League dislikes proposed eminent domain bill: Alamogordo NM Daily News, 12/20/06

By Walter Rubel

[New mexico] Gov. Bill Richardson endorsed proposed legislation Tuesday that would restrict the ability of local governments to exercise powers of eminent domain.

Under the proposal, eminent domain powers would be removed from the Metropolitan Redevelopment Act, and both the Urban Renewal Law and the Community Development Law would be repealed. It would not interfere with traditional uses of eminent domain in other existing law.

Richardson vetoed a bill passed this year that had been introduced by Farmington lawmakers Rep. Richard Cheney and Sen. Steve Neville. He said Tuesday the new proposal recommended by a task force he created at the time of the veto will have protections for local governments that the 2006 bill lacked.

"The bill that I vetoed last session would have created more problems than it resolved," he said. "The task force produced a solution that is more realistic, and will not prevent municipalities from cleaning up nuisance properties that place communities at risk. Most importantly, it will protect private property owners from unnecessary condemnation."

However, William Fulginiti, executive director of the New Mexico Municipal League, said that organization strongly opposed the new bill and would work to stop its passage. He said a majority of the task force did not vote in favor of the proposal.
"We think the power of eminent domain should be left in the Metropolitan Redevelopment Act as a tool of last resort when you are trying to clean up slums and blight," he said.

Eminent domain is the power of local governments to condemn a property and pay the owner fair market value. Typically, it has been used for necessary infrastructure, such as for roads or utility lines, or to clean up blighted areas.

But in 2004, the Supreme Court ruled that eminent domain could also be used to condemn property to make way for commercial development. That sparked both controversy and a flood of legislation at the state level seeking to restore protection for property owners.

Fulginiti said there has never been an abuse of eminent domain in New Mexico, and what happened in the controversial Kelso case could not happen in New Mexico under current laws.

But Ben Ward, a deputy legal counsel to the governor who worked with the task force, said the intent of the proposed bill is to eliminate the potential for abuse.

He said by removing eminent domain from the Metropolitan Redevelopment Act, they were directly targeting the use of those powers for economic development purposes.

Sen. Neville said he would take a close look at Richardson's proposal between now and the start of the legislative session next month to ensure it provides the needed protections for property owners.

"I think it's a good approach, but there still may be some loopholes," Neville said. "I haven't gotten a legal opinion yet to see if it's something we should be worried about."

Alamogordo NM Daily News: http://www.alamogordonews.com

City dodges eminent domain: Twentynine Palms CA Desert Trail, 12/20/06

By Kurt Schauppner

The Twentynine Palmas City Council avoided a potential bullet Thursday, Dec. 14, when last-minute negotiations meant the city did not have to use eminent domain to acquire private property.

In a situation similar to a case which came before the U.S. Supreme Court, the Twentynine Palms City Council was considering the use of eminent domain to acquire three pieces of property on Calle Todd west of Adobe Road.

The property, city officials said, is needed for street improvements on Calle Todd related to the Turtle Rock housing project.

The need to take the property, including 29,978 square feet from a 217,800-square-foot parcel north of Calle Todd, owned by Eric Shaw, and, two parcels, totaling just over 6,800 square feet south of Calle Todd, owned by Ken Hoffman, was averted by the 11th-hour agreements.

In one, developers of the Turtle Rock housing project reached an agreement with Shaw to buy a section of the trailer park property north of Calle Todd and then turn the right of way over to the city.

In the other, Hoffman, owner of Adobe Self Storage on the south side of Calle Todd, met with Councilmen Steve Flock and Steve Spear and came to an agreement to sell part of the two lots where the self-storage business sits.

According to a copy of the agreement provided by the city, final sticking points included the fate of palm trees planted on the south side of Calle Todd. They will remain after street improvements are made, and the fate of a small block wall, which also will remain.

The agreements were announced following a special session of the Twentynine Palms City Council held Thursday, Dec. 14 to consider the possibility of using eminent domain to acquire the property.

“I think the council feels relieved,” City Manager Michael Tree said Friday. “I don’t think it was a direction they were happy to go in.”

On the other hand, he added, council members recognized the need for the public roadway improvements.

“I think they were relieved that they went to every effort to make sure it did not have to go down that route,” Tree said.

Spear, contacted Friday afternoon, echoed those thoughts.

“I think it turned out very well for Mr. Hoffman and Penca Incorporated and the city,” Spear said.

He described the impasse which led to the special council session “a series of small misunderstandings,” adding that “it was understandable how that occurred.”

He praised staff members for bringing the issue to the city council.

“They did not make the decisions they should not have made,” he said.

Although there were some issues, he noted, council members were able to iron them out.

“Everybody left happy,” he said.

Flock, who served with Spear on a task force created just to work out details of the agreement with Hoffman, agreed that he “got right into it,” within days of taking his oath of office.

“Absolutely. I was very pleased,” he said of the outcome.

“It worked out very well and I’m very happy. I am very concerned with the citizens’ property rights.”

Twentynine Palms CA Desert Trail: http://www.deserttrail.com

Landowner Asks Supreme Court to Hear Eminent Domain 'Extortion' Case: Cybercast News Service, 12/20/06

By Nathan Burchfiel

Claiming he is the victim of legalized extortion carried out under eminent domain powers, a landowner in New York is asking the Supreme Court to hear his case.

Landowner Bart Didden claims in a petition that a developer convinced the village of Port Chester, N.Y., to seize his land through eminent domain after Didden had refused to pay the developer $800,000.

As part of a 1999 redevelopment plan, the council had designated Didden's land as a "redevelopment area." This gives the council the power to condemn the property and hand it over to a developer of its choice.

Didden planned to build a CVS Pharmacy on the site, but the developer, Gregory Wasser of G&S Investors, wanted to build a Walgreens there. According to the petition, Wasser threatened to convince officials to condemn Didden's land under eminent domain if Didden did not pay him $800,000 or make him a 50 percent partner in the CVS project.

Didden says he refused the offer on Nov. 5, 2003. On Nov. 6, 2003, the village of Port Chester filed a condemnation petition to acquire the land and transfer the lease to G&S to construct a Walgreens.

Didden calls the case "extortion through the abuse of eminent domain" justified by the 2005 Supreme Court decision in Kelo vs. City of New London, in which the court ruled that the Fifth Amendment "takings clause" allows the government to condemn private property for redevelopment purposes.

"Essentially, the courts have ruled Kelo turns any redevelopment zone into a Constitution-free zone for property owners confronted by politically connected developers," Dana Berliner, a senior attorney with the Institute for Justice, said in a statement.

The Institute for Justice is representing Didden in court. It also argued on behalf of petitioners in the Kelo case.

The U.S. District Court for the Southern District of New York dismissed Didden's complaint because it said he had failed to articulate a claim within three years of his land being declared a redevelopment zone - which first occurred in 1999.

Didden argued that his actual injury did not occur until Wasser approached him with the offer to not seize the land in return for a payment in 2003, but the district court ruled that the statute of limitations had passed.

The Second U.S. Circuit Court of Appeals last April then affirmed the lower court's dismissal, ruling that the payment discussion as described by Didden "was neither an unconstitutional exaction in the form of extortion nor an equal protection violation."

Didden is now asking the Supreme Court to clarify its ruling in Kelo and direct lower courts on how they should interpret it.

"We want the Supreme Court to rule that the Constitution does not permit governments or citizens acting on their behalf to demand money in exchange for allowing property owners to keep what is rightfully theirs," Berliner said.

"The very fact that we have to ask the highest court in the land for such a ruling underscores how precarious and threatening things are getting for ordinary American landowners," Berliner added.

John Watkins, an attorney for the village of Port Chester, told Cybercast News Service there was no reason for the Supreme Court to take up the case because "the lower courts have properly disposed of the matter."

While the local authority did not directly dispute Didden's account of the meeting, Watkins said it didn't amount to extortion.

"We're not saying the meeting never happened," Watkins said. "The village had encouraged the developer [Wasser] to meet with Mr. Didden to see if they could work something out. It was essentially a negotiation, an offer, a proposal which Mr. Didden refused."

Watkins said G&S had a right to the profit from pharmacy project because it had invested time and money to build infrastructure in the area under its agreement with the village to spearhead the redevelopment project.

He said Didden "wanted to ... take advantage of all of the money and the effort that was put in by both the village and the developer of the project that far."

Cybercast News Service: http://www.cnsnews.com

Riverside board not contemplating eminent domain resolution: Riverside/Brookfield Landmark, Oak Park IL, 12/09/06

No TIF referendum seen for now

By Bob Uphues

Riverside is unlikely to add language to its proposal for a downtown tax increment financing (TIF) district that would eliminate the possibility of eminent domain as a way of acquiring property. In addition, it appears that the village board will not seek a village-wide referendum on the TIF issue, despite a request to do so.

Village President Harold J. Wiaduck Jr., while reiterating his opposition to the use of eminent domain for acquiring property, said he was reluctant to take that option away from a future village Board of Trustees.

"I think the marketplace will drive the needs of Riverside and I can't see anything [that would require the use of eminent domain]," Wiaduck said. "But maybe a future board will see a need for it."

Wiaduck's response to the eminent domain issue came as a result of a question at Monday night's village board meeting from Riverside resident Catherine Love. Love asked Wiaduck if the board had considered passing a resolution "to foreswear the use of eminent domain for the TIF district."

Wiaduck was the only member of the village board to respond to Love's request. Resident Mike Jebb later suggested that such a resolution be passed by the village board, even if it were only a symbolic move. Any resolution, he said, could be overturned by a future board. Passing such a resolution, Jebb said, would give residents who live within the proposed TIF boundaries "a way emotionally to feel what you're saying is what you're doing."

"All you're saying is that you're putting in writing that this is our intent," Jebb said. "It's almost meaningless, but at least you're putting down in words what you're saying."

With respect to a possible advisory referendum on the establishment of a TIF for downtown Riverside, Wiaduck said such a decision could be made in the future, although there was no consensus on the village board for such a move now.

In the past week, TIF opponents in the village have begun a push to get signatures on a petition asking village officials to put the TIF to a vote. A copy of the petition has been posted on the www.riversideinfo.org Web site, which has been set up by anti-TIF residents.

Resident Mark Shevitz asked Wiaduck why, if he believed a majority of residents supported a TIF, he wouldn't put the matter to a vote.

"I guess that might be a thing to talk about, but I'm certainly not going to commit to that tonight," Wiaduck said. "If the issue becomes significant enough, it might be a decision we have to make."

But Trustee Kevin Smith was adamant in his opposition to a TIF vote.

"Do you elect people to lead or to follow?" asked Smith. "What kind of trustee would you be if you needed a referendum to solve every issue. It'd be fine if you could guarantee 100-percent turnout, but the way elections work is that you don't get 100 percent or even 50 percent. So you're not much better off than you are in the first place."

Shevitz argued that the TIF was not just another issue.

"We're talking about a $20 million project over 23 years that's going to affect every taxpayer in the village," Shevitz said. "You're also elected to listen."

Wiaduck did clarify at Monday night's meeting that the board would not be making any decision regarding the establishment of a TIF at its Jan. 8 Committee of the Whole meeting. While the trustees will use that session to discuss the issue and perhaps map out a plan for involving and educating the public and winning the public opinion battle, there would be no action taken at that time.

Riverside/Brookfield Landmark, Oak Park IL: http://www.rblandmark.com

Eminent domain legal bill is $850K: Cincinnati OH Enquirer, 12/20/06

By Steve Kemme

Attorneys argued in Hamilton Common Pleas Court Tuesday about whether the Institute for Justice should be compensated for attorney fees and expenses in the Norwood eminent-domain case.

The Institute for Justice, a civil-liberties law firm that successfully represented at no charge the property owners who fought Norwood's use of eminent domain, is seeking more than $850,000 in compensation from Rookwood Partners.

Rookwood Partners wanted to build a $125 million commercial development at Edwards and Edmondson roads.

But the Ohio Supreme Court ruled in July that Norwood illegally used eminent domain to acquire properties on the proposed Rookwood Exchange site from people who didn't want to sell.

That ruling stopped the project from being built.

Scott Bullock, attorney for the Institute for Justice, said Ohio law allows non-profit organizations that win cases involving constitutional law to be compensated for fees and expenses even when no fees have been charged to their clients.

Courts in similar cases have supported such compensation requests, he said.

Bullock said it would be an injustice if attorneys who represent their clients for free in eminent-domain cases are denied compensation for fees.

But Tim Burke, attorney for Norwood, and Bryan Pacheco, attorney for the Rookwood Partners, said Ohio law permits compensation only to property owners who have paid attorney fees.

The Institute for Justice doesn't qualify for compensation, he said.

"The Institute's clients paid no attorney fees," Burke said. "The property owners incurred no actual expenses.

Judge Beth Myers said she will issue a written decision in January.

Attorneys for Rookwood Partners have agreed to pay the attorney fees the holdout property owners accumulated during the property valuation phase of the eminent domain case.

Private attorneys, not the Institute for Justice, represented them during those proceedings.

The Gambles lived in their house, Horney rented his house and the Burtons operated a learning center from their building.

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

Countywide recognition for fight: Hanover PA Evening Sun, 12/19/06

By Ashley Adams

Sporting buttons and T-shirts against the abuse of eminent domain, people crowded into the Penn Township municipal building Monday in support of Bill and Dana Heston.

And one by one, members of the standing-room-only crowd stood up and asked the township commissioners not to use the power of eminent domain to take the Hestons' property.

There were some powerful voices in the crowd, too. Laura Kohr and her brother Ron – whose family farm, Lauxmont Farms, is being taken by York County through eminent domain – joined county Commissioner Steve Chronister in support of the Hestons.

Chronister said he's gotten to know the Hestons and their six children over the past couple weeks. Although there to speak as an individual – and not in the capacity of county commissioner – Chronister asked the township to leave the property alone.

"For (the developer) to negotiate with the threat of eminent domain is ridiculous," he said. "This family has put two years of their lives on hold because of this and have been harassed by the developer.

"I ask that you say no, you are not going to take their home by eminent domain."

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

Burkentine could not be reached for comment this morning.

A traffic study performed during the planning process showed a signal light is needed at York and Center streets, near the Hestons' home.

Penn Township Manager Jeff Garvick has said the need for a traffic light at the intersection dates back to the 1970s.

To install the traffic signal, Center Street would have to be widened, meaning the Hestons' home would have to be removed. Burkentine has already acquired easements and rights of way on three out of the four corners.

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

"Make the developer negotiate with the Hestons in good faith," Chronister urged the commissioners. "Eminent domain is a long, drawn-out process. The costs will be borne by the taxpayers and not the developer."

Chronister is familiar with eminent domain, the same process the county is going through over Lauxmont Farms.

The county has started the eminent domain process on 411 acres of the Lauxmont Farms property near Wrightsville. The county is proposing a heritage park at the site.

As Laura Kohr got up to make her remarks to the Penn Township commissioners, she couldn't hold back the tears.

"I've been to countless public meetings over the last three years," she said. "I have cried my eyes out at all of them. Eminent domain is a living hell. It is not something I would wish on my worst enemy."

Kohr said the county's proposal to take the farm that has been in her family for 35 years – and where her parents are buried – would take five of the six homes on the property, including the one in which she lives with her three children.

"This has taken a lot from my family," she said. "You have to fight for your children. You have to fight for your home. Don't do that to these people."

Lynn Madison used to live at 10 S. Center St. Burkentine has already taken her property for the widening of the intersection. But, she said, the developer is now renting out the property and might not be tearing it down.

"Is that fair?" she asked.

In a prepared statement read before the public-comment portion of the meeting, President Commissioner Joe Klunk said, "Penn Township has not exercised its eminent domain authority regarding the Heston property located at the intersection of Center Street and York Street for intersection improvements. If the township considers eminent domain, it must do so at a public meeting. The township has not even begun such discussions, and certainly has not decided to use eminent domain powers to acquire the Heston property."

But Bill Heston said he was told otherwise.

"We have already been told you will declare eminent domain," he told Klunk. "What you just said sounds like crazy talk."

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

Eminent domain not imminent over West: Appleton WI Post-Crescent, 12/17/06

Appleton school official predicts fight on West athletic plan years out

By Steve Wideman

Homeowners fearing government officials may take their properties for sports facilities at a local high school could face a years-long wait before the matter is decided.

The Appleton school board has yet to discuss using eminent domain to acquire property near Appleton West High School as part of a plan by a school sports booster club for a new football stadium, tennis courts, track and other outdoor facilities, said Supt. Tom Scullen.

Eminent domain is a process by which a unit of government can legally take private property, with compensation to the property owners.

"Fundamentally, we can't do anything. We don't own the properties," Scullen said this past week. "In my opinion, we are years away from a confrontational approach."

On Wednesday, the Common Council is scheduled to consider approving the plan in concept, paving the way for the West Terror Backers to begin a campaign to raise $3 million to buy and demolish 21 homes and turn the property over to the school district. The district would spend about $1.5 million to make the proposed improvements.

Last week, the city's Plan Commission endorsed the idea on 5-1 vote.

Owners of five of the homes have signed on to a lawsuit demanding the booster club abandon fundraising and other activities promoting the plan.

"They are going to have to throw us out of our house. They'll have to invoke eminent domain," Gene Hoks, 513 N. Mason St., one of the litigants, said Thursday.

The situation in Appleton meets the letter of public domain law, but the community must judge its moral implications, said Michael Burayidi, coordinator of urban and regional studies at the University of Wisconsin Oshkosh.

"The intent of eminent domain is to give power to government to take private property for a purpose promoting the public good. The case in Appleton directly meets the public use requirement of the law," Burayidi said. "It will not be a private person using the land."

But the school district will have to weigh the benefit to the school against the loss to the homeowners and community, he said. "Eventually it will boil to what the priorities are in Appleton."

Terror Backers president Anne Levandoski would not comment this past week on eminent domain, but said she remains optimistic that negotiated agreements can be reached with the property owners.

"We are hoping we can make agreements with all the homeowners so everyone is happy with the price they get for their homes," she said.

Scullen said he expects any decision on using eminent domain, if it comes down to that, to be made by a future school board.

"It is our clear preference that the boosters work with residents to see if they can come up with fair market prices for their homes," Scullen said. "It has been my experience that it is far better to work with people and negotiate."

Mayor Tim Hanna, who also serves as the Plan Commission chairman, said the city will not pursue eminent domain because the West project is not a city project.

"It's important for people to understand the city has no role in the project, including financing, acquiring land or using eminent domain," Hanna said.

"I don't remember when the city has gone through the eminent domain process to acquire property. We've always been able to settle with property owners."

Hanna said that if the boosters eventually acquire property for the project and turn it over to the school district, school officials would have to seek rezoning of the sites from residential to institutional use.

Lorn Dilley, an Appleton attorney hired by Hoks and six other homeowners to represent them in attempts to block the possible taking of their homes, said he is angered that school district officials "are going to make these homeowners wait an indefinite period of time to see if they can keep their homes."

"It is terrible for the school board to avoid the issue of eminent domain," Dilley said. "It is necessary to make a decision now. If they are not going to use eminent domain then the project should stop immediately because the boosters have said they need all the properties for the project."

Dilley said he represents a third of the homeowners "and they are not going to sell their homes."

"They told the Terror Backers that in writing," Dilley said. "The only way they are going to kick these people out of their homes is to use eminent domain."

Dan Haen, 703 N. Mason St., was an original plaintiff along with Hoks in the lawsuit, which is pending in Outagamie County Circuit Court.

"I worry about my house being taken (through eminent domain)," Haen said. "Sure, they (boosters) would relocate me and find me another house, but I don't want to move. I don't want to sell my house."

Alan Gibson, 731 N. Mason St., who recently joined Hoks and Haen in the lawsuit, said he fears eminent domain "because no one will say whether they are going to use it."

Scullen said Wednesday if some homeowners do not want to sell, the project could start in piecemeal fashion.

"It could be started in different areas to avoid the homes. We (the school district) are not going to buy the homes," Scullen said.

Gibson said the possibility of his home being surrounded on three sides by school property doesn't bother him.

"Do I mind if they build around me? No. I enjoy having the school in my back yard," Gibson said.

"All the school district or city have to do is tell me they won't use eminent domain and I would sit back and be happy."

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

Board to vote on eminent domain: Long Beach CA Press Telegram, 12/18/06

City in process of acquiring property downtown to pave way for two projects

By Don Jergler

The city's Redevelopment Agency Board will vote today whether to start legal procedures to take several properties that would make way for two key projects in downtown Long Beach.

The vote only begins the process of taking the properties, and property owners and the agency could still come to an agreement after the vote.

To take the properties, the board must use eminent domain, a controversial governmental power to legally seize private property to make way for development.

If the board is successful in taking the properties, it would pave the way for the Pacific Gateway residential project on Ocean Boulevard and Alamitos Avenue and the Art Exchange project in the East Village Arts District.

The Pacific Gateway project requires the agency to acquire a parking lot at 19 Lime Ave. and a three-story, 30-unit apartment complex at 645 E. Ocean Blvd. Other parcels have been acquired or are in the process of being acquired by the developer.

Property owners and the agency have been unable to come to terms on the price, said Community Development Director Pat West.

The agency has offered $520,000 for the parking lot. The agency offered $2.5 million for the apartments. Owners of both properties have expressed their wishes to sell, West said.

"At this stage it looks like they're willing sellers, it's just price issues," West said. "(A vote today to use eminent domain) gives us the authority to get very, very serious with the property owners. We can go to court to take the property if necessary."

The area for the Pacific Gateway project includes the former Video Choice site at Ocean Boulevard and Alamitos Avenue.

Plans call for 19-story and 14-story residential towers near the northwest corner of Ocean Boulevard and Alamitos Avenue.

The project would yield 305 residential units, retail and a three-level subterranean parking structure.

The agency is in discussions over the property at 615 E. Ocean Blvd., home to Long Beach Cafe. It's part of the current project plans. However, both the owners of the cafe and the property owner have expressed their wishes to stay.

West said talks over the property are ongoing, and the city can either initiate eminent domain procedures on that parcel or cut it out of the project, which would require a project redesign.

The agency will also discuss taking property in the East Village Arts District to make way for the Art Exchange project, which entails a residential development, an artistic component for art studios and a possible educational use.

The project requires the agency to acquire 340 to 346 E. Third St., 352 to 390 E. Third St., and 269 Elm Ave.

Those properties house Al's Fingerprinting, Jensen Rubber Stamp Co., Chan's Barber and Beauty Salon and Shades of Africa.

West said the agency will assist those businesses in finding another location.

Long Beach CA Press Telegram: http://presstelegram.com

Londonderrry landowners lose eminent domain case: Boston MA Globe, 12/18/06

Three [Londonderry NH] landowners have lost their Superior Court fight against the state in an eminent domain case.

The Transportation Department took about 15 acres as part of its plan to build an access road to Manchester-Boston Regional Airport.

Rockingham County Superior Court Judge Robert Morrill rejected the challenge, then denied a request that he reconsider. He ruled taking the land by eminent domain was justified because the land would be for a public use.

Landowner Al Baldasaro called it a land grab and thievery. He and the other landowners say the state does not need their land and did not offer enough.

The state plans to use the land to make up for wetlands that will be filled for the project.

Baldasaro said he hasn't decided whether to appeal to the state Supreme Court.

Boston MA Globe: http://www.boston.com

Elkhart County uses eminent domain to acquire property to widen County Road 10: South Bend IN Tribune, 12/18/06

By Adrienne Ruffner

Along County Road 10 in Elkhart, road plans for the future have caused heated debate in the present.

Because of heavy traffic flow, Elkhart County Commissioners Phil Stiver, Terry Rodino and Mike Yoder have decided they want to slightly reroute and widen CR 10 to a four-lane road between County Road 15 and County Road 17. The project is a precursor to construction on the Six-Span Bridge on CR 17.

"After studies of accidents in the area, it became obvious we needed to do something with the intersection at County Road 10 and County Road 17," said Jay Grossman, county project engineer.

However, the development plan selected will require the county to take 12 total properties and 23 partial properties, many of them private residences.

Earlier this year, commissioners considered four different proposals for the CR 10 corridor. Three of the plans, including Plan 4, the one chosen, involved widening the road in the Riverview Drive area, but another plan, called Plan 3, rerouted the road through farmland and involved taking fewer properties.

However, the road in Plan 3 would still cut through several residential lots and halve the property of First Baptist Church on CR 17.

Franklin Troyer, who lives near the rerouting but whose property will not be taken, argues that the government should use eminent domain to take land from private tax-payers only as a last resort. A better solution, he said, would be to take land from the church, which does not pay taxes, and the farmland, which is undeveloped.

"Why would you pick a route like that?" Troyer said. "This is not in the best interest of the public. It's the government at its worst."

In addition to his misgivings about the county's use of eminent domain, Troyer said, the county has not conducted sufficient environmental studies of the impacted area.

"All the runoff water has to go somewhere, and they've never done a study," he said.

Grossman said specific environmental studies are usually not included this early in the planning process.

"We know we have to deal with the water, but we won't know specifics until after we survey the land in January," he said.

With the project's estimated $8.6 million price tag, the county may have to reallocate some funds from other projects or delay construction for an additional six to eight years, Grossman said. He estimated that the project could begin as soon as 2008.

"They're supposed to buy my house and my neighbor's house, but now I've heard it's going to be a few years," said Shirley Sanders, who lives along CR 10.

Other neighbors also said they'd heard of the project but didn't know the details about what was going to happen to their property.

"I haven't heard anything from the county except what I've read in the paper," said Penny Larson, whose house and property on CR 10 are slated to be acquired by the county.

"They won't receive anything from us until we're at least 80 percent done with the designs and know exactly what land we need," Grossman said. "Our department has a good history of doing our best to treat everyone fairly."

Once the county determines exactly what its design plans are, Grossman said, appraisers would visit the properties and will then set up individual meetings with homeowners.

South Bend IN Tribune: http://www.southbendtribune.com

A step toward eminent domain: Costa Mesa CA Daily Pilot, 12/15/06

On the Town

By Steve Smith

There are several very important things that every American should expect from his government.

Among them, he should expect that his property will not be seized by the government for the purpose of eminent domain. The prospect of having one's property seized by the government against the will of the owner because it wishes to use it for its own purposes is a move of such horrific proportion that it conjures up images of dictatorships and closed societies.

Several months ago, when Triangle Square — Costa Mesa's failing, ailing mall — finally made it onto the radar of the City Council, one of the options expressed by a council member was to exercise the power of eminent domain.

The comment was not a formal proposal, but the fact that it was mentioned at all brought shudders to many people.

Now, Newport Beach is in the early stages of an eminent domain controversy.

In its too-long effort to find a home for a new city hall, the Daily Pilot reported last month that the city was appraising the tennis facility at the Newport Beach Country Club, a property that was not for sale, in consideration of its development as the site of the new building.

That the City Council has taken this first step is unsettling. That it did so less than two weeks after Newport Beach residents voted decidedly against the general principle of eminent domain is frightening.

One has to wonder why Measure W, the eminent domain vote, was placed on the ballot in the first place if there was no intention of following the voice of the people after the results were tabulated.

The development of a new city hall has dragged on far too long. As it does, costs rise.

It seems to me that there are two logical choices for the new city hall. The first is to build on the existing site. That location is and has been working well for many years.

The other choice is to build on the site near the Avocado Avenue library. I favor this option for a reason that cannot be quantified on a return on investment analysis or put neatly into columns or rows on a spreadsheet.

I just think it would be a better fit with the surrounding area.

Over the last few months, I have spent an unusual amount of time working right across the street from the library site.

There is more of an urban feel there, most of which is provided by Fashion Island's collection of shops and offices as well as the buildings on and near Avocado Avenue.

The city hall project needs to move quickly past the talking stage and into the doing stage. It's time to rebuild on the current site or build on Avocado.

Neither location will satisfy 100% of the city's residents — only one decision will do that. That decision is the one against seizing private property for the purpose.

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

Staying the course of eminent domain seizures in Long Branch: New Jersey Eminent Domain Blog, 12/21/06

By Bill Ward

When property owners contest a condemning authority’s right to take, a stay is automatic under the Eminent Domain Act of 1971. The stay dissipates once the trial court issues findings of fact and conclusions of law upholding the right to take the properties.

In the eminent domain proceedings against property owners of Long Branch’s MTOTSA neighborhood, Monmouth County Assignment Judge Lawrence Lawson indicated there would be no stay in his June 22 opinion:
N.J.S.A. 20:3-11 states in part, “When the authority to condemn is denied, all further steps in the action shall be stayed until that issue has been finally determined.”

No stay is warranted here as this court has made a definitive ruling that the taking is authorized by law.

Upon publication of Judge Lawson’s opinion, Long Branch and its developers, Matzel & Mumford (K. Hovnanian) and Applied Management of Hoboken, could have proceeded with acquisition, demolition of the improvements and relocation of the property owners.

The obvious reason they did not is that the residential real estate market changed. The market could change again. This factor, and not the supposed “good faith” of the city of Long Branch, is what is driving the status of the project, despite the fact that the developer has obtained title to more than a half-dozen properties in the MTOTSA neighborhood since Judge Lawson’s decision.

If a stay is not issued by the trial court, a property owner must seek relief from the Appellate Division of the Superior Court. The standard for issuing a stay in the Appellate Division is difficult to meet and rarely given.

The standard for injunctive relief was established by the New Jersey Supreme Court in Crowe v. DiGioia in 1982.

In order to meet the standards, the applicant must demonstrate:
  1. That in the absence of such a stay, the claimant will suffer irreparable injury;
  2. The legal right underlying the plaintiff’s claim is settled;
  3. A reasonable probability of ultimate success on the merits; and
  4. The probability of harm to other persons will not be greater than the harm the claimant will suffer in the absence of such relief.

Appellate Judge Jack Lintner issued the stay in the Anzalone case on Nov. 6, thus protecting octogenarians Louis and Lillian Anzalone from any attempt by the city of Long Branch to seize their residence during the appellate process. The stay effectively protects the other MTOTSA appellants, even though their attorney did not apply for a stay.

Long Branch and its legal representatives have sought to minimize the impact of the stay order by stating in the press and in their court briefs that they said they would not file declarations of taking during the appeal.

Such verbiage is scant assurance and could be rescinded at the whim of the developer should the real estate market change. Remember, these are the same people who said the MTOTSA neighborhood would be residential infill and changed course after they reaped the profits from Beachfront North Phase I.

City attorney Paul Fernicola submitted a 20-page brief in opposition to the stay. If this was a conceded point, why would the city waste taxpayers’ money opposing the stay application? The answer is: city and developers want it both ways: They want to appear conciliatory to the property owners at the same time maintaining ultimate control over the acquisition process so they can move forward when the market dictates. The stay order prevents this.

The stay is more than just further assurance against seizures; it is an order of the court that maintains the status quo while the matter is litigated. Most importantly, it is the standard of probable success on the merits of the case. In a recent case involving Readington Township’s attempt to acquire property and developmental rights to Solberg Airport, Somerset County Assignment Judge Yolanda Ciccone granted the Solbergs the right to discovery and an evidentiary hearing.

This is what the property owners in Long Branch urged Judge Lawson to do, but were denied.

Now that the Anzalone case is before the Appellate Division with the stay in effect, and with both the Institute for Justice and the New Jersey Public Advocate participating in the appeal, the MTOTSA appellants should be optimistic about obtaining a reversal of the trial court’s decision.

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


Barbecue icon faces eminent domain: Kansas City MO Business Journal, 12/15/06

A barbecue mecca in downtown Kansas City took a step toward the chopping block this week when the city's Tax Increment Financing Commission's staff permitted condemning the property for a planned office building.

The TIF Commission on Wednesday authorized the developer - interests tied to Copaken White & Blitt - to seize the restaurant's property, owned by Danny Edwards, owner of Danny Edwards Famous Kansas City Barbecue at 1227 Grand Blvd., if a settlement can't be reached.

"Let's hope we don't get to that point," TIF Commission Chairman Peter Yelorda said regarding the use of eminent domain for the property, which sits at the doorstep of the new 18,000-seat Sprint Center arena to the south and the new Power & Light entertainment district to the southwest.

Neither Edwards nor Jon Copaken, a principal with the real estate development company, would specify how much Copaken has offered Edwards for the property.

Edwards said Friday that Copaken had made an offer for the property a couple of months ago that Edwards rejected.

The property's market value is $32,000, according to Jackson County's assessment department.

Edwards leased the building in 1983 with an option to buy, which he did a few years later. In May of this year, he looked at existing space in Barney Allis Plaza but said at the time that "(i)t would cost a lot of money to make that space ready for me, on my nickel."

Edwards also said at the time that the new entertainment district "would be a good place to move to."

In November 2005, the TIF Commission endorsed a plan for a $199 million office building next to the Power & Light District. Copaken said at the time that he wanted to attract a company headquarters.

Copaken also said at the time that the new building could be split among multiple tenants and that he wanted to lease more than half the building's 270,000 square feet before construction starts. The project also includes 50,000 square feet of retail space and a 1,300-space parking garage.

Kansas City MO Business Journal: http://kansascity.bizjournals.com

Judge rules against eminent domain for redevelopment: Carson City Nevada Appeal, 12/15/06

By William Ferchland

A judge's decision may have stalled the timeline for a massive redevelopment project while it kept one store in business for a few more months.

Judge Jerald Lasarow denied the South Tahoe Redevelopment Agency from using eminent domain to transform boutique store Lakeside Landing into a sales office that would use money from presales to help finance construction.

"We are very pleased with the court's decision and happy our employees are secure with jobs and health insurance over the winter season," said Margaret Maxhimer, owner of the store with husband, John.

Lasarow, who heard both sides argue before him in El Dorado County Superior Court last week, ruled Wednesday that the owners of Lakeside Landing will face "substantial" hardship if they closed by Jan. 10, the date requested by redevelopment officials.

Instead, the business will close April 8. Lasarow said representatives with the redevelopment project are allowed to access the property within reason for planning purposes.

In his ruling, Lasarow agreed with Claudia Gorham, attorney for the Maxhimers, who argued the impending closure of a Taco Bell and an existing, neighboring sales office could be used.

"This location (of the existing sales office) is near the major casinos and not far from the ski gondola," Lasarow wrote. "Many visitors walk by this location."

But Eugene Palazzo, redevelopment and housing director for South Lake Tahoe, said that sales office is for a different project.

Palazzo said he needs time to analyze the ripple effect from Lasarow's decision. He was unsure if the projected May date for construction will remain.

"I need to work with the developer to see what this means," he said.

Stacey Sheston, attorney for the redevelopment agency, said modifying Taco Bell or another business into a sales office could be in the six figures. Lasarow said the reasoning was unfounded.

"The plaintiff has failed to show this court what expenditures would be required to remodel other possible locations as compared to the property in question," he wrote. "One of the declarations stated an estimate of 400,000 to 500,000 dollars could be incurred if another location were used for the sales office. This seems to be speculation since there are no estimates submitted as to the actual cost and no breakdown for each of the possible locations."

The proposed $410 million project will face the Marriott timeshare hotels and Heavenly Village along Lake Tahoe Boulevard near Stateline.

Carson City Nevada Appeal: http://www.nevadaappeal.com

George Liebmann - There is another way to settle ‘eminent domain’ debate: National Examiner, 12/15/06


By George Liebmann

The recent election has seen states adopt constitutional amendments reversing the recent Kelo decision allowing New London, Conn., to condemn private homes for purposes of development.

That decision was applauded by city officials, and was decried by many conservatives, including some seeking to ban all redistributive government activity.

A dialogue of the deaf, similar to that in the abortion and “gay rights” controversies, is under way: A judicial decision ignites extravagant political responses; arguments are cast as absolutes, and underlying problems are not rationally discussed.

Certainly, cities have not benefitted from “the federal bulldozer.” The condemnation of owner-occupied homes so that land can be handed over to developers is wrong. But it is a fact that inner cities do not spontaneously regenerate.

Because of the splintering of lots and the complication of titles, private land assembly is a difficult process; developers are held to ransom by “hold-outs”; and the line of least resistance is to develop on greenfields elsewhere.

Improving single properties is difficult; vandalism renders it infeasible. Although there is re-gentrification in historic neighborhoods and around harbors, decay is the rule, renewal the exception. Those urging that rights of property and “law and order” are all that is necessary to renewal overlook formidable transaction costs.

Several foreign countries have found a method of renewal that utilizes private developers and that minimizes, though it does not completely eliminate, governmental coercion. The technique is known as “land readjustment” and supplies the basis of re-development in the war-damaged cities of Japan, Korea and Taiwan, and in Kiel, Germany, and Rotterdam, Netherlands.

Under it, a percentage of owners in a city block petition a city council or court for creation of a readjustment district. Unlike the situation with government takings, any owner-occupier can exclude his property. If creation of the district is found reasonable, the properties within it are appraised.

Any owner not wishing to remain in the scheme has the right to be bought out at an appraised value, as in eminent domain. The remaining owners frame a redevelopment plan, give shares in it to a developer, and on completion, receive either their improved property and/or shares in a corporate owner.

The method relieves both developers and municipalities of land acquisition costs, and gives owners, in inner cities typically landlords, absentee investors, or municipalities, an incentive to cooperate.

Although a number of American academics have sought to foster the technique, it has never caught fire here, although there is no reason save unfamiliarity, why it should not. Similar devices have been used to consolidate land parcels in cemeteries and failed recreational developments.

Provided that compensation of dissenters is immediate, there are no constitutional obstacles. When the defenders and foes of Kelo are through screaming at each other and celebrating their victories and mourning their election defeats, they might usefully turn their attention to this moderate and hopeful device.

National Examiner: http://www.examiner.com

Eminent domain concerns at a head: Ft Collins CO Coloradoan, 12/15/06

N. College businesses worry city is set to resort to measure

By Kevin Darst

Despite assurances to the contrary, Fort Collins seems ready to take private property on North College Avenue to aid in the area's first major retail project.

That's vexing to North College business owners who say the city's assurances they would use eminent domain as a last resort helped smooth passage of the redevelopment plan. The area desperately needs those projects, but business owners are worried they could be the next to lose property under an eminent domain taking.

"The developer is waiting for the city to do their work for them," said Janet Haas, who owns North College Motors, which sits on the northeast corner of North College Avenue and East Willox Lane.

At issue is a rumored King Soopers supermarket northeast of North College and Willox. Developers haven't submitted anything official, though the project might be the worst-kept secret in the area, with a reference to it showing up last week on a power-point slide for City Council.

If built, the supermarket would trigger an expansion of the North College-Willox intersection, including added turn lanes, bike lanes and sidewalks. Those improvements would push North College and Willox onto North College Motors' property, coming within 5 feet of the dealer's door and virtually eliminating space for the dealership's cars.

North College Motors also could lose its prime street-front for a fraction of the price paid for a restaurant property immediately north of the dealership. An initial city appraisal pegged the dealership's land value at $8.24 a square foot, nearly $160,000 for the property and about one-sixth what developers paid nearly two years ago when they contracted to buy Pobre Pancho's restaurant and property.

The restaurant still is open.

Under eminent domain, the city offers fair market value for the property it needs for the infrastructure project. If the property owner won't agree to sell or thinks the offer is too low, the two sides go to a special court, where a judge makes the decision.

An October memo to City Manager Darin Atteberry from Greg Byrne, the city’s director of cultural, planning and environmental services, recommended the city acquire the property through condemnation instead of asking the developer to buy it.

That was based, in part, on Haas’ refusal to let city appraisers on the property for the initial appraisal.

Atteberry said Thursday he hasn’t decided whether to accept Byrne’s recommendation.

“We are always going to use eminent domain as a last resort,” Atteberry said. “Rarely in our history have we ever used eminent domain and when we do we’re very, very careful. Our interest is to minimize any kind of take on the property owner.”

City Council probably would have to approve an eminent domain taking in this case, according to the memo.

“I think there was some premature discussion that was not as open as it should have been,” said council member Karen Weitkunat. “I truly believe City Council will be extremely sensitive to this discussion.”

She said some actions so far have shown “great insensitivity.”

Ben Manvel, the council member who represents the North College area, could not be reached for comment.

Though an urban renewal plan for North College adopted two years ago calls for “good faith negotiations” by the developer and the property owner before the city uses eminent domain, Mike Kronenberger, who manages North College Motors, said he’s never received an offer for the property.

Jim Smith, who owns the property northeast of North College and Willox slated for King Soopers, did not return a call seeking comment.

At a meeting Thursday morning, business owners expressed concern at what they saw as the city’s quick move to the eminent domain route.

“We don’t have good feelings about the intentions,” said Ron Lautzenheiser, a member of the citizen advisory group that advises the urban renewal authority on North College matters. Lautzenheiser owns Grease Monkey and Big O Tire on North College.

The city routinely uses eminent domain, as allowed by law, when it builds streets and other infrastructure projects. But officials acknowledge those takings rarely have the impact this one would have.

Business owners argue the improvements wouldn’t be necessary without the supermarket, making any condemnation a handout to the developer.

Ft Collins CO Coloradoan: http://www.coloradoan.com

Arguments begin in Clayton eminent domain case: St Louis MO Post-Dispatch, 12/14/06

By William C. Lhotka

Lawyers for Centene Corporation began their condemnation case this morning seeking a court order to declare as blighted three properties along Forsyth Boulevard west of Hanley Road in Clayton for the company’s proposed $190 million office and retail complex.

Thomas Weaver, an attorney for Centene, used Clayton City Manager Michael A. Schoedel to identify reams of documents in St. Louis County Circuit Court that show Centene and the city of Clayton made all the proper moves in obtaining city approval in 2004 and 2005 for the redevelopment project.

Schoedel testified at the end of the morning session that Centene’s proposed project was in accordance with a Master Plan for Forsyth Boulevard that city officials adopted in 1993. The plan calls for high-density office use along Forsyth, described by Weaver as the spine of Clayton, along with retail operations.

To condemn the properties at Centene’s request, Judge James R. Hartenbach must determine that they are blighted.

In his opening statement, Weaver told Hartenbach that the decision on whether properties are blighted is a determination by a legislative body under Missouri law and, in this case, the Clayton Board of Alderman already made that determination when it approved the project in December of last year.

Attorneys for the property owners, David Danforth, Dan Sheehan and Debbie Pyzyk are expected to argue against a ruling that the well-maintained and highly appraised buildings could be adjudged as blighted.

In a prepared statement before the three-day trial began, Sheehan said: ``It’s very hard for me to believe that a property that is valued at more than $7 million an acre can be in any way considered blighted.''

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

TDA Moves Toward Eminent Domain Process: Towerview battle looms: Tulsa OK World, 12/13/06

Dilapidated site targeted; owner's lawyer vows to fight acquisition

By P J Lassek

The Tulsa Development Authority [TDA] approved a resolution Tuesday that starts the eminent domain process against the vacant and dilapidated Towerview Apartments.

But the lawyer for the owner of the targeted downtown property, Luay Aljamal of Oregon, said Aljamal will fight the action.

"Under no circumstances is my client going to go down without a fight in any attempts to condemn or take the property by eminent domain," attorney Phil Owens said in a telephone interview.

The apartment building, located on Cheyenne Avenue between Second and Third streets, was vacated in 2004 after the Tulsa City-County Health Department found several code violations and the owner refused to make repairs.

During a TDA meeting on Tuesday, city Economic Development Director Don Himelfarb said the parcel is part of a one-block area across from the BOK Center that has drawn the interest of a couple of hotel developers.

Himelfarb said the inability to acquire the entire block is hindering development options.

The Towerview property, he said, is "vacant, blighted and an eyesore."

One hotel developer who submitted a project proposal to the city was unable to reach an agreeable acquisition deal for the property, Himelfarb said. A second looked at the site and determined it can't be developed without acquiring the entire block, he said.

Litigation over the property "is a mess," Himelfarb said.

Aljamal is pursuing a lawsuit against the previous owners for allegedly not divulging all of the problems with the building before the sale. The previous owners are countersuing, alleging that Aljamal still owes them money.

All the city is interested in is acquiring title to the property, Himelfarb said. The current price figures being "thrown around have no correlation to anything that makes sense," he said.

Heavenly Hospitality of Anthem, Ariz., has proposed to the city to build a mammoth development on the site including a hotel, condominiums, urban lofts, retail and restaurant space.

Owens said Aljamal and Heavenly Hospitality had a contract signed for the Towerview property, but it was later canceled by mutual agreement.

Larry Dalton, president of Heavenly Hospitality, said the property has a lot of issues with its title and actual value.

A copy of the initial contract between the company and Aljamal listed the sale price as $2,050,000. But, Dalton said, that price was subject to an appraisal of the property and his company would not have paid more than the appraised value.

In 2004, shortly after being closed, the apartments were listed on a real estate Web site for $980,000. It then rose to $2 million and the listing was removed. The price increase occurred well before the hotel made its proposal.

Owens said the contract was canceled because of time frame issues relating to title of the property and escrow deposits. Dalton agreed, but added the price was an issue with the contract cancellation.

"Clearly, the $2 million is a very high price if you don't give value to the building, which we don't. He gives a lot of value to the building," Dalton said. "We think it's a building that needs to come down."

Dalton said he prefers not to use the eminent domain route, but there are complicated issues with the property and getting title to it.

Neither Dalton nor Owens knew that the authority had taken action on Tuesday.

Owens said that if necessary, Aljamal will remodel the property into lofts or some other use before he will agree to eminent domain.

Development Authority Executive Director Brenda Miller said TDA has enough funds to pay a fair market price and for demolition of the building. If the cost goes beyond that amount, the city and TDA will have to work together to find funds.

The TDA resolution seeks to add the Towerview site to the urban renewal acquisition plan for the downtown area and recommends that the City Council pursue acquisition. The recommendation will go to the Tulsa Metropolitan Area Planning Commission for approval before going to the council for approval of eminent domain.

Himelfarb told TDA members that he doesn't know what the council will do.

"I certainly will use my best communication skills," he said. "I think if laid out properly, they'll come to the same conclusion as we have."

Tulsa OK World: http://www.tulsaworld.com

Legislator - Domain bills coming: Charlottesville VA Daily Progress, 12/13/06

Cuccinelli wants advisory votes on what tack Virginians think should be taken - if any

By Greg Edwards

Expect several bills in the 2007 [Virginia] General Assembly designed to reel in government's use of eminent-domain powers, says Sen. Ken Cuccinelli, R-Fairfax.

It will be a do-over for Virginia lawmakers.

In reaction to a controversial U.S. Supreme Court decision, the General Assembly tried and failed this year to pass legislation to restrict the use of condemnation power.

In the upcoming assembly session, Cuccinelli plans to call for an advisory referendum on what sort of constitutional amendment, if any, should be adopted to limit eminent domain.

Cuccinelli wants the voters' opinion on two competing approaches that generally reflect bills that were debated by this year's General Assembly.

One of the bills clearly stated that condemnation could not be used primarily for economic development projects. Another would have limited condemnation but allowed it for existing purposes such as blight removal. However, when lawmakers got around to the issue at the end of the assembly session, they decided not to act rather than pass a bill hastily.

A referendum could help break the legislative logjam on eminent domain, Cuccinelli said. Lawmakers resist referendums, but property rights are at the foundation of government, he said.

State law and the state constitution need to be changed to restrict eminent-domain abuses, Cuccinelli said. A provision in the constitution that allows lawmakers to define public use for condemnation purposes undermines the purpose of having a constitution, he said.

"What we're talking about here is the restraining of government power," Cuccinelli said. "Developers get government to do their dirty work for them," he said.

The U.S. Supreme Court's ruling in a Connecticut case last year focused the public's attention on eminent domain.

The court in Kelo v. City of New London ruled that the U.S. Constitution does not bar government from condemning private property and turning it over to another private party for economic development. The high court said, however, that the states were free to put stronger limits on the use of eminent-domain power.

Cuccinelli was one of the three speakers at a news conference in Richmond yesterday sponsored by the Virginia Institute of Public Policy, a libertarian policy group based in Northern Virginia. The institute released a new report on the use and abuse of eminent domain in Virginia.

The Virginia Supreme Court in many cases has given less protection to property owners than the federal court did in the Connecticut case, said Jeremy Hopkins, a property-rights lawyer and the report's author. A debtor who refuses to pay his bills in Virginia is given more rights than a property owner, Hopkins said.

Those with condemnation authority, which includes private utilities, constitute a powerful lobby in Virginia, Hopkins said. Lawmakers who sit on key assembly committees vote on eminent-domain legislation even though they have conflicts of interests from the stock they own and the gifts and donations they receive from lobbyists, he said.

The only way Virginians will get meaningful eminent-domain reform is when people stand up and hold their representatives accountable, Hopkins said.

Charlottesville VA Daily Progress: http://www.dailyprogress.com

Salvo Fired in Atlantic Yards Eminent Domain Battle: New York NY Sun, 11/13/06

By David Lombino

The state of New York has issued what lawyers call the legal maneuver required to begin condemnation of private property inside the footprint of the proposed Atlantic Yards project in Prospect Heights, Brooklyn.

In a letter dated December 8, the Empire State Development Corporation sent a letter to property owners inside the 22-acre project footprint stating that based on its findings, the state had determined it should exercise its power of condemnation to clear the way for developer Forest City Ratner's $4.2 billion plan to construct an arena and 16 towers mainly for residential use. The letter stated the project footprint has been a "center of blight and decay," and that "the Atlantic Yards Project will transform this blighted area into a vibrant, mixed use development."

Property or business owners in the footprint have until January 11 to file a proceeding with the Brooklyn Appellate Division for a judicial review of the state's findings. The law limits the areas where property owners can challenge the condemnation.

A lawyer specializing in eminent domain, Michael Rikon, said last night the state's letter represented the "opening salvo" and the "only salvo" in the state's move to condemn. He said that under the existing laws, "It is virtually impossible in New York State to stop a condemnation."

New York NY Sun: http://www.nysun.com


Eminent-domain hearing in limbo: Rapid City SD Journal, 12/12/06

The status of a Dec. 22 hearing over the Dakota, Minnesota & Eastern Railroad's request to use eminent domain for an expansion project was uncertain Monday after DM&E asked for a different hearing examiner.

The South Dakota Transportation Commission had scheduled the hearing in Pierre to determine whether the rail line can use the legal procedure to gain the right to cross private land for its proposed $6 billion expansion to haul coal from Wyoming.

Bill Nevin, the attorney for the state Department of Transportation, said the attorney for DM&E recused the hearing examiner who was assigned to conduct the hearing. He said DM&E did not have to give a reason for its request.

"As a result of that, a new hearing examiner will need to be appointed. I expect that will probably happen by tomorrow," Nevin said late Monday afternoon.

Bill Janklow, the lawyer for some landowners, sent motions to the Transportation Commission asking that his clients be allowed to intervene and that the hearing be postponed.

"The motion for continuance is pending," Nevin said. "I assume the hearing examiner will take that up in the near future."

DM&E wants to rebuild 600 miles of track across South Dakota and Minnesota and add 260 miles of new track to Wyoming in order to haul low-sulfur coal eastward to power plants.

Opponents include some southwest South Dakota ranchers along the proposed route; residents in Pierre and Brookings, and the city of Rochester, Minn., and its Mayo Clinic.

Janklow, a former governor and congressman, said his clients had no formal notice of the hearing and limited time to get on the agenda, and would have difficulty traveling so close to Christmas.

Railroads are allowed by state law to take land from unwilling owners only if a project is for a public use consistent with public necessity. Railroads must also have already negotiated in good faith to acquire the property.

Rapid City SD Journal: http://www.rapidcityjournal.com

Dear interested party...

Commentary by www.nolandgrab.org

It's hard to imagine what it feels to receive a condemnation notice. In case you have never received one of these things, you can get an idea of what it's like by downloading a copy of the cover letter of the notice hand delivered to property owners in Brooklyn NY, in the footprint of the Atlantic Yards proposal.


Could eminent domain issue go before voters? New Mexico Business Weekly, 12/11/06

New Mexico's eminent domain opponents are hoping the state will follow in the footsteps of nine other states in protecting private property owners from the government's tool of eminent domain.

Last month, voters in nine states approved ballot initiatives limiting the use of eminent domain for economic development purposes. New Mexico has not put the issue before voters and there is no indication that it will be put on a ballot any time soon.

Instead, New Mexico Gov. Bill Richardson this year appointed a task force to examine the use of eminent domain. It recommended in November that the use of eminent domain for economic development purposes should be removed from the Metropolitan Redevelopment Act, the state legislation that regulates how revitalization areas and improvement districts are to be redeveloped.

Of the 34 states that have limited the ability of state and local governments to take private property for such purposes, only a handful have outright struck eminent domain from their codes. Others focused on procedural protections for private property owners, such as providing adequate compensation and property value for takings under the clause. The use of eminent domain as a federal statute was approved by the U.S. Supreme Court in the 2005 Kelo v. City of New London, Conn. case in which private property was being seized for a private, commercial redevelopment project.

The city of Rio Rancho, northwest of Albuquerque, has utilized eminent domain more than other municipalities in the region. It cites its use in successfully converting outdated property into redevelopable land for public utilities and other investments.

Richardson has not indicated how he might respond to the task force's recommendations. A bill is most likely going to be introduced in January during the 2007 legislative session.

New Mexico Business Weekly: http://albuquerque.bizjournals.com

Court - It's OK to stop developers: Penn Live, Harrisburg PA, 12/8/06

Superior court rules eminent domain may be used to preserve land

An eminent domain ruling from [the New jersey] state Superior Court could strengthen a similar case brought by Readington Township officials that is winding its way through the court system.

The ruling Thursday affirms Mount Laurel Township's right to seize land from a developer for open space preservation. Readington Township officials are arguing they have the right to condemn land around Solberg Airport for the same reason.

"Certainly the overriding principle of this opinion is helpful," said James Rhatican, the township's attorney in the case.

While it affirms the right to exercise eminent domain for land preservation purposes, it doesn't ensure a victory for Readington Township officials.

Laurence Orloff, the attorney representing the airport owners, claims officials' true motive has nothing to do with land preservation. He argues officials want to prevent the airport from expanding and serving larger aircraft. He contends officials masked a referendum allowing them to borrow money to fund the purchase as a preservation and environmental issue.

Officials are seeking 624 acres of land and the development rights to the 101-acre airport.

Thursday's court ruling decision "scuttles an argument of pretext," and shows stopping residential development correlates to land preservation, Rhatican said.

The Mount Laurel case centers on a 23-acre piece of land that is quickly losing its once-plentiful open space.

The township tried to buy the land in 2002 before MiPro Homes LLC received a subdivision approval for its plans to build 16 homes there. After being rebuffed, the town's government used its power of eminent domain to acquire the land to preserve open space and to avert problems that can come with more homes, such as traffic congestion and school crowding.

MiPro sued and a trial court judge agreed with the homebuilder that seeking to prevent sprawl was not a sufficient reason for the government to use its takings power.

Last year an appeals court overturned that decision, and on Thursday the state Supreme Court agreed with the appeals court in a 6-1 decision.

Environmentalists applauded Thursday's decision, which strikes a blow to developers, and some argue, private property rights.

Richard S. Van Osten, executive vice president of the Builders League of South Jersey, said the ruling is a blow to property owners.

"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," he said.

The Sierra Club, on the other hand, applauded the ruling.

"Towns can condemn land for private development," said Jeff Tittel, director of the environmental group's New Jersey chapter. "Now they can condemn land to stop sprawl."

Penn Live, Harrisburg PA: http://www.pennlive.com

Ranching interests push for eminent domain law reform: Billings MT Gazette, 12/11/06

The Associated Press

After working with the oil and gas industry on a compromise bill to reform Wyoming's eminent domain law, the Wyoming Stock Growers and Wool Growers associations say now they'll lobby for more sweeping reforms.

"Eminent domain is just an incredibly personal issue to ranchers because it can be life or death," said Ogden Driskill, the Wyoming Stock Growers Association's regional vice president for northeast Wyoming.

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, said among other things, the two groups would push for a "public benefit" test to determine whether eminent domain actions for private uses would truly benefit the public, "which should not include minimizing corporate cost or streamlining permitting," according to the joint resolution.

"Ideally, these are what we'd like, and we are going to work through any number of mechanisms to get what we can," Magagna said. The move comes after some members of the ranching groups complained about the compromise bill, which was drafted with input from the Stock Growers and Wool Growers, along with the Petroleum Association of Wyoming, the Wyoming Farm Bureau and others.

Magagna acknowledged that he'd heard criticism from some of his members about the compromise bill. He said the ranching groups would fight - within reason - to get everything their members want.

"Our goal will be to get, to some degree, every one of those recommendations," Magagna said. "But we're going to have to make some judgment calls and some strategy calls along the way."

Bruce Hinchey, president of the Petroleum Association of Wyoming, said he wasn't surprised to see the change in stance from the ranching groups.

But he said landowners have little to fear from eminent domain, which mostly is used for highways and other transportation rights of way.

"I don't think anyone is trying to abuse it," Hinchey said. "I think our companies and municipalities do a good job."

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