Eminent domain OK for Nets: New York NY Daily News, 12/9/06

By Elizabeth Hays

The Atlantic Yards project in Brooklyn got a key approval yesterday from the Empire State Development Corp., authorizing the use of eminent domain to build an arena for the Nets, a hotel and 16 residential and office towers.

Now the ball bounces to Assembly Speaker Sheldon Silver's court.

The three-member Public Authorities Control Board gets the project next. In recent years, Silver (D-Manhattan) has used his influence on the panel to kill the proposed West Side Stadium and delay the Moynihan Penn Station proposal.

A Silver spokesman said yesterday it is too soon to know the speaker's position, though a growing chorus of critics is calling for him to delay a vote until after Governor-elect Eliot Spitzer takes office Jan. 1.

The control board's next meeting is Dec. 20.

Empire Development Corp.'s chairman, Charles Gargano, said the board voted on three aspects of Atlantic Yards, approving the general plan, an environmental impact statement and the use of eminent domain for the property.

Supporters say the project, which is slated to be finished in 2016, will bring much-needed jobs and housing to Brooklyn. Critics charge it is too big and will create a traffic nightmare.

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

N.J. court upholds eminent domain: Philadelphia PA Inquirer, 8/8/06

It said preserving open space is an adequate reason to take private property

By Emilie Lounsberry

In a decision highlighting the value of open space in the nation's most densely populated state, the New Jersey Supreme Court ruled yesterday that Mount Laurel acted properly when it seized a developer's land to preserve open space.

"We recognize ... that the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space," the state's highest court said in the 6-1 decision.

Jeff Tittel, director of the New Jersey chapter of the Sierra Club, called the court's action an "important victory" for people and municipalities concerned about the impact of sprawl on the dwindling amount of undeveloped land in the state.

"In the race for open space, New Jersey just picked up a lot of speed," said Tittel.

The case has been closely watched in the wake of last year's U.S. Supreme Court decision giving wider authority to local governments to use eminent-domain powers to seize private property for economic revitalization - not just for more traditional reasons such as building highways and government buildings.

That ruling triggered controversy and fears of cronyism - fears that elected officials could simply condemn private property so a developer could build condos or undertake some other lucrative project that could be touted as economic development.

Such concerns led more than 20 states, including Pennsylvania, to curb or prohibit the use of eminent domain for economic development. In May, Gov. Rendell signed legislation that generally prohibits the use of eminent domain for private development.

Yesterday's ruling came in a court battle over a 16.3-acre parcel owned by MiPro Homes L.L.C., which had obtained approval from the Mount Laurel planning board to build 23 homes on the site. A previous owner of the land had intended to build an assisted-living facility there, but MiPro bought the land and opted to build houses. The township then tried to buy the land. When MiPro refused, officials opted to use eminent domain to acquire the property.

Jeffrey Baron, who represents MiPro, said he has urged his client to ask the U.S. Supreme Court to hear an appeal of the ruling.

Baron said the decision gave unfettered power to municipalities to halt development. "Any municipality in New Jersey now can take any property that would be potentially for development," he said, even after a developer has gotten all approvals.

Baron said MiPro did everything required, and still ended up with its property condemned. "We did everything that we should do, and they took it," he said.

The decision came with a strong dissent from Justice Roberto A. Rivera-Soto, who concluded that the case presented an "improper exercise" of the power of eminent domain, which allows government to take private property as long as owners are fairly compensated.

"In my view, a judge's individualized and idiosyncratic view of what is or is not socially redeeming has no place in determining whether the sovereign's exercise of the power of eminent domain is proper," Rivera-Soto wrote.

Bill Potter, a Princeton lawyer who heads the Coalition to Stop Eminent Domain Abuse, said battles are under way in Mount Holly, Camden, Trenton, Newark and Long Branch over whether the municipality can condemn private property and turn it over to a developer.

Michael Mouber, Mount Laurel's township attorney, said he believes yesterday's ruling will encourage other municipalities to use eminent domain as an additional "tool" in efforts to preserve open space.

A state Superior Court judge had sided with the developer in the Mount Laurel case in 2005, but the township won in the Appellate Division, the state intermediate appeals court, in August 2005.

The New Jersey high court upheld the Appellate Division, which pointed to numerous statutes enacted over the years allowing the use of eminent-domain powers to acquire land for recreation and conservation.

"Even more telling," the high court said, "New Jersey residents have voted repeatedly for the issuance of state and county bonds to provide funding for open space."

That the municipality sought to limit development "does not alter our disposition of this case. The town's motive is not inconsistent with the motive driving the public interest in open space acquisition generally," the court said. The majority also concluded that MiPro should be compensated based on the fair market value of the land.

Potter said the ruling fine-tuned eminent-domain law by making it clear that such an action can commence even after a developer already has received approval for a project.

"It does clear up what was a bit of an ambiguity, which was whether municipalities may use eminent domain after a developer has obtained all their approvals, and the answer is yes," said Potter.

The Ruling and the Reaction

Excepts from the ruling
The state Supreme Court sided with an Appellate decision, ruling that:
"Through numerous statutes enacted over the years, the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space. Some of those statutes provide... the power of eminent domain to acquire land for recreation and conservation purposes."

"A township's motive to limit development and thereby limit overcrowded schools, traffic congestion and pollution that accompanies development is not inconsistent with... the public interest in open space."

Reaction to the ruling
"In the race for open space, New Jersey just picked up a lot of speed." - Jeff Tittel, New Jersey chapter of the Sierra Club

"Any municipality in New Jersey now can take any property that would be potentially for development," even after a developer has gotten all approvals. - Jeffrey Baron, attorney for developer MiPro

"It does clear up what was a bit of an ambiguity... whether municipalities may use eminent domain after a developer has obtained all their approvals, and the answer is yes." - Bill Potter, Coalition to Stop Eminent Domain Abuse

"If you own property in New Jersey, you are not immune from having the ownership of your land taken by force to preserve open space, whether there is a true plan for it or not and whether you are willing to sell it or not." - Richard S. Van Osten, Builders League of New Jersey

Philadelphia PA Inquirer: http://www.philly.com

Eminent domain will cost millions: Baldwin NY Herald, 12/7/06

Town says private developers, not taxpayers, will foot the bill

By Rachel Kalina

As the Town of Hempstead's plans for claiming eminent domain along Grand Avenue move forward, town officials announced last week that acquiring the property will cost an estimated $20 million, part of an initiative that is expected to spur private development and rejuvenate Baldwin's downtown.

At a town meeting at Baldwin Middle School last week, Town Councilman Anthony J. Santino explained that the town hopes taxpayers will not have to foot the bill for the project, saying that potential developers would ultimately bear the cost of building new stores along Grand Avenue and Merrick Road.

About 60 people showed up at the town meeting Nov. 27, where they had a chance to provide input and to hear from town officials, and the downtown project was perhaps the most talked about subject.

The town's revitalization plan was announced earlier this year, and officials are currently in the process of soliciting developers for the project and creating a vision for the area. Santino said he hopes to have an idea of that vision - and what the area will look like - by February.

The $20 million is an early estimate, a town spokesperson said, and does not include appraisals of the property or construction costs.

A large retail chains like the Gap and Old Navy would be an ideal attraction for the town, Santino said, adding that another CVS or grocery store in the area would not have as much of an impact on Baldwin's economy as would other well-known businesses like Barnes & Noble or Bed, Bath & Beyond. "Everyone knows those stores will provide first-class shopping for downtown Baldwin and induce other thriving stores to locate in Baldwin," Santino said, adding that people would come from surrounding towns to shop at such places. In turn, he said, the project would be a boon for smaller businesses in town, since shoppers would be attracted to the area after they shopped in one of the new stores on Grand Avenue.

Although other topics pertinent to Baldwin were covered at the meeting, it was one forum among many in the past year that Santino has used to update residents about the project. "This is the most important project my office is currently working on," said Charles Theofan, commissioner of the town's department of Planning and Economic Development.

Theofan said that many of the stores along Grand Avenue are vacant. The town released a blight study in February determining how would have to be done for the area to thrive. The blighted area stretches from the western side of Grand Avenue, south of Prospect Street, to Gale Avenue off Merrick Road.

Theofan said that fixing the buildings' facades would not be enough to attract shoppers and revitalize Baldwin's commercial base. As of now, according to the town, there are about 10 developers looking at the properties.

Still, town officials said they hope to have the project completed in roughly two years. "We are doing it as quickly as we can, because we know some of the store owners are suffering," Theofan said.

Another point addressed not only by Santino but also by a community member who spoke at the meeting was the status of Nunley's Carousel. Currently, Nassau County Legislator Joe Scannell (D-Baldwin) is working to get the carousel restored and returned to Baldwin. Santino made it clear that the town would appreciate the carousel's being part of the revitalization project, but only if a developer would be willing to include it in its plans - and pay for it.

"If it is economically feasible to do, the town is very much interested in siting the carousel on this property," Santino said. He added that, otherwise, he did not want Baldwin residents to pay any additional taxes for it.

Some residents, Santino said, are concerned that if the area to be revitalized is condemned, segments of the population would be pushed out of town. Santino called this theory a myth, and said, "Nothing could be further from the truth." In fact, he said, the town would help relocate those who wanted to leave the area or the village, and even provide rent assistance.

Residents who spoke at the meeting expressed concern that the town was concentrating on a very specific part of Baldwin and not focusing on other places that could use revitalizing, such as the area on Grand Avenue just north of Sunrise Highway.

Errington Hibbert was particularly concerned with that area, and asked Santino how to help the community force out unwanted businesses, like Gentleman's Quarters, a strip club.

Santino said that the town cannot just get rid of a business, and that the concept of eminent domain, which will allow the town to condemn properties downtown, wouldn't be applicable to a business just because the community dislikes it. "It's a legal business," he said of GQ. "We can't run a business out of town simply because you don't like it."

Baldwin NY Herald: http://www.zwire.com

Private property owner ponders: eminent domain by historic designation? Boca Raton FL News, 12/8/06

By John Johnston

The adjectives flowed freely Tuesday.

“Unconscionable,” was Commissioner Mary McCarty’s assessment of an apparent attempt by the county to force an historic district label on a piece of private property.

“Obnoxious” was private property owner Paul Thomas’ description of an earlier county offer to buy his 17-acre nursery property along Old Indiantown Road in Jupiter for only $1.4 million.

The rhetoric flowed for nearly two hours Tuesday, but actually began in 2004 with a commission decision to designate the surrounding portions of Old Indiantown Road historic. Trouble was, the county doesn’t own the middle segment of the trail, and in order to make the trail contiguous, the county wanted to designate the portion of the road going through Thomas' property as well.

Thomas said he’d be willing to sell the entire property, but otherwise, said no. Further, that his subsequent attempts to create an RV park on the site have resulted in a “nightmare” for himself and his family.

A lack of adequate drainage would ruin Thomas’ desire to develop the property as an RV Park. And while he made no direct allegations, Thomas said he found it curious that – and while he’s attempting to proceed with the processes to gain an RV park approval – ditches which formerly carried water away from his property were in fact currently being filled in by the county.

An audience member Tuesday was then heard to murmur: “This all sounds like eminent domain through the historical back door – and without paying for the property.”

“This really concerns me,” said Commissioner McCarty who argued that with the Historic District Commission was originally formed, the conversation at the time was that private property designations would be made only with the consent of the private property owner.

As it turns out the actual ordinance says otherwise, but only by implication. What the ordinance says is that it takes at least four commissioners to approve an historic designation. The ordinance is silent on whether or not that majority vote was intended to deal with a private property owner’s lack of cooperation, or merely to deal with a disagreement among commissioners themselves about whether any given parcel, public or private, should receive a designation.

By a 5-2 vote Tuesday, commissioners leaned in McCarty’s direction, asking staff to research the original Historic District Commission formation. And a vote on forcing an historic designation on Thomas was delayed until at least June 2007

Between now and next June negotiations, and perhaps a reappraisal of the property, might result in Thomas selling the land, and making the point (for him at least) moot. Or perhaps Thomas will either receive an approval or a denial by the Zoning Board on a change of use application to develop the RV Park.

In any case, “it’s not over,” he said.

Boca Raton FL News: http://www.bocaratonnews.com


Tyrone could challenge eminent domain: Hanover PA Evening Sun, 12/5/06

By Tim Pratt

If some residents have their way, Tyrone Township will soon pass an ordinance prohibiting private corporations from seizing land through eminent domain.

More than 40 people attended a meeting Monday at Heidlersburg Volunteer Fire Co. to discuss fighting Duke Energy Co.'s proposal to seize land through eminent domain and build a natural-gas compressor station near the intersection of Route 234 and Oxford Road.

Duke Energy officials have said that if the 40-acre property is not sold, the land will be seized through eminent domain. They have also said land adjacent to the property could potentially be seized for power lines that would serve the station.

Tom Linzey of the Community Environmental Legal Defense Fund was invited to the meeting because he specializes in helping townships and other community organizations in drafting land-use ordinances. Because Duke Energy is classified as a utility company and makes natural gas available to the public, it has the right to seize the land, he said.

Linzey informed residents Monday that township supervisors – who organized and attended the meeting – could pass an "anti-corporate taking ordinance" on the grounds that the state Legislature did not have the authority to give private corporations the right to seize land through eminent domain.

Linzey called the ordinance – which would be the first of its kind in Pennsylvania – a "frontal challenge" and "cutting edge."

"Eminent-domain power conferred upon corporations violates the rights of private citizens under the Constitution," Linzey said.

"If you set this type of precedent, it would be statewide," he added.

During an informal survey, a majority of those in attendance said they would support the township enacting such an ordinance.

A similar ordinance is being considered in one Virginia county, Linzey said.

But Linzey warned the ordinance could be risky for the township.

Duke Energy could potentially sue the township for lost profits, he said. And a company like Duke Energy most likely has a "team of lawyers with deep pockets" that could potentially bankrupt the township, he said.

Supervisors said they would consider the ordinance but want to get more feedback from township residents on the matter.

"I would like to look at the ordinance and see what we come up with and look at the ramifications," said Supervisor Margaret Barra.

The compressor station project has received significant opposition from many township residents since its February introduction. While many are concerned about the safety of the proposed station, eminent domain has recently become one of the main concerns.

"The real concern is the loss of democratic decision-making in communities," Linzey said.

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

Officials said the existing natural-gas pipelines lose pressure because of friction in the pipes and increases in the number of locations at which the pipes are accessed. The nearest compressors are in Chambersburg and Marietta.

According to Duke Energy representatives, Tyrone Township is a prime location for such a compressor.

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

GAO Investigates Impact of Eminent Domain: The National Ledger, 12/4/06

By Jim Kouri

"The government should not be allowed to force a small business, homeowner, or any other private property owner from his or her land. While the decision has been made in Washington, my Constitutional Amendment would protect the property rights our Founders intended, preventing state government and local governments from unfairly seizing your property," said North Carolina State Senator Fred Smith.

Senator Smith is one of a number of political leaders in both parties who are concerned about eminent domain being used to transfer private property to a private company for development purposes.

In the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act, 2006, Congress mandated that its Government Accountability Office [GAO] conduct a nationwide study on the use of eminent domain by state and local governments especially as a result of the US Supreme Court's Kelo Decision.

The GAO report provides information on the purposes for and extent to which eminent domain can be and has been used; as well as the process states and select localities across the country use to acquire land, including by eminent domain. The report also details how the use of eminent domain has affected individuals and communities in select localities, and the changes state legislatures made to laws governing the use of eminent domain from June 2005 through July 2006.

To address these objectives, the GAO reviewed relevant provisions in federal, state, and local laws; conducted site visits to various redevelopment projects where eminent domain was used; and interviewed multiple national associations of local and state government officials and planning professionals, national public interest groups, and national property rights groups to gain their perspectives on the use of eminent domain and its effect on communities and property owners.

Officials from national organizations and state and local governments cited various purposes for which eminent domain can be or has been used, including the building or expansion of transportation-related projects; the elimination and prevention of conditions that are detrimental to the physical, social, and economic well-being of an area; remediation of environmental contamination; and economic development.

However, no centralized national or state data exist on the use of eminent domain, thereby precluding GAO from any national or statewide assessments of, among other things, how frequently eminent domain is used for private-to-public or private-to-private transfer of property and purposes of these transfers.

Multiple laws promulgated from federal, state, and local governments detail how authorities can acquire land - including by eminent domain - and how compensation for property owners is determined. Some believe payment limits are much too low.

The initial step in a project that involves land acquisition is the public review and approval by a public body of a project plan, which is followed by a land valuation process during which title studies and appraisals are completed. During the land acquisition stage, authorities often make a formal offer to the owner and attempt to negotiate the purchase of the property. If the authority cannot locate the owner or the parties cannot agree to a price, among other circumstances, the authorities then begin the formal legal proceedings to acquire the property by eminent domain.

Finally, once the property is acquired, authorities may provide relocation assistance that may include monetary payments to cover moving expenses. Redevelopment projects for which eminent domain is used affect individuals and communities in a range of ways that cannot be quantified due to a lack of measures and data.

According to authorities, areas selected for redevelopment could have been vacant and abandoned land or those that included residents and operating businesses. Local officials both described and showed us community benefits resulting from redevelopment projects, including additional employment opportunities and housing in an area.

Also, property rights groups told the GAO analysts about some of the negative effects of eminent domain, such as the dispersal of long-standing communities. Finally, these groups expressed concerns about how authorities implement procedures for using eminent domain, particularly the provision of public notice to owners about the risk of condemnation, and the process for designating an area as blighted.

From June 23, 2005, through July 31, 2006, 29 states enacted to enforce restrictions on the use of eminent domain under certain circumstances, in addition to changes that defined or redefined key terms related to eminent domain including public use.

The National Ledger: http://www.nationalledger.com

Jim Kouri is fifth vice-president of the National Association of Chiefs of Police

Hints of eminent domain: Costa Mesa CA Daily Pilot, 12/2/06


By Ron Foster and Dick Schroeder

When the Newport Beach City Council placed Measure W — written by Councilman Keith Curry — on the Nov. 7 ballot, our city's leadership was essentially asking the voting public to voice its opinion on the concept of eminent domain in principle and Newport Beach's limited use of it specifically.

We answered the call. Measure W was overwhelmingly approved with 76.4% of the vote, receiving more votes, 22,517, than any of the council candidates in their respective districts. Our message? That eminent domain is abhorrent to our deeply held American values that private property rights are inviolable, and that our property isn't for government's taking.

Just 11 days following the vote of the people, the Nov. 18 edition of the Daily Pilot splashed a front-page headline reporting that Newport Beach was — according to outgoing Councilman Tod Ridgeway — in talks to acquire the seven acres currently occupied by the tennis club at the Newport Beach Country Club.

The property — the cherished and longtime home of the tennis club and an important social and recreation asset in our community — is the latest parcel our city is eyeing as the new home for a city hall.

Councilman Ed Selich offered more detail in the story, telling the Daily Pilot that "we're appraising the property." In fact, the landowners — Golf Realty Fund, of which lifelong Newport Beach resident Robert O Hill is the owner — has received a notice of appraisal from the city.

The problem is that the property isn't for sale.

Quite the contrary. O Hill, Newport Beach Country Club, the Founding Members of the Newport Beach Country Club, the membership of the tennis club and the management of IBC have invested thousands of hours and significant financial resources over the last four years developing a compelling master plan for a new tennis clubhouse, a new stadium court, a spectacular new golf clubhouse and a new country club parking lot filled with olive trees and a 700-foot landscape buffer along East Coast Highway. As well, a small cluster of one-story, five-star bungalows on a portion of the excess tennis courts, for use by visitors and guests of club members, is also part of the master plan and will help pay for the multimillion-dollar improvements.

That the master plan exists — and, in fact, was submitted to the Newport Beach planning department a year and a half ago — should be proof enough for the city that the tennis club property is not for sale and not going away. With the Nov. 7 passing of the general plan amendment, the master plan and the dreams of the members of Newport Beach Country Club can now become a reality.

It should be deeply troubling to the residents of Newport Beach that its government is spending taxpayer money for the appraisal of property that isn't on the market. Only one alarming conclusion can be drawn from this dumbfounding action: That the city of Newport Beach is laying plans to seize the tennis club property under eminent domain in complete contradiction to the will of the voters as expressed in their overwhelming support of Measure W.

The citizens of Newport Beach should not tolerate even the entertainment of such an action.

Never mind that the taking alone of the tennis club property — combined with the damage claims from the larger property — would drain taxpayers of more than $70 million, or that the city would lose a tremendously valuable part of its social and recreational heritage. Never mind that the building of a new city hall on the tennis club property would disrupt the tranquillity and aesthetics of Newport Beach Country Club.

Forget, too, that such a taking would effectively scuttle the master plan, including the new golf clubhouse, preventing the Newport Beach Country Club from enhancing the word-class experience that draws the Toshiba Classic to our city. And ignore that the PGA's Toshiba Classic — which raises about $1 million a year for Hoag Hospital and pumps more than $30 million a year into our local economy — opposes a city hall facility within Newport Beach Country Club and supports the new golf clubhouse and the bungalows to help draw top players and their families to the event. Finally, shelve for the moment the untenable quality-of-life effects the residents of the Granville and Irvine Terrace communities will endure with a city hall facility camped next door.

Instead, the red flashing light and alarm bells that should be going off in the heads of Newport Beach voters are warnings that their city government is contemplating taking private property not one month after voters told it not to go there; that eminent domain is anathema in Newport Beach.

Rest assured, the respective members of the Newport Beach Country Club, the tennis club the residents of Granville and their families — a force of some 5,000 people — will vigorously contest any attempt by the city of Newport Beach to take the tennis club property.

Costa Mesa CA Daily Pilot: http://www.dailypilot.com

Ron Foster and Dick Schroeder are past presidents of the board of governors, members of the equity committee, and founding members of the Newport Beach Country Club

Eminent domain vs. a blue-collar dream: Philadelphia PA Inquirer, 12/3/06

By Terry Bitman

When you meet Dolores and Louis Achilles, sit with them in the restaurant that has been in the family for more than seven decades, listen to them talk sincerely and softly about hard work and long-held plans to pass on the business to their sons, and how all that may go for naught if the Borough of Westville uses eminent domain to seize their property in the name of progress, you can't help but feel empathy for them.

They are a slice of blue-collar America, a family trying to hold on, not to a dream but to a reality. They would have looked quite natural in a Rockwell painting.

Instead, they are center stage - and unwittingly so - in what is now a common contemporary tale of tradition clashing with progress.

Their place is one of several businesses and homes in a section around Westville's downtown earmarked as a redevelopment zone. That means the town would like to see these properties go and make way for new ones that would have more razzmatazz and put more tax dollars into the borough's treasury.

It is a drama played out across the country in old cities and towns, and locally in such places as Gloucester City, Haddon Township and Westville.

Last week, the Achilles family filed suit against Westville to overturn a Borough Council decision supporting the redevelopment.

They are trying to save their place, Grabbe's Seafood Restaurant Crab House, on Delsea Drive, a business started by Dolores' father, Alfred Grabbe, 75 years ago and now being gradually taken over by the sons of Louis and Dolores.

"We don't want to be dealing with lawyers and reporters and everyone else," Louis said. "It takes away from the business, from the things we really need to do. But we want the business to be here for our sons."

Grabbe's is a small restaurant populated more by regulars than casuals, a comfy place that seats about 75, not counting the bar. It is known for its specially prepared crabs. A retail seafood outlet sits behind the restaurant.

Borough Administrator William Bittner says a number of local folks don't like the redevelopment idea, but none has been as vociferous in their opposition as the Achilles family. He also emphasizes that no final decision on redevelopment has been made, and that eminent domain remains a last option.

"We are nowhere near that," Bittner said. "We don't have an inevitable project. We have a pretty picture."

Dolores and Louis have been proactive all along. They backed a slate of candidates in last year's municipal elections and renamed some menu items to show their frustration - like, Crab Caesar Salad became the Crab Seizure Salad, and the fries became Lost Freedom Fries.

A developer offered the family $300,000, which they said was not enough, even if they were inclined to sell. "It is really very simple, we don't want to go," Louis said. "This isn't about money."

The couple hired attorney Louis Giansante of Moorestown, a friend and customer. He says the case could take a year, perhaps more, to resolve.

Louis and Dolores are both 65 and gradually have been turning the business over to sons Al and Henry.

"We wanted to travel a little," Dolores said wistfully. "You know, take it easy a little. But we can't do that now. Not until this is resolved. We have to look out for our sons."

On the restaurant wall, just inside the door, is a large painting done by a friend. It depicts Grabbe's exterior, and lurking over the building is a giant, well-dressed man.

"He's the government," Dolores says. "He's trying to take over."

Philadelphia PA Inquirer: http://www.philly.com


TFB calls for eminent domain reform: Southwest Farm Press, 12/6/06

Nearly 1,000 voices spoke as one for additional protections in [Texas] Farm Bureau policy to deal with threats to private property due to eminent domain proceedings.

Driven by concerns over the potential loss of land due to the Trans-Texas Corridor and other state and local initiatives, some 968 voting delegates at the 73rd annual Texas Farm Bureau meeting unanimously adopted state policy and recommended national policy that strengthens landowners’ options when confronted with eminent domain proceedings. State policies adopted during the annual meeting serve as a roadmap to guide the state’s largest farm organization as it addresses issues and challenges in 2007.

Regarding eminent domain, delegates supported legislation requiring those exercising eminent domain to make a good faith offer. They suggested the condemning authority should pay attorney fees, appraisal fees and related costs whenever the offer is challenged and the amount awarded exceeds the initial offer. Delegates said adequate time should be given to those affected by eminent domain to relocate.

Southwest Farm Press: http://southwestfarmpress.com

Convention project faces eminent domain hearing: The Nevada Appeal, 12/6/06

By Susan Wood

Eminent domain proceedings on South Lake Tahoe's proposed $410 million convention center project are expected to get into full swing in the courtroom Friday.

Businesses that have not negotiated to sell to Lake Tahoe Development Co. are trying to sell off the inventory and find alternative space to relocate. But the South Tahoe Redevelopment Agency - which approved the legal taking of property for public use in September - wants the space to roll out its plans by the groundbreaking on the 12-acre project area due next May.

The developer, led by Falcon Capital's Randy Lane of Stateline and DGD Development's John Serpa of Carson City, had closed on 29 properties located at Highway 50, Cedar, Friday and Stateline avenues. That leaves five parcels where the Shirt Stop, Pub Tahoe, Taco Bell, Paradise Timeshare, Shoreline Ski and Snowboard, Union 76 and Lakeside Landing businesses are situated. Collectively, the property has been valued at $8.5 million, a sum the developer would reimburse the city for.

The Redevelopment Agency wants to take possession of the Lakeside Landing retailer by January so the developer may run a sales office out of the 1,600-square-foot building to start selling its 176 condominium units for about $450,000, the court motion filed by Meyers Nave law firm on behalf of business owners John and Margaret Maxhimer indicates.

Developer attorney Lew Feldman said $450,000 could be at the low end of the pricing scale, but the pricing structure is fluid. He declined to comment on the legal matter.

The hearing is scheduled at El Dorado County Superior Court in Department 4 at 1:30 p.m. Friday.

The motion declares pushing out the Lakeside Landing business during the winter season under the guise of blight and the ability to use it as a sales office is unfair and misguided on a few different fronts.

"If Proposition 90 would have passed, we definitely would have fought on that (blight) issue. Now it's harder to fight," Meyers Nave attorney Claudia Gorham said Tuesday.

The state initiative, which would have made it tougher for cities to use the legal practice, failed in the ballot box last month.

Meyers Nave's motion further points out the developer's claim the entire project is in jeopardy without the sales office appears difficult to absorb.

Calls to the developer were unreturned.

"The agency and wealthy private developer even have the audacity to state that the financial hardship of the developer having to expend $400,000 to convert the building next door to a sales office is greater than the hardship that shutting down Lakeside Landing is to Margie Kovarik-Maxhimer," the document reads.

"The hardship of closing her business is not just substantial but devastating," it adds. The Maxhimers have stocked up a hefty winter inventory for ski visitors.

Gorham, whose Oakland firm will appear for the Maxhimers, also represents Jim Hickey's Union 76 and Bob Daly's Discount Ski and Snowboard. The latter businesses have been given extra time until April to find new locations and a fair market value for their property, Gorham pointed out.

City Attorney Catherine DiCamillo referred the matter to the agency's presiding legal counsel, Stacey Sheston of McDonough Holland and Allen in Sacramento, but she was unavailable for comment Tuesday.

"This particular parcel is absolutely necessary for the success of this project. Clearly, we need those months to get the project up and running," city Redevelopment Manager Gene Palazzo said, speaking on her behalf.

The city had endured a hefty $12 million in associated legal fees after using eminent domain across Highway 50 for the $250 million Park Avenue Redevelopment Project. From that, two Marriott timeshare hotels and Heavenly Village materialized.

In an extensive owner participation agreement between the developer and the city, its Redevelopment Agency has set aside $1.6 million for relocation costs for the property owners and businesses in the convention center project area.

More at stake
Moreover, the developer informed the agency that due to market research trends it needs to more than double the number of for-sale units to 268 and to add about 100 rentable units to a net 386 on the convention center hotel.

"Staff recently received this information and is analyzing any impacts it may have on the approved project," Palazzo wrote in an e-mail.

"We did a survey of other comparable hotels," Feldman said.

The Nevada Appeal: http://www.nevadaappeal.com

Holdout battles OSU in eminent domain case: Arkansas City KS Traveler, 12/7/06

By Justin Juozapavicius, Associated Press

A judge could decide Thursday if a property owner can go ahead with his challenge of Oklahoma State University's use of eminent domain to take his property for a planned athletic village.

For months, holdout homeowner Kevin McCloskey has claimed the university has no authority to take away his land because OSU's governing body, the Board of Regents, has failed to abide by a long-forgotten requirement that at least five of its eight members be farmers.

He accuses the university of violating a 1944 state law that says farmers must have a majority on the governor-appointed Board of Regents.

''We are optimistic that the laws out there intended to protect us will indeed do that,'' McCloskey said.

But university officials say OSU has been as sympathetic as it could be to McCloskey and other landowners and accuse him of trying to get more money out of the deal.

The university has gone to court to try to seize McCloskey's 66-year-old ranch-style house through eminent domain, or the taking of private property for public use.

''We have said from the beginning (McCloskey's) claims are extraneous and irrelevant to eminent domain,'' said OSU spokesman Gary Shutt. ''The issue of questioning the qualifications of the regents has nothing to do with eminent domain.''

McCloskey bought the home in 2005, a couple of months before the university announced it would clear out the Stillwater neighborhood north of Boone Pickens Stadium to make way for an indoor practice complex, outdoor practice fields and a baseball stadium, thanks to a record, $165 million gift from oilman alumnus T. Boone Pickens.

The university had offered McCloskey $62,000 for his home, or about 2 1/2 times more than he paid for it.

But he turned it down, later saying the whole matter could be settled for less than $90,000.

In October, a board of court-appointed appraisers estimated McCloskey's property to be worth $84,000 which, by law, OSU was required to pay to the court, even without a final settlement between the two parties.

In the meantime,both sides are weighing a jury trial to decide the matter.

''It's not a win or lose fight, it's a degrees of losing fight,'' McCloskey said.

Arkansas City KS Traveler: http://www.arkcity.net

Millville approves restrictions on eminent domain: The Press of Atlantic City NJ, 12/7/06

By Saba Ali

[Millville NJ] City Commission passed a resolution to restrict the use of eminent domain Tuesday night.

The resolution stated that the city will not use eminent domain toward the “condemnation of owner-occupied, single-family residential dwelling units,” an issue that has sparked concern with local residents.

Millville First, a local group of citizens concerned with how development is affecting taxes in the city, is currently collecting signatures for a petition that bans the use of eminent domain unless for public use such as roadways.

The group has collected more than half the signatures required to force city officials to either create an ordinance against eminent domain or put the issue on the ballot for a vote.

Encouraged by the resolution, Millville First member Robert Tesoroni Jr. stated that while the city is taking small steps in the right direction, it still has much further to go in order to protect residents from having their homes taken from them.

Those who are living in rental units owned by landlords are not covered by the resolution, Tesoroni pointed out.

Mayor Jim Quinn said that resolution was put into place to assure residents who own their homes that they are protected and to increase homeownership in the neighborhoods.

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


Eminent domain case near trial: San Luis Obispo CA Tribune News, 12/2/06

By Bob Cuddy

A Templeton man is accusing the county of building a road across his property to benefit a private landowner in what he calls an abuse of the eminent domain process.

Morris Aron, an orthopedic surgeon, wants more money for the property than the county is offering, in addition to monetary damages. The figures fluctuate as the litigation moves forward, but the difference between the two sides could be as much as $3.5 million.

Attorney Todd Amspoker, who is handling the case for the county, called Aron's allegations about abuse of eminent domain "absolutely ridiculous."

Nonetheless, "it rubs me the wrong way that the government can just come in that way" and take land, Aron said.

The local case is playing out against a national backdrop of concern over eminent domain abuse, a discussion triggered by a U.S. Supreme Court decision last year.

Eminent domain allows a government to take private land for the public good, giving the owner fair value. These takings usually are for libraries, schools and roads.

The Supreme Court's decision, in Kelo v. City of New London, Conn., allows local governments to seize property for private development, including hotels and shopping centers. The public benefit would be the tax revenue raised by the development, which in theory would be spent for projects that benefit the entire community.

The Kelo decision triggered a frenzy of local government takings as well as an anti-eminent domain backlash, including Proposition 90 on the Nov. 7 ballot in California, which would have limited land takings. Proposition 90 lost.

Aron's case is scheduled for trial Monday in Superior Court. His attorney, Herman Fitzgerald of Burlingame, said two issues face the court: whether the government has the right to take Aron's land, and how much should it pay.

Aron's 10.6 acres are just off Highway 101 in Templeton. He said he bought the property 10 years ago as an investment but had no immediate plans to develop it. He paid just under $1 million for it.

A few years ago, Aron said, the county decided it needed to run a road through his land connecting Las Tablas Road and Peterson Ranch Road.

"Public interest and necessity require the project," called "the Bennett Way extension project," according to court documents.

The road took about 1.59 acres of Aron's land, slicing it from north to south into two parcels of about 7 acres and 2 acres, curtailing his own potential for development there, Aron said.

He didn't want to put the road through. The county took the land under eminent domain and already has built Bennett Way.

Fitzgerald and Aron said the only reason the county wants the road is to benefit the Peterson Ranch subdivision and its developers.

"The taking confers a private benefit on an identifiable private third party developer," according to court documents.

That is only part of Aron's complaint, however.

The county originally offered him $525,000 for the 1.59 acres based on its perceived market value. It later scaled that back to about $100,000 because the land is zoned for agriculture, and that is its perceived market value under agricultural zoning.

Amspoker says Aron would have been required to put in a road when he developed his property and would have had to dedicate that road to the public.

"If you are subject to a dedication requirement, you don't get paid commercial value for property you would have had to give up anyway," Amspoker said.

"This is a public road," he said, and Aron's claims are "absolutely ridiculous."

Aron insists that he didn't intend to put the road in and the government should not get to just go in and build it.

Should the court rule in Aron's favor, what could he do about his property, with the road already built? It's a good question, Fitzgerald said. "How do you put it back together?"

San Luis Obispo CA Tribune News: http://www.sanluisobispo.com

Property rights fight eminent domain again: San Luis Obispo CA Tribune, 12/2/06

By Harrison Sheppard

Just weeks after voters rejected a controversial 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, Prop. 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 Prop. 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 Prop. 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 Prop. 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 Prop. 90, said local governments recognize the need to reform eminent domain in California.

They opposed Prop. 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.

Taylor also said California already has stronger protections for property owners than Connecticut.

"The legislative process lends itself to the broad-ranging, open discussion we all need to have about what the concern is and how we can address it, while still making sure we preserve our ability to meet our responsibilities as local governments to build affordable housing and address the infrastructure needs of the community," Taylor said.

"We understand the voters are concerned and reform is a priority for us over the next year."

Coupal said his organization is also willing to work through the Legislature, but introduced the ballot measure in case that option does not work.

San Luis Obispo CA Tribune: http://www.sanluisobispo.com

Texas Farm Bureau seeks limits on eminent domain: Houston TX Chronicle, 12/1/06

By Angela K Brown, Associated Press

Saying it's still too easy for Texans to lose their land, the Texas Farm Bureau wants to overhaul state laws on how governmental bodies can seize private property.

Under a proposed bill, not as many entities would have the power to take land and homes from residents.

Also, if land were to be seized for pipeline or utility lines, residents would receive ongoing royalty payments in addition to the property's fair market value. No matter what the land would be used for, residents would be paid for their attorneys' and appraisal fees and given enough time to move.

The issue is to be discussed at the group's 73rd annual convention starting Saturday in Arlington. The group is expected Monday, the final day, to adopt a policy that will be part of a bill submitted during the state legislative session in January.

"This is an important issue because we should have the opportunity to keep and develop our land as we see fit," Kenneth Dierschke, president of the 385,000-member organization, said today. "In some cases eminent domain is necessary, but when they take land, people need to be treated fairly."

Although the organization opposes the Trans-Texas Corridor — Gov. Rick Perry's proposed toll road network across the state — farmers and ranchers generally are more tolerant of traditional eminent domain uses, such as for roads, Dierschke said.

The Texas Farm Bureau also is proposing a constitutional amendment based on a bill passed during last year's special legislative session. The new law, among other things, prevents governmental entities from seizing private property for economic development projects.

Passing the state law and getting it into the constitution would guard against legal challenges.

A state constitutional amendment has to be approved by two-thirds in the legislative chambers, and the governor does not have to sign it. Then it goes straight to the voters, who get their say in a statewide election.

The Farm Bureau's eminent domain bill was filed during the 2005 special session in Texas two months after the U.S. Supreme Court ruled that governments can take land for private development to generate tax money, prompting worries that local entities would grab homes and turn the property over to developers.

But the Kelo vs. City of New London, Conn., ruling also allowed states to ban that practice.

While Texas law was strengthened after the bill was passed in 2005, more needs to be done, Dierschke said. That's why the group is proposing the constitutional amendment and another eminent domain bill, he said.

"Our people in Austin will be working diligently to get it passed," he said.

Houston TX Chronicle: http://www.chron.com

Eminent domain gives government power: The Saratoga NY Saratogian, 12/02/06

By Jim Kinney

[Corinth NY] Village Mayor Bradley Winslow figures he'll have to use the high school gym for the public hearings when the village moves forward with plans to take the old International Paper Co. mill by eminent domain.

He knows the subject will bring out way more people than will ever fit in the village hall.

Just like the people who came out Thursday in Fort Edward who opposed that town's efforts to take the proposed site of a PCB-sediment processing plant, also by eminent domain.

Both are unusual uses for eminent domain power, which is when a municipality goes through the courts to take real estate, or an easement to use real-estate, over the owner's objections. The municipality must make fair-market compensation to the owner.

It makes it impossible for one property owner to block a needed road or improvement. But the power has its critics, especially after 2005 when the U.S. Supreme Court approved of a Connecticut city's use of the power to put property in the hands of a private developer.

'If the power exists, it will be used,' said John Bergeron, who fought Saratoga County's efforts to take his property in Hadley from 2000 until the county stopped trying earlier this year. The county went with another design for its emergency radio network that doesn't need Mount Anthony, the peak where Bergeron owns property.

The county is still taking property in Edinburg for another tower, though.

'If you are about the power of the government, you say 'Yeah, lets get stuff done!,' Bergeron said. 'But if you believe in civil liberties you start to ask what rights a citizen has.'

He had to hire lawyers, but won't say how much the fight cost him.

'I don't like to think about it,' he said. 'I probably spent more time fighting this than was reasonable. But the alternative was to let them walk all over me.'

In most cases, it's a town building a road or laying water pipe. That's why Corinth's and Fort Edward's plans are unique.

'To control our own future,' Fort Edward Supervisor Merrilyn Pulver said.

She wants plans for the facility to go through town planning and zoning processes. It's a way for the town to get some leverage in the planned dredging of PCB-contaminated sludge from the river's bottom.

Critics say the eminent domain proceeding is just like a federal appeal the town is pursuing in the dredging situation, a delaying tactic.

EPA spokesman Leo Rosales said the eminent domain proceeding, which is in its early stages, isn't slowing the process. GE and EPA are negotiating with the site's owners, D.A. Collins Cos of Mechanicville.

Dennis Prevost of Fort Edward came to a meeting Thursday of the Community Advisory Group, or CAG, for the dredging project to protest. He asked where the town plans to get the money to pay D.A. Collins for the property if it's successful in getting it by eminent domain.

'Also, it would come off the tax rolls,' he said. 'That drives up all our taxes to make up for that lost revenue.'

In Corinth, Mayor Winslow said he understands the sentiment. The village has a budget of only $2.2 million. IP sold the plant to New York City based Philmet for $2.75 million two years ago. That price included property outside the village that wouldn't be included in the seizure.

'I can understand not wanting to bond all that money,' Winslow said. 'But we want to redevelop this property that has just sat there since IP sold it.'

He said the village will likely work with a developer who would front the money.

'Let's say if we end up owning it, we won't own it for long,' he said.

An attorney for Philmet said this week that the company is preparing a plan to redevelop the property that doesn't include importing trash. But he wouldn't say when.

He did say the village has a poor case for eminent domain and that the company plans to fight in court.

The city of Saratoga Springs said in court papers filed in September that it needed access to properties along Saratoga Lake in part to fix values on those properties for the eminent domain process. But that same suit said the city would likely just need an easement to run pipe, not permanent use of the property.

Saratoga County only has a small fraction of the more than 100 easements it will need for its water project, Wes Carr, the project's staff member, said.

'We'll have to do some eminent domain,' Carr said. 'Some property owners won't agree. It's just the law of averages.'

Bergeron said he expects the Supreme Court to revise its stance on eminent domain and private development, situations like Winslow described for the IP mill.

The Saratoga NY Saratogian: http://www.saratogian.com

Plainfield voters nix eminent domain: Norwich CT Bulletin, 11/30/06

Residents say 'there's no need' for it

By John Penney

[Plainfield CT] Residents Wednesday approved an ordinance banning the use of eminent domain.

"There's no need for developers to take residential property in this town," said Nick Bolanis, 46. "Especially with large commercial tracts available in town."

The eight residents who attended the five-minute meeting unanimously supported the ordinance, which states the town shall not use the power of eminent domain for economic development.

The ordinance also says any town meeting authorizing the use of eminent domain for economic development shall be deemed void and without authority.

"This is the first step toward an extra layer of protection," said First Selectman Kevin Cunningham, who campaigned on an anti-eminent domain platform. "Developers will have to negotiate with individuals, without using the threat of eminent domain as a means to profit."

According to Cunningham, the idea for the ordinance sprang from the 2005 U.S. Supreme Court decision of Kelo v. New London, which allowed municipalities to seize private property for commercial or economic development use.

Since the Supreme Court decision, several towns, including Putnam, Orange and Canterbury, have enacted eminent domain restrictions, mainly as a response to the negative backlash stemming from the ruling.

Shelley Hopkins, who spearheaded the town's Eminent Domain Committee, said she was pleased with Wednesday's vote.

"We just want to make sure what happened in New London doesn't happen here," Hopkins said.

The ordinance will take effect 15 days after official publication.

Norwich CT Bulletin: http://www.norwichbulletin.com

Ohio Supreme Court declines to hear eminent domain case: Akron OH Beacon-Journal, 11/30/06

Associated Press

The Ohio Supreme Court has declined to hear the case of an 80-year-old woman whose home was torn down by this city for a road project.

Justices voted 6-1 Wednesday in Columbus to pass on the case, but did not explain their decision.

Emma Dimasi and her son and lawyer, Vincent Dimasi, were appealing a June ruling by a state appeals court. The 1st Ohio District Court of Appeals ruled that the Dimasis could not appeal Cincinnati's claim of eminent domain until after a jury trial determined the home's value.

Emma Dimasi's home of 47 years was torn down by the city July 20.

After the appeals court ruling, the Supreme Court ruled in a separate eminent domain case that the Cincinnati suburb of Norwood could not seize homes for a retail development.

The Dimasis argued that case should have applied to them, claiming the road widening project would benefit Good Samaritan Hospital's $122 million expansion.

Two lower courts rejected that argument. The city and the hospital have said the timing of the two projects was coincidental.

The case now moves to a trial in Hamilton County Common Pleas Court to determine possible compensation for the Dimasis.

Akron OH Beacon-Journal: http://www.ohio.com/mld/beaconjournal

New eminent domain war: Cincinnati OH Enquirer, 11/27/06

Vincent Rack's family has owned North Bend land since 1932; now Green Township wants to claim 6.5 acres of it

By Gregory Korte

Vincent Rack pointed out the electrical transmission lines that cut through his property on West North Bend Road, the construction equipment he's stored there for more than 50 years, and the ramshackle Civil War-era cottage that's the only thing in the neighborhood older than he is.

"Do-gooders," he said, are "trying to make North Bend like some high-class road."

"There ain't nothing high-class about this road," he said.

Those "do-gooders" want to take the property his family has owned since 1932 to extend Kleeman Road into a new township park.

The Green Township trustees filed an eminent domain lawsuit against Rack last month, seeking to take 6.5 acres of Rack's property for $540,000.

"You want to know the story? They're trying to get rid of Vince Rack," Rack said.

Now 87, Rack has fought zoning battles with the township for two decades. He's won some and lost some.

The eminent domain case, filed last month in Hamilton County Common Pleas Court, continues the dispute between Rack and the township over the zoning of the property, where Rack keeps heavy equipment for his development and equipment company, Monfort Supply.

The case is also likely to test the new rules of eminent domain in Ohio following the Ohio Supreme Court decision in Norwood v. Horney. The ruling struck down as unconstitutional a law allowing the use of eminent domain for economic development - or the taking of property from one private property owner to give to another.

That, Rack and his attorney say, is exactly what's going on.

"It's probably not where you want to take your family for a picnic," said Rack's lawyer, Vincent A. Dimasi, noting the utility transmission lines that cut through the property. "If that's a park, it's the worst park I've seen in my life. I think a couple guys just got together one day and decided to take the land by eminent domain, and they came up with this park idea."

Dimasi has some personal experience with eminent domain. He represented himself and his mother, 80-year-old Emma Dimasi, in an eminent domain battle over his mother's Clifton house.

Lower courts ruled that the city of Cincinnati could take her house for a road project that helps Good Samaritan Hospital, and the case is now before the Ohio Supreme Court.

In Rack's case, Dimasi is using a similar argument: That the taking isn't just for a road, but to promote economic development.

A subsidiary of Butler County Surgery is building a medical office next door, but has only a one-lane, 20-foot private drive to the property.

But Green Township Law Director Francis M. Hyle said the case has nothing to do with the issues raised in Norwood. The township isn't claiming the property is blighted.

"This is not a taking for economic development. It's not for the benefit of any private developer. We're not going to sell the land off," he said. "Is it an eyesore? I'll let you judge for yourself when you look at it. It certainly stands out on North Bend Road when you look at it."

State Rep. Bill Seitz, a former township trustee who represents the area in the Ohio General Assembly, has been one of the leading voices for eminent domain reform in the state. But he said the taking of private property for a public use - in this case, a park - is a time-honored and widely accepted use of governmental power.

"If you look at Mr. Rack's history, he's a quite litigious fellow," said Seitz. "So if there's anyone who would try to push the envelope, it would be him."

Rack was 12 when his parents bought the property on West North Bend Road for the family homestead, small farm and contracting business. That was 1932, and since then the family contracting business has built more than 30 subdivisions and acquired enough heavy equipment that it needs several properties along North Bend to store it.

Rack lives in a ranch house about 200 feet to the south, at the corner of North Bend and Rackacres, a street of $230,000 houses he developed in the 1970s.

Rack has handed off the daily operations of his companies, the V&G Rack Co. and Monfort Supply Co., to his seven sons and daughters, all of whom work for the family business. Rack said his full-time job is to fight with the township.

The township's economic development director, Adam Goetzman, and the chairman of the board of trustees, Chuck Mitchell, did not return calls seeking comment.

They're both named in a $15 million federal lawsuit against two dozen current and former township and county officials as well as neighborhood activists. That lawsuit claims a "local Republican regime" conspired to violate Rack's civil rights through repeated zoning enforcement actions. The defendants are trying to restrict the use of his property so he is effectively being deprived of it use, Rack alleges. He also claims government officials defamed him, violated his due-process rights and interfered with his business.

Rack filed the federal lawsuit three years ago, and it's still in the procedural stages. Dimasi predicts long legal battles in both cases:

"If you were to place Vince Rack and Chuck Mitchell head to head you'd see two sides of the same coin. They're both very stubborn. They're a couple tough old dogs who have been in fights before. They're in for the duration. Neither one is going to back down. It's going to be a war."

Cincinnati OH Enquirer: http://news.cincinnati.com

Hercules May Block Wal-Mart With Eminent Domain: CBS-TV5, San Francisco CA, 11/29/06

The city of Hercules [CA] is planning to file a lawsuit of eminent domain in Contra Costa County Superior Court in Martinez by the end of this week in an effort to take over a 17-acre parcel of land in central Hercules currently owned by Wal-Mart Stores Inc., according to City Attorney Alfred Cabral.

The city council voted unanimously Tuesday night in what might be a first for a redevelopment agency to invoke the city's eminent domain authority to acquire land from a commercial developer, Cabral said.

Historically, redevelopment agencies have used eminent domain to take over residential property to use for commercial development that will bring more revenue to the city, Cabral said.

The piece of land in question began as a 105-acre parcel of developable land that the city determined was blighted in 1983 when it formed its redevelopment agency.

The redevelopment agency entered into a development agreement with a Southern California developer called Lewis Operating Company in November of 2003.

The plan was for the development to take place in three parts, with two areas being used for residential housing, and the third, the 17-acre parcel, to be used to build a neighborhood shopping center.

According to Cabral, the city spent $500,000 planning the shopping center, which was designed to include a grocery store, a drug store and several smaller stores.

Wal-Mart bought the property from Lewis in November 2005.

In December 2005, Wal-Mart submitted an application to the city to build a 167,635 square foot store, which the city rejected.

In February 2006, Wal-Mart came to the city with a proposal for 100,000 square foot store with several smaller stores attached, Cabral said, which the city denied as well.

The city wanted a neighborhood shopping center and had zoned the property for that purpose, not for a big box store, Cabral said.

On Tuesday, the city council, which is also the redevelopment agency, adopted a resolution to file an eminent domain lawsuit to acquire the 17-acre parcel from Wal-Mart in order to build the shopping center they had originally planned. They also voted to extend their eminent domain authority for an additional 12 years.

After the first time the council passed the ordinance, Wal-Mart filed a lawsuit challenging the redevelopment agency's authority to invoke eminent domain on the property.

In a letter delivered to the city Tuesday, attorneys representing Wal-Mart claimed that the city's eminent domain authority expired in 1995. Once that authority has lapsed, the city no longer has any legal authority under California's Community Redevelopment Law to resurrect the authority, the letter claims.

Cabral, however, said that the city's redevelopment agency has a 40-year lifespan, during which time the city has the authority to invoke eminent domain rights.

The city has until late December to file a response to Wal-Mart's lawsuit, Cabral said.

In the meantime, the city is planning to file its eminent domain lawsuit by the end of the week to take over the property and Wal-Mart will have 30 days to respond.

Wal-Mart's attorneys have also argued that the city failed prove that the property is blighted, a prerequisite in invoking eminent domain authority.

The letter claims that since the city increased its offer to buy the property from $13 million to $14.5 million it has conceded that the land is not blighted.

"The agency's concession that the value of the property has increased 11 percent over the last six months is a clear admission that the property does not suffer from 'economic blight' - a statutory prerequisite for it to be taken by eminent domain," the letter claims.

Cabral, however, claimed that the property is in the same condition as it was in 1983 when the city found the entire 105-acre area to be blighted and formed its redevelopment agency.

"It's not producing revenue, it doesn't provide any houses or services," Cabral said. "Just because a property is blighted doesn't mean it doesn't have value."

Wal-Mart attorneys have also accused the city of not considering their newest proposal for developing the land, a plan they claims it submitted to the city eight months ago.

In the letter, Wal-Mart attorneys wrote that the proposed plan would include a much smaller Wal-Mart store - a 97,000 square foot store as opposed to a previously proposed 163,000 square foot store. The store would also sell groceries. Several smaller stores, outside eating areas and a drugstore are also in Wal-Mart's plan, according to the letter.

"Finally, the proposed Bayside Marketplace is consistent with the city's vision for the development of the property, as reflected in the city's general plan," Wal-Mart claims.

The city, however, wants the commercial development it set out in its general plan, and that development does not include a Wal-Mart.

"Cities always have the right to plan development within their community," Cabral said.

CBS-TV5, San Francisco CA: http://cbs5.com

RTM gets political on eminent domain issue: Fairfield CT Minuteman, 11/30/06

By Chris Ciarmiello

The debate over what some have called a "feel-good" ordinance stirred some feelings that were less than warm Monday night, as the Representative Town Meeting, amid accusations of political gamesmanship, delayed action on legislation intended to prevent the town from seizing residents' homes and giving them to private developers.

In a vote that fell directly along party lines, the Democrat-controlled RTM voted 26-to-23 to form a special committee to work on the legislation, which was proposed by James Millington, R-1, and co-sponsored by six Republicans and four Democrats. It did so after Town Attorney Richard Saxl told members that Robert Morrin, a former state assistant attorney general who specializes in eminent domain proceedings, had reviewed the ordinance at Saxl's request and found its language to be "full of holes."

The vote to have the five-member special committee work on the ordinance came after Democrats called for a private caucus, which under RTM rules allowed them to halt the meeting and retreat to a separate, private room. Republicans followed suit about 10 minutes later with a caucus of their own, and it was another 25 minutes before both parties returned and the meeting was resumed. Julie DeMarco, D-6, one of the ordinance's co-sponsors, then made the motion to send the proposal to the special committee.

Democratic leadership declined to say what specifically was said in their caucus, and why it could not have been discussed in public. Millington said that in the GOP caucus he gave a brief rehashing of the ordinance and answered questions about the proposal.

The special committee will have 60 days to work on the ordinance, which will be back on the RTM's agenda at its January 2007 meeting.

Dragging feet?
Millington blasted the decision to delay action on the legislation, which was spurred by the controversial 2005 U.S. Supreme Court decision that allowed the city of New London to seize residents' homes and turn them over to a private developer as part of a plan to revitalize the struggling city. "It's very disheartening," he told the RTM, saying that the proposal has been before the body for months and been through the RTM's subcommittees twice without any of its detractors previously suggesting an amendment to its wording. "How long is this going to go on?" he said. "This has been here for five months."

Others, including some of the proposal's co-sponsors, supported the move to revise the legislation. "This is an important ordinance," said Brian O'Gara, D-5, one of its co-sponsors. "I'd rather get it right and take 60 days to make sure we get it right." He added, however, that he did not want the plan to go to the committee and then "never see the light of day."

The proposed ordinance, which Millington said mirrors legislation adopted in other towns, says that the town cannot seize by eminent domain any owner-occupied homes for economic development purposes, "if the resulting project will be privately owned or controlled."

Under eminent domain statutes, municipalities are allowed to seize private property, provided that they give the landowner fair market value for the property, and provided the property is needed for a "public use," such as schools or roads. But while the New London development would not be publicly owned or operated - or even fully accessible to the public - the U.S. Supreme 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 city.

After Monday's meeting, however, Saxl said that even if approved in its current draft, the eminent domain ordinance would not in fact prevent a situation similar to the one that occurred in New London. He said the proposed ordinance would not prevent the town from forming a redevelopment authority that could take residences on the town's behalf as part of an economic development plan, which is what happened in New London.

Detractors of the proposal have also said that all eminent domain proceedings must come before the RTM anyway, and that a future RTM could simply overturn the ordinance and then approve the seizure of residential homes for private economic development.

Millington said that he has repeatedly asked town attorneys and RTM members who have concerns about the ordinance to provide help in tightening up the legislation, but that no one has responded.

No immediate threat, first selectman says
The decision to delay a vote on the ordinance does not appear to have any major ramifications. Asked Monday if there were any plans for the town to take residential property for economic development purposes in the next 60 days, First Selectman Kenneth Flatto said, "Absolutely not."

Resident Russell Jennings, the lone member of the public to speak on the plan to send the ordinance to the special committee, said that every day of delay is a day that residents lack protection against a New London-type situation, however. "I tell you there is nothing more important than having our property protected that we have worked for and paid for," Jennings said.

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

Governor's task force calls for axing eminent domain: The Santa Fe NM New Mexican, 11/30/06

By Staci Matlock

Get rid of eminent domain - the ability of local governments to condemn and take private property for economic development.

That was the controversial recommendation made Wednesday by the governor's eminent domain task force in a report to lawmakers at the Capitol. It's liable to become a big topic in January when legislators gather for a 60-day session. ``This is a really hot political issue,'' said task force co-chairman J.D. Bullington, who was among the minority voting against the recommendation.

The task force recently voted 10-7 to recommend removing eminent domain powers from a state law that gives municipalities the ability to condemn properties as ``slum or blight'' and redevelop them to boost economies. It was the only recommendation where task force members split drastically, and largely along rural-urban lines, with most in favor coming from rural areas, according to co-chairman J.D. Bullington.

Other recommendations from the task force include increasing public notice of proposed property condemnations and tightening the definition of slum and blighted areas in the 1979 Metropolitan Redevelopment Act to make it harder for a local government to use eminent domain.

The task force, which was appointed by Gov. Bill Richardson, made its recommendations to the interim legislative Water and Natural Resources Committee. Richardson wanted the task force to examine existing laws and hear comments from the public about how eminent domain is used or abused in the state.

New Mexico and other states are revisiting the eminent domain issue following a U.S. Supreme Court opinion in the Kelo case. The high court ruled that New London, Conn., could condemn the houses of Susette Kelo and eight of her neighbors, and turn over the waterfront properties to a developer for offices and new homes. The economically depressed city argued the development was for ``the greater public good'' and would generate needed jobs.

Two dozen states have already passed laws restricting the ability of municipalities to make similar moves. ``Some members of (our) task force decided if you really want to make sure Kelo is never an issue, do away with eminent domain,'' Bullington said.
According to the task force report, the state's municipalities so far have rarely used eminent domain for economic development.

Richardson can ignore or use any of the task force recommendations in the final bill he proposes to legislators. Other bills on the subject are likely to be proposed.

``There was something like 11 bills on this last session,'' Bullington said. ``I expect to see that many or more again this session.''

The Santa Fe NM New Mexican: http://www.freenewmexican.com

An unfair financial burden: Cincinnati OH Post, 11/30/06


For the Fennell family, it has been a nightmare.

For over a hundred years they've owned a little piece of downtown Newport at the corner of Fourth and York streets, land where they've operated a successful piping business and leased buildings to other successful businesses like Goodyear Tire & Rubber and an auto detailer.

They've paid their taxes, provided jobs and generally kept up the property. In other words, they've been a valuable asset to the city.

Then the Transit Authority of Northern Kentucky decided it wanted the Fennell's land for a bus depot that would allow it to consolidate nine different bus stops.

After nearly a decade of stress, struggle and legal fighting, the family has prevailed: Last week a circuit judge in Campbell County (for the second time) rejected TANK's attempt to force the family to sell the property.

TANK has neither the financial resources to build the $8 million transit center nor a clear sense of what it wants to do, Judge Julie Reinhardt Ward wrote in her ruling. Both elements are critical standards that must be met when a government agency wants to take land from private owners for a public purpose.

Ward's ruling was similar to a 2003 ruling by her predecessor, Judge William Wehr, that was successfully tossed because of a technicality.

But Ward declined to force TANK to pay attorney fees for the Fennells, which had reached $333,000 as of the first ruling and now were said in one published account to approach $700,000.

We think that's wrong.

Judge Ward's discretion was apparently based on precedent: Kentucky's statutes do not require attorney fees to be paid in unsuccessful eminent domain cases, and there's little case law in the state - little precedent - that provides for it.

The one case that applies requires a judge to find that the agency in some way acted in bad faith or abused the process - such as causing unreasonable delay - in trying to force the sale of the land. Ward said she could not make such a finding: "This Court does not believe that there is sufficient evidence that TANK was proceeding with the case in an effort to wear out the Respondents," she wrote.

We're not going to argue the merits of that conclusion, even as we point out that TANK persisted in its case even after it lost once in circuit court and after it lost the federal funding for the project.

But we do submit that there is something seriously flawed in a system that requires a property owner to spend that kind of money to fight off the government's unsuccessful attempt to take their land.

It's not that we're against eminent domain, and government agencies' attempts to use it. Properly used, condemnation is a reasonable legal tool that enables roads, sewer plants, water lines and the like to be built. Local governments, particularly those in established urban areas, need to have ample tools - including eminent domain - to promote redevelopment, especially if we're serious about trying to limit suburban sprawl and about revitalizing our urban cores.

But when the courts rule that the government fails to make its case, that eminent domain is inappropriate or unnecessary or illegal, it's patently unfair to punish property owners with crushing financial burdens merely for sticking up for themselves.

Cincinnati OH Post: http://news.kypost.com

Irvine eminent domain rule passes: Orange County CA Register, 11/29/06

Irvine measure keeping private property owners' land from being seized for use by another private party wins first approval

By Sonya Smith

[Irvine CA] city officials are on the way to making it more difficult to seize private property.

The ordinance unanimously approved by the council Tuesday night would prohibit the city and redevelopment agency from acquiring private property to give to a private party without the landowner's consent.

The ordinance does not prohibit the city and redevelopment agency from acquiring land for government projects such as parks, streets or sewers.

"Property rights are the cornerstones of democracy in the United States and should be protected," Councilman Sukhee Kang said.

The ordinance will need a second approval by the council to become law.

Several Orange County cities have adopted eminent domain measures. In the Nov. 7 election, voters in cities including Anaheim, Newport Beach and Dana Point widened restrictions on eminent domain.

But the statewide Proposition 90, which would have restricted eminent domain, failed.

Some groups said it would have given developers too much control over local agencies.

The Irvine City Council asked for the eminent domain measure at the same time as it voted to take a "no" stance on Prop. 90.

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

Dresser could become center for newest eminent domain case: Terre Haute IN Tribune-Star, 11/28/06

By Austin Arceo

The chairman of a riverfront development committee would not comment about the group potentially using eminent domain to buy land for the project, despite initial assurances that it wasn’t even considered.

The Wabash River Development and Beautification Committee created a plan for long-term development along the river, which includes residential and commercial opportunities along the eastern shoreline and greenway and wetlands preserve west of the Wabash River. But right in the middle of the highlighted area for development is Dresser, a small residential area outside of Terre Haute where committee members envision new development.

“Ultimately, we hope to get a [Federal Emergency Management Agency] grant to buy up Dresser, turn that into a greenway,” committee chairman John Mutchner said at a Vigo County Council meeting on Nov. 21.

“Ultimately, that will become a city park.”

He echoed those plans Monday afternoon during a presentation to the Vigo County Park and Recreation Board. After the meeting, he would not comment on whether or not eminent domain would be used, even as a last resort, to acquire land in Dresser.

“I’d rather not even address that,” Mutchner said. “I’m simply saying we hope we don’t have to get involved in that. We hope that, for the good of the community, we can resolve this thing.”

Several Terre Haute officials who also are committee members have previously said that eminent domain, or the government’s right to buy private land for a public use, would not be used.

Dresser, also known as Taylorville, lies in the middle of a flood plain, and laws prevent people from building or renovating homes in the area. The levee protecting Dresser has decayed from neglect, as government entities have denied responsibility for maintaining it.

Now the committee, which includes several officials from the Terre Haute and Vigo County governments, wants to buy land there. Terre Haute has allocated $200,000 this year and $200,000 more next year for the project. Vigo County has committed $100,000 this year and $100,000 next year to help the committee.

Last year, the U.S. Supreme Court ruled in Kelo vs. City of New London, Conn., that a local government could use eminent domain to buy land for private development as part of the city’s economic revitalization plans.

If the government wanted to buy land for a public park, Dresser residents could be forced into selling despite their objections, said Jeffrey Stake, a professor at Indiana University’s School of Law-Bloomington.

While it could be easy to oppose politically, “the government taking land for public use in a park or greenway where people walk is not going to be easy to resist,” Stake said.

“Basically, the government had the power to do that for a long time and ‘Kelo’ didn’t change that.”

Indiana recently amended laws regarding eminent domain after the U.S. Supreme Court’s decision.

The new law allows the government to use eminent domain to give land to a private developer in certain instances.

Dresser resident Floyd Cheesman noted that while some of his neighbors do well, others live only on Social Security.

He thinks that eminent domain might ultimately be used to buy land there.

He also said that committee members and government officials have not communicated much with Dresser residents.

“We live in a vacuum,” Cheesman said. “You’d tend to think there would be some language between us, but there’s nothing. I just don’t understand it.”

Terre Haute IN Tribune-Star: http://www.tribstar.com