Senate had the right idea: Akron OH Beacon-Journal, 7/16/07

Letter to the Editor

By Michael G. McFeely, Willoughby

The Ohio House was wrong to block efforts to reform eminent-domain law with a constitutional amendment. Many of us were dismayed when the U.S. Supreme Court refused to curb abuse of these powers, and we had hoped the states would step in to strengthen property rights.

Gov. Ted Strickland signed compromise legislation July 10. But the Ohio Senate was on the right track in its efforts to reform eminent-domain law. Local governments have not respected property rights, so these rights must be given clearly written constitutional protections that override home rule.

Your June 26 editorial headlined ``Hard bargain'' called for the House to hold firm against the Senate's version of eminent-domain reform, which you described as onerous, arguing that local entities do not recklessly use eminent domain. Let's take a look at how local governments have used and abused eminent domain.

When the Ohio Supreme Court ruled last year on eminent-domain use in Norwood, it found that local officials had abused their authority, and the court restored ownership of homes and businesses to their rightful owners. The significant thing to note about this ruling was that it was unanimous, which means that the issue wasn't even a close call, and yet Norwood officials had voted to trash property rights. In this case, a retired couple were driven out of their home when the city applied its version of eminent-domain law.

In December, the city of Cuyahoga Falls enacted a blight definition with conditions that include age, obsolescence, lack of open space, density, street layout, lot layout, proximity to other blighted properties, and something called ``incompatible land use.'' A parcel only has to have two of these criteria to be declared blighted and taken. Property rights should not dissolve in so many subjective ways.

The owner of Akron's Katmandu restaurant was threatened with the taking of his business by eminent domain for a car dealership, before selling under duress. Was that really necessary?

In Cleveland, a developer made only a half-hearted attempt to purchase property in the Flats and instead just handed over the acquisition of land to the Port Authority with its eminent-domain powers. You can do that when you have government on your side. Was seizing property in the Flats really a ``tool of last resort,'' as your editorial described eminent domain?

In March, I testified before the Ohio Senate that if home rule were to prevail in defining blight, local governments would be both the rule-making authority and the beneficiary in eminent-domain cases, hardly a fair and impartial environment for property owners. Local governments that are trying to raise the tax base and thereby tax revenue - and governments never say they have enough tax revenue - would continue to set the bar low for defining blight and the taking of homes and businesses.

Akron OH Beacon-Journal: http://www.ohio.com


'Pioneers' put out by Riverfront renaissance: Wilmington DE News Journal, 7/17/07

Small-business owners say they deserve better than eminent domain

By Adam Taylor

A new plan by the city to use eminent domain to condemn as many as 62 properties in southern Wilmington has some of the owners feeling that they are being kicked out of the renaissance taking place in that part of the city.

City officials have a new vision for the part of southern Wilmington near the $200 million Christina Landing development. But their vision of a neighborhood full of town homes, shops and office buildings does not include some of the area's existing businesses, such as Osborne's Auto Service, located across the street from the upscale residential complex.

Owner Ed Osborne said he feels kicked to the curb.

"I was down here when no one else wanted to be," he said. "I keep a clean business, and called the police when pimps and prostitutes were here. I feel as though I was part of the small group of pioneers who stayed to keep this part of the city from becoming totally uninhabitable."

Mayor James M. Baker said the property owners' concerns are "nonsense." The city has to grow, he said, and southern Wilmington is one of the undeveloped places where that can happen.

"This doesn't have anything to do with being mean and arrogant, and smacking people in the belly," he said. "This is the process we need to have in place to begin fair negotiations with them."

If property owners don't sell voluntarily, the city could seek to condemn them. To do that, the city would have to prove, among other things, that there is a shortage of housing in the area, that the properties represent neighborhood blight, and that the acquisition of the properties is needed to meet the new community objectives.

The city would have to make its case at condemnation hearings in Superior Court, and the rulings could be appealed.

Three steps to help plan along
City Council introduced three measures last week to allow the plan to proceed. One is a proposed ordinance to change the South Walnut Street Urban Renewal Plan; the second an Aug. 23 public hearing on the proposed changes; and the third is an agreement for the Riverfront Development Corp. to oversee the changes if they go through. The corporation is a state-funded agency that has overseen a decade of redevelopment on the Christina Riverfront.

The city's Planning Commission will discuss the proposed changes to the urban renewal plan at 6:30 tonight at the Louis L. Redding City/County Building at Eighth and French streets.

There are no residential properties among the 62 the city wants to acquire, and most are vacant.

Using them for homes and shops instead, city and state redevelopment officials think, would help achieve the critical mass needed for a thriving neighborhood. More residents would attract more restaurants, boutiques and other stores necessary to make the decade-long riverfront-transformation experiment a success.

Attorney Rich Abbott represents five of the property owners, including Osborne.

"This is the city's way of getting land on the cheap for the big private developers who have interests in expanding down there," he said.

Chief among those would be Buccini/Pollin Inc., the Wilmington developer responsible for Christina Landing and the $500 million Justison Landing mixed-use development going up on the north side of the river. Rob Buccini acknowledged he's interested in the land and will respond to a request for proposals the Riverfront Development Corp. will issue if the changes are approved by the city.

Buccini said he's confused by the controversy.

"I hope the property owners there are appreciative of the significant wealth that the construction of the Christina Landing development has afforded them," he said. "Before we were there, that land was worth nothing. Now it's worth several hundreds of thousands of dollars an acre or more."

Attorney has alternate plan
Abbott said the city is trying to sneak the changes through in the dead of summer, when people are not paying close attention to government affairs or are away on vacation. Abbott, a former New Castle County councilman, said it's an old trick that works.

Baker said the process has been open and there was no devious plan to put it into the legislative pipeline now.

Buccini said no one should be surprised. Much of the area was rezoned four years ago to pave the way for these changes, and two years ago some of the junkyards in the area were forced to leave.

Earlier this year, the city held a community meeting to address the urban renewal plan. Osborne attended that meeting, but said there was no mention of taking properties by force. The first he realized that could happen was when he got a letter from the city earlier this month announcing tonight's meeting and stating his property might be acquired by the city "using its powers of condemnation as a slum clearance and redevelopment authority."

Abbott said he'd like the opportunity to convince city officials of his alternative idea that would please most of his clients. He said the light industrial zone on now-undeveloped land that is in the plan should be expanded to include frontage on Walnut Street. The existing businesses could relocate there through a land swap.

Baker said it's premature to discuss such things. The city doesn't know how many of the 62 properties it will eventually need and it could be years before the city gets enough money to acquire them.

That's all the more reason the process needs to be slowed down or stopped for now, said state Rep. Dennis P. Williams, D-Wilmington North.

"I support the mayor's effort to move the city into the 21st century, but there has to be fairness across the board," he said. "The city should put a hold on this, and go to the table with each property owner and negotiate with them first."

Baker said the property owners would be paid fair market value for their properties, but Abbott predicts his clients would get much less.

'This place is my life'
Abbott said the values of their businesses aren't factored into the appraisals, and many of them need to stay where they are to retain their customers.

The city's effort comes at a time when city officials have put an unprecedented amount of attention and resources into long-underserved southern Wilmington. There is a comprehensive development plan to revitalize the area during the next 25 years that city officials say the new changes will mesh with. And Southbridge, southern Wilmington's sole residential area, recently was named as the neighborhood that the
Wilmington Hope Commission will saturate with social services in an effort to reduce violent crime.

Osborne said he wants to give his business to his sons, with the possibility of their passing the business down to their children.

"I don't mind being moved nearby, but I don't want to outright sell," he said. "The most important thing in my life is my family, and this little piece of dirt I own has allowed me to provide for them. A little bit of money won't help me be able to pass on my family business. This place is my life.

"I feel like I'm being stripped of anything I worked for in my life, including being part of this community."

Wilmington DE News Journal: http://www.delawareonline.com

A Reversal of Blight - Eminent domain and redevelopment: New Jersey Eminent Domain Blog, 7/2/07

By Bill Ward

Recent case law suggests that more than a few municipalities declare blight based on reports that cite statutory language without analysis of the property and the categories selected, and most importantly, without linking the criteria to the health, safety and welfare of the community. Many experts presented by the municipalities do not provide substantial, credible evidence to support a conclusion that the study area is in need of redevelopment. These cases and others are discussed in my recent article, Defining Blight: First Steps in the Redevelopment Process published in the New Jersey Law Journal.
  • Prior to the Kelo case, Camden County Assignment Judge Francis J. Orlando, Jr. set aside a municipal decision designating an apartment complex as an area in need of redevelopment in Spruce Manor Enterprises v. Borough of Bellmawr 315 N.J. Super 286 (Law Div. 1998). No evidence was presented to show how obsolescence, faulty design, excessive land coverage or obsolete layout was detrimental to the safety, health, morals, or welfare of the community.

  • In Winters v. Township. of Voorhees 320 NJ Super 150 (Law Div 1998), Judge Orlando reversed a blight designation on an 18-acre municipal-owned tract that the township intended for construction of an ice rink. Voorhees argued that the revision of the statute in 1992 created two categories of land eligible to be designated as in need of redevelopment: land that is used by public entities and unimproved land that is not likely to be developed by private capital. The township argued that municipal ownership is all that is needed in order to declare the site a redevelopment area. Judge Orlando disagreed, concluding that ownership of a tract of land by a municipality is not, standing alone, sufficient to support a redevelopment designation; it additionally requires substantial evidence that the land is not likely to be developed through the instrumentality of private capital in order to declare a site a redevelopment area. 320 N.J. Super at 156.

  • In a post-Kelo case, ERETC LLC v. City of Perth Amboy 381 NJ Super 268 (App Div 2005), the blight designation was reversed because city’s decision to designate the property as in need of redevelopment was not supported by substantial evidence. The court noted:
    You can’t just say by reason of dilapidation you’re in an area of redevelopment. You have to indicate how that’s detrimental to the safety, health, morals, or welfare of a community. And in order to demonstrate that … that’s where the evidence comes into play. That could have been demonstrated or possibly demonstrated through zoning violations, building code violations, fire reports, something of that nature. Again, that wasn’t present in the report. (381 N.J. Super at 275)

  • In Quagliariello v. Township of Edison (L2922-02), Middlesex County Superior Court Judge James Hurley set aside the township’s determination that the property, a charter bus facility, was an area in need of redevelopment. Edison was unable to demonstrate any public purpose for the taking and would have used its eminent domain powers for private purpose to build a Walgreen’s Pharmacy. The township’s expert only made exterior inspections of the property. As Judge Hurley noted in his opinion:
    The totality of the Township’s complaints essentially amount to a pothole in the pavement, two boarded-up windows, a few cracks, and a gutter that needed to be cleaned. The Subject Properties were kept in better condition than many people keep their own homes.

  • Judge Richard J. Donahue dismissed a blight designation for a Bergen County trailer park in 2005, concluding that the municipal planner failed to address the important criteria of the LRHL. In LBK Associates, LLC and Save Our Homes v. Borough of Lodi, (Law Division, A-001829-05), now in the Appellate Division, the planner failed to do interior inspections of the trailers or cite specific safety violations. Judge Donahue said that a mere finding of a need for redevelopment is not enough, and there would have to be an additional showing of public purpose.

  • In an unreported decision, Township of Bloomfield v. 110 Washington Street Associates, Essex County Assignment Judge Patricia Costello dismissed the eminent domain complaint against 110 Washington Street. None of the criteria cited by Bloomfield were connected to health, safety, or welfare of the community:
    In essence, the municipality took the brief description of the property (which arguably was underutilized, vacant and externally neglected as a result of the municipalities’ own actions – see supra), and concluded without any further analysis that this condition equated to a detriment to the public health, safety and welfare. (page 6)

All of these cases paved the way for Gallenthin Realty v. Paulsboro. Contrary to Justice Kennedy's statement in the Kelo arguments, blight is not in the eye of the beholder. Defining blight requires substantial evidence. The Gallenthin opinion will be read carefully by trial and appellate judges when they consider municipal attempts to blight properties under the criteria in N.J.S.A. 40A:12A-5 (a-h).

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

Oak Forest has no plans for eminent domain: Oak Forest IL Star, 7/15/07

By Michael Drakulich

Oak Forest's attempt to extend a tax increment financing district to make way for new development cleared another hurdle last week.

At the same time, though, city officials found themselves having to assure residents living within the district near 159th Street and Central Avenue that any planned development would not force them out of their homes.

The city held a public hearing on the district's TIF extension before last week's city council meeting. Such a hearing is a legal requirement for creating such a district or amending its conditions, giving residents a chance to voice their concerns.

Residents living on Carol Belle Trail, which lies within the district, wanted to know how they would be affected.

Kim Oboikovitz asked specifically whether the city would possibly use eminent domain powers to force residents out and bring new development in.

City officials said there were no plans to move residents. The city is targeting development for the vacant land now used for Oak Fest, and perhaps part of the church property, Mayor JoAnn Kelly said.

The city wants to extend the life of the district for 12 years, but there was some debate among officials as to when the current TIF district expires.

Some said the current TIF had four years remaining on it, but city administrator Steve Jones said he believes it expires in 2009.

The district lies near 159th Street and Central Avenue. It is occupied by Food 4 Less, Midlothian-Oak Forest United Methodist Church, the Oak Fest site and a residential subdivision.

The city is seeking an extension to attract potential developers to the site. Officials have said without it, finding a developer for the site would be much more difficult.

The revenue generated from the TIF district could be used for continued infrastructure improvements.

Jones said there are two steps left before the extension can go into effect.

First, Gov. Rod Blagojevich must approve the extension. Then the city will have to approve a series of resolutions, officially adopting the extension and a revised redevelopment plan.

Jones said among those resolutions is declaring a surplus for local taxing bodies.

He said tax revenue generated by developments built since 1986, such as the homes on Carol Belle Trail and a portion of Oak Forest Commons, would be declared a surplus in the TIF fund.

Those surplus funds would then be distributed to local taxing bodies, such as Bremen High School District 228 and Arbor Park School District 145, among others.

Jones said he expects the matter to come before the city council no earlier than next month.

Oak Forest IL Star: http://www.starnewspapers.com/oakforest

Neighborhood Fights Project with Eminent Domain Proposal: WFSB-TV3, Waterbury CT, 7/13/07

Project In Waterbury Would Add 1,200 Condos

Neighborhood advocates are asking Waterbury [CT] officials to consider buying land out from under developers using eminent domain.

The Waterbury Neighborhood Council has asked the mayor's office to review a strategy that would target properties where developers are pursuing permits for unpopular housing projects.

In the past year, developers have filed applications that, in total, would add more than 1,200 condominiums to Waterbury.

Council members have opposed the projects, saying the proposals would overwhelm city schools and degrade neighborhood character.

WFSB-TV3, Waterbury CT: http://www.wfsb.com

No eminent domain for Market Street: Salt Lake City UT Tribune, 7/12/07

Redevelopment board's 3-3 vote means the city won't kick holdouts out of property for project

By Cathy McKitrick

In spite of the efforts of some to tout the positive benefits of the eminent domain, a 3-3 vote of the Redevelopment Agency (RDA) board axed its use in the mixed-use Market Street urban renewal project.

The debate heated up as Redevelopment Agency board members - the City Council serving in that role - held polarized opinions about the weighty tool whereby a government entity can force property owners to sell against their will.

"I think it sends a good message to the community that an RDA project can be done without that threat," said Councilman Shane Siwik.

"It would look pretty in the paper to say this is being done without eminent domain, but there's a tax advantage to the property owner," said Councilman Bill Anderson.

"Get off your white horse," he told Siwik.

Craig Smith, attorney for the RDA, explained protections the state law now provides to property owners, including release from paying capital gains on the sale if the proceeds are reinvested within a specified time period.

"I've done projects both ways," Smith said. "On occasion, it's a helpful tool in the case of holdouts."

The proposed Market Station project - which would include a variety of housing units, office and retail space - would extend from State Street to Main Street, between 2100 South and Truman Avenue (2330 South).

Developer Steve Aste, principal of the Park City-based Cascade Development Partners, said he had no plans to employ the threat.

"If people don't want to sell, we will not be coming to ask the city to exercise eminent domain," Aste said.

Councilman Casey Fitts abstained from the vote because his family owns property in the designated area.

Anderson was joined by council members Mike Rutter and John Weaver to cast votes to retain the power of eminent domain for this particular development, while Siwik, along with council members Marilyn Brusch and Rhea Goddard, dissented.

At least one property owner breathed a sigh of relief.

"I'm glad to not have that hanging over our heads," said Shannon Valdez, owner of Central Collision, a thriving business within the project's boundaries.

In a previous configuration, the Ritz Bowling Center and a few other businesses had been included in the project area. RDA members voted unanimously to exclude any land east of State Street.

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

Columbia University Confirms NO Eminent Domain Will be Sought... Columbia University, 7/11/07

...to Relocate Residents Living in Manhattanville Apartments

News Release

Columbia University has announced that it would not ask the Empire State Development Corp. to use its condemnation authority as a way of evicting residential tenants now living in the 132 apartment units in residential buildings on the 17 acres of the proposed expansion area.

“Columbia University will not ask the state to invoke eminent domain to evict tenants living in these 132 residential units in the proposed expansion zone in Manhattanville,” said Senior Executive Vice President Robert Kasdin, reaffirming comments made on Monday before the City Planning Commission. “We are absolutely committed to ensuring that these community members will have equal or better affordable housing in the area, and we are working to achieve this result.”

Kasdin also made it clear that this includes a commitment to work with New York City’s Department of Housing Preservation and Development (HPD) to provide cooperative units to those occupants eligible to purchase units through the city’s Tenant Interim Lease (TIL) Program. As a result, the TIL participants would not lose any of their rights under the program because of relocation.

On Monday, July 9, Columbia University presented its rezoning proposal for the old manufacturing area of Manhattanville in West Harlem in a special meeting of the New York City Planning Commission. Kasdin explained to commissioners that the University’s continued goal is to acquire all commercial and residential property through the kind of win-win negotiated agreements it has already reached with the great majority of private owners, including a number of business owners who originally said they would not sell to Columbia.

“The residents of West Harlem have been extremely concerned about the impact of Columbia University’s plans to expand its campus in the West Harlem area over the next 25 years,” said City Councilmember Robert Jackson. “I have facilitated discussion between the University and the community in order to address concerns ranging from secondary displacement, to traffic patterns and the bulk of buildings, to the environmental impact of proposed scientific research facilities, among others. No potential problem has been more threatening for the residents of West Harlem than the use of eminent domain. I am pleased today that Columbia University is exhibiting a level of respect and awareness by choosing not to seek the application of eminent domain against the 132 residents living the area of the proposed expansion. I look forward to continuing to work with the University and the community to address the myriad of other challenges associated with Columbia’s proposed expansion.”

The site of the proposed expansion of University facilities, which would occur over the next quarter century, is a 17-acre area just north of Columbia’s historic Morningside Heights campus and consists primarily of the four large blocks from 129th to 133rd streets between Broadway and 12th Avenue, including the north side of 125th Street. The new facilities would also include three properties on the east side of Broadway from 131st to 134th streets. The majority of the construction in the proposed initial phase of the project would occur on the block bounded by 129th and 125th streets on the south and 130th Street on the north, between 12th Avenue and Broadway.

Kasdin did not remove the possibility of requesting that the state invoke eminent domain to assemble the few commercial properties that remain in the proposed 17-acre expansion area. Columbia’s ownership of these acres would not only allow for the creation of publicly accessible open spaces, but also for the construction of new buildings that will be serviced by a large contiguous underground space that houses such essential services as parking, loading and energy facilities.

This approach allows a proposed urban design for the area that is environmentally friendly, that meets the University’s academic programming needs with a building scale lower than existing neighboring buildings, and that is focused on creating vibrant urban street life instead of driveways, loading docks and other functions that inhibit openness and civic interaction on sidewalks. This will also allow the University to construct the kind of academic research buildings with the floor space needed for the type of research and study that confronts some of the most critical health issues facing the community and world such as strokes, Alzheimer’s and Parkinson’s disease.

Columbia projects that the expansion in Manhattanville will create 6,000 new University jobs, as well as an average of 1,200 construction jobs per year for nearly a quarter century. The University has a strong record of employing community residents with a wide range of skills and experience in the workforce, as well as the engagement of minority-, women- and locally owned contractors – many of which are already playing key roles on Columbia’s architecture and construction management teams. Over the past four years, more than one-third of University spending on construction, repair and maintenance – worth more than $65 million in 2006 alone – went to minority-, women- or locally owned firms in Upper Manhattan or the South Bronx. To learn more about the University’s proposed expansion, visit www.campusplan.columbia.edu.

Columbia University: www.columbia.edu

Eminent Domain Reform To Be Introduced in U.S. House of Representatives: Institute for Justice, 7/12/07

Press Release

Property Owners Still Left Unprotected from Federally Funded Abuses Two Years After Kelo

Today, Reps. Maxine Waters (D-CA) and F. James Sensenbrenner (R-WI) will introduce the Private Property Rights Protection Act of 2007 to stop taxpayer funding of eminent domain abuse. They will announce the bill at a press conference at 1 p.m. today in Room 2226 of the Rayburn House Office Building.

This bipartisan bill would counter the effects of the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, which allows governments to use eminent domain to seize private property on behalf of private developers in hopes of increasing tax revenue. The Act would deny for two fiscal years economic development funds to state and local governments that use eminent domain for private development.

In 2005, the U.S. House of Representatives overwhelmingly passed H.R. 4128, the Private Property Rights Protection Act of 2005, by a vote of 376 to 38. The bill was co-sponsored by representatives from across the political and ideological spectrum, including Reps. Waters, Sensenbrenner, John Conyers Jr. (D-MI), and Henry Bonilla (R-TX). Despite unprecedented bipartisan political and public support, the bill languished in the Senate Judiciary Committee and ultimately died.

“Federal protections from eminent domain abuse are long overdue,” said Bert Gall, a senior attorney at the Institute for Justice, which argued the Kelo case on behalf of the homeowners. IJ and the Castle Coalition — a nationwide grassroots organization of property owners and activists dedicated to stopping eminent domain abuse — have led the fight to reform state and federal eminent domain laws. “Even though the vast majority of Americans oppose the abuse of eminent domain for private development, the federal government still funds that abuse.”

June 23 marked the two-year anniversary of the Kelo decision. In every poll since that ruling, the public is overwhelmingly against eminent domain for private use. Forty-two states have passed eminent domain reforms reining in the Kelo decision, including 10 states where voters passed ballot measures by wide margins in last year’s elections.

But many of those reforms are inadequate, and only Congress can stop the federal funding of eminent domain abuse.

“Your security in your home, business or church should not depend on your zip code,” said Dana Berliner, an IJ senior attorney. “The Private Property Rights Protection Act of 2007 strikes the right balance. It prevents Americans’ federal tax dollars from being used to kick them off their land for private development, while allowing federal money for traditional public uses like roads and post offices.”

Federal funds were used in the New London, Conn., project that took away the homes of Susette Kelo and her neighbors to replace them with private development, as well as many similar projects across the country.

“My battle started to save my little pink cottage, but it has rightfully grown into something much larger—the fight to restore the American Dream and the sacredness and security of each one of our homes,” said Susette Kelo. “Our federal tax dollars shouldn't be used to take away our homes and businesses so that developers can build shopping malls and condominiums."

According to a new study using U.S. Census Data, eminent domain for private development falls hardest on the poor and minorities, just as Justice Sandra Day O’Connor warned it would in her Kelo dissent. “Victimizing the Vulnerable: The Demographics of Eminent Domain Abuse” was released by the Institute for Justice and is available at www.ij.org.

“Eminent domain abuse disproportionately targets the politically disenfranchised: the poor, less-educated and minorities,” said Steven Anderson, director of the Castle Coalition. “Unsurprisingly, tax-hungry governments and land-hungry developers prey on those that are less likely to be able to defend themselves. It is vital that the federal government stop subsidizing this blatant abuse of power.”

Institute for Justice, 901 N. Glebe Rd, Suite 900, Arlington VA 22203
(703) 682-9320, Fax (703) 682-9321

Commission Looks To Condemnation Limits: Leesburg VA Today, 7/11/07

By Dusty Smith

The Loudoun County Planning Commission continued its review Monday of a comprehensive plan amendment initiated to remove the term "redevelopment" and provisions for town centers east of Rt. 28 from the comprehensive plan as well as restrict the county's use of eminent domain for economic development purposes.

One of the issues that arose from the meeting that may continue to be part of the discussion is how to define economic development. There was also a question about whether state law or local ordinances are more reliable, which was prompted by a debate about whether to rely on state laws governing the use of eminent domain or derive a list that would be specific to Loudoun.

Commissioners Suzanne Volpe (Sugarland Run) and John Elgin (Leesburg) disagreed about whether a reference to the state eminent domain law in the county ordinance should merely list the code section or include details of its provisions. Elgin said he was concerned some of the issues were being raised because it's an election year.

"I don't think this should be a political football," he told Volpe. "That's what I hear you moving toward." He wants just the code section referenced.

Volpe said she was just trying to make sure the comprehensive plan, which serves as a guide to the county's development vision, was clear about its intent on the subject.

Supervisor Mick Staton (R-Sugarland Run), who initiated the CPAM, attended the meeting and explained why he did not believe the county should rely on state law.

"Simply because the state code says we can't do it now doesn't mean the state code can't change in the future," he said; however, if the county spells out its restrictions from using eminent domain for economic development, "the guiding principle that we will not use eminent domain for this purpose will apply."

Elgin said the county should be able to see a change to the state code coming because it takes time for state law to change, and that the board of supervisors "can act a lot quicker than any body in Richmond can act."

Staton said some bills pass late in the General Assembly session that include elements that most people don't find out about until weeks or months later.

"You could have a last-minute change in Richmond that no one notices," he said, whereas the board of supervisors must issue public notices and hold public hearings before making such changes.

Some members of the commission pointed out elements of the state eminent domain law to which area residents might object, such as the use of the tool for medical waste facilities or entities that use or store radioactive material.

Commissioners voted 5-2-2 to have Robert Klancher (Broad Run) and Teresa White Whitmore (Potomac) develop a list of uses for which eminent domain would be permitted in Loudoun. Nancy Doane (Catoctin) and Kevin Ruedisueli (At Large) voted against the motion, while Elgin and Barbara Munsey (Dulles) were out of the room for the vote. That's the same approach the state used to avoid trying to define economic development. Rather than restrict its use for economic development, commissioners will identify those things for which it can be used.

Munsey said she would like to make sure whatever is adopted not only restricts the use of eminent domain for the demolition of homes in eastern Loudoun for higher-density development, but that it also restricts its use to reduce density in other parts of the county, such as the Rt. 50 corridor. She said there are preservation groups that may be interested in tearing down existing homes to redevelop an area to its state during some previous historic period.

Staton said he just wants to make sure the ordinance includes language that accomplishes his goal, which is to keep developers from destroying existing communities to make way for high-rise development. "Not only do we tell developers what we don't want ... we provide backing for the board to deny that request," he said.

The commission voted 8-0-1 to send the item to another work session

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

Auburn council nixes expropriation benefiting private developers: Auburn CA Journal, 7/11/07

By Gus Thomson

The Auburn City Council has sent a clear message that it isn't planning to use expropriation powers at the expense of local property owners.

On Monday, the council voted 5-0 vote in a late-night decision to bar the Auburn Urban Development Authority from expropriating land to turn over to a private developer.

The council is required to develop a plan that includes a description of potential uses of eminent domain to acquire property in the city's redevelopment area. That portion of the city now takes in areas skirting Nevada Street, as well as Old Town and Downtown. Councilmembers opted for a proposal that leaves the opportunity open to expropriate land for public purposes like road widening and schools.

But any expropriation of privately held land to benefit another private entity will be forbidden.

The council faced a crowd of about 80 people on Monday - all in favor of a clear decision keeping current and future councils from using eminent domain to take land from one property owner at market value to turn over to another private entity.

Councilman Kevin Hanley said not having that check on eminent domain would lead officials to make judgments on properties that favor a major developer over a smaller, locally owned "mom and pop" business.

Auburn CA Journal: http://www.auburnjournal.com

Consultant doesn't address objection on eminent domain: San Diego CA Union-Tribune, 7/11/07

By Tanya Sierra

[National City CA] officials last night postponed a discussion to renew their eminent domain authority because their consultant failed to respond to a legal objection filed in June.

Council members expected to address objections raised about their intent to extend their condemnation authority for 12 more years, but realized late yesterday afternoon that their consultant, Rosenow Spevacek Group Inc., overlooked a 14-point, 34-page objection.

Instead, the consultant – which prepared a blight analysis of the redevelopment area – submitted responses to a six-volume appendix filed to support the objection.

“The consultant didn't address it, and we don't know the reason for that,” said City Attorney George Eiser.

No representatives from the Rosenow group attended the meeting.

Officials will convene a meeting at 5 p.m. tomorrow to finish the discussion.

The City Council held a public hearing June 19 seeking to extend the time it could condemn private property. The authority expires next month, and officials said the extension is a customary procedure.

But the routine decision has drawn protesters from inside and outside the city who say National City is abusing its power.

Eminent domain allows government to take blighted private land to make way for new development. Owners are paid market rate for the properties.

A popular youth mentoring and boxing program, the Community Youth Athletic Center, is in the path of a proposed condominium project. Attorneys from the Institute for Justice, based in the Washington, D.C. area, filed the lengthy objection and are representing the center.

The institute represented homeowners in the Kelo v. New London, Conn., eminent domain dispute in 2005. In that case, the U.S. Supreme Court ruled governments could force private property owners to sell their land to spur economic development.

Dana Berliner, an attorney with the institute, said the consultant's blight study and preliminary responses to her objections were superficial.

“This response is just shoddy, and this city shouldn't put its name on that,” she said. “I've never seen a study that is this perfunctory and casual even for a small area. To have off-the-cuff generalizations of over 600 properties is insane.”

Berliner said she doubts the consultant could come up with genuine and responsible responses to her 34-page filing by tomorrow.

Before the meeting, Mayor Ron Morrison said he was confident the city would overcome the objections.

“This is a group that is looking for a West Coast presence,” Morrison said. “Look at what they did back in Connecticut. They lost that case, and they're still hanging that on their crown like it's a victory.”

Morrison said the institute attorneys are “cross-country ambulance chasers.” He said they cost National City taxpayers a lot of money with their voluminous written objections because of the time the city and its consultants have spent reviewing the documents.

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

Kansas utility seeks exemption to Oklahoma oversight: Tulsa OK World, 7/10/07

Associated Press

A Kansas company has filed a request with the Oklahoma Corporation Commission that would allow it to claim eminent domain when it builds transmission lines in the state.

The Corporation Commission said the request by Topeka-based ITC Great Plains LLC, an electric transmission developer, took the unusual step of asking for exemption from ratemaking oversight. The request notes the company is asking for the exemption because it does not serve customers directly.

"It would appear at this point this is a new frontier," commission spokesman Matt Skinner said. "I can say for the record that no one here remembers anyone filing something like this before."

A spokesman for Oklahoma Gas and Electric said that if the Corporation Commission approves the request, it could hurt existing utilities in Oklahoma and raise rates.

"As a matter of policy, does the state want to grant eminent domain to a company based outside the state that may not be required to keep the best interests of Oklahomans in mind?" OG&E spokesman Brian Alford said.

ITC Great Plains acquired utility status in Kansas in June and is applying for that status in Texas with that state's Public Utility Commission.

ITC Great Plains' president, Carl Huslig, said the company's desire is to provide a "nondiscriminatory" electric pipeline open to any generator or load.

"We are solely focused on transmission," Huslig said. "That means we want to own it, construct it, maintain it and operate it for the life of the project. We are not a company that's here to build it in five years to sell it for financial gain."

The company is seeking to fill a niche as governments and utilities look for ways to transport energy from windy, rural areas with little transmission capacity to population centers.

"It's just an evolutionary process, and now is the point where parties such as ITC Great Plains are finding a niche in the market," said Les Dillahunty, the vice president of Southwest Power Pool, an association of officials and utilities from seven states that coordinates transmission expansion. ITC Great Plains is a new member of that association.

Building a transmission line would require cooperation from landowners, and Huslig said ITC Great Plains would attempt to negotiate with landowners before resorting to the use of eminent domain.

Tulsa OK World: http://www.tulsaworld.com

Landowner wants to do it his way; the city has other ideas: Minneapolis MN Star Tribune, 7/10/07

Land owned by a Rosemount veterinarian is at the center of a heated community debate over eminent domain

By Sarah Lemagie

The Rosemount Port Authority will hold the continuation of a public hearing on whether to use eminent domain to force the purchase of property owned by Kurt Hansen at 6 p.m. on Monday in the Dakota Room of Dakota County Technical College, 1300 145th St. E.

When Kurt Hansen learned three years ago that the city of Rosemount could force him, in the name of downtown redevelopment, to sell property he owned, he began learning all he could about eminent domain.

At the time, Hansen wasn't opposed to redeveloping the old house where he started Shamrock Animal Hospital in 1985. Actually, he bought the two houses next door intending to expand his clinic on the property, before opening his new hospital a few blocks away in 1996.

But Hansen, who owns half a dozen properties in downtown Rosemount and Apple Valley, wanted to redevelop the property - and reap the benefits - himself.

So he was appalled when, in 2005, the city's Port Authority passed up his plan for a new building and chose to work with another developer on commercial space and housing on the block east of Hwy. 3 and south of 146th Street.

"I could not imagine that the city wouldn't want to work with me, because it was my land," he said.

Since then, Hansen, a Danish-born veterinarian, has become a local lightning rod in the debate over eminent domain, the forced sale of private property for public purpose.

Though Hansen has described himself as a "willing seller," negotiations to buy his property have gone nowhere, frustrating Port Authority members who say the offers have been more than fair.

"You've got to be reasonable," said Rosemount Mayor Bill Droste. "If people want to make a profit far ... above market rate, I would have a difficult time using taxpayer money" to pay for land.

Failed bid for mayor's seat
In May, the Port Authority voted to consider using eminent domain to force the sale of land owned by Hansen - though not the three houses he and the city initially clashed over. After residents spoke out against plans that would force the businesses that rent the houses from Hansen to move, neither the city nor Hansen are pursuing plans that would tear the buildings down.

Instead, the authority is targeting a neighboring parcel, key to redevelopment plans, that Hansen bought last fall after its owner declined to sell to the developer picked by the city.

Don Ratzlaff, who owns a service station and truck rental business at Hwy. 3 and 146th Street, said Hansen first approached him about the property five or six years ago. He sold it in the end because of the threat of eminent domain. "I did not like the ax hanging over my head," he said.

Hansen paid Ratzlaff $450,000 in October 2006, significantly more than the city's developer offered, Ratzlaff said. Hansen, who still wants to develop the property himself, bought the land on the theory that the more he owned on the block, "the more likely they would be to work with me."

But "that's not the incentive to work with [Hansen], that's the incentive to walk away," Droste said.

The purchase came in the midst of Hansen's bid to unseat Droste last fall, a campaign he ran despite the fact that, if elected, his ownership of land coveted by the city could have created a conflict of interest. But Hansen didn't see a problem. Nor, apparently, did the 41 percent of voters who cast ballots for him.

Protesting eminent domain
Hansen's supporters describe him as a hardworking entrepreneur with the right to profit from his investments. He "takes risks and puts it all on the line and reaps benefits - and reaps benefits for the community," said Debra Kaczmarek, a Rosemount resident who has known Hansen for 25 years. Kaczmarek serves on Save Rosemount, a committee opposing the use of eminent domain that has gathered more than 3,000 petition signatures and mailed three newsletters to every household in Rosemount in the past two months.

Though he wouldn't name a figure, Hansen acknowledges that he has paid a "sizeable amount" in newsletter mailing costs, representing a "majority" of contributions to the group. The committee has five members, he said, but he's not one of them.

At a June hearing on eminent domain, about 150 people packed a Port Authority meeting at City Hall. Of the dozen who testified before time ran out, most opposed the forced sale of Hansen's property. The authority has scheduled a continuation for Monday, and a final decision on whether to pursue eminent domain could come in August.

Because of a new state law making it harder for cities to condemn property for economic development, Rosemount has a February 2008 deadline by which to act.

Droste said he's inclined to vote against using eminent domain against Hansen, pointing out that Rosemount could focus on redevelopment of city land in the nearby Genz-Ryan block or next to the new public library to be built on the old site of the Church of St. Joseph.

"We have other options and other places to go," he said.

Minneapolis MN Star Tribune: http://www.startribune.com

Judge stops DME eminent-domain hearing: Rapid City SD Journal, 7/10/07

By Dan Daly

Late Monday afternoon, 6th Circuit Judge James Anderson ordered the South Dakota Transportation Commission to stop its planned eminent-domain hearing on Dakota, Minnesota & Eastern (DM&E) Railroad's expansion project.

The hearing was scheduled to begin this morning at Hughes County Courthouse in Pierre. It was to last three days. An administrative law judge would take testimony and forward the findings of fact and conclusions of law to the Transportation Commission.

The commission has been asked to grant DM&E the right of eminent domain to extend its east-west line into Wyoming's Powder River Basin.

The railroad must cross a number of West River ranches and other land owned by people who don't want to sell. Therefore, DM&E needs eminent domain, the right to condemn and acquire land, to complete its line. Eminent domain is reserved for companies that can show the project's public good outweighs the property rights of individual landowners.

However, former Gov. Bill Janklow, serving as the attorney for several West River landowners, filed an affidavit in 6th Circuit Court arguing that the Transportation Commission's procedure for hearing eminent domain cases did not follow state law.

On Monday, Judge Anderson agreed to bar today's hearing. He also ordered the Transportation Commission and the South Dakota Department of Transportation to appear for a Tuesday, July 24, court hearing to show cause why it should be allowed to proceed with its eminent-domain case.

Rapid City SD Journal: http://www.rapidcityjournal.com

Clayton Company Gives up Expansion Plans Over Eminent Domain Setback: Missourinet.com, Jefferson City MO, 7/9/07

By Steve Walsh

Centene Corporation is going to give up on plans to expand its Clayton headquarters and will take its 900 new jobs elsewhere.

The company had lost a lengthy court battle over the planned use of eminent domain and now says it will give up efforts for what was to have been the Centene Plaza development, which would have included the company's new headquarters as well as retail space.

The company has indicated it will consider options, which could see it move some or all of its operations to another location.

Missourinet.com, Jefferson City MO: http://www.missourinet.com

Columbia Expansion Plan Debate Will Intensify: New York NY Sun, 7/9/07

By Eliot Brown

Debate about Columbia University's planned 17-acre expansion is heating up this week, with the Ivy League school and the project's opponents pushing dueling land-use proposals for West Harlem.

Columbia's $5.8 billion plan entered the city's public review process late last month, a seven-month window during which the university must win the approval of the City Council and the city's Planning Commission. The university will plug its plan at a meeting with the Planning Commission today and is holding a community meeting on Thursday, at the request of officials and community leaders, a Columbia spokeswoman said.

In an effort to curb the impact of an expansion, members of Community Board 9 are pushing for approval of their land-use guidelines for West Harlem, called the "197-a" plan, for which a public hearing is scheduled tonight.

Central to the 197-a plan is an attempt to block the taking of private land by eminent domain, the potential use of which in West Harlem has riled critics of the project and has been steadfastly and unanimously opposed by Community Board 9. While Columbia owns most of the land within the campus expansion footprint, it has asked New York's Empire State Development Corporation to declare the area "blighted" to clear the way for eminent domain acquisition of the remaining lots. "This is a land grab, pure and simple," a co-founder of the Harlem Tenants Council, Nellie Bailey, said. "They have properties elsewhere, they have land elsewhere; they have an endowment of what I understand is $6 billion."

The 197-a plan, if adopted in full, would limit the scale of Columbia's expansion, according to an environmental analysis released last month. Due to development restrictions, the analysis said Columbia could develop up to about 30% of its desired 5 million to 6 million square feet of new construction.

A spokeswoman for Columbia, La-Verna Fountain, said the university had already adopted some of the recommendations of the 197-a plan, including staggered building heights and the preservation of some existing buildings.

Community leaders acknowledge that the plan would restrict the size of the university's expansion, but say that by taking eminent domain off the table, it would maintain private property rights and preserve the jobs of residents.

"It's the community-backed plan, it's the community-based plan," the chairman of Community Board 9, Jorge Reyes-Montblanc, said.

Many other Ivy League universities have recently completed or are planning large expansions, and Columbia has said the new campus development is necessary for it to compete for top talent, both among academics and students. Included within its plan is space for biomedical facilities, the business school, and student housing.

A vote on the expansion and the 197-a plan from Community Board 9 is expected in late August, though the board's recommendation is non-binding.

The state expects to complete the blight study, a required step for the use of eminent domain, some time this summer

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

Shop owners fear the loss of livelihood: Cherry Hill NJ Courier Post, 7/8/07

By Eileen Stillwell

Veteran Broadway merchants have been dragged through race riots, drug wars and bottomless economic pits, but nothing compares to Cooper University Hospital's current land rush, which prompted one shopkeeper to call these "the worst of times."

"Cooper is playing hardball with us, but we don't want to leave," said David Lee, whose parents have owned a variety store on the south corner of Broadway and Martin Luther King Boulevard for more than 30 years.

"This street is still viable and as small business owners we are the backbone of this city. At the very least, we pay taxes and Cooper doesn't," said the Voorhees resident, who fears the family business with be replaced with a massive medical complex.

Iconic stores like Broadway Eddie's have closed without a peep, fueling speculation among survivors about who is selling to whom?

Lynn Warhoftig, widow of Broadway Eddie, who ran a string of stores on Broadway for three decades, declined to comment about the future of her Broadway real estate. Warhoftig closed four stores without warning in April.

"I'm in the middle of closing a deal now. If it falls through, I'll let you know. But right now, I can't talk," said Warhoftig, of Cherry Hill.

Lynn Brown, president and CEO of Planned Parenthood of Southern New Jersey, said Broadway needs a transfusion of new buildings and new types of retail to support the growing medical community.

Planned Parenthood pioneered new development in the area in 1995 when it built a $2 million building at Broadway and Benson, instead of fleeing to the suburbs.

"Cooper's long-range plan is stepping into the future. It will make the downtown a place where people can feel safe and proud to work," Brown said.

In December, Cooper hired a real estate appraiser from Turnersville to notify businesses of its desire to acquire their properties, if necessary through eminent domain. Appraiser Steven W. Bartelt requested individual meetings with business owners and access to all documents pertaining to each property, including income statements for the past three years.

"We have built this business up little by little and now they want to take it away. How can this happen in America?" asked Chung Choi, proprietor of a men's clothing store at 220 S. Broadway since 1978.

"They are building a parking lot on one of Broadway's best blocks. This will be bad for Broadway business," said Choi, who was educated in South Korea as a nuclear engineer.

Charles Lyons, Camden's chief of planning, fired off letters to Broadway's business community saying that as a private hospital, Cooper does not have the authority to exercise eminent domain, that the requests for information were unreasonable and that letters were sent "unbeknownst" to him. He also instructed the appraiser to cancel all appointments and send no more letters.

The clash between the city and one of its oldest institutions has shopkeepers frightened and confused. Even Lyons, who has been in Camden planning for nearly 20 years, is uncertain about who is really driving this evolution that could include a medical school, science building and enough new office space to move Cooper's 375 employees from Cherry Hill back to Camden.

"UMDNJ (University of Medicine and Dentistry of New Jersey) is a public teaching institution with the power of eminent domain. This medical school is supposed to be for them, but they have been silent. I think Cooper is pushing the envelope, taking advantage of turmoil at UMDNJ and new leadership at CRA (Camden Redevelopment Agency)," said Lyons.

John Kromer replaced Arijit De in January as executive director of the Camden Redevelopment Agency.

"To threaten anyone with eminent domain is unnecessary and outrageous. It is always a last resort. For us to do it, we need approval by city council and, so far, it has said no. UMDNJ could do it on its own. It does not even need the city to move forward. It seems Cooper is pushing us, so the city looks like the bad guy. So far, the city has approved clearing the 400 block of Broadway on the north side of Broadway for a medical school and science building. Council has approved the use of eminent domain on six businesses and two private residences, if the owners refuse to sell," said Lyons.

Approved two years ago, the city's redevelopment plan for the rest of the business district moving toward Martin Luther King Boulevard is flawed, said Lyons, because it calls for demolishing two blocks of retail on both sides of Broadway and replacing them with six-story buildings to house new storefronts on the ground floor with offices above. Presumably, one side or both would be owned by Cooper Health System.

"Displaced business owners do not want to return as tenants paying high rents," said Lyons.

The only compromise worth exploring is the possibility of dividing the new retail space into condominium units so businesses could buy them if they want, he said.

Another move in what appears to be a master chess match is the redevelopment plan for Lanning Square, which includes the north side of Broadway.

City Council had asked that a vote on the plan, which includes the acquisition of about 80 private properties, be delayed until after the May election. No action was taken.

"Whoever is in charge here really needs to come forward. Is it UMDNJ or Cooper? We're trying to help Cooper, but is the med school project for real, or could people be displaced for nothing?" asked Lyons.

If a four-year medical school does not go forward in Camden, the existing facilities for the approximately 110 third- and fourth-year medical students attending class in Camden will be inadequate, according to Cooper Executive Vice President John P. Sheridan Jr.

Sam Steingart, owner of Broadway Jewelers for 15 years, said the stakes are rising and the rules are becoming less clear. "It's time for us to get a lawyer to represent us as a group," he said.

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

Salon joins county debate on eminent domain: Gloucester County NJ Times, 7/8/07

By Stephanie Brown

Growing up, Jennifer Stachiotti had one dream.

"I always wanted to own a hair salon ever since I was a little girl," said the Glassboro native.

But Stachiotti's path to her dream intersects the path of a man who says he had his own dream, but now contends that dream has turned nightmarish because of eminent domain.

It started for Stachiotti when, after working as a hair stylist for 15 years, the wife and mother of two decided to take a risk and open her own salon.

Looking for a location, she immediately turned to her hometown of Glassboro.

"I wanted to be in the heart of this town," said Stachiotti, whose parents used to own a light fixture shop on East High Street.

Two years ago, she opened Turning Heads Salon and Spa, located at 213 W. High St.

"I walked in here and I just knew this was the place for me," said Stachiotti, who signed two, three-year leases with the property's owner, Suleiman Arifi.

Now it seems that her dream may come to fruition much sooner than she anticipated.

The borough plans to sell her the West High Street property, which houses the storefront and two apartments, for about $225,000.

The borough acquired the property through eminent domain, according to court documents dated March 13.

Arifi, 77, bought the property in 1991 and has lived on-site for the past 10 years.

Having escaped communist Yugoslavia more than 40 years ago, it was Arifi's dream to make it in America.

He never expected his property to be seized and thinks the borough is taking advantage of his age and failing health.

"I live here and I'm making a business here," Arifi said. "How can they do this to me in America?"

The 2005 U.S. Supreme Court's Kelo vs. New London (Conn.) ruling said municipalities can acquire private property through eminent domain as part of "a carefully considered development plan."

Glassboro's authority to acquire the property was enacted five or six years ago when the borough designated Arifi's property as part of the Rowan Boulevard redevelopment area, said James Maley, the borough's economic development attorney.

A building in the redevelopment area can be in fine shape, but still be condemned because it does not "meet the redevelopment criteria," said Maley, who represented Paulsboro in the Gallenthin vs. Paulsboro eminent domain case.

As to why the borough has chosen to pursue Arifi's property in particular Maley said, "That's a policy call."

"My understanding is that, for maintaining it as a use that's consistent with the area, the borough thought it should acquire it," Maley said.

Borough Administrator Joe Brigandi Jr. has said that borough plans for that section of High Street include creating a concentration of service-oriented businesses and that the hair salon would be a perfect fit.

The deteriorating condition of Arifi's property was another reason why the borough pursued it, Maley said.

Arifi has been in violation of numerous construction codes dating back to at least 2002, according to documents obtained by the Times.

Violations range from a "broken toilet seat" and "severe cockroach infestation" in 2002 to "siding is dented" and "roof covering appears deteriorated" in 2006.

Because of the code violations, Arifi was never able to receive the borough's facade grant something Stachiotti said she desperately needs for her business.

"I put my heart and soul into this building and the business," said Stachiotti, who estimated that she has spent $40,000 in renovations. "You can't see that from the outside."

If she buys the property, she'll be able to apply for the grant herself.

She said that investment is a big risk for her fledging business, but she's definitely considering it.

Arifi's property's is not the only one in the Rowan Boulevard redevelopment area that the borough has pursued, but the other property owners were willing to negotiate, according to Maley.

Because Arifi initially refused to communicate with the borough, it moved forward with legal proceedings to condemn the property, he said.

According to Maley, his property is the second one in the Rowan Boulevard redevelopment area to be condemned. The Academy Street School was acquired by the borough through eminent domain in 2004, he said.

The borough is trying to resolve the value of the property with Arifi.

It recently offered him a borough-owned property on Wilmer Street in exchange for his West High Street property and about $50,000.

But Arifi says the duplex, located at 15 Wilmer St., and even the cash is no compensation for his property.

He estimates the borough's offer to be worth about $200,000. A market rate estimate he received from a Century 21 Realtor puts his parcel at around $400,000, he said.

If the property's value cannot be resolved, the value will be determined in Superior Court.

Gloucester County NJ Times: http://www.nj.com/news/gloucester

Eminent domain used for farm's water: Salem OR Capital Press, 7/20/07

Farmers win first round in Washington state; case still open

By Cookson Beecher

Can a city use eminent domain to nab a farm's water rights because it needs the water for an industrial park that will provide jobs and opportunities for its young people and therefore benefit the entire community?

To add a twist to this question: What if the owners of the farm requested that their land be rezoned "light industrial" so that it could be developed - a request that was granted by a state growth management hearings board.

In a situation like that, how does the definition of "public good," which is a requirement for condemnation through eminent domain, fit into the picture? Would an industrial park designed to benefit the city trump the farmers' plans to have their land developed if "public good" is the deciding factor?

These are the questions before the court as it weighs a request to reconsider an earlier decision that came out in the farmers' favor in the City of Winlock's case against Mickelsen Dairy.

Although the Mickelsens have moved the dairy to Moses Lake, the water rights attached to the land are being used to irrigate hay and a vegetable crop.

In a May 21, 2007, letter to the city's attorneys explaining his decision in favor of the Mickelsens, Cowlitz Superior Court Judge James Stonier said that while "the declaration of public necessity by the City of Winlock is valid, Mickelsen's agricultural use is superior."

The issue at hand, said the judge, was whether the state's prior appropriation water-rights policy - "first in time; first in right" - holds enough weight to withstand the city's attempt to condemn the water rights.

In his opinion, it does.

But he also said that the court does not find that any future proposed use by the Mickelsens, other than the current agricultural use, to be superior to the city's intended use of the water rights.

Because the city has asked the court to reconsider the decision, it is still an open case.

While pleased that the judge ruled in favor of the farm, Clinton Mickelsen warns that this legal battle could have serious statewide implications.

"I'm not exaggerating when I say that this is a huge issue - that it's a lot bigger than any of us," he said. "If we lose, it will affect farms and businesses across the state that have water rights, especially those near urban growth areas. Any growing city will think that all it has to do to get the water it needs is to condemn the water rights of a nearby farm."

Mickelsen said that under state law, anyone can use eminent domain to go after water rights.

"Eminent domain has more leverage in water rights than in real estate," he said. "The law allows it, but we're hoping that prior appropriation (first in time, first in right) will take precedence over other water laws."

Jay Gordon, executive director of the state's Dairy Federation, said the case is particularly worrisome to some of the farmers in the area.

"There's a concern in the valley that if the city wants to have enough water for an industrial park, it would need to go up the valley and 'dewater' six farms," he said.

But Winlock Mayor Cy Meyers said the city can't go outside its urban growth area to condemn water rights.

"Nor do I have any intentions to do that," he said. "I'm not interested in creating urban sprawl."

He said the 260 acre feet of water the city wants from the Mickelsens "would supply the industrial park nicely" and would also serve industrial or commercial development on the Mickelsen property.

The Mickelsens had intended to sell the water rights to a buyer who wanted to develop the land. Under that arrangement, the city would have managed the water attached to the water rights and supplied the industrial park, as well as any projects on the Mickelsen property, with water.

But the deal with the buyer fell through, leaving the Mickelsens with the water rights and the city determined to get them.

Mickelsen said that through the 55 years the farm has had the water rights, their value had pretty much stayed the same.

"But now people have figured out how scarce water rights are, and that makes them more valuable," he said. "Their market value is moving up significantly."

If the city should win the case, a judge will set the value on the water rights.

If the court decides not to reconsider the case, then the city has the right to appeal the decision that ruled in favor of the Mickelsens.

But Winlock Mayor Meyers is optimistic that the city and the Mickelsens can come to an agreement in 30 to 60 days.

"They're good people," he said, referring to the Mickelsens. "We're all trying to do what's right for Winlock."

Salem OR Capital Press: http://www.capitalpress.info