Kansas’ new eminent domain law worries local governments: Kansas City MO Star, 7/1/07

By Mark Weibe & David Klepper

Wyandotte County officials breathed a sigh of relief as they wrapped up a deal on Indian Springs mall, just days before new eminent domain restrictions began in Kansas.

Meanwhile, Manhattan has been holding its breath, hoping the restrictions won’t thwart its downtown revitalization.

Projects dependent on a government’s condemnation powers could have a harder time getting started because restrictions that became effective July 1 force local governments to seek legislative approval before condemning property for economic development. To property rights advocates, the new legislation is a godsend, giving owners protection not available in most other states.

But local governments worry that the new law could jeopardize a host of revitalization projects.

“It could mean that hundreds of boarded-up crack buildings, run-down buildings and urban slums will be sent to the Legislature as individual bills or pieces of legislation,” said Unified Government spokesman and lobbyist Mike Taylor. “Some legislators say that’s not going to happen. But why wouldn’t it?”

Sunday’s deadline prompted some communities to move quickly.

Wyandotte County’s Unified Government had spent two months trying to condemn Indian Springs to make way for a mixed-use development.

Court-appointed appraisers recently valued the mall at $7.5 million, a price the government promptly paid.

In the county’s urban core — where converting blighted properties into livable spaces is a key strategy — the change has left neighborhood activist Beatrice Lee fretting over the future of certain projects. As president of the Douglass-Sumner Neighborhood Association, Lee has fought for improvements that would rid the area of about 250 vacant lots and dozens of boarded-up homes.

Located on two square miles north of downtown Kansas City, Kan., the neighborhood was one of three chosen last year to participate in a $1 million revitalization program.

Lee is trying to remain optimistic.

“I would hope that it wouldn’t stop the progress of trying to get this urban area the way it should be,” she said, “the way it should have been a long time ago.”

The new restrictions also have left officials in Manhattan wondering what will happen to their major downtown redevelopment plan.

Condemnation hearings have moved forward on three properties, but titles have not yet passed to the city.

“I can’t predict what exactly will happen,” Assistant City Manager Jason Hilgers said. “We feel we obviously met the intent of the statute.” But, he added, “We’ll have to wait and see.”

Opponents of the legislation tried to add a provision allowing local officials to use eminent domain on blighted properties without legislative oversight, but it never made it out of a Senate committee.

“We think it’s going to significantly curtail economic development in Kansas,” said Sandy Jacquot, general counsel for the League of Kansas Municipalities. “And we think those decisions are best left local. … Why should a legislator from Dodge City vote on a Manhattan project?”

The law still allows governments to acquire property for public infrastructure projects such as roads and sewers without legislative approval. As in all eminent domain cases, those property owners would receive compensation.

Sen. John Vratil, a Leawood Republican, doubts eminent domain requests will snarl Topeka because many developers and municipalities probably won’t take their plans before a skeptical Legislature.

“We’ll never know how many (potential redevelopment projects) we lost,” he said.

Kansas City, Kan., officials say they will push again next year for more power to address blighted properties. A legislative committee is set to study the issue.

Sen. David Haley, a Kansas City, Kan., Democrat who opposed loosening the restrictions, urged patience.

“Give it an opportunity to work or to fail,” he said. “Don’t whittle away at it before it’s even implemented. If it doesn’t work, I’ll be one of the first to find a way to make it work.”

He said he expects the Legislature to give any proposed use of eminent domain a serious and fair hearing.

“Where we have those large projects, the Legislature will rapidly respond,” he said. “We don’t want to hamper economic development.”

Passed last year, the law was a response to the outcry following a 2005 U.S. Supreme Court ruling that upheld governments’ power to condemn land for economic development.

Steven Anderson, an attorney with Institute for Justice, a libertarian public-interest law firm in Arlington, Va., said Kansas’ law desperately needed reform. The new law, he said, “will go a long way to protect home and small business owners.”

But Michael Snodgrass, project director for Neighborhoods NOW, a part of Greater Kansas City LISC, Local Initiatives Support Corp., thinks property rights advocates pushed too far.

“Property rights are important,” Snodgrass said. “But with those rights come responsibilities. When those responsibilities, or lack thereof, infringe on the neighborhood, that’s when we think there’s a problem with the system.”

Snodgrass said it is difficult to revitalize neighborhoods without eminent domain, especially when owners of blighted property hold out for more money.

Financing is difficult then, he said, because banks view the blighted property as a serious threat to marketing the development.

LaVert Murray, the Unified Government’s development director, agreed. The threat of eminent domain, he said, is often enough to persuade property owners to negotiate more fairly.

Like Snodgrass, Murray fears the new law will make it more difficult to revitalize urban Kansas City, Kan. Broadening the definition of blight would help.

“We’re hoping the Legislature will realize that they’re tying the hands of local government and will quickly change the laws, restoring our ability to rebuild our communities,” Murray said.
The new law

Kansas’ eminent domain law has been partially revamped. For years, the state’s local governments have had the power to acquire property in the public’s interest, whether for public infrastructure projects or for economic development. But on July 1, the state enacted new restrictions on eminent domain requiring local governments to seek legislative approval before acquiring property for economic development projects. If the Legislature approves a government’s request to use eminent domain, it must also consider requiring compensation of at least 200 percent of the property’s fair market value.

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

Eminent domain discussed in today's City Council meeting: Orange County CA Register, 7/2/07

Eminent domain discussed in today's City Council meeting
City Council will consider adopting a new ordinance to comply with new state law

By Cincy Carcamo

"Eminent domain" is always a hot topic. That's why those words may raise some eyebrows when coupled with the introduction of a new ordinance set to be considered at today's [Huntington Beach] City Council meeting.

The agenda item reads:
"Approve for Introduction Ordinance No. 3771 Authorizing Execution and Recordation of the Revised Plan Statement Pursuant to Health and Safety Code Section 33373, Which Affirms the Redevelopment Agency's Restrictions on the Use of Eminent Domain in the Huntington Beach Redevelopment Project Area…"

Say what?

At first glance, some may think the city plans to change its rules, making it easier to forcibly take some prime city property. I can already hear the sharpening of knives.

Not so fast. Rip through the government jargon.

The new ordinance really wouldn't change anything at all, said Stanley Smalewitz, director of Economic Development. He said the adoption of the new rule would be just a technicality to comply with relatively new state laws.

City officials have ordered local governments to review their eminent domain policy to comply with the new legislation, Smalewitz said.

A U.S. Supreme Court ruling a couple of years ago essentially made it easier for municipalities to enforce their power to seize private property. The 2005 Kelo v. The City of New London ruling allows government to take property for "economic development" purposes, expanding the reasons for use of such a power.

In reaction, California legislators set rules that basically negate the ruling to protect property owners.

With or without the new state protections, there are those lucky enough to live in an area that has been exempted from city takeover for a couple of decades now.
  • Within the Yorktown-Lake Area and Talbert-Beach Area.
  • Within the Main-Pier Area.
  • Within the Oakview Area.

It's unclear why. Most of these designations happened in the 1980s when some feared the gentrification of the areas.

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

My veto protected Texans' property rights, wallets: Houston TX Chronicle, 7/1/07


By Governor Rick Perry

As someone born and raised on a cotton farm, protecting private property rights is part of my political DNA.

That's why two years ago I joined a large majority of legislators in responding to the onerous Kelo decision by the U.S. Supreme Court that stated the U.S. Constitution does not prevent government from taking private property and giving it to another private party for economic development.

In 2005 we passed a law that guaranteed Texans' land would never be taken and given to the highest bidder for private economic development purposes. In other words, the family farm should not be seized simply because private developers have a vision for bigger profits from a mall, or some other private venture.

Critics of my recent veto of Texas House Bill 2006, which addressed eminent domain, have wrongly stated that I set back efforts to address the Kelo decision. The fact is, the bill had nothing to do with Kelo, and they are simply using Kelo as a false, but convenient, whipping post to stir up property owners.

Discussion about whether government should be allowed to take land for certain types of projects is an important debate. However, HB 2006 was not about protecting private property from being taken by eminent domain. Rather, it was about how much taxpayers must pay when private land is going to be taken.

I strongly supported HB 2006 right up until the final days of the legislative session, before last-minute amendments were added that would have cost taxpayers more than $1 billion annually and provided condemnation lawyers a new cottage industry to get rich based on changes in the law that would have allowed them to make profits based on frivolous claims.

As passed, HB 2006 would have allowed condemnation lawyers to sue cities, counties and the state for any reason and any amount imaginable when the state acquires land through eminent domain.

No government entity likes to use the power of eminent domain. But it is a necessary power if we are to build the roads, schools and health care facilities needed to keep up with our huge population growth.

A reality often forgotten, or brushed to the side, is that every new road, school, office building, park, hospital and home built in Texas has been or will be built on private property. That property, whether acquired through a private business deal or through authority vested in the government to impose eminent domain rights, is appropriately purchased — and paid for — at or above market price. The law already protects Texans when it comes to the price offered for purchase.

HB 2006 would have gone beyond fair market value by creating a new category of subjective damages that would have been rife for exploitation by condemnation lawyers.

Think of it like the trial lawyer who could sue for a million dollars over spilled coffee. Too much road construction dust could trigger a lawsuit by a business owner claiming it adversely affects access to their business. The addition of a new stoplight to make a road safer could trigger a lawsuit. The placement of a new school could be reason enough to sue. For a condemnation lawyer the sky was the limit with HB 2006 in its final form and taxpayers would be left to pick up the check.

This is why virtually every major high-growth city and county in the state asked me to veto this bill. These leaders recognized, as I did, that this bill would have greatly hindered a local community's ability to manage population growth.

The most common misunderstanding I hear about HB 2006 is that it somehow would have protected property owners from having their land taken. HB 2006 was strictly about how much the taxpayers would pay the landowner, not about whether the land could be taken. The bill would not have prevented even a single case involving eminent domain. It dealt only with a paycheck.

I have also heard from rural Texans the misconception that HB 2006 would protect rural landowners. In reality, this bill would have affected predominantly high-growth urban properties. Rural landowners simply aren't faced with the issues of high traffic and decreased access to customer traffic that this bill targeted.

In fact, if this bill had been allowed to pass, rural taxpayers —like all Texans — would have been forced to pay more taxes to fund land purchases in urban areas because of the increases in litigation.

While I am committed to ensuring increased fairness for Texas landowners, amendments added to an otherwise good bill very late in the process were done to benefit condemnation lawyers and place a disproportionate burden on Texas taxpayers.

I encourage the Legislature to continue to work on striking a balance that allows Texas landowners to be treated with fairness and respect for their property rights while simultaneously asking their neighbors to pay a reasonable amount for their land.

Texas can find a middle ground, and it shouldn't cost billions of dollars to do so.

Houston TX Chronicle: http://www.chron.com

Perry, a Republican, is in his second full term as governor of Texas

Holding off on 'NoHo': Hudson Reporter, Hoboken NJ, 7/1/07

State Supreme Court decision on eminent domain stalls redevelopment hearing

By Madeline Friedman

The Hoboken Planning Board postponed a special meeting on a northern Hoboken development study Thursday, in order to make sure it complies with a recent State Supreme Court decision regarding eminent domain.

"Eminent domain" is the process by which a government forces a landowner to sell his property to the government for a public use - and it has become controversial in recent years because governments were taking land and reusing it to turn into malls and other more profitable properties.

While it is acceptable for cities to redevelop "blighted," or damaged, properties for the benefit of the community, the recent State Supreme Court decision further specifies the conditions that municipalities must prove in order to seize land for redevelopment.

Hoboken Director of Community Development Fred Bado said the Planning Board wants to take another look at the "NoHo" (northern Hoboken) study, completed in May, to make sure it complies with the court precedent before holding a public hearing on it.

By designating an area a redevelopment zone, the city can set specific zoning requirements and then seek developers who will comply with the plan. Before seeking developers, the Planning Board and City Council must sign off on the requirements, in much the way they have done with the "Northwest Redevelopment Area" in the 1990s. The formerly industrial northwest area now includes housing and a Shop-Rite supermarket. "NoHo" is the name that has been designated to the properties north of the northern Light Rail tracks and up to the city's border between Hoboken and Weehawken at 18th Street. The area is mostly vacant, industrial property, according to Bado.

Council requested study 12 months ago
In June 2006, the Hoboken City Council passed a resolution requesting that the Planning Board investigate whether the designated area qualifies as an "area in need of development" in accordance with the New Jersey Local Housing and Redevelopment law.

The study, completed in May of this year, has determined that it does.

Now, the Planning Board must hold a public hearing in order to approve the study's conclusions. Bado said that he expects the meeting to be rescheduled for later this month, after the study is reviewed. "[The authors of the study] might make some changes. They might not. But they have to say that they looked at it," Bado explained.

The study examined 5.52 acres, on 47 lots, located along six blocks of the northernmost section of the city. Eight separate entities, some governmental and some private, own the 47 properties. According to the study, one of those owners is NJ Transit.

The authors describe the area's boundaries as the following: "The eastern boundary is Willow Avenue from Hoboken's 17th Street north to the city's boundary with Weehawken; the northern boundary is an irregular line from a point on Willow Avenue to and along Eighteenth Street in Weehawken; the western boundary is the cliffs of the Palisades and Union City; and the southern boundary is the south side of the Hudson Bergen Light Rail property."

The light rail and the disrepair of nearby streets hinder direct road access to NoHo from Hoboken, the study says. Principal access is from Eighteenth Street, in "The Shades" residential area of Weehawken. The current version of the study can be read on the city's website.

Residents have questions
Hoboken's 2004 Master Plan, a document describing the development goals for the city for the next 20 years, requests that the zoning for NoHo be changed from industrial to residential. It states that the city should work with Weehawken "to determine an appropriate zone consistent with the low-density residential character of "The Shades" which is a residential section of Weehawken near 19th Street.

Last week's meeting was the second Planning Board meeting on the subject to have been cancelled, to the dismay of some residents who wanted to speak out.

Business owner and uptown resident Jeff Laylon said that he had been looking forward to the hearing because he wanted to learn more about the city's plan. Laylon is a steering committee member for the Uptown Green Coalition, LLC, a group that monitors uptown development and was formed last February.

"I'm just not really sure what their plan is," said Laylon, who owns Cornerstone Pets on Ninth Street and lives in the Shipyard development. "I don't feel the public has been educated for what the city's plan is for north Hoboken in general."

He said that several of his group's 60-or-so members had planned on attending the hearing and added that it was not only the members of his coalition that follow the city's development plans.

"I think everyone's concerned with development and what goes where," he said.

Laylon added that he hopes that if the area is designated for redevelopment, some of it will be saved for parks and open space.

The court decision
The N.J. Supreme Court decision Gallenthin Realty Development, Inc. vs. Borough of Paulsboro, handed down approximately two weeks ago, narrows the definition of the word "blight" in relation to the New Jersey Constitution and the Local Redevelopment Housing Law.

The Constitution's "blighted areas clause" authorizes municipalities to engage in redevelopment of areas that have fallen into disuse and disrepair if they determine that these conditions are detrimental to the municipality. This, in turn, means that they may seize private property that they designate as being "in need of redevelopment" for public purpose and public use. But the ruling says that the definition may only apply to areas that "as a whole, are stagnant and unproductive because of issues of title, diversity of ownership, or other similar conditions."

Bado said he believes the city's study is thorough enough to proceed without having to start over, but it will be reviewed nonetheless.

"It's important they take into consideration the ruling in case someone goes to court to challenge it," he said.

May be held in late July

A new date has not yet been set for the hearing, but Bado expects it to be in late July. After the Planning Board hears the results and public comment on the issue, it will be sent to the City Council.

The council must then approve a resolution accepting the conclusions. The Planning Board then hires a firm to come up with a redevelopment plan.

Hudson Reporter, Hoboken NJ: http://www.hudsonreporter.com

Eminent domain threatens tavern: New Brunswick NJ Home News Tribune, 7/1/07

By Richard Khavkine

John Neshimka started pouring beers at the corner of Linden and South avenues [in Linden NJ] in 1980, before he was even of legal drinking age.

Six days a week, Neshimka filled mugs and topped off shot glasses to commuters and to the city's sizeable blue-collar contingent at his father's Linwood Inn, which had been in the family since 1971. At closing time, he cleaned up.

Neshimka, now 45, and his wife, Lori, have owned and run the tavern, a second-floor boarding house and two third-floor apartments since 1992. And, they said, they have made a good living along the way. In 2000, hoping to be a part of a revamped Linden neighborhood that already attracts both foot and car traffic to a pair of delis, a hair salon and a Chinese takeout, among other shops on their block and to the train station nearby, the Neshimkas began what would eventually be a $500,000 renovation. The face-lift included a brand-new $200,000 kitchen that replaced a profitable liquor outlet.

In the process, the inn, reputed to serve the best burger in New Jersey, became much more family-friendly, said the couple, who commute from Bricktown to work 100-hour weeks between them. Unbeknownst to them, the Neshimkas said last week, the City of Linden had other plans for the inn.

To move forward, city officials in October 2001 included the Neshimkas' property in a four-block swath designated in need of redevelopment. The move paved the way for the city to acquire the properties through eminent domain proceedings if owners refused to sell.

In 2003, city approved plans for a $12 million residential and commercial development to be built by Verge Properties, which is owned by Linden resident and real-estate businessman Dennis Valvano III.

The Neshimkas found out about their property's status shortly after that, about midway through the refurbishment, when they put the inn up for sale. The $1.6 million asking price attracted several interested parties, all of whom were then told by city authorities that the property was listed as in need of redevelopment. The potential purchasers, of course, all backed out. The Neshimkas have been handcuffed ever since, they said.

And while a recent state Supreme Court ruling would have put redevelopment law on their side, the unanimous opinion, which property owners hailed as a long-overdue tightening of the law, comes about six years too late for the Neshimkas.

"They let us do it. They let us pull all those permits," John Neshimka said of the city officials' de facto endorsement of the renovations, which he said doubled the family's debt. "I wouldn't have done this if I knew I'd have this cloud over my head."

The court's ruling in effect invalidates municipalities's ability to take property simply because it was deemed "not fully productive." It must also meet a strict definition of blight included in a 1947 constitutional amendment that the Legislature eliminated in 1992.

Peter Dickson, the lawyer who successfully argued the Supreme Court case on behalf of a Paulsboro property owner, said the court's mid-June findings would have made it impossible for Linden to seize the Linwood Inn.

"It absolutely is not blighted. If anything it's having a positive impact on the neighborhood," he said.

Dickson said the decision considerably ratcheted up the burden of proof on municipalities to show that a property detracts from neighboring homes or businesses before it could move to acquire it.

"The day of condemning property like this in New Jersey is over," he said.

The inn, newly fitted with everything from a roof and vinyl siding to walls and air conditioners, seats about 40 at tables and fits 30 stools around the bar, where 11 large-screen TVs tune to news and sports. The tavern's former kitchen is now dedicated to a portion of the Linden Historical Society's holdings, which include a display of black-and-white period photographs of Linden and nearby municipalities.

While city officials would have to justly compensate the Neshimkas for their property and relocate the business to a suitable location, John Neshimka said that despite what he said were Mayor Richard Gerbounka's sincere and supportive efforts, he thought both scenarios unlikely.

"These developers usually give you pennies on the dollar," he said. Besides, he added, "There is not really a place in town that can replace this."

The brick structure has occupied the northwest corner of East Linden and South Wood avenues since at least 1882. "I'm the only one doing anything" to improve the area, John Neshimka said. "I just don't think we should have been included in the project. We're a landmark."

Across Linden Avenue, a row of dilapidated buildings reaching to Morris Avenue has been unoccupied for months, in some cases even years. The word "DEMO" has been spray painted on their facades since 2006. Piles of garbage and debris lie just feet from the sidewalk along South Wood.

"They were all doing business. Now it's just a pile of rubble," John Neshimka said while surveying the block where years ago he took drum lessons and got his hair cut. "It doesn't do much for business, that's for sure."

But the redevelopment project, christened "New Wood Avenue Catalyst" and scheduled to begin in 2004, has yet to get off the ground, frustrating both Verge and city officials. While the project's first phase is set to begin this week, when the row of buildings on South Wood's north side will be knocked down, Gerbounka said, both the developer and the city are threatening legal action against each other. In a bid to stave off a deadlock, the two parties have initiated discussions, Gerbounka said.

But the project, which was to comprise housing, 25,000 square feet of retail and parks along the four blocks stretching from the railroad overpass at Pennsylvania Railroad Avenue to Morris Avenue, could yet be scuttled. "It's been dragging on and on and on. And I want to resolve this issue one way or the other by either having Verge Industries fulfill their . . . obligations to the city of Linden or have them move on so we can get a new developer."

While the mayor said he was hopeful of resolving the issue with Verge, a prolonged impasse might be the Neshimkas' best hope. Other than agreeing to sell the inn to the city's redevelopment agent, the Union County Redevelopment Authority, the Neshimkas appear to have few viable options. It appears that only Verge could amend the plan to the Neshimkas' satisfaction.

Gerbounka, though, said since it's unclear how the project is going to proceed, it "would be purely speculation" for him to consider that the Linwood Inn could remain and become part the neighborhood's transformation, as Lori and John Neshimka hope. "As far as it is now that building would be razed just like every other building in that redevelopment project," Gerbounka said Friday. "If a new developer comes along . . . we would have to reconsider the whole project."

Valvano, the developer, could not be reached for comment.

But Dickson said that the Supreme Court ruling is so unequivocal that it could empower even those property owners who already were facing eminent domain proceedings before the decision.

"Using the political process is important," he said. "You have I think a legitimate claim to go to your town government and say, "Please get me out of this. I don't belong here. This statute was never intended to pick up properties like mine. And that's what the court was making clear.' "

New Brunswick NJ Home News Tribune: http://www.thnt.com

Eminent domain battle resurfaces in Assembly: San Jose CA Mercury News, 7/1/07

By Steve Lawrence, Associated Press

The debate over how much to restrict government's use of its eminent domain powers to obtain private property for shopping malls and other developments resumes this week in the [California] state Assembly.

The Judiciary Committee will consider rival constitutional amendments on Tuesday, one by Assemblyman Hector De La Torre, D-South Gate, and the other by Assemblywoman Mimi Walters, R-Mission Viejo.

The Walters legislation would, with a couple of exceptions, allow government agencies to use eminent domain to buy private property only for public projects.

The exemptions cover property for use by utilities and for redevelopment projects to promote economic development near closed military bases in San Bernardino County.

De La Torre's proposal would ban use of eminent domain proceedings to acquire owner-occupied homes for private developments.

It also would prohibit using eminent domain to transfer property owned by small businesses — those with no more than 25 full-time employees — to other private owners unless it was part of a comprehensive program to eliminate blight.

Small business owners could avoid selling their property through eminent domain proceedings by agreeing to make improvements as part of the blight-elimination project. Or they could receive compensation to cover a move to a different location.

Both measures are a response to a 2005 U.S. Supreme Court decision that upheld the right of the city New London, Conn., to use its eminent domain powers to force the sale of homes for a redevelopment project.

But the ruling also allowed several states to pass laws limiting eminent domain for nonpublic uses.

The De La Torre amendment is supported by a number of groups that opposed Proposition 90, an unsuccessful 2006 California ballot measure that attempted to impose broad limits on the use of eminent domain.

Those Proposition 90 opponents describe the De La Torre legislation as a "carefully crafted compromise."

"We didn't try to reinvent the wheel," De La Torre said. "We're trying to keep this as simple as possible to address the issue at hand and not bring in extraneous issues.

"This is tailored to the main concern of people, which is protection of their owner-occupied homes and extending some protections to small business, as well."

But opponents complain the De La Torre legislation would not protect farms, churches, rental housing, second homes, investment property and businesses with more than 25 employees, although De La Torre said he is trying draft language to protect churches.

The critics also contend that the protections De La Torre's legislation would provide small businesses would be undercut by a vague definition of blight.

"There are so many loopholes and exceptions. At the end of the day, it provides meaningless reform," said Marko Mlikotin, president of the California Alliance to Protect Private Property Rights, which is trying to put an initiative similar to Walters' legislation on the June 2008 ballot.

Walters could not be reached for comment.

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

Council OKs letter for eminent domain: Inland Valley Daily Bulletin, Claremont CA, 6/29/07

The [Claremont] City Council reviewed and authorized delivery of the letter that threatened the use of eminent domain against the owners of the land where the DoubleTree Hotel sits, City Manager Jeff Parker said Thursday.

During a closed session in May 2006, the council decided to send the letter to encourage dialogue between the owners of the property and Harry Wu, the owner of the hotel, about Wu's desire to purchase the land, Parker said.

Wu's lease to run the hotel expires in 2021. City officials fear that without long-term assurances that the property will remain in Wu's control, Wu will allow the hotel to fall into disrepair.

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

City to pay $4.6 M for properties: Manhattan KS Mercury, 6/28/07

By Jeff Wright

The City Commission agreed this morning to pay approximately $4.6 million to acquire four properties condemned as part of the south end redevelopment project.

"We're here today asking for authority to pay those amounts," said city attorney Bill Frost during a special meeting called to meet the July 1 deadline for acquisition of the properties. The appraisers' report on the properties was filed in court Thursday.

The $4.6 million is 125 percent of the total $3.7 million value of the four properties as determined by the appraisers. It also includes their fee. The city plans to write a check to the clerk of Riley County District Court today. The money is to come from reserve funds, until the city issues special obligation tax increment finance (TIF) bonds to pay back the money, probably within 10 to 15 days, said finance director Bernie Hayen.

By far the largest appraisal was $3,200,000 on the Manhattan Ice and Cold Storage property at 207 Yuma. Other individual property owners, occupants and appraised values were: Dean Conkwright, Bud's Auto Service, 301 Colorado, $265,000; Mr. and Mrs. Bernard Garibay, M-F Welding, 211 Colorado, $120,000; and Art Craft Printers, Little Apple Antiques, 339 Colorado, $133,000.

Commissioner Bob Strawn had earlier voted against issuing bonds to acquire the four properties, and he opposed the south end in general. But Strawn said this morning that he wasn't going to be an obstructionist. "I'm going to vote in favor of this," he said. "From my point of view, it's time to move on."

The city pays 25 percent more than the appraised value of properties in the south end because they fall within the sales tax and revenue (STAR) bond district.

Frost said the appraisers' determinations of value on the properties did not "significantly" differ from those arrived at by the city. He said they were "either very close to what Dial offered or slightly less."

The eminent domain process officially began for the city in April when it filed a petition in Riley County District Court seeking authority to condemn the four properties.

This action was necessary because the Kansas Legislature amended the state's eminent domain law in 2006, giving municipalities until July 1 to condemn property for economic development purposes and transfer it to a private entity, such as Dial Realty in the case of Manhattan.

Judge Paul Miller granted condemnation authority to the city May 9. He went on to appoint the three property appraisers — Loren Pepperd, Calvin Emig and Linn Parry — May 18.

They held hearings to determine the properties' worth June 21 and subsequently submitted award amounts to the court.

Pam Conkwright of Bud's Auto Service voiced frustration over how much money the court-ordered appraisers said her business is worth, saying the dollar amount is lower than the company's tax appraisal.

"It's awful hard for me to understand how they can they tax us on one level and tell us our property is worth less," Conkwright said.

Frost said the property owners can still formally challenge or appeal the award amounts determined by the appraisers and ask for a trial. The city, in turn, could appeal that court decision and seek a lesser amount.

Once the city has the title to the properties, property owners have 90 days to vacate the buildings, though Frost said the city probably would let the tenants stay longer.

Mayor Tom Phillips said he believed the use of eminent domain was necessary.

"I didn't like anything about it," commissioner Bruce Snead said about eminent domain, but he said the timeline the city was under to develop the south end warranted its use. He said downtown planning has and continues to "try the patience of the community."

Commissioner Mark Hatesohl said the south end wasn't going to benefit everybody right away, but he hoped it would over the long-haul. He regretted that "skyrocketing commercial real estate prices" had caused hardships for south end businesses looking to relocate.

Commissioner Jim Sherows said, "we're setting a very important foundation for the future in trying to move our community into the 21st Century."

Manhattan KS Mercury: http://www.themercury.com

Loss of Wolf Creek's (Pre-) Eminent Domain: Yuba Net, Nevada City CA, 6/28/07


By Terry Lamphier

The Supreme Court ruling on eminent domain a few years ago, vastly expanding its interpretation, created a firestorm of opposition across the nation, including California and, apparently, Grass Valley.

Whether the Supreme Court's action was an act of incredible stupidity or genius is unclear, but the result has been the same: governments are now afraid to have the appearance of 'taking' of property for fear of running afoul of public sentiment and legal entanglements.

The concept of eminent domain has a reasonable basis: as communities grow, they eventually need to secure private land for road systems, bridges, schools, parks and the like. It is important to remember that said land is always appraised and purchased at market value, but becomes a forced sale when private negotiations fail. The historical use of eminent domain has always to been to serve the community at large.

The Supreme Court muddied the waters in expanding eminent domain by arguing that government could bulldoze privately held, multi-generation homes in order to build privately held shopping malls. The Court argued, in essence, that the action served a "greater good", in this case increased tax revenue, by supporting the city's "highest and best use" of the land in question - a decision that outraged conservatives and liberals alike. States across the nation have since been racing to pass new laws seeking to prevent, or at least narrow such a broad and egregious use of eminent domain.

With all this, it is important to remember that it is still illegal for government to "take" property for the public good without just compensation. Property rights advocates misrepresent this issue to the point that cautious governments, including Grass Valley's, fear having even the slightest appearance of directing private property owners land usage.

Grass Valley's City Council has shown itself incapable of understanding these distinctions, as illustrated recently in a seemingly small matter of securing a creek public trail easement from a local businessman.

The issue, seeking a few feet of right of way for a future public path along Wolf Creek, outraged the property owner to the point of bringing in an attorney to argue with Council. The City's initial position was that the property owner should give an easement for the trail, arguing that the property owner's business would negatively impact public traffic circulation. The trail system, offering 'alternative' transportation, would mitigate those perceived harms. The attorney countered that the nexus (connection) was too tenuous and therefore not justifiable, and further, that if the City were to continue such a line of reasoning a court would support the property owner's argument of an illegal taking without just compensation.

Council not only declined to pursue the arguably supportable nexus issue but also went way overboard in the other direction and granted the owner his original request with no restrictions for a trail system. Council chose not to pursue a highly justifiable classic eminent domain argument, whereby an independent appraiser establishes a value for the trail easement and requires the landowner to grant the easement, in exchange for just compensation.

The Wolf Creek parkway project is a sad example of government missing a chance to fight for the community by failing to pursue actions which would permanently assure that this special asset is made available to all.

On the opposite end of the local spectrum is the issue of using eminent domain to benefit large private landowners wanting to build huge housing developments. The large projects will have significant impacts on local traffic circulation. Developer's solutions to date involve new and/or modified freeway interchanges (taxpayer funded), requiring purchase of existing privately held homes and property.

Should private negotiations fail, the City will face using eminent domain to force sale of homes so that road improvements can be done to benefit these developers. The argument appears to fit the Supreme Court ruling, as there is the theoretical argument that such large developments may provide increased tax revenue, but this use of eminent domain is what has caused the backlash across the nation.

If Grass Valley city leaders and legal advisors can't understand these distinctions, it is time for Council to seek new counsel.

Yuba Net, Nevada City CA: http://www.yubanet.com

Terry Lamphier is a Grass Valley resident and former member of the Grass Valley Planning Commission

Legislature votes down eminent domain proposal: Dayton OH Daily News, 6/28/07

By Laura A. Bischoff

Ohio cities won a narrow victory Wednesday when state lawmakers failed to muster enough votes to put a constitutional amendment on the November ballot that would have asked voters to take away municipal power.

The Ohio House voted 56-41 — just shy of the necessary 60 votes — to place a ballot issue before voters.

In a separate vote, the House went 69-26 in favor of a bill that sets statewide standards and definitions for when government can use eminent domain powers. Supporters said it would protect property owners from governments that are too anxious to take land for redevelopment.

However, the Ohio Constitution gives cities "home rule" powers so municipalities could still make up their own eminent domain rules. Without a constitutional amendment, Ohio will still have a patchwork of rules, House Speaker Jon Husted, R-Kettering, said.

The move to make statewide standards stems from a U.S. Supreme Court decision in 2005 that said a city can take private property and transfer it to a private developer for economic renewal.

The Senate approved changes the House made to the eminent domain bill. The bill goes to Strickland for consideration.

Dayton OH Daily News: http://www.daytondailynews.com

Eminent domain proceedings might be necessary to develop basin project: Yucaipa CA News-Mirror, 6/27/07

By Michael Quigley

The Yucaipa City Council has authorized city staff and the city attorney to begin eminent domain proceeding against three landowners who live on Panorama Drive in Yucaipa.

The land in question lies at the bottom of the bluff that frames the south side of the wash running west toward Bryant Street, just north off Panorama Drive.

The city intends to develop a series of three catch basins in this area, both for flood control and to channel runoff water into the groundwater supply. The city also intends to develop recreational facilities as part of the project, known as the Oak Glen Creek/Wilson II Basins Project.

The recreational element would include a system of trails and one or more picnic areas as well as signage to inform the public about the natural features of the area.

Several property owners on Panorama Drive have already agreed to sell property at the base of the bluff behind their land. Three property owners have not agreed to sell their land, however. It is not clear to what extent if any, price is an issue. When asked about this, Public Works Director Ray Casey responded, “You'll have to ask the owners about that.”

At least one of the holdouts, Carol Holder, said that her reluctance was not related to money. “I'm concerned primarily about my safety and privacy,” Holder said.

Currently, the public is barred from the wash area below Holder's property. With the development of the basin project, however, including the recreational component, the public will be able to traverse this area on a daily basis. “There's going to be traffic down there that's never been there before,” Holder added.

Casey noted that the bluff running along the south side of the wash is at least 20 feet and in some places as much as 30 feet high.

The basic principle of eminent domain, the public taking of private property, is that the taking should be done in such a way as to maximize the public good and, at the same time, if possible, minimize private injury.

The development of flood control facilities and the regeneration of the underground water supply are important public benefits and the financial harm to the land owners may be negligible, since the land in question could not reasonably be developed commercially.

The primary injury to the land owners is one of diminished privacy. The argument about diminished privacy and the maintenance of a quieter, more rural atmosphere has been made over and over with respect to almost every proposed development above Bryant Street.

The difference in this case is that the city isn't building more houses.

As for the habitat and the wild, scenic beauty of the existing wash, some changes are inevitable. No endangered or threatened species have been found in the area, however, and the city plans to re-vegetate the developed areas around the basins in a manner as consistent as possible with the original environment.

“The primary purpose of this project is to provide for flood control,” Casey said.

“But the goals and design of the project are far more comprehensive,” he added.

Casey did say that he would speak with Holder and any of the other property holders interested about fencing along the base of the bluff that would ensure more safety and privacy.

Yucaipa CA News-Mirror: http://www.newsmirror.net

Bishop's provision for parks passes: Salt Lake City UT Tribune, 6/28/07

Feds won't be allowed to use public funds for eminent domain

By Thomas Burr

The U.S. House on Wednesday approved a provision pushed by Rep. Rob Bishop, R-Utah, to prevent federal agencies from condemning private land near public parks and monuments.

The amendment to the Interior Appropriations bill prohibits federal agencies from using any public funds to use eminent domain to take parcels from a property owner living near federal lands.

"While there are legitimate uses for eminent domain, the Department of the Interior too often uses the threat of condemnation to persuade landowners into becoming 'willing sellers,'" Bishop said in a statement. "This amendment removes that threat and protects our constituents."

Bishop cited the 2005 U.S. Supreme Court ruling, Kelo v. The City of New London, that allowed a government to condemn private land to build commercial enterprises and other recent "abuses" of eminent domain as the reason for the amendment.

Bishop failed in two other amendments he pushed. One would have shifted some $32 million in the spending bill to boost border security on federal lands.

Another amendment that failed would have prohibited funding in the bill from being given to nonprofit groups that are suing the agency from which they are seeking the funds.

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

Dispute Over Eminent Domain Sign Headed To Court: KSDK, St Louis MO, 6/26/07

By Cordell Whitlock

The city says it's simply too big, but supporters say a sign in St. Louis is protected by free speech. Now, the issue may be settled in court.

The Land Clearance For Redevelopment Authority in St. Louis also known as the LCRA ruled a mural critical of eminent domain on South 13th Street violates a city ordinance. But, the owners say they have no plans to remove the artwork.

Jim Roos says two weeks after a mural reading "End Eminent Domain Abuse" was painted on the side of a building in March, a building inspector told him he needed a permit. The giant mural is visible from Interstate 44. Roos' organization believes eminent domain, the state's ability to seize private property for public use, needs to be abolished.

"We have supporters of MEDAC who say they will support our legal costs to defend the sign," said Roos.

The Missouri Eminent Domain Abuse Coalition or MEDAC may need that cash. Tuesday afternoon, the LCRA ruled the organization's giant mural does not comply with a city ordinance because of its size and location in a residential neighborhood. MEDAC argues the sign is an expression of free speech.

"The sign dissents and opposes city action which includes their eminent domain practice," said MEDAC's attorney John Randall. "It's an intent to communicate that viewpoint. Political speech is the purest form of speech under the constitution," Randall said.

Dale Ruthsatz, a member of the St. Louis Development Corporation and a spokesperson for the LCRA, says the Authority's decision had nothing to do with the Constitution. "The board's only job is to make sure the ordinance approved by the board of alderman is upheld. They are not in a position to evaluate a freedom of speech issue," said Ruthsatz.

That may be decided in circuit court, the next stop for MEDAC when it files an appeal. In the meantime, Roos says the mural will stay. MEDAC will go before the City Zoning Board Of Adjustment July 11th for further discussion of a permit for the sign.

KSDK, St Louis MO: http://www.ksdk.com

Eminent domain ruling won't affect city plan: Lambertville NJ Beacon, 6/27/07

Officials say it would have no effect on Lambertville's proposal to redevelop the old high school and lots on Connaught Hill

By Linda Seida

A recent state Supreme Court decision declaring only "blighted" properties can be acquired through eminent domain will have no effect on Lambertville's plans to redevelop the old high school and other lots on Connaught Hill, according to officials.

In plain terms, according to Planning Board Chairman Timothy Korzun, the court's ruling applies to "stupid development where there is really no good reason" for a government to take over private property.

That's not the case in Lambertville where one of the properties under consideration for a makeover represents the textbook definition of blight, according to Mr. Korzun.

"We went out of our way to make clear we are not displacing anybody," Mr. Korzun said. "You can't just knock down a neighborhood because you want to put up a shopping mall. We were fortunate to have consultants who know this field backwards and forwards."

The old high school on the hill is "burned out and falling down. The current owner is doing nothing with it," Mr. Korzun said. "It's the classic definition of blight."

The city has discussed acquiring the property through eminent domain but has not made a formal declaration yet, according to Mr. Korzun.

The school suffered two fires, in 1955 and 1992. Nearby there is a landfill that could cost at least $1 million to seal off and make the land useable again.

"No one has ever really priced it or done a comprehensive study," Mr. Korzun said.

The landfill, which has not been used in about 40 or 50 years, is not sealed.

"It's never been encapsulated, sealed off," Mr. Korzun said. "To take a brownfield and make it buildable, it's not impossible. It's not cheap either."

The city is "not terribly interested" in taking on that kind of expense on its own, Mr. Korzun said. The answer could lie with a developer, but "people haven't been chomping at the bit. The potential cleanup could be cost prohibitive."

Other problems standing in the way of turning the property into something useable again are sewer and water hookups.

"Getting water up there is a real, real headache," Mr. Korzun said.

One possible solution would be to run a water line up the hill, similar to one that runs up Quarry Street.

"Nobody really loves that idea," Mr. Korzun said. "That's too expensive."

One idea for the school is to preserve the stone fa├žade and build something new around it, such as condos, for example.

"Some people are sniffing around, but it's a waiting game," Mr. Korzun said.

The other properties on the hill that are subject to redevelopment efforts consist of undersized lots, many whose titles are murky. Two lots would be required to make one buildable lot. Habitat for Humanity already has constructed several houses there. Another area of the hill will hold a new park for the hill's residents this year.

The state Supreme Court decision on June 13 came as a ruling in the case of Gallenthin Realty Development Inc. vs. the Borough of Paulsboro. The Gallenthin family owned property since 1951 and used it since 1902 to moor barges transporting produce. The family also leased it to others for river access, storage and parking.

In 1998, Paulsboro had a new Master Plan that identified areas that should be redeveloped to stimulate the local economy. By 2003, the Gallenthin property became part of that plan. The Gallenthin family sued, and the Supreme Court upheld their claim.

Lambertville NJ Beacon: http://www.zwire.com

Eminent domain broached for public safety building: Holden MA Landmark, 6/28/07

By Melissa McKeon

Three more possible scenarios for police and fire stations - or a combined facility - earned mixed reviews from the Public Safety Building Committee last week.

Committee members viewed a possible combined facility on five lots on Main Street bordered by Kendall Road and the Wachusett Regional High School driveway, a proposal for a police facility on two acres in the Dawson recreation area on Salisbury Street, and either a renovation/addition to the existing fire station or a station on the current site on Main Street across from the high school.

Architect Michael McKeon of Kaestle Boos said the costs per square foot were based on comparative analyses and recent similar projects, though there are many variables that can't be estimated, such as site preparation costs, and the expense and time needed to acquire properties by eminent domain.

McKeon's estimates for a combined public safety facility that would give 20,000 square feet to fire and 16,500 square feet to police, with each sharing 3,000 square feet, resulted in a combined facility of 33,500 square feet at $322 per square foot, about $10.8 million. Adding the cost of inflation and the cost of acquiring the property, the price tag rises to $13.85 million.

To build a 16,500-square-foot police facility at the Dawson recreation area would cost $335 per square foot. Costs for the two fire station scenarios were $310 per square foot for a 20,000-square-foot station. Adding inflation and the cost to acquire neighboring property adjacent to the station brought the combined cost up to $15.05 million for a police station and a new fire station, and $14.1 million for a police station and an addition/renovation.

Those estimates do not include space to house EMS should the town acquire ambulance service.

Landscape architect Ken Costello of Kaestle Boos outlined the problems with each site. The Batemen property, the name used in previous PSBC discussions for the five lots totalling 3.5 acres near Kendall Road, has a 10- to 20-foot drop from one end to the other, requiring some leveling. A combined police-fire building plan used in Foxboro was superimposed on the property for discussion, and included orientation to keep fire apparatus bays away from the high school side of the lot.

The Salisbury Street-Dawson Recreation area lot has a steep 20-foot drop, though Costello called the site "very clean," that is, requiring little adjustment for environmental issues.

Building on the current fire station site, however, is more problematic, McKeon said. Costello said there's a 20-foot grade change, resulting in a "not very desirable circulation pattern" for any vehicles on the site.

Use of that site has other problems: there's no room for growth, McKeon said.

"It's obviously not the ideal," he said.

Moreover, Costello has serious concerns about the fill at the rear of the property.

Members differed sharply on the advantages and disadvantages of each site.

PSBC member Hal Lane found the Bateman property the least desirable because of the potential acquisition costs of the five lots, currently private single-family homes that would have to be taken by eminent domain. Towns are required to pay residents fair value for their property.

Selectman and PSBC member David White thought the Bateman property presented the best value, and disapproved of the potential use of the Salisbury Street-Dawson Recreation area land.

If the land could be acquired from the state by trading other adjacent parcels, White said, the town might decide to use it differently, for instance, for extended parking or some other expansion of recreation functions.

"You're removing any potential to use it for recreation," he said. "I think you'd have a hard sell with the select board."

But Police Chief George Sherrill said the public safety need should trump recreational uses for town land. Sherrill opposed the displacement of families and the loss of tax revenue that would result from the use of the Bateman property.

Several members were concerned about the loss of tax revenue and the cost of acquiring the property, as well as the potential that residents would fight the taking and lengthen the process, thereby increasing the cost by inflation.

Moreover, drainage at the bottom of the hill where the high school is situated has always been a concern, and one that's increased since the high school expansion project began, according to at least one resident.

Main Street resident Gary Gaskin, who owns one of the lots at the foot of the high school driveway that would be taken by eminent domain, spoke to the water difficulty experienced by residents there. He said when rain is heavy, the water table rises to ground level, and he and his neighbors have to use sump pumps to clear their basements. Sometimes, Gaskin said, his sump pumps run constantly for weeks.

The use of the Salisbury Street lot, McKeon said, could be tailored to expand recreation needs as well.

There is also potential to add to the police department a fire department bay for use as a substation, something many have said is needed at the Salisbury Street side of town, where many new homes are being built.

"That would answer issues we know we're going to have to address in the future," said PSBC member Mary Ryan.

What stymies the committee, however, is the lack of firm numbers. The cost to acquire properties has always been an option the committee sought to avoid in order to keep costs down. The current options are the second round of proposals they've considered, only after viewing less-than-desirable uses for town-owned land, like the Damon House.

During public commentary, Sheila Bachant highlighted the difficulty of adding property purchases to the cost.

"You've got to sell this to the hardworking people in this town who go to the ballot box and vote," Bachant said.

Considering extra costs to acquire property, PSBC member Karl Makela said, perhaps this makes it feasible to put the Caswell-King site back on the table.

The Caswell-King lot on Main Street, along with two adjacent lots, is under agreement with the Richmond Group for a Walgreens drug store, a use that has not found favor with abutters and center neighborhood residents.

"I think you people have a wonderful opportunity to serve this town well," Walnut Street resident Karen Green told the committee. "You could prevent a behemoth from going up in the middle of town, which no one wants."

PSBC Chair Christopher Lucchesi said he will seek more information from MassHighway and discuss eminent domain with town officials. Kaestle-Boos will conduct a few more test borings on the fill at the back of the fire station site.

Holden MA Landmark: http://www.thelandmark.com

Eminent domain a possibility for oil pipeline: KXMB, Bismark ND, 6/27/07

Associated Press

Builders of the TransCanada oil pipeline say they'll use eminent domain proceedings if they're unable to negotiate easements to cross private land in South Dakota.

The buried pipeline from Canada to Illinois would cover 220 miles in eastern South Dakota.

TransCanada manager "Buster" Gray says eminent domain wouldn't be pursued until late in the year, and that negotiations could continue even after that process is started.

The state Public Utilities Commission must approve the project and held hearings this week on it.

TransCanada has been pursuing easements with private landowners on roughly 500 tracts of land that it would cross in South Dakota.

KXMB, Bismark ND: http://www.kxmb.com


City officials hoping for hotel property's sale to developer: Inland Valley Daily Bulletin, Ontario CA, 6/26/07

By Will Bigham

[Llaremont CA] City officials have been working quietly for more than a year on behalf of the developer of the DoubleTree Hotel to encourage the land's current owners to sell it to Harry Wu, the developer and lease holder of the hotel.

The city's work assisting Wu began after talks between Wu and the owners about a possible sale broke down, the owners said.

The city sent a letter to the owners threatening the use of eminent domain a year ago and have since had several meetings with the owners.

The City Council is meeting in closed session tonight to discuss the issue.

The city is hoping the owners sell because Wu's lease to operate the hotel expires in about 14 years. Wu completed a $10 million overhaul of the hotel last year, and he wants to ensure that the expense was not wasted, city officials said.

"If (Wu) can't get a longer lease, what would happen is the owner will stop investing money in the hotel and will basically let the existing facility ... deteriorate," Mayor Peter Yao said.

"The city's goal is to have a stable hotel over the long term, and a good quality hotel," said Brian Desatnik, the city's housing and redevelopment manager.

Rolland Towne, co-owner of the property, said he believes that before Wu purchased the hotel in 2005, Wu was given assurances by the city that a deal would be worked out for him to gain ownership of the land, with the city invoking its powers of eminent domain if necessary.

"(Wu) knew what was going to happen before he went to us," Towne said. "He wouldn't have bought the hotel" unless he had assurances from the city.

When the owners rejected the terms of a potential sale during early talks with Wu, the city became involved soon after.

In a letter to the property owners dated June 12, 2006, City Manager Jeff Parker outlined the city's position that the hotel was "blighted" - which a property must be by law for a city to use its eminent domain powers.

However, a renovation of the hotel by Wu had recently been completed, and city officials praised the condition of the hotel during a ribbon-cutting ceremony only two weeks prior to sending the letter.

"This property, in the center of Claremont, has been turned into one of the most beautiful places in the city," Yao said during the event.

The letter goes on to state that the city "will retain complete, sole and absolute discretion as to whether or not it will exercise its power of eminent domain."

"Harry Wu went to them and requested that they do eminent domain so he could get it," said Barbara Boquet, Towne's sister and the other co-owner. "It was pretty scary. We had to get an attorney."

The Towne family has owned the land where the DoubleTree sits for more than 100 years. Nearby Towne Avenue is named after the family.

Towne said that when the hotel lease expires in 2021, the family plans to make a decision about what to do with the land. The family had no intention of selling the land before Wu and the city forced the issue, Towne said.

The decision to send a letter threatening eminent domain was made at the staff level. The City Council never met to discuss the issue, Yao said.

Wu and Parker did not return calls seeking comment.

Council members Ellen Taylor and Corey Calaycay declined to comment on the issue.

Wu is also the owner of the adjacent Old School House, which he is in the midst of redeveloping.

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

Protesters Gather to Oppose Expansion: Santa Clarita CA Signal, 6/26/07

By Kristopher Daams

The [Santa Clarita CA] City Council is scheduled tonight to take another look at - and adopt - the process it would follow to use eminent domain, the acquisition of private property for public use.

State law is mandating cities produce an ordinance describing their eminent domain program and approve it by July 1. No public hearing is required for the ordinance and the council hasn't scheduled one for it. The ordinance had its first reading by the council on June 12.

The program under consideration could have the city come into possession of a property during litigation between a property owner and the city. Litigation does not have to conclude before a property is acquired.

The program would mandate an appraisal process with an appraiser hired by the city. If a property owner wishes, an independent appraiser could also undertake another appraisal process and the city would have to pay $5,000 of the entire cost.

A 30-day negotiating period is included and if eminent domain is the city's course of action, a public hearing is required as well as a two-thirds majority vote by the council.

Assistant city engineer Chris Price, one of the city officials overseeing the redevelopment process for downtown Newhall, described the item as "a restating of existing state law in a local ordinance.

"If we didn't do this, nothing would change," he added.

The city's eminent domain policy as laid out in the ordinance would essentially be similar to its existing one that is based on state law, Price said.

Santa Clarita CA Signal: http://www.the-signal.com

House panel revises eminent domain bill: Cleveland OH Plain Dealer, 6/26/07

Settles on 70% blight, caps money

By Reginald Fields

Neighborhoods where at least seven of every 10 properties are dilapidated, unsanitary or unsafe could be stamped "blighted" areas ripe for the taking by local governments under a revised bill passed Monday by an Ohio House committee.

Senate Bill 7, a measure aimed at setting guidelines for when municipalities can exercise their eminent domain powers, cleared a split House Judiciary Committee and could be considered by the full House this week.

The full House this month already unanimously passed House Bill 5, a measure preferred by city groups and similarly intended to regulate eminent domain but with some key differences from SB 7.

For example, HB 5 says just 50 percent of the properties need to be blighted before an area is deemed appropriate for takeover.

The two bills appear headed for a conference committee, where lawmakers will negotiate the measures into one bill.

But the House has yet to decide whether it will address the bill's controversial companion piece, a Senate resolution pushing a constitutional amendment that would let voters decide in November whether the bill - should it become law - trumps the "home rule" provision of the Ohio Constitution.

Home rule allows cities with charters to overrule some state statutes.

The resolution, which needs three-fifths approval from each chamber to make it onto the ballot, passed the Senate earlier this month, 21-11, largely along party lines, with Republicans and one Democrat supporting it. It would need 60 votes in the House, where Republicans hold a 53-46 majority over Democrats.

Time is becoming a factor in the resolution's consideration.

The measure would have to clear the General Assembly by early August to make it onto the November ballot. But it hasn't been discussed much publicly in the lower chamber. And legislators are nearing a summer vacation from which they are not likely to return until September.

SB 7, sponsored by Sen. Tim Grendell, a Chester Township Republican, offers specific rules for what can or cannot be considered blight. The version passed by the Senate differs from that passed by the House, and it differs from HB 5.

The Senate version required that 90 percent of the properties in a given area be blighted before the area can be taken by eminent domain. The House changed SB 7 to 70 percent Monday.

The House committee also capped "goodwill" compensation for businesses entirely displaced by an eminent domain project; the amount was uncapped in the Senate's version.

Other changes in the House version of the Senate bill: an agency wanting blighted land would have to produce one publicly financed study documenting the need for the land, and agricultural property that is not in itself blighted can be included in a designated blighted area.

Cleveland OH Plain Dealer: http://www.cleveland.com

Businesses Cry Foul Over Use Of Eminent Domain: MyFox, St Louis MO, 6/26/07

By Betsey Bruce

Property owners from south St. Louis to Clayton to north St. Louis are refusing to give in to developers who are using the state's eminent domain law to acquire land for large redevelopment projects. A light industrial project called NorthPark promises new jobs and growing tax revenue. But several small business owners are complaining they should not have to suffer losses to make way for someone else's profit.

Mike Steidley, president of Midwest Mudjacking, a concrete laying firm, said they are being held in limbo by the project's developer, Clayco. "None of the business owners along Hanley Road know what to do and in my mind someone should be held accountable for that." he said.

Two months ago court appointed commissioners ruled on what the properties were worth. But the developer is refusing to pay the settlement amounts. Steidley's attorney Bob Denlow explained, "we've heard from the opposing side they do not intend to put the moneys in court for the property owners ..to keep ongoing businesses going elsewhere ." Business owners like the Henderson family of Bermuda Air Conditioning worry it could go on for years without any indication whether they will ever see any money. The business's secretary-treasurer Cathy Henderson described the experience as traumatic. "You don't know whether you should buy another building, have two of everything..two expenses of everything."

Several months ago, Larry Chapman of Clayco said all the property was needed to create a modern industrial park. He was unavailable to comment Tuesday. St. Louis County Councilwoman Hazel Irby described the situation as very unfair. She was elected after the council granted eminent domain powers to the developer. She said she would like to see changes in the state law so business owners don't face so much uncertainty.

MyFox, St Louis MO: http://www.myfoxstl.com

In Kelo's Wake, Property-Rights Advocate Emerges: Connecticut Business Journal, 6/25/07

In the wake of a Connecticut neighborhood's extended property-rights struggle that eventually ended up in the U.S. Supreme Court, Gov. M. Jodi Rell has nominated the state's first property-rights ombudsman.

If confirmed by the General Assembly, Middletown real estate attorney Robert S. Poliner would fill the position, intended as an advocacy post for Connecticut businesses and homeowners.

The office would focus on eminent-domain laws, helping property owners through disputes and legal proceedings, as well as recommending needed changes to existing eminent-domain laws.

In 2005, to the dismay of residents of New London's Fort Trumbull neighborhood who had vowed to remain in homes and businesses slated for demolition, the Supreme Court ruled in favor of the city's right to seize the properties for private development via eminent domain.

At issue was whether a local government had the right invoke eminent domain to seize private property for private commercial development - in this case, tearing down and rebuilding a functioning, non-blighted area near a newly built Pfizer plant - as opposed to taking over private property for public use, such as to expand a road or erect a government facility.

The case, Kelo et al. v. City of New London et al., attracted national attention and overwhelming support for Fort Trumbull homeowners and small business proprietors.

The General Assembly established the ombudsman position last year, but it has never been filled.

Poliner's appointment is contingent on legislative approval.

A former state Republican Party chairman, Poliner is a principal with the law firm Poliner, Poliner, Antin & Cienava Rocco, PC. He has represented buyers and sellers of residential, commercial and industrial real estate, as well as developers, banks and finance companies.

His experience includes negotiating and drafting commercial leases and helping businesses secure financing for capital improvements.

Connecticut Business Journal: http://www.conntact.com

Perry should back up eminent domain talk: The Facts, Brazos County TX, 6/22/07

Editorial Opinion

By Chris Greene

Gov. Rick Perry’s veto this week of an eminent domain bill designed to protect landowners left a lot of Texans scratching their heads, and you can lump us in with those feeling dumbfounded.

Perry — who was among those making political hay when the U.S. Supreme Court ruled in 2005 that cities can seize homes under eminent domain for use by private developers and made the issue an emergency item in a special session that same year — had a chance to back his tough talk and posturing on property rights with action. But when push came to powerful shove against business interests, Perry sided against landowners.

Even though the Supreme Court ruled on the side of developers in the 2005 case, it also said states can craft laws that limit eminent domain. That’s what the Texas House — by a vote of 125-25 — and Senate — in a unanimous vote — did in the bill sent to Perry.

Many feel the Trans-Texas Corridor, a project championed by Perry, will bring about mass evictions of Texans from their homes, farms and ranches. The proposal involves more than 4,000 miles of tollways and railways and cuts through many Texans’ private land.

Farmers and the Texas Farm Bureau were especially upset with the veto. Perry, who touts his farming background, is a former state agriculture commissioner.

“The taking of private property has become far too easy in this state,” Kenneth Dierschke, president of the Bureau, said in a statement. “Obviously, there are many powerful interests that prefer it stay that way."

Perry cited opposition to the bill from fast-growing cities and counties who claimed cost of construction projects would rise. His office’s press release also pointed to how the bill expanded damages a landowner could recover from diminished access to roads and changes in traffic patterns and property visibility.

But certainly those factors were weighed by the Legislature, which overwhelmingly acted on the people’s call for protection from eminent domain.

Perry’s acquiescence to big business is no surprise. He talked tough on border security during his re-election campaign, then dramatically changed his tone after the election when talking to business leaders who rely on immigrant labor. And sadly, eminent domain has no doubt been filed in the same place as true property tax relief for Texas homeowners.

One also has to wonder if Perry’s veto is simply payback to legislators who overturned his executive order on mandatory cervical cancer vaccines and spurned other Perry agenda items. If so, it’s just one more black mark for his less-than-inspiring governorship.

The Facts, Brazos County TX: http://thefacts.com

City plans to use eminent domain: Hattiesburg MS American, 6/23/07

By Nancy Kaffer

The [Petal MS] city's move to begin eminent domain proceedings to acquire two properties near Friendly Park may face opposition from the land's owners.

City tax rolls list the two parcels' owners as Annie Cooper and Rayborn Lee Jr., city attorney Tom Tyner said.

The two parcels are part of a 6-acre swath of land adjacent to Friendly Park that city officials say is necessary for a planned expansion of the city's softball fields, touted as a major economic development tool for the city's future growth.

Eminent domain is a legal process through which government entities can force private property owners to sell land for projects deemed necessary for the public good.

Offers to buy the property were refused, Mayor Carl Scott said.

Cooper, whose daughter Tracy Tisdale is employed in the Hattiesburg American's customer service department, was offered $3,750 for one parcel of land and $23,400 for another, Scott said.

In previous interviews, Cooper's daughter Shirley Ducksworth had called the city's purchase prices inadequate.

Ducksworth said this week that her mother's attorney was handling all matters related to the land.

The city offered to pay the other property owner $31,500 for his property, Scott said, based on a figure from local appraiser Stan Lightsey.

The other two parcels city officials are eyeing belong to Petal resident Jimmie Dale Odom and recently-deceased Louise Haynes.

Scott had told Haynes, who died last week, that her property "probably" wasn't part of the city's proposed acquisition.

Tuesday, the mayor said that offers to purchase Haynes' and Odom's land were still in the works.

"It's a moot point," Scott said.

But Haynes' daughter, Carol Rayborn, said the city had offered her mother $30,000 for her home.

"She told them she owed that much on it," Rayborn said. "Mama didn't want to sell for that because she couldn't find anywhere else to stay for that."

Rayborn said she and her siblings haven't yet discussed whether they'll sell the property.

Petal city attorney Tom Tyner said Tuesday that he expected to file the papers to begin the process in a week to 10 days, and said the matter should be resolved by October.

Hattiesburg MS American: http://www.hattiesburgamerican.com

Vedic City could force farmers to give up land for park: Des Moines IA Register, 6/23/07

By Megan Gordon

Maharishi Vedic City [IA] officials will meet at noon Sunday to discuss developing a park proposed on land owned by farmers who are unwilling to sell it.

The land is owned by Bob Palm and his two brothers, and it borders the city, said Maureen Wynne, attorney for Maharishi Vedic City. She said the city wants to buy 149 acres of the farmland for a state-of-the-art park that would include windmills, soccer fields, a swimming pool and a place to charge electric cars.

“The city council is considering whether or not to go forward with the park plan and to send a negotiator to speak further with the Palm brothers,” she said in an interview Saturday. “At this point, we’re not condemning anyone’s land. If it reaches that point, it won’t be for a while.”

She said the government has a right to take private land for city use. She cited New York City as an example of eminent domain.

Eminent domain is the term for the government’s ability to take or force the sale of private property in the name of public improvement.

The U.S. Supreme Court in 2005 refused to overturn a Connecticut law that, like laws in Iowa and other states, allows governments to seize private land to help economic development. Iowa lawmakers in 2006, in reaction to the Connecticut case, toughened restrictions on cities’ ability to use eminent domain. Cities must now prove that at least 75 percent of the property is blighted.

Maharishi Vedic City appraised Bob Palm’s land at $2,675 per acre, Wynne said. Palm said the farm has been in his family for 115 years. He said he and his brothers don’t want to sell it.

“It’s not for sale. It never has been for sale and it never will be,” he said. “I live in the house I was born in. My grandfather built this house in 1894.”

Maharishi Vedic City city council members on Sunday are expected to either move forward with the park or scrap its plans, Wynne said. If the council votes in favor of moving forward with the park plans, they will have to file a court action to exercise eminent domain, she said.

Palm said he and his brothers will fight the city for as long as they can afford it.
“About all we can do is respond to every step they take,” he said. “We’re going to fight as hard and as long as we can.”

Des Moines IA Register: http://desmoinesregister.com

Pirolli offers insight into Ifshin extension: Bucks County PA Courier Times, 6/22/07

By Gema Maria Duarte

Tullytown [PA] council President Beth Pirolli wants to inform residents about council's decision to grant a two-year extension to developer Stephen Ifshin to complete the Levittown Town Center.

“[The council] wants the residents to understand what is going on,” Pirolli said Thursday afternoon. “[The council] wants [residents] to know that after much discussion, the decision wasn't made lightly. The developer came to us and said, "If I don't get the extension, there's no contract with Wal-Mart or any other store.' [The council] knows that residents want the shopping center, so if we didn't give him the extension, the shopping center wouldn't get built.”

In May, Ifshin signed a contract with Wal-Mart for a superstore that would sell everything its regular stores sell plus meats and produce.

Wal-Mart spokesman Jim Davis said Thursday construction is expected to start by June 2008. He also said it usually takes about a year to finish construction, depending on the scope of the project.

For Pirolli, the council's June 5 decision to give Ifshin the extension is a “win-win” for Tullytown residents.

“If construction [at the shopping center] is not going on by June 2008, he will not get the extension,” she said.

Building Inspections Underwriters of Feasterville, the company hired by the borough, will figure out the construction percentage that Ifshin will be required to have completed by June 2008, Pirolli said.

“[Ifshin] needs to have a significant amount of the construction completed for [the council] to grant the extension,” she said. “We also need to define "significant' and be fair.”

In a news release dated June 14, Pirolli listed eight requirements Ifshin will have to follow to get the extension, including the replacement and maintenance of Kenwood Drive North before the opening of the Super Wal-Mart, the cleaning and maintenance of a drainage area near the Kenwood section of Tullytown, construction of Wal-Mart under way by June 2008 or the extension would be withdrawn and construction of the other stores to occur as early as fall. Ifshin will also need to submit monthly progress reports on the project to the council. The reports will be released to the public during council meetings.

Pirolli said the release was approved by all council members, but Councilman Ed Czyzyk said he didn't approve it. He said he wasn't part of any research or discussions with the council about the challenges of eminent domain. Neither was Councilman Joe Shellenberger. He said he didn't get the release in time to request changes, and that the council usually leaves him in the dark.

Pirolli's release said, “Because we were advised that it would take many years to fight an attempt to take this property using "eminent domain' guidelines, the council researched extensively before arriving at our decision.”

“I know nothing about the research [the council] did,” Czyzyk said. “I wasn't told about these research or discussions.”

Czyzyk and Shellenberger voted against the extension. Council members Rick Adams, Mary Ann Gahagan, Matt Pirolli and Beth Pirolli voted for it. Councilwoman May Kucher wasn't present at the meeting.

Beth Pirolli said most of the council's discussion on the extension request occurred at the June 5 meeting and not before it.

She also explained that most of her eminent domain research came from the Internet. Borough solicitor William Salerno advised the council that eminent domain cases take a long time to be resolved, she said Thursday.

In the press release, Pirolli points out that if the borough were to obtain Ifshin's 50-acre property at Route 13 and Levittown Parkway through eminent domain, “it would be very costly and it could then only be used for public projects: roads, parks and government buildings.”

She further explained that if the borough “chose to use the Bucks County Redevelopment Authority to attempt to take this property, we, the residents, would not have the final say in what would be on that property, although we would pay for the land and all attorney and court fees.”

That's not the way it works, according to Mike Savona of Friedman, Schuman, Applebaum, Nemeroff & McCafferty, P.C. in Elkins Park, Montgomery County. Eminent domain procedures are “case by case,” said Savona, who represents the Pennsylvania Turnpike Commission with eminent domain cases.

If the redevelopment authority took the case, then the agency would be responsible for the legal fees, unless there's an agreement between the borough and the agency leaving the municipality responsible for the legal cost, he said.

The redevelopment authority hasn't been approached by the council to help obtain the property at Route 13 and Levittown Parkway.

Bucks County PA Courier Times: http://www.phillyburbs.com

Residents - Don't use eminent domain: Minnesota This Week, Burnsville MN, 6/22/07

By Tad Johnson

By a show of hands, there was nearly unanimous opposition to eminent domain among an overflow crowd at a Tuesday, June 19 public hearing of the Rosemount [MN] Port Authority.

The Port Authority set the hearing that an estimated 150 people attended to receive testimony regarding the city’s intent to use eminent domain to acquire the Ratzlaff Service Station, 14630 S. Robert Trail.

Acquiring the property would clear the way for redeveloping Core Block East (see plan).

Of the 14 residents who spoke, nearly all opposed the idea of using eminent domain though a few urged the city that redeveloping downtown is needed.

While the Port Authority is considering using eminent domain to acquire the Ratzlaff property owned by Dr. Kurt Walter-Hansen, negotiations continue in an effort to end the stalemate.

Hansen and his attorney, Len Levine, met with the city’s Core Block East contracted developer, Wally Johnson of Stonebridge Cos., June 11 to discuss a possible partnership. The city has met with Hansen and/or Levine eight times since Feb. 5, 2007.

After receiving about an hour’s worth of testimony, the Port Authority continued the public hearing to 6 p.m. July 16 in the City Hall Council Chambers.

When the public hearing process is completed, the Port Authority will decide whether or not to use eminent domain, at the earliest, during an August meeting.

Eminent domain
Pat Walter, who co-owns the Ratzlaff property with her husband, was concerned that using eminent domain would cast a negative tone for downtown redevelopment.

Don Ratzlaff, who operates the service station and truck rental business, says using eminent domain would create an atmosphere of distrust to take something out of his pocket and give it to someone else.

Gary Graham, co-owner of Quilter’s Haven located south of the proposed redevelopment building, asked if any building in the city’s downtown tax-increment financing (TIF) district could be obtained by eminent domain.

Corrine Thomson, the city’s legal counsel, confirmed that the city could use eminent domain for properties in the TIF district until 2009.

When passing new law in 2006, the Minnesota Legislature granted an exception to cities that had already certified redevelopment TIF districts prior to May 1, 2006, that those cities could use provisions of the old law. The city’s TIF district was certified July 29, 2004.

The old law permitted use of eminent domain for redevelopment projects.

Residents encouraged the Port Authority to work with Hansen to negotiate a sale, rather than using eminent domain.

“We expect the city to work with property owners and not against them,” said Vivian Smithburg.

“The end doesn’t justify the means,” said Rosemount resident Dan McNulty. “Do the right thing: Say no to eminent domain.”

Prior to selling his property to Hansen, Ratzlaff said negotiations with the city’s developer were poor at best.

The city reported that offers to purchase the Ratzlaff property above its appraised value of $275,000 were made in November and December of 2005. Hansen purchased the property for $450,000 in September 2006, according to the city.

While negotiating with Hansen, the city made an 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.

In a letter to the city, Hansen wrote that he is a willing seller, but did not indicate whether he accepted or denied the offer or made a counteroffer.

Minnesota This Week, Burnsville MN: http://www.thisweek-online.com

Riverside eminent-domain foes take a hit on appeal: Riverside CA Press-Enterprise, 6/20/07

By Doug Haberman

A Riverside resident may lose his battle against the city over an anti-eminent-domain ballot measure.

In fall 2005, Ken Stansbury began gathering signatures on a petition for a proposed city ballot measure. The initiative would have barred the city Redevelopment Agency from using eminent domain to acquire private property to transfer it to a developer.

The city filed suit, saying eminent domain is a state issue, not a local issue. It asked a judge to rule on the validity of Stansbury's measure.

The Fourth District Court of Appeal has issued a tentative decision reversing a trail court judge's ruling that found the city of Riverside tried to stifle Ken Stansbury's First Amendment rights. Stansbury's attorney, Richard Reed, says the ruling is "profoundly anti-democratic." The judge threw out the city's suit, finding it was meant to squelch Stansbury's First Amendment rights to petition the government.

But a state appeals court has issued a tentative opinion that would reverse the trial-court ruling.

"If the trial court's ruling is allowed to stand, no one could ever challenge an initiative's constitutionality prior to the election, which is contrary to law," the appeals panel wrote.

On Wednesday, City Attorney Greg Priamos called the appeals court opinion "a clarification of existing law."

The law now allows asking a judge to review a ballot measure for its legality before it goes to the voters.

Stansbury's attorney, Riverside-based Richard Brent Reed, said existing law needs to be corrected.

If people considering whether to put a measure on the ballot know a city might sue them over it, it could scare them away from the attempt, Reed said. That is profoundly anti-democratic, he said.

The tentative ruling will become final if neither party requests oral arguments - the chance to argue their case in front of the 4th District Court of Appeal, Division 2, in Riverside. The hearing would likely take place within 90 days of any request, and the final ruling would come after that.

Reed said he will request oral arguments.

Stansbury and Reed vowed to take the issue to the state Supreme Court, if necessary, because they see it as a battle for constitutional rights.

"I'm in it for the long haul," Stansbury said.

Controversial Acquisitions
Eminent domain has been an especially hot topic across the nation since a June 2005 U.S. Supreme Court ruling.

Public agencies use eminent domain, also called condemnation, to acquire private property from owners unwilling to sell. It is typically employed to buy property for public uses, such as parks, libraries and street-widening projects. The agency condemning the property must pay fair market value for it.

The U.S. Supreme Court ruling upheld the government's right to use eminent domain for another purpose: to acquire land for private developers whose projects would create jobs and boost tax revenues.

Many people, including Stansbury, saw the ruling as an affront to private property rights.

Soon after he began circulating his petition in Riverside, the city filed a lawsuit that said eminent domain is a state issue and city voters could not strip it away except through a statewide ballot measure. The city asked a judge to rule on the validity of Stansbury's proposed measure. In response, Stansbury and the group he fronted, Riversiders for Property Rights, filed a motion saying the city suit was a blatant attempt to stop the signature-gathering drive, thus depriving residents of their right under the First Amendment to petition the city government and their right to vote on the measure. In March 2006, Riverside County Superior Court Judge E. Michael Kaiser granted the motion by Stansbury and Riversiders for Property Rights and threw out the city suit.

Kaiser said eminent domain is a local issue. He also said any ruling he might make on the ballot measure's legality before the public voted on it would be premature because the measure might not pass.

The city appealed Kaiser's decision. The appeals court issued its tentative opinion June 13, saying Kaiser's ruling was in error.

Riversiders for Property Rights disbanded after Kaiser's ruling and reached an $11,000 settlement with the city in which the group gave up any further legal challenge. The anti-eminent-domain measure never made it onto a city ballot. The appeals court's tentative decision said that, under California law, a pre-election review of a ballot measure is acceptable when the validity of the proposal is in serious question.

That's because, the appeals court said, "there is no constitutional right to place an invalid initiative on the ballot."

Right To Sue
Reed said he would argue before the appeals court that the city had no right to sue over the proposed ballot measure unless it did so with someone who had a real interest in what the measure would accomplish.

A developer hoping to build a project on land the city Redevelopment Agency was looking to acquire through eminent domain would be one such partner, he said.

"The city doesn't have anything to lose" with passage of a ballot measure, "because their interests are supposed to be their voters' interests," Reed said.

Priamos said the appeals court's tentative opinion makes cities' rights clear.

Riverside CA Press-Enterprise: http://www.pe.com