Supreme Court hears St. Louis eminent domain case in upscale area: Legal Newsline, 5/25/07

By Rob Luke

The Missouri Supreme Court has started mulling the idea of "blight" as a relative term.

At issue is whether St. Louis redeveloper Centene Plaza Redevelopment Corp. (CPRC) can seize properties in Clayton, a wealthy St. Louis area, through eminent domain to demolish them. The developer intends building part of a $190 million mixed-use corporate plaza on the land.

The development has been held up by five property owners since 2005, despite the fact that local businesses support the 600,000-square-foot project. The Clayton City Council had declared the five properties on the construction site "blighted."

Justice Richard B. Teitelman seemed especially amused by the idea that anything in Clayton, known for its corporate HQs and fine dining, could be considered blighted.

"If that area is declared blighted, every part of the state of Missouri would be blighted," the AP quoted Teitelman at Tuesday's opener.

One of the property-owner holdouts, Gerard Carmody, told the Supreme Court that the blighted buildings pose no problem. But CPRC attorney Thomas Weaver countered that the buildings' advanced age caused "social and economic liabilities" that constitute blight.

The buildings in question are empty despite occupying some of St. Louis's best-located retail property. The five owners helped form a local pressure group, Committee to Stop Abuse of Eminent Domain, aimed at stopping the Centene development.

Some local residents were already annoyed at the tax breaks already given Centene by the City of Clayton.

Legal Newsline: http://www.legalnewsline.com

Developer Wolstein Testifies In Flats Eminent Domain Case: Newsnet-5, Cleveland OH, 5/25/07

By author

The eminent domain saga involving developer Scott Wolstein's vision for the east bank of the Flats [in Cleveland OH] continued in court Friday when Wolstein took the stand.

The developer wants to put up condos, shops and restaurants, but some of the Flats property owners aren't budging, saying the offer to sell to Wolstein isn't fair.

Wolstein on Friday pushed his case to revitalized and rebuild the Flats in a $230 million project, but the court case is far from over, reported NewsChannel5's Alicia Scicolone.

Wolstein was grilled by defense attorney Ken Seminatore about the Wolstein Group's history. Wolstein didn't know most of it because back then his father was in charge of the company.

"You obviously know more about this than I do, so why don't I ask you the questions?" Wolstein said.

It wasn't until an hour into questioning that Wolstein said something.

"The reason we are here is because the property owners that haven't accepted offers. Some have, and some of those offers in settlement are far in excess of my opinion of fair market value, but we're willing to pay them," he said.

But the remaining landowners said they don't think Wolstein and the Cleveland Cuyahoga County Port Authority's price for the land is a fair one.

Port Authority is suing those nine owners and are trying to take the land by eminent domain.

"This particular group of property owners have demanded many multiples of fair market value, and that's why there isn't a willing buyer that's willing to pay the price that a willing seller is willing to accept," said Wolstein.

It is up to the probate court to determine whether the city can force out the remaining landowners.

If that happens, it will be up to a jury to decide the value of the properties.

The case could take a few more weeks.

Newsnet-5, Cleveland OH: http://www.newsnet5.com

'Reform' that's worse than doing nothing: Orange County CA Register, 5/24/07


Government-backed measure on reining-in eminent domain would do little good

No one should be shocked by dishonesty in the political process, but an effort by the League of California Cities and other big-government organizations to supposedly restrict the abuse of eminent domain is so dishonest that it's worthy of caution.

Consider: The groups that over the years have zealously defended the use and abuse of eminent domain by governments to transfer properties from private owners to big developers to enhance tax revenue are proposing this "eminent domain reform package." That, in itself, should cause Californians to pay careful attention to the details. It's not hard to find their motive. Property rights advocates who support true reform are promoting a measure for the 2008 ballot after the defeat last November of Proposition 90.

Prop. 90 would have restricted eminent domain for nonpublic uses and required compensation for owners whose property loses value because of changes in government regulations, such as growth restrictions. The latter protection turned out to be controversial and hobbled the campaign; the new measure does not include it.

Fearful of this new initiative are the League of Cities, the California Redevelopment Association, the League of Conservation Voters and other groups that lobby for maximum government control over private property. So instead of just opposing it, they have offered an alternative. They intend to confuse voters by pretending that their initiative offers real protections. It does appear to offer some protections, but it includes loopholes for government so broad that it renders any such protections useless.

Here's the key description of the measure, ACA8, from its proponents: "Prohibit government from using eminent domain to acquire a small business to transfer to another private party, except as part of a comprehensive plan to eliminate blight and only after the small-business owner is first given the opportunity to participate in the revitalization plan."

California law already requires a blight finding before using eminent domain. Blight is a wide definition. Most of the egregious abuse cases we have written about in California over the years – i.e., taking church property to build a Costco, taking businesses and giving them to a developer, etc. – could continue if this initiative passes, because in those cases officials found a consultant to declare "blight."

The initiative applies only to owner-occupied homes, not apartments. It defines small businesses in a way that only a small number of them would be protected. It does not protect churches, farms, investment property, vacant land and homeowners who have not lived in their house for more than a year. When we questioned the League about these problems, we received a rebuttal that argued: "It is not easy for a city to determine that blight exists. A city cannot simply declare a neighborhood blighted." So, proponents admit, that their initiative continues to allow for the taking by government of "blighted" properties, which is the current, unacceptable standard.

ACA8 offers a few tweaks that would protect some homeowners and increase compensation for some small business owners, but passing it would be worse than passing nothing. It would convince the public that reform has taken place, while changing nothing of substance. That is the goal of proponents. Fortunately, there's likely to be a good alternative on the ballot. More on that in coming months.

Orange County CA Register: http://www.ocregister.com

Eminent domain 'reform' a scam by backers of status quo: San Diego CA Times-Union, 5/24/07


By Chris Reed

It could not be more obvious that California needs to reform eminent domain laws, which are often used to punish homeowners and businesses out of favor with City Hall and reward well-connected firms. So I welcomed news that another eminent domain reform initiative had surfaced in Sacramento.

Unfortunately, it turns out to be a sham:

The initiative applies only to owner-occupied homes, not apartments. It defines small businesses in a way that only a small number of them would be protected. It does not protect churches, farms, investment property, vacant land and homeowners who have not lived in their house for more than a year.

When we questioned the League about these problems, we received a rebuttal that argued: "It is not easy for a city to determine that blight exists. A city cannot simply declare a neighborhood blighted." So, proponents admit, that their initiative continues to allow for the taking by government of "blighted" properties, which is the current, unacceptable standard.

ACA8 offers a few tweaks that would protect some homeowners and increase compensation for some small business owners, but passing it would be worse than passing nothing. It would convince the public that reform has taken place, while changing nothing of substance. That is the goal of proponents.

That's from an Orange County Register editorial, which has this nice, sharp, terse description of the initiative's sponsors:

... the League of Cities, the California Redevelopment Association, the League of Conservation Voters and other groups that lobby for maximum government control over private property.

San Diego CA Times-Union: http://weblog.signonsandiego.com

Eminent-domain bill isn’t nearly reform enough: Redding CA Searchlight, 5/24/07


Our view: A Democratic assembly man’s bill doesn’t go far enough, but at least property rights are on the agenda.

If setting the agenda is half the battle, property-rights advocates pushing reform of California's eminent-domain laws can glimpse victory on the horizon.

State Assemblyman Hector De La Torre, a Democrat from the Los Angeles area, this week announced a package of eminent-domain restrictions that would bar state and local governments from condemning owner-occupied homes for use by another private party. The bills also include limited protections for small businesses.

Do they go far enough? Not even close. Still, the anti-eminent-domain initiative Proposition 90 only narrowly failed in November and similar measures are headed to the ballot next year, so even Democrats and environmental activists are paying lip service to property rights.

The north state's Assemblyman, Doug LaMalfa, who avidly pushed Proposition 90, called the latest measure "a disingenuous bill that doesn't really protect much."

The small-business restrictions have enough loopholes to leave owners helpless before the government steamroller, while the package does not protect farms, second homes or investment property.

No, absentee landlords don't make for the same headline-grabbing horror stories as grandmothers forced from their homes, but the principle is the same: The government should not seize private property to resell it for someone else's profit.

The Supreme Court declared that practice constitutional for the "public purpose" of increasing tax revenue in its 2005 Kelo ruling. It would seem easy enough for the Legislature to declare that, whatever the justices say, California would respect its residents' rights.

But cities that are constantly scrambling for more tax revenue like to keep their options open, and they have sympathetic ears in the Legislature. If only humble property owners who just want to be left alone could win a similar audience.

Redding CA Searchlight: http://www.redding.com

City defends eminent domain ordinance: Monterey County CA Herald, 5/24/07

By Andre Briscoe

A new ordinance outlining how Del Rey Oaks could acquire property using eminent domain was written only to comply with state law, according to the city attorney.
On Tuesday, the council heard the first reading of the proposed ordinance.

But City Attorney Rob Wellington insisted that it was necessary to comply with recently passed state legislation that has tightened the ability of cities and counties to use their condemnation powers to jump-start development projects.

Part of the legislation requires that a city or county have a written policy describing how land will be acquired using eminent domain. The council told residents who attended the meeting that the only redevelopment in the city will be the planned resort project area: 360 acres of Fort Ord land adjacent to South Boundary Road, that is slated to hold two hotels, homes and a golf course.

Wellington said the ordinance was "only a matter of legality" and that using eminent domain to acquire additional property for redevelopment would be indefensible, especially given the lack of blight in the city.

"This is just a formality. It's something that needed to be done," said Wellington. "It's a law that will allow redevelopment agencies (in the state) to restate the power they already have."

Some who attended the meeting voiced concern that such an ordinance could be used to seize public and private land. Former councilwoman Kathi Smith hinted that the Del Rey Oaks Golf Center and a 17-acre vacant parcel that sits between City Hall and Monterey-Salinas Highway were areas the city could impose eminent domain on later. Wellington said that if the city develops those properties, eminent domain would not be an issue because both are city-owned. He added that there are no plans to develop them.

Councilman Jerry Edelen sought to calm any fears residents might have.

"I can't imagine this council, in my wildest dreams, confiscating private property from residents of Del Rey Oaks for commercial purposes," Edelen said. "That, to me, would be insane."

The legislation passed last year was a response to a 2005 U.S. Supreme Court ruling that affirmed a city's right to use eminent domain in taking private property to help increase local tax revenues. The council will vote on adopting the ordinance at next month's meeting.

Monterey County CA Herald: http://www.montereyherald.com

Governor Gibbons signs eminent domain compromise bill: KVBC-TV3, Las Vegas NV, 5/24/07

Associated Press

A compromise plan that restricts government agencies' use of eminent domain to acquire property has been signed into law by Governor Jim Gibbons.

Supporters of the compromise say it provides strong protections against government abuses of eminent domain powers while still providing the option for large public works, such as transportation projects.

The law takes effect immediately. There's also a related constitutional amendment that will have to be approved again by the 2009 Legislature before advancing to a statewide vote in 2010.

Supporters say the proposals are an improvement over last year's Question 2, called the People's Initiative to Stop the Taking of our Land or PISTOL by its supporters.

Lawmakers who pushed the compromise say it includes more evenhanded terms for valuing property, agreed to by both government lawyers and PISTOL supporters.

KVBC-TV3, Las Vegas NV: http://www.kvbc.com

Eminent-domain limits are OK'd: Dallas TX Morning News, 5/24/07

Legislature: Senate action bolsters efforts to protect neighborhoods

By Terrence Stutz

Impoverished inner-city [Texas] neighborhoods would receive new protections when they are targeted for redevelopment under legislation adopted Wednesday by the Senate that imposes new requirements on eminent-domain projects.

The measure, already approved by the House, would require local governments to meet stiffer criteria before they can declare a property "blighted," a designation that triggers eminent-domain powers by local governmental entities.

Sponsored by Sen. Kyle Janek, R-Houston, the legislation bolsters the efforts of some older Dallas neighborhoods – some around Fair Park – to guard against sweeping plans for redevelopment.

Among its provisions is a restriction that allows local government agencies to declare only individual properties "blighted" rather than designating an entire area as blighted because of one property in the area that meets the criteria.

"If you're going to condemn property, you can only condemn the property on which you can make a case for blight," Mr. Janek said. "The legislation sets more specific criteria to meet the definition of blight."

The issue of eminent domain – the government's right to seize land for projects that serve a public purpose – has caused heated debate 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.

That law was triggered by a U.S. Supreme Court ruling that said cities can use eminent domain for private projects to generate tax revenue. The ruling caused a national backlash and prompted state legislatures to enact safeguards against land seizures for commercial use.

Texas laws still allows cities to use eminent domain in blighted areas for development, but critics said the loose definition of blight has made many impoverished communities vulnerable to the actions of cities that want to clean those areas up.

The bill passed Wednesday requires that the property be proved to fit at least four criteria before it can be classified as blighted, including that the structure is uninhabitable, unsafe or abandoned and that it is the site of repeated criminal activity.

The measure is being watched closely by the city of Dallas and the Foundation for Community Development, which a few months ago considered a push for stronger eminent-domain powers in some areas, including the Frazier neighborhood in South Dallas.

Reaction to the proposal was so hostile that the city backed down from its plans. Instead, Dallas officials say they are simply monitoring efforts to strengthen the 2005 Texas law.

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

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

Eminent Domain, Redevelopment Policies Spark Debate: Leesburg VA Today, 5/24/07

By Dusty Smith

A debate stirred this week in which some homeowners passionately stated their cases for keeping their communities in tact, and barring developers from buying up property and permanently changing the landscape. Some defended their right to sell their property to developers if they chose.

And while the arguments may sound like those made by western Loudoun residents trying to preserve their rural lifestyle or sell the farm over the past decade, the concerns were raised by eastern Loudoun residents opposed to high-density redevelopment.

People on both sides of the issue spoke during a Loudoun Planning Commission public hearing Monday regarding a comprehensive plan amendment that would: bar the county from taking land through eminent domain and giving it to a private entity for economic development purposes; eliminate the term "redevelopment" from the comprehensive plan; and remove language calling for construction of mixed-use town centers in communities east of Rt. 28.

Supervisor Mick Staton (R-Sugarland Run) initiated the change and explained why to commissioners during the hearing. He said fears about the use of eminent domain was not the sole focus of the CPAM despite the recent attention brought to that element. The CPAM has been labeled Eminent Domain and Protection of Existing Communities.

"To me, it's the other way around," he said, detailing his concern that town centers one day could be built over top of older communities in Sterling Park or Sugarland Run because the comprehensive plan permits it. "They are suburban. They are built out. The citizens there don't want to see a lot of change ... [or] a change to a more intense use."

Staton said he has observed the "suburban fringe" of the Washington Metropolitan Area ripple outward as older suburbs closer to the city are converted to high-density developments.

"As long as our plan envisions the redevelopment of these areas of eastern Loudoun, someone will try it," he said, adding that he would prefer the comprehensive plan encourage revitalization of communities.

A U.S. Supreme Court decision two years ago supported a Connecticut town's use of eminent domain to take property and give it to a public entity for economic development purposes. That decision led Staton to also address eminent domain in his initiative out of concern "that this was going to be the beginning of a new wave of eminent domain," he said.

"Am I looking to limit what we do in the future? Absolutely," Staton told the commission. "I want to give the people who live in those areas the assurance that a developer's not going to be knocking on their doors, trying to buy their property. Next thing you know, we've got a Reston Town Center."

Nine people spoke during the hearing, about equally split in their opinion about whether the CPAM is needed.

Robert Miller, a resident of Sugarland Run for more than 30 years, said he has already received offers to buy his property and that he supports the plan changes. The opportunity to build up the tax base could tempt future boards to allow drastic changes to the area, he told the commission.

"We do not want to see this type of issue, redevelopment," he said. "Revitalization, yes. Redevelopment is codeword for increasing your tax base."

Taylor Jarnagan, however, said concerns about takings through eminent domain, as permitted by the Supreme Court decision, were taken care of in Virginia when the state legislature enacted a law banning the takings for economic development purposes. He also pointed out that some Sugarland Run residents might be willing sellers. And, he said public hearings would have to be held before any major changes could occur.

"If we say that no redevelopment would be allowed ... then I am concerned," he said. He asked commissioners if they would approve such a development. Commissioner Suzanne Volpe (Sugarland Run) said that other people could be in the commission's seats next year.

Planning staff members expressed concerns about the "unintended consequences" of precluding redevelopment in eastern communities.

Joseph Paciulli, a member and former chairman of the Economic Development Commission, said that group does not see the need for changing the plan.

Volpe said she's been hearing from neighbors expressing concerns that the area will morph into a Tysons Corner. "This is a serious issue," she said.

County Chairman Scott K. York (I-At Large), who lives in Sterling, last week became aware of information that one of Sugarland Run's two homeowners associations distributed recently, which he said was fueled by election year scare tactics. He pointed to campaign fliers from Staton's 2003 election campaign raising the same types of concerns.

York pointed to the state law banning the use of eminent domain for economic development purposes, and said that county policies would only allow the use of eminent domain for a public use site, such as a school or a sheriff's station, and only as a last resort. In the comprehensive plan, York said, eminent domain is only mentioned in reference to obtaining small pieces of right of way for transportation projects.

Staton said the state legislature declined to push for a constitutional amendment banning eminent domain for economic development purposes and therefore the law could be changed in any given year. Because of that, he said the county should make its own statement opposing such uses. However, he also said he believes there is still reason to believe developers will push place high-rise residential units in eastern Loudoun.

The commission voted unanimously to send the item to a Committee of the Whole work session for further review. Commissioner Nancy Doane (Catoctin) made a substitute motion to seek input from the board of supervisors about whether the eminent domain part of the CPAM should be separated from the town center and redevelopment elements; however, after a brief discussion she voted along with the rest of the commission against it.

Leesburg VA Today: http://www.leesburg2day.com


State hopes to limit eminent domain: Daily Tar Heel, University of North Carolina, 5/24/07

Could strengthen property protection

By Eric Johnson

North Carolina lawmakers might soon consider an amendment to the state constitution designed to prevent the forced sale of private property for economic development.

The issue has strong bipartisan support in the state House, where more than 90 lawmakers are sponsoring an amendment, and Republicans are pushing a similar measure in the Senate.

"I hope that something can get done," said Daren Bakst, a policy analyst for the Raleigh-based John Locke Foundation. "It's about getting an amendment that actually protects North Carolinians."

The vast majority of states have acted in the last two years to limit the use of eminent domain, the power that allows governments to force the sale of private property for public use.

Typically employed by state and local governments to purchase land for roadways, schools or other public projects, eminent domain became a hot-button issue after a 2005 Supreme Court ruling held that governments could take property for the purpose of economic development.

In that case, a homeowner named Susette Kelo sued the city of New London, Conn., to prevent the forced sale of her home to a private developer.

The Supreme Court's ruling in favor of New London prompted a backlash in state capitols across the country as lawmakers moved to more strictly define "public use" and limit property takings for economic development.

"When the Kelo decision came down, it really kind of shocked all of us, especially the general public," said Jennifer Zeigler, legislative affairs attorney for the Castle Coalition, a Virginia-based think tank dedicated to property rights issues.

"There's been a massive response, and 40 states have passed some kind of eminent domain reform since Kelo," she said.

North Carolina acted last year to strengthen existing state law defining the limits of eminent domain, and property rights advocates generally give the state high marks for strictly interpreting the "public use" clause of the U.S. Constitution.

But backers of an amendment to the state constitution say it is necessary to prevent lawmakers from weakening property protections in the future.

"Legislation can be changed at any time," Bakst said. "It's very easy to change, and we want to make sure this protection is guaranteed in the state constitution."

Andrew Romanet, General Counsel for the N.C. League of Municipalities, said that local governments have no problem with a strict interpretation of "public use" and that the state has a history of avoiding property seizure for the sake of economic development.

"I have not seen our legislature, with either party in power, giving away the power of eminent domain," he said.

The only concern with a constitutional amendment, he added, is that it could have unplanned effects on the legitimate use of government power.

"The law of unintended consequences could occur, no matter how well it's drafted."

Any amendment would need to clear both the House and Senate before being submitted for a public referendum during statewide elections in November 2007.

Daily Tar Heel, University of North Carolina: http://www.dailytarheel.com

Property owner wins eminent domain case in Arnold: St Louis MO Post-Dispatch, 5/22/07

By Robert Kelly

Dr. Homer Tourkakis will be able to keep his dental office [in Arnold MO], even though the city has condemned the property to help make room for the large Arnold Commons shopping center, a Jefferson County circuit judge ruled Monday.

"It is the court's opinion that government has the inherent power to take private property by eminent domain for true public purposes," Judge M. Edward Williams wrote in his three-page ruling.

"These uses would include the construction of roads, sewer systems, water lines and many others but most emphatically would not include the construction of a shopping center by a private developer as is the case here," the judge said.

Kelley Farrell, attorney for Arnold, said the ruling would be appealed. "We definitely think it is constitutional and that Arnold acted properly," said Farrell.

Even so, Tourkakis claimed victory over the city's attempt to take his dental office at 1506 Big Bill Road.

"We're very satisfied," Tourkakis said. "Government should not get involved in private enterprise."

The judge heard arguments in the case in January. At the time, Williams expressed some sympathy for the dentist.

"This is not a public use" of the land, as required for redevelopment under eminent domain laws, Williams said from the bench.

"You will never convince me that a shopping center is a public use," he said.

On the other hand, Williams said he had some doubt that he would have the authority to overturn the Arnold City Council's decision to declare Tourkakis' office and surrounding land blighted.

But in his ruling on Monday, the judge said he did not believe that Arnold had the constitutional power as a third-class city under Missouri law to declare private property as blighted for redevelopment by a private developer.

The construction of Arnold Commons is continuing around Tourkakis' property. He was among the last holdouts against selling his property for the shopping center project.

Farrell said she was unsure whether the city would continue to negotiate with Tourkakis while the judge's ruling was appealed.

Tourkakis previously declined the city's offer of $343,750 for his office and the surrounding land.

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

Council votes to start eminent domain against landowners: Salt Lake City UT Tribune, 5/23/07

By Derek P. Jensen

Three property owners in Tooele County may be forced out to make way for business jets.

The Salt Lake City Council cast a unanimous vote Tuesday to initiate eminent domain against the property owners in order to tap federal money to upgrade the city's Tooele Valley Airport. The action was taken to keep the city on schedule with installation of an instrument landing system - it would allow more private pilots, business planes and flight school traffic to land in Tooele - if the property is seized.

There was no public hearing prior to the vote and the affected residents, who live in Erda, did not address the council.

"It's a tough thing for those property owners," conceded Councilman Carlton Christensen. "There was a hope an agreement could be reached."
Tuesday's 5-0 measure means the city likely will move forward with a 102-acre expansion of its Tooele airstrip. The administration has pushed the condemnation since the funding secured by the Federal Aviation Administration must be spent by Oct. 1. The city hopes to begin construction in June.

In March, the property owners complained, then won a reprieve from having their land taken when the council agreed to continue negotiations. All along, the owners have maintained appraisals made by the federal government have been too low.

Despite Tuesday's vote - it sets up eminent domain proceedings for early June - Councilwoman Jill Remington Love has not ruled out an amicable agreement.

"It's still our hope that we can voluntarily negotiate these properties," she said.

City officials need the property and air rights for the landing system they say will free airspace at the international airport for more commercial flights, as well as bolster safety at both venues.

The Tooele County Commission has sent a letter in support of the city's airport improvement plans.

Lack of the landing equipment, according to Christensen, has hampered the small airport's potential.

"We don't make any money off of it," he said. "Quite the contrary. But we are trying to bring it up to a usable state."

Salt Lake City UT Tribune: http://www.sltrib.com

Eminent Domain Threatens Brooklyn Financial Service Firm: Brooklyn NY Daily Eagle, 5/23/07

Track Data Employs 100 Onsite, Overshadowed by Duffield Homes

By Sarah Ryley

The Duffield Street homes, allegedly linked to the Underground Railroad, dominated yesterday’s eminent domain hearing to consider the seizure of 21 properties on three blocks in Downtown Brooklyn [NY].

Another lesser-known condemnee is Track Data Corporation, a financial service company six blocks from Duffield that employs 150 people and provides real-time financial and market data. The building, surrounded by parking lots, is within the BAM Cultural District, an area the city wants to turn into mixed-use developments and cultural centers orbiting the Brooklyn Academy of Music.

“Given the fairly small footprint of the building, what could you possibly want here more than a high-tech firm that pays salaries, employs 100 people [onsite] and has been here for several decades?” said Track Data spokesman Rafi Reguer. “What is it that you could replace it with that would be more valuable to the borough?”

The answer was nothing, at least for now.

According to information provided by the Downtown Brooklyn Partnership, there is no development in any planning or approval stage that would replace Track Data. A spokesman for the partnership said it’s a normal part of the redevelopment process to clear everything through eminent domain to ensure that all existing property owners or lease holders are vacated when it comes time to build.

Eight lots that were on the eminent domain list yesterday are within the BAM Cultural District, and four have planned developments. A theatre for Danspace and 350 residential units are in the planning process; the Theatre for a New Audience, a 350-seat theatre, is in the approval process; and a small park is proposed atop one of the parking lots. Forté, a 28-story Flatiron-style residential tower by The Clarett Group, and a residential conversion at 96 Rockwell St. — both market-rate condominiums — are under construction in the vicinity.

Aviva Jakabowitz, Track Data’s corporate controller, testified that the company established its roots in the neighborhood more than 20 years ago, when there were crack vials laying around and employees had to arrange to exit the building in groups.

“Someone, up in an office somewhere, thinks they have a better idea from their perspective. But somewhere else, I guarantee, there is a team of people in city government or city planning racking their brains trying to figure out how to get firms like us to locate here,” said Reguer.

The city initially planned for high-tech and financial firms to occupy much of the office space in MetroTech Center and the Fulton Mall but, with 800,000 square feet of vacant space, changed course last year to set its sight on creative firms.

Joe Chan, president of the Downtown Brooklyn Partnership, said last year that many of the financial and insurance companies the city originally thought would move to Downtown Brooklyn instead consolidated their operations or moved to New Jersey or out of the country.

Reguer said Jersey might be a consideration if the company’s property is taken away by the city’s Department of Housing Preservation and Development (HPD). “We have to look at all our options,” he said. “We get calls all the time from various cities and states that are very aggressive in their efforts to move our business away from here.”

Initially, the inexpensive space and transportation options drew the company’s founder, Barry Hertz, to the area. Since then, Reguer said, the company has installed at least ten 100-megabyte Ethernet pipes — which is 1,000 times the capacity most businesses typically require — so it can pump information from stock markets and financial corporations around the world in and out of the building 24-hours a day.

“We are, if not Verizon’s largest customer in Brooklyn, one of their largest customers in Brooklyn,” he said.

Track Data provides similar services to Bloomberg, L.P. — the company that made the mayor a billionaire — but brings in less than one percent of Bloomberg’s $4.7 billion in annual sales, according to Hoover’s directory.

The Downtown Brooklyn Partnership did not offer any further comments in time for publication.

Brooklyn NY Daily Eagle: http://www.brooklyneagle.com

Chances are dimming for redevelopment in Frenchtown: St Louis MO Post-Dispatch, 5/22/07

A year after the City Council took initial steps to redevelop part of the historic Frenchtown area, the chances of the project ever being built have faded.

New Melle-based developer Tim Griffey says he's "back-burnered" his idea for new homes, shops, restaurants and offices on 15 acres along and near the northern end of North Second Street.

"As far as I know, it's on hold indefinitely," said the city's economic development director, Nadine Boon. "A long indefinitely."

Griffey said a slowdown in the housing industry had added to the challenge of assembling property at the site. "With the issues there, we thought it wouldn't be a good idea to continue to invest money" now, he said.

One issue is on the use of eminent domain condemnation authority. The restriction imposed by the council keeps it from being used in negotiations to buy existing businesses in a redevelopment area. Griffey has acquired only two properties, both vacant.

Adding to the plan's uncertain future was the April 3 defeat of its main City Hall supporter, former Councilman Rory Riddler.

Riddler's successor as the area's councilman, Richard Veit, says he'll oppose using eminent domain to force the sale of any property in the redevelopment area — even vacant buildings.

"I think any developer who wants the city to assist them in accumulating land is going to have a problem," Veit said.

Riddler got campaign donations from Griffey, Griffey's company and his attorney, while some businesses opposing the Griffey redevelopment plan and eminent domain donated to Veit's campaign.

Veit says he's interested in "microdevelopment" — working with individual developers one building at a time — instead of far-reaching plans covering a large area. "Small scale that builds and grows is the way to go," he said.

As an example, he cited developer Tim Short's ongoing work to renovate an old building at Olive Street and North Second. The city development department says Short plans a mixture of commercial and residential space.

Last May, the council approved legislation declaring the 15-acre site blighted, authorizing the city to eventually issue property tax breaks to get redevelopment going.

Supporters, including a group called Frenchtown Citizens Promoting Redevelopment, or CPR, said the measure was needed to end a decades-long economic spiral.

Opponents, including businesses in the targeted area, persuaded the council to include restrictions that in effect exempted them from eminent domain pressure. They argued that it was unfair to force property owners to sell so a redevelopment company could make a profit.

The policy, expanded later to apply to future development projects citywide, still allows the use of eminent domain to obtain buildings declared public nuisances or beyond repair.

Eminent domain also can be used to take business property lacking a business license for at least a year and any property with assessed valuation declining by at least 50 percent over two years.

Boon has urged the newly elected council to loosen the restrictions to bring them closer to those in state law. "This particular ordinance is a deterrent to developers," she said.

She said some other sites in the city also will be difficult to redevelop under the measure, including a stretch of First Capitol Drive southwest of West Clay Street.

Veit, however, says the restrictions aren't tough enough.

"I'm sure (Nadine) truly believes that's good for economic development," Veit said. "But on the council, I represent more values than just economic development."

A leader in the CPR group, Maureen Rogers-Bouxsein, said she hopes that some other developer eventually steps forward in Frenchtown if Griffey gets out.

Doug Medley, a transmission shop owner in the redevelopment area who opposed last year's council measure, said he prefers that the council repeal it.

He said property values of thriving businesses could be hurt just by the "blighted" description for the area even if the legislation were never used.

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

Deal with county lets city of Yuma use eminent domain: Yuma AZ Sun, 5/21/07

By Jeffrey Gautreaux

After nearly an hour of discussion and despite plenty of reservations, the Yuma County Board of Supervisors approved an intergovernmental agreement that allows the city of Yuma to move forward on five infrastructure projects and use eminent domain to secure property if necessary.

The agreement, approved by a 3-2 vote, allows the city to negotiate and possibly use eminent domain to acquire necessary right-of-way that is outside the city limits. The supervisors' concerns were that they were turning over the future of their constituents' property to another municipality, upon which they have no control.

Supervisor Tony Reyes said the board was reluctant because if the city "messes this up," the county would get blamed. "The last thing we want to hear is from county residents who feel the city of Yuma has given them the runaround," he said. "Because it will affect everything else we want to do in the future."

The projects, which affect a handful of parcels in the county, covered by the agreement are improvements to the following roadways: 32nd Street between 8th Avenue and 28th Drive; 24th Street between Avenue 6E and Avenue 9E; Avenue 3-1/2E between 24th Street and County 14th Street; and Avenue 7E between 24th Street and County 9th Street. The agreement also cover plans for a new water transmission line from the Agua Viva Water Treatment Plant, 2670 S. Avenue 9E, to 24th Street.

Chairman Casey Prochaska said she knew too little about the various projects to feel comfortable in turning the matter over to the city. She and Supervisor Lenore Stuart voted against the agreement.

Prochaska said this issue was an unintended consequence of city annexations that have led to a checkerboard on the edges of the city. City Engineer Paul Brooberg said the checkerboard can cause problems for engineers, law enforcement and other agencies, but he said the city has simply made annexations where residents have requested them.

Two property owners who have right-of-way the city needs told the board that they felt they were not being provided enough information and were having difficulty in negotiating with the city. Deputy City Attorney Richard Files told the board that the city is using its normal process and meeting with residents. He said acquiring the property will take a long time, and the city still has far to go before it has the land it needs.

Supervisor Russell McCloud said there was no reason to believe the city wouldn't negotiate in good faith in the same manner that the county would.

The supervisors considered putting the matter off for a few months or amending it to give them more discretion, but in the end, they believed the city needed the agreement to move forward. The city can acquire private property outside the city through mutual agreement with the owner, but they have no right to pursue condemnation proceedings in court for lands outside the city. The intergovernmental agreement will allow them to do this if necessary.

And those proceedings are almost always necessary, according to County Administrator David Garcia. Garcia said property owners regularly hold out to go to court because they get higher prices than what is initially offered by a municipality.

As part of the agreement, the city will pay all of the costs for the land they purchase and for legal fees in any eminent domain case.

Yuma AZ Sun: http://www.yumasun.com

Eminent domain use restricted locally: Nevada Appeal, Carson City NV, 5/22/07

Agencies said to favor cooperation

By Greyson Howard

Local government agencies are setting eminent domain policies in both Truckee and Eastern Placer County that sharply limit their ability to exercise the controversial means to acquire private property.

Eminent domain, the power of local governments to seize land in exchange for fair market value, was the focus of national concern after a 2005 Supreme Court decision supported its use on behalf of private developments, spawning numerous statewide initiatives across the country.

Although Proposition 90 failed in California last year, Gov. Arnold Schwarzenegger signed into law five legislative statutes. One required local governments with a redevelopment agency to adopt an ordinance by July 1 spelling out how they would apply eminent domain within their jurisdiction.

But Tahoe-area officials said this week that they do not rely on the use of eminent domain.

Neither the Town of Truckee nor Placer County’s Redevelopment Agency has ever used the power of eminent domain, officials said, and neither has any standing plans to use it in the future.

Town of Truckee
Truckee has taken a similar stance on eminent domain, and the required policy was approved by town council at its meeting last Thursday.

“The town has never exercised eminent domain and never planned to use eminent domain,” Town Attorney Dennis Crabb told the council at the meeting.

In addition to state requirements for the use of eminent domain, Crabb said town policy does not allow eminent domain for single-family occupied homes, condemnation for the same use (eminent domain exercised on retail property to bring in new retail, for example), and requires in-depth consultation between the town and property owner.

David Griffith, the town’s redevelopment and housing coordinator, said property owners have expressed worry about eminent domain use in the town’s redevelopment area.

“There were some concerns I heard along West River Street, but we addressed those concerns saying that we have no intent to acquire sites through eminent domain,” Griffith said. “All acquisitions will be voluntary.”

He said the town has a policy in place to assist willing sellers along West River Street in moving to another location.

“Our local intent towards eminent domain is basically — we don’t use it unless there are extreme circumstances,” Griffith said. “We avoid it at any cost.” Griffith said.

Placer County
North Lake Tahoe is one of three redevelopment project areas overseen by Placer County, but the agency hasn’t found the need to use eminent domain for any of its projects, said Deputy Director Rae James of the Placer County Redevelopment Agency.

“We’ve been so successful in working with property owners that it hasn’t been necessary,” James said.

Currently, county policy states that eminent domain cannot be used if a property owner is showing good faith in dealing with redevelopment, if the property is intended for a recreation area, or if the property is owned by another public agency, James said.

She said that policy, adopted in 1997, is scheduled to go before the Placer County supervisors on June 12 to meet the July 1 deadline.

Under the 1997 policy, Placer’s power of eminent domain in the Tahoe area is also set to expire in about a year, and James said staff will recommend letting it lapse.

“The board can reinstate that power if needed, but it would take about a year,” James said. “But right now we just don’t see a need for eminent domain in Tahoe.”

Nevada Appeal, Carson City NV: http://www.nevadaappeal.com

Legislators dig in on eminent domain bills: Stamford CT Advocate, 5/22/07

By Brian Lockhart

Two weeks before the scheduled end of the legislative session, the General Assembly's Appropriations Committee yesterday passed a pair of bills that members hope will be merged into a comprehensive rewrite of the state's eminent domain laws.

"We're working very hard with the governor's office to come up with a very strong bill designed to make it as difficult as possible for people's homes to be taken," state Rep. Art Feltman, D-Hartford, told his colleagues.

One of the bills, No. 1054, approved yesterday represents the work of the Planning and Development Committee. Feltman is a committee co-chairman.

The second, No. 167, is the work of the Judiciary Committee and its two co-chairmen - state Sen. Andrew McDonald, D-Stamford, and state Rep. Michael Lawlor, D-East Haven.

Feltman told the Appropriations Committee that both bills need to be kept alive so the governor and the co-chairmen of both committees can continue drafting compromise legislation for the full House and Senate.

"The bottom line is, we are trying to get something done this year . . . without being absolutist about this," Feltman said.

Many states, including Connecticut, began reconsidering their eminent domain laws after the U.S. Supreme Court in 2005 ruled New London could seize homes to make way for a waterfront redevelopment of condominiums, a hotel and offices.

The case made headlines nationwide. Though other legislatures acted, Connecticut's General Assembly has been unable to reach consensus. It created a property rights ombudsman post last year to help private property owners navigate the eminent domain process.

McDonald last night said he was at the Capitol all day working on the eminent domain bill with Lawlor and Feltman. A similar effort at compromise last year never made it to a vote.

"What we're trying to do is hammer out as many of the details as possible . . . so we don't have two separate bills going in different directions, but hopefully, have one unified proposal for the consideration of our colleagues," McDonald said. "There's an awful lot of substantive issues being discussed."

Both bills would require two-thirds - a super-majority - of a city or town's legislative body to approve proposed seizure of property as part of redevelopment plans.

Feltman yesterday told the Appropriations Committee that some of the biggest differences in the bills are in compensation.

The Planning and Development Committee, along with Republican Gov. M. Jodi Rell, seeks to reimburse private owners 125 percent of the fair market value of owner-occupied residential and commercial properties that meet building and housing codes.

The Planning and Development bill also would compensate active businesses for a loss of "good will."

"If a store is relocated to another block (with) less traffic, is compensation due for that?" Feltman said.

State Rep. Judith Freedman, R-Westport, an Approprations Committee member, voted for the two proposals yesterday, calling eminent domain reform "long overdue. "I'll vote for both, hoping we get a very strong bill out," she said.

State Rep. Ernest Hewett, D-New London, vice chairman of the Appropriations Committee, told his colleagues he believes the state's existing laws work.

"The city of New London have been made the bad guys," said Hewett, a former member of the New London City Council and the city's mayor from 2000 to 2001. "We crossed every 't' and dotted every 'i'. I was there when (the eminent domain case) started and ended. We did it right."

But Hewett acknowledged that requiring greater compensation for seized properties than just fair market value "could have went a long, long way" toward avoiding the controversy.

Stamford CT Advocate: http://www.stamfordadvocate.com

Broad Coalition Introduces,Eminent Domain Reform Package: Californians for Eminent Domain Reform, 5/22/07

Group Introduces ACA 8 and a Companion Statutory Measure (De La Torre) to Protect Homeowners and Small Businesses from Eminent Domain

Press release

A broad coalition of homeowner groups, small business representatives, labor, environmental, community and ethnic organizations today joined Assemblyman Hector De La Torre (D-South Gate) in unveiling a package of eminent domain reforms that would provide homeowners and small businesses with new, strong protections against eminent domain. Authored by De La Torre, Assembly Constitutional Amendment 8 (ACA 8)and a companion statutory measure (soon to be amended) are in direct response to the U.S. Supreme Court's "Kelo" decision. They include a constitutional prohibition on the use of eminent domain to take an owner-occupied home to convey to another private party, as well as new restrictions on the taking of small business properties for conveyance to private parties. ACA 8, the constitutional amendment, is aimed for the 2008 ballot.

"Today we are unveiling a package that would provide California homeowners and small businesses with new and unprecedented protections against eminent domain," said Assemblymember De La Torre, author of the legislative package. "Two years ago, the U.S. Supreme Court's infamous ‘Kelo' decision sparked a nationwide outrage focusing on abuses of eminent domain. This package is in direct response to that decision."

Ken Willis, president of the League of California Homeowners said, "If passed by the legislature and approved by the voters, this package would provide California homeowners long overdue protections from eminent domain for private development. The League of California Homeowners wholeheartedly supports this package and will work with our legislators to place the constitutional amendment before the voters in 2008 and to pass the companion statutory measure."

ACA 8, a constitutional amendment to be placed on the 2008 ballot would:

  • Prohibit the State or local governments from using eminent domain to acquire an owner-occupied home (including townhomes and condos) for transfer to another private party.
  • Prohibit government from using eminent domain to acquire a small business to transfer to another private party, except as part of a comprehensive plan to eliminate blight and only after the small business owner is first given the opportunity to participate in the revitalization plan.
  • Grant a "Right to Repurchase." A home or small business property acquired by eminent domain must be offered for resale to the original owner if the government doesn't use the property for a public use.

The package also includes a companion statutory measure that would provide enhanced protections for small business owners confronted with eminent domain. Key provisions of this measure include:

  • If the small business does not participate in the revitalization plan it can choose between relocating or receiving the value of the business. If the small business relocates, it will receive fair market value of the real property (if owned by the small business); plus all reasonable moving expenses; plus expenses to reestablish the business at a new location, up to $50,000; plus compensation for the increased cost of rent or mortgage payments for up to 3 years.
  • If the small business does not relocate and instead is bought out, it will receive fair market value of the real property (if owned by the small business) and 125%of the value of the business if the business could not have been relocated and remain economically viable.

"Combined, this package will provide small business owners with strong protections against eminent domain, and ensure fairness and responsible compensation when a small business owner does not choose to participate in the new development project," said Betty Jo Toccoli, President of the California Small Business Association which represents more than 203,000 small business owners through 78 affiliate small business organizations.

Frank Moreno, President of the California Mexican American Chamber of Commerce, said: "This package is about fairness for minority small businesses, and all small businesses confronted with eminent domain. It will ensure these entrepreneurs are adequately represented, given options to participate in the new business plan, and given fair compensation if they choose not to participate."

Tom Adams, board president of the California League of Conservation Voters, said: "This is a responsible and honest eminent domain reform package. It's time to take care of the eminent domain issue once and for all so that California doesn't continue to be vulnerable to special interests who want to use the issue of eminent domain as a stalking horse to undermine environmental protection like Proposition 90 and some of the eminent domain measures we've seen filed with the Attorney General this year."

Californians for Eminent Domain Reform: http://www.eminentdomainreform.com

Lawmaker proposes limits on eminent domain for private uses: San Jose CA Mercury News, 5/21/07

By Steve Lawrence, Associated Press

California governments would be prohibited from using their eminent domain powers to acquire owner-occupied homes for shopping malls or other private development under legislation proposed Monday by a Democratic lawmaker and backed by a coalition of business, homeowner and environmental groups.

The constitutional amendment and an accompanying bill by Assemblyman Hector De La Torre, D-South Gate, also would restrict the use of eminent domain on small business properties public agencies buy up for private developments.

The companion measures, which supporters say would help both small businesses and homeowners, were introduced as a compromise by opponents of an unsuccessful 2006 California ballot measure that attempted to impose broad limits on the use of eminent domain.

Tom Adams, chairman of the California League of Conservation Voters and one of the supporters of the De La Torre legislation, said that in campaigning against Proposition 90 opponents promised to support "carefully crafted" eminent domain reform.

"We think this is the kind of carefully crafted reform that's necessary," he said in a conference call with reporters.

The bills also are a response to a 2005 U.S. Supreme Court decision that upheld New London, Conn.'s right to take homes for an economic development project, but allowed several states to pass laws limiting eminent domain for non-public uses.

Besides the provisions limiting the use of eminent domain on owner-occupied homes, the De La Torre legislation would:
  • Prohibit the transfer of small businesses acquired through eminent domain to private parties unless the taking is part of a comprehensive program to eliminate blight.
  • Allow small business owners to avoid the mandatory sale of their properties by agreeing to make physical improvements as part of the revitalization project that raised the prospect of an eminent domain proceeding.
  • Give small business owners who refuse to participate in the revitalization plan the choice of either selling the business or moving and receiving compensation.

Business owners who decide to relocate would receive fair market value for their properties, if they owned the targeted building.

The owner also would receive moving expenses up to $50,000 to set up operations at a new location and up to three years of compensation to make up for having to pay higher rent or a bigger mortgage.

If the business did not relocate, the owner could receive fair market value for the property. The owner also would receive 125 percent of the value of the business entity if it could not be moved and still remain economically viable.

The legislation would also give small businesses and homeowners the right to repurchase their properties if they were seized by eminent domain for a public facility and that facility was never built.

Betty Jo Toccoli, president of the California Small Business Association, which claims to represent more than 200,000 business owners, said the legislation "ensures fairness."

But Tim Sandefur, a staff attorney with the conservative Pacific Legal Foundation, said the legislation would provide "virtually no protection for property owners."

The measure would not cover farms, churches, rental housing, second homes, investment property and businesses with more than 25 employees, Sandefur said.

Undercutting the protections it does provide, are loopholes and weak legal definitions, he added. For example, California law defines "blight" so vaguely that "any property can be taken" through eminent domain proceedings, he said.

Adams said the definition of blight has been strengthened by lawmakers and court rulings in recent years. But he also said that supporters of the De La Torre legislation were willing to accept changes to it, if critics point out real weaknesses.

"This is not a ballot measure where you have a take-it-or-leave-it proposition," he said. "This is a legislative proposal that can be worked on by both parties" before going on the ballot.

If lawmakers approve it, the constitutional amendment would go on the ballot next year for considerations by voters.

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

Eminent domain changes in works: Hamilton OH Journal News, 5/19/07

Cities are wary of the state's efforts to alter their ability to take land for development

By Tim Tresslar

Ohio lawmakers continue to hammer out changes to eminent-domain laws while local officials are watching to make sure the rules don't hamper development efforts.

For the last few months, state senators have been crafting two measures — a bill that would change current eminent-domain laws and a constitutional amendment that would make such rules apply to all Ohio jurisdictions.

While popular with the public, officials from cities such as Cleveland and Youngstown oppose the constitutional amendment. They contend that it violates the state constitution by barring cities from setting their own rules. And economic-development officials worry that the proposed changes would make certain public-improvement projects more difficult and more expensive.

State Sen. Kevin Coughlin, R-Cuyahoga Falls, a sponsor of the constitutional amendment, said he hopes the General Assembly will approve both measures by August so the item can be placed on the November ballot. To get the issues before voters, passage would require 20 votes in the 33-member Senate and 60 votes in the 99-member House.

The senate bill, Coughlin said, would clarify the definition of blight for cities and other organizations trying to acquire property for economic development projects through eminent-domain proceedings.

The issue of eminent domain has gained steam in several states, since a 2005 U.S. Supreme Court decision that said government could take nonblighted property for private development use. In 2006, the Ohio Supreme Court set higher standards that government must meet to take property.

Gov. Ted Strickland supports the aims of the proposed Ohio legislation, specifically protecting private property rights and limiting property taking, said Keith Dailey, a spokesman for Strickland. But the governor is concerned about the financial impacts of the measures, Dailey said. And Strickland wants state and local entities to have access to eminent domain when its justifiable, such as redevelopment of blighted areas, Dailey said.

State Sen. Gary Cates, R-West Chester Twp., said he supports both the bill and the proposed constitutional amendment. The driver behind them, he said, is to protect individual property owners' rights.

The laws as written will not hamper economic development efforts in blighted areas in local communities, Cates said.

John Mahoney, deputy director of the Ohio Municipal League, said many of the laws governing eminent domain were written years ago, and his organization doesn't update them.

"To revisit those statutes and to clean those up and update them, that's a good idea," he said.

For example, in addition to cities, several other entities — universities, park districts, utilities and railroads — can use eminent domain to take property, he said. He thinks it's legitimate for lawmakers to look at those powers, he said.

"You don't want to limit it so that the public good can't be served," Mahoney said. "That's the balance you always try to reach."

Mahoney said that laws require cities and other organizations to pay owners fair-market value for their property. And eminent-domain projects must go through a legal review before they can proceed, he said.

"It's a legitimate process," he said. "It just has to be limited."

John Fonner, executive director for the Butler County Transportation Improvement District, said the proposed measures would complicate economic development projects for agencies such as his.

Senate Bill 7, for example, would require that unelected boards and commissions, such as port authorities, have the approval of the elected officials before they take a property through eminent domain. This requirement could pose problems for multi-jurisdictional organizations such as his, Fonner said.

The TID's board is appointed by such entities as the Butler County commission, local municipalities and the Ohio-Kentucky-Indiana Council of Regional governments. And it's unclear whether officials from each of these entities would have to sign off on every eminent-domain move, regardless of size and jurisdiction.

"I think it would become very difficult to do urban-renewal type projects," said Fonner, who also heads the Butler County Port Authority. "As difficult as they are already, they'd get even more difficult."

Hamilton OH Journal News: http://www.journal-news.com

Vantage Point - A New Twist in Eminent Domain: American Surveyor Magazine, 5/19/07

By Wendy Lathrop

Mount Laurel Township first made national land development and planning news in 1975 with the New Jersey Supreme Court's determination that people should be able to afford to live in the communities where they work (Southern Burlington County N.A.A.C.P. v. Mount Laurel Township, 67 N.J. 151). Until then, exclusionary zoning had precluded low- and moderate-income workers from either buying or renting housing within the Township's boundaries. The Court reaffirmed the Mount Laurel doctrine and resolved some of the practical and procedural questions Mount Laurel I raised in 1983 (2 N.J. 158) in a case by the same name.

Fair housing acts now exist far beyond New Jersey's boundaries as a result of that early litigation. "Mount Laurel housing", as it is sometimes referred to, is a stony issue that many developers prefer to throw money at rather than actually include affordable units in their construction plans. Now the Township is poised to take the nation's land use arena by storm again, particularly if the defendant chooses to appeal to the federal Supreme Court, based on a December 2006 decision of the Supreme Court of New Jersey.

Mount Laurel Township v. MiPro Homes, LLC was argued in May of 2006 and the NJ State Supreme Court issued its opinion on December 7, 2006 (citation not yet available as of this writing). In 2001, MiPro bought 16.3 acres in an area zoned for residential use. On May 9, 2002, MiPro obtained final subdivision approval from the Township's planning board to place 23 single-family homes on the land. Meanwhile, the Township was trying to acquire the site from MiPro for open space.

When a "voluntary acquisition" obviously was not going to happen, [the township] filed a condemnation action on May 24, and on May 31 filed its declaration of taking. Within the 22 days between approval of its subdivision and condemnation by Mount Laurel, MiPro had performed a "significant amount of site preparation" for its planned construction. MiPro filed suit. The trial court ruled against the Township's right to exercise eminent domain powers for land acquisition that the court saw as primarily intended to prevent residential development from further stressing municipal services and infrastructure. Keep in mind that Mount Laurel's population exploded from just over 5,000 residents in 1961 to about 40,000 in 1999.

Most of the case's details are in the dissenting opinion to the recent decision and in the appellate court opinion (878 A. 2d 38, 2005). Here we find that a single house had occupied MiPro's tract at purchase, and that MiPro's grantor had intended to construct an assisted living facility on site that would have included affordable housing units. We learn some of the history of zoning and planning regarding open space, and that New Jersey voters have approved ballot issues 11 times since 1961 to provide funds for open space acquisition and park development.

Notable to me is MiPro's argument that no active recreation plans existed for the site. But not all open space is destined for "active" recreation. Passive recreation areas serve a dual purpose: preservation of areas for activities such as hiking or bird watching, and protection of natural resources. This is not a new concept. The creation of the Fairmount Park system in Philadelphia, now encompassing nearly 9,200 acres, had its roots in the recognition that the city's water supply became toxic as it passed through various industrial areas in the watershed. The Consolidation Act of 1854 granted Philadelphia the power to acquire areas within the city as open public space.

MiPro protested the Township's right to exercise eminent domain powers to preserve open space, especially without a plan to create active recreation areas. The appellate opinion outlines a broad legislative background to refute this argument.

In its attempts to acquire the land, Mount Laurel had applied for and received a $400,000 grant from the State's open space preservation program, not an overnight process. The appellate court found, and the state's supreme court affirmed, that not only did Mount Laurel have authority to condemn, but in this instance in particular it had acted in the best interest of its residents.

An interesting point to ponder is the appellate court's analysis of whether it would have been more acceptable for Mount Laurel to condemn the land if MiPro's intended use had been of "greater social benefit", such as a hospital or the initially intended fair market housing. Does the court have the right to balance the social good of each planned land use? Here is where we as active citizens must become involved with zoning and land use decisions in our communities.

Newspaper articles abound with press releases on both sides of the decision. The state's Builders League has declared that acquisition of land for open space purposes signified intent to block legal construction, and could prove the death knell for development throughout New Jersey. The Township, on the other hand, has stated that it is not anti-development, but has a mandate to provide open space to residents. True, it is under severe stress to provide the facilities necessary to accompany residential construction. Commercial sites, on the other hand, do not require schools or trash pick up. But voters have approved spending for open space time and again.

The appellate court noted that "even if the primary goal of Mount Laurel's open space acquisition program in general, and the condemnation of the MiPro site in particular, is to slow down residential development in the municipality, this does not provide a foundation for finding that the municipality's use of eminent domain for this purpose constitutes fraud, bad faith or manifest abuse" (878 A. 2d 49) ­ and thus there were no legal grounds to overcome the condemnation action.

Kelo v. New London instigated many state and local governments to legislate private property protection from eminent domain proceedings. The MiPro cases may trigger additional legal reviews, particularly if the developer pursues a hearing in federal court. The dissenting judge in the New Jersey Supreme Court expressed his view that if the Township wishes to purchase property for open space, that it could only do so from willing sellers, not through condemnation. He further pointed out MiPro's reliance on permits and vested rights accruing from those permits that should have had compensable value.

American Surveyor Magazine: http://www.amerisurv.com

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

Parkway price jumps $1 million: Concord NH Monitor, 5/19/07

City begins process to seize home

By Chelsea Conaboy

The price tag on Langley Parkway will be at least $1 million more than city officials expected due to higher construction costs and an ongoing court dispute.

The latest estimate for building the road, which will provide drivers a route from Interstate 89 to Concord Hospital and the West End that avoids much of Clinton and South Fruit streets, is $8.175 million.

Associate Engineer Martha Drukker said the city is still talking with its partners, Concord Hospital and St. Paul's School, about who will pay the extra cost. Many of the hospital's employees would commute on the road. After it's built, the school will be closed to through traffic.

"What they have acknowledged is that the overruns are justifiable and . . . the benefits of the project are worth the additional cost," Drukker said.

The project, which has been a goal of the city for more than half a century, needs more excavation work than expected, she said. And the city is still embroiled in a legal battle in which opponents to the project argue that a permit issued by the Army Corps of Engineers defies several federal regulations.

Among the plaintiffs are Morton and Carolyn Tuttle. Their home at 257 Pleasant St. sits at the point where the new road will intersect with Pleasant Street. After years of negotiating with the Tuttles to find a place to move the home, the city last month started the formal process of taking the property by eminent domain.
As construction vehicles worked their way from Clinton Street toward the Tuttles' home during construction last year, crews found "very deep" pockets of loam, topsoil and buried stumps that had to be excavated and refilled, Drukker said.

"In order to build the road, you have to get down to a stable material," she said.

The material had to be dug out and replaced with sand and gravel mixtures. That and other increases for fuel costs and miscellaneous expenses, such as added flaggers, have cost an extra $630,000, Drukker said. She rounded up to $700,000 in an itemized explanation presented to city councilors last week.

"There's still a lot of unknowns," she said.

Among the other added expenses are $70,000 for legal fees, $35,000 for water monitoring, $6,000 for historical consultant fees and $170,000 for moving the Tuttle house.

The city council last June authorized the staff to take property connected to the parkway construction by eminent domain when necessary. City staff have tried to find a place the Tuttles would agree to.

The Cape Cod house, which has been owned by the family since 1935, is on the National Register of Historic Places. Morton Tuttle's father, Don, was a pioneer of winter tourism in New Hampshire and editor of the popular promotional magazine the New Hampshire Troubadour.

Conditions laid out between the city and the Tuttles, and from the Division of Historical Resources, require that the lot be comparable in size to the Tuttles' half acre, include city water and sewer, allow for the Tuttles' sun room to face south and be an appropriate setting. Since the late 1990s, the city has looked at and ruled out 19 lots.

In 2002 the city paid $95,000 for a lot at 12 Gabby Lane in the South End near the Bow town line intended for the house. The Tuttles however, want to stay in the West End, where both were raised. The city hasn't been able to find an alternative in that neighborhood.

The city issued a declaration of taking April 12, which starts the process of eminent domain. Attorney Tupper Kinder, who represents the city in the Army Corps case and now in the eminent domain procedures, said the city essentially owns the property now and could move the house on or after July 9.

"I think it's fair to say that the city is sympathetic to the Tuttles," Kinder said. "We're unhappy that we weren't able to reach some kind of agreement with them that would have been easier for everybody, but the circumstances are what they are. The house has to move."

The Tuttles' son, Don, who lives in Goffstown said he's still looking for options. He said there's a property "that is potentially very attractive" that he's talked to city staff about.

"Gabby Lane is not an option as far as we're concerned at this point," he said.

But Drukker said any alternative lot would have to keep the city on schedule and within the projected cost of moving to the South End.

"At this point," she said, "we're planning to go to Gabby Lane."

Even if the Tuttles don't want to remain in their home once it's moved, the house must be preserved because of its historic significance. In its filing with the Board of Land and Tax Appeals to take the property, the city suggested a purchase price of $220,000.

The Tuttles have until May 31 to file objections disputing the necessity of the taking. If they do, the case would go to the superior court.

Drukker said she's hoping for a final ruling on the Army Corps case this summer. The court recently denied a motion to stop construction until the case is decided.

Concord NH Monitor: http://www.concordmonitor.com

Rell taps lawyer to become first property rights ombudsman: Long Island NY Newsday, 5/18/07

Gov. M. Jodi Rell announced Friday she is nominating a Middletown attorney to become the first property rights ombudsman in Connecticut, where a battle over eminent domain went to the U.S. Supreme Court.

Robert S. Poliner, 64, a former chairman of the state Republicans, is a principal of the firm Poliner, Poliner, Antin & Cienava Rocco, PC, where he specializes in business and real estate, municipal and government law.

State lawmakers created the position last year, but it has gone unfilled until now. The office is supposed to help property owners navigate eminent domain proceedings, mediate disputes and recommend changes in Connecticut's eminent domain laws.

Rell, a Republican, said Poliner "understands that homeowners and businesses of Connecticut need an experienced advocate on their side."

Poliner's nomination awaits legislative confirmation.

In 2005, the U.S. Supreme Court sparked national outrage by ruling that the city of New London could take homes in the Fort Trumbull neighborhood to make way for private development. Despite efforts by some Republican lawmakers to prevent the taking of property for private development projects, Connecticut lawmakers have not yet made any changes to the state's eminent domain laws.

Rell proposed legislation this session that would only allow eminent domain takings after the local government approves them by a two-thirds vote.

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

Downtown frustration mounts: Thisweek Newspapers, Burnsville MN MN, 5/18/07

Port Authority sets public hearing to receive comment about using eminent domain

By Tad Johnson

The Rosemount [MN] Port Authority on May 15 set a public hearing for June 19 to receive comment regarding its intent to acquire the Ratzlaff Service Station property by eminent domain to move forward with a proposed mixed-use downtown redevelopment plan.

Although the public hearing has been set, city officials say they will continue to attempt to break the purchase agreement stalemate with the landowner — Dr. Kurt Walter-Hansen, a Rosemount veterinarian.

“Our commitment is to continue to negotiate, and we’ll be very open to settlement within that time period,” said City Administrator Jamie Verbrugge, who has met with Hansen five times in the past few months. “We are not closing the books on any decisions with Dr. Hansen.”

Mike Baxter, Port Authority chairman, said the city will continue to work with Hansen and his legal counsel to resolve the issue before using eminent domain.

After speaking with Hansen’s attorney, Baxter said he is confident that he can mediate an agreement between Hansen and the city.

Port Authority members approved an action to set the hearing by a 5-2 vote with commissioners Bill Droste, the city’s mayor, and Philip Sterner, who is also a City Council member, voting no.

Droste said he voted against setting the public hearing because of the perception it would create among those in the community.

“I would not want to create any negative outcomes,” Droste said. “We ought to be able to do this without going to eminent domain.”

Setting the public hearing is not a final decision that the city will use eminent domain to acquire the corner lot of the downtown redevelopment area of Core Block East. The hearing is set in order to receive public comment regarding the possible action.

Baxter said a decision to use eminent domain wouldn’t come until August.

For the past two years, the city’s contracted developer and the city have been unable to forge a purchase agreement for the Ratzlaff lot and three other lots with houses/businesses that Hansen owns.

The Port Authority set the public hearing following a closed session discussion of Hansen’s written response to the city’s April 13 purchase offer for the Ratzlaff property and three other sites in Core Block East.

Hansen had until May 14 to respond to the offer after he was granted two-week extension from the original deadline.

Droste said Hansen wrote that he is a willing seller, did not indicate whether Hansen accepted or denied the offer or made a counteroffer.

Toward the end of the meeting, Port Authority Member Bruno DiNella asked Hansen to answer “yes or no” when asked whether he accepted the city’s offer for the purchase price.

Hansen did not answer either way, indicating that he was not satisfied with the city’s offer, which he claims is $75,000 lower than what he paid for the property last year, and that he needed to have another appraisal of the property completed.

Port Authority members have in the past said Hansen has attempted to artificially inflate the price of the property through his purchase.

Stonebridge Development & Acquisition of Apple Valley, the city’s contracted developer for Core Block East, proposes to construct a building with 95 apartment units and about 13,000 square feet of commercial space.

The development concept does not include the properties Haupt Antiek Market, Quilter’s Haven, Music Magic and the Tri-Store. The city is not seeking an eminent domain hearing for those properties.

Hansen says the Stonebridge project is not supported by the public. He also cited a petition signed by Rosemount and non-Rosemount residents opposing the use of eminent domain for downtown redevelopment.

Baxter said the city has been working toward downtown redevelopment for the past decade.

“There should be some form of up or down vote on it,” Baxter said of the Core Block East project. “I think the citizens deserve a vote on this project.”

Thisweek Newspapers, Burnsville MN: http://www.thisweek-online.com

Governor signs bill limiting eminent domain authority: Billings MT Gazette, 5/17/07

Associated Press

Gov. Brian Schweitzer signed a bill Thursday that aims to limit the eminent domain power of government in Montana.

The measure, a bipartisan effort, clarifies that local governments can't condemn a piece of property and turn it over to another private property owner just because the new use might generate more tax money.

The issue is at the heart of a debate following the U.S. Supreme Court's so-called "Kelo" decision, named after a Connecticut woman who fought to keep her home from city plans to turn it over to private developers.

"The government ought not pick winners and losers," Schweitzer said after signing the bill. The measure was sponsored by Sen. Christine Kaufmann, D-Helena. A Republican who supported the measure, which nearly unanimously cleared the Legislature, was also at the bill signing.

Sen. Dave Lewis, R-Helena, said most everyone agreed that the Montana Constitution and state legal precedent would likely have prohibited government seizures like the one seen in the Connecticut case.

But he said the new law makes it "absolutely clear" that eminent domain power can only be used for public projects, such as highways.

"Rest assured, the issue is settled in Montana," Lewis said.

Supporters felt the clarification was also necessary because public fear of the "Kelo" case was used to advance an initiative last year which they felt went too far by "gutting" local planning authority.

Lewis said he didn't want voters to be misled by the issue again.

Billings MT Gazette: http://www.billingsgazette.net