Sharks circle Sonnenberg’s water bill: Sterling CO Journal Advocate, 1/30/07

Law would make it illegal for cities to condemn land to get water rights
By K C Mason
The sharks are circling at the Colorado Legislature around freshman Rep. Jerry Sonnenberg’s bill to ban government entities from taking water rights through condemnation.

The Sterling Republican said he is disappointed the Democrat leadership hasn’t scheduled House floor debate on his House Bill 1036, which is opposed by two lobbying powerhouses — the Colorado Municipal League and Denver Water.

“I wanted it to come up pretty quick while I had good support and momentum,” said Sonnenberg, who is serving his first two-year term in the Colorado Legislature. “CML represents government entities who don’t like this bill and Denver Water hates it. I think it scared them a little when it came out of committee 10-3.”

Rep. Mary Hodge, D-Brighton, one of the three “no” votes in the House Committee of Agriculture, Livestock and Natural Resources, said she has asked Legislative Legal Services for an opinion on the constitutionality of Sonnenberg’s bill.

Hodge said that, coincidentally, the morning of last week’s committee hearing, she attended a breakfast sponsored by the greenhouse industry at which state Supreme Court Justice Gregory Hobbs spoke about eminent domain and water.

“Justice Hobbs said it was unconstitutional to take away that right (of condemnation) from home rule cities,” Hodge said. “He said the highest and best use of water is for people to drink and there could come a time when a city may need to use eminent domain to get drinking water.”

That is exactly was Sonnenberg and other of the bill’s proponents fear. A constant refrain from agricultural interests, who hold the rights to about 85 percent of Colorado’s water, is that their property rights are the lowest hanging fruit on the tree as cities look for water for their growing populations.

Sonnenberg said a fiscal note on his bill states that local governments may pay more for water rights and have difficulty planning for and controlling growth if his bill becomes law.

“If that’s not a reason to protect someone’s water for crying out loud I don’t know what is,” he said. “That’s all the more reason we need this bill if indeed a city is using eminent domain to buy things cheaper than the market value.”

CML lobbyist Kevin Bommer on Monday reiterated his argument that Sonnenberg’s bill stems from a “philosophical opposition to eminent domain.”

“We continue to oppose the gratuitous attacks of local powers of eminent domain and condemnation,” said Bommer, whose group represents 264 Colorado cities and towns. “Unlike previous rulings about land use, where there has been ample talk about restrictions and limitations, this bill comes out with no such discussion.”

Denver Water lobbyist Sara Duncan distributed a letter to Denver’s representatives asking them to vote against HB 1036. It cited a state Supreme Court decision in the case of Thornton vs. Farmers Reservoir and Irrigation Company that stated condemnation for water rights is clearly constitutional.

Duncan’s letter quoted from the ruling: “By adoption of Article XX…the people of Colorado intended to, and in effect did, delegate to home rule municipalities the full power to exercise the right of eminent domain in the effectuation of any lawful, public and municipal purpose, including particularly the acquisition of water rights.”

Sonnenberg believes the ruling is an example of judicial activism because the constitutional provisions regarding eminent domain make no mention of water rights.

“In the FRICO case, the court ruled that the constitution for home rules cities says you can use eminent domain for water works, but nowhere does it mention water,” he said. “The Supreme Court looked at that and said ‘you can’t have water works without water so I guess you can condemn water.’

“That’s an expansion of the use of eminent domain and my bill is to put it back to where our forefathers intended it to be,” Sonnenberg said.”

Backers of Sonnenberg’s bill include one of the Western Slope’s most influential water groups — the Colorado River Water Conservation District. The district’s board of directors circulated its own letter at the Capitol urging lawmakers to support HB 1036.

“The power to condemn should be a power granted because of necessity, not of convenience,” the letter said, noting governments can enter into contracts with farmers for water banking, rotating crop management, and substitute water supply plans to free up water. “All are viable alternatives to condemning someone else’s historical water right.

Bommer claimed Western Slope groups support the bill because they mistakenly believe it will prevent trans-mountain diversions of water to the Front Range. He gave the example of a Gypsum case in which the town began condemnation proceeding to protect reservoir water from crossing the Continental Divide.

“The town used a condemnation proceeding to force a settlement that stopped the water from leaving the town,” he said.

Sonnenberg’s bill is on the House calendar for second-reading debate, but the actual scheduling of debate is up House Majority Leader Alice Madden, D-Boulder.

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Sterling CO Journal Advocate: http://www.journal-advocate.com

Lawmakers take up fight against eminent domain: Lynchburg VA News & Advance, 1/29/07

By Conor Reilly
Calling it an “egregious abuse of court authority,” a local lawmaker is joining others in the General Assembly this year to protect Virginia property rights he says were stripped away by a 2005 U.S. Supreme Court ruling.

But Lynchburg officials say the proposed laws are unnecessary and could eliminate an important tool used locally to target blighted properties.

Legislators are responding to the Court’s 2005 Kelo v. New London decision allowing the economically depressed Connecticut town to use eminent domain to take private homes and give the land to a private company that would generate more jobs and more tax revenue for the locality.

“What the court has done is, in effect, punted the protection of property rights to the states,” Del. Ben Cline, R-Rockbridge, said at a news conference Monday. “Well, we need to carry that ball down the field, not drop the ball, and make sure that we protect property rights for our citizens.”

Cline, along with Del. Rob Bell, R-Albemarle, has sponsored legislation that would significantly narrow Virginia localities’ ability to take property through eminent domain. The proposed laws would permit localities to use eminent domain only to build things such as roads, power lines or parks, or if a particular property was “an immediate threat to public health and safety.”

“We think that with these limitations, we will rein in eminent domain to what most Virginians think it already is,” Bell said at the news conference.

Bell’s House Bill 2954 unanimously passed a subcommittee Monday, and Cline’s version of the bill likely will be considered later this week. Last year, both the House and the Senate passed similar legislation before talks broke down toward the end of the session.

Lynchburg City Attorney Walter Erwin said Monday that the legislation is an overreaction to the Supreme Court decision.

The Kelo decision, he said, “was in a sense a state’s rights case.”

“The Supreme Court basically said that individual states can have a lot of leeway in defining what constitutes a legitimate public purpose (for eminent domain),” Erwin said.

Connecticut decided that taking property for economic development purposes was appropriate. But under Virginia law, he said, courts have consistently said that’s not appropriate.

“In Virginia, it’s certainly an emotional subject,” Erwin said. “But I’m not aware of any instance where this has ever happened in Virginia, or where it’s even being contemplated.”

Lynchburg and its housing authority are concerned that if the bills pass, cities across the state will lose the ability to use the “spot blight” program, designed to get rundown properties out of the hands of irresponsible owners and into the hands of responsible ones.

The city began using its program in 1999 and has since dealt with 60 blighted properties in and around downtown Lynchburg. The city had to resort to eminent domain in seven of those cases.

Spot blight, Erwin said, raised the assessed values of those 60 properties by $1 million.

“The city would be very concerned about bills that will take away the spot blight powers, because I don’t think there are any instances where local governments have abused these spot blight powers,” he said.

Cline said that in some cases, he was concerned with the way Lynchburg’s spot blight program has been used.

“I think that some of the properties (taken under spot blight) may be less related to health and safety and more related to tax bases and higher revenues,” he said.

Erwin said eminent domain is important because it can help preserve the historic character of the city.

Localities can already take and demolish homes when safety is a factor. But spot blight allows the city to intervene before the home must be razed.

Losing the threat of eminent domain could mean losing the last available method localities have to compel a property owner to take care of their property.

“Our goal isn’t to take properties,” he said. “Our goal is to get the owner’s attention.”

Erwin said many Lynchburg residents want the city to be able to control blight. A dilapidated property pushes down property values and depresses entire neighborhoods.

“Why should (property owners’) rights be so much more protected at the expense of everybody else in the neighborhood?” Erwin said. “Property ownership is a two-way street.”

But for Cline, the Kelo decision eroded and weakened property rights and misinterpreted protections guaranteed in the Constitution. The Constitution, he said, dictates pretty clearly how the power of eminent domain should be used.

“With respect to eminent domain, it was important enough for our Founding Fathers to include in our Constitution and we should respect that,” Cline said.

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Lynchburg VA News & Advance: http://www.newsadvance.com

LIRR's property plans: Long Island NY Newsday, 1/28/07

Railroad wants to seize portions of up to 80 properties along path of planned third track project
By William Murphy
The Long Island Rail Road plans to seize portions of up to 80 properties by eminent domain for its Third Track Project along the Main Line Corridor from Hicksville to New Hyde Park, the railroad confirmed last night.

Susan McGowan, a spokeswoman for the railroad, said those areas would be acquired for right-of-way to allow siting of a third track, which is meant to ease congestion on the busy commuter rail line. Only "several feet" of property or easements is contemplated - not seizure of entire lots - for the right-of-way, she said.

In a telephone interview, McGowan confirmed that 27 properties in New Hyde Park, including some homes and businesses, could be seized either wholly or partially in order to eliminate three at-grade crossings in that village.

She would not say how many properties on the Third Track Project's route east of New Hyde Park might be taken by eminent domain for elimination of at-grade crossings in those jurisdictions.

McGowan's comments came hours after a crowded meeting in a community center next to New Hyde Park village hall, with people questioning the railroad's plans and angered by the lack of information about the project.

The total number of 80 properties was included in an LIRR "Project Briefing" plan that was given to village trustees by the LIRR in New Hyde Park last month and was distributed at yesterday's meeting.

The Third Track Project, affecting an 11.5-mile stretch from Hicksville to Queens Village, includes addition of a third track, elimination of at-grade crossings and renovation of stations. The railroad is supposed to submit a draft environmental impact statement to the Federal Transit Administration in April, with public review of that draft slated from September to December.

The railroad held public hearings in 2005 as it prepared the draft environmental impact statement, but local officials and residents along the project route have complained bitterly about the lack of information they have gotten from the railroad.

The possibility of the usage of eminent domain to seize homes and businesses became public only in recent weeks.

"Who knew?" one woman in the audience yelled out yesterday.

About 300 people crammed into the community center for the meeting yesterday morning. Robert Lofaro, a trustee of New Hyde Park and chairman of the village's Long Island Rail Road Task Force, said at least 50 people could not squeeze in. So he did a second presentation at noon after the first wave thinned out.

"We come in peace," he said at one point to the angry crowd. "We're just the messengers, so we don't want to get shot."

Word of which villages or other areas along the Main Line Corridor could face seizures through eminent domain has come largely through interviews with local government officials who have been notified about plans affecting their locales.

Officials with the villages of Bellerose and Floral Park have said that the LIRR has told them that no private property there will be taken. The Village of Garden City has said that it might lose a portion of one commercial property.

That leaves in question a number of communities east of Garden City, including Carle Place, Mineola and Hicksville.

Mineola Mayor Jack Martins said the LIRR briefed him on its plans for his village, and the agency did not rule out condemnations under eminent domain.

The LIRR has not briefed North Hempstead and Oyster Bay, town officials said Friday.

Q&A

How many properties in Nassau possibly will be seized for the LIRR Third Track Project?

Portions of up to 80 properties from Hicksville to New Hyde Park for right-of-way only; all or part of 27 properties in New Hyde Park for elimination of at-grade crossings; and an unknown number for at-grade crossings from Hicksville to New Hyde Park. The LIRR will not decide which properties until the federal government makes a decision on the project sometime around September 2008.

What compensation do property owners receive?

Reasonable compensation, which normally is defined as a property's fair market value. But property matters can be complex, and fair market value sometimes might include more factors than what the property could bring on the open market.

Who determines the amount to be paid to property owners?

Ultimately, a court fixes the compensation.

Is there an appeal?

Appeals can go all the way to the U.S. Supreme Court.

What is an example on Long Island of property seized by eminent domain?

One recent example is Stony Brook University's annexation in November 2005 of 246 acres for a technology center. The university took the property from Gyrodyne Corp. and paid the firm $26.3 million. Gyrodyne considered the property worth a great deal more and has gone to court, seeking $158 million in damages for what it alleges is the state's undervaluation of the land.

What is the legal and moral justification for seizing property from a citizen?

That the individual's private property rights must bend to the public good. For example, should a private home be razed to make way for a water pipe that supplies thousands of homes? Balancing those interests has proven difficult for government and for the courts.

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Long Island NY Newsday: http://www.newsday.com

Developer critical of eminent domain: Ft Wayne IN Journal Gazette, 1/28/07

Sided with homeowners in famous case
By Ron Shawgo
Land for a hotel to be built near a proposed downtown stadium was acquired by the city of Fort Wayne through the power of eminent domain, a process that one of the stadium developers has argued against.

Jason Freier, an Atlanta attorney and CEO of Hardball Capital, said the city action happened long before his company bought the Wizards and entered stadium discussions. There also are significant differences between the Fort Wayne eminent domain case and the one he challenged, he said.

The hotel would go on the corner of Harrison Street and Jefferson Boulevard on land the city bought from Belmont Beverage for $1.45 million. Belmont lost a court battle to keep the property.

City officials say the project, called Harrison Square, hinges on finding a company wanting to build the hotel. Hardball Capital is not involved in the hotel development, but Freier said a hotel developer known to Hardball partners might submit a proposal.

A landmark 2005 U.S. Supreme Court ruling allowed eminent domain to be used to acquire homes for a private office complex and condominiums in New London, Conn.

In a brief filed in the case Freier, representing the NAACP, AARP and other groups, argued that eminent domain has historically targeted minorities and that taking land from one private citizen and giving it to another for economic development did not represent a true public use.

Freier said that in Fort Wayne the hotel would provide rooms for Grand Wayne Center, a public building for which the hotel would serve a public use. A stadium also would qualify as a true public use, he said.

Freier said there’s also a difference between taking homes, such as those in New London, and taking a business.

“I fully understand being emotionally tied to your business, but it is a different story than displacing somebody from their home, I think,” he said. “Not that any taking of a business would be unproblematic for me and any taking of a home would be problematic. It’s not that clear a line. But that is certainly one enormous factor and I think not just for me philosophically but I think for virtually everybody philosophically.”

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Ft Wayne IN Journal Gazette: http://www.fortwayne.com/mld/journalgazette

D.C. eminent domain lawyers awarded fees in Norwood case: Cincinnati OH Enquirer, 1/27/07

By Steve Kemme
A Hamilton County judge ruled Friday that the Institute for Justice is entitled to be compensated for attorney fees and expenses connected with its work in the Norwood eminent domain case.

The Institute, a civil-liberties law firm in Washington, represented for free several property owners who fought Norwood's seizure of their property by eminent domain.

Norwood wanted the property so that a developer could build a $125 million office-retail-condo development called the Rookwood Exchange on 11 acres at Edwards and Edmondson roads. Last July, the Ohio Supreme Court ruled against Norwood and the developer and ordered the property returned to its previous owners.

The Institute for Justice has asked for more than $850,000 in attorney fees and expenses.

Attorneys for the Rookwood Partners, the developer of the proposed Rookwood Exchange, argued that Ohio law doesn't permit compensation for attorney fees when no fees were charged.

But Common Pleas Judge Beth Myers ruled that Ohio law permits nonprofit agencies that represent property owners in eminent-domain cases to be compensated. She cited numerous previous court decisions that supported the institute's position.

"We are pleased with Judge Myers' ruling," said Scott Bullock, attorney for the Institute for Justice. "We think she got the law exactly right."

Tim Burke, attorney for Norwood who also was speaking for Rookwood Partners, said Myers' decision likely will be appealed to the Ohio First District Court of Appeals. He said a final decision about whether to appeal won't be made until all the unresolved issues in the case are settled.

These issues include:

• The amount of compensation the institute should receive for attorney fees and expenses.
  
• Who's responsible for paying for damages that occurred to the holdout property owners' three houses while Norwood and the Rookwood Partners controlled them.
  
• How much of the $1 million set aside in property valuation deposits controlled by the court must be returned to Rookwood Partners.
  
• Who will pay to restore utilities for the three properties still standing on the land.

If Myers' ruling stands, attorneys for Rookwood Partners have said that Rookwood Partners, not Norwood, would have to pay the institute.

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

San Lorenzo Valley Water District to decide whether to use eminent domain to take Felton system: Santa Cruz CA Sentinel, 1/27/07

By Gwen Mickelson
The San Lorenzo Valley Water District is setting the stage to use eminent domain to take control of the privately owned Felton water system.

Water district board members are expected to vote at a Feb. 8 meeting on a resolution that is the last step before proceeding with eminent domain, according to district Manager Jim Mueller.

"If the board should take the potential action to adopt that resolution, that would empower the district to go before the court and file an action of eminent domain," he said.

Eminent domain is the power of government to take private property for public use, provided owners receive just compensation.

During more than four years of attempts by Felton residents to buy the waterworks, the system's owner, California American Water Co., has consistently said it is not for sale. The system is still not for sale, said Evan Jacobs, community relations manager for Cal Am in Felton.

Cal Am has received the notice about the February meeting, "and we do have a number of objections to the resolution," said Jacobs. "We're going to communicate those objections to the San Lorenzo Valley Water District by letter"

The main purpose of the hearing "is to give the property owner, which is Cal Am, the opportunity to address the board," said Mueller, "and provide any testimony, evidence, etcetera, that they want to present"

Cal Am representatives will be there, however, Jacobs said, but the company is still reviewing its options about making a presentation.

Unhappy with the price of water and service, Felton residents in 2005 authorized an $11 million bond, Measure W, to buy the Cal Am waterworks and asked to become part of the neighboring San Lorenzo Valley Water District.

Members of Felton Friends of Locally Owned Water, the group leading the charge to buy the system, were happy with the water district's recent move.

"We're absolutely ecstatic this process is moving along," said Barbara Sprenger, a FLOW member. "We hope that the water board will unanimously vote to move forward"

Measure W funds would be "plenty" to pay for both potential eminent domain proceedings and the water system, said Sprenger.

The San Lorenzo Valley Water District board of directors voted unanimously in December to offer $7.6 million to Cal Am for the Felton system.

Mueller estimated that if the district were to go through with eminent domain proceedings, it could cost up to $500,000. The money for the proceedings would come from Measure W funds.

Since the board has not yet authorized an action of eminent domain, Mueller was reluctant to say how long such proceedings might take.

"But just speculating, if a court case were involved, you're looking at 12 to 18 months," he said.

The meeting will be at 7:30 p.m. Feb. 8 at Highlands Park Senior Center, 8500 Highway 9, Ben Lomond. It is open to the public.

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Santa Cruz CA Sentinel: http://www.santacruzsentinel.com

APS Claims Right To Condemn Land For Use In Generating Power: AzJournal.com, Holbrook AZ, 1/26/07

By Tammy Gray-Searles
“APS (Arizona Public Service Co.) has always had the right to condemn Aztec land for use in generating electricity,” attorneys for APS noted in a recently filed court document in the ongoing legal battle between APS and Aztec Land and Cattle Company.

APS officials have asked Navajo County Superior Court Judge Tom Wing to use eminent domain laws to condemn Aztec-owned property on which water wells for the Cholla Power Plant are located. APS has leased the property from Aztec since 1974, but the 35-year lease agreement expires in August, and the companies were unable to reach a new lease agreement.

According to Aztec President Steve Brophy, APS has offered to purchase or trade for the land, but Aztec is not interested in selling, because it plans to use the water supply for future projects on surrounding property. APS officials contend that the water is vital to the operation of Cholla Power Plant and Aztec’s lease price is too high, therefore they are seeking to obtain the property using eminent domain laws.

Aztec filed a motion to dismiss the case shortly after it was filed, arguing that APS did not follow proper legal procedures in filing the case. That motion was denied both by Judge Wing and the Arizona Court of Appeals.

Aztec filed a second motion to dismiss the case Dec. 21, claiming that APS does not have the authority under Arizona state law to condemn property in order to pump groundwater. Aztec argues that the statutes cited by APS as giving it authority to exercise eminent domain do not apply because the statutes do not specifically address groundwater, and limit the use of eminent domain to only the specific purposes listed within the statutes.

In its response to that claim, APS argues that the issue is not about whether APS can use eminent domain laws to pump or condemn groundwater, but whether it can use the laws to ensure its ability to produce electricity.

“This case is not about some abstract, generic question of whether eminent domain can be used ‘to pump groundwater,’ to obtain a well site, or to obtain water rights not essential to some public purpose, all as Aztec seems to argue. It is about the compelling need to use eminent domain to allow the continued generation of critical electrical power, a use the eminent domain statutes recognize is an important public purpose,” the court document stated.

In that same document, APS claims that there is no reason to compensate Aztec for the groundwater. “In short, Aztec does not ‘own’ the groundwater flowing beneath Aztec land; the groundwater is not being condemned; and, there is no compensable interest in this condemnation case for the groundwater,” it states. It later goes on to say, “Groundwater is not the subject of any condemnable or transferable property right. The only property right that exists in groundwater is a right of withdrawal from the overlying land…the Arizona Supreme Court unequivocally held ‘that there is no property right of ownership in groundwater prior to its capture. A landowner whose land overlies groundwater has only the right to use of the water, but maintains no proprietary interest in the actual water’.”

APS also cites the newly passed Proposition 207, approved by voters in November. The proposition became effective on Dec. 4, and according to APS, gives specific authorization of the use of eminent domain for “the use of land for the creation or functioning of utilities.” APS claims, “Proposition 207 is a ‘silver bullet’ that unequivocally confirms APS’ right to proceed in this case.”

A hearing on the motion to dismiss has not been scheduled, but the file will go to Judge Wing on Feb. 7 so that he can review the case and set any necessary hearings. A jury trial is set for July 10.

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AzJournal.com, Holbrook AZ: http://www.azjournal.com

Clifton Hts. land seizure nullified: Cincinnati OH Enquirer, 1/26/07

Using the Norwood [OH] eminent-domain case as a model, a state appeals court Friday nullified Cincinnati’s seizure of two parcels on Calhoun Street in Clifton Heights and declared the city’s eminent-domain ordinance to be unconstitutional.

The ruling reverses a lower court decision that upheld the city’s right to use eminent domain to take the properties.

The city and a developer used a blight study to take dozens of properties as part of a $270 million redevelopment plan along Calhoun Street.

All of the property owners in the redevelopment district except the owners of a former Hardee’s and Arby’s eventually agreed to sell to the developer, the Clifton Heights Community Urban Redevelopment Corp.

The Ohio First District Court of Appeals said in its decision Friday that many factors that Cincinnati used for designating properties “blighted” or “deteriorating” were struck down in the Ohio Supreme Court’s Norwood decision.”

“In sum, the factors found to be blighting influences in this case simply did not establish that the area was blighted or deteriorated,” says the decision, written by Judge Ralph Winkler. “The structures in the neighborhood were generally in good repair...”

The decision cites the Ohio Supreme Court’s precedent-setting ruling last year that prevented Norwood from using eminent domain to take properties that would have enabled a private developer to build a $125 million office-retail-condo project at Edwards and Edmondson roads.

It was the first eminent-domain case to go before state supreme court since the 2005 landmark U.S. Supreme Court decision upholding New London, Conn.’s right to seize property for commercial development, but permitting states to set their own standards for eminent domain.

Matthew W. Fellerhoff said Cincinnati’s standards for declaring property “blighted” or “deteriorating” were even more vague than Norwood’s.

“The Norwood decision made it easy for the court to decide in our favor,” he said.

City Solicitor J. Rita McNeil said her office will study the appeals court’s decision before recommending whether the city appeal to the Ohio Supreme Court.

“Obviously, I’m disappointed,” McNeil said. We certainly thought we were distinguished from Norwood. We’re evaluating all of our options.”

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

Fear for homes in LIRR's path: Long Island NY Newsday, 1/25/07

New Hyde Park officials say up to 30 properties in the village could be condemned for the Third Track Project
By William Murphy
Up to 30 homes and businesses in New Hyde Park face condemnation to make way for the Long Island Rail Road's Third Track Project in western Nassau, according to village officials.

Those officials plan a public meeting Saturday at the village community center to inform residents and business owners of specifics of the LIRR plan, and their effort to have it changed.

"I think they [the LIRR] presented the least expensive plan and not the best plan," Village Mayor Dan Petruccio said in an interview Thursday.

In another Third Track development, the Town of North Hempstead said the LIRR had canceled a scheduled meeting Thursday to discuss the impact of the project on the community near the Carle Place station.

Over the past two months, the railroad has been holding village-by-village briefings - or meetings with town officials when the locality in question does not control its own zoning - for some of the communities affected by what is formally known as the Main Line Corridor Improvements Project.

The project would add additional track, eliminate grade crossings and renovate stations along an 11.5-mile stretch from Hicksville to Queens Village.

New Hyde Park is the only community so far to be told that private property would be needed for the project, according to Petruccio and officials of the other communities.

Petruccio said the LIRR was not specific about which properties would be condemned under eminent domain. But he said the affected area would be at or near the three intersections in the village where railroad crossings are at grade level: New Hyde Park Road, South 12th Street and Covert Avenue.

When government takes property by eminent domain, the owner is compensated.

Village officials in Bellerose, Floral Park and Garden City said earlier this month that the LIRR has assured them no property would be seized in their villages.

Mineola Mayor Jack Martins said he had gotten no such assurances during his briefing, so he was assuming that eminent domain still was a possibility in his village, which has two at-grade crossings.

The LIRR, which is preparing a draft environmental impact statement on the project, declined to comment again Thursday. The agency has repeatedly refused to say publicly what it tells the local officials in private meetings.

On its Web site, the railroad said the project would speed the flow of commuters, particularly those who make a reverse commute to Long Island. It would also improve safety by eliminating the at-grade crossings, which have been the scene of several fatal accidents over the years, the Web site says.

However, residents and communities along the route contend it would create congestion and noise, as well as unsafe conditions where trains would run closer to residences.

Petruccio said the LIRR presentation to village officials consisted of "some preliminary drawings ... some preliminary plans."

He said there was room for a third track on the south side of the existing tracks, but that elimination of the at-grade crossings would cause problems.

"I believe this plan was the least expensive for them," Petruccio said. "We will be filing a Freedom of Information request to look at other plans they may have considered."

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Long Island NY Newsday: http://www.newsday.com

McKenna kicks off eminent-domain reform push today: Legal News Line, 1/24/07

By Rob Luke
[The state of] Washington's Republican Attorney General Rob McKenna has joined his counterpart in Virginia in seeking legislative changes to his state's eminent domain law in 2007.

The Washington state Senate Judiciary Committee will this afternoon hear the first of two bills on the issue that were first requested by McKenna and Democratic Governor Christine Gregoire.

The bills would require state bodies to notify property owners by certified mail if they are considering condemning the property. They would also require the bodies to publish legal notices in local newspapers stating when and where they will hold open meetings to consider the condemnation.

"Condemnations are critical decisions that can affect people's homes and businesses," McKenna said. "This bill will ensure that property owners receive timely notice that such an important decision is being considered."

Virginia's Republican AG Bob McDonnell earlier this month put forth even more restrictive changes to that state's eminent domain laws. He proposed preventing government from using eminent domain for either economic development, selling to a third party or increasing property values.

"It's critical that the [Virginia] General Assembly get a good, strong property rights protection bill passed this session," McDonnell said.

The bills requested by McKenna and Gregoire are in response to a Washington Supreme Court decision last year in the eminent domain case of Sound Transit vs. Miller. There the court ruled that a posting on Sound Transit's website was adequate notification to inform an owner that his property was slated for condemnation.

The Washington bills will be heard at 3:30 p.m. PT (5:30 p.m. CT) today in Senate Hearing Room 1.

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Legal News Line: http://www.legalnewsline.com

New Westville councilman takes stance against eminent domain: Gloucester County NJ Times, 1/25/07

By Jonathan Vit
George Baker, a [Westville] council veteran, knows that people want him on council as a voice against eminent domain, but he also knows that his voice is joining a minority.

"Having served on the council before I know that one person cannot make a whole lot of difference," he admitted, "but the taxpayers do need more representation."

Baker was appointed to council to fill the seat left by Mayor Michael Galbraith.

The representation that some people expect is on the borough's topic to end all topics, eminent domain. Baker, who served on the council in the late 1980's, owns two homes in the borough's redevelopment zone, one for himself and one for his son, that have been threatened by eminent domain.

"I do not have problems with redevelopment, but I (do) have problems with eminent domain," he explained of the Doylestown, Pa-based developer Fieldstone's Big Timber Creek Redevelopment Plan.

"If you could just take eminent domain out of the picture," the redevelopment plan would work, he explained. "There are 14 states that do not allow eminent domain to be used by private business and New Jersey should be 15."

If the developer worked with homeowners to find fair offers for their homes, then the plan would lose its controversy, he explained.

"People don't understand if your grandfather built the house and you lived there and want to pass it on to your kids, then someone shows up and says they want to buy the house," Baker said. "Certainly in a town like Westville it is not impractical to pay fair prices, plus moving expenses, for them to leave their house."

When the developer first entered the borough with plans to turn 27 water-side properties into 253 condominiums they offered homeowners prices that they felt were too low.

Now, four out of six council members admit that they are in favor of using eminent domain to procure the homes, if necessary.

"To take someone's home and leave them out in the street so the taxpayer or the developer, someone else can benefit financially is wrong," Baker said. "The borough has thrown out numbers that they are going to make millions of dollars a year and certainly the developer is going to make a significant amount of money, so why should the person that is losing their property not be able to replace it?"

Yet, Baker's personal interest may take him out of the conversation entirely, explained Mayor Galbraith.

"Someone brought up last night the idea of him being in the redevelopment zone (if he) could even vote on it," Galbraith said. "I don't see how he could, that personally affects (him), it is a pretty direct link, but I could be wrong."

Even if Baker is not allowed to weigh in on the use of eminent domain, there is still a healthy list of other opportunities for him to get his voice in.

"I see myself as standing up for the taxpayer and really I don't see a whole lot of controversy there," he said. "I would say 25 percent of the issues that come up I may be controversial on. A lot of things local government votes on are really state mandated and our hands are tied."

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Gloucester County NJ Times: http://www.nj.com/news/gloucester

Staunton Eminent Domain: WHSV-TV3, Harrisonburg VA, 1/25/07

By Kelly Creswell
The city received a federal grant to build low to moderate income housing in a Staunton neighborhood. But property owner Gerard LaBrecque bought a rundown house so he could fix it up and rent it out to low-income housing families. Now LaBrecque may be losing more than just his house. Gerard LaBrecque says this ongoing battle with the city to find a way to house low-income folks forced him to stop construction on a duplex intended for that very same reason.

"But there's some poor people on those streets around my duplex, that got left in the dust a long time ago and we're not even talking about them," says LaBrecque.

LaBrecque received a building permit from the city to refurbish the property. But when the city received federal funding for the community LaBrecque says the city made some strange moves.

"To receive me into the grant and then to mysteriously unreceive me is somewhat of a red flag, and to want to build a huge house in replacement for something affordable, just seems immoral... If not illegal," says LaBrecque.

The city manager says the grant allowed private property owners to restore their properties and make them available for low to moderate income housing.

"The inspection that was conducted through HUD and the CGBD program showed that his property was so badly deteriorated that it did not meet the requirements to be included," says Jim Halasz, the City Manager.

Despite the constant battle of the property, LaBrecque says that's not the only thing he is fighting for.

"It's not just about the money, it's fighting for a better way of living and fighting greed so that it doesn't destroy us all," says LaBrecque.

As the situation stands right now, the city manager tells me LaBrecque has one last chance to hire an appraiser to give the city a final estimate on the property. If the city doesn't accept it, this will go to court.

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WHSV-TV3, Harrisonburg VA: http://www.whsv.com

Wyoming House Votes On Eminent Domain: KIFI-TV8, Idaho Falls ID, 1/25/07

The Wyoming House of Representatives made more changes today (Thursday) to eminent domain legislation.

The House voted to allow landowners whose property is being condemned for public or private projects to consider how much the entities paid for similar properties elsewhere in determining fair market value of their land.

The House on second reading approved an amendment to its eminent domain bill to allow a number of factors to be considered in determining fair market value. Yesterday (Wednesday) the House had approved language specifying that fair market value would be based on certified appraisals.

Representative Kermit Brown is a Republican from Laramie. He proposed the amendment to allow determinations of fair market value to include information about how much the entity seeking to condemn private property had paid for other properties. His amendment also allows consideration of how much the property could have realized for its owner if it weren't condemned.

The bill needs to be heard one more time in the House before it heads to the Senate.

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KIFI-TV8, Idaho Falls ID: http://www.localnews8.com

Landowner appealing Hononegah eminent domain decision: Rockford IL Register Star, 1/24/07

By Sarah Roberts
Former Roscoe [IL] village engineer Chris Hodges is appealing a jury’s recent decision that he must sell 23 acres to the Hononegah School District for $209,300.

More than a year after the district filed an eminent domain lawsuit against Hodges, a jury decided in October that Hodges’ land — near the intersection of McCurry and Willowbrook roads, where Hononegah plans to build a second high school — was worth $9,100 an acre.

Hodges says that his land is worth more because of the $43 million NorthPointe wellness campus Beloit Memorial Hospital is building adjacent to his property.

Hodges contends that the School District knew about the hospital project beforehand and did not tell the appraiser it hired to examine Hodges’ property.

At last month’s School Board meeting, Hodges proposed selling slightly more than 8 acres to the School District and 8 acres to Roscoe, at $30,000 an acre. He and his wife would donate the remaining 7 acres, Hodges said.

Neither the district nor the village was interested in his plan, Hodges said, so he filed an appeal earlier this month with the 2nd District Appellate Court in Elgin.

Attorneys for both parties are submitting initial paperwork and will eventually turn over court transcripts and exhibits from the eminent domain trial.

The appellate court will not hear new testimony and will use only documentation from the eminent domain trial to make its decision.

The process could take up to 18 months.

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Rockford IL Register Star: http://www.rrstar.com

City confronts hurdles to get homes built: Reading PA Eagle, 1/24/07

By Don Spatz
Adam Mukerji has a bit of a dilemma.

Reading's economic development manager wants the city to buy and demolish about 95 homes in the so-called Buttonwood Gateway area, to make way for an as-yet unofficial and incomplete plan to build new market-rate homes there.

Working through the county redevelopment authority, the city has been seeking cheap and friendly sales, not expensive eminent-domain takings.

That's Mukerji's dilemma.

On the one hand, he's afraid that if homeowners discover just how interested the city is, some will hold out for more money.

On the other hand, nine owners owe so much to the city because of a program that sounded like a good idea 10 years ago, they wouldn't make a dime on a sale and so have no interest in selling.

And thus Mukerji on Monday asked City Council to consider cutting that debt in half, just to juice up the city's offer.

The row homes are on West Buttonwood and Tulpehocken, Gordon and Miltimore streets, south of the railroad tracks.

The city already has bought and demolished those homes on the west side of Tulpehocken to clear some of the land, but wants the rest.

Nearby, the city had cleared the rusty and vacant American Chain & Cable Co., where Vancouver-based Sun Rich Fresh Foods plans to begin building a 46,000-square-foot fruit-packaging plant in the spring.

County Commissioner Mark C. Scott believes the entire area may be better used as an industrial park, and says that since a county agency is doing the buying, the county ought to rethink the plan.

The city still wants new homes. But first, it's got to get those old homes.

That's another dilemma.

New state laws ban municipalities from using their eminent domain power to take private property that they ultimately plan to turn over to private developers.

Thus, if the city gets most of the properties through friendly sales but has a few holdouts, it will have to think twice about using its eminent domain power to force the sales, lest it lose the ability to bring in a private developer.

However, Mukerji reminded council that the city and the Reading Housing Authority are building 16 condominiums in the 1000 block of Penn Street.

"That's the city's toe in the water of market-rate housing development, and we'd like to do it elsewhere," Mukerji said.

Eminent domain may be expensive and have restrictions, but it's faster than waiting years for holdouts to sell such as the Benner's Court project that's been under way since the 1990s.

Still, Mukerji is trying the friendly approach first, by juicing up the offers.

Back in the late 1990s, the city's so-called PRIDE program offered home-fix-up money a loan of up to $10,000 that would be repaid when the home sold, and another so-called loan of up to $10,000 that would be gradually forgiven over 10 years if the owner stayed there.

Trouble is, many homes that got the money are no longer worth it, as housing prices fall in blighted areas such as the gateway.

Mukerji said across the city as PRIDE homes are sold, the loan repayment often eats up the entire sale price, and the owner leaves the table with no money.

And no home.

"It was a well-intentioned program (but) it turned out to be not so favorable to some people," he said.

Cutting that debt in half might spark some sales, he told council.

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Reading PA Eagle: http://www.readingeagle.com

Topekans to Protest Eminent Domain by the City: WIBW-TV13, Topeka KS, 1/13/07

As the City of Topeka plans a renovation that could benefit East Topeka, some residents are resisting the City's efforts to to exercise its eminent domain powers and plan to rally in front of the City Council Chambers at 5:45 pm Tuesday to draw attention to their concerns.

The City plans to redo the intersection where 10th St. meets 6th St., and Golden Ave. and the methods by which some properties the City needs to seize have some people questioning how the property was valued.

The group is charging that the appraiser the City hired is "writing suspiciously biased appraisals and using false information to under-value some property in the area." They also claim that attempts to examine the details of the appraisals have received resistance or been flatly denied.

The group says one longtime area business may have to permanently close down an many residents and business owners have been put off by the City's tactics.

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WIBW-TV13, Topeka KS: http://www.wibw.com

Weits ready to fight eminent domain: Exeter NH News-Letter, 1/23/07

By Peg Warner
The lawyer for a couple facing the potential loss of their property for a new high school said the Weit family has already donated land to the public good and shouldn't be forced to surrender more.

Michael Weit's grandmother donated what is now Leo Landroche Field, attorney Christopher Boldt said last week, suggesting school officials look for a way around a prohibition on developing that land instead of trying to take the adjacent property, where Weit was raised and on which his children are the fourth generation to grow up. The family members said they still ride horses on the land, and neighbors say they use it for recreation.

"This is taking their home," said Boldt to the School Board. "This is part of their home."

The current proposal, on which voters will cast ballots in March, calls for a new high school on 14 undeveloped acres beside Landroche Field. Weit and his wife, Debra Hale, have refused to sell their land and vigorously rejected the notion of losing it through eminent domain. The School Board has yet to decide whether to pursue that option.

"We're having to defend hearth and home," said Boldt, who promised a legal battle if the district tries to take the land. "We hope they will back away."

The board has to do what it deems best for the district, said Chairman Christopher Hawkins, adding the Weit property has "some very significant advantages," particularly its location beside Landroche Field and near the elementary school.

"Whether we're right or wrong is something for the voters to decide, and we accept that," he said.

School officials pointed to the building restriction on Landroche Field - a condition of federal funding when it was developed into recreation fields in the 1970s - as a reason they haven't looked to that parcel as a school site.

But in public forums on the building plan, they've indicated a willingness to look into ways to circumvent the restriction. Boldt said repaying the $100,000 the town received in federal money could allow the district to use it as the site of the new school.

Boldt also said the money the district is proposing to use to buy the land is not enough in the current real estate market to acquire the Weit parcel and the 13-acre Carpenter property across the road, where the plan calls for new playing fields. The Carpenters have been negotiating with the school district.

The district has about $1 million in a capital reserve fund, and officials have pointed to another $650,000 already in hand or accessible to the district in open space funds and development impact fees. Boldt said school leaders were being "disingenuous" by suggesting the land could be acquired for that amount.

Hawkins said the district could ask voters to approve additional funding in later years if the price of the land exceeded the district's current funding.

Boldt said his clients are supporting another article on the warrant, the lease-purchase of two portable classroom buildings, as a "step-wise" approach.

"It affords you time to find the ideal, with a willing buyer and a willing seller," Boldt said.

But Hawkins said the request was intended to address space needs that already exist, not a long-term solution, and that portable classrooms wouldn't address physical problems with the existing facility.

The overall school proposal has an estimated cost of about $20 million, but voters this year will decide only preliminary aspects of it in two questions on the warrant - the land acquisition and the bonding of $1.28 million for architectural and engineering costs - saving a decision on funding the actual construction for a later year.

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

Historic family ranch in Austin may lose land: Austin TX News-8, 1/22/07

By Catie Beck
Some keep family history under lock and key. But the Grumbles family wants the gateway to their past as wide open to future generations as the spaces on their ranch.

"It's the only way I know that they can touch the past," ranch owner Richard Grumbles said.

It's this sentiment that has the family fighting to keep their ranch. The Lake Travis Independent School District sent a letter to the Grumbles telling them that they are considering plans to develop their ranch in to a future school site for the district.

They plan to do this through eminent domain, the government's right to acquire land for the public good.

The ranch sits on more than 300 acres. The Grumbles already received one offer to buy the property for more than $11 million. But they say it's not about the money. It's about the history of their ancestors.

"They could have sold it at any time, but they didn't because of their love of the land," Carolyn Grumbles said.

Lake Travis ISD said it’s focused on the future of its students and often finds itself in fierce competition with developers for available land. The Grumbles say that is why their land became a target.

"There is lots of land around us that could be bought by the school district, we just happened to be the easiest pickings," Richard said.

On Monday night, the school board will meet and discuss land issues like the Grumbles’. The family plans to attend the meeting and voice their concerns to the board.

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Austin TX News-8: http://www.news8austin.com

Line drawn in the sand on eminent domain: Newark NJ Star-Ledger, 1/22/07

Heavy hitters join legal fight on Long Branch use of property takeover for development
By Maryann Spoto
The backlash against towns seizing small businesses and houses to further large-scale, private development has been gaining strength nationwide, but in New Jersey the use of eminent domain appears to be coming to a head in the oceanfront resort of Long Branch.

A group of homeowners has been fighting the city's effort to take their land in court for about three years, but in recent weeks powerful forces joined the battle and have turned it into a legal showdown.

State Public Advocate Ron Chen - with the firm support of Gov. Jon Corzine - took the side of the property owners. The state League of Municipalities, which frequently points to Long Branch as a shining example of the good eminent domain can do - is weighing in on the city's side.

As a result, the state may wind up with a definitive court decision on the use, or misuse, of a powerful redevelopment tool.

Chen entered the case two weeks ago, filing legal papers objecting to the seizure of two dozen private houses to make way for an expansion of an upscale condominium development.

"These condemnation cases against the owners of small seaside houses in Long Branch raise serious issues about the fairness, thoroughness and legality of the process by which longtime residents may lose their homes to private development," Chen said. "The homeowners contesting the condemnation are asking for full discovery and a hearing, and we are urging the court to grant their request."

Supporters say the project begun in 1991 has transformed a seedy waterfront into a vibrant community with hundreds of condominiums, townhouses and rental units built over restaurants and stores.

William Dressel of the state League of Municipalities insists towns need the flexibility to seize property that stands in the way of progress - and he said this week his group also intends to enter the case, on the side of Long Branch.

"If we lose that economic redevelopment tool, we're really going to lose the battle in trying to improve the quality of life in our communities," he said. "It's unfair, and it's a slap in the face to responsible governance to say that eminent domain is bad."

Chen is not the only one who has raised concerns, however, about the overuse of eminent domain by towns eager to move large-scale development projects forward. Critics have accused towns of allowing politically connected developers - some of them contributors to local election campaigns - to run roughshod over longtime residents.

Towns have long used powers of eminent domain to seize private property to further public projects like roads, schools, tunnels and bridges. But in recent years, they have seized homes and businesses and turned the property over to private developers seeking to build large-scale redevelopment projects.

In June 2005, the U.S. Supreme Court ruled such a plan in New London, Conn., could go forward, infuriating property rights activists nationwide and prompting dozens of states to consider reforms.

In submitting his "friend of the court" brief to the Appellate Division, Chen could lend extra muscle to the appeal already filed by the homeowners' private attorneys and the Washington-based Institute for Justice.

The appellate judges could side with Chen and the homeowners and give the residents the hearings they want, or they could allow the city to continue its condemnation process.

Chen has looked at eminent domain matters in at least a dozen communities but has only gotten involved in two so far.

In his 65-page brief, he claimed the residents of Marine Terrace, Ocean Terrace and Seaview Avenue were never given adequate notice their homes could be taken through eminent domain. He maintained Superior Court Assignment Judge Lawrence Lawson, sitting in Freehold, should have ordered a hearing on that issue.

He also argued Lawson should have ordered another hearing to determine whether there was merit to residents' allegations that three city council members had conflicts of interest in the redevelopment project.

Chen also argued city officials failed to do a thorough enough inspection of the properties and had "insufficient evidence" to support the blight determination needed to start the eminent domain process.

The strongly worded filing prompted an angry response from Mayor Adam Schneider, who argued it was wrong to use public money in a bid to overturn a decision local officials made in good faith.

"He's not supposed to be representing 10 property owners on the oceanfront," Schneider said. "He's supposed to be representing all the homeowners in the state of New Jersey."

Schneider accused Chen of failing to listen to the city's side of the story and said the city meticulously followed the redevelopment law when it used eminent domain. He accused him of trying to grab the spotlight to further his own political career.

"It's a hot-button issue; it's gotten a lot of publicity," Schneider said. "I think he wants to be in the middle of it."

Chen, who was serving as the dean of academic affairs at Rutgers University School of Law-Newark when Corzine tapped him to resurrect the post of public advocate, denied he has any aspirations to hold political office.

"We are choosing cases that raise larger public issues of how eminent domain is applied," said Chen, who made detailed recommendations last year to a legislative panel studying ways to end abuses of the practice.

Those hearings led to a bill the Assembly overwhelmingly passed in June, but the reform effort has since languished in the Senate. A spokesman for Corzine, who strongly condemned eminent domain abuses during the gubernatorial campaign, said he is eager to see a reform bill pass.

"It's clear to us the Long Branch situation is an abuse of eminent domain, and we're glad the public advocate has filed his brief," Corzine spokesman Brendan Gilfillan said.

Eminent domain needs to be reformed, he added, "to protect homeowners and increase transparency in a process which can serve as an important tool when it's appropriately applied."

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Newark NJ Star-Ledger: http://www.nj.com

City considers eminent domain for Sutton Creek: Norman OK Transcript, 1/21/07

By Carol L. Cole
The use of eminent domain could be the next step in the battle to protect Sutton Urban Wilderness Park [SUWP] from a proposed housing development that experts have said could harm wildlife in the park.

Norman city councilmembers will consider at their regular meeting Tuesday a resolution authorizing filing of a condemnation action for acquiring the proposed 53-acre Sutton Creek Addition adjacent to the west of SUWP.

“As of this date, the city has been unable to purchase the property and the city’s offer has been deemed rejected for purposes of receiving permission to initiate proceedings of eminent domain,” reads the memo from the city’s legal department to councilmembers. “The city will continue to negotiate with the property owners in an attempt to acquire the property without the necessity of court action.”

Developers John Mertens and Doug Greeson have proposed the about 53-acre, 125 lot Sutton Creek Addition south of Rock Creek Road, west of SUWP and east of the IOOF Cemetery. It was original proposed as a 134-lot Planned Unit Development.

The city’s Greenbelt Commission studied the impact the development could have on the park in an extensive three-month, 306-page study. It was presented in a council meeting Nov. 28.

Various experts in wildlife and environmental concerns strongly recommended to the Greenbelt Commission that the addition not be built because it would adversely impact SUWP by diminishing the habitat and reducing the animal and bird populations.

As a result, Greenbelt Commission members unanimously recommended the council seek to purchase the entire 53 acres or at the minimum, the land east of the riparian area that runs north and south through the property for a buffer for the park.

The preliminary plat was revamped by developers from a Planned Unit Development or PUD to single family residential after it was discovered that the land was allegedly never assigned a zoning designation after it was annexed into the city limits. That would mean the property defaulted to an R-1 or single residential zoning and would not need to go before council to be rezoned.

It had been thought that the land was zoned A-2 or agricultural.

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(1/24/07) Council votes to pursue Sutton Creek eminent domain

A resolution to authorize use of eminent domain for the city to acquire the controversial 53-acre Sutton Creek addition was approved by a split 8-1 vote of the Norman city council at its regular Tuesday meeting.

The 125-lot proposed Sutton Creek development is west of Sutton Urban Wilderness Park and experts have said the housing development would negatively impact the park and diminish the wildlife population.

Eight councilmembers expressed support to provide the buffer for the wilderness park. They cited strong, across-the-board public support, with more than 800 citizens protesting the development.

Voting “aye” were councilmembers Bob Thompson, Richard Stawicki, Jim Stanley, Cindy Rosenthal, Rachel Butler, Doug Cubberley, Dan Quinn and Mayor Harold Haralson. Councilmember David Hopper cast the “nay” vote.

“Most folks know I have been an opponent of eminent domain,” Stawicki said. “This is the one case … I think it serves a clear public purpose.”

Butler said none of the councilmembers had considered the use of eminent domain lightly.

“But if we let it go by, it’s gone,” she said of Sutton Urban Wilderness Park. “I’m not willing to do that.”

Thompson said it was a situation where the public came to the council “and continues to come to us.”

“There is not guesswork. This is very, very important to the city of Norman,” he said.

Hopper said he was aware of the groundswell of support in the community.

“But I am against using the city’s process of condemnation,” Hopper said. “I think this is playing games with the process.”

City Attorney Jeff Bryant said before the vote that the city had the Sutton Creek land appraised and had made offers as late as Friday to developers John Mertens and Doug Greeson.

“But we kind of got to a point where we thought we weren’t moving forward any more,” Bryant said.

The city’s appraisal came back at $627,000. However, the developers wanted a purchase price of $1.9 million.

“It is clear that we are far apart,” said Ward 4 councilmember Cindy Rosenthal. “I think this is a unique situation and a unique property. … There is enormous support for us to do this.”

Bryant said the process is outlined in a state statute.

The property will be appraised for the court and the city would have the opportunity to take the property for that price, he said.

If the developers feel that the court’s appraised price is not the fair market value, they can send the matter to a jury trial.

Developers’ attorney Harold Heiple objected to the eminent domain resolution.

He said he believed the city had a faulty appraisal, based on single-family residential zoning.

“I believe the city has not negotiated in good faith,” Heiple said.

He asked that the city reject or postpone the resolution in order to consider the preliminary plat and to consider acquiring only part of the property.

But that didn’t happen.

Ward 7 councilmember Doug Cubberley took exception to the allegation that the city was playing games.

“Our appraisal does not support their blue sky,” he said. “We will let the court determine a fair price.”

Cubberley said approving the preliminary plat would allow the developers to start moving dirt.

“Why should we pay for this extra,” he said. “We will let the court determine a fair price.”

Mayor Harold Haralson said he had great respect for the person who did the city’s appraisal.

“I believe it’s reasonable,” Haralson said.

Several audience members thanked the council after the vote.

“Thank you, thank you, thank you, thank you, thank you, thank you …,” said David Miller, representing the Red Earth chapter of the Sierra Club, who offered $500 personally to contribute to the city’s purchase price.

Greenbelt Commission chairwomen Diane Fitzsimmons said after the vote that she would like the city to pursue purchasing the Sutton Urban Wilderness Park, which is leased for about the next 75 years from the state.

Rosenthal said the city is hopeful that the state might give the park to the city as part of its Centennial celebration.

“It’s a wonderful moment in time to try to convince the state,” she said.

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Norman OK Transcript: http://www.normantranscript.com