Pataki signs bill blocking use of eminent domain for power line: Utica NY Observer-Dispatch, 10/3/06

[New York] Gov. George E. Pataki signed a bill this afternoon that would block New York Regional Interconnect from using eminent domain in the construction of its proposed 1,200-megawatt power line.

Pataki signed the bill into law during a ceremony at SUNY Institute of Technology.
The bill has drawn opposition from New York City Mayor Michael Bloomberg, whose city would benefit from the reduction in energy prices the line could bring.

Officials representing communities along the route the line would follow, however, have supported the bill.

The proposed route runs from Marcy through local communities including New York Mills, South Utica, Washington Mills, Chadwicks, Sauquoit, Clayville, Cassville and Waterville.

Utica NY Observer-Dispatch: http://www.uticaod.com

County eminent-domain case moves to Phila: Lancaster PA New Era, 10/3/06

Former owner seeking millions in compensation for county’s seizure of ex-Armstrong building on North Queen Street

By Jack Brubaker

Nearly two years ago the Lancaster County Commissioners seized the former Armstrong World Industries building at 150 N. Queen St. by eminent domain.

A year ago the building’s former owner, Dr. Ira Trocki, a New Jersey plastic surgeon, filed a complaint protesting the $8.3 million the county paid for the property. He believes it is worth millions more.

Now Trocki has won a preliminary skirmish in his battle to achieve more compensation from the county.

The county had preferred that the case be contested in Lancaster County Court. Trocki wanted to move the case to federal court “because of the publicity surrounding the taking,’’ according to Trocki’s Philadelphia attorney, Don Foster.

U.S. District Judge James K. Garner, in Allentown, decided recently in favor of Trocki, and the case will be heard in the U.S. District Court for the eastern district of Pennsylvania.

The issue of venue was not decided on its merits. The county’s attorney, Matthew Creme, last year missed a time limit for filing objections to Trocki’s proposal to refer the case to federal court, according to Garner’s opinion.

Now the court will appoint three persons to a Board of View that will examine the property and determine its fair market value.

“We have a significant divergence of opinion on that,’’ Foster noted.

Trocki bought the building in 1998 for $12 million, and Foster said the physician had the property under agreement for sale at $15 million at the time the county seized it.

Foster said he is in the process of obtaining a new appraisal of the property’s value.

Lancaster PA New Era: http://local.lancasteronline.com

Artists invited to portray eminent domain in the context of creative work

In old English law, eminent domain refers to the power of the state to take private property without the owner’s consent. Since the mid-19th century it has been employed as part of large-scale development projects and urban renewal – controversial practices that can be extremely destructive for local communities. The policy is often implemented when there is a perceived obstruction blocking the progress of a particular project and powers of override must force its conclusion.

In investigating this theme DISPATX - an on-line art collective -- invites artists to recast the concept of eminent domain in the context of creative work. Here it becomes similar to recourse – in the face of blockade, alternative and often radical tactics may be resorted to in order for an idea to move forward. At a point of critical mass existing systems begin to fail, invoking a form of negation and opening up a space of uncertainty. This uncertainty may force a radical reformulation of a work at a crucial moment of its incompletion and potential.

The concept of regeneration is helpful in investigating this theme with regard to process revision and its relation to the creative method. Literally beginning again, regeneration suggests a recursive, self-referential procedure. It also indicates different approaches to revision: on one hand there can be subtle, incremental modifications of existing structures, systematically inching toward a result. On the other there can be a Kuhnian paradigm shift – a more radical action that can demand a clean slate from which to begin from scratch.

The interplay of these strategies and the conditions that formulate them are fascinating areas of exploration. To what extent are points of resistance and conflict essential for shaping creative decisions? Are great ideas born of frustration or along paths of least resistance? What kind of space does this recourse open up?

In this context, the theme of eminent domain speaks not only to literal interpretations concerning revised landscapes, power relationships and innovation from decay, but also to a broader theoretical reading about the space opened up by an enforced change of approach. The use of these concepts, either as the subject of investigation or as a guide to process and methodology, will result in a fascinatingly diverse group of projects for the next edition of Dispatx.

For information on how to submit:

Final date for sending project proposals : 16 December 2006

Publication of collaborative project proposals : 15 January 2007

DISPATX: http://dispatx.com/wip

Eminent Domain Lawsuit Results in $5 Million Judgment: Business Wire, San Francisco CA, 10/2/06

A jury has awarded a $5 million judgment to the REI sporting goods retailer [in Houston TX], which lost a considerable number of parking spaces through a condemnation proceeding that widened Interstate 10.

REI filed suit against the State of Texas after the government acquired 1 acre of REI’s 3.5-acre retail site in March of last year in an eminent domain proceeding.

The acquisition included over 50% of the parking and rendered the building of no value. “A retail store without adequate parking can no longer operate as a retail store because the store’s customers cannot find a place to park,” said Lewis Realty Advisors principal Mark Sikes, who testified as an expert valuation witness in the case.

The state contended that REI should be compensated $3.3 million. Sikes said that retailer should receive $5 million, reasoning that the property was worth $9.6 million before the eminent domain taking and $4.6 million after the taking.

A jury in Judge Jack Cagle’s Harris County Court-At-Law No. 1, agreed with Mr. Sikes and ruled in favor of REI. The store has been demolished and the retailer moved elsewhere.

The widening of I-10 in west Houston, resulted in dozens of disputes with the state about property values and acquisition prices. The Lewis Realty Advisors team, led by Sikes, handled many cases for Katy Freeway property owners in negotiating fair purchase prices from the state.

The REI case was the first lawsuit to go to jury trial in the Katy Freeway eminent domain takings, Sikes said.

“The taking of a commercial property through eminent domain is a complex event and property owners do not want to tackle it without an expert in this specialized field,” Sikes said. “A significant number of Katy Freeway property owners enlisted our help. The initial offers by the state were consistently too low and the property owners were wise to protest.”

Business Wire, San Francisco CA: http://home.businesswire.com

Lewis Realty Advisors: http://www.lewisrealty.com

Eminent domain a step too far: Chicago IL Daily Herald, 10/1/06

On Tuesday, the village board in Arlington Heights [IL] is expected to consider a proposal to begin eminent domain proceedings against International Plaza and a handful of adjacent parcels on the south side of town.

For a number of years, village officials have targeted the area for a major economic redevelopment that would be centered around a SuperTarget store.

The board’s interest in improving the village economy is laudable and its interest in increasing tax revenue is understandable. And no one could dispute the notion that the site of the old gas station at the northeast corner of Golf and Arlington Heights roads desperately needs to be cleaned up.

But please, folks, this is reaching.

While no doubt well-intended, the exercise of eminent domain authority in this case would in effect be an abuse of government power.

The International Plaza is not the most vibrant shopping district in the suburbs, but neither is it the most dilapidated. It clearly is not, as the village board declared for legal purposes four years ago, blighted.

Blighted? Oh for goodness sake, does anyone genuinely believe that? Blighted describes parts of Cicero, parts of Gary. Blighted describes the riverfronts some communities have tried to re-energize with casinos. Blighted does not describe Arlington Heights, and it does not describe this plaza.

There are several healthy businesses in the shopping district, not thriving perhaps but not dying. Dozens of merchants have invested their savings and their hearts into it. Many of us believe that rather than being a detriment, the plaza adds flavor and texture to the community.

“For half a century,” the Institute for Justice declares on its Web site, “unrestrained local and state governments have taken private property not for ‘public uses’ such as for bridges or public buildings as permitted by the Constitution, but for private businesses in the name of ‘economic development.’”

This may be another example.

It is unclear whether the village will win if it pursues the case with inevitable and expensive legal battles through the courts.

The U.S. Supreme Court, in a widely publicized 5-4 vote a year ago on an eminent domain case in New London, Connecticut, ruled in favor of an exceedingly broad definition of “public use.”

In her dissent, Justice Sandra Day O’Connor warned that because of the ruling, the “specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

On the other hand, Illinois statutes on eminent domain are thankfully more stringent and municipalities must meet tougher standards in order to exercise eminent domain for economic development purposes.

In the end, we hope the village board bases its vote not so much on its legal case, but on its moral case.

All things considered, would redevelopment of that shopping center be nice? Possibly. Is it necessary? Probably not.

Chicago IL Daily Herald: http://www.dailyherald.com

Eminent domain cases can still go to state courts: Detroit MI Free Press, 10/1/06

Bloomberg News

The [US] House of Representatives has rejected a proposal to streamline the legal process for property owners appealing seizures by the government.

The legislation would have allowed property owners to advance their eminent domain lawsuits directly to federal court, bypassing state courts.

The legislation was drafted in response to a June 2005 Supreme Court decision that said government has the power to take land for purposes such as shopping malls and office parks.

The measure failed Wednesday to get the two-thirds support it needed for passage under an expedited procedure.

Rep. John Conyers, D-Mich., said the measure would have permitted land developers to shop for the most receptive court while making it harder for local communities to protect against the creation of waste dumps or adult bookstores.

Thirty state legislatures already have passed either statutory changes or constitutional changes to restrict the use of eminent domain for economic development purposes, according to Larry Morandi, director of state policy research at the National Conference of State Legislatures

Detroit MI Free Press: http://www.freep.com

Yes on 90 - Eminent domain must be curbed: Sacramento CA Bee, 9/30/06

Another View

By CA Assemblyman Doug LaMalfa

The Bee's opposition to Proposition 90 - the Protect Our Homes Act - is wrong (Sept. 16). Californians' homes, farms, small businesses and churches are at serious risk.

Under the U.S. Supreme Court's infamous Kelo decision, government can use eminent domain to take people's homes, businesses, farms and churches and offer them to another private party. Government reaps a windfall of increased sales and property taxes, and this windfall becomes the "public purpose" that justifies government taking the property.

California law also allows local governments to declare entire areas of a community "blighted," not just one or very few properties run-down and needing repair or government action. As reporter Steven Greenhut's book "Abuse of Power" highlights, every home, church and business in a "blighted" community - no matter how safe or well-maintained - can be taken by eminent domain.

The incentive to use eminent domain to obtain this windfall of tax revenues is particularly true because Proposition 13 limits property tax increases until property is sold or reconstructed.

Proposition 90 would protect our fundamental right to own - and keep - our homes and private property. It's called the American dream, and government should not be in the business of destroying it.

While The Bee and opponents of Proposition 90 claim "it can't happen in California," the Institute for Justice and Sacramento's Pacific Legal Foundation document some 250 new California cases just since Kelo was decided last year.

Want proof? Visit 704 K St. and ask the Joe Sun family. After 36 years of paying taxes, they're fighting so government won't forcibly move their clothing store, bulldoze their building and give their property to someone else. Why? So new owners can construct another, fancier building, and the city of Sacramento reaps the windfall of higher sales and property taxes every year from new tenants such as Z Gallerie, Lucky Brand Jeans and Sur La Table, a kitchen supplies retailer.

Is this fair? No. A legitimate "public use," such as building a school, a highway or a fire station? Of course not - but proof positive that it really can happen here.

When Cottonwood Christian Center fought having its property taken and given to Costco, the mayor of Cypress in Orange County decreed, "his key corner lot in our redevelopment zone will eventually develop large sales tax revenue." The Filipino Baptist Fellowship Church in Long Beach recently fought this same battle.

Churches don't generate tax revenue. You decide why government wanted to take their land: "redevelopment" or increased revenues?

Testimony before the House Judiciary Committee last year showed that in San Jose, 95 percent of all homes and businesses subject to "redevelopment" were owned by Hispanics and Asians, even though these groups represented only 30 percent of homes and businesses in the "redevelopment area."

Since the Kelo decision, five separate measures - two bills and three constitutional amendments - were introduced in the Legislature to address the problem of eminent domain for private use. All five were defeated in their first committee hearing. But thanks to the signatures of more than 1 million Californians, Proposition 90 is on the November ballot, and will end this threat to our homes, small businesses, farms and churches.

Real people - particularly minorities - know the threat of eminent domain and regulatory takings is real. The California Black Chamber of Commerce, National Federation of Independent Business, National Tax Limitation Committee and more all support Proposition 90. Protect our homes: Vote Yes on Proposition 90.

Sacramento CA Bee: http://www.sacbee.com

Assemblyman Doug LaMalfa, R-Richvale is honorary co-chair of the Protect Our Homes/Yes on Proposition 90 Committee: www.90yes.com

Talks likely on eminent domain: Asbury Park NJ Press, 9/30/06

Attorneys to set meeting on Long Branch homes

By Carol Gorga Williams

[Long Branch NJ] City Attorney James G. Aaron and Peter H. Wegener, the lawyer who represents several property owners in the MTOTSA [Marine Terrace, Ocean Terrace and Seaview Avenue] area, are to discuss a timetable to meet to talk about the possibility of a settlement of the eminent-domain case.

The two had run into each other this week, and "Mr. Wegener said to me, "Is there a chance of our getting together?' " Aaron said. He agreed, and they are expected to discuss a meeting time in the coming days.

This comes days after Councilwoman Jackeline Biddle offered to act as a mediator between the two sides, an offer one of her opponents, Brian A. Unger, called "purely political." The two are among five people seeking to fill a City Council term in November.

Biddle said Tuesday that eminent domain "has torn our community apart."

Aaron said he does not know what will be on the agenda of the meeting. Wegener's clients live in the [MTOTSA] beachfront neighborhood ... that is included in Long Branch's redevelopment plans.

"I don't know if they are talking value, if they are talking property swap or if they are talking revising the (redevelopment) plan," Aaron said. "Whatever it is, it is better to sit around and talk about it than not."

Although the meeting appears unrelated to Biddle's offer, Aaron said a "fresh face" could help. Biddle said she is uncomfortable with the use of eminent domain and would authorize its use only as a last resort.

Wegener said Thursday that he was reacting to a series of letters the city sent in August — unsigned — to individual property owners asking them if they wanted to meet to discuss a settlement.

Wegener said the letters were "totally inappropriate" because the city knew the property owners were represented by an attorney and all correspondence should have gone through him.

"The group of residents that make up the MTOTSA group has been effective because they are working together and have shown a great deal of unity," Wegener said. "Efforts to undermine and isolate individuals will not be productive."

Still, he said, "the line of communication between my office and Mr. Aaron's is open."

Several property owners in MTOTSA recently appealed state Superior Court Judge Lawrence M. Lawson's June 22 decision ruling that the city could use the power of eminent domain to take the ocean-view homes for redevelopment of the second phase of Beachfront North.

The Arlington, Va.-based Institute for Justice, a nonprofit law firm that is leading the nationwide fight against what it terms eminent-domain abuse, also has signed on to represent some property owners.

Gregory S. Russo, vice president of Applied Development, which along with Matzel & Mumford, a subsidiary of K. Hovnanian, constitutes developer Beachfront North II LLC, said he remains available to meet.

"From our standpoint, we are always willing to meet with any property owner and would welcome doing so," Russo said.

Mayor Adam Schneider, who appears to be a lightning rod for MTOTSA residents' anger, would likely not be part of the meeting, but Howard H. Woolley Jr., the city business administrator, would.

"I have no authority to do anything," Aaron said. "Everything would have to be subject to approval of the mayor and council and subsequent developers. . . . Would I encourage such a meeting? Of course. You always want to settle these things or at least attempt to."

At issue in negotiations is who has the "good faith" to see this through. In his decision, Lawson said the MTOTSA residents had failed to negotiate. The residents maintain it is the city that shut down talks.

That complaint rose again recently when Francis T. DeLuca, who is represented by attorney William J. Ward, tried to get the city to move on acquiring her home. DeLuca did not join the appeal that many MTOTSA residents are pursuing.

But Ward said Louis and Lillian Anzalone, whom he represents, are continuing the appeal.

"If they can negotiate, and they can reach settlements, that's great," Ward said of the other property owners. "Anzalone is continuing the appeal and has not asked me to negotiate with them. That doesn't mean we wouldn't do it. He just wants to stay in his house. We're going ahead as far as the appeal is concerned."

Unger on Tuesday pushed for a moratorium against the use of eminent domain, saying it could act as a "cooling off period" between affected residents and the city. But Wegener said he did not know about that.

The Lakewood attorney said the time was ripe for talking between the two sides as they await an appellate briefing schedule in the case.

"It is not as though we don't have the time or opportunity," Wegener said. "The concern is that there have been commitments made to the redeveloper . . . The properties designated for condemnation are those properties designated by the developer.

"There is an open line of communication between myself and Mr. Aaron," he said again. "Whatever is necessary for any discussions is there. The question is whether there is any common meeting ground."

Asbury Park NJ Press: www.app.com

Railroads employ eminent domain: Yuma AZ Sun, 9/29/06

By Jeffrey Gautreaux

When it comes to eminent domain usage by railroads, it doesn't seem to be a question of if they will get the property they need, but rather how much they will pay for it.

Arizona state law delegates the right to take property through eminent domain to railroads, which have long been considered a public use, according to Tim Keller, executive director of the Institute for Justice, Arizona chapter.

"I understand how people see (railroads) as private companies, but the courts have clearly established that condemnation by common carriers is a public use," Keller said.

The Sun previously reported that Union Pacific officials are researching Yuma as a route to ship cargo from 130 miles south of Tijuana into the United States. Landowners throughout Yuma told The Sun that they had been approached by Union Pacific officials about property acquisition.

Chris Peterson, the Union Pacific director of government affairs, previously stated in articles that the company had conducted preliminary studies, but the "project remains very uncertain."

Local farmer Bruce Easterday has no illusions about trying to fight the railroad if it should pursue eminent domain to acquire his property.

"We would need the state government supporting us to fight it. For simple folks — farmers out there — we couldn't stop the railroad on our own."

Easterday said he was approached by a Union Pacific representative about selling an option to purchase 200 acres he owns at County 13th Street and Avenue 3E for the potential rail line that would come up from Mexico, likely from a new superport planned for Punta Colonet.

James Barnes, director of media information, said Union Pacific uses eminent domain only as a last resort. He said if a property is needed, the corporation almost always finds a way to negotiate a sale price with landowners.

"We have the power of eminent domain, but we have almost never used it."

Barnes said using eminent domain requires the approval of the corporation's board of directors. He said the board has approved only two condemnations in the past six years, and those did not occur in Arizona.

Keller said common carriers include railroads and utilities. While these are private entities, they are used equally by the public — such as a power company offering electricity to all homes — and tightly regulated by government.

In most cases, Keller said, a railroad will make an offer for just compensation to a landowner. If the landowner refuses, the issue will go to court where a judge, or possibly a jury, will decide on the fair value that should be paid.

Union Pacific officials have said they are merely studying the possibility of creating a new line. However, local farmers say they have been approached about selling land for the line.

The Institute for Justice litigates cases for landowners who are having their property taken for private use, not for public uses. One of its most famous cases, litigated by Keller and another attorney, successfully defended the owner of a Mesa brake shop from attempts by the city to take his property to build a new Ace Hardware store.

But Keller said the agency has never defended anyone in a case with a railroad because it is so widely considered a public use. "Historically, railroads have been deemed a proper exercise of eminent domain," he said.

Under Title 40 of the Arizona Revised Statutes, the specific powers of railroads include the power to "take lands and materials to be used in the construction and maintenance of railroad and telegraph lines in the manner provided by law relating to eminent domain in the event such lands and materials cannot be obtained by agreement with the owners thereof."

And under ARS Title 12, the purposes for which eminent domain may be exercised include "rights of way, station grounds, pits, yards, sidetracks and other necessary facilities for railways."

Yuma AZ Sun: http://sun.yumasun.com

Hijacking Eminent Domain: Bait and switch with regulatory takings: new Jersey Eminent Domain Blog, 9/27/06

By Bill Ward

“They’re baiting you with eminent domain, telling you that this is going to fix eminent domain, and then they’re switching in regulatory takings, and actually getting you to vote for that, when you might not if you really knew what it was about.
Councilwoman Elaine Clegg, Boise, Idaho

Ever since the June 2005 Supreme Court Ruling in the Kelo case, eminent domain, its abuse, and related property rights issues have generated stories; and in turn, those stories have grown legs, appearing daily in all forms of local and national media – radio, television, print, and the internet. A disturbing trend has developed around eminent domain abuse issues, post-Kelo: Charlatans and opportunists are showing up in droves, and their tactics and misuse of the eminent domain abuse issue is hurting the movement.

The latest example is Howie Rich and his efforts to pass so-called “eminent domain propositions” and other measures in California and 12 other states. These stealth propositions are like wolves in sheep’s clothing. Using an emotional call to action (eminent domain abuse), these ballot initiatives really mean to prevent communities from passing zoning laws and prevent government from adopting zoning regulations because those laws will ultimately be considered “takings:”
In fact these provisions are not “takings” at all, but more like “givings.” They give special rights to big landowners and developers, whose demands for compensation cannot be met by local governments, and who will use the new law to remove all barriers to runaway sprawl.

So, who is Howie Rich? He is a New York real estate developer who has, over the years, donated millions of dollars to libertarian causes such as Americans for Limited Government, filtering his money through a maze of organizations. Despite his activities, Mr. Rich is not widely known. He is a 66-year old nominal Republican. He sits on the board of the Cato Institute of Washington, D.C., a libertarian think tank, founded by billionaire Charles Koch. Rich has also been active in the Libertarian Party. See last week's PBS special, Taking the Initiative.

Mr. Rich uses eminent domain abuse as the lead card in his hand, but the deck is stacked with other more controversial issues. His real focus is on so called “regulatory takings.” He equates the genuine outrage that many feel about eminent domain abuse to government zoning regulation or DEP regulation which restricts use. Government regulation, is in most instances, a legitimate exercise of the police power to regulate what can and cannot be done on a particular piece of property. Generally, regulation takes the overview and seeks to protect the greater community and the environment. In order to be a considered a “taking”, the courts have said that regulation must deny the property owner ALL beneficial use and enjoyment of the property.

What Rich is attempting to achieve, through public referenda in those states that permit such initiatives on their ballots, is a mandate that government must compensate property owners for diminution in value resulting from regulations which restrict use. Rich puts forth this proposal by equating takings for redevelopment, which are overwhelmingly despised, to legitimate regulations which are needed to control use. Let’s look at some of the practical effects in states where Rich’s proposals have either passed or are pending this November as reported in The Left Coaster:
In California, Howie Rich's baby is Proposition 90. The fine print in this proposition is that Californians are being asked to prevent government from using regulations except where there are health or safety issues without paying the property owner because regulations "take away" his property value. This proposition seeks to do what Measure 37 did in Oregon. As one of the first "takings" amendments that won passage in the United States, it is a sobering look at what Rich wants to achieve. Oregonians, even many who voted for the Measure, are distressed at what it means for their future.

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

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

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

The western states targeted by Rich have provisions in their state constitutions or statutory law that allow the passage of new laws by ballot initiative. New Jersey does not permit this. Whenever I see the New Jersey Legislature working its magic, I’m tempted to urge this system for our state. A good example where public referendum might be useful is A-3257, the Burzichelli Bill, which seeks reform of the Local Redevelopment Housing Law, N.J.S.A. 40A:12A-1, et seq. This bill overwhelmingly passed the Assembly and has languished in Senator Ronald Rice’s Committee of Community and Urban Affairs for the past six months. So, effectively, the bill is “dead.” Neither Governor Corzine or Senate President Codey have expressed a real interest in passing eminent domain reforms.

But imagine if we had the ballot initiative in New Jersey! It would then be possible for the people to regain the power that has been effectively seized and thwarted by their elected representatives. A ballot initiative would allow Burzichelli’s Bill, or a revised version more acceptable to property owners, to appear on the ballot and be voted into law directly by the people, and not held hostage by elected officials who refuse to act.

But, be careful of what you wish for. Ballot initiatives are susceptible of being co-opted by wealthy proponents of particular issues, like Howard Rich. Imagine what could happen to the Pinelands, the Highlands, and the Hackensack Meadowlands, which are governed by commissions and governmental regulations that limit growth in sensitive areas. This type of regulation would become too expensive for government to implement because government would be obligated to pay for the restriction of use. A regulatory restriction would then be deemed a compensable taking which must be compensated for by the government.

But the ultimate price the citizens will pay in deregulation is the loss of large swaths of precious land and resources to overdevelopment and sprawl.

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

Santa Rosa CA business group sues city to stop eminent domain

The Santa Rosa Area Business Association filed a lawsuit challenging the validity of blight findings in the newly created Gateways Redevelopment Project. The City’s use of eminent domain tops the list of concerns.

The Redevelopment Agency’s inclusion of eminent domain in the 1,102 acre project area was approved by the City Council in June 2006. The project area runs through the heart of the City and includes Coddingtown Mall, a shopping center that sold recently to Simon Property Group. Citizens were outraged when a letter from Coddingtown’s new owner was made public by the Santa Rosa Area Business Association (SRABA). The letter, addressed to the City Manager, Jeff Kolin, made it clear that Simon Property Group, the world’s largest shopping center owner, expects redevelopment funds to assist in construction of a new parking structure at Coddingtown. Conservative estimates of cost are $25-$30 million.

Citizens who are concerned about gentrification and the possibility that small businesses will be pushed out by large developers have hotly contested the adoption of the Gateways Redevelopment Project. The citizens advisory committee on the Gateways Redevelopment Project voted against it, and recommended that it not be adopted. After the City Council did adopt the ordinance, a referendum drive launched by SRABA failed to gain sufficient signatures to place Gateways on the ballot. At the bidding of its members, SRABA hired a law firm to file the suit.

According to SRABA’s vice-president, Rosa Koire, “Small business and property owners do not want the threat of eminent domain hanging over them for 12 years. Our concerns are real.” The Redevelopment Agency will have the power to take private property for private use for 12 years.

“Let the court decide.” Koire said, “Santa Rosans deserve protections from eminent domain and against windfalls for big developers. It’s un-American to transfer private property to private individuals. We are confident that we will prevail in fighting this unjust practice.”

Rosa Koire
Santa Rosa Area Business Association
Box 14842
Santa Rosa CA 95402
707-575-3036 or 707-576-9476


Eminent domain use gets 'no' vote: Today's Sunbeam, Salem NJ, 9/29/06

By Christopher Weir

[Pittsgrove NJ] Township committee members have voted not to use eminent domain at a redevelopment zone, but allowed themselves the option of instituting it in the future, according to officials.

The committee also continued to work on the redevelopment zone area that is expected to lower taxes in the township.

Eminent domain allows government to take private property for projects for the overall public good.

The eminent domain language was instituted into the township's redevelopment plan for the area at Landis and Gershal avenues. The redevelopment zone is expected to bring in several businesses to the township and lower taxes in the community by increasing township ratables, according to the committee.

The committee had four options to choose from on the eminent domain issue, but determined that there were no properties in the area that it is necessary to enact eminent domain in order to acquire, according to Clerk Constance Garton. The eminent domain language adopted by the committee this week will only apply to the redevelopment zone.

Mayor Peter Voros said the committee felt it was the best option for residents.

"We've decided on verbiage that will protect the residents of Pittsgrove," Voros said. "If it's needed in the future, we'll address it at that time, but will do so in a way where our residents will be protected."

Voros said the committee has been working with the economic development committee to create a plan for the redevelopment zone.

The project at the zone will include the demolition of the building currently on the property, which used to be the U.S. Grain and Seed Building. The property has significant value because of its proximity to a railway line.

The committee also passed a motion to send an application to the New Jersey Department of Community Affairs to have the Landis Avenue area designated as a redevelopment zone.

Voros said having the area recognized by the state will enhance the area financially, allow the township to obtain low interest loans from the state to develop the area, and make it more attractive to companies who are considering locating their businesses there.

"It gives potential companies a cut and dry idea of what they need to do to place their business there," Voros said.

"Our quest is to increase the ratables in the township to lessen the tax burden on our longtime residents and senior citizens," Voros said. "That's our number one priority. We're not leaving any rock unturned to try and lower taxes for our residents."

Today's Sunbeam, Salem NJ: http://www.nj.com/news/sunbeam

Eminent domain at center of forum: Contra Costa CA Times, 9/29/06

[Hercules CA] City Council candidates offer opinions on Wal-Mart, future of waterfront area

By Tom Lochner

Hercules City Council candidates at a taped roundtable forum Thursday exhibited substantial consensus on important issues in the city.

Yet despite the collegiality, the candidates spoke at times with passion, especially when it came to arguably the most controversial topic in recent years: Wal-Mart and eminent domain.

The candidates are incumbent Trevor Evans-Young, the current mayor; planning commissioner Joe Eddy McDonald; former human services commissioner Ed Sharp; and former Mayor Kris Valstad.

In May, the council voted to invoke eminent domain to force a sale of the retail giant's 171/4-acre lot near the waterfront, where it has sought to build a store. Wal-Mart's last scaled-down application was for a 99,000-square-foot store.

A coalition of Wal-Mart opponents urged the council to hold fast to a 64,000-square-foot maximum store size under a 2003 development agreement, a figure Wal-Mart has categorized as a guideline, not a size limit.

Evans-Young, part of the council that voted unanimously for eminent domain, reaffirmed his position Thursday, saying Wal-Mart had no right to "dictate" its terms to Hercules. The other candidates agreed emphatically that the council did right in May and should not reconsider.

Asked by moderator Lisa Vorderbrueggen of the Contra Costa Times how Hercules should pursue retail sales taxes if there is to be no Wal-Mart store, all four candidates said the waterfront - where a transit village, Capitol Corridor train station and ferry terminal are planned - can be a magnet for small, upscale businesses and their customers.

Sharp said the city needs to "market" itself, a notion the others agreed with, and also promote locally owned businesses.

McDonald said, "We could be the Sausalito of West County if we market it (the waterfront) right."

As an example of what marketing can do for Hercules, Valstad cited North Shore Business Park, which was stagnant until a marketer took charge and is home today to internationally known Bio-Rad Laboratories as well as smaller businesses.

All four candidates urged voters to reject Proposition 90, which would restrict governments' powers to acquire property by eminent domain. Evans-Young said Prop. 90 proponents invoke the image of the "little old lady" forced off her property, giving a false picture of the way eminent domain is used in California. The other candidates agreed.

Contra Costa CA Times: http://www.contracostatimes.com

Tuscaloosa Business Owners Fight Eminent Domain Takeovers: NBC-TV13, Birmingham AL, 9/28/06

Some Tuscaloosa [AL] residents are fighting the city - and winning.

The city’s government is confiscating private property downtown, but some said citizens are not being offered enough money for the property being taken.

By 2009, Tuscaloosa’s city leaders plan to have a new federal courthouse in place of a number of small businesses. The area has been designated as a blighted property, so legally, the city can force property owners to sell using the power of eminent domain. The question is, though, how much is the property worth?

For Jimmy Birmingham, the $98,000 the city offered him wasn’t enough.

“Not to me it’s not,” said Birmingham.

Many of his neighbors are protesting the city’s offers as well.

“We all want what it’s worth or what we think it’s worth. We may be out of line, but we think they’re out of line, so that’s why we’re going to probate,” said Birmingham.

Now an independent panel is re-evaluating the city’s offers.

“(The appointed panel) protects the property owners from the government simply taking their property and not paying fair market value,” said Judge Hardy McCollum.

There are six disputed offers and so far the panel has ruled in the city’s favor once and with the business owners twice.

“There’s never, in the end, an easy way to do this. But we’re trying to do it the best way possible,” said Tuscaloosa Mayor Walt Maddox.

Maddox said the panel’s decision shows the checks and balances of the law are working. He said he expected protests from property owners.

“It’s not easy when you have 16 blocks of blighted property you’re trying to upgrade so we can make this good city a great city,” said Maddox.

The debate isn’t expected to delay the courthouse’s groundbreaking, which is scheduled for next August. The panel will evaluate the three remaining disputed properties in the next few weeks, including Birmingham’s barbershop.

“I have my fingers crossed,” said Birmingham.

NBC-TV13, Birmingham AL: http://www.nbc13.com

Politicians share views on eminent domain: Asbury Park NJ Press, 9/28/06

By Carol Gorga Williams

[Long Branch NJ] Councilwoman Jackeline Biddle, targeted earlier this month for her failure to detail her position on the use of eminent domain in the city's ongoing redevelopment process, said the controversial practice should be used only as a last resort.

She added, however, that in sections of the redevelopment where contracts already were signed with developers, it would be too damaging to the city to breach those contracts and face "multimillion dollar" lawsuits by developers.

At a press conference Tuesday, Biddle clarified her position, saying she had formulated it after reading the city's redevelopment plan and the June 22 decision by Superior Court Judge Lawrence M. Lawson that ruled the city could use eminent domain to acquire properties in the Marine Terrace, Ocean Terrace, Seaview Avenue area. She also cited meetings with Mayor Adam Schneider, city council members, MTOTSA community members and others.

To those directly affected by eminent domain, "I will utilize my position as a city leader to be an advocate for you, and I will fight for you to find every possible solution," Biddle said in a statement, sentiments she echoed during her press conference.

"My hope and my belief is that there are still ways we can resolve these issues without having to resort to the use of eminent domain," she said. "Toward that end, I would like to sit down with my colleagues on council, the developer and the residents of MTOTSA and their representatives in order to open the lines of communication with the goal of facilitating a compromise that is in the best interest of all parties involved."

As she prepared for her news conference, Brian A. Unger, one of her opponents in the November special election to fill the remaining term of former Councilman John Zambrano, was conducting his own. Unger offered a resolution he wants the council to endorse that asks cities to voluntarily curb their use of eminent domain, and called upon the Legislature, Gov. Corzine and Congress to put restrictions in place to protect citizens from eminent domain abuse.

Unger said if the council approved the resolution, it could act as a "cooling off period" between city officials and those who oppose what they call eminent domain abuse.

MTOTSA is appealing Lawson's decision, and Unger acknowledged he once offered to allow the Seaview Avenue portion of MTOTSA be redeveloped, in an effort to secure a compromise with city officials.

"I've talked with Brian about this issue," Schneider said. "It is quite clear there is no legal authority for the governor to declare a moratorium. I'm a little puzzled because" Unger acted as a MTOTSA advocate for a time but gave it up "because he didn't think their position that the entire area needs to be saved was reasonable. I find it somewhat disingenuous — "Stop what you're doing' on one hand and claiming he wants the redevelopment to continue" on the other.

Unger challenged an opinion by the nonpartisan state Office of Legislative Services (OLS) that determined Corzine did not have the power to enact a statewide moratorium. Unger said he based his position on research by William Potter, a Princeton lawyer who heads Stop EDA, a statewide group formerly known as the New Jersey Coalition Against Eminent Domain Abuse.

Potter said Wednesday he did not agree with the state office.

"OLS has traditionally been very deferential to legislative prerogatives in the separation of powers area," said Potter, noting the OLS also issued opinions that governors Tom Kean and Brendan Byrne did not have that power, which they yielded anyway.

During a recent interview with the Asbury Park Press editorial board, Corzine said he was not in favor of a statewide moratorium.

Corzine said it would have to be decided "on a case-by-case basis" and that he does not "want to do a broad moratorium that doesn't reflect the differences in blight."

"I think we have the tools to make sure eminent domain is not abused," he said.

Robert H. Levin, section chief of the OLS's Local Government section, said the governor could order a moratorium only in very limited circumstances.

"The answer is eminent domain is an inherent power," he had said in May. "It exists without any special authority. It is just a power of government, like taxation."

The governor, Levin said, could order a moratorium be enacted upon the state departments he controls, or he could cut off state funds to communities using eminent domain, although that act would likely be challenged in court, and the governor would probably lose, Levin said. For "municipalities, he would need a legal basis, if he could show there was some dire emergency — after a hurricane, flood, something that is catastrophic" then he could have the power, Levin said. "I don't think such an emergency exists.

Meanwhile, three other council candidates — Michael P. Sirianni, Vincent J. Maccioli and Ralph A. DeFillipo Sr. — are in agreement about eminent domain and MTOTSA and do not support use of the power there.

Asbury Park NJ Press: www.app.com

Kudos to Lansing for eminent domain limit: Adrian MI Daily Telegram, 9/28/06


At issue: The new state law sponsored by Sen. Cameron Brown limiting use of eminent domain to appropriate private property.

Our view: This law clarifies the rights of Michigan residents and rolls back government power to reasonable levels.

One of the more important laws passed by the Michigan Legislature this past term received less attention than it deserved.

Public Act 368, sponsored in the Senate by Cameron Brown, R-Fawn River Twp., tightens Michigan law regarding when government may invoke eminent domain to seize private property. The timing was excellent in view of misguided federal court rulings on the topic as well as a recent case in Monroe County and shrinking open space nationwide.

Under the new law, signed Thursday by Gov. Jennifer Granholm, state and local governments may only use eminent domain to take private property if the government can prove a public use and if affected property owners are paid at least 125 percent of fair market value. It also restricts the ability of government to declare an area “blighted.”

It prohibits taking property for economic development projects, enhanced tax revenue or use by private companies.

The new law was prompted by the U.S. Supreme Court ruling last year in the Kelo v. New London case that allowed a city government to condemn homes in order to turn land over to a private developer. The ruling further eroded the U.S. Constitution’s Fifth Amendment’s guarantee that private property cannot be taken for public use without just compensation — and we have no doubt the framers intended that private property should not be taken for someone else’s private use at all.

The Kelo case occurred in Connecticut, but nearby events show a threat exists in Michigan. Last week a group of Erie Township property owners sued US Rail Corp. of Toledo, saying the railroad had threatened some residents with eminent domain if they refused to sell. It’s possible a court may find the railroad’s plan to acquire 300 acres for a railyard to be a legitimate public use. However, Brown’s bill ensured some of the more abusive tactics — seeking “blight” status or inadequate payment, for example — will no longer be legal.

Similarly, Proposal 4 on the November ballot would make the same limits contained in PA 368 part of the state constitution. Brown indicated backers of eminent domain reform had hoped one or the other, and ideally both, would win passage. That seems likely given the broad support Brown’s bill enjoyed. He reported working with more than a dozen groups ranging from the Michigan Association of Counties to the American Civil Liberties Union.

It isn’t enough, though, that a coalition of groups believe Michigan residents needed PA 368. It’s important residents themselves understand why they need to keep eminent domain tightly restricted. Hopefully, those who govern will consider the new costs and restrictions before they contemplate taking anyone’s private property.

Adrian MI Daily Telegram: http://www.lenconnect.com

Families who lost Snowden land to eminent domain question development deal: Athens OH News, 9/28/06

By Nick Claussen

After Jim McHarg's father was forced to sell much of his land in the late 1960s to make way for the Lake Snowden reservoir, he never set foot on the land again, even though it was adjacent to his remaining property.

After Todd Bean's father was forced to sell his property for the reservoir, he never wanted to talk about it again, and Bean knew not to ask his father about it.

Many of the families who lost their land to the Lake Snowden project did not want to sell, and they were upset for a long time about losing their land to the flood-control/park project.

Now, these families are upset that the land that was taken from them may be sold to a private developer who will profit from it.

The Margaret Creek Conservancy District took over the property in the 1960s by eminent domain to build a flood-control reservoir. The actual lake was created on land that once was farmland.

The conservancy district sold the property to the Le-Ax Water District in the 1980s so the district could use it as a water supply. In 1998, the water district, no longer needing the lake for water, sold the property to Hocking College to be used as a land lab.

Now, Hocking College is discussing selling part of the park property to the Moondance development group so that a hotel, condominiums, single-family homes, a restaurant and other commercial properties can be built there

Many people in the community are upset about losing public access to part of the park, and some are concerned about the college selling off public lands for a profit.

Several people have questioned whether it's even legal for the park to be sold to a non-public entity.

Sale and park-creation legal documents from the 1960s seem to indicate that the land should remain as public property. The documents state that the land should be open "for the use of the public generally," and that the land should be sold only to a public agency that will operate and maintain the property and keep it open to the public.

Whether or not those documents still apply today and how they apply to this proposal is up for debate.

Mary Ann Hawk, district conservationist for the U.S. Department of Agriculture's Natural Resources Conservation Service, has a file full of documents and information on Lake Snowden in her office in The Plains. On Monday, she said that her office is looking into several issues involved with the development of Lake Snowden, including whether it's legal or not for the college to sell the land to a non-public entity.

Hocking College President John Light has stated that the college's legal representatives have researched the issue and believe that it is legal for the college to sell part of the park to a private developer.

WHETHER IT'S LEGAL is one thing, and whether it's fair is another, according to members of a few families who lost their land to the park.

"My family's farm had been in the family for well over 100 years," Bean said Tuesday. The farm had been passed down through the generations, and his father thought he would pass it on to his children.

"My father had an attachment to the land that I think is rarely seen today," Bean said. His father refused to sell, but eventually was forced to do so, he recalled. His father was paid for the land, but he could not find another property where he could move his dairy farm, so he left the farming business, according to Bean, a former mayor of Albany.

"It changed his entire style of life when this occurred," he said.

Now, Bean and his family are watching as the property that they and their neighbors lived on is sold again, and possibly will be turned into condominiums, single-family homes and businesses.

"Something is not right. I don't know what is not right, but something is not right," Bean said. Some of his family members believe that since the land was taken from them by eminent domain, the land should be offered back to them if it is being sold, Bean said. He is researching this and has not been able to find anything on it yet, and he doesn't know what his family would do with the property anyway.

"What do you do with a lake?" Bean asked. It's not an issue about money, Bean said, but rather about the families being treated unfairly and being upset further by what is happening now.

McHarg, who lives across U.S. Rt. 50/Ohio Rt. 32 from the entrance to Lake Snowden, said he walks in the park almost every morning.

McHarg does not like the idea of a restaurant selling alcohol on the park property, and he doesn't like the idea of all of the houses and other projects being built on the land either. He sees how busy Lake Snowden is throughout the year and can't understand why the college is losing so much money on it.

McHarg added that the people who camp at the lake bring a lot of revenue into the community, and he would hate to see the camping taken away by the development.

MCHARG'S FATHER NEVER wanted to sell the land for the park, and he never got over it.

"My father never set foot on the property over there after they took the land from him," McHarg said.

Joyce Bobo of Albany said her family also lost part of their farm when Lake Snowden was built.

Her grandfather was not a well-educated man, but he worked very hard to buy his farm, and then he worked even harder to purchase another farm, Bobo said.

"There was a farm for each one of his children when he passed away," she said. The Lake Snowden project took parts of the family farms, she added.

The flood-control project benefits the community, but Bobo is upset that the land is now being sold to private developers.

"I think that's wrong," she said. Just because the land was taken from her family nearly 40 years ago still does not make it right for others to be making a profit off of the land today, she said.

Athens OH News: http://www.athensnews.com

All for the Taking (2005): 21st Century Urban Renewal

Free screening of All for the Taking (2005): 21st Century Urban Renewal, a film on Eminent Domain uses and abuses.

In a controversial, precedent-setting decision in mid-2005, the U.S. Supreme Court ruled that the Constitution permitted local governments to use their power of eminent domain to forcibly acquire and transfer private property. This film examines the uses and abuses of eminent domain by the City of Philadelphia as it attempts to redefine itself through "urban renewal.”

October 5, 2006 - 5.30 pm refreshments, 6.00 pm. screening
University of the District of Columbia
David A Clarke School of Law
4200 Connecticut Ave.
Building 39, Room 201

Dr Deirdre Evans-Pritchard: 202-274-6256, devans-pritchard@udc.edu


Proposition 2 - Eminent Domain, Regulatory Takings: KBCI-TV2 Boise ID, 9/26/06

By Thanh Tan

One of the issues [Idaho] voters will decide this November is Proposition 2.

The initiative has two major components.

First, it reiterates a law already passed by the legislature this year that prohibits local governments from condemning private property for economic or private development.

Second, it gives property owners the ability to seek compensation if government restricts how they can use their land.

Supporters say it protects land and homeowners, but critics say it's a scam that's bad for Idaho.

Several years ago, Glenn O'Dell of Melba tried to break up his land into four parcels for his kids' inheritance.

"I just want to be allowed to give my kids a lot without spending $75,000 in fees," he told CBS 2 News.

O'Dell says Canyon County re-classified his land and made the process so hard, he eventually had to file for bankruptcy and move out of his home.

"It was insulting. I'm a veteran. That's not at all what I thought the rule of law and our county government was supposed to do," O'Dell said.

Needless to say, he supports Proposition 2.

Initiative organizer Laird Maxwell says this measure will help property owners like O'Dell.

"Everybody who owns a home. Everybody who wants to use their property in a manner that is approved by law when they bought the piece of property - this proposition gives them an insurance policy," Maxwell told CBS 2 News. "What you bought your land for, what you're using it for - you can do (whatever you want with) it next year, the following year, and five years down the road."

Dan Chadwick is executive director of the Association of Idaho Counties. They have teamed up with the Association of Idaho Cities and other entities to oppose the initiative.

He says Proposition 2 will cheat taxpayers.

"I think they're pulling a scam and they're not being honest with the voters," Chadwick said.

"Those are all more false claims being bandied about by the cities and counties," Maxwell responded.

If Proposition 2 passes, the Attorney General's office acknowledges its constitutionality could be challenged in court - and that could cost taxpayers a lot of money in legal fees.

"That potential is there, and it's one of those things where it's a new area of law within the state," said Deputy Attorney General Brian Kane.

Kane reviewed Proposition 2 for the attorney general's office and says it may be vulnerable to challenge in court because it addresses eminent domain and regulatory takings.

Idaho's constitution only allows one issue per initiative.

Voters like Michael Devitt of Boise are leery of that prospect. He lives in a historical neighborhood and says he's worried Prop 2 may take away land-use protection laws and force taxpayers to pay for millions or even billions in regulatory takings claims.

"You know, someone's trying to pull a fast one here," Devitt said. "I'm afraid that in some of these communities, if we tie the regulatory agencies hands, what we're going to end up with is growth that's really out of control. Planning and Zoning can't deal with it and you get kind of a hodge podge (of developments in the community)."

He and other critics are concerned Prop Two uses an emotional issue like eminent domain as a front for a different agenda.

"I think we're creating a huge nightmare for local government," Chadwick said. "They'll be in a position where if they make a decision and it somehow diminishes somebody's property, they'll pay. If they don't make a decision and it diminishes an individual's ability to develop their property - they will pay. It's a catch-22 for cities and counties."

Proposition 2 is based on a measure that passed in Oregon two years ago.

KBCI-TV2 Boise ID: http://www2.kbcitv.com

Eminent domain still possible for proposed transit center land: Santa Maria CA Times, 9/26/06

By Malia Spencer

Santa Maria city officials are continuing talks to purchase nearly three acres for the eventual location of a municipal transit center, even as they are taking steps that could trigger eminent-domain proceedings against a local land company.

The 2.8-acre site, at the southeast corner of East Boone and South Miller streets, was identified as the future location of the city's “intermodal transit center.” City staff have been in negotiations with the property owner, La Brea Land Company, for about a year to acquire the site.

The city made an offer in mid-August, and La Brea Land has made a counter offer, officials said. Neither the city nor the landowner would comment on their respective offers.

Though talks are continuing, the city is preparing a “resolution of necessity” to take to the City Council on Oct. 3.

The resolution is the first step in the eminent-domain process. Eminent domain is the power of government agencies to take private land for a public project as long as the landowner is compensated.

“Until we resolve the matter and an offer is accepted we are proceeding with a resolution of necessity,” said Santa Maria Principle Engineer Bruce Nybo.

He added that the city does not want to take the issue to the next level and proceed to court. Instead officials want to continue talks with the land company.

“We anticipate an amicable settlement,” Nybo said.

Michael Parry, president of La Brea Land, acknowledged that eminent domain is a threat, but added he hopes further talks will render a fair solution.

“(Eminent domain) is definitely the route they will take if they have to,” Parry said of the city. “We hope it is not necessary.”

He added that any complications with the negotiations have been addressed and solutions are proposed in the counter offer.

If the two sides are to continue negotiations, then why look at eminent domain?

The answer, according to Nybo, can be found on the Nov. 7 ballot and Proposition 90.

The Government Acquisition, Regulation of Private Property initiative would amend the state constitution to alter the rules allowing government to take private property.

Should the new provisions pass in November, Nybo said, it shouldn't affect the city's plans, but with a resolution already approved, the project could be grandfathered in.

This is the second time eminent-domain proceedings have been suggested for this piece of property.

The first suggestion for a possible resolution of necessity came in September 2005 when the city was offered a 30-year land lease for the property.

However, after city staff went over the numbers, the City Council decided to pursue purchasing the land - even if it meant going to court.

Once the property sale is worked out, the site will be home to the city's transit center, which would offer a central location for riders of Santa Maria Area Transit, the Guadalupe Flyer, the Amtrak shuttle, San Luis Obispo Regional Transit Authority and the Breeze.

Initial project plans propose a 3,000-square-foot building, an 87,000-square-foot parking and loading area, and 53,000 square feet of landscaping.

Talks between the city and La Brea are occurring at the same time as the pending sale of the Santa Maria Valley Railroad, which owns La Brea Land. However, the land company is not part of the railroad sale.

Any eminent-domain proceedings are not expected to complicate the sale of the railroad, which is expected to be finalized and made public in the next week, Parry said.

Santa Maria CA Times: http://www.santamariatimes.com

New development poses “eminent domain” theat to established residents: Tehachapi CA News, 9/27/06

Local homeowner feels pushed aside by new development

By Carin Enovijas

Last week’s city council meeting gave citizens the opportunity to express growing concerns regarding the ever-increasing presence of new home developments inside the city.

Other issues that have been raised previously, such as residents not being properly notified by the city of pending construction, and the correlation between the number of new homes being built and the local real estate market’s recent softening, echoed throughout the meeting.

Uncharacteristically, the biggest, and clearly the most emotional issue raised, concerned the smallest proposed development.

Although a new tract map for only 18 new homes was ultimately approved by the council, one long-time area resident’s home was at the core of the council’s deliberations.

Those 18 homes represent a fraction of the 887 dwellings that are currently in some stage of development, surrounding the two acre parcel of one Tehachapi resident.

A home at the heart of the matter
“We’ve been notified that the road [Pinon Street] goes through our garage and the city has told me there’s nothing I can do about it,” Timothy Dunn said to the council.

Timothy and Donna Dunn have lived in Tehachapi since 1992. Eight years ago, they carefully chose and purchased their “dream home,” located at the “end” of West Pinon Street which, for now, remains a dirt road.

However, according to Tehachapi’s City Manager, Jason Caudle, and the city’s General Plan, Pinon Street occupies a section line, which means that it is considered a “major collector,” that may eventually require widening to four lanes of traffic. At the very least, Caudle said it will definitely be paved with two lanes, connecting Curry Street and Tucker Road.

“The idea is that eventually Mr. Dunn’s property will be redeveloped as something else. It sits in the path of development. That property will be sold and developed for higher use to a new owner. At some point that road will be widened and will someday be a major thoroughfare,” Caudle said.

The subject of “eminent domain” was casually raised by the city’s attorney, Tom Schroeter.

“If you take my garage, you take my whole property. Someone’s going to pay for the stress,” Dunn said.

Caudle said he doubts that eminent domain would become an issue and that the city would not be one to develop the property.

“The owner only sells it [his property] because it will make him money,” Caudle said citing Red Apple Road as an example of eminent domain. “The county probably had to buy property to make Red Apple Road as a benefit for the many to the detriment of the few,” he said.

Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of public projects such as roads, military installations, or public buildings. Under the Fifth Amendment of the U.S. Constitution, property owners must be adequately compensated for private property.

“Maybe someday your property will be very valuable,” Mayor Pro Tem Deborah Hand told Dunn.

Ultimately, Caudle assured Dunn that he will work with him regarding noise issues, and that for now the road can be constructed to avoid Dunn’s property.

Aside from the threat of eminent domain, the Dunns said that for three years they have been seriously inconvenienced due to current construction projects that have intermittently blocked their road or driveway, interrupted all of their utilities at various times and caused landslides of mud in their backyard due to the erosion from grading the fields surrounding their property, among a long list of other claims.

The Dunns said that they were first made aware of the development in their area when they came home from work to find a series of stakes lining the roadside leading straight to their driveway.

According to the Dunns, the city had sent notification of the new development adjacent to their property to their old address, even though they had no trouble billing them for city services at their correct address.

The Dunns also said their utility meters have been moved several times, a fence was taken down, a tree was cut, ditches have been dug and left exposed, all without their permission.

Dunn appealed to the city for more support and intervention with the developers.

“We have a good relationship with the developers and we tend to get success as a result. I will work closely with Mr. Dunn to ensure his concerns are addressed,” Caudle said.

Tehachapi CA News: http://www.tehachapinews.com

Bluffs Give Go-Ahead To Eminent Domain Buy: KETV-TV7 Omaha NE, 9/26/06

Dozens Of Properties To Be Taken Over By City

The Council Bluffs [IA] City Council gave the city manager the go-ahead on Monday night to acquire dozens of properties under existing eminent domain laws.

Council members had to make that decision this week, because the state's eminent domain law changes next week. After Oct. 1, the law in Iowa becomes much more restrictive. Until then, the city can take a property that needs to be developed.

"What we're doing is giving staff the option to work on and negotiate within those parameters," said Councilman Darren Bates.

"I'm not comfortable with putting 60 properties on the list at one time," said Councilman Matt Schultz.

All the properties on the eminent domain list are already part of the city's urban renewal project. The city has already been developing them, but chances are it won't develop all the properties on the list, officials said.

KETV-TV7 Omaha NE: http://www.ketv.com

Riviera Beach residents sue to block eminent domain proceedings: Bradenton FL Herald, 9/26/06

By Stephen Majors, Associated Press

Four property owners sued the city of Riviera Beach on Tuesday to stop the government from razing their properties for a $2.4 billion waterfront redevelopment project, which they say blatantly violates Florida's eminent domain laws.

The Institute for Justice, which argued against redevelopment in a Connecticut city in a U.S. Supreme Court decision last year, filed the 48-page lawsuit in Palm Beach County circuit court on behalf of the four individuals. Hundreds of residents could be displaced if the project goes through.

"We are seeing this around the country," said Bert Gall, a senior attorney for the institute. "It's really important that cities who are engaged in illegal land grabs know they have to obey the law."

The Supreme Court decision allowed the city of New London, Conn., to take private property for economic development that would result in higher tax proceeds - a public benefit in the court's view. The decision reverberated around the country, and 30 states, including Florida, revised their laws in an attempt to prevent takings for economic development.

Despite the new Florida laws passed earlier this year, Riviera Beach Mayor Michael D. Brown is pressing forward with plans to develop a marina, restaurants, hotels and luxury condominiums. Brown said redevelopment is crucial to resurrect "a city that is strife with unemployment, strife with crime, strife with all the evils and misfortunes of urban communities across this country."

Brown lashed out at the Institute for Justice.

"If they were about justice, they would be down here assisting us in trying to help rescue the community," he said.

Princess Wells, one of the residents named in the lawsuit, disagrees with Brown's rationale.

"Does better mean when you have more money you're better than me when I don't have as much money?" said Wells, who built her house with her husband 20 years ago and is waiting to make hurricane repairs. "You go home every day and you don't know whether you are going to be able to keep your house."

The Institute for Justice said the city has no legal standing against a Florida law that is now one of the strongest in the country. But Brown said the city's development agreement with Viking Inlet Harbor Properties was already in place before the law, and tax revenue projections were already made. The city unsuccessfully lobbied for exemptions during this year's legislative session.

A day before Gov. Jeb Bush signed the new restrictive law in May, Brown called a special meeting so the city and the developer could sign an agreement that included the use of eminent domain powers. Two residents sued the city, arguing the contract should be nullified because the meeting violated Sunshine Laws requiring advance notice for public meetings.

Another pair of residents sued the city in June, arguing that taxpayer money shouldn't be used for eminent domain proceedings.

Bradenton FL Herald: http://www.bradenton.com