraft that travel right down the center of the runway.

The Authority took advantage of a recent rulemaking by the Federal Aviation Administration in electing instead to create a 1,000-foot run-out area, figuring that's long enough for an out-of-control aircraft to regain control. That northern 1,000-foot safety area obliged the airport to scoot its runway 600 feet south, since there was only 400 feet available in the north. That 600-foot shift pushed the bottom of the instrument approach path – the glideslope - into Eccles' trees, though the runway extension itself is still within the airport's property line.

Airport manager Rick Baird insists the runway shift was a very public process covered by several of the valley's press, including this one. Baird is therefore certain the Eccles heard about and understand the reasoning behind the runway shift. Whether they understood all along the shift would mean their trees would become a problem, we don't know.

Still, as airport attorney Barry Luboviski has stated several times, airport staff have tried for more than a year to negotiate some kind of deal with the Eccles, but without ever speaking directly with either of them and reaching only their attorney, Evan Robertson, or their ombudsman, Mark Reinemann.

While the airport staff continue negotiating – now with a sizable stick in hand - Boise's Hawley-Troxell law firm will be preparing for quick legal action once the deadline arrives. Authority member Leonard Harlig said the negotiating deadline is a bit fuzzy but all affairs must be completed and the trees either lit, topped or felled by this coming October 26, the date the FAA will publish the new approach into the airport for all pilots to use. Meaning all dickering for a deal must be completed prior to the exercise of a 'hasty' version of eminent domain.

Failing to reach an agreement means Friedman's approach becomes invalid since the runway's threshold will have to be moved 600 feet north of where it is currently designed to be. The delay will curtail all instrument approaches to the airport for at least two months, Luboviski has said, which would include the valley's crucial Christmas tourism season.

With the Tuesday's passage of the following, Hawley-Troxell will begin preparing the must-win case.


The following resolutions are hereby adopted with the consent of the Board of Commissioners of the Friedman Memorial Airport Authority, a political subdivision of the State of Idaho ("Authority"), at a meeting of said Commissioners, duly called at which a quorum was present, held on September 12, 2006.

WHEREAS, the Commissioners have determined it necessary for the continued proper and full utilization of the Friedman Memorial Airport ("Airport") to take necessary and appropriate actions to establish, protect and maintain a 20: 1 approach slope on the south end of the Airport ("Approach Surface"); and

WHEREAS, the protection of the Approach Surface requires either the removal of obstructions to the Approach Surface or placement of obstruction lights on penetrations to the Approach Surface thereby allowing the Airport to meet certain requirements of the Federal Aviation Administration and allow the Authority to open and fully utilize the southern most 600 feet of pavement of the Airport runway; and

WHEREAS, in order to establish, install and maintain appropriate mitigation measures for obstructions to the Approach Surface, it is necessary for the Authority to establish some interest in a portion of the adjoining property which the Authority believes to be owned by Cleone P. Eccles and Spencer F. Eccles ("Eccles"), said interest to be a right of entry, an easement or fee title; and

WHEREAS, the Authority is committed to negotiating in good faith with Eccles in order to obtain an interest in their property so as to establish, install and maintain appropriate mitigation measures for obstructions to the Approach Surface and yet, to the extent reasonable, address the needs and concerns of Eccles; and

WHEREAS, the Authority's representatives must be diligent in their negotiations for the acquisition of an interest in Eccles' property so as not to disrupt commercial flights into the Airport and to comply with the requirements of the FAA for utilization of the southern most 600 feet of pavement of the Airport runway; and

WHEREAS, if the Authority's representatives are unsuccessful within the allowed timeframe in reaching an agreement with Eccles, the Authority will need to utilize its power of eminent domain to acquire an interest in Eccles' property; and

WHEREAS, upon acquisition of the interest, the Authority shall convey the interest to Blaine County and the City of Hailey jointly for the use and benefit of the Airport subject to a lease back to the Authority for Airport purposes.


RESOLVED that the Authority, by and through its designated representatives, shall diligently negotiate in good faith with Eccles to acquire an interest in their property in order to establish, install and maintain appropriate mitigation measures for obstructions to the Approach Surface; and

RESOLVED FURTHER, that said interest is to be a right of entry, an easement or fee title as the designated representatives shall reasonably determine and yet, to the extent reasonable, address the needs and concerns of Eccles; and

RESOLVED FURTHER, that in the event the Authority's representatives cannot timely reach an agreement with Eccles, the Authority may utilize its power of eminent domain to acquire an interest in Eccles' property in order to establish, install and maintain appropriate mitigation measures for obstructions to the Approach Surface; and

RESOLVED FURTHER, that as of the date of this resolution, any actions previously taken to carry out these resolutions, and all certificates, instruments, and other documents so executed and delivered, are ratified, confirmed and approved in all respects.

The effective date of this action is September 12, 2006.

Friedman Memorial Airport Authority


Martha Burke, Chairman

Sun Valley OnLine (Hailey ID): http://www.sunvalleyonline.com

Cities' eminent domain in peril: Whittier CA Daily News, 9/11/06

By Mike Sprague

Even if voters in November reject Proposition 90, an initiative that would bar governments from confiscating private property for redevelopment projects, local redevelopment agencies face new, tighter restrictions if pending legislation is signed into law by the governor.

Four bills that seek to limit the power of eminent domain, which allows local governments to buy up private property to make way for revitalization projects, already have passed through the state Legislature, with strong bi-partisan support.

The four bills now are on Gov. Arnold Schwarzenneger's desk awaiting his signature or veto. On Monday, the governor's office declined to say whether he will sign or veto the bills. The governor has taken no position on the legislation, his office said.

The bills all would create more legal hoops cities would have to go through before using eminent domain or when expanding or creating new redevelopment areas.

"What I'm trying to do is make the redevelopment and eminent domain process more transparent to the average property owner, be they residential or commercial," said state Sen. Christine Kehoe, D-San Diego, author of three of the bills.

One of Kehoe's bills, SB 53, would require redevelopment agencies to spell out when, where and how they will use eminent domain. It also requires that the agencies re-designate an area as still blighted before extending the life of a redevelopment area.

But city redevelopment officials, not surprisingly, say the current efforts to change existing redevelopment formulas will only make it harder to revitalize blighted areas.

"I sense there's a lot of knee-jerk reaction to a case that was an East Coast case that had no relevance in California," said Jeff Collier, Whittier's community development director. "I see the potential for somewhat hamstringing the City Council from having the flexibility to do a project or amend a project area when an opportunity may arise in the future."

Had it been the law, Kehoe's SB 53 could have held up Whittier's recent ruling to reinstate, for an additional 12 years, eminent domain in the lower Uptown area, Collier said. Had that been the case, the city would have had to pay as much as $50,000 for a new study to determine whether eminent domain should be reinstated there, he said.

That would be an unnecessary waste of time and money, he added.

"It's pretty fair to say at least in Whittier's case that we haven't seen any significant change in the area," said Collier.

Another pending bill by Kehoe, SB 1206, the most controversial of the four, tightens the definition of "blight," which cities must establish in order to create a new redevelopment area.

John Shirey, executive director of the California Redevelopment Association, said the bill would make it "much more difficult" to create new redevelopment project areas.

The bill's language eliminates some of the earlier definitions of "blight." Cities would have to list special factors that prove a potential redevelopment area contained no public improvements, or that it is not experiencing any normal investment activities one might to find in non-blighted areas.

SB 1206, also by Kehoe, makes it easier for residents to challenge a redevelopment project. It gives residents more time - 90 days, instead of the current 30 - in which to gather signatures for a voter referendum.

A fourth eminent domain bill, SB 1210 by Sen. Tom Torlakson, D-Concord, would make it harder to government agencies to gain quick possession of private property through the use of eminent domain. It also requires agencies to pay up to $5,000 for an independent appraisal.

Pico Rivera City Manager Chuck Fuentes objects to Torlakson's bill.

"Unfortunately, this bill makes it more time-consuming and more difficult for redevelopment agencies to obtain orders of prejudgment possession," Fuentes said.

"While the Pico Rivera Redevelopment Agency has no current plans to exercise its power of eminent domain, this bill will place further burdens on that power, should the agency decide to use it."

Whittier CA Daily News: http://www.whittierdailynews.com

MoDOT Called Key 'Element' in Eminent Domain Law Changes: Washington MO Missourian, 9/8/06

By Ed Pruneau

Past problems with the way the Missouri Department of Transportation (MoDOT) used its eminent domain authority was a key "element" in crafting changes in the law, Washington City Council members were told this week. Two Missouri senators who addressed the council on the revised law criticized MoDOT's handling of eminent domain issues in the past.

"MoDOT screwed up," State Sen. John Griesheimer commented, referring to the acquisition several years ago of right of way for the Highway O improvement project in Franklin County.

"That project was an absolute mess," Griesheimer commented. He said it took five years for one property owner to get paid after challenging the condemnation award. "They made a monumental screw up" on the Highway O project, he said.

"All over the state, MoDOT has made a lot of screw-ups on right of way," the Washington lawmaker said. When property was acquired for the Route KK intersection improvements, MoDOT didn't use sales figures from this area, he said.

Griesheimer and State Sen. Chris Koster attended Tuesday's council meeting to explain how and why Missouri lawmakers revised the eminent domain law that regulates the acquisition of property for public purposes.

The visit was in response to recent statements by Mayor Dick Stratman who called it a bad law and suggested that the city may want to consider challenging it on constitutional grounds when the time comes to obtain right of way for the dual-lane Highway 100 project. The city and MoDOT have an agreement to share the cost of improving the highway from Washington to Interstate 44.

Griesheimer called it "shocking to me" that there disagreement about the bill.

The eminent domain issue was reviewed by a governor's task force then by a Senate committee working with several statewide organizations before it was approved by the Legislature.

"I never heard from anyone (about the bill) including the city. I understand you don't want to spend more money. But you still have the ability to use eminent domain for public purposes, Griesheimer said. "This is about one thing - money," he continued. "I'm sorry it's (Highway 100 project) going to cost more. It's my money, too. But we also have to preserve property rights."

Councilman Tim Brinker asked Koster if the "total issue" was with MoDOT. "I feel bad if you're saying this is all MoDOT's fault and they're not here to address that," Brinker said.

"MoDOT is an important element," Koster said. The Missouri Farm Bureau and MoDOT have had strong disagreements in the past over eminent domain, he noted.

As the bill was making its way through the Legislature, MoDOT officials came forward and asked some senators to take up their cause, Koster said. "No one would take up MoDOT's cause," he added.

"MoDOT wanted out of this bill, but we weren't going to let them out," Griesheimer declared.

Washington MO Missourian: http://www.zwire.com


Senator Says Courts Not Likely to Reject Eminent Domain Law: Washington MO Missourian, 9/8/06

By Ed Pruneau

A state lawmaker said he believes it's unlikely that the courts would declare Missouri's new eminent domain law unconstitutional. State Sen. Kris Koster told Washington City Council members this week that a claim that the bill does not treat citizens equally is not a strong argument for throwing out the law.

"There is no protected class, based on race, creed, religion, national origin or sex, in danger from the new law," Koster explained. He said if there is a challenge, the courts would analyze the legislators' actions in light of rational goals. "Is our goal rationally matched to our actions?"

The Missouri Constitution allows the taking of private property for public purposes as long as just compensation is paid to the owner, Koster explained. But what is "just compensation" when you have a willing buyer but an unwilling seller? he asked.

After lengthy debate and meetings with various interest groups, the Legislature agreed on a just compensation figure of fair market value times 125 percent. "We just pulled that figure out of the air," Koster admitted.

The Missouri Farm Bureau argued for more - 150 percent - for owners of "heritage farms" that have been owned by an individual or family for 50 years or longer. "The 150 percent is recognition of the unusual power of the Farm Bureau," Koster acknowledged.

All the Legislature did, according to Koster, was revamp provisions in the law. "We didn't take any rights away from any citizen," he said. "Something more was given to certain citizens," he acknowledged. "I believe that does not give rise to a constitutional challenge."

Koster was invited by State Sen. John Griesheimer, Washington, to attend Tuesday night's council meeting to explain SB 1944 which Koster was instrumental in drafting.

Griesheimer extended the invitation after Mayor Dick Stratman recently chided lawmakers for drafting a "bad law," arguing that many believe it is unconstitutional because it treats people differently based on how long they've owned property.

Stratman said he doesn't have a problem with many of the changes in the law. The "homestead provision" treats everyone equally, he said. "The only thing I have a problem with is the 150 percent for the heritage people," he commented.

"I think we need to clean up abuses and give property owners fair market value and just compensation. I commend you for trying to do the right thing," Stratman told the senators. "I just go along with the heritage part."

"I think it will cost cities, counties and the state a lot of money" to acquire land in the future, Stratman remarked.

Councilman Tim Brinker took issue with the percentage increases over fair market value that are being mandated to local governments. Eminent domain always has involved placing the needs of the many over the needs of a few, he said. "Now, we're taking from the many and giving to a few by mandating percentages," Brinker remarked.

Missouri taxpayers are being "damaged economically" by the new law, remarked Councilman Marty Tudor. "We'll all be paying for this legislation" through higher costs for road and bridge projects. Tudor said he understands the arguments, "but for me, it's a fairness issue."

Tudor said the city went into the Highway 100 cost-sharing project thinking that it would be paying fair market value for any land needed. "Now I feel the rules have been changed. I don't like that change."

Councilman John Rhodes remarked that part of the controversy is the result of using eminent domain for economic development projects.

Koster noted that the eminent domain discussion has been "bubbling up" in Jefferson City for three or four years, but the U.S. Supreme Court decision in Kelo vs. New London "opened the flood gates." He also cited the situation at Sunset Hills where the city condemned scores of residential homes for a proposed commercial development, then the deal fell through and left some homeowners with payments on two homes. The new law has stricter notice requirements and gives property owners more information. No longer will developers be able to "sneak up behind" property owners and take their land, Koster said.

Stratman said he has no problem with setting much higher compensation amounts if land is taken for an economic development project. "You can give them 1,000 percent."

Griesheimer said a move earlier this year by a group from New Jersey to get an initiative petition banning eminent domain on the ballot failed.

"I'm relatively certain they'll be back," he said. "But if this (SB 1944) gets knocked out, they will be back."

"To ensure property rights, if we have to pay more money we should do it. It's the right thing to do," Griesheimer said. "To challenge it in court is not."

Rhodes agreed. "I think we either pass a bill we don't like 100 percent or we let it go on the ballot. Then we won't have eminent domain in Missouri."

From Washington's standpoint, the new law is not good, said Carolyn Witt, council member. But looking at the big picture, "it's a good thing" for property owners.

Koster noted that the changes received broad support from the Farm Bureau, the Missouri Chamber of Commerce, the Missouri Municipal League and Missouri Association of Counties as well as the cities of St. Louis and Kansas City.

The Municipal League was very supportive of the measure, he said, however, Washington's situation with the Highway 100 project "was a wrinkle that was not discussed."

Washington MO Missourian: http://www.zwire.com

Eminent domain law challenged in Glendale: Milwaukee WI Journal-Sentinel, 9/8/06

Injunction sought to stop seizing of land for Bayshore center

By Marie Rohde

The city [of Glendale WI] is using its power of eminent domain to help accomplish a $300 million makeover of Bayshore shopping center, but a lawsuit filed by one property owner is questioning whether the takeover fits the law's strict criteria.

Those involved on both sides of the case say a decision on the matter, which is expected soon, could shape the legal debate over setting limits on the state's eminent domain law, which weighs the protection of private property rights against economic development that could result in benefits for an entire community.

At issue is whether Bayshore had lost so much of its luster by late 2001, when city officials formed a public-private partnership with developers for the makeover, that it could have been labeled a blighted area.

If it were deemed blighted, Glendale could use its power of eminent domain, a tool created by state statute that allows a municipality to buy private property for a fair price and relocation fees.

While several owners quarreled with the city over the city's condemnations, none of the business owners attacked the core of the eminent domain law - allowing a municipality to forcibly purchase private property as part of a plan for a blighted area.

The Seemann Family LLC, the living trust created by Harold and Edna Seemann, owns the property in question, which is just north of the shopping center at 5960 N. Port Washington Road, where the Goodyear Auto Service Center is located. The trust is seeking an injunction to prevent Glendale from taking the land.

The two sides argued the matter before Circuit Court Judge Francis Wasielewski last week.

Glendale has argued that Bayshore, traditionally one of the top five taxpayers in the city, was on the edge of economic decline that could be devastating not only to the property owners but also to all of Glendale. It was compared to the rapid decline of the nearby Northridge Shopping Center, where the property value sank, from an assessed value of $107 million in 1990 to a sale price of $3.5 million in 2001. Glendale asserts that the Seemann property is needed to build a public road to a four-story garage that faces Lydell Ave. on the east side of the center. The property was not a part of the initial plans for the expansion of the shopping center, but it became necessary, city officials argue, to accommodate the concerns of residents who live in Whitefish Bay on the east side of Lydell Ave. Those residents were concerned that the 1,400-car parking lot would destroy the residential nature of the neighborhood.

The garage was then redesigned so that much of the traffic would enter and exit off of Port Washington Road, on the west side of the development

Glendale earlier acquired 24 properties and relocated some of the businesses housed at those locations. At least seven businesses protested, four resulting in lawsuits. All were settled out of court or dropped. None challenged the validity of Glendale's use of the eminent domain law.

Hugh Braun, a lawyer representing the Seemanns, argued that Glendale is attempting to take the land purely for economic reasons - for the benefit of the private owners of the shopping center. State law, he said, is far more restrictive and requires that the area be blighted. Alan Marcuwitz, a lawyer for the city, contends that the legal requirements have been met.

According to city records, the land where the Goodyear store is located has an assessed value of $1.225 million; the building is valued at $5,000.

Nationally, a municipality's taking private property from one owner and selling it to another for redevelopment has been controversial.

In June 2005, the U.S. Supreme Court ruled in a Connecticut case that private property can be taken by a municipality for economic redevelopment. The decision provoked a storm of protest from coast to coast, said Julian Kossow, a Marquette University law professor and expert in real estate law.

More restrictive laws created by states can trump the Supreme Court decision, he said.

"More than 30 states, either through legislation or court cases, acted to impose higher standards," Kossow said. "They said municipalities should not be able to condemn property unless it was blighted."

Despite the more restrictive nature of Wisconsin's law, Kossow said, the fact that Glendale wants the land for public purposes tips the scales to Glendale's favor.

Milwaukee WI Journal-Sentinel: http://www.jsonline.com

75 and counting - The use of eminent domain created Lake of the Ozarks: Camdenton MO Lake Sun Leader, 9/7/06


This weekend marks the culmination of a year of celebrations highlighting the 75th anniversary of the completion of Bagnell Dam and the filling of Lake of the Ozarks.

Is it ironic that it comes the same week that The Associated Press reports the group seeking a ballot initiative to limit the use of eminent domain gave up the fight to put the matter to a statewide vote?

It was, after all, the use of eminent domain that allowed a St. Louis power company to force, when necessary, people off the land their ancestors had homesteaded by carving farms out of the wilderness. Many, if not most, were paid a fair price, but there were some forced from their homesites with little more than memories if they could not afford to have their homes moved.

Today, we’re appalled and outraged by that notion, but we would not have what golfing legend Arnold Palmer once called “The hidden jewel of the Ozarks” were it not for the use of eminent domain: 1,150 miles of shoreline full of homes large and small, countless waterfront establishments which cater to all kinds of wants and needs, a nationally renowned fishery, nearly a dozen and a half outstanding golf courses, shops of every description, a first-rate hospital and a thriving economy.

The next time you take the pontoon, bass boat or cruiser out for an excursion, think about how you would feel if a faceless corporation tried to evict you from your home - it ought to put the Lake of the Ozarks in a whole new perspective.

Sometimes the greater good does outweigh the rights of the individuals, although that’s a lot easier to say if you are not the individual in question. Power should always be wielded with great restraint.

All around the lake this summer and fall, celebrations mark the 75th anniversary in numerous ways.

This weekend is AmerenUE’s moment in the spotlight and this will be a chance to see the friendly faces that make up the power corporation.

If you have never taken a tour of Bagnell Dam, this may be one of the few chances you still have and you should take it.

An immeasurable amount of back-breaking labor went into constructing the dam and this weekend we pay tribute to the vision that created the Lake of the Ozarks, the sacrifice of those who surrendered what they called home and the sweat of the men, women and families that made it what it has become 75 years later.

Camdenton MO Lake Sun Leader: http://www.lakesunleader.com

Eminent domain raises debate stakes for council candidates: Carson City Nevada Appeal, 9/8/06

By Susan Wood

South Lake Tahoe leaders may be contemplating eminent domain to get the convention center complex built, but its six city council candidates vying for three seats on the Redevelopment Agency board for the November election would rather it not get to that point.

The agency on Tuesday took action on its intent to use the controversial government practice in case negotiations break down between Lake Tahoe Development Co. and the property owners who have held out on selling land on five parcels.

Twenty-nine property owners have negotiated to sell with the developer in the 11.36-acre site between Highway 50, Cedar, Friday and Stateline avenues that will be home to a city-owned convention center managed by the developer, two condominium hotels and a village green.

The city has set aside up to $8.5 million in acquisition costs that developers Randy Lane of Stateline and John Serpa of Carson City would reimburse. The agreement between the city and developer says the latter would "advance" the money to get the project going for its May 2007 groundbreaking.

One residence and seven businesses are attached to the parcels. They include Lakeside Landing, Shirt Stop, Pub Tahoe, Taco Bell, Paradise Timeshare, Shoreline Ski and Snowboard and Union 76 station.

The business owners and displaced residents would be dealt with through a newly development relocation plan that has set aside $1.6 million for the venture.

Jim Hickey, who runs the Union 76 station, said he's met with the developer but no agreement has been made. He's on the lease with the oil company until 2009 and under his contract has "the right of refusal to buy the land." The provision called the Petroleum Marketing Protection Act protects station owners from being displaced involuntarily.

Candidates weigh in
Real estate agent Michael Phillips, innkeeper Jerry Birdwell, retired teacher Bill Crawford, Councilwoman Kathay Lovell, businessman Tom Davis and recreation advocate Tom Wendell said they wouldn't advocate the city heading to court under eminent domain, which is the legal taking of private property for public use. One property owner has pledged a legal fight if the city uses the measure.

Birdwell, a longtime lawyer and judge, said it's standard for parties in the situation to "hire a voice to represent them at all levels" and remained optimistic the dealings would be worked out outside of court.

Even in voting for the city to use the power, Lovell agreed.

"Only one parcel has objected so I don't know if it's an issue. I think this is a little premature. They can still negotiate in the next couple of weeks," said Lovell, who is rerunning for her seat on the council. The agency board member said eminent domain is "not anything we take lightly."

She viewed the one objection expressed at the public meeting of a good "indicator of how much the project has gone forward."

But that may be too much for candidate Crawford to hear. He is steadfastly against using city resources for a private developer's benefit and turned to the city community survey to make his case. The convention center ranked lower than other items as priority items.

"If I had one thing to say, it's eminent domain destroys the people's control," he said. "It should only be used for schools, roads and hospitals."

But Davis sees the proceedings as a much needed project for the future of the town's tourism.

"If not for eminent domain, there wouldn't be a highway," he said. Still, Davis tempered the enthusiasm with a nervousness about "taking someone's business" and "taking someone's house."

The situation sparked more questions for Wendell, who wanted to know "how the public's interests would be better served," "where else could the money go," and "would legal costs be recovered?"

He believes the development would make an improvement.

"The area does look like heck," he said.

The "toughest part" for Phillips is knowing the decision has been made for him on a matter that would come before him many times during the course of serving the city.

He would like to see mediation at all costs.

"Everybody has a price," he said.

He would simply want to know the bottom-line cost to get everybody on board.

"I don't think this is a surprise to anybody that it's come to this. I can't see redevelopment slowing down. I just wonder why they didn't use eminent domain for its city offices," Phillips said.

Carson City Nevada Appeal: http://www.nevadaappeal.com

Compromise may be in the works for GVSD eminent domain lawsuit: Phoenixville PA News, 9/7/06

By Anne Pickering

A compromise may be in the works to allow a neighbor of the Great Valley High School and middle school to keep their home which has been the object of an eminent domain lawsuit by the school district
School district attorney Guy Donatelli gave an update at Tuesday's school board meeting on the status of the case which has pitted the school district against Patrick and Karen Cassidy whose 1-1/2-acre home the district wants to acquire for a playing field.

More than 75 people attended last month's school board meeting and many spoke out against the Great Valley School District using the power of eminent domain to force the Cassidys to give up their home.

Donatelli told board members that he had talked to Joe London, the Cassidys' attorney and he thought there was a basis for a compromise.

Reached by telephone on Wednesday, Donatelli said, "The basis of the compromise would involve the school district getting the property it needs and the Cassidys being able to stay in their home."

He hastened to add that "there is no agreement." The two parties are "just feeling each other out," at this stage.

The next step is to arrange a meeting between all the parties which Donatelli was hopeful would be arranged soon.

Several calls to London were not returned as well as calls to the Cassidys.

Audrey Van Loan, a friend of the Cassidys, told the school board at last month's meeting that the family did not want to leave their home. The school district acquired 4.3 acres of the original 6-acre Cassidy tract on Phoenixville Pike from Eleanor Cassidy in 2002. According to the terms of the agreement, Eleanor Cassidy was allowed to live in her home until her death in 2004. While the district always had their eye on the last 1-1/2 acres owned by her son Patrick Cassidy, they did not start pursuing it until the end of 2005. When the Cassidys said they didn't want to sell, the school district started eminent domain proceedings. Before a judge could hear the case, Patrick Cassidy fell and fractured two vertebrae in his spine and was bedridden for several months.

Donatelli made arrangements for depositions to be taken in the case in mid-August but Karen Cassidy became ill and had to be hospitalized. The school district made an offer of $350,000 for the land which was determined to be fair market value. The Cassidys came back with a much larger offer but maintained that they didn't want to leave their home.

If the school district acquires the 1-1/2-acre tract there would be enough space for two regulation playing fields. It would also be used for physical education classes. The district currently buses 170 to 200 students off site for athletic activities.

If the Cassidy parcel is obtained it would cut down on the amount of busing but not eliminate it altogether.

Before the middle school was built in the late 1990s, the 70-acre site held the high school and playing fields. Once the middle school was built, there was no longer enough playing fields on site. The whole campus is now 80 acres of which 25 acres is parking and the schools leaving 55 acres for playing fields and other open areas.

Phoenixville PA News: http://www.phoenixvillenews.com

Floyd County passes eminent domain ordinance: New Albany IN News and Tribune, 9/6/06

Utility companies, attorneys say measure may prompt lawsuits

By Chris Morris

Steve Lohmeyer said the wording for eminent domain changed in the case of Kelo vs. New London. Because of that, individual states and counties have the right to adopt their own laws and ordinances concerning eminent domain.

The Floyd County Commissioners agreed.

After 90 minutes of debate, the commissioners voted 2-1 to accept the ordinance Tuesday afternoon. Chuck Freiberger and Steve Bush voted in favor while Dr. John Reisert voted against.

In Kelo vs. New London, Conn., the U.S. Supreme Court ruled that the exercise of eminent domain, to take private property for a private use, does not necessarily violate U.S. Constitution.

“The terms public use and public purpose used to be synonymous with eminent domain. But Kelo changed all of that,” said Lohmeyer, the county attorney.

Lohmeyer, under the direction of the commissioners, adopted the ordinance which passed Tuesday afternoon.

The main points of the ordinance states that:
  • Effective immediately, in Floyd County, no private property shall be taken in exercise of eminent domain without first seeking the approval of the Board of Commissioners.
  • No approval shall be given unless and until the board determines that the proposed taking is truly for public use.
  • An action may be brought for mandatory or injunctive relief as against any person violating the terms and provisions of this ordinance.

Prior to the vote, attorneys Greg Fifer and John Kraft, who represent several area developers, voiced concerns with the ordinance. Both said it was too broad and the commissioners were overstepping their authority.

“This makes you the gate keepers,” Kraft told the commissioners. “This will stymie or stop development in which utilities need to be run in an area. If you pass this ordinance, you will be padding to the retirement fund of attorneys involved in litigation against this.”

Kraft said ordinances are already in place if citizens object to eminent domain being used against them. If the property owner and utility company can not agree on price, the citizen can request a show cause hearing before a judge.

“There is already a remedy for them to protect themselves,” Fifer said.

“It may cost you more to fight it than your land’s worth,” Floyds Knobs resident George Mouser said.

New Albany IN News and Tribune: http://www.news-tribune.net

Eminent domain foes seek extra measure of security: San Diego CA Union-Tribune, 9/7/06

By Tanya Mannes

Three out of four residents [of Chula Vista] voted June 6 to approve a ballot measure that restricts the city's ability to seize private property.

Although the ballot measure – Proposition C – was successful, some Chula Vista residents still fear the city will abuse its eminent domain powers.

And so Earl Jentz, a landlord who spearheaded the ballot initiative, has announced the formation of a watchdog group, the Committee to Protect Proposition C, to make sure the city abides by the charter change.

“It's a group of people who were involved with Proposition C initially who want to ensure that the goal of it is protected,” Jentz said this week.

City Attorney Ann Moore on Tuesday expressed surprise after being informed of the new committee.

“What is there to protect? There hasn't been any challenge to it,” Moore said. “We're certainly not challenging it.”

Proposition C amended the City Charter to prohibit the use of eminent domain to seize private property on behalf of another private interest without voter approval. The City Council has authority to mount a court challenge but that hasn't happened, Moore said.

As the Nov. 7 election approaches, the four candidates for City Council and mayor are being asked whether they plan to uphold the charter change. The committee will consider endorsing someone in each race, Jentz said.

There are two races: For the mayor's seat, incumbent Steve Padilla is facing Cheryl Cox, a trustee for the Chula Vista Elementary School District; for the council seat, Councilwoman Patty Chavez is facing Rudy Ramirez, a local business owner.

Looking forward, Moore said Proposition C won't have an immediate effect on redevelopment plans. Before the June election, city policy already prohibited the use of eminent domain on residential property in a residential zone.

“There was not any project in the pipeline that would involve the use of eminent domain at the time Proposition C was approved by voters,” she said.

Proposition C also won't affect the city's plans for a hotel and convention center on its bayfront, Moore said. Most of the bayfront is public tidelands under the jurisdiction of the Port of San Diego, not the city. The remainder is controlled by private owners who are willing participants in the development plans.

In Chula Vista, 74 percent of voters supported limiting the city's eminent domain power to a strictly defined public use.

Traditionally, eminent domain has been used by governments to remove blight, such as abandoned buildings, or for public projects. But increasingly, governments have invoked eminent domain to bring in development that generates tax revenue.

Last year, the U.S. Supreme Court issued a decision that upheld the right of local governments to seize private property – even homes – to further economic development goals. The court's June 2005 decision, Kelo v. City of New London, Conn., caused a public outcry. The court stated that local jurisdictions could enact their own restrictions on eminent domain.

Chula Vista was among the first cities to respond to the court ruling. Under Proposition C, if the city wishes to seize land for a nonpublic use, such as shops or condominiums, it first is required to get voter approval. The charter change preserves the city's eminent domain power for a public use, such as schools or roads.

Connie Mihos, a Garrett Avenue homeowner of six years, gave $100 to the Committee for Private Property Protection, which handled the Proposition C campaign. She and her husband also walked precincts.

“The Kelo decision really shocked us into action,” said Mihos, a court reporter. “People are just angry about (potentially) losing their homes. I think eminent domain is a 'gut' issue that everybody feels strongly about.”

A similar ballot measure seeking to limit the use of eminent domain will go before California voters in November. If approved, Proposition 90 will amend the state constitution. Moore said that would override the Chula Vista eminent domain measure.

Local business owners bankrolled the Yes-on-Proposition C campaign, which reported $173,300 in contributions.

Jentz, who was the biggest contributor, said the measure's overwhelming success demonstrates that city residents want to protect property rights. He and his wife, Karen, gave a total of $76,774.

“It's an issue we feel strongly about,” Jentz said.

The Jentzes' business is property management. They own more than 20 properties in Chula Vista, according to San Diego County property tax records.

Other significant donors included Chula Vista mobile home park owner Gerald Fick, who gave $58,500, and Silent Salvage Search, a subsidiary of Standard Auto Recycling, which contributed $10,000.

The campaign in support of Proposition C was expensive, beginning with a costly legal battle to get it on the ballot. Most of the money raised was spent on legal fees, political consulting and direct mail.

The campaign began with a petition drive to force the city to put the measure on the ballot. The group submitted more than 10,000 signatures to the city. But then the City Clerk's Office informed organizers that more signatures were needed and that it was too late to gather them.

The group sought legal advice on the validity of the petition from two law firms with expertise in land use: Foley & Lardner; and Burke, Williams and Sorensen, both based in Los Angeles. The committee paid a total of $47,000 to those firms, which also provided advice on ballot language.

The city attorney eventually said the group could submit additional signatures. Before that became necessary, the City Council responded to public pressure and voted unanimously to add the measure to the June ballot.

Chula Vista's new land-seizure rules

City voters approved Proposition C on June 6. The ballot measure amends the City Charter to limit the city's use of eminent domain for private development.
  • Specifically, the city is prohibited from seizing land on behalf of a private entity unless it obtains voter approval through a ballot measure.
  • Proposition C preserves the city's right to seize land for a public use, such as schools or roads.

San Diego CA Union-Tribune: http://www.signonsandiego.com