N.J. Supreme Court denies Bloomfield eminent domain appeal: New Jersey Eminent Domain Blog, 11/28/06

By Bill Ward

The New Jersey Supreme Court denied certification to the Township of Bloomfield in its effort to advance an appeal in the 110 Washington Street case. The Appellate Division of the Superior Court unanimously upheld the decision of Essex County Assignment Judge Patricia Costello, who dismissed the condemnation suit. Bloomfield has now exhausted the appeal process in New Jersey.

This case is over, but the other Bloomfield litigants in the matter of Lardieri et al v.Township of Bloomfield continue to fight the township's efforts to blight and acquire the small business owners' properties by eminent domain proceedings. This matter has been assigned to Judge Patricia Costello, the same judge who decided the 110 Washington Street case.

In the past year, we have seen Toll Brothers, a national builder of residential units, pull out of the Bloomfield project. Forest City Ratner remains the designated developer for Bloomfield and continues to bear the litigation costs, which are reported by the Independent Press to exceed $410,000 to date. Judge Costello will schedule a case management conference on the Lardieri matter shortly.

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

Click here for the original appellate court decision: http://www.njeminentdomain.com/Twp%20Bloomfield%20v%20110%20Washington%20St-A6770-04.pdf

Hercules considers buying Wal-Mart lot: San Jose CA Mercury News, 11/27/06

By Tom Lochner

The Hercules City Council will consider invoking eminent domain Tuesday to acquire a Wal-Mart-owned lot at the fair-market value.

The world's largest retailer had applied to build a big-box store on 17-1/4 acres along John Muir Parkway about midway between San Pablo Avenue and San Pablo Bay. But even Wal-Mart's latest, scaled-down plan for a 99,000-square-foot store exceeds the 64,000-square-foot limit of a development agreement with the previous owner of the property, the city contends.

The action the council will consider Tuesday, a so-called resolution of necessity, would be similar to one the council adopted in May.

Wal-Mart challenged the May council action, contending the Hercules Redevelopment Agency's eminent domain authority had lapsed. The city said it did not, but the council nevertheless extended the authority in September for 12 years.

Wal-Mart filed suit earlier this month, contending the council's extension is illegal. Hercules City Attorney Mick Cabral said Wal-Mart's argument is absurd.

San Jose CA Mercury News: http://www.mercurynews.com

Eminent domain strategy on table: Hanover PA Evening Sun, 11/26/06

By Tim Pratt

The Tyrone Township [PA] supervisors and some residents are looking into ways to fight a possible land seizure by eminent domain to build a natural gas compressor station proposed near Oxford Road and Route 234.

At an October public meeting held by Duke Energy, the gas transmission company proposing the compressor station, Duke officials said that although it would be a "last resort," land adjacent to the 40-acre property could potentially be seized for power lines that would serve the station.

But that statement didn't sit very well with the roughly 30 people in attendance.

So on Dec. 4 at the Heidlersburg Volunteer Fire Co., the Tyrone board of supervisors and several residents will hold their own public meeting to discuss combating eminent domain and other strategies in dealing with the proposed station.

"The meeting will cover details of a proposed ordinance that may challenge the exercise of eminent domain by corporations that operate under state charters," the supervisors said in a letter to all township residents. "The ordinance would prohibit them from operating in a township in ways found to be contrary to the will and better judgment of local citizens and their elected officials."

Thomas Linzey, Esq., and Ben Price from the Community Environmental Legal Defense Fund are scheduled to speak at the meeting.

Duke Energy has held three public meetings since February to discuss the compressor. Besides eminent domain, citizens have also been concerned with the safety of the proposed station.

Duke officials have said a compressor station is needed every 50 to 70 miles in order to boost pressure in pipelines and deliver natural gas from Texas to numerous sites throughout the Northeast.

Officials said the existing natural-gas pipelines are losing pressure because of friction in the pipes and increases in the number of locations the pipes are accessed. According to Duke Energy representatives, Tyrone Township is a prime location for such a compressor.

The nearest Duke Energy compressor stations are located in Chambersburg and Marietta.

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


Eminent domain measure is back: San Gabriel Valley CA Tribune, 11/23/06

By Harrison Sheppard

Just weeks after voters rejected a measure to reform eminent-domain laws in California, taxpayer advocates have returned with a similar measure they say will protect property owners from some government seizures.

The measure, sponsored by the Howard Jarvis Taxpayers Association, would still allow governments to seize private property for public purposes but would prohibit seizures for private development.

The measure is similar to Proposition 90, which voters rejected earlier this month, but differs in a few key aspects.

For one, Proposition 90 had a provision - not included in the Jarvis measure - that critics said would allow developers to sue if their projects were blocked or properties were devalued by government decisions such as zoning restrictions.

California voters rejected Proposition 90 by about 360,000 votes, with 47.6 percent in favor and 52.4 percent opposed.

"Clearly the closeness of the vote on Proposition 90 made it clear this issue is not going to go away for California," said Jon Coupal, president of the Howard Jarvis Taxpayers Association.

The proposed California Property Owners Protection Act is being reviewed by the state Attorney General's Office. If it meets the basic legal requirements, the office will issue an official title and summary. Supporters can then begin collecting the signatures needed to qualify it for the 2008 ballot.

Both Proposition 90 and the new Jarvis measure are in response to a U.S. Supreme Court ruling in 2005 that a Connecticut city had the right to use eminent domain to seize private property and turn it over to a private developer to further the community's economic development plan.

But Proposition 90 was opposed by a broad coalition of groups and elected officials - from Gov. Arnold Schwarzenegger and defeated gubernatorial candidate Treasurer Phil Angelides to organized labor and the California Chamber of Commerce.

Megan Taylor, a spokeswoman for the League of California Cities, a leading opponent of Proposition 90, said local governments recognize the need to reform eminent domain in California.

They opposed Proposition 90 primarily because of the lawsuit provision, but they also believe the solution should be worked out through the legislative process, not the ballot as Jarvis is now attempting.

San Gabriel Valley CA Tribune: http://www.sgvtribune.com

Lawmakers want constitution to limit eminent domain: Akron OH Beacon Journal, 11/22/06

By Julie Carr Smyth, Associated Press

Ohio voters may get to decide next fall whether to restrict government's ability to seize private property for economic development.

State lawmakers are considering acting to put a constitutional amendment on the November 2007 ballot before the end of the year that would keep governments from using economic development as a justification for seizing people's homes.

Responding to recommendations of a task force the Legislature formed in the wake of the U.S. Supreme Court's controversial Kelo decision, the amendment also would forbid governments from using the increased revenue they might make in ceding land to a private developer as evidence that the property is "blighted."

"That was exactly what was the heart of the matter in the Kelo situation," said Jason Warner, an aide to Rep. Bob Gibbs, a task force member pushing the amendment. "Government was going into areas where it was not necessarily blighted, but they could make more money off of the property as a shopping mall than as a residential development."

Gibbs and Sen. Tim Grendell, who co-chaired the Ohio task force, alerted fellow lawmakers of their intention to introduce the amendment in memos issued last week. Grendell's memo said he is crafting a bill for introduction by next week to complement the proposed amendment that would lay out specific procedures for government takings of private land, including the definition of blight.

In July, the Ohio Supreme Court unanimously ruled in the landmark Norwood case that private development on its own - even when it will improve economic conditions - isn't a public use allowed under the Ohio Constitution.

Across the nation, property rights advocates praised the ruling, the nation's first since the Supreme Court said in Kelo v. City of New London, Conn., that governments had such a right.

Many were outraged by the decision, which they viewed as turning on its head the concept of eminent domain as a tool for the public good. Many states responded by proposing constitutional restrictions on the practice.

Such propositions passed this month in Arizona, Michigan, Florida and New Hampshire, among other states. In California, where environmentalists and politicians saw their state's proposal as a threat to natural areas, the issue failed.

Warner said Ohio took a more measured approach with its task force than some other states, and Gibbs sees no need to rush the amendment.

"This amendment wouldn't appear on the ballot until November 2007 anyway, so we don't really see any usefulness in rushing it to the ballot right now when we've just completed a lengthy election cycle," he said. "He's just getting the word out that we're not going to let this go away."

Sen. Kevin Coughlin, who is leading the eminent domain issue in the Senate, said he and Grendell are in conversations with Senate leadership over the timing of the vote - if it is taken at all.

He noted that the task force's recommendation to advance a constitutional change survived heated debate by only one vote, and that no decision has been made on whether the amendment should move forward at all.

Ruling Republicans lost one Senate seat and seven House seats from their majorities on Election Day, which could be a factor because authorizing an amendment requires a three-fifths majority of both chambers, he said.

"While this is not a partisan issue, you can bet some of the cities are going to view any constitutional change as an encroachment on their home rule, so in the minds of Democrats property rights go out the window," Coughlin said.

Susan Cave, executive director of the Ohio Municipal League, said cities' ability to seize property under eminent domain is already sufficiently limited in Ohio, particularly following the Norwood case.

"Now that we've had a fairly sweeping Ohio Supreme Court decision, which really covered every inch of the issue, it seems they're just doing something that they probably don't need to do," she said. "There are a number of protections in place and they've been used very successfully, I must say, by the other side."

She said cities fear some traditional uses of eminent domain, such as running sewer and water lines to new subdivisions, could be viewed as economic development and stopped under such a measure.

Rep. Bill Seitz, who co-chaired the task force with Grendell, said passing the issue during the lameduck session would give opponents of the measure ample time if they want to put together their own amendment.

"I'm of the mind what when we have a blue-ribbon task force and they come out with recommendations, you should move on the recommendations before it becomes just another report gathering dust somewhere," he said.

Akron OH Beacon Journal: http://www.ohio.com