Appellate Court grants stay of eminent domain: Long Branch NJ Atlanticville, 11/21/06

Judges' order puts condemnation of home on hold, pending appeal

By Christine Varno

A [New Jersey] state Appellate Court has ordered the city [of Long Branch] to hold off on using eminent domain to seize a beachfront home for a redevelopment project.

An order granting a stay of the city's pending condemnation action against Louis and Lillian Anzalone's Ocean Terrace home was signed Nov. 16 by Appellate Judges Jack L. Lintner and Christine L. Miniman.

"This is a very good sign," said the Anzalones' attorney, William J. Ward Monday.

"You do not get a stay granted very often," said Ward, of Carlin & Ward, Florham Park. "They are not routinely granted."

The stay prevents the city of Long Branch from seizing the Anzalones' property while an appeal is pending of a state Superior Court decision that affirmed the city's right to take the property through eminent domain for private redevelopment.

The stay will remain intact while the appeal is pending, Ward said.

"The city cannot take the property until a final decision is made on whether [the city] has the right [to take the homes] is made," Ward said.

"This is a significant victory for the property owners and bodes well for a favorable decision on the merits of the case," Ward said.

"It is not a slam dunk that we will win the appeal," he said, "but it is a very, very positive sign."

City Attorney James Aaron did not return a phone call seeking comment Monday.

Ward explained that the stay order is significant because the property owners must demonstrate a probability of success in the merits of the appeal in order to meet the standard for obtaining a stay.

"The court was obviously satisfied," Ward said.

Institute for Justice (IJ) senior attorney Scott Bullock agreed.

"I think [the stay] is phenomenal news," Bullock said Monday.

IJ is seeking co-counsel status in the appeal to represent a group of city residents in the Anzalones' neighborhood, known as MTOTSA, who are also facing condemnation proceedings.

"This obviously indicates that they are taking the appeal very seriously," he said, adding, "Just like [in the Anzalone case], this same relief could now be granted to all the MTOTSA homeowners."

Ward filed the motion asking the Appellate Court to grant the stay Oct. 25.

Ward is representing the Anzalones in an appeal of a June 22 decision by Superior Court Judge Lawrence M. Lawson who ruled that the city has the right to use eminent domain to take the homes in the Beachfront North, phase II redevelopment zone for a luxury condominium project.

Plans for the area call for developers MM Beachfront North II, consisting of K. Hovnanian, Middletown, and the Applied Cos., Hoboken, to raze the modest beachfront neighborhood and construct three buildings consisting of a total of 185 condominium units in its place.

In Lawson's decision, the initial motion for a stay was denied.

"This time, we have judges with a different perspective," Ward said. "I think what got their attention, although it does not say it in the order, was the conflicts of interests [argued in the brief filed for the stay]."

In the brief, Ward charged that the lower court erred by not granting discovery to obtain facts surrounding allegations of conflicts of interest.

The brief charged conflicts existed between Aaron's law firm, the law firm of Greenbaum Rowe Smith and Davis, Mayor Adam Schneider and the Long Branch City Council, developer K. Hovnanian and the Monmouth Community Bank.

The bank, the brief stated, provided a line of credit to the developer and employed some City Council members who selected the developer.

Ward charged that Arthur Greenbaum was involved in a conflict because his firm represented the city in condemnation proceedings while he was a director and shareholder of developer K. Hovnanian.

Aaron's firm was also involved in a conflict, according to Ward, because while Aaron represented the city, his firm represented K. Hovnanian.

Ward stated in the brief, the relationships between the law firms, the city, the developers and the bank, "create the appearance, if not of actual conflict, to have improperly influenced the city's actions taken in pursuit of the Beachfront North Redevelopment and the condemnation of the subject property."

A group of some 20 residents in the three-street Marine Terrace, Ocean Terrace and Seaview Avenue neighborhood known MTOTSA are also appealing Lawson's decision.

The MTOTSA homeowners are being represented by attorney Peter H. Wegener in the appeal.

The public interest law firm IJ, based in Arlington, Va., has applied for "pro hac vice" status to enter the case as co-counsel with Wegener.

Ward said that the decision for his client is a win for the entire MTOTSA neighborhood.

"Once a stay is granted in our case, then a stay will be granted for MTOTSA, once they file for it," Ward said.

Also on Nov. 16, Appellate Court Judges Lintner and Carmen J. Messano denied a motion from the city to accelerate the appeal.

Ward said he filed a brief on the merits of the appeal last week and the court could possibly schedule oral arguments to begin in the appeal in six months.

The MTOTSA residents are a few steps behind in the appeal, Ward said, because Wegener and the city are still involved in a court battle over the admission of IJ into the case.

"This decision is just positive for my clients and for the rest of MTOTSA," Ward said.

MTOTSA resident Lori Ann Vendetti said Monday that this is the first positive step for the homeowners.

"The appellate division is giving this serious thought," Vendetti said.

"They are not being biased as I felt the Monmouth County court and [Judge] Lawson have been.

"This means they are not shutting the doors on us," Vendetti said, adding, "This is really good news to get just before the holidays."

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

Eminent domain needs changes - Task force, county commissioner claim power being abused: Farmington NM Daily Times, 11/22/06

By Cory Frolik

The [New Mexico] Governor's Task Force on Responsible Use of Eminent Domain released a 24-page report on eminent domain issues in the state, recommending that [the state]revise its current legislation governing its use.

According to the report, current law creates the potential for governmental abuse by promoting private economic development by the government seizing private property through the use of eminent domain. As a result, the task force recommended the state law be changed.

San Juan County Commissioner Tony Atkinson was a member of the task force and says he is proud of the decided recommendations. Atkinson voted in favor of restricting government power, citing his belief that there is some power the government should not have.

"I simply do not trust (unchecked power). I've been involved in government too long to entirely trust it," he said. "Property rights are extremely important in my way of thinking. There is a time when you absolutely have to (use eminent domain). But a new subdivision or new Wal-Mart is not one of those times."

But Atkinson fears the recommendations may not be enacted. He says the majority view was won by a relatively slim margin (10 to 3) and added there is a possibility that the governor could ignore the task force's proposals.

The task force recommended repealing the urban renewal law and community development law as well as removing the eminent domain authority from the Metropolitan Redevelopment Act (MRA).

Current New Mexico law states that "a municipality shall have the right to acquire by condemnation any interest in real property, including a fee simple title thereto, which it may deem necessary for, or in connection with, a metropolitan redevelopment project under the Redevelopment Law. A municipality may exercise the power of eminent domain in the manner provided by the Eminent Domain Code, or when found appropriate by the governing body."

To date, Rio Rancho is the only government entity in New Mexico to utilize the power of eminent domain for development purposes. But Atkinson and other task force members fear other entities might use the power.

At least for now, however, Atkinson said San Juan County and its metropolitan areas are particularly dedicated to avoiding such abuses.

"In the 30 years I've worked with the county the only project (we used eminent domain) is the 350 highway across Crouch Mesa. People didn't like the project from day one and they would not consent. They were adamant about it," he said. "That was a last resort. Most everyone seems to understand that situations like that are going to happen."

The report mentions possible plans for redevelopment in Farmington and how the city has shied away from considering using the power provided by eminent domain.

"In the city of Farmington, a metropolitan redevelopment plan is currently being considered to revitalize private and public property in the downtown area. That plan calls for a public-private partnership, which would encourage business activity and relocation to the city's primary commercial district. Interestingly, the City Council will not use the power of eminent domain to further the project. According to testimony presented to the task force, the City Council believes that property owners are more likely to embrace redevelopment if not faced with the fear of condemnation," the report states.

The majority of task force members concluded that eminent domain is not required to promote economic redevelopment and revitalization in the state. There are other condemnation powers allowed under other state laws that will suffice in providing governments with the power they need without overreaching their authority, the majority decided.

There are at least two other statutes that use eminent domain. But, as Atkinson pointed out, these statutes, which were not touched by the task force, allot such power only for the purposes of public projects, road projects, health and welfare, and utility lines.

Other recommendations by the task force include creating additional protections, which include refining the definition of slum and blight areas, improving notice and hearing procedures, and providing relocation and transition assistance for uprooted property owners.

The most important recommendation, Atkinson said, was to remove eminent domain from the MRA.

These members cited the subsequent inability of governments to improve conditions in their cities and urban sectors. This group asserted that the MRA already requires governments to prove the need for the condemnation and the use of private property through eminent domain.

To date there is no indication that the governor will heed the consultation of the task force. Still, Atkinson is hopeful that the governor will listen to the task force's advice since he plans on addressing a number of legislative committees on its findings before the next legislative session.

Farmington NM Daily Times: http://www.daily-times.com

Broward may end effort to seize church in Fort Lauderdale for recovery center: South Florida Sun-Sentinel, 11/22/06

By Brittany Wallman

Broward County [FL] will consider dropping a two-year effort to force the sale of a church in southwest Fort Lauderdale to make room for a drug and alcohol treatment center.

Commissioner John Rodstrom told his colleagues Tuesday he decided to try to halt the lawsuit after learning a few days ago the county was using government condemnation powers against a religious institution.

County commissioners voted unanimously to hold a private session Dec. 5 to discuss ending the eminent domain lawsuit and to ask the judge hearing the case to put it on hold in the meantime. The county wanted the church's property at 330 SW 27th St. to build a new Broward Addiction Recovery Center for people with drug and alcohol problems.

If the county used eminent domain, it would have to pay for the property, which is appraised at $1.6 million. The county also would be responsible for the church's legal fees.

When county commissioners voted in 2004 to condemn the land, the church was a tenant on the property. The congregation is a rare church of Gypsies, or Roma. Gypsies are a nomadic people thought to have originated in India, now dispersed around the globe.

Rodstrom said the public no longer supports the use of eminent domain in a case like this against a nonprofit. He noted the Nov. 7 voter approval of a constitutional ban on government use of eminent domain for private development, unless it's approved by three-fifths of the state House and Senate. This case doesn't fit that description because it doesn't involve private development.

But Rodstrom said he thinks the public wouldn't support using it to trade one nonprofit for another. Rodstrom said he learned details of the case when he read about it last week in the South Florida Sun-Sentinel. "As district commissioner, it was never divulged to me at any time...that we were doing eminent domain against a religious institution," he said.

Rodstrom said the county could build its drug and alcohol treatment center on land it already owns on the same block by making the building taller.

Pastor Dan Tennis, who leads the Christian Romany Church, said he was encouraged by the news. His attorney, Brian Patchen, could not be reached for comment.

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

Eminent domain foes should stop skewing facts: New York NY Daily News, 11/21/06

By Errol Lewis

Now that a small group of 10 homeowners and one business has filed a federal lawsuit to try to block the proposed $4.2 billion Atlantic Yards project in Brooklyn, it's more important than ever to separate reality from spin in the debate over how, when and why governments use eminent domain - the power to force people to sell their property to the government in order to make way for economic development.

Ever since the Supreme Court used a 2005 Connecticut case, Kelo vs. New London, to reaffirm a centuries-old practice in which governments can order the purchase of property in blighted areas through eminent domain and transfer it to private developers, opponents of eminent domain in Brooklyn and elsewhere have tried to paint a picture of state and local governments rampaging across the American landscape, seizing people's homes willy-nilly in thousands of cases and transferring the property to favored new private parties in secret, semicorrupt deals.

A conservative Washington-based legal group, the Institute for Justice - which brought, and lost, the Kelo case - says it has documented 10,282 wrongful uses of eminent domain between 1998 and 2002. This year, the institute claimed that after the Kelo decision, local governments "threatened eminent domain or condemned at least 5,783 homes, businesses, churches and other properties."

Those would be troubling statistics - if they were accurate.

In reality, according to Profs. Robert Dreher and Johan Echeverria of Georgetown Law School, the Institute for Justice's alarming numbers are little more than a quick-and-dirty count of media reports in which officials said eminent domain might be used. About 90% of those 5,783 cases were such speculative musings, and the group made no attempt to count when a study or public statement led to no further action.

The institute's statistics also are wildly inflated, counting individual properties in one project as separate uses of eminent domain. The alleged 10,000 cases of eminent domain actually involved only 222 projects, according to the Georgetown profs.

The fact the institute cooked the numbers comes as no surprise; the group has been pursuing a hard-right ideological agenda ever since opening its doors in 1991. The group's founder, Chip Mellor, has waged bare-knuckled legal battles for years to defend agencies accused of discrimination and trying to kill affirmative action. Mellor once worked for Clarence Thomas (whom he calls "a mentor").

The institute has gone on to lead high-profile fights to replace public education with a privatized voucher system and block the ability of unions to organize workers. And Mellor's group operates something called the Castle Coalition (as in "a man's home is his castle") - which masquerades as a grass-roots group battling eminent domain but actually is one more arm of the group, dedicated to the overall mission of protecting the conservative big-business interests who fund the institute.

Here in Brooklyn, groups like Develop Don't Destroy Brooklyn and bloggers who support the group's lawsuit against Atlantic Yards often post items from the Institute for Justice, including links advertising T-shirts the group sells. And they parrot the institute's fictitious claim that eminent domain is out of control.

The reality is that the Supreme Court has recognized eminent domain to be a crucial, seldom-used tool that enables local governments to arrange projects like Atlantic Yards that benefit the many and deliver "just compensation" to the few for their property.

New York NY Daily News: http://www.nydailynews.com

RTM may limit town's eminent domain powers: Fairfield CT Minuteman, 11/22/06

By Chris Ciarmiello

Should the town [of Fairfield CT] be able to condemn private citizens' homes and turn the land over to developers if the developers build a private complex that creates jobs, generates tax revenue and, in general, benefits the town? The U.S. Supreme Court has responded with a controversial "yes" to that question, but the Representative Town Meeting could soon say otherwise.

A year and a half after the high court ruled that the city of New London could seize and demolish residential homes as part of a plan to redevelop the struggling area, the RTM is about to vote on legislation that would block such a practice in Fairfield. Under the ordinance, proposed by RTM member James Millington and co-sponsored by six Republicans and four Democrats, the town would be prevented from seizing private, owner-occupied residential property and giving it to developers for economic development projects, if the resulting development would be privately owned or controlled. The proposal was slated to be discussed at RTM subcommittee meetings this week after press time, and then be considered by the full RTM at its Nov. 27 meeting, scheduled for 8 p.m. at Osborn Hill School.

Last month, when presented to the RTM for the first time, the proposal was met with dissent from a few members, and Millington said recently that he was afraid the legislation might get bottled up in a subcommittee. "It is a great concern of mine that people are starting to show opposition to this," he said. While some say they can't imagine a scenario in Fairfield in which the town would take people's homes and turn them over to private developers, Millington said that shouldn't stop legislators from providing residents with protection. "We need to be looking towards the future and ... laying down a blanket of security for future generations," he said, adding that similar eminent domain limitations were approved by voters in eight states on Election Day.

RTM Majority Leader Douglas Jones, D-4, said Monday that, while some members are opposed to the ordinance, he had not heard of any plans to keep it from the RTM floor. Jones said he opposes the ordinance, which he called unnecessary "feel-good" legislation. RTM approval is already required any time the town wants to take land through eminent domain or condemnation proceedings, he said, meaning that the body will have a say should any future land seizure plans arise. "Let's vote on the merits [of individual proposals]," he said.

Landmark case spurs proposal
The motivation for the ordinance was the June 2005 U.S. Supreme Court decision involving New London. The case arose because the city was trying to use its eminent domain powers to seize several privately owned homes and give the land to developers who would create a complex that included a hotel, conference center, new homes, and office and retail space.

Under eminent domain statutes, the government can take private property, provided that it compensates the owner and uses the land for a "public use," such as schools or roads. While the New London development would not be publicly owned or operated, or even fully accessible to the public, the high court ruled that the land seizure fell under the "public use" provision because it was part of a plan to generate jobs and tax revenue for the struggling city. The court's 5-to-4 decision set off a firestorm of controversy, with many saying that it had gone too far in giving the government the right to take people's land.

First Selectman Kenneth Flatto said recently that he supports the local ordinance proposal. "I think it's a reasonable safeguard," he said, though he added that he could not imagine the town ever trying to take people's homes and give them to a private developer. "I do think it is somewhat redundant," he said, but he added that if the legislation makes people feel safer, there is nothing wrong with it.

While there may be no current threat to residential homeowners, Millington said the RTM should still pass the legislation now, rather than wait until it is too late.

Some have discussed having the ordinance apply to the taking of commercial property as well, but Millington said he only wanted the legislation to address the issues raised by the New London decision, which focused on residential property.

The ordinance also applies only to homes whose owners live in them. It also does not apply to properties that contain five or more homes, because such properties are defined as commercial under real estate laws, Millington said. He said the proposed ordinance mirrors legislation approved in Milford and other Connecticut towns.

Fairfield CT Minuteman: http://www.zwire.com

Lawmakers Want Constitution To Limit Eminent Domain: WCPO-TV9, Cincinnati OH, 11/22/06

By Associated Press

Ohio voters may get to decide next year whether to limit government's ability to seize private property.

State lawmakers are considering putting a constitutional amendment on the November 2007 ballot that would prevent people's homes from being taken to make way for economic development.

In July, the Ohio Supreme Court ruled unanimously in a case from the Cincinnati suburb of Norwood that private development isn't a sufficient reason for seizing homes under the state Constitution.

Across the nation, property rights advocates have praised the ruling, which frustrated developers and city officials.

WCPO-TV9, Cincinnati OH: http://wcpo.com

Penn Twp. family fights eminent domain: The Hanover PA Evening Sun, 11/21/06

By Ashley Adams

Dana Heston and her husband Bill are happy with their four-bedroom, two-bathroom brick home on the corner of York and Center streets in Penn Township.

The two say it is a perfect fit for their six children.

Over the eight years they've lived there, Dana said the family has made many improvements, such as building a garage out back and remodeling most of the inside.

But now they could lose their home to eminent domain.

The Hestons went to the Penn Township Commissioners meeting Monday night to get answers but left with nothing resolved.

"You guys haven't given us a time to discuss this issue," Dana Heston said. "We asked to be put on the agenda and you didn't do that. I deserve and we demand the right to defend ourselves and our home. You meet with the developers, but you won't meet with us."

Commissioner Joe Klunk said the public-comment portion of the meeting is not the appropriate time for a discussion with the commissioners. He told Dana and Bill Heston if they didn't have anything further to comment on, they should sit down so the meeting could continue.

Dana and Bill Heston left the meeting angry and upset.

Paul Burkentine of Burkentine & Sons Contractors Inc. is planning to build a development called Brookside Heights on a 40- to 50-acre tract of land to the rear of the Heston property. He has been working on the project for four years.

Burkentine said a traffic study performed during the planning process showed a signal light is needed at York and Center streets, right by the Hestons' home.

Burkentine offered to pay for the signal, which he said is needed because of the increase in traffic – not only from his subdivision, but from other subdivisions that have sprung up in surrounding areas in recent years.

Penn Township Manager Jeff Garvick said the need for a traffic light at the intersection of York and Center streets dates back to the 1970s. Garvick pulled out the township's comprehensive plan as proof.

"Traffic counts continue to increase," Garvick said. "This is not something we just pulled out of our hats."

Changes to the intersection would include adding left-turn lanes on York Street, widening Center Street to 34 feet and widening York Street to 35 feet. Because both streets will be widened, right-of-way easements at the intersection are needed.

So Burkentine went about the task of acquiring the necessary easements on all four corners of the intersection. He secured easements and rights of way on three out of the four corners.

"Everyone was good to work with, it just took time," he said.

The only property left to acquire is the Heston home.

Dana Heston said her family is willing to move, but they want the fair-market value for their home – something, she said, hasn't been offered to them.

Two years ago, she said, Burkentine came to the family, explained the situation and offered to buy the property for $160,000. He also offered to give the family another property he owned that's similar to their current house.

Dana Heston said her family was willing to take the offer, but it was suddenly taken off the table and another offer of $132,000 was given. Dana and her husband just laughed at that. Their home was last appraised at $161,000. They countered Burkentine with a new asking price of $350,000.

"This is our home," she said. "We want a fair price for it."

Since then, Dana Heston said, Burkentine will not answer her calls nor calls from the family's lawyer. As far as she is concerned, the deal is off.

But Burkentine said the final offer for the Heston home was between $160,000 and $165,000 and he has continued to try and negotiate over the past two years but the family isn't answering his calls.

So, as a last resort, Burkentine went to the township for help.

Garvick said the township was trying to stay out of the negotiations between the developer and landowner. But since an impasse has been reached, there is nothing else the township can do but take the property by eminent domain, he said.

"The commissioners are not happy about having to do this," Garvick said.

The Fifth Amendment to the U.S. Constitution gives the federal government the right to take private property for public use as long as just compensation is given. The due-process clause of the 14th Amendment allows a state or local government body to take private property with just compensation for the good of the public.

Garvick said the improved intersection at York and Center streets is sorely needed and a major benefit to the safety of the community.

"This signal is necessary in order for us to continue to grow as a township," Garvick said. "It is a matter of individual right versus collective good. Bill and Dana are great people. I feel bad."

But Dana Heston and her family are still mad. Their home is being taken and they blame Burkentine and Penn Township. Dana said someone needs to speak up against the township taking properties for the benefit of developers.

Burkentine, on the other hand, doesn't feel he deserves to get the blame.

"This is an off-site improvement we are offering to do," Burkentine said. "The big thing is that this is something being done for the safety of the community. We are helping the township by paying for this improvement."

Garvick said the commissioners have not voted on whether to approve an ordinance of condemnation for the house yet. Once that is done, the township will make an offer to the Hestons and proceed with the eminent domain.

"There are laws to handle this sort of thing," Garvick said. "We are going to let the laws handle this."

The Hanover PA Evening Sun: http://www.eveningsun.com

Stay granted in eminent domain case in Long Branch, N.J.: New Jersey Eminent Domain Blog, 11/20/06

By William Ward

he Appellate Division of the New Jersey Superior Court granted the request of property owners Louis and Lillian Anzalone for a stay of the eminent domain action threatened against their home located at 32 Ocean Avenue, Long Branch, New Jersey. The Order for Stay, signed by presiding judge Jack L. Lintner, will prevent Long Branch from seizing the Anzalone property while the appeal is pending. The City of Long Branch also filed a motion to accelerate the appeal. That motion was denied.

Superior Court Assignment Judge Lawrence Lawson previously denied a stay to the property owners in the MTOTSA neighborhood in his 60-page opinion issued on June 22, 2005 (http://www.njeminentdomain.com/state-of-new-jersey-kelo-anniversary-the-eminent-domain-abuse-saga-continues.html). The decision of the Appellate Division is significant because the property owners had to demonstrate a probability of success in the merits of the appeal in order to meet the standard for obtaining a stay. Stays are not automatically or routinely granted in condemnation matters.

This is a significant victory for the property owners and bodes well for a favorable decision on the merits of the case. For both orders of the court: http://www.njeminentdomain.com/ANZALONE-MOTION%20FOR%20STAY.PDF

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

Camden needs eminent domain: South Jersey Courier Post, 11/19/06


By Arijit De

In a recent front-page article in the Courier-Post, an attorney with South Jersey Legal Services argued that all of the plans to redevelop Camden should be stopped while the governor names a new chief operating officer.

As the article noted, Legal Services opposes any redevelopment project which calls for the city to use the power of eminent domain. The position taken by Legal Services is shortsighted and threatens to prevent the revitalization of "America's poorest city."

The problems in Camden are well known: poverty, crime, a failing educational system, low tax base, etc. The problems are so severe that Camden is the only city in New Jersey under state supervision. COO Randy Primas, who recently announced his resignation, recognized that the city could not be revitalized without comprehensive redevelopment plans.

Efforts halted
However, his efforts to revitalize the city have been stalled by lawsuits filed by Legal Services. Legal Services has taken the extreme position that there should be no redevelopment in Camden if it involves the relocation of even one family. When Legal Services filed suit to block the Cramer Hill redevelopment plan, a mediation session was quickly arranged with a retired appellate judge. The mediation failed because the Legal Services attorney told the judge she would not negotiate if the redevelopment plan included the use of eminent domain to acquire even one occupied residential property. The judge commented on the unreasonableness of her position and quickly adjourned the mediation.

Legal Services has taken similar and equally extreme positions regarding redevelopment plans for Waterfront South. Legal Services objected to the use of eminent domain in this environmentally challenged neighborhood, even though more than 40 residents of the homes targeted for acquisition asked [to be], and in fact have been, relocated.

Legal Services has taken the same position in Bergen Square, arguing that this neighborhood, where more than 50 percent of the properties are vacant and which has lost more than 13 percent of its population in the last 10 years, is not in need of redevelopment.

Change needed
No reasonable person would dispute that Camden needs drastic change. It needs to rebuild its tax base and bring back its middle class. The redevelopment plans promoted by Primas would do just that. And, the plans provide that residents will be relocated in similar homes in their neighborhood. There is certainly room in Camden for more people - the population of the city has dropped by more than 45,000 over the last 50 years.

Of course, Camden and other distressed cities cannot be revitalized with only public funds. The state of New Jersey already provides Camden with most of its operating budget, but clearly will not provide sufficient funds to rebuild the city. Furthermore, there is little federal aid available for urban renewal.

Private investment is the only way Camden can be revitalized. Private redevelopers will not get involved in Camden or any other distressed/urban area unless there is an opportunity for a profit. Redevelopment on the scale that is needed in Camden cannot be accomplished unless land is assembled for a redeveloper. Land cannot be assembled for redevelopment unless a municipality has the power of eminent domain.

Court decision
Legal Services and other opponents of eminent domain have been mobilized since the Supreme Court decision in Kelo v. City of New London, Conn. Retired Justice Sandra Day O'Connor, in her dissent, criticized the majority's decision because it would allow a city to acquire and demolish a Motel 6 in order to build a Ritz-Carlton. Camden of course has no Motel 6 - or any other hotel or motel for that matter.

While eminent domain may or may not have been abused in New London or other suburban towns, the situation in Camden is totally different. While the number of homes which need to be acquired by eminent domain may be debatable, the necessity of the city's power to use it is not. Those who blindly oppose any redevelopment in Camden if it includes the possible use of eminent domain for even one residence are ensuring that Camden will continue to deteriorate. The power of eminent domain must be available if the city is to move forward and lose the label of "America's poorest city."

South Jersey Courier Post: http://www.courierpostonline.com

Arijit De is executive director of the Camden Redevelopment Agency:

How to handle eminent domain disputes: Des Moines IA Business Record, 11/19/06


By Rick Carter and Larry Curtis

You are notified that your city government is interested in buying your property "at a reasonable price." The area is to be developed into a shopping and entertainment quarter. You and your neighbors live in a quiet, peaceful part of town, close to amenities. But you know that if a settlement is not reached between you and the city, the city might be able to take your property anyway through "eminent domain." The city argues that, although little of the area has actually been claimed by developers, this is the best area for development. Besides, it fits well with the city's Conceptual Development Plan.

The way you see it is that because of a distant promise of increased tax revenues and growth, the city is destroying a wonderful neighborhood. The city council has no visible incentive to ensure that growth will actually materialize and little reliable expertise in knowing or understanding what really works. The city leaders are relying on engineering and economics staff people who might know very little more. You cannot help wondering if someone in the government has been offered private incentives to open the area to development.

The mayor and council, on the other hand, want to make real progress during their watch. They see your neighborhood obstructing commercial expansion by sitting in the path of the growth the CDP promises. By opening this area rather than an undeveloped section, new street access and utility trunk lines will not be necessary. Moreover, a number of developers have expressed interest in the area. They can only see the good in the exercise of eminent domain if necessary, resulting in lower taxes for residents and new and exciting facilities for the community.

Who is right? Both sides have valid points, but there are realities:
  1. Governments have no immediate and direct incentives to ensure positive long-term growth. Hence we must trust in their dedication to the common good, yet be watchful for ulterior motives,
  2. Few have the expertise and experience to predict what specific part of a city will be most attractive to future business, or fit best with future product and service delivery modes. Interference with natural market progression may result in negative consequences,
  3. Many developers do not know when to stop. An example is Houston in the 1980s. Once they are done with one project, they will pour themselves into the next. After all, developing is what they do,
  4. Business development increases the tax base and often improves employment. Business taxes are more efficient than residential. For every tax dollar the city receives, it pays out $1.22 in services for residential properties but only 30 cents for commercial.
  5. With growth come problems: more traffic, more demand for services - water, police, fire protection, snow removal, etc.

What is the solution? We are firm believers in markets. Unimpeded, they can work for the public good. But is it good to handcuff local governments with laws that can suppress progress? The solution is in the community itself. We all must be mindful of what is happening to our city and our citizens. With open-meeting laws, access to all kinds of information and the ability to meet with members of government at every level, there is little excuse to let city officials ramrod their plans for the future through to fruition. No project can be completed without community support - either directly or by lack of opposition.

When someone else's neighborhood is threatened by eminent domain, you must ask yourself two questions:
  1. Is this right for our community?
  2. Will they be coming for my house next?

Des Moines IA Business Record: http://www.businessrecord.com

Rick Carter (rbcarter@iastate.edu) is a professor of finance, and Larry Curtis (lrcmayor@iastate.edu) is adjunct assistant professor of accounting in the College of Business at Iowa State University:


Proposed charter amendment in Creve Coeur targets eminent domain: St Louis MO Post Dispatch, 11/17/06

Supporters gather signatures to put measure on ballot

By Erin Taylor

Several Creve Coeur City Council members spent part of Election Day last week collecting signatures at polls to put a proposal regarding eminent domain on a future ballot.

The goal would be to amend the city charter to require a "supermajority" of council votes to approve the use of eminent domain.

Councilman David Kassander, Ward 3, said preliminary counts indicate proponents exceeded the 1,250 signatures needed to put the issue on a future ballot.
If approved by voters, a supermajority of six council members - rather than five - would be needed to authorize the use of eminent domain in the city

The group spearheading the proposed charter amendment is made up of four council members - A.J. Wang, Ward 2; Kassander, Ward 3; Jeanne Rhoades, Ward 4; and Laura Bryant, Ward 4 - as well as several city residents.

There have been ongoing disputes in the city regarding the use of eminent domain, due in part to the Olive Boulevard Transportation Development District (TDD). A city task force was created late last year to study the issue and make recommendations.

Within the TDD, an additional sales tax is levied on retail sales to fund infrastructure improvements along Olive Boulevard.

The task force made several recommendations, one of which states that eminent domain should not be used unless the action is "not primarily for economic development purposes."

At a task force meeting in June, Susan Murphy, who served on the task force on behalf of the Creve Coeur-Olivette Chamber of Commerce, said she did not agree with a simple majority vote to approve the use of eminent domain for projects relating to economic development.

A simple majority vote would be acceptable if the project were to benefit the public overall rather than a developer, Murphy said.

A motion at the same meeting, recommending a supermajority vote to approve any use of eminent domain, was defeated.

A bill introduced at a City Council meeting in September that would have allowed placing the proposed charter amendment on the Nov. 7 ballot received the support of five council members but did not pass.

"The Creve Coeur City Council has been extremely divided on the issue of eminent domain, particularly with three council members and the mayor sitting on the Olive Boulevard TDD board," Kassander said.

"We just don't want to risk the council voting this down again," he said. "Our goal is to provide Creve Coeur voters with a genuine opportunity to be heard on this vital issue that directly or indirectly affects us all."

St Louis MO Post Dispatch: http://suburbanjournals.stltoday.com

Eminent Domain Fight Not Over Yet, Say Supporters: San Diego CA Business Journal, 11/20/06

By Michelle Mowad

The ability of government to take private property for public use was challenged in the Nov. 7 state election [in California]. And while current eminent domain law was upheld, many believe the fight for reform is far from over.

Proposition 90 asked voters if state law should be amended to limit government’s ability to take private property through eminent domain. Though 53.6 percent of San Diego voters voted in favor, only 47.6 percent of voters statewide supported the measure.

Supporters argued the ballot measure would stop government from taking property through unfair use of eminent domain and without just compensation.

Opponents said Proposition 90 would enable landowners and corporations to demand huge payouts from state and local taxpayers and halt construction of needed projects.

Ruben Garcia, district director for the U.S. Small Business Administration’s San Diego District Office, said he expects this issue to remain on the minds of local business owners for the foreseeable future. He said many were relieved that the proposition failed while others remain concerned.

“I don’t think that the eminent domain reform is going to go away,” said Garcia. “I think there are too many people that are concerned about government being able to take land and not pay market value or give proper compensation.”

Garcia said proponents argued that without the use of private land for public growth development will come to a halt.

Bruce W. Beach, partner with the San Diego office of Best Best & Krieger LLP, criticized Proposition 90 by stating it was too broad and poorly drafted.

Beach, who represents public and private clients in eminent domain proceedings, said many changes have already been implemented by the Legislature to address criticisms in the process.

Changes include covering property owners’ costs to have appraisals conducted if they choose not to settle, and a clause for property owners to be able to buy back their property if it is not used within a set time period.

“Parts of Proposition 90 would have dramatically changed the way eminent domain was done in this state and almost all other states,” said Beach. “Proponents intended to keep public agencies from using eminent domain by making it so expensive that it would be almost impossible to use.”

The Centre City Development Corp., San Diego’s downtown planning and redevelopment agency, has used eminent domain for numerous projects both public and private.

The CCDC acquired 56 properties for Petco Park from 1998 through 2003 and 33 properties for the development of Horton Plaza in the late 1970s through early 1980s.

San Diego CA Business Journal: http://www.sdbj.com

Legislature, governor tinker with eminent domain: Sacramento CA Bee, 11/17/06


By Timothy Sandefur

The U.S. Supreme Court's notorious 2005 decision in Kelo v. New London allowed state and local governments to condemn private land and transfer it to developers to construct shopping centers or other private development. The ruling led to a nationwide outcry, and last week voters in nine states adopted new restrictions on eminent domain to prevent such abuses.

In September, Gov. Arnold Schwarzenegger signed five bills that he claimed would rein in abuses of eminent domain in California. Unfortunately, these laws accomplish little - they simply tinker with procedural details while leaving the state's abusive redevelopment industry intact.

For example, SB 1206 is supposed to narrow the legal definition of "blight" - an important step because current law defines that term so vaguely that virtually anything can qualify. Once politicians declare a neighborhood "blighted," they can use eminent domain to take any land there and give it to developers.

However, the new law does not fix the problem. Instead, it allows officials to declare property blighted whenever they think there are "abnormally low lease rates," "conditions that prevent or substantially hinder the viable use or capacity of buildings" or "nearby incompatible land uses that prevent the development of ... the project area." What qualifies as "viable," "abnormal" or "incompatible" is still left to politicians to decide.

The bill also requires cities to file various reports whenever they propose to redevelop neighborhoods, but in practice, this does virtually nothing to restrict their almost unlimited power to redistribute land.

SB 53 is even less effective. Under current law, once a neighborhood is declared "blighted," that designation applies indefinitely, allowing officials to seize the land at any time. But while the new law claims to put a time limit on blight designations, it actually gives government unlimited authority to renew them at any time. Nor does it put any actual limits on eminent domain. In fact, SB 53 declares that cities "may" refrain "from acquiring by eminent domain specified types of real property, including ... residential property." That's right - politicians "may" decide not to take your home. But if they want to, this new law won't stop them.

SB 1210 requires government to pay a property owner's attorney's fees if a court later finds that the government failed to offer the owner a reasonable amount for the land. How come it doesn't define "reasonable" or change existing "quick take" rules that unfairly block property owners from challenging the government's right to seize their land in the first place? "Quick take" procedures allow government to take land immediately by depositing the amount it estimates the property to be worth into a bank account controlled by the court. Property owners are not allowed to touch the money unless they waive their right to challenge the taking. Given such rules, most property owners - knowing how hard it is to beat city hall - take the money and give up. The new legislation leaves this unfairness in place.

SB 1650 and SB 1809 are even less limiting on eminent domain. The first restricts government's power to change the use of land after it has been taken, and the second requires government to file a disclosure notice with a county recorder when it targets a neighborhood for redevelopment.

But neither creates any actual protection for people whose homes and businesses might be taken by bureaucrats who want to give that land to someone else.

According to a June report by the Castle Coalition, the nonprofit group that litigated the Kelo case before the U.S. Supreme Court, California officials have seized 50 properties for transfer to private developers and have threatened to condemn 296 more in the 16 months since Kelo was decided.

In that same period, more than half of the other states have enacted new restrictions on eminent domain. Yet California's lawmakers don't seem to think the issue is important enough to act. They spent 2006 shooting down any attempt at genuine reform, substituting instead these five insignificant changes that leave home and business owners vulnerable to unfair takings.

Meanwhile, Proposition 90 - a clumsily written attempt to restrict eminent domain abuse - was narrowly defeated at the ballot box last week. That initiative would have provided powerful protection against use of eminent domain for wholesale "redevelopment," and would also have required government to compensate property owners when it deprives them of their property rights through regulation as well as when it uses eminent domain to take their land outright.

This is a controversial idea, yet despite that fact, and despite the initiative's many technical flaws, about 3.3 million Californians said "yes" to it, indicating they are outraged over government's ravenous appetite for land. Window dressing like the five new eminent domain laws is unlikely to appease their desire for reform.

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

Timothy Sandefur is a staff attorney at the Pacific Legal Foundation, specializing in eminent domain, and author of the book "Cornerstone of Liberty: Property Rights in 21st Century America" - tms@pacificlegal.org

Eminent domain off the map in Harrison: Gloucester County NJ Times, 11/17/06

By Matthew Ralph

The [Harrison NJ] township planning board inserted language specifically opposing eminent domain in an open space and recreation plan Thursday, after hearing concerns over a map of proposed greenways along environmentally sensitive areas included in the plan.

The amended plan, originally presented to the board by the Delaware Valley Regional Planning Commission (DVRPC) more than a year ago, will be included in recommendations the planning board will eventually propose to the township committee as part of an ongoing master plan review process.

The open space plan was one of several items the planning board reviewed at the first of at least two public meetings for the master plan review held Thursday night at the Toscano Center at Clearview Regional High School. About 150 people attended the meeting, which included a presentation about a proposed Richwood Town Center and a discussion of raising minimum lot sizes. A second public meeting to discuss the master plan review is scheduled for Nov. 27.

Several residents in attendance raised concerns over the greenway map, which was characterized by officials as a "guideline" and "wish list" to use for future conservation and open space planning.

Andrew Worick, who owns a horse farm on North Main Street, said he was concerned that having his property included on the greenway map would diminish its value and encourage trespassing. He said he was also concerned about what he characterized as a vague and open-ended map.

"I'm not ready to have (my property) tampered with unless you tell me something more definite," Worick said, expressing a concern that the map would open up the door for possible use of eminent domain in the future.

Other property owners who spoke expressed concern that the greenway would open the door for trails to be forced upon private land owners.

"What scares me is the power a guideline has," said Bernadette Simonetti, a High Street resident.

Suzanne McCarthy, a planner for DVRPC, said the greenway map would not take away any rights from property owners, but rather guide the township in approaching land owners to discuss preservation. She said any action within the greenway would have to be done strictly on a voluntary basis.

"Greenways are not a trail," McCarthy said. "It doesn't involve the taking of land. The open space plan is a pre-approved list of land that could be preserved."

Mayor Phil Rhudy, who sits on the planning board, suggested the inclusion of language in the open space that eminent domain would not be used to preserve any properties included in the greenway map. The plan already included an action plan outlining a preference for property acquisition using open space funds.

The township started a land preservation committee earlier this year that has already successfully negotiated with three property owners using money from a dedicated municipal open space tax to purchase easements and additional features of property to add to the pool of money offered by state and county preservation programs.

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

N.J. Judge Suggests Eminent Domain For Takeover Of Beach: NBC-TV10, Philadelphia PA, 11/17/06

Government officials from the state of New Jersey who want to force five Surf City residents to give them permanent access to the beach are between a rock and a hard place.

A judge says the state's attempt to control the privately owned land in perpetuity is too long a time.

The judge is suggesting the state seize the land through eminent domain. In that case, the state would have to pay for the property.

The state says the federal government is insisting on permanent access as part of its beach replenishment program.

The property owners say signing over rights forever amounts to an illegal taking.

NBC-TV10, Philadelphia PA: http://www.nbc10.com

The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch

New book

By John Ryskamp

What's behind the anger against eminent domain? It's a movement sweeping your state and the entire country. This book is an in-depth analysis of the profound legal issues, and proposed changes which go far beyond seizing property and land use regulation.

It provides an up-to-the-minute report on the law and politics of eminent domain after the Supreme Court's contentious Kelo v. New London decision of June of 2005.

States are debating reforming their eminent domain laws, and this presentation is intended to help legislators frame the debate. As such, it goes into the history out of which the Constitution arose, as well as legal background. In the Lindsey v. Normet Supreme Court case, 405 US 56 (1972), for instance, the Court found there was no right to housing, which the author asserts is one of the reasons we are in the midst of this eminent domain controversy now. However, the Court made it clear in its decision that it was simply the argument which was not convincing, not that such a right could not be found.

This book presents, among other things, a new housing right argument. However, the dominant theme is the unsettled nature of the law and facts of the controversy.

In an area in which public opinion will determine much of the outcome, there are no experts; public opinion is just beginning to coalesce and people need to inform and think for themselves.

What is needed is information, and a clear presentation of arguments to use when testing their various views. Legal scholars may disagree about Ryskamp's assertion that the right to housing falls under Fifth Amendment's Due Process clause, but the book will convince many readers that we have to start working to understand the legal principles involved

Available online from Amazon Books:

Public advocate hears eminent domain defended: Asbury Park NJ Press, 11/16/06

By Carol Gorga Williams

Usually when [new Jersey] Public Advocate Ronald K. Chen speaks out about the evils of eminent domain, he does so surrounded by a crowd of people who say they have been done wrong by the process.

But Wednesday at the Atlantic City Convention Center, he confronted a completely different animal: as a guest of the New Jersey State League of Municipalities, he was speaking — by and large — to government officials who rely on the controversial power to pursue public improvement projects.

Chen was joined by M. James Maley Jr., mayor of Collingswood, Camden County; Sen. Ronald L. Rice, D-Essex; Assemblyman John Burzichelli, D-Gloucester, and Edward J. McManimon, special counsel to the league, for a panel discussion on "Economic Development and Eminent Domain."

Earlier in the day, Chen had joined Long Branch City Attorney James G. Aaron and lawyer Peter H. Wegener, who represents clients in the Marine Terrace, Ocean Terrace, Seaview Avenue area of Long Branch who are appealing a June 22 decision by Superior Court Judge Lawrence M. Lawson that upheld the right of the city to use eminent domain to acquire MTOTSA properties for the redevelopment of Beachfront North Phase II.

Chen has filed documents in support of MTOTSA in its appeal and on Wednesday, the advocate announced he was doing the same for 200 or so trailer park residents in Lodi who face eviction under the power of eminent domain so officials in that Bergen County municipality can locate a strip mall and senior development in its place.

In both discussions, Long Branch, which some have argued has become the "poster child" for eminent domain abuse, was not far from people's minds and tongues.

Rice, who is chairman of the Senate Community and Urban Affairs Committee, and Burzichelli, who is chairman of the Assembly Commerce and Economic Development Committee, both have eminent domain reform measures in their respective houses. Rice said he is prepared to do some compromising so the two can come up with a unified bill and expects to see some action on his measure within 30 days.

"I don't like the Long Branch situation," said Rice, noting people are still waiting for the project to go forward years after it was approved.

Chen's office prepared a report on eminent domain in May which concluded the power was necessary but needed substantial revisions to make it more fair to property owners.

"Eminent domain, at times, is a necessary tool, not one we look at with affection," said Chen, noting New Jersey was substantially different from the wide-open space of South Dakota, where the use of eminent domain for economic development was recently outlawed.

"It would be counter to the public interest to limit it completely," said Chen.

Chen said eminent domain should be permitted only if the area is blighted and there are serious problems with the acceptable definition of blight, he said. Some definitions are so "malleable and permeable, they can be contracted to reach all sorts of results."

He used the example of an "underutilized" property as a definition that was too imprecise to be used. He said the definition of "underutilized, which, depending on one's enthusiasm, could be any land, up to and including Drumthwacket as I have mentioned, upon occasion, to the current inhabitant."

Drumthwacket is the official governor's residence and it was Gov. Corzine who asked Chen to look at eminent domain as one of the first duties of the newly resurrected Office of the Public Advocate.

Another major point centered on compensation for property owners. Right now, homeowners often have to settle for "fair market value" but Chen hopes "replacement value" that would fully fund a comparable home nearby could be used.

"I think we all know these days that fair market value is not always fair," said Chen, noting homeowners need to be made "whole" by the eminent domain process, not priced out of the market.

Dick Tighe, a councilman in Morristown, urged officials to proceed slowly with eminent domain reform.

"This law has worked for years," Tighe said. "It has worked with eminent fairness. You really can't screw this law up too much because it has been working."

James Vassanella, a Franklin Township Council member in Somerset County, asked the legislators if they were prepared to consider pay-to-play and campaign financing reform as part of the eminent domain issue. He said, "without a dramatic change in pay-to-play and campaign finance law," eminent domain abuse would likely continue.

Only Rice responded to his question and he said the issue of pay-to-play reform would not be part of eminent domain reform because it was being addressed by other legislation.

"It is wonderful to say pay-to-play," Rice said. "It is wonderful to say a lot of things . . . We're doing pay-to-play in New Jersey. We can never seem to do enough."

Rice said he would not cave in to special interest groups on this.

"I can only put so much in one bill," he said. "It is not an area I'm looking to address."

Asbury Park NJ Press: www.app.com

Eminent-domain fight to move back to Legislature: Capitol Weekly News, 11/16/06

By Colin Rigley

Despite the rejection of Proposition 90 [in California], property-rights activists, local officials and state lawmakers all have eminent domain on their minds as they look to the 2007 legislative year - and the 2008 ballot.

The eminent-domain issue is still on the table, said Jean Hurst of the California State Association of Counties. "CSAC is very open and eager to resolving the eminent-domain abuse question."

But Proposition 90 supporters say the solution being crafted by local officials and developers - Proposition 90's strongest opponents - is not likely to satisfy them.

"I think you're going to see a lot of maneuvering on their part, and some interesting dynamics involved in the next year," said Kevin Spillane, who consulted the Yes on 90 campaign. "I think we can anticipate their plays, and we're going to take our own counter-measures based on what we know they're going to do."

The Legislature tried, through several different legislative vehicles, to deal with the issue in the wake of the U.S. Supreme Court decision in 2005 in the case of Kelo v. New London. The ruling effectively allowed for local governments to exercise eminent-domain rights to transfer private party to another owner if it constitutes a "public benefit."

"What they're trying to do now is a sham piece of leg which isn't pure Kelo reform, but simply claims to be," Spillane said. When asked if the fight over eminent domain was over, he said, "Oh, hell no."

The Kelo decision sparked a wildfire of legislation across the country, with over 30 state bills and propositions seeking to find a solution to the new ruling. Similar measures to Proposition 90 have passed elsewhere, such as in Arizona and Nevada, but opponents in California said the law effectively would undermine the zoning power of local governments.

Hurst said CSAC hopes the Legislature can come up with a compromise that avoids a rematch of the Proposition 90 ballot showdown. "I think that [the Legislature is] the best avenue. … I think you come up with a resolution that the Legislature can get behind, the governor can get behind. We've seen those types of things in the past."

"I expect the Legislature to take this issue up early. We are going to encourage them to do so," said Chris McKenzie, executive director of the League of California Cities. "We are prepared to sit down with the Legislature to negotiate a true eminent-domain procedure. … We can avoid a lot of the drafting problems that come with initiatives … through the Legislature."

Spillane downplayed chances of a compromise between the two sides. "These are not people who have a history of acting in good faith," he said, specifically naming developers, the League of Cities and the California Redevelopment Association as sources of his ire.

The League of Cities and CSAC were among the chief opponents of Proposition 90 this year, part of an ideologically diverse coalition that included the state Chamber of Commerce. Opponents of Proposition 90 felt that the sections of the measure pertaining to eminent domain were not the problem. "The proponents of Prop. 90 had an agenda," said Trudy Schafer of the League of Women Voters of California.

"California never was as subject to the problems that the Kelo decision revealed as other states. The fact was that in California, property was supposed to be blighted," said Schafer, who, among others, supported the more simple and direct language of Measure O.

Despite the failure of Proposition 90, proponents seem to be gearing up to put a similar measure back on the ballot. "I've received a number of press releases that say, 'Hey, we're [Prop. 90 proponents] back in '08,'" Hurst said. "I think I have folks who are really on both sides of the issue, but I think they understand the public's desire to see these kinds of reforms."

Of those who spoke on this issue, the general opinion is that Californians still express a strong desire to reform eminent-domain law. Proposition 90's failure does not seem indicative of a population that does not want to see these types of reform, but rather a sign that eminent-domain amendments need to get right to the heart of the issue. Private-to-private transfers still remain a serious concern, sliding more toward the evil side of the scale than necessary.

"Whether it is more controversial now with the failure of 90, I can't measure," McKenzie said. What does seem certain is a new wave of legislation aimed at this issue. "After the Kelo decision, after a lot of legislative debate, it became clear that the public was very interested in some kind of checks on so-called eminent-domain abuses. We are ready and willing to engage in those kinds of discussions," Hurst said.

A few local officials saw potential in Proposition 90, but were put off by the so-called tricky language, and therefore drafted measures of their own. Measure O in San Bernardino County and Measure P in Anaheim both passed despite Proposition 90's statewide failure.

Measure O was drafted by San Bernardino County Supervisor Bill Postmus in direct response to the Keno decision. "The reason San Bernardino County, or the board of supervisors, proposed this was the same reason why Prop. 90 was proposed … because of the Supreme Court decision. … The measure they drafted was actually very simple, it amended the county charter to 'prohibit the use of eminent domain by the county to acquire property from a private owner … without such owner's consent, for the purpose of conveying the property so acquired to any private party,'" said Postmus' spokesman David Zook.

Capitol Weekly News: http://www.capitolweekly.net


Messengers approve resolution on eminent domain: Raleigh NC Biblical Recorder News, 11/15/06

Messengers to the 2006 annual meeting of the [North Carolina] Baptist State Convention (BSC) approved a resolution dealing with churches that lose their property through the exercise of eminent domain, restored escrowed funds to Baptist Retirement Homes, and raised other issues during miscellaneous business sessions Nov. 14.

Deryl Holliday, interim pastor of Sedgefield Baptist in Greensboro, successfully asked messengers to suspend the rules that require resolutions to be published in advance so he could present a resolution.

Sedgefield Baptist sits in the path of a planned six-lane highway, he said, leading the state to claim the property through eminent domain. Holliday said it would take a million dollars to replace Sedgefield's land and facilities, but the state offered $400,000 less.

Holliday asked messengers to approve a resolution supporting an upcoming bill in the N.C. legislature that will require the state to pay replacement value for any land or facilities belonging to churches and non-profit organizations that is claimed through eminent domain.

The motion passed with no apparent opposition.

Raleigh NC Biblical Recorder News: http://www.biblicalrecorder.org

Eminent domain is last resort for Walker Tower Avenue project: Walker MN Pilot-Independent, 11/15/06

By Dean Morrill

The Walker City Council decided it couldn't wait any longer and will proceed with eminent domain action to complete the Tower Avenue and Second Street projects to connect to Highway 371.

Over the last few months, the city has been talking with property owners to purchase easements, based on market values.

At the Nov. 6 regular meeting, the council decided not to wait any longer and to move forward with eminent domain. The project includes road, water and sewer to the new Walker Area Community Center that is already under construction.

The council, which first discussed eminent domain at the Sept. 18 special council meeting, said this is a last resort to obtain the property owned by Living Waters Church and Pat Tabaka.

Scott Bruns made the motion, seconded by Ken Bresley, to proceed with eminent domain. John Fjelstul and Mayor Brad Walhof all approved the measure, with Mary Beth Mohr voting against.

The resolution directs city attorney John Valen to acquire the real estate and to notify the owners of the city's intent to take possession.

The Living Waters Church property includes 0.46 acres of permanent right-of-way, 0.13 acres of drainage easement and 0.08 acres of temporary slope easement that will be returned to the church once the project is complete.

The city needs three parcels of Tabaka's property. The first includes 0.27 acres of permanent easement and 0.30 of temporary slope easement. The second parcel is 1.05 acres of permanent right-of-way, 0.04 of permanent driveway easement and 0.18 acres for temporary slope easement.

The final parcel is 0.26 acres of permanent drainage easement.

Tabaka gave the Walker Area Community Center board the property it needed to build the center.

In ongoing discussions with the Walker American Legion Club, both parties have agreed to complete a business subsidy agreement to finalize a tax abatement on the increased assessed market value of the club's new renovation project.

Over a 15-year period, the city would abate $74,034.83 in taxes based on a renovation project, while the Legion will continue to pay the taxes they currently do.

No timetable was set for when both parties would finalize the agreement.

Walker MN Pilot-Independent: http://www.walkermn.com

Sheffield Lake approves eminent domain: Lorraine OH Morning Journal, 11/15/06

By Megan King

[The Sheffield Lake] City Council last night unanimously approved an eminent domain action to take a piece of property from Shoreway Shopping Center on Lake Road. The city wants the land to use for overflow parking for a planned boat launch and expansion of Community Park.

Mayor John Piskura told council members that the Ohio Department of Natural Resources was ''adamant'' about having the parcel of property for overflow parking at the boat launch, which the city hopes to have open in June.

After negotiating with the Levin Trust, owners of the Shoreway Shopping Center, to lease or buy part of the property, the city opted for eminent domain as a last resort, according to Piskura. Eminent domain allows the city the take the property for the public good at a price determined by a court.

Law Director David Graves said the city had been unsuccessful in reaching an agreement with the owners. Council's vote last night is the first step in the process of acquiring the property, he said.

''This parcel makes the most sense and is the one the ODNR feels is appropriate,'' Graves said.

The parcel is 1.08 acres and its appraised value is $190,000, according to the resolution passed by council.

Graves said the city will now provide notice to the ownership and any other interested parties in the property and then council will have to pass another resolution to sent the process to Lorain County Probate Court.

Piskura said last week the case for an eminent domain action on the property was ''cut and dry'' because the boat launch parking area is clearly for a public use.

The city also hopes to have the shopping center itself redeveloped.

Piskura said in July the city made a $4.48 million offer to purchase the entire shopping center, but the owners countered with a $6.5 million price and said they were not in a position to redevelop the property.

Piskura had also proposed a plan in July to have the owners demolish the south end of the strip, make repairs to the parking lot and entrances, landscape the property to the city's satisfaction and install sidewalks on the south side of Lake Road. The city would have agreed not to pursue eminent domain and send would-be investors to the center's management.

The shopping center will be studied as part of the city's urban renewal plan to determine if the center is in a blighted condition and what may need to be done to develop it, according to Piskura.

The owners of the center are reluctant to redevelop it and redeveloping the entire center ''may require further court actions,'' according to an e-mail newsletter sent by Piskura last week.

Lorraine OH Morning Journal: http://www.morningjournal.com

Lilburn council may use eminent domain for trail: Gwinnett County GA Daily Post, 11/15/06

By Alicia Johnson

The city of Lilburn may soon be claiming eminent domain to complete the Camp Creek Greenway trail after the City Council approved a declaration of taking resolution Monday.

The city has been in negotiations for the last six months to purchase rights-of-way and easements through nine properties, but have been unable to reach agreements with the owners. Monday’s resolution is the first step in condemnation proceedings for the nine properties.

“This is not something we want to do,” Mayor Jack Bolton said. “This will allow us to use this tool if we have to, but we are still hoping to come to an agreement with the property owners.”

The council hired a state-certified appraiser to value the property and has made offers based on those appraisals. Recent counteroffers from property owners are still far from what the city is prepared to pay, in some cases double.

“I believe I am being reasonable,” property owner Jeff Krueger to the council. “Your representatives are not. The appraiser valued just the strip of property you want to take without consideration of what else is on the property. This trail will pass within 2-feet of the back of my building.”

Council member Ken Swaim voted against the declaration of taking.

“I am against condemnation, but I am for the walking trail,” Swaim said. “I know it seems like a contradiction, but it isn’t. I just don’t like eminent domain.”

The council began working on the greenway in 2004. The planed 4-mile trail will travel along Camp Creek beginning at Rockbridge Road and traveling through the city and Lilburn City Park and end at Arcado Road. The first section will be from Lions Club Park to Lilburn City Park and is expected to cost approximately $1.4 million to complete.

Gwinnett County GA Daily Post: http://www.gwinnettdailypost.com

Crimping eminent domain: St Petersburg FL Times, 11/12/06

Homeowners see a victory, but governments say the results may hamper revitalization

By Carrie Weimar

In a divisive political season, it was one issue that united Democrats and Republicans.

Amendment 8 to the Florida Constitution, which limits government’s ability to seize property for private development, passed overwhelmingly last week with 69 percent of the vote.

The popular amendment could have a big impact on future development around the state.

Supporters say it gives much-needed protection to homeowners in the wake of a controversial U.S. Supreme Court ruling allowing homes to be bulldozed if such boosts the local economy.

“This draws a line in the sand and restores the balance of power for property owners to where it should be,” said Carol Saviak, executive director of the Orlando-based Coalition for Property Rights.

But local government officials said the amendment was inspired by fear and misinformation. They say it’s potentially crippling to local governments and could hinder the revitalization of inner cities.

“One day in the near future, Floridians are going to wake up and realize they have been duped,” said Michael Brown, the mayor of Riviera Beach who wants to use eminent domain to clear the way for a multibillion-dollar redevelopment project in his city.

“Local governments were finally trying to use eminent domain the way it was supposed to be used,” Brown said. “Now the politicians have pulled the rug out from under them.”

Fear and confusion
The controversy over the use of eminent domain started in New London, Conn., when Susette Kelo and several other homeowners in their working-class neighborhood filed suit after the city announced plans to bulldoze their homes to make way for a hotel and offices.

New London officials argued the development served a public purpose by boosting economic development that outweighed the rights of property owners.

In June 2005, the Supreme Court ruled 5-4 for the city.

In Florida, politicians rushed to pass new restrictions.

Locally, Oldsmar and Dunedin banned the use of eminent domain for private development.

The Legislature responded earlier this year with a law strictly limiting the use of eminent domain. Lawmakers also proposed the constitutional amendment, which strengthens the law by requiring a three-fifths vote of both houses to add any exemptions.

The change in the law means government can’t use eminent domain to eliminate blighted property or create affordable housing, said Kraig Conn, legislative counsel for the Florida League of Cities. It can still use the power for a public purpose, such as condemning houses to build a highway.

“There was a hysteria after the Supreme Court case,” Conn said. “If you did a reality check, you would say you can tighten down the use of eminent domain without throwing the baby out with the bath water.”

But Conn said the situation could be worse: The Legislature was originally proposing a more draconian amendment that would have required voter approval for any change to eminent domain restrictions.

“We opposed any constitutional amendment,” Conn said. “But we chose the one that gives government agencies a chance to plead their case to the Legislature.”

Losing a tool
Local governments in the Tampa Bay area have used eminent domain to help create some popular area attractions.

Tampa used the power to acquire land for parking garages in Ybor City. St. Petersburg used it to assemble six blighted acres for Bay Plaza, an ill-fated $200-million shopping complex. The land was later used to create BayWalk, the bustling downtown shopping and entertainment center. Eminent domain can no longer be used for such projects.

Rick Mussett, St. Petersburg’s development administrator, said eminent domain can be useful to revitalize a depressed area.

But the practice was always a last resort, he said. It’s typically cheaper — and easier — to settle disputes with property owners without using it.

“It can be a good tool,” Mussett said, “but it’s not very practical to use.”

Florida wasn’t the only state taking action. In the nine states with ballot measures limiting eminent domain, all won big, according to the Institute for Justice, the nonprofit law firm that represented Kelo during the Supreme Court case.

“Tuesday really showed us that people really hate the idea of eminent domain being used for private development,” said Dana Berliner, a senior attorney with the institute.

With the passage of the amendment, Florida homeowners now have more protections than almost any other state against eminent domain for private development, Berliner said.

Whether that’s a good thing remains to be seen, said Michael Allan Wolf, a professor at the University of Florida’s Levin College of Law.

“This takes decisions away from the officials closest to the problems that are facing local governments,” Wolf said. “It’s unnecessary.”

St Petersburg FL Times: http://www.sptimes.com

Fieldstone Associates' eminent-domain abuse: Philadelphia PA Inquirer, 11/13/06

By Marian Bobyak

Basically, when a governing body deploys "redevelopment," the owners of a property that is condemned must sell it to the designated redeveloper.

They don't get to set the sales price. They can't refuse to sell. They are forced to sell.

The only way they can keep it is to go to court and have a judge decide they have more right to their property than the corporation that is trying to take it away from them through eminent-domain abuse.

This is prohibitively expensive for most individuals, and so, in a lot of instances, they sell to avoid the legal expense, emotional drain, and uncertainty of how the judge will decide.

You might ask, what happens when the shoe is on the other foot? What if Fieldstone Associates, the developer involved in a Haddon Township eminent-domain controversy, had a piece of property that was being taken by eminent domain? How would it handle the situation?

Well, coincidentally, Fieldstone is in exactly that position right now.

Fieldstone purchased 51 acres in Hamilton Township for $375,000 in 2001. It then began a process to get permission to build. At some point, the governing body in Hamilton Township decided it didn't want the Fieldstone project to move forward. Hamilton offered Fieldstone $1.25 million for the site.

The people of Hamilton Township were outraged; many argued the property was not worth the amount of money Fieldstone was being offered.

Fieldstone balked at the offer. Through its high-power lawyers, it convinced the township's governing body to pay $4.1 million for the 51 acres, with an additional rider that if Hamilton Township did not close on the property on Sept. 1, 2005, the township would pay Fieldstone 8 percent interest on the $4.1 million until the deal did close.

The deal didn't close, because there was so much public outcry. Meanwhile, Hamilton has been forced to pay over $330,000 in interest on a piece of property it doesn't own!

But in Haddon Township, Fieldstone is prepared to battle the Sulock family and Lou Ruediger in court. The Sulocks own a nice brick building on Haddon Avenue that houses the State Farm Insurance office and three other businesses.

The Sulocks are senior citizens who have owned the building for many years, paid their taxes, and been good neighbors.

Ruediger is handicapped, but is able to go to work because of his home's proximity to the High Speed Line.

Don't allow Fieldstone to take away his home.

The court date is 1:30 p.m. Friday, at the Hall of Justice in Camden, Fifth and Mickle Boulevard. Judge M. Allan Vogelson will preside. (Call 856-379-2381 the day before to make sure the case is not postponed.) Please come and help put an end to the terribly un-American practice of eminent-domain abuse.

Philadelphia PA Inquirer: www.philly.com

A Blight on Eminent Domain: Newspaper Tree, El Paso TX, 9/13/06

The next step for the [El Paso TX] Downtown redevelopment plan, for which a land use map was approved Oct. 31, is creation of a Tax Increment Redevelopment Zone, or TIRZ. Under a TIRZ, the increment collected on increased property values is spent within the zone, for projects such as landscaping, street repairs, parks or other improvements. The taxes collected on the value of property at the time the TIRZ was created continue to go into the city general fund.

In order to create a TIRZ, there must be a general finding of blight that applies to the area within the TIRZ boundaries. This leads to the question of eminent domain, which has been one of the major points of contention for opponents of the Downtown Plan.

Eminent domain is the taking of property by government. Traditionally, this has been done for public projects such as schools, roads and other public infrastructure. However, it also has been used for redevelopment purposes, and a Supreme Court ruling in 2005 held that redevelopment was an allowable purpose for the use of eminent domain. The court left it up to states to set limits on the use of eminent domain for redevelopment.

In Texas, the Legislature limited the use of eminent domain - other than obviously public purposes such as those described above - to eliminating blight. If economic development is a secondary outcome of eliminating blight, however, government is allowed to use eminent domain.

Downtown Plan opponents have said they would not object to the plan if it does not use eminent domain. If the TIRZ includes a finding of blight, however, any property within that area could then be subject to eminent domain proceedings. The opponents have said that using eminent domain on a broad area, without regard to whether a specific property is blighted or not, is an abrogation of private property rights. The city is attempting to create the TIRZ before the year ends, so it can capture a larger increment by using the property values from this year to set the baseline.

They have said they will fight in the Legislature - where bills for the next session can be introduced as early as Monday (Nov. 13) - and they are attempting to secure a promise from the city that it will not use eminent domain on property that is not blighted.

Mayor John Cook has made statements supportive of such a concept, and the Land Grab Opponents, a group organized by the Rosenbaum family, which owns El Paso-Los Angeles Limousine and has emerged as a lead force in fighting the Downtown Plan, is attempting to work with the mayor’s office to craft an eminent domain ordinance that would force a property-by-property finding of blight before eminent domain could be used.

Newspaper Tree requested a copy of the proposal, and is making it available as a matter of public record at:

Newspaper Tree, El Paso TX: www.newspapertree.com

Survey - N.J. Voters Say No To Eminent Domain: WCBS-TV, New York NY, 11/13/06

Most New Jersey voters surveyed dislike the ability of government to take land for redevelopment.

Today's Fairleigh Dickinson University PublicMind poll asked respondents to consider four scenarios under which local and state governments might seize property. None was supported by a majority of respondents.

Nearly half of those polled would support replacing "dilapidated properties" with better housing and shops. Only two in seven say it's acceptable to raze houses and shops for a new school.

The survey was sponsored by the New Jersey Farm Bureau.

WCBS-TV, New York NY: http://wcbstv.com

Fairleigh Dickinson University PublicMind polls: http://publicmind.fdu.edu