Eminent domain power challengedLawrence (KS) Journal-World, 10/4/04

U.S. Supreme Court to consider government's right to take private property

By Joel Mathis
The U.S. Supreme Court is weighing a case that could rein in the powers of Kansas government to take private property.

And Lois Marriott, one of many people who lost a Wyandotte County home so a racetrack could be built, is in favor of that happening.

"There's plenty of land around," said Marriott, one of 165 property owners who got the boot in the late 1990s when the Kansas Speedway was built. "You don't have to take people's homes."

Kansas is one of a handful of states that uses the power of eminent domain &151 the taking of public property by government &151 for economic development purposes.

In the case before the Supreme Court, Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed a lawsuit after city officials announced plans to bulldoze their homes to clear the way for a riverfront hotel, health club and offices. The residents refused to budge, arguing it was an unjustified taking of their property.

For 'public use'

The neighborhood included Victorian-era houses and small businesses that in some instances had been owned by several generations of families. New London, a town of fewer than 26,000 people, had been losing residents and jobs when it planned the land takeover, city leaders said.

The Fifth Amendment allows governments to take private property for "public use." The seven states that allow condemnations for private business development alone are Kansas, Connecticut, Maryland, Michigan, Minnesota, New York and North Dakota.

The appeal turns on whether "public use" involves seizures not to revitalize slums or build new roads or schools, but to raze unblighted homes and businesses to bring in more money for a town.

Nationwide, more than 10,000 properties were threatened or condemned between 1998 and 2002, according to the Institute for Justice, a nonprofit law firm in Washington that litigates civil liberties cases.

The condemnation of homes in Wyandotte County for the Kansas Speedway development was one of the more controversial uses of eminent domain power in Kansas.

Reinvigorated economy

"Eminent domain was a very bitter pill to swallow for everybody, including us," said Don Denny, a Wyandotte County spokesman. "But it was a necessity to get this project moving forward that has transformed the community."

County officials say the speedway and "Village West" &151 the adjoining 400-acre development that includes Cabela's and Nebraska Furniture Mart &151 have reinvigorated the local economy, created thousands of new jobs and poured millions of new tax dollars into local coffers.

They say that never could have happened if Wyandotte County hadn't had the power to seize private properties to make way for projects that produce more tax revenue.

Officials in Kansas point to the speedway and a new Target Distribution Center in Topeka as successful examples of the use of eminent domain for economic development.

"They bring large numbers of jobs and tax dollars to the state," said Kim Gulley, a spokeswoman for the League of Kansas Municipalities. League members are expected to approve their support for eminent domain at a statewide meeting Tuesday.

Critics, however, say the government powers trample on private property rights. A Kansas Senate bill to limit those powers was defeated in March.

"Our founding fathers understood and stated that our individual freedom rests with protecting individual property rights," Sen. Robert Tyson, R-Parker, said at the time.

Power of last resort

An interim legislative committee will take a closer look at the issue during a meeting Wednesday. But committee chairman Rep. Mike O'Neal, a Hutchinson Republican, said the Supreme Court's decision to hear a case on the issue makes him cautious.

"I'm an attorney," he said. "If something's pending before the Supreme Court, I like to wait so we can do it right the first time."

No mater what the high court or the Legislature decides, though, it's too late for Marriott to get her home back.

"We'd only lived there two, two-and-a-half years. Some people had lived there a long time," she said. "What could you do? A lot of people got lawyers, they fought it and all. It was a terrible year."

Despite that experience, Marriott says she is not opposed to some uses of eminent domain.

"For highways they should (have the power) &151 but just to put a racetrack in or to put a Costco in, I don't think that should be," she said.

Denny said eminent domain should be a power of last resort for local governments.

"You need to analyze a project on a case-by-case basis &151 what's the bottom line?" he said. "Is the community going to benefit, or is it just going to be a business?"

And he expressed sympathy for the property owners pushed out to build the speedway.

"They sustained some negativity from that," Denny said. "Hopefully they've regrouped their lives."

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Lawrence Journal-World: www.ljworld.com

Spotlight: Eminent domain ruling offers property owners hopeBowling Green (KY) Daily News, 10/3/03

by Stephen Greenhut
One of the most persistent myths foisted on society by the political left is that property rights benefit mainly the rich and powerful.

Steven Hill, West Coast director of the liberal Center for Voting and Democracy, aptly expressed this misconception in the Seattle Post-Intelligencer: "The point is that the Bill of Rights and Constitution were really there to guarantee the property rights of the rich and the rich wannabes."

The nation’s inequalities, he added, "are a direct result – not in spite of, but because of – the priority given by the Bill of Rights and U.S. Constitution to protect the private property of rich individuals and wealthy corporations over basic human rights."

Yet property rights are not primarily about protecting the "rich and rich wannabes." They are, first and foremost about protecting those without political power from those with power.

That this sounds counterintuitive only reinforces how far the nation has traveled from the ideas embraced by the founders.

Consider this defense of property rights by William Pitt, the British prime minister in the late 1700s and early 1800s: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail. Its roof may shake, the wind may blow through it – the storm may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement."

That was – and remains – a wonderfully radical idea.

Fast-forwarded about 180 years to 1981 and the Detroit neighborhood known as Poletown. It was a well-kept, ethnically diverse working-class neighborhood originally settled by Poles. The area had more than 1,000 homes, 600 businesses, several churches and a hospital.

Nothing wrong with the neighborhood, except that it was in an area coveted by General Motors, which was threatening to build a new Cadillac assembly plant out of state if city leaders didn’t use eminent domain – the power of the state to take property by force, upon compensation to the owner – and clear away Poletown.

So Detroit officials, backed by influential businesses and civic leaders (including the Catholic archdiocese, which sided with the government rather than with its own people), argued that Poletown must be destroyed for the economic well-being of all Detroit residents.

The state Supreme Court agreed that the taking was legitimate, based on a questionable U.S. Supreme Court decision that stood in stark contrast to the Constitution’s Fifth Amendment.

Fifth Amendment’s not fuzzy

The Fifth Amendment is clear about the use of eminent domain. The government can use this power, provided that it is for a "public" use. With some exceptions (e.g., to make way for railroads), the courts generally interpreted "public use" in the traditional way envisioned by the founders – courthouses, highways, schools, bridges, dams, infrastructure.

But in 1954, in Berman v. Parker, the liberal Warren court agreed that the District of Columbia could condemn private property and hand it over to other private developers for a private gain provided that the appropriate legislative body (at the time Congress, since the district had not yet gained home rule) deemed that it was proper to do so.

"If those who govern the District of Columbia decide that the nation’s capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way," ruled the court, in a decision that read more like a chapter in a sociology textbook than a reflection of the founders’ wisdom.

In 1950s Washington, there was a great deal of actual blight. By 1981, the courts were saying that blight need not even be found.

The mere promise of better economic circumstances for a region is a good enough "public" use to clear away a neighborhood.

And although, the Poletown plant is still in operation, its impact has been far less beneficial than General Motors and Detroit officials had promised.

In recent years, cities in Orange County, Calif., and across the country have used Poletown to justify the most outlandish schemes. Sometimes courts or political pressures stop them, but only sometimes.

Taxes spur condemnation

In Cypress, Calif., city officials voted to use eminent domain – they were stopped by a federal court decision – to give Cottonwood Christian Center’s property to Costco. They argued that the transfer from Cottonwood to Costco was for a "public use" because Costco paid more taxes than Cottonwood.

Garden Grove, Calif., tried to condemn an entire ethnically diverse neighborhood so the city could market the property to a tax-producing theme park operator. The city council backed down in the face of public pressure, but officials there rely heavily on eminent domain (or the threat of it) to transfer properties to developers.

In Lakewood, Ohio, the city tried to bulldoze an entire historic neighborhood so that it could give the prime parkfront property to a developer, who promised to replace the working-class residents with wealthy, upscale people who would move into new condos and frequent pricey shops. A local referendum put the kibosh on the plan, despite support from the political establishment.

In New Cassel, N.Y., the city drove a poor, African-American church off its land to make way for a shopping center. In Atlantic City, N.J., the redevelopment agency tried pushing an elderly widow out of her home so that Donald Trump could build a parking lot for his casino’s limousines. It was stopped on a technicality.

In each case, the inspiration was Poletown.

Before Poletown, in Cavez Ravine in Los Angeles, a poor Mexican-American neighborhood was leveled, initially to make way for public housing, but ultimately to create Dodger Stadium.

Those who believe that property rights are mainly for the rich have obviously never thought about these cases, where lower-income people are abused at the hands of important movers and shakers such as Trump, Costco and condo developers.

Wall Street Journal writer John Fund points out that Leaders of Our Town always side with the new development, which only reinforces the importance of property rights for those who want to live their lives in their own way, even against the wishes of the elite.

Fortunately, on July 31, 23 years after residents of Poletown were driven from their homes, the Michigan Supreme Court unanimously overturned the Poletown decision.

It won’t do anything for the original victims, but it will stop other cities from abusing people’s property rights to benefit other, influential people.

The court blasted the original Poletown decision as a "radical departure from fundamental constitutional principles.

...[I]f one’s ownership of private property is forever subject to the government’s determination that another private party would put one’s land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore,' or the like."

When eminent domain is abused, the rich and powerful take advantage of the poor and powerless.

Only with secure property rights can every property owner, no matter how poor or humble, tell the king (or Donald Trump or Costco, or some arrogant city manager) to take a hike.

Even liberals ought to see the beauty in that scenario.

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Bowling Green Daily News: www.bgdailynews.com

Eminent domain a growing concernBeauregard Daily News (DeRidder LA), 10/3/04

By George Frasher, Columnist
This week, the U.S. Supreme Court agreed to hear a case involving a situation that has escalated throughout the country in the past quarter of a century. The Fifth Amendment to the U.S. Constitution deals mainly with the rights of accused persons, but the final 12 words of that article deals with all owners of real estate. It says, "...nor shall private property be taken for public use without just compensation."

This is known as the power of eminent domain. For about 200 years this has been interpreted to mean that a government can force people to sell their property to make way for a road, public school or other public buildings if the government pays the private owners a fair price.

In 1954 the court expanded the process to clearing slum areas. The Court in 1984 broadened the standards even more. Like so many other instances in the Constitution, the framers assured the right but left enacting the legal fine points up to the states and local government.

Thus, the use of the words "...for public use..." can mean different things in different places and different times. The High Court has agreed to hear arguments in an appeal from seven owners in a neighborhood of New London, Conn.

The city has earmarked those properties for economic development. The Connecticut Supreme Court upheld the city's right to take the properties, compensate the owners, and then turn the land over to a private developer.

The city's plan for the 90-acre neighborhood of small homes include a waterfront hotel and conference center, office space for high tech research and development and 80 new homes. The city would lease the land to the developer for 99 years at $1 a year. Such a development would certainly increase the tax base for the city, but the legal question for the High Court is whether such a lease to allow a private corporation making a profit meets the Constitutional restriction "for public use."

While this is the first case to reach the nation's highest court, it is not a unique situation. Another classic example was made public about a year ago. It involved Jim and Joanne Saleet refusing to sell their Lakewood, Ohio, home they have lived in for 38 years so the city can give it to another private owner.

The mayor wants to tear down the Saleet's home, along with 55 other homes, four apartment buildings and more than a dozen small businesses so a private developer can build high price condos and a high-end shopping mall. Naturally, such privately owned enterprises would bring in considerably more property tax than is now being realized.

The Saleets live in an area known as Scenic Park, and because it is scenic it is a prime place to building upscale condominiums with great views over the Rocky River.

In order to invoke the power of eminent domain the city had to declare the neighborhood a blighted area. The term blight means whether the buildings in an area meet today's standards. But it is the City Council and the mayor who establish those standards. Lakewood has set the standard for blight that would include most of the homes in the neighborhood.

A home could be considered blighted if it doesn't have three bedrooms, two baths, an attached two-car garage and air conditioning.

The mayor admitted her house doesn't have two bathrooms, a two-car garage and is on a lot of less than 5,000 square feet.

In Mesa, Ariz., Randy Bailey owns a brake repair shop he inherited from his father and has been on the same corner for more than 30 years. The owner of the Ace Hardware Store in Mesa a few blocks away wants a bigger store. He got the city to buy the land through eminent domain then sell it to him.

This kind of thing is going on throughout the country. And here is one of the biggest incidents. A few blocks from Times Square in Manhattan a man whose family has owned the property on a corner for over 100 years and his neighbors were forced to sell by the State of New York. No, there's no school, courthouse or other public building is going up on the land. What is going up is the new headquarters of the New York Times.

Instead of trying to deal with the owners, the Times officials got the state to use its power of eminent domain.

Incidentally, here's a couple of final happy notes on the above cases indicating that maybe you can fight city hall. The Saleets won when Lakewood residents rejected the plan and also voted the mayor out of office.

In Mesa, the Arizona Court of Appeals ruled that turning over the land to a private business would not be proper use of eminent domain so Randy Bailey's Brake Shop the brake remains at its original site.

On the other side, in New York, the Times can start work on its new headquarters building.

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Beauregard Daily news: www.deridderdailynews.com

Medway to take house by eminent domain(Bellingham MA) Country Gazette, 10/1/04

By Jennifer Pollack
[Medway MA] Selectmen voted 5-0 Monday night to take the historic 3.29-acre property at 2B Oak St. by eminent domain and pay $450,000 to owners Michael and Mary Narducci.

With an Oct. 15 historical demolition delay deadline looming, officials felt the need to act quickly to prevent the Narduccis from developing the site.

The Narduccis, while they cannot get the property back, will have three years to make a claim in Land Court and attempt to prove the property was worth more and settle. The Narduccis do not live in the house on the property.

On Sept. 13 only two of the selectmen were in favor of the taking and this week some voted for it with still mixed feelings.

"I don't think the town or government has any business telling anyone what they can do on their own private land," said Selectman James Galligan. "However, I do believe the house itself, the residents and the historic structure are important to the history of the town."

"When we use eminent domain we are at the edge of a slippery slope," said Selectman Raphaela Rozanski. "But I do see the value of that property for the town of Medway."

The Greek Revival home on the property was built in the first half of the 1800s and owned by Addison Thayer, who put up the dam at Chicken Brook, which formed Choate Pond and powered a stone mill he started across the street. It was later the United Shoe Mill.

The town has not yet determined plans for the house, but decided it needed to act before the deadline expired. Ideas were tossed around such as partitioning the property and selling the house with historical restrictions to a tenant who cares about the history and keeping the rest of the land for the town as open space.

The town will use Community Preservation Act money, authorized by the June special Town Meeting, to take the homestead. CPA money comes from a 3 percent surcharge on residents' property taxes and must be used to promote open space, historical preservation and affordable housing.

Prior to the Town Meeting, the town had offered the Narduccis the assessed value of $439,000 to buy the house, which they rejected without a counter offer. After the meeting the town offered $450,000, which was also rejected.

Mark Cerel, chairman of the Community Preservation Committee told the board on Monday night, "maybe (eminent domain) is the last tool you take off the shelf when there are no further options, but that's where we are right now."

"The downside to taking no action is the loss of a precious part of Medway in the heart of Medway," he said. "If that happens, we're all going to have to answer to future generations."

The issue was tabled at the Sept. 13 selectmen's meeting to give the town two additional weeks to negotiate with the Narduccis on a purchase price.

"An attempt along that vein was made and we're at an impasse," said Selectman John Williams.

The town sent a letter to the Narduccis on Sept. 22 asking them for a selling price and to postpone pending demolition to continue negotiations.

The Narduccis responded in a letter. "Seeing that we are not willing to accept your offers, I can only conclude that the Board of Selectmen has the authority to vote for or against the taking by eminent domain. We are powerless in the outcome of your vote," the letter says.

At the Sept. 13, meeting Cerel told the board he had been by the property and seen bulldozers clearing the land and standing ready to knock down the house when the demolition delay expired.

Several residents sent letters to selectmen supporting the taking and a packed house on Sept. 13 mainly voiced support with the exception of two residents. When selectmen voted on Monday, a crowd of a few dozen cheered.

After the vote Cerel thanked the board for putting their personal preferences aside.

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Bellingham Country Gazette: www2.townonline.com

Supreme Court to look at eminent domainDaytona Beach news Journal, 9/29/04

by Jay Stapleton
An agreement by the Supreme Court to decide when local governments may seize people's homes and businesses against their will – to make way for projects that produce more tax revenue – will not impact pending eminent domain proceedings here, the city's attorney believes.

By agreeing Tuesday to hear a Connecticut case early next year, justices plan to take up the matter during this term, which begins Monday and ends in June. Justices last dealt with the issue 20 years ago, when the court ruled Hawaii could take land from large landowners and resell it to others.

At issue is the scope of the Fifth Amendment, which allows governments to take private property through eminent domain, provided the owner is given "just compensation" and the land is for "public use."

A number of parcels along the boardwalk in Daytona Beach are in eminent domain proceedings as a result of being declared blighted by the City Commission, City Attorney Bob Brown said.

Florida is one of eight states that forbids the use of eminent domain when the purpose is not to eliminate blight. Florida law sets forth how redevelopment can take place and the powers of cities in community redevelopment projects.

In the latest case, Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed a lawsuit after city officials announced plans to bulldoze their homes to clear the way for a riverfront hotel, health club and offices.

The residents refused to budge, arguing that taking their property was unjustified.

Daytona Beach's Brown said he didn't think a decision would affect proceedings here because the New London case appears to be over generating tax values. "That's not what we're trying to do in our redevelopment," he said.

The goal here is to "eliminate the conditions that existed at the time it was determined blighted," he said.

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Daytona beach News-Journal: www.news-journalonline.com

Supreme impact? Eminent-domain ruling could further complicate Charlotte project(Sarasota FL) Herald-Tribune, 10/1/04A

U.S. Supreme Court case, involving a Connecticut town that tried to seize private property and turn it over to a private developer, has a familiar ring – and may have local ramifications.

The court agreed Tuesday to decide whether an effort to increase property values – and thus property taxes – is a legitimate "public use" that allows a government to exercise eminent domain.

The circumstances of the Connecticut case resemble those in Charlotte County, where the county government is seeking to acquire more than 1,000 acres of private land and resell them for the Murdock Village redevelopment project.

How the court eventually decides may make Charlotte County's project more difficult than it already is.

The U.S. Constitution and nearly every state constitution allow private property to be seized only with just compensation and for a public use.

But the definition of public use has evolved and broadened over the years to include far more than roads, schools, government facilities and other projects actually used by the public. Projects that provide broad public benefit, such as eliminating slums and blighted areas, have been allowed, even if they have also resulted in private profit.

Yet, some people see such seizures as an abuse of private property rights, especially when the definition of "blight" is stretched to include suburban areas – such as Murdock Village – that no one could rightfully call a slum. Some property owners in the Murdock Village area have sued, unsuccessfully so far, to challenge the definition of "blight" in Florida law.

The goal of the Charlotte County Commission is broader than simply increasing property values. The redevelopment effort is also aimed at controlling and directing growth and dealing with the county's legacy of hundreds of thousands of small, subdivided lots.

But if the Supreme Court tilts the balance more heavily in favor of private property rights, Charlotte County could face even more legal challenges – and perhaps successful ones – to its controversial redevelopment plan.

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Herald-Tribune: www.heraldtribune.com

National City reschedules hearing on eminent domainSan Diego Union-Tribune, 10/1/04

By Elizabeth White
The City Council and Community Development Commission are scheduled to hold a public hearing Tuesday on a proposal to expand National City's eminent domain powers.

The hearing began Sept. 21, but the size of the crowd that showed up at City Hall caused hearing Chairman Ron Morrison to stop the meeting and reschedule it for Tuesday so everyone could be accommodated. The hearing will now be held at the Martin Luther King Jr. Community Center, which is next to City Hall, at 140 E. 12th St.

The city has an ambitious plan for redevelopment over the next several years, and leaders want the city to have the power to acquire properties to meet their goals.

The proposal would allow the city to acquire commercial and industrial properties west of Interstate 805, an area of 2,400 acres. The expanded authority would not include any residential property, a fact that has confused some residents in the past few weeks.

Because of the overwhelming response to the public hearing, the CDC is recommending the city slow the approval process to make sure residents feel they have been heard, said Byron Estes, deputy director of redevelopment for the CDC.

Instead of trying to finish the process by the end of November, Estes said the city will take more public comment on Tuesday, hold a workshop with the community Nov. 15 and then look at taking a vote on the proposal in January. This timeline will go to the council for approval.

"We heard loud and clear," Estes said. "We really need to have more community involvement. We've heard so much from people."

The city has received about five written responses to the eminent domain proposal. About 20 people had filled out slips to speak at the Sept. 21 hearing. The city has also made a list of frequently asked questions available at City Hall.

The voting members of the CDC and City Council are the same. They usually hold separate meetings.

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San Diego Union Tribune: www.signonsandiego.com
Elizabeth White: elizabeth.white@uniontrib.com

Panelists discuss eminent domainCleveland Plain dealer, 9/30/04

Groups examine Lakewood's, others' policies

by Thomas Ott
People who favor giving government power to seize land for new houses and stores pleaded their case Wednesday in Cleveland, but they won't have a say when the nation's top court hears the matter early next year.

Panelists at Cleveland State University exhumed and dissected Lakewood's Issue 47, which was narrowly defeated last fall. Voters were asked whether the city should be allowed to use its powers of eminent domain to take land after paying fair market value so private developers could build upscale housing and shops in the West End neighborhood.

A second panel discussed court rulings in other states that have restricted government's ability to force the sale of property, but those decisions may not be relevant much longer. The heated debate boiled to the top of the nation's legal agenda Tuesday, when the Supreme Court said it would hear arguments in a Connecticut case early next year.

Alan Weinstein, a CSU law and urban studies professor, predicted that the Supreme Court would back off "in a nuanced way" from a history of deferring to cities on renewal projects. He expects lower courts to get leeway in blocking eminent domain if property shows no obvious deterioration.

Speakers called for sensitivity to property owners who resist being uprooted. They also suggested dropping the "blighted" property designation, a potentially offensive term that may mean only that it lacks modern features like central air conditioning or a two-car garage.

But they said use of eminent domain for economic development must be an option if older cities with scarce open land are to bring in more taxes and ward off the effects of rising poverty. Attorney Craig Miller, who has been on both sides of the issue, said large projects can be thwarted by a lone property owner "who holds a gun to your head."

Speakers said the Lakewood project collapsed because it was too big. The 20-acre project would have demolished stores, 700 apartments and 55 houses.

Dana Berliner of the Institute for Justice, a nonprofit libertarian law firm in Washington, D.C., chided the forum's sponsors for not having any panelists who offered a counter view. Weinstein, who helped organize the forum, talked to Berliner about participating but said he excluded her because she refused to see both sides of the argument.

The Institute for Justice has opposed eminent domain on behalf of property owners in Lakewood and across the country. The firm argues that it is unfair for government to designate nice buildings as blighted simply because they lack modern features. That is a key point in the Supreme Court case.

Eminent domain, or the threat of it, has in recent years cleared the way for Eastlake's minor league baseball stadium and offices, stores and houses in Fairview Park, Garfield Heights and Shaker Heights. Parma Heights City Council has given preliminary approval to taking land for streets in Cornerstone, a proposed housing and entertainment complex, but Law Director Anthony Stavole expects the city to negotiate deals without going to court.

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Cleveland Plain Dealer: www.cleveland.com
Thomas Ott: tott@plaind.com

Property-Rights Dispute Gets U.S. High Court ReviewBloomberg LP, 9/28/04

By Greg Stohr
The U.S. Supreme Court will use a case connected to a Pfizer Inc. research plant in Connecticut to decide when local governments can take over private property in the name of economic development.

The justices agreed to hear an appeal by a group of homeowners who say the city of New London illegally tried to raze a residential neighborhood to make room for a five-star hotel, luxury condominiums and office buildings near the Pfizer facility. The city says it is trying to reverse decades of economic decline.

The case will address what property-rights advocates say is an increasingly common practice: the use of government "condemnation" power to make room for "big box" retail stores, shopping malls and office buildings.

"It is a growing trend among local governments to condemn property for the purpose of raising tax revenue," said Dana Berliner, an attorney at the Washington-based Institute for Justice, which represents the New London homeowners.

The Supreme Court ruled in 1954 that government agencies can condemn blighted property as long as they compensate the owners. Thirty years later, the court said governments could take over property to break up an oligopoly on land ownership.

The latest question is whether – and under what conditions – officials can take over property that isn't blighted and doesn't involve an oligopoly.

Public Use

"If you read the language in those opinions, it was not limited to the specific facts of those cases," said Wesley Horton, New London's lead attorney in the Supreme Court case. "It was a general opinion about the police power of the state.'"

The appeal centers on the U.S. Constitution's takings clause, which requires government agencies to pay just compensation when they take over private property. The 15 homeowners argue in their appeal that the takings clause also requires a public use and that the government must do more than simply point to the possibility of economic revitalization.

The decision by the Connecticut Supreme Court, which upheld the takeover, "drains the public use requirement of the U.S. Constitution of any meaning or substance," the appeal said.

The city's development plan, enacted in 2000, calls for the takeover of 115 homes and small businesses in the 90-acre Fort Trumbull neighborhood adjacent to the Pfizer facility. The city also set up a private entity, the New London Development Corporation, to manage the project.

The plan coincided with the decision by Pfizer, the world's largest drugmaker, to open a new research headquarters in New London.

15 Homeowners

Pfizer isn't directly involved in the litigation, and its property isn't at issue in the high court case.

The company at one point committed to providing support for the hotel development project and guaranteeing a line of credit for the development corporation, according to Pfizer spokeswoman Kate Robins. Those commitments have expired, and the company has no financial interest in the project, Robins said.

The Institute for Justice represents the homeowners who have refused to sell their land. The group includes Wilhelmina Dery, who was born in her Fort Trumbull house in 1918.

The homeowners sued after the New London Development Corp. sought to acquire their property through a tool known as eminent domain. The Connecticut Supreme Court, in a divided opinion, said the city and development corporation were acting legally.

The justices will hear arguments and rule by July. The case is Kelo v. City of New London, 04-108.

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Bloomberg LP: www.bloomberg.com
Greg Stohr: gstohr@bloomberg.net

Abusing eminent domainThe Boston Globe, 9/30/04

By Jeff Jacoby, Globe Columnist
THE FINAL passage in the Fifth Amendment is short and to the point: "Nor shall private property be taken for public use without just compensation." Like the rest of the Bill of Rights, that provision was intended by its authors to keep Americans free by shielding them from unbridled government force.

The power of eminent domain is an ancient attribute of sovereignty, but the Constitution restricts it in two crucial ways: (1) The government can take private property only when it is necessary for a "public use," and (2) the owner must be paid "just compensation."

Governments and property owners wrangle all the time over how much compensation is "just." But the meaning of "public use" is clear, isn't it? The state can take private property to make way for roads, post offices, prisons -- assets that will be owned and used by the public. That is what the Constitution's framers meant by "public use," and it is doubtless what most Americans think it should mean. Anything more, the Supreme Court warned more than 200 years ago, would be tyrannical.

"The despotic power . . . of taking private property when state necessity requires, exists in every government," the court acknowledged in the 1795 case of Vanhorn's Lessee v. Dorrance. But the state must not exercise that power "except in urgent cases." The justices could not imagine a situation "in which the necessity of a state can be of such a nature as to authorize or excuse the seizing of landed property belonging to one citizen, and giving it to another citizen."

Alas, what the Supreme Court in the 18th century found unthinkable, the Supreme Court of the 20th century made lawful.

In Berman v. Parker, a 1954 case, the court permitted eminent domain to be deployed for purposes of what was then called "urban renewal." It allowed property to be seized from private owners in an inner-city slum and sold to new owners for redevelopment. "Public use," it held, encompassed "public purpose" -- and when the government's purpose was to revive a poverty-stricken, rat-infested neighborhood, property owners could be forced to yield.

But Berman's narrow exception soon became an open floodgate of eminent-domain abuse. Cities and states, eager for new development, began pronouncing neighborhoods blighted when they were simply working-class. Some went further, stretching the meaning of "public use" beyond "public purpose" into mere "public benefit." They condemned and seized private property on the grounds that another owner could use it to make more money, create more jobs, or generate more business -- all leading to more taxes, the supposed public benefit.

In case after case, owners have lost their homes or businesses to politically wired companies that convinced local officials to take it for them through eminent domain. In Topeka, Kansas, owners were forced off their property so that Target could build a huge distribution center. In Nevada, the Las Vegas Redevelopment Authority condemned Carol Pappas's commercial building so that a group of casinos could put up a parking garage. In Norwood, Ohio, five owners are being stripped of their property so a real-estate mogul can develop a $125 million office-retail complex.

These examples are drawn from scores compiled by the Institute for Justice, the public interest law firm that has become a leading champion of property owners threatened by abusive eminent domain.

Three years ago I wrote about the institute's efforts in New London, Conn., where city officials, in concert with the pharmaceutical giant Pfizer, were aggressively using eminent domain to clear a vast swath of land along the Thames River. Their goal was to replace the homes and shops in the Fort Trumbull neighborhood with more profitable development: a hotel, a conference center, a marina. The Institute for Justice got involved on behalf of Susette Kelo, Matt Dery, and a handful of other residents who didn't think they should have to give up their homes just so Pfizer could enjoy a new hotel and New London could collect more taxes.

In 2001 the case was just going to trial; last March the Connecticut Supreme Court ruled in favor of New London's right to turn residents out of their homes for the sake of economic development. But Kelo, Dery, and the other Fort Trumbull homeowners aren't giving up, and neither is the Institute for Justice. This week the US Supreme Court agreed to take the case -- the first of its kind since Berman was decided 50 years ago.

That 1954 ruling weakened the very foundation of our liberty: the right to own and lawfully enjoy property. The reckless deployment of eminent domain -- the use of force to dispossess property owners -- is nothing less than an assault on the American Dream. The Supreme Court can end that assault by restoring to the Fifth Amendment's words -- "public use" -- the straightforward meaning they were always meant to have.

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The Boston Globe: www.globe.com

Jeff Jacoby: jacoby@globe.com

High court weighs eminent domainAssociated Press, 9/29/04

Conn. residents sue, questioning "public purpose"

By Hope Yen
The Supreme Court agreed yesterday to decide when governments may seize people's homes and businesses for economic development projects, a key question as cash-strapped cities seek ways to generate tax revenue.

At issue is the scope of the Fifth Amendment, which allows governments to take private property through eminent domain, provided the owner is given "just compensation" and the land is for "public use."

Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed a lawsuit after city officials announced plans to raze their homes to clear the way for a riverfront hotel, health club, and offices. The residents refused to budge, arguing it was an unjustified taking of their property.

They argued the taking would be proper only if it served to revitalize slums or blighted areas dangerous to the public.

New London contends the condemnations are proper because the development plans serve a "public purpose" -- such as boosting economic growth. It said these are valid ''public use" projects that outweigh the homeowner's property rights.

The Connecticut Supreme Court agreed with New London, ruling 4 to 3 in March that the mere promise of additional tax revenue justified the condemnation.

Nationwide, more than 10,000 properties were threatened or condemned between 1998 and 2002, according to the Institute for Justice, a Washington public interest law firm representing the New London homeowners.

In many cases, according to the group, cities are pushing the limits of their power to accommodate wealthy developers. Courts, meanwhile, are divided over the extent of city power, with seven states saying economic development can justify a taking and eight states allowing a taking only if it eliminates blight.

In New London, city officials envision replacing a stagnant enclave with commercial development that would attract tourists to the Thames riverfront, complementing an adjoining Pfizer Corp. research center and a proposed Coast Guard museum.

According to the residents' filing, seven states allow condemnations for private business development: Connecticut, Kansas, Maryland, Michigan, Minnesota, New York, and North Dakota.

Eight states forbid the use of eminent domain when the economic purpose is not to eliminate blight: Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina, and Washington. Another three -- Delaware, New Hampshire, and Massachusetts -- have indicated they probably will find land takings solely for economic development unconstitutional, while the remaining states have not addressed or spoken clearly to the question.

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The Associated Press: www.ap.org

Marysville land-seize renewals draw fire(Marysville-Yuba City CA) Appeal-Democrat, 9/28/04

By Scott Bransford
Leonard Jones isn't the only Mid-Valley property owner who cringes when he hears the words eminent domain.

Jones, an owner of Speedometer Electric in East Marysville, is one of several residents opposed to Marysville's plan to renew its eminent domain powers, which expired in November 2003 and allow the city to seize blighted properties for redevelopment efforts.

At a public hearing held last week, Jones joined a group of about 25 people who protested the city's plans, voicing suspicions that officials might abuse the powers in their quest to make Marysville thrive.

"All these grandiose plans they have for downtown, they're going to run into old-time property owners that don't want to sell," Jones said Monday. "This is a big boondoggle and all it does is affect good citizens."

City Administrator Steve Casey and other officials countered that the city is just following state and federal laws which require municipalities to renew eminent domain powers every 12 years through a process of public hearings.

"I think most people don't understand it," Casey said. "Eminent domain scares a lot of people, and I think most people are afraid of the issue."

Marysville wants to have the power to exercise eminent domain within its redevelopment area, which includes Marysville's southern end, plus another patch of West Marysville. The city designated the area in the 1970s, as it pursued several renewal projects such as the construction of the Mervyn's department store at Second and D Street.

Building Mervyn's required the demolition of several historic properties, and some still consider the project a mistake that robbed downtown Marysville of its historic character. Some residents fear the city will pursue a similar campaign in its effort to eliminate blight, Casey said.

At present, Marysville is pursuing redevelopment projects that could require demolition, such as a theater development at First and D streets and a Chinese-themed retail and entertainment district proposed for downtown Marysville.

However, city officials said Monday they simply want to keep eminent domain as a tool of last resort. The city has no plans on the horizon that would involve eminent domain, Casey said Tuesday.

"We certainly understand peoples' fears, but from the staff's perspective, it's a valuable tool in the redevelopment process," Casey said. "We don't expect to use it, we don't want to use it, but that doesn't mean we shouldn't have it."

Some opponents of eminent domain also claim that eminent domain powers are an infringement on property rights.

At last Tuesday's public hearing, Loma Rica resident James White called the city's attempts to renew eminent domain "one of the most unAmerican prospects that we've had."

James White Jr., his son, said:

"We certainly don't cherish the idea of someone coming in and telling (us) what we can and cannot do with a property."

City Councilman Paul McNamara said concerned residents need to trust that city officials will use eminent powers wisely.

"I can understand their concern, but I just wish they would listen to the explanations that have been given to them," McNamara said. "(Taking a property) is a last resort and something the city would not decide to do overnight."

Casey said city attorneys are currently looking at residents' objections to eminent domain powers. The item is likely to come before the City Council for a vote at a meeting scheduled for next Tuesday, he said.

City Councilman Bill Harris doesn't want residents to have the impression that a "government land grab" is underway.

"(Eminent domain) is basically something we have to renew every 12 years," Harris said. "It's unfortunate that some of the people probably were misinformed."

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Appeal-Democrat: www.appeal-democrat.com

Masters of their Domain: West Harlem Takes on ColumbiaCity Limits Weekly, 9/28/04

Backed by Norman Siegel, local business owners fight to protect their property from eminent domain

By Bob Roberts
Standing in the parking lot of the Pearlgreen Corporation, a thriving industrial supply company located in the Manhattanville section of West Harlem, Norman Siegel declared last Wednesday, “We’re not against change — we’re against stealing as a public good!”

The September 15 press conference marked the addition of the newly created West Harlem Business Group to a broad coalition of business owners, tenants rights organizations and community activists who have vowed to challenge any attempt by Columbia University to utilize New York State’s eminent domain law to condemn and acquire properties within a 17 acre area running from 125th to 135th Streets, from Broadway to the Hudson River—the site of its proposed new campus.

Pearlgreen is one of the six holdouts represented by Siegel who have refused Columbia’s offers for their properties. Pearlgreen President Lawrence Greenberg said his company invested hundreds of thousands of dollars to expand its site and has no plans to move. “We were here when there was nothing,” he said. “Now, when things are finally getting better, we want to stay and be a part of it.”

What Siegel and WHBG fear is that Columbia will turn to the Empire State Development Corporation to side-step New York City’s Uniform Land Use Review Procedure. Whereas the city’s zoning rules require input from Community Board 9 and the ultimate approval of the City Council before any changes are approved, the condemnation of private property by ESDC through eminent domain requires far less public scrutiny.

In New York City, talk of eminent domain conjures memories of Robert Moses, the public works czar who dislocated hundreds of thousands in order to construct massive projects like the Bronx Queens Expressway, Lincoln Center, and Shea Stadium.

More recently, New York and cities around the country have drawn on a 1954 Supreme Court Decision that broadened the idea of “public good” to include the expansion of privately owned businesses at the expense of others, even if the only demonstrated public benefit was an increase in tax revenues. The expansion of the New York City Stock Exchange, the construction of the new offices of the New York Times, the proposed stadiums in Brooklyn and Manhattan’s West Side all have, or will, involve eminent domain.

As Siegel explained, “The use of eminent domain has run amok. The time has come to limit the application of the eminent domain to public use.” Across the country, property rights groups and the courts are beginning to challenge the way in which public power is used to further private interests. On July 30, the Michigan Supreme Court overturned a 1981 decision that had allowed the destruction of a residential neighborhood in order to facilitate the expansion of a General Motors plant.

The extent to which the threat of eminent domain has galvanized West Harlem was made clear at the September 23 general meeting of Community Board 9. The board voted unanimously to demand that Columbia abandon any plans to request state-authorized condemnation. Columbia did not return calls by press time.

CB 9 chair Jordi Reyes-Montblanc, who works with low-income tenants within Columbia’s expansion zone, rose to address the room. “I cannot abide this,” he said. “It will not happen. They’ll have to drag my dead body out of here first!”

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City Limits Weekly: www.citylimits.org

Skyland defenders oppose redevelopmentThe Washington Times 9/26/04

By Guy Taylor
Residents and business owners rallied Friday in Southeast against a District-backed plan to replace a decades-old shopping center with new and more high-quality stores and restaurants.

Though many residents in the community support the revitalization, opponents of the plan, including those who attended the rally at the Skyland Shopping Center, said they fear being left with nothing if the city's plan languishes or fails.

"The government should not be allowed to take our property," said Rose Rumburg, owner of Skyland Liquors and a lifelong Southeast resident "They're saying [the plaza] is a slum and blighted. It's definitely not that."

District leaders, she said, have been unclear about what will happen to the conglomeration of existing stores in the center, in the 2600 block of Naylor Road, which includes sub and pizza shops, a small grocery store, a hair salon and an auto-parts store.

What's worse, Miss Rumburg said, is that the D.C. Council has authorized the publicly chartered National Capital Revitalization Corporation to exercise eminent domain over the shops to bring about the redevelopment.

Information posted on the District's Web site says the corporation will "relocate current tenants," and the Skyland redevelopment will be "a 240,000 square foot, high-quality retail center ... co-anchored by a discount department store like a Target and a supermarket."

However, some residents say there's no evidence Target or any major store is seriously interested.

"They've got no commitments from any business to come in," said Helen Higginbotham, who lives on Naylor Road and yesterday circulated a pamphlet she had written: "Eminent Domain, An Abuse of Government in Hillside."

Some Skyland business owners said they have retained legal representation, and lawyer Elaine Mittleman said she filed a lawsuit in July claiming the manner in which the District is trying to use eminent domain is unconstitutional.

Opponents of the plan also said existing owners and tenants likely could not afford to have storefronts in a new center and that the ripple effect would be the entire neighborhood, east of the Anacostia River, would become too expensive for residents.

"They want to take it from the black people," said Joeann Thompson, 48, a resident of the 2500 block of Naylor Road who said she learned of the plan yesterday. "They should leave it just the way it is."

Among the supporters of the plan are community leaders who say the eminent domain legislation is a justified way to bring about revitalization.

Kathy Chamberlain, chairwoman of the area's Advisory Neighborhood Commission and vice president of the nearby Hillcrest Community Civic Association, said the community "pressured the City Council to pass the legislation because there is no other way to accomplish this redevelopment."

"We've been trying to work with the business owners [at Skyland] for years," she said. Mrs. Chamberlain also said some Skyland merchants will be invited back to the new shopping center.

"They're not all banished," she said. "It will depend on what types of retail will work. Perhaps one of the hair salons would be invited to come back, for example."

Mrs. Chamberlain said one of the problems with the shopping center is that it has many different owners and no central management. "And we've had a lot of complaints from members of the community ... about loitering, public drinking and public urination," she said.

Mrs. Chamberlain also said residents have complained about a club in the shopping center that attracts an "unwanted element" to the neighborhood.

"We deserve retail opportunities that are of a better quality than what's up there now," she said.

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The Washington Times: www.washingtontimes.com

Justices will pick up with 'mess' from last termSeattle Post-Intelligencer, 9/25/04

Potomac Watch

by Mark Helm
The Supreme Court returns to work next week to weigh whether to hear several key cases that could be the hallmarks of its new term, including whether a Connecticut city can take away a person's home to clear the way for upscale development.

The court also will consider whether to hear appeals in four cases involving displays of the Ten Commandments on public property.

The court will officially start the term on Oct. 4 by hearing oral arguments in some of the 40 cases it has already accepted.

The Connecticut case involves Susette Kelo's pink house on the Thames River in New London and whether the city of New London can take her land away and sell it to real estate developers because they promise to pay more taxes and create jobs by converting the neighborhood into trendy condominiums.

"This case hits at the heart of the American dream ... a person's home," says Gregory Garre, a former law clerk to Chief Justice William Rehnquist and a former assistant to the solicitor general. "The idea that the government can kick you out of your home because they want expensive condos in your neighborhood really scares people."

But the issue is much bigger than the fate of one house on the Thames -- businesses, developers and homeowners throughout the United States have a stake in its outcome, says Garre, who doesn't represent any party in the case.

The Constitution allows governments to take private land for "public use," also known as the eminent domain authority.

Garre says many constitutional scholars consider the phrase "public use" to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

But the Connecticut Supreme Court said the term "public use" means that a taking need only have some anticipated public benefit, such as increased tax revenues and improving the area's economy. Kelo lost in the state courts and is asking the U.S. Supreme Court to hear her case.

"If the court agrees with the Connecticut Supreme Court on the definition of 'public use,' cities would have a much easier time justifying the taking of any property," Garre says.

In one of the Ten Commandments cases, Thomas Van Orden challenged a Ten Commandments monument that has stood on the grounds of the Texas state Capitol in Austin since 1961. The 6-foot-high granite monument includes several religious and patriotic symbols, including the Star of David.

Three other cases involve displays in courthouses in McCreary County, Ky., and in schools in Adams County, Ohio, and Harlan County, Ky.

The justices already have accepted 40 cases for the term, about half the number expected to be heard for the entire session.

The court's first order of business when it returns will be to "clean up a mess left over from last term," says Donald Verrilli Jr., a Washington lawyer, referring to federal sentencing guidelines.

Federal judges throughout the country have been grappling with the legality of federal sentencing guidelines since the high court ruled on June 24 that a similar sentencing system used by the state of Washington was unconstitutional.

In that case, Blakely v. Washington, the high court ruled 5-4 that Washington state's sentencing system violated a person's right to a trial by jury because it allowed judges to make findings on factors that were never presented to jurors. Such a system lets judges increase a sentence dramatically.

The Justice Department later complained that the Blakely ruling has created chaos in the courts and confusion over "tens of thousands" of pending sentencings nationwide. In an effort to clear up pending questions, the Supreme Court agreed to hear two cases involving federal sentencing rules.

The court also will attempt to end confusion on the issue of medical marijuana. In a case involving Angel Raich of Oakland, Calif., and Diane Monson of Oroville, Calif., the court will decide whether Congress has the authority to prohibit the medical use of marijuana in states where the voters or the Legislature have approved the drug's use under a doctor's care.

The Justice Department argues that state laws making exceptions for medical marijuana are trumped by the federal law banning the use of marijuana.

But last year, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that prosecuting medical-marijuana users is unconstitutional under federal law if the pot isn't sold, transported across state lines or used for non-medicinal purposes. In another case out of Lancaster, Calif., the court will consider whether that state can segregate inmates by race during their first 60 days of incarceration. The state has defended the policy, and the 9th U.S. Circuit Court of Appeal in San Francisco has upheld it, as a sensible way to minimize interracial violence at the reception centers where inmates are housed while being screened for long-term placement.

But civil rights groups argue the policy violates the 14th Amendment's protection against racial discrimination.

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Seattle Post-Intelligencer: www.seattlepi.com

Experts' panel rejects Ardmore renewal planThe Philadelphia Inquirer, 9/24/04

The thumbs-down could doom a proposal to demolish buildings. The experts urged a more preservationist approach.

By Matthew P. Blanchard

The plan to demolish 11 buildings in downtown Ardmore suffered a likely death blow yesterday when a panel of national architecture and planning experts issued a public rejection of the idea.

The team of nine experts from the Urban Land Institute in Washington had been called in to referee a nasty dispute over the Ardmore Transit Center Plan, a $140 million proposal to remake 10 blocks of Ardmore into a vibrant urban shopping village.

The plan called for demolishing shops on the north side of the first block of East Lancaster Avenue. That provoked 200 merchants and their supporters to march in protest twice this summer. Accusations and conspiracy theories were commonplace, and public meetings often filled with rage.

After a weeklong study, the experts pronounced the proposed demolitions a mistake and urged a gradual, preservationist approach to fixing Ardmore's vacancy-plagued shopping district.

"Cities need old buildings so badly it is probably impossible for vigorous streets and districts to grow without them," panel chairman Charles R. Kendrick said, quoting a prominent urban-design guru. "This panel agrees with Jane Jacobs, which is why we think there should be no demolition."

"Sometimes," Kendrick wrote in the final report, "it's what you don't do that makes all the difference."

The report carries no legal weight but wields considerable influence by virtue of brain power. The nine experts are prominent architects, traffic planners, real estate developers, and consultants from cities including Boston; Fort Worth, Texas; Cincinnati; and Baltimore. They were invited by township government to provide a fresh look at the project.

The decision rests with the 14 Lower Merion commissioners. The commissioners' president, Joseph Manko, called the findings in the report "excellent." He said he favored abandoning demolition and predicted that many of his fellow commissioners would agree.

Begun in public "visioning" sessions last year, the transit center plan has more recently been championed by township planning staff as local resistance grew intense. Yesterday's report opens a window for all sides to reject parts of the plan that involve eminent domain or demolition.

Merchants celebrated, some after months of fretting about where they would go if forced to sell their properties. Betty Foo has owned and run Hu-Nan Restaurant at 47 E. Lancaster Ave. for 30 years, working 362 days a year.

"This is incredible. We have been under such stress for such a long time," she said. "Now, we will definitely do whatever we can to work with the township."

There is much to do. Of the original six proposals in the plan, the team urged immediate work on three:

Build a parking structure on the lot occupied by Main Line Honda, east of the Township Building.

Replace Ardmore's low, bunkerlike train station with a grander structure and fashion a narrow "town square" on Station Avenue.

Restore building facades on Lancaster Avenue, many of which are scarred by neglect or ham-handed renovations.

The remaining proposals can wait, the panel said.

Quoting author Malcolm Gladwell, panelists stressed that instead of dramatic demolitions, Ardmore should gently push itself toward the "tipping point," at which the accumulation of small improvements will precipitate a turnaround for businesses.

"Other communities would give their eyeteeth to have what Ardmore has: a train station, a historic downtown, Suburban Square," said panelist Christopher Kurz, a real estate financier from Baltimore.

"It's a great town," added panelist Sandra Kulli, a real estate marketing consultant from Malibu, Calif. "We think the tipping point is very close."

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The Philadelphia Inquirer: www.philly.com

Jury judges price of Norwood homeThe Cincinnati Enquirer, 9/25/04

First of five in eminent-domain battle

By Sharon Coolidge
A Hamilton County jury Friday put a price tag on the first of five properties at the heart of a two-year eminent domain battle in Norwood being watched nationally.

Jurors said Joe Horney's rental home on Atlantic Avenue is worth $233,000, which is $125,000 less than the $358,000 he argued that his property is worth. But the jury's value is $43,000 more than the $190,000 the city offered to pay for it so it could be torn down to make way for a high-end development.

The triangular-shaped neighborhood where Horney's home is located is at the center of a legal tug of war pitting the city of Norwood, 66 property owners and the developers of the proposed Rookwood Exchange against Horney and four other property owners and the Institute for Justice, a civil-liberties law firm in Washington, D.C.

Horney and the four other owners, including three businesses and another homeowner, challenged Norwood's use of a state law used to seize their properties in order to turn them over to Jeffrey R. Anderson Real Estate and the Miller-Valentine Group.

The developers want to build the Rookwood Exchange, a $125 million complex of offices, shops, housing and restaurants. The homes and the businesses on all 71 properties in the neighborhood would have to be demolished for the project, between Edwards Road and Interstate 71.

In June, a Hamilton County judge upheld Norwood's right to seize the property.

The jury's verdict Friday means he is the first of the five who can appeal that judge's decision to another court, which will continue the legal battle and delay the development.

Horney will appeal the eminent-domain action in 30 days, but the appeals court might wait to hear all five cases at once, his lawyer in the eminent-domain action, Scott Bullock, said.

"I didn't lose my house today," Horney said. "This issue goes on.

"You can't place a value on something you don't want to sell. Now I can focus on the city's right to take my property."

The other property-value hearings, which happen one at a time, are expected to be completed by mid-November.

Lawyer Tim Burke, who represents Norwood in the case, said the city won't challenge the jury's verdict.

"It's close enough to what was offered that it wouldn't be economical to appeal," Burke said.

The Institute for Justice, which is representing the property owners for free, wants to appeal, which lets them again challenge a city's use of using eminent domain to take properties from their owners.

But first, according to Ohio law, juries must determine the price Norwood must pay for the properties.

Jurors are asked to determine the property's "best market value."

Horney and his wife, Carol Gooch, bought the property in 1986 for $63,000, always intending it to be a rental property. Since then, it has increased in value, he said. The real-estate developer earlier offered the couple $200,000, which they rejected.

The eight-person jury deliberated a little more than five hours before arriving on a value.

The sticking point came when jurors looked at how much income the property could generate in the coming years, said one of the jurors, Pam Brown, a 47-year-old Forest Park woman.

Two female jurors, both of whom wanted Norwood to pay Horney $300,000, abstained from voting. In the hearing, Ohio law requires only six members to come to an agreement.

One juror suggested Norwood pay $180,000, the amount the house was refinanced for last year, Brown said.

Others, she said, wanted the city to pay $260,000, and one juror refused to go lower than $240,000.

In the end, the jurors took the dollar amount each believed Norwood should pay Horney and averaged them together.

"That's how we came up with $233,000," Brown said.

After juries determine the selling price of each of the five properties, the Institute of Justice will file its appeal.

Horney and the other holdouts say they will continue to appeal and are prepared to take their case to the U.S. Supreme Court if necessary.

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The Cincinnati Enquirer: www.enquirer.com

Many upset in SoutheastThe Washington Times, 9/24/04

By Jon Siegel
It came like a blizzard on a hot summer's day. And was about as welcome.

Merchants and residents in the Southeast neighborhood were stunned to learn that their community on the Anacostia River was chosen as the preferred site for a Major League Baseball ballpark by District officials earlier this week.

People in the largely industrial community, which also has a small number of row houses, were shocked and saddened by the news. They now face the prospect of losing their businesses and homes should the city exercise eminent domain to take over the 20 acres to build a stadium, which is expected to cost more than $400 million.

"This is really upsetting," said Bob Siegel, a resident who owns 11 properties in the targeted area. "I might fight it. The city is going to have to contend with the best eminent domain lawyers. I don't want to move. It's happening too fast."

The ballpark site near South Capitol and M streets was thought to be the third choice behind a New York Avenue NE site and the RFK Stadium property. The Southeast location is now expected to be the new home of the Montreal Expos if Major League Baseball decides to move the club to Washington.

Eung Joon Chung was forced to move his auto transmission repair franchise to South Capitol Street south of N Street less than three years ago after eminent domain took his previous location to put up a big building. Now he wonders if he can keep his small business since AAMCO assigns him a specific district and he is unsure if there is another suitable location where he won't infringe on another franchiser's territory.

"I spent $150,000 here," Chung said of the current site. "Now I might have to move to another place."

The refrain was similar in the small but tightly knit community, which includes some 25 businesses and 11 townhouses. Calvin Reid, whose company does commercial building, fears businesses like Atlas Manufacturing will be chased out of the city.

"Industrial commercial space is already limited," said Reid, 44, while surveying his business at Half and O streets. "To displace blue-collar businesses is a mistake. ... Mayor [Anthony Williams] doesn't have a clue about the local business community. He is only interested in big business."

Rose Butler is concerned about losing her row house on N Street where she has raised seven children since 1957. Butler, 64, is in favor of baseball coming to Washington but not if it destroys her community.

"I guess I can't stop it," Butler said while watching one of her 17 grandchildren in the two-story house yesterday. "I love it here. I have been here all my life. I can't imagine living anywhere else."

Butler is one of many who question the city's decision to choose her community over the previously front-running site at RFK.

"Why spend a lot of money for something that is already here?" she said. "It seems ridiculous to me."

Siegel also is distressed about the possibility of losing his home of nearly 30 years. The civic leader owns a shop called Glorious Health and Amusements that sells pornographic magazines and videos catering to gays.

"The businesses I am the landlord of cannot be moved anywhere else," he said. "This strip for 30 years has been a strong segment of gay life. I am proud of that. My hands are tied as to what to do right now."

The frustration was perhaps best summed up by Michael Parker, who took a break from his job as facilities manager at the Washington Sculpture Center to walk a dog along Half Street. His nonprofit business recently has spent about $200,000 in upgrades.

"We go to every community meeting, but we heard about [the site choice] in the newspapers," Parker said. "They didn't want to give us time to get armed and fight back. It was out of the blue to target this area."

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The Washington Times: www.washingtontimes.com

United Front Opposes Use of Eminent Domain at Community Board 9 MeetingColumbia (University) Daily Spectator, 9/24/04

In a rare 29-0 vote, Community Board 9 opposed Columbia's use of eminent domain on neighborhood buildings

By Z.L.R. Stavis
The voices of Harlem business owners and residents reverberated in unison last night, as members of Community Board 9 unanimously voted to oppose the potential use of eminent domain in Columbia's expansion into Manhattanville.

"I don't think I've ever seen such unanimity," said Secretary Theodore Kovaleff.

The resolution passed with all 29 members voting for it. "29 to 0; I've never seen better," said Norman Siegel, an attorney for the West Harlem Business Coalition and a prominent civil liberties lawyer.

"I've never seen that in New York. That's the writing on the wall. This will send a strong message to Columbia that we're fighting back."

The board passed a resolution to recommend to the city not to use eminent domain, a legal path by which the city can forcibly purchase properties to be cleared for public use. Columbia is allegedly urging the city to use eminent domain to make way for its Manhattanville expansion plan, which includes the area between 125th and 133rd Streets between Broadway and 12th Avenue.

"Eminent domain has been abused for over 25 years," Siegel said. "It is for public use, not private gain. Public use is a library, a public school, not a private school and not for private use."

Twenty community members also expressed their support for the resolution at the meeting. LaVerne Williams works for an organization that houses Harlem artists; the non-profit recently renovated a building in Columbia's expansion area. "Hopefully Columbia will not usurp the land and will consider that Harlem needs to be Harlem and not Downtown Uptown," Williams said.

"It will not happen, only over my dead body," said Jordi Reyes-Montblanc, Chairman of Community Board 9. For what he said was the second time in 10 years, Reyes-Montblanc stepped up to the podium to speak personally on an issue. "They will have to drag my dead body to pass it. Other than that, Columbia is a nice organization," he joked.

Tom Kappner of the Coalition to Preserve Community proposed an alternative to eminent domain. "197-A Plan provides for a measured and balanced development, not a plan to bulldoze the area," Kappner said, stressing the importance of unity.

Tom Demott, also of the CPC, said, "The fact of the matter is, Columbia's trying to Godfather the community. The fact of the matter is, they're making us an offer we can refuse."

Seigel said, "This is a David and Goliath issue. I hope Community Board 9 winds up on the side of David. And for cynics who say that you can't win, I remind you, historically and biblically, David did win and so will we," a line that was greeted by loud applause.

Other issues raised at the meeting included installing a disability ramp at St. Luke's Hospital, renaming 141st to 145th Streets after Harlem performing artist Dorothy Maynar, as well as promoting a scholarship for computer technician training, an independent job development company, and the Harlem School of the Arts.

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Columbia Daily Spectator: www.columbiaspectator.com

Eminent domain not imminentThe Bridgeton (NJ) News, 9/22/04

By Jaime Marine
City commissioners approved an ordinance on first reading Tuesday night authorizing the condemnation of eight parcels along Route 47 should business owners and the developer of a proposed mall not come to a settlement agreement.

While this ordinance still has to go through various steps before receiving final approval, Mayor Jim Quinn said city officials are hoping settlements will be reached by all the parties involved.

"We hope and pray we don't have to use this," he said. "Goodman Properties (the developer) has been great and we hope that negotiations will continue."

On Monday, Dr. Harold Blumenthal of the Animal Hospital of Millville accepted an offer from the developer to build the animal hospital a brand new facility in exchange for his parcel of land.

Quinn said this is the way the city would like to see the other parcels — which include a Goodwill Store and Pizza Hut — handled.

"This (the Blumenthal settlement) is a good thing," he said. "No one is going to lose. They will all be compensated. We would never, ever want to do eminent domain and, hopefully, they will come to a meeting of the minds."

Steve Durst, a representative from Goodman Properties, addressed the commission and said they are working hard to come to an agreement with all involved.

"We are not looking to come into the arena and strong arm anyone," he said. "When we develop, we stay. We move in as a neighbor."

Durst said his company has no involvement with the eminent domain issue and that they are not looking for the city to do their negotiations.

Goodman properties is looking to construct a $40 million shopping center near the Millville Town Center on Route 47.

The group -- which said they have received interest from stores such as Target, ShopRite, Kohl's, Pet Smart, Office Max, Office Depot and other smaller units -- is expecting to submit a preliminary site plan within the next 30 to 60 days.

The facility could bring approximately 1,000 jobs to the area and ratables, which the city needs.

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The Bridgeton News: www.nj.com/news/bridgeton

City loses minority on council - Longtime councilman has plan for futureShelby County (AL) Reporter, 9/22/04

By Fred Guarino
When the new Alabaster [AL] City Council takes office this October, for the first time in 28 years, the city will be without minority representation.

Bobby Lee Harris, the only black member of the current council, recently discussed the reasons behind his failed re-election bid and said he sees the day coming when the impact of no minority representation will be felt.

Harris said he blamed his defeat on a redistricting plan approved by both the City Council and the U.S. Justice Department as well as retaliation for his support of the city's recent eminent domain efforts. [emphasis added]

During this administration, the city of Alabaster approved a re-development plan for the Interstate-65, Exit 238 area where Colonial Trust Properties is developing what is being touted as the largest shopping center in Shelby County.

During the effort to obtain the land for the re-development area, the council initiated eminent domain proceedings against minority residents in the area to gain property for public use.

But Harris said he doesn't regret his support for eminent domain.

He said he believes there is a way to bring minority representation back with future elections through a system he calls "cumulative voting."

Incumbent Harris, of 102 4th Place N.E, was defeated for the Ward 1 council seat by Jerry Workman, 104 Selwyn Abbey, in the Weatherly community.

Ward 1 was redistricted by the City Council in September of 2003 to include 35 percent black, 63.56 percent white and 1.44 percent '"other" voting age persons.

Previously, in accordance with what was then federal law, the ward included a much closer ratio of blacks to whites with a 40.39 percent black voting age population, a 58.35 percent white voting age population and a 1.25 percent other voting age population.

At the time the re-districting plan was approved, Council President Rick Walters said consideration was given to use of natural boundaries, keeping neighborhoods intact and wards intact as much as possible as well as reducing the number of legal challenges.

He also said a proposal that would have included a 66.72 percent black voting age population majority in Ward 1 would have violated the "one man, one vote rule," which is current federal law.

Harris said the U.S. Justice Department approved the re-districting plan because of the contiguousness (actual contact of the land involved) in the district. And, he said, with that consideration, white residents outnumber black residents in the ward.

Harris said that with previous lawsuits and supreme court tests upholding contiguousness, the Justice Department had to approve the plan where the numbers fell.

But Harris has a solution for the future.

"I think there needs to be minority participation. I believe if we're going to teach our children in school how to live with one another and be inclusive, we need to fix the system where there can be minority participation on all local boards and in all municipalities," Harris said.

"I think one way you can do that is come up with a system known as cumulative voting.

"Under this system, everyone will have an opportunity to vote for one person or seven persons."

He explained that citizens could vote for seven different individuals, all running at large, or cast all seven votes for one individual.

He indicated that if minorities cast all seven of their votes for one man or one woman, there could be minority representation on the council.

"The top seven vote-getters, running at large, will make up the city council," he said.

Harris said one town in Alabama, Centre, already uses this system and received Justice Department approval.

According to the Center for Voting & Democracy in Takoma, Md., towns in Alabama with cumulative voting include Centre, Guin, Heath and Myrtlewood.

As to the second reason for his defeat, Harris said, "I do not regret my support for eminent domain.

"My reasoning is more people are going to be helped in Alabaster with the new development than would have been helped without the developments ... all people," he said.

"Jobs are going to available for the citizens of Alabaster. Conveniences will be available we did not have before. All city service will be improved from my support of eminent domain, and I can't wait to see that day happen."

Harris said no other blacks sought to run against him because the word had gotten out in the community that a candidate was going to run from Weatherly. And, he said, it was concluded that person would win.

"I think the greatest effect (of his council seat loss) is going to be felt when there is an outcry for minority representation," Harris said.

"When there is a killing or suspected brutality in a minority community, there is always an outcry. And there is an outcry for someone to represent us. That's when I see minority representation is going to be needed the most."

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The Shelby County Reporter: www.shelbycountyreporter.com

District's diplomacy eases plans to expandThe (Cleveland OH) Plain Dealer, 9/22/04

Lakewood schools, landowners strike deals

by Patrick O'Donnell
Asking has worked better than seizing when it comes to acquiring land for public projects in Lakewood [OH].

By avoiding the use of eminent domain, the tactic that derailed a $151 million proposal to redevelop the city's West End, the school district has managed to quietly acquire more than 20 homes to expand schools.

"We're not doing eminent domain, on the heels of what happened in the West End," said Treasurer Richard Berdine.

The district needs the land to convert Harrison and Garfield Elementary schools into middle schools and to improve parking and playgrounds.

The two projects are part of its $170 million plan to replace aging buildings and cut the number of schools from 14 to 10.

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The Plain Dealer: www.cleveland.com

St. Charles touts First Street plan(Chicago) Daily Herald, 9/20/04

By Lisa Smith

A new First Street is good for you.

Like a mother trying to coax her child into eating vegetables, St. Charles city officials are gearing up to convince residents and business owners that redeveloping First Street will breathe life into downtown.

First street plans

It's an attempt to counter the backlash that followed the council's decision to take by force several longtime businesses if the owners and city officials cannot agree on a purchase price.

With the first phase of a new $50æmillion redevelopment plan expected to be approved tonight by the city council, officials will have a solid proposal to show residents and business owners wary of change. The developer hopes to complete engineering work in the spring and break ground in the summer.

"The hardest part of this project from beginning has been misunderstanding and lack of communication," Mayor Sue Klinkhamer said.

Klinkhamer said she hasn't heard any criticism of the proposal's latest incarnation, a concept plan created by St. Charles developer Bob Rasmussen and partners unveiled at last week's planning and development meeting. Realizing many people have yet to see it, Klinkhamer hopes to answer their questions before they're asked.

Residents can view the plan and drawings at city hall and, soon, the library. The drawings along with other information about the project also will be included in the upcoming city newsletter, and a news conference will be held to bring even more attention to it.

"The whole concept I think is really well thought out," Klinkhamer said. "Obviously, we're going to open it up to the public."

Klinkhamer is expected to announce today the names of civic and business leaders she has appointed to a committee that will provide input to the plan's developer and spread word about how the plan's realization will benefit St. Charles -- and how leaving things the way they are will cause an eventual downturn.

"I feel strongly if we don't do something, we're going to be very sorry down the road," said Alderman Betsy Penny.

Penny and most other city council members said Rasmussen's plan was an improvement over a similar redevelopment proposal created by the Evanston-based Davis Street Land Co. That company withdrew its plans earlier this year because representatives of the family-owned Blue Goose supermarket would not commit to relocating the business.

Rasmussen's vision, designed with Deerfield-based architect Knauer Inc., incorporates the Blue Goose in its existing location on First Street. It also includes twice as much parking, with a 580-space multi-level garage, a 63-vehicle parking lot and an additional 85 on-street parking spots.

Other highlights include:

• A community-centered plaza running parallel to Main Street, terminating with a fountain beside the Fox River,
  
• Some 235,000 square feet divided almost evenly among retail, office and residential uses (apartments and condominiums, with townhouses planned at a later phase),
  
• On-street parking along a widened First Street,
  
• An arched pedestrian walkway over First Street linking the parking deck on the west side to the restaurant and office space on the east side,
  
• Architecture complementing the city's existing buildings and former businesses, including the Piano Factory.

Although they make up a continuous facade along the west side of First Street, the individual tenants will occupy buildings of varying color, width and roofline type to give the impression that the development took place over a longer period of time.

Alderman David Richards, also director of the Downtown St. Charles Partnership, said the proposal would create a new First Street that is an extension of the existing downtown business district.

Richards was quick to point out that Rasmussen's group did not tout its version as "upscale" -- a buzzword used by the Davis Street representatives that had insulted patrons of The Manor, a longtime downtown casual dining restaurant that likely will be forced to move to make way for the new First Street.

But Rasmussen said he envisions The Manor fitting within the First Street development, albeit in a different spot.

"We left it up to them with the opportunity to relocate in the First Street project," Rasmussen said. "We need a nice breakfast, lunch, dinner casual dining restaurant."

Rasmussen and four of his five partners in First Street Development LLC live in St. Charles. An engineer by training, Rasmussen is co-owner and developer of the Heritage Square One and Two residential and business developments at Fifth and Illinois avenues; West Towne Market on the former General Mills site; Leroy Oaks business park on Dean Street; and the Al Piemonte Cadillac dealership under construction on east Main Street.

First Street, however, would be the Rasmussen's largest project, with an estimated price tag of $50æmillion for the first phase. His previous developments have ranged from $4æmillion to $12æmillion each.

It also would be the biggest redevelopment project in the history of the city, which created a special taxing district to help defray the costs of land acquisition and infrastructure improvements.

On Sept. 10, the city filed eminent domain paperwork seeking to condemn La ZaZa Trattoria and Harris Bank's drive-through location. Proceedings against two other businesses -- Frontier Dodge and St. Charles Cleaners -- were filed in Kane County Court earlier this year, court records show, and the city council has authorized using eminent domain to purchase The Manor and Vi's Last Call, a tavern.

Most city council members tempered their praise of the newest plan by pointing out that it's at the preliminary stage. More detailed plans, coupled with a more specific cost estimate, are expected within the next few weeks.

Members of the public, plan commission and historic preservation committee also are expected to weigh in.

"When people get a chance to see the concept, people will be excited about it," Richards said. "It's good we now have something to show them."

The First Street Project would be city's largest in history

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The Daily Herald: www.dailyherald.com

Finding Property Rights in the RubbleThe Washington Times, 8/11/04

by Jacob Sullum
Just before dawn on July 14, 1981, Detroit police hooked a tow truck to the basement door of the Immaculate Conception Church on Trombly Street and tore it off its hinges. They stormed in and arrested a dozen parishioners making a desperate, doomed attempt to save part of their neighborhood from an assault by an unbeatable alliance of big government, big business and big labor.

This was the last stand in the battle over Poletown, a lower-middle-class, racially integrated neighborhood of Detroit razed at the behest of General Motors more than two decades ago. To make room for a GM assembly plant, the city cleared 465 acres, incidentally destroying some 1,400 homes, about 140 businesses and several churches.

In a shameful capitulation, the Michigan Supreme Court approved Poletown's demolition as a legitimate exercise of the city's eminent domain powers. It accepted the argument that the jobs and tax revenue the GM plant was expected to bring rendered it a "public use," as required by the Michigan constitution (as well as other state constitutions and the U.S. Constitution).

Last month the court finally acknowledged that its ruling in Poletown Neighborhood Council vs. City of Detroit was a mistake that opened the door to the potentially unlimited expropriation of private property in the name of the greater good. While considering a Wayne County attempt to seize land for a 1,300-acre "business and technology park," the court's seven judges unanimously overruled the Poletown decision.

"Poletown's 'economic benefit' rationale would validate practically any exercise of the power of eminent domain on behalf of a private entity," the court noted. "If one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore,' or the like."

Then-Justice James L. Ryan, who dissented from the Poletown decision, said much the same thing in 1981, warning that the ruling "seriously jeopardized the security of all private property ownership." A lot of damage has been done since then, both in Michigan and in other states where courts have copied Poletown's reasoning.

The Rev. Joseph Karasiewicz, pastor of Poletown's Immaculate Conception Church, was prescient when he explained to The Washington Post why he was resisting GM's government-backed invasion. "This is an evil law, and we have to fight it," he said of the statute authorizing condemnation of the neighborhood. "You can't establish some type of crooked law and then say you did it legally. This has national implications and national scope. It sets a bad precedent."

In the wake of Poletown, courts across the country have endorsed forced transfers of land from its rightful owners to people with more political clout — from homeowners to condominium developers, from small businesses to large businesses, from churches to retailers.

Last fall the Nevada Supreme Court cited Poletown in upholding condemnation of land to be used for Las Vegas casino parking.

"Poletown was the first major case allowing condemnations of areas in the name of jobs and taxes," explains Institute for Justice attorney Dana Berliner, who co-authored a brief urging repudiation of the decision. "It is cited in every property textbook in the country."

An aspect of the decision intended as a safeguard — a requirement that a project's economic benefit be "clear and significant" — has had a perverse impact, encouraging larger seizures of land and hyperbolic predictions about jobs and revenue. Even in Poletown, employment at the heavily subsidized GM plant fell far short of the 6,000 jobs the company promised.

In the case that prompted the Michigan Supreme Court to reconsider Poletown, Wayne County predicted "thousands of jobs," "tens of millions of dollars in tax revenue," a broader tax base, and "accelerated economic growth." But if the project failed to deliver those results, no one would be accountable.

Such projections are, in any case, beside the point. "It's the principle of the thing," Poletown resident Kris Biernacki told The Washington Post in 1981. "I think the whole thing stinks. I just don't believe it happened. It's breathtaking. We didn't have a voice in it — not a voice. We didn't want to move. We were literally forced to move out. We were just told to go."

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The Washington Times: www.washtimes.com
Jacob Sullum is a senior editor at Reason Magazine: www.reason.com

Law reforms eminent domainThe (Westchester NY) Journal News, 9/18/04

by Ken Maniace
Nearly four years after a Port Chester property owner went to court to challenge New York state's rules for taking private property, Gov. George Pataki has signed a law reforming condemnation procedures.

The new law means property owners in New York no longer need to pore over tiny legal notices, searching for clues of government plans to take their land; governments will need to notify each property owner by certified mail or personal delivery.

The eminent domain law reform was signed Tuesday by the governor and was announced by his office yesterday.

It grew out of a battle by Bill Brody, a 42-year-old businessman from Rye, to hold onto four sites in Port Chester's downtown redevelopment area.

"I'm very glad that the governor agreed with what I have been saying all along and that the state is going in the right direction," he said yesterday in front his building-supply business in the Bronx.

Brody said he never saw the condemnation plan announcement in a July 1999 legal notice, which neither named him nor identified his Port Chester property by address. Because of that, Brody said, he failed to challenge the condemnation in the 30-day period allowed.

The new law has no effect on Port Chester's taking of Brody's property for a 27-acre retail and entertainment complex under construction, but his case continues in federal court in Manhattan, where a ruling is expected this fall.

Brody's case was one of several taken up in October 2000 by the Institute for Justice, a nonprofit group in Washington, in an assault on New York's eminent domain rules, which the group called "among the worst in the nation."

Not only did the old law fail to require property owners to be properly notified of condemnation plans, it also failed to inform them they had a specific 30-day period for challenging condemnation.

"Cities were telling people that these public hearings were opportunities to express their feelings about a proposed project, not that this was a hearing where they had to put forward their reasons why government should not take their property," said Dana Berliner, a senior attorney with the Institute for Justice. "Now, at least, owners have a chance to defend themselves."

Sponsored by Assemblyman Richard Brodsky, D-Greenburgh, and state Sen. Vincent Leibell, R-Patterson, the legislation unanimously passed both houses in June. A version was vetoed by Pataki last year after it, too, unanimously passed both chambers.

Pataki's office said he vetoed the earlier law because it required title searches to identify every property owner involved in a proposed condemnation, an expensive feature.

The new legislation relies on government tax assessment records to identify owners.

Leibell called the bill "pro-consumer legislation."

Brodsky said the law would protect property rights.

"People deserve real notification when the government wants to take their property," he said.

The new law takes effect in about four months.

Although the law improves a major flaw in the state's eminent domain procedures, Berliner said New York has another problem: It often resorts to eminent domain to acquire land for private development rather than for a public purpose, such as a park or road. Though other states have done so, New York is among those that most often use condemnation as a tool for private development.

Government officials have justified the practice by saying condemnation for private development serves a public purpose because it improves a municipality's tax base.

Though Port Chester may have benefited from the old law, Mayor Gerald Logan said yesterday he was pleased the new one would afford property owners more legal protection.

"Now, at least, someone has the opportunity to make themselves heard," Logan said.

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The Journal News: http://www.nynews.com/