For Attorney John C. Murphy The Fight Against Eminent Domain Is Going Right At Last: Baltimore MD City Paper, 5/30/07

By Charles Cohen

John C. Murphy finds himself in his favorite lunch spot, a little Centre Street joint that smells of cold cuts and coffee, pinned against the wall by a stranger waiting for her order and a reporter. For a moment, at least, he is still, an unusual sight given his relentless campaign against what he sees as the abuse of the power of eminent domain by the city of Baltimore.

But instead of talking about his recent successes in the Maryland Court of Appeals, the state's highest court, in cases that may change the way Baltimore uses eminent domain, Murphy wants to talk about the book he's reading - Robert Moses and the Modern City: The Transformation of New York, edited by Kenneth T. Jackson and Hilary Ballon.

Moses, the late public-works czar of New York, is both praised and vilified by historians and urban planners for his imprint on that city's five boroughs. Between the 1920s and 1960s, he oversaw the construction of 481 miles of highways and $27 billion in construction projects, which, adjusting for inflation, is about $125 billion today, according to a recent article in Newsday.

Moses produced Lincoln Center and the United Nations as well a network of roads and bridges that stretches up to Niagara Falls. He transformed Long Island into the prototype suburb with the "ribboned parkways" known now as the Long Island Expressway. He also favored high-rises over brownstones, created the public-housing tower, and razed many poor neighborhoods to create his monumental works.

In his Moses biography The Power Broker, historian Robert Caro argues that Moses left a dual legacy of stunning achievement and damaged communities. He dubs Moses "the greatest builder in the history of America, perhaps the greatest builder in the history of the world," but notes that he also "tore out the hearts of a score of neighborhoods, communities the size of small cities themselves, communities that had been lively, friendly places to live."

Rumpled in his suit, Murphy leans over the wobbly table, his gray curls springing into the air. More than one observer has likened him to Columbo, the perplexed 1970s TV detective, perpetually running his fingers through his hair before launching a knockout question that catches a culprit unawares.

"The cover is great," Murphy says of Robert Moses and the Modern City. "It's a picture of Moses standing on a girder towering over Manhattan, his hands on his hips. He has this determined look on his face, daring anyone to get in his way."

Plunging back into the street, Murphy paraphrases one of Moses' more famous quips: "Critics never built anything." Repeating the phase, Murphy says, "In a way maybe he was right. Modern New York would be impossible without Robert Moses. You have to admire his ability to get things done. You have to admire that."

Murphy 67, freely acknowledges that he's never built anything, other than a 40-year law career. If Moses were working in Baltimore today, however, Murphy would be sparring with him every step of the way. Murphy's the guy who once went to a judge's house in 2000 to get him to sign an injunction to stop a developer who had started demolishing two Redwood Street buildings in the middle of the night. Murphy made a quick documentary film about the historic but down-and-out department-store district along Howard Street, got it shown in the Senator Theatre to the right people, and won preservationists some public leverage to prevent the wholesale tearing down of the west side of downtown.

If Murphy isn't arguing in court for an immigrant or minority's right to stay put and be part of a neighborhood's renewal, he's arguing for an old building that's being condemned for demolition. From Memorial Stadium (now a YMCA and senior housing complex) to the Rochambeau Apartments (now a rectangle of green sod on North Charles Street) to a line of historic St. Paul Street rowhouses (recently torn down to make room for a Mercy Hospital expansion), Murphy has been involved in some of the most high-profile preservation battles in Baltimore, losing more often than not. But he doesn't give up.

Murphy remembers driving around his native Washington with his father, looking at old buildings. Frederick Murphy was an architect who designed a building for the Vatican on D.C.'s Embassy Row, a number of buildings at Catholic University, and founded the architecture school at CU. The most prominent artwork hanging in Murphy's North Charles Street office is an architectural drawing of the Pantheon in Rome; it was willed to Frederick Murphy by his teacher at the Ecole des Beaux Arts in Paris. "If you have an usual building, err on the side of preservation," Murphy sums up. "It is in my blood."

Murphy is concerned with more than bricks and mortar; as much as he frets over the fate of an old building, he worries just as much about small businesses being shoved aside by developers, often through city-exercised eminent domain. "The city is coming along saying, `We're going to take your business away and give it to some other business,'" Murphy says. "It's insulting to them - that somehow you're not up to snuff. That's the whole issue of eminent domain for economic development, that is why it's so fraught with conflict."

Despite the setbacks, despite the lost battles, Murphy is starting to make some progress in his perennial fight. This past February, Murphy, in a rare occurrence, got the state's Court of Appeals to overturn an eminent-domain case; the decision also provoked a judicial rebuke on the way the city has been going about its business, from its planning to how it condemns property. This action follows a what many see as a national shift in public sympathies regarding eminent domain in the wake of the 2005 Supreme Court decision in the case of Kelo v. City of New London, a decision that upheld a city's use of eminent domain but galvanized property-rights activists who had been out on the fringes yelling for attention. Now the nation is beginning to listen, and in Baltimore, more than anyone else, John C. Murphy represents the growing backlash against eminent domain - and is poised to take advantage of it.

"John for a long time was a voice in the wilderness," says Garrett Power, professor emeritus at the University of Maryland School of Law, who has invited Murphy to speak to his classes in the past. "Then he came out of the woods and got the attention from the Maryland Court of Appeals and brought about profound change on how the city will go about using eminent domain."

Murphy's office is a notorious mess. Stacks of overstuffed file folders teeter as precariously as houses of cards. Should he open a window to let in a fresh breeze, he risks sending yellow legal sheets of scrawl fluttering.

"My wife couldn't believe I was going have you guys up here," he says, his tie askew. "`Couldn't you meet them somewhere?'"

Asked what he envisioned when he started New York University School of Law, he gruffly replies, "I didn't envision anything." Then smiles and adds, " I maintain law school is worth going to whether you want to be a lawyer or not. It's a very mind-broadening education. The trouble is it makes you want to be a lawyer."

While Murphy was in law school, he worked part-time as a steamfitter, laying pipe for heating systems. He says his co-workers told him, "Good thing you're going to become a lawyer because you'll never make it as a steamfitter." Nonetheless, Murphy's appreciation for hard-working folk was firmly established.

After graduating in 1965, he signed on with a law firm in Baltimore: Cross, Shriver, Bright, and Washburne, now Ober, Kaler, Grimes, and Shriver. For five years he worked with seasoned attorney Nick Shriver, whom Murphy describes as "a real tiger in the courtroom." Among the many lessons large and small that Murphy picked up from his mentor, he saw how Shriver used most of the clock to work for his clients and had a soft spot for small businesses.

Six years later, Murphy became an assistant attorney general, learning the intricacies of zoning law under George Nilson, who was then deputy attorney general. Nilson is now Baltimore's city solicitor, which means that when Murphy files one of his suits against a project involving the city, he often faces his old boss or his team of lawyers across the courtroom. Asked how he feels about facing his contemporary in court, Nilson says, "Obviously we have very different perspectives on a number of condemnation issues, but we agree to disagree in a collegial way, I think."

Murphy says his evolution into the anti-eminent domain point man in Baltimore was more an accident than the focused drive of a crusader. As an attorney, specialization often just happens, he says, based on the clients: "Lawyers sort of fall into a situation."

Maybe, but there seems to be a theme of preservation, or at least appreciation of the endangered, running throughout Murphy's career. When he began his own practice in 1979, he helped start an anti-sprawl group, then a new concept, in Carroll County. In the mid-1990s Murphy found himself representing a group of Fells Point residents in an ill-fated battle against the construction of the Wyndham Hotel, now the Baltimore Marriott Waterfront, which basically opened the door for what is now booming development in Inner Harbor East. Murphy took two cases concerning the hotel to the Court of Appeals, both of which were heard on the same day and both of which he lost.

John Cannan, Murphy's assistant from 1996 to 2000, recalls working on briefs and digging through piles of papers, and then delivering copies of documents to swank offices with modern furniture and sweeping views of the harbor. "You got a sense that it was David vs. Goliath, but I think [Murphy] sort of revels in taking the big guys to task," Cannan says. "It's like in the movies, trying to get the reprieve to keep your client out of the death chamber, and he's driving to the prison with a stay of execution in his hand."

Despite the defeats, his reputation as a scrapper spread, and businesses facing condemnation started contacting him.

Murphy says that in his first eminent-domain cases, his clients were focused on getting the biggest payout they could from the city when it sought to take their property, and with good reason. When he first started looking at the law that underpins the city's condemnation power, Murphy says, he saw his own situation as a litigator as "hopeless - hopeless. I said to myself, The one thing I've got to do is to stay out of court. You're going to lose in the end."

Murphy can zero in on the moment when he sensed that change was coming. One day in 1999, his office was packed with local businesspeople from the west side of downtown clutching condemnation notices they had just received from the city, which had recently announced its sweeping west side revitalization plan. Murphy recalls going into his spiel that he would try to get them the best deal for their property when a woman cut him off. "`You don't understand,'" Murphy says, recalling the woman's words. "`We don't want to go. We don't want to leave.'" His clients didn't want to take the money and get out; they wanted to stay and reap their share of the renaissance promised by the redevelopment efforts.

"That really gave me my marching orders," Murphy says. "I didn't dream this [anti-eminent domain movement] up, I was told this by my clients." Since then Murphy's law practice has gone from two eminent-domain cases a year to dealing mostly with condemnation.

Standing in his office, Murphy starts talking about the deep connection that people have with property, and how his own Irish ancestors had their property confiscated by the British in the 17th century. A later sale of that land eventually financed the construction of Dublin's Trinity College. A few weeks before meeting with a reporter, he had escorted his youngest daughter to a college fair and spotted a Trinity College booth.

"My kids, I embarrass them so much," he says. "I go up to this lovely young lady sitting there. `You seized our land about 300 years ago - would it be fair if you gave [my daughter] a scholarship.'"

The notion of the government taking private property for the public good goes all the way back to English common law. When a string of British colonies became the United States, the founders retained the notion, although the Fifth Amendment of the Constitution specifies that the government can't exercise what would come to be called eminent domain "without just compensation."

Before the 1950s, eminent domain was invoked primarily to secure land for roads and railroads. In Baltimore, however, the use of eminent domain for economic benefit goes back to the city's early days. The University of Maryland's Garrett Power found that eminent domain was employed along the Jones Falls at what is now known as Lake Roland in the 1831 case Bellona Gunpowder Co. v. the Baltimore Susquehanna Railroad. The railroad wanted to build a line up to Pennsylvania's farmlands to bring produce to market, but needed to run the track along the falls, dangerously close to the gunpowder company. Something had to give, and the court ruled that the railroad was "important to economic development," Power says, and granted it the right of way. Bellona Gunpowder had to go.

During the last half of the 20th century, eminent domain morphed into the legal engine for "urban renewal," an attempt by federal, state, and local governments to inject economic and social life into distressed city neighborhoods, often by destroying neighborhoods and effectively starting over with a blank slate.

Baltimore has been a major player in urban renewal and using eminent domain to get there ever since the development of Charles Center in the 1960s. The '70s brought eminent-domain battles over Little Italy's fears that Harborplace would destroy its restaurant business, and the protests that stopped various highway projects from plowing into the city and decimating Leakin Park, Fells Point, and Federal Hill.

According to the Institute of Justice, a libertarian public-interest nonprofit law firm, Baltimore is now one of the most frequent users of eminent domain in the country, in a league with cities like New York and Chicago.

"I can't remember a time when there wasn't eminent domain going on in Baltimore," says Dana Berliner, senior attorney for Institute of Justice. "In most cities that's not necessarily true. There may be a few years when there's a project and a few years when there is nothing going on."

City Solicitor George Nilson takes issue with the characterization that Baltimore is a ramped-up eminent-domain machine. "We have a very active, very healthy redevelopment program in the city, so acquisition and condemnation inevitably is a major part of life in Baltimore," he says. "But I don't think we're significantly different than other comparable cities."

Nilson contends that Baltimore can't reach its full potential without sweeping aid from eminent domain. "We would not have the significant development that is already taking place on the west side," he says. "Nor would we have any prospect for the kinds of major developments [we have], without using eminent domain to gather up property, creating a footprint large enough to attract developers."

The west side of downtown has busied both the city and Murphy for the past nine years. The initial plan, announced in 1999, called for demolishing most of the buildings in the city's old department-store district, a prospect that propelled groups such as Baltimore Heritage and Preservation Maryland to hire Murphy. He and his clients found a powerful ally in former Baltimore state senator Barbara Hoffman, then chairwoman of the Senate's Budget and Taxation Committee, who held up funding for the restoration of the Hippodrome Theatre until the city drafted a plan to save the historic structures. Meanwhile, Murphy met with stunned business owners in the area and began to realize there was more at stake than buildings.

More than 220 of the properties in the project area are to be spared demolition, according to the preservation plan. Business owners haven't fared as well. Murphy says he's been able to help about seven of his 20 business clients in the area stay put so far, but others have gone out of business or just given up amid the uncertainty. Murphy says that one of his clients who lost his business quipped, "They like that building, they just don't like me."

Nonetheless, Nilson points to historic west side buildings full of recently converted condominiums as a sign that the area's fortunes are turning. "The city felt that the west side was not going to prosper, over the short or long haul, if it were just a collection of miscellaneous individual merchants without some real large momentum," he says.

M.J. "Jay" Brodie, president of the quasi-public Baltimore Development Corp., knows all too well that he and his organization are seen by some as a force that disrupts the city as much as it aids it. "I don't want this [to be], `Jay Brodie is about to destroy the city of Baltimore,'" he jokes. In fact, as Brodie stands in the lobby of BDC's South Charles Street office before a massive model of downtown, he can literally point to the city's development success stories: the Inner Harbor, Charles Center, the Giant grocery store on East 33rd Street, a supermarket project planned for Liberty Heights.

"In terms of looking at this model and looking out this window and saying what a different city this would be, this stuff would literally not exist" without eminent domain, Brodie says. "The city had to assemble sites, re-create streets, move utilities, find a developer. Without the power of putting sites together, none of that happens."

Older cities like Baltimore are landlocked by surrounding counties and can't grow by annexing land, Brodie says, and so they have to creatively recycle land that they already have. "We need to reassemble sites within this 80 square miles which is Baltimore or else we're going to die economically as a city," he says. Without the power of eminent domain, Brodie adds, the city could end up facing inflated prices set by holdout owners.

"If the sky is falling, it's not because of the history of abuse of government domain," says Joshua Auerbach, a former assistant city solicitor who in November faced Murphy in the Maryland Court of Appeals over Baltimore Development Corp. and an open-meeting law. "I don't think there are dozens and dozens of cases where the justification of the use of eminent domain were not very good. There certainty aren't in Baltimore. There are close cases, maybe, but when eminent domain was used in Baltimore there was a serious need."

Yet even Brodie recognizes a new era has dawned in the use of eminent domain. "One of the changes in the climate is there are more challenges to the city's right to take," he says. "That rarely took place before."

Here he might as well be talking about Murphy, and about the decision known as Kelo.
On June 23, 2005, the U.S. Supreme Court ratcheted up government power to condemn property for economic development in a decision regarding the fate of the waterfront in New London, Conn. It always has been agreed that, constitutionally, the government can take land to build roads and other necessary infrastructure, and the idea of taking property to pass on to developers has been sanctioned by the high court in its 1954 decision in Berman v. Parker. But in that case, the property was condemned to get rid of what was then called "slums and blight." But the court's decision on Kelo v. City of New London took the concept further and said eminent domain could be used for economic development even if it wasn't being used to turn around depressed communities. In a heated 5-4 decision, the court said it was sufficient that New London had a clear plan that promised to create jobs.

Justice Sandra Day O'Connor warned in her minority opinion, however, that "nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

In the two years since the Kelo decision, 42 state legislatures have made it more difficult to use eminent domain for economic development. Maryland's legislature wrestled with 42 bills during its 2006 session before rejecting them all.

"The decision encountered a tidal wave of opposition and made people so much more aware of this issue than before, it really shocked people," says Dana Berliner of the Institute of Justice, which argued for the plaintiff before the Supreme Court. "It certainly surprised me, and people like me, who are students of the Constitution and taught constitutional law. We recognize that the jurisprudence is such that the Supreme Court had permitted this kind of activity." While Kelo confirmed government's eminent-domain power, Berliner adds, "what has changed is this tremendous groundswell that government has not paid enough attention to property rights."

Just as significant as any legislative action or local court decision is the fact that the masses know about Kelo. People like James Gillin understand that eminent domain for economic development is getting a second look by lawyers and lawmakers alike. As the owner of J.M. Gillin, a fabricator of steel electrical enclosures, he is facing his second eminent domain-compelled move in 22 years. He was moved out of a South Baltimore location in 1985 to make way for a football field at Southern High School (it was never used for football). Now located across the street from the Poe Homes housing project, a block away from Edgar Allan Poe House and Museum on Amity Street, his business stands in the way of the Poppleton Project, an urban-renewal plan that calls for the condemnation and demolition of more than 500 homes and businesses in an area just to the west of Martin Luther King Jr. Boulevard to develop a new community to complement the under-construction University of Maryland biotech park. Gillin has put himself in Murphy's hands in hopes that the fallout from the Kelo case is the best thing that could have happened to him.

"Even though the Supreme Court decision wasn't to my favor, it woke people up," says Gillin, who relishes the role of mainstay in a neighborhood that has resisted three previous urban-renewal attempts. "It made people aware of what is going on in this country."

Gillin's property has been listed for condemnation in the urban-renewal bill approved by the City Council, but he has received no official condemnation notice. Currently, Murphy is trying to work something out with the developer, New York-based Le Cité Development.

Murphy agrees about the importance of Kelo. "Ten years it was just, boom--eminent-domain ordinance, you're out of here," he says. Thanks to Kelo and the public sentiment that followed, Murphy says, "government and the courts are forced to slow down and look at the people they are displacing."

Up until a few months ago, the only thing Murphy and other local lawyers could realistically contest was the amount of money the city offered to pay their clients. Murphy would invariably challenge the city's assessment of the property's worth and hope that a jury would hand the owners more than the city's original offer.

But in February, Murphy and Rockville-based attorney James Thompson challenged the city's right to take the Magnet Bar, an establishment on the 1900 block of North Charles Street owned by George Valsamaki. The Baltimore Development Corp. had lumped together the Magnet Bar with 19 other properties in an attempt to create a large enough tract of land to bring in developers as part of its plan to revitalize the Charles North neighborhood.

When it condemned the property in March 2006, the city used an aspect of eminent domain known as a "quick take" condemnation. Quick take accelerates the normal condemnation process to a little over a year. (An ordinary eminent-domain condemnation can take nine months to come to trial and appeals can drag on for several years.) Quick-take condemnation gives the city immediate possession of the property without first having a hearing; if the property owner doesn't file an appeal within 10 days, a judge automatically signs the title over to the city. If the owner files an appeal, he or she gets a hearing within 14 days.

If the business owner appeals and objects to the dollar amount the city gives him or her for the property and manages to get a jury trail, the jury is normally bussed out to view the property. Seeing an empty building compared to a business in operation makes a big difference in what the jury awards the owner. "Generally the place is sort of a shambles," Murphy says. "The fixtures and cabinets have been taken out - the place looks terrible."

When appealing the quick take on Valsamaki's behalf, Murphy was able to convince the court that the city of Baltimore was going to extremes by using quick-take powers. The Magnet Bar wasn't deteriorating or on the verge of collapsing, so where was the "immediate need" for the quick take, the judges asked. Court of Appeals Judge Alan M. Wilner criticized the city's open-ended planning system throughout the court's 58-page decision. "Even had the case involved the use of regular condemnation, the evidence presented below of public use was sparse," he wrote in part. "The City has only shown that the Property is to be acquired for renewal purposes to assist in a `business expansion' in the area."

Two months later, a Murphy-originated case was back in the Court of Appeals. Murphy had been hired to represent Robert A. Sapero, owner of the Chesapeake Restaurant. The one-time landmark on the corner of Charles and Lanvale streets, just south of the Charles Theatre, has been closed for almost two decades; the Baltimore Development Corp. asked the city to do a quick-take condemnation on the property to aid in revitalizing a block where nightlife has blossomed in recent years. Murphy appealed the quick take in Circuit Court and lost, but attorney Alan R. Engel appealed the case the Court of Appeals, which ruled in Sapero's favor. Again the court's decision admonished the city for not demonstrating the urgency behind using quick take.

Murphy loves the Valsamaki case in particular, the way a poker player loves drawing a king to fill a royal flush. "To use a hackneyed phrase, it leveled the playing field," he says. "You can't use quick take unless you can demonstrate a real need to have immediate procession." Murphy contends the city's whole way of planning - gathering up bits of property through eminent domain so they can offer up a fat tract to developers - can now be questioned in court.

Nilson and Brodie believe that Baltimore's eminent-domain power is still very much intact, although they agree that adjustments must be made. Brodie points to the recently completed $80 million Centerpoint project on North Howard Street and notes that BDC was able to negotiate with property owners to amass the land needed for the site without using condemnation powers. "If we didn't have that power of eminent domain, would they be negotiating?" Brodie says. "Could we assemble a Centerpoint without eminent domain? No."

Murphy's most recent Court of Appeals victories against the BDC were preceded by another in November 2006. Murphy was hired to represent Carmel Realty Associates of Philadelphia, which owns the Woolworth's and McCrory's buildings along the 100 block of West Lexington Street, in the heart of the west side Howard Street/Eutaw Street corridor that the city has spent nine years trying to revitalize and where Murphy has about 15 clients. Carmel Realty had asked the BDC if it could redevelop its own property as well as an adjacent building. When the BDC choose New York-based developer Chera Feil Goldman Group, Carmel Realty wanted to see the records of the meeting. As a nonprofit, BDC argued it was a private entity and didn't have to abide by the same open-meetings law that requires governmental bodies to make their decisions in public meetings, not behind close doors. Carmel Realty filed suit.

Presented with Murphy's case, the Court of Appeals unanimously agreed that BDC was acting on the city's behalf, with city employees on its board, and was therefore subject to the open-meetings law. Murphy contends that the fact that BDC was negotiating condemnation cases with businesses over the economic future of the city was a major deciding factor. "If this agency was overseeing parking garages," he says, "I don't know if it would have drawn as much concern from the courts." The Court of Appeals sent the case back down to the Circuit Court, where it will be heard again in July. Murphy says he's looking to "invalidate the meeting" where BDC picked the Chera Feil Goldman Group.

More than once, Murphy advised a reporter not to do a story about him. "They'll be bored to tears reading about me," he said. "They'll want to read about the clients. That's where your story is." In some respects, he's right.

Over on North Schroeder Street stands St Mary's Holiness Pentecostal Church, Otis Roger McKoy, pastor. McKoy is a forceful figure in his white robe and gold sash; his shaved head gleams. His gray late-model Cadillac idles in the alley behind his tiny rowhouse church, where he packs in 40 worshippers on metal folding chairs and a few pews on a good Sunday. Despite being in the neighborhood since the 1930s, the church is earmarked for condemnation as part of the Poppleton Project. While the condemnation wears on his congregation, McKoy mines the situation for sermon material .

"I don't believe that God is going to let all this happen, because whatever they've got, He's bigger," McKoy says. "Everything belongs to God. He just let us use this for a while."

McKoy is also putting his faith in Murphy. Murphy plans to invoke the second clause of the First Amendment and the Religious Freedom Restoration Act passed by Congress in 2005 - the same law that the Roman Catholic Archdiocese of Baltimore used successfully against him in September 2006 in deciding the fate of his beloved Rochambeau Apartments. The act protects religious institutions from zoning laws and historic-preservation strictures, and so the archdiocese was able to tear down the 100-year-old apartment complex, which it owned, to make way for a prayer garden for the adjacent Baltimore Basilica. In the suit he plans to file, Murphy hopes to use the act to protect McKoy's church.

Outside the J.M. Gillin facility, two older men drink from paper bags amid two-story housing projects and boarded-up rowhouses. Inside, nine workers feverishly punch out a sheet-metal utility box. In the back, among the sheen of stainless-steel cabinets, Gillin pulls on cigarette after cigarette and talks to Murphy, who's wearing his going-to-court gray suit.

"I remember the first meeting we had right here," Murphy says. "Right in this room, and I said, `Well, things are changing in eminent domain. I'll make an effort to keep you here, to keep you in this area, but there's no guarantee whatsoever. In all likelihood, I won't be successful and you'll be condemned, you'll have to find a place to relocate to.'"

But Murphy has found a promising avenue in just talking to the city and the developer, La Cité, regarding a deal that would allow Gillin to move nearby. Although nothing is finalized, Murphy points out that the possibility itself indicates a new era of eminent domain.

"I don't want to sound philosophical," Murphy says, "but I got a lot out of reading that [Robert] Moses book." He goes on to say that urban renewal started out to address America's slums, which were seen as "cancers, and had to be eradicated," he says. Since then, urban renewal has been trained on the downtown areas of U.S. cities. It's the same approach, basically: Move out the riffraff and bring in something new.

"Maybe urban renewal, instead of serving the public interest, does a lot of damage by getting rid of people like [Gillin]," Murphy continues. "He may not be a beautiful, glitzy development, but you look at the social worth of a guy like him, it's off the charts. He's not a cancer that has to be eradicated."

With that Murphy shakes hands and is off. Gillin takes his cigarette to an open side door. He, too, recognizes the difference this time around compared to 22 years ago when he was told he had 30 days to get out. Nobody cared then that he was faced with eviction thanks to eminent domain, he says. Now every day someone on the street asks about his case. And now he might get the developer to make a deal with him, businessperson to businessperson, instead of fighting a condemnation from the city.

"If that happens," Gillin says, "it will be bigger than Kelo."

Baltimore MD City Paper: http://www.citypaper.com

Report details eminent domain abuse: NorthJersey.com, 5/30/07

Report: Eminent domain abuses and remedies

By John Brennan

A "jaw-dropping" case in Passaic and a controversial proposal to seize two trailer parks in Lodi were cited by the state's public advocate Tuesday as classic examples of governmental abuse of eminent domain.

"People can lose their homes without real evidence that their neighborhood is blighted, without adequate notice or hearings and without fair compensation," Ronald K. Chen - who first issued a statewide eminent domain analysis last May - declared in his 31-page follow-up report.

A call for change
Public Advocate Ronald K. Chen said in a report Tuesday that three urgent changes are needed in New Jersey's eminent domain law:

  • Tightening the definition of "blighted area" to prevent what Chen called "bogus blight" designations.
  • Making the eminent domain process more open and transparent.
  • Requiring more realistic levels of compensation to allow people to remain in their communities.

Chen cited Passaic's 2004 issuance of a default judgment enabling it to take Charles Shennett's Summer Street property - unbeknown to Shennett, because the condemnation notice was not handed over in person, as required. Also, the address on the mailings was incomplete. An appellate court voided the condemnation in February, but the case remains in litigation.

"They clearly knew what his address was, because they had sent his tax bills there every year," said Chen, who is seeking enhanced notification rules for targets of eminent domain. "It's mystifying as to why they couldn't give him notice of the taking of his land. It's jaw-dropping."

Lodi trailer park residents Kendall Kardt - president of the Save Our Homes coalition - and Judy Kuchenmeister were featured in separate vignettes within Chen's report, detailing what he called "startling injustices."

The borough declared the trailer parks to be "in need of redevelopment" in 2003. To replace them, the borough proposed a project that supporters said would generate 10 times the tax revenue.

Kardt, a musician, told the Public Advocate's Office he found the idea of displacing 240 residents "disgusting."

"This isn't just about trying to make your town look like a picture on the postcard," Kardt said. "This is about people's lives. The people who live here are mechanics, janitors. They do something useful."

Kuchenmeister, a resident of Brown's Mobile Home Park for more than 30 years, said she feels like she's always "walking on eggshells" because of the ongoing litigation. A trial court in September 2005 dismissed the recommendations of the Lodi Planning Board, but the town appealed. The Public Advocate's Office sided with the residents before an appellate panel in Hackensack this year.

"Sometimes, it feels like this will never be over," Kuchenmeister said in the report. "It's the trailer park today - your house tomorrow."

Harvey Pearlman, Shennett's attorney, said that a trial court last week refused to turn the Passaic property back to Shennett - leaving its ownership in dispute. It was bought by a business owned by former City Councilman Wayne Alston for $60,000 - or four times what Shennett was offered for it in 2004. A two-story house was built on the property in 2005.

"I'm not surprised the public advocate picked that particular case, because of how outrageous it was," Pearlman said. "This is not the way the system is supposed to work."

Chen urged the state Senate to pass a version of a bill sponsored by Assemblyman John Burzichelli, D-Gloucester, that passed in the Assembly last year. The bill would clarify the definition of "blighted" in designating areas for redevelopment, Chen said.

"The current law's vague and broad definition ... could apply to virtually any property in New Jersey," Chen wrote.

That bill - endorsed by the state League of Municipalities and by Governor Corzine - also would ensure that homeowners and business owners are kept informed of the process and would mandate fairer levels of compensation for those displaced, Chen said.

Sen. Ronald Rice, D-Essex, also is sponsoring an eminent domain bill. But Chen said he wants the bill to be beefed up to match Burzichelli's version.

State Senate President Richard J. Codey, another Essex Democrat, said he had not yet read Chen's report. He said sarcastically that it was "interesting" that the report was released directly to the media.

"It's easy to pick out some abuses of eminent domain that clearly did occur, and we've got to stop those," Codey said. "But mayors also are concerned that this power still can be used to help them rebuild cities the way Jersey City or New Brunswick were rebuilt. By Jan. 1, we'll reach a compromise on a bill that does away with the abuses, while at the same time allowing [eminent domain] to be used as an effective tool for those that desire to revitalize."

Assemblyman Kevin O'Toole, R-Cedar Grove, said he supports the proposal by state Sen. Peter Inverso, R-Mercer, to amend the state Constitution to allow eminent domain "for essential public purposes only," as opposed to private development.

Other cases cited by Chen in the report:

  • An effort to condemn three dozen modest beachfront homes in Long Branch.
  • Paulsboro's attempt to develop on 63 acres of wetlands.
  • Perth Amboy's inclusion of a light manufacturing building in a blighted footprint.
  • Bloomfield's use of the same attorney to represent the township, the Zoning Board and the Planning Board.
  • An attempt in Edison to condemn a school bus property for what a court ruled was "purely for private use."

NorthJersey.com: http://www.northjersey.com

S.D. gets top grade for eminent domain laws: Sioux Falls SD Argus Leader, 6/16/07

A nonprofit law firm that sues the government in civil liberties cases has given South Dakota a top grade when it comes to protecting people from having their property taken away by government.

According to the Institute for Justice, South Dakota has one of the strongest laws in the nation when it comes to eminent domain.

The Arlington, Va.-based institute said a 2006 South Dakota law prevents cities and counties from seizing private property for transfer to business interests. The law also requires condemned land that is not used for its original purpose within seven years to be offered for sale to the previous owners at market prices.

The Institute for Justice says states that passed the strongest reforms protecting property owners are Florida, Michigan, Nevada, New Mexico, North Dakota and South Dakota. States ranking at the bottom were: Arkansas, Connecticut, Hawaii, Maryland, Massachusetts, Mississippi, New Jersey, New York, Oklahoma and Rhode Island.

Sioux Falls SD Argus Leader: http://www.argusleader.com

Eminent domain bill is shot down : San Antonio TX Express, 6/15/07

By Janet Elliott

An eminent domain bill that opponents said could make road construction prohibitively costly was among 49 bills vetoed Friday by Gov. Rick Perry.


The eminent domain bill, HB 2006, had enjoyed Perry's support until an amendment was added late in the session that state and local officials said could cost taxpayers billions of dollars. It would allow property owners to sue for "diminished access" to their property because of new roads or road construction. Current law requires property owners to show "material or substantial damages" before seeking compensation.

Another provision would allow the recovery of damages for changes in traffic patterns and visibility of the property from the road. Texas courts have long disallowed this practice because it would make some public projects too expensive to build, Perry said.

He said the bill would create "a new category of damages that are beyond the pale of reason."

Perry said he had alerted legislators who handled the bill to his concerns. House author Rep. Beverly Woolley, R-Houston, said she feared there wasn't time in the last days of the session to work out compromise language.

Sen. Glenn Hegar, R-Katy, who offered the amendment Perry opposed, said he was stunned by the reaction from local officials. He said the amendment was identical to a failed bill he carried but that "no one testified against it, no one came to visit me, no fiscal implication (was added to it)."

San Antonio TX Express: http://www.mysanantonio.com

Bills work to correct abuse of eminent domain laws: Chillocothe OH Gazette, 6/16/07

Letter to the Editor

By John Torres

The right to own property is a fundamental right of which this country was founded. As Americans we should all be proud to live in a country that understands the importance of personal property.

However, Ohio has seen a trend recently of government entities not respecting personal property and abusing their power of eminent domain. There are two bills that passed the Ohio Senate that work to correct this problem and protect personal property for all Ohioans. These bills are SB 7, introduced by Senator Grendell; and SJR 1, introduced by Senator Coughlin.

It stands to reason that if the government wants to exercise the power of eminent domain and take your property that the bulk of the burden should be placed on them. However, that has not been the case in Ohio. Ohioans are forced to spend their hard-earned money to try and save their property, or at the very least get a fair price for it.

SB 7 and SJR 1 work to correct this problem in Ohio. SB 7 limits the number of government entities with the power of eminent domain and forces them to pay the landowner's attorney and appraiser fees if a jury awards the landowner 125 percent of the government's original offer.

SJR 1 will allow all Ohioans to be protected from eminent domain abuse. It will remove eminent domain as a home-rule power and keep consistent eminent domain procedures throughout the state.

How the 127th General Assembly defines "blight" is important in ensuring the power of eminent domain is no longer abused in Ohio. SB 7 has a clear and strict definition for blight, however, the eminent domain bill introduced in the House, HB 5, has a vague definition of blight. In fact, the definition is so vague that almost any property could be considered blighted. Simply having a mouse on the property would cause your property to be viewed as "vermin infested" thus making it a blighted property. In addition, HB 5 only requires that 50 percent of the parcels be blighted in order to exercise eminent domain, whereas, SB 7 requires 90 percent.

The opportunity for eminent domain reform is very rare. I want to urge other Ohioans to join the hundreds who have already voiced their support of SB 7 and SJR 1. Make sure your state representative and senator know that you support these bills and you believe in the right to own property without having to worry about being taken away at a whim.

Chillocothe OH Gazette: http://www.chillicothegazette.com

John Torres is Organization Director of the Ohio Farm Bureau Federation for Fairfield, Hocking, Pickaway & Ross Counties