Port Chester Man's Challenge To Eminent Domain in Court Today: New York NY Sun, 3/19/07

By Joseph Goldstein
A Port Chester man will get his chance today to demand the return of his property, which was seized through eminent domain and is now a parking lot for a Stop and Shop supermarket.

The trial over a commercial property once owned by William Brody is expected to begin today in U.S. District Court in Manhattan, almost eight years after the village of Port Chester initiated a condemnation proceeding against it. The condemnation was part of a plan to make way for a 27-acre redevelopment project. Earlier this year, the U.S. Supreme Court declined to take a different case challenging the project. Both that case and the case going to trial today are being litigated by the Arlington, Va.-based Institute for Justice.

Mr. Brody 's suit challenges whether the steps taken by Port Chester to notify property owners of the condemnation proceedings were sufficient. Mr. Brody has already won before a federal appeals court, which ruled in 2005 that Port Chester violated Mr. Brody's due process because it did not individually notify him, or others, of the condemnation of their land. Additionally, in the public notice it printed to alert residents of the condemnation, the village failed to mention that residents would lose their legal rights to appeal unless they filed papers within 30 days, the court ruled.

The issue remaining is whether Mr. Brody — despite the failure to notify him — was aware that his land was being condemned. Mr. Brody, according to court documents, was a vocal participant at community meetings regarding the redevelopment.

Any knowledge Mr. Brody had about the condemnation proceeding does not absolve the government of its responsibility to inform him, a lawyer for Mr. Brody, Dana Berliner, said.

Calling it an "important due process case," Ms. Berliner said, "Due process requires that if the government is going to take away your rights, it is going to tell you about it."

The responsibility, Ms. Berliner said in an interview, did not lie with Mr. Brody "to piece it all together."

Mr. Brody owned two lots, on which stood four buildings that he leased to local businesses. He had purchased the land in 1996.

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New York NY Sun: http://www.nysun.com

India's Road to Riches Is Running Out of Land: Bloomberg.com, 3/19/07

Opinion
By Andy Mukherjee
For 400 years now, Anglo-Saxon common law has protected the right of a government to take over private property for public use.

From the U.S. interstate highway system to Tokyo's Narita Airport, important pillars of the global economy couldn't have been built without the state acquiring land it doesn't own.

Over the centuries, there have been two important additions to this principle of legalized coercion, variously known as ``eminent domain'' or ``compulsory purchase.''

For one, it has been recognized that the person whose property is being taken away has the right to fair compensation.

Simultaneously, the scope of what constitutes ``public use'' has become wider to cover even purely commercial redevelopment projects funded by the private sector.

Both the principle and the modifications were put to a violent test last week in the Indian state of West Bengal.

At least 14 people were killed when farmers clashed with the police after refusing to give up their land for construction of a 10,000-acre industrial park by Indonesia's Salim Group.

This was no isolated incident. In January, six people were killed at the same project location for exactly the same reason.

Violence erupted at another large industrial project site in West Bengal - Tata Motors Ltd.'s proposed car factory - in September and December as a local opposition leader incited protests against the state's possession of farmland.

Resentment is also growing in the western state of Maharashtra, where Reliance Industries Ltd.'s proposed 35,000- acre special economic zone may disrupt lives in 45 villages.

Industrialization Imperative
Arcelor Mittal's 12 million-ton steel project in mineral-rich Orissa state has also run into rough weather over the same issue: land acquisition.

There's no denying that India needs to make the transition from a primarily agrarian society to a more industrialized one.

Agriculture, which directly supports three out of five Indians, accounts for less than a fifth of the country's annual gross domestic product. It's time to shift the surplus labor out of farm-related occupations and into manufacturing.

Chinese-style special economic zones, which will inevitably require the government to exercise its eminent domain, may be the quickest way to meet this goal.

However, the question that's being increasingly asked is whether such a development strategy can work in democratic India where agricultural land is private property. Communist China passed its first law recognizing non-state ownership last week.

Compensation
At the heart of the discontent is compensation.

Two models exist for determining the payout.

The conventional practice is for the local government to acquire land from farmers at a 30 percent premium - or ``solatium'' - to the prevailing rate in the area; the state then resells the land parcels to the investor, sometimes requiring the latter to guarantee jobs or small-business opportunities to the displaced persons.

In the second model, which is being tried now, the investor directly buys the land by offering a mix of one-time payments, annuities and jobs. The state acts as a facilitator.

Neither of the two systems is working satisfactorily.

The first is flawed because the benchmark price is often too low. Even when it's acceptable to the absentee landlords who live in the city, the tenants who cultivate the land resist eviction because their compensation, a multiple of the annual value of crops, is grossly inadequate.

In some Indian states, the actual tiller of the land may have no legal status and no right to receive compensation.

Legal Quagmire
The second model suffers from an absence of coercive power; it dilutes the state's eminent domain. Farmers begin to see the sales as voluntary and, therefore, open to bargaining.

There's no easy fix. Everyone agrees that India's land acquisition law, which dates to 1894, needs a revamp. In its present form, it helps neither the buyer nor the seller.

There is, however, a risk that if the current climate of anger and violence persists, then the law may be tightened to disallow eminent domain in pure commercial redevelopment.

That's the direction in which many U.S. states - Minnesota, Delaware, Ohio and Texas to name a few - have moved recently.

Stung by criticism that it was encouraging a land grab, the federal Indian government has already put on hold the allocation of new special economic zones. After last week's killings, there's little chance of the deadlock being broken anytime soon.

What will happen to India's goal of rapid industrialization, which is as much a national imperative as railroads were to the U.S. in the 19th century?

New Solutions
It may be possible to free large tracts of land in India without stoking large-scale resentment.

Villages in coastal southern China earn millions of dollars in rental income from leasing out land to factories. Why can't Indian farmers, too, become industrial landlords?

One strategy could be for the government to form a massive real-estate investment trust, to which all acquired land that is later developed by private capital for commercial use would be assigned. Both the farmers and the developers would be allotted equity in the REIT, which would earn rental income from long- term leases to industrial and commercial tenants.

Every farmer whose land has been taken would earn an income from his units in the REIT.

This may be just a wild, impractical idea. There may be better solutions. The challenge is to discover them before India's road to riches runs out of land.

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Bloomberg.com: http://www.bloomberg.com

Eminent domain plays a key role in fighting blight: Lynchburg VA News & Advance, 3/19/07

Editorial
For years, [Lynchburg VA] City Council and city housing officials have worked to get rundown properties out of the hands of irresponsible (and usually out-of-town) owners and into the hands of those who would restore the property to a habitable, attractive condition. Their successes improved older neighborhoods throughout the city and raised property values.

It's called the "spot blight" program and applies to other localities, as well. The program allows local governments to purchase - at fair market value - dilapidated or deteriorated private property and transfer ownership to a new private purchaser who agrees to restore it.

Since it began in 1999, the city has used the program on 60 blighted properties, increasing those property values by some $1 million.

But in its rush to do "something" about the 2005 Supreme Court ruling that allowed New London, Conn., to take private homes through eminent domain for economic development that would generate more jobs and tax revenues, the General Assembly approved a bill that would negate the spot blight program. City Council and the Lynchburg Redevelopment and Housing Authority have sent letters to Gov. Timothy M. Kaine asking him to amend the legislation to protect the spot blight program. They make a good case.

The Kelo v. New London case centered on efforts by New London city officials to condemn 15 privately owned houses in the middle of a 90-acre neighborhood. The government-controlled New London Development Corp., initiated condemnation proceedings using a liberal definition of "blight." After the condemnation, the agency would then turn the entire tract of land over to Pfizer Pharmaceuticals, which planned to build an office and research park on the site.

While Connecticut lawmakers have decided it was proper to use eminent domain to take property for economic development efforts that ultimately benefited a private corporation, that has not been the case in Virginia. In fact, as City Attorney Walter Erwin has pointed out, Virginia's Constitution says nothing about taking property for economic development.

Erwin agrees that eminent domain is an emotional issue, but said he has never seen even one Virginia case that approached the situation in New London.

In an effort to restrict the use of eminent domain by a locality, the legislation advanced by state Sen. Steve Newman, R-Lynchburg, would change the definition of blight from a property that endangers public health "because the structure ... is dilapidated" to a property that "is vacant and constitutes a public nuisance" or "is beyond repair or unfit for human habitation."

City officials worry that the tighter definition of blight is so restrictive that it will eliminate the spot blight program. They have asked the governor to provide for a broader definition of blight to preserve the program. Without such an amendment, the city could lose the spot blight program that has proven so useful over the past seven years.

Erwin said state lawmakers may have missed the point of spot blight. "The city wants to preserve rather than demolish our housing stock," he told Conor Reilly of The News & Advance.

But if the city has to wait until a structure is "beyond repair," as the legislation calls for, cities will have no choice but to hold off on eminent domain proceedings until the homes are worthless.

Ed McCann, director of the city housing authority, agreed. "The alternative to our program is demolition of houses," he said. "We've done that before; we've demolished a lot of houses. We think there's a better way now."

Erwin said he was surprised by the Assembly's approval of the measure, especially since it passed a resolution in 1994 outlining the benefits of the spot blight program. That study says that dilapidated properties create havens for crime, impair growth and cause local businesses to leave such areas.

"All those problems are just as true today as they were back when the study was done," he said.

Some lawmakers expressed concern that cities were using the spot blight program to increase their real estate tax base. McCann exploded that theory, saying that increased property values are simply a byproduct of the program's main goal, which is to eliminate blight.

And that's the point the governor and the assembly - in its veto session - must focus upon. The spot blight program is not about an overreaching local government. It is about improving neighborhoods that are threatened by the existence of that blight. Amending the bill would be a step toward saving those neighborhoods.

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

Barclays Bank Boycott to Protest Eminent Domain Abuse: The Libertarian Party of New York, 3/19/07

News release
New York Libertarian Party leaders Richard Cooper and Gary Popkin call for a nationwide boycott of Barclays Bank due to its participation in the eminent domain abuse scheme of Brooklyn's Atlantic Yards. Barclays, a British bank with branches in America, agreed to pay the developer Forest City Ratner over $300 million for naming rights to the Nets basketball team's arena over a thirty-year period. Libertarian State Chair Cooper notes that millions of Americans were outraged by last year's Kelo decision by the Supreme Court upholding eminent domain transfers to private developers. The Libertarians offer an opportunity to demonstrate opposition in a material way.

Brooklyn-Queens Libertarian Party Chair Popkin dubs "..the Barclays participation in eminent domain is an outrage as a private enterprise disrespecting property rights." Popkin notes that controversy was stirred in Brooklyn because of the sordid past of the British bank in the slave trade. He declares that "The actions of the bankers of centuries past do not taint the arena. It is participation in the eminent domain scheme that taints whoever participates in it."

Cooper continues, "To Libertarians, corporate sports welfare and eminent domain abuse are legalized theft, stealing from taxpayers and landowners. Barclays chose to become an accomplice of Bruce Ratner. They should both bear the outrage of indignant Americans who favor freedom and justice."

The Libertarian Party of New York has fought eminent domain that would have dispossessed St. Luke's Pentecostal Church on Long Island and a neighborhood in New Rochelle to make way for an Ikea Swedish furniture store, besides the NY Times headquarters scheme that Cooper dubbed "Time$cam." Cooper and Rev. Fred Jenkins of St. Luke's will speak on the church's victimization and how the Libertarian Party helped them at the state convention to be held Saturday, April 28th at the Radisson MacArthur in Holtsville, Long Island.

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Libertarian Party of New York: http://www.ny.lp.org

Haverstraw property owners dispute village's eminent domain agreement: The Westchester NY Journal News, 3/20/07

By Akiko Matsuda
The [Haverstraw NY] village's urban renewal plan may take an unexpected turn as property owners fight back to reclaim their rights to waterfront land targeted by eminent domain.

Owners of the former chair factory site in Haverstraw village have recently filed a complaint in state Supreme Court, claiming that the village and its contractors have been trespassing on their property.

The 10-acre waterfront property on Liberty Drive was designated as part of the village's urban renewal zone and was to be developed by Ginsburg Development Companies into luxury condominiums.

Under state eminent domain law, the village has the right to conduct environmental testing on the property even before acquiring it, so earlier this month, contractors worked at the site to examine soils, said Mayor Francis "Bud" Wassmer.

But Bruce Kanner, an owner of the property, said that based on the village's August 2003 eminent domain agreement, the village was supposed to acquire the property within three years. Because the village didn't do so, the agreement expired, and the village no longer had authority to enter the property, Kanner said.

"They have no right under the eminent domain law anymore because the agreement was expired," Kanner said. "They are beyond the period for which they could have gone on the property."

A hearing for the owners' complaint was scheduled for this morning at the state Supreme Court in Westchester before Justice John R. La Cava.

Kanner said he and other owners of the property were preparing to develop the property into condominiums.

"We're doing the same thing that the village wanted all along," Kanner said, adding that it was he who originally approached the village with waterfront housing plans back in 1998. "We could have completed it by now, but they decided to put us off because they wanted to give it to Ginsburg."

Kanner said he and other owners of the property had selected a developer for their project, which is to include about 175 condominium units.

"We plan to go ahead with developing the property as soon as we're permitted to do so," Kanner said, referring to the village planning board's approval process. The proposed site is part of Ginsburg's 800-unit riverfront housing complex that started with Harbors at Haverstraw.

Patrick Normoyle of Ginsburg Development Companies referred a reporter's request for comment to John Watkins, the village's special counsel for eminent domain.

Watkins disagreed with Kanner's interpretation of the eminent domain agreement, saying that as long as the village started condemnations in certain areas of the urban renewal zone, the village was authorized to continue the process.

"They are wrong," Watkins said of the assertions by Kanner and other owners of the property. "Statute permits the village to continue to go forward with the project, which was approved in 2003. We started condemnations of certain parcels, and we have the right to go forward with it."

Watkins said the village's authority will last for 10 years, or until 2013, because the project started in a timely manner.

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The Westchester NY Journal News: http://www.thejournalnews.com

What Would California Proposed Initiative 07-006 Do?: Pacific Legal Foundation, 3/20/07

The California League of Cities — the opposite of a property rights group — has put forward a ballot initiative which you can read now on the Attorney General's website. I've been asked to explain what this initiative would do.

First, the initiative is limited solely to "owner-occupied residences," and prohibits them from being transferred to "a private person." It does not protect small businesses, residents of apartments, churches, farms, or any other property. (Also, it applies to residences only if the residents have lived there for at least a year before the condemnation.)

Of course, it's small businesses that are the most common target of eminent domain abuse. Redevelopment occurs in business districts, not in residential areas, so it is rare to see homes taken for redevelopment. But why should a small business — like Ahmad Mesdaq's cigar store, or John Revelli's tire shop — receive no protection? People invest time, energy, and feeling into their businesses just as they do in their homes. A person's self-owned business is virtually the definition of The American Dream.

As James Chen so movingly writes, the reward of owning a small business "comes in personal satisfaction, in autonomy, in deliverance from office politics, in the freedom to make [one's] own mistakes instead of being forced to execute the misjudgments of others. Living by your wits can be risky, but it also makes you feel more alive." Yet although the overwhelming majority of the 223 incidents of eminent domain abuse between 1998 and 2003 involved small businesses, this proposed initiative would do nothing to protect them.

If the reason for this is that homes have greater sentimental attachment than do businesses — a highly questionable prejudice —t hen why are not the residents of apartment buildings protected? Or people who have lived in their homes for less than a year?

Last year, a representative from the California Redevelopment Association testified to the state legislature that they don't condemn homes. Thus this provision would seem quite clearly to be a meaningless sacrifice intended to avert strong property rights protection.

Section (c) of the League of Cities' initiative would creates an exception to the meager protection provided by the initiative. It would allow government to take property and transfer it to private entities whenever doing so was "incidental to" a "public improvement" such as a library, a park, a recreational facility, a train station, &c. In other words, under this proposal, a city could condemn property to build, say, a museum or a public ampitheater, and then surround it with a shopping center built on land taken from private property owners through eminent domain.

Anyone familiar with Victoria Gardens in southern California will find it easy to imagine such a project. Victoria Gardens features a public theater and public library, surrounded by private stores and restaurants. While I don' know whether eminent domain was involved in that project, it would be easy under Proposed Initiative 07-006 for cities to copy that formula and to use eminent domain in the process, even taking owner occupied residences.

What' more, the initiative prohibits the transfer of owner-occupied homes to private persons, but does not define "prvate persons." It defines "persons," but it does not explain the difference between a "private" person and a "public" person. It seems likely that a government-business partnership so common in the world today could qualify as a "public" person, and thereby again evade the restrictions of this initiative.

Sections 3 and 6 of the League of Cities' ballot initiative seem internally inconsistent and potentially dangerous to California property owners. Section 3 says that the initiative is not intended to change the definition of "public use" in California law. This means that the initiative would have no legal effect on Kelo-style takings in California except for the limitation on taking homes for "private persons."

Section 6, on the other hand, says that the term "public use" — which is not defined in the initiative — would be interpreted to be consistent with the law in effect on January 1, 2007, which of course includes the Supreme Court decision in Kelo. Although the initiative is not very clear on this point, it would be easy for California courts to interpret this language as incorporating the Kelo definition of public use (as meaning "public benefit") into the state Constitution.

This is deeply troubling because at present it is not clear that California courts would follow the definition of "public use" provided in Kelo. It is still possible for a property owner to contend that the California Constitution's public use clause should be read as limiting the eminent domain power more strictly than its federal counterpart. Yet this initiative would seem to forcelose that possibility.

Given that, after Kelo, property owners can only hope for protection under their state constitutions, passage of this initiative would seem to expose the owners of California's businesses, the residents of California's apartments, California's churchgoers and farmers, to the abuse of eminent domain, stripped of their last constitutional protection.

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Pacific Legal Foundation: https://www.pacificlegal.org

Glouco lawmakers take a stand on eminent domain: Cherry Hill NJ Courier-Post, 3/16/07

By Gregory J Volpe
Eminent domain reform remained stalled Thursday in the [New Jersey] Senate, as the apparent standoff between an Essex County senator and Gloucester County lawmakers seemingly widened.

On paper it seemed there was compromise, as the Senate Community and Urban Affairs Committee listed a merged substitute of two pieces of legislation - one sponsored by committee chairman Sen. Ronald Rice, D-Newark, and another sponsored by Sen. Stephen Sweeney, D-West Deptford, and Assemblyman John Burzichelli, D-Paulsboro.

But the Gloucester County legislators, committee members and Public Advocate Ronald K. Chen criticized the last-minute merger offered by Rice.

Lawmakers said Rice made substantial changes to the legislation without notifying them until late Wednesday afternoon.

"I got 63 pages of amendments yesterday, and it was after 5 o'clock," committee member Sen. Fred H. Madden, D-Washington Township, said.

Sweeney, who is not on the committee, said Rice's approach was symbolic of how many issues in Trenton are rushed at the last minute without giving lawmakers time to review what they have to vote on.

"That's what's wrong with Trenton," Sweeney said. "Major issues get bastardized."

Those proposing reform, who have said they prefer the Sweeney/Burzichelli bill, A-3257, which passed the Assembly last June, said Rice's amendments were troubling.

"It made the Burzichelli bill extremely worse," said Jeff Tittel, director of the Sierra Club's New Jersey chapter.

Rice planned to hold a vote but did not post his bill after it was clear Madden and Sen. Nicholas Asselta, R-Vineland, would not vote on it without time to study the amendments.

After the hearing, Rice acknowledged that lawmakers' gripes about needing more time were valid, then added, "But it's not the first time it's happened here."

Rice also dismissed criticism from Ronald Chen, the public advocate, who has criticized both measures.

"The Public Advocate is like the (American Civil Liberties Union) of government," Rice said. "He has to have high standards."

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Cherry Hill NJ Courier-Post: http://www.courierpostonline.com

Petition calls for town to seize land slated for project: Boston MA Globe, 3/18/07

By Robert Preer
Concerned that the developer of the largest building project ever in Holbrook might renege on its plans, some local officials are throwing their support behind a citizen's petition that proposes seizing the Old English Square development site by eminent domain and turning it into town wells and a municipal golf course.

Robert A. Powilatis's petition is scheduled to go before the May 15 Town Meeting. The article has been endorsed by several key officials, who say they fear the developer, Mullins Co. of Braintree, might drastically change the commercial-residential makeup of the $43 million project.

Planned for 78 acres on Union Street between Holbrook Center and the Holbrook/Randolph commuter rail station, the development is slated to have 211 condominium units and 63,000 square feet of commercial space, which would include a fitness club and restaurant. An existing bowling alley would be renovated and stables added for a recreational horse riding attraction, according to Mullins Co.

The developer says its plans for Old English Square have not changed.

In recent months, however, some Holbrook officials have become increasingly concerned the project will be altered to be mostly low-income apartments and little retail. The town is seeking to bolster its small commercial tax base.

"I would love to see the whole thing be some kind of commercial development," said Selectman Richard McGaughey, one of the signers of Powilatis's petition. He said the developer had indicated the retail part of the project was to have been built first, but now is shifting the emphasis to residential.

"I felt they sort of reneged on their promise," McGaughey said.

Other critics of the project have voiced fear that it would cause traffic problems on the already heavily traveled Union Street.

Powilatis, who is an elected member of the Board of Assessors and Housing Authority, was out of town and could not be reached for comment. Other town officials who signed the Town Meeting article include Selectman Paul Currie, Assessor Pamela Holt, Town Clerk Shirley Austin, alternate Planning Board member Rudolph Mosesso, and Town Accountant Cynthia Brennan.

Michael Mullins, president of Mullins Co., denounced the drive to block the project.

"We'd take an enormous loss if this went through. There are still some people in Town Hall who, for whatever reason, don't agree with this project," he said.

Mullins said the development team has not decided the exact sequence of the project and is assessing the market for both retail and residential. He said conditions are generally sluggish now.

"I don't know if the market is ready for the retail. I don't know if it's ready for the housing either," he said.

The first phase of the development would be construction of the fitness club and renovation of the bowling alley, according to Mullins. The condominiums will be a mix of one- and two-bedroom units, he said.

Mullins said his company is committed to building a high-quality, mixed-use project that will enhance the town. "It's a good-looking project. It is going to give the area a face-lift," he said.

Mullins Co. still needs approvals from the Planning Board before it can start construction. While the board has approved the overall concept of the development, conditions on the construction are still the subject of talks between the developer and the board.

Even if Town Meeting approves Powilatis's petition, the town would have to clear many hurdles to acquire the property. The proposal asks the Board of Selectmen to take the property by eminent domain for $1.9 million.

Mullins said the figure is very low, considering the town now assesses its value at $7 million. He indicated the company would wage a legal fight against an eminent domain action.

Selectwoman Katherine Connolly, who has been a critic of Old English Square, nevertheless questioned the petition drive by the other officials.

She said she fears the proposed price tag for the eminent domain taking could give Mullins Co. grounds to challenge its current assessment.

"I don't understand why any official would sign it," Connolly said.

Austin, the town clerk, said she has been a longtime opponent of the Old English Square development. "I would love to see a golf course there," said Austin, who lives near the site.

The state Office for Commonwealth Development has touted the project as an example of "smart growth" because of its proximity to the Old Colony Railroad station. Critics say the development does not qualify as transit-oriented development because it is about a half-mile from the station, which is farther than most people will walk.

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Boston MA Globe: http://www.boston.com

Montana Lawmakers Consider Narrowing Eminent Domain: New West, Missoula MT, 3/15/07

By Craig McCallum
Three bills are working their way through the Montana Legislature that would limit the circumstances under which government can take private property under eminent domain.

The bills, inspired by the 2005 U.S. Supreme Court’s Kelo ruling, have found widespread support in an otherwise divisive session.

“I’m touchy about government overreaching its authority, and to take someone else’s land because someone else will pay more taxes (on it) on it is a heinous reason,” Sen. Jim Elliott, D-Trout Creek, said earlier in the session.

Two bills put forward by Elliott, and one sponsored by Sen. Christine Kaufmann, D-Helena, have passed the Senate on 49-1 margins and now are their way through the House. All three try to keep government from using its power of eminent domain to take private property and give it to a private business.

The U.S. Supreme Court in 2005’s Kelo v. City of New London upheld a Connecticut Supreme Court ruling that determined such “takings” were legal. In the case, Susette Kelo’s home stood in good shape but city officials condemned it to allow the transnational drug company Pfizer to build a research branch, which the city said would boost the local economy.

Montana courts have tended to favor private landholders in cases involving eminent domain, but the senators say their bills are necessary regardless.

Elliott said property owners shouldn’t have to worry about state courts changing direction.

That worries Kaufmann, too, though she mainly wants to avoid a re-run of last fall’s I-154, which would have limited eminent domain but also required that governments compensate landowners for land-use decisions that limit the use or value of private land.

“If the backers of I-154 want to come back with their plans to stop government regulation of land use … the passage of this bill will take the eminent domain issues of Kelo out of the discussion,” Kaufmann said earlier in the session.

Montana’s Supreme Court struck down I-154 and two other ballot measures just before the November election after finding “a pervasive and general pattern and practice of fraud.”

Kaufmann’s Senate Bill 363, is drawing support from conservation and public interest groups that opposed I-154. Among them are the Audubon Society, Montana Conservation Voters and the Montana Smart Growth Coalition.

Specifically, it would keep eminent domain from being used in urban renewal projects if the property isn’t “blighted,” or if the main purpose of the project is to increase tax revenue – both major points of contention in the Kelo decision.

The I-154 fiasco bothered Elliott as well. When a lobbyist asked him if one of his bills would include compensating land owners for the effect of local regulations, Elliott replied “Hell, no.”

But Elliott’s bills aim directly at what he has long considered potential problems in Montana’s laws that the Kelo decision only recently brought to the public eye.

His Senate Bill 316 would keep cities from annexing and possibly condemning small parcels of farmland cut up for a public use by allowing them to keep their tax status as agricultural land.

But Elliot’s Senate Bill 41 has a far more general cast. It would force government agencies to wait 10 years before land taken under eminent domain could be sold to a private developer or used for a non-public use.

While a private developer could still do the work, the development would have to serve an immediate public purpose.

Elliot offered an identical bill to the 2005 Legislature but it died in committee.

“Kelo hadn’t been decided in ‘05,” Elliott said. “There wasn’t the outrage then that there is now.”

The two senators expect smooth sailing for their bills, but they have heard concerns of redevelopment planners and local governments.

In Montana, eminent domain is rarely used and usually at the request of the seller, said Ellen Buchanan, director of the Missoula Redevelopment Agency.

When an owner gives up their land in an eminent domain case, they get more time to reinvest before the compensation money becomes subject to capital gains taxes, usually up to three years.

If the willing owner only wants give up their land under this condition, Elliott’s bill would keep the land from being given over to a private company that might help the project to pay itself off, Buchanan said.

Though she voted for Elliot’s bills, Sen. Kaufmann doesn’t quite see eye to eye with him on eminent domain either.

“I think Elliot’s SB 41 shuts down the possibility of using eminent domain for urban development, and I wonder if we want to do that,” she said.

Riley Johnson, a lobbyist and the director of the Montana branch of the National Federation of Independent Businesses, said this is just what he hopes would happen.

“If you’re going to come take my land, it has to be used for a road or something of that nature,” said Johnson, who also supports Kaufmann’s bill.

However, a lobbyist for Montana’s League of Cities and Towns, Alec Hansen, said some rare cases warrant eminent domain for urban renewal.

“If the property is clearly blighted, which is difficult to prove, and if it’s a threat to public health and safety, then it needs to be removed,” Hansen said.

Even so, Hansen agreed that the way Montana’s courts have long protected property owners from some uses of eminent domain ought to be placed into statute.

In 1995’s City of Bozeman v. Vaniman, the Montana Supreme Court decided that government couldn’t use eminent domain to move land to another private holder. Those arguing for Susette Kelo in the U.S. Supreme Court found the case strong enough to use as an example of how states ought to consider eminent domain. But the ruling in Vaniman doesn’t specifically apply to blight, and Johnson doesn’t want small businesses to have to worry about it.

“We aren’t attorneys, and we don’t have money to go out and buy attorneys,” Johnson said.

Institute for Justice, which tracks eminent domain nationwide, gives Montana its highest rating. In 10,000 cases between 1998 and 2003, Montana had only one instance of government threatening eminent domain for the purpose of economic development, and eminent domain didn’t end up being used in that case.

If Montana’s legislature passes these bills, it will be following the lead of 36 other states that have adopted laws limiting eminent domain since the Kelo decision. And though the need may not exist right now, neither Elliott nor Kaufmann wants to wait until it’s too late.

“Quite frankly it’s not used a lot,” Elliott said. “But the threat is there and the threat shouldn’t be there.”

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New West, Missoula MT: http://www.newwest.net

Council backs away from clarifying city eminent domain policy: Manteca CA Bulletin, 3/15/07

By Jeff Benziger
Eminent domain - which is the act by which government can force the sale of private property for the public use - has long been controversial. It even proved to be controversial when the Ceres City Council spoke about its own policy on Monday.

The council backed away from adopting a resolution which would have clarified the council's own policy about eminent domain.

Representatives of the building community had asked the council to clarify its views on eminent domain, sending staff scrambling to research the issue and to forge a resolution. The council's view is that eminent domain will be used by the city as a last resort to obtain land for rights of way in the creation of development master plans or infill projects. The tool would only be used after good faith efforts to acquire property failed.

A developer who spurred the matter, objected to the resolution. Scott Stringer representing the Maple Glen master plan, is fearful that the policy will prevent him from getting reimbursed for off-site work required by the future master plan.

Planning Director Ken Craig said the policy doesn't change the law which the city must follow for reimbursements. Despite efforts to reassure him, Stringer's attorney, George Petrulakis, was still unsettled about the city's intent.

“Simply said,” noted Mayor Anthony Cannella, “it (resolution) says we play by the rules.”

“If we're not doing anything other than adding clarity,” said Councilman Chris Vierra, “why are we doing this? It seems to be creating a lot of controversy.”

Craig answered back: “If you did not put that in writing, it might not be clear to the community.”

But Vierra said he didn't feel comfortable rubber stamping all considerations for eminent domain. Vierra said there is a uniqueness to any situation and that eminent domain may need to be considered on a “case by case” basis.

Councilman Ken Lane agreed. He noted that he cannot recall any instance in which the city used eminent domain to acquire property for streets or parks or other facilities.

Also weighing in their concerns was the Building Industry Association of Central California.

City Manager Brad Kilger said when he arrived at City Hall he learned that a lot of council policy were only spoken but not in writing. As it turned out, the first attempt to put policy in resolution form and get away from a “make it up as you go” policy happened to be a volatile one, he said.

Cannella said the resolution, had it passed, would not have changed anything.

“It doesn't give any new power and it doesn't take it away. It's really much ado about nothing.”

The resolution was not voted on for lack of a motion.

Resident Len Shepherd had his say about eminent domain, especially if not done for public use. He called condemning property for another development a “heinous” act.

“You can't give fair market value. There is no fair market value if the person doesn't want to sell,” said Shepherd.

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Manteca CA Bulletin: http://www.mantecabulletin.com

Eminent Domain Procedure Revised: Norwalk CT Citizen-News, 3/15/07

By Lauren Garrison
The power to oversee the use of eminent domain in the Wall Street Redevelopment Project was returned to the [Norwalk CT] Common Council on Tuesday.

In a unanimous vote with President Michael Coffey, D-At Large, abstaining, the council approved the Spring 2007 Proposed Plan Modification to the Wall Street Redevelopment Plan Summer 2004.

According to Planning Committee Chairman Matthew Miklave, D-At Large, the modification serves to reverse a measure included in the Wall Street redevelopment plan that was approved in 2004 and authorized the Norwalk Redevelopment Agency to exercise the power of eminent domain on a list of 20 to 30 properties. The modification also makes the procedure for the use of eminent domain in the Wall Street project consistent with the procedure in the West Avenue Corridor Redevelopment Project.

With the modification, the council will discuss and vote on the use of eminent domain for each parcel being considered before granting the NRA the authority to seize it.

According to Miklave, the NRA proposed the modification for a number of reasons. Miklave said he and NRA Executive Director Timothy Sheehan had discussed the issue extensively and agreed that it was important for the city to be consistent with the way it approached eminent domain.

In addition, the previous version of the Wall Street plan required the NRA to exercise eminent domain on the parcels listed by July 2007, at which time it would lose its power to do so. However, said Miklave, "the implementation of the plan has not gone as quickly as the Redevelopment Agency or the council would have liked." Though the deadline is fast approaching, the NRA is not yet ready to seize those properties, he said.

During the public participation segment of the meeting, Ed Schmidt, the attorney representing several Wall Street property owners, argued that the city could not extend the deadline on the use of eminent domain without the consent of the property owners a consent that his clients are not willing to give.

State law dictates that the deadline may be extended if the NRA asks for an extension, the council approves it and the property owners consent, according to Miklave.

However, as Sheehan explained at the meeting, modifying the plan serves to restart the process, thus allowing the council to set a new deadline on the use of eminent domain. The amended plan has had to go through the Planning Commission, NRA and Planning Committee for comment as well as through a series of public hearings.

On Wednesday, Miklave said, "I'm pleased we're moving forward. We still have a long way to go. It's a very exiting time in our city, and we look for further public participation in making these very important decisions. At the end of the day, we're going to transform our city in ways I think we're going to be very proud of in years to come."

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

Eminent Domain in Utah and India - Letting the people decide: New Jersey Eminent Domain Blog, 3/16/07

By Priya Prakash Royal
One problem with the power of eminent domain is that the government and not the public or the free market determines both “public use” and “just compensation.”

Utah, typically non-conformist in the legal arena, has once again taken the road less traveled. And it may have borrowed one idea from a system recently developed in India. Yesterday Business Week reported that Utah, one of the first states to rein in the use of eminent domain, has proposed legislation to allow a redevelopment authority to condemn property. But House Bill 365 would also allow the community to determine which takings qualify as being in the public's interest:

It requires 80 percent of those who live in a proposed redevelopment project area to sign a petition saying they want the land condemned. It would also require a two-thirds vote of a city's redevelopment authority board to approve the condemnation.

India, the world’s largest democracy, may follow suit in launching this concept. Swaminathan S. Anklesaria Aiyar, columnist for the Times of India, recommends several changes in India’s land acquisition laws, including one which empowers the farmers:

The new land law should provide for state governments or corporations to negotiate acquisition proposals with farmers, and then let the farmers vote on the deal. If a large majority--it could be two-thirds or three-quarters--vote in favour of selling, this should be binding on the minority. In this scheme, the final decision will lie not with the state government or corporation, but with the community of farmers. It will constitute community-led acquisition. It will respect both the property rights and dignity of farmers, and make them full partners in industrialisation.

It is notable, however, that India was already moving in the right direction by giving the public a say in “just compensation.” Now it may also be fair.

Under its current system and industrial development plan, the Indian government has defined Special Econonomic Zones (SEZs) which permit them to condemn privately owned land for industrial development.

India Times Blogs reported that a major company, Reliance Group was purchasing land directly from the farmers instead of having a government agency acquire it. This resulted in landowners receiving ten times more than the price that would have been offered by the government. Reliance Group would have been able to have the government agency acquire the land through the principle of eminent domain under India’s plan to industrialize by designating SEZs.

Finally, the property owner may get a price that would be paid between a willing buyer and a willing seller. Nevertheless, India has a long way to go in defining “public use” to ensure that the power to condemn cannot be easily abused.

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

Cities in California push own measure on eminent domain: San Diego CA Union-Tribune, 3/14/07

By Michael Gardner
Fearing tighter controls, California cities have offered to sponsor a statewide ballot measure that would strip away most of their power to seize homes standing in the way of new commercial development.

The draft proposal circulating in the Capitol also seeks to add another layer of protection for small businesses by making it more expensive for local governments to shutter mom-and-pop shops and replace them with bigger tax-generators: malls, hotels or big-box retailers.

The proposed constitutional amendment has been endorsed by leading environmentalists and has the qualified support of a powerful conservative homeowners' advocate as well as the Republican leader of the state Senate.

Democratic leaders have not yet signed on, but they agree with city officials that the Legislature should shape a measure and place it on the ballot rather than leaving it to an initiative driven by special interests.

Local governments and their allies spent about $14.2 million last year to defeat a far-reaching ballot proposition that could have severely curtailed eminent domain authority.

At issue: eminent domain. Cities are pushing a ballot measure that would place more restrictions on condemning property to avoid even tougher limits.

Supporters: Eminent domain must be used carefully, but can be an invaluable tool to clean up crime-infested neighborhoods. Buying out businesses to make way for new development draws more commercial activity and tax revenues, benefiting the entire community.

Opponents: The measure isn't tough enough. Property rights should be absolute, except in cases of public good, such as roads, schools and hospitals. Property owners should not be forced out of their homes and businesses just to satisfy growth demands, bring in more revenues from shopping malls or appease politically powerful developers.

Worried that the close call did not put an end to voter anger over some high-profile, controversial land grabs, cities were determined to offer voters a palatable deal on the next ballot.

“We take the issue of eminent domain abuse seriously,” said Chris McKenzie, executive director of the League of California Cities. “During last year's campaign, we promised voters we would do this.”

The league also has filed a separate proposed constitutional amendment that would limit local governments' use of eminent domain, or condemnation. McKenzie said the initiative, which would need nearly 700,000 signatures of registered voters, is an insurance policy in case talks collapse in the Legislature. A more restrictive constitutional amendment has been submitted by the California Farm Bureau Federation and Howard Jarvis Taxpayers Association.

Key figures, including some politicians who are absolutists when it comes to protecting private property, aren't impressed with the cities' move.

“There's been no change in the battle lines,” said Sen. Tom McClintock, a Thousand Oaks Republican who is carrying his own constitutional amendment, SCA 1.

McClintock demands equal protections for business. “It really doesn't matter whether they take the roof over your head or the shop that pays for the roof over your head,” he said.

City officials say their draft compromise includes safeguards from overzealous redevelopment agencies, cities and counties. For example, the proposal would erect a significant financial barrier by requiring cities to pay at least 125 percent of the fair market value to small businesses, classified as employing no more than 25 people.

“It should be cumbersome for locals to engage business in eminent domain,” said supporter Ken Willis, an Upland city councilman and president of the League of California Homeowners.

However, Willis said local governments need to preserve some condemnation power to tackle drug-infested, run-down neighborhoods.

“You can leave it to grow or you can cure it,” Willis said of the dilemma before cities as they try to rejuvenate dilapidated blocks.

The cities' proposal spells out that owner-occupied homes cannot be condemned and the property put to business use, but it still leaves rentals vulnerable.

Local governments could still condemn homes or private land for public benefit, such as roads, schools, fire stations and hospitals, under all of the pending proposals.

Concern over eminent domain burst into public consciousness in 2005 when a sharply divided U.S. Supreme Court upheld a Connecticut city's right to evict middle-class homeowners to make way for a waterfront project. Kelo v. City of New London became a rallying cry in a nationwide campaign to rein in eminent domain.

In California, the Legislature failed to reach a compromise after months of wrangling. That left an opening for Howard Rich, a wealthy New York real estate broker who bankrolled Proposition 90 on the November 2006 ballot.

While protecting homeowners and businesses, the initiative also was a frontal assault on land-use policy affecting anything from apartments to landfills, opponents said. Opponents of Proposition 90 outspent supporters, $14 million to $4 million.

Although the measure was defeated 53 percent to 47 percent, it convinced local governments that voter backlash was real.

Some environmental groups helped finance the opposition campaign to Proposition 90 and are supportive of the new city-backed proposal.

One key area for negotiation: two types of property – farms and churches – have yet to be offered protections under the cities' plan.

“Public agencies should not take productive farmland for private use,” said John Gamper, a farm bureau lobbyist.

Gamper said he is not impressed with the cities' proposal. Homes are not frequent targets and cities eyeing more tax revenues are not likely to balk at paying more to condemn businesses.

“It's going to be a feel-good bill that doesn't do much,” Gamper said.

Some supporters say local governments already have a hard time condemning farms because it's hard to conclude that fields and orchards are “blight” – a key stipulation before land can be condemned. The last high-profile case cited by the farm bureau was in 1993.

Churches are a touchy issue given the separation of church and state, tax status and other issues. Supporters of the ballot measure are looking for legislative guidance before writing in protections for church property.

Gov. Arnold Schwarzenegger has not taken a position on the new proposal, but he opposed Proposition 90. The Republican governor's signature is not required to place a constitutional amendment on the ballot. However, two-thirds of the Legislature must approve.

In presenting their case for tighter controls, McClintock and others come armed with a long list of small-business owners shut down by cities only to have their property handed to powerful developers.

In San Diego's historic Gaslamp Quarter, a cigar shop was forced out in favor of a hotel. In Oakland, city officials booted out a tire shop. In Cypress, a church was forced to negotiate a land swap because it owned property coveted by a major retailer.

Attorney Tim Sandefur, a leading defender of property rights, is not swayed by the offer to protect owner-occupied homes.

“Homes are rarely condemned. Usually it's small businesses,” Sandefur said. “It's hypocritical. It recognizes that these takings (of businesses) are unfair and yet it still tries to get away with it.”

Jon Coupal, president of the Howard Jarvis Taxpayers Association, sees the proposal as a positive move. Coupal is not officially part of the coalition, but he has been consulted.

“If there were ironclad constitutional protection for homeowners, that would be something we would support,” Coupal said.

Some Republican lawmakers have expressed interest in tougher restrictions, but at least one GOP leader gave a positive review to the cities' proposal.

“Nobody's got it in concrete yet,” said Senate Republican leader Dick Ackerman of Tustin. “But the direction they're going is good.”

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San Diego CA Union-Tribune: http://www.signonsandiego.com

Court ruling reaffirms Mapleton eminent domain: Provo UT Daily Herald, 3/14/07

By Jeremy Duda
A long-running dispute between a Mapleton landowner and the city may be coming to an end.

In a 20-page ruling, a state court declared that Mapleton has the authority to exercise eminent domain to take a half-mile stretch of land on Maple Mountain, reaffirming a decision the court handed down more than a year ago. Landowner Wendell Gibby asked the court to reconsider its decision, arguing that the disputed land was his private property.

Now the two parties have to agree on a price. Gibby was out of the country on Tuesday, and his attorney didn't return phone calls.

The city had long asserted that the land was part of the Bonneville Shoreline Trail, which had been used by the public for decades, and that it should also be open for use by emergency vehicles. Gibby put up concrete barriers around the land, blocking access for both.

"The bottom line is that the court has just reaffirmed everything from a year earlier," said attorney Eric Johnson, who is representing the city. "The court has decided that it got it right the first time."

Gibby filed a motion for reconsideration last year, asking the 4th District Court to reverse its previous decision. Judge Derek Pullan heard arguments in late January, but did not issue a ruling until last week. The city received the ruling Monday night.

Mapleton filed a cross motion asking the court to grant it immediate occupancy, which would have allowed Mapleton to seize the disputed land for pressing needs before a value was determined in court. The court denied that request.

Mapleton may have won the battle, but the concrete barriers on Maple Mountain aren't going anywhere for now. The two parties must determine a fair value for the land before Mapleton can formally seize it.

"There's no compulsion from the court ruling to make him remove the jersey barriers at this stage until such time as we have agreed on the value of the taking," said City Manager Bob Bradshaw.

Bradshaw said the city and Gibby were trying to reach a settlement out of court.

"The city is still anxious to reach a mutual agreement away from court on the arrangements that would be acceptable to both parties," he said.

Out-of-court negotiations have gone on for quite a while. On Monday, before Mapleton received the court's ruling, Bradshaw said he expected the two sides to reach an agreement within a few weeks.

Bradshaw said the ruling changes the dynamic of those out-of-court negotiations.

"Now with this court ruling reaffirming the previous decision, that the city does indeed have the power to condemn the trail, it puts the (City) Council in a strong position," he said.

The eminent domain question may have been the focal point of Gibby's dispute with the city. But he still has three open lawsuits against Mapleton, Johnson said. One of those lawsuits, which was filed in federal court, has been stayed pending the outcome of Gibby's other lawsuits in state court.

One of the state court lawsuits was filed by Gibby after the city refused to rezone his land on Maple Mountain. The land is zoned as critical environment, which limits the number of structures Gibby can build there.

Another lawsuit in state court concerns Gibby's request for the city to widen a road that runs to the edge of his property.

Aside from those lawsuits and the trial to assess the value of Gibby's condemned land, another hearing may be in the works. The city has long argued that the disputed land is an official road due to a decades-long history of public use. Mapleton moved to condemn the land under eminent domain as a fallback to that argument, Johnson said.

"The oldest people alive in Mapleton can remember using that road," Johnson said.

If the court rules in Mapleton's favor that the road is a public right of way by virtue of historic use, the city will not have to pay Gibby for it.

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Provo UT Daily Herald: http://www.heraldextra.com

Action due on bills that ease sting of eminent domain: NorthJersey.com, Hackensack NJ, 3/14/07

By Hugh R Morley
Business leaders are hoping for progress Thursday on legislation that would better compensate businesses forced to relocate through eminent domain proceedings.

The state Senate Community and Urban Affairs Committee will review two bills that increase the amount a municipality would have to pay an ousted business, and aim to make the process more transparent.

Sen. Ronald L. Rice, D-Newark, the sponsor of one of the bills, said his legislation reflects comments aired by business leaders in four public hearings last summer. The bill (S-1975), though wide-ranging, has "a strong focus on transparency, notice, and just and fair compensation for small businesses," he said. It was introduced in June.

Current law allows a municipality to condemn properties needed for a public use, such as building a bridge or a school, or developing houses or a commercial complex, and compensate the owners.

Yet the law offers almost no compensation to a business that leases or rents premises, said David Brogan, a vice president for the New Jersey Business and Industry Association, which supports parts of the two bills.

The most a business can get is $2,500 to $10,000 for relocation assistance, he said.

Brogan said Rice outlined amendments to his bill last week that would require a municipality to pay more relocation assistance than under the current law, with the amount increasing steadily for three years after the law is enacted.

The proposed law would require a municipality to pay $3,750 to $15,000 in the first year, and $7,500 to $22,500 in the second year, Brogan said. The third year payments would range from $11,250 to $45,000, and they would subsequently rise in line with the Consumer Price Index, he said.

The Rice bill also would require the municipality to compensate for the lost value of the business, Brogan said. That would mean paying a business that had to relocate to an area with less pedestrian traffic or transportation, for instance, he said.

A second bill, (A-3257), sponsored by Assemblyman John J. Burzichelli, D-Gloucester, would require municipalities to pay relocation assistance in line with the Rice bill, but would also pay the relocated businesses for loss of "goodwill," Brogan said.

Both bills allow the business owner to appeal the amount offered for relocation assistance to the courts, he said.

They also would require several public hearings on an eminent domain proposal, and wider notification of those affected, he said. The Rice bill, for instance, would notify commercial leaseholders, which does not happen now.

The Burzichelli bill was backed by the Assembly last year, but has not moved in the Senate. Rice's bill also has not moved out of committee in the Senate.

Rice said the bill is likely to be amended Thursday and merged with the Burzichelli bill.

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NorthJersey.com, Hackensack NJ: http://www.northjersey.com

Eminent domain protection bills revived: Annapolis MD Capital, 3/14/07

By Liam Farrell
Slot machines, health care and the budget deficit may be headlining this year's [Maryland] General Assembly session, but lawmakers haven't forgotten one of last year's most targeted issues.

Sen. Ed DeGrange, Sr., D-Glen Burnie, has filed a bill that would strengthen compensation for people whose property is taken away through eminent domain.

Eminent domain is the right of a government to take private property for the public good, usually by paying owners a reasonable price for it.

Cosponsors of the bill include Senate President Thomas V. Mike Miller, Jr., D-Prince George's, and Sen. John Astle, D-Annapolis.

"It's still an issue (but) it's not as prominent," Mr. DeGrange said. "People want to see protection of their property rights."

Last year more than 40 bills were introduced to restrict or alter the use of eminent domain. The surge in legislation was in response to the 2005 Supreme Court decision in Kelo v. City of New London that essentially granted local governments the ability to seize homes for private development.

However, all of those bills failed.

Originally, Mr. DeGrange's bill would have restricted the conditions under which a government could seize a property for economic development.

For example, the property in question would have to be part of comprehensive development with "substantial and direct public uses and benefits," and the acquisition of the property could not solely benefit private entities.

A similar bill was introduced in 2006, but despite a favorable committee report it never made it to a vote.

Mr. DeGrange said election year politics played a role in that failure.

In a new version heard yesterday in Annapolis by the Senate Judicial Proceedings Committee, Mr. DeGrange amended his bill to mirror legislation introduced in the House by Del. Samuel Rosenberg, D-Baltimore.

There were concerns the previous legislation would make the Supreme Court decision a law, the senator said. Even through Mr. DeGrange disagrees with that interpretation, he has compromised.

"I think this will be more palatable to members when it gets to the floor," he said. "People would like to get the issue resolved."

Under the legislation, the government condemning a residential property would have to pay at least 110 percent of the highest appraisal and all relocation expenses for owners and tenants.

And, after relocating a small business, the government would pay the difference in net income for three years if profits drop below the average gains of the previous three years.

The government exercising eminent domain would also be charged with paying court fees.

"This is a step forward," said Bill Castelli of the Maryland Association of Realtors. "But it will not just change wholesale the eminent domain law in Maryland."

Critics of the bill said the legislation would add significant fees and create a much more onerous process.

Of the 400 eminent domain cases undertaken each year by the State Highway Administration, only about 5 percent go to court, said Joe Miklochuk of the SHA's Office of Real Estate.

"This would definitely tip the scales," he said. "It would tremendously increase not only our costs but the amount of trials."

But the uprooting of eminent domain means property owners should have greater deference, said Sen. James Brochin, D-Baltimore, who is a member of the committee.

Mr. Brochin said he owns commercial property in Baltimore and cannot imagine the logistical nightmare eminent domain would cause.

"I think you guys should be tipping the scales … to property owners," he said.

Tougher regulations
Mr. DeGrange's bill was not the only legislation about changing eminent domain heard by the Senate committee.

A bill proposed by Sen. Allan Kittleman, R-Howard, would hold a referendum on constitutional amendments to prevent any private property seizures for economic development purposes.

Forbidden eminent domain uses would include urban renewal, community revitalization or redevelopment, attracting new or encouraging existing businesses, job creation and generating tax revenue.

"(The Supreme Court) left it up to the states to deal with this issue, and Maryland should do that," Mr. Kittleman said. "It really is an issue between the rich and the poor, the haves and the have nots."

Local cosponsors of the bill include Sens. Janet Greenip, R-Crofton, and Bryan Simonaire, R-Pasadena. Identical legislation was heard in the Senate Judicial Proceedings Committee last year but it was never voted on.

Mr. Simonaire, a member of the committee, does not believe the bill faces a different fate this year. But Mr. DeGrange's bill has "traction," he said.

"People are very concerned about … eroding property rights," he said. "They want protection from the government."

Passing Mr. DeGrange's bill could be the first step in getting even tougher on when the government can seize land, Mr. Simonaire said.

"Maybe in future sessions we ought to be able to go down that path," he said.

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Annapolis MD Capital: http://www.hometownannapolis.com

Eminent domain used to advance pipeline: Somerset PA Daily American, 3/14/07

By Judy D J Ellich
The Somerset County [PA] General Authority has filed an eminent domain proceeding against a Boswell landowner to obtain a right of way for the Quemahoning pipeline project.

This is the first time the county has had to use eminent domain to obtain property for the project, county Solicitor Dan Rullo said. The county has obtained 127 of the 163 rights of way needed, according to county trail coordinator Brett Hollern.

“We are at 78 percent now,” he said.

Robert W. Gohn, who lives along Blacks Hill Road in Jenner Township, will be notified about the action Friday, Rullo said.

“I have not heard from them officially,” Gohn said Tuesday.

“The way this agreement reads. I just couldn't do it,” he added. “Once I sign it, they could do whatever they wished. They could put in more pipelines and more manholes.”

Gohn said he believes eminent domain affords him more protection.

“Eminent domain does kind of protect us poor folks out here,” he said. “They can put in what they need for the good of the public and not take more as near as I understand it. I didn't ask for this problem to begin with. I was going along pretty happy.”

Eminent domain is the power of the government to take private property for public use.

The right of way team is still in the process of obtaining the additional rights of way that require individual attention, Rullo said.

Michael Lear, a team member, has been working with Gohn for this project.

“He is a nice gentleman. He was very upfront,” Lear said.

The county is purchasing rights of way that are approximately 20 feet wide. The acquisition costs for all similar properties has been $3 per linear foot of permanent right of way and $1 per linear foot of temporary right of way, Rullo said. Temporary rights of way will be used to stockpile dirt and pipeline during construction.

An engineer technician with Somerset Planning & Engineering Services, Lear said having to go through a condemnation process will not change how Gohn is treated.

“We will do the best we can to restore his property to his liking the same as anybody else,” he said.

Members of the rights of way team have tried to meet one-on-one with landowners to review the project with them, tell them how it will affect their area and discuss the benefits of the Quemahoning pipeline.

Any land seized by eminent domain will be appraised to make sure the landowner receives market value for the property.

“The filing of the eminent domain proceedings will require a hearing before a board of view to determine if this right of way causes any diminution in his market value,” Rullo said in an e-mail.

Rullo said the county had exhausted all efforts in attempting to reach an agreement with Gohn.

A project of this magnitude usually requires municipalities to obtain about 10 percent of the rights of way via eminent domain, Rullo said, citing information from the U.S. Department of Agriculture's Rural Utilities Service, which is lending money for the project.

“I'm pleased this far into the process we do not have to have multiple takings,” he said.

Commissioner Pamela Tokar-Ickes was among the property owners who signed agreements allowing the pipeline to proceed through their property.

“Everybody understands that this project is very vital to the future of the county,” Tokar-Ickes said.

County officials have contacted all of the remaining property owners who have not signed a right of way agreement.

“We are dealing with different issues with all of them,” Hollern said. “We are making some headway and we hope to wrap things up here in the next few weeks.”

Once the agreements are in hand, money can be released for construction.

The $23.9 million project will lay 22 miles of pipeline from the Quemahoning Reservoir to Somerset Borough, feeding water to municipalities in northern and central Somerset County. The pipeline will proceed primarily along state Route 985.

Construction is scheduled to begin in the next couple months. It is to be finished within 18 months.

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Somerset PA Daily American: http://www.dailyamerican.com

Group wants to revise city property law : Columbia MO Daily Tribune, 3/12/07

By Matthew LeBlanc
A local Libertarian group wants to change city law to protect private landowners from efforts by the city to seize their property for economic development.

Prompted in part by a city consultant’s proposal to redevelop part of downtown, the Boone Liberty Coalition has begun a petition drive to force the Columbia City Council to consider changing its eminent domain ordinance. If the council doesn’t act, the proposed ordinance would go to a public vote.

The change would prohibit the city from taking land for private developments. It also would further define "public use," the legal principle under which the city can now condemn private property for projects such as street or sewer improvements.

Glenn Nielsen, a spokesman for the Boone Liberty Coalition, said his group launched its effort today in response to a plan from Sasaki Associates that would create a downtown "garden district" and extend Elm Street east to College Avenue.

The city has no immediate plans to implement any of Sasaki’s suggestions, but Nielsen said changes to the city law are necessary before final decisions on the plan, which could affect landowners east of Elm, are final. "The Boone Liberty Coalition has always been interested in the eminent domain issue," he said. "When we saw the potential to use eminent domain for a redevelopment downtown, we saw that as an opportunity to get involved."

Missouri lawmakers last year passed a measure that beefed up state condemnation laws to prohibit cities from taking property solely for economic development. Columbia leaders say they are bound by those changes regardless of whether the municipal law is changed. However, that doesn’t mean the city will not use eminent domain to secure land for projects included in the Sasaki plan.

City Manager Bill Watkins said the term "economic development" often can be vague. For example, he said, road projects such as the construction of an interchange at Gans Road and Highway 63 in southeast Columbia will lead to economic benefits for at least one private company in the area.

Watkins said it is the city’s policy to try to negotiate with property owners before condemnation is used to secure land for such projects.

"As with all of our projects, eminent domain is an absolute last resort," he said.

The Boone Liberty Coalition has proposed changes to the city law that would limit the use of condemnation to securing private land for utilities, acquiring abandoned property or ridding areas of "public nuisances," among other things.

Nielsen said the state law did not go far enough to protect the rights of private landowners because it does not specifically prohibit cities from turning properties over to private developers.

Dale Whitman, a University of Missouri-Columbia law professor who specializes in property law, said a move to restrict the ordinance could handcuff cities that need to complete projects such as road improvements and redevelopment plans. Cities can only turn condemned property over to private developers if they are able to prove economic development was not the only reason for the use of eminent domain, he said.

"If you take economic development literally, almost every project the city does has some impact on economic development," he said.

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Columbia MO Daily Tribune: http://www.columbiatribune.com

Don’t Cripple Eminent Domain: New York NY Times, 3/11/07

Opinion
New Jersey is so built up that long-term economic growth will depend on the revitalization of its cities with new industry, housing and stores. But significant redevelopment is unlikely to occur if the current campaign to demonize eminent domain and restrict its uses is allowed to succeed.

Joseph Maraziti Jr., a prominent land use lawyer and a driving force behind the effort to steer developers to the cities, argued at a conference in Trenton last month that eminent domain is an essential tool if urban land is to be cleared for redevelopment and that without it a handful of holdout property owners could block almost any redevelopment project. If that were to happen, he suggested, New Jersey’s economy would eventually suffocate since the state — already the most densely populated in the country — is running out of open land.

The New Jersey Legislature is nearing final approval of a measure that would tighten the standards for eminent domain and increase significantly what cities and towns would have to pay unwilling sellers. Approved by the Assembly but stalled in the State Senate, the bill arises in part from the negative reaction to a 2005 United States Supreme Court decision in a Connecticut case that upheld the use of eminent domain for private development, even if the land is not blighted. It also stems, however, from a well-founded reaction against politicians in a few New Jersey towns who have invoked the threat of eminent domain to pressure owners of viable small businesses to sell to favored developers.

Redevelopment advocates agree that legislation is needed to stop heavy-handed tactics and to make compensation reflect today’s prices. But they also fear that by providing incentives for property owners to hold out for exorbitant prices, the bill would make it difficult, if not prohibitively expensive, for cities to invoke eminent domain.

The sponsor, Assemblyman John Burzichelli, a Gloucester Democrat, says this is not his intention and that he only wants to insure that residents and owners are paid fair prices and are given adequate advance notice of plans to take their property, and that only truly blighted areas are condemned.

But one section of the bill is especially troublesome. It would base payments to owners on a combination of fair market value and estimates of the income that the redeveloped property would generate. While that approach might have merit in the case of long-term owners and residents, it would be an outrageously high price to pay slumlords, speculators and owners who leave toxic waste on their property.

Mr. Burzichelli says there is no way his bill could constitutionally distinguish between good owners and bad owners. But the state’s public advocate, Ronald Chen, who supports Mr. Burzichelli’s bill, says the flaw can be “fixed in a minute. ” If so, the Legislature should fix it.

Equally important is that the Senate take whatever time it needs to review this complicated issue. Changes in the law may be required in the interest of fairness, but they should not reward speculators or be so crippling as to jeopardize the future health of New Jersey’s cities and its economy.

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New York NY Times: http://www.nytimes.com

Delaying New Jersey's Eminent Domain Reform: New Jersey Eminent Domain Blog, 3/11/07

By William Ward
“Don’t cripple eminent domain” in the New Jersey section of the New York Times (March 11, 2007) is a misleading opinion.

The headline is consistent with arguments expressed by Joseph Maraziti, Jr., Chairman of the New Jersey State Planning Commission; Anne Babineau, real estate development attorney; and William Dressel, executive director of the League of Municipalities. These advocates for developers and redevelopment projects harp on one theme: that the power of eminent domain given to municipalities is under threat by the bills proposed before the New Jersey Legislature. This is simply not true: neither the bill sponsored by Assemblyman Burzichelli and passed by the Assembly, nor the Senate bill S-1975 sponsored by Senator Ronald Rice, diminish the power of eminent domain.

The bills seek to tighten the definition of blight, provide better notice to effected property owners and tenants, expand the time within which to contest municipal action, and shift the burden of proof regarding blight to the municipality. Although many activists against eminent domain abuse have called for a moratorium on the use of eminent domain, there is no support for this in either the Assembly, Senate or the Governor’s office. The bills do not address eminent domain abuse per se: they simply tighten procedures for declaring property blighted and bestow additional benefits on the affected property owners.

In addition to the expressed fear regarding the curtailment of eminent domain, the advocates for development groups raise the specter of increased costs for acquisition, benefits to speculators who own property in the redevelopment area, and benefits to property owners who own contaminated sites:

But one section of the bill is especially troublesome. It would base payments to owners on a combination of fair market value and estimates of the income that the redeveloped property would generate. While that approach might have merit in the case of long-term owners and residents, it would be an outrageously high price to pay slumlords, speculators and owners who leave toxic waste on their property. (New York Times)

These objections are exaggerated and can be dealt with effectively if they arise in a particular eminent domain case. Most of the property owners affected by redevelopment projects are single family residential, small business owners, and tenants who have businesses or residences within a designated area: they are not speculators or slum lords, trying to get rich on eminent domain proceedings. That’s simply not the pattern of ownership we see in the many projects with which we are involved. But we do see developers trying to acquire properties for much less than market value in order to maximize the profits in their development. It’s disingenuous for the developers to argue that a revised statute will inure to the benefit of the “wrong” people.

The last iteration of Senator Rice’s bill included new sections for the creation of a Land Use Court. Senator Rice’s objective is to expedite the process so that eminent domain cases and prerogative writs cases do not linger in the court system to the detriment of the property owners. At the legislative hearing before the Senate Community and Urban Affairs Committee last Monday, two representatives from the Administrative Office of the Court (AOC) testified against the establishment of a Land Use Court. Dan Phillips said, “The creation of a separate court would not expedite these cases. We move these cases pretty quickly. We don’t have backlogs.” He reasoned that there are not enough eminent domain and land use cases to justify a new court; that the framers of the New Jersey Constitution created one Superior Court to eliminate specialized courts. On a fiscal note, Phillips estimated the cost to fund the Land Use Court at $9-10 million per year. There is no money in the state budget for this.

Senator Rice said he never intended to create bureaucracy but instead wants to assure people that there will be an expedited process for their cases. “Six months is a long time,” he said. “I need the time factor to be cut down…You think 6-8 months is reasonable; I don’t.”

This objective can be achieved administratively by the AOC and the respective county assignment judges through the tracking of these cases in the court system once they are filed. Rice requested a case flow analysis of 250 cases processed by the AOC.

The eminent domain reform bill must be voted out of committee and considered expeditiously by the full Senate. The effective date for the bill should be the date of the bill’s enactment and not 90 or 120 days later and, most importantly, it should apply to all pending eminent domain matters.

Senator Rice’s Community and Urban Affairs Committee will meet Thursday March 15 at 10 a.m. in Committee Room 6, 1st Floor, State House Annex, Trenton. If another version of S-1975 is made available prior to the hearing, we will post a copy as soon as it is available. All interested parties should give comments.

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

WA House approves another eminent domain measure: Vancouver WA Columbian, 3/10/07

The [Washington] state House unanimously passed a measure (House Bill 2016) Saturday meant to protect residents from having their property condemned through eminent domain for a public purpose. It now heads to the Senate.

The bill would give property owners who lose their land because of eminent domain the right to buy back the property at the price it was sold, if it is unused within seven years.

The measure would also require any effort using eminent domain to consider alternative options. It would increase the amount of money a property owner would be reimbursed if they incur fees while trying to protect their property, and makes it law that eminent domain cannot be used solely for the purpose of economic development.

"Taking private property for public use is never easy for those affected, but this bill will help make the process fair," said the bill's sponsor, Rep. Larry Springer, D-Kirkland, in a release.

The bill passed after a flurry of amendments offered by Republicans who said the measure didn't go far enough in protecting property owners.

The measure is in response to a 2005 ruling by the U.S. Supreme Court in a Connecticut case, Kelo v. City of New London, that ruled a government agency could condemn private property for private developments.

"There are appropriate uses of eminent domain, but taking private property and turning it over to another private owner is not one of them," Springer said.

The House approved another measure earlier this week that requires better notification of citizens before their property is condemned.

That bill evolved in reaction to a state Supreme Court decision involving Barbara and Ken Miller, whose property in south Tacoma was condemned by Sound Transit to make way for a parking lot for a train station.

Sound Transit posted a notice on its Web site of the meeting where the condemnation action would be taken. The Millers never saw the Web site notice, and appealed. But the state Supreme Court ruled 5-4 that the Web site posting satisfied the notice requirement.

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Vancouver WA Columbian: http://www.columbian.com

Claremont may take over water company: Inland Valley Daily Bulletin, Ontario CA, 3/11/07

Election results could provide impetus for buy
By Will Bigham
A shift in power on the City Council following Tuesday's election vastly improves the odds Claremont will make another move to take over the city's water service.

Purchasing the private Golden State Water Co.'s holdings in the city has long been a priority, but friendly negotiations reached an impasse in mid-2005 when Golden State rejected what it considered a lowball offer from the city estimated at between $40 million and $45 million.

The city's only recourse after that - eminent domain proceedings - needed the support of four of five council members, but only three favored the option.

But with Councilwoman Jackie McHenry - an opponent of eminent domain - voted out of office last week, the reconfigured council is poised to take another look at the eminent domain option.

"The purchase of the water company, and the need for local control of our water, resonated well with voters because they were thinking that something needs to be done," Councilman-elect Sam Pedroza said. "The way the system is set up now with Golden State is not working."

Claremont residents and city leaders have long maintained Golden State's water rates are too high. That concern led to years-long discussions of purchasing Golden State.

"We didn't move forward with very much in the last couple years; we dealt with micro-managing issues," Councilwoman Ellen Taylor said.

Before moving forward with a purchase of the water company - which would include Golden State's water delivery apparatus in the city, its water rights, and possibly its 47-percent share of the Pomona Valley Protective Association's holdings - the city must first conduct a detailed analysis to determine the value of Golden State's Claremont holdings, City Manager Jeff Parker said.

In 2005, Golden State, then named the Southern California Water Co., told the city that the value of its holdings, not including its share of PVPA, was more than $100 million.

The city balked at the figure, and representatives for Golden State believe the value of its holdings has only increased in the past two years.

The added cost of Golden State's PVPA holdings "could be tens of millions more than the $100 million," said Joel Dickson, senior vice president of Golden State.

"It would be a very risky proposition for Claremont to take over Golden State, and it would be the customer who would be at risk," Dickson said. "Claremont customers would pay higher rates for at least 30 years."

If the City Council decides to pursue the purchase of Golden State through eminent domain, the cost ultimately would be decided in court, Parker asserted.

The city would then issue bonds to pay for the acquisition, and fund repayment of the bonds through increases in water rates during a 30-year period.

"The cost part of it, absolutely, there's a point where it's no longer feasible," Pedroza said. "But this is water, and water, being a natural resource, it's beyond just what we think the system is worth. There's also a benefit to the city in having local control."

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Inland Valley Daily Bulletin, Ontario CA: http://www.dailybulletin.com

Does blight make it right? Lynchburg VA News and Advance, 2/10/07

By Conor Reilly
A two-story Polk Street home built in 1818 is a clear link to Lynchburg’s past.

Home to the city’s first poet, Bransford Vawter, the property fell into severe disrepair and the owner showed no willingness to restore it.

Despite pleas from local residents and several offers to buy the dilapidated property, the owner refused.

As a last resort, the city government in 2006 stepped in and exercised an important, yet controversial, power. To save the home from demolition, officials took the property using eminent domain and sold it to the Association for the Preservation of Virginia Antiquities.

But because of a Virginia General Assembly action this year, city officials are concerned they may lose the tool that allowed them to save the Vawter House.

“I feel personally that it was overreach by the General Assembly,” Vice Mayor Bert Dodson said. “This is real crucial leverage we have to hold people accountable.”

The tool is called the “spot blight” program. It gives cities across the state the ability to target dilapidated properties that depress neighboring property values, and in some cases can harbor criminal activity.

Lynchburg has used the program on 60 blighted properties over past eight years, raising property values by $1 million. Four more homes will be in front of City Council at its next scheduled meeting.

State lawmakers were responding to a controversial 2005 ruling by the U.S. Supreme Court called “Kelo v. the City of New London.” It allowed an economically depressed Connecticut town to take private homes and transfer the properties to a company that would generate more jobs and tax revenue for the locality.

Both Del. Shannon Valentine, D-Lynchburg, and Sen. Steve Newman, R-Lynchburg, voted for the restrictions on eminent domain. Newman became a key late-session player who helped shepherd the legislation.

The bill would constrict the definition of blight from a property that endangers public health “because the structure … is dilapidated” to a property that “is vacant and constitutes a public nuisance” or “is beyond repair or unfit for human habitation.”

Lynchburg officials worry that if the governor signs the bill into law, it will be so restrictive that it will eliminate the spot blight program, which is designed to remove rundown properties from irresponsible owners.

City Council recently voted 6-0 to send a letter to Gov. Timothy M. Kaine asking him to amend the legislation to include a broader definition of blight. The city’s Redevelopment & Housing Authority voted to do the same.

Dodson, who met with the governor in Roanoke on Thursday, said eminent domain “is definitely on his radar.”

City Attorney Walter Erwin said the General Assembly may have missed the point of spot blight.

“The city wants to preserve rather than demolish our housing stock,” he said.

But if officials have to wait until a structure is “beyond repair,” as it states in the legislation, cities will have no choice but to hold off on eminent domain proceedings until homes like the Vawter house have to be razed.

“You’re losing a little bit of your history when you do that,” Erwin said.

Ed McCann, director of the city’s housing authority, agreed.

“The alternative to our program is demolition of houses,” he said. “We’ve done that before; we’ve demolished a lot of houses. We think there’s a better way now.”

Erwin said he was surprised by the General Assembly action, especially since it passed a resolution in 1994 outlining the benefits of the spot blight program. That document says that dilapidated properties could create havens for crime, impair growth and cause an exodus of local businesses from blighted areas.

“All those problems are just as true today as they were back when that study was done,” he said.

Some legislators, including Del. Ben Cline, R-Rockbridge, were concerned that localities might be using the spot blight program with an ulterior motive in mind.

“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 revenue,” he said during the session.

Dodson took umbrage with that suggestion, and said that the express purpose of the program is to turn dilapidated properties into productive and beautiful ones.

“To say that we want to increase tax revenues (using the program), it’s an absurdity,” he said.

McCann said that increased property values are simply a byproduct of the program’s main goal, which is to eliminate blight.

Dodson also pointed out that blight isn’t just a problem in the inner cities. The housing authority has initiated eminent domain proceedings in the Richland Hills and Fort Hill neighborhoods and on Link Road, to name a few.

“This could happen in any older neighborhood,” he said.

The city’s spot blight initiative also has been a tool to create new low-income housing.

Lynchburg Neighborhood Development Foundation has restored several properties acquired by spot blight, turning them into apartments for low-income residents.

“It’s been very helpful,” said Executive Director Laura Dupuy.

She said that under the new legislation, her organization would only receive structures that could not be salvaged.

“I don’t need those kinds of properties,” she said.

This year’s legislation was a reaction, or some say an overreaction, to the 5-4 Kelo v. New London decision.

It held that the town of New London, Conn., could seize private homes that were not blighted and turn it over to Pfizer, which planned to use it as part of larger redevelopment plan.

“The Kelo case was about Connecticut law,” McCann said. “The Connecticut law is not the Virginia law.”

He means that the divided Court decided to defer to individual state’s rights to enact laws.

Connecticut lawmakers decided it was appropriate to use eminent domain to further economic development efforts. But, Erwin said, the same has never been true in Virginia.

The state’s Constitution says nothing about taking property for economic development, he said.

While it’s certainly an emotional issue, Erwin said he’s never seen even one Virginia case that has approached the situation in New London.

But lawmakers this session said that Virginia property owners need clear protections against an overreaching government.

The argument is often condensed into one about the protection of private property rights.

“Blight was never meant to mean simply ugly,” Cline said on the session’s closing day. “Failure to paint is not a reason to take away an individual’s property rights.”

Erwin said he agreed with that statement. But truly blighted properties have an adverse impact on neighboring properties, and even entire neighborhoods.

“What about property owner responsibility?” he said. “Why do you want to protect the rights of one individual and impose on the rights of other properties?”

He said most average citizens would say that local governments should have the power to correct the problem and get a dilapidated property in the hands of a responsible person.

McCann said that “a good many” spot blight cases come from neighbors themselves.

Property owners who live near deteriorating homes have suffered a property value decrease and, in extreme cases, been unable to sell their homes.

“They have property rights, too,” he said.

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