Judge - OSU can use eminent domain to take property: Tulsa OK World, 7/23/07

A judge ruled Monday that Oklahoma State University can acquire through eminent domain the final piece of property it needs for a $316 million athletic village.

Judge Donald Worthington ruled in Payne County District Court that the university can take title to the home owned by Kevin and Joel McCloskey. He transferred the ownership of the land to the OSU Board of Regents.

The amount of money the university will pay the brothers for the ranch-style home in Stillwater remains to be determined by a jury trial.

The brothers challenged the university’s right to take the home through eminent domain, the legal concept under which private property can be taken for public use.

The property was estimated last year by a panel of court-appointed commissioners to be worth $84,000, about $20,000 more than the university offered the brothers for the parcel.

The McCloskey brothers said they would appeal Worthington’s decision.

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

Nantucket loses eminent domain case: Cape Cod Times, Hyannis MA, 7/20/07

By Hilary Russ

[Massachusetts'] highest court ruled yesterday that the town [of Nantucket] was wrong when it snatched a parcel of land near the airport in 1968.

The property, which abuts Nantucket Memorial Airport, was taken by eminent domain but the seizure of the property relied on shoddy records and a poor attempt to find the parcel's proper owner, according to yesterday's Supreme Judicial Court decision.

"As a matter of fundamental fairness, a town cannot take property, declare the owner to be unknown, and only then investigate whether there is anyone to whom damages can be paid," Chief Justice Margaret Marshall wrote.

It may not have been the only land to evaporate from town tax records long ago. "Some parcels of property simply dropped off the tax rolls in the 1920s and 1930s, particularly in the Surfside area of the town," Marshall wrote.

Another case, filed last year by a couple making similar allegations, may hinge on yesterday's decision, according to court documents.

Because the town took the land nearly 40 years ago, witnesses and documents the town needed in the case were long gone, town counsel Paul DeRensis said yesterday in a telephone interview. "Cities and towns and municipalities need to keep records and know where they are," he said. "We had nothing to work with."

The case decided yesterday was first filed in 2001 in Nantucket Superior Court, when William Devine claimed he was the true title-holder to a piece of land in the Nobadeer section of Surfside, just south of the airport. In 1923, the property was deeded in a will to Lewis Popham Carmer. For unknown reasons, the lot was removed from the town's tax rolls and listed as "owner unknown."

Fast forward to 1968, when the Nantucket Airport Commission voted to acquire the property by eminent domain. The town barely made any attempt to find Carmer, the real owner, beyond checking its own flawed tax records, Marshall said, affirming an earlier Nantucket Superior Court decision by Judge Daniel Ford.

But Devine, a genealogist, found Carmer. Devine's business was to find heirs to land who might be able to assert a claim where there was a defective title. He reached Carmer and offered him a joint proposal to profit off any claims, but Carmer just sold the land to Devine's attorney for $7,500 in 1985. The town started assessing taxes.

After that, the land was transferred to Devine, who put the land into a trust that began, in 2001, excavating to build a house. But the town claimed it owned the land, filled in the plot, revoked the building permit and moved the airport fence so it included the property, according to the SJC decision.

Cape Cod Times, Hyannis MA: http://www.capecodonline.com

Port Chester Businessman Wins Eminent Domain Battle: North Country Gazette, Chestertown NY, 7/22/07

After seven years of litigation, a federal trial judge confirmed last week what Bill Brody has known all along — the government must provide citizens with notice before their right to challenge eminent domain expires. Further, the judge ruled, the Village of Port Chester violated Brody’s rights by failing to do so.

The written by Judge Harold J. Baer, Jr., is a milestone in Brody’s ongoing battle. The New York Legislature, outraged over the injustices inflicted upon Brody, changed the state’s eminent domain laws to require mailed notice to property owners of the threat to their land as well as notice of their constitutional rights. Despite the amendments to the law, New Yorkers still must challenge the use of eminent domain against their property months or even years before the government ever actually moves to take the land.

“This is an important decision for the rights of property owners across the country,” said Dana Berliner, a senior attorney for the Institute for Justice, which represents Brody and property owners fighting eminent domain nationwide. “The judge has rejected the village’s dangerous attempt to undermine the Constitution and vindicated a fundamental principle: that the government cannot rely on hints and rumors to warn citizens that their rights are in jeopardy. It is the government’s job to provide citizens with fair notice — not the citizens’ job to chase down the government and ask if it plans to violate their rights that day.”

“Finally!” said Brody of the opinion. “I’ve said for years that Port Chester violated my rights, and I’m thrilled that a court finally recognized I’ve been right all along.”

While Brody was restoring four abandoned buildings in Port Chester, the village issued him permits but never once informed him that in the end it planned to take his buildings, bulldoze them, and hand the land over to a private developer for a Stop & Shop supermarket parking garage. Instead of mailing Bill notice of the imminent loss of his rights, the village published a legal classified ad that didn’t mention anything about the fact that property owners would be waiving their rights if they didn’t file a lawsuit within 30 days. Now, seven years after his fight began, Bill remains in federal court; proceedings later this year will determine what remedy Bill is due for the Village’s violation of his rights.

“This common-sense ruling is long-overdue: now, there is no question that Port Chester failed to provide Bill Brody with the basic notice guaranteed by the Constitution,” said IJ Staff Attorney Robert McNamara. “For property owners nationwide, this ruling means that there is still some teeth to constitutional protections for their homes and small businesses.”

“Bill Brody has waged a heroic fight against eminent domain abuse, and it is fitting that his constitutional rights have finally been vindicated,” said Chip Mellor, IJ president and general counsel. “His never-say-die determination is a shining example for home and small business owners across the country.”

North Country Gazette, Chestertown NY: http://www.northcountrygazette.org

Port Authority holds second hearing to receive public comment about downtown: Minnesota This Week, Burnsville MN, 7/20/07

By Tad Johnson

The direction of redevelopment in Rosemount’s Core Block East will be decided Monday, Aug. 6.

After receiving two nights of testimony about the city’s intent to use eminent domain to acquire the Ratzlaff Service Station property, the Port Authority is expected to vote during a special meeting at 6 p.m. at Rosemount City Hall.

Rosemount residents and concerned business owners spoke out against the proposal during two public hearings, the latest one Monday, July 16 at Dakota County Technical College.

An estimated 100-plus people attended the meeting that lasted two and a half hours. About 30 people spoke against the project that night, including a handful who were repeat speakers from the June 19 hearing. Four spoke in favor of using eminent domain.

The tense hearing included several direct pleas from residents urging the Port Authority not to use eminent domain.

At the end of nearly every speech, the audience met it with applause despite Port Authority Chairman Mike Baxter asking people to refrain from clapping.

At issue now is whether the Port Authority has determined it needs to use eminent domain and has exhausted all other avenues to redevelop one property owned by Dr. Kurt Walter-Hansen.

If it votes to condemn the property, a three-person panel of assessors will determine the property’s fair market value and compensation amount for Hansen. The process could last some time if it is contested.

Those opposed to eminent domain echoed similar reasons for their stance as in previous meetings.

They feel that eminent domain:

  • for economic development purposes is wrong because it gives private property from one landowner to another.
  • will negatively impact further redevelopment downtown as other landowners would have uncertain futures.
  • will negatively impact the future businesses in the development because many oppose the project.

Hansen expressed his opposition to the plan saying that eminent domain shouldn’t be used to take land away from one private owner and hand it over to another private owner.

He said local government has a role in economic development, but eminent domain is not an appropriate use of power.

“I am committed to working with the city so there is no need to use eminent domain,” said Hansen, who has made his own proposal for Core Block East redevelopment.

City officials have met with Hansen several times to discuss acquisition of the property and about the city’s redevelopment plan. The city made an offer on the Ratzlaff property April 13, but Hansen did not accept it.

Hansen has been opposed to the proposal to place a mixed-use retail and 100-unit apartment building on the site as proposed by Stonebridge Companies of Apple Valley.

Hansen has questioned if the city had correctly handled the transition of the development from Contractor Property Developers Company to Stonebridge Companies. Such a transfer of development companies was set forth in the agreement, according to city officials.

Hansen had sought to become the city’s chosen developer during the open request for proposals for Core Block East in 2005.
Other opinions

Don Ratzlaff, who operates the service station and truck rental business at the property under consideration for condemnation, said the city is going to need to redevelop that area of Rosemount, but this is not the right development.

“That’s Shakopee or Hopkins. I don’t see that in Rosemount,” he said pointing at Stonebridge’s concept plan for Core Block East.

He said if you want multiple housing in Rosemount, they have land available for multiples in the former Brockway Golf Course area.

By proposing to use eminent domain, he said the city has lost the trust of the people of Rosemount.

“I believe you need to turn that trust around,” he said. “Say no to a taking of a property.”

Kathy Klonecky, a member of the Save Rosemount Committee that has mailed four newsletters to residents regarding the issue, urged the Port Authority not to make a mockery of one of the primary values in life.

She said she gets physically ill when she sees someone else’s building on Hansen’s property.

Klonecky told Port Authority members that Save Rosemount has collected 4,000 signatures on a petition opposing eminent domain.

Deb Kaczmarek, a member of the Save Rosemount Committee, didn’t think the city should be involved in redevelopment.

“You are not smarter than the free market, and you are not smarter than the private sector,” she said.

Simon Walter Hansen, the son of Kurt Hansen and partner of the Tri-Store in downtown Rosemount, told the Port Authority that it should redevelop the former Genz-Ryan Plumbing & Heating property as the first project in downtown redevelopment.

“You can do it today. You can show what a big improvement it makes,” he said, adding that when it comes time to redevelop Core Block East, “I’m sure you will have everyone behind you once you have showed people it works.”

Ruthe Batulis, president of the Northern Dakota Chamber of Commerce, says revitalization of downtown Rosemount needs to be done.

She said representatives from the chamber served on the Downtown Redevelopment Committee that provided a vision for the guiding elements to make downtown a more attractive and interesting place.

She said redevelopment will help retain and bring additional businesses to downtown and create a solid tax base.

“It is critical that all parties act in a spirit of cooperation,” she said.

Kim Shoe-Corrigan, the only member of the Rosemount City Council who doesn’t sit on the Port Authority, said she supports the use of eminent domain.

“We need to move forward,” she said, citing that the city has tried to work with Hansen.

She said she feels that there has been many opportunities for citizens to participate and for business owners to participate. She said she is not in favor of scraping the work that’s been done by the Downtown Redevelopment Committee.

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

Eagan could use eminent domain: Minnesota This Week, Burnsville MN, 7/20/07

Despite protests by some businesses and residents, council votes to keep eminent domain as an option if negotiations fail to secure remaining Cedar Grove properties

By Erin Johnson

Although loyal customers showed up in full force to protest the move, the Eagan City Council on Tuesday voted to keep eminent domain as an option should negotiations to acquire remaining businesses in the Cedar Grove redevelopment area fail.

The city held a public hearing on the issue because, with about 14 properties left to be acquired, the clock is ticking on its ability to use eminent domain to secure them.

Minnesota last year amended its eminent domain law, restricting its use and making it more difficult for cities to acquire private property for redevelopment projects.

But cities that had redevelopment projects underway when the law changed are allowed to follow the old rules for five years after the redevelopment district was created.

For Eagan, the five-year deadline expires next July.

So far, the city has not had to use eminent domain in the area. It has already acquired about 15 properties through negotiations, but talks with some of the remaining property owners have stalled.

Director of Community Development Jon Hohenstein said the city invited businesses to conduct their own appraisals of their properties, which are then reviewed by the city’s appraiser.

According to the city, some property owners have not yet provided appraisals of the value of their property, while others have submitted appraisals that differ substantially from the city’s appraisals.

“We’ve had some situations where the seller’s appraisal and the city’s appraisal are very different, so far different that it would be difficult to close the gap through negotiations,” Hohenstein said.

The city said it will continue to try to negotiate with the remaining property owners and will use eminent domain only as a last resort.

“It remains our goal to reach 100 percent of acquisitions through negotiations,” said Mayor Mike Maguire. “We do not take the discussion of eminent domain lightly.”

But some business owners said they don’t think the city has been fair in its negotiations.

“I suggest that the walk the city has been walking doesn’t jibe with the talk it’s been talking,” said attorney Gary Fuchs, who represents some property owners in the area.

Dedicated customers of some of the remaining businesses — residents and non-residents alike — packed the council chambers to speak out against the use of eminent domain.

“It saddens me to think that the government of Eagan would bring itself down to the level to even use the words ‘eminent domain’ for some companies that have been with the city as long as they have,” said resident John Willenburg.

The majority of speakers were there to support two Cedar Grove businesses in particular that have yet to reach a deal with the city — the Mediterranean Cruise Cafe and Larson Automotive Services.

Owners of both businesses said they don’t want to leave the Cedar Grove area, where they have acquired a substantial customer base.

“We’ve been in the area almost 28 years. That’s a lot of time. That’s a lot of memories,” said Mediterranean Cruise Cafe owner Jamal Ansari. “We are here because we love what we do and we cater to the community. We do something unique that no one else does. ... We want to be treated fairly.”

Jerry Larson of Larson Automotive said that he’s spent “major” money on recent improvements to his building.

“We don’t want to sell our property, but basically you’re coming to take our properties,” he said.

Several people who attended the meeting questioned why the two businesses couldn’t be included in the redevelopment plans.

“You are doing a great thing, trying to make (Cedar Grove) the gateway to Eagan,” Ansari said. “Why can’t we be there?”

Hohenstein said the council has directed staff to work with the area’s new master developer to see if there are any options to keep more of the existing businesses in Cedar Grove.

Council members said they are open to the possibility of some existing businesses being included in the redevelopment plans. Maguire even admitted that hummus and tabbouleh from the Mediterranean Cruise Cafe have become staples at his annual fantasy football draft.

But the businesses are more than just the buildings, he said.

“They are you,” he said. “I hope on hope that we can find a way to work with your businesses, as well as all the others, to maintain your place in this community as true assets.”

Some business owners accused the city of making lowball offers on their property. Phil Fahey, who owns American Accounts and Advisors, said he knows the city has deep pockets and suggested it pay property owners “maybe double what the appraiser comes back with.”

“Share some of that wealth with the current property owners,” he said. “Why not pay us enough so we can stay viable?”

The city denied making lowball offers and said that it has to protect the integrity of its dollars for the entire community.

“Those deep pockets ... are a little bit of the pockets of every one of the 25,000 households that pays property taxes in this city,” Maguire said. “And we have to balance the interests of all of them as well.”

The council heard more than two hours of testimony from 48 people, all of whom opposed the use of eminent domain, before unanimously voting to retain it as an option.

Council Member Paul Bakken called eminent domain a necessary tool in the toolbox of public officials.

“If the city is not able to facilitate a development in that area that works, then the whole thing collapses and the city and the taxpayers are left holding the bag,” he said.

Plans to revitalize Cedar Grove have been in the works for about eight years. Once the “downtown” of Eagan and home to the first mall south of the river, the area began to decline in the 1980s when direct access to Cedarvale Mall was eliminated and Highway 13 was realigned.

The area is now primed to become an urban village with shops, restaurants, transit stations, housing and public spaces, with developers Doran Development and Pratt Homes at the helm.

City Attorney Mike Dougherty said that even if the city initiates eminent domain, it can continue negotiations with property owners throughout the process.

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

Setback for Newark condo project: Newark NJ Star-Ledger, 7/20/07

Judge rules city failed to prove that the 14-acre site on Mulberry Street is 'blighted'

By Katie Wang

A Superior Court judge in Essex County has dealt a major blow to a plan to build 2,000 condominiums in downtown Newark, saying the city failed to prove the area in question is deteriorating and in need of redevelopment.

The 71-page decision, issued yesterday, cites the watershed state Supreme Court decision, Gallenthin Realty Development Inc. vs. Borough of Paulsboro, handed down earlier this year that limits the government's power to seize land.

In the Newark case, Judge Marie P. Simonelli said the city cannot designate the 14-acre Mulberry Street area "blighted" simply because the property could be used for better purposes. Property owners fought the designation, saying the area was still thriving and that they did not want their land to be seized through eminent domain.

"The court finds that the city declared the entire Mulberry Street area as an area in need of redevelopment solely because it is not properly utilized and fully productive," Simonelli said in her decision. "Under the Gallenthin holding, this declaration does not meet the constitutional requirement of blight and must be invalidated and set aside."

The decision puts the future of the condo project in jeopardy, though all parties involved disagreed on whether the project is dead or viable in an amended form. The Mulberry Street condo project, which was to be developed by the Newark Redevelopment Corp., is slated for a prime tract one block from the Prudential Center arena, scheduled to open in October.

Stefan Pryor, the deputy mayor in charge of economic development, said the Booker administration is analyzing the judge's decision and refused to say whether it will appeal.

"The outcome of the case will not affect the arena project," he said.

John Buonocore, the attorney representing the plaintiffs, declared the condo project dead.

"We are delighted that the court saw through this pre-arranged land grab on behalf of politically favored developers," Buonocore said. "The ruling sends a message to politicians across the state that the courts will not sustain economic development takings under the guise of the redevelopment laws."

Bruce J. Wishnia, one of the principals of Newark Redevelopment Corp., said the decision is a sad day for the city and the state. He said he is not sure what this means for the overall project.

"If the Mulberry Street area is not in need of redevelopment, then the court needs to tell us what kind of area would be," Wishnia said. "If this decision if not reversed, it will effectively shut the door on urban redevelopment in our state."

The Mulberry decision comes at a time when land and redevelopment issues are under intense public scrutiny in a city that has struggled for decades to rebuild itself.

One week ago, Sharpe James, who served as mayor for two decades, was indicted on charges he steered lucrative land deals to companion Tamika Riley. The property owners in the Mulberry case have long alleged political contributions from the developers swayed council members to vote in favor of declaring the area in need of redevelopment.

The judge concluded her opinion with a tart reference to James' criminal charges.

"This evidence certainly provides cause to question the results and validity of the redevelopment investigation," she said. "However, the court mentions it for historical purposes only and makes no determination of the merits of plaintiff's corruption claim. It appears that such a determination may be made in the recently initiated criminal proceedings involving former Mayor James."

The Mulberry Street Redevelopment project made its debut five years ago during James' administration. In November 2002, Wishnia and his partner, Emile Farina, a former aide to then Councilwoman Bessie Walker, pitched the idea to Nathan Allen, director of the city's Department of Economic and Housing Development.

Plans called for the Newark Redevelopment Corp. to negotiate with property owners for their land. If negotiations failed, the developers planned to ask the city to use its condemnation powers to seize those properties.

According to Simonelli's ruling, there is no evidence any negotiations took place.

Instead, she said, the city pursued an investigation into declaring the area in need of redevelopment, paving the way for condemnation.

In her decision, Simonelli leveled stinging criticism at the snug relationship between developers and officials in the city. Attorneys, relatives and consultants affiliated with Wishnia and Farina donated an additional $53,325 to some council members when they were making critical decisions about the project, according to the plaintiffs.

"There is evidence in the present case that the Mulberry Street Redevelopment project and NRC's role as its developer was "a done deal," a fait accompli, before the required statutory redevelopment process began," Simonelli said.

City-hired planner David Roberts issued a report in April 2004 declaring the area in need of redevelopment because the parking lots, storage yards and businesses in the area "consumes land that could otherwise be available for much more productive uses."

But Simonelli faulted Roberts' report, saying it lacked empirical evidence to support his conclusions.

On Oct. 14, 2004, the planning board passed a resolution recommending the city declare the Mulberry Street area in need of redevelopment. The city council agreed and on Nov. 3, 2004, it passed a resolution declaring the area in need of redevelopment.

Newark NJ Star-Ledger: http://www.starledger.com

State loses appeal in eminent domain suit: San Antonio TX Express-News, 7/18/08

By Adolfo Pesquera

The Fourth Court of Appeals on Wednesday shot down an attempt by the state of Texas to reverse a $1.26 million award given to the Dallas-based owner of a San Antonio Holiday Inn Select. (Click here for court opinion: http://www.4thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=20332)

Bristol Hotel Asset Co., owner of the Holiday Inn Select near San Antonio International Airport, had sued the Texas Department of Transportation over its eminent domain taking of just over 1 acre.

The taking — a 10-foot-deep strip that faced the frontage road to Loop 410 — was for expansion of the freeway.

The Bexar County Probate Court No. 1 judgment in favor of Bristol took into account the property's diminished market value.

David Bolton, a real estate appraiser and expert witness for Bristol, testified that the condemnation caused the owner to permanently lose its main entrance and several parking spaces.

Major modifications had to be made to the remaining west and east entrances in order to bring the property back into compliance with safety and disability access regulations.

Bolton recalculated the capitalization rate — the rate looked at by investors — and decreased the hotel's value by 5 percent.

The state's main argument was that Bolton should have been disqualified as an expert witness, and probate Judge Polly Jackson Spencer abused her discretion by not doing so.

Justice Karen Angelini, in answering for the Fourth Court, noted Bolton had been an appraiser for 41 years and was a member of the Appraisal Institute since 1972. Angelini said Bolton's methodology, basing damages on a commercial property's income stream, was appropriate since that is the method used by investors.

"Bolton considered the most important impact on the property, from an investor's standpoint, to be the hotel's loss of its main entrance drive," Angelini wrote. "The hotel would no longer operate as designed."

Bolton also noted the hotel sign was no longer in compliance with setback requirements.

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

Ohio eminent domain law might change: Newark OH Advocate, 7/19/07

By Howard J. Siegrist

In the aftermath of controversial eminent domain cases in the U.S. Supreme Court and the Ohio Supreme Court, the Ohio legislature now faces two bills aimed at the heart of the eminent domain controversy.

Senate Bill 7 and House Bill 5 propose greater limitations on the government's right to take private property for public uses. The legislation addresses situations where eminent domain would be used on "blighted" properties and for economic development purposes.

The two bills result not only from the recent court cases but also from a statewide task force formed in 2006. The Ohio legislature appointed the task force after the U.S. Supreme Court issued its ruling in the Kelo case, ruling taking of private property for economic redevelopment in Connecticut was not unconstitutional because the state's statute permitted the taking as a valid "public use."

The Ohio task force issued a report in late 2006 that included recommendations for ensuring that Ohio's statute did not permit similar types of takings as the Connecticut case.

Just after the task force report, the Ohio Supreme Court made its ruling in City of Norwood v. Horney, a case that challenged an eminent domain proceeding in a blighted area near Cincinnati. The deteriorating area was to be transferred and redeveloped by a private developer. Ohio's highest court, however, ruled that unlike Connecticut, Ohio law did not authorize the use of eminent domain for such a purpose.

The bills in front of the Ohio legislature would incorporate the Norwood case and some of the task force's recommendations into Ohio's eminent domain statute, Chapter 163 of the Ohio Revised Code. While the two bills differ, several key provisions are similar. A few of these would change our eminent domain law to include:
  • A requirement that any use of eminent domain be necessary and for a public use.
  • Clarification of the "public uses" for which eminent domain may and may not be used. Both bills set restrictions on public uses that are for economic development, increasing public revenue, or conveying land to a private commercial enterprise.
  • A uniform definition of "blight" that includes specific criteria for determining whether a property or an area is "blighted" for purposes of eminent domain.
  • An exemption for agricultural land that prevents such land from being declared blighted absent any showing of environmental or public health hazards.

Both proposals include other revisions to the eminent domain statute. The bills are progressing through the Ohio Senate and House of Representatives.

To read the bills, an analysis of their provisions and their status in the legislature, visit the Ohio Legislature's Web site at www.legislature.state.oh.us and search on S.B. 7 and H.B. 5.

If the bills pass, look for a full analysis of the new legislation.

Newark OH Advocate: http://www.newarkadvocate.com

Howard J. Siegrist is an extension educator at Ohio State University Extension. He can be reached at (740) 670-5315.

OK given extending city's use of eminent domain: San Diego CA Union Tribune, 7/18/07

By Tanya Sierra

National City [CA] officials can use their eminent domain authority until 2017 after the City Council last night voted 3-0 to approve the extension.

Three of the five council members made the decision after several meetings in which protesters blasted the council, and at least one councilman blasted back. Council members Rosalie Zarate and Frank Parra, who were absent last night for other reasons, recused themselves from the issue because they own property within the city's redevelopment area, where eminent domain would be used.

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

An East Coast civil liberties law firm is preparing to file a legal challenge to the extension, saying National City's methods have violated state statutes, as well as the U.S. Constitution.

City officials don't see it that way.

“Eminent domain is a tool that needs to be used,” said Councilman Fideles Ungab. “It needs to be used properly. If we have to take a property, we will give them an honest deal as long as I'm in office.”

Last week, Councilman Luis Natividad grew frustrated when an opponent called the policy eminent theft.

“For those who say I already had my mind made up before the hearing, that's a lie,” Natividad said last week. “I slap back; that's how I am. I'm not going to sit here and take abuse.”

Before the meeting, Herman Baca, who heads a Chicano rights group in National City, issued a two-page statement criticizing the mayor on his eminent domain position. Baca said extending the city's condemnation authority is politically risky and could end in a recall or with the recently increased sales tax repealed.

Mayor Ron Morrison waved off Baca's letter, saying most of it was lies.

“Eminent domain is a necessary evil whether we like it or not,” Morrison said. “We need to keep as many tools in the toolbox as possible. But just because you have a tool, doesn't mean you use it right off the bat.”

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

City OKs eminent domain use for Nelson House: Today's Sunbeam, Salem NJ, 7/18/07

By Robert Linnehan

[The Salem NJ] City council has unanimously approved the use of eminent domain to obtain ownership of the fire-damaged Nelson House on East Broadway in the heart of the Salem business district.

The action was announced after an executive session of council Monday night.

Council's action sets forth the proper procedures for the transfer of ownership of the Nelson House to the City of Salem and will likely take several months to complete, said Mayor Earl Gage.

The decision to use eminent domain was due to what the city says is the unwillingness of Len Straub, the owner of the Nelson House, to properly secure the building despite having ownership for the past year, Gage said. Straub purchased the building last year in early August 2006. It was later that month that a major fire hit the building.

"It's not closed off for the weather. This building burned a year ago and it still does not have a roof. We've sent Mr. Straub numerous letters about our intentions," Gage said.

"If it's not closed off to the weather it will fall down. We don't want another building sitting in the middle of our downtown like the Fenwick Building. We don't want to make plans to start propping the Nelson Building up two years from now when it starts to collapse."

In addition to the roof, numerous windows in the building still remain broken and wide open.

The Nelson House was the apparent target of an arsonist on Aug. 19, 2006, when 110 firefighters from four different counties were dispatched to fight a blaze that tore through the building for about four hours.

An investigation by New Jersey Arson Units confirmed the fire was an arson.

A number of developers have approached Straub asking to buy the property and have offered fair market prices, but Straub was unwilling to sell, Gage said. The city council also ordered an appraisal of the building and offered to purchase the building from Straub, but the owner stated a counter offer that Gage described as "completely out of line."

Straub could not be reached for comment on the city's claims.

The case will be brought to court and heard by a judge. If the judge rules in favor of the city, a fair market price will be determined by the court and the City of Salem will put funds into a trust for the owner.

If the building is transferred over to the city, Gage said a new roof will immediately be put on to protect the structure. It would then be determined if the Nelson House would be sold to a developer by the city.

"The eminent domain process is not set in stone. If Straub wants to sell us the building he could do so at any time," Gage said. "We've never had to use this process before. It's not our way of going about things, but reluctantly we had to do what's best for the revitalization efforts of our city."

Today's Sunbeam, Salem NJ: http://www.nj.com/news/sunbeam

Council ends eminent domain attempt: Hackensack NJ Herald News, 7/17/07

By Suzanne Travers

Residents of two [Lodi NJ] trailer parks rejoiced Tuesday after the Borough Council ended an attempt to use eminent domain to seize private land for use by a developer.

At a Monday night meeting, the five-member council voted unanimously to drop the appeal of a lower state court decision that found the borough had no grounds to seize the land at Brown’s Trailer Park and Costa Trailer Court. More than 40 residents live in trailers at the trailer parks along heavily-traveled Route 46.

Kendall Kardt, president of Save Our Homes, a group of trailer park residents who fought the town’s seizure attempt, said about 20 members of the group attended the meeting and applauded the council vote.

“Everybody was very happy,” Kardt said Tuesday. “I believe that a lot of people in town found this repugnant on a lot of levels. They felt threatened themselves by the idea that eminent domain could be used to put people out of their homes.”

Councilman Marc Schrieks had supported the borough’s attempt to seize the land on the grounds that private development there would create new tax revenue, and also voted to appeal a state Superior Court judge’s 2005 decision that found the borough had not provided sufficient evidence that the trailer parks met the criteria for a blight designation. The case was argued at the Appellate Division of state Superor Court in Hackensack in January, but the panel has not yet issued a ruling.

Hackensack NJ Herald News: http://www.northjersey.com

City to examine buildings for ‘blight’: Desert Dispatch, Barstow CA, 7/16/07

Study needed to extend eminent domain authority

By Jason Smith

The [barstow CA] Redevelopment Agency approved a contract Monday to perform an economic study of deteriorated and abandoned buildings in the redevelopment area. The results of the “parcel-by-parcel blight study” will be used to amend the redevelopment plan and possibly extend the city’s eminent domain powers for another 12 years.

The $30,550 contract was awarded to Corvina-based GRC Associates, Inc. The company stated in its proposal that it will use a combination of sources field surveys, crime statistics, U.S. Census data, and active building code violations in order to determine levels of blight.

The California State Safety Code defines blight as “buildings in which it is unsafe or unhealthy for persons to live or work.” The code further states that blight increases the “obsolescence, deterioration, and disuse” of surrounding land, depressing property values and discouraging economic activity.

According to city documents, the study is required under state law in order for the city to retain its eminent domain authority allowing it to force owners to sell their properties to the city for use for projects.

RDA President and City Council member Joe Gomez said that although he is concerned with blighted areas in the city, “especially along the Route 66 corridor from Muriel to First Street,” he opposes the use of eminent domain.

“I think that the local government shouldn’t have so much power to take the taxpayers’ property away. I don’t think that’s why we got elected,” Gomez said.

City spokesman John Rader said that the use of eminent domain is important for economic development. He stressed that the study will not change the boundaries of the redevelopment zone and residential property owners will not be affected.

“The redevelopment plans do not allow for the agency to exert its eminent domain authority with regard to legally occupied residents,” Rader said.

Despite the assurances that eminent domain powers will be used responsibly, some critics fear that the legal definitions of blight offer the government too much flexibility.

“If you’re creative enough, you can call anything blight. The state definitions and standards are a joke,” said James Burling, director of litigation for the Pacific Legal Foundation, a group that opposes eminent domain abuse.

Desert Dispatch, Barstow CA: http://www.desertdispatch.com