When eminent domain is eminently unfair: NWITimes.com, Munster IN, 1/14/07

Opinion
by Mark Kiesling
With all apologies to the screenwriters of "Casablanca," it doesn't take much to see that the problems of four little homeowners on Summit Street in Crown Point don't amount to a hill of beans in this crazy world.

Back about 2004, the city decided it wanted the four properties just east of Main Street, saying it planned to widen Summit and improve traffic flow. Using a court-tested procedure known as eminent domain, it began proceedings to acquire the three homes and a duplex.

Eminent domain allows a government body to grab your property if it can be shown that doing so is in the public interest. The interstate was built on eminent domain.

Improving traffic flow by widening Summit was definitely in the public interest as Crown Point continues to grow in residential and business size.

Although Summit was repaved and new curbs put in, it's still only one lane in either direction at Main Street (plus the turn lane, which was there before). So what was all this about "widening?"

So much baloney, apparently. But why?

Well ... the old Merz Machine Works on North Main has been replaced by a strip mall, and the strip mall has an asphalt parking lot that needs a place for rainwater to go. So a retention pond was dug on the land where the houses once stood. An entrance to the strip mall also was cut into the Summit Street land.

So the demolition of the three homes and the duplex benefited a developer, who put a Starbucks on the corner and thus brought civilization to Crown Point.

And the homeowners? Three of the four got market value for their homes, which allowed them to try to stay in Crown Point by taking out bigger mortgages. A new law, signed by Gov. Mitch Daniels on March 24, 2006, gives homeowners 150 percent of market value plus relocation costs and was in the works when the duplex owner settled for more than his building was worth.

That law was a direct result of a June 23, 2005, U.S. Supreme Court decision that said government may take land by eminent domain even if it benefits private economic development and not for "public use."

Had that been the law of the land in 2004, Crown Point would not have needed to go through the charade of saying it was taking the homes to widen Summit Street when no such widening was planned.

It's unlikely, even unfathomable, that the U.S. Supreme Court would have considered what effect its ruling would have on four property owners 1,000 miles away. But that's the way things are. Laws and rulings are too often made without consideration (or concern) for the effects on real people.

Here's looking at your Starbucks, kid.

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NWITimes.com, Munster IN: http://nwitimes.com

Tuscaloosa mayor says UA’s growth good for city: Tuscaloosa AL News, 1/14/07

By Jason Morton
Although they say they don’t know the University of Alabama’s ultimate vision for The Strip, city leaders trust that UA’s president has the best intentions for the university - and by extension, the city.

“The university has a strong interest in not only The Strip, but its entire campus," said Tuscaloosa Mayor Walt Maddox. “The city has a vested interest in that because the university is a large, economic engine that provides thousands of jobs and nearly a billion dollars of economic impact in our metro area.

“The city and university, by that nature, have a very close relationship."

Maddox said Tuscaloosa and UA officials meet regularly to discuss public safety and commercial growth, among other issues, to coordinate efforts.

The city isn’t concerned that UA’s real estate purchases could hurt the city’s bottom line, Maddox said.

“I think it just depends on how much property is taken and how it’s redeveloped and whether that redeveloped property becomes public or private," he said. “But the university has been extremely successful in recruiting students, and that has a major impact on revenue collections.

“There’s a short-term impact and a long-term impact, and only time’s going to tell on both."

Maddox pointed to UA President Robert E. Witt’s ambitious plan to attract more students and said that alone could offset any loss in property taxes if the school bought properties on The Strip.

He said that more students would mean an economic impact for the city that includes more housing and sales taxes.

“We’re seeing that growth in the downtown, west Tuscaloosa and Alberta areas in terms of housing real estate," he said.

And although state law exempts any land owned by the university from property taxes, the buildings and other improvements can be assessed for tax purposes.

For example, UA owns the land where Publix Super Market is located. In 2006, Publix paid about $6,800 in property taxes to the city, and more than $26,000 to the state, county, school and city.

However, if the university were to buy a property and build a parking deck, those property taxes would be lost.

David Jones, owner of the Alabama Book Store, said UA officials are interested in the block that includes his store, Campus Party Store and Gallette’s bar for a possible parking deck. Those properties paid nearly $1,700 in property taxes to the city, and $6,400 to the state, county, school and city.

While both Maddox and City Councilman Lee Garrison, who represents the district that includes the university, said they don’t know the University’s long-term goals, they do want The Strip to maintain its current mixed-use designation.

Both officials also said the city has not been approached by university officials requesting the city’s aid in acquiring property through powers of eminent domain. The university has its own ability to use eminent domain, but the rules regarding colleges and city governments differ slightly.

Both entities can take land by eminent domain if it’s intended for public use, such as the city has done with buildings in its Downtown Urban Renewal and Redevelopment Plan, where a parking deck, city park and new federal courthouse are planned for construction.

“I would only vote to condemn a structure on The Strip - or anywhere else in the city - if the intent is for a public purpose," Garrison said, “not as a conduit for private development."

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Tuscaloosa AL News: http://www.tuscaloosanews.com

Court-OK'd Theft: New York NY Post, 1/16/07

If judges wink at politicians land grabs...
Letter to the Editor
By Bart Didden
THE U.S. Supreme Court may have ruled that private property could be taken for public benefits like jobs or taxes, but what about for outright extortion? Can my private property be taken because I refused to pay off a private developer who wanted land I owned and planned to develop? As remarkable as it sounds, two federal courts in New York already allowed what amounts to outright eminent-domain extortion.

In 2003, a developer approached my business partner and me, saying we could either pay him $800,000 or give him a 50 percent interest in a business we were about to develop, or he would cause the Village of Port Chester to take our property through eminent domain.

Outraged, we refused.

The very next day, Port Chester condemned our property.

(Both sides' attorneys were present when we turned down that offer - and attorneys, as officers of the court, must tell the truth. My attorney will swear this is what occurred and the developer's attorney has never once refuted my account of what transpired. What's more, the developer admitted in a court document that he made this offer.)

And if you think this abuse of power couldn't get more outrageous, consider this fact: I had an agreement to develop a pharmacy on my land, and had a plan fully approved by the town government. So what is the favored developer going to put up if he gets his way? A pharmacy. The same exact use, only one developer (him) has political connections while the other developer (me) has nothing but a deed to the property and constitutional rights that are supposed to be protected by the government, not abused by them.

The Institute for Justice, a Virginia-based public-interest group, came to my aid to ask the Supreme Court to look again at the issue of eminent-domain abuse and ensure that lower courts do not read the high court's Kelo precedent to mean courts can never review eminent-domain cases. The court is expected to decide any day now whether to hear my case.

Federal courts have now become basically like rubber stamps, approving any eminent-domain effort that comes before them. Shockingly, the trial court that heard my case and threw it out, and then the federal appeals court agreed, because my property was within a "redevelopment district" - a region the town had designated as subject to its eminent-domain power - the Constitution didn't protect my property from condemnation. Even though we were condemned solely because we resisted the developer's attempted extortion.

"Go to the Legislature," some might suggest. "They'll fix the problem." Well, the last time the state Legislature met to reform eminent-domain laws, the only specific property it protected from eminent domain was Deepdale Golf Course - a swank private club that is a favorite of politicians, and was threatened with eminent domain to turn it into a public course.

And that is why the courts are so important. The state and local lawmakers will continue to bow to land-hungry developers, so the courts are the only place left where an ordinary American may find protection for what rightfully belongs to them.

But until the Supreme Court takes a case like mine and sends a message to all the lower federal courts that they are not merely judicial bystanders but instead play an important role in protecting my rights, people like me will continue to find their rights under assault and their dreams lost to people with more power.

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New York NY Post: http://www.nypost.com

Ranch property condemned via Internet: Capital Press Agriculture Weekly, Salem OR, 1/12/07

Public meeting on eminent domain posted only on state agency’s website
By Cookson Beecher
Imagine this.

You're home, and everything seems right with the world.

Then, much to your surprise, you're served with papers informing you that a state agency is using eminent domain to take your property. A price is offered. In so many words, you're told, "We're going to take your property and there's nothing you can do about it."

But this can't be, you say. I was never even notified that my property was under consideration. I never had a chance to offer any input.

Oh, but yes, you did, an agency bureaucrat tells you. We posted a public meeting notice about a project that involves your property on our website. And even though we didn't specifically mention your name, your address or the property's parcel number, the website notice was adequate.

As farfetched as this scenario may sound, it's exactly what happened to Pierce County beef raisers Ken and Barbara Miller, both 68.

In their case, Sound Transit wanted a piece of property in Tacoma for a park-and-ride lot. During the public meeting that had been posted on its website, Sound Transit decided to take the Millers' property.

In a state of utter disbelief, the Millers hired attorneys and started out on a three-year legal nightmare, which so far has cost them $200,000 in attorney fees.

Much to their dismay, last year the state's Supreme Court, in a 5-4 decision, ruled that Sound Transit had given the couple adequate notice.

"While precedent on this subject is sparse," Justice Mary Fairhurst wrote for the majority, "posting on a public website is at least as likely to provide the community with notice as the specifically approved notice given to a newspaper."

Miller said that until this happened to them, her husband had never used the Internet.

According to a Pew Internet & America Life Project survey conducted Feb. 15-April 6, 2006, only 42 percent of American homes have broadband connections.

The Millers live and run cows on 30 acres about a mile from the targeted property.

At one time, they had a lumber remanufacturing mill on the targeted site and produced finished lumber for customers across the nation and even in Australia. They've owned the site for 30 years.

Zoned heavy industrial, the nearly 1 1/4-acre parcel has all the necessary improvements - including almost 500 feet of street access and 300 feet of rail frontage - for a lumber-related or other industrial-type business. It also has a house, which can be used as an office, on it.

"There's no other land in the area we can replace it with," Barbara Miller said.

Originally, Sound Transit had offered the couple $500,000 for the piece, far less than it had offered for another similar piece. After the state Supreme Court decision, it lowered its offer to $240,000.

When the Millers asked the court to reconsider the case, the court denied their request.

Their only hope now is a jury compensation trial in May, which will decide on a fair price for the property. The Millers hope that the price will be high enough for them to be able to pay their legal bills and have some left over.

"This has consumed our lives," Barbara Miller said. "We both have health problems now. We haven't slept well for three years. We had no idea this could happen to us. But now we know it can happen to anyone. They're getting away with it because our Supreme Court is allowing it to happen."

The Millers aren't the only ones dismayed by this turn of events. The outcry has made its way to the top of the state's political ladder. Gov. Chris Gregoire and State Attorney General Rob McKenna have reacted by crafting joint-request legislation.

Under it, a local government considering the acquisition of properties by eminent domain will need to:

• Send a certified letter (costing $4.64) to the property owner of record on the county tax rolls notifying him of the open public meeting called to decide the issue.
  
• Publish a short newspaper legal notice.

In a press release, McKenna said it's not asking too much to require that a certified letter be sent.

"We shouldn't expect people to click through hundreds of Web pages every week to make sure their property isn't being considered for condemnation," he said.

House Majority Leader Lynn Kessler, D-Hoquiam, who will be one of the bill's sponsors, said "it's frightening" to think that what happened to the Millers could happen to anyone.

"Every story I've heard about similar situations is a nightmare," she said.

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Capital Press Agriculture Weekly, Salem OR: http://www.capitalpress.com

House OKs Proposal For Vote On Eminent Domain Limits: WLOX-TV13, Biloxi MS, 1/12/07

The Mississippi House on Friday approved a proposed constitutional amendment to restrict the government's ability to take private property for economic development.

Under the proposal, which passed 116-2, the issue would be placed before Mississippi voters at the Nov. 6 election. The proposal now goes to the Senate.

The House on Jan. 3 approved a bill that says governments could not take private land for retail, industrial or residential developments, to increase the local tax base or to give the land to any public-private partnership. Private land could still be taken for public purposes such as building roads or levees.

Eminent domain became a prominent issue in several states after the U.S. Supreme Court ruled in June 2005 that New London, Conn., could take a group of older, waterfront homes and give the land to a private developer for offices, a hotel and convention center. The city was hoping for an economic boost from the new development.

The proposals are House Concurrent Resolution 18 and House Bill 300.

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WLOX-TV13, Biloxi MS: http://www.wlox.com

Lawmakers create plan serving both rural and ubran interests: Mason City IA Globe Gazette, 1/13/07

By Dan Gearino
In Iowa politics, the greatest conflict isn’t necessarily between Democrats and Republicans, it’s between urban and rural. At least that’s what a coalition of legislators and city leaders believe — and they’re sick of it.

The group is putting together a five-point plan aimed at serving the mutual interests of urban and rural economic development.

“As rural Iowa grows, all of Iowa benefits, and as urban Iowa grows, all of Iowa benefits. We need to put programs together than can benefit these communities simultaneously,” said Sen. Bill Dotzler, D-Waterloo, one of the lead sponsors of the plan.

A preliminary draft of the plan includes the following elements:

• A tripling of the tax credit for historic preservation and cultural districts.
  
• A sales tax exemption for art sold in designated cultural districts.
  
• A new program for job training in areas with high unemployment or a shortage of skilled workers.
  
• A doubling of the funding for the Main Street program, which helps communities revitalize old downtowns.

And then there’s the controversial part: The plan would allow local governments to seize private property for the purpose of connecting existing recreational trails. To pay for the land acquisition, the state would sell bonds and make a $2.9 million payment on the bonds each year.

The total cost for all of this would be in the neighborhood of $20 million per year. A precise cost estimate is not yet available.

Urban vs. rural
The idea of urban-rural cooperation gets a lot of talk, but has little to show for it. Rural legislators complain that the state’s largest economic development program, the Iowa Values Fund, gives a grossly disproportionate share of benefits to urban areas. At the same time, urban legislators complain that the state’s highway funding system devotes way too much money to rural roads and not enough to the areas with the most traffic.

This tension between urban and rural plays out in just about every major issue before the legislature.

In an attempt to get beyond this conflict, a group gathered last September in Marshalltown for a day of seminars and policy discussions. This was the meeting that led to the set of proposals.

“It’s an acknowledgement that small towns and big-city neighborhoods have more in common than they have dissimilar,” said Sen. Jack Hatch, D-Des Moines, one of the organizers of the event.

Among the participants were the mayors of Carlisle, Marshalltown, Mason City, Newton and Waterloo; city council members or staff members from Davenport, Des Moines and Marion; and state legislators.

Mason City Mayor Roger Bang said he thinks there are two Iowas in terms of economic growth — one that includes rapidly growing urban and suburban areas, and the “other Iowa” that includes the small- and medium-size cities and rural areas. He said the Marshalltown conference was worthwhile because it sought to bring down those divisions.

“Mason City is part of the other Iowa,” he said. “Our main challenge is attempting to grow the population and grow employment, which hopefully grows income for people in our areas. Anything we can do to assist that growth, we should be doing.”

He said the work force training portion of the plan would help his city meet those goals.

Bang also is a big supporter of expanding historic tax credits.

Eminent domain revisited
Most parts of new plan will likely have wide support. The big exception is the proposed changes to eminent domain.

Former Gov. Tom Vilsack signed a bill in his first term that bans local governments from seizing land for recreational trails. And last year, the legislature overwhelmingly approved wide-ranging restrictions on eminent domain, a measure that became law through an override of a Vilsack veto. Both measures had strong support from the Iowa Farm Bureau.

Considering this recent history, the trails proposal faces an uphill fight, but the people behind the plan say the fight is worthwhile.

Marshalltown Mayor Gene Beach points to two bike trails in his region, one that goes through the center of town and one in a rural area just outside the city. The trails are just a few miles away from connecting with each other, but the land in-between is owned by a farmer who refuses to sell.

“One of the greatest things we can do is provide people with opportunities to walk and to bike,” Beach said.

He thinks recreational trails are an amenity that can help attract new residents and tourists, but the trails need to be long and they need to go somewhere.

Any attempt to change eminent domain rules will face stiff opposition from the Farm Bureau. Christina Gruenhagen, government relations counsel for the group, said she can’t comment on the new proposal because she hasn’t seen it.

Speaking in general about eminent domain for trails, she said the Farm Bureau “would certainly oppose any attempt to erode private property rights.”

Bang said the proposed change in eminent domain is one part of the plan he can’t support. He notes that Mason City has been able to construct a large trail system over the last few years without seizing farm land.

“We continue to develop (trails) even more fully,” he said.

Dotzler strongly supports the trails proposal, but won’t let it derail the whole plan if he senses strong opposition.

“This bill is not going to hang or die on one single provision,” he said.

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Mason City IA Globe Gazette: http://www.globegazette.com

Respect new eminent domain law: Miami FL Herald, 1/13/07

The [Hollywood FL] City Commission is again considering using eminent domain, this time to clear a blighted city block for an affordable-housing project. If the commission votes to use eminent domain in this case, it would challenge a new state law restricting local governments' use of eminent domain. The commission should seek more legal research before taking a deciding vote.

Public purposes
Eminent domain used to be Hollywood's preferred tool for obtaining properties to spur redevelopment. Before the law changed, cities could force property sales to clear land for private developers. But last spring the Legislature restricted cities' use of eminent domain to public purposes, such as schools or roads. Last November, state voters bolstered that law with a constitutional amendment.

Also, in June of last year, Hollywood lost an eminent-domain case when a circuit court judge upheld a property owner who challenged the forced sale of his business. The judge ruled that the property wasn't needed as part of a proposed $100 million condominium-retail complex.

Proponents of the new plan argue that this would be a ''friendly'' takeover, which the new law allows when the property owner doesn't object and is properly compensated. And, they say, the land wouldn't be transferred to a private developer but given to owners who buy the planned homes. Some legal experts warn that even though the city's intent is worthy - replacing blight with reasonably priced homes - it isn't a public use. The law prohibits the transfer of condemned property to any private party, which presumably includes individual homeowners.

Two more lots
The lots on the block were involved in a property scam. When the scam collapsed, the 14 properties had numerous owners, often with conflicting claims. For four years the city has been painstakingly tracking down owners to buy them out, and it has successfully used eminent domain to take nine properties. There are just two more lots to obtain, which is why the city is considering eminent domain again. But the new rules complicate this plan. The commission should do its homework before taking on the new law so that the city doesn't end up in another costly lawsuit.

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Miami FL Herald: http://www.miami.com/mld/miamiherald

PRA may sue council: Pawtucket RI Times, 1/13/07

By Douglas Hadden
In 2006, it was the School Committee suing the City Council for more education funding, then the council suing school officials over the proposed deal to purchase the downtown former Registry building.

Now welcome to 2007, and again when it comes to lawyers, don't leave home without yours, if you're a city official.

In the newest move, it appears the Pawtucket Redevelopment Agency appears determined to snatch yet one more piece of city-on-city litigation - though this time from the jaws of a budding compromise on the controversial depot issue.

"I think that's right," Councilor Robert Carr, who is potentially being sued along with the rest of the council for an eminent domain vote on the depot property last month, said Friday of that characterization.

But "I'll be surprised if it ever gets to court," said Carr, himself an attorney. "I don't get it myself - even if it went to court, it's meritless. I think it's ludicrous. What would a court do? It would tell (the council) to take another vote. They can do that anyway."

PRA, in a Jan. 8 letter that began arriving in councilors' mailboxes Friday, issued notice to the City Council that it intends to take the council to court over eminent domain-related votes last month. The letter, from PRA attorney R. Kevin Horan, was addressed to Mary Bray, the new council president, and also singles out former Councilor Albert Vitali Jr.

The notice comes even as planning officials in Central Falls and Pawtucket, as well as depot developer SMPO Properties-Warwick RICS LLC and CVS, appear on the verge of striking a compromise that would save most of the depot complex while allowing a 12,000 square foot drug store to be built on the Broad Street site.

The legal action heads-up follows a unanimous vote by the PRA last month to pursue litigation on the issue.

The matter turns on the council's rejection of a PRA request for authority to seize several properties by eminent domain, including the depot property along Main Street, half of which sits in neighboring Central Falls.

At that council meeting, then-Councilor Albert Vitali Jr., whose mother had retained some financial interest in the property after it was sold to Memphis-developer Oscar "Ike" Seelbinder and his partners, voted against a parliamentary move by councilor proponents of eminent domain to table the issue, avoid defeat and perhaps fight another day when a new council took office in January.

But the tabling move failed on a tie vote. On the actual eminent domain vote, Vitali recused himself to avoid a conflict of interest but the measure still failed because it fell short of the five votes needed to enact a city ordinance, as the eminent domain action entailed.

Vitali said Friday he voted to table because PRA had, despite protests for months from councilors on both sides of the depot issue, lumped all potential properties for seizure together, in one vote. Vitali noted that early last year, PRA had refused to drop a Carson Street property from the list even after its Spanish-speaking owner, with translation help from a friend, told the council she had put $10,000 into repairs and was well along in fixing the building.

In December, "There were three other property owners (besides the depot) that deserved their time in front of the council and I didn't think it was fair to them," Vitali said. That night the council rejected the PRA's all-lumped-in eminent domain list.

"I don't know if he should have voted or not," Bray said Friday of Vitali, and questioned why the whole council might face legal action. "The vote was before us. So I don't know there was anyone on the council who had the right to say who could vote and who couldn't."

Bray said what was preferable in the depot matter was that all sides reach an acceptable compromise. "Ultimately, if we can all come to an agreeement that would be the best possible scenario for everyone," said Bray, who wants to see the depot saved because it is "such a vital part of Pawtucket."

As for what her next move might be, "I think we've been put on notice, we wait to hear what's next," Bray said. Noting that the city would have to defend council members in court for any official acts they took, she added, "All it is, is business for attorneys."

Councilor Donald Grebien, who was council president at the time of the vote and voted against eminent domain, said Friday evening he was aware of the letter but hadn't been home yet to check his mailbox.

But he also found the threatened litigation misguided. "The Redevelopment Agency is going to waste the taxpayers' money to sue the council. It makes no sense," he said.
"In my opinion," said Carr, who also voted against the property seizure authorization, "it's baseless. The courts don't have jurisdiction over ethics issues in the first place, and the state Ethics Commission process does not, by state statute, have the ability "to void a vote," he said.

The PRA's attorney, R. Kevin Horan, said the action would be in Superior Court if it went forward. He said unlike actions for monetary damages, such as when PRA late last year gave a lawsuit notice to the School Department for the lease it broke in the PRA-owned Visitors Center building when it moved out to occupy the former Registry building, there was no legal requirement "that I know of" to give the council advance notice before filing suit in Superior Court. "But I recommended they do it," he said.

On the depot front, where a 30-day demolition moratorium ends Monday, Cassidy said after meetings this week that planners for CVS are expected to bring back a revised site plan Tuesday (after the Rev. Dr. Martin Luther King Jr. holiday).

Changes all sides appear to tentatively agree on is that Broad Street would be narrowed, and demolition would at most be limited to the former baggage area where a storefront church was housed for years, and some of what has been torn down would go back up.

The main building, which Warwick RICS was going to peal back 18 feet to provide parking called for in its lease with CVS, would remain untouched.

Seelbinder, who did not attend the meetings but had representatives there, said it was his understanding Cassidy agreed to the partial demolition but Cassidy said nothing has been finalized yet from the city's standpoint, which would require signoff from Mayor James E. Doyle.

"One must ask the real dumb question," Seelbinder observed, "if we're saving the train station to put a T stop there, what kind of sense does it make to make Broad Street smaller. But we're just trying to take care of our client."

Seelbinder noted SMPO got into an eminent domain tiff before - with the federal government, when his company was building the U.S. Army Southern Command headquarters in Miami. He said SMPO offered to settle for $7 million but the government refused, and after the matter was adjudicated in court a judge ultimately awarded SMPO $12.7 million for the land the government seized.

On another depot-related front, Seelbinder said issues are proceeding smoothly with Amtrak over its concerns of how the project could potentially affect its adjacent railroad tracks and service, and he expected that process could wrap up as soon as next week.

"We just want to get down the road building a new CVS because that area needs change dramatically, and that's what the people there want and need," he said.

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Pawtucket RI Times: http://www.zwire.com

Arrested Development: Los Angeles CA Downtown News, 1/12/07

LAPD Headquarters Moves Forward, Over Cost and Under Fire, as Eminent Domain Proceedings Loom
By Evan George
The groundbreaking ceremony for the new Los Angeles Police Department headquarters is scheduled for Monday, Jan. 22. But a still uncertain cost - $396 million and rising, according to city officials - along with a string of controversies and construction delays continue to plague the project that City Council approved in 2004.

Work on the building site bounded by First, Second, Spring and Main streets began last month. Yet negotiations to acquire three adjacent properties needed for the project's parking and maintenance facilities have stalled and eminent domain proceedings could begin as soon as this month, according to the City Attorney's office.

Victoria Chou, who owns two of the properties, said the city's $10 million offer is not enough to buy even a far smaller property in Downtown, let alone cover the cost of moving her 23-year-old garment importing business.

"I'll fight this for sure. I've tried to be a good citizen, but something about this is just wrong," Chou said.

Richard Rossen, whose family owns the neighboring property, where the M.J. Higgins gallery sits, said the city's offer to him is significantly lower than the appraised value.

"There's so much we were planning to do with this property when the time was right and when it finally was right, the city says they are going to do this," he said.

Both Rossen and Chou said they have heard nothing from the city since October.

While using eminent domain to acquire the land could speed up that part of the development, it also risks reigniting community opposition, not just from Chou and Rossen, but among other Downtown residents, artists and business owners who fear the mammoth project will overwhelm the neighborhood.

City officials say the Civic Center site is the best solution for a much-needed replacement of the aging Parker Center. Still, the project has suffered a series of slings and arrows since it was announced and quickly approved by city leaders.

The groundbreaking, originally scheduled for last summer, was pushed back after only one company, Tutor-Saliba, bid on the project. The bid of $243 million for construction of the headquarters building alone was more than $40 million higher than the city's original estimate. Since then the project's budget, including design and management, has jumped twice, from an initial $303 million to $396 million, which City Council approved last September.

Concerns about the developer deepened last month when Sylmar-based Tutor-Saliba lost an 11-year court battle with the Metropolitan Transportation Authority and was ordered to pay $446,600 for over billing the agency for work on a subway line.

Also last month, Mayor Antonio Villaraigosa appointed an independent advisory panel to oversee work on the 10-story, 500,000-square-foot headquarters - a significant move since the project already requires an oversight panel within the Bureau of Engineering.

"I welcome any help that ensures that we complete the construction on time," said City Engineer Gary Lee Moore, who oversees the project. "I think it's just such an important building to the city and... this additional oversight will just help us to continue to stay focused to deliver the building."

Although construction is underway, the issue will return to City Council in the coming months for additional funding approval, according to Moore. Another budget adjustment could push the price tag as high as $420 million as a result of the land acquisition process, officials have said.

Last week Ron Tutor, owner of Tutor-Saliba, angrily told Los Angeles Downtown News that if the actual construction costs rise it's not his company's fault.

"We will finish on schedule and under budget," he said. "We just started. We're a construction company - get the city to keep you informed."

Park Dispute
The crater smack-dab in the middle of the Civic Center was once envisioned as a relatively easy, cost-effective option for the new police headquarters in Downtown Los Angeles. But in the last two years, the site has presented a number of challenges for city officials who are eager to build a replacement for the 52-year-old Parker Center.

An environmental impact report approved by the City Council in May 2006 identified a "significant and unavoidable" traffic impact as well as an air quality impact that violates standards set by the South Coast Air Quality Management District, according to a Planning Department report.

The city approved the project despite the environmental impact, the report shows.

For years, officials had talked of moving the LAPD out of Parker Center because of damage sustained in the 1994 Northridge earthquake. In 2004 discussion of a new facility grew intense.

The Transamerica building in South Park and a site at First and Alameda streets in Little Tokyo were among the locations considered. But after public outcry in Little Tokyo and a lack of support for the South Park building, the City Council moved quickly to place the development on the block south of City Hall - the site of the former Caltrans building, and for more than a decade the offices of Downtown News.

That property was put on the table only two weeks before the vote, but local leaders expressed support for keeping the LAPD headquarters close to the seats of city and county government.

The unanimous approval by City Council, after lobbying by former Chief Legislative Analyst Ron Deaton and a motion by Downtown Councilwoman Jan Perry, drew criticism from community members who had hoped for a block-long park that would connect the Civic Center with the Historic Core. But the community plan approved by the City Council in 1997 that laid plans for the civic park was non-binding and never implemented.

The building being designed by DMJM Design will include office space for nearly 2,400 police personnel, an auditorium, 600 square feet of retail space and a roughly one-acre landscaped lawn. Its triangular shape will help preserve views of other buildings around the Civic Center, including City Hall and the Los Angeles Times and Caltrans buildings, said City Planner Ron Maben.

Excavation of the main site began last month after the Los Angeles Planning Department board of commissioners granted approval on Dec. 14, according to Maben.

Land in Question
The headquarters project includes a second major component, an 800-vehicle maintenance facility for the Motor Transportation Division that is set to go up one block away from the main development, said Project Manager Sam Tanaka.

In between the two building sites are the former St. Vibiana's cathedral and an open lot on which developer Tom Gilmore plans to build a condominium high-rise

Building the parking component would require razing an 1896 iron frame and brick building at 244 S. Main St. (owned by Rossen) that holds the M.J. Higgins gallery - one of the initiators of the area known as Gallery Row - and Chou's six-story warehouse next door.

Although the overall project completion is set for December 2009, the parking component is behind schedule due to stalled negotiations with Rossen and Chou, whose properties are the last of 11 parcels needed for the garages, according to Tanaka.

Negotiations over the parcels have failed to result in a deal, according to officials in the City Attorney's office.

Chou said the city made one offer of $10 million for the two parcels totalling 30,000 square feet (including the 61,000-square-foot building) she has owned for 15 years, but declined to negotiate further.

"I am curious why Tom [Gilmore] can stay and I cannot," Chou said. "His property is vacant - he just has dreams - but I run a business here."

Rossen, whose family has owned its property for more than 60 years, accused city officials of "low-balling" them. "Their offers were just not realistic compared to the appraisals that we got. They were significantly different," Rossen said.

Those parcels could be condemned by the end of the month, according to the City Attorney's office. If approved by City Council, the City Attorney could move to evict current tenants by March.

"It's heartbreaking. It is just once again not addressing community. We negate any design that develops community," said Martha Higgins, owner of the M.J. Higgins gallery.

She has not decided where or how to relocate the gallery if evicted, Higgins said.

In the meantime, the bid process for the maintenance and parking facility is on hold until the land acquisition process is completed, according to the Bureau of Engineering.

It remains unclear how delays on the proposed parking facility might affect the headquarters' December 2009 completion date, but city officials have vowed to keep construction on track. According to Tanaka, the design and bidding stages will begin during the eminent domain proceedings to stay on track.

Gerry Miller, the city's Chief Legislative Analyst who succeeded Deaton, said city officials will keep a close watch on the project.

"Any time we go through acquisition for a public process it's always difficult and there's always a lot of serious debate about whether to proceed and how to proceed and why and the impact on the communities," said.

He added, "Everybody will be paying very close attention to make sure this thing stays on schedule and on budget."

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Los Angeles CA Downtown News: http://www.ladowntownnews.com

Eminent Domain in Rio Rancho: Rio Rancho NM Observer, 1/12/07

By Tom Treweek
Currently, there is no topic in Rio Rancho so controversial as eminent domain. There are no issues that immediately raise people's tempers such as blighting. And there are few topics that are so misunderstood.

In this column, I will not attempt to convince anyone to change their view or present any argument as more valid than another. I simply wish to clarify the issue, to spell out the facts, so that when we argue, we are all working from the "same sheet of music" (wait, that's my next topic).

We are not talking about condemning property to build a road, a school, a fire station or anything like that. The use of eminent domain that has infuriated the public is that which refers to blighting vacant land in order to build a master-planned community. That is, the city's taking of privately owned land (often for the reason of antiquated platting), giving the owner fair market value (which brings up another argument), and turning it over to a developer to build a housing development.

The first misconception I want to clarify is the idea that a blighted area can only refer to a slum. Many people have spoken before the city council arguing that the land considered for blighting is a beautiful area. I would agree with them that Rio Rancho has many picturesque undeveloped areas, but that is not the issue at hand.

According to state statute, "blighted area" can refer to a slum, but it can also mean an area with a "predominance of defective or inadequate street layout (or) faulty lot layout in relation to size," which are the reasons the city has so far turned to eminent domain.

When AMREP began designing Rio Rancho's communities, long before the city incorporated, the lots were placed almost in a haphazard fashion. This is not a concern for most of the landowners, but there are some whose property, through no fault of their own, is located entirely within an arroyo. (Remember, many AMREP officials went to jail because of their actions in selling Rio Rancho.)

Those whose land is in an arroyo will never be able to build their dream house or sell the land for a profit.

The other side of that argument is that by blighting vacant land, the city is denying others the ability to do just that, build their dream house or make a profit. There are people who bought their property in the first days of the community and plan to build their retirement home or a house for their children. They could also be holding onto it to make a profit. Regardless, those people are arguing that they have the right to keep their property for any reason.

The city's argument is that in encouraging a master-planned community through the use of eminent domain, they can require a higher standard in housing, some uniformity in construction, and installation of adequate infrastructure. By doing that, not only does the city feel it is creating a better community for its residents, the quality of the neighborhood would elevate the values of properties surrounding it.

Development Services Director Rob Anderson also wanted me to convey the difficulty for individual landowners to install the necessary infrastructure: power lines, water and sewage. In many of the city's undeveloped areas, there are no utilities waiting to be tapped into. A landowner who wanted these necessities would have to pay for them to be constructed from then nearest junction point to his or her property. That is a small order for a developer creating an entire community, but it is difficult for most individuals.

Technically, if a person were to install the utility lines alone, he or she could charge the future neighbors to connect to those lines, but if there are no neighbors ready to begin building, that person could wait a long time.

I do know of one home that is entirely "off the grid," but I don't know how much it cost to install the solar panels for electricity, build a well, and install a septic system. I imagine it wasn't cheap.

Wells and septic tanks may seem like a good idea to most people - it would be much cheaper than installing a long water line from a mile away - but the state government is constantly dangling the threat of banning private wells, leaving no way to get water without connecting to the city's system.

Although I cannot fault the city's logic in this matter, I also cannot discount the landowner's cries, their basic message, that ownership is ownership and no one should be able to violate that right.

Some of the issues surrounding eminent domain seem to have been addressed by the city in its pending policy, especially the concerns over fair market value. If approved, the policy would ensure that three separate appraisers give their approval to the property value - two for the initial estimates and one to oversee the process.

Actually, there are a lot of new ideas in that policy, including alternatives to the simple purchase of the land. The policy encourages the developer to explore and offer some alternatives to the landowner, including equity sharing or exchanging of lots.

The city has already banned the use of eminent domain for economic development on developed property - it can still be blighted if it is a safety hazard or for other reasons. The proposed policy also increases the amount of notice required for those in the proposed redevelopment area.

The proposed policy - which city staff maintains goes further than other states in protecting citizens' rights without, of course, banning the practice altogether - is available on the city's Web site in the minutes of the Jan. 10 meeting.

And because that item was postponed, the public will have one more chance to give input on it. It will be included on the agenda for the Jan. 24 meeting. So far, only about a dozen people have addressed the governing body on this issue, even though the city has already held one work session and one public hearing.

You can be assured that the city will take suggestions seriously, as some have already been worked into that policy. But that cannot happen if residents and landowners don't voice their ideas. If you don't show up and speak your mind, I don't want to hear your complaints if you ever get a notice that your land is being blighted.

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Rio Rancho NM Observer: http://www.observer-online.com

Eminent domain ahead for school plan? Exeter NH News-Letter, 1/11/07

By Peg Warner
[Newmarket NH] school officials found themselves on the defensive Wednesday night over the possibility that the school district would use eminent domain to take private property for the latest school building proposal.

Voters in March will decide on two articles pertaining to the building plan - a bond for nearly $1.28 million for fees related to the design and another for using existing funds, not bond money, to acquire two land parcels.

One of the parcels, 13 acres adjacent to Landroche Field and owned by Michael Weit and Debra Hale, is a cornerstone of the proposal as the would-be site of a new high school. The couple has so far rejected the district's overtures to buy the land, prompting the School Board to consider eminent domain as an option. The board could make the decision at its meeting next week.

The second parcel consists of 14 acres across Route 152 from the existing junior/senior high school. The owners, the Carpenter family, have been discussing a possible sale with school officials. That land would be used for athletic fields.

At Wednesday's hearing, Hale reinforced the couple's stance and countered a statement by one official that the couple had shown interest in selling the land several years ago, saying the land was among the last undeveloped parcels in the area and they wanted to keep it that way for their own recreational use.

"It has always been our intent to keep it in our family," she said.

Hale was responding to Superintendent Kathleen Murphy's contention during a Budget Committee hearing last weekend that the Weits had been willing to sell the land some years ago but that the Budget Committee had rejected the offer. After Wednesday's hearing, Hale explained that the offer had come from the previous owner, her mother-in-law.

"The deal fell through, so we quit looking and didn't move," she said.

Friends and neighbors of the Weits attended the hearing to support them. Lynda Criss, questioned the Facilities Committee's contention, in its written recommendation of the current proposal, that "there are no clear alternative sites in Newmarket suitable for construction."

School Board member Forrest Ransdell said the district looked at several other parcels that were rejected for various reasons, including insufficient size, too much wetland, the need for too much fill, and contamination by the gasoline additive MtBE.

If the current proposal fails, he said, "We would ... be back to that square one."

Criss likened the district's current approach to last year's failed plan to build a new school for grades six to 12 at the current Rockingham Country Club location.

"It seems to me and a lot of other people you're trying to railroad it through again," she said. "Nobody learned their lesson last year."

The public will have an opportunity to comment on any article on the warrant at another hearing at 7 p.m. Tuesday at the Town Hall auditorium.

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Exeter NH News-Letter: http://www.seacoastonline.com/news/exeter

Kean bill targets eminent domain abuse statewide: Middletown NJ Courier, 1/11/07

[New Jersey] Assemblyman Sean Kean, R-Monmouth, has introduced a bill that that would strictly limit when municipalities could use the power of eminent domain to seize private property.

The measure was introduced on December 14 would amend the State Constitution to prohibit the use of eminent domain for private development unless the property is demonstrated to be detrimental to the public's health, safety and welfare of the community.

“Right now, perfectly good homes are being seized and handed over to private developers who only care about lining their pockets,” he said. “Eminent domain was never intended to be used in this fashion and the Legislature must act quickly to rein in this abuse of government power.”

Kean introduced the bill in response to what he considers the abuse of eminent domain in New Jersey and in his legislative district.

“Hardworking people are having their homes taken from them simply because they happen to be located in areas coveted by developers,” he said.

Kean said the bill would ensure that citizens' homes cannot be seized simply because development at that location would bring in more tax revenue. And if the legislation, ACR-225, becomes law, a ballot question will go before the voters that ask if the Constitution should be amended to allow property to be taken when the municipality proves it negatively affects the community.

“People should not have to live in fear of having their homes taken out from under them by governments that want to increase ratables,” he added.

Kean is hopeful that his colleagues in the Legislature will recognize the need to act quickly on this measure.

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Middletown NJ Courier: http://www.bayshorenews.com

Home owners lose out to eminent domain laws: Portland OR State University Daily Vanguard, 1/12/07

After battling to save a house they owned for 30 years, it still came down Thursday
By David Holley
Late Wednesday night, John and Susan Unverferth stood outside a gated fence enclosing the duplex they were forced to turn over to Portland transportation provider TriMet last February.

TriMet tore down the duplex on Southwest Jackson and Sixth Street near PSU - a two-story house built over 100 years ago and owned by the Unverferths for 32 years - on Thursday so that the organization could build a turnabout on the block south of Southwest Jackson (between Southwest Fifth and Sixth avenues) for the new MAX Green Line.

Oregon eminent domain laws allow public entities like TriMet to acquire private property for the use of public development if fair compensation is given. In this case, the Unverferths, who said they adamantly tried to keep the property, were given $425,000 from TriMet when the transportation provider seized the house.

"That valuable piece of property is going to be used as a break room for drivers," John Unverferth said, referring to the duplex. "Is that good use of taxpayer money?"

The Jackson Street block consists of four total lots: one previously owned by the Unverferths, the second by Portland State, the third by property manager Richard Matza, and the final lot by Unitus Community Credit Union.

TriMet is working on similar agreements to acquire property with Mexican cuisine restaurant Cha! Cha! Cha! and Unitus Community Credit Union. Unitus owns a parking lot behind the Unverferth house and two other houses that have already been torn down, and the Cha! Cha! Cha! on the corner of Southwest Sixth and Jackson lies in the path of the new Green Line.

Initially, the Unverferth's house was not going to be touched by the Green Line, but after changes in plans, TriMet decided to include two additional tracks on the turnabout at Southwest Jackson Street right where the Unverferth house was located.

It was what worked best for the project, according to John Baker, the TriMet real property acquisition manager. He said that even though other options were considered, developing the extra tracks, equipment rooms and a break room for operators at the Jackson block is cheapest and most efficient option for taxpayers.

"The bottom line is that it's taxpayers' money," Baker said. "We don't have a huge amount of it, so we try to maximize the way we use it."

TriMet Communications Director Mary Fetsch said TriMet uses the eminent domain laws as a last option. Baker said that TriMet tries to give a higher offer on a plot of land than the fair market price, like the Unverferth duplex, and gets two appraisals before making an offer.

TriMet narrowly avoided going to court with the Unverferths, which Baker said costs the organization around $100,000 each time. TriMet also avoided court cases with each of the other groups involved except for Unitus Credit Union. Baker said TriMet is currently preparing to go to court with Unitus, who owns a 15,557 square foot plot of land that the turnabout will occupy.

Fetsch said that TriMet expects to make an offer to Cha! Cha! Cha!, which just opened another store on Northeast Fremont, within a month and does not expect any complications in the sale. Portland State agreed to take $590,000 for a 4,088 square foot parking lot needed for the Green Line.

The Unverferths were unhappy with the initial offer that TriMet made on their two-story house over a year ago. The offer, $355,000, was $100,000 less than a private appraiser, Jim Lyons, said their house was worth, according to John Unverferth.

After hiring lawyers and spending months looking for ways to keep the house, Unverferth said, the couple and TriMet held a mediation where a $425,000 total was settled upon.

Baker said that TriMet appraised the lots by what is on the land, how many square feet the lot is on, and by how much usage they can get from the lot (such as how high of a building they can build).

Baker said that the $425,000 that TriMet paid for the 1,500 square foot Unverferth lot is of fair market value and equal, if not higher, than TriMet paid for the other Jackson block lots.

Unverferth, who was making about $1,500 a month from of the duplex through rentals, said that the fact that they had invested so much time, care and money into the house, after remodeling it six years ago, makes the situation worse. He said that the issue becomes more than just getting a fair market value.

"They try to force the house into a objective box, when it's such a subjective thing," he said.

TriMet will continue utility relocation in preparation for the Green Line, which will run from Clackamas County though the downtown bus mall to Portland State, until October. Rail construction for the new line that is expected to cost $550 million will begin in June of this year.

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Portland OR State University Daily Vanguard: http://www.dailyvanguard.com

Don't tinker with eminent domain bill, some say: Casper WY Star-Tribune, 1/11/07

By Joan Barron
Don't tinker with the eminent domain bill if you want it to pass the [Wyoming] Legislature this year, key lawmakers say.

Gov. Dave Freudenthal also urged caution on the controversial issue during his State of the State message to a joint House-Senate session Wednesday.

"I would urge a degree of caution with regard to the extent with which you wish to modify that," Freudenthal said, referring House Bill 124.

The House Agriculture, Public Lands and Water Committee has scheduled a public hearing on the bill for 7:30 a.m. today.

Rep. Doug Samuelson, R-Cheyenne, the committee chairman, said there's a slew of amendments to the bill.

Freudenthal, meanwhile, said the bill's requirement for early notice to landowners and good-faith negotiations is appropriate, but he would be cautious about extending changes in dealing with compensation.

The bill as introduced allows jury trials, among other things.

"I think we have to be careful that eminent domain does not become a vehicle for selected individuals to dip into the revenue stream of the energy industry versus its proper function, which is to make sure people obtain fair market value for their property rights," he added.

Freudenthal said he has some acquaintance with the issue because the place he grew up in Thermopolis is crossed by a number of pipelines and power lines.

"There clearly is a visual impact," he said. "The question is what do you compensate for that."

He suggested sticking close to the notion of fair market value.

Later in a news conference, Freudenthal said the original bill was supposed to address a U.S. Supreme Court ruling that governments can take property for economic development purposes.

"It's not clear to me the bill even addresses that," the governor said.

Since the ruling was handed down, 34 states have limited the use of condemnation.

Sen. Gerald Geis, R-Worland, chairman of the Senate Agriculture, Public Lands and Water Resources Committee, said he believes the bill would allow landowners to gain a bit if it remains close to the form it is in now but without the allowance for jury trials.

If the coalition that worked on it falls apart, however, the bill probably will wind up in another interim committee study, Geis added.

The bill was crafted by representatives of the energy and agriculture industries, but some farmers, ranchers and other landowners say it doesn't do enough to protect their rights.

Rep. Del McOmie, R-Lander, said he is concerned about the bill and will listen carefully to the debate.

"I was told that the compromise bill was a reasonable compromise, but now you have other people coming back into the picture from both sides," he said. "And as far as I'm concerned, if the bill gets tinkered too much, I don't think I can support it."

"You can change it so that one person can stop economic development in Wyoming," McOmie said.

Samuelson said he is skeptical of the Wyoming Department of Transportation's estimate that it will cost $37.2 million a year to meet the requirements of the bill.

WYDOT opposes the bill and says the money will be needed for early entry fees on landowners' property; a delay in bid lettings because of the requirement to wait 60 days before filing condemnation after an offer was made; and the requirement to use other easements as comparable sales to find fair market value.

Samuelson and he and Geis tried to find some common ground early on because of the welter of opposing viewpoints.

Agriculture people, other landowners and industry worked hard to find some common ground, he said, but now new disagreements have arisen.

Some people want to allow jury trials, which Samuelson said would be a mistake. Others want the standards for compensation negotiations spelled out in state law.

Samuelson said he hopes to air and rebut some "red herrings," such as claims the bill can stop pipeline construction.

Industry officials, he said, contend they exercise eminent domain only as a last resort.

"If they are doing everything in good faith, they have nothing to worry about," Samuelson said.

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Casper WY Star-Tribune: http://www.casperstartribune.net

Yucaipa Council authorizes eminent domain : Yucaipa/Calimesa CA News Mirror, 1/11/07

By Michael Quigley
The Yucaipa City Council has authorized staff to proceed with eminent domain actions with respect to the properties around the I-10 interchange at Oak Glen Road and Live Oak Canyon Road.

During their meeting on Monday, all four council members present voted to authorize the actions. Council member Denise Hoyt was absent.

Before the reconstruction of the interchange can proceed, the city must demonstrate, among other things, that the necessary rights of way for this project have been secured.

Several different property owners, including the Palmer and Robinson families, were mailed offers of “just compensation” last October for the purchase or use of their properties. These offers were based on the recommendation of an independent appraiser.

Two of the property owners responded, each indicating that the city's offer fell well short of “just compensation.” In a letter to the city, Ed Palmer, president of the Palmer Corporation, stated the city's offer represented only a small fraction of the actual value of the property under consideration.

Another property owner, Renee Vicary, who owns Angel's Roadhouse, indicated that the city's offer undervalued her relevant property by 50 percent. Vicary also asked for other considerations in exchange for her consent to the city's proposal.

It appears that the city is willing to work with Vicary with respect to some of her requests, but the price of the right of way has not changed.

The Robinsons have not as yet responded in any formal or specific terms to the city's offer of compensation. Another property owner, Boah, Inc., has not responded either.

The action by the city council on Monday night sets into motion the process of forcing these property owners to accept the current offers. This does not mean, however, that negotiations with respect to the current offers are over.

In exercising eminent domain, the city council had to determine that the interests of and benefits to the public outweighed the interests of the property owners. The four members of the council present determined that this is the case with respect to the expansion of the interchange.

“We need this interchange,” said Mayor Dick Riddell. “I've been saying for some time that it should be the city's number one priority.”

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Yucaipa/Calimesa CA News Mirror: http://www.newsmirror.net

More Council Input in Use of Eminent Domain Sought: Norwalk CT Citizen-News, 1/11/07

By Lauren Garrison
The Norwalk Redevelopment Agency is seeking to modify the Wall Street Redevelopment Plan to provide the Common Council with increased input into the use of the power of eminent domain, according to a press release issued Jan. 4.

If the council approves the request, the NRA will be required to have any acquisitions of private property under eminent domain first approved by the council. This would effectively reverse the council's previous approval in 2004 of "the immediate use by the Agency of Eminent Domain to implement [the Wall Street plan]" and "void the potentially slated to be acquired list contained within the plan and all timelines associated with such takings," according to the release.

The release notes that the Wall Street plan originally included a list of 28 properties potentially slated for acquisition.

At a Jan. 4 press conference, NRA Executive Director Tim Sheehan explained, "When the council previously approved the plan, they provided the agency with the immediate power of the use of eminent domain with regards to 28 properties within the plan area. That was basically having a list presented to the council that identified those properties, which is consistent with the state statute [for eminent domain], but it doesn't necessarily allow the council to fully become engaged in the understanding of the need for each individual taking as it relates to the project and the public purpose associated with the overall taking that are being proposed."

Sheehan noted that in the past year "the public dialogue surrounding the issue of eminent domain has changed dramatically since the time that the Wall Street Redevelopment Plan was approved by the Common Council."

"The public power of eminent domain is an enormous public power, and at this particular period in the evolution of redevelopment, we are very cognizant of the fact that a consensus needs to be established between the legislative body that conveys the power of eminent domain and the Redevelopment Agency, which is the implementing entity for eminent domain use," Sheehan said. "There needs to be consensus and understanding on both sides of that equation, and this is a recognition of that on the part of the agency. We look forward to working with the council as these plans come forward."

Under the NRA's suggested procedure, the list of properties slated to be acquired would be taken before the council at the same time as the land disposition agreement to give "an adequate period of time for the developer and the property owners to exhaust negotiations for friendly acquisition of property," said Sheehan. "It also gives the developer, the agency and the property owner an opportunity to understand the essential nature of each and every property that's coming forward."

Sheehan said this change would serve to align the Wall Street plan with procedures previously outlined for the West Avenue Redevelopment Plan "so both of those would be consistent." He also noted that there would be no use of eminent domain in the Reed-Putnam Redevelopment Plan.

Also at the press conference, Mayor Richard Moccia stated, "I think it's important that the public knows, the business community knows and everybody knows that eminent domain is the last resort, not the first resort, and that it will be used judiciously and controlled by a body of elected officials."

Council President Michael Coffey, D-At Large, who was unable to attend the conference, is quoted in the press release as saying that the changes would "ensure that there was no abuse of the power conveyed to the agency and should heighten the council's attention when matters conveying such power come before them. Further, it will inhibit the prospect of the Redevelopment Agency and/or developers in overreaching with regards to what property is truly essential to accomplish the objectives stated in the redevelopment plans as approved by the council."

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Norwalk CT Citizen-News: http://www.norwalkcitizen-news.com

Imminent Eminent Domain Reform? Sightline Institute, 1/11/07

By Eric de Place
It looks like the Washington legislature is going to take up eminent domain soon. According to editorial coverge in the P-I [Seattle Post-Intelligencer]:

A bill this legislative session should require general public notification (beyond Web-based meeting dockets) of condemnation decisions and direct notification of landowners by any government considering using eminent domain to acquire property. Openness is vital.

That sounds like an unalloyed good to me.

There's also movement afoot to go a step further and address "Kelo-style" eminent domain, something that dozens of states have done in the wake of a very unpopular 2005 Supreme Court decision that allowed expansive power for governments to condemn private property and turn it over to another private party.

I think it's probably a fine idea to address Kelo in Washington, though it's also a bit odd for reasons that I'll explain in a moment. For one thing, reform should remove a stalking horse issue that was used to try to sell some awful regulatory takings ballot measures in a number of states in 2006 (though, interestingly, not in Washington). But there appear to be a couple of widespread confusions about eminent domain reform.

First, we need to be clear about what was super-objectionable about Kelo: it was that the local government, New London, Connecticut, did not bother to go through the process of declaring Suzette Kelo's home "blighted." They simply took it via eminent domain and then handed it off to a developer - and the Supreme Court said that CT law allowed this. (Because it did.)

The confusion sneaks in here: in most cases, Kelo reform does not prevent government from seizing private property and handing it over to a private developer. The P-I, for one, seems unclear about this. What reform does is require a government to first declare a property (or area) blighted before it can use the power of eminent domain to seize properties that it intends to give the to a private party. The issue is, to a large extent, the declaration of blight.

[Couple of wonky side notes here. 1) To hand over seized private property to another private party, the ultimate use must have a "public benefit," a term that could probably use some legislative clarification. 2) Governments can still use eminent domain on properties that are not declared blighted when the purpose is for "public use" such as a road, or fire station, or what have you. 3) Under any eminent domain action, the government must pay fair market value for seized property; this too could be revisited, perhaps to provide certain condemned-property owners with a small premium.]

The intermediate step of declaring something blighted is still open to possible abuses - and perhaps the conditions under which blight can be declared should be tightened - but it provides an important opportunity for citizens and property owners to put the brakes on unwelcome government actions.

So what's odd about Kelo reform in Washington? Well, for starters, Kelo-style eminent domain is already prohibited by the state constitution. In fact, that's probably a big reason why the writers of Initiative 933 did not employ the dual-issue Trojan Horse strategy that was used in the five other Western states that floated takings ballot measures.

Nevertheless, it may still be worthwhile for the legislature to take up eminent domain reform. It's a government power that's certainly worrisome to a lot of people. The legislature can perhaps allay some fears, clarify some recent state court cases, reaffirm the state's constitutional position, and ensure fair treatment for property owners. And I can't imagine too many people objecting to that.

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Sightline Institute: http://www.sightline.org

Relocation Assistance: The step-child of eminent domain: New Jersey Eminent Domain Blog, 1/11/07

By Bill Ward
In Jersey City School District v. Marathon Enterprises, the Appellate Division issued a comprehensive 22-page per curiam opinion and unanimously affirmed a $2 million award made by the Office of Administrative Law (“OAL”) in favor of Marathon Enterprises, Inc., a Jersey City property owner who had been displaced by a school construction project.

Marathon used the condemned facility to manufacture hotdogs. Marathon moved its product production operation to a new facility in the Bronx, New York.

The issue in the case was the interpretation of the relocation regulations. N.J.A.C. 5:11-3.9 et seq. The specific issue resolved by the court involved whether the modifications made to the Bronx facility were improvements to the real estate, and therefore not reimbursable, as opposed to modifications to the facility in order to accommodate the relocated equipment. The Appellate Division affirmed all of Marathon’s claims based on the comprehensive opinion issued by Administrative Law Judge Leslie Z. Celentano. Marathon cross-appealed for interest on the amount awarded by the court in the relocation case. This claim was rejected by the A.L.J. and affirmed by the Appellate Division.

Relocation assistance goes hand in glove with any eminent domain case. In New Jersey, an eminent domain case proceeds under the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 et seq. Relocation assistance proceeds under the Relocation Assistance Act, N.J.S.A. 20:4-1 and the Relocation Regulations, N.J.A.C. 5:11-1 et seq. The New Jersey Superious Court is the venue of an eminent domain action. The relocation claim, if it is contested, is decided initially by the agency and may be referred to the O.A.L. for adjudication. Any decision by the O.A.L. must be submitted to the agency for final approval. Any appeal from the final agency decision proceeds in the Appellate Division of the Superior Court.

There is very little reported case law in New Jersey regarding the interpretation of the Relocation Assistance Act and the regulations. Any practitioner who deals with the regulations will agree that the regulations are very poorly written and ill defined. That is why this case is important and should be published. Prior to this decision, the only Appellate case dealing with the Relocaton Assstance Act and the regulations was Foreign Auto Preparation Service v. New Jersey Economic Development Authority, 201 N.J. Super. 428 (App. Div. 1985). The New Jersey Supreme Court also dealt with relocation issues in the case of Paterson Redevelopment Agency v. Schulman, 78 NJ 378 (1979). The Marathon case, decided 21 years after Foreign Auto Preparation Service and 27 years after Schulman, is the the most recent case on relocation assistance.

Any owner or occupant displaced by a public project is eligible for relocation assistance. Relocation assistance can involve much more than moving a resident or business from Point A to Point B. As demonstrated in the Marathon case, when a complex manufacturing operation is dislocated, the relocation claim can involve expert valuation of the machinery and equipment and engineering testimony that addresses the cost to move the equipment and, more importantly, the cost incurred to make the equipment operational at the new relocation facility.

One issue that frequently surfaces in a complex manufacturing relocation is the juxtaposition of the functional unit claim in the eminent domain action with the relocation claim in the administrative action. New Jersey recognizes the value of the functional unit (i.e.: land, building and equipment), first enunciated in the leading case of State v. Gallant, 42 N.J. 583, 590 (1964). However, a property owner cannot have it both ways. You either get compensation for value in place, or compensation for the costs of moving the equipment to a new facility. In some cases, the equipment is incapable of being moved without being destroyed. In other cases, the owner and the attorney will have to decide which is the best course of action: Either a claim for value in place in the eminent domain case, or a claim for relocation or related modification to the building in the relocation case.

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

EHT targets West A.C. strip as zone for redevelopment: The Press of Atlantic City NJ, 1/11/07

By Martin DeAngelis
Official wheels have started turning again on turning West Atlantic City into a redevelopment zone.

The [Egg Harbor] Township Committee agreed Wednesday to assign the Planning Board to formally study whether the narrow strip of the township is an area that needs to be redeveloped.

Most local officials have left little doubt that they think at least parts of West Atlantic City need major changes, and help, particularly after police in late November found the bodies of four women left dead behind the row of low-rent motels lining much of the north side of the Black Horse Pike in the area.

But state rules prescribe the steps a local government has to take to create a formal redevelopment zone, which gives officials broad powers over the area — including, ultimately, the authority under eminent domain to take private property by buying out its owners.

The first step is a study by professional planners of whether the area qualifies for such treatment under state criteria, and the governing body's action authorized the Planning Board to put its planners on that job.

When a reporter asked how early in the game the process is, one of the board's planners answered this way: “The game just started,” said Stuart Wiser of Remington Vernick & Walberg. “We just had the coin toss.”

And given the pace at which this game is usually played, Wiser told township officials that it will probably be at least August before the Planning Board can finish all the rest of the steps it needs to create a formal redevelopment plan for the area.

The study will investigate the condition of the entire West Atlantic City section — from the Atlantic City border to the Pleasantville border — Wiser said. But most township leaders have also made it clear that their major concern is the north side of the highway and the aging motels that, they argue, draw drug users and dealers, prostitutes and other small-time criminals to the blighted strip.

All four of the victims found dead in November had been arrested on prostitution-related charges, and all had high levels of drugs or alcohol in their bodies when they died, officials have said.

Mayor Sonny McCullough said last week that getting West Atlantic City into redevelopment is one of his highest priorities for this year. But the township has been down this road before, with redevelopment studies going back to at least 1998.

The state Casino Reinvestment Development Authority approved a $10 million plan in 2001 to let the township buy up and knock down the motels, but CRDA officials said later that they weren't able to get financial commitments from the casinos to do that. The same agency then approved $3 million for that mission last year, but the mayor — who announced last week that he's running for the state Senate — argues that money isn't enough to do the job.

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