Mayor wants discussion on redevelopment: Lodi NJ News-Sentinel, 2/9/07

By Matt Brown

Lodi Mayor Bob Johnson has called for another look at redevelopment, but he says he's not interested in taking property for private enterprise.

At Wednesday's City Council meeting, the mayor said he was interested in revisiting the city's dormant redevelopment agency. The Lodi Redevelopment Agency, which is charged with improving neighborhoods and removing blight, is not active because it does not have a project zone.

Redevelopment agencies have been criticized for their use of eminent domain; taking property for either public or private use. Lodi passed an ordinance in March 2006 which prohibits eminent domain for private development.

"No one is saying we should revisit eminent domain," Johnson said. "I'm just trying to get a conversation going."

Johnson said blighted areas, such as land along the Union Pacific railroad tracks, could be put into a redevelopment project zone. As the value of the property in the project zone increases, the redevelopment agency would receive the profits from tax revenue. The agency could reinvest the funds into the project zone by cleaning up graffiti, adding street lights or paving streets, Johnson said.

"We are gun-shy about discussing this," he said. "People said they don't want eminent domain. I think we can accomplish this without eminent domain."

Local advocate Jane Lea led a campaign to abandon the redevelopment agency in 2002. The agency has done nothing and exists in name only.

Lea, a 2006 council candidate, said county services are hurt by redevelopment.

She said county services rely on revenue from property taxes, and funds are siphoned off when redevelopment agencies receive profits from property taxes.

"The county is broke," she said. "Cities with large redevelopment agencies don't pay their fair share. They are stealing from the county."

Lodi NJ News-Sentinel: http://www.lodinews.com

Stolle, Norment named in complaint alleging conflict: Newport News VA Daily Press, 2/9/07

By Bob Lewis, Associated Press

Two [Virginia] state senators are named in complaints filed by an attorney and conservative Republican activist from Roanoke who contends the lawmakers have conflicts of interest regarding eminent domain legislation.

In letters to the Division of Legislative Services, G. David Nixon alleges that Republican Sens. Kenneth W. Stolle of Virginia Beach and Thomas K. Norment of James City have "thwarted attempts to bring about meaningful eminent domain legislation."

Nixon notes in the letters that Norment and Stolle work for the Kaufman & Canoles law firm. Because the firm's work includes property condemnation and eminent domain litigation, Nixon's complaint says, Norment and Stolle both have conflicts on the issue and both sit on the Senate Courts of Justice Committee, which decides the fate of eminent domain bills.

Neither Stolle nor Norment practice eminent domain law, and both said the attorneys in their firm who do overwhelmingly represent landowners fighting efforts to have their land taken through eminent domain.

He also notes that both have connections to the state's dominant utility, Dominion Resources. Both reported hunting trips to Georgia paid for by the company, and Norment owns stock in the company, which uses eminent domain to condemn land for power line rights of way.

On Jan. 31, Stolle and Norment both received advisory opinions they had sought from Attorney General Bob McDonnell that said their employment presented no conflict that would bar either from discussing or voting on eminent domain legislation. The ruling, however, did not address involvement with Dominion, a giant power company fighting for legislation this year to run a major new high-voltage power line through suburban northern Virginia.

Stolle and Norment both rejected Nixon's assertion.

"It's absolutely irresponsible and spurious," said Norment. "I find it shocking that a fellow lawyer would file a complaint like and accompany it with a news release."

Stolle reasoned that there were political motives behind the complaint.

"My guess is this arises from a group of people who have tried to force some eminent domain reform language through and they don't like Tommy and I having votes on the process," Stolle said.

Both senators are among the ring of Republican moderates who have dominated fiscal policy in the Senate for years and outraged GOP conservatives by supporting tax increases passed in 2004.

Nixon has served on the Roanoke city GOP committee for 30 years and said he has been active in opposing moderates the party's conservatives call RINOs, or Republicans in name only.

"But that's completely aside from whether they have a conflict of interest. They should not be carrying the ball for condemner clients that they have," Nixon said.

Newport News VA Daily Press: http://www.dailypress.com

Court limits Baltimore’s use of eminent domain: Delmarva Daily Times, Salisbury MD, 2/9/07

Associated Press

Baltimore had no reason to take a Charles North bar with a speeded-up form of eminent domain called “quick take,” Maryland’s highest court ruled Thursday.

Quick take, Maryland’s Court of Appeals said, requires an agency to prove that it needs property urgently and for the public good. In the case of the Magnet bar, wrote Judge Dale R. Cathell, the Baltimore Development Corp. did not demonstrate either.

“Agents of the City literally refused to answer any questions directed at the immediate need for this specific property, but appeared to have adopted the attitude that the City did not have to have a specific immediate need for the property, so long as sometime in the near or distant future they had such a need,” Cathell wrote. “This extraordinary power conferred upon the City ... was not for the purpose of allowing such entities to use it ’whenever they wanted to.”

John C. Murphy, the lawyer for Magnet owner George Valsamaki, said the high court sent a message to those who would push the limits of eminent domain and hurt property owners.

“The court is saying that what the city is doing now does not meet the standards,” Murphy said. “That’s a big change for a city which basically has used quick take for all of its acquisitions.”

By condemning the Magnet and some 20 other Charles North properties, Baltimore officials hoped to put together a sizable tract to attract developers. Revitalizing the depressed area between Mount Vernon and Charles Village along the Charles Street corridor was BDC’s intention.

The city filed a quick take petition on The Magnet in March, and gained immediate possession of the property without a hearing.

Valsamaki had 10 days to challenge the seizure, which he did, calling the city’s stated reason for taking his property “patently insufficient.”

BDC officials had argued that quick take was “critically important” to Baltimore’s neighborhood revitalization projects.

Baltimore City Solicitor George Nilson said that with this ruling, the city will have to change its ways.

“I think they’re saying you have to have more specific things in hand when you exercise quick take power and that the government bears the burden of proving that the taking is justified,” Nilson said. “And, because you bear that greater burden, you’re going to have to have fairly particular plans.”

Delmarva Daily Times, Salisbury MD: http://www.delmarvanow.com

State Sen. Neville's eminent domain bill gets committee endorsement: Farmington NM Daily Times, 2/9/07

By Walter Rubel

A bill that would prohibit local governments from using eminent domain laws for economic development purposes was endorsed Thursday by the Senate Public Affairs Committee.

Senate Bill 401, sponsored by Sen. Steve Neville, R-Aztec, would remove the ability to condemn property from the Metropolitan Redevelopment Code. That is the only piece of existing legislation that allows the use of eminent domain for economic development purposes, according to former Lt. Gov. Walter Bradley, who served on a task force last year to look at the state's eminent domain laws.

Eminent domain allows a government entity to condemn property, and pay the owner fair market value when land is needed for public use. It has traditionally been used for things such as roads and utility lines. But a Supreme Court ruling in 2005 said that a community in Connecticut was within its rights when it used eminent domain to take land to make way for a new commercial development.

Neville pushed through a bill last year in response to that ruling.

Gov. Bill Richardson vetoed the bill and formed a task force to look at the problem. The task force had recommended repeal of eminent domain from the Metropolitan Redevelopment Code, and Richardson supported that decision.

"Last year's bill was more of a shotgun approach. This is a very surgical instrument," Neville said. He said it would leave in place all of the traditional uses for eminent domain.

Neville is a real estate appraiser by trade and told committee members he has been involved in several negotiations for things such as public right of way. He said even the threat of condemnation will force people to sell homes and property against their will.

"Even though they are being paid fair economic value, it does not compensate for a home that has been in your family for generations," he said.

Bill Fulginiti, executive director of the New Mexico Municipal League, said repeal of the existing law would prevent cities from being able to deal with slums and blighted areas.

"Municipal officials were elected to protect the health, safety and welfare of their residents," Fulginiti said. "If areas are truly blighted and have slum conditions, it would be irresponsible not to deal with that issue."

But Neville said those situations could be dealt with through public nuisance laws.

The bill now goes to the Judiciary Committee.

A separate bill, which would limit municipalities' use of eminent domain to within city boundaries, was also endorsed Thursday by the Public Affairs Committee.

Farmington NM Daily Times: http://www.daily-times.com

Statewide Survey Shows Support for Eminent Domain Reform: California Alliance to Protect Private Property Rights, 2/9/07

News release

A recent survey, commissioned by the California Alliance to Protect Private Property Rights, shows voters overwhelmingly support a ballot measure to protect property rights from eminent domain abuse.

The survey, conducted by Public Opinion Strategies, asked 1,000 likely voters if they would support a proposition that would "add a new law in California designed to protect homeowners and other property owners from having local government take their property, under what is called 'Eminent Domain', in order to use the property for developers to build shopping centers and industrial parks." 67% responded that they would vote for such a measure. Results indicated broad support across party affiliation, region and ethnicity.

"Even after the narrow defeat of Proposition 90, California voters remain deeply concerned with protecting private property rights," said Stephen Kinney, pollster with Public Opinion Strategies. "This survey shows that a well drafted ballot measure would have the support of voters in 2008."

Despite outrage from voters over the U.S. Supreme Court's 2005 Kelo vs. New London decision, California's State Legislature has failed to provide "Kelo reforms" that would curb eminent domain abuse.

"The Governor and Legislature have promised to reform eminent domain abuse this year," said Jon Coupal, president of the Howard Jarvis Taxpayers Association. "If the California Legislature fails to provide homeowners property protections, voters will have no alternative but to qualify yet another ballot measure."

"Californians feel it is wrong for government to profit by seizing private property from unwilling sellers, only to use the property for projects that benefit the wealthy and politically connected," said Marko Mlikotin, president of the California Alliance to Protect Private Property Rights. "The results of this survey put opponents of eminent domain reform on notice."

Public Opinion Strategies Survey, Crosstabs
Public Opinion Strategies is a national political and public affairs research firm founded in 1991. A leader in the industry, they have conducted over three and a half million interviews with voters and consumers in all 50 states. This survey was conducted February 5-7, 2007 among a sample of 1000 likely California voters.

Survey Question - "The ballot proposition would add a new law in California designed to protect homeowners and other property owners from having local government take their property, under what is called 'Eminent Domain,' in order to use the property for developers to build shopping centers and industrial parks."

Party Support Oppose
GOP 72% 24%
Dem 62% 30%
Ind. 73% 23%
Region Support Oppose
Central Valley 75% 19%
Sacramento 70% 24%
Los Angeles 68% 28%
SF Bay Area 64% 26%
San Diego 69% 29%
Inland Empire 72% 24%

The California Alliance to Protect Private Property Rights is a statewide organization dedicated to exposing the abuses of eminent domain in California. The organization was founded by Yolo County farmers and taxpayer advocates fighting Yolo County's use of gambling profits to seize the 17,000 acre Conaway Ranch through eminent domain.

California Alliance to Protect Private Property Rights: http://www.calpropertyrights.com

SLV Water District votes to use eminent domain to take Felton water system: Santa Cruz CA Sentinel, 2/9/07

By Gwen Mickelson

The San Lorenzo Valley [SLV] Water District voted unanimously Thursday night to use eminent domain to take control of the privately owned Felton water system.

By approving a resolution of necessity, the five-member water district board took the final step needed before initiating the eminent domain process to take over California American Water Co.'s water system in Felton, which serves 1,350 customers.

"For me it was really the issue of local control. The people of Felton have made it very clear that they wanted this to happen and they want local representation," said Director Larry Prather.

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

Applause and cheers greeted the directors' vote.

"We are very, very excited," said Jim Mosher, a member of Friends of Locally Owned Water, which has led the charge for public ownership of the water system. "This is a major step in the process. It confirms all the testimony and all the work FLOW has done over the last four years. This truly is a David and Goliath story and we are going to win"

Cal Am representatives, however, said the vote will land the issue in court.

"It's unfortunate that this is going to resort to litigation. We believe the water district cannot establish the elements of eminent domain in court," said Cal Am lawyer David Skinner.

More than 50 people attended the meeting in Ben Lomond. Nearly 30 speakers, complaining about high rates, urged the district to take the system over.

"I'm outraged to the point of the limit of my patience," said Larry Ford, a FLOW member.

The main purpose of Thursday's hearing was to give Cal Am the opportunity to address the board to raise issues, according to district staff.

Skinner objected to the move, stating in a letter that the district did not comply with government regulations and did not offer the true value of the system when making an earlier offer to buy it.

"The water district cannot provide better service or better water quality than California American," Skinner told directors Thursday night.

During more than four years of attempts by Felton residents to buy the waterworks, Cal Am has consistently said it is not for sale.

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

That money should be sufficient to pay for both eminent domain proceedings and the water system, said Barbara Sprenger, a FLOW member.

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. District Manager Jim Mueller estimated that eminent domain proceedings could cost up to $500,000.

A court case could take 12 to 18 months to resolve, said Mueller.

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

Contractor Fights Eminent Domain: Charleston WV State Journal, 2/8/07

DOH lawsuit involves 'rare' road work bid situation for W.Va. 10 project in Logan County

By Juliet A. Terry

The welcome signs at West Virginia's borders say "Open for Business," but one contractor said his experiences of late prove the slogan is anything but true.

David Heeter has been in business in the Mountain State for nearly 40 years. His company, Heeter Construction Inc. and its affiliates, routinely bid on and complete projects valued from $10 million to $40 million.

His latest foray in competitive bidding for state highway projects has led him to the courtroom, however, not the construction site.

The dispute concerns a piece of land in Logan County that Heeter owns and the state wants to take through eminent domain proceedings. The land would be for waste disposal from a 2.5-million-yard excavation project that is part of plans to make W.Va. 10 a four-lane highway.

Circumstances behind that disagreement concern not just eminent domain law but also rules and practices affecting the bidding process for state road projects.

"There is something underhanded going on here," Heeter said of his dispute with the DOH [Dept of Highways].

The state insists it simply is trying to level the playing field in the bidding process for the Route 10 project. No one is playing favorites, according to Tony Halkis, director of the DOH legal division.

Heeter and the DOH have taken their dispute to the courtroom. A bench trial before Logan County Circuit Judge Eric O'Brient began Feb. 6 and will continue Feb. 12.

W.Va. 10 Bid
In April 2006, Heeter submitted a bid of $21.7 million for a W.Va. 10 project.

One of his sister companies, Contractor Enterprises Inc., purchased one of six potential waste sites suitable for the project in Logan County. Heeter paid $125,000 for the land and spent an additional $300,000 clearing the site so it would be ready to receive waste from the massive excavation project at Rita, about three miles north of Man.

Four other companies also bid on the project, and, according to court documents, Heeter's bid was the lowest of the five, but all the bids were at least 50 percent higher than the estimated cost of the project.

"When the bids came in 50 percent higher than the job ought to cost, we asked why," Halkis said. "It was determined that this waste area was key."

So the state invalidated the bids, re-estimated the cost of the project and prepared a new bid process. The DOH also set about obtaining Heeter's waste area through eminent domain proceedings.

Contractor Enterprises then sued the DOH in circuit court to stop the eminent domain proceedings.

According to DOH engineers, Halkis said the waste site was the only one big enough to accommodate the project. Acquiring the land for waste disposal would mean that all contractors who bid on the project a second time would have the option of using the land rather than Heeter having a competitive advantage because he already owned the land.

"Mr. Heeter was smart enough to buy it, and when we condemn it, we will pay him full market value," Halkis said. "We have the absolute right to condemn waste areas. ... We don't really want to take a waste site ... but we're trying to level the playing field here."

Heeter said the state has offered to pay him $118,000 for the site - far less than his total costs for purchasing and preparing the land.

He also said that other contractors who bid on the project testified that they had planned on using nearby lands for waste disposal, which contradicts the DOH assertion that Heeter's land is the only suitable site for waste disposal.

'Rare' DOH Move
As Halkis indicated earlier, the state is not in the habit of using eminent domain to take land for waste disposal on road projects.

Former Department of Transportation Secretary Fred Van Kirk testified Feb. 6 that the department never acquired a waste area in his 39 years there.

Halkis, who has been with DOT for more than 40 years, admitted the DOH was faced with a unique decision when it decided to take the eminent domain route.

"I've been here since 1961. It has happened before ... but it is rare," he said. "... That's the ideal site, according to our engineers. It's the only site for this project."

Cost Disparity
Heeter said he believes the eminent domain proceeding is more about helping out-of-state contractors than anything else.

"I've already built three sections of Route 10 in the past six years. We've saved the state $4 million on those projects," Heeter said, adding that his $21.7 million bid on the latest project was $4 million lower than the next-highest bidder.

"If we were awarded this one, we would have saved the state a total of $8 million in taxpayer money."

He said the state's project estimate of $14 million was outdated. The disparity between the estimate and the bids was from increases in construction costs and fuel, not the cost of providing a waste disposal area, Heeter said.

"The whole deal is that (DOH) has a whole bunch of new people down there, and they want to give somebody an advantage over me," Heeter said. "... I see some favoritism going on. They want to see someone else get this job. Eminent domain doesn't mean they can take this land to drive the price of the project down."

Heeter, a Spencer resident, has contacted Delegate Bob Ashley, R-Roane, for help. After looking at the situation, Ashley told The State Journal it has raised a few red flags.

"I am really concerned the state is starting a new precedent of acquiring spoilage (land)," Ashley said. "I don't know if there is anything I can do right now, but I don't understand why we're picking on a West Virginia contractor if we're supposed to be open for business."

Halkis said the DOH is trying to preserve a level playing field in its bidding process, not discriminate against Heeter.

"He's a fine contractor. It's just unfortunate we are in this situation," he said.

The Contractors Association of West Virginia filed a brief with the court in support of Heeter's position. The group said it supports the state's right to take land through eminent domain but said the state should have exercised that right before the project first was advertised for bid.

"It is not good policy to bid a project, review the bids, refuse the bids, condemn property that would have been used as a waste site and was owned by a sister corporation of the low bidder, then re-bid the project with that property available to all bidders as a waste site," the association said. "Such an approach does not ... encourage entrepreneurship and competition."

Halkis said the W.Va. 10 project is slated to be available for re-bid in March.

Charleston WV State Journal: http://www.statejournal.com

City blows eminent domain proceeding, losing lots: Hillsdale NY Independent, 2/8/07

By Diana Ladden

Edward Keegan, Sr. has regained title to land on North Fifth Street [in Hudson NY] he lost to the city as the result of an eminent domain proceeding.

The city initiated eminent domain proceedings in 2004, characterizing Mr. Keegan's lots at 61-65 and 67-69-71 North Fifth Street as urban blight. The eventual seizure of the lots, which the city wanted for low-income housing, was upheld by an appeals court last year. But the whole case has now unraveled because of a procedural error by the city, said Mr. Keegan's lawyer.

As the case made its way through the appeals process, the city filed an updated appraisal required by the court, but it failed to meet the deadline set by law. The city's appraiser Anthony Concra was unable to attend court, having been called away on a family matter. According to Mr. Keegan's lawyer, Andrew Howard, the city's lawyer, Robert Gagen, then withdrew his case.

The matter was dismissed with prejudice, which means the city cannot pursue its claim to the lots.

According to Mayor Richard Tracy, Mr. Gagen informed him during the hearing on the case Wednesday, February 7, before state Supreme Court Judge Christian Hummel, that the judge would not grant a postponement and that an affidavit given by Mr. Concra was not accepted.

"Our appraisal on the property was $100,000," said the mayor. "Our lack of an appraisal left us with the option of paying $293,000 for the property, the amount from the Keegan's appraisal." The mayor said the city was not prepared op pay the higher price for the properties.

Mr. Keegan expressed both delight and surprise at the latest turn of events, adding, "But I'm sure the taxpayers won't like the end result. They have to pay my legal fees for the last four years."

Mr. Howard said Mr. Keegan was never formally offered compensation for the properties. The city had an appraisal done in June 2004, but it was never updated.

The deadline for filing updated appraisals was last December 1. "The city tried to file their appraisal from 2004 on the eve of the evaluation hearing, but it was not only late, but outdated," said Mr. Howard.

Mayor Tracy called the situation frustrating. "I hope Mr. Keegan will do what's right and pursue the necessary improvements to these properties," he said

Hillsdale NY Independent: http://www.zwire.com

Ratner foes have first day in court: The Brooklyn NY Paper, 2/10/07

By Ariella Cohen

A familiar cast of characters clashed in the first courtroom battle over the fate of Atlantic Yards — with opponents saying the project abuses state condemnation powers and a state lawyer retorting that plaintiffs are “naive” to the ways of the world.

The state is allowed to seize private property, but only if it can demonstrate that it is doing so for public benefit. Lawyers for a handful of tenants and building owners in Atlantic Yards’ 22-acre footprint questioned that public benefit.

“If [Bruce] Ratner makes billions of dollars from the development and the city makes [less], then how is his benefit not the primary motive [of condemnation]?” asked Matthew Brinckerhoff, lawyer for Daniel Goldstein, whose apartment building is near center court inside Ratner’s proposed basketball arena.

Empire State Development Corporation lawyer Douglas Kraus scoffed at the plaintiff’s case against the $4-billion, 16-tower residential, office, arena and retail mega-project, calling it “fictional,” “hyperbolic” and “at odds with state law.”

He joked that the case was based on a naïve understanding of “the way things work,” his shorthand for the inner workings of government.

“If this is their approach,” Kraus said, “I would like to talk to [the plaintiffs] about buying stock in that nice bridge I passed on way over here.”

Kraus asked the judge to dismiss the case, though admitted that the amount of tax revenue, the number of affordable units and the number of jobs that will be created by the Ratner’s Xanadu had dropped since the project was introduced.

He said that the changes didn’t alter “the fact that this project would create affordable housing, eliminate blight and bring an arena to Brooklyn.”

The hearing, ostensibly to debate a motion to dismiss the case put forward by Ratner, the city and the state, ended inconclusively with Federal Judge Robert Levy promising to issue a decision “as soon as possible.”

It is unlikely that Levy will dismiss the federal eminent domain complaint, a complicated, case filed by Goldstein, who is also spokesman for Develop Don’t Destroy Brooklyn, and 12 other Prospect Heights property owners who believe that their homes are being taken for a development that will primarily benefit Ratner, rather than the public.

Legal experts said that Levy could send the constitutional claim to state court, where most eminent domain complaints are heard.

In New York’s courts, the case could have a harder time because of its judges’ reluctance to rule against other governmental bodies on land-seizure cases, said eminent domain lawyer Robert Goldstein, who is no relation to the plaintiff.

Throughout the four-hour hearing, the players brandished a newfound mastery of arcane legal precedents, but little new insight on the case at hand, known formally as “Goldstein v. Pataki.”

Ratner’s lawyer Jeffrey Braun used the same line of argument that he used in fighting an earlier lawsuit intended to stop the project — namely that Ratner’s mini-city would revitalize a “blighted” area in Prospect Heights, where brownstones sell for more than $1 million.

Braun pleaded with the judge to drop the case as quickly as he could.

“It would be torture to allow this case to move forward,” he said.

Should this case get dismissed, opponents are prepping another battle, this time against the state’s supposedly flawed environmental impact statement.

The Brooklyn NY Paper: http://www.brooklynpaper.com

His domain to the end: Newark NJ Star-Ledger, 2/8/07

Long Branch holdout, 93, dies at home

By Mark Mueller

Though he could barely walk, Albert Viviano ambled to protest meetings and rallies in and around Long Branch. Later, when he couldn't walk at all, he rolled to them in his motorized wheelchair, a little American flag in one hand, a placard in the other.

At 93, with his heart slowly giving out, Viviano was motivated by one thing: the right to die in his home.

The city of Long Branch wants that home, one of two dozen converted bungalows local officials have been trying to seize for three years to make way for new development.

The battle continues, but not for Viviano. On Sunday, he died in his bed, two blocks from the boardwalk he cherished, in the neighborhood he had known for 75 years.

"He won," said Viviano's daughter, Estelle Toscano. "My father won because he died in his own house."

It's a refrain heard repeatedly in Viviano's tiny neighborhood, which has become something of a symbol in one of the most closely watched disputes over eminent domain in the nation.

Viviano, who spent his teenage years fitting wheels onto horse-drawn wagons in Newark, was the oldest among the homeowners who have refused to sell to the city. And while it was clear his health was failing, he insisted on attending meetings and rallies, creaky body be damned.

"He just uplifted everyone," said neighbor Lori Ann Vendetti, 45, a member of the coalition opposing Long Branch's plan. "You have some bad days in this fight, and then you'd see Al coming out with the little flags on his wheelchair and the button on his jacket and his poster. It was an inspiration."

What drove Viviano is what drives most of his neighbors: a deep love of Long Branch and a firm belief that government should not have the right to take a home indiscriminately.

"He couldn't believe this could happen in America, how someone who fought in the war, had a business and gave back to his country could just lose his home," Vendetti said. "He was fighting with all his might against that."

The courts, so far, have sided with Long Branch. In June, a Superior Court judge ruled the city was within its right to take the homes along Marine Terrace, Ocean Terrace and Seaview Avenue.

The plan calls for the homes to be razed in keeping with a $1 billion redevelopment project that has already transformed parts of the city.

The residents are appealing the June decision, saying they will take the fight to the U.S. Supreme Court if they have to. They don't want to envision an alternative.

Most of them have been part of the neighborhood for decades. Few knew it as well as Viviano.

"All my life, he's been a fixture there," said William Giordano, 42, whose back yard faces Viviano's home on Marine Terrace. "The neighborhood will never be the same without him."

Like so many in the area, Viviano came from Newark. When people asked what he did for a living, he told them he was a blacksmith. His daughter said that description wasn't quite right, though, because Viviano never worked with a horseshoe in his life.

In his youngest days, before the automobile had infiltrated every part of society, Viviano made and installed wagon wheels while working for his father, Toscano said. Later, he did metalwork on trucks.

The business did well enough to allow Viviano's father to buy the modest three-bedroom bungalow on Marine Terrace in the 1920s. It was a fair-weather place then, with a broad, breeze-catching porch.

The Vivianos would head down from the city on weekends. Until the construction of the Garden State Parkway, it could be a rough trip, the bad roads wreaking havoc on the flimsy inner-tube tires in use at the time.

"He told us they'd always get flat tires, sometimes two or three flats on one trip," Giordano said. "So they'd have to keep pulling over and patch them up."

To Viviano, the journey was worth it. Neighbors said he'd walk the beach - and later the boardwalk - several times a day, chatting with passersby and enjoying the ocean views. With his wife, Mary, he'd sit out on the porch, calling out to neighbors and regaling neighborhood kids with stories.

After retiring 26 years ago, Viviano moved down to Marine Terrace full-time, puttering around in his small basement workshop and dreaming up little inventions. Unsatisfied with a spoon to scoop out jelly from a jar, he hammered out a utensil with a little less swell, his daughter said.

Long before televisions came with shut-off timers, Viviano fashioned one by stripping the timer from his washing machine.

"He had an engineer's mind," said Toscano, who must now decide whether to keep up her father's fight. "He did things to the detail."

And if he didn't get it quite right the first time, he didn't give up.

Friends said he took that spirit into the struggle with Long Branch.

"He loved Long Branch, and he loved his home, and he couldn't see letting anyone take it away from him," said Anna DeFaria, 81, a friend and neighbor. "This fight meant everything to him. He was our rock."

The death of Mary Viviano two years ago coincided with Viviano's own decline in health.

Over time, he traded a cane for a wheelchair and accepted in-home help on a 24-hour basis. Still, the fight to save his home consumed him.

"He would say, 'This is my home. I want to die here,'" DeFaria said.

No one would have blamed Viviano for taking it easy, letting the younger residents take on the city. But Viviano wouldn't have it.

"He could have just given up, but he didn't," said Fifi Vendetti, 77, Lori Vendetti's mother. "He fought hard for our cause. We hope we don't let him down. We hope we win, and we hope he looks down upon us when that happens."

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

GOP says change to rule a proxy for eminent domainGaithersburg MD Business Gazette,2/7/07

But Senate Democrats prevail in technical change to the chamber’s procedure

By Douglas Tallman

[Maryland] Senate Democrats on Tuesday pushed through a technical change in the way the chamber handles legislation — a proxy war, Republicans maintain, over whether local governments should have the right to seize property for business projects.

‘‘They’re changing the rules for one bill, and I don’t think that’s the way to do things,” Senate Minority Whip Allan H. Kittleman said.

The change forbids senators from altering a bill into a proposed constitutional amendment. Constitutional amendments must pass both the Senate and the House with a three-fifths majority and be approved by voters.

During the 2006 session, lawmakers were prepared to pass limitations on the government’s power of eminent domain. Democrats wanted the limits in statute; Republicans wanted the limits in the constitution. When the GOP began winning Democratic converts during floor debate, supporters of the bill pulled it from consideration.

For the 2007 session, Senate Majority Leader Edward J. Kasemeyer (D-Dist. 12) of Columbia offered a rule change that no bill could be amended into a constitutional amendment. It passed on a party-line vote.

Democratic leaders, however, said the eminent domain fight had nothing to do with the proposal and everything to do with procedure.

‘‘If there is a constitutional amendment, it should go through the committee first,” said Sen. Lisa A. Gladden (D-Dist. 41) of Baltimore.

Each General Assembly chamber has a tiny book that provides the guidelines on how legislation moves through legislature. Very little of it changes year to year, but Republicans have used it as a battleground to assert their rights.

This year, the GOP offered three proposals of its own, and each was rejected Tuesday.

‘‘This was ‘Stomp on Minority Rights Day,’” said Sen. Alexander X. Mooney (R-Dist. 3) of Urbana.

One proposal would have allowed the minority party to make committee assignments for its members. On a voice vote, the chamber decided to make no change, with the pledge that the Democrats would consult the Republicans on assignments.

A party-line vote also refused to change the number of senators needed to end debate, now at three-fifths. Sen. Andrew P. Harris (R-Dist. 7) of Cockeysville proposed increasing that to two-thirds. That would have meant 19 senators would have to cut off discussion on a topic instead of the current 16. Of the 47 senators, only 14 are Republicans.

Anyone can be in the minority in a debate, Harris argued, whether the issue is gun rights, abortion or the death penalty.

Judicial Proceedings Chairman Brian E. Frosh (D-Dist. 16) of Bethesda said three-fifths was reasonable and moderate.

Kittleman (R-Dist. 9) of West Friendship also proposed requiring a committee vote for every bill. He said the public gets short-changed when they testify for a measure but a committee never votes on the bill.

Senate President Thomas V. Mike Miller Jr. said a panel could have several reasons for not voting on a measure. He recalled a House committee chairman who routinely killed Senate bills. When he was Judicial Proceedings chairman, Miller (D-Dist. 27) of Chesapeake Beach said, he ignored House bills to get the House chairman to change his tactics.

That rule was voted down on a largely party-line vote.

Later, Miller said, a bill that doesn’t get a vote in committee might not be legitimate.

‘‘Or maybe a senator or delegate sponsored a bill and didn’t work ... hard enough to get a vote,” he said. ‘‘Probably from some backbencher who has done nothing and not worth the powder to blow him or her up with.”

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

Family continues fight to stop Newmarket from using eminent domain: Foster's Daily Democrat, Dover NH, 2/7/07

By Michael Goot

The family whose land the [Newmarket NH] school district is considering taking through eminent domain to build a new school campus tried to block any such attempt during the town's deliberative session on Tuesday.

School officials are considering using 13 acres of wooded property behind a home at 231 South Main St. to construct a $20.6 million, 100,000-square-foot high school and allow all the town's schools to be together in a campus-style setting. The property belongs to Mike Weit and Debbie Hale, a married couple who do not wish to sell.

Hale tried to amend two separate warrant articles to bond $1,279,200 for architectural and engineering fees to design the new school and to appropriate up to $1,650,000 to purchase land. Hale wanted language that would have required the district to build a school "only on land purchased by the district or town by agreement with any selling landowner."

"How would you feel if you suddenly found out that town officials decided to take over your property and build a school on it without your knowledge or your consent and they wonder why we're upset," Hale said before a crowd of more than 60 people at the school district's deliberative session at Town Hall.

"We have been physically ill every day for the past two months. We have had to hire an attorney to protect our rights in a town that has been home to four generations of our family," she added.

Hale said the family simply does not want to sell regardless of the money. The couple intends to enjoy the land with their horses when they retire. She promises never to give up this fight.

The amendment failed both times it was offered. Following the vote on the warrant article to appropriate $1,650,000 from capital reserve funds to buy land, Hale asked for a recount. Moderator Bob Madea rejected the idea but a majority vote overruled him. Hale then asked for a secret ballot and her proposed amendment narrowly failed 34-31.

School Board Chairman Chris Hawkins said while the school district has not ruled out using eminent domain to accomplish its expansion plans, it has not evoked this option. First, the district must make a good-faith offer for the land. The initial appraisal was $52,000. However, Hawkins said on Tuesday the district has since received an updated higher number.

"I don't want to get into the specifics of it because we have not had an opportunity to share it with Ms. Hale and Mr. Weit," he said.

Foster's Daily Democrat, Dover NH: http://www.fosters.com

Eminent domain ruling overturned: Cincinnati OH News Record, 2/7/07

Impact of decision on Calhoun Street project unknown

By Ian Sexton

The Calhoun Street Shell gas station/Subway restaurant expansion held its grand opening only days after a Jan. 26 ruling in Ohio's First District Court of Appeals overturned the City of Cincinnati's use of eminent domain. This ruling overturned the original court ruling allowing the city to purchase the land where the former Hardee's and Arby's buildings stand on Calhoun Street.

The ruling cited the Norwood case, which was decided by the Ohio Supreme Court, as precedent.

The prospective retail tenants want to wait and see what the development plan will be, said Gerry Siegert, University of Cincinnati's associate vice president for Financial Affairs in the Office of the Controller.

"Everything up there is contingent on setting a plan ... until there is a development plan, retail tenants are slow to make a decision," Siegert said.

Due to the eminent domain reversal, the project is not able to expand as far west as originally planned, Siegert said.

The impact of the Subway/Shell station expansion is being determined, according to Siegert.

There are a number of investors and retail tenants who are waiting to commit to the project, but want to be sure of its future, according to Siegert. "It is something that is extremely complicated, something like the eminent domain can derail it," Siegert said. "To the extent, there has been difficulty developing an economically viable plan."

Matt Bourgeois, director of Clifton Heights Community and Urban Redevelopment Corporation [CHCURC] said he agrees. "We are going back to the drawing board with this project ... They want a viable development plan for the entire site," Bourgeois said.

It is unknown where the project goes from here. The city has 45 days from the date of the ruling to file for an appeal. "Without a complete development plan, it is hard to say what the effect of the eminent domain ruling will be," Siegert said.

CHCURC is waiting for the go ahead from UC, since the university is a financial backer of the project.

"We're ready to move whenever," Bourgeois said. While the project is being delayed, there are other things to work on in the mean time, Siegert said.

The City of Cincinnati is party to the eminent domain ruling. Scott Stiles, an assistant city manager, said legal counsel for the City of Cincinnati is still deciding whether to appeal.

"It rests solely in [the city's] hands," if they want to appeal the domain ruling, Bourgeois said.

The costs of the continual delays are minimal. Two costs, land holding interest and predevelopment costs, are associated with such project delays, Bourgeois said.

"Most of the land cost is in the ground, everything else has already been bought," Siegert said.

UC has funded the project with loans made from its endowment, according to Siegert. The endowment receives interest made on the loans. A few years ago the Board of Trustees voted to allow this investment because the interest from the loans would go back into the endowment, Siegert said.

Bourgeois and Seigert said they feel the investment is not in danger of being lost, but at the same time want to make the project as safe a bet as possible. "Nothing is a sure thing in real-estate," Siegert said, referring to the risk of investing in the project.

CHCURC and UC point to development of the Calhoun Street project as a positive one for the community.

"I just think this is something that the university really, really wants to see happen," Siegert said. "No one likes seeing the condition of the property the way it is right now."

Cincinnati OH News Record: http://media.www.newsrecord.org

Developer backs trailer residents in eminent domain fight: Hackensack NJ Herald News, 2/7/07

By Suzanne Travers

Robert D. Bonanno, 80, isn't a man with a plan, he's a man with lots of plans – at least a half dozen rolled up like posters in a tall cardboard box he keeps under his desk.

Since 1948, when he started a car repair shop along a two-lane road that is now bustling Route 46, Bonanno has been working on a strategy that has turned an old horse barn into a 5,000-square-foot building for his family truck company and grown a little plot of land into an 11-lot, 6.1-acre parcel with an assessed value of nearly $5 million.

Seven businesses employing about 60 people occupy the land, Bonanno said.

"It was nothing when I bought it," he said of his first real estate purchase, in the mid-1950s. "Route 46 was in its infancy."

One of Bonanno's plans, the purchase of Brown's Trailer Park in the mid-1980s, brought him to appeals court last Tuesday, when his attorney, Jan Brody, led the fight against the borough of Lodi's attempt to seize 20 acres of land using eminent domain. Some 200 residents of two trailer parks slated to be seized fought alongside Bonanno under the banner organization Save Our Homes.

The borough [of Lodi] argued that Brown's and neighboring Costa Trailer Court are blighted and could be taken for development into upscale senior housing and a strip mall.

The seizure would be in the public interest because it would increase revenues, allowing the borough to reduce property taxes, Mayor Gary Paparozzi has said.

But Bonanno has his own plans for redevelopment. He plans to lease two acres to a convenience store chain and gradually phase out the trailer park.

Bonanno bought Brown's in 1986 with redevelopment on his mind. Land along the highway had appreciated in value. He was using the lot behind his truck company, GoodYear Motors (Bonanno means "good year" in Italian), to store trucks, which he considered a waste of the valuable property.

First, he planned town houses, then a medical building with apartments. An architect who was helping him draw up plans suggested the town wouldn't approve them without an alternate access route for residents, one that wasn't off Route 46. They could create that route through the adjacent trailer park, so Bonanno purchased it for $950,000, he said.

An oddity for North Jersey, the park was built in the 1930s but grew after World War II, when entertainers - "show people," Bonanno called them - crisscrossed the country on tour and stopped to refuel outside New York City. The Brown brothers began selling gas, propane, water and mobile home parts, and to accommodate demand for a place to stop and sleep, they lay down cement "trailer pads," to prevent trailers from sinking, on top of an old landfill.

Bonanno said he asked the town for help in finding alternate housing for the low-income residents living in the trailer park, but learned he could not relocate tenants or raise their rents beyond the borough's rent-control rules. So he developed a new plan: to let the trailer park die a death of attrition, without pushing anyone out. As residents moved out, he shut the vacated trailers down.

"We had 74 but I've been in a program for years and years to diminish that," he said. "We've got it down to about 40 homes."

Gradually, he has shifted tenants from one side of the park to the other to create a parcel fit for development. He convinced the borough to sell him the dead-end strip of Boyd Street that cut between his truck lot and the trailer park. A small lot the Brown brothers had sold off for a diner effectively cut his property in half, so when the Mexican restaurant there went up for sale, he bought that land, too.

Bonanno cleared enough land, about two acres, to sign a contract with Quick Chek Corporation of Whitehall Station to lease two acres for $25,000 a month. He said the eminent domain case created legal limbo, but Quick Chek was willing to wait until the case is resolved. Steven Rash, project manager for Quick Chek, said the formal lease and payments would not begin until the borough has approved the store's plans for the site.

Bonanno's plans for the truck parking lot still lack detail, but will be "whatever will come in that's tasteful for the town and myself," he said. He has yet to take any of his plans before the Lodi planning board.

Catherine Weiss, an attorney with the New Jersey Public Advocate's Office, which filed a friend of the court brief in support of Save Our Homes, told several members who attended the court hearing that their fight was unusual in part because Bonanno had the means to mount a well-funded legal challenge. Most people affected by eminent domain do not have the money to fight municipalities, she said.

"They have a rightful cause," Bonanno says of Save Our Homes. But he also notes that the borough's land seizure would damage the businesses on his property.

"They do not pay you for your business, they pay you for the value of the real estate," he said. "I've been here for 57 years. I've generated a lot of goodwill. I have a big area to park trucks. Many towns won't have me."

Bonanno, who looks decades younger than his age, says eventually his children and grandchildren will take over and run the property.

"I'm a great-grandfather and I don't have that much time on Earth," he said, "but my plans have always been that this would be passed on to my family."

Hackensack NJ Herald News: http://www.northjersey.com

Eminent domain bill introduced: Ft Collins CO Coloradoan, 2/7/07

By Jason Kosena

A bill requiring government agencies seeking to exercise the power of eminent domain to notify county commissioners, property owners, residents and owners of business concerns in the area being targeted was introduced in the Colorado Senate this week.

The bill, sponsored by Sen. Steve Ward, R-Glendale, and Sen. Lois Tochtrop, D-Thornton, will now head to the Senate Committee on Local Affairs, which Sen. Bob Bacon, D-Fort Collins is chairman.

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

Homeowner, Arlington settle eminent domain case before trial: Ft Worth TX Star-Telegram, 2/7/07

Associated Press

The city of Arlington and a homeowner's attorneys settled what could have been the first Dallas Cowboys stadium eminent domain case to go to trial.

The city agreed to pay Johnny Johnson $100,000 for his home, said Denise Wilkerson, an Arlington assistant city attorney. The settlement still needs the City Council's approval.

Johnson's attorneys had argued the home was worth $106,000, which they said was the market value set by an appraiser Johnson hired.

The city had offered Johnson $75,000 for his house and land. The Tarrant Appraisal District had valued the property at $24,000 for taxing purposes.

Johnson lived in the house for 16 years before the city took possession in late 2005 along with other property needed for the new Cowboys stadium, scheduled to be finished in 2009.

Several landowners whose property has been acquired for the stadium rebuffed the city's offer and went to court. The city withdrew 10 eminent domain cases, and five lawsuits have been settled since the fall. One is pending in state district court, and 75 are pending in Tarrant County Court.

Johnson, who has not spoken publicly about his case, already had access to the $75,000 the city had offered him. But it is not clear whether Johnson had drawn any of that money before the settlement, reached after a Monday pretrial hearing in which the judge denied the city's request to stop Johnson's appraiser from testifying.

Construction started last year for the 75,000-seat, retractable-roof stadium, two years after Arlington voters approved paying for half of the original $650 million price tag by raising sales, hotel and motel, and car-rental taxes.

Ft Worth TX Star-Telegram: http://www.dfw.com/mld/startelegram

Atlanta drops eminent domain battle: Business Week, 2/6/07

By Greg Bluestein

It didn't take long for outrage over Mark and Regina Meeks' story to take root all across Georgia.

After officials in the suburban Atlanta city of Stockbridge tried to condemn the Meeks' tiny flower shop and supplant it with a town center, the couple spent two years and more than $200,000 fighting the move in court.

Their battle became a symbol of Georgia's budding movement to rein in the government's power to seize property. And this week, the owners could finally claim victory: The city said it is dropping its battle to condemn Stockbridge Florist and Gifts.

"Everyone was saying, 'You can't fight City Hall. You can't do this. The government's going to win every time,'" Mark Meeks said. "But it felt like we were right all along - and we stuck to our guns. And then the judicial system bore it out."

The couple's story was one of many recited in state capitols across the nation to support claims that governments were abusing their eminent domain powers. The focus on the issue was intensified after a 2005 U.S. Supreme Court ruling granted local governments more power to seize property for economic development.

The court's 5-4 decision in a Connecticut case did more than spur debate. It prompted state legislatures to tighten the rules that govern how local governments can seize private land. By November, voters in 13 states faced ballot issues on property rights, making eminent domain the most popular ballot issue of the year, according to the National Conference of State Legislatures.

Last year, during a debate over how to limit the government's eminent domain power, Georgia legislators repeatedly cited the floral shop.

A few weeks later, lawmakers passed a constitutional amendment that limits the government from using the powers for economic redevelopment and requires elected officials - not unelected housing authorities - to make decisions on seizing land.

On Election Day, the amendment passed with almost 83 percent support.

The law, however, was not retroactive and the Stockbridge case still dragged on in court.

Meeks had purchased the shop 23 years ago, when Stockbridge was a one-stoplight town. As the city blossomed into a booming Atlanta suburb, its leaders decided to build a retail and city government complex where the floral shop stands.

After the city condemned Meeks' land and nearby parcels, the floral shop's neighboring businesses slowly withered away. But the Meekses refused to pack up, hoisting a sign on a store window that demanded: "Protect Private Property Rights."

Their legal battle eventually worked its way to the Georgia Court of Appeals, which last week upheld a lower court's ruling that the city failed to prove the property would be used for public purposes.

Stockbridge Mayor R.G. Kelley quickly decided not to press the case farther, saying instead the city will build the development around the floral shop.

Meeks said the decision is more than a relief. It's a sign that anyone - even the owner of a tiny floral shop - can fight the government and win.

"It really restores our faith in the judicial decision," Meeks said. "Now we're going to put our lives back together."

Business Week: http://www.businessweek.com

County to use eminent domain in land dispute: Wilkes-Barre PA Citizens Voice, 2/6/07

By Michael P Buffer

Luzerne County [PA] is using eminent domain to end a dispute with a property owner who bought Plymouth land near the levee built along the Susquehanna River in 2002.

The Luzerne County Flood Protection Authority voted Monday to use eminent domain to acquire roughly 5,100-square-feet of property at 430-432 Beade St. Eminent domain is a legal process that allows the taking of private property for a public purpose in exchange for fair market compensation.

The county and property owner Walter Sims of Shickshinny have struggled to agree on a compensation amount. Last week, Sims protested the dispute by blocking the walkway along the levee with plastic fences.

“I don’t want to stop people from walking,” Sims said during Monday’s authority meeting. “I felt real bad about doing it. ... I’m not removing it.”

“We’ll take the fence down,” county Commissioner Todd Vonderheid responded.

The authority held a special meeting Monday to take the property through eminent domain. The county will make a compensation offer after getting a new appraisal of the property with the levee, and if the county and Sims still can’t agree on compensation, a court-appointed board will decide the amount, Solicitor Jim Blaum said.

An appraisal of the property with the levee estimated it was worth $4,900, county Engineer Jim Brozena said. Sims bought the entire property for $2,041 on Oct. 31, 2002, records show.

Sims said he rents the two-unit house on the property, which was 50-feet wide and 200-feet long before the eminent domain action.

The county built the levee on the property before Sims bought the property in a sale of properties that owe back taxes, Brozena said. The son of the previous property owner gave the county permission to build the levee while she was in a nursing home, Brozena said.

Vonderheid said the county should have bought the property when it was up for sale in 2002.

Construction on the Wyoming Valley Levee Raising Project began in spring 1997, and a $145 million phase of the project was done in January 2003. That phase added new levees on the West Side from Wyoming to Plymouth.

Wilkes-Barre PA Citizens Voice: http://www.zwire.com

County supports state reform on eminent domain: El Paso TX Times, 2/6/07

By Erica Molina Johnson

Commissioners Court on Monday passed a resolution to support state legislation and a constitutional amendment that would spell out strict limits of eminent domain, against the arguments of one court member.

The issue was also added to the county's legislative agenda.

"The county is the umbrella governmental body with six municipalities and nine school districts under the county," said County Judge Anthony Cobos, who asked for the resolution. "If we don't have an opinion on it, who will?"

The resolution, which passed with a vote of three to two, calls for the Legislature to enact legislation and initiate a constitutional amendment that would define public use, limit eminent domain authority and prohibit the condemnation of private property for private development purposes.

Cobos and commissioners Luis Sariñana and Dan Haggerty voted in favor of it. Commissioners Veronica Escobar and Miguel Terán voted against it.

"I have no problem with sending this to the voters," Escobar said. "My biggest problem is putting it on the legislative agenda ... We have all these amazing needs, and eminent domain is not something we should be utilizing our resources for." She argued that passing such a resolution and adding it to the county's legislative agenda sends a message to the city of El Paso, which has been mired in the eminent domain issue as it pursues a redevelopment of Downtown.

"Instead of looking for areas of division we need to look for areas of unity, and that's not to say I'm not in favor of property rights," Escobar said. "Now we need to repair some damage with people who do support the Downtown plan."

Cobos countered that the resolution does not specify any governmental body or project.

"I want the state of Texas to know we're looking at this, are concerned, are an interested party and are in favor of a constitutional amendment," he said.

El Paso TX Times: http://www.elpasotimes.com

Changes to eminent domain law would favor property owners: Salt Lake City UT Deseret Morning News, 2/5/07

By Amelia Nielson-Stowell

For the second year in a row, changes to the controversial eminent domain law are again being pushed by legislators, this time allowing more latitude for property owners.

At least two bills that would alter the law, which was amended last year during the 2006 legislative session, have already raised concerns among local municipal leaders.

Last year's SB117 amended the state eminent domain law that required city or county councils to approve a government's taking of private property for public use. The measure was amended to include a provision that would prohibit eminent domain for trails or paths meant for walking, hiking, bicycling, equestrian or other recreational uses.

But HB334 excludes emergency access roads and certain parks from eminent domain and "expresses legislative intent" on last year's amendments. The bill passed the House Government Operations Committee Thursday with a 6-2 vote.

Rep. Aaron Tilton, R-Springville, is sponsoring the bill and said it further clarifies those recreational uses and closes loopholes, such as defining a public park as a trail-like walking space.

"We don't take property for recreational purposes," Tilton said. "I don't know if, as a legislator, I'm going to wait for the courts to decide that."

Tilton used litigation between the city of Mapleton and a private property owner as an example. That years-long case revolves around Maple Mountain landowner Wendell Gibby, who does not want his 120-acre parcel of land to be used by the Utah County city as an access route to the Bonneville Shoreline Trail. Most recently, the city has attempted to condemn a tract of Gibby's land for a water line.

"I hope that none of you have ever gone through hell to have your land condemned by the city," Gibby told the committee. "Eminent domain is never a fair fight, gentlemen. The city has tax dollars to beat you up with. ... Cities have needs and they have wants, and the wants category should not be used for eminent domain."

Mapleton Mayor Jim Brady, who opposes the bill, voiced concerns over solving the matter through legislation rather than the court system.

"It sets a very bad precedent, in my opinion," he said. He added the city needs the 10-foot wide, 2,000-foot-long trail to connect the park systems throughout the east bench and for emergency access.

Meanwhile, Rep. Steve Urquhart, R-St. George, is sponsoring HB365, which was held at the House Government Operations Committee Monday.

The bill adds further protection for property owners, like authorizing a property owner to bring a civil action against a city that violates requirements, granting any court costs, attorney fees and relocation expenditures accrued and imposing prerequisites on a city before it acquires property through eminent domain.

"There are very legitimate concerns when the government steps in and takes your property," Urquhart said Thursday. "I know this is going to be a controversial issue, but I think I have broad enough shoulders to deal with both sides."

Salt Lake City UT Deseret Morning News: http://deseretnews.com

Miss. Senate passes eminent domain bill: Biloxi MS Sun Herald, 2/6/07

Associated Press

The state Senate on Tuesday passed an eminent domain bill that aims to restrict the government's ability to take private land for economic development.

The bill would "prohibit the use of the power of eminent domain except for a direct public use; and related purposes."

Eminent domain laws have been considered in several states since 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.

Senate Judiciary A Committee Chairman Charlie Ross, R-Brandon, said the Senate bill would be more restrictive than federal laws.

"Mississippi law is not allowed to be less restrictive, but it is allowed to be more restrictive," Ross said. "The taking of land would have to satisfy federal laws and Mississippi laws."

The Senate bill would only allow the use of eminent domain for purposes such as utilities.

On Jan. 3, the state House 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.

On Jan. 12, the House approved a constitutional amendment 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. If that amendment bill passes, the proposal would be placed on the Nov. 6 ballot.

The bills are Senate Bill 2152, House Bill 300 and House Concurrent Resolution 18.

Biloxi MS Sun Herald: http://www.sunherald.com


To take, or not to take? Telluride CO Daily Planet, 2/4/07

By Pat Healy

About three weeks from today, a rural Colorado jury will slap a price tag on the 570-acre Valley Floor property, capping a massive eminent-domain taking. But across the country, battles rage over how much power governments should have to seize private land.

And right now, private-property activists are riding a cresting wave.

They are leading a backlash against eminent domain in state capitals, on local ballots and in the press, fighting to limit local governments from condemning private land and taking it for public use.

The Virginia-based Institute for Justice calls abuses of eminent domain a “national plague.” Colorado has passed a law restricting the use of eminent domain. This November, voters in Arizona passed a ballot measure that puts strict limits on the use of eminent domain and gives affected property owners more power in compensation.

“What we’re hearing is an overreaction,” said Lora Lucero, an attorney with the American Planning Association. “A lot has happened, and it’s mostly happening in the state legislatures.”

To find the source of this backblow, head east, to the northern shores of the Long Island Sound and the port town of New London, Conn. Head right to the doorstep of Susette Kelo’s pink wooden house.

In February 2005, the Supreme Court ruled that New London could condemn the modest homes of Kelo and her neighbors to build townhouses, a hotel and shopping center. The town argued that it could take the land because taxes generated by economic development would ultimately serve a public good.

But the Kelo ruling sparked a political landslide in towns across the country, property lawyers said. Here, the government was not grabbing land to build a highway or public hospital. It was condemning some private homes as blighted, then selling the land to build upscale private developments.

The power of eminent domain flows from the Fifth Amendment to the Constitution. Known as the “takings clause,” the amendment says that private land cannot be taken for “public use without just compensation.”

Using that power, governments have seized land to build parks and interstates, erect electric towers and thread water mains under the ground.

But homeowners across the country saw Kelo as a stark threat to their property rights, planners and lawyers said. The case broadcast eminent domain into the public imagination like the Massachusetts Supreme Court had done with gay marriage a year earlier.

Legislatures in 45 states took up bills to limit eminent domain.

Twenty-seven states signed those into law. The laws vary, but many forbid cities from seizing private property for private development or to generate taxes. Others went further, prohibiting governments from using eminent domain to spark economic development.

Voters in at least nine states passed ballot measures that put additional limits on eminent domain. State supreme courts in Michigan and Ohio made it harder for governments to take private homes. And state legislatures overrode vetoes of eminent-domain reform bills.

In Colorado, a proposed amendment to the state constitution that would have strictly limited eminent-domain powers sunk last spring before it could reach a vote. But a law passed last June says that governments have to provide “clear and convincing evidence” that a taking is necessary to eliminate blight.

“It puts the burden on the courts to see whether there’s truly blight,” said Bob Hoban, a Denver lawyer who helped draft the Colorado bill, and who represents property owners. “That was a big improvement in terms of property rights. It requires the courts to take a closer look.”

Hoban said he has dealt with three eminent domain cases since the Colorado law was passed. In all three, the government seized the property it wanted, but homeowners were paid suitably to relocate, Hoban said.

Hoban said the state Senate will introduce a bill this year that forbids governments from condemning underdeveloped land for open-space purposes unless the land will be used as a park or agricultural terrain. In the past, Hoban said, governments have taken land for open-space uses, and then built on it.

Despite the limits on government’s power to condemn land, Lucero said she thinks the pendulum will eventually swing back if governments become unable to redevelop blighted areas in urban cores.

“I think they’re going to revisit in five or six years and say, maybe we’re going to need to give this back to the community,” she said.

Telluride CO Daily Planet: http://www.telluridegateway.com

Delegates astir over eminent domain proposal: Hampton VA Virginian-Pilot, 2/5/07

By Harry Minium

Del. Robert Bell speaks plainly about why he is trying to amend the [Virginia] state constitution.

"We want to make it more difficult for government to take your home," said the Republican from Albemarle County.

Bell and others believe the rights of homeowners have been abused around the state, by the Virginia Department of Transportation, by cities and by housing authorities.

He is among nearly a dozen legislators who have proposed legislation to limit eminent domain, or the power of government to go to court and take private property.

The most hotly contested legislation is expected to be his constitutional amendment - HJ723 - which goes to the House floor this week.

It forbids government from taking land for anything other than a "public use," such as a school or a road.

It also forbids government from taking a home that isn't blighted in a redevelopment area and outlaws the taking of land for economic development purposes.

He has worked closely with Del. Johnny Joannou, D-Portsmouth, who said eminent domain laws need an overhaul.

Chip Dicks, a real estate attorney and former Democratic delegate from Colonial Heights, said Bell's fix is too vaguely worded and goes too far. While saying homes can't be condemned for economic development reasons, the proposed amendment doesn't define "economic development," he said.

"Any taking, for a road or for a school, is probably going to improve property values," Dicks said, which courts might interpret as economic development.

"This amendment is going to send hundreds of cases to the courts," he said.

The U.S. Supreme Court in 2005 ruled that homes that are not blighted can be condemned for economic development if state law allows it.

In response, dozens of states have rewritten their eminent domain laws. An effort by Del. Terrie Suit, R-Virginia Beach, to clarify Virginia's law during last year's session ended in failure, as both sides clashed on how far to go.

Housing rights advocates and local officials have worked to craft a compromise, with several meetings occurring in the offices of Attorney General Bob McDonnell.

"We continue to meet," Bell said. "We hope to reach a compromise before the session is over."

Much of the debate has focused on the Norfolk Redevelopment and Housing Authority.

Proponents of the status quo point to the city's successful revitalization of downtown, Ghent, Broad Creek and Ocean View, and say eminent domain helped.

Even though Norfolk has claimed some housing that wasn't blighted, Dicks said there has been no abuse about which he knows.

Yet opponents - including Jeremy P. Hopkins, a counsel with the Norfolk law firm of Waldo & Lyle - say there have been abuses in Norfolk.

In association with the Virginia Institute for Public Policy, Hopkins wrote a paper titled "The Real Story of Eminent Domain in Virginia."

It has become a bible of sorts for eminent domain conservatives. Norfolk's housing authority is the culprit in much of the paper, which also criticizes other cities and VDOT.

Amendment opponents warn that building the East Beach community in East Ocean View might be impossible under Bell's bill, because it forbids taking non blighted homes.

In East Beach, 1,600 residences in a high-crime community were demolished by the housing authority. Developers are building 750 upscale houses in their place.

Ocean View native Steven D. Anderson, an attorney for the Arlington-based Institute for Justice, said regardless, private property rights should be protected.

"Development is not going to stop under those circumstances," he said.

"And even if it does, I'd rather live in a state that recognizes you don't have to give up your property if you haven't done anything wrong."

Hampton VA Virginian-Pilot: http://content.hamptonroads.com

Flats Property Owners Lose Eminent Domain Appeal: NewsNet5, Cleveland OH, 2/5/07

There's a new development in the ongoing battle over property in the Flats [in Cleveland OH].

Thirteen owners of bars, restaurants and parking lots have lost another appeal to stop the demolition.

On Monday, city officials said no to stopping eminent domain on the Flat's east bank.

Cuyahoga County Port Authority and builder Scott Wolstein plan to redevelop the area but remaining business owners said they're not being treated fairly and are not getting fair offers for their businesses.

NewsNet5, Cleveland OH: http://www.newsnet5.com

County flood authority will take Plymouth land by eminent domain: Wilkes-Barre PA Citizens Voice, 2/5/07

By Michael P. Buffer

The Luzerne County [PA] Flood Protection Authority voted today to use eminent domain to acquire roughly 5,100 square feet of property in Plymouth with a levee built in 2003.

Walter Sims, owner of the property at 430-432 Beade St., installed plastic fencing last week to block the walkway along the levee. He has been protesting an ongoing dispute over compensation for his land used for the levee.

Eminent domain is a legal process that allows condemning private property for a public purpose in exchange for fair market compensation.

The county will make a compensation offer after getting a new appraisal of the property, and if the county and Sims still can't agree on compensation, a court-appointed board will decide the amount, Solicitor Jim Blaum said.

Wilkes-Barre PA Citizens Voice: http://www.citizensvoice.com

Owners want $12M for land used by feds claiming eminent domain: San Jose CA Mercury News, 2/5/07

Associated Press

Land owners seeking $12 million from the federal government for taking property where they planned to build luxury homes and golf courses outside Coalinga will take their case to a jury this week.

The U.S. Department of Energy used eminent domain four years ago to add a high-tension electrical wire after the state's 2000-01 energy crisis. Owners David Wood and Donald Devine sued two years ago, claiming the power line zapped their plans to build more than 1,000 houses and at least one golf course.

Wood, Devine and Harris Ranch owner John Harris have been thinking of building houses or a golf course in the area since 1976, Wood said. The land is currently zoned for agriculture.

A six-person jury is set to hear the case in U.S. District Court. The government offered to pay the owners $85,000, which it said was the appraised value of the three properties.

Federal officials said development in that area was unlikely because there's little water and it is too far from a major city. Nearby Coalinga, which is about 70 miles southwest of Fresno and 194 miles south of San Francisco, is best known for a damaging earthquake in 1983.

The land along the San Joaquin Valley's arid west side is already getting its best use for cattle grazing, federal officials said.

San Jose CA Mercury News: http://www.mercurynews.com

How to Eliminate Eminent Domain: The Progress Report, 2/07


By Fred Foldvary

Eminent domain is the power of government to forcibly take private real estate from the title holders. Under the Constitution of the United States, the Fifth Amendment limits the power of eminent domain, stating: “nor shall private property be taken for public use, without just compensation.” The term “public use” had been interpreted to mean a governmental use, but more recently, private property has been taken by government to transfer it to another private owner who allegedly would use it for a better use, a “public benefit,” a practice which received the approval of the U.S. Supreme Court in the case of Kelo v. City of New London, 545 U.S. 469 (2005).

The argument for eminent domain is that when the government builds something long and skinny, such as a road, those who refuse to sell their land make it impossible or very costly to place the road elsewhere or go around the holdout. But eminent domain has also been used to redevelop a neighborhood to build shopping centers and better dwellings that pay a higher property tax. Laws that empower governments to declare that an area has “blight” are abused under the concept “blight makes right,” to allow government to declare any location to have “blight,” even places that are undeveloped.

Some Georgists, followers of Henry George, justify eminent domain as a way to maximize the economic rent of a site even if the government collects only a small part of it and most of it goes into the pockets of a developer who kicks out poor folks so that developers can indulge in rent seeking. In my judgement, under pure geoism, the philosophy inspired by the thought of Henry George, the title holder should have complete rights of possession so long as the economic rent of the land is distributed to the community, as the land rent properly belongs to the residents in equal shares, the land value being a creation of the community and of nature, not the exertions of the title holder.

The complete right of possession, conditional only on the payment of the economic rent, would preclude eminent domain. If the government seeks to build a highway and the route has to go through somebody’s land, this should not justify violating the right of possession. In today’s world, government is not just a co-owner of all land but the superior partner, being able to expel the other partner, the private title holder. In my judgment, individual title holders should be the sole holders of the rights of possession. Society may only claim the rent, not the holding of land. But then how can the problem of holdouts be solved?

When either the government or a private developer seeks to build a project that is long and skinny, such as a canal, railroad, highway, pipe, or communications line, this makes the route space more valuable. The value is created not by any action by the title holder but by the need to complete the acquisition of the route. Since the holdout’s land becomes much more valuable, under a geoist system the holdout would pay that much more economic rent to the community. The holdout would compensate society for the social cost of not allowing the project to be built or to make it go around his land. If the holdout refused to make the payment, then the community could properly take the land, but only because their rent is not being paid.

As with any increase in site value and rent, under a proper geoist system, the title holder always has the choice, pay the rent or transfer the site to someone who is willing to pay the rent. If the rent is paid, then one’s rights of possession are absolutely secure. But even under this approach, there is the potential for abuse. Suppose the government seeks to build city hall in some desired location, and the title holder refuses to sell. A structure that is short and thick, like a building, can be built elsewhere. The fact that a government prefers a particular location for city hall does not make the land more valuable. If nasty city chiefs get corrupt assessors to place a high value on the site, this would be public knowledge, as it would be on the books for public inspection. The title holder would appeal, ultimately to a jury of peers. Only if the people agree that this is a proper increase in site rent would the assessment stick.

Eminent domain has been justified because communities do not collect the full economic rent and they therefore don’t know how to obtain property for the completion of routes other than the crude and rude method of taking the site by force, to send armed police into a site and forcibly yank the owner out, and dump his possessions in some far-away lot. Such force is only justified to deal with theft. Under geoism, the economic land rent properly belongs to the community, and if not paid to them, the title holder has stolen property.

Thieves should be punished. But if the title holder is willing to pay to others their due, then he should be supreme on his land. If we are morally equal, a man or woman should have no master, and no obligations to others other than what he or she contracts for, and what others own by natural law and collective creation.

The Progress Report: http://www.progress.org