Towns face abandonment issues: Telluride CO Daily Planet, 5/3/07

Governments rarely walk away from eminent domain after the trial's over

By Reilly Capps

A city wants a park. So they offer a landowner what they think is a fair price. He turns them down. The town uses its powers of eminent domain to take the case to court. A jury says the land is worth more than twice what the town offered. The city doesn't have the money. So it abandons the effort.

And so today, Fort Worth, Texas, has one fewer park.

This was in 1929, and the town couldn't come up with the $81,000 a jury awarded the landowner.

It was a precedent-setting case in eminent domain law. It helped establish the fact that governments have the right to abandon cases for any reason, at any time. In Colorado, it's enshrined in the statutes.

It could happen in Telluride next week.

Fundraisers still need $2 million in private donations. And this town is full of affluent and generous people.

But if donors don't come through by Friday, May 11, Telluride will have to give up its eminent domain taking of 570 acres at the last possible moment. It will have to pay the lawyers and throw in the towel.

It would be an unusual move.

It doesn't happen very often, lawyers said, that towns fall short of cash.

“In most situations, the condemning authority won't undertake condemnation unless they've got the money set aside,” said Allan Hale, a lawyer for the Denver firm Hale Friesen who works on eminent domain issues. “I'm not aware of a case where they actually had to abandon the case [due to a high verdict]. Frankly, it constitutes poor planning.”

Many Telluriders hold that same opinion. They feel that voters should have accepted a settlement deal last February that would have preserved 91 percent of the land as open space.

Though the power of governments to take away property through eminent domain is broad and well-established, towns regularly abandon those takings for all kinds of reasons, big and small.

In Jacksonville, Fla., for example, the government wants to build a port for cruise ships, but worries the port won't pay for itself. A Los Angeles area redevelopment plan starts to look like an economic loser, and the town council drops it. In both cases, like the majority of cases where the eminent domain action is abandoned, the government gave up the case before it went to trial.

“[Abandonment] typically happens in the planning stages, and before they file the lawsuit,” said Andrew Brigham, partner in a Florida firm that represents property owners. “It is not the usual case that the government decides to abandon when they've already filed suit.”

Jim Cornehls, a law professor at the University of Texas at Arlington, said he almost never hears of governments coming up short of money.

“I've been teaching land use law for 20 years. I thought I would've run across something like this,” Cornehls said. “If it's $50 million and they're only $2 million short, why can't they come up with the money?”

Telluride - though big in its own mind - is a little town. And $50 million is a lot of money. It represents almost twice what the government spends to run the town every year.

In the event the town fails, some might feel sorry for Telluride, but Brigham doesn't, exactly. Governments can always walk away from cases and lose only legal fees. The landowners he represents can't.

While the Delta jury favored the landowner in this case, Brigham said he's seen too many cases where the jury favored the government, and he felt the property owner was shortchanged.

“Condemnation takes away the owner's right to say ‘no thank you,'” Brigham said. “This is kind of an unusual case in that it's the government who maybe risks getting their rights trampled.”

And the town of Telluride that risks having one fewer park.

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

Ritter signs bill aimed to stop Army land condemnation: Pueblo CO Chieftain, 5/4/07

By Charles Ashby

Though there's some question about whether it will actually do anything, Gov. Bill Ritter signed a measure Thursday that several Southeast Coloradans hope will prevent the U.S. Army from expanding a training site in their back yards.

Under an azure sky amid a picnic-like atmosphere on the east side of the state Capitol grounds, complete with food and a live band, a group of ranchers and residents from several Southeastern Colorado counties ventured to Denver to watch the governor sign HB1069.

The measure is designed to block the near tripling of the 238,000-acre Pinon Canyon Maneuver Site. Introduced by Rep. Wes McKinley, D-Walsh, and Sen. Ken Kester, R-Las Animas, the bill withdraws the state's consent to give up jurisdiction over any land that the U.S. Army might acquire through condemnation.

It is believed to be the first time any state in the history of the nation has ever tried to do that.

Regardless, Ritter and other lawmakers were a bit hesitant to tell local landowners that the measure will do them any good in preventing the training site's expansion by the 418,000 acres the Army says it wants.

"I don't want to raise expectations because I don't know at the end of the day if truly we can stop the Army or the United States government from using the power of eminent domain to seize that property," Ritter told about 50 people who attended the bill-signing ceremony. "If in fact they decide to do that, I'm not sure whether legally we can (stop it). So I sign this bill mindful that this may be helpful, and maybe it will be the deciding factor . . . but I want to say the reason I'm doing this is it has everything to do with that ranching community and the people who would be impacted."

The U.S. Constitution gives the federal government the power to condemn, purchase or otherwise acquire land for such things as courthouses, post offices or military installations, but only if the state in which that land is located agrees to release any jurisdiction over it. While the measure Ritter signed includes a clause that says, "the General Assembly recognizes that it is unable to prohibit the federal government from using the power of eminent domain," McKinley said he believes it just may be enough to do the trick.

"The government is to protect the life, liberty and property," McKinley said. "That's the only reason we have a government, and this (bill) is a prime example about how that works."

Still, not everyone in the Legislature believes the measure will do the state any good.

Several, particularly those from El Paso County where most of the state's military installations are located, said it sends the wrong message to the Army about whether the state welcomes it here.

"It is not a good policy statement in the sense that it sends a message to the Department of Defense that we, the state of Colorado, just would as soon the Army not do this," said Rep. Bob Gardner, R-Colorado Springs. "The practical problem is, the Army doesn't want to use eminent domain, that's not their preferred course. So, what is this bill about? The bill is to try to discourage the Army, and try to head the Army off. This doesn't prevent eminent domain under the federal condemnation act."

For many lawmakers, the point behind the measure is not to send a message that the state doesn't want the Army here, but that it doesn't want the Army to take anyone's land through condemnation.

Army officials themselves said they intend to get the land they need through easement agreements and outright purchases.

Their word, however, just isn't good enough, McKinley and Kester said.

"When you see the passion in these people and why they're here and why they've made the six or eight trips up here, you can understand this is one of the most important things that's probably happened in their lives," Kester said. "It's one of the most important bills I've ever carried, and I'm just proud to be representing the people of that part of Colorado."

Pueblo CO Chieftain: http://www.chieftain.com

'Landowner's Bill Of Rights' Gains House Approval: Tyler TX Morning Telegraph, 5/4/07

By Roy Maynard

Further tightening of the government's eminent domain powers could come if the Texas Senate supports some recently approved House legislation.

Two bills by Rep. Bill Callegari, R-Katy, gained final approval from the House on Thursday, and now move to the Senate.

One piece of legislation, the "Landowner's Bill of Rights," is joint-authored by Rep. Dan Flynn, R-Van, and co-authored by Rep. Chuck Hopson, D-Jacksonville.

"There's a mood in this legislative body to protect property owners," says Hopson. "I know it's an important issue for East Texas."

The Landowner's Bill of Rights would ensure that those whose property is under the threat of being seized receive a written statement of their rights and options.

"It gives landowners a way and an ability to fight municipalities and the state if they come to take their land," Hopson says. "It describes, in very simple terms, the rights a landowner has."

The Legislature addressed the government's powers to take property for a public purpose with a set of laws passed in 2005.

Another of Callegari's new bills would address the seizing of property in older neighborhoods, by tightening the rules for a city attempting to seize "blighted areas" for development.

"State law provides that certain governmental (bodies) may exercise the right of eminent domain to cure the problems of urban slum and blight," the bill analysis for CSHB 3057 says. "The statutory definitions for slum and blighted areas are arguably inappropriately broad and imprecise, and conducive to subjective interpretation where any material defect on a property may render it eligible for condemnation."

The bill would redefine "slum" and "blight" and would require that property meet certain conditions to be considered eligible for condemnation on grounds of blight.

Like other bills regarding eminent domain, this comes as a reaction to a U.S. Supreme Court ruling that said cities can use eminent domain for private development as a way to generate tax revenues.

Tyler TX Morning Telegraph: http://www.tylerpaper.com

Two rulings support government’s attempt to redevelop Indian Springs mall site: Kansas City MO Star, 5/4/07

By Mark Wiebe

A bankruptcy judge delivered a near-fatal blow to Indian Springs shopping center today when he ruled that Wyandotte County’s Unified Government could continue its efforts to condemn the mall.

The mall’s owners had a decade to improve their property, Judge Robert D. Berger said in his ruling from the bench. Now, it is time to give the Unified Government a chance to pursue its vision for a 100-acre mixed-use development on the Kansas City, Kan., property.

“The city will probably do much better with this land,” Berger said. “And sadly, it couldn’t do any worse.”

The owners of Indian Springs, Kansas City Mall Associates, took their case to U.S. Bankruptcy Court in Kansas City, Kan., in March.

Such a move brings about an automatic stay, preventing creditors and other interested parties from acting against the debtor’s property. A judge, however, may find grounds to lift the stay.

After a two-day motion hearing, Berger concluded the stay did not apply to the Unified Government’s action, allowing condemnation proceedings to move forward in state court.

Earlier in the day, before Berger’s ruling, the Unified Government won another round when a Wyandotte County District Court judge ruled it has authority to conduct eminent domain proceedings against the shopping center.

Chief Judge Philip L. Sieve also named three certified appraisers to determine the value of the mall at 4601 State Avenue.

But even with the two rulings, the Unified Government still has another hurdle to cross in another Wyandotte County courtroom. That’s because the mall’s owners have also filed a suit challenging the Unified Government’s blight designation. The government made that conclusion in November in advance of approving tax increment financing for the proposed development.

Attorneys for the mall’s owners tried to persuade Berger, the bankruptcy judge, that he should enforce the automatic stay and allow the mall to redevelop the property as a business park.

They alleged the Unified Government had acted hastily and secretly, going so far as to talk with Wal-Mart about locating a store at the site without telling Kansas City Mall Associates.

“That doesn’t smack of fair play to me,” said attorney Carl R. Clark.

Unified Government attorneys countered that the mall’s owners had done little to make the mall a viable business and that their neglect was contributing to blight in the neighborhood. The bankruptcy filing, they argued, was a ruse to stall the condemnation.

“This debtor was not insolvent at the time of the bankruptcy filing,” said attorney Thomas M. Mullinix.

In his ruling, Berger said he had toured the mall and noted several problems, including a poorly maintained parking lot and water damage in the former Montgomery Ward store that he called a “disaster.”

He used the damage there as an example of the owner’s negligence. The building, he said, “simply wasn’t taken care of.”

That negligence, coupled with the mall’s negative reputation in the community, he said, would make it difficult for the mall’s owners to convert the mall to a business park.

Significant work would have to be done to attract the kind of tenants that could improve the mall’s cash flow and make the conversion to a business mall possible, he said. But Berger wasn’t convinced the mall’s owners were up to the task or that they had any secured debt to reorganize.

“The debtor’s had more than 10 years to take care of the building,” he said. “…Ten years later the debtor wants more time. I don’t think the debtor should have any more time.”

Kansas City MO Star: http://www.kansascity.com

B measures up; A does not: Pasadena CA Star-News, 5/3/07

The competing measures A and B on next week's Arcadia special-election ballot are almost enough to make a voter cry "A pox on both your houses."

Measure A, which has the nominal advantage of being quirky and populist, was a people's measure specifically designed to save the beloved Rod's Grill by preventing any and all auto-related businesses along the stretch of Huntington Drive where the Rusnak Mercedes dealership wishes to expand.

Excepting that, see, the city is not going after Rod's Grill anymore, but rather is seeking to use other area properties for the expansion. And some businesses in the area - a Jiffy Lube, for instance - would be given the boot by Measure A.

Measure B, the City Council's response, makes the odd promise that so long as Rusnak - the city's only new-car dealership and its largest sales-tax provider - is allowed to expand, the city will never, ever use eminent domain for redevelopment purposes.

No one - no one with a brain, a heart or a sense of outrage - is for the government's taking of property willy-nilly, no matter the fiscal advantage.

It's a process that has been abused over and over in this nation; its excesses are the very thing that has created the equally excessive "black helicopter"-like paranoia about eminent domain.

That's what drove the California initiative last year aimed at eliminating all eminent domain, which thankfully didn't pass.

We say thankfully not because we are pro-eminent domain but rather because it's a little bit irrational to remove the hammer entirely, rarely used as it should be, from the government toolbox.

It's like passing a referendum making war - all war - illegal. It's a swell notion. War is hell. But some wars are just.

Same with eminent domain.

Ninety-nine percent of the time, the little guy is right - the guy who runs the tavern that the developer has to build the skyscraper around. Sometimes, the little guy is wrong, and he is harming the many in the name of only himself.

This time, Rod's is saved anyway - the city of Arcadia, which had been unconscionably lowballing its owner in its offers for his property, has dropped its efforts to take the restaurant for Rusnak space.

But all five members of the City Council back Measure B, which would eliminate the city's ability to use eminent domain within its borders. If both measures pass and one gets more votes than the other, it goes into effect, and the other doesn't.

Since the city of Arcadia can really use the tax dollars spun off from Rusnak, so that it doesn't make any sense to prevent the dealer from operating in the city as Measure A would, we recommend a "no" vote on A and a "yes" vote on B on May 8.

Pasadena CA Star-News: http://www.pasadenastarnews.com

Limits OK'd on eminent domain: Dallas TX Morning News, 5/3/07

House backs protections for property owners in older areas

By Karen Brooks

Protections for older, run-down or impoverished neighborhoods and stronger leverage for property owners whose land is targeted for development were endorsed by the House on Wednesday, with more restrictions on eminent-domain projects moving through the Legislature.

Legislation by Rep. Bill Callegari, R-Katy, bolsters the efforts of some Dallas neighborhoods, most recently around Fair Park, to guard against sweeping plans for redevelopment.

Key to those safeguards are requirements that governments meet stiffer criteria before they can declare a property "blighted," which triggers eminent-domain powers. It also requires that those entities can only declare one property "blighted" at a time, instead of entire areas in which only one property meets the criteria.

"This keeps you from being able to wipe out entire neighborhoods," said Rep. Yvonne Davis, D-Dallas. She worked with Mr. Callegari on the bill, which passed the House on a voice vote and faces a final procedural vote today before it heads to the Senate.

The issue of eminent domain – governments' rights to seize land for projects that serve a public purpose – is heated in Texas. In 2005, the Legislature passed a law that banned governments from using the power for commercial development, restricting it to "public use" projects such as museums, libraries and community centers.

The law was inspired by a U.S. Supreme Court ruling that said cities can use eminent domain for private development to generate tax revenue. The ruling prompted a national backlash, as state legislatures moved to protect against land grabs for private, commercial use.

Texas law allows cities to use eminent domain in "blighted areas" for development – but the definition of "blight" left a lot of poor, impoverished and minority communities vulnerable to the whims of cities that want to "clean up" those neighborhoods, critics said.

The legislation approved Wednesday requires that the property be proven to fit at least four of the following criteria before it can be considered blighted: It's uninhabitable, unsafe or abandoned; it has inadequate sanitation; a natural disaster made it unsafe; it's environmentally contaminated; and it is the site of repeated criminal activity.

"Blight means different things to different people," Ms. Davis said. "You can't take it away because of the fact that you don't like the way someone painted their house."

Ms. Davis pushed through sections of the legislation that require entities to pay relocation costs and "replacement costs" of taking the property, not just the value of the property.

The legislation is a strong message to the city of Dallas and the Foundation for Community Development, which a few months ago was considering a push for stronger eminent-domain powers – including declaring entire areas "blighted."

Community leaders met with residents of the Frazier neighborhood in South Dallas, the target of the Foundation's renewal project. The area has a long-standing distrust of eminent domain after city leaders used it against hundreds of landowners, most of them black, in 1969 to expand Cotton Bowl parking for the Dallas Cowboys. The team soon left for Irving.

The backlash to the most recent plan was so strong that the city backed down from its plans. Instead, Dallas officials say, the city is simply monitoring efforts to strengthen the 2005 Texas law.

"We saw the writing on the wall," said Larry Casto, the city's chief lobbyist.

Proposed language in some of the other bills, including a massive measure that was delayed late Wednesday with a technical maneuver, could lead to court cases and slow down development if the projects are too expensive, said Frank Sturzl, executive director of the Texas Municipal League.

Dallas officials said Wednesday that the new laws wouldn't affect them much, since current law already restricts their ability to use eminent domain for economic development.

The House also approved the "Landowner's Bill of Rights Act," which would inform property owners of their right to a "good faith effort" by the entity trying to acquire their land to pay a fair price. The landowner would also be entitled to an assessment of damages resulting from having to relocate and a hearing, with a right to appeal any judgment.

The attorney general would be required to draw up the bill of rights by August.

Also winning approval was a constitutional amendment that would let entities sell acquired property back to their original owners if the development plans for the property don't pan out – but at the original price they paid for it, not current market value, which is sometimes lower. That measure now heads to the Senate, and if it's approved there, voters would consider it in November.

Dallas TX Morning News: http://www.dallasnews.com

Federal lawmakers unveil new legislative strategy to block DOE’s power line plan: Mid-Hudson News, Newburgh NY, 5/4/07

A number of House members, including the Hudson Valley’s Maurice Hinchey and John Hall Thursday unveiled a bipartisan legislative strategy to block the US Department of Energy’s (DOE) proposal for two “National Interest Electric Transmission Corridor” designations, including the New York Regional Interconnect plan.

Unless Congress acts, the DOE could allow the federal government to usurp state authority for siting electric transmission lines and could force the development of power line projects in cases where states have said they don’t want them.

That designation would also allow the Federal Energy Regulatory Commission to permit private corporations to use federal eminent domain powers to seize private property in order to develop those power lines.

“In the case of NYRI, it’s a power line proposed that lies entirely in the State of New York; it doesn’t even cross a boundary, so it is not subject to interstate commerce clauses,” said Hall.

The other designation would be for a Dominion Virginia Power company proposal.

In an effort to block the power lines and eliminate the use of eminent domain, the House members are seeking legislative language that prohibits the DOE from using any money to make NIETC designations.

Hinchey said he is gaining support for legislation that would stop the eminent domain provision and block National Interest Electric Transmission Corridor designations.

“We’re working in every way that we can to protect the people’s interests through the Delaware River Valley and elsewhere through central New York and down into Orange County,” he said. “The number of sponsors for the bill and the interest that we have expressed in dealing with it through the appropriations process is increasing. We are getting more and more support for our efforts and that leads me to believe that we have a better chance of being successful.”

The other House members signing on to battle to stop the eminent domain plans from moving forward are Michael Arcuri of New York and Carney of Pennsylvania.

Mid-Hudson News, Newburgh NY: http://www.midhudsonnews.com

Willets Point master plan unveiled: Queens Courier, Bayside NY, 5/3/07

By Pete Davis

Mayor Bloomberg unveiled the city’s most specific plans to date to transform the 60-acre Willets Point neighborhood into a vibrant, mixed-use destination, replete with retail shops and restaurants, office space, housing, a school, hotel and convention center.

After decades of talk concerning redeveloping the Willets Point area known to many as the “Iron Triangle,” Mayor Michael Bloomberg and city officials unveiled comprehensive plans that would transform the area into a dynamic mixed-use facility.

The current 60-acre site, which Bloomberg described as blighted and environmentally contaminated, would undergo a transformation complete with more than 1 million square feet of retail shops and restaurants, 500,000 square feet of office space, 5,500 units of housing, a school, hotel and convention center.

“We believe that out of the ashes can rise New York City’s next great neighborhood,” Bloomberg told officials at the Queens Museum of Art on Tuesday, May 1 before public scoping hearings to review the environmental impacts of the project took place later that day.

During the unveiling of the master plans, Bloomberg also spoke about the 20,000 construction jobs, 6,100 permanent jobs and more than $1.5 billion in revenue it would generate for the city during the next 30 years.

One of the chief components of the project before it can go forward centers around the city acquiring all of the land inside the project’s boundaries from the private owners.

City officials have said they are prepared to meet with the current landowners to discuss purchasing the land; and they are in the process of finalizing a business relocation and assistance program they will offer to all of the current businesses in the area.

However, the project’s proposal is being met with some objections, primarily by the 250 businesses (about 225 are in the auto-body industry) and workers that currently occupy the area.

Hundreds of Willets Point workers and business owners donned white t-shirts that read ‘Willets Point, It’s Our Land,’ and chanted ‘Heck no, we won’t go,’ outside of the Flushing Library on Tuesday evening during the public hearing. In addition, people packed the auditorium downstairs pleading with city officials to leave their land alone and find another place for the project.

“I think he’s [Bloomberg] truthful in the way he said he is going to go forward with the project, but I don’t believe for a second that he’s going to treat the business owners fairly,” said Jerry Antonacci, who has owned Crown Container, a 25,000 square-foot waste transfer and hauling station in Willets Point with his brother for 35 years.

Queens Borough President Helen Marshall, who has been a staunch proponent of redeveloping the Willets Point area during her tenure, stressed that neglecting the businesses in the area would not occur.

“A crucial component of the plan unveiled today is a business relocation program that includes equitable, financial and technical assistance and job training support,” Borough President Marshall said. “As we move ahead we must not leave this behind.”

In addition, Bob Lieber, President of the city’s Economic Development Corporation, said that his office is working with the city’s Department of Small Business Services to accommodate as many of the 250 businesses as possible in relocating.

However, if the city does not reach agreements with all of the landowners, Bloomberg maintained he would not let a few holdouts stand in the way of the project moving forward - raising the specter of the use of eminent domain.

According to New York State law, eminent domain is used to give due regard to the need to acquire property for public use as well as the legitimate interests of private property owners, local communities and the quality of the environment.

“My hope would be that we wouldn’t have to use eminent domain at all,” Bloomberg said. “The city is going to try to do everything it can to come to an economic agreement where it’s in everybody’s interest, and it would be a win-win.”

Although the plans were the most comprehensive regarding the project to date, there are many public approval steps before the city chooses a developer from the eight private developers that have already submitted proposals.

The timeline for the city to choose a developer is currently slated for the summer of 2008, and within the next two years, environmental cleanup at the site would commence putting an end to business owners’ hopes of staying at their current location.

“I feel like I’ve been given a death sentence, and I’m waiting for the guy to come and take me to be executed,” Antonacci said. “We’re up against the city. We’re going to fight as best as we can, but I think in the long run, we all know we’re through.”

Queens Courier, Bayside NY: http://www.queenscourier.com

Building owners concerned about potential use of eminent domain for convention center: Midland TX Reporter-Telegram, 5/2/07

By Colin Guy

After receiving a "letter of consideration" from Midland Mayor Mike Canon the owners of Reynolds Brothers Reproduction and the owners of at least six other nearby properties have signed a petition indicating that they are opposed to having to relocate their businesses in order to accommodate a new convention center.

Chuck Reynolds told the Reporter-Telegram they have visited with Canon and At-large City Councilman Wes Perry twice about selling their property should voters approve the construction of a new convention center in November and have informed them that they are not interested in relocating.

According to the letter sent to property owners in the area, they were provided with the options of either receiving 150 percent of the value most recently determined by the Midland Central Appraisal District, or selecting an appraiser from a list provided by the city to provide a new appraisal while the city does the same. The property owner would then receive 125 percent of the higher of the two appraisals.

Reynolds said the possibility of the city using eminent domain to acquire land for a convention center was raised during the most recent meeting, but that he was told it would only be used if there were only "a couple of holdouts." Asked whether eminent domain would be used if several owners refuse to sell voluntarily, Canon responded that it is premature to comment. He said some of the property owners who signed the petition may not be within the boundaries for the convention center site and he has not had a chance to visit with some of the other property owners.

Reynolds said during the initial meeting with Canon, Perry and other property owners that they were told the proposed site would include properties located between Illinois Avenue to the south and Michigan Avenue to the north. Since then, he said, the proposed boundaries have been changed and he has learned that some buildings will no longer be effected, but that he has not been able to find out from the city anything about the new proposed boundaries.

"We've been here for 54 years, my father and uncle started this business in 1953 and we've been here all this time," Reynolds said. "They shouldn't be able to tell us to leave."

Reynolds added that his company makes a lot of deliveries to offices in downtown Midland and there are no other locations in the area that would be suitable.

Gary S. Barker, co-owner of Barker-Brown Investments, LLC, told the Reporter-Telegram he has recently refurbished his building and is also not interested in selling it to the city. In addition to his own company Barker rents office space to seven tenants who would also be forced to relocate and he indicated that some of the other buildings in the area are occupied my multiple tenants.

City Manager Rick Menchaca has indicated that there are three possible locations for a convention center under consideration. One of these options, he said, is expanding Midland Center to the east. Menchaca has declined to divulge the other potential site locations while negotiations with property owners are still in process.

Midland TX Reporter-Telegram: http://www.mywesttexas.com

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

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

By Sarah Nemeth

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eminent domain unanimously approved: The Connecticut Post, Bridgeport CT, 5/2/07

By Anne M Amato

When developers of the Crescent Village condominiums were presenting their proposal for the former Pinecrest Country Club site, part of the plan was to leave a wooded, 200-foot-wide buffer between the new construction and existing homes on Long Hill Avenue.

The land would remain open space, with nature and walking trails. At least, that was the intention.

But last week, heavy equipment began moving onto a 1.34-acre lot owned by Phoenix Housing, right in the middle of the buffer zone, which runs from the Pine Rock Park firehouse to Wintergreen Lane.

Trees were cut down and site preparation began.

Neighbors, like Michele Rosiak, quickly learned a house was being built there by former Pinecrest owner, Jonathan Zuckerman, for his son, Adam.

"There's already four machines on the property and I'm sure they'll bring in more," she said. "Is there anything we can do to stop them?"

Rosiak was one of a handful of neighbors attending a special meeting of the Board of Aldermen Monday night at City Hall where the board planned to vote to begin legal action to take the Phoenix Housing property by eminent domain.

But because there wasn't a quorum, the meeting was adjourned to Tuesday night when the board voted unanimously to do just that and set aside $175,000 for the land purchase.

More than a dozen neighbors attended the Tuesday meeting.

"We'll see what happens," said Eric Soto, a Crescent Village resident whose condominium abuts the site.

"It's a privacy issue," he said. "They've already taken down about a dozen trees."
"I wish it had never come to this point," added Patrick Cwanek, a neighbor of Soto's.

Mayor Mark A. Lauretti agreed.

"It was never the intention of the city to go this route," he said. "We tried the better part of a year to negotiate and were forced to get to this point."

Alderman John Anglace, R-3, board president, said having a buffer between the Crescent Village condominiums and existing homes on Long Hill Avenue was something the developer told neighbors he "would do his best" to provide.

The majority of land from the firehouse to Wintergreen Lane was eventually conveyed from the builder to the city, except for the Phoenix Housing parcel.

"We immediately passed a motion for the mayor to negotiate for the purchase of the property, and that's been going on for some time," Anglace said.

That's why the recent land clearing also took city officials by surprise.

Initially, the city tried to stop construction by a cease and desist order, said Tom Welch, the city's corporation counsel. "But there was no basis to stop it," he said.

The land is zoned residential and "meets all of the qualifications for permits," so the order was dropped, Anglace said.

The Connecticut Post, Bridgeport CT: http://www.connpost.com

Use eminent domain wisely: Pocono Record, Stroudsberg PA, 5/2/07


This column warned nearly two years ago that the U.S. Supreme Court's narrow ruling on eminent domain could imperil property rights.

It's happening already. And the massive redevelopment case in Clayton, Mo. should serve as a warning to local government officials in the fast-growing Pocono area to use eminent domain rarely and wisely.

Clayton, Mo.'s thriving downtown business district wasn't strong enough to stand up to a large corporate entity that talked town fathers into a sweet deal. Now busy offices and favorite restaurants of Clayton will be gone thanks to a $190 million agreement between the city council and health care giant the Centene Corp.

Centene plans to build a new, 16-story headquarters and 15-story office building with retail space on Forsyth Boulevard. Project backers say the plan will create hundreds of jobs and add millions in new tax revenue. But it will also displace many long-standing businesses, among them a 40-year-old tailor's shop and a real estate office.

No surprise. In June 2005, the Supreme Court decided a case involving nine homeowners who lived in a working-class neighborhood in economically depressed New London, Conn. The nine were holding out against the city's eminent domain condemnation that would make way for a major redevelopment featuring a new drug research facility. Other property owners had already sold out and municipal officials argued that condemning the holdouts' properties would benefit the entire community through new jobs, businesses and tax revenues.

The Supreme Court agreed with the developers arguing that using eminent domain to spur private economic development was a legitimate use of the eminent domain process.

Eminent domain traditionally has been a tool governments have used only for public projects such as schools, parks, highways and airports. Much of the nation's school and transportation network could not have been created had government not been able, when necessary, to condemn property that stood in the path of public works. But the court's ruling in New London opened the city gates to any scheme that purports to "benefit" a community.

It's one thing to replace blight with development through condemning property, paying its owners what it's worth, and rebuilding. But in Clayton, the plan involves condemning functioning businesses in a healthy downtown simply because a new business can make more money and the town can collect higher tax revenues.

The ruling makes public officials vulnerable to developers who sometimes wield outsized political or economic pressure. Under the capitalist system, ordinary citizens and small businesses just don't have the same clout as a large developer with engineers, lawyers and glitzy plans.

That's exactly why the town fathers of Clayton, Mo. are handing the keys to the city to Centene Corp., forcing existing property owners to sell out for a higher amount of economic development.

So far Pocono residents haven't faced the kind of eminent domain case that would pit the little guy who wants to hang on to his business against a well-heeled corporation. But this fast-growing area could easily see such a proposal.

Government officials would be well advised to tread cautiously in cases where a developer requests them to use eminent domain not for a public project, but to enable private development. Officials should use eminent domain wisely, with clear targets in blighted areas only, and for obvious returns through new businesses, more jobs and a rejuvenated tax revenue stream.

Small businesses, residents and other tax-paying property owners should always find a rightful place in our communities.

Pocono Record, Stroudsberg PA: http://www.poconorecord.com

Jim Roos fights against eminent domain: St Louis MO Post-Dispatch, 5/2/07

By Jake Wagman

Jim Roos has a briefcase covered in bumper stickers and a box full of buttons featuring his signature issue — fighting eminent domain.

He's a nonstop activist: organizing protests at City Hall, testifying in Jefferson City and commissioning a two-story mural condemning the seizure of private property.

But Roos is also a property owner and real estate manager, and his own buildings — some cited for broken windows and crumbling porches — have been a target for the very thing he crusades against.

Critics say landlords such as Roos are part of the problem, the reason eminent domain is needed to revive struggling sections of the city. Yet those who have been threatened by eminent domain call him a relentless advocate for property rights.

Either way, Roos, 63, a seminary graduate, fights eminent domain with religious zeal, becoming a visible figure in one of the state's most contentious issues.

Questions have been raised over whether Roos' stance is for the greater good or to protect his own self-interests. It could be a little of both, he suggests.

"I don't like to get pummeled myself," he said, "but I hate to see someone else get pummeled."

Roos grew up on a farm in southwestern Minnesota and came to St. Louis to attend Concordia Seminary. Instead of becoming a minister, Roos formed a "housing ministry" — Neighborhood Enterprises Inc. — which today manages or owns about 200 moderately priced apartments in the city, most of them on the near south side.

He can be found on most days in his office in the Gate District — it's the building with the anti-eminent domain signs in the window — or in his pickup with his dog, Indy, in the back.

Roos represents something of a gray area in the heated fight over eminent domain.

Although the battle lines have been drawn along high-profile cases — such as the proposed condemnation of prime land in downtown Clayton that last week was sent to the state Supreme Court — eminent domain is often used to help urban areas on the verge of a comeback. Those are the kinds of areas in which Roos operates, where a handful of properties potentially stand in the way of larger development.

For Roos, using eminent domain for any private development is an "injustice." Let the free market do its job, he says.

"What eminent domain is is absolute power," Roos said. "You have the powerful joining the powerful — the developers and the politicians."

But St. Louis officials, working to restore a city with old housing stock and vast amounts of abandoned properties, think limited eminent domain is a key tool for redevelopment.

That's why Mayor Francis Slay's office has campaigned to keep eminent domain, telling a state task force in 2005 that "we can't let one owner stop a project that is wanted and needed by the rest of the city."

McRee Town acquisition
Roos had been battling eminent domain long before it reached the national stage, making it an issue in his unsuccessful run for alderman in 1987.

It wasn't until about 15 years later that Roos was the subject of eminent domain himself. A city-backed commission, led by the Missouri Botanical Garden, used eminent domain to acquire nearly two dozen buildings Roos owned or managed in the McRee Town neighborhood.

That's when Roos said he first became a "victim." To hear him tell it, McRee Town, left alone, would have been the next Soulard.

Not so, says veteran Alderman Joe Roddy.

"It was a neighborhood in a free fall," said Roddy, who cited the area's high crime rate.

Today, the neighborhood is home to a suburban-style subdivision — Botanical Heights, with homes listing for more than $300,000 — which Roddy points to as evidence that eminent domain can work.

The real problem, Roddy claims, is property owners such as Roos, who, Roddy says, "manages property so poorly that it becomes detrimental to the neighborhood."

"He is probably one of the best cases you can have for using eminent domain on occupied housing," Roddy said.

Indeed, Roos' properties have drawn complaints for graffiti and trash buildup. This year alone, city inspectors cited Roos' properties for several infractions, including broken or missing window panes, a collapsed fence, a collapsed porch, a partly collapsed wall and improper display of address numbers.

Even the "End Eminent Domain Abuse" mural, which can be seen heading north where Gravois Avenue becomes Tucker Boulevard, has been cited. Last month, the Department of Public Safety issued Roos a notice for having an "illegal sign" and ordered it removed.

Other than the mural, Roos says that the buildings cited by the city had the violations before he purchased them. Roos says his rental units are "decent," though not glamorous.

"It's ordinary housing," Roos said. "But durable, safe."

Bohemian battlefield
Roos has recently focused his activism on Bohemian Hill, south of downtown, where a building he operates is among a collection of homes that have been "blighted," a precursor to eminent domain.

Despite protests organized by Roos, the developer who is building on the land around the area said that using eminent domain "is not even in our thought process. Period."

"That's what's been so frustrating with people like Jim Roos," said Chris Goodson, who is bringing a grocery and a Walgreens to six vacant acres in the area. Goodson, president of the city Police Board, was also on the governor's Eminent Domain Task Force.

"I find it curious," Goodson added, "that where you find blighted areas in the city, you usually find Jim Roos' properties."

Still, it's easy to understand why Bohemian Hill residents are confused.

In January, property owners received a "notice of intent to acquire" from a development firm working for the city. Though the letter emphasized it was only a "preliminary statement of interest," it came with an enclosure titled "When A Public Agency Acquires Your Property."

One of the residents who received the letter was Christie Hutchins, who purchased her home about five years ago. She praised Roos as a "tireless" advocate who "fights for the little man," helping neighbors understand the complex process of eminent domain.

"I can see why the city people hate him so much," Hutchins said.

So can Roos, who has proved a politically savvy adversary. He requires his tenants to register to vote and is helping circulate a petition for a state constitutional amendment limiting eminent domain.

If the past is any indication, Roos will be a tough opponent to shake. He says that many years ago, an angry ex-tenant once riddled Roos' house on Lafayette Avenue with bullets.

"One of the members of our church asked, 'Why are you still there?'" Roos recalled. "Well, they missed."

St Louis MO Post-Dispatch: http://www.stltoday.com


Property rights pact forgotten? Daytona Beach FL News-Journal, 5/10/07

Florida Voice

By Andrew Brigham

Last year, Florida went on record in support of private property rights protection, passing one of the most comprehensive eminent domain reforms in the country. As a result, eminent domain cannot be used by community redevelopment agencies to take property from one private owner and give it to another in the instance of "slum" or "blight." A constitutional amendment also passed prohibiting the use of eminent domain to accomplish any private-to-private transfer of ownership and control unless approved by a three-fifths vote of the Legislature.

Now, just one year later, the Legislature is on the verge of giving money to government to do what it said last year should not be done. The question is: Will our legislators stick to their guns on private property rights?

Senate Bill 432 is a proposed appropriation bill that on its face seeks to fund seaport projects that improve moving goods and people to enhance global trade at Florida's 14 deepwater ports. These monies will come from the redirection of $10 million annually from vehicle registration fees or revenues outside of those generated by the ports themselves. The problem is that, unless modified, the legislation would enable seaports to use funds in eminent domain for private-to-private land takings, and we know at least one would.

The Jacksonville Port Authority is in fact currently pursuing a condemnation lawsuit to take approximately 65 waterfront acres from Keystone Coal Company, just to lease it to a competitor, Drummond Coal Sales, Inc. Jaxport, like many public port authorities, is a "passive landlord port," meaning it does not operate facilities leased to others. Of further note, Jaxport's revenues are not put back into the general revenue funds of the community, but instead are used to fund further port expansion as part of "economic development." Is this an example of how state funds should be used? Is "economic development" really accomplished by government choosing one private entity over another who through private ownership sought to do the same thing?

Daytona Beach FL News-Journal: http://www.news-journalonline.com

Andrew Brigham is a partner at Brigham Moore LLP, a law firm in Florida that represents owners in property rights and eminent domain cases: http://www.eminentdomain.com

Fears of eminent domain arising: Ft Worth TX Star-Telegram, 5/1/07

By Jay Root

Officials say two words are striking fear in the hearts of Texas landowners who have been contacted in recent days about handing over their riverfront property for a massive border wall: eminent domain.

That's the term for the government's power to condemn private land for public use, and some say it's being thrown around in South Texas, where federal authorities are actively planning to build more than 125 miles of fencing, officials say.

"Right now, landowners are very, very reluctant to have this happen," said U.S. Rep. Henry Cuellar, D-Laredo. Cuellar met with landowners last week in tiny Roma, in the Rio Grande Valley, where officials are eyeing numerous private tracts for the wall. He said officials with the Department of Homeland Security mentioned its condemnation authority "within the first 15 words" spoken to landowners in recent meetings in the district he represents.

"Keep in mind we can take away your property through eminent domain," the officials said, according to Cuellar. State Rep. Ryan Guillen, a Democrat who represents Roma in the Legislature, said landowners in his district want Congress to halt the wall before their land is seized.

But Border Patrol spokesman Xavier Rios said he is not aware of any current discussions about condemnation of private land for a border wall. He said that authorities are reaching out to private landowners and seeking their cooperation and that forceful condemnation "is not even being considered right now."

"Our goal is to work with the landowners. They are our partners in this, and we work on their property on a daily basis," Rios said. "The amount of property that would be used for this is only the property that has been identified as essential for completion of the project." Rios also said environmental assessments could be conducted before construction begins.

700-mile wall
President Bush signed legislation last year calling for a 700-mile border wall, which has strong backing from many conservative immigration activists. About $1.2 billion has been appropriated so far to build the first phase of the wall, officials said.

For now, southern Arizona is the only place where new physical barriers have gone up, along with heavier patrols and increased technological surveillance, according to Rios.

But in Arizona, much of the land is already owned by the federal government.

In Texas, where most of the riverfront is in private hands, landowners have expressed fears that a wall will disrupt cattle and ranching operations, block access to the Rio Grande and - unless they agree to the government's financial terms - spur nasty court battles over the condemnation of private property.

In recent days, federal authorities have begun contacting wary landowners about moving forward with plans to build more than 125 miles of barriers, according to federal records and political leaders. How much will actually be built is not clear.

Documents obtained by the Star-Telegram, including a color-coded map, show areas along the Texas-Mexico border where authorities are looking to install physical barriers. All told, they are hoping to build 370 miles of fencing in the four border states before the end of 2008, officials said.

Nearly 90 miles of it is planned for the Rio Grande Valley area, south of Laredo, most of it on private land; in the El Paso area, authorities are eyeing the installation of some 25 miles of fencing on federal land, records show.

Apprehensions down
Chad Foster, the mayor of Eagle Pass, is one of several border-area officials who met with Homeland Security Secretary Michael Chertoff a few weeks ago to discuss the border wall. He said Chertoff stressed that the Border Patrol would seek alternatives to walls and considers the new map and proposals to run "contrary to what the secretary led us to believe."

Foster said he supports greater security and federal manpower on the border, and he noted that the number of immigrants caught trying to sneak across the border has dropped significantly in recent months.

"If we're seeing the numbers go down, why are we jacking with it?" Foster said.

Rios, the Border Patrol spokesman, said apprehensions along the Mexican border dropped 30 percent through March from the same period in the previous year, and even more for immigrants who come from somewhere besides Mexico.

Advocates say a border wall will help stem the flow of illegal immigrants and possibly stop terrorist attacks. The Minuteman Civil Defense Corps, a private border watch group, has sent volunteers to build fences for willing ranchers, promoting a design modeled after Israeli walls designed to keep militants out of the West Bank and Gaza.

But in Texas, a top Minuteman acknowledged that landowners are concerned about losing their land or river access, even though they want more protection from human trafficking and drug violence.

"There's some concern about water rights and eminent domain," said Pat Byrne, deputy director of the state Minuteman chapter. "I think what they would like to see is good, solid, firm protection on their property without the financial obstruction that would result from the fence."

Ft Worth TX Star-Telegram: http://www.star-telegram.com

Anti-eminent domain group backs Penn couple: Hanover PA Evening Sun, 5/1/07

By Ashley Adams

Rounds of applause filtered out of a back room at Bill Bateman's Bistro in Hanover.

Behind a large white sign proclaiming their message, members of the organization Citizens Against Eminent Domain Abuse brought their campaign to the Hanover area Monday.

"Everyone is here for the same reason," said group member Russ Robertson. "We don't agree with eminent domain in particular situations."

Robertson mentioned the Heston family of Penn Township as an example of eminent domain being abused.

Dana and Bill Heston are in a battle with local developer Paul Burkentine over their home at 823 York St. Burkentine plans to build homes on a tract behind the Heston property, but can't move forward on the project unless he acquires the Hestons' home so a traffic signal can be installed at York and Center streets.

The Hestons have said they will move, but haven't yet been offered fair-market value for their home. And they say the township has threatened to use eminent domain to take their home – a claim township officials deny.

The Hestons attended the meeting and were the main reason the group of eminent-domain opponents came to Hanover. Among the 10 or so residents who attended was Ron Kohr, of Lower Windsor Township, whose family is also facing the seizure of their property by eminent domain.

York County Commissioners Lori Mitrick and Doug Kilgore voted in November 2005 to condemn 411 acres of the Kohr property – Lauxmont Farms – to build a park. The Kohrs are fighting the taking.

The meeting served to spread the organization's message to Hanover and showcase candidates endorsed by the group for Penn Township and York County commissioner.

Robertson said eminent domain has been a major issue in York County over the past year. But by electing the right candidates, he said the issue "can be beat in 15 days."

The organization is endorsing Craig Prieber, Walt Rewa and Dan Goldsmith, all of whom attended Monday's meeting, for Penn Township commissioner.

Dana Heston said she knows the candidates will elicit positive change in the community and be good replacements for incumbent Joe Klunk whom "many of us have problems with."

Klunk has been the only commissioner to speak on the issue of eminent domain, and he only did so once, during a public meeting by making a statement on behalf of the board of commissioners.

Klunk said in the statement the township has not considered using eminent domain on the Heston property, but Dana Heston said that is a lie.

"That statement still stands. It's been a private matter between them and the developer," Klunk said this morning.

Klunk acknowledged interrupting Heston at a recent meeting, saying the public-comment portion of the meeting is for comments, not a question-and-answer session with the commissioners.

He said that's because public comment is a time for the public to comment on whatever is on their mind; it's not a time for discussion. If someone has an issue they can bring it up at a committee meeting where discussions can take place, he said.

Klunk feels the issues that have been brought up by the Hestons were politically motivated.

"There's three positions open and I'm the only incumbent. I have the target on my back," Klunk said.

Goldsmith said he has been working with the Hestons for quite a while, trying to find a solution to their problem.

"Hopefully, in the future, if all three of us get elected, there won't be a problem," Goldsmith said. "Some already on the board have lost sight that they are doing their job for the people. I am willing to listen to the people, their ideas and beliefs. To be a leader, you have to listen to the people."

Prieber and Rewa agreed with Goldsmith. The three candidates are running as a team.

Rewa said Commissioner Mike Johnson is the reason all three candidates are running for commissioner and he has helped the hopefuls run their campaign. His leadership, Rewa said, earned Johnson the title of "mother" to the three men.

"I voted for Mike every election he ran," Rewa said. "He always did exactly what he said he was going to do."

York County Commissioner Steve Chronister was upset that more residents didn't attend Monday's meeting.

"Where's all the Hanover people?" Chronister asked. "They should be here."

Citizens Against Eminent Domain Abuse is endorsing Chronister of West Manchester Township, Chuck Richards of Dover Township, Ned Grove of Windsor Township and Doug Hoke of Dover Township for county commissioner.

"My dream is to wake up the day after the primary and see the headline Mitrick and Kilgore defeated," Robertson said.

Richards, Grove and Hoke also attended the meeting and said every resident they talked to is concerned with the commissioners' views on personal-property rights.

"Use your voice," Hoke said. "Go talk to people. Tell them to vote for people who have your same beliefs."

Robertson advocated for everyone to spread the word and vote for the candidates the group is endorsing.

"I think we can all see the wheels of change starting to turn here," Robertson said.

Hanover PA Evening Sun: http://www.eveningsun.com

Supreme Court denies Macy's and Lord & Taylor petition: Syracuse NY Post-Standard, 4/30/07

The case involved the Carousel Center mall expansion and the Industrial Development Agency's eminent domain petition.

By Rick Moriarty

The U.S. Supreme Court today refused to hear an appeal by the Macy's and Lord & Taylor department stores against the Syracuse Industrial Development Agency.

The stores asked the court earlier this year to hear an appeal of a lower court decision granting the agency's eminent domain petition to acquire various lease rights from the stores. The lease rights taken by eminent domain removed the stores' veto power over developer Robert Congel's expansion of the mall into a megacenter called Destiny USA.

Macy's and Lord & Taylor said the agency went far beyond removing their veto power over the project. They contended that the agency imposed new financial obligations on the stores.

The Supreme Court refused to take up the case, however.

"This means the challenge to the validity of the condemnation by SIDA of the tenants' leasehold rights necessary to develop Destiny USA is over," said attorney Mark McNamara, partner in the Hiscock & Barclay law firm, representing the development agency. "There can be no further challenges."

Syracuse NY Post-Standard: http://blog.syracuse.com

La Puente files its first eminent domain case: Whittier CA Daily News, 4/29/07

By Tania Chatila

For more than two decades, Anthony Li's hobby shop has been a tradition of sorts.

"I've seen third generations now," Li said sitting inside his tightly packed 2,000-square-foot storefront, Tony's Hobbies and Toys, on Hacienda Boulevard.

Li's shop is crammed with nearly every tool imaginable to create, decorate or upgrade toy planes, cars and boats, and it attracts die-hard enthusiasts from all over - Santa Monica, San Diego, Arizona.

But that may soon change if La Puente officials have their way.

Attorneys for the city filed paperwork Monday with Los Angeles Superior Court to acquire the 2.7-acre parcel where Li's shop sits through eminent domain for the construction of a commercial retail center. The filing marks the first time in La Puente's 50-year history the city has attempted to take land through these means.

Eminent domain allows cities to obtain private property to eliminate blight or for redevelopment.

The property, at 1313-1335 N. Hacienda Blvd., includes a strip mall where Li's shop and nearly a dozen other small businesses front the main thoroughfare. Behind the retailers, a patch of open land - making up about two-thirds of the entire property - has been vacant for more than 40 years, Assistant City Manager Gregg Yamachika said.

Since September, city officials have been trying to buy the land from Victor Gudzunas. According to assistant agency counsel Catrina Archuleta, the city originally offered $3.5 million. She said the land is now appraised at $3.8 million.

Negotiations were unsuccessful.

"We made an offer to purchase the property and he was not willing to negotiate with us," Yamachika said. "And we needed the property ... in order to make the project work."

Gudzunas did not return calls for comment.

The lawsuit states the property's seizure is necessary in order to eliminate blight - namely the undeveloped patch of land behind the strip mall - and to complete an 11.5-acre commercial center with retail shops and mezzanine parking along Hacienda Boulevard at Fairgrove Avenue.

On Tuesday the City Council voted 4-0 to approve a 180-day exclusive negotiating contract with the Los Angeles-based Charles Co. to develop the project.

Councilman Louie Lujan was absent from the meeting.

At the site of the redevelopment project, the city has already demolished the former La Puente Lanes bowling alley in an effort to move forward with plans.

"This project has been in the works for the last two years ... Without that particular parcel of land the project is in jeopardy," Lujan said Monday. "It's not to say that a project will not get done, but it is to say that the project we have in mind will not get done."

At the strip mall, JRCRealty and Financial Services owner Jose Cabrales admits a move would be a major inconvenience for businesses. But he also said he understands the city's stance.

"I can understand their position," Cabrales said. "Obviously, they want to get as much revenue as they can."

Other business owners were not as sympathetic.

"Just because someone owns land and doesn't want to build on it, does that give the right to the city to come in and take it?" asked Ed Lara, who owns Henry's Shoe Experience.

Lara said the patch of land behind the strip mall is only an eyesore now because the city tore down the old bowling alley, making the area visible from the street. He believes a strip mall in La Puente would not work.

"People drive through La Puente, they don't stop in La Puente," Lara said.

But the biggest concerns come in the hardships businesses will face if forced to relocate, Li said.

"Where can I find this kind of rent with this kind of frontage?" he asked.

Li said he will have to find another location for his shop, but a move will probably amount to a substantial financial loss.

The city will offer some sort of relocation assistance to businesses if it comes to that, Lujan said, adding that the city understands the troubles business owners may face if forced to leave.

"I wish we could make everyone happy, but I think what we can do rather than looking at it as a win-lose situation, we have to look at it as a compromise," he said.

Eminent domain is a tool that has been around for decades used to build everything from freeways and schools to redevelopment projects, said Ken MacVey, an attorney with Best Best and Krieger who specializes in eminent domain law.

"It's not unusual, but not a common practice in that the vast majority of land acquisition is handled by negotiation," he said.

He estimates about 98 percent of eminent domain filings settle out of court.

Whittier CA Daily News: http://www.whittierdailynews.com

Eminent domain debated: Warren OH Tribune Chronicle, 4/29/07

By Stephen Oravecz

The sponsor of a bill making it harder for government to take private property through eminent domain said last week he will amend the proposed legislation to satisfy concerns raised by Warren’s mayor.

Sen. Timothy Grendell, R-Chesterland, said he expects a committee to make that and possibly other changes Tuesday, and the Senate could pass the bill this week or next.

In part, the bill would require governments to state why they are taking a property and giving the previous owner the right to buy it back if it is not used for that purpose. Warren Mayor Michael J. O’Brien, who is planning aggressive use of eminent domain for downtown renovation, objected to that language.

O’Brien said he expects the city to be able to prove certain properties are blighted even under the bill's tougher definitions of blight. Warren then plans to tear down dilapidate structures and sell the property to a developer to enhance the neighborhood.

‘‘I want to prevent a property owner who has been for decades preventing blighted property’’ from falling under the city’s control from being sold back to that owner.

‘‘If the property owner doesn’t take responsibility, then I feel government should step in and demolish a building to eradicate blight,’’ O’Brien said.

Grendell, a staunch supporter of private property rights, said his goal is to protect private property and make eminent domain a tool of last resort for cities that must deal with blighted areas.

Nevertheless, Grendell said O’Brien has a valid point. They spoke two weeks ago in a conference call that included Sen. Capri Cafaro, D-Hubbard.

Grendell said he would agree to remove urban renewal projects from the buy-back provision to make sure cities like Warren can use eminent domain for economic development.

On another issue, Cafaro and others have expressed concerns about the way blighted areas are selected. Under the bill, 90 percent of an area must be blighted before a government or agency can use eminent domain.

John Boccieri, D-New Middletown, called the 90 percent figure ‘‘arbitrary,’’ and he would like to see the figure set at 50 percent.

To address that concern, Grendell said he is willing to amend his bill to make it clear that the government using eminent domain draws the boundaries of the blighted area.

Grendell said he plans one other amendment to the bill that would help property owners who agree to sell land for an economic development project. Currently they have six month to reinvest profits from the sale without being required to pay capital gains taxes. Grendell wants to make Ohio conform to federal law which gives property owner three years to roll over the money.

Cafaro, who sits on the committee reviewing the eminent domain legislation, said she will propose one other amendment. She wants the bill to make it clear that port authorities have the right to use eminent domain for projects related directly to an airport, such as lengthening a runway.

The Legislature is considering two eminent domain bills.

Grendell’s legislation, Senate Bill 7, sets the rules for eminent domain. The other, Senate Bill 1, calls for a ballot issue that would require home-rule cities to follow the state regulations.

Warren OH Tribune Chronicle: http://www.tribune-chronicle.com

Colorado may say no to Fort Carson expansion: Army Times, 4/28/07

By Colleen Slevin, Associated Press

Colorado, a state that has long been friendly toward the military, is poised to try to stop the Army from using eminent domain to vastly expand a troop training ground on the southeastern Plains.

At the urging of ranchers who live near Fort Carson’s Pinon Canyon maneuver site, state lawmakers approved a bill that withdraws Colorado’s “consent” for the federal government to acquire more land for Pinon Canyon.

The measure is now on the desk of Gov. Bill Ritter. Spokesman Evan Dryer wouldn’t comment Friday on whether Ritter will sign it but said the governor has “very serious concerns about the use of eminent domain” for the expansion.

While military bases have faced closure elsewhere, Colorado Springs’ Fort Carson is adding 10,000 soldiers and will be home to 25,000 troops by 2009. It will also be a training site for National Guard units from around the West. The post has sent over 13,000 soldiers to Iraq, many on multiple tours, and many of the new soldiers arriving from Fort Hood have served in Iraq.

The Army, which has kept out of the debate at the Legislature, has said expanding Pinon Canyon will give soldiers the chance to replicate the distances and pace they experience in battle, using new technology like unmanned small aircraft. Telephone messages left for the Pinon Canyon liaison weren’t returned. Officials have said they can’t rule out the possibility of using eminent domain.

But southeastern Colorado ranchers, many of them descendants of homesteaders, fear they’re being asked to sacrifice their way of life. Up to around 80 ranches could be lost depending on how the expansion is laid out, and they say that would not only affect the cattle business and the state’s agricultural industry — its second largest — but also have a ripple effect on the region’s businesses and communities.

Ranchers also don’t think the Army has proven why it has to have more land as the nation’s emphasis shifts to fighting terrorists.

“These are things that make Colorado special and to just say it’s a pile of dirt, surely there is a better place for the Army to expand,” said Senate President Joan Fitz-Gerald, who despite the bill’s passage isn’t sure the state can stop the expansion.

The bill sent to Ritter cites a provision of Article 1 of the U.S. Constitution that requires states to give permission before land can be purchased to build forts, arsenals and dockyards. It seeks to apply that to Pinon Canyon’s proposed 654-square-mile expansion — about two-thirds the size of Delaware.

The bill explicitly states that Colorado can’t stop the federal government from using eminent domain to claim land from unwilling landowners. But it also says that “consent is not hereby given to the acquisition of, or exclusive jurisdiction over, land sought by the United States Department of Defense” to expand Pinon Canyon.

Larry Daves, a lawyer for the ranchers, argues the bill will bolster any state efforts in court to stop the use of eminent domain to expand the training ground. He said it also would give the state the authority to stop owners from willingly selling their land to the Army, but he doesn’t think the state would try to do that.

Opponents call the bill a “feel-good” measure that could backfire by sending a negative message to the Pentagon and making Fort Carson — the state’s largest employer — vulnerable to a future downsizing or closure.

Brian Binn, president for military affairs at the Colorado Springs Chamber of Commerce, said Fort Carson emerged as a winner in the 1995 round of base closures partly because of the availability of Pinon Canyon.

He said the expansion would generate another 400 to 500 jobs beyond the post, for a total of 24,000 civilian jobs linked to Fort Carson. He estimates that the state and local governments would receive nearly $180 million a year in tax revenue.

“It’s an asset the state needs to protect,” Binn said.

Besides Fort Carson, established a month after the attack on Pearl Harbor, Colorado Springs is home to two Air Force bases and the Air Force Academy. Together they help bring in $3 billion into the economy every year, according to the chamber.

Daves said the Army likely won’t try to take land for another two years, and if it tries to use eminent domain, the state could go to the courts.

Rancher Lon Robertson, president of the Pinon Canyon Maneuver Site Expansion Opposition Coalition, hopes the publicity generated by the opposition will persuade Congress that expansion isn’t needed.

“I think what this bill has done is foster so much help and awareness that our message is being carried out to the rest of the nation,” said Robertson, who owns a ranch near Kim, a town of some 65 people 140 miles southeast of Colorado Springs.

Many area ranchers have been wary of their Army neighbor since the 1980s, when Fort Carson acquired 250,000 acres — about half by eminent domain — to create Pinon Canyon. They’re still bitter about how property owners were treated then.

A military map showing a proposed 2.5 million-acre, multiyear expansion — covering much of the state’s southeastern corner — was leaked last year, fueling more suspicions. Fort Carson said the proposal was an old one.

Criticism of the handling of the war in Iraq, including a lack of equipment for soldiers, and poor conditions at Walter Reed Army Medical Center have helped the ranchers gather support beyond rural Colorado, Robertson claimed.

“We consider ourselves extremely patriotic, and because of that we are asking the questions we need to ask,” Robertson said.

Army Times: http://www.armytimes.com

Ti loses second appeal on road lawsuit: Plattsburgh NY Press Republican, 4/28/07

By Lohr McKinstry

The Town of Ticonderoga [NY] has been denied an appeal of a court decision that barred the town from seizing a half-mile-long back road by eminent domain.

The Ticonderoga Town Council tried to appeal a loss in the Appellate Division of State Supreme Court to the state's highest court, the Court of Appeals.

But, because the Appellate Division decision was unanimous, the town needed permission from that court to appeal, and permission was denied.

"They ruled they were not going to hear it," Town Supervisor Robert C. Dedrick said Friday. "This was the last step for the appeal."

The Appellate Division had ruled that a 50-foot-wide section of Killicut Mountain Road owned by Georgia Hargett could not be seized using a highway superintendent's eminent-domain powers, since the action was chiefly for recreational purposes.

By a split vote, the Town Council decided to appeal the decision to the Court of Appeals. Special Counsel William Scott handled the appeal for the town, with the cost placed at about $7,000.

Mrs. Hargett erected a gate barring public access to that section of Killicut Mountain Road, which the town contended has always been a public road.

It eventually began eminent-domain proceedings through Town Highway Superintendent Phillip Huestis to take title to the road.

Killicut Mountain Road connects to Bullrock Road to the south, where landowner Lee Catlin has now closed the road in front of his South Ticonderoga farm to public use, including snowmobiling.

The town says that is also a public road, but no determination has been made yet on the closure issue there.

Property-rights advocate Richard Holroyd has been working on behalf of Mrs. Hargett and her husband, Raymond.

"The town lost its appeal," he affirmed. "On this particular eminent domain, that ends it."

The Hargetts "are in seventh heaven," Holroyd said. "They're ecstatic."

Holroyd said the town's only option would be to start eminent domain all over again, this time using the Town Council's statutory authority instead of the highway superintendent's.

Dedrick said he doesn't know if that will happen, but the town could start the eminent-domain process again using the necessary criteria the Appellate Division cited in its decision.

"Our attorneys will bring it up at the next board meeting. We'll go into executive session to decide what we're going to do."

Plattsburgh NY Press Republican: http://www.pressrepublican.com

Urban Renewal? The Weekly Standard, 4/27/07

Why Maxine Waters and John Cornyn agree on eminent domain

By Duncan Currie

Maxine Waters and John Cornyn don't agree on much, but they do agree that government should not be acquiring private property for private economic development via eminent domain. They were both unnerved by the 2005 Supreme Court ruling in Kelo v. City of New London, which gave such takings a constitutional imprimatur. Soon afterward they teamed up to curb the reach of eminent domain laws and prevent Kelo from unleashing a raft of similar condemnations.

That Rep. Waters, a fiercely liberal Democrat from Los Angeles, and Sen. Cornyn, a dependably conservative Republican from Texas, should find such common ground might seem surprising. Indeed, Waters recognized that eminent domain reform would garner her some unlikely allies. As she testified to a House committee in September 2005, citing her work with local officials in California, "People are looking at us and saying, 'What is it that brings liberal Maxine Waters together with this conservative supervisor out of Orange County?' Well, you're right, you won't see that very often, but on this issue I think that you're going to see a lot of it because . . . we all basically share a basic value of the right to ownership of our land and our homes."

To better understand her position, consider a recent report published by the Institute for Justice, a public interest law firm that litigated the Kelo case. Its author, Dr. Mindy Thompson Fullilove, is a Columbia professor whose 2004 book Root Shock examined the history of urban renewal projects. Under the Federal Housing Act of 1949, "which was in force between 1949 and 1973," she writes, "cities were authorized to use the power of eminent domain to clear 'blighted neighborhoods' for 'higher uses.' In 24 years, 2,532 projects were carried out in 992 cities that displaced one million people, two thirds of them African American."

According to Fullilove, "African Americans - then 12 percent of the people in the U.S. - were five times more likely to be displaced than they should have been given their numbers in the population. Given that African Americans were confined because of their race to ghetto neighborhoods, it is reasonable to assume that more than 1,600 projects - two-thirds of the total - were directed at African-American neighborhoods."

These projects got a huge legal boost early on. In the 1954 case Berman v. Parker, the Supreme Court held that "blighted" urban property could be condemned even if "such property may later be sold or leased to other private interests." The Court found that city officials did not need to demonstrate a strictly defined "public use" of the property in order to exercise their eminent domain power; a "public purpose" would also suffice. This logic led directly to the Kelo ruling, which affirmed that "economic development" was a valid public purpose.

"We aren't just talking about expanding highways anymore," says Hilary Shelton, director of the NAACP's Washington bureau. "We've moved from real community need to profit. That criterion becomes even more exploitive." Shelton is not a categorical opponent of eminent domain: He stresses that urban renewal ventures can benefit (and have benefited) inner-city neighborhoods, if properly married to genuine community interests and legitimate public functions. "There are clearly some successful projects out there," he says. But there are also many failures - and many examples of exploitation. Impoverished minority communities "lack in political power," notes Shelton. "They're the most vulnerable."

The NAACP actually co-authored an amicus brief in the Kelo case. "The history of eminent domain is rife with abuse specifically targeting minority neighborhoods," it argued. "Indeed, the displacement of African Americans and urban renewal projects were so intertwined that 'urban renewal' was often referred to as 'Negro removal.'" Joining this brief "was, in many ways, a no-brainer for the NAACP," says Shelton.

House Republicans responded swiftly to Kelo. And when they did, some prominent African-American liberals, such as Waters and John Conyers, broke with the majority of House Democrats, including caucus leader Nancy Pelosi, to support a measure introduced by conservative Republican Scott Garrett, which amended a transportation bill to prevent federal funds from being used for Kelo-style seizures. As John Fund of the Wall Street Journal wrote at the time, "A companion resolution condemning the Kelo decision was approved 365-33. Only 10 of the 43 members of the Congressional Black Caucus and only two members of the Congressional Hispanic Caucus voted against the latter measure."

Later that year, the House approved legislation barring all state and local governments that received federal economic development aid from exercising eminent domain power "over property to be used for economic development or over property that is subsequently used for economic development." If any state or local entity violated the ban, it would lose its federal economic development funding for two years. This provision passed the House by a vote of 376-38. Only seven Black Caucus members voted against it, while supporters included Waters, Conyers, Charlie Rangel, Jim Clyburn, Sheila Jackson Lee, and Stephanie Tubbs Jones. Yet due to the Senate's inaction, it never became law.

One recent eminent domain battle occurred in Riviera Beach, Florida, where the mayor sought to displace several thousand residents near the waterfront to make way for a $2.4 billion redevelopment plan, which included a yacht club, an aquarium, and luxury condos. "Most of the people uprooted are going to be black," reported the Palm Beach Post in December 2005, "as the city is mostly black. Many will be among the city's poorest residents." But after Florida enacted landmark eminent domain reform in May 2006, the project stalled. The mayor has since lost his bid for reelection.

Defenders of such projects often argue, correctly, that eminent domain has proved a vital "last resort" tool in cleaning up squalid slums. Yet by treating it as a virtual hunting license, politicians and developers have bred cynicism about the law. They have also produced increasingly comical definitions of "blight." As Shelton puts it, "One person's 'blight' becomes another person's 'palace.'" You eventually wind up with well-maintained beachfront houses being declared "blighted," as happened in Long Branch, New Jersey.

At the very least states should, as a May 2006 report from New Jersey Public Advocate Ronald Chen recommended, "revise the statutory criteria for designating an area as 'blighted'" and "offer property owners a meaningful opportunity to appeal the blight designation." The "burden of proof," said Chen, should rest with the municipality. Truly blighted or vacant areas should not be conflated with neighborhoods that just happen to fall within the parameters of a lucrative real estate project.

"I am encouraged by the attention that's going to eminent domain now," says Shelton. But in those states that failed to pass meaningful post-Kelo reforms, the confluence of wealthy developers and revenue-hungry city councils continues to cast a shadow over basic property rights.

Dissenting from the Kelo majority, Justice Sandra Day O'Connor wrote that "the government now has license to transfer property from those with fewer resources to those with more." In fact, this phenomenon began long before the saga in New London. Just ask Maxine Waters.

The Weekly Standard: http://www.weeklystandard.com

Ariz. Seeks New Check on Eminent Domain: Forbes Magazine, 4/27/07

By Paul Davenport, Associated Press

Spurred by controversy over Union Pacific's expansion plans, a bill approved by the Arizona Senate would require new state regulatory oversight of use of eminent domain by railroads to acquire property.

The Senate voted 26-0 on Thursday for the bill, which now goes to the House. The House originally passed the bill when it dealt with an unrelated topic.

Omaha, Neb.-based Union Pacific and Fort Worth, Texas-based Burlington Northern Santa Fe, the other major railroad operating in Arizona, oppose the bill.

Supporters include agricultural groups and land owners of property in two areas being eyeballed by Union Pacific for planned or possible projects.

One is near Picacho Peak in Pinal County where the railroad wants to build a new switching yard off a stretch of its Sunset Route mainline. The second is a possible new spur line that might cross farmland near Yuma to reach Mexico to serve a proposed new seaport.

A cotton farmer now leasing state land at the Picacho site objects to possibility of being evicted, and there is also concern about an underground water-recharge facility operated by the state under the farmer's fields. Meanwhile, Yuma-area farmers say their operations and their crops could be damaged economically and environmentally by the line to Mexico and exhaust from trains running on it.

When initially proposed in the Senate, the bill would have required that railroads obtain approval from the state Corporation Commission to use existing eminent-domain authority to compel land sales.

Union Pacific objected that the requirement to obtain state approval conflicts with federal law giving exclusive authority to approve railroad projects to the Surface Transportation Board.

In an attempt to deal with the railroad's objection, the Senate earlier this week to delete the requirement to obtain state approval. Instead, the bill requires a railroad seeking to use eminent domain to hire experts to brief the Corporation Commission on economic, natural resource, water and other possible impacts and to allow the commission to suggest alternatives.

Forbes Magazine: http://www.forbes.com

Court addresses eminent domain: Cherry Hill NJ Courier Post, 4/27/07

By Richard Pearsall

Is land subject to government seizure merely because it has lain idle for many years?

That was one of the key questions that arose Thursday as the state Supreme Court took up the thorny issue of eminent domain.

The case pits the borough of Paulsboro against the owner of a 63-acre tract of vacant land.

The high court was asked Thursday to step in and find the state's 1992 law dealing with redevelopment and eminent domain unconstitutional, even as the Legislature wrestles with the law in its own terms, considering two proposals to amend it.

The law is so broad, state Public Advocate Ronald Chen argued in court Thursday, it "could be applied to virtually any piece of land in this state."

On the contrary, responded Robert Goldsmith, an attorney representing the League of Municipalities, the 1992 redevelopment law is a necessary tool to spur development.

"This is about the greater good," Goldsmith said. "You can't let a property owner stand in the way."

At issue in the case of Gallenthin Realty Development, Inc. v. Borough of Paulsboro is a tract, mostly wetlands, that Paulsboro designated for redevelopment as part of its broader plan to build a port facility on its riverfront.

While it has no specific use in mind yet for the land, borough attorney James Maley said the borough is entitled to designate it "in need of redevelopment" on the basis of the "lack of proper utilization" clause in the 1992 law.

"Its only use was that it was being farmed," Maley said, a reference to the landowner's sale of reeds that grow on the land as feed for cattle.

Chen and Peter Dickson, the attorney for landowner George Gallenthin, noted the state Constitution refers to "blighted areas" in authorizing the use of eminent domain for redevelopment and asked how Gallenthin's land could be made to fit that definition.

As for lack of proper utilization, Dickson asked the court to consider the value the state places on both farmland and wetlands.

Justice Barry Albin asked Dickson pointedly about what he called the "larger picture."

"Isn't this about more than your client?" Albin asked. "Even if his property standing alone doesn't meet the definition, doesn't it fall within a larger scheme?"

Dickson praised Paulsboro's plan to redevelop two former industrial tracts on the river as a port, saying "we hope it succeeds."

But, he said, pointing to a map, his client's property is "disconnected" from the port area.

"They have no idea what they want to do with this property," he said.

The access road to I-295 that has been talked about would "only nick the northernmost end of the property," a segment he said could be obtained if necessary by conventional means.

Paulsboro argues the proper venue for changes in the 1992 redevelopment law is the Legislature, not the courts.

Assemblyman John Burzichelli, a Democrat who also serves as mayor of Paulsboro, is the sponsor of a reform bill that passed the Assembly last year.

State Sen. Ronald Rice, D-Newark, has introduced an alternative bill that is under consideration, along with the Burzichelli initiative, in the committee that Rice chairs.

The Public Advocate supports the Burzichelli version, which redefines blight but grandfathers projects already in the pipeline.

But he also believes the issue of eminent domain should be pursued in the courts and is involved in cases involving Long Branch and Lodi as well as Paulsboro.

"Do you want us to address the constitutional issue head-on?" Chief Justice James Zazzali asked the advocate.

"There would be a public benefit" if the court did, Chen replied.

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