Prop 90 argued as savior from eminent domain abuse: Malibu CA Times, 11/1/06

By Melonie Magruder

Eminent domain initiatives will be found on 11 state ballots across the country next month, most in response to a landmark ruling by the Supreme Court last year wherein it found that privately owned real property could be condemned by the state and then transferred to another private owner for comprehensive redevelopment, if the community would enjoy economic growth as a result.

With Proposition 90, California is poised to offer a law designed to protect private property owners from state-sponsored eminent domain abuse.

Local resident Anne Hoffman, president of the Land Use Preservation Defense Fund, a homeowner protection group, sees Proposition 90 as a godsend to private property owners.

"The government has a voracious appetite for seizing private property and then turning it over to developers for profit," Hoffman said. "Malibu people are affected when the state decides it's in 'the public interest' to regulate someone's land here."

Under Proposition 90, the state must compensate a private property owner if it restricts in any way, whether for environmental protection, infrastructure development or land use zoning, that owner's enjoyment of business development of his property. If local governments cannot afford to pay such compensatory claims, they must permit the property owner unregulated usage of his property.

Opponents of Proposition 90, which include both California U.S. senators, most city mayors and council members, public safety groups such as firefighters and police forces, organized labor, most California Chambers of Commerce and just about every environmental group of record, agree that some kind of eminent domain reform is necessary.

"But the initiative, as written, is a Trojan Horse," said Peter Douglas, executive director of the California Coastal Commission.

In the view of such opponents, the problem is in the "Regulatory Takings" clause of the initiative, which is not restricted to real property. Kathy Fairbanks of the No on 90 campaign elaborated: "'Property' could be real property, intellectual property, business or personal property. As written, Prop 90 would open up California to lawsuits from just about any private business that doesn't want any kind of restrictions imposed on it, even if it is for the public welfare."

Proponents of Prop 90 say that the initiative will not affect environmental protections currently on the books.

"And for future regulation," Ray Haynes, representing the 66th Assembly District in Northern San Diego County, said, "the Prop 90 law can be waived if the state can make a legitimate claim that it is a safety or health issue for the community."

"The problem is that the drafters of the initiative cleverly left out the words 'welfare of the community,'" Douglas said. "So if a county wants to re-draw school districts to meet changing population demographics, they are open to legal challenge from homeowners within those districts."

Malibu CA Times: http://www.malibutimes.com

Eminent domain's slippery, costly slope: Marketplace - National Public Radio, 11/2/06

Measures in four Western states would force local governments to pay property owners if regulations — such as zoning — reduce their property value. Commentator Jamie Court argues that would actually hurt taxpayers and homeowners.

KAI RYSSDAL: Last year the Supreme Court handed down a ruling in a case called Kelo versus the City of New London. It was sort of controversial. The justices ruled local governments can force property owners to sell out to private developers. Next week, voters in 12 states will have their say on the government's right to eminent domain. Whether to limit it or not. Ballot measures in four western states, California, Arizona, Washington, and Idaho go further than just limits. They would force governments to pay up if regulations reduced the value of private property. Commentator Jamie Court says a yes vote could actually wind up hurting taxpayers and homeowners.

JAMIE COURT: Reforming eminent domain is supposed to be about limiting the government's right to bulldoze a house to put up a freeway or a mall.

But some of these measures go much further. They would let citizens sue when government authorities enforce land-use or other laws they personally don't like and think might cost them money. Even though those laws are there to protect the community's interest.

So if you don't mind your next-door neighbors starting a disco nightclub at their house and then suing taxpayers when the government tells them they can't, these are the initiatives for you.

Sound absurd? Oregon enacted just such a law two years ago. Oregonians have since filed 2,700 lawsuits against state and local authorities asking for $6 billion of taxpayer money.

Here's just a little taste. A small Oregon landowner asked for $203 million because he wasn't allowed to build a pumice mine and power plant in a protected national volcanic monument.

Oregon opened a Pandora's Box for litigation over real estate. But the initiatives in four western states aren't limited to real estate. If you read the fine print, you'll see that state regulation of all kinds of assets is on the chopping block.

In California, the state legislative analyst says that new consumer, housing, and environmental regulations could become endangered species.

The big risk is that corporations can use the initiatives' fine print as legal fire power to argue that the money consumers pay them is their property. That means they can sue if government tries to tell them what they can do with that property.

So the state may not be able to tell banks how much they can charge in ATM fees, or credit card charges, or obscene mortgage rates.

By voting for these measures, voters may think they're protecting their homes. The truth is they will simply be raising the cost of home ownership while footing some astronomical legal bills.

Marketplace - National Public Radio: http://marketplace.publicradio.org

Jamie Court is the president of the Foundation for Taxpayer and Consumer Rights: http://www.consumerwatchdog.org

Neenah settles eminent domain challenge: Appleton WI Post-Crescent, 11/1/06

By Duke Behnke

The city [of Neenah WI] will pay $300,000 to settle an eminent domain challenge for a six-acre property at the southeast corner of Winnebago County G and Dixie Road.

The Common Council approved the payment Wednesday on an 8-0 vote and will consider the annexation of the land in the coming weeks.

Neenah has been trying to acquire the property of Tou F. and Pa Vang Lee, 870 County G, since December 2004 so it can realign Dixie Road with Schultz Drive as part of the expansion of the Southpark Industrial Center.

Negotiations broke down over the value of the property. The city initially offered $188,000 and then increased that to $230,000. The Lees requested $420,000, plus $40,000 in relocation costs.

City Atty. James Godlewski said the gap came from how the two sides viewed the property. The city appraised the property according to its agricultural zoning. Godlewski said the Lees appraised a majority of the property as improved industrial land.

In January, Neenah exercised eminent domain to acquire the property for $230,000. The Lees challenged Neenah’s right to take the land in Winnebago County Circuit Court, but the city prevailed.

In July, the Lees challenged the value of the taking in court. That led to a court-ordered mediation and the $300,000 settlement, meaning the city must pay an additional $70,000.

Godlewski said $300,000 is a “reasonable settlement that allows the city to proceed with road and utility work.”

Pa Vang Lee said she and her husband agreed to the settlement on the advice of their attorney.

“We are not very happy with it,” she said. “We think it is worth more because they are going to develop this as industrial.”

The Lees have until Dec. 31 to vacate the property.

Director of Community Development Bob Buckingham said the realignment of Dixie Road and the construction of a regional stormwater pond would begin early next year, clearing the way for a 60-acre expansion of the industrial park south of County G.

“We have had funds budgeted since 2005,” Buckingham said.

Appleton WI Post-Crescent: http://www.postcrescent.com

Eminent domain's rare use : San Francisco CA Chronicle, 11/2/06

Survey of Bay Area agencies finds only 2 homes taken over past decade

By Patrick Hoge

Bay Area governments have very rarely used powers of eminent domain to seize private homes and turn them over to developers over the last decade, according to a Chronicle survey of every local agency that does such projects.

Only two owner-occupied homes have been acquired by governments using eminent domain for redevelopment over the last 10 years, local officials reported. Officials razed one to build an apartment complex in Concord and the other to help make room for a new downtown in Pleasant Hill.

About 190 other types of properties in the nine-county Bay Area were forcibly bought by officials using eminent domain for redevelopment in the same period, 1996 to the present.
The 191 Bay Area cases in which eminent domain was initiated over the last decade to acquire property for redevelopment, mostly for private commercial or residential projects. Some were leases that were broken, some were properties that were never purchased. In two cases, the city of San Jose lost a court case and was unable to take the subject properties. Two agencies condemned property in Richmond.
Just 27 of 80 local agencies exercised the power to acquire land for projects that included public parking, a park, a community center and a library, The Chronicle found. And the vast majority of the properties were purchased for just a few high-profile projects intended to reform rundown neighborhoods.

A total of 82 of the Bay Area properties were acquired for four large projects in three cities. About half of those, 44, were taken to build two massive commercial developments in poor areas of East Palo Alto.

Most of the eminent domain actions, which involved breaking leases as well as taking buildings or land, were never challenged in court. The Chronicle's survey did not include cases where eminent domain was used for public works projects such as building roads or utilities.

The Chronicle canvassed the Bay Area's 80 redevelopment agencies - the local agencies charged with rehabilitating downtrodden neighborhoods and promoting economic development - because the main argument advanced by supporters of a property rights initiative on Tuesday's state ballot is that Proposition 90 will stop governments from taking people's houses on behalf of developers.

The Protect Our Homes Coalition's Web site features a giant hydraulic shovel looming over a house, its bucket's teeth evoking a Tyrannosaurus Rex ready to bite. A spokesman for the initiative's supporters said he believes the use of eminent domain might be more widespread than Bay Area officials admit.

Opponents say Prop. 90 backers are scaring California homeowners to promote a measure that would raise costs for revitalizing blighted urban areas and limit governments' ability to control land use.

"Across the state, very few owner-occupied houses have been acquired through redevelopment,'' said Robert Stewart, redevelopment manager for the city of Pleasant Hill. In 1998, Stewart's agency used eminent domain in 28 cases for a $136 million project that created a seven-block downtown area.

The Chronicle's survey findings mirror the results of a recent California Redevelopment Association survey of most of the state's 386 redevelopment agencies. It found that between 2000 and the end of 2004, eminent domain was initiated in the purchase of 28 owner-occupied homes.

All but three of those cases were settled out of court; in two of the remaining cases, the court had to decide who actually owned the properties in question.

Numbers tell only part of the story, however. Property owners - both residential and commercial - frequently claim they were not paid enough for their properties, whether they settled before going to court or not. Some property owners say that they were bullied by government officials and that they got inadequate relocation help.

Prop. 90 campaign spokesman Kevin Spillane said Wednesday that he did not trust the numbers that local redevelopment agencies gave The Chronicle. He also said looking at lawsuits filed or court judgments is misleading, because government has many tools to compel owners to sell, such as declaring property blighted or changing laws that determine what can be built on the property.

"The redevelopment agency's goal is to get the property at the lowest possible price, and they've got the weight of the process on their side,'' Spillane said.

That happened in Redwood City, where city leaders adopted a policy last year calling for staff to respect property owners in eminent domain cases after the San Mateo County grand jury said officials used "delaying tactics and verbal coercion" to force owners to settle at the lowest possible prices.

Stephen Howard, owner of Livermore Cyclery, said that as a politically active business owner for three decades, he was in a relatively good position about five years ago when his city's Redevelopment Agency decided to seize his business property to build a retail and entertainment center as well as office space around an old rail yard.

Howard said the process was torturous. His appraisal valued his building at $2.4 million; the city offered him $960,000. After two years and $80,000 in legal fees, the city paid him $1.8 million for the property.

City Economic Development Director Kevin Roberts said Howard got "top dollar'' plus relocation costs and the right to file a claim for any loss of business he could prove, something Howard did.

When it came to relocating, Howard said he got little help from the city.

"One of the bigger losses for me in this whole process was my sense of civic duty. I worked for 20 years on committees for the city,'' he said. "I don't care to anymore. It all changed, and it has left me so bitter.''

Gov. Arnold Schwarzenegger, who signed eight eminent domain and redevelopment reform bills this year, said Tuesday that the initiative is "poorly written'' and "could cost taxpayers billions of dollars and could prevent the most basic use of eminent domain laws for vital roads, schools and construction." Proponents said the governor had bought the opposition's "false and misleading'' arguments.

Critics of the measure admit that abuses can happen.

"The abuses that happen are usually shocking, and they make for terrible examples,'' said state Sen. Christine Kehoe, D-San Diego, who sponsored three of the eminent domain bills the governor signed this year. Among other things, the bills are designed to increase state oversight of redevelopment actions.

Assemblyman Guy Houston, R-Livermore, who has made support of Prop. 90 a centerpiece of his re-election campaign, said all the "doomsday scenarios'' about Prop. 90 are "hyperbole.'' If redevelopment projects are desirable, government should be willing to pay people what they want for their properties, he said.

"You're going to have to get the buy-in of the property owner,'' Houston said. "That seems very reasonable.''

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

Landowner challenges eminent domain decision for Hononegah school: Rockford IL Register-Star, 11/2/06

By Sarah Roberts

A former [Roscoe IL] village engineer who recently was instructed to sell 23 acres of his land to the Hononegah School District is challenging the district’s appraiser.

Chris Hodges and his wife, Kimberly, own property near the intersection of McCurry and Willowbrook roads, where Hononegah wants to build a second high school. After a series of failed negotiations, the School District filed an eminent domain lawsuit against Hodges in August 2005.

The district’s appraiser pegged the land’s value at $6,000 an acre. Hodges’ appraiser, American Appraisal Associates of Milwaukee, said the land is worth $32,500 an acre.

Last month, a jury decided the district should pay Hodges $9,100 an acre.

Hodges, who was Roscoe’s village engineer when he bought the property in January 2004, testified that he paid $4,800 an acre for the land at that time. He said he never has publicly disclosed how much he wanted the School District to pay.

Hodges and his attorney, Art Kielty, believe a planned $43 million Beloit Memorial Hospital project significantly increases the value of Hodges’ land and that school leaders knew about the project but did not convey that information to their appraiser.

Hodges’ appeal is scheduled for court review Nov. 9.

“We’re still exploring every option,” Hodges said.

School Board President Dave Kurlinkus declined to comment on Hodges’ decision because he wasn’t aware of the appeal.

Throughout the lawsuit, Hononegah’s strategic planning group has continued to work on a long-term growth plan through 2012. The plan should be ready for board review later this month.

Acquiring the Hodges property is just a preliminary step in the multiyear process of building a new school. Hononegah’s current campus is landlocked and cannot be expanded. The district owns 42 acres south of the Hilander on Hononegah Road, but school leaders say recent studies show a second campus would better accommodate student growth if it was east of Illinois 251.

If the School District can acquire the property it needs near McCurry and Willowbrook roads, Kurlinkus said, the School Board would sell its 42-acre parcel and pursue other funding to pay for the new site.

Rockford IL Register-Star: http://www.rrstar.com


Old will complicates eminent domain acquisition of land by military: Charleston WV Daily Mail, 11/1/06

By Michael A. Jones

A will more than 70 years old could cloud the acquisition of a 350-acre tract of land in Jackson County that officials hope to use to build a military readiness and training facility.

County officials expect to invoke eminent domain to acquire the land for $1.25 million to construct a facility that would consolidate U.S. Army Reserve centers in Huntington and Ripley, and the National Guard Armory in Spencer.

The new center would cost $16.2 million.

The Jackson County Commission is expected to hold a 3 p.m. meeting Thursday to explain the plan and answer any concerns from residents living near the Millwood property.

But some are already raising questions over whether the West Virginia Order of the Eastern Star legally possesses the land and whether the organization should receive compensation for it.

Sally D. Kneeream donated the property to Eastern Star in 1934 with the stipulation that the organization must use the land to house orphans and widows. Her will states that should Eastern Star "refuse to comply with the requirements and limitations of this will" then the land should be transferred to the Knights of Pythias.

A two-story home sits on the land near W.Va. 2, though no orphans or widows have lived on the site since the 1980s, Eastern Star officials said.

The military is hoping to begin construction on a 61,000-square-foot facility in 2010. The site is attractive because it will require little site preparation work and it's close to Interstate 77, officials said.

Neighbors living on both sides of the site have signed a petition to show their displeasure of the agreement.

That is a separate issue from whether Kneeream's heirs still have a stake in the property. One of them is state Agriculture Commissioner Gus Douglass.

He recalled that there have been several court decisions that cited the will to block previous attempts to sell the land.

"It will be interesting to see how the state uses eminent domain to get around the will," Douglass said. "The will explicitly states that if Eastern Star no longer plans to use the property for public service, then it should be returned to the heirs."

The definition of public service could be critical in deciding whether Eastern Star receives all of the $1.25 million.

John Fisher, dean of the College of Law at West Virginia University, said the eminent domain court proceedings should determine whether Eastern Star used the land as intended or if the money should be distributed to the heirs.

The resolution could become murkier if Eastern Star still has an interest in the property. The military has agreed to allow the organization to use a pavilion on the property for two events a year, which could become a pivotal issue in the decision.

Fisher said Kneeream's will would not automatically trump eminent domain, but that decision must be made in Jackson County Circuit Court.

"There are a whole bunch of legal issues that will determine who owns what here," Fisher said. "If they still have use of the property, is it sufficient to what the will intended? Someone must read the will and decide the ownership dispersal."

Harold Carpenter, chairman of the Eastern Star Trustees, said the group plans to use the money to continue services for the state's 15,000 members.

"We're not just going to take the money and spend it," Carpenter said. "That wouldn't be her wishes, and we wouldn't do that. She gave that property to help other people. I think we need to honor her request that the money be used to help people."

Kneeream directed the Board of Trustees to make improvements or additions to the property if they saw fit, "believing as I do that they will do the very best for their orders and all concerned."

But the will also says any beneficiaries will be barred from receiving the property's "benefits" should they attempt to break the contract.

"It is expressly hereby stated and understood that in no event my said farm is not to be sold or traded, or the old home to be rented for a tenant house," Kneeream wrote.

Jackson County Commission President Don Stephens said the Eastern Star and military officials came to the commission with the proposal about three weeks ago. He was unsure how the will could effect the legal procedures, but said he has been assured by the county's lawyers that eminent domain can be used.

"We're basically a facilitator on this issue," Stephens said. "Eminent domain was just to clear the deeds up as I understood it."

The commission will decide whether to acquire the land through eminent domain some time after Thursday's meeting with the residents and military officials.

Charleston WV Daily Mail: http://www.dailymail.com

Mayor hopes to resolve eminent domain issue: El Paso TX Times, 11/1/06

By David Crowder

The El Paso City Council voted to go forward with a controversial Downtown development plan Tuesday by the same 5-3 margin that has typified most of council's major decisions for the past year.

The council heard from about 50 people on both sides of the issue before approving the land-use changes in a 300-acre area of Downtown called for by a plan developed by the Paso del Norte Group and SMWM, a San Francisco planning firm.

In the next decade or so, the Downtown redevelopment calls for a combination of private and public investment that will bring in major retail stores, a Mexican-style mercado, an arena and new homes and apartments for thousands of new and relocated residents.

More than 200 people packed the council chambers, as roughly equal numbers of supporters and opponents of the Downtown plan attended.

Mayor John Cook, noting the sharp divisions on the council and in the city over the potential use of eminent domain to acquire property for private development, said he would like to resolve that issue in the next stage of the redevelopment plan.

"I do believe we can have unanimity by removing eminent domain," he said, explaining that he has asked the city attorney's office to draft an ordinance that would restrict the use of eminent domain to situations involving public improvements and "truly blighted property."

"I think we can come back with an ordinance that identifies those issues that we'll use, take a lot of fears off the public and also the fears of the elected officials who have voiced opposition to the concept of the land-use plan today," Cook said.

The possibility of using the city's power to condemn property would not come into play under any circumstances until after the creation of a private, nonprofit Real Estate Investment Trust, which should begin acquiring properties for redevelopment next year. The city had already guaranteed that there would be no use of eminent domain for a year after the approval of the land-use plan.

East-Central city Rep. José Alexandro Lozano, who has sided with the council majority on votes concerning the Downtown plan in the past, said there are too many unknowns.

"The problem we have here is we don't know what we're up against or how much it's going to cost" for the city's eventual investment in public improvements, he said. "I don't think it's going to work."

East-Central city Rep. Eddie Holguin has voted against the plan at every opportunity and did so again Tuesday.

"What I find interesting is the people who have nothing to lose are the strongest supporters of the plan," he said.

But West-Central city Rep. Susie Byrd said El Pasoans have wanted to see improvements Downtown for many years, but the Downtown and South El Paso property owners have been content with the status quo.

Businessman Jesse Alvarez said he grew up in poverty and understands the importance of having the opportunity to escape.

"You cannot expect success when you are surrounded by poverty," he said, referring to the tenements in Segundo Barrio. "I don't think the opponents understand how the plan will benefit them and their children in the future."

Korean businessman Han C. Park said all the discussion has involved or been about property owners, but has left out some 200 Korean business operators who have spent lifetimes running their shops and now stand to be displaced.

He questioned whether there will ever be the demand for high-end retail products that the plan hinges on entirely.

Voting for the plan were city Reps. Byrd, Ann Lilly, Presi Ortega, Steve Ortega and Beto O'Rourke.

Voting against it were Reps. Melina Castro, Lozano and Holguin.

El Paso TX Times: http://www.elpasotimes.com

Eminent-Domain Chutzpah: Southwest News-Herald, Chicago IL, 10/31/06

By Sheldon Richman

Talk about chutzpah! A development company is thinking about suing Florida and the city of Riviera Beach for refusing to use eminent domain to provide land for upscale condominiums and a marina. Viking Inlet Harbor Properties was assured the city would condemn a number of working-class homes, but the city council had second thoughts. Now the company fears the $50 million it has already spent acquiring other lots will go to waste. "I'm stuck with these properties but can't develop them because I can't fill in the puzzle pieces," said Mike Clark, president of the development company's real-estate division. Hence the possible lawsuit.

Ever since last year's U.S. Supreme Court decision in Kelo v. New London, cities have had the green light to take people's property for private redevelopment projects. The victims of eminent domain are usually working-class people who are forced to sacrifice their homes for the sake of luxury homes and shops. Sure, they get paid something, but it's not a true market price and some of these folks don't want to move at any price.

Fortunately, the Court ruling unleashed a public backlash against eminent domain, and in response, over 20 states, including Florida, passed restrictions on their cities' power to take people's homes for private development. That's what led to the unusual circumstances in Riviera Beach, a low-income city in Palm Beach County.

Five years ago the city declared an area blighted, although homeowners disagreed with that description. It didn't matter. The designation made it eligible for condemnation and development by a private firm. The state's standards for blight "are so vague they can mean anything," says Dana Berliner, an attorney with the Institute for Justice, the pro-property-rights public-interest law firm that represents some of the Riviera Beach homeowners.

The city last year approved a $2.4 million project for a 400-acre area now occupied by 1,700 homes and businesses. Last May it agreed to let Viking develop the area for homes, condos, fancy stores, and yacht slips. The city pledged to use its power of eminent domain to condemn the properties. That led to three homeowner lawsuits.

There was a rub, however. The day after the agreement was made, Gov. Jeb Bush signed a bill prohibiting eminent domain for redevelopment. While Riviera Beach Mayor Michael Brown wants to challenge the new state law, city attorney Pamela Ryan prepared a resolution for the city council stating that the city would not violate the law. In other words, no eminent domain, leaving Viking high and dry.

At that point, the company threatened to sue Riviera Beach for going back on its word. "We don't think it [the resolution] should be adopted," said Bob Healey, chairman of the development company. "All they're trying to do is get out of the lawsuits." The Council is to vote Nov. 1.

No doubt the company feels wronged, but there's no just way to compensate it. Taking the homes would be a violation of private property. But the taxpayers shouldn't be on the hook either; this was a decision the city officials shouldn't have made.

Imagine the homeowners' agony.

"I built this home, raised my children here, and am raising my grandchildren here," said Princess Wells, an Institute for Justice client who has lived here for 20 years. "This is my dream home. I never imagined the government that was supposed to protect my home could take it away from me for someone else."

"Across America," says Bert Gall, a senior attorney with the Institute for Justice, "local governments are using the power of eminent domain to seize private homes, businesses, farms, and houses of worship in order to transfer those properties to other private owners for their private use. More often than not, governments justify these private-to-private transfers by making bogus 'blight' declarations and arguing the new owners might create more jobs and taxes. But if that can be a justification for taking someone's property, then no home, small business, farm, or church will be safe from this kind of government land-grab."

Southwest News-Herald, Chicago IL: http://www.swnewsherald.com

Sheldon Richman is senior fellow at The Future of Freedom Foundation: www.fff.org

Developer Alert launched in San Diego

Developer Alert, a website for property owners in the San Diego CA area, has been launched to make information regarding plans by developers accessible to as many people as possible. The objective is to allow citizens to question and stop irresponsible development in their neighborhoods.

The most successful strategy land developers use is operating under the radar of public knowledge and consent. If the public isn't informed about plans to tear old buildings down or develop tracts of land then they never have the opportunity to object.

Anyone having or knowing of a building being acquired against the owner's will, to be demolished for purposes other than true "public use" can submit the information for posting at Developer Alert. Check the website, or send an email message to cma52572@yahoo.com. The location can be anywhere in the US.

Developer Alert: http://www.developeralert.org

Road widening sparks controversy: Greensboro NC News-Record, 10/30/06

By Sue Schultz

They've already given it over to a higher power in prayer.

But this morning, a Greensboro congregation will voice concerns to state leaders about the relocation of their church to make way for the widening of High Point Road in 2011.

"We don't like it that we are going to have to move. There are many memories here," said the Rev. Daryl Holliday of Sedgefield Baptist Church's 30-year history at 6007 High Point Road. "And we don't like it that we aren't getting enough money to rebuild."

The small church with a sanctuary and a secondary building sits on 5 acres along High Point Road in the path of a major state road project.

Known best to the community as the future "Jamestown Bypass," the project would widen and reroute High Point Road in Greensboro from Hilltop Road to the U.S. 311 Bypass in High Point. The same street in High Point is known as Greensboro Road.

The project, expected to start by 2011, could take seven years to build. At a cost of an estimated $105 million, it would turn a two-lane road into a multilane thoroughfare stretching 7.8 miles.

Last year, the congregation learned of the state's plans to take their property and buildings to make way for the new road. The state first offered the church roughly $988,000 for the property and buildings and then increased its offer to $1.2 million about six months ago.

But church leaders say it won't be enough to rebuild their church in another location. The church estimates it would cost roughly $2.5 million to replace the property and buildings in a similar location on a major thoroughfare.

"We're a small church and we don't have the funds," said Holliday.

"We don't have the extra $1 million to rebuild."

The congregation has petitioned Gov. Mike Easley, U.S. Sen. Elizabeth Dole, and U.S. Rep. Howard Coble with little response.

But this morning, the church will meet with state Rep. Laura Wiley of High Point and state Sen. Katie Dorsett of Greensboro about a possible compromise between the church and state transportation officials.

Holliday said the congregation may even encourage state leaders to seek new legislation regarding eminent domain for North Carolina - the right of government to take private property for public use.

He said other states give property owners the replacement value instead of the appraised value of their property when the government takes it as eminent domain.

Residents and businesses in the area have opposed the road project stating that it was unnecessary and that rerouting the road could draw business away from Main Street in Jamestown.

"We're not opposing the widening," said Holliday. "With eminent domain, we know they are going to come through the property and we will relocate."

He said the congregation hasn't yet found a new site for the church.

Greensboro NC News-Record: http://www.news-record.com

Homeowner refuses to sell; O.C. threatens eminent domain: The Press of Atlantic City NJ, 10/31/06

By Michael Miller

A downtown [Ocean City] property owner said the city is in for a battle if it pursues eminent domain to take his wife's land.

C. Jan Mathes, of Newtown Square, Pa., said the city wants to buy his north-end vacation home for a new downtown parking lot.

Neither he nor his wife, Suzanne Mathes, is interested in selling. It's not the house itself that holds sentimental value, even though it has been passed down for three generations. The couple has local permits to demolish the house to make way for a new vacation home. Instead, it's the location at 724 Central Ave. they appreciate.

The home is far from any other residential homes. It is surrounded by a church, a parking lot and a thrift store in the heart of downtown in the resort's historic district.

“What's nice is we don't have any neighbors,” he said. “And we like looking at the murals on St. Peter's.”

Besides, it took years to get zoning and historical preservation permits necessary to demolish their old house and build a new one.

“We knew they would need five or six months to build it. We wanted to spend next summer there,” Mathes said.

The couple turned the home over to a demolition company Oct. 9 and went on vacation. Solicitor Gerald Corcoran sent the couple a letter Oct. 16 urging them to reconsider the city's offer to buy. In the letter, he noted that the property would provide parking to benefit Asbury Avenue businesses.

“If necessary, the city of Ocean City will exercise the right of eminent domain to condemn your property. It is hoped that can be avoided,” Corcoran said.

Mathes said he resents the ultimatum.

“As would any homeowner. We got a letter saying if you don't sell it, we're going to take it,” Mathes said.

And he questioned the legitimacy of the city's claim that a parking lot would be expressly for the public good. Neighboring businesses could use a city lot for their own uses, he said.

“It's not a blight. It's not a school. It's not redevelopment. Eminent domain is something that requires public need, not just private need,” he said.

Mayor Sal Perillo disagrees. He said he has experience in eminent domain from his public positions as solicitor for Newark and Atlantic County.

“This is a classic public use. Parking is a pretty precious commodity, especially in the downtown,” he said.

The city saw the couple's demolition plans as an opportune time to expand a nearby parking lot. The city estimates that reconfiguring the lot with neighboring city land would create 30 parking spaces. By comparison, two other city lots have just 110 spaces.

If the city waited until after construction was complete, it might have been too late, he said.

But the couple rejected the idea of selling.

“The problem we have is forever is a long time. If the city is going to develop the downtown and if it is to have more activity than it has now, there will be a need for more parking,” Perillo said. “This lot will be forever handicapped unless the city takes action now.”

Perillo defended the confrontational tone of Corcoran's letter, noting that the city has had several conversations with the owners about its interest in the property.

The city is awaiting an appraisal on the property. In the meantime, Mathes said he is not backing down.

“We will use legal means to protect our rights to build a house,” he said.

The Press of Atlantic City NJ: http://www.pressofatlanticcity.com

Eminent domain still key issue in Westville race: Gloucester County NJ Times, 10/30/06

By Trish Graber

Elections in this tiny borough [of Westville NJ] are not what they used to be.

In previous years, they were rarely contested and candidates had the choice of walking door-to-door in the 4,500-person borough.

Now, with a debate over the potential use of eminent domain that has spurred a bitterly contested election, campaign strategies that are in line with county races have emerged, and each candidate is pounding the pavement.

Democrat incumbents Michael Galbraith, Michael Ledrich and Russell Welsh have brought in $21,700 for their election bid, while challengers Ron Muhlbaier, a Republican, and Chuck Robbins, running as an independent, have $900 between the two.

Galbraith, the current council president, called this year's race "a little unique" - images of the three Democrats are strewn across billboards and television advertisements, made possible with support from the Gloucester County Democratic Party, he said.

Galbraith switched from the Republican Party early this year, along with Ledrich and Welsh who swung from independents to Democrats.

But it remains to be seen if the cash will give the Democrats a lead here, where the small borough is torn over a proposed $50 million condominium project slated to replace 27 properties along Big Timber Creek.

"Do I think there's an advantage? In just about any other town, probably, but not with our specific issues," said Muhlbaier, running a campaign with Robbins on a platform against eminent domain.

Robbins agreed, pointing to last year's election where residents voted in Woodrow Dooley, Sue Rodgers and James Pennington Jr. who all ran in opposition to eminent domain - Dooley and Pennington have since announced support for the redevelopment project.

"I think we're going to surprise a lot of people," Robbins said.

He also believes they have a chance at grabbing the uncontested mayor's seat with their newly aligned candidate Bill Brody, who has launched a write-in campaign on the same platform.

While the Democrat incumbents have voted in favor of redevelopment efforts, officials have repeatedly said they will use eminent domain only as a last resort. Their challengers say they are against it altogether.

Both parties admit things have gotten political.

"Quite a few people have said they've lived here their whole lives and they've never seen a politician (at their door)," Robbins said.

"I don't know if its good or bad, but it's much more political," Welsh admitted.

As for the money, Welsh said he could not tell whether it would have an impact.

"I honestly don't know in this little town if the money you spend is going to make a difference," he said. "But it can't hurt."

Gloucester County NJ Times: http://www.nj.com/news/gloucester

Cities pushing to get back limited eminent domain: Salt Lake City UT Tribune, 10/29/06

By Cathy McKitrick

In mid-September, the Utah League of Cities and Towns (ULCT) passed a resolution urging the Legislature to reinstate the right to condemn property for redevelopment purposes.

But instead of cities initiating condemnation, the league wants affected property owners to ask for it. These would be residents who agree to sell their properties and relocate so a developer can launch a commercial project.

Think of it as "eminent-domain lite." Such a request by a majority of landowners would then allow the city to condemn the property of their neighbors who are holding out.

The league's membership passed the resolution last month, according to Lincoln Shurtz, ULCT legislative analyst.

"There were a few 'no' votes, but of the 700-plus members in attendance, about 95 percent voted for it," Shurtz said.

As he sees it, the league's resolution is a step toward a legislative compromise.

"It would reinstate some authority [to the cities], but would have private-property protection built into it as well" - if a majority of those affected oppose a project or the use of eminent domain, he said.

The resolution is in response to the Legislature's action two sessions ago to forbid cities to use property condemnation, or eminent domain, for commercial projects involving private developers.

Sen. Scott Jenkins of Plain City is spearheading the effort for cities to regain - in limited form - the use of eminent domain.

"Nothing would change much, but it would allow a group of citizens from the blighted area to come and ask the city to use eminent domain to improve the area," Jenkins said.

Jenkins said he locked horns with Sen. Curt Bramble over similar legislation that Jenkins introduced a year ago. Bramble in recent years has been a key architect of revamping laws affecting the powers of city redevelopment agencies (RDAs).

"He felt it was running contrary to his legislation," Jenkins said. "So we decided to look at it a year later."

Utah's older cities such as Ogden, Provo, Salt Lake City and St. George, are eager to regain the use of the condemnation tool in a less-oppressive form.

"It's a move to alleviate some of the fears people have with the more traditional eminent domain we've had in the past," said Mark Johnson, Ogden's management services director. Those fears involve being forced from their homes or being paid less money for their property than they think it is worth.

Johnson said he did not participateRefining the power

Amendments proposed in Utah League of Cities and Towns eminent-domain resolution:
  • Redefine blight and redevelopment of blighted areas as an appropriate use for eminent domain
  • Implement a threshold of receptiveness. At least two-thirds of the property owners representing at least one-half of the land area must be under option to buy or willing to sell in order for eminent domain to be used on the holdout properties.
  • Require a separate supermajority vote (67 percent) of the governing body before eminent domain can be included in the project area plan and used by the agency. Supermajority would vary with council size - either five of seven members, or four of five members would be required.
  • Reinstate relocation assistance provisions for owners of condemned properties.
    in drafting the league's resolution but supports the effort.

In essence, the proposed amendments would remove the threat of condemnation during the negotiation process between government officials and affected property owners, Johnson said.

Salt Lake City Councilman Eric Jergensen chaired the ULCT subcommittee that drafted the resolution.

"This is a very restricted use of eminent domain in redevelopment areas to accomplish specific goals - to remove blight as defined in the statute," Jergensen said of the proposed citizen-driven tweaks to current RDA law.

"It's a whole new way of looking at it."

Jergensen pointed to Salt Lake City's The Gateway mall as a prime example of a vibrant redevelopment that would not have occurred without the use of eminent domain.

"It was an environmentally unsafe brownfield that met every definition of blight," Jergensen said. "There was one property owner leveraging every inch they could." The city's condemnation of that property allowed the project to proceed.

Bramble said the league's efforts are part of a mutual search for common ground.

"There have been constructive discussions about under what circumstances eminent domain could and should be available - if any," Bramble said. "That 'if any' is pretty important."

While Bramble is optimistic that common ground can be found, he questions whether the league's resolution contains any.

"It's going to take some discussion," the Provo lawmaker said. Those discussions have been under way for several months, but will gear up in the 2007 legislative session in January.

From his perspective, government seizing property is an onerous act. His previous legislation resulted in a one-year moratorium on redevelopment projects and removing eminent domain for economic development in blighted areas.

Bramble acknowledged that situations exist where most property owners support a redevelopment project, but the few who oppose it - as in The Gateway example - can scuttle the whole deal.

"Where does the tyranny of the minority bump up against the will of the majority?" asked Bramble, characterizing the natural conflict within the law.

Some municipalities reject such use of eminent domain altogether - a redevelopment tool that Jergensen said has been rarely used by Utah cities.

Randy Sant, Sandy's economic-development director, said he doesn't see the need for eminent domain - now or in the future.

"We've never used it," Sant said. "We've always been able to negotiate property purchases without it. Why force people to sell if they don't want to?"

Salt Lake City UT Tribune: http://www.sltrib.com

Eminent domain and the ballot box: CNNmoney.com, 10/30/06

Numerous challenges to the government's right to seize or regulate private property are up for vote this election day

By Les Christie

Eminent domain is a hot-button issue this fall - 12 states have measures on the ballot to restrict the government from taking property for private uses.

The spark for all this activity is Kelo v. New London: The Supreme Court ruled in 2005 that the Connecticut city could seize well-maintained private homes and give them to a developer.

When the Supreme Court said it was okay for the town of New London to seize Susette Kelo's home and give it to a private developer, the case jumped started the eminent domain opposition.

Arizona, California, Florida, Georgia, Idaho, Michigan, Montana, Nevada, New Hampshire, North Dakota, Oregon, and South Carolina have all scheduled votes on the issue. Louisiana approved a similar measure in September.

California is the issue's epicenter, and its Proposition 90 asks: "Should the California Constitution be amended to require government to pay property owners for substantial economic losses resulting from some new laws and rules, and limit government authority to take ownership of private property?"

Prop. 90 proponents say the government's seizing of property for private development is almost never justifiable. And, when eminent domain is applied for a public purpose, such as a dam or school, they want higher compensation for property owners.

"It will protect the American Dream," says Mimi Walters, a state assemblyman and chair of Yes on 90, "and stop government abuse of eminent domain."

It could also redefine what "just compensation" actually means. Gideon Kanner, a property rights advocate and professor emeritus of law at Loyola University in California, says, in past practice, payments have been "neither just, nor compensation." He says the state has routinely paid market - or less than market - value for properties seized under eminent domain.

Kanner says home owners should be paid much more than market value to make up for the hassle and expense of moving and the emotional attachments owners feel for their homes and neighborhoods.

The opposition
Tom Adams, who co-chairs the "No on 90 Campaign" and is board president of the California League of Conservation Voters, says that a broad coalition of groups have come together to fight Prop. 90.

Many of the opponents usually find each other on opposite sides of the fence. Left-leaning conservationists - including Robert Redford - are lining up with conservative business organizations to oppose the initiative. Also against it are middle of the road groups: homeowners, police and firemen, labor organizations, seniors, educators, local governments and even some property rights advocates.

A lot of the opposition centers on wording that would require that the government compensate property owners if it imposes any new conditions or restrictions that result in a substantial economic loss for property owners. The only exceptions are to protect health and safety.

Some possible examples:
  • Prohibit plowing that field because there are kangaroo rat nests there? Pay the farmer for lost crops.
  • Refuse to allow a hotel to switch from residential to transient trade because you want to preserve low-income housing? Pay the hotel owner for its lost room rates.

Environmentalists, including Robert Redford, worry this will tie the government's hands in enacting tough conservation regulations. Workers, such as teachers, worry about the tab for compensating big property owners.

Adams thinks Prop. 90 could even wind up hurting property owners. It could result in claims for lost revenue, for example, for night clubs or bars forced to curtail hours or operations because of noise complaints.

Prop. 90 would cover private property of all kinds, according to Adams, including businesses and intellectual property such as patents.

"The definition [of new government action] is so broad," says Adams, "it would prohibit the administration of present law."

Heavy impact?
For how much impact Prop. 90 might have in the state, Adams says to look to Oregon, which passed a similar referendum in 2004.

"Oregon," he says, "is one tenth the size of California. There have already been more than $6 billion in claims filed there."

That translates into tens of billions of dollars a year in California.

Walters says that a false argument. "In Oregon, the claims could be retroactive and every single claim that was settled there has been retroactive, some as far back as the 1970s. In California, only prospective claims are allowed."

But if Adams is right it might mean that government agencies would have to either agree to plans made by property owners - no matter what the impact on the public interest - or redirect budget dollars from their intended purposes into the hands of private businesses and individuals.

As for how the campaigns are faring, Walters sounds a lot more sanguine than Adams, who admits defeating Prop. 90 is an uphill fight.

According to Walters, 56 percent of Californians in the latest poll said they would vote Yes on Prop. 90.

CNNmoney.com: http://money.cnn.com

Legislators discuss eminent domain: Billings MT Gazette, 10/27/06

Associated Press

Lawmakers are looking at changes proposed to Wyoming's eminent domain law by representatives of the energy industry and agriculture groups, though one Wyoming Stock Growers Association board member feels left out of the process.

The bill was written over two days by leaders of the Petroleum Association of Wyoming, the Wyoming Stock Growers Association, the Wyoming Wool Growers Association and the Wyoming Farm Bureau Federation, among others.

The Joint Agriculture, Public Lands and Water Resources Committee Chairman adopted the bill in a meeting Thursday.

Not involved in the bill-drafting, however, was the Landowners Association of Wyoming. The group had previously collaborated with the other groups on eminent domain reform. Taylor Haynes, a Stock Growers Association board member, told the interim committee in a letter that by leaving out the Landowners Association of Wyoming, the Stock Growers Association had left its own members out.

"If industry and its accomplices would be so brazen as to forward such a misrepresentation to this committee of our law making body, what do they do to little individual landowners?" Haynes wrote.

Jim Magagna, executive vice president of the Stock Growers Association, said there was no effort to leave out its own committee leaders or members. He and said many of those people had attended the bill-drafting sessions.

"The substitute bill represents collaborative effort among a wide array of people," Magagna told the interim committee.

However, Haynes also wrote: "The appearance of my name on an attendance list does not mean I agree with the proceeding."

Leaders of the energy and agriculture groups said their bill was the true collaborative effort that represented compromise.

But Laurie Goodman, president of the Landowners Association of Wyoming, said her group had worked hard to reach several compromises with members of the energy and agriculture industries.

"We're not asking to stop a project, we're not asking to slow it down. We're asking that we be partners in the process," she said.

Private property advocates have called for notifying landowners of eminent domain proceedings sooner and enacting more stringent rules for compensation. They've also called for a "public necessity" requirement to be met before condemnation occurs.

The bill written by the agriculture and energy industry leaders didn't include those provisions. Magagna said they "went too far" and would have rendered the bill dead on arrival if brought to the Legislature.

The committee wrote notification and compensation provisions into the bill. The measure next heads to a select House committee for more work.

Billings MT Gazette: http://www.billingsgazette.net

Eminent domain has local angle: South Florida Sun-Sentinel, 10/29/06

Pines gives voters chance to change city charter

By Joe Kollin

Voters, that isn't a mistake. The same question is on the ballot in two different places.

Whether you're voting early or waiting until Election Day on Nov. 7, what you're seeing is two parts of a triple-pronged effort by city and state officials to make sure the power of eminent domain can't be used to seize a person's home to give to a private developer so he can make a profit.

Governments traditionally use the power to confiscate property needed for a public purpose, such as a road, hospital or airport. Exceptions include Hollywood, which tried using it so a developer could build a hotel and office complex to spur economic development in an area considered rundown.

Then came last year's U.S. Supreme Court ruling that said it is legal for governments to seize property for a developer.

Saying they are dead-set against using the power for that reason, state and city officials took steps to help make sure they can't use it.

The state Legislature in May passed a law making it illegal for Florida cities to use their power to do it. The law is on the books.

But laws adopted by the Legislature can be undone by the Legislature. Wanting to make it more difficult to undo the restriction on eminent domain, legislators also went a step further by ordering a question on the November ballot asking voters to make it part of the state constitution.

Because only a vote of the people can take out of the constitution what they voted to put in, removing the ban would be more difficult than a vote of the Legislature.

The question is one of the constitutional amendment questions on the ballot.

Pembroke Pines commissioners, although they were aware that the state law already applies to them and that the constitutional amendment also would apply, wanted to make sure they can't use their eminent domain power to benefit private developers who want to build stores, condos, hotels, offices or anything else.

So commissioners agreed to ask voters to change the city charter.

Just as the constitution serves as the basic framework of state law and can only be changed by voters, so the city charter serves the same function for city law and also can only be changed by voters.

City commissioners in September, at the urging of Vice Mayor Iris Siple, unanimously agreed to put the question on the ballot even though they didn't all agree on the need. Mayor Frank Ortis and Commissioner Angelo Castillo said the state law already makes it illegal for the city to use its power for private use.

But Siple persisted.

"It will provide an extra level of protection for our residents," she said. "Residents have told us that's what they want and they are the ones who will vote it up or down."

Castillo said he agrees with the concept but doesn't think the prohibition belongs or is needed, calling it "a totally unnecessary provision in our charter" because it is a state issue.

Ortis agreed with Castillo that the measure doesn't belong in the city charter, but Commissioner Carl Shechter said he agreed with Siple that it should "go to the people."

City Attorney Sam Goren said the new state law already prohibits cities from using eminent domain to seize property for private use and had recommended against putting it in the charter.

South Florida Sun-Sentinel: http://www.sun-sentinel.com

Voters will take on eminent domain and a lot more: US News & World Report, 10/29/06

A Host of Questions

By Will Sullivan

Rod's Grill, in Arcadia, Calif., has really been Manny Romero's grill since he bought the place 10 years ago. And in that decade, he has built a loyal following. So when the city wanted to seize the restaurant property through eminent domain and turn it over to a nearby car dealership seeking to expand, the community objected-and the restaurant survived. "I have the same right to do business ... as the Mercedes-Benz dealership," Romero insists.

He isn't the only one chafing under the current use of eminent domain. Twelve states-including California-will vote November 7 on limiting the government's ability to regulate and seize property. The ballot measures signal outrage at the Supreme Court's 2005 decision in Kelo v. New London, which seemed to broaden governmental power to take private land. But opponents of the measures see them as a misleading effort to further a radical property-rights agenda.

Eminent domain is not new, but it has typically been used to take property for obvious public uses, such as roads. In Kelo,the court held that seizing land for private projects that promoted economic development could qualify as public use. Since the decision, 31 states have already restricted the government's power of eminent domain. Most of the ballot measures would focus mainly on undoing Kelo. But the most aggressive initiatives-found in Arizona, California, Idaho, and Washington-would go further, requiring that the government also compensate property owners for "regulatory takings"-regulations that damage a property's value.

Zoning? Polling suggests all four regulatory takings initiatives will pass; backers are focusing on examples of eminent domain abuse. But Howard Rich, a New York real-estate investor who has spent millions of dollars trying to get the measures on the ballot, says, "It doesn't matter if government takes your property outright or regulates it to the point of little or no value; the result is the same."

Critics of the regulatory takings measures, including conservation and anti-tax groups, say they could strain government budgets or severely limit the ability to enforce environmental or zoning regulations. In Oregon, where a similar law has been on the books since 2004, the state has largely waived any sort of property restrictions rather than compensate landowners. Suzie Kunzman, an alpaca farmer in Molalla, Ore., became a cautionary tale after her neighbor tried to build a gravel mine behind her house; that issue is still unresolved.

The eminent domain measures are among the boatload of ballot questions - 205 in all - that voters will face this November.

US News & World Report: http://www.usnews.com

Proposal's passage would restrict government use of eminent domain: Milford MI Times, 10/26/06

By Kristen Janney

Last year, the U.S. Supreme Court decided in a split 5-4 decision that government agencies could force homeowners and businesses to sell their privately-owned property for the purpose of economic development.

The court ruling, known as the Kelo Decision, was a case involving the city of New London, Conn., which condemned private property to be used as part of a redevelopment plan. The court saw the plan as a public benefit, therefore, a good reason to exercise eminent domain.

Michigan voters will decide how they feel on the issue on Nov. 7. Proposal 4 would amend the Michigan Constitution, restricting government's power to use eminent domain in purposes solely to promote economic growth.

According to William Nowling, director of media relations at Sterling Corp., a case in Lansing is still percolating where the state has declared an entire area as blighted. Many residents and businesses are concerned about their welfare including a 3-year-old McDonalds and a flower shop that has operated in the community for 50 years. Michigan's current law allows eminent domain to be used for blight removal.

If approved, the amendment will require the government to decide when to use eminent domain on a case-to-case basis using strict justification. Their authority to declare an entire area as blighted will be limited and determined individually. And only then, if the power of eminent domain is justified the government will be required to pay 125 percent of the fair market value to the owner, Nowling said.

According to Grand Haven City Manager Pat McGinnis, using eminent domain is sometimes necessary. Under a recent $100 million development plan the city exerted eminent domain when one of 20 owners of contaminated property refused to sell. The construction plan promised 600 jobs to a town of 11,000 people.

"It's not as harsh as it's made out to be. We're very sensitive to people's needs," McGinnis said. The city paid immensely for the property and also took responsibility for its relocating expenses.

Creating a large number of jobs in a small town is a public benefit and a compelling reason to use eminent domain, McGinnis said.

Nowling referred to the Poletown case of 1981, where the city condemned five square miles of land to build a new General Motors plant, which would extend across the borders of Detroit and Hamtramck. It was built in a path where about 1,500 homes, businesses, churches and a hospital once stood. Families and company owners were forced to sell their property in the government's robust effort to keep the automotive industry in Detroit.

Many times, eminent domain actions occur and go unnoticed to the public, according to Nowling.

"The threat is so daunting to homeowners that they usually just sell," Nowling said. The likelihood to prevail against government action is small and many choose not to dispute the administration, he added.

Milford MI Times: http://hometownlife.com