Nevada's Eminent Domain Initiative Would Limit Property Seizures: KLAS-TV8, Las Vegas NV, 10/12/06

A proposal on Nevada's Nov. 7 ballot to curb the power of government to seize private property is part of a national effort that has relied heavily on a wealthy New York real estate investor who believes in limited government.

Howie Rich's Americans for Limited Government advocacy group has kicked in more than 80 percent of the reported $217,078 in contributions for Question 2, which would amend the Nevada Constitution to restrict the government's ability to take private land through eminent domain.

The plan, known as the People's Initiative to Stop the Taking of Our Land, or PISTOL, has strong support, judging from a September poll commissioned by the Las Vegas Review-Journal. It showed 60 percent voters supported the question while 20 percent opposed it and the rest were undecided.

The proposal survived a legal challenge but was narrowed in scope by the state Supreme Court. Even in its scaled-back form, opponents are warning that it would drive up government costs and also result in major losses of federal funding.

Terry Murphy of Nevadans for the Protection of Property Rights, which is fighting PISTOL, says a new analysis shows the state's currently proposed road-building projects could jump in cost by several billion dollars if the plan is approved.

Murphy also says Las Vegas attorney Kermitt Waters, one of the main backers of the plan, stands to collect big legal fees by encouraging landowners to fight for more than the appraised value of property needed by government agencies.

As for Rich, the libertarian who has funded Question 2, Murphy adds, "We don't want him dictating public policy in Nevada."

If Question 2 wins voter approval, it still would need to go to voters again in 2008.

In that case, Murphy says her group's strategy would be to get lawmakers to pass a law in the 2007 legislative session that would help control eminent domain powers but not create all the problems she sees in Question 2.

With a new law on the books, the opponents could then mount a strong campaign in the 2008 election cycle to try to block final approval of Question 2.

Don Chairez, the Republican attorney general candidate who has joined with Waters in pushing Question 2, says the plan's critics are using scare tactics to try to defeat the measure.

While it would be a powerful tool in fighting unfair eminent domain proceedings, Chairez said Question 2 wouldn't undermine the ability of local government to keep pace with demands created by growth - especially in booming southern Nevada.

"All we want to do is to prevent land from being taken from someone and then turning it over to private developers," Chairez said."

National efforts to limit eminent-domain powers gained momentum after the U.S. Supreme Court ruled last year that a Connecticut city could seize homes and turn the land over to a private developer as part of a redevelopment project that included condos, a hotel and commercial space.

Voters in at least 10 states - California, Florida, Georgia, Idaho, Michigan, Montana, Nevada, New Hampshire, Oregon and South Carolina - will consider ballot measures next month that would bar the government from taking private property for another private use, according to the National Conference of State Legislatures.

Under Nevada's Question 2, property taken by eminent domain would have to be offered back at the original purchase price to its original owner if it's not used within five years.

Clark County Commissioner Bruce Woodbury, a leading critic of Question 2, has said that would conflict with federal rules which require fair market value to be paid in such cases. He and other critics say the provision also would make it tough for government entities to save taxpayer dollars by buying property for future roads at current prices.

Other provisions require the government to pay the highest potential price for land taken through eminent domain, and free property owners from attorneys' fees in any legal action.

KLAS-TV8, Las Vegas NV: http://www.klas-tv.com

Proposal 4 - Eminent domain standard needed, but amendment has poison pill: Lansing MI State Journal, 10/12/06


In 2005, the U.S. Supreme Court set off a national flurry of legislative action on eminent domain - the power of government to seize your property whether you like it or not.

Part of that flurry resulted in Michigan's Proposal 4, a constitutional amendment to limit government's land-taking power.

Limits are needed. Unfortunately, Proposal 4 is simply too flawed a vehicle to bring them about. We urge a "no" vote on Proposal 4 - and new action by the Legislature to create a better constitutional amendment for voter review.

Prop 4's basic premise is eminently sound: Government power over land takings must be strictly controlled, and focused solely on situations that create public assets.

This is the traditional aspect of eminent domain - the government can take your land, at a fair price, to build a road, for example.

But legal actions in 2004-05 highlighted a conflict of thought on eminent domain powers. In 2004, the Michigan Supreme Court rightly overturned a 1981 precedent that had allowed government to act as a land agent for General Motors, seizing land to build a plant.

The argument behind such seizures was that GM's plant was of a greater public benefit than what the existing landowners were doing with their property.

The 2004 Hathcock ruling rejected that philosophy and now serves as a bulwark against Michigan governments deciding who is the "right" property owner and who isn't.

But it's a thin protection.

In 2005, the U.S. Supreme Court, in a Connecticut case, took the opposite tack - endorsing land seizures for private developments, if said developments were expected to make better use of the property.

This galvanized believers in property rights, and led to Prop 4 here.

But Prop 4 has a big problem; a single provision that calls on the government (read taxpayers) to pay property owners at least 125 percent of "fair market value" in legitimate land takings.

Such a premium would no doubt deter any speculative moves on eminent domain. But takings can be limited without imposing such a financial premium. After all, if the land is needed for a clear public use, what's wrong with fair market value to start?

Also, Prop 4 makes no attempt to define what 125 percent of fair market value is. There is no definition of fair market value that binds such negotiations, so any attempt to create an artificially higher figure is bound to lead to more litigation and delay.

Michigan needs a constitutional amendment to complement the Supreme Court's Hathcock decision. It must be made clear that eminent domain is for public assets, not for favored businesses.

Prop 4 almost got it right. But with constitutional amendments, almost is not good enough. We must recommend rejection of Proposal 4.

Lansing MI State Journal: http://www.lsj.com

Township officials: Planners could start the eminent domain process: Montclair NJ Times, 10/11/06

By Dan Prochilo

A nearly 110-year-old house at the corner of Orange Road and Irving Street [in Montclair] could be on its way to becoming municipal property after township officials’ attempts to get the homeowner to repair it failed.

At its meeting this coming Monday, the Planning Board will consider advising the Township Council to declare the vacant house at 249 Orange Road an area in need of redevelopment.

Mayor Ed Remsen said many times that designation simply pressures the owner into either rehabilitating the property or selling it to someone who will.

“Sometimes this is the only thing folks understand,” said the mayor. “It begins a process that very often” gets the owner to take action, he said.

But if it provokes no response, the mayor said the council can then order a property valuation, seize the land using eminent domain and pay the owner fair market value.

The Township Council unanimously approved a resolution on July 25 asking the Planning Department to look into the rundown eight-bedroom residence, built in 1897.

The resultant report indicates the home “is not as badly deteriorated as some of the properties which have been considered under the New Jersey Local Redevelopment and Housing Law. The repairs are certainly achievable and the architectural style is mostly intact.”

But if it stays vacant, it’ll continue falling apart, the report read.

Investigators couldn’t get access to the inside of the house, but earlier this year, code enforcement officers issued several citations to homeowner Jeffrey L. Washington, who lives in the Bronx, N.Y.

The officers claimed Washington was doing nothing to address the deterioration of the structure’s staircases, façade, trim and garage, and he failed to pick up the trash strewn around the property, Planning Director Karen Kadus said.

But Washington, who bought the home last year, was “unresponsive” to the township’s concerns, the report read, so he was summoned to municipal court on June 15.

According to the report, he didn’t show up for his court date and a bench warrant was issued for his arrest.

An effort by The Times to contact Washington through Washington Mutual, the bank that holds the second mortgage on his house, was unsuccessful.

Problems with the home surfaced before Washington bought it, though. Residents have been complaining about garbage stinking up the backyard, rodents and overgrown grass since 2004, the report read.

In late May, the township convinced Washington Mutual to send a work crew to the site to cut the grass.

But the landscapers the bank hired “(were) not equipped to deal with the massiveness of the grass,” the report read, so Parks Department workers had to cut it.

“(Washington) is just not paying attention to the property,” Kadus said. Although he is paying his taxes, investigators found.

Kadus said the Planning Department will try notifying the homeowner via the bank about next week’s hearing — scheduled for 7:30 p.m. in the Council Chamber at the Municipal Complex — so perhaps he will attend and discuss his plans for the property.

Montclair NJ Times: http://www.montclairtimes.com

Initiative aimed at abuse of eminent domain: Mojave Valley News, Laughlin NV, 10/11/06

By Neil Young

Proposition 207, also known as the Arizona Home Owners Protection Effort (HOPE), will appear on the Nov. 7 ballot with the following descriptive title:
Establishes rights when government takes property for public use (eminent domain); defines “public use” to include public and public agency use, utilities, acquiring abandoned and hazardous property; prohibits taking property for economic development; requires comparable replacement of primary residences; requires compensation for decreased property value resulting from land use laws.

Arizona HOPE sponsors the initiative and is chaired by Carol Springer, former state treasurer.

“Last year, the U.S. Supreme Court sanctioned eminent domain abuse with its controversial decision, Kelo v. New London, which said that governments can take private property for third-party development,” said Springer.

“Since then, private property rights have literally been bulldozed across the country, with reports of eminent domain abuse skyrocketing since last year. In November, Arizonans will have the chance to vote their property rights back into existence with Proposition 207.

“Proposition 207 will prevent Arizonans' private property from being taken unjustly (for private development and higher tax revenue) and it will require that property owners be justly compensated,” Springer said.

The Arizona Farm Bureau also supports the measure. “It ... sets up more clarity and process so that slum clearance is truly warranted, rather than an effort masquerading as an attempt to “upgrade” private property from one private hand to another ... “

The Arizona Cattlemen's Association is also in support of Prop 207. They “stated that the protection of property rights is fundamental to the preservation of civil liberties and that if people use their property wisely and beneficially, they must be able to trust that the government and judicial system will protect their rights,” according to the Secretary of State's Web site.

The Arizona League of Conservation Voters urges Arizonans to vote no on 207. “Despite its noble-sounding title, the initiative would jeopardize Arizona's natural environment by depriving state and local governments the ability to pass reasonable land use and conservation requirements ... The initiative would subject communities to potential litigation every time they enacted new land use regulations ... Any time property owners claimed a new conservation regulation impacted, even slightly, the maximum value of their property, they could sue.”

John Keegan, Mayor of Peoria and co-chair of Luke West Valley Council, says “This proposition would halt local governments' efforts to protect military bases in Arizona. It would strangle the largest employer in Arizona, the Department of Defense ... The fuzzy language of this proposition will make it very difficult or impossible to build necessary facilities such as water and wastewater plants; protect historic districts; regulate how close bars are to schools; improve neighborhood standards; or promote economic development. If this is passed by a vote of the people, it can never be changed by the legislature.”

More information on Proposition 207 is available on the Arizona Secretary of State's Web site: www.azsos.gov.

Mojave Valley News, Laughlin NV: http://www.mohavedailynews.com

Leaders question eminent domain: Examiner.com, 10/10/06

Redwood City mayor says mandate could be excessive

By Beth Winegarner

[Redwood City CA] Downtown’s retail core is beginning taking shape, but city leaders continue to face fallout from the decision to acquire downtown land through eminent domain.

City leaders continue to grapple with the San Mateo County Civil Grand Jury’s assessment of those eminent domain proceedings, in which the jury questioned Redwood City’s treatment of property owners. In response to a 2005 grand jury report, Redwood City adopted new guidelines for that treatment, but now Mayor Barbara Pierce objects to the grand jury’s recommendation that those guidelines be handed out to the other of any property that could be eligible for eminent domain.

“That includes an overly broad area,” Pierce said, echoing a response she drafted to the grand jury that was slated for City Council approval Monday night. Distributing the guidelines in that manner could “unnecessarily agitate a great many property owners,” according to Pierce’s letter.

Redwood City followed most of the grand jury’s recommendations, which included establishing the guidelines and appointing an ombudsman to field any complaints from local property owners in future eminent domain proceedings. That task is handled by the Redwood City mayor, a practice former grand jury foreman Ted Glasgow questions.

“It’s sort of like having the fox in the henhouse,” Glasgow said.

In 2001, Redwood City claimed downtown business owners’ property by eminent domain, kicking off a messy legal battle that ended when the city agreed to pay a $3 million settlement to property owner James Celotti. The grand jury accused the city — particularly City Manager Ed Everett — of behaving abusively during the process.

One downtown property owner, attorney Don Wilson, continues to pursue legal action against the city after one of his two complaints was refused a hearing before the California Supreme Court Sept. 26. Another case, challenging the city’s action to build the downtown retail-cinema project, is still pending in San Mateo County Superior Court.

In 2005, the San Mateo County Superior Court upheld Wilson’s 2001 lawsuit, which claimed that Redwood City’s Redevelopment Agency was outside its 12-year time window when it took the property for redevelopment purposes, according to City Attorney Stan Yamamoto. The appellate court overturned that decision in July, nullifying Wilson’s suit.

examiner.com: http://www.examiner.com

Your vote can tame eminent domain Nov. 7: Portsmouth NH Herald, 10/9/06

When a sharply divided U.S. Supreme Court ruled in 2005 that the city of New London, Conn., could bulldoze residents' homes to make way for more lucrative private development, the majority of American citizens were alarmed and state legislatures across the country took notice.

The ruling vastly expanded the definition of "public use" under which a municipality could forcibly take land through a process known as eminent domain.

Former Justice Sandra Day O'Connor, who voted against New London, sounded the alarm in her written dissent.

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result."

A "perverse result" took place in Portsmouth in the late 1960s and early 1970s when urban renewal in the name of economic expansion razed the homes of the largely Italian community in the city's North End. The wounds from that mistake are still fresh in the minds of many city residents.

"We were thrown out, given $21,000, which wasn't much even in those days," recalls Jim Splaine, now a state representative for Portsmouth. "It was a bad chapter in Portsmouth history."

The Supreme Court based its ruling on the wording of the Connecticut state Constitution, which was not clear when it came to eminent domain.

That is why, when you go to the polls in November, you will have a question on your ballot asking you whether to amend the New Hampshire Constitution to strengthen the rights of private property owners.

We heartily support this amendment and applaud the Legislature for swiftly approving a simple amendment that will be easily understood by all who take the time to vote.

The amendment would simply add the following sentence to the New Hampshire Constitution: "No part of a person's property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property."

This amendment would, in no way, impede municipalities from acquiring land for true public uses such as roadways, schools, utilities, etc. Nor would it stop municipalities from negotiating in good faith with private property owners to obtain land needed for projects that are in the public interest but not necessarily eligible for taking by eminent domain. This amendment will simply put the burden back on municipalities to prove a property is needed for public use and narrows the definition of public use to protect private property owners from municipal abuses.

For good reason, it is not easy to amend the N.H. Constitution. To pass, this amendment will require approval by two-thirds of all who vote on Nov. 7.

We urge our readers and all New Hampshire citizens to inform themselves on this important subject. Once informed, we are certain you will support this amendment and vote yes. As Susette Kelo, whose home was taken by New London, said during a recent visit to the Granite State: "If you don't think your home is at risk, remember, neither did I just eight years ago."

Portsmouth NH Herald: http://www.seacoastonline.com

Measure 39 - No: Eugene OR Register-Guard, 10/9/06


Anyone who has done much home repair knows there's at least one rarely used tool in the garage that once in a long while is essential to getting the job done.

For local governments, that tool is the use of condemnation for economic development.

Governments often use the power of eminent domain to buy private land for roads, sewer pipelines, parks and public buildings. But they rarely condemn land in order to hand it over to another property owner for commercial development.

In most communities, eminent domain is used for economic development only as a last resort - when officials can find no other way to proceed with a project that has both broad public support and economic benefits.

Measure 39 on the Nov. 7 ballot would prohibit governments under most circumstances from condemning private property and then turning it over to another private party. While that may sound fair, the measure would deny governments access to a rarely used but valuable tool that can be the only hope of making economic projects a reality.

Eminent domain became a national issue last year in the wake of the U.S. Supreme Court Kelo vs. New London ruling. The ruling said governments can use their condemnation powers to seize private property on behalf of a private company.

Contrary to the claims of some property rights advocates, the court's decision did not expand government power to use eminent domain - a power that has been practiced in this country for more than 200 years. The court merely affirmed that a thorough and engaged planning process protects citizens and their communities. It also said states have the authority to maintain or limit their powers of eminent domain.

The Kelo decision prompted 30 states to enact statutes or constitutional amendments to limit condemnation after Kelo vs. New London. Now, a growing national property rights movement is trying to pass five state initiatives in the West, including Measure 39 in Oregon.

The movement has strong ties to Oregon, though its financiers include Howard Rich, a wealthy libertarian real estate investor from New York. Two years ago, Oregonians in Action, the same group that is sponsoring Measure 39, waged a successful campaign for Measure 37, which requires governments to waive land-use regulations or compensate landowners for complying. Four of the states with initiatives on the November ballot - California, Arizona, Idaho and Nevada - combine limits on eminent domain with variations of Oregon's Measure 37.

Oregon voters should reject Measure 39, which addresses a problem that doesn't exist. Even the measure's supporters are hard pressed to identify instances in which condemnation has been abused or overused in this state.

Local government officials understand that indiscriminately wielding the power of eminent domain is political suicide. More often than not, they use the threat of condemnation to bring reluctant property owners to the negotiating table. An example is Hillsboro's use of the threat of condemnation to develop Orenco Station, a thriving mixed-used development that has transformed a blighted area of the city's fringe.

Even Portland, with the state's largest urban renewal projects, has used eminent domain only 19 times since 1980 - with 15 of those properties ending up in private ownership. At the urging of developers, Eugene officials earlier this year chose not to use eminent domain to advance the Conner-Woolley-Opus downtown project, even though the project died because of the developers' inability to negotiate a selling price with several property owners.

Cost is another reason why voters should reject Measure 39. A provision requires governments to pay property owners' court costs in all condemnation cases whenever the final purchase price exceeds the first offer.

The state's financial estimate predicts the measure would cost state, county and city governments between $16 million and $30 million.

The sky won't fall if Measure 39 passes, but there would be some storm clouds as future redevelopment projects fall by the wayside because officials lack the vital tool of eminent domain.

Eugene OR Register-Guard: http://www.registerguard.com

Proposal targets eminent domain: The Detroit MI News, 10/9/06

Ballot measure seeks to limit government's ability to take private property for public projects

By Ronald J. Hansen

On Michigan's bedsheet ballot Nov. 7, almost lost between marque plans to outlaw affirmative action and increase funding for schools, is a proposal to further restrict the government's ability to take private property from homeowners to make room for projects with a public use.

The constitutional amendment, Proposal 4, would permanently alter the rules in Michigan for eminent domain, the legal tool expanded by the U.S. Supreme Court in a widely criticized ruling last year. In a 5-4 decision, the high court said states can take private property to help make way for private developments that broadly benefit the public.

But the ruling allowed states to set their own rules, and Michigan is one of 12 states considering changes that would bypass the Supreme Court decision.

"There has been an erosion of property rights in this state," said Troy lawyer Alan Ackerman, who often fights eminent domain cases and helped write the language of the proposal. "This will protect property owners. … Just giving people enough money wasn't fair."

The measure's opponents, such as Arnold Weinfeld, who is director of public policy and federal affairs for the Michigan Municipal League, say the proposal isn't needed because of a 2004 state Supreme Court ruling. Weinfeld said Proposal 4 could block even popular development projects.

The measure would:
  • Assure residential property owners are paid at least 125 percent of fair market value.
  • Require governments to prove by clear and convincing evidence that taking the property is necessary for a public use.
  • Prohibit taking property only to promote economic development or increase tax collections.
  • Require that every seized parcel be blighted, if it is in a block of properties that is to be condemned.

Weinfeld said he suspects the proposal will pass.

"It brought together the right and the left politically," he said of eminent domain. "To us, the only question is what percentage it wins by."

Weinfeld said the Michigan Supreme Court already narrowed eminent domain in a 2004 case that effectively overturned the infamous Poletown decision of 1981. Ackerman wanted an amendment to ensure courts couldn't change the law again.

The Detroit MI News: http://www.detnews.com

Going beyond eminent domain: Orange County CA Register, 10/9/06

Local measures are strongly supported, but the statewide Proposition 90 draws opposition

By Martin Wisckol and Peggy Lowe

Seal Beach's Charles Antos loves his city's small-town charm – something the councilman thinks he's protected just in the nick of time with a ban on three-story houses in Old Town.

Antos – like many city officials – believes that if the statewide Proposition 90 passes in November, it will spell the end of local control over land-use issues. So he helped rush through the ban in hopes of dodging a lesser-known element of Prop. 90, which is primarily touted for protecting property owners from cities abusing the use of eminent domain to take land.

"It would be a nightmare for the cities," Antos says of passage of the initiative.

Six local land-use measures will be on ballots from Anaheim to Dana Point, but casting a far larger shadow is the prospect of Prop. 90.

Proponents emphasize that the statewide initiative would stop cities from using eminent domain powers to take private land when they plan to turn it over to private developers for redevelopment and tax dollars.

Antos likes that eminent-domain part of the Prop. 90. So does Newport Beach Mayor Don Webb, who is backing a city measure that does the same thing. Both believe a city should forcibly take land only if needed for a public purpose like a street or a school.

But Prop. 90 goes beyond the issue of eminent domain, and that has turned Antos and Webb against it. The initiative says that whenever a city "downzones" – adds restrictions to the intensity of land use like new height limits – the city is liable for compensating property owners for any loss in property values.

Because of the vast potential cost of such compensation, Antos and other opponents say the measure would effectively block cities from making land-use changes.

Assemblywoman Mimi Walters, R-Laguna Niguel, is among the ardent backers of Prop. 90, and argues that portion of the initiative is a good thing. She uses the example of San Clemente, where the city is trying to restrict heights in the Shorecliffs neighborhood.

"They were already allowing people to build second stories, and now they're telling people they can't build second stories anymore," said Walters, honorary chairwoman of the Prop. 90 campaign. "That's not fair."

Cause célèbre
Controversial uses of eminent domain have gained national attention in recent years, and Orange County played a key role in raising the issue's profile.

In 1999, the Cottonwood Christian Center bought 18 acres in Cypress for a sanctuary and campus. But the city wanted to see a Costco on the property – sales taxes would flow to city coffers – and threatened eminent domain. A national debate on religious expression and redevelopment rights followed.

Then last year, a Connecticut case involving a homeowner's land taken for a private development landed in the Supreme Court. Justices backed the eminent domain acquisition, ruling against the plaintiff in Kelo v. New London.

"It became a cause célèbre essentially for property-rights advocates and conservative politicians, though many Democrats jumped on board when they saw the furor," said Matt Parlow, a property-rights law professor at Chapman School of Law.

Among those raising the banner for the burgeoning movement has been Howard Rich, a real estate investor from Manhattan. Rich has helped fund ballot measures in several states, and his Fund for Democracy spent $1.5 million to help get Prop. 90 on the ballot.

When it comes to banning the taking of private land for a Costco or some other profitable enterprise, opposition is hard to find. Newport Beach, Dana Point and Anaheim all have November ballot measures that would ban – or strengthen existing bans – on such use of eminent domain. There is virtually no opposition in any of the cities.

But Prop. 90's effort to extend property rights beyond the issue of eminent domain has attracted opposition from unexpected quarters – beyond council members like Antos and Webb.

The California Taxpayers' Association, which typically tries to restrict government's reach, opposes Prop. 90. Even the Republican leader of the state Senate, Irvine's Dick Ackerman, opposes it.

"I think you can put my property-rights record up against anyone's, but this goes too far," said Ackerman. "Sometimes down zoning can be abused, but sometimes it's needed."

Ackerman is also wary of another Prop. 90 provision that would increase a property owner's compensation if land is taken for public use – he says that provision would cost taxpayers more for land and would make litigation more likely.

Local control
Traditionally, redevelopment meant taking a rundown area and reviving it with public improvements and new building. But sometimes there would be a holdout property owner – one who didn't want to participate in the renewal project and also wouldn't sell. Eminent domain would then be used to take the property and avoid disrupting the larger redevelopment plans.

But "blighted" areas came to include land that had never been built on. And new construction often meant a high sales-tax generator, like a big-box store or a car dealer.

Then came the backlash and the argument that legitimate redevelopment should not require the forced taking of land for private enterprise. Indeed, 40 percent of the redevelopment agencies in the state have voluntarily set themselves up so that they have no authority to use eminent domain, said John Shirey, executive director of the California Redevelopment Association.

But Shirey says eminent domain should be controlled on the local level – not with new restrictions imposed by the state or feds.

"The decision is best made by local officials, who know their cities and who have to stand for re-election," said Shirey, whose group doesn't oppose local ordinances restricting redevelopment but is fighting Prop. 90.

As for the other land-use restrictions that would result from Prop. 90, even some supporters say that there may be shortcomings.

"Prop. 90 may not be an absolute perfect fix, but it is a fix," said Dana Point Councilman Jim Lacy, who also backs his city's more moderate eminent-domain ballot measure. "Without something like this, property rights will be violated."

Orange County CA Register: http://www.ocregister.com

Stores resist eminent domain use: Albany NY Times Union, 10/6/06

Associated Press

A group of stores [in Syracuse NY] is asking the state's highest court to hear their challenge to a development agency's use of eminent domain in the proposed expansion of the Carousel Center into a multibillion dollar megamall.

Macy's, Lord & Taylor, J.C. Penney and seven other stores on Wednesday asked the Court of Appeals in Albany to hear their arguments against the Syracuse Industrial Development Agency's use of eminent domain on behalf of developer Robert Congel to seize some of their lease rights at the mall.

Last week, the state Supreme Court Appellate Division upheld the condemnation of lease rights that would have given the stores power to halt Congel's planned expansion of the mall. The agency began eminent domain proceedings against the stores at the developer's request in 2002.

David Linger, an attorney representing seven of the stores, said the Court of Appeals generally takes four to six weeks before deciding whether to hear an appeal. And, if it agrees to consider the case, it likely would not be heard until next spring, he said.

In their request, the stores cited the controversial U.S. Supreme Court decision last year upholding the use of eminent domain by the city of New London, Conn., to take homes for a private development by Pfizer Corp. The decision sparked a national debate on local governments' use of eminent domain to take private properties to benefit private developers.

If New London's actions seemed radical, then the Syracuse Industrial Development Agency's use of eminent domain is "at least as novel and is far more breathtaking," the stores said.

Neither SIDA nor Congel's office had seen the motions and both declined comment.

Congel has proposed expanding Carousel Center into Destiny USA, which would rival Minnesota's Mall of America as the nation's largest retail-entertainment complex. Destiny USA also would be the world's largest green-energy complex, operating entirely on renewable energy sources.

After years of political setbacks, Congel recently negotiated a 30-year tax deal with the city that allows the project to move ahead.

Albany NY Times Union: http://timesunion.com

Luggage king locks up win over eminent domain: Contra Costa CA Times, 10/8/06

Hollywood shopkeeper manages to keep ownership of building in face of redevelopment project

By Bob Pool

Hollywood's luggage king refused to pack his bags and go when Los Angeles officials tried to seize his 60-year-old family business to make room for a high-end hotel development.

Shopkeeper Robert Blue fought back by blasting the city's use of eminent domain with a mocking billboard atop his Bernard Luggage store near the corner of Hollywood Boulevard and Vine Street.

Then he filed a lawsuit alleging a violation of his due-process rights, and in the process became a symbol of what some residents considered Hollywood redevelopment run amok.

And on Wednesday, the luggage man bagged a victory.

The city and Community Redevelopment Agency leaders announced that Blue's business will stay - and the largest commercial development in Hollywood history will be built instead around the historic 1928 building containing his valises, suitcases, trunks and travel accessories.

The planned $500 million Hollywood-and-Vine project will include a 300-room luxury W Hotel and 150 condominiums, 375 apartment units and 61,500 square feet of upscale retail space.

Tucked into it will be the Bernard Luggage building, set back from the street another 12 feet and restored to its original, vaguely Spanish-colonial-revival glory.

Architects changed the plans for the sprawling development, notching in the building, which will be surrounded on three sides.

Blue, 46, will retain permanent ownership and use of the one-story 5,475-square-foot structure, originally called the Herman Building.

The structure can't compete with Hollywood's glamorous architectural landmarks like the El Capitan Theater, Hollywood Roosevelt Hotel and Capitol Records building. But fans see it as a symbol of Hollywood's golden era. It was designed by architect Carl Jules Weyl, who also drew the plans for the now-destroyed Hollywood Brown Derby restaurant next door. Weyl later went on to win an Academy Award for movie art design work on the 1938 Errol Flynn-Olivia de Havilland classic, "The Adventures of Robin Hood."

"This is a proud day for Los Angeles," Blue shouted over the noise of a 12-story crane parked a few steps away on Vine Street.

It was hoisting building materials onto the roof of a former Broadway department store building that is being converted into condominium units in another city-sanctioned redevelopment project.

The fate of the luggage store had become an issue of much debate in Hollywood, which is in the midst of a major revitalization and building boom. Hollywood and Sunset boulevards, both symbols of decay in the early 1990s, have seen a string of new retail and housing projects rise in the last few years as the neighborhood has become a hip destination again.

But some merchants and community activists have expressed concern that rebirth has come at the expense of Hollywood's past, including several movie houses and TV studios. Preservationists have battled to save Florentine Gardens, the Palladium and CBS Columbia Square.

Blue credited Hollywood-area Los Angeles City Councilman Eric Garcetti for setting up negotiations with developers and the city's redevelopment agency that led to Wednesday's breakthrough. But he still got in a dig at eminent domain.

Such government land seizure should be reserved for public projects, not commercial developments like the one that will rise up around his tiny shop, he suggested.

"You can't always count on a good city council president" being there to help the small property owner, Blue said.

Before Wednesday's storefront sidewalk ceremony, Blue painted over the anti-eminent domain sign that he placed in early March on the antique iron-framed billboard on the roof of his shop.

It had resembled a movie poster and read: "Reverse Robin Hood Pictures presents, 'Murder on Vine Street: Eminent Domain Kills Small Businesses.'"

It listed Garcetti, Mayor Antonio Villaraigosa, the redevelopment agency and developers as its "stars."

"This story tells it all: Greed, Corruption and Gridlock," read the billboard's tag line.

"I took it down as a gesture of good will," Blue said.

The peaceful resolution of the dispute will allow work to begin on the Hollywood-and-Vine project. Jeff Cohen, senior vice president for acquisitions and development for one of the project's principals, Dallas-based Gatehouse Capital, said ground will be broken for it by year's end.

"I'm very appreciative of the outcome and humbled by the experience," Cohen said of the property dispute.

Redevelopment agency head Cecilia Estolano was equally relieved.

Preservation of the luggage shop building "allows us to maintain the best" of old Hollywood while bringing in the new, she said. "Those who stuck it out in Hollywood's worst days will get to benefit from Hollywood's best days."

Garcetti thanked Blue for taking his stand.

"You made me grow as an elected official and as a person," he said.

"Bob was standing up for his business. He will be able to keep his business here. They will build around him," Garcetti added.

Supporters of Blue showed up with cameras to capture what they called a "historic moment for Hollywood." Some said they hope the agreement is precedent-setting for Los Angeles redevelopment.

"I'm glad they did it, however they did it," said Robert Nudelman, director of preservation issues for Hollywood Heritage.

Other property owners and business operators in the project zone will have to move, however, including billboard figure and sometime actress Angelyne. Her small office is located in the development site.

Hair salon operator Vam Nguyen, who has rented space in Blue's building since 1996, said she hopes to move back into her space once the reconstruction is complete.

And Blue - who has also retained ownership of the old billboard on his roof - said he could have space for Angelyne, too.

"I might put her picture right up there," he said pointing up.

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

Eminent domain concerns persist: Trenton NJ Times, 10/6/06

By Eva Loayza

The proposed ordinances that hold the key to a development proposed for the Champale Redevelopment Area in the South Ward [of Trenton] and have pit residents against the city in a debate over eminent domain had to be reintroduced during last night's council meeting because there was an error in the wording.

The council unanimously introduced several ordinances last month that, if approved, would have allowed the city to enter into negotiations to buy several properties or to use eminent domain to acquire the properties.

The ordinances apply to portions or entire properties on Centre and Lamberton streets. They are needed for the balance of an 84-unit condominium project being proposed by K. Hovnanian for the Champale Redevelopment Area.

Dennis Gonzalez, assistant business administrator and acting director of housing, said he made a mistake in the wording of the ordinances. The properties are in the Champale Redevelopment Area, not the Lamberton Street Redevelopment Area as it was indicated in the ordinances that the council voted to introduce Sept. 21.

The council again voted unanimously yesterday to introduce the corrected ordinances. The public hearing for the ordinances is set for the Oct. 19 council meeting at Washington Elementary School, 331 Emory Ave.

Before voting to introduce the ordinances, South Ward Councilman Jim Coston said if the residents who live on the affected properties are not satisfied with what the city is offering them prior to when council has to vote on the ordinances, he would vote no. "That's my threshold," said Coston.

Coston had his share of support yesterday from South Ward residents.

Coston caught flak from West Ward Councilwoman Annette Lartigue and Councilman-at-large Manny Segura during Tuesday's council meeting after changing his stance on the proposed ordinances. Lartigue said Coston had indicated he supported the project and wanted it to move forward. Lartigue asked him to join her in a sidebar where she was heard asking why he had changed his mind about the project.

Thomas Reeves of Centre Street told council members he voted for Coston because he said he would represent residents and said Coston had the right to change his mind and said he objected to "back-room politics" and also said "screaming and hollering doesn't look good."

Lartigue said she did not want people to think that Coston was the only one who cared for his constituents. Lartigue objected to Reeve's representation of back- room politics, and said that from time to time council members have sidebars and that while council members may disagree, "we stand with you."

Ernest Perez Jr., who faces losing property he owns on Centre Street, said he has invested much in the city not just as an investor, but as a resident of 24 years. Perez said he doubted the developer lives in the city, and asked council members to do some soul searching, and maybe visit the community and talk to affected property owners before voting on the ordinances. "Remember you are dealing with community people," said Perez.

Chan Kong, who also faces losing property, said he would be willing to give up his property if he is compensated properly. If the city is going to benefit from the project, "I'd like to benefit too," he said.

Trenton NJ Times: http://www.nj.com

Eminent Domain vs. Property Rights: The Ayn Rand Institute, Irvine CA, 10/6/06

press release

California residents will soon vote on Proposition 90, which limits the power of eminent domain available to government in California to projects of "public" use. Proposition 90 also requires that government pay "just compensation" whenever it takes private property for such public use or whenever its actions "result in substantial economic loss to private property." Similar attempts to curb the government's power of eminent domain are being considered throughout the country.

"The protection of property rights is a crucial pillar of a free society and a necessary condition for the protection of all individual rights," said Dr. Yaron Brook, executive director of the Ayn Rand Institute.

"Every American who values his freedom and his individual rights should be deeply concerned about the government's power to use eminent domain and should support just compensation of property owners adversely affected by the government's actions.

"As Ayn Rand stated, 'Without property rights, no other rights are possible.'"

The Ayn Rand Institute, Irvine CA: http://www.aynrand.org

Unger calls for eminent domain moratorium: Long Branch NJ Atlanticville, 10/5/06

[Long Branch NJ] Council candidate Brian Unger held a press conference on the steps of city hall last Tuesday at which he called for a moratorium on the city's use of eminent domain for redevelopment.

That same evening, Unger submitted a proposed resolution and an ordinance to the City Council at the Sept. 26 municipal meeting, urging the city to enact a law to immediately cease eminent domain proceedings.

Unger's proposed ordinance calls for a nine-month moratorium to give the current administration and the public time to study the issue of eminent domain

The proposed ordinance calls for a commission to study the issue during the nine-month hiatus, the commission would recommend appropriate city policies to balance continued economic growth with constructive preservation and improvement of the city's residential neighborhoods.

A companion resolution calls on Gov. Jon Corzine and the state Legislature "to act quickly to clarify statewide policy on the use of eminent domain for economic redevelopment so that New Jersey municipalities can move forward with new legislative and executive guidelines and avoid the rancor and lengthy lawsuits that have become common."

Unger, of Elberon, is running for the council seat vacated by the resignation of former Councilman John "Fazz" Zambrano, who resigned in July after pleading guilty to extortion charges brought by the U.S. Attorney.

Unger also presented a proposed resolution asking the mayor and council to support the passage of federal and state legislation to limit governments' use of eminent domain solely for public purposes.

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

Steelton to use eminent domain to further redevelopment: Centre County PA Daily Times, 10/2/06

Associated Press

Steelton has turned to eminent domain to try to go ahead with its multimillion-dollar renovation plan following opposition from three property owners.

Yefim Bik, owner of Bik's Auto Sales in the shadow of a former steel mill, and two other landowners have rejected offers to sell parcels on Front Street. Bik said he cannot rebuild his business for the amount the borough wanted to pay.

Steelton now is trying to seize the car lot, a grocery store and a bookstore and barbershop and pass them on to the town's development corporation, which would demolish the buildings for private development.

"The New Steelton" plan calls for new offices, storefronts, gaslight-style streetlights and a grand plaza across from Borough Hall within a decade. Michael G. Musser II, borough secretary, says the facelift would bring about $32 million worth of development and 500 jobs.

"Our goal was never to have to go this far," Musser said of the use of eminent domain. "This is what we have to do to keep the project going. Our job is to do what's in the best interests of the town."

The U.S. Supreme Court in 2005 allowed a Connecticut city to seize homes for a private developer. Following the ruling, Pennsylvania's General Assembly barred the use of eminent domain to convey unblighted property to a commercial developer.

But Steelton filed its eminent domain actions in court on Aug. 31, a day before the new law took effect - so Musser said it does not apply.

Centre County PA Daily Times: http://www.centredaily.com

Topping 2006 ballots - eminent domain: The Christian Science Monitor, 10/5/06

In November, 12 states have initiatives on the ballot that seek to protect private property against seizure and regulation

By Ben Arnoldy

A backlash among voters this November against an unpopular Supreme Court decision on eminent domain could dramatically curtail the ability of officials to manage growth and development in parts of the western United States.

Libertarian activists, tapping into voter anger as well as outside money, have helped propel property rights referendums onto 12 state ballots - making it the single biggest ballot issue this November.

Most of the measures aim to overrule a 2005 US Supreme Court decision that homes can be seized and handed over to private developers. But in some Western states, the eminent domain issue is coupled with other far reaching provisions that would force governments to pay landowners when regulations harm property values.

At stake is the momentum of "smart growth" planning in recent decades that has provided public interests like open space and environmental protection at the expense of private property owners. Supporters of the changes say they want those costs made transparent, while opponents argue that individual property rights, if unfettered, will trample on the rights of neighbors and the collective good.

"Urban growth boundaries, agricultural protection ordinances, wetlands regulations, historic district rules - just about any kind of land-use rule would be more vulnerable to litigation if the [regulatory takings] measures were adopted," says John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute in Washington. "[The West] would be a lot more polluted, it would be a lot more congested, and it would be a lot less green if these measures were enacted."

Prior to the high court's decision on eminent domain in Kelo v. New London last year, Oregon, in 2004, enacted Measure 37, a law requiring local and state governments to compensate landowners when regulations decreased the value of their properties. Ballot initiatives in California, Arizona, Idaho, and Washington are loosely based on Measure 37. If governments cannot pay, some measures call for granting individuals exemptions from the rules.

In Oregon, the 2,446 claims already filed with the state would cost more than $5.7 billion to reimburse, according to the Department of Land Conservation and Development. None have been paid, says Michael Morrissey with the department. "Measure 37 didn't identify any new revenue source to pay for claims. So that means for those claims we judge to be valid, the issue is only waiver of regulation."

Such waivers have created some unusual dilemmas.

In Clackamas County, a landowner used Measure 37 to get a waiver for agricultural zoning restrictions that prevented a commercial gravel pit operation. One neighbor suddenly faced the prospect of a rock crusher just a few hundred feet from his home.

Another neighbor, an elderly couple trying to sell their adjacent farm, saw a $1.3 million offer collapse on account of the proposed pit, says their son, Scott Lay. He had voted for Measure 37, but now finds himself ambivalent. He warns voters in other states to "really consider how far that measure could extend into the property rights of the neighbor. The impact doesn't stop with that property, it extends beyond."

In another case, a pumice mine and power plant may be built inside Newberry National Volcanic Monument in Oregon if one longtime landowner gets his way.

"If putting up mining operations in national monuments seems too bizarre to contemplate, look again at Oregon because that's what [voters elsewhere] could get," says Bob Stacey, executive director of 1000 Friends of Oregon, a land-use watchdog group.

Supporters of laws like Measure 37 cite the Constitution's Fifth Amendment, which prohibits taking private property for public use without just compensation. Land-use restrictions, they say, unfairly "take" part of the property's value without paying the owner.

"By not compensating landowners ... you are essentially forcing a minority of landowners - the private property owners - to bear the cost of providing [a] public benefit," says Leonard Gilroy, a senior policy analyst with the libertarian Reason Foundation in Los Angeles.

In recent decades, land-use restrictions have burgeoned in many states as strategies to manage growth. Oregon stood at the forefront of that movement before Measure 37. Mr. Gilroy says the measure is an indication that urban planning isn't sustainable without incorporating property rights into the policy framework.

"Measure 37 was passed by the Oregon voters who still strongly support their state's system of land-use regulation. They've just realized that it's had these severe economic consequences on private property owners ... [and] they wanted to rebalance the equation," says Gilroy.

But critics of laws like Measure 37 argue that they create profound imbalances by putting the rights of a few developers over those of the great majority: homeowners. Zoning rules and other land-use protections, they say, protect the value of homes.

The court decision that evicted Susette Kelo from her Connecticut home has helped campaigners connect with voters.

"As soon as I brought up the little old lady in New London, Connecticut, it just clicked with everybody," says Eric Dondero, a libertarian Republican consultant from Texas who gathered signatures for Montana's 'Kelo-plus' ballot measure.

He received payments from an outside group chaired by New York City real estate magnate Howie Rich. "But there were a lot of people that wanted to read the whole wording and I said, 'Here it is.' And they would read everything."

Mr. Dondero says the regulatory takings aspect wasn't controversial for any of the voters with whom he interacted. But he did meet stiff resistance, he says, from local officials and other operatives whom he claims tried to physically block and intimidate signature gatherers.

Countercharges of signature-gathering fraud prompted a Montana judge to throw out the property rights ballot measure. Dondero denies that there were irregularities from his camp, noting also that out-of-state money was used to gather signatures for liberal measures. The case is under appeal.

The Christian Science Monitor: http://www.csmonitor.com

Don’t overreact to eminent domain threat: East Valley AZ Tribune, 10/4/06


Sometimes, good-hearted activists propose a new state law with a worthwhile goal when the actual language has unintended but sweeping negative consequences.

When such a law is adopted by the Legislature and governor, such as the alternative fuels tax credit fiasco of 2002, lawmakers can return to the state Capitol and remove the errors or repeal the measure relatively quickly.

But when a bad law is adopted by the voters at the ballot box, such as public campaign funding for state offices, constitutional protections have made it practically impossible for the Legislature to fix any problems. And the special interests who love or hate these measures fight tooth-and-nail to block legislative referendums or new initiatives to make desperately needed repairs.

This is why Proposition 207 on the Nov. 7 ballot is so dangerous. The initiative is being promoted as a critical step to prevent governmental abuse of the power to condemn private property.

But Prop. 207 also could disrupt all efforts at reasonable zoning and land-use planning, as governments could be sued for regulations that property owners believe diminish the immediate value of their possessions.

Prop. 207 is part of a national movement reacting to a bad decision by the U.S. Supreme Court last year that says the U.S. Constitution doesn’t forbid the use of eminent domain to redevelop property and boost tax revenues. Tribune writer Jason Massad reported Sunday that Arizona is one of 10 states with ballot measures this year to prevent such inappropriate seizures at the local level instead.

But this movement has attracted activists who have a more extreme agenda than just stopping the foreclosure of grandma’s aging house for a new shopping mall.

These folks want to overturn 40 years of progress on zoning policies and general land-use plans that seek to create robust employment centers while separating industrial factories from day care centers and preventing homes from rising directly under airport flight paths.

We recognize this a difficult balancing act, and we frequently urge government to refrain from heavy-handed tactics in favor of allowing someone to use their hardearned property.

But we as a nation have learned in the past few decades that visionary land planning tends to increase property values for everyone in the long run.

Oregon became the test case for this type of law when its voters approved an initiative similar to Prop. 207 two years ago. So far, $5 billion in claims have been filed against state and local governments, or about half of this year’s Arizona general fund budget that pays for everything from education to health care for the poor and public safety.

Supporters of Prop. 207 say the Arizona proposal avoids Oregon’s mistake by applying only to future zoning decisions. But this could result in cities and counties simply freezing current zoning regulations, regardless of changes in growth patterns and other market trends.

Recent Arizona court decisions already have imposed most of the limits on the use of eminent domain sought in Prop. 207. So this isn’t an urgent matter here as it might be in other parts of the country.

But the more far-reaching portions of Prop. 207 could become a planning nightmare that, if approved by voters, we could be stuck with for years or decades.

East Valley AZ Tribune: http://www.eastvalleytribune.com

At county meeting, lawyer pans eminent domain plan: St Louis MO Post-Dispatch, 10/4/06

By Sterling Levy

Lawyer Tom Cunningham says the proposed [Missouri] constitutional amendment on eminent domain would have a devastating effect on municipal government.

Cunningham, who specializes in work as a municipal attorney, said that though the petition drive to put the amendment on the November ballot had failed, he predicted that supporters of the measure "will be back." He said that though the measure was promoted to deal with eminent domain, it would seek to throw out most zoning powers. He said supporters had spent $1.5 million and collected thousands of signatures before the effort was disqualified on procedural matters.

"This is a sledgehammer approach that can turn back the clock for Missouri cities by effectively stopping all future zoning, and it could also affect subdivision requirements, signage and many other areas," Cunningham said.

Cunningham spoke at the recent meeting of the St. Louis County Municipal League in Shrewsbury. The Missouri effort for the constitutional amendment was led by Missourians in Charge, based in the Kansas City area.

A similar proposal has become law in Oregon. Related petition efforts seeking state constitutional changes are under way in 10 more states, Cunningham said.

Cunningham said that the Missouri proposal would have provided that any property owners who could show that they had been adversely affected by a city decision in zoning and other areas - excluding building and fire codes - would qualify for monetary compensation if the city did not rescind its decision within 120 days. He said property owners would have up to four years to bring suit for compensation. Apparently, property owners as well as owners of adjacent lots could file claims if they could show damages, he said.

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