Condo Commercial Plan May Require Eminent Domain

By Matthew Rodriguez

The city of Vista [CA] could consider using its eminent domain powers to help a developer acquire four parcels on North Santa Fe Avenue for an 8.9-acre residential and commercial project.

The City Council voted unanimously last week to enter into exclusive negotiations for land purchases with Vista-based RA&B Development LLC.

While the company owns some of the land at the northeast corner of North Santa Fe Avenue and Cananea Street, it wants to buy an adjoining city-owned parcel at market value.

The company also is seeking the city's help in buying four properties whose owners have declined to sell, said Jalal Rahman of RA&B.

“We've contacted all of them many, many times,” Rahman said.

The firm's proposed three-story project calls for 315 condominiums and 127,000 square feet of office and retail space. It could also include underground parking.

The land is in the city's redevelopment zone, which targets blighted areas.

“This represents a great opportunity for us to have a tremendously positive impact on this part of town,” said William Rawlings, the city's redevelopment director. “It's on my list of priorities.”

The city and RA&B have 90 days after the council's action last week to work out a Disposition and Development Agreement that would spell out whether the city would use eminent domain.

“Theoretically, we might use eminent domain there,” Rawlings said. “We're a long way from entering into a contract, much less laying that out.”

The site is bordered by homes to the east and commercial properties on the other three sides. The site is a few blocks southwest of Vista High School.

Most of the land is vacant, but one parcel is home to a spa retailer, Pacific Coast Spas & Accessories, at 1309 N. Santa Fe Ave.

Barry Hayes, the owner of Pacific Coast, said he rents his building from a property owner who lives in Africa. He said if a sale goes through, he would want help finding space with similar rent and be compensated for moving expenses.

“I just don't have the funds,” Hayes said.

The business, which sells new and used spas, has been on the site since 1987. “This is an established business in the city of Vista,” he said. “I pay taxes like everybody else.”

None of the property owners could be reached for comment.

On Oct. 11, the city notified property owners of the developer's proposal. According to the proposal, RA&B has been trying to acquire the five parcels for about two years.

Without them, Rahman said, the project would have to be scaled back and could be financially infeasible.

Rahman said the owner of the Pacific Coast Spas property wanted money over time rather than at once. A payment plan over 10 to 15 years was proposed, but the owner opted out, Rahman said.

The others, Rahman said, have asked for too much money. “Everyone is holding out thinking they're going to get four or five times what the property is worth,” he said.

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

Family Receives Millions In Eminent Domain Dispute

A jury has awarded an Otay Mesa family that sued Caltrans in an eminent domain dispute $26.7 million, it was reported Friday.

The Anderson family was approached by the California Department of Transportation in 2006 about purchasing 2.8 acres of a 58-acre parcel off Otay Mesa Road, east of Interstate 805 and south of Brown Field.

Caltrans offered $172,410 but a Superior Court jury concluded Wednesday that the land is worth $1.3 million, The San Diego Union-Tribune reported.

The award includes money that the jury found the family lost as a result of the majority of the remaining parcel being frozen by Caltrans activity.

Caltrans reportedly wanted to use the land to build Route 905 through the area. It was a project first announced in the early 1990s with an initial completion date of 1997. To date, it has not been built.

Family attorney Vincent Bartolotta Jr. told the San Diego Union-Tribune that the award was "truly a victory for the little guy. The justice done in this case shows that Caltrans can't just come in and bulldoze people."

Ed Cartagena, a Caltrans spokesman, told the newspaper that the agency likely will appeal.

KGTV-TV10, San Diego CA: http://www.10news.com

Farmland Could Be in the Path of New Electric Wires

By Chris Torres

Opponents of a controversial newly established national electric corridor say farmers may see the most impact if the plan is allowed to move forward.

The U.S. Department of Energy recently approved a plan that places most of Pennsylvania, West Virginia and New York; parts of Ohio and Virginia; and the entire states of Maryland, Delaware and New Jersey in a newly designated Mid-Atlantic National Corridor, which would give electric companies the right to use eminent domain to build new electric power lines and transmission facilities anywhere in those areas to provide more power to the congested East Coast.

The plan, which was made effective on Oct. 5, gives the Federal Energy Regulatory Commission (FERC) the right to grant construction permits to developers if they can’t get state approval or if a state withholds approval of a construction permit for more than one year.

A developer would still have to negotiate right-of-ways with landowners in order to start construction. But they would be given the right to use eminent domain powers to get them.

The plan was developed in accordance with the 2005 U.S. Energy Act.

Carl Shaffer, president of the Pennsylvania Farm Bureau, recently wrote a letter to U.S. Energy Secretary Samuel Bodman expressing concern over the energy department’s designation of the corridor, iting fear over the fact farmers could lose land in the event brand new electric transmission lines are built.

The corridor encompasses 52 of Pennsylvania’s 64 counties, including some of the most productive agricultural counties in the state.

Shaffer is not alone. Several politicians have expressed their concerns over the plan and a Pennsylvania state representative has even started a petition on his Website to stop it.

The outpouring of opposition has led the DOE to reconsider holding additional hearings on the proposal, according to Michael Smith, spokesperson for the Pennsylvania Department of Environmental Protection.

He said the DOE earlier this month requested additional time to review letters they have gotten on the issue and to possibly schedule new hearings.

Julie Ruggiero, DOE spokesperson, said Tuesday the department is taking additional time to thoroughly evaluate the basis of all parties’ requests for a rehearing but that no rehearing had been scheduled as of yet.

She said the department designated the corridor in accordance with that they were tasked to do as part of the 2005 Energy Act. She added the department allowed for a 60-day public comment period and held seven public meetings on the issue before making their decision.

Smith, speaking on behalf of Pennsylvania Governor Ed Rendell, said Rendell is outraged by the proposal, stating it is an abuse of federal authority and that it disregards state’s rights.

“We felt they (DOE) overstepped their bounds on this,” Smith said.

Mark O’Neill, spokesperson for PFB, said the concern doesn’t necessarily lie around the fact eminent domain may be used. He said the bureau is worried farmers will not be able to participate in negotiations on where power lines will be placed and that it will force farmers to change their farming practices because of it. Not to mention, it could affect farmers financially if they are forced to sell their land at prices dictated to them.

“This is an issue that has been in our sight at the national level. Our biggest concern is how they are going about doing this,” O’Neill said. “The potential is they are going to put a lot of good farmland out of production because of this.”

Smith said the plan may also affect land values, which he said could drop because of power lines located in residential areas.

“Looking out a back window and seeing a high tension power line isn’t attractive to potential buyers,” he said.

Lancaster Farming, Ephrata PA: http://www.lancasterfarming.com

Apollo May Seize B&W Property

By Mary Ann Thomas

Frustrated by unsuccessful attempts to secure the former Babcock & Wilcox site along Warren Avenue, [Apollo PA] borough council wants to take the property by eminent domain.

According to council President John Ameno, the borough needs the 4.6-acre parcel for parking and green space situated, ideally, next to some light industry and a river trail. Council is expected to discuss the eminent domain issue during its next regular meeting.

"We contacted B&W several years ago, and they didn't show a whole lot of interest to donate the property at that time," Ameno said. "We asked them again and didn't really get a response. Our position now is to get the property."

The B&W site was home to the nuclear fuel manufacturing operations of the Nuclear Material and Equipment Service in 1957. The company continued under its successors, the Atlantic Richfield Co. and B&W, with operations ceasing in 1983. The buildings were demolished and thousands of tons of radioactive debris and soil were removed. The cleanup was completed in 1995.

Although the federal Nuclear Regulatory Commission designated the site as suitable for unrestricted use, the B&W land, surrounded by a green fence, has remained dormant. The borough's tax base has withered ever since, according to Ameno, who estimated that the town has lost potential tax dollars of about $300,000 since the B&W facilities were demolished.

Ameno and others are looking for ways to raise revenue.

"There's no place to go or to grow the tax base," he said. So the town has embarked on an ambitious redevelopment plan that includes the use of the B&W land and an adjacent parcel, the 14-acre Metal Services property, which was contaminated by uranium dust from NUMEC.

According to Ameno, lead contamination in the Metal Service's soil is the primary concern and the borough plans to complete cleanup of the site with grant money.

"That combined 20 acres is substantial for a town that is less than a square mile in size" Ameno said.

"The land has been deemed clean, I'm tired of the black cloud painted on our town," said Councilwoman Debra Schrecongost. "It's time to move on. We're among the poorest communities in Armstrong County and we're landlocked. We have to have that property to do anything here."

Although the town needs to boost its tax base, Leechburg environmental activist Patty Ameno and the council president's sister, doesn't want the borough to touch the B&W property.

"I would strongly recommend that a governing body not pursue that reckless path because of the potential for overwhelming and surmounting legal costs to the borough and for the future liability and health and safety for generations to come," Patty Ameno said.

According to borough solicitor Allan Opsitnick, the environmental liability of the B&W site is an issue.

"I'm unsure as to the borough's legal exposure," he said. "The borough knows already that there are some restrictions on use of the property and our plan is to use it for green space or a parking lot - there's no structure planned for the property."

During a property tax appeal case in Armstrong County in early 2004, according to Opsitnick, "the sticking point was that B&W has no need for the property, they wanted a restriction that there would be no excavation." B&W and the court concurred that the property was without value but the company agreed to pay about $130 a year. B&W representatives did not return calls for comment.

Because the borough intends not to dig on the site, John Ameno and Opsitnick said that the borough might not be open to liability.

Patty Ameno disagrees: "Common knowledge tells us that you would have to dig into that ground to do a platform for a parking lot."

According to Opsitnick, he will notify B&W sometime in January about the eminent domain action and could resolve the issue between mid-year and the end of year.

"Until B&W responds back, we don't know what any of those issues - like liability or indemnification - will be," said Councilman Brian Johnston. "And I suspect there will be restrictions and limitations on the land use."

Pittsburgh PA Tribune-Review: http://www.pittsburghlive.com/x/pittsburghtrib

Dump Site Suit Settled for $2.6M

Eminent Domain Dispute

By Leslie Parrilla

A local property owner received about $1.5 million more than the county originally offered after a battle over his dump site, which was taken through eminent domain to expand San Luis Obispo County Regional Airport.

The Nov. 20 settlement, in which the county agreed to pay $2.6 million to property owner Jim Filbin, ended more than a year of legal wrangling, according to court records.

A San Luis Obispo real estate appraiser hired by the county had valued Filbin’s 13-acre parcel heaped with concrete, asphalt and detritus at about $1.15 million, according to court records.

Counterappraisals came in at more than $4 million, said an attorney representing Filbin.

The county and Filbin’s dumping and recycling outfit on Santa Fe Road have been at odds for years.

He has been convicted twice for operating without permits and has a litany of dismissed charges related to allegations of illegal storage.

The property also had been investigated for ground and groundwater contamination. An environmental study in 2004 for county airport officials determined diesel and motor oil found at the site amounted to levels less than hazardous but more than the state allows. Groundwater was also tested and found to be not contaminated.

When the county offered Filbin $1.15 million to take the property in spring 2006 to expand the airport, Filbin wasn’t ready to sell.

“He said ‘No thank you,’ ” said Filbin’s attorney, Daral Mazzarella of San Diego. “His land was near and dear to him and he had no interest in selling it.”

After a jury was seated and testimony had started in the case filed on June 6, 2006, the county and Filbin agreed to settle the dispute over the property at 4398 Santa Fe Road for $2,609,804.36.

“Some of the factors were just a dispute between the experts on the value, various rulings in the court,” and both parties wanted to end the matter, said Mazzarella on what contributed to the settlement.

Attorneys representing the county did not respond to messages seeking comment.

Eminent domain refers to the condemnation actions taken by a government agency to take private land for public projects. Under state law, property owners are to be compensated with the fair market value of the land.

In many of the eminent domain cases heard in San Luis Obispo Superior Court, judges allow the county to take possession of the land before a purchase price is determined.

St Luis Obispo CA Tribune: http://www.sanluisobispo.com
California Eminent Domain Attorney

Judge Backs Cape's Effort to Take Land

Dispute continues over value of property

By Jacob Ogles

A judge has granted Cape Coral the right to condemn a property for use as a park expansion by Sun Splash.

Judge Jay Rosman earlier this month ordered the city had eminent domain ability and could seize a property owned by Adolph and Anita Viets of Connecticut for $34,200, an amount determined by a city-hired appraiser. Eminent domain powers allow a government to take land if it can prove a necessary public need for the property and pay the previous owners fair market value.

"The estimate of value in this case ... was made in good faith and based upon a valid appraisal," Rosman wrote.

But Anita Viets said the couple has hired an attorney and demanded the matter go to a jury trial.

"We are not challenging them putting in the park," she said. "I am challenging them saying my land is not valuable."

The city's appraisal came after it made an offer of $129,900 for the property, then retracted that offer after the local real estate market crashed.

In an October hearing, Rosman told the Viets his responsibility was chiefly determining if the city had the right to condemn the property, and a jury may need to settle disputes over costs.

City broker Dawn Andrews said the city is still open to settling the cost matter out of court.

"Just because a judge has issued an order of taking does not mean we stop negotiating," she said.

Mark Lupe, the attorney representing the city, said the Viets property is one of four properties in the proposed Lake Kennedy park expansion in which the city could not negotiate a deal before beginning eminent domain proceedings. Those four property owners, including the Viets, had previously turned down offers from the city to buy the land before the city moved forward in seeking a judge's permission to seize it.

The total expansion area includes 42 properties north of Southwest 5th Street next to the Lake Kennedy Community Park area on Santa Barbara Boulevard.

The Viets came to Fort Myers to argue the case during a court hearing last month.

In that hearing, Rosman questioned city officials about how the land would be used. City parks director Steve Pohlman said it was only planned as park land and could house anything from a Sun Splash expansion to an ice rink to a picnic area.

Pohlman also said the city has a deficit of park land.

While Rosman pressed at the hearing for details, he ruled the city had done what was necessary to justify using the eminent domain ability. "The pleadings in this cause are sufficient and the City is properly exercising its delegated authority," he wrote.

Anita Viets said she remained troubled the city has placed such a low value on the land.

"If the land is not valuable, put a fence around it," she said. "Build your park and let me build on my land.

"But they said they can't do that, and they need it. If that is the case, then my land is valuable."

Ft Myers FL News-Press: http://www.news-press.com

Business Owners Fear Eminent Domain

Derby Negotiates For Downtown Property

Fear of eminent domain is spreading among a group of Derby business owners.

Brian Calvert, the owner of a Derby safe and lock business, told Eyewitness News that he didn't come to this country in 1968 and build up a business for 35 years to have it all torn down by eminent domain.

"There are people unfortunately all over the U.S. today hearing those two words: eminent domain, and that's so un-American," he said. "Stealing is stealing where I come from."

Calvert is one of a few business owners who are negotiating relocation terms and buyout possibilities with the city.

The city tore down several blighted downtown buildings this past summer, but a few with living businesses remain.

Derby city officials told Eyewitness News that they would prefer not to have to take people's property by court order, but a multimillion dollar downtown revitalization project hangs in the balance.

Negotiations between the business owners and the city are ongoing.

WFSB-TV10, Hartford CT: http://www.wfsb.com

Eminent Domain Could be Used on Alpha Drive

By Matt Culbertson

ASU [Arizona State University] could enact eminent domain to demolish fraternity housing on Alpha Drive and replace it with residence halls, according to an ASU official and sources close to the project.

The University is "prepared to aggressively work toward a negotiated agreement" to demolish and rebuild Alpha Drive, said Carol Campbell, ASU chief financial officer, in a Nov. 12 letter to Alpha Drive representatives and University officials.

"It was obvious what she was threatening," said Jeff Abraham, a spokesperson for the Alpha Drive property owners. "It is certainly our hope that we don't get to a point where eminent domain is required, but it is something the University will keep in its back pocket."

Eminent domain is a term that describes the state's power to appropriate property to be used by the public.

ASU has the power of eminent domain with approval of the Arizona Board of Regents — who govern the state universities — and for educational or university purposes, Campbell said.

"I'm not saying we'd exercise (eminent domain) in this case," Campbell said. "We have used it in other instances to assemble land that was needed."

Campbell said the project would cost hundreds of millions of dollars, though it would depend on what was agreed upon.

The Nov. 12 letter was the first time ASU officially stated that the project would replace the fraternity houses with residential properties under control of ASU, Abraham said.

But ASU had hinted before the letter that their preference was to house Alpha Drive fraternities in University-controlled housing, he added.

The letter also marked the first time ASU suggested eminent domain in writing, but the threat had been hinted at before, Abraham said.

Abraham said he could not provide the letter.

But the letter was obtained by The State Press on Monday from another source close to the project who wished to remain anonymous.

In the letter, Campbell said, "It is imperative that all housing supporting the Greek system be within the University's residential housing programs and be governed by its regulations and support structures."

Davey Breitman, the newly-elected Interfraternity Council President, said about 300 fraternity members currently live on Alpha Drive, and about 725 fraternity members are part of the Alpha Drive houses.

"Basically, nothing's official yet," Breitman said. "After discussing the matter with members from every Alpha Drive fraternity, I can wholeheartedly say that there is tremendous support to continue the status quo of Alpha Drive living."

Breitman said eminent domain is not the best option for ASU, and neither is implementing Residence Hall policies for fraternity housing.

The letter offered the fraternities the option of a land exchange.

"The one option that (Campbell) has presented is that the fraternities exchange their six acres for another six acres within the site," Abraham said. "That one way is nowhere close to what the fraternities originally presented with the Threshold Project concept."

The "Threshold Project" is the name given to the original proposal by the fraternity property owners to rebuild Alpha Drive, which was first presented to ASU President Michael Crow in 2004.

The San Diego-based Pierce Company was originally chosen by the fraternity property holders to develop new fraternity housing after Alpha Drive was demolished, but another developer, American Campus Communities, would be the sole developer of any student housing, Campbell said in the letter.

"This comes as a shock," said Andrew Burns, the treasurer for the alumni board of Sigma Phi Epsilon and a 2001 ASU graduate.

Burns said he only could speak for Sigma Phi Epsilon, and not the other fraternities.

"ASU, to sum it up, is saying 'we are essentially going to redevelop that land, and we're going to redevelop that land with ASU, you can either give it up, or have a little bit of input,'" he added. "We understand (Alpha Drive) is run down, we understand the crime rate is high.

"We want to protect the Greek system."

Breitman said he had gotten "tremendous feedback" from many of his constituents who oppose the project.

"Residence style living would not be in the best interest of fraternities on campus," Breitman said. "I believe it would hurt recruitment, as well as our ability to function in day to day operations."

Arizona State University Web Devil: http://www.asuwebdevil.com

Overreacting On Eminent Domain


By Michael Looney

Susette Kelo is gone but not forgotten.

The New London woman and some neighbors lost their battle before the U.S. Supreme Court to save their homes in the city's Fort Trumbull neighborhood. But since the high-profile Kelo v. New London case was decided in June 2005, numerous legislative actions and ballot initiatives designed to limit and redefine the government's eminent domain power have been proposed in states from New Hampshire to California.

Some didn't pass and some did (Connecticut's new law narrows, but does not prohibit, the use of eminent domain for economic development). The states that passed laws restricting the ability of state or local governments from seizing a person's home for economic development purposes — the issue raised in the Kelo decision — may have created unforeseen but far-reaching impacts for zoning and urban planning.

One clear example of this is Proposition 207 in Arizona.

Proposition 207 passed as a statewide Arizona ballot initiative in 2006 with the official title of Private Property Rights Protection Act, garnering 65 percent of the vote in the process. Ostensibly, its intent was to limit government's eminent domain power by redefining "public use" to specifically exclude "economic development" from the definition.

The law has other provisions, one of which entitles property owners to seek just compensation for the reduction of "the existing rights to use, divide, sell or possess private real property" that result from the application of any land-use regulation.

While certain regulations of land use such as fire codes, building codes and health codes were exempted from this clause, land-use tools such as zoning regulations were left unprotected.

This has triggered a contentious debate. Opponents of Proposition 207 say the legislation has severely limited not only municipal zoning powers, but also other de facto forms of land-use regulation such as the formation of historic districts.

Proponents insist the new law has not limited governmental land-use powers, but has simply ensured that property owners are compensated for a wider range of government actions that may hurt property values.

Regardless of who is right, Proposition 207 has had immediate planning and zoning impacts that have taken many observers by surprise. Relatively straightforward municipal actions such as rezoning an area of a city have become complex exercises where individual property owners must consent to the municipality's action.

If an owner does not consent and the municipality moves forward with the proposed action, the municipality runs the risk of the aggrieved property owner filing a lawsuit claiming loss of property value and demanding compensation.

Nervous municipalities across Arizona have quickly resorted to obtaining individual property owner signatures on "Prop 207 waivers," which the law allows, to protect themselves from potential lawsuits. However, acquiring these signatures can be a daunting task; for example, the creation of a special business district in Phoenix may eventually require 1,300 individual landowners to sign such waivers.

The potential impacts of Proposition 207 have already significantly changed the plans for historic districts in Phoenix, Tempe and Flagstaff, as well as several zoning and urban design initiatives. Municipalities have become so concerned about potential legal battles that they are having property owners sign Prop 207 waivers for even very minor zoning and planning actions.

While the debate between private property rights and government land-use regulation will continue indefinitely, it is important to question how well the public is being served by legislation such as Proposition 207.

The law gives property owners greater protection of their rights to just compensation. Most people, regardless of their political or ideological leaning, would agree that protection of private property rights is a positive objective.

However, the public costs associated with such legislation often gets short shrift. While an individual property has its value protected, there is no accounting for the loss to communities from stalled historic preservation efforts, lack of orderly zoning districts and incongruous urban design. The inherent value of these public goods, which are often much more difficult (if not impossible) to quantify than individual property value impacts, should at least have some calculus in the just compensation debate.

The protection of private property rights is a cornerstone of our American democratic system of government; it is articulated in the Fifth Amendment of the Constitution. However, as the enactment of Proposition 207 illustrates, the expansion of property protections can have a substantial impact on the public realm. One is left to ponder how society can best balance the private and public interests involved in land-use laws.

The turmoil stemming from laws such as Proposition 207 can best be prevented by engaging in more thoughtful debate and public discourse on eminent domain and zoning powers, rather than rushing through ballot initiatives on a wave of popular discontent. When our laws create situations which were not intended, it is the legislative process, not the law, that is flawed.

Hartford CT Courant: http://www.courant.com

Michael Looney is a senior associate with Harrall-Michalowski Associates Inc., a planning and development consulting firm in Hamden: http://www.hmaplan.com

Fear of Eminent Domain Grips PG Hamlet

By Arlo Wagner

Residents of a working-class neighborhood near the New Carrollton Metro station say Prince George's County is trying to bring the area into a sweeping redevelopment project that could replace their homes with high-end condos, shopping and restaurants.

County officials are considering a zoning change to West Lanham Hills to include the neighborhood in an 18-year-old project known as the Transit District Overlay Zone, created by the Maryland-National Capital Park and Planning Commission to develop roughly 71 wooded acres around the busy Metro Orange Line station.

The nine-member County Council unanimously agreed Oct. 30 to have the commission present a plan to expand the zone into the neighborhood, which residents say has caught them by surprise and has included bullying tactics.

"They're calling our neighborhood deteriorating and blighted," said Kate Tsubata, a West Lanham Hills resident and former president of the citizens association.

The 66-year-old neighborhood has no mayor or council, and the association is the closest thing it has to a government.

West Lanham Hills resident Bob Nelson, 43, said he fears the next step will be the county trying to take property through eminent domain.

"I'm always skeptical any time somebody tells me the neighborhood should look like this or that," said Mr. Nelson, who in his youth was the neighborhood paperboy. "We're ripe for the picking."

County Council member Eric Olson, a Democrat who co-introduced the proposal, did not return a phone call Thursday on whether the county would seek to use eminent domain. However, he said last week that no final plans have been made and that public hearings are starting Dec. 5.

"This is the beginning of a public process," he said. "It is very important that the citizens are involved."

Mr. Olson also said that the hearings could continue for a year before a final zoning plan is approved, and that other Annapolis Road communities — including Hansen Oaks and Landover Hills — are part of the plan.

Mrs. Tsubata said the commission has a clear-cut plan, despite what Mr. Olson and others say.

"They've gone from wanting to put 2,400 luxury condos, offices and retail units in a 71-acre parcel to now wanting to put 8,000 units in a 640-acre area, wiping out stable and environmentally low-impact, single-family houses," she said.

Mrs. Tsubata said she has walked the 256-home neighborhood and collected 150 signatures against the zoning change.

Residents acknowledge the region is a potential target for development. In addition to being near the Metro station, which also is an Amtrak stop, West Lanham Hills is surrounded by major highways, including the Capitol Beltway and U.S. Route 50. Also nearby are the new Internal Revenue Service and Computer Sciences Corp. buildings, built as part of the original overlay zone and serving thousands of employees.

Ted Booth, a West Lanham Hills homeowner for 13 years, also said the situation concerns him.

"I've worked hard to have something of my own," he said. "The zone concerns me, and eminent domain concerns me. After that, you have no choice."

Some residents also think they are being bullied into leaving. They say Olson staffer Wanda Brooks, the acting president of the West Lanham Hills Citizens' Association, canvasses the neighborhood looking for such violations as cracked sidewalks and uncut grass, then prepares suggested warrants for police and other county agencies.

"I'm very concerned," said a resident who asked to remain anonymous for fear Miss Brooks also will target her. "She called the neighborhood a slum. She works for Olson; she becomes the association president. All of the bricks are falling into place to the possibility of eminent domain."

Reached by telephone last week and asked about the accusations, Miss Brooks directed a reporter to write the questions in an e-mail. She did not respond to an e-mail sent to the address she specified.

"Suddenly, the community began getting notices of violations with hefty fines of $150," Mrs. Tsubata said. "Virtually every citizen in the neighborhood got a notice. ... In 21 years of us living here, nothing like this ever happened."

Washington DC Times: http://washingtontimes.com

K Street Fight Will Resonate on State Ballot

Eminent: Mohanna says he will join ballot measure's campaign

By Mary Lynne Vellinga

Even if the city of Sacramento wins a court battle to wrest a key part of the K Street Mall from property owner Moe Mohanna, it could lose the war on another front: the state ballot.

Mohanna has thrown his support behind an initiative headed for the June election that would forbid local governments in California from using eminent domain to buy property from one private owner and award it to another – exactly what the city is seeking to do on K Street.

"We'll be spending a lot of money on that, and I'll have a series of fundraisers in my buildings," Mohanna said on Christmas Eve.

Mohanna has aligned himself with a coalition of anti-tax groups and property rights advocates led by the California Farm Bureau Federation and the Howard Jarvis Taxpayers Association, the force behind California's landmark property tax cutting measure, Proposition 13.

Last month, the group submitted more than 1 million signatures to qualify its anti-eminent domain measure for the ballot.

Mohanna said he'll be a champion of the statewide effort that he describes as a flesh and blood example of the heavy-handed use of eminent domain.

"I'll be going to different cities, and talking about private property rights, and the taking of private property for private use," Mohanna said.

"Today it is my buildings, tomorrow it is your home," Mohanna said, adding that local governments might even "take every church and turn it into a Costco."

On the other side of the debate stands Sacramento Mayor Heather Fargo and other local officials in California who view eminent domain as a crucial tool for fighting urban decay in places like the K Street Mall.

Fargo said her constituents applauded the City Council's unanimous vote to authorize eminent domain against Mohanna.

"People come up and say, 'Good for you, K Street is such a public street, and it's so tied up in people's perception of downtown, that it's just really a critical place for us,' " she said.

Fargo supports a rival initiative, which also has gathered more than enough signatures to qualify for the June ballot. Backed by the League of California Cities, the League of Conservation Voters and the California Redevelopment Association, it proposes more limited changes to current law.

The measure would prohibit local governments from using eminent domain to acquire owner-occupied homes and transfer them to a private developer. It would not affect the taking of commercial properties such as Mohanna's.

"There's some room and a need for some eminent domain reform to give homeowners some sense of security that they apparently don't now feel," said Fargo, who in September will start a term as president of the League of California Cities.

"In our city, we haven't done a lot of that, but in some communities there has been a real concern. We're hoping to get some reform done that people will think is meaningful, and will put this issue to rest."

State law has long given cities – acting through their redevelopment agencies – the right to exercise eminent domain to acquire land in areas defined as "blighted."

Sacramento used these powers to build the new Central Library in downtown Sacramento, as well as a new apartment complex that occupies a former hole in the ground at Ninth and J streets.

Outside downtown, the city used eminent domain to overhaul the crime-plagued Franklin Villa development – now renamed Phoenix Park.

On Dec. 18, the City Council authorized the use of eminent domain to acquire nine properties owned by Mohanna in the 700 and 800 blocks of K Street – an area with a high retail vacancy rate, crime, and gaps where buildings have been demolished.

The city plans to award the properties in the 700 block to Joe Zeiden, owner of the Z Gallerie furniture chain, so he can create a retail row in the historic buildings just outside the entrance to Downtown Plaza.

Mohanna had agreed to a voluntary property swap that would have left Zeiden in control of the 700 block, and him with the 800 block. But he has balked at completing it since a fire in one of his buildings last year resulted in the demolition of much of the 800 block.

It's unclear what stage in the eminent domain process against Mohanna the city would have to reach to avoid the impact of the Howard Jarvis ballot measure, should it pass. Would simply filing the eminent domain case be enough? Or would the city need a final judgment in the entire case? The measure contains no language clarifying this question.

Marko Mlikotin, a spokesman for the coalition pushing the far-reaching ballot proposition, opined that possession of the properties is the key. If the city doesn't gain possession of Mohanna's properties before June, and the measure passes, it would not be able to move forward, Mlikotin said.

"They would be under pressure to seize the property prior to June," Mlikotin said.

Assistant City Manager John Dangberg said it will likely take at least six months before a judge rules on the city's right to force the properties' sale. The city will likely go to court in January to start the process, he said.

An eminent domain case has two phases. First, a judge decides if a city has the right to acquire properties through eminent domain. Then a jury sets the price.

The law allows a city to take possession of a property while the value phase of the trial is ongoing. Doing so is a risk, however, because property owners have the right to appeal, which can add years to the process.

Pressure to scale back eminent domain power has been building since the U.S. Supreme Court's 2005 decision, Kelo v. City of New London, which found that the city of New London, Conn., was justified in demolishing houses owned by Susette Kelo and her neighbors for a commercial development.

On its face, the decision strengthened the hand of local governments. But it also ignited a backlash against the use of eminent domain, giving property rights advocates an issue to rally around.

It isn't the first time the Howard Jarvis Taxpayers Association has tried to persuade Californians to scale back eminent domain. In 2006, voters narrowly rejected Proposition 90, which was similar to the measure the group is now promoting.

Mlikotin said the new measure stands a better chance of passing because, unlike Proposition 90, it doesn't require local governments to compensate property owners every time they adopt a regulation that could hurt property values.

Private polling shows public support for scaling back eminent domain powers, Mlikotin said. "With those results we felt comfortable going forward."

The League of California Cities has highlighted what it says are deceptive provisions of the measure, including language that would abolish rent control.

Sacramento CA Bee: http://www.sacbee.com


Blaine is wary of using eminent domain: Minneapolis MN Star Tribune, 11/9/07

A developer with a vision for a more than $150 million sports and entertainment complex seeks the city's help to secure nearby properties

By Eric M. Hanson

The developer who wants to bring a new sports and entertainment complex to Blaine [MN] is asking for the city's help to force nearby property owners out by using eminent domain if necessary.

Developer John Donnelly told the City Council on Thursday night that his company won't be able to attract investors to the more than $150 million project without removing five light-industrial properties next to the site.

"There's a reluctance to spend that kind of money when this is on your front door," Donnelly said at the council meeting, where he discussed drawings and some details about the SportsTown USA proposal.

Donnelly Development Group, of Edina, described the project as an asset to "Blaine's identity as an amateur athletics center for the Midwest." Plans include a hotel and indoor water park, fitness center, restaurants, indoor go-carts, a lake and a public square for sports ceremonies, even indoor surfing and skydiving.

Donnelly's group asked for the city's help in getting the nearby property owners to sell, saying industrial properties would be a detriment to the visual appeal of the project.

"What you're asking is for us to condemn these [properties]," City Council Member Russ Herbst said. "I'd have to think long and hard about that."

Herbst was joined by virtually every council member in voicing concern about using eminent domain as a development tactic, although support for the project's goals and features was unanimous.

Donnelly's group is a spinoff of a previous developer that proposed a smaller version of the complex in 2005. The current project represents 30 developable acres on a larger site that encompasses 63 acres, he said.

James Determan, who owns between three to four acres of the industrial property at the heart of the issue, said he is willing to move if the price is right. So far, it hasn't been, he said.

"If they want to use eminent domain, I'll fight them to the end," he said. "I don't think it's legal to use eminent domain unless it's for a public use, and that's not a public use. It's a private development project."

Also at issue is the amount of public subsidy the developer is seeking. The group wants a property tax break that is estimated at roughly $13 million over 15 years.

Council Member Dick Swanson called that figure "awe inspiring."You're asking for the moon," Herbst said.

Still, city leaders were interested enough in the proposal to direct the city's staff to meet with the developer over the next few months to get closer on an agreement.

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

Money pit on North Queen: Lancaster PA Newspapers, 11/11/07

Too late to undo county office project that has budget, legal problems

By Helen Colwell Adams

The conversion of the former Armstrong building to county offices is running late and over budget, but the newly elected county commissioners think it's too late to pull the plug on the project.

"I have said I would walk away from this project in a heartbeat if it were feasible," Republican Scott Martin said last week.

But he and the other two commissioners-elect, Republican Dennis Stuckey and Democrat Craig Lehman, agreed that the county probably could not recoup its investment in 150 N. Queen St. if the new commissioners halted the work.

Through the end of October, the county had spent more than $25.4 million, including the $8.3 million paid to the building's owner through eminent domain, and county Administrator Mark Esterbrook estimated another $13.5 million is needed to finish the renovations.

If no additional expenses pop up, that would put the project about $3.5 million over the original total of $35.4 million for purchase and remodeling.

That doesn't include an estimated $38 to $40 million to renovate the county courthouse at 50 N. Duke St.

The Armstrong building could end up to be even more expensive; former owner Dr. Ira Trocki has sued in federal court, contending the $8.3 million is far below the actual value of the property.

Trocki said last week that he would have rented the entire building to the county for $3 million a year, the same price that Armstrong World Industries paid before moving out.

"Their interest payment [on the renovation costs] is going to be more than what they're going to pay me in rent," Trocki said, "and they wouldn't have to go to court."

Commissioners Dick Shellenberger and Molly Henderson, who voted along with former commissioner Pete Shaub to take the property by eminent domain, last week said they still think 150 N. Queen was the best option for a county government desperately in need of more office space.

Even though the job will "take us a little longer than we anticipated," Shellenberger said, "I think it was the right move."

Lehman isn't so sure.

"It may be one of those things that it's simply too far down the road to turn back now," he said.

"I hate to say that. I really do."

Growing pains
Space problems at the courthouse, mostly related to the rapid expansion of Lancaster County Court offices, led to the commissioners' decision late in 2004 to take 150 N. Queen by eminent domain.

The commissioners said at the time that their other option was building offices on land the county owns on Sunnyside peninsula — an unattractive alternative because it would have taken hundreds of county workers out of downtown and would have blocked a planned housing development on the Sunnyside property.

But troubles have plagued the project, from Trocki's lawsuit to a series of complications with the renovations — holes in floors and walls, fires, fumes and other safety concerns — that led the city fire department to shut down work in May.

Tenants in the building went to court, resulting in the county paying $753,000 so far for safety monitors, lease terminations, legal fees and relocation costs. County workers whose offices are already at 150 N. Queen — about 300 now — also complained about conditions.

Some county offices were scheduled to move into new space this month and in December, but because the renovations aren't finished, the timetable has been pushed back.

"A new master schedule will be forthcoming in the next two weeks," Esterbrook said.

About 15 offices, and another 400 employees, are shifting to 150 N. Queen to make room for court expansion; two new judges are joining the bench in January. Esterbrook said moving expenses are budgeted at $150,000 in 2007-08.

He said the court will "work with us to accommodate new judges temporarily until the fifth floor can be made available for temporary use by the judges." The commissioners, controller, Congressman Joe Pitts and the district attorney now have offices on the fifth floor of the courthouse.

With $25.4 million spent through October and an estimated $13.5 million remaining to finish the work at 150 N. Queen, the total would be $39 million, about $3.5 million more than the original estimate.

Once the other county offices have relocated, renovations must be done at the courthouse itself. Esterbrook said estimates for that work are $38 to $40 million.

The newly elected commissioners questioned the project during the campaign. Last week, they said the county probably has no option but to finish the relocation.

"It's difficult to halt the project with the money we've sunk into it," Stuckey, the current county controller, said.

"It's certainly something I will be taking a close look at," Lehman said. "It seems to me at this point … that it's probably too far along to backtrack."

"I've always had my doubts about the project," Martin said.

He suggested that a public-private partnership to redevelop buildings on the first block of East King Street, with a long-term lease for the county, could have kept properties on the city tax rolls and been more efficient in terms of proximity to the courthouse.

"If there was a way it could be worked out that [150 N. Queen] could be returned, and be a return on our investment as well … I would definitely be open to discussing that," he said.

"The bottom line is, we're accountable to the taxpayers."

Friendly, not so friendly?
Henderson and Shellenberger, though, contend that for the square footage available at 150 N. Queen, the cost of the project is reasonable.

On a tour of projects funded with county contributions before Tuesday's election, Henderson repeated what she had said in other campaign appearances: that the eminent domain proceeding was a "friendly" takeover.

Henderson said Trocki asked for his assessment to be lowered prior to the takeover, contributing to the $8.3 million compensation, which she said was the legally mandated average of three appraisals.

"He is the one who set the bar lower," she said. "That figured into the ultimate price years later."

Trocki hotly contested Henderson's assertions, saying last week that he didn't fight the eminent domain process because his lawyers said it was an unwinnable battle.

Instead, he is arguing the county undervalued the building, which he bought for $12.1 million in 1998.

He also said the county offered a settlement of the assessment appeal, which he said was originally filed by Armstrong. He now believes the assessment settlement of $8.3 million was a tactic to drive down the value of the property — along with leaks to news media about plans for eminent domain, which Trocki said succeeded in scaring away tenants.

"No tenant wanted to move in and then get thrown out shortly thereafter," he said.

Trocki said he had been negotiating with county officials about leasing space in the building ever since Armstrong World Industries, which had been renting the entire structure, filed for bankruptcy and notified Trocki it was moving out.

The county needed about 50,000 square feet then and much more later, Trocki said, so he agreed to $11.50 per square foot, plus covering all renovation and cleaning costs, with the understanding that when the lease was up for renewal, the county would pay market rates.

Trocki also said he discussed selling the building to the county for $20 million, although he said he might take $18.5 million.

He said he had the building under agreement of sale for $15 million, and had another pair of buyers, Pat Egan and John Meeder, willing to give him a slightly better deal, when the eminent domain action occurred.

"They still went ahead and eminent domained," Trocki said, and ended up paying Egan nearly $1 million to terminate his lease and relocate.

Trocki's attorneys said "it was highly irregular that an agency would take a building for the exact same use it has," and he suggested it's the first time such an eminent domain taking has happened in Pennsylvania.

The renovation costs, he said, are "absolute craziness."

Trocki is asking for another $10 million-plus in the federal lawsuit.

"We hope somebody will be reasonable and get this over with," he said.

"... It was not a friendly eminent domain."

Lancaster PA Newspapers: http://local.lancasteronline.com

Rosemount divided over new project with old look: Minneapolis MN Star Tribune, 11/10/07

Although it receives high marks from a Met Council panel of experts, a key piece of Rosemount's downtown rebirth is drawing considerable flak

By David Peterson

The birth pains, in the creation of a new downtown Rosemount, are audible in the voices of Wallace Johnson and Mark DeBettignies.

Johnson, president of Apple Valley-based Stonebridge Companies, is developing a huge new building that is supposed to ignite a Stillwater-like, revitalized downtown in the city's historic center.

DeBettignies is a City Council member fighting off opposition to the project. "I get tired trying to answer all the questions," he said. "People just don't see the big picture."

Each man sounds weary, despite what would seem good news: An influential Metropolitan Council advisory committee has found the project - by a decisive margin - the most impressive that any suburb offered up this year. The group recommended that Rosemount alone reap nearly $1.6 million of the $8 million available this year for innovative development.

City officials see the proposed Stonebridge project - more than 100 apartments atop ground-floor office space, with underground parking, all of it wrapped within old-time brick facades meant to recall a 19th-century downtown streetscape - as a model for the rest of the area.

A group called "Save Rosemount" sees it as an abomination. Among their reasons: The need to exercise the city's power of eminent domain to acquire one parcel, and the substitution of rentals for condos once the condo market went sour. In their literature, available on the Web, two unnamed residents say that apartment complexes "turn out to be ... all Junkies."

In reality, DeBettignies said, these will be high-quality units, built to condominium standards in hopes of converting them later. "You wouldn't believe the aesthetics," he said. "Wood floors, moldings - really nice."

Johnson, meanwhile, has had to produce version after version of his building, trying to satisfy city officials as they seek the right look, as though it were actually several older buildings.

"We've been going back and forth to get consensus," he said. "It's hard when you have six or seven people with opinions. But we're getting there."

Such projects are a recipe for migraines for all involved, said Carolyn Krall, an architect and urban designer with Landform, a Minneapolis firm that consults with cities on similar projects but is not involved with this one.

"It's been very hard for the city to attract a developer who can build the kind of traditional downtown buildings they'd like to see," she said. "Buildings that will enhance what's left of their original, historic downtown. It's very challenging.

"Developers can make a lot more money with a lot less trouble - barely a mile or two away - by adding to the miles and miles of strip malls from Savage to Rosemount."

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

Save Our Village Holds Seminar To Discuss Eminent Domain: New Hyde Park NY Illustrated News, 11/9/07

By Margaret Whitely

Recently, Save Our Village (SOV), an activist group in New Hyde Park dedicated to "saving the village" from Metropolitan Transportation Association (MTA) and the Department of Transportation's (DOT) Long Island Railroad (LIRR) "Main Line Corridor Improvement Project" held a seminar at the New Hyde Park Road School auditorium. The group focuses on the environmental, social and economic effects it will have on the quality of life in the village. The seminar was to discuss Eminent Domain as it relates to the Village of New Hyde Park.

SOV President Robert Femminella, along with vice-presidents Diane Bentivenga and Christina Prieto-Maroney, introduced the guest speakers; Thomas Levin, a partner with the law firm of Meyer, Suozzi, English and Klein and Edward Gutleber, an attorney with the same law firm, both volunteering their time, spoke on various aspects of eminent domain law, and New York State Senator Craig Johnson, who reiterated that he is vehemently against the Third Track Project and will continue to be so until the MTA presents a clear plan to the community that is approved by the community residents and its civic organizations and its local government officials. Johnson pointed out that although Governor Eliot Spitzer appears to be for the Main Line Project, he is absolutely against it and has told the governor of his feelings many times explaining to him the drastic impact it will have especially on the Village of New Hyde Park.

The first speaker, Thomas Levin, received a laugh when he started his speech off by saying, "Don't kill the messenger."

He then went into the extensive background of eminent domain. He said, "Eminent domain first originated in England when the King or Queen could take property at will and when nobody had any rights."

Levin said, "In the United States, when we developed our constitution some 220 years ago, we took the concept of eminent domain as a power, but limit the power of the federal government and give those powers to the states. The only place there is an actual discussion is in the Fifth Amendment when it says no property shall be taken for public use without just compensation."

He explained that sometimes people refer to eminent domain as condemnation, but he said that carries with it the connotation that the property is blighted in some way, or a building is unsafe. But, "eminent domain," he said, "is much more than that." He said, "In New York State the power of eminent domain is in the state constitution to exercise the power to take private property for public use. The government can take property even though the owner is not willing to sell it. There is a statute called the Eminent Domain Procedure Law which spells out in great detail the process by which it gets done. For the much part any litigation about this law is usually fruitless because it just points out something the government has to do over and they do that and then take the property anyway."

Levin continued, "Eminent domain is essentially a government decision to take private property for a public purpose, and you will hear that phrase over and over again. There are limits on when and how the government does this. Ultimately, the courts do not second guess the wisdom or the merits of the decision because that is a political decision and any complaints about that do not go through the courts but through the political arena and that is why I am going to talk about the MTA."

He explained there are other statutes that have to be followed for eminent domain and the State Environmental Review Act is one. He said, "When anything has an impact on the environment this study must be done before any decision to take any property that has an impact. If that process is not done, that's a cause for a challenge."

He said the law that applies to this project is the Public Authorities Law in the State of New York that deals with the MTA and gives it various powers.

He said, "What we have in all eminent domain cases is one common key question. Is the taking of property that is proposed for a public purpose? It is not something that is put up for a vote. The government agency that proposes the taking is the one that gets to decide. The courts will eventually decide if it's a public purpose or a public use. When you look at the classic cases, the ones that the courts will spend only two seconds on are the ones where the government has claimed property to be owned for a public purpose. There is no condemning property to turn it over to a private owner. They are taking the property to turn it over to the government to own either temporarily or permanently. The examples given are military installations, government buildings, parking lots, public roads, railroads or public utilities. It would be hard pressed to make an argument that any proposal to take property to use as a railroad facility and the chances of the courts to rule that is not a public use is just about zero. The only thing the courts do in such cases is to look at the procedure to see that it has been followed correctly. To understand it more clearly read Title 11 of the New York Public Authorities Law, Section 1264, 1265 and 1267 that spells out exactly what the MTA can do."

Next up was Attorney Gutleber who spoke mainly about the compensation process.

He said, "The foremost principle is the concept of just compensation. Pursuant to both the United States and New York Constitution, a property owner is entitled to just compensation. The requirement states that the property owner be indemnified so that they are in the same relative position, as possible, as if the taking had not occurred."

He went on to say, "Just compensation, in its purest form, requires that the property owner be made whole by payment of the fair market value of the property valued at the date of the taking. The property owner will be compensated with damages to the real property that includes the land, building improvements, the building fixtures. There is no compensation for damages resulting in lost business. If only a portion of the property is taken, the property owner is entitled to indirect damages that may result in the diminution of the value of the remaining property. Another fundamental principal is that the property owner is entitled to fair market value taken at its highest and best use. For instance, if a single family owner, surrounded by all business property, can prove that there will be a change of zoning of his property to business, he can then claim the higher amount of compensation."

He continued, "The value of the property must be determined by an expert real estate appraiser. Initially, they will determine the amount of damages sustained and make an offer. The property owner may then accept or reject the offer, but may still file a claim for additional damages."

The entire seminar gave an insight to the residents of what they can expect to the process if and when the entire process gets underway.

However, since the LIRR or the MTA have not submitted any definite plans to the residents of the Village of New Hyde Park it is hard to come to any conclusion as to what is planned.

For further information or to keep in contact with the SOV group, please call 516-328-1171 or email the group at SOV.NHP@GMAIL.com.

New Hyde Park NY Illustrated News: http://www.antonnews.com/illustratednews


Rent control under attack: San Francisco CA Bay Guardian, 11/7/07

Eminent domain reform measure on June ballot could kill San Francisco's rent-control and affordable-housing laws

By Steven T. Jones and Sarah Phelan

San Francisco's rent-control and affordable-housing laws could be struck down by a statewide initiative that appears to be headed for the June 2008 ballot.

The measure is sponsored by a coalition of conservative property rights advocates under the guise of limiting the government's ability to seize property by eminent domain.

Cities and progressive organizations are fighting back by trying to qualify a competing ballot measure that would restrict the ability of governments to seize owner-occupied homes but would invalidate the more radical initiative. Groups from the San Francisco Tenants Union to the League of California Cities are actively mobilizing to gather the needed signatures by the Dec. 3 deadline.

SFTU director Ted Gullicksen told the Guardian, "180,000 rental units stand to be affected in San Francisco," and argued that the invalidation of rent-control laws would rapidly gentrify the city. He noted that environmental groups have lined up against the measure because of ambiguous wording that "could also impact the revamping of the Hetch Hetchy Dam as well as the work on the levees and the delta."

His group is mobilizing volunteer signature gatherers to qualify the competing measure — which would need more votes than the right-wing measure to quash the latter — and trying to educate the public through the Web site www.eminentdomainreform.com and a Nov. 14 rally planned for noon at the State Building at Van Ness and McAllister.

Eminent domain laws have been a hot-button political issue since 2005, when the US Supreme Court ruled in Kelo vs. City of New London that the Connecticut city could use eminent domain to seize land for a private development project. The furor over that decision triggered last year's Proposition 90, which would have restricted eminent domain and defined "regulatory takings" so as to cripple local governments' ability to enforce environmental laws and other restrictions on property use.

Prop. 90 was narrowly defeated (by 47.6 to 52.4 percent of voters statewide, but 29 percent in San Francisco), and advocates for the constitutional amendment titled Government Acquisition, Regulation of Private Property hoped to learn from the experience in crafting this new measure, for which they say they've gathered 850,000 signatures and plan to have one million by the Nov. 26 deadline for turning in 694,354 valid signatures of registered voters.

That measure "had a substantial amount of baggage in that it delved into regulatory takings," Jon Coupal, president of the Howard Jarvis Taxpayers Association, told the Guardian. The latest proposal, he said, "is a fairly tightly drafted measure that deals with eminent domain."

Actually, as the Attorney General's Office has concluded in its summary of the measure, it would also strike down rent-control laws, a key source of affordable housing in San Francisco, Berkeley, and a couple of other California cities. The measure's broad prohibition on laws that "transfer an economic benefit to one or more private persons at the expense of the private owner" could also be interpreted as invalidating inclusionary housing laws, which require developers to create a set percentage of below-market-rate units, and other laws that regulate property.

Coupal admitted the measure attacks rent control and told us, "We think that's part and parcel of complete property rights protection." But he noted that units are only removed from rent-control protection when existing tenants move out. And he denied that the proposed act would affect inclusionary housing laws, citing a section that reads, "Nothing in this section shall be construed to prohibit or impair voluntary agreements between a property owner and a public agency to develop or rehabilitate affordable housing."

Yet he also admits that it's an open question whether affordable-housing requirements for developers will always be deemed voluntary. He said, "The issue of what is voluntary is currently being litigated in a number of courts."

San Francisco CA Bay Guardian: http://www.sfbg.com

Motion to stay eminent domain case denied: Oklahoma State University Daily O'Collegian, 11/5/07

By Michele Kraak

A Payne County [OK] judge denied a motion for stay pending an appeal in the ongoing Board of Regents and McCloskey Brothers’ eminent domain case Thursday.

District Judge Donald Worthington ruled earlier this year that OSU was entitled to the brothers’ property, which would be used in the university’s Athletic Village plan. The McCloskey Brothers’ attorney filed a motion for stay pending appeal so OSU would not be able to do anything with the property until the case has been settled. Harlan Hentges said in the motion that the potential harm to the brothers was irreparable because OSU intends to destroy the property.

Worthington refused to issue the stay, saying he didn’t think the court had the authority to issue it. In July, he ruled OSU could take the property using eminent domain for $84,000.

After the hearing, Hentges filed an appeal to the Oklahoma Supreme Court. No date has been set as of now.

Plans for the Athletic Village began about two years ago, and the two sides have debated whether OSU has the right to take the property.

In November 2005, OSU announced its Campus Master Plan, which included plans for an athletic village north of Boone Pickens Stadium. The university began buying property, forcing many students and faculty members to move. The original plan was to have all of the property acquired by July 2006.

The McCloskey brothers’ house is the last of 87 property units OSU wanted to acquire for the village. Hentges said it comes down to being right and being wrong.

“The McCloskey brothers had bought a house just a couple of months before the announcement (of OSU’s plan), and they didn’t think it ought to be done that way,” Hentges said. “They would not agree to a price on this house, so the Board of Regents ultimately decided to try to condemn the house.”

One of Oklahoma’s statutes says universities can acquire property through condemnation only in certain instances. Hentges said parts of the athletic village are going to be used for a hotel and a convention center, which is not within their rights.

“They didn’t prove that they were taking it for either a stadium or a field house, which are the only things that come close,” Hentges said.

Randall Elliot, who is representing the Board of Regents, could not be reached for comment.

Hentges said the most obvious argument against the Regents is that they are not qualified to be regents under the Oklahoma Constitution. Nine regents serve on the board, including a president. The governor appoints the eight other regents. The constitution says a majority of the eight regents the governor appoints must be farmers, which means they must earn a majority of their income through farming. Hentges said none of the regents qualifies as a farmer.

“The regents aren’t qualified to be regents,” Hentges said. “The Board of Regents we have is not the Board of Regents provided by the Oklahoma Constitution, and the way they’ve used their authority is not valid.”

The Board of Regents’ response to the motion for stay notes the Oklahoma Supreme Court has ruled a landowner is not allowed to stay in an appeal of a condemnation action. Worthington followed the Supreme Court’s precedent in his ruling Thursday, but Hentges said he thinks the ruling should be overturned.

“You and I could go out and file a lawsuit and say we’re the county commissioners, or we’re whoever we want to say we are, and we have the right of eminent domain,” Hentges said. “If the landowner doesn’t have standing to challenge that, that’s obviously a problem.”

Oklahoma State University Daily O'Collegian: http://ocolly.com

Blight removal: Savannah GA Morning News, 11/5/07


The state's eminent domain legislation has had the unintended consequence of making it more difficult to clean up blighted areas

WHEN THE U.S. Supreme Court ruled in June 2005 that local governments could seize a person's property for virtually any purpose - including turning the land over to private developers - alarmed state legislators around the country drew up rules corralling eminent domain powers.

In Georgia, a similar move was fired in part by the condemnation of more than 2,000 acres by Effingham County's Industrial Development Authority for a future industrial park.

In the 2006 legislative session, the General Assembly enacted strict new rules making it more difficult for local governments to seize property through eminent domain, and truncating the number of purposes for which land could be seized.

By so doing, however, the legislation has had the unintended consequence of making it difficult for cities to clean up blighted properties.

In Savannah, the problem is most common in houses owned by absentee owners who do not live in the area, and rental properties that landlords fail to maintain.

In a meeting with the area's state government delegation Thursday, Savannah alderman Tony Thomas rightly noted that because of neglect by landlords, "the quality of life is deteriorating in parts of the city."

Indeed, sagging, dilapidated houses are not only eyesores, but also contribute to the feelings of desperation and carelessness in a community that too often help to foster criminal behavior.

In its upcoming session in January, the General Assembly should consider targeted amendments to the state's current eminent domain laws, which will allow cities to take quicker action in cases where blighted properties pose health and safety hazards.

These amendments could include strict guidelines that nevertheless allowed cities a more expedited avenue for blight removal. In order to keep cities from taking homes solely for the purpose of economic development, the new provisions might also require any seized property to maintain the zoning level it had prior to seizure.

Such a provision would coordinate well with the city of Savannah's push to create in-fill housing in vacant or blighted areas.

Cities have a valid reason to want to keep blight at bay. State lawmakers should make it easier to guard against the wasting of vital housing stock.

Savannah GA Morning News: http://www.savannahnow.com

Neighbors unite to fix up homes of needy: Ventura County CA Star, 11/3/07

By Anna Bakalis

Neighbors helping neighbors is how a group of Moorpark residents are characterizing their new project aimed at fixing homes for those who couldn't otherwise afford it.

The "Let's Make Moorpark Beautiful" project is in its beginning stages, and volunteers hope to fill the gaps for those who might not qualify for home rehabilitation loans from the city.

Painting, hauling, weeding, removing old junk and repairing fences are some of the services the group would like to offer that might lift property values and boost neighborhood morale, said one of the project's founders.

Many people in the low-income areas have applied to the city for funding but have been told they don't qualify, said longtime resident Ernie Bergmann.

"Some of them make too much money, but then they do not make enough to fix their home," he said.

Organizers want to bring in money from local, state and federal agencies, a process that will likely require a nonprofit designation for the group, said one city official.

They need to file an application every year to apply for government funds, said David Moe, city redevelopment manager.

"If they can get it off the ground — anything from the community that can help the city — the more leverage the better," Moe said.

The idea for the home rehab program came out of a recent eminent domain amendment that was rejected by the City Council in a 5-0 vote. Eminent domain is the power of a public agency to forcibly acquire private property at fair market value for public use. The amendment would have re-established a lapsed authority over about a 1,200-acre project area, mainly in the downtown area.

The authority worried residents enough that they packed the council chambers last month to protest the amendment.

A blight study, completed by a consultant who identified areas for possible rehabilitation, was part of the eminent domain discussion.

"There are areas in Moorpark that are eyesores," Bergmann said. "We are not blind to that."

Bergmann has been a Moorpark resident since 1977 and hopes the program will bring people together. It is good to empower neighborhoods and residents, he said.

"I think people have a responsibility to their community," Bergmann said. "I think of them as next door neighbors that live across town."

The group of volunteers has met once to talk about ways to get the project going, and members are looking for help and input on how to kick-start the program.

Ventura County CA Star: http://www.venturacountystar.com

Phoenix Owner of Downtown El Paso Parking Promises a Fight for his Property: Newspaper Tree, El Paso TX, 12/27/07

By Rene Leon

Downtown redevelopment efforts may encounter another obstacle as one property owner has threatened to take an eminent domain-related measure to the voters.

Leon Woodward, a Phoenix resident and owner of U.S. Parking Systems, on Dec. 18 went before the El Paso City Council and warned he will bring forward a voter initiative calling for a 10-year wait on future uses of eminent domain if he feels his properties are in danger of condemnation.

Under Section 3.11 of the El Paso City Charter, Woodward can place an item on the City Council agenda with a number of voter signatures equal to five percent of those who voted in the last general municipal elections. Upon receipt of those signatures, the item must be placed on the agenda within 30 days. If the council votes down the proposed ordinance, Woodward would have the opportunity to again collect the appropriate number of signatures and submit them to the city clerk, who by law would be required to place the proposed ordinance on the ballot for the next general municipal election.

Woodward claimed he would need at least 2,018 signatures for his initiative to go before council, which would be five percent of 40,360 voters. However, Tony Rivera of the El Paso County Elections Department stated only 26,045 people voted in the May 2007 municipal general election, setting the required number of signatures at 1,301.

Anthony Washington, who is an assistant city manager in Phoenix, where Woodward had previously threatened similar voter initiatives when faced with condemnation of his properties there, said Woodward is a successful businessman who follows through on his commitments.

“He was prepared to exercise his rights. My experience with him is that he is a person who doesn’t make idle threats; he follows through,” Washington said of Woodward, who threatened but later withdrew his eminent domain initiatives after negotiations with Phoenix Mayor Phil Gordon.

Oddly, Woodward left the meeting soon after making his comment during the meeting’s Call to the Public session, even though an item was scheduled later in the meeting calling for the expansion of Tax Increment Reinvestment Zone, or TIRZ, No. 5, which includes the Downtown area. He said he scheduled his trip to El Paso two weeks prior to the meeting and was unaware of the TIRZ item.

Included in a document packet given to the media are several letters written by Woodward and addressed to Mayor John Cook and the council in which Woodard describes what he feels are instances of intimidation on the part of Bill Sanders, a principle member of the Paso del Norte Group, or PDNG. The PDNG was a key supporting organization in the development of the Downtown 2015 Plan, which has been criticized by some for not including input from residents and business owners in its creation.

“Billie Sanders and his associates approached me several months ago with the intention of purchasing my business and downtown properties. I refused to sell and Billie Sanders decided to even the score by canceling my parking contract at the Chase Bank building,” writes Woodward in his letter to the mayor and council. He further states that he was contacted in October by an attorney who he claims informed him that the reason for the contract’s cancellation was because he refused to sell his properties to the Borderplex Community Trust, which owns the Chase Bank building and Bassett Tower.

Sanders, though, said in a written statement that he has never dealt with Woodward.

“Up until the recent City Council press coverage, I had never heard of Leon Woodward - and certainly had never spoken with him,” Sanders said in the statement. “Mr. Woodward appears to have quite an imagination."

Also included in the document packet was a photocopy of a Phoenix Gazette editorial column written by Dennis Wagner and titled, “Crazy Leon.”

“He runs parking lots downtown. And when someone gets him mad he becomes the most relentless man in Arizona. Leon produces nasty buttons and bumper stickers. He wears out the phone calling talk radio. He researches his foes, uses the system to find a weakness, then files lawsuits or complaints. He hangs on like a pitbull.”

Scribbled in marker in the margin of the photocopy page (possibly by the boisterous and unapologetic Woodward himself) was one simple statement: “Leon won again!”

Newspaper Tree, El Paso TX: http://www.newspapertree.com

Philadelphia within law in condemning private land for a Catholic educational project: Philadelphia PA Inquirer, 12/29/07

Court upholds church-state case

By Nancy Petersen

In Pennsylvania, it is now legal in some cases to condemn blighted private property and turn it over to a religious organization, the state Supreme Court ruled this week. The case, which blended the hot-button issues of eminent domain and separation of church and state, revolved around a North Philadelphia neighborhood that the city certified as blighted 36 years ago.

The city Redevelopment Authority condemned the property, in the 1800 block of North Eighth Street, in 2003 and transferred it to the Hope Partnership for Education, a Catholic religious organization that proposed building a nondenominational middle school on the site, among other projects.

One of the property owners, Mary Smith, appealed the condemnation, arguing that it benefited a private religious entity and was not for a public purpose as the law requires.

Common Pleas Court found the action lawful, Commonwealth Court said it wasn't, and now the Supreme Court has ruled that it is, provided the primary purpose is to remove blight. "The principal or primary effect of the redevelopment plan . . . is to eliminate blight in this particular neighborhood," said Justice Cynthia Baldwin, who wrote the majority opinion. A secondary effect could be the advancement of religion, but there is no evidence that is the primary goal, she wrote.

Justice Max Baer disagreed, calling the majority decision unfortunate. "I believe this is a case of direct government aid, in the form of a land transfer below market value, to a religious organization for the development of a religious school," Baer wrote in his dissent.

The result, he wrote, is the "direct financing of religious education with the primary effect of advancing religion." The city, the Hope Partnership and Smith's representatives could not be reached for comment.

Philadelphia PA Inquirer: http://www.philly.com