Son of Prop 90 - A Wolf if There Ever Was One in Sheep's Clothing: California Progress Report, Sacramento CA, 10/30/07

By Vivian Kahn
The folks who brought us Prop. 13 are at it again. Having made a mess of California's fiscal structure, they're now out to undermine the ability of California's communities to make decisions about how they're going to grow, preserve natural resources, and maintain and provide affordable housing.

Prop. 90 was defeated last year in part because voters weren't fooled by the sponsors' attempt to deceive them by hiding damaging provisions under the eminent domain reform banner. They are doing it again. The so-called "California Property Owners and Farmland Protection Act" (CPOFPA) initiative, which some observers have dubbed the "Hidden Agendas" measure, would effectively abolish local zoning in California.

The Howard Jarvis Taxpayer Association and its supporters, including the California Republican Party, are now circulating the initiative for signatures and misleading voters about its potentially dire effects. As of October 16, they had reportedly collected well over 700,000 signatures needed to qualify their measure for the June 2008 ballot. A minimum of 694,354 valid signatures must be collected by November 26, 2007 to qualify a measure for the June ballot.

The measure's proponents (funded largely by big apartment and mobile home park owners) want voters to think it is just about eminent domain reform, but that's just not the case. CPOFPA contains hidden provisions that would:

• Prohibit or require compensation for local zoning and other land use decisions
  
• Prohibit local rent control and affordable housing laws that protect seniors, veterans and others on fixed incomes, and
  
• Prohibit state and local water agencies from using eminent domain to acquire land for new water storage and delivery systems.

Moreover, unlike Prop. 90, CPOFPA has no exception for actions taken by government to protect the public health or safety. In short, it would be just as big or a bigger disaster for taxpayers than Prop. 90 would have been.

The proponents claim that they're only concerned about protecting homes and farms from being taken by government agencies but those who have taken a close look at the wording disagree. A legal analysis published last week by a Sacramento law firm that specializes in ballot measures (and includes some partners with solid GOP credentials!) has concluded that CPOFPA contains far-reaching, hidden provisions that would dramatically curtail the ability of cities and other governmental entities to protect public health, safety and welfare.

The analysis by Nielsen, Merksamer, Parrinello, Mueller & Naylor set out in great detail the secretive and deceptive way the authors of CPOFPA are attempting to hide broad restrictions on zoning and other land use and environmental regulations, the ability of public entities to acquire property for public water supply facilities, and city and county affordable housing and rent control programs.

Their analysis concludes:

"Without a doubt, the CPOFPA is even more deceptive and draconian than Proposition 90. With the exception of the rent control feature, the regulatory prohibitions concerning land use decisions and the prohibition against the use of eminent domain for the acquisition of property for the consumption of natural resources are hidden in the definition of private use. But the impact is nonetheless dramatic.

Those obscure provisions are the only reference in the initiative to any form of "regulation" or prohibition against taking property for the "consumption of natural resources." Because of the prohibitory nature of the regulatory and eminent domain provisions, the initiative appears to be designed to shut down much of what government does to protect the public health, safety and welfare through the control of land use and the provision of water. If there is any doubt on that point, the initiative Constitutional amendment provides the express right to seek injunctive relief against any action that violates its terms."

Aware of public concern about how some public agencies have used the power of eminent domain, civic and environmental groups urged the legislature to put a measure on the ballot and enact companion statutory changes. Assembly Constitutional Amendment (ACA) 8, would have enacted protections for homeowners and small businesses but Senate Republicans prevented the measure from getting the necessary two-thirds vote to get it on the ballot. Fearing such an outcome, last spring, the League of California Cities, the League of California Homeowners and the California League of Conservation Voters, joined together to propose the Homeowners Protection Act.

This initiative would amend the constitution to prohibit government from using eminent domain to take an owner-occupied home to transfer to another private person or business. Supporters of this measure, which is a more reasoned response to concerns about the use of eminent domain, are also collecting signatures.

It is essential that voters understand the important distinctions between these two ballot measures, which would have a radically different effect on how California communities make decisions about their future.

For more information about the 2008 Homeowners Protection Act go to http://sites.activatedirect.com/eminentdomainreform.com/facts/

Download and read the Homeowners and Private Property Protection Act at http://www.lao.ca.gov/laoapp/ballot_source/BalDetails.aspx?id=596

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California Progress Report, Sacramento CA: http://www.californiaprogressreport.com

Vivian Kahn is an Oakland planning consultant

Takeover of Nelson House aim of Salem City lawsuit: Today's Sunbeam, Salem NJ, 10/30/07

By Randall Clark
The City of Salem has filed a lawsuit here to take over property rights of the Nelson House through eminent domain, vowing to turn around a building gutted by fire last year and stagnating in the city center ever since.

The city is seeking to acquire and redevelop the four-story, 8,250 square-foot parcel of land on East Broadway through litigation after several attempts to buy the Nelson House outright from current owner Len Straub have failed. According to the lawsuit, the city has offered to pay Straub $49,000, which has been assessed as the "fair market value."

If the judge rules in favor of the city, a fair market price will be determined by the court.

The lawsuit filed by eminent domain expert Jeffrey S. Beenstock comes on the heels of a unanimous vote by the city council in July to take legal action. The city's first step will be to put a roof on the building, which continues to incur water damage and is becoming unstable, according to Salem City Mayor Earl Gage. Some form of large scale development, possibly office space and condominiums, is expected to follow, Gage said.

"We don't want to see this building collapse, that's a major concern ... It's unfortunate it has come to this, this is absolutely the last resort," said Gage. "When the fire occurred we vowed to work together with (Straub) and help him through grant programs and in any way we legally could. That relationship has since deteriorated."

Straub, who represents Providence Property Management, closed the deal on the building just two weeks before he watched it burn, a fire confirmed by authorities to be the work of an arsonist.

Before the blaze, he had planned to revitalize the property himself, converting a large portion of the space into a sports bar and banquet hall.

Gage said the building was not insured for fire, a concern that was brought to his attention by Straub the day it occurred.

Gage also noted that other developers apparently approached Straub with offers to buy the property, but to no avail. In the beginning, Straub was optimistic about the future of the property even in the face of tragedy. On the day of the fire he told reporters "we're not going to let this slow us down ... This is a tough, up and coming town so we're not going to let this bother us." It is unclear what circumstances led to Straub's apparent about-face, though Gage said once the Nelson House burned he may not have had another asset to borrow against. Straub could not be reached for comment.

The use of eminent domain often stirs controversy and begs the question to critics of whether or not governing bodies are overstepping their bounds. A Paulsboro case received widespread attention earlier this year when the state Supreme Court overturned an eminent domain decision that took 63 acres along the Mantua Creek away from its owner, George Gallenthin, so the land could be better utilized for a deep water port.

Eminent domain establishes a legal means for municipalities and governing bodies to acquire land to be utilized for economic development, though it has been viewed as a forceful and unconstitutional method to wrest land away from private citizens. An area has to be considered blighted for it to be a potential candidate for eminent domain, meaning the land is deteriorating or stagnant in a way that has a negative affect on surrounding property.

Regarding the blighted condition of the Nelson House, Gage said that "there isn't much arguing against that."

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

Largest Statewide Hispanic Business Organization Supports Eminent Domain Reform: Californians for Property Rights Protection, 10/25/07

California Hispanic Chambers of Commerce endorses June Ballot Measure
News Release
Californians for Property Rights Protection announced that the largest statewide Hispanic business organization in the nation, the California Hispanic Chambers of Commerce, has endorsed the California Property Owners and Farmland Protection Act (CPOFPA), an eminent domain ballot measure slated to appear on the June 2008 ballot.

“California’s eminent domain laws need to be reformed to protect all private property,” said Manuel Cosme, Jr. CHCC Legislative Committee Chairperson. “This eminent domain reform ballot measure provides small business owners comprehensive legal protections against unfair eminent domain practices.”

In June of this year, the Institute for Justice (IJ), the non-profit organization that litigated the U.S. Supreme Court’s Kelo vs. New London case, released a study entitled “Victimizing the Vulnerable” that found that ethnic and racial minorities were disproportionately impacted by eminent domain abuse. Among the American cities studied, more than a dozen are located in California.

Since the U.S. Supreme Court’s Kelo decision, California is not among the more than 40 states that have reformed their eminent domain laws. IJ considers California “one of the biggest abusers of eminent domain in the country,” and small business owners to be among its most frequent victims.

“Our members have worked hard to achieve their piece of the American Dream,” said Manuel Cosme, Jr. “Hispanic business owners deserve private property protections. The Howard Jarvis initiative is the only measure that will appear on the June ballot that protects our members from eminent domain abuse.”

The California Hispanic Chambers of Commerce's (CHCC) primary goal is to represent the interests of over 600,000 Hispanic-owned businesses in the State of California. With a network of over 60 Hispanic chamber and business associations throughout the state, the CHCC is the premier and largest regional Hispanic business organization in the nation that promotes the economic growth and development of Hispanic entrepreneurs.

The California Property Owners and Farmland Protection Act is sponsored by the Howard Jarvis Taxpayers Association, the California Farm Bureau Federation and the California Alliance to Protect Private Property Rights. Having secured the financing required to qualify the measure, the Act will appear on the June 2008 ballot. For information on how to acquire petitions or campaign information, visit www.yesonpropertyrights.com.

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Californians for Property Rights Protection: www.yesonpropertyrights.com

Fair Warning: Chicago IL Reader, 9/14/07

The city has reserved the right to wipe out this block for a developer to be named later
By Ben Joravsky
In 1994, Imre Hidvegi and Edgar Alvarez opened Chicago Soccer, a soccer supply store, in a vacant storefront on the 4800 block of North Western. “It was just the two of us, and we did maybe $50,000 in business” to start, says Hidvegi.

Over the last 13 years, business has taken off. Chicago Soccer now clears more than $3.5 million a year in sales and has become a driving force on the local soccer scene, providing uniforms to schools, youth leagues, and adult clubs throughout the area.

On July 31, however, the city sent Hidvegi and Alvarez a letter warning them that it may use its power of eminent domain to take their property. “You don’t know what this is doing to us,” Hidvegi says. “My business is at stake — we have 30 employees. Why are they doing this?”

He’s not the only merchant on the block asking that question. The city’s reserving the right to buy all the property on the east side of Western between Lawrence and Ainslie so that a developer yet to be selected can build a development to be determined sometime down the road.

The block in question is part of the Western/North tax increment financing district. As faithful readers know, a TIF puts a 23-year cap on the amount of property taxes in a given area that goes into the public coffers, diverting any new revenues into a fund controlled by the mayor. By law it’s a tool reserved for use in blighted communities that otherwise would not attract development.

Instead the bulk of TIF money goes to affluent, gentrifying neighborhoods like the Loop and the near south side. TIFs are supposed to build the tax base, but they wind up diverting over $400 million a year from entities like the schools, the parks, and the county. Instead of making the city more livable, they’ve driven up property taxes to the point that it’s becoming difficult for working-class and middle-class residents to afford their homes. And of course there’s the issue of transparency — TIFs are virtually off the books, not itemized on any tax bill or budget.

On top of all that, the use of TIFs makes a mockery of the rights of property owners, as the merchants on Western Avenue are learning. Traditionally the city reserves its power of eminent domain for large-scale projects — parks, schools, hospitals, highways — that benefit the public. With TIFs in the picture, the city effectively uses eminent domain to transfer property from one private owner to another — typically to a well-connected developer.

In the case of Western Avenue, we’re talking about a stretch of 20 storefronts, bounded on the south by a Walgreens on Lawrence and on the north by Dental Corner, a dentist’s office on Ainslie. Outside the Walgreens is a small public square with a statue of Abraham Lincoln, inscribed with the quote, “Free society is not, and shall not be, a failure.”

“There’s nothing wrong with this block. It’s a great place to do business,” says David Smarinsky, who owns and operates Dental Corner. “We’ve been here since 1984. We have a list of about 2,500 patients. People move out of the neighborhood but they remain our patients. We don’t think it’s blighted at all.”

The block has a mix of businesses, including a tire store, a bridal shop, a real estate office, a Subway, a comic book store, and a restaurant, Thai Nippon, which has a sign in the window saying, “Closed for remodeling, we’ll be open soon.” True, three of the storefronts are vacant; one’s splattered with pigeon droppings. But all in all this stretch of Western looks like an ordinary north-side commercial strip—there are dozens like it in Edgewater and Rogers Park.

The acquisition letters set off a panic among the merchants affected. But their local alderman, Eugene Schulter of the 47th Ward, insists that the acquisition authorization letter’s part of a process he’s initiated over the last couple of decades to protect small businesses. Schulter says he’s routinely bombarded with calls from developers eager to buy up property and tear it down so they can build big-box monstrosities “like you see on Clybourn near North Avenue.” He claims the threat of eminent domain wards off that kind of development: if property owners can’t sell their property, big-box developers can’t buy it up.

Over the last year or so, Schulter commissioned a planner to put together a model of development for the block that includes two six-story buildings with retail on the first floor and 85 units of condos on the upper floors. When merchants saw a drawing of the model last month they pointed out that there was already a glut of condominiums in the area. Schulter assured them that it was only a model and that nothing was set in stone. “This is about protecting the merchants and property owners, not hurting them,” says Schulter. “I would never do anything to hurt them.” In the coming months, he says, he’ll work with residents and merchants to finalize a plan.

Should the merchants feel reassured about their survival? The city’s track record is mixed on TIF-funded projects. As Schulter points out, 46th Ward alderman Helen Shiller has protected some existing businesses affected by the Wilson Yards TIF development. At the same time, the city has plowed over businesses with TIF deals in Roseland, Bridgeport, Jefferson Park, Edgewater, Rogers Park — the list goes on and on. “I will make sure that merchants and property owners are protected,” says Schulter. “If they want to stay, I will make sure that any request to develop that property has a place for them to stay.”

But there are still problems for property owners under the threat of eminent domain. For one thing, it’s harder to get bank loans for improvements or expansion. “What bank is going to lend me money if they know the city might take my property?” asks Hidvegi. And even if merchants were invited to return to whatever gets built on the block, they’d most likely be coming back as tenants rather than tenant-owners. “We may wind up paying rent for less space,” says Hidvegi — not to mention no equity.

As the merchants see it, there’s a certain perversity to Schulter’s logic. At the very least they think there must be a less obstructive way to protect a block from decimation than by reserving the right to decimate it.

The larger lesson is clear: the merchants of Western Avenue had better be vigilant. Otherwise a demolition order could be coming their way.

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Chicago IL Reader: http://www.chicagoreader.com

First selectman responds to false mailing concerns: Middletown CT Press, 9/13/07

By Cristina D Kuptzin-Johnson
After more than an hour of presentations and discussion during a public hearing held Monday regarding recommendations of the Emergency Services Facilities Committee, [Durham CT] First Selectman James McLaughlin is aware of rumors of eminent domain issues regarding the suggested secondary access for the proposed new emergency services facility.

McLaughlin says it is unfortunate that so much misinformation has been circulated.

"An anonymous person or persons mailed some pretty scary stuff [to the Main Street and Cherry Lane residents]. The content of the mailing was pure fiction with no basis in truth," McLaughlin said.

The mailing included a map with roads running through the yards of residents and a flyer with threats of eminent domain. "Neither of which were ever suggested by the committee or me," clarified McLaughlin.

Also of concern were traffic issues along Main Street, should the secondary access be approved.

McLaughlin said the suggestion is to consider this addition, and part of that consideration would be to see how the traffic situation on Main Street can be improved.

"Main Street will always be there," McLaughlin said. "Making it work better is something we can do now."

Regarding a "live-burn" training facility, McLaughlin says he would consider an area "deemed appropriate" if it were located where it could be effectively used and would not affect the quality of life of any nearby residents.

McLaughlin says he was pleased with the committee's presentation and feels the committee did an excellent job of assessing the needs of the emergency services.

The proposed cost estimate of a new Emergency Services Facility is $3,280,000.

McLaughlin says the cost is comparable to what the town would spend every year, if the volunteer firefighter and ambulance services were lost.

"Combined and improved facilities will save us a lot of money, and help recruit new enthusiastic volunteers," McLaughlin said.

"I hope that we can resolve and move past the issues of concern and begin the job of upgrading our emergency facilities that are centrally located in Durham. Many of the same inadequacies identified in this report existed back in 1999 when the last study was done. It is time we acted."

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Middletown CT Press: http://www.middletownpress.com

Solberg showdown slated for December: Bridgewater NJ Courier-News, 9/11/07

Judge to hear eminent domain arguments after extended discovery
By Brandon Lausch
After another minor extension to allow for more evidence gathering, the judge presiding over Readington's eminent domain suit against Solberg-Hunterdon Airport likely will see both sides in state Superior Court in mid-December, according to officials.

Though an extended deadline for the pretrial evidence gathering process known as discovery arrived Aug. 31, attorneys will have through the end of this month to finish remaining depositions or other outstanding matters, officials said Monday.

Township counsel James Rhatican said vacation schedules were partly to blame for the delay. Solberg attorney Laurence Orloff did not return a message Monday.

Once all their court documents are compiled, attorneys for both sides will have the chance to file motions for summary judgment that are returnable in open court Dec. 14, according to the case's presiding judge, Yolanda Ciccone. Ciccone, who sits in Somerville, met with the attorneys Monday morning in a private case management conference to schedule the upcoming motions.

During the December court date, both sides likely will attempt to end the litigation by again explaining before the judge why she should support their batch of evidence and issue a ruling in their favor.

After hearing arguments last November, Ciccone said an initial four-month discovery period was "needed to allow the court to make an accurate determination regarding the legality" of Readington's proposed taking of the 625 acres of open space surrounding the general-aviation airport, as well as its development rights.

Ciccone then allowed discovery to continue through June, until she granted another two-month extension through August and another to the end of this month. In Ciccone's decision, she said Readington argues the purpose of its eminent domain suit is to preserve the open space surrounding the airport and to protect natural resources.

"As such, this, if taken at face value, would certainly entitle Readington to proceed with this taking without further analysis," Ciccone wrote at the time.

But the judge said other "pressing considerations" in the case needed to be explored, including "whether Readington's true motivation is the preservation of open space or if there is an ulterior motive for the proposed taking." The Solbergs have argued Readington wants to destroy the airport economically.

With the help of evidence gathered during the past year, attorneys surely will echo those arguments in December in a push to end the legal wrangling. Ciccone said she likely will issue a written opinion either accepting one of the arguments or rejecting both.

If the motions are denied, Rhatican said the judge then would hold a hearing in which she would hear arguments about Readington's legal right to take the property.

If Ciccone sides with the township and Readington's case continues, the value of the property would be determined by a team of court-appointed commissioners.

Readington has deposited $21.7 million in state Superior Court for the rights to the airport and its land. The filing, called a declaration of taking, transfers technical ownership of the airport's land and commits the township to the acquisition, even if the final cost exceeds the deposited amount. Ciccone has stayed the declaration, however, until she determines if the eminent domain action is legal.

Voters approved a bond referendum in May 2006 authorizing township officials to use up to $22 million to acquire the airport. But because the commissioners or a jury could put a higher purchase price on the land, a group known as the Taxpayers' Alliance of Readington sued the township to limit acquisition costs or to have a judge dismiss the township's case. A final decision on the group's suit is pending.

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Bridgewater NJ Courier-News: http://www.c-n.com

A Value Proposition: Hartford CT Business, 9/10/07

Editorial
The theory of eminent domain is a laudable one: governments must have the ability to acquire private property for a greater public good. Unfortunately, government actors can’t seem to stop behaving like Snidely Whiplash, egotistically running around trying to snatch land with little more justification than an evil chortle.

Connecticut Superior Court Judge William T. Cremins just put the kibosh on a particularly insidious bit of socialism in Branford. Back in 2001, Thomas Barbara and Frank Perotti Jr. owned a 76-acre undeveloped parcel on Tabor Road. More than a decade before, the site had been approved for 298 residential condos, but they were never built. With approval in hand, however, the pair put the land up for sale, and a development company bit. New England Estates ponied up a $10,000 a month option, in order to eventually buy the property for $4.75 million.

In spring of 2003, New England Estates proposed building affordable housing at the site. But the town now claimed environmental contamination, issued a notice of condemnation in December of 2003, and took the property by eminent domain in January of 2004. Its plan was to keep the land vacant.

But since the town had already approved one big development there, the owners’ appraiser estimated the fair market value of the site at a little more than $6 million, using the “highest and best use” method, which assumes property will be put to its most productive purpose. Branford’s appraiser didn’t see the same thing. He saw vacant land that was going to stay that way. He valued the acreage at $770,000.

Even if Barbara and Perotti’s appraiser was too high, the pair had a credible buyer willing to pay $4.75 million. The town’s sudden, surprising and swift taking was a high-handed attack on development.

In order to stave off revolution, we must believe that our government intends us no harm. That’s not to say that the end result of government action doesn’t ever inflict damage. But the final action, good or bad, should be the end result of good intentions. Yet in the Branford case, town fathers set out to knowingly take this property by means that certainly smell fraudulent.

Branford needed a big gun. It fabricated one in the claim that the land was environmentally impaired — a health hazard, in other words — that needed to be acquired by eminent domain to protect town residents. Once in the municipality’s hands, the land would be left to remain open space.

There was another reason: the property abutted the former town landfill. Not really knowing the extent, if any, of any leeching from the landfill to the ground nearby, the town didn’t want to risk future liability claims — nor did it want to live up to its responsibility and do what was necessary to prevent any future contamination.

But the rightful owners of the Tabor Drive property wouldn’t let the falsity stand — nor were they keen on having their pockets picked in the process. They turned to the courts for help.

They’ve won Round 1. Judge Cremins ruled that there is no basis for the town’s appraisal, and he awarded the property owners $4.6 million, plus interest. He also found no credible evidence of contamination, and even opined that the site would be good for housing development. That bodes well for his impending ruling on the legality of the taking at all. New England Estates wants damages for being robbed of its ability to develop the land it thought it was buying.

Eminent domain remains a tool for towns and cities. But it should be a fine scalpel, used sparingly and surgically only where necessary. In Branford, it became a chainsaw, leaving everyone in its path injured.

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Hartford CT Business: http://hartfordbusiness.com

Subdivision plat OK'd: Edwardsville IL Intelligencer, 9/7/07

Mayor called in to cast tie-breaking vote
By Norma Mendoza
Mayor Larry Gulledge cast the tie-breaking vote for approval of the final plat of The Villas at Remington in Maryville at the village board meeting Wednesday night.

The vote was tied 3-3 with Trustees Randy Limberg, Todd Bell, and Ed Kostyshock voting yes and Rod Schmidt, Jack Callahan, and Linda Garcia voting no.

The Villas at Remington are to be developed by Osborn Company, on Frey Lane just off Lakeview Acres Road. There will be 31 buildings of two units each on the road that runs behind the First Baptist Church of Maryville.

The preliminary plat for the multi-family subdivision was submitted to the Planning Commission in 2004, but because of confusion about whether Frey Lane is a private or public road, it was tied up in litigation until recently.

"There was a stipulation that Frey Lane was a private road, but it really wasn't," Limberg said last week.

Schmidt questioned the way the lot lines are laid out and asked if the layout was necessary to meet the village green space requirement.

"The lot lines don't go all the way to the street," he said.

"It seems a way to get the green space on what should be building lots."

"You mean as a way of getting around the ordinance?" Callahan said.

Schmidt said it goes beyond getting around the ordinance. He said the Planning Commission also questioned the amount of green space and approved the plat with the condition that the total green space acreage be noted on the final plat.

Schmidt said the Planning Commission also considered giving Osborn an extension of the deadline in order to meet the requirements.

"I would be in favor of that," he said.

Garcia suggested tabling the approval, but Gulledge ruled that the motion to approve was on the floor and the board had to vote on it. His tie-breaking vote gave a narrow approval to the final plat.

Charles Jenkins, who lives in the Bauer Lane subdivision, spoke to the Board about delay in implementing the installation of sanitary sewers that was approved more than two years ago.

"Why is eminent domain not being used to implement the plan that was adopted in February 2005?" Jenkins said. "How many easements are lacking to implement the plan? Again, why isn't eminent domain being used?"

Gulledge said it is within the power of the board to use eminent domain, but he brought the issue back to a caucus of the board because of problems getting the easements necessary to install the sewer line.

"There has been no decision to abandon this project," Gulledge said. "If the board chooses to go forward with it, I can tell you there will be some easements we are not going to get."

Gulledge said the village has the option of adopting a system that would make use of the existing septic tanks by installing pumps to pump the wastewater to the sewer main. The disadvantage to this system is that it still uses the septic systems, which would still have to be cleaned out on a regular basis.

He said it would not be his first choice, but would be an improvement over the septic tanks alone. He said sewers for the Bauer Lane area were an issue 25 years ago when he was first elected as a board trustee.

"These people who are against having sewers are going to wish they had," the mayor said. "As time goes by sewers are getting more and more expensive and

I can tell you that sometime down the road our state government is going to make everybody get on sewers."

Jenkins asked if village attorney Steve Wigginton could tell people whether eminent domain could be used.

"Yes, it's for the public use and it's an infrastructure improvement," Wigginton said. "Eminent domain is an appropriate option."

Jenkins said, "My father is an engineer and he is very familiar with all types of sewers and we are against anything other than the gravity system."

Gulledge assured Jenkins and his father that the village is working on the problem and seeking resolution. Jenkins promised to support the village board.

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Edwardsville IL Intelligencer: http://www.goedwardsville.com

Officials accused of trying to skirt new law: Des Moines IA Register, 9/7/07

Some Osceola landowners believe lake expansion backers have changed their tactics to get around eminent domain rules
By Jason Clayworth
The need for water In Osceola IA] is clashing with Iowa's newly enhanced landowner rights law.

If water officials win, a new lake about five miles north of Osceola will gobble up about 2,400 acres, displacing roughly 30 property owners.

But if landowners succeed, some Clarke County and Osceola officials fear it could hamper future growth and cause major businesses like a proposed biodiesel plant in Osceola to locate elsewhere.

At the heart of the clash is a year-old Iowa law that makes it more difficult for government to obtain property for the public good. Iowa law now prohibits government from acquiring private land under a concept known as eminent domain for recreational purposes.

"There is a conflict, so now the question is how do we act as a community that's trying to get a water supply," Osceola City Administrator Ralph Lesko said.

Clarke County Supervisor Jack Cooley said the project is essential for the well-being of the area.

Lake recreation, which qualifies for federal grant money, was once part of lake plan but because of Iowa's strengthened eminent domain law, Clarke County officials are concentrating on their main objective: water.

The change in focus has prompted residents and a few state legislators to accuse planners of attempting to skirt the law.

"We've got water engineers, in my layman's opinion, that are being creative and innovative and baiting and switching and shell gaming," Rep. Jeff Kaufmann, a Wilton Republican, said Thursday while standing with about 20 landowners fighting the lake project.

A U.S. Supreme Court ruling in 2005 reaffirmed that government could force the sale of private property for economic development reasons. In reaction, Iowa legislators tightened Iowa's law and last year overrode former Gov. Tom Vilsack's veto of the bill.

Kaufmann and Rep. Jodi Tymeson, a Winterset Republican, vowed Thursday to seek more changes in the law to help families that face eminent domain. One idea is forcing governments to pay for the legal defense of the owners of the land they want to take.

"Every politician, and there's 150 of us up there, and I will guarantee you that every one of us will tell you that we stick up for the little guy. In January, we're going to ask them to remember this scene," Kaufmann said while pointing to rolling hills covered with hundreds of acres of corn.

Iowa House Majority Leader Kevin McCarthy, a Des Moines Democrat, said he has concerns about Kaufmann's idea.

"If there's a problem with people skirting the law on eminent domain, then we need to fix the law, but my initial reaction is just putting more money in lawyers' pockets is not necessarily a substantive solution," McCarthy said.

Residents who face losing their land said Thursday that it's possible they will hire an attorney and together fight to keep their property. Many said they feel the process violates the intent of Iowa's eminent domain law.

"It is our little piece of the American dream, and they want to take it away," an emotional Cindy Sanford said of the 171-acre farm her family has owned for almost 20 years.

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

City flexes eminent domain muscles: Brooklyn NY Bay News, 9/6/07

HPD okays taking of 95 Rockwell Place property; Track Data Corp to get booted
By Stephen Witt
In their 20 years at 95 Rockwell Place, employees at the financial services firm of Track Data Corporation have walked over crack vials and outlived the Wild West days of the city when the annual murder rate exceeded 2,000 victims.

But surviving [to] the good times may ultimately mean the firm’s departure from the borough and the city.

The city Department of Housing Preservation (HPD) on Aug. 20 approved the use of eminent domain to seize the company’s building because it sits in the BAM Cultural District.

“We would like to stay here. We don’t want to move. We’ve been here a long time,” said Rafi Reguer, vice president of marketing and corporate communications for the firm.

“There used to be a welfare hotel next to the building and crack vials on the street. We had a rule that people who stayed late would have to leave two or three at a time because it was so unsafe,” he recalled.

Reguer explained that Barry Hertz, whose family owns the building, founded the company about the same time Bloomberg LP was founded and it currently has a little over 100 employees.

Both Reguer and HPD spokesperson Seth Donlin said that although the use and right of eminent domain was used, that doesn’t mean that right will be exercised right away.

The company has spoken to its lawyers and they said once the eminent domain steamroller gets started, it is rubber stamped and there is little that can be done, Reguer said.

Donlin said that the owners of 95 Rockwell Place, as well as 20 others on three blocks in Fort Greene and Downtown Brooklyn, were notified of the eminent domain ruling after hearings in May and it shouldn’t have come as a surprise to anybody.

“All were additionally notified in 2004 so this should come as no surprise to any of the owners of the buildings,” said Donlin.

“There are always relocation funds made available for private individuals and companies displaced by eminent domain,” he added.

Donlin said the funds are not allocated at a flat rate, but depend on the type of business and/or residence and other variables.

Reguer said they were approached by city officials to sell the property, but discussions never got to the point where an offer was made because the owners told the city they didn’t want to sell.

Shane Kavanagh, spokesperson for the Downtown Brooklyn Partnership, a quasi-government agency overseeing the development of Downtown Brooklyn and the BAM Cultural District, said the site will eventually house a mixed-use building including cultural facilities, and affordable and market-rate housing above it.

The city expects to start seeking developers for the site in the fall, he said.

Kavanagh said the original plan for the BAM Cultural District as established in 1999 calls for a mix of space for visual, performing and media arts organizations, along with arts-related educational programs, a variety of housing, public open space and amenities such as restaurants, cafes and retail.

But all this doesn’t help Track Data Corporation, which is now looking at all their options, but want to remain in Brooklyn.

“It’s a little frustrating because I know there are departments in the city employing people full time whose job it is to lure other companies to the city like ours,” said Reguer.

“We get calls all the time from business development councils from various municipalities from as far away as Manitoba [Canada], but we can assure you we’re not moving there,” he added.

Janel Patterson, spokesperson for the city Economic Development Corporation, whose role in part is to help businesses stay or relocate in the city, said the agency is aware of the situation and has been in contact with the company.

“It is early in the process and we will work with them on relocation possibilities as we progress,” said Patterson.

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Brooklyn NY Bay News: http://www.baynewsbrooklyn.com

Hesperia considers eminent domain for sheriff’s station: Victoriaville CA Daily Press, 9/4/07

By Hillary Borrud
As Hesperia’s sheriff’s department staff grows with the city’s population, the old station at Santa Fe Avenue East and Walnut Street is becoming cramped.

The city plans to build a new station soon, and has even selected a location at Smoke Tree Street and 11th Avenue.

Negotiations with the owners of the 4-acre parcel have been unsuccessful, however, and now the city is considering using eminent domain, according to an agenda for this Wednesday’s Hesperia Community Redevelopment Agency meeting.

City Council members, voting as the redevelopment agency board, will decide Wednesday whether to approve moving forward with eminant domain. The city offered property owners Phillip Housey and Kip R. Pierce $1.15 million for the property, which they declined, according to a staff report.

The open session meeting begins at 5 p.m. in Council Chambers, located at 9700 7th Avenue in Hesperia.

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Victoriaville CA Daily Press: http://www.vvdailypress.com

Stadium Sustenance - The murky metrics of pro sports, economic growth, and eminent domain: The Weekly Standard, 9/7/07

By Duncan Currie
HARKENING BACK to "the early 20th century," Raymond Keating, chief economist for the Small Business and Entrepreneurship Council and a New York Newsday columnist, recalls that "sports facilities were once private ventures. Team owners bought the land and privately funded their stadiums. What a novel idea!"

His sarcasm is warranted. In the modern era, professional teams have typically relied on taxpayer dollars to build glitzy new stadiums and arenas, often threatening or pursuing eminent domain action to cheaply clear out anyone who stood in the way. According to a May 2005 article in Reason magazine, "Sports economists estimate that half of the post-1990 stadium and arena construction has involved eminent domain - and even when it wasn't invoked, it was understood that condemnation could be a last resort if the teams encountered stubborn landowners."

In recent years, franchises such as the Dallas Cowboys, Indianapolis Colts, Minnesota Twins, Washington Nationals, and New Jersey Nets have all at least raised the prospect of using eminent domain to expedite their stadium and arena plans. But the practice has a long pedigree. In the 1950s, shortly after the Supreme Court upheld Fifth Amendment property takings designed to eliminate "blight," Pittsburgh invoked eminent domain to build Civic Arena (now called Mellon Arena). This meant bulldozing an African-American neighborhood known as the Lower Hill District. When George W. Bush owned the Texas Rangers, the city of Arlington exercised eminent domain to build a new ballpark. (Liberal columnist Nicholas Kristof later decried it as "a sordid tale of cronyism, of misuse of power, of cozy backroom money-grubbing.")

Supporters of publicly financed stadium construction promise a windfall of economic development, guaranteeing increased tax revenues and more jobs. But have the revenue-enhancing and job-creating benefits of stadiums been oversold?

A decade ago, economists Roger Noll of Stanford and Andrew Zimbalist of Smith College edited a book that examined specific projects and crunched the numbers. "In every case," they later wrote,

"the conclusions are the same. A new sports facility has an extremely small (perhaps even negative) effect on overall economic activity and employment. No recent facility appears to have earned anything approaching a reasonable return on investment. No recent facility has been self-financing in terms of its impact on net tax revenues. Regardless of whether the unit of analysis is a local neighborhood, a city, or an entire metropolitan area, the economic benefits of sports facilities are de minimus."

Based on an exhaustive study of cities with professional football, baseball, or basketball, two economists from the University of Maryland, Baltimore County, concluded that, "taken as a whole, the sports environment tended to reduce the per capita personal income in the city by a small but statistically significant amount." Dennis Coates and Brad Humphreys later expanded their research and found that "the economic benefit from sports facilities and franchises appears to be concentrated in a small sector of the economy and comes at the expense of other sectors of urban economies."

After reviewing the "independence evidence," Minnesota State University economist Phillip Miller reported that "the existence of sports teams and stadiums in a metropolitan area causes consumers to redistribute their spending within a metropolitan area. At worst, it can actually decrease earnings and employment in their metropolitan areas. Hence, neither the existence of sports teams nor the construction of sports stadiums provide a catalyst for economic development in terms of employment and output growth."

Take the Metrodome, home of the Minnesota Twins and Minnesota Vikings. As the Minneapolis Star Tribune has observed, when it "opened in 1982 at a total cost of $68 million, its boosters predicted that the stadium would be a magnet for new construction in a part of downtown that hadn't seen new private investment for years. Instead, the building boom of the 1980s and 1990s in downtown Minneapolis bypassed the Metrodome neighborhood. 'We put a stadium in the middle of nowhere and nothing developed around it,' economist Art Rolnick said of the Metrodome. 'If these things are magnets for economic development, what happened?'"

Of course, if you're a huge sports fan - as I am - you might calculate the metrics differently. "There's this enormous benefit out there that doesn't get measured," Coates told me. "If you say, 'There is an enormous amount of happiness brought to the community by this facility,'" well, "there's no dollar value attributed to that." Though it can't be quantified, an intangible feeling of satisfaction is perhaps the primary public benefit that stadiums offer.

Still, the resistance to "sports welfare" can be fierce. In Brooklyn, for example, local residents have howled about the planned exercise of eminent domain to build the Nets a new basketball arena. This has prompted a messy legal battle, with opponents of the $4 billion Atlantic Yards project angrily denouncing Nets principal owner (and real estate tycoon) Bruce Ratner, whose firm Forest City Ratner is the developer. Several affected property owners have filed a lawsuit challenging the proposed use of eminent domain. A federal district judge ruled against them in June, but the plaintiffs are appealing.

Like any good sports mogul, Ratner insists his Atlantic Yards development will provide an economic boon to the city. In time, he may be proved correct. But the historical evidence suggests that new stadiums and arenas rarely deliver the type of revenue gains and job growth that is expected.

Just ask Jerry Bell, president of Twins Sports Incorporated, and thus a fervent promoter of the new Twins stadium. Bell admitted in a 2005 interview with the Star Tribune that, "at some global level," economists are "obviously correct" that publicly subsidized stadiums generally do not produce public financial benefits. "I don't think the economic argument turns it one way or another, so why go there?" Bell said. "If there are side benefits, great. If not, so what?" He should pose those questions to Minnesota taxpayers.

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The Weekly Standard: http://www.weeklystandard.com

Appeals court hears arguments over proposed Riverside ballot measure: Riverside CA Press-Enterprise, 9/5/07

By Doug Haberman
A three-member panel of appeals court justices heard oral arguments Wednesday in a case that pits Riverside resident Ken Stansbury against the city government in a fight over a proposed, but dead, ballot initiative.

The initiative, which Stansbury backed, would have severely restricted the city Redevelopment Agency's ability to use eminent domain to acquire private property to transfer it to a developer.

At issue is whether a trial court judge acted correctly when he threw out a 2005 city lawsuit against Stansbury and a group Stansbury represented called Riversiders for Property Rights.

Stansbury and the group were preparing in fall 2005 to circulate their petition to get the initiative on the city ballot when Riverside sued.

The city contended the initiative was invalid because eminent domain is not a proper subject for a local initiative but rather is a statewide issue.

The city Redevelopment Agency has filed 18 eminent domain cases since the start of 2004, primarily as part of efforts to revitalize downtown, Merrill Avenue across from Riverside Plaza and portions of University Avenue in the Eastside neighborhood.

The city suit sought a court ruling on the proposed initiative's legality.

Stansbury and the group filed a motion in response to the suit saying the suit was nothing but an attempt by the city to stifle their First Amendment rights.

Riverside County Superior Court Judge E. Michael Kaiser granted the motion and threw out the city's suit.

The city appealed.

In June, the 4th District Court of Appeal, Division 2, in Riverside issued a tentative opinion that would reverse Kaiser's decision.

The tentative opinion said there is no constitutional right to place a legally invalid initiative on the ballot. The law allows asking a judge to review a ballot measure for its legality before an election, the tentative opinion said.

Richard Reed, an attorney representing Stansbury, said at the time the tentative opinion was issued that existing law thwarts citizens' rights and needs to be changed.

Hearing's Arguments
Wednesday's half-hour hearing took place downtown in front of appellate court Associate Justices Betty Ann Richli, Jeffrey King and Douglas P. Miller.

Two attorneys argued on Stansbury's behalf that the tentative opinion was wrong. An attorney with the American Civil Liberties Union appeared with them but did not address the panel.

Los Angeles-based attorney Michael Chait argued that the city's suit attacked the First Amendment right to collect signatures on a petition for a proposed ballot measure.

The city suit - including a request for attorney's fees if the city prevailed - was an attempt to squelch that right, Chait said.

If the tentative opinion became final, he said, it would undercut existing law preventing such suits, which are known as SLAPP suits: strategic lawsuits against public participation.

Chait represents a citizen of Ojai who is facing a legal situation similar to Stansbury's, although not over a ballot measure concerning eminent domain.

Riverside attorney Richard Reed, who represents Stansbury, said a challenge to a citizens initiative should be allowed only after it has qualified to go on the ballot.

Furthermore, the city had no legal right to sue, he said. In interviews, Reed has said the city government must carry out the will of the people so it could not be harmed if the initiative passed. Only someone who could claim harm, such as a developer who expected to benefit from eminent domain, could sue, he said.

Howard Golds, an attorney with Best Best & Krieger representing the city, said the city lawsuit was against the content of the proposed initiative, not the First Amendment rights of anyone working to place it before the voters.

The city did nothing to prevent Stansbury and Riversiders for Property Rights from continuing to gather signatures or from speaking out on behalf of the initiative, Golds said.

"We're not attacking their right to petition," he said.

By filing the suit, "All that we're saying is: In our opinion, this initiative was invalid," Golds said.

Eminent domain has been a major issue across the nation since a June 2005 U.S. Supreme Court ruling.

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

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

Many people, including Stansbury, saw the ruling as an affront to private property rights. Stansbury moved to counteract the U.S. Supreme Court decision at the local level.

After Kaiser threw out the city suit, Riversiders for Property Rights reached an $11,000 settlement with the city in which the group gave up any further legal challenge.

The group disbanded, leaving Stansbury alone to fight the city.

Reed and Stansbury have said they will take the case to the state Supreme Court if necessary.

The appellate justices have 90 days to file their final opinion.

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

UO's arena game plan may call for use of condemnation: Eugene OR Register-Guard, 9/6/07

By Greg Bolt
The University of Oregon [UO] is seeking state permission to use eminent domain if it is unable to reach voluntary agreements to buy three remaining privately owned properties on the site it intends to use for a new basketball arena.

The university hopes to begin arena construction next year and needs assurance that the properties will be part of the site, said UO general counsel Melinda Grier. She said the university still hopes to reach a voluntary sale with two of the property owners but said the third parcel is encumbered by numerous liens that could block a voluntary deal.

The state Board of Higher Education will consider the request at its meeting Friday in Bend. The board will be asked to approve the use of eminent domain, also called condemnation, for all three parcels if necessary.

Under eminent domain, the state would file a lawsuit claiming the properties on behalf of the UO. A court would determine how much the owners should be paid. The procedure allows governments to buy private property for public purposes.

Fourth property in hand
The properties include a vacant business property and the site of a 7-Eleven store, both near the corner of Villard Street and Franklin Boulevard, and a dental office around the corner on Villard Street. The university recently purchased a fourth property, a former gas station between the vacant building and the 7-Eleven store, for $570,000 from Eugene investor Peter Kryl.

The properties all are adjacent to the former Williams' Bakery site, which the UO purchased in 2005 for $25 million. The entire half block is expected to be developed as a new basketball arena to replace 80-year-old McArthur Court.

Although the UO hasn't formally announced a plan for a new arena, the recent donation to the athletic department of $100 million by UO supporter and Nike co-founder Phil Knight all but guaranteed the long-stalled project will move forward. The university is scheduled to present a complete arena financing plan to the state board at its October meeting in Portland.

Voluntary sales sought
The university will have to move quickly if it wants to have construction documents ready and bids received and awarded in time for next year's construction season. That's added urgency to the property negotiations and is accelerating a project that until Knight's donation was stuck in neutral.

"There's no doubt we have to acquire those pieces of property," said Allan Price, the UO's vice president for advancement.

Grier said she's hopeful a sale can be negotiated relatively soon with the two properties that have clear titles - the 7-Eleven and the dental office. "We'll still work really hard to do it voluntarily, but we just have to know that we can acquire the properties," she said.

The university is asking the board to approve a "resolution of necessity," the first step in eminent domain. The resolution sets out the need for the properties but does not set any deadline for reaching a voluntary sale agreement or state how soon an eminent domain action would begin.

No deal on vacant parcel
Complicating the arena property sale are a number of outstanding liens against the vacant business property, owned by Eugene resident Adesina Adeniji. The property most recently housed a Domino's Pizza outlet but has been vacant for months.

Adeniji said in June that he and the UO had exchanged offers but were unable to reach agreement. He said he has been unable to find a tenant for the property because of doubts over its future as part of the arena site.

When the UO got permission to buy the bakery, the state sold $27.5 million in bonds to finance the deal. After paying for the bakery and the Kryl property, the UO has almost $2 million remaining to purchase the three remaining properties.

One hurdle the university still has to confront is whether the project will be affected by Ballot Measure 39. The measure, approved last November, bars the state from condemning private property if it intends to transfer it to a private developer.

The ballot measure question
Although the land for the arena most likely would be owned by the UO, the arena itself might not. The university is considering a plan through which the UO Foundation would form a private, nonprofit corporation to build the arena.

It's still up in the air whether the corporation, National Championship Properties, would continue to own and manage the arena after it's built or turn it over to the UO. Either way, the university will be negotiating unexplored territory.

Grier said it's hard to know how the measure could affect the arena, in part because the law is so new and in part because the university hasn't decided how to handle construction. But she promised that the university will not violate the measure.

"I can assure you that we will do nothing to violate Ballot Measure 39," she said. "As we develop how we approach (the project), that is one of the pieces that is in that whole calculation."

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Eugene OR Register-Guard: http://rgweb.registerguard.com

Federal judge tosses NYRI suit: Syracuse NY Post Standard, 10/27/07

Decision against eminent domain suit will stall proposed transmission line
By Kathy Coffta Sims
A federal judge on Friday dismissed a lawsuit by New York Regional Interconnect that challenged a state law protecting homeowners from the use of eminent domain by private power companies.

State Attorney General Andrew M. Cuomo on Friday afternoon called Judge Thomas J. McAvoy's decision a "win for homeowners in Central New York and across the state."

What effect that ruling has on NYRI's proposal to build a $1.6 billion transmission line from Oneida County to Orange County remains to be seen.

The lawsuit, filed in February, sought to invalidate a 2006 state law preventing the use of eminent domain by gas and electric utility companies.

Friday's decision in U.S. District Court in Albany was hailed by Communities Against Regional Interconnection, a consortium of counties and citizens groups fighting the proposed power line.

Earlier this month, the federal Department of Energy designated two National Interest Electric Transmission Corridors, one in the mid-Atlantic region and the other in the Southwest.

The mid-Atlantic region corridor cuts a wide swath through New York and includes the areas of Madison, Chenango and Oneida counties where the proposed NYRI line would run.

The DOE said it was designating the corridors to address "persistent transmission congestion" in the two areas. When that announcement was made, Kevin Kolevar, DOE assistant secretary for electricity delivery and energy reliability, said that groups like NYRI would need to spend another year trying to negotiate solutions with states.

If negotiations fail, he said, the Federal Energy Regulatory Commission could step in and grant eminent domain authority.

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Syracuse NY Post Standard: http://www.syracuse.com