Withdrawal of Eminent Domain Findings Gives Hope to Duffield St. Preservationists: Brooklyn NY Daily Eagle, 10/17/07

But City Says It’s Only a Technical Error

By Sarah Ryley

Advocates for the preservation of homes allegedly once involved in the Underground Railroad are viewing the city’s recent withdrawal of eminent domain findings concerning one of those homes as a renewed opportunity to save them. City officials, on the other hand, say the reversal was due to a technical oversight.

Seth Donlin, spokesman for the city’s Department of Housing Preservation and Development, said a blight determination that included the 21 lots on three blocks in Downtown Brooklyn in question was prepared for the department by environmental consulting firm AKRF in November 2003. But it was mistakenly not entered into public record at last May’s eminent domain hearing, requiring the reversal of the findings and a new public hearing scheduled for Oct. 29.

He said the blight determination would have to be obtained by making a formal Freedom of Information Law Request before it’s entered into public record.

“It is something that was produced specifically for the proceedings for eminent domain, and there is a specific time for which it is supposed to be made public,” he said. “Unfortunately, because of some oversight, it was not entered as it should have been [at the first hearing in May].”

Track Data, a financial firm with 150 employees; a rent-stabilized apartment building that houses 40 families; a handful of parking lots; and Amber Art and Music Space are also at risk of being displaced. Attorney Jennifer Levy, who represents one rent-stabilized tenant, and Joy Chatel, the partial owner of a home allegedly involved in the Underground Railroad, said she doesn’t believe there were any specific blight findings. Levy said the original urban renewal plan for Downtown Brooklyn found blight in very specific properties, but was later expanded to include a general area deemed blighted. This may not be substantive enough, in the eyes of the court, to justify the seizure of personal property. “I guess we’ll have to see what they have that they haven’t produced.”

“I was never briefed or given a copy of any blight study,” said Councilwoman Letitia James, a supporter of the Duffield Street homeowners. James said AKRF did a study in 2003 determining that the area was in need of redevelopment as part of the Downtown Brooklyn rezoning, which City Council enacted, authorizing the use of eminent domain to achieve that goal. “Separate and apart from that, one has to do a blight study,” she said. “I don’t think they did any study at all.”

The city plans to seize half the block bounded by Duffield, Gold, Fulton and Willoughby streets to build a one-acre public plaza and an underground parking lot, which would eventually be walled in by high-rises if the Downtown Brooklyn rezoning manifests itself as envisioned. The two other blocks under consideration for eminent domain are within the BAM Cultural District.

The public parking lot would also be used by the 500-room Aloft/Sheraton hotel duo now under construction on that block.

Gene Kaufman, president of Gene Kaufman Architect PC, which designed the hotels, said underground parking is an enormous cost for hotel developers — at least $25,000 per space when considering excavation, and more if the water table needs to be broken — that provides little return since many spaces go unused. “Fortunately, we’re directly across the street from an 800-space underground parking garage and one-acre public plaza that the city is building at no cost to us. We see that as an ideal parking solution.”

“That certainly explains more than the strange allegiance to the idea of having the park right there,” Levy quipped.

Although a perk for some customers, Kaufman said there would be little effect on the hotels if the parking lot is not built, since most visitors to the city take mass transit.

The City Council made one contingency on the seizure of the Duffield Street homes when it passed the rezoning plan — that a study look into claims that the seven homes on Duffield and Gold streets were once used by fugitive slaves as safe havens along the Underground Railroad.

AKRF also conducted that study, but found no conclusive evidence to support those claims.

Advocates of preserving those homes for a museum have questioned the findings, although the study was by all accounts the most extensive done on Downtown Brooklyn’s abolitionist activity.

“I think it was wrong for [the City Council] to say that the area needed further study, yet signed off on eminent domain,” said Levy. “I don’t think they should have approved the expansion of the urban renewal area without determining that each specific site was blighted.”

Brooklyn NY Daily Eagle: http://www.brooklyneagle.com

Selah dispute over trees' worth leads to eminent domain action: Yakima WA Herald-Republic, 10/20/07

By Erin Snelgrove

For the past three years, Maxine Schreiner has felt like a prisoner in her own home. She can't leave it. She can't find a buyer. And now she has to watch while Yakima County levels her front yard to expand Selah Loop Road.

"It's hard to see your property destroyed when you can do nothing about it," said Schreiner, who's lived at the Selah house for 29 years. "I have my good days and my bad days. It's emotional."

Schreiner and Yakima County are at odds over a 35-foot strip of land in front of Schreiner's house at 1100 Selah Loop Road, which is needed for a $3.25 million expansion project.

Since negotiations have proven unsuccessful, the county started eminent domain proceedings and the case is heading to Yakima County Superior Court on Oct. 30. At the conclusion of the expected three-day trial, a jury will decide what Schreiner will be paid.

Through eminent domain, public agencies are legally allowed to acquire a citizen's private property for public uses, such as railroads, utilities and highways.

"There's not a meeting of the minds," County Engineer Gary Ekstedt said. "There's no way to narrow the gap, so we have to use the legal process."

Schreiner said the county's offer falls in the low five figures, while she's seeking a six-figure settlement. She said the road improvement project will destroy her drain field and irrigation system. It will leave her property cut without a retaining wall, and she'll lose her landscaping, shrubs and fencing.

Just fixing these things will cost $60,000 to $80,000, and the county has not offered to make her whole, she said.

"I want to be compensated for the loss of the value of my property," she said. "If they can't replace it, they're obligated to pay the difference."

The land is at the site of the former Selah Central School, which operated from 1910 to the early 1940s. What remains are pipe-rail fencing, sidewalks and a stand of five sycamore and maple trees that are nearly a century old.

These trees offer privacy and comfort, Schreiner said. Saying goodbye to them will be hard.

"I will miss my trees," she said. "My kids went off to the university and never came back. My trees remain. They are kind of personal for me."

The county and Schreiner do agree her property is essential for the road expansion project, which will widen Selah Loop Road from two to four lanes between Goodlander Road and Gore Road.

It also calls for a roundabout at the juncture of Gore Road and Selah Loop Road, and a traffic signal at the intersection of Selah Loop Road and Goodlander Road. The roadwork will also include curbs, gutters and sidewalks.

Due to the county's dispute with Schreiner, Ekstedt said, the project is experiencing "significant delays" - an assertion Schreiner's attorney, Jamie Carmody, categorically denies.

He said his client doesn't want to go to trial but has no choice because county officials have neither responded to her proposals nor have been willing to sit down and talk with her.

"It's patently false that she has delayed or caused any delay in this project. It's unconscionable for the county to even suggest that," Carmody said.

"I didn't cause this," Schreiner added. "I don't want to be blamed for something I didn't do."

The county has already acquired 43 right-of-way parcels, including five houses. Three of the houses will be demolished in the next few months, while the other two will be sold after the road expansion concludes.

After the verdict, Ekstedt said, he plans to advertise for bids and begin the work in February or March. He estimates the project will be finished by next October.

He said the county instigates eminent domain proceedings in an average of one out of every 200 cases. It was not required for any of the other property obtained for this road expansion.

Yakima WA Herald-Republic: http://www.yakima-herald.com

Mt. Pleasant's eminent domain tests: Charleston SC Post Courier, 10/20/07

There are two tests ahead for Mount Pleasant officials now that they have decided to exercise their power of eminent domain to condemn property near picturesque Shem Creek. First they have to convince a court that the property is being condemned for a bona fide public use. The second is in the court of public opinion. Has council correctly judged public sentiment regarding the importance of public access to one of the town's best-known locations?

The first test has some very definite criteria, made even tighter by a constitutional amendment approved last year. While the S.C. Supreme Court has been very strict in its interpretation of the state's eminent domain powers, a constitutional change approved by the voters last November ensures that will continue to be the case.

The amendment was a cautionary reaction to a highly controversial U.S. Supreme Court decision upholding a Connecticut law that allows private economic development to be considered a legitimate eminent domain "public purpose." Not so in South Carolina. The state Constitution now makes it clear that when it comes to eminent domain, the only legitimate "public purpose" is "public use." Thus, in this state, private property may only be taken for public use, period.

In terms of public use, Mount Pleasant's plans for the OK Tire property seem to meet the test. Town Administrator Mac Burdette contends his town's goal for the property is to provide additional public access to the Shem Creek area as well as developing a park there and maintaining open space. According to our report, the property owners plan 25 condominiums on the site.

According to Mr. Burdette, public access to the Shem Creek vistas is now limited, and the property in question is one of the last near the creek that isn't the site of an ongoing business. He said the town first tried to buy the property more than two years ago, resumed negotiations this year and finally concluded that the parties were at an impasse. He pointed out that the town's comprehensive plan calls for more access points to the water and that council's decision to condemn the land was unanimous.

After the town filed the proceeding, one property owner was quoted by our reporter as saying town officials were in "for the fight of their lives" and questioned whether the town had followed proper procedure. That's a decision for the courts.

Town officials also answer to the voters. This will be the first time other than for road projects the town has condemned private property. Town council's unanimous decision to exercise such a powerful and controversial tool speaks to the confidence it must feel that there is an overriding public interest in taking the property for public use. If officials are wrong on that score, the ultimate test of public sentiment is at the ballot box.

Charleston SC Post Courier: http://www.charleston.net

Revisiting the Trans-Texas Corridor: Waxahatchie TX Daily Light, 10/20/07


By Paul D. Perry

Some readers have asked me to re-visit a few of my concerns regarding the Trans-Texas Corridor or TTC, because I have mentioned the project in my last two columns. Recently, I introduced what I like to call Nosygate. I think that is an appropriate name for the advertising campaign and subsequent information gathering effort, by a private company, on behalf of the Texas Department of Transportation or TxDOT.

A brief re-cap is probably in order. Unsuspecting motorists had their license tag numbers photographed while traveling and minding their own business. Their tag numbers were then traced to their home address. Their home address was provided to a private company that sent a questionnaire through the mail.

Junk mail or a survey - you call it, reader — was then mailed to the motorist asking nosy questions in excess of what the state needs to know if their purpose was merely to project traffic flow. The questions submitted to the homeowners were obviously designed to collect data for a recently announced $9 million advertising campaign initiated by TxDOT. This taxpayer funded propaganda blitz is being made to justify the unpopular Trans-Texas Toll Road. More simply, $9 million of your tax dollars are paying for propaganda that will serve the private interest of a foreign contractor.

The TTC is a proposed 1,200-foot-wide toll way that will bisect the state of Texas through its heart and will be built and operated by Cintra-Zachery, a private company that is Spanish owned. The Texas Department of Transportation will use the state government’s power of eminent domain to force folks off their land - at a court ordered price - and in so doing support the profits of Cintra-Zachery as well as their supporting cast - the consultants, lobbyists, and camp followers — who have little or no regard for the rights and property of average citizens.

I like the Mel Brook’s spoof of western land grabs “Blazing Saddles,” but I do not want to see a modern land grab of that nature. Rest assured that I do not oppose new road construction or even the limited and thoughtful use of toll roads in Texas. I do oppose foreign meddling in our state government as well as the looting and abuse of average taxpayers.

Our state government through TxDOT is quick to point out that the underlying ground will still be owned by the state and merely leased for 50 years or so by Cintra, gee thanks.

That brings us to some of my concerns. Perhaps the most galling to me is the provision in the enabling legislation, HB 3588 (section 370.165), and the follow-up legislation, HB 2702 (section 203.066 and 203.067), allowing private property to be taken prior to any litigation. One of our protections in the case of a government taking property (eminent domain) in Texas is a right to trial in order to assess value and even the appropriateness of the taking under the state code. A value on your property can be set in a court of law by a jury or you can elect to accept a value placed beforehand by a special commission of taxpayers from your area appointed by the presiding judge.

The original bill that passed both houses about this specific project included language allowing homesteads to be taken by “the authority” after 91 days from the date of initial service and even before you have your day in court. You still get your hearings and court-assessed value, but in some cases after you have been evicted from your own home. Raw land can even be taken immediately upon service and before any court hearings. This puts the land or homeowner at a disadvantage. Families will find themselves under a lot of pressure to relocate prior to their initial hearing, if they do not accept the initial offer from Cintra/TxDOT.

The pressure may force many to make a quick settlement with the authority. Make no mistake: The conquistadors at Cintra are driving the bus in the “authority.”

Some people assume the government’s right of using eminent domain to forcibly buy land (a taking) is limited to property to be used for government-owned and -operated projects referred to as “public use” in the federal constitution, such as highways and reservoirs. Over much of our history, the government’s “power” of eminent domain was defined narrowly along those lines.

Over time court rulings have broadened the definition of the government’s powers in this area. These rulings have even allowed private property to be taken and conveyed through government entities to private developers for other private development. The common good is said to be served by the enhanced tax revenue that will then go to the governing entities: municipalities, counties and school districts for instance.

The use of eminent domain to acquire land in the case of the quasi-private TTC probably falls under the latter, more modern logic, even though taxable value in many counties could fall immediately after a sale is forced for land to be used for TTC construction. The short term effect of such an eminent domain proceeding may be to remove giant swaths of easement from local tax roles because the property will then accrue to the ownership of the state. Those details seem to be in flux.

Knowing how things work in Austin, perhaps Cintra’s cash flow will be exempt from the new business activities tax as well. Rumor has it the improvements made by Cintra-Zachary to facilitate toll collection could also be exempt from property tax collection. However the corridor’s construction may increase values and taxes owed on private property over the long haul-in many areas, especially around the limited exits and entrances to the toll road. It sounds like average everyday Texans may get to pick up the bill.

There is a public need for more roads and transportation, but it can easily be argued that this project is first designed to profit Cintra-Zachery rather than benefit everyday Texans. While many who argue for this project use language that is designed to appeal to the public good, this is a private project designed primarily to move international trade through Texas, from Mexico to Canada. So far, Cintra-Zachery and TxDOT have done everything but wrap themselves in a Texas flag to sell this project, although this limited access road is certainly not designed with Texas taxpayers primarily in mind

We are allowing state employees and Cintra-Zachery to muddy the waters between a private project and public utility. Interestingly Cintra-Zachery even resisted the State Attorney General’s attempt to procure certain files via open records request, claiming particular files are exempt because they contain certain “trade secrets.” Cintra has objected to an open records act request from your government using language that might be appropriate for a private entity, but Cintra is going to operate a public thoroughfare on top of land owned by what is still your state, maybe.

Waxahatchie TX Daily Light: http://www.waxahachiedailylight.com

Border fence holdouts hit with eminent domain threat: Houston TX Chronicle, 12/7/07

150 landowners in Texas have yet to grant access to build the barrier

By Michelle Mittelstadt and James Pinkerton

Taking aim at the Texas holdouts refusing to allow surveyors onto their property, Homeland Security Secretary Michael Chertoff made clear Friday that he would use the government's power to seize land needed for the border fence.

"We would, of course, like to reach an agreement with the landowner," he said. "But if we are not successful, we are prepared to use (the legal principle called) eminent domain."

On Friday, the Department of Homeland Security mailed letters to about 150 Texas landowners who refused to let surveyors onto their land or have not responded to requests.

The letters give them 30 days to come forward and negotiate, warning that the department will go to court to gain access to the land if they don't.

Federal officials say that government surveyors must examine by February land where a fence and a high-tech "virtual" fence will be built.

Chertoff pledged to complete 370 miles of fencing in Texas and other border states by October 2008. About 130 miles of fences are planned for Texas.

Leonard Loop, who farms hundreds of acres along five miles of the Rio Grande below Brownsville, expressed resignation. "I guess they can do it if they want to, but what is this country coming to?" he said.

Loop, who hasn't allowed surveyors on his property, said government officials still won't tell him where they want to locate the fence on the land where he was born 70 years ago and which his parents settled in the 1920s.

Edward Mathers and his father Robert are allowing the survey of the 2,000 acres their family has owned since 1880 on the river north of Brownsville.

''They're going to take it no matter what, so it's best to cooperate now or they make it harder later," said Edward Mathers, who contends the fence won't work.

Chertoff said that only 10 percent of the landowners who may be affected by construction of fencing, roads or lighting have refused access. Most of the holdouts are in Texas, where opposition to the fence has been the strongest. Texas, unlike Arizona and New Mexico, has most of its border land in private, not government, hands.

Some 408 landowners are affected in Texas. Sixty-three percent, or 258 property owners, have granted right of access to their land. Another 110 haven't responded or can't be located. Forty have refused to allow surveyors on their property.

Sen. John Cornyn, who met with Chertoff earlier in the week, said he is encouraging the government to keep the lines of communication open with the recalcitrant property owners. "His hope is that the vast majority of these cases could be resolved without litigation," Cornyn said.

Chertoff made clear that he's feeling pressure to build the fence swiftly.

"That is a big step forward in answering the public outcry to have some protection at the Southwest border," he said.

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

Going looney on Mooney: Visalia CA Times-Delta, 12/07/07

By Ernest Norsworthy

Maybe it’s unanswerable; in search of the meaning of the name “Mooney”, answers I found were as varied as “dumb” to “rich”. But what is obvious on Mooney Boulevard may be just plain dumb. Since Mooney makes up part of state route 63 through Visalia, that may be the answer.

Caltrans is big, very big and our part of their very big transportation picture is not as big as a pimple. One thing about pimples though, sometimes they fester and cause big sores. The latest eminent domain debacle on Mooney Blvd. was an example. When the heavy hand of government comes crashing down, we feel powerless to defend what rightfully is ours and guaranteed by our U.S. Constitution.

Eminent domain, that innocuous and high-sounding phrase, has been misused for so long in California it may be time for the state Assembly to just start over on the meaning of it and making clear that eminent domain is there to protect land and homeowners, not to help developers.

Typically, a Redevelopment Agency is formed to help a community in source funding for “public” projects to benefit the entire community.

Up the road a piece in the fair city of Fresno, a pied piper has descended on that community with a promise of wealth beyond belief to city tax coffers. There’s this fine piece of land well suited for a golf course and very, very upscale housing and other developments. The only problem is that another developer tried to do the same thing and went bust.

Enter the magnanimous developer par excellence Donald Trump. At first, the Donald plunked down a $30 million bid on the bankrupt property. But in a short time, he withdrew his $30 million because, and here’s the catch, the Fresno Redevelopment Agency did not extend the project property far enough away to suit him.

And why was that important? Instead of doing it the American way, getting in there and negotiating for all the property he needed for the project, Trump wants the city of Fresno to use their power of eminent domain to acquire it for him. This kind of improper action has been going on for a long time in California.

The Supreme Court decision two years ago in Kelo vs.. City of New London, really messed up the waters by saying that what Trump wants in Fresno is perfectly all right. At last count, most of the states have changed or are in process of changing their eminent domain laws more in line with the Constitution.

President Bush finally got one right when he issued Executive Order 13406 which states basically that property acquired or owned by a federal government agency must not dispose of property except for public use meaning for the traditional use: For roads, schools, hospitals and such and specifically not for commercial purposes. Presumably this would mean that financial assistance from programs like the Community Development Block Grant would not be available to Fresno as presently discussed.

Mooney Blvd. is not a bad road, only poorly traffic-engineered and hopefully by next Christmas it will flow much smoother. Meanwhile, like the rest, I may be Looney but I still use Mooney.

Visalia CA Times-Delta: http://www.visaliatimesdelta.com

Eminent domain cases for hospital debated: Springfield OH News-Sun, 12/7/07

By Samantha Sommer

Lawyers debated in court on Friday issues relating to some of the eminent domain cases in the downtown hospital area involving properties crucial to the development.

The city has filed eminent domain cases against a handful of property owners in the proposed hospital area near Buck Creek, including F. F. Springfield, and Jennifer and Garth Robinson.

The lawyer for the Robinsons, Matthew Fellerhoff, argued Friday that the case should be dismissed because negotiations with the Robinsons are ongoing and haven't reached a point where they were unable to agree.

The Robinsons have been waiting for the city's counter-offer since September, they said. The city offered about $1 million for the five acres with 39,000 square feet in seven buildings. The Robinsons' counter was $5.5 million, which Jennifer Robinson has said came from the average the city paid other businesses.

The city's attorney, Deputy Law Director Andrew Burkholder, said Springfield has acted properly and is glad to continue negotiating, which he said is customary in such cases.

The hearing covered a wide range of other issues including how much time to allow the property owners for discovery and depositions and if eminent domain can be used for a project involving a faith-based hospital.

Probate Judge Richard Carey said he would make a decision on the issues soon, but said he wasn't sure how long it would take.

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