Fighting Back: Ft Worth TX Weekly, 9/5/07

Eminent domain is still ripping up lives, but the natives are no longer so naive

By Jeff Prince

Cows grudgingly rise from mid-morning naps as Billy Mitchell’s Ford F-250 jostles down a dirt road past the oak trees he climbed as a kid. The oaks are massive, some with trunks as wide as his pickup.

His parents bought this parcel of land 40 years ago, back when he was 9. The Trinity River runs deep and wide through his 70 acres near Aledo, with a large pasture and a 130-year-old farmhouse that still provides solid shelter. The place is special, and his voice sounds hurt and his face turns red as he talks about how a gas company used eminent domain laws to cut a 25-foot swath across the middle of his property to bury a pipeline, touching off a two-year battle that cost him about $100,000 in legal fees.

“I’m devastated,” he said. “It’s un-American. Private companies shouldn’t be able to take land by eminent domain just so they can make more money for themselves. It makes me sick.”

Mitchell wanted his day in court but agreed to a settlement, citing escalating legal costs and aggressive tactics used by the gas company. Feeling cheated and bullied, the Fort Worth native rented a billboard alongside I-30 near Hulen Street for the entire month of August. Emblazoned in large red letters against a white background, his message was clearly seen by thousands of passing motorists: “Eminent Domain — Stealing What Others Work For.” The billboard lists his name and residence but not his phone number. Still, dozens of people have tracked down his number and called to thank him for pointing out the unfairness of eminent domain.

“These are people facing different issues than gas pipelines — Trinity River development, the Trans-Texas corridor, a lot of different issues — but they still call,” he said.

Cities have long had the ability to take land to build airports, roadways, utility easements, lakes, railroads — even mall parking lots. And they’ve reaped unexpected benefits. Dallas/Fort Worth International Airport is raking in many millions of dollars from mineral rights that were acquired by the cities of Fort Worth and Dallas in the 1960s and 1970s using eminent domain and the threat of it.

Nowadays, people are getting smarter. They’re playing hardball with developers, natural gas drillers, and city officials who typically want to pay as little as possible when seizing land. They’re encouraging state legislators to make it harder for cities and counties to take land for private commercial development. They’re educating themselves, joining forces, and hiring specialty lawyers.

The first time Jim Vreeland faced eminent domain was in the late 1990s when he learned that his warehouse on Vickery Street was in the path of the planned Southwest Parkway. Knowing the city had a legal right to take his land prompted Vreeland to sell without much of a whimper. He wasn’t angry; he viewed the parkway as a legitimate public works project. He and the city settled on a price amicably.

By then, he had purchased a new office building in an industrial district just north of downtown. But before long, he was in the way of another planned project — Trinity River Vision, with its river channel and a small lake expected to create a demand for condos and retail near downtown. City officials and the U.S. Army Corps of Engineers call it flood control, but it doesn’t take a genius to see it’s actually a private economic development project relying on eminent domain powers to obtain land. This time around, Vreeland isn’t as willing to hand over his property without a fight.

“I bought this property under the shade of the Fort Worth skyline for a reason,” he said. “I bought this as an investment. Now somebody else wants to take this and they will realize the increase in value.”

Municipalities have a huge advantage in these types of land seizures. Besides favorable federal, state, and local laws, they also rely on legal help paid for by taxpayers.

“Usually that kind of entity will have better lawyers than the individual landowners,” said Bob Lukeman, another business owner whose property is in the way of the Trinity River Vision.

Even when governments and utilities don’t actually condemn property through eminent domain, it remains a powerful tool for scaring property owners into accepting what they often characterize as low-ball offers. The vast land purchases that made way for D/FW Airport effectively pitted city officials, experienced landmen, and savvy lawyers against hundreds of rural property owners who might not have realized they were signing away mineral rights when they sold out. The cities of Fort Worth and Dallas used the threat of eminent domain or actual condemnation to force land sales, acquiring 16,950 acres between the late 1960s and 1975.

Obviously, the airport is a legitimate public works project that has been a long-term economic engine for North Texas, but the cities went beyond taking surface rights. They obtained mineral rights as well by inserting the words “fee simple” into the deeds, a legal phrase that refers to absolute ownership of real property, including minerals.

“None of these documents are going to have a separate listing of mineral rights, none are going to specify that separately because ‘fee simple’ means everything,” D/FW Airport legal counsel Paul Tomme said.

Technology that has made horizontal drilling possible and created the local natural gas boom in the Barnett Shale formation wasn’t around back when the airport land was being acquired. Fair market value was based on surface land values. While it’s doubtful either side anticipated the gold mine that mineral rights and natural gas would one day represent, the cities were smart enough to sweep them up anyway — a move expected to pay off hugely in coming years. When Chesapeake Energy Corporation paid $185 million and promised 25 percent of gas royalties to drill at the airport last year, none of the original property owners shared in the sudden wealth.

George G. Wilkes was Fort Worth’s land manager back then and was responsible for overseeing crews that approached landowners with offers. He retired 20 years ago but still recalls knocking on doors and negotiating with landowners. Few were happy about being ousted for an airport.

“Three out of four didn’t invite us in eagerly,” he said. “There weren’t any really large landowners as I recall. About 15 or 20 acres was the norm, mostly small rural farms.”

Few people back then mentioned mineral rights or asked that the potential worth of minerals be included in the fair market appraisals on which payments were based.

“I daresay, nine out of 10 people wouldn’t even know what you were talking about with mineral rights,” he said.

Morris Matson was assistant city manager during that time. He processed paperwork and attended eminent domain trials when landowners and the cities couldn’t agree on fair market value. Many landowners felt ripped off, but Matson doesn’t recall any of them insisting on keeping their mineral rights. Looking back, he questions whether the city had a real moral basis for taking the subsurface ownership.

“How could you say that condemning mineral rights that are thousands of feet under the ground was necessary to build an airport?” he said. “In my opinion, we had no moral right to condemn those minerals without making sure the landowners were told that we were taking the minerals.”

Grapevine Mayor William D. Tate, an attorney, represented about 20 property owners in the airport land grab and doesn’t recall any of them seeking to keep mineral rights. After all, there were no gas leases, no mining, and no oilfields out there. Still, when the state highway department took land for highways, that agency didn’t seek mineral rights, he recalled.

“Whoever gave up the right of way for the highways still [owns] the minerals under it,” he said.

Those who lost mineral rights might be upset, but he doubts any of them could win them back in a court case.

“It seems very unfair now,” he said. But, “It would be a tough battle 30 years later.”

Lawyers could have a field day battling these issues in court, but most of the time the government wins. Property owners sued the city of Austin and the Lower Colorado River Authority after their land was taken in 1975 to make way for an electric generating plant. Six years later, the city and river authority leased the mineral rights to oil and gas drillers. The property owners sued the municipalities for fraud and misrepresentation, saying they weren’t told of the potential value of the minerals, and claiming the city lied about its right to take the minerals. The Texas Court of Appeals overruled, citing a two-year statute of limitations on suits for fraud damages.

In another landmark case dating back to 1929, the city of Abilene used eminent domain to condemn 56 acres belonging to I.N. and Elma Jackson, to make way for an airport. Many years later, the city abandoned the airport. Elma Jackson later appealed the condemnation, saying the city had no right to fee-simple title under condemnation, but in 1955, the state Court of Civil Appeals ruled in Abilene’s favor.

Much more recently, former landowners in Kentucky sued the federal government on similar charges. They were awarded $32.5 million in 2005, although they haven’t collected any money and the case continues to work its way through the judicial system.

“Right now it’s in a stalemate,” said William T. Griggs of Morganfield, Ky., whose family’s 250-acre farm was taken for a military base during World War II but was later mined for coal.

Griggs was 18 when his family was forced from their farm. Now he’s 83 and one of a number of neighbors who filed the class-action suit, saying they weren’t told they were giving up their mineral rights and shouldn’t have had them taken from them.

“My folks asked them about the mineral rights and they [federal officials] said, ‘We’re not interested in the mineral rights,’” Griggs said.

Those mineral rights bagged the government about $35 million for oil and coal leases.

“You want to think your government will treat you right, but the government will cheat you just as quick as anybody I know of,” he said. “I was in World War II and gave three of the prime years of my life and put my life on the line for this country, and I’d do it again, but it makes you bitter when you realize that they done us like they done us.”

A court dismissed the lawsuit in the 1960s. But they were granted a hearing in a federal claims court decades later. In 2005, Judge Susan Braden awarded them $32.5 million in a preliminary ruling. She encouraged both sides to settle and installed former Supreme Court Justice Sandra Day O’Connor to mediate. Those talks have since broken down.

“Our lawyer just said they didn’t have any news for us and as soon as they did, they’d tell us what was going on,” Griggs said. “I’m just as in the dark as you are.”

Fort Worth probably wouldn’t have secured any mineral rights at the airport if the land were being purchased today. Nowadays, owners know better than to give up mineral rights for nothing. Lawsuits in the 1970s and 1980s contested the government’s right to take mineral rights through eminent domain, and municipalities now focus mostly on surface rights, said John Baen, a University of North Texas real estate professor and condemnation expert. Contracts must spell out whether mineral rights are being taken, and, when the subsurface rights are taken, municipalities must pay the fair market value.

Property owners in the path of the Trinity River Vision or the Southwest Parkway will enjoy any profits from the current natural gas boom because they now know to retain their mineral leases. City officials have said they are not seeking mineral rights when buying land for either of those projects, and state officials said the same about land required for the Trans-Texas Corridor, a planned tollway across the state.

These days, when gas drillers or city officials start eying their communities, Fort Worth property owners start holding meetings, discussing options, and forming coalitions. Many of the 95 property owners in the path of the Trinity River Vision have collectively hired Corsicana-based attorney Glen Sodd, who specializes in eminent domain issues and oil and gas law.

“Property owners will drive a harder bargain for themselves based on this knowledge,” Lukeman said. “There is now a track record of what these minerals will yield, and if somebody is going to purchase by force a certain amount of property, they must buy those minerals if the property owner is wise enough to insist on that.”

In many ways the system is set up for the governments and utilities to beat out the little guys. At least for now. But change is looming.

A 5-4 decision by the U.S. Supreme Court in 2005 angered many people who consider private property rights to be sacred. The U.S. Constitution’s Fifth Amendment protection against gratuitous governmental interference says property shall not be taken for public use without just compensation. The dispute lies in determining what constitutes “public use” and “just compensation.” Kelo vs. City of New London made it clear that at least five Supreme Court justices didn’t view property rights as sacrosanct.

In that decision, the Supreme Court majority ruled that a government can take property and bulldoze homes and buildings to make way for private economic development. Their reasoning: If the new development results in larger tax bases and more jobs, then it’s for the public good. A majority of Americans have some questions about the fairness of taking someone’s property to build a mall that might or might not succeed.

The decision outraged many, and O’Connor, who was on the Supreme Court but voted in the minority, warned that the ruling bowed to the influential and would embolden local governments to seize land to make way for pet projects. (Arlingtonians, say hello to the Dallas Cowboys.) Justice Clarence Thomas predicted the decision would most affect poor communities and the politically powerless.

“Before the Supreme Court decision, cities already regularly abused the power of eminent domain,” Dana Berliner wrote in Opening the Floodgates: Eminent Domain Abuse in the post-Kelo World. The report was compiled in June 2006 for the Institute of Justice, a nonprofit public interest law firm based in Arlington, Va. “But Kelo has indeed become the green light that Justice O’Connor and Justice Thomas warned of in their dissents.”

On the other hand, the decision created a groundswell of opposition that in some cases has led to states passing measures to rein in abuses. Some states already forbid using eminent domain for private development unless it eliminates blight. Texas ain’t one of ’em, as Gov. Rick Perry proved earlier this year when he vetoed a bill designed to give more protections to landowners.

Perry vetoed the bill (HB 2006) after an amendment was added that city and county officials said would increase the cost of acquiring land for roads and highways by at least a billion dollars a year and open the door for condemnation lawyers to file suits — at taxpayers’ expense — for diminished access to properties. “We supported the bill up until an amendment got put in that ... could have halted any kind of urban expansion in its tracks,” the governor’s spokesman, Robert Black, said. “Every major city in the state came out and begged us to veto it.”

The amendment was added late in the session, and Perry warned legislators that he didn’t support it. However, the bill’s author, State Rep. Beverly Woolley, a Republican from Houston, wouldn’t remove it, telling a Houston reporter there wasn’t enough time left in the session to change the wording.

Many lawmakers, including State Rep. Phil King, a Weatherford Republican, liked the bill and said it made eminent domain more equitable for property owners.”If that’s what their property is worth, that’s what the government should be paying,” King said. “The government is not supposed to get a discount on these deals.”

Legislators will pass an eminent domain bill next session, he predicted.

“Property rights are one of the most fundamental elements of our way of life, and if the government is going to take property away from you against your will, they better have a really good reason for doing it, a very important matter for the whole public, and they better pay you what it’s really worth,” King said. “As a general rule neither of those things is required [currently].”

Case in point: Billy Mitchell’s fight against Empire Pipeline Corporation.

Mitchell is the Fort Worth native whose acreage near Aledo includes the 70 acres pinpointed by a natural gas driller as an ideal spot to bury a gas pipeline. Mitchell is not anti-drilling. He’s leased his property to drillers, currently has two working gas wells on his property, and has enjoyed the revenues.

But a drilling company that had leased his mineral rights in turn leased them to Empire, a company based in Lebanon, Mo. Pipeline companies have eminent domain powers, and Empire decided to cut a swath across the middle of his property. The company offered Mitchell $17,000 for the easement, which Mitchell thought was but a fraction of the worth of the damages he’d be enduring. But he quickly realized that a large company with a staff of lawyers, unlimited resources, and eminent domain powers is pretty near unbeatable.

Empire condemned more land than was necessary, Mitchell said, and then refused to let him build an improved road across the pipeline, effectively cutting him off from half of his property. “They used the tactic of denying me access to half of my property as a negotiating tool to get my land at a cheap price,” he said.

He accused the pipeline workers of purposely leaving his gates open to let his cows loose on public roads. He accused company lawyers of using delaying tactics to run up his legal costs. After two years of wrangling, Mitchell gave up and agreed to a settlement — $117,000. When his lawyers had been paid, however, Mitchell ended up with only $17,000 — Empire’s original offer. Worst of all, he said, the whole ordeal could have been prevented if Empire had simply transported its gas through nearby pipelines owned by other companies. State law allows pipeline companies to use eminent domain to build new pipelines rather than sharing existing lines owned by other companies. Why? To maximize profits for each company, regardless of the inefficiency of running numerous pipelines for the same purpose.

“If landowners had the same powerful lobbyists that pipeline and oil companies do, they would get legislation passed to makes these companies share pipelines,” said Sodd, who represents not only landowners affected by the Trinity River Vision but also those in the path of the Dallas Cowboys stadium, and numerous others who have complained of being gouged by gas drillers and pipeline companies. “It would be cheaper for the companies to all share one pipeline, but they don’t trust each other, and nobody is requiring them to be efficient in the number of pipelines they use.”

Mitchell encouraged Empire to use existing lines or at least bury its new lines in an existing easement. No deal.

“They wanted to blaze a new trail right across my property,” he said. “And they wanted to use me to show other people what happens if you fight them. If we hadn’t have settled, I would have been in bankruptcy.”

Empire officials did not return calls for comment on this story.

New versions of Mitchell’s nightmare are being played out in courts every day. The system is set up to favor the rich, in part, Sodd said, because legal costs and out-of-pocket expenses are not recoverable in condemnation cases.

“It’s hard for most people to go through these fights,” he said. “They are long, drawn out, difficult, and expensive. As a result it’s difficult on people when they receive unfair offers.”

For example, say a company wants to put a pipeline across your property, uses eminent domain to get access, and then offers you a low-ball price of $5,000 for the easement but no revenue from the pipeline. That leaves you two options: Take the offer or go to trial. A trial means spending thousands of dollars on attorneys, appraisers, depositions, and any number of legal necessities. In trial, a jury rules in your favor and you’re awarded $50,000 — 10 times the original offer. But you’ve spent $100,000 in legal fees, meaning you end up $50,000 in the hole — even though you won your case in court.

Sodd has represented property owners in similar cases for the past 35 years and frequently sees government entities make low offers to landowners, even though the law requires paying fair market value. Arlington wanted Evelyn Wray’s house and prime frontage property on Randol Mill Road for the Cowboys stadium, five acres that had been in her family for years. The city threatened eminent domain and offered $375,000, the approximate value based on Tarrant Appraisal District records but far short of its commercial potential. The elderly Wray rejected the offer, hired Sodd, and eventually settled for $2.75 million. But lawsuits involving many other Arlington property owners with smaller parcels are still pending.

“People are expressing those frustrations to legislators,” the attorney said.

That’s no guarantee of change. The state is one of the primary condemners of property, and getting legislators to pass laws making it more difficult for counties, cities, and the state’s own agencies to grab land hasn’t been easy. This year’s session was a landmark in that sense, although reforms ultimately fizzled under Perry’s veto.

“It would make it too expensive for his pet project, the Trans-Texas Corridor,” Sodd said. “Rick Perry is the landowners’ worst enemy in Texas. Rick Perry thinks its OK to cheat landowners and offer them low prices.”

Sodd can’t predict whether reactions over Perry’s veto and local issues such as Trinity River Vision will prompt further legislative pressure. But change seems as likely now as at any time in his long career. “It’s become much more of an issue in the past five years, and the Kelo decision really outraged people,” he said. “Now it’s become a political issue.”

Ft Worth TX Weekly: http://www.fwweekly.com

Lengthy litigation looms, say foes of redevelopment: Asbury Park NJ Press, 9/5/07

City would prefer to negotiate

By Carol Gorga Williams

As the city [of Long Branch] and developer Broadway Arts work to make a proposed arts and entertainment zone a reality, a small number of property owners there vow to fight "all the way to the Supreme Court, if necessary" to block the project.

In April 2006, Michael S. Kasanoff, a Red Bank attorney representing Cottage Emporium Inc., the corporate name for Rainbow Liquors, and its owners, Gopal "Paul" Panday and his wife, Kavita, and the Lighthouse Institute for Evangelism, doing business as The Lighthouse Mission, and its head, the Rev. Kevin Brown, sued the Broadway Arts Center, Long Branch and the mayor and council.

Kasanoff claimed the city had misused its power of eminent domain when it adopted an ordinance allowing for the acquisition of 57 parcels in the redevelopment zone. That ordinance called for the use of eminent domain, if necessary, although it hadn't been used for Broadway Arts at the time the lawsuit was filed, or since.

Kasanoff also claimed the state's Local Redevelopment and Housing Law was unconstitutional, which he said "mindlessly" gave a municipality the power to carry out the law.

The lawsuit also challenged the state's Eminent Domain Act, which prevents property owners from receiving "truly just compensation" as required by the state and U.S. constitutions, Kasanoff wrote.

On Aug. 1, Superior Court Judge Lawrence M. Lawson, the Monmouth County assignment judge, threw out the lawsuit. On Friday, Kasanoff appealed that decision.

Meanwhile, a federal lawsuit filed by Kasanoff on behalf of Brown, who claims religious discrimination because the commercial zone in which his property — which has never operated as a church — is located permits other places in which people assemble, such as theaters. He seeks to have the zoning reversed under the federal Religious Land Use and Institutionalized Persons Act.

That case, in which the church has consistently lost over the last seven years, is now before the U.S. Circuit Court of Appeals in the Third Circuit, Philadelphia, and a decision is imminent, Kasanoff said.

Kasanoff was joined in that case by the U.S. Department of Justice and the Beckett Fund for Religious Freedom.

Brown declared in a press release last week that the city and the developer "intended to appeal" until Brown, 55, dies. City officials and developer Todd Katz said they've never expressed that intention. Katz said he would simply like to negotiate with Brown, who has never submitted his own appraisal of his property at 162 Broadway.

Ongoing negotiations
Out of the four property owners who would not sell, Broadway Arts is actively negotiating with one, said Katz, noting for some people, it is not simply about money.

"It is not just a matter of writing a check," Katz said. "It is understanding what their desires are."

One day before Kasanoff filed his appeal, City Administrator Howard H. Woolley Jr. said the city could be prepared to file a declaration of taking — invoking the power of eminent domain — for the four remaining properties within 60 days.

City Attorney James G. Aaron said the newly filed appeal would probably not affect the city's strategy, unless a court order directs officials to halt the process.

Aaron said city officials and the developer have asked him to try again to negotiate with the holdouts, and the first step in that process is for the city to do updated appraisals. They should be completed this week.

If negotiations are successful, "that will end everything and moot all appeals," Aaron said.

However, Kasanoff's most recent appeal "won't stop anything that is presently going on," Aaron explained.

Kasanoff was clear about the possibility of a negotiated settlement: No way.

"My clients are committed to fighting this all the way . . . taking this to the Supreme Court, if necessary."

Kasanoff explained that the remaining property owners believe that property rights are sacred, and they oppose the planning concepts that go behind large-scale developments called "superblocks."

Kasanoff said he disagreed with Lawson's decision to dismiss the lawsuit without allowing a hearing or discovery.

"The court took the position 'you should have protested the decision in 1996,' " Kasanoff said when the city declared lower Broadway "an area in need of redevelopment."

Meanwhile, Kasanoff believes the federal court is about to send the city a message: Brown can stay and finally have his church, Kasanoff predicted.

"Justice takes its time, but we're just about there," he said.

Asbury Park NJ Press: www.app.com

Friedman - No eminent domain for intermodal: La Porte County IN Herald-Argus, 9/4/07

By Donovan Estridge

La Porte County Attorney Shaw Friedman made assurances Friday that eminent domain would not be invoked as a way to secure land for a possible rail intermodal facility in the county.

Friedman’s statement to The Herald-Argus came in response to concerns from some county residents that the government might force them to sell their land to make way for such a facility.

“I don’t know of anyone talking eminent domain,” Friedman said. “The county was the first on record to stand up against eminent domain. The county is not in the practice of taking land.

Although the U.S. Supreme Court in 2005 assured the right of local governments to acquire land through eminent domain for private development in some cases, Friedman pointed out that in response to that decision La Porte County became the first county in the state to issue a proclamation barring the forced acquisition of land for private development.

“This is going to be a cooperative process,” Friedman said.

As evidence of that statement, Friedman referred to the 2005 University of Illinois Chicago study that the county has been using as a guide to the intermodal process. The study recommends the participation of all stakeholders.

“It is so early in the process right now,” he said. “But before anything happens we have to have cooperation on the local, state and federal levels. In order to be successful, it is paramount to have cooperation.”

But once cooperation is established, many aspects of the project will need to be resolved on the local level before development can go forward.

For instance, if a heavy industrial facility is to be located on parts of land designated agriculture, then the La Porte County Plan Commission would have to rezone the land.

“The local government has to have a willingness to proceed,” Friedman said. “And if a facility is to go in one location, it is going to have to have support.”

La Porte County Commissioner Bill Hager trumpeted Friedman’s call for the participation of all stakeholders on the local level throughout the process. He pointed to one instance in which public input led to the decision by the county not to zone for a proposed landfill in the south part of the county.

“There was really no need for a landfill,” he said. “So as you can see, we don’t have a landfill now.”

As opposed to a landfill, however, Hager pointed out that public sentiment is more divided when it comes to private industry.

“If you ask me, you are either damned if you do or damned if you don’t,” he said of approving rezoning for an intermodal.

“Some don’t want any development,” he said. “And some do.”

La Porte County IN Herald-Argus: http://heraldargus.com

City declares intent to use eminent domain: Springfield OH News Sun, 9/5/07

By Samantha Sommer

Springfield city commissioners declared Tuesday the intent to use eminent domain on several properties in the hospital redevelopment area.

The declaration is the first step in the eminent domain process and negotiations can continue, Deputy Law Director Andrew Burkholder said.

The city is buying property downtown to make way for a new combined hospital.

Jennifer and Garth Robinson own several of the properties — 231, 236, 238-240, 242, 246-248 and 250 Cedar St.; 220 and 236 Cliff St.; 318 Baltimore Place and 452-454 N. Plum St.

The city made two offers and hasn't received a counter-offer, Burkholder said.

"We are disappointed the city is taking this action during negotiations since we had just received the city's offer Aug. 2, 2007, after waiting months for the city's new appraisals," Jennifer Robinson said in a statement.

The other properties affected are 319 Cedar St. and 319-321 Baltimore Place, owned by F.F. Springfield; 202 W. North St., owned by Calcars; and 326-328 N. Plum St., owned by Thomas Kuss.

Commissioners also approved a study finding the Southwest Downtown Urban Renewal Area, which includes the hospital site, blighted.

It is the fourth study of the area and was prompted by court rulings changing the definition of blight.

The study found health and safety hazards and 67 percent of primary structures have major deterioration.

Fritz Leighty of Leighty and Snider consultants prepared the report. He said the area is one of the worst he studied.

The city has boarded houses there while awaiting federal approval to begin demolition. That didn't create the blight, Mayor Warren Copeland said.

"It was a neighborhood that had some pretty bad conditions over time," he said.

Tim Mara, a lawyer representing Save Our Springfield, sent a letter protesting the study's approval because he hasn't had a chance to see it.

"I can only assume that your haste is motivated by a desire to initiate the eminent domain process against remaining property owners before Ohio's new eminent domain law goes into effect (in October)," Mara wrote.

Springfield OH News Sun: http://www.springfieldnewssun.com

What's Really Happening in Old Town Newhall: Santa Clarita CA Signal, 9/2/07

Guest Commentary

By Chris Price

Back in the middle part of the 20th century, downtown areas were not only the place to shop, they were also the place to catch up with neighbors and socialize. The good old feeling of a city's downtown is being re-created all over the country right now with the resurgence of downtown improvements. Here in Santa Clarita, efforts toward revitalizing Old Town Newhall, the area's first downtown, are again under way.

Redevelopment, a popular tool for revitalizing business and residential districts, has been with us in Santa Clarita for some time now, and most think that a lot of good has come from it, even if they don't know everything that has been done so far.

The first phase of the Old Town Newhall revitalization/redevelopment started in earnest back in the early '90s. The city used Community Development Block Grant Funds to construct new curbs, gutters, and sidewalks throughout all of east Newhall and in places where they were missing in west Newhall.

Prior to that time, the neighborhoods had muddy rivers running down each side of the street whenever it rained, and mothers pushed strollers down the street alongside cars just to get to and from the store. Since those projects were completed, residents began spending much more time and money improving and maintaining their yards to complement the cleaner street scene.

Shortly after the east Newhall project, the city began work on Railroad Avenue, which was completely reconstructed to become a viable "through street" again. Are you old enough to remember what the stretch of land next to the railroad tracks in that area looked like before? It was not pretty.

The Jan Heidt Metrolink Station was constructed shortly after the completion of Railroad Avenue, ending the second major phase of improvements to Newhall. The third phase included construction of the Newhall Community Center and the Veterans Historical Plaza, as well as development of the Downtown Newhall Specific Plan. These projects, all built by the city of Santa Clarita, have provided much in the way of capital improvements, infrastructure and added to the quality of life for residents living in the area and for generations to come.

The city and its Redevelopment Agency have now entered into the fourth and perhaps most controversial phase of improvements to date. Some have expressed concern that "eminent domain" proceedings are already under way to kick people out of their homes and businesses. Nothing could be further from the truth.

While it is true that the Redevelopment Agency may purchase properties, and it is possible that some businesses occupying those properties may be relocated, the agency legally cannot "take" a residence for any reason. And while eminent domain may be used in some instances, the mechanics of that process are very slow, careful, and complicated.

If the city does reach the point where eminent domain is necessary, those affected will be well taken care of throughout the process. Any questions about eminent domain are welcomed and will be answered. Most, if not all, businesses impacted by previous city projects are thriving today.

Many people may not know that Old Town Newhall is home to a historic jailhouse (currently the Antique Flower Garden) and the American Legion Hall. These 100-year-old structures and others are historic treasures in Old Town Newhall. The city's plan calls for the preservation or adaptive re-use of these and other structures.

The current owner of the Antique Flower Garden could, at present, tear the building down after simply pulling a demolition permit (although a historic preservation ordinance is on its way to prevent that). The downtown Newhall Specific Plan, adopted by the City Council and the agency, clearly states the city's intentions for the area, which does not include demolishing historically significant buildings.

Both buildings are already adaptive re-uses of their original purposes. If the agency purchased them, they would most likely be re-adapted to uses much closer to their original purposes than their uses are today.

Maybe the American Legion members would like a newer location more suited to their activities, or maybe they don't want to move one inch. Careful consideration will be taken with each and every decision before any are made. Nothing is a "done deal" with redevelopment until all options have been considered, acted upon, and carried out by the Council/Agency.

As part of our award-winning city government, all decisions like these are discussed in public during multiple public meetings. Newhall Redevelopment Committee meetings are open to the public and are held during on the first Monday of each month (or a week later if one falls on a holiday). The Redevelopment Agency/City Council meets twice each month, and its agendas are available on the Web and at several locations in the city.

For more information, log on to: www.oldtownnewhall.com or call the City of Santa Clarita at 661-259-CITY.

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

Chris Price is a senior engineer for the city of Santa Clarita. His column reflects the city's stance, not necessarily that of The Signal

Property issue going before council tonight: Bedford OH Times-Register, 8/29/07

Will consider using eminent domain to seize land from Right Dimensions

By Matt Fredmonsky

Tonight, Kent City Council will take what could be the first of three steps in approving the use of eminent domain to seize private property in a downtown block.

The special council meeting is scheduled primarily to discuss and vote on the decision to force the sale of three parcels owned by California-based real estate firm Right Dimensions. The meeting is the first of three scheduled this week, with executive sessions requested after each special meeting.

The executive session request cites the need to discuss pending litigation and land acquisition, according to the meeting agenda.

The city and Right Dimensions are currently involved in a lawsuit instituted by the firm because of damage city personnel inflicted on one of the structures fronting College Avenue. Following the damage, the firm filed a claim with the city's insurance company, Sutton Insurance of Aurora, ranging from $30,000 to $70,000 in the summer of 2006.

The insurance company and Right Dimensions were unable to agree on a settlement, which led to the firm filing a civil suit in Portage County Common Pleas Court in March.

Now council is moving forward with the eminent domain process to force the firm to sell its property to the city based on reasoning the city will be eliminating and removing conditions of blight and deterioration.

The resolution declaring the necessity for implementing the eminent domain process requires three separate votes from council. However, seven yes votes tonight from council can suspend the rules requiring three readings and two subsequent meetings Thursday and Friday. Adoption of the resolution will require seven yes votes to pass the issue with an emergency measure and forego a 30-day delay before the process can begin.

City Manager Dave Ruller said approval of the resolution will allow city staff to begin the formal legal process for instituting eminent domain.

The city is attempting to amass land in the block once targeted by Right Dimensions for a downtown village project. Officials again intend to market the block for a development project but not until the city has control over the entire area.

Right Dimensions president Andrew Lombardo sent a letter to council Aug. 14 stating his firm will fight the city's attempt to force a sale of the property.

"From the time it was apparent that we needed to initiate a lawsuit we have been working toward our developmental goals," Lombardo wrote. "Right Dimensions has no other alternative but to proceed with out own plans to develop out land. As a result of our efforts, we will be submitting plans for a design review to your community development department."

As of Tuesday afternoon, no proposals for the three parcels had been submitted to the city, according to the community development department.

Bedford OH Times-Register: http://www.recordpub.com

Developer won't oust popular gym; he'll build project around it: San Diego CA Union-Tribune, 8/30/07

By Tanya Sierra

A developer proposing a block-long housing and retail project that includes a 24-story condominium tower has said he no longer wants to displace a popular National City athletic center. But that's not stopping the gym's lawyers from challenging the city's eminent domain authority.

Jim Beauchamp said this week that he would build around the Community Youth Athletic Center – a tutoring and mentoring program that trains young boxers – instead of continuing to try to buy its building.

The nonprofit center's board of directors, which has been fighting to either stay in its paid-for building or get a substantially higher offer from Beauchamp, reacted cautiously to the news.

“We have never seen this in writing,” board vice president Victor Nuñez said. “We do not know any details as to what exactly they mean by they're going to build around us.”

Beauchamp said he has tried to reach a deal with the center for three years.

“If they want to stay, we can design around them,” Beauchamp said Tuesday. “There's no sense in fighting; we have to move on. I've been more than willing to set up meetings and extend the olive branch for years.”

A similar situation played out in 2006 when a landowner up the street from the gym was on the brink of selling his corner property to an Australian development team. The owner, Daniel Ilko, eventually decided not to sell. The developer, Constellation Property Group, then decided to build around his property.

Background: Community Youth Athletic Center board members and developer Jim Beauchamp spent three years negotiating a price for a new gym location after National City officials approved a redevelopment project where the center is located.

What's changing: Beauchamp said this week he would redesign his project and build around the boxing center.

The future: The gym's lawyers still plan to file a lawsuit challenging National City's blight designation and use of eminent domain, which they say is among the most abusive in the country.

Online: For a multimedia presentation on the gym, go to uniontrib.com/more/boxing.

Earlier this month, the gym's plight reached a national platform after the center's high-profile lawyers, based in Virginia, sent news releases to hundreds of media organizations explaining their National City case.
The Institute for Justice was the law firm that represented homeowners in the Kelo v. City of New London, Conn., eminent domain dispute in 2005. In that case, the U.S. Supreme Court ruled that governments could force private property owners to sell their land to spur economic development.

Some journalists and bloggers picked up the National City story, including Sports Illustrated and a syndicated Florida newspaper columnist.

For about 15 years, the gym's founders, Carlos Barragan Sr. and his son Carlos Jr., have been recruiting gang members and at-risk youths in National City. Hundreds of youths learned to box at the Barragans' center, which began in the elder Barragan's backyard.

The father and son instilled a sense of discipline in the boxers and mentored many who believed they were headed for prison or an early death.

Rick Reilly of Sports Illustrated wrote in his Aug. 13 column that “the city is threatening to seize their property through the right of eminent domain, which is bureaucratese for 'we take your land and you watch.' ”

To Mayor Ron Morrison, Reilly directed this comment: “And if you kick the Barragans out so some slick in Armani can buy a bigger yacht, I hope your car stereo gets jacked – weekly – by a kid who would've otherwise been lovingly coached on their jabs and their math and their lives.”

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

Art attack: City to evict art space for … art space! The Brooklyn NY Paper, 9/1/07

By Dana Rubinstein

The city wants to use its power of eminent domain to push out an almost-finished arts venue in Fort Greene to make way for a Manhattan-based dance troupe and 150 new housing units that comprise the centerpiece of the so-called BAM Cultural District.

“Our goal was to create a live music-and-arts venue,” said Todd Triplett, one of the three friends behind the Amber Art and Music Space, which is being built in a former liquor store at Fulton Street and Ashland Place.

Lured by the promise of the burgeoning “Lincoln Center of Brooklyn” that the city envisions for the area around BAM, Triplett and his partners invested more than $1 million, and spent a year and a half turning the run-down, three-story space into a performance venue, recording studio and an arts non-profit.

That grand idea was shattered on Aug. 21, when Jack Hammer, the director of Brooklyn Planning for the city’s Department of Housing Preservation and Development, informed the three partners that the agency wants to seize the site by eminent domain to make way for the Dancespace Project, a Manhattan-based dance group.

“We were four weeks away from completion, and we get this letter. The city is f—king us,” said Triplett, who has already gotten a liquor license and booked musical acts into 2008. “I’ve never seen anything this egregious. This is in the tradition of Robert Moses.”

The partners claim that no one — including the broker who secured them the space and the landlord, who let them sign a 10-year lease and has collected $200,000 in rent so far — informed them of the city’s plans for the site.

“We refinanced our homes to do this,” said Triplett, standing shell-shocked amid construction materials in the area that would have housed the main lounge. “We took second jobs.”

None of the men, all in their 30s, are newcomers to business or to the neighborhood. Triplett, a Clinton Hill resident, has a Masters in arts administration from the Pratt Institute and runs Parks-Hall, an arts non-profit. McKenzie is a Goldman Sachs alum, a Brooklyn Tech graduate and an Adelphi Street resident. Jenkins’s family runs Paladin Construction, based in the Navy Yard. He also lives on Adelphi Street.

“We [heard the term] BAM Cultural District, [but] it was kind of like how you hear the ‘Theater District,’ ” said Triplett. “We thought BAM was calling it the ‘BAM Cultural District.’ So it kind of fit with what we are going for.”

Local real-estate broker Eva Daniels, who helped the men sign the 10-year lease with building owner Juan Lopez, said she had no idea the site was slated for redevelopment.

“I’m really shocked,” said Daniels. “We asked questions. [Lopez] did tell me about BAM wanting to buy the building, and that he was renting it because they couldn’t agree on a price.”

Lopez did not respond to repeated requests for comment.

The city plan for the “cultural district” calls for BAM to anchor an artistic community that would serve as a counterweight to Lincoln Center. In February, the city requested proposals for a building that would house Dancespace Project, ground-floor retails and 150 units of housing, many of them affordable.

The development would occupy both the Amber site as well as the home of the financial information firm, Track Data Corp, which employs 150 people nearby.

But city officials maintain that adequate public notice of the eminent domain plan was given.

“In 2004, all the affected landowners were informed of the potential of their buildings being taken,” said Seth Donlin, a spokesman for the Department of Housing Preservation and Development. “So [Lopez] … has known about the possibility since 2004.”

The city held a public hearing about the eminent domain process on May 22.

Joe Chan, president of the Downtown Brooklyn Partnership, the quasi-governmental agency overseeing development in the area, said the seizure of the site was necessary to the borough’s growth.

“The mixed-use building will house the city’s first contemporary choreographic center and will provide affordable work and performance space for dance companies and individual artists — many of whom are Brooklyn residents,” Chan said in a statement. “In addition, the new project will create at least 150 units of new housing — half of which will be affordable to low- and moderate-income families.”

The Brooklyn NY Paper: http://www.brooklynpaper.com

City needs to tread carefully: Jacksonville FL Times-Union, 8/27/07

By My Nassau Sun

Fernandina Beach has a lot of natural beauty, so it's important to keep as much green space as possible.

That's why it is laudable that the City Commission wants to buy and preserve nearly 3 acres of pristine wetlands on Sadler Road.

Not that there is anything wrong with getting another luxury hotel, which a developer plans to put on the land. A new hotel would pump more tourism dollars into the local economy.

But a greater good might be served by maintaining the ambience of that area, which is part of the ecologically bountiful Egans Creek system.

There is, however, a right way to do things - and there's a wrong way.

The right way would be to buy the land - assuming the owner wants to sell it and the price is right.

The wrong way would be to acquire it through eminent domain - force him to sell it, in other words.

That, unfortunately, hasn't been ruled out. To the contrary, acting City Attorney Tony Leggio advised the commission last week that eminent domain would be the "least-expensive option."

Also the least desirable.

Eminent domain allows government to purchase land - at a fair price - for public purposes, even if the owner doesn't want to sell it.

For what public purpose could government take the Sadler Road property?

For drainage, as commissioners say they're considering? But the St. Johns River Water Management District Board doesn't see a problem. It has already approved the project, on the condition that a drainage pond be included.

For a park, as commissioners also have suggested?

But the original intent of eminent domain was so government could acquire land absolutely vital to the public good - for things, as The Oxford Companion to the Supreme Court notes, such as roads and bridges.

If a certain parcel of land cannot be bought, a major highway cannot be built. But if land isn't available for a park in one part of the city, it can go in another area.

Granted, recent court rulings have corrupted - or at least obfuscated - the intent of the Fifth Amendment's "takings clause."

But, even then, it's a stretch to say there is a compelling public interest in acquiring land for a park - or for drainage in an area where drainage apparently isn't a problem.

The city already is bogged down in one prolonged and very expensive legal dispute with its airport operator.

Does it want another?

Jacksonville FL Times-Union: http://www.jacksonville.com/tu-online

Eminent Domain Bill’s Loopholes Contribute to ACA 8’s Defeat: Californians for Property Rights Protection, 9/12/06

Press release

Redevelopment Industry Sponsored Alternative Measure Far Worse

Due to what eminent domain experts identified as flaws and loopholes, the redevelopment industry sponsored ACA 8 (Assemblyman De La Torre), was defeated in the California State Assembly last night.

Despite the League’s [The League of California Cities] to wage one the most aggressive and expensive lobbying efforts to move legislation that the Institute for Justice, the organization that represented Susette Kelo before the U.S. Supreme Court, said would “do little to prevent the actual taking of property in California,” a coalition of property owners, taxpayers, small business, family farms and faith based institutions scored a major victory for California private property rights last night.

“The legislature simply didn’t buy ACA 8 as a genuine effort to reform eminent domain abuse,” said Jon Coupal, president of the Howard Jarvis Taxpayers Association. “Since it would have empowered government by granting Constitutional protections for existing eminent domain practices, passing ACA 8 would have been worse than doing nothing at all.”

In addition to sponsoring ACA 8, the League of Cities is circulating a fundamentally flawed initiative also designed to prevent real reform of eminent domain abuse. The League’s ballot measure does not protect businesses, family farms or places of worship, and provides only limited protection for primary residences. Moreover, like ACA 8, the ballot measure does not limit or address broad definitions of “blight” that allow property to be seized under conditions such as, “adjacent to” blight, “lacks parking” or “existence of subdivided lots of irregular form or shape.”

The measure also includes a poison pill provision that is intended to undermine the California Property Owners and Farmland Protection Act, a Californians for Property Rights Protection sponsored measure slated for the June ballot that provides real Kelo reforms. With the defeat of ACA 8, the taxpayer financed League of California Cities will be required to spend millions of dollars to qualifying their ballot measure version through collecting signatures.

“It will be difficult to raise funds for the League’s measure since it actually provides even fewer protections than ACA 8,” said Coupal. “The only constituency that would have any interest in financing the League’s measure are those who benefit from existing practices of eminent domain abuse. Simply put, the League’s ballot measure was drafted by redevelopment interests for those who profit from the status quo.”

The California Property Owners and Farmland Protection Act (CPOFOA) is sponsored by the Howard Jarvis Taxpayers Association, the California Farm Bureau Federation and the California Alliance to Protect Private Property Rights. The CPOFPA will prohibit government from seizing private property for private purposes, while allowing government to use eminent domain for all legitimate public projects. The measure does not include any regulatory takings that limit land use or zoning restrictions.

Californians for Property Rights Protection: www.yesonpropertyrights.com

Widening Warwick - Two lanes, lots of lawyers: Newport News VA Daily Press, 10/10/07

An inside look at how hidden costs and legal snarls can cause a pile-up for a vital Newport News road project

By Matt Sabo

It takes more than asphalt, concrete and orange cones to widen Warwick Boulevard.

It also takes six legal firms or researchers at a cost of $179,549, with one of the lawyers who is working for the state embroiled in bankruptcy proceedings.

Securing easements, buying property and undertaking eminent domain proceedings is one of the hidden costs - albeit a fraction of the overall expenditures - of adding two lanes to Warwick Boulevard.

While the cost of hiring lawyers is relatively tiny in the Warwick Boulevard project - well over $70 million for construction and land and easement acquisitions - eminent domain proceedings can drag on and even go to trial, increasing the costs to the state by tens of thousands of dollars in some cases.

Virginia Department of Transportation records show that the now-defunct Portsmouth law firm of Carr & Porter was paid $67,292, the highest amount for legal work in connection with the Warwick Boulevard project.

The Newport News firm of Stein & Smith received $41,457. Two other firms, Short Short Telstead & Kerr in Newport News and Knicely & Associates in Williamsburg, received another $64,000.

In addition, VDOT paid $6,700 to two people for title searches, records show.

VDOT pays $185 per hour for attorneys in eminent domain cases, said Courtney Malveaux, deputy counsel to the attorney general. The going rate for eminent domain lawyers in private practice can be $300 to $400 per hour, said David Clementson, spokesman for the Virginia Attorney General's office.

The lawyers are hired through so-called solicitations for proposals. Lawyers list their qualifications, whether they are insured and other information that transportation officials use to recommend to the attorney general's office on whom to hire, Malveaux said.

The state has about five dozen firms handling eminent domain cases across the state, Clementson said.

Eminent domain is the legal term for the right of the state or federal government to take private property for a public purpose even over the objections of property owners.

VDOT has spent about $30 million on land acquisitions and easements for the Warwick project. But the transportation department's budget for property acquisition on Warwick Boulevard is $43.2 million, though the agency may not spend that much.

One of the lawyers for Carr & Porter, Kelly Daniels Sheeran, was working for the firm and had bought it with another lawyer from J. Ridgely Porter.

The details of the financial issues that resulted in the breakup of Carr & Porter aren't clear. But Sheeran has worked eminent domain cases for VDOT for years and now finds herself in the courtroom for another reason, Chapter 7 bankruptcy proceedings.

Attempts to reach Sheeran were unsuccessful.

Sheeran listed assets of $564,000, most of it tied up in the value of her Virginia Beach home, according to documents filed in Virginia Eastern Federal District court. Her debts topped $1.1 million, including $744,500 in a promissory note to attorneys J. Ridgely Porter and Delaine Porter.

Attempts to reach the Porters for comment were unsuccessful.

"We're not going to comment on an attorney's personal life," Clementson said. "If it becomes evident that the quality of work becomes affected or impacted, then that would raise an issue."

But Sheeran has been effective for the state, he said. "She's done her job," Clementson said.

Newport News VA Daily Press: http://www.dailypress.com

Family prepares to fight RTD: Denver CO Mile-High News, 10/11/07

Couple's business and home are slated for condemnation for West Corridor light rail

By Jennifer Gilbert

Galen Foster and his wife, Kim Snyder, have owned and operated Pro-Window Tint for 23 years while living in the attached house off 14th and Wadsworth. The couple received a letter of notice from the Regional Transportation District informing them that their property has been chosen for condemnation to make room for the West Corridor light rail.

They were eagerly anticipating the chance to turn their property at 1398 Wadsworth Blvd. into a retail space that they could rent out after their retirement.

Now, the couple is trying to hang on to the house and shop they do have. Foster and Snyder have lived in the ranch home and owned the attached Pro-Tint Window Tinting for 23 years.

They received a letter from the Regional Transportation District on Sept. 28 informing them that their property was one of 18 being condemned in the first round of eminent domain proceedings for the $635 million West Corridor light rail.

"If somebody would have just called, one human being to another, it would have been different," Snyder said. "We were absolutely blind sided. Up until a month before, they were telling me, 'We don't know what we're going to do.'"

RTD sent out 16 letters of intent in its two first batches, and eight properties were in Lakewood. Spokeswoman Pauletta Tonilas said RTD expects to send 50 total letters to property owners from Denver to Golden by December.

"These are notice of intent letters," Tonilas said. "We identified these in the environmental assessment process as properties we would likely need for the project. Engineers do the design and certify the properties we actually need."

When Snyder called RTD, she was informed her property would be necessary for staging purposes, but it would not be used for a station or parking. Tonilas said each property acquisition is unique, with some being used for sidewalks, stations, parking and other related needs.

Snyder and Foster had been eager for the light rail and the renewal it would bring, hoping it would allow them to realize their new retail space.

The couple has hired a lawyer before the first appraisal of their property, trying to save their house and business from being leveled for preconstruction staging projects.

"This isn't about stopping light rail, and this isn't about stopping eminent domain," Snyder said. "I'm an intelligent woman. I understand RTD will need to use eminent domain.

It's about stopping the expanding rights RTD and the government have over individuals and their property because of the abuse of eminent domain."

RTD informed property owners in its letters that RTD will have companies hired by RTD appraise properties. It will also pay for an independent appraisal chosen by the property owner.

Property owners have 90 days from the date of the letter, Sept. 26 for Snyder and Foster, to get their own appraisals.

Bonnie Roerig is one of the appraisers hired by RTD. She also did appraisals on the properties in the Solterra Development.

She said a major part of her company's appraisals are eminent domain condemnation properties.

"Our goal is to establish a property value that is fair to the property owners and taxpayers of Colorado," Roerig said. "That RTD is the client has nothing to do with my appraisal. … It's my opinion based on available, factual market value. It's not intended to please anybody else."

The problem for Snyder and Foster is that they do not want to sell. As Snyder pet Zoe, one of their two rescued Doberman pinchers, she said she and her husband were not hiring an attorney to get more money.

She and Foster's shop, totem poles and all, has become a landmark in the city at the corner of 14th Street and Wadsworth.

"This is about me, my home, my family, my rescued Dobermans," Snyder said. "We're part of this community."

The community has shown an outpouring of support for the couple. Everyday, at least one informational packet, attorney recommendation or caring message comes from someone.

Friends are holding a bake sale for the couple at the shop on Saturday, Oct. 13, to raise funds for the legal fees.

"We'll never find another space where we can have a beautiful home attached to a business," Snyder said. "I don't feel that at this point in our life we should have to make this decision and start over at another location."

Tonilas said the RTD engineers evaluated the best possible route to acquire the fewest number of properties necessary along the route.

The Pro-Tint store is the No. 1 tinting business in Colorado of its size and the No. 6 business of its size in the nation.

"Everything is corporate, and nothing is for the little guy anymore," Foster said. "We as a community can take these big corporations and put them back in their place."

Construction for the West Corridor is slated to begin in January of 2008. Foster and Snyder will continue to work at Pro-Tint and live in the accompanying house throughout the legal proceedings.

Denver CO Mile-High News: http://www.milehighnews.com

City missed an opportunity: Evansville IN Courier & Press, 10/10/07

By Jimmy Nesbitt

Evansville city officials once had an opportunity to use the power of eminent domain to purchase a piece of property that later cost taxpayers $603,000, a deal that netted a 382 percent profit for Evansville businessman John Dunn.

In January 2006, the city's Redevelopment Commission placed the parking lot at 118 to 120 SE Riverside Drive on its acquisition list. The lot is adjacent to the McCurdy, the health facility and former hotel. Three months after putting the parking lot on the list, the city learned Indianapolis developer Scott-Hilliard-Kosene was interested in purchasing the McCurdy.

Developer Stephen Scott, president of the development company, contacted the city in April. He wanted help in acquiring parking spaces for the development. The problem, though, was the city could no longer use its municipal power to acquire the parking lot, even though it was on its list. Just a month earlier, in March, the state Legislature passed a law restricting government's use of eminent domain.

The law said government entities could no longer acquire property and then give it to a private developer for economic development.

The change, explained Jane Reel of the city's Redevelopment Commission, "makes economic development difficult because we don't have the threat of eminent domain that we used to."

The legal change was one of two ironies in the land deal — the other being the former owner of the parking lot, Old National Bank, was willing to work with the city to help with the McCurdy transformation. But the bank, about a year earlier, had sold the parking lot the city now needed for the development.

Those two situations — the change in eminent domain and the sale of the parking lot — didn't leave the city a lot of choice if it wanted to purchase the land.

Mayor Jonathan Weinzapfel has said the $603,000 was a "price we were willing to pay to make sure this deal was going to happen."

The mayor and Scott, the developer, met face-to-face in May of 2006 to discuss the McCurdy. A year later, they announced an $8.2 million project to turn it into 94 to 100 upscale apartments, including some commercial businesses.

Finding parking for the historical building was key to the deal, and officials decided the property owned by Dunn was the best choice. By law, the city's first offer had to be the average of two independent appraisals conducted in 2006.

Dunn, the chairman and CEO of Dunn Hospitality Group, purchased the property in 2005 for $125,000 from Old National Bank. He was a former member of the bank's board of directors.

And at the time of the sale, he was a member of the bank's community board, an advisory group.

Kathy Schoettlin, Old National's spokeswoman, said the property was sold to Dunn after the bank failed to obtain a sufficient bid at a public auction, conducted by Hugh Miller.

Not much initial interest
Miller publicized the auction, Schoettlin said, but only a few people attended. One person made a bid of $80,000, she said.

"It was just a parking lot next to a struggling entity," said Schoettlin. "The value was very little, and the interest was very small."

Dunn said he couldn't recall exactly how he found out the parking lot was for sale. He said he may have found out when he inquired about purchasing the McCurdy, which was also up for sale at the time.

Dunn said he bought it with the idea of building high-rise condominiums on the property because it was one of the last undeveloped spots on the riverfront.

Later, a Realtor approached him and offered the average of two independent appraisals, which was $447,500. He countered with an offer of $603,000.

Dunn, who was aware the city had been looking at acquiring property in early 2006, said he thought the Realtor was representing Scott-Hilliard-Kosene.

The commission unanimously approved the purchase last week, and the deal was closed Monday.

"I had no idea it was the city," he said. "I didn't even know that until they actually agreed to buy it for what I'd take for it."

Evansville IN Courier & Press: http://www.courierpress.com

Eminent domain will be used for trail property: Preston MN Republican-Leader, 10/10/07

By Lisa Brainard

The last two properties on the proposed Preston-to-Forestville recreational trail will be acquired through the process of eminent domain or, in other words, taken against the wishes of landowners Vernon and Kay Ristau and John and Bernadette Snyder.

Members of the Preston City Council — serving as the agent for a Joint Powers Board which governs the bike trail — made the decision unanimously after nearly two hours of discussion during the Oct. 2 city council meeting.

The Ristaus and Snyders repeatedly asked how the private landowners present at the meeting would like to have strangers on their land or to have their land taken away.

Preston Council members cited reasons why they felt the land should be acquired and purchased for the trail.

Contacted one week after the meeting, Preston attorney David Joerg said the city was still open to negotiations with the landowners.

"We would like to see this dispute settled without any legal proceedings. That would save us all money, including the landowners," he stated.

Before proceeding with eminent domain, Joerg said some survey work needs to be completed offsite on the Ristau property to get the final legal description. That work has already been completed on the Snyder property.

If eminent domain proceedings go forward, Joerg said the two properties would likely be combined. The Ristaus and Snyders will be served with a petition for acquiring the property.

There would be a hearing before a judge, which would determine if taking land for a public bike and recreational trail is a "public purpose." This must be the case for eminent domain to occur.

Joerg said during his interview — and it also was noted at the Preston City Council meeting — that a recent decision in Mower County gives high hopes to the classification of recreational trails for a public purpose. Joerg called it a "landmark case" in the state of Minnesota.

City council member Bob Sauer noted at the meeting his involvement in the process had started in earnest here six to eight months ago. He noted the Mower County case was decided in a short time. There were 14 landowners and eminent domain was used on seven of them. The decision was upheld in an appeals court.

Vernon Ristau, at the meeting, stated this process had been pushed at them for around 10 years.

"When other people say 'no,' can't you let it go?” he asked.

Once it has been determined to be in the interest of public purpose, the judge would appoint three persons to form a commission. Joerg stressed they are from the property appraisal and real estate fields and not county commissioners. They would look at the properties and come to a decision on what should be paid, then filing that information with the court.

The Ristaus and Snyders would then accept or reject the compensation offer. If rejecting, the district court would then set up a trial. Joerg said juries have always heard such trials.

The jury would listen to the information used to figure the valuation and also look at a replacement value for the properties. Then the jury would render a decision.

If all moved smoothly ahead, either by negotiations or by not appealing the value offered for the land in eminent domain proceedings, the whole process could take as little as 60 days to complete.

While hopeful that might happen, Joerg noted the attempt to acquire the land has gone on for several years at this point.

As the council meeting opened, council member Bob Sauer gave a summary of his work with Ristau and Snyder. He had been appointed to try to work out a solution, which might involve an alternate trail location.

Sauer noted that it was not until near the end of his time spent with the landowners that he learned the Department of Natural Resources (DNR) had a set point where they wanted the trail to enter Forestville/Mystery Cave State Park due to the park's geology and topography. He came to understand there would be no exception to that entry point.

Before that time, Sauer said Snyder had come up with several plans to have the trail come across his property in a different manner.

Other trail placements would have required land from different landowners who either had already sold land for the project, or also did not want to have their properties purchased. Going south of the Root River was eliminated as an option.

Sauer stated, "It appears to be the end of the trail and trail proponents have no options. We need to go after it in that fashion."

Dale Wille — a surveyor, bike trail proponent and Joint Powers Board member — then spoke. He noted other trail alignments would require switchbacks and grades of well over the 3 to 4 percent favored for recreational trails. He said that one proposal running from Snyders to the Darrell Ray property would involve a 17 percent slope.

He also said the south side was considered for years and "just wouldn't work."

Then Joerg spoke at the meeting. He also is a Joint Powers Board member. He told how a farmer had mentioned to him that Preston is dying.

"It sunk my heart to hear that. I love this city. We need this trail. We need to get on it soon," he stated.

Landowners speak
Vernon Ristau asked how the council could go with the Joint Powers Board in using eminent domain, when only two of them had ever visited his property. He thanked Sauer for his efforts. He also noted that mayor Kurt Reicks used to hunt on the land.

"It's been in our family for 64 years," said Ristau.

"How would you feel? In your family for 64 years and you're forced to give it up. You'd fight... or have no backbone. I worked hard. Why give it up? How many in Preston will this benefit?" he asked.

His daughter, Tracy Raaen said the trail would not make a difference. She said the city should get something for kids.

John Snyder asked what had happened to the Dollar Store that was supposed to be coming to Preston, to which council members said they took action to help it come, but something else could not be worked out on the developer's end.

Snyder continued, "This is a want. It's not a need."

He said his family and neighbors had supported the Preston community for many years and didn't feel they were being treated well in return.

Kay Ristau said that some of those whose properties had already been acquired were told what they needed to hear to make it happen. She gave an example, saying Neil Haugerud was told it would be a horse trail and would not again give the land up.

Scott Winslow of Fountain spoke as a Farm Bureau member, also emphasizing it was a "want and not a need."

"If we walk in and take half your salary away, you'd put up a stink," he stated. He estimated the landowners could lose from $7,000 to $8,000 a year, both from crops and from other uses of the land by the families.

He also pointed out that the people using the trails leave town; they don't bring kids into the schools. "They won't generate near the income these people will lose."

Ruth Meirick, with the Minnesota Farm Bureau, also spoke against taking land for the trail and cited many potential problems.

Kay Ristau said her insurance agent told her they would be liable for trail users who would wander onto their property and might get hurt. Joerg disagreed, saying there is "recreational immunity." Then Raaen said they had told the attorney during other meetings that his information was wrong.

Arlynn Hovey of Carimona Township asked about gates being left open. He said whether or not there's immunity, repeated problems and insurance claims could get a property owner placed on high rates or kicked off the insurance.

Ristau asked, "If we spray corn and someone has a reaction, who gets sued?"

Kay Ristau added that the income lost on the property would affect the future generations of their family.

Marc Sather of the Jailhouse Inn in Preston talked about the benefits of the trails to the area in the form of lodging tax.

Inez Strahl pointed out the southeastern part of the state is now one of the larger tourist destinations. On the other hand, the landowners asked if some council members didn't have an interest in local hotels.

The topic then turned to having to pay a fee to use the trail, an issue on which everyone appeared to agree; it has been pushed aside by politicians and the DNR.

More discussion
The council members then discussed the issue further, suspending their parliamentary rules for a discussion without a motion on the table.

Questions on "replacement property value" pointed to the use of "fair market value," according to Joerg.

As discussion proceeded, Kay Ristau asked what would happen if the property owners sued the city. "It will cost the city," she said. Family members stated that Joerg would be faced with a conflict of interest. He had said he would do the bike trail work pro bono for the city. The Ristaus said if they sued, the city would need to hire outside counsel.

As the same issues continued to come up from the audience, the council discussion wound down. Sauer made the motion to start eminent domain proceedings to acquire the properties. Heath Mensink seconded the motion. Also voting favorably were Dave Harrison and Jon Haugan. Mayor Reicks does not vote in the procedures used by the Preston Council.

Preston MN Republican-Leader: http://www.stpns.net

Eminent domain law lacks flexibility: Wichita KS Eagle, 10/11/07


When the U.S. Supreme Court blessed a local government's taking of property for private development in 2005, its decision was met with a shudder of restrictive legislation by the states. Understandably, there was bipartisan outrage at the idea that City Hall could seize your home or business and hand it to a mall developer. The people pushed back.

Now, natural disasters and other real-world cases are shoving the debate the other way in Kansas. Legislators need to account for reality, not just as it's playing out in Greensburg and postflood southeast Kansas but also in blighted urban areas.

To its credit, Kansas didn't respond as rashly as some states to the decision in Kelo v. City of New London, Conn. Lawmakers just made eminent domain hard to use, let alone abuse, for economic development.

But the new law is restricting officials in Greensburg, Coffeyville and elsewhere in Kansas from rebuilding some housing. When people walk away from their storm-damaged properties, public officials now need the Legislature's OK to put the land to productive use, creating red tape and delays that threaten communities' ability to rebound. Sometimes, as in Osawatomie, officials can't even find property owners.

Legislators should improve the law to help rather than hinder in the aftermath of natural disaster. But they shouldn't stop there. As the League of Kansas Municipalities, the city of Wichita and Wyandotte County argued unsuccessfully last session, communities need flexibility to use eminent domain for economic development as a last resort, including for blight remediation.

Mike Taylor, public relations director for the Unified Government of Wyandotte County, told The Eagle editorial board Wednesday that the 2006 law makes no distinction between the taking of farmland for a shopping center and the taking of boarded-up crack houses that a faith-based group is ready to turn into low-income housing. And he said no process has been established for how and when a community might ask for legislative approval (only during the regular session's 90 days?).

The law also gives the Legislature the power to hike purchase prices to 200 percent or more of fair market value, in effect rewarding slumlords and sticking it to local taxpayers. And it should bother Kansans more that the law turns local planning decisions over to the state. "It puts economic development suddenly in the realm of the worst kind of politics," Taylor said.

State lawmakers were right to fortify Kansans' property rights in 2006, in the process giving themselves a prime accomplishment to campaign on. But they now have a duty to clean up the law to aid both communities ravaged by storms and neighborhoods devastated by blight.

Wichita KS Eagle: http://www.kansas.com

Family wants to keep land: Tulsa OK World, 10/8/07

Jenks school officials say tremendous growth means they must take the land owned by one family for more than 100 years

By Sherry Brown

Ree Greenwood did not get to speak to the Jenks school board during a visit last week from her home in Atchison, Kan., but she put the school district on alert that her family is not going to give up its land without a fight.

The Jenks school board voted at its Sept. 10 meeting to proceed with legal condemnation of two properties, including nearly 40 acres co-owned by Greenwood and her sister, north of the district's West campus on 91st Street east of U.S. 75.

The land is what is left of an original 160-acre allotment given in 1903 by the Muscogee (Creek) Nation to Greenwood's grandmother, Carrie E. Gregory.

And although no one has lived on the land for decades, it means a great deal to the family. In the spring, Greenwood and her son worked to preserve one room of the house where her father, Norman Gregory, was born and where she visited every year as a child.

"We would take photographs of the cactus in bloom. Dad would tell stories about when he was a kid up there and the hard times and the good times," she said.

It is hard to find any property on or near the school's West campus that was not once Gregory land, including nearly 70 acres of the campus itself and one housing development to the southeast.

School district officials say acquisition of the family's remaining land is necessary for an expansion of its West campus, which includes an elementary and intermediate school with around 1,900 students enrolled this fall.

Roger Wright, executive administrator for Jenks Public Schools, said the West campus grew by about 500 students in the past three years, which would be considered sizable growth for the entire district, but for one site, it is even more significant.

"That site's growing by a 100-plus students per year," Wright said.

The district recently commissioned a study on student growth and demographics to provide the board and administration with information that will help them plan for continued growth districtwide, but the situation at the West campus does not require a study, and the district must take action now, he said.

The planned addition to the West campus would include at least one school building with classroom space, but Wright said the district has not determined what grades would attend classes there.

Greenwood, who attended the board's meeting on Oct. 1, said she if she had been able to address the members, she would have suggested that the district use the land it already owns along 96th Street, about five blocks from the West campus, for an expansion.

Wright says the property, which includes about 137 acres, was purchased in 1995 with the idea of building a secondary school, but about half of it is in the floodway of Polecat Creek.

"The city of Jenks has told us they have huge concerns if we want to construct a school site there," he said. "And (the school) can't commit that property at 96th to West elementary. That was purchased for a secondary school."

Wright said he is sympathetic to the family, as he comes from an agricultural background himself, but it is the children at West campus he must consider first.

"The best decision is to expand the West campus to the north right across the street; it's not to put it a half-mile away," he said.

Greenwood said she came to town because she wanted the board to know her family was not trying to get more money for their land; it is trying to keep it.

"It's not the money. That's why I wanted to talk to the board, because I don't think they understand. We really don't want to sell the land. We're not just holding out for more money, but if they're going to take it, we're going to fight. They're not going to steal it," she said.

Greenwood said the district offered the family $1 million for the land, but it was not interested.

"We just want them to go away and leave us alone," she said. "It's hard to keep your land; it's easy to get more money."

The district's offer breaks down to about $25,000 per acre, but Greenwood said she has heard of other property in the area, which is in the vicinity of the Tulsa Hills shopping center now under construction, selling for as much as $110,000 an acre.

Wright said any offer the district makes will be fair.

"I can assure you we want to pay them what that property's worth. We've made a fair offer and look forward to further negotiations," he said.

Greenwood and her sister Katherine Overstreet, who co-owns the property, chose legal representation Thursday, Greenwood said.

A meeting between the family's representatives and the school district was set for Friday.

The other tract of land also being condemned by the district is a 12-acre parcel that runs along U.S. 75. The property is owned by Marshaleta and Patrick L. Taylor.

Marshaleta Taylor also attended the Oct. 1 meeting and said afterward that she and her husband have owned the property for three years.

"It's totally different with our 12 acres," she said. "I don't want to sell mine either. I want to rezone it and sell it commercial."

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

Shooting Star sits: Austin MN Daily Herald, 10/12/07

By Lee Bonorden

The Shooting Star Recreation Trail is still 10.5 miles in length.

It stretches from the trail head in the city of LeRoy through Lake Louise State Park to Taopi, where it ends.

Prairie Visions faithful hope it’s only temporary and that the biking and hiking trail will be extended first to Adams and then on to Rose Creek and possibly its ultimate goal: across Mower County to the city of Austin.

Patrick W. Flanagan, the attorney retained by Mower County to represent the county in the dispute, believes one of two things could happen soon.

“Either there will be a summary judgment ordered by the court or there will be a trial in court,” Flanagan said. “There is a third issue that remains undecided and that is the actual value of the property.”

First leg of trail done in 1993
The project was the brain-child of Prairie Visions, the joint-ventures organization of volunteers from Rose Creek, Adams, Taopi and LeRoy.

With a $100,000 appropriation from the Minnesota Legislature, the first leg of the trail was completed in 1993.

That was from the northwest city limits of LeRoy through Lake Louise State Park.

Three years ago, the trail extension to Taopi was dedicated with a ribbon-cutting, speeches and other fanfare.

Funding for the Adams extension was obtained, but acquisition of the abandoned railroad right-of-way land for the trail’s path hit a snag in 2005. Seven property owners agreed to sell their land; 14 others refused.

Despite being offered 10 percent more than the market value of the land, they refused to sell their land to the county for the trail.

The opponents took their complaints to Mower County District Court when Mower County sought to acquire the land by eminent domain or quick-take provisions.

In May 2006, a district court judge ruled the quick taking of the land was for a pubic purpose and eminent domain was allowed.

In August 2006, the district court ruling was appealed to the State Court of Appeals.

In July, the appeals court upheld the lower court’s decision.

The case has not since been appealed to the Minnesota Supreme Court.

Flanagan is a former Mower County attorney who resigned the position to re-enter private practice in St. Paul.

Because of his experience with the recreation trail issue while he was Mower County attorney, the county retained his services to represent them before the appeals court and Flanagan successfully won the appeals court’s affirmation of the district court ruling.

The land owners brought action in the form of their appeal in two forms: 1) The district court didn’t have the right to take their property, because the trail is not a public purpose; and 2) Because the Minnesota Department of Natural Resources was to take over maintenance of the trail, it (the state agency) could not quick-take land by eminent domain.

The Appeals Court ruled the DNR issue did not apply and agreed with the lower court: the trail was for a public purpose and the county’s use of eminent domain privileges was allowed.

So, Flanagan, like the Prairie Visions faithful in Mower County, waits.

According to the attorney, if there is further action by the landowners it could only be on the DNR’s role.

“Once the property is formally awarded to Mower County, there are no more issues to appeal,” he said.

Thus, he said the only options remaining are a summary judgment to be awarded by the court or a court trial.

The third issue to be resolved is the actual value of the property, according to Flanagan.

While there was a flurry of excitement in August when Mower County published its annual financial report and listed amounts paid to the Taopi-to-Adams trail segment’s landowners, that was more of a formality than anything.

“The county had to include those amounts for the court case to show that it had set aside the money to pay for the land when it acquired it,” Flanagan said. “The checks go to the court and are held by the court in trust until the money can be released.”

Another construction season has been lost for the trail extension project.

However, the money received by the county for the extension to Adams has been encumbered.

Plans for the trail extension are completed in the Mower County highway department engineer’s office.

Austin MN Daily Herald: http://www.austindailyherald.com


NJ public advocate launches new Web site: New Jersey NJ.com, 8/28/07

by Claire Heininger

New Jerseyans seeking information on topics from eminent domain legislation to beach tag fees now can find it in one place.

The state Public Advocate, a watchdog office reinstated in March 2006 after a more than 10-year hiatus, today launched a new web site (www.state.nj.us/publicadvocate) connecting residents with avenues to seek help for grievances with government agencies.

The site will also offer consumer information such as a guide to beach fees and how to find help for mental health issues, as well as updates on Public Advocate initiatives regarding eminent domain, voters' rights and other issues.

"Every day, the department is working to serve the public interest so it was important that we have a strong online presence, giving people an easy way to access our information and services," said Public Advocate Ronald Chen. "The new website also allows people to give us their feedback and find help with specific problems they may be experiencing."

New Jersey NJ.com: http://www.nj.com

Eminent domain in Coney Island? amNewYork, New York NY, 8/29/07

By Ryan Chatelain

As city officials play hardball with a developer over the future of Coney Island's amusement zone, rumblings of a land takeover by the Bloomberg administration through eminent domain have surfaced in published reports.

But that scenario remains a long shot, say eminent domain experts.

"It is a possibility, but I would say it's a remote possibility," said William Ward, a New Jersey attorney who has worked for the government and in the private sector, serving clients on both sides of eminent domain cases.

The city and Thor Equities, which is planning a $1.5 billion development for Coney Island that includes a new amusement park and water theme park, have been at odds over Thor's plan to build three high-rise hotels, including one for time-share units, on land mostly zoned now for amusements. The Bloomberg administration plans to unveil a rezoning proposal this fall for the beachfront property that will allow for other uses but said it's committed to protecting Coney Island's storied amusement district.

Some critics are concerned that if Thor gets its rezoning, it may flip the property at a large markup, leaving the future use of the land in question.

Other fears are that Thor could let the land sit idle to force the city's hand or wait until a new mayor is in office, who may be more receptive to the developer's ideas.

City officials recently embarked on a fact-finding tour to other amusement parks and are reportedly gauging whether the company behind the famed Tivoli Gardens in Denmark - said to be the inspiration for Disney World - might play in a role in a new Coney Island amusement park, fueling speculation that the Bloomberg administration might use eminent domain to push Thor out of the picture.

"I don't see this getting into an eminent domain situation very easily," Ward said. "It seems like the city should be able to work out everything with the owner rather than go through the eminent domain proceedings."

Ward added that city's best argument to invoke eminent domain would be if Thor indeed did nothing with the land and the city found a new developer who it backed, in which case the city could cite Coney Island as blighted property.

Thomas J. Miceli, an economy professor at the University of Connecticut who co-authored the book "The Economics of Eminent Domain," said he doesn't believe the situation at Coney Island would be a justified use of eminent domain. Miceli said eminent domain should only be used to force the sale of land to facilitate large-scale projects, in which acquiring property from various owners can become problematic.

"There may be a legitimate public purpose for having this land developed in a certain way, but that doesn't necessarily give the city the right to force the current owner to sell, because there should an ability for the market to handle that," Miceli said.

City officials continue to meet with "various stakeholders" in the Coney Island redevelopment, said Janelle Patterson, spokeswoman for the Economic Development Corp.

Thor spokesman Lee Silberstein said the developer continues to refine its vision for the project.

amNewYork, New York NY: http://www.amny.com

Eminent domain changes sought: Wilmington DE News Journal, 8/28/07

Legislators' push is response to Wilmington property plan
By Adam Taylor

Two Delaware lawmakers intend to spend the next four months crafting a state law designed to limit governments' ability to abuse their powers of eminent domain.

Wilmington Democratic Rep. Dennis P. Williams and Millsboro Republican Rep. Greg Hastings made the announcement Monday, four days after Wilmington City Council approved an urban renewal plan that allows the city to condemn as many as 62 properties on the Christina Riverfront. The city could sell the properties to private developers in what would be the next step in a decade-long effort to transform the area from an industrial wasteland to a neighborhood full of homes, shops and businesses.

It is uncertain whether Williams and Hastings can come up with a law that would be passed in time to help the 50 people who own the 62 properties in southern Wilmington, although the two said that is their intent.

"We'll have to speak to the Legislature's attorneys to see what we can do," Williams said. "The issue in Wilmington should have been tabled. There are 38 businesses that are functioning down there and are not blighted. It's just not fair."

Ed Osborne of Osborne's Auto Service on A Street, directly across the street from the $200 million Christina Landing development, said he hopes the law can help the owners on the city's new property acquisition list.

"It's better than nothing," he said. "I would have liked to see them go into a special session to try to help us."

Hastings said Republicans and Democrats from all parts of the state should be concerned about the issue. He said eminent domain cuts through party ideology and across geographic boundaries.

"A lot of people see this as a Wilmington matter, but it's not," he said. "This is an issue of right and wrong. The ability to own property, and the self-determination to do with it as you see fit, are among our most basic of rights. Citizens should not have to fear that their land will be taken because government officials believe it can be put to a more lucrative use by someone else.

"I've never liked the aspect of government being a bully," he said.

Precedent for using economic development to justify invoking eminent domain was set in 2005. In Kelo v. New London (Conn.), the U.S. Supreme Court found the communitywide benefits of taking property for that reason constituted a "public use" along the same lines of taking property to build roads or schools. The case pitted homeowner Susette Kelo and 114 other property owners against New London's government, which wanted to use the properties in a larger redevelopment plan. Pfizer Corp. had built a large research facility near the properties and the city wanted to keep up the momentum from that project.

Forty-two states passed eminent domain-reform laws after the Kelo decision. Delaware was the first. But Williams and Hastings said the Legislature rushed the law onto the books. The law essentially said the "public use" for the property must be announced six months before condemnation proceedings begin.

The Institute For Justice, a nonprofit group that litigated the Kelo case and now helps people across the country in similar situations, gave Delaware's law a "D-minus" in its report card for the 42 new laws, saying, "Until the legislature enacts substantive reform aimed at a limited definition of 'public use' and forbidding condemnations for private use, Delaware home and business owners will remain very much at risk for eminent domain abuse."

"They get some points for being first, but the definitions in the law are as vague as any I've ever seen," said Steven Anderson, director of the Castle Coalition, the Institute for Justice's community organization wing. "They could be unconstitutionally vague."

Anderson said Delaware lawmakers should specify the language in the state's Slum Clearance Redevelopment Act, particularly when it comes to what conditions must be present for a property to be considered a blighted area. That's the law Wilmington officials used to justify the changes that could lead to condemning the properties in southern Wilmington.

Wilmington officials have said repeatedly that condemning properties will be a tactic of last resort. Eminent domain powers will be invoked only if negotiations between the city and the property owners fail, city Communications Director John Rago said. The city doesn't know how many properties on the list of 62 it will even try to take. Officials said all the owners will get fair market value for their property.

Jeff Flynn of the city's economic development office has said parts of the plan, including a new street system and the construction of a wetland that would help with drainage and flooding problems in Southbridge, clearly constitute public uses.

House Speaker Terry Spence, R-Stratford, said he will work with Hastings and Williams to make sure a new law gets passed soon after the new legislative session begins in January.

"We didn't get the job done two years ago, and Wilmington's recent actions have shown we need to fix this," Spence said.

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