Changes needed on eminent domain: Alamagordo NM Daily News, 12/21/06

By Walter Bradley

Since last year's infamous Kelo v. City of New London U.S. Supreme Court decision, citizens across the nation have declared in no uncertain terms their support for private property rights and opposition to the use of eminent domain for private gain.

Eminent domain is the power of the government to take private property against the owner's wishes; both our state and federal constitutions restrict that power only to circumstances where the government is taking the private property for "public use."

In Kelo, however, the U.S. Supreme Court redefined "public use" and allowed the government to condemn property to take from one private owner and hand it directly to another private interest.

Shortly before the one year anniversary of Kelo, Gov. Richardson convened a task force to study the issue of eminent domain in the Land of Enchantment.

Although Kelo now allows for eminent domain abuse under the federal constitution, the task force members came together to study whether current law in New Mexico allows for eminent domain abuse and, if so, what could be done to fix New Mexico's laws and protect our citizens' private property rights.

Alarmingly, we discovered some of New Mexico's eminent domain laws are so broadly written that currently every property in the state is at risk for a Kelo-like taking. Local governments are free to use New Mexico's incredibly broad condemnation authority to take virtually any property in the state and hand it over to private developers.

While most people recognize the need for eminent domain to accomplish traditional public uses, such as schools, roads, utilities and so on, based on the public comments our task force received, the overwhelming majority 99 percent made their position undeniably clear: New Mexico should respect the rights of individuals to keep what they have worked so hard to own, and should protect its citizens from eminent domain abuse.

New Mexicans are not alone in this situation. This fall, voters passed every one of the 10 proposed ballot measures solely reforming state eminent domain laws. All told, 34 states have seen fit to better protect their citizens from the use of eminent domain for private profit.

I am pleased to report that the majority of the task force recommended to the governor that New Mexico's Metropolitan Redevelopment Act be amended to prohibit the use of eminent domain for private economic development. This is the only state law that allows use of eminent domain, and has been used purely for economic development purposes.

To ensure that our citizens' rights will be protected in the future, the task force unanimously agreed that certain procedural protections should be adopted as well.

The task force made the following recommendations to Gov. Richardson and our state legislature:
  • Clearly prohibit the power to use eminent domain for private economic development purposes by removing it from the Metropolitan Redevelopment Act;
  • Rewrite the New Mexico Metropolitan Redevelopment Act to remove existing language that indicates that the interests of private developers outweigh the interests of the private property owners;
  • Increase notice and hearing requirements so that property owners have earlier notice and a more secure opportunity to participate in the decision-making and planning process.

The governor has already voiced his support for our recommendations. It is my hope that the Legislature will respect the rights of New Mexico's citizens and take the opportunity the upcoming legislative session provides to ensure our citizens will be protected from eminent domain abuse in the years to come.

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

Walter Bradley is a former lieutenant governor of New Mexico, and served as a member of the Governor's Task Force on Eminent Domain

California Focus - Next round in eminent domain fight: Orange County CA Register, 12/20/06

Anti-tax group prepares state constitutional amendment to protect property

By Barbara Laraia

Every California property is fair game for condemnation, seizure and transfer to a private developer under the government's power of eminent domain. New and excessive property regulations also could render anyone's property useless, with no financial compensation required.

The defeat last month of Proposition 90, an initiative that would have erected safeguards against the types of abuses mentioned above, has opened the floodgates of the Kelo decision in which the U.S. Supreme Court ruled last year that elected officials may take anyone's private property – with alleged "just compensation" – and transfer it to a private developer to build things like stadiums, auto malls, shopping centers or any other project that the jurisdiction thinks would generate more tax revenue.

In the year-plus Since Kelo, condemnation proceedings have tripled. Because of Kelo, 34 states, but not California, have passed some kind of eminent domain reform.

So what are the options for protecting private property in this state? One approach is another statutory initiative, which would make the ballot after citizens gather valid signatures from a number of people equal to 3 percent of the voters in the most-recent election and meet all other legal requirements. A statute can contain considerable legal minutiae.

A constitutional amendment is more difficult and expensive for ballot qualification because it requires the signatures of a number equal to 5 percent of the voters in the most-recent election. Like a statutory initiative, it requires majority approval, but it is different in that it establishes a legal framework for enduring legal concepts and principles. This makes a constitutional amendment stronger and more protective than an initiative, according to policy analyst Leonard Gilroy.

A few weeks ago the Howard Jarvis Taxpayers Association proposed a state constitutional amendment that states, among other things, that private property may be taken by governments only for public uses, such as schools or roads. The California Property Owners Protection Act [CPOPA] will cost $1.3 million to $1.4 million to qualify for the ballot, according to the group's president, Jon Coupal. He stated that his group will not even consider a statutory initiative and noted that depending on "input from stakeholders" there may be a chance of submitting another measure.

"Failure of Prop. 90 won't make this issue go away," Coupal said.

CPOPA has strong eminent domain protections. "Private property may be taken or damaged for a stated public use. ... Private property may not be taken or damaged for private use." (Sec. 19 (a)). "Public use" means "use and ownership by a public agency or an investor-owned public utility for the public use stated at the time of the taking, including public facilities, public transportation and public utilities," the proposed amendment states.

The definition of public use includes the word "ownership," thereby making the intent of "public use" crystal clear to elected officials who condemn our property.

CPOPA also prohibits property from being "damaged" for any purpose but a stated public use. "Damaged" includes "limiting the price a property owner may charge another person to purchase, occupy or use his or her property." This basically addresses rent control, and might prove a drawback in getting the amendment approved. Rent-control activists may cry foul, even though there are already government programs to help poor, elderly and disabled people with their rent.

Attorney Jennifer Zeigler with the property-rights group the Castle Coalition noted it may be better to put eminent domain reform on the ballot by itself for easier passage and also because of possible legal challenges to the "single subject rule" of ballot measures. However, she agreed that rent control is, in effect, regulatory taking, and reforms of both regulatory takings and eminent domain were allowed on last month's ballot in the form of Prop. 90.

Whichever measure(s) makes it to the ballot, it must be stated that eminent domain will be enacted only for public use and ownership. We need an antidote for the Kelo ruling by amending the state constitution to guarantee our inalienable right to keep and use our property once we purchase it, except in specific instances.

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

Builder defends eminent domain project: Hanover PA Evening Sun, 12/23/06

By Ashley Adams

Paul Burkentine says he is in the business of building people their dream homes.

Lately, though, many see him as taking those dreams away.

But Burkentine feels he is being wrongly accused of forcing a Penn Township family out of their home.

Burkentine & Sons Builders Inc. is planning to build a development called Brookside Heights on a 40- to 50-acre tract to the rear of Dana and Bill Heston's property at 823 York St. He has been working on the project since 2002.

Burkentine said that as part of the development and engineering process, he was directed by the township to perform a traffic study. The findings indicated a traffic signal was needed at the intersection of York and Center streets because of the increase in traffic – not only from his subdivision, but from other subdivisions proposed in Penn Township.

Burkentine said there were other traffic studies done by the township and other developers that showed the same need for a traffic signal.

Although installing one at Baer Avenue and York Street was an option, Burkentine said the location of the signal was determined by the traffic engineer, the township and the Pennsylvania Department of Transportation.

"We, the developer, had no say in the matter," Burkentine said.

Penn Township Manager Jeff Garvick has said the need for a traffic light at the York and Center streets intersection dates back to the 1970s and is included in a township comprehensive plan.

"We were directed by Penn Township to determine a design of what was needed to implement a traffic signal at York Street and South Center Street which would tie into Brookside Heights," Burkentine said. "This design is what dictated the properties that were needed to be acquired to implement the traffic signal."

To install the traffic signal, Center Street would have to be widened, meaning the Heston's home and easements from other properties would need to be acquired.

Burkentine has already acquired easements and rights of way with four of the five property owners.

The other acquisitions went smoothly, Burkentine said.

Dana and Bill Heston have said they are happy with their four-bedroom, two-bathroom brick home, which they say a perfect fit for their six children. So they are fighting the issue.

But Burkentine said his original plan for Brookside Heights never showed a traffic signal or access to the development at York and Center streets. The development was suppose to have a cul-de-sac prior to reaching York Street.

He pointed out that it was the township that asked him to change the plan to extend Center Street for public safety reasons.

And, Burkentine said, the Brookside Heights development has other proposed entrances and exits besides the one on York Street.

As shown on the land development plans, the development can be accessed through Brookside Avenue, Baer Avenue, Charles Avenue and Overlook Drive.

But Burkentine agreed to incur all costs and put up a traffic signal for the betterment of the community.

In July 2004, Burkentine said he personally went to the Heston home to speak with Bill and Dana to explain the situation.

To follow up after the meeting, Burkentine said a certified letter was sent to the Hestons in August 2004.

Then, in September 2004, Burkentine made his first offer in writing by sending another certified letter. He said the offer was based on multiple appraisal he did on the house.

Burkentine said he got no response from the Hestons or their attorney.

Then, in December 2004, Burkentine said another certified letter was sent to the Hestons. Again, no response.

Another letter was sent in January 2005 asking the Hestons to meet with the company, Burkentine said. The Heston's attorney finally responded with a counter offer that was more than twice the appraised value of the home, Burkentine said.

In February 2005, Burkentine said he sent a final certified letter stating the company's final offer was $160,000. Which, Burkentine said, is above the appraised value of the home and is still being offered to this day.

Burkentine said he hasn't heard anything from the family or their attorney.

Dana Heston has said the family is willing to move, but they want the fair-market value for their home – something, she has said, hasn't been offered to them. She has also said the family was willing to take the original offer of $160,000 but it was suddenly taken off the table and another offer of $132,000 was given. Since then, Dana Heston has said Burkentine is the one who won't answer her calls nor calls from the family's attorney.

The Hestons have also said they have been threatened by Burkentine with eminent domain.

"I did not, in anyway, mention eminent domain," Burkentine said. "I have no power to execute eminent domain."

He said he told the Hestons that if an agreement couldn't be reached, he would turn all the paperwork over to the township and allow them to solve the situation.

Burkentine said the township has a copy of all correspondence between the company and the Heston family.

In a statement read during Monday's commissioner's meeting, Penn Township 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."

Burkentine said he has more than $250,000 of his own money invested in the traffic signal, which is an off-site public improvement to his development, and he shouldn't get blamed for the situation.

"We don't enjoy being put in this situation and feel that is unfair of the township to place the burden completely on Burkentine & Sons," he said.

And because of this issue, Burkentine said other rumors have been flying around town about his company. One such rumor is that his company is in financial turmoil.

"That is totally untrue," Burkentine said.

"We are not happy that the location of a proposed traffic signal imposes on a family's way of living," he said. "This situation is certainly unfair to everyone involved, particularly the Hestons. We sympathize with them and are willing and have always been willing to work with everyone involved to come up with the best possible solution. This has become a situation where everyone needs to work together, including us, the developer, Penn Township and the Hestons."

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

Judge rules for port authority in eminent domain case: The Business Journal of Jacksonville FL, 12/21/06

By Tony Quesada

The Jacksonville Port Authority can proceed with exercising eminent domain to take property owned by Keystone Coal Company, a judge ruled Thursday.

Circuit Judge Jean Johnson, in 28-page order, found that the authority met its burden in establishing a public purpose and reasonable necessity to take the 65-acre parcel.

The judge did not find merit in Keystone's arguments that the authority acted in bad faith or abused its discretion.

She wrote that based on "constitutional and legislative provisions, the port authority's acquisition and development of property for the purpose of leasing the property to private companies for their use is a public purpose."

She also ruled that the determination of whether the taking is necessary is a legislative decision that the court should tread lightly on.

"We felt we had the better side of the argument," said Joel Settimbrini, lead counsel for the port authority. "There's a wealth of legislation finding that port authorities are good for the people of the state of Florida."

Johnson added that case law and statutes in Florida favor public development of port facilities "without regard" to whether it will benefit a private entity. Keystone had made an issue of the fact that the authority has a tentative agreement to lease the land to a competitor of Keystone.

Johnson wrote that a port authority being able to acquire suitable property ensures that such property will be available for port facilities. She said that allows a port authority "to exercise control over the property's use, so that development of the port is not left to the whims of private owners or the vagaries of the marketplace."

Settimbrini found that language insightful, saying that the property being taken "will be held in public trust for the good of the community as it evolves over time." He said the port authority filed for condemnation "only after a painstaking process that considered whether the property was being used. This property was a closed paper mill."

Simon Bloom, lead counsel for Keystone, said he had not had a chance to review the ruling.

The Business Journal of Jacksonville FL: http://jacksonville.bizjournals.com