Talk of property-taking through eminent domain stirs residents: Gaithersburg MD Business Gazette, 5/3/07

But Port Towns CDC has no interest in going after Cottage City homes

By Sarah Nemeth

A flier distributed last month to Cottage City residents by Commissioner John Wynkoop accuses the Port Towns Community Development Corporation of supporting a plan to take residential property through eminent domain to build a condominium project in town.

The CDC and developer Rufus Lusk say there has been no talk of taking anyone’s property, but the matter has caught the attention of Cottage City officials, who say the CDC could ask the county for eminent domain authority, the power to take private property for public needs.

However, CDC officials say they are not interested in taking property in that manner.

‘‘The Port Towns CDC has not been approached by, nor is aware of, any local developer or member interested in buying any homes from any of the towns of the Port Towns,” Executive Director Sadara Barrow said. ‘‘All economic development discussions within the CDC have related only to buying commercial property and none of those discussions include taking anyone’s, not even commercial property.”

Wynkoop (Ward 4) and Commissioner Anna Angolia (Ward 1) allege that during a discussion with Lusk in December, the developer said he wanted to construct a five- to six-story condominium building near the corner of Bladensburg Road and 37th Avenue. The plan would include possibly taking three homes through eminent domain, Angolia said.

‘‘The Port Towns CDC is behind this,” she said. ‘‘This is my street, this is where I raised my children.”

Lusk is a member of the CDC’s board of directors. His daughter, Rebekah Lusk, is the president of the group.

Wynkoop’s flier accuses the Port Towns CDC of supporting the ‘‘taking of houses from our citizens so that a member and local investor can build condos.”

‘‘I support local businesses coming in, but basically what he wants to do is wipe out the little guy and make it a big corporate town. We don’t want that. We’re a happy little town,” Wynkoop said.

Lusk said there was no mention of the use of eminent domain.

‘‘That is their fantasy,” Lusk said. ‘‘We were specifically talking about a couple of used car lots which I understood they would be very happy to see as a higher-end and better-end use. I certainly never talked about taking anyone’s homes away. That’s ridiculous.”

In a recent U.S. Supreme Court case, Kelo vs. City of New London, the court ruled that eminent domain can be used to seize personal property for private projects, not just public projects like parks, schools and highways.

According to county planning staff, state legislation allows the county’s eminent domain authority to be transferred to the county’s Redevelopment Authority, said spokeswoman Andrea Davey. Also, the state gives some municipalities the power to use eminent domain, she said.

Would Cottage City consider ceding eminent domain authority to the CDC?

‘‘Definitely not,” said Edward Hudgins III, Cottage City Commission chairman.

This is the third time since 1999 that the town has heard talk of eminent domain.

The first time, residents of 43rd Street received notices from Prince George’s County that their houses were going to be taken via eminent domain for a school. The town sued and won.

Two years ago, legislation at the state level was proposed to give the county some private property on 38th Street and along Bladensburg Road in order to turn it over to another private property, Hudgins said.

Hudgins said the CDC could request eminent domain authority from the county, and that is what concerns him.

‘‘The county government could somehow try to intervene, like what happened in Kelo,” he said. ‘‘Would there be an attempt to get authority to seize property — that’s the concern.”

Hudgins’ fears could become reality under state law, said Harry Lerch, an attorney with Bethesda-based firm Lerch, Early and Brewer, and a former general counsel to the Maryland-National Capital Park and Planning Commission.

‘‘Clearly the legislature can do it and the legislature has granted it to county governments,” Lerch said of property acquisition under eminent domain.

Home rule powers, under the Express Powers Act, allow the county to take over property required for public purposes. In some cases, redevelopment, even by a private developer, can be deemed a ‘‘public purpose,” Lerch said.

‘‘The basic law [is] if an organization with the power of condemnation makes the decision that it’s for a public purpose ... the courts will not go behind that decision.”

Gaithersburg MD Business Gazette: http://www.gazette.net