Hollywood moves to seize woman's storefronts so developer can build condos: South Florida Sun-Sentinel, 6/22/05

By Shannon O'Boye
Over the objections of a man who said Hollywood is stealing his family's land to enrich a powerful developer, the City Commission voted Tuesday night to begin eminent-domain proceedings on a small retail building downtown to make way for a $100 million condo project.

"I don't appreciate ... what's being done in this matter on behalf of these developers," said David Mach, whose recently deceased father bought the building near Young Circle in 1971. "There's no reason to have to attract developers to Hollywood anymore. There's no reason for any incentives. There's no reason to eminent domain any properties. Let them work it out themselves."

"I ask you to vote not with your hearts because I know you won't, but with your heads," he told the commission.

Commissioners Beam Furr and Sal Oliveri were the only two to vote against taking the Mach property, on Harrison Street and South 19th Avenue, by eminent domain.

In voting to do so, the commissioners were following through on a promise they made to developer Charles "Chip" Abele in July 2004. They signed a contract agreeing to condemn the property if the developer was unable to strike a deal with David Mach's father, George.

Now that the commission has launched the legal proceedings, the city's community redevelopment agency must offer within 30 days to buy the property for fair market value from Mach and his mother, Katalin. The developer must pay the city's eminent-domain costs, city attorney Dan Abbott said.

"I'll tell you, and Mr. Mach and everyone here, the only reason there will not be a deal cut that puts the eminent domain aside ... is because of an unwillingness by Mr. Mach to accept a number markedly above the fair price for his property," Abele said.

Recent city appraisals estimated the property at $725,000 and $850,000. But Mach said he doesn't care what price the developer offers. It was the first building his father bought; his father ran the beauty salon in the building for many years, and his family does not want to sell.

"Not everyone can be bought," Mach said. "We don't want to be bought."

That was all many of the residents at Tuesday night's meeting had to hear.

"I ask the commissioners of this city to take pause before you make such a decision and to vote no in principle on the eminent-domain issue," said Kerry Sisselman, who lives on the beach. "If the commission takes this property in this way and we don't speak out, and the commission takes our property in the same way ... who will speak out for us?"

Commissioner Cathy Anderson and Mayor Mara Giulianti made the argument that the eminent domain is justified because the developer has agreed to restore two of the outer walls of the historic Great Southern Hotel, which is located next to the Mach building. But, early on, the developer brought the city a plan that spared the Mach building.

The city rejected that plan because traffic experts said traffic would flow better if the Machs' land was included in the project.

Commissioner Peter Bober said he regretted agreeing to take the property by eminent domain last year and would learn from it in the future, but he said he had to vote for the proposal because backing out of a contract would expose the city to a huge lawsuit.

"Eminent domain really is a big deal," Bober said. "It's not just a legal concept. It's real. You're dealing with real property and real people.

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Sun-Sentinel: www.sun-sentinel.com

Decision delayed on eminent domain request: (Syracuse NY) News 10 Now, 6/22/05

By Adam Chodak
This spring, representatives for DestiNY and OCIDA crafted an agreement regarding the proposed R&D Park in Salina. Wednesday morning, the OCIDA Board held a meeting to discuss the agreement and possibly vote on it. But neither a discussion nor a vote took place.

"Members of the agency are in favor of the project and would like the project to succeed. At the same time, we have an obligation to those families who own businesses and work for the businesses that are in Phase 3," said OCIDA Chairman Robert Baldwin.

Phase 3 beings the part of the agreement in which OCIDA agrees to use eminent domain to condemn more than two dozen Salina businesses to make way for the R&D Park.

Phil Jakes-Johnson represents Solvents and Petroleum in Salina. He sees OCIDA's decision to hold off on a vote as a sign the board is seriously considering his group's objection to eminent domain.

"OCIDA Board members, volunteer board members, are giving due deliberation to magnitude of this agreement," he said.

Not all in attendance applauded the postponement. Deputy County Executive Ed Kochian thinks the delay only frustrates the developer's grand design.

"They're spending money at a rapid rate and I'm pretty sure there comes a point where they say we have to know that we're going to recover some of that money or else we can't keep spending it at the rate we're spending it," said Deputy County Executive Ed Kochian.

Baldwin hopes this impasse doesn't translate into a complete melt down of the project. Instead, he thinks a step back and reflection will open the door to an acceptable compromise.

We tried to contact DestiNY officials Wednesday for comment, but, as usual, they did not return our phone calls.

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News 10 Now: http://news10now.com

Timberwolf could become new honors college: Arizona State Univ Web Devil, 6/21/05

Regents approve use of eminent domain to buy pub property

by Jason Ludwig
The Arizona Board of Regents unanimously approved on Thursday ASU's request to initiate eminent-domain proceedings for the empty property at 740 E. Apache Boulevard that once was the site of Timberwolf Pub & Grill.

The motion came despite the objections of local real-estate lawyer and ASU adjunct professor Grady Gammage, Jr. and the property's current owner, Ray Evans.

Rich Stanley, ASU's University Planner at the meeting of the board, said ASU will move forward with its desires to expand the Barrett Honors College on the property.

"At this point, we have been unable to reach an agreement with the owner of the property," Stanley said.

The University has commissioned two appraisals on the property, the first valuing the land at $1.2 million and the second valuing it at $1.7 million.

ASU wants the land, which is surrounded on all sides by University property, to expand the honors college. A University memo stated the owner was unwilling to sell for less than $2 million, and "the only way to acquire the property for the fair market value will be through an eminent-domain proceeding."

The memo also said "the property owner is amenable to a sale via eminent domain and has indicated that he is willing to allow the sale price to be determined in this way."

Gammage, addressing the Board from a letter read aloud by a spokesperson on Evans' behalf, condemned the use of eminent domain as a means of acquiring the land and denied that Evans was "amenable" to setting the price that way. Gammage said Evans did not want to sell the property at the university's offered price of $1.6 million because it was "10 percent less than the University's own appraisal," and that he believes the actual value of the property is between $2.75 million and $3.5 million.

Gammage closed by saying that the letter did not represent "a friendly condemnation proceeding," and noted that Evans had retained counsel with the intention of fighting eminent domain acquisition.

"The statement that the property owner wanted to retain and develop the property is not consistent. The idea... is a new one to us," Stanley said.

ASU President Michael Crow said he would try other methods of acquiring the property, adding that mediation and further appraisals were possible.

"Only as a last resort [will we] exercise the right of eminent domain."

Crow said ASU wants to pay the value of the appraisal that it gathered.

"This is a dispute over price," Crow said. "At the end of the day it always comes down to price. We can use eminent domain to set that price."

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ASU Web Devil: www.asuwebdevil.com

WAITING FOR KELO: Will it have an impact on Eminent Domain in New Jersey? New Jersey Eminent Domain Law Blog, 6/21/05

By Bill Ward
Kelo v. the City of New London (04-108) should be decided this week by the United States Supreme Court. Don’t hold your breath, property owners. It may be a non-event.

Berman v. Parker, 348 U.S. 26 (1954) created the narrow exception that led to eminent-domain abuse. Jeff Jacoby wrote in the Boston Globe:

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.... That 1954 ruling weakened the very foundation of our liberty: the right to own and lawfully enjoy property.

The question presented to the Supreme Court by the plaintiff Susette Kelo is this: What protection does the Fifth Amendment’s public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of “economic development” that will perhaps increase tax revenues and improve the local economy?

Are there limits on government’s use of eminent domain power under the public use requirement of the 5th Amendment? This is how the question was posed by attorney Scott Bullock (Institute for Justice)for the plaintiffs at the beginning the oral argument on February 22.

The colloquy between the Court and counsel is enlightening.

New London was in a depressed economic condition…The critical fact on the city side, at least is that this was a depressed community and they wanted to build it up, get more jobs. — Justice Ginsburg

Oh, but Berman spoke, in the opinion, said that the determination of the legislature about these things is virtually conclusive, that there is only the narrowest, narrowest role for the judiciary. What kind of standard are you proposing we should get into here to second-guess the public use aspect? — Justice O'Connor

But there is no taking for private use that you could imagine in reality that wouldn’t also have a public benefit of some kind, whether it’s increasing jobs or increasing taxes, et cetera. That’s a fact of the world. And so given that fact of the world, that is law, why shouldn’t law say, okay, virtually every taking is all right, as long as there is some public benefit which there always is and it’s up to the legislature. — Justice Beyer

But that’s what they were being used for in Berman...everybody knows that private developers were the beneficiaries in Berman.... You want me to make a distinction between blight which is a permissible governmental use, governmental objective and economic revival, which isn’t?....Blight is in the eye of the beholder.... — Justice Kennedy

Therein lies the legacy of Berman. Here’s your one hope, property owners:

Let me ask you this, and it’s a little opposite of the particular question presented. Are there any writings or scholarship that indicates that when you have property being taken for one private person ultimately to go to another private person, that what we ought to do is adjust the measure of compensation, so that the owner--the condemnee--can receive some sort of premium for the development? — Justice Kennedy

Possibly in takings for so called “economic benefit” the court will fashion a rule that the owner may claim value based on the positive influence of the project. This would set the “scope of the project” rule on its ear. See Jersey City Redevelopment v. Kugler 58 NJ 374, 379 (1971). This case stands for the proposition that any increase or decrease in value attributable to the project of the condemning authority should be excluded by the fact finder.

How would such a rule change play out in blight cases in New Jersey? We’ll wait and see. Download the transcript of the oral argument of February 22:
http://www.njeminentdomain.com/kelo_ussc_transcript.pdf

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New Jersey Eminent Domain Law Blog: www.njeminentdomain.com

Condo developer wants Hollywood to seize storefronts from uncooperative widow: South Florida Sun-Sentinel, 6/21/05

By Shannon O'Boye
A recently widowed immigrant is holding up a developer's plan to build a 19-story condo complex [in] downtown [Hollywood FL] — and the city is poised to step in to stop her.

Katalin Mach said her husband, George, never wanted to sell the small, one-story building that is home to the beauty salon he managed years ago.

"I don't care what they want to offer. I don't want to sell," said Mach, whose family has owned the property near Young Circle for 34 years.

Developer Charles "Chip" Abele is asking the city to use its powers of eminent domain to take the Mach property and sell it to him. The city commission, which agreed in a July 2004 development agreement to use eminent domain if necessary, is expected to vote on the issue today.

Mach promises a court battle.

"Basically, I'd really like them to leave me alone," she said, adding that the building provides a nice income for her family with the tenants paying rent and providing all maintenance.

Abele, who said he negotiated with George Mach before his death in April, said Mach demanded an exorbitant, unreasonable price and was "very emotional" and difficult to work with. Abele's $100 million plan calls for approximately 240 condos with 25,000 square feet of retail space on the first floor. During a commission meeting earlier this month, Abele's lawyer, Alan Koslow, blasted the Machs before he realized George Mach was dead.

"For ever and ever, the problem with the city ... to be honest with you is we're letting Mach be the tail that wags the dog," said Koslow, a former city attorney who yields great influence over the commission. "It's enough already. Send him a message: This project is going forward."

Between 1998 and 2002, there were more than 10,000 instances of governments using or threatening eminent domain to transfer property from one private owner to another, said Dana Berliner, a lawyer with the Institute of Justice in Washington, D.C.

"We think its unconstitutional, we think it's un-American and we think it's a tremendous abuse of power," Berliner said.

In a ruling expected later this month, the U.S. Supreme Court will consider whether a government can use eminent domain to take private property and give it to a developer for the sole purpose of economic development and expanding the tax base. Unless the high court stops such moves, critics say governments could condemn entire neighborhoods of single-family homes to build commercial buildings or upscale condos.

Historically, governments used the power of eminent domain to force people out of their homes or businesses if they stood in the way of projects with a legitimate "public use," such as a road, a school or a post office. Over the years, the Florida legislature began allowing governments to take property if it was blighted, or even in a blighted area the city hoped to redevelop.

Florida's definition of "blight" is so vague it essentially allows governments to declare eminent domain over "anyone's property at anytime anywhere," said Miami lawyer Toby Brigham.

Mach's property is located in such an area: on Harrison Street and South 19th Avenue.

Hollywood Mayor Mara Giulianti said elected officials who want to improve their cities have to forge alliances with private developers.

"Redevelopment is done by the private sector," she said. "The CRA exists for redevelopment ... Our job is to help effectuate that redevelopment."

Giulianti said she supports the seizure of the Mach property because the developer has agreed to save and restore the outside walls of the nearby historic Great Southern Hotel.

"That to me is the public use," she said. "I wouldn't give a nickel if it was just to build a condo. They could leave [the Mach property] and build around it."

The developer actually presented the city with a plan that left the Mach property alone, but the city rejected it because city staff thought the plan would cause parking problems on Harrison Street.

Giulianti said she feels it's time for Mach to accept a fair price for her land and move on. The mayor called Mach an "absentee landlord," even though the Machs worked in the beauty shop for more than 25 years, pay taxes on that and two other properties in the city and raised their family in Hollywood before moving to Aventura.

Frank Schnidman, of FAU's Center for Urban and Environmental Solutions, said he finds that kind of attitude deplorable.

"It's unbelievable how we demonize American citizens because they don't want to sell their property for less than it's really worth," he said.

If Mach fights the eminent domain, a judge will determine if the city is justified in taking the land, and a jury will decide how much the developer will pay. Two appraisals conducted this year for the city valued the property at $850,000 and $725,000.

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South Florida Sun-Sentinel: www.sun-sentinel.com

'80s blight spurs condemnation: South Florida Sun-Sentinel, 6/21/05

Daytona lawyers tell a judge a 1981 declaration justifies tearing down waterfront businesses today

By Ludmilla Lelis
As the city's [Daytona Beach's] effort to condemn three Boardwalk properties began in court Monday, a pair of witnesses described the conditions that first led the Main Street district to be declared "blighted" in 1981.

Runaways trying to survive on the streets. Pedophiles hunting for victims. Flophouses boarding 20 people in one place. Sewage backing up to a city street.

"It was a pretty ratty area," said Jerry Langston, a retired Daytona Beach planner who testified Monday in court.

Langston later testified that redevelopment, city projects and code enforcement have improved things since then. Still, attorneys for Daytona Beach say the very conditions that made the area "blighted" 23 years ago are enough reason to let the city condemn the Boardwalk businesses today.

On Monday, Circuit Judge John W. Watson III opened a trial that will be key to the city's redevelopment plans in the core beachside tourist area. Daytona Beach wants a new $115 million Boardwalk, with a pair of condominium-hotel towers, restaurants and retail space and is in court to force the owners to sell, using the city's power of eminent domain.

However, the business owners question whether the 1981 blight designation should apply today, and whether it's right for the city to condemn their private holdings, only to give that land over to a private developer. The holdouts are Capt. Darrell's Oyster Bar and Restaurant, Midway Fun Center and a go-kart track.

The trial before Watson is expected to last three days and will determine whether the condemnation is legal. If the judge allows the takeover, a jury will later decide how much the Boardwalk business owners will be compensated.

Carlsberg Management Co., or one of its sister corporations, owns most of the parcels needed for the redevelopment project. A similar eminent-domain case ended in a settlement, in which siblings Dino Paspalakis and Lisa Psaros agreed to sell their family's Boardwalk businesses for $2.6 million.

According to the settlement agreement, which the judge refused to keep out of the trial testimony and discussion, Paspalakis and Psaros have the option of buying Capt. Darrell's for $750,000 if the developer succeeds in acquiring it. The siblings would get the restaurant as a building shell only and could not use it as a fast-food restaurant. If that deal does not work, they have the second option of buying retail space at the new Boardwalk.

Monday's trial testimony focused on the city's findings of blight in the entire Main Street redevelopment area in 1981. Langston and retired Daytona Beach utilities manager Dennis Colby testified that the area then was run-down, with outdated water and sewer systems, crime and deteriorating buildings.

Those problems prompted the blight study and Daytona Beach's effort to revitalize the beachside. A new Boardwalk could be "a key linchpin" to further revitalizing the area, Langston said.

Since then, the district has a new mall and condominium-hotel towers at the Ocean Walk, updated water and sewer lines, an expanded Hilton, a water park and parking garage and new streetscaping. And the city hasn't redone the blight study since then, according to testimony.

Under cross-examination, Langston admitted that the blight has been reduced. "I think it has substantially improved," he testified. "It does not appear we have the problems that we did back in the '70s and '80s."

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South Florida Sun-Sentinel: www.sun-sentinel.com

Proposed Changes to N.J. Eminent Domain Act: New Jersey Eminent Domain Law Blog, 6/17/05

By Bill Ward
“The price of democracy is vigilance.” – Senator Bob Smith (D) Middlesex, Chairman of the N.J. State Senate Committee on the Environment

Assembly Bill No. 4089 was referred to the Assembly Housing and Local Government Committee on Monday June 13, 2005. The bill was first introduced on May 12, 2005 and referred to the Assembly Environment and Solid Waste Committee. The bill requires that contamination be considered in property valuation in condemnation proceeding and requires remediation be performed by the condemnor.

The stated purpose of the bill, and its companion N.J. Senate Bill No. S2621, is to overturn the New Jersey Supreme Court decision in Housing Authority of New Brunswick v. Suydam Investors, 177 N.J.2 (2003) and revise New Jersey's Eminent Domain Act of 1971.

A remarkable assembly occurred in Trenton in opposition to this bill: McKirdy & Riskin, Carlin & Ward, Bathgate & Weggener, Archer, Greiner & Reed, senior state Deputy Attorney General Kevin Rittenberry, and Deputy Attorney General Dale Lessne, all appeared and testified in opposition to this bill. These firms and the deputies Attorneys General represented all spectra of the condemnation bar, both condemnor and condemnee. Monday's hearing concluded with the bill reported out of the Assembly Committee with amendments, and referred to the Assembly Housing and Local Government Committee without recommendation. Listen to the Committee on Environment and Toxic Waste Hearing of June 13, 2005 at:
www.njleg.state.nj.us/media/archive_audio2.asp?KEY=AEN&SESSION=2004.

It was readily evident that the Middlesex County Democratic machine is pushing the bill as an answer to Middlesex County’s difficulties with the Suydam case as applied to National Lead v. SERA and the decisions of Judge Longhi in the Superior Court; Judges Skillman, Parillo and Grall in the Appellate Division; and the Hon. Neil H. Shuster, Presiding Judge of the Chancery Division. This case which involves $30M in public funds is the apparent genesis for the bill. Download the Appellate Decision in National Lead v. SERA at:
www.njeminentdomain.com/NL%20v%20SERA%20Appellate%20Decision%2012-04.pdf

However, the legislative changes are really directed at redevelopment projects and unscrupulous redevelopers acting in concert with acquiring agencies. If passed, Suydam would be eviscerated; and a long standing public policy, developed by the bar and approved by the Supreme Court for dealing with environmental issues in the context of condemnation cases, will be abrogated. As President Bush the elder would say, “This must not stand.”

The current state of affairs in redevelopment projects undertaken pursuant to the LRHL [Local Redevelopment Housing Law] gives municipalities virtual carte blanche to acquire and redevelop real estate in conjunction with the developers, who are paying for the projects. While the concept behind the LRHL is good, and public benefit is the objective, the potential for misuse is present. If the municipality/developer is given the additional leverage of deducting environmental contamination from the fair market value of the property before the offer is made, the property owner’s worst nightmare will become reality. Properties will be acquired for a fraction of their value because unscrupulous developers will obtain greatly inflated estimates of the cost of clean up.

Assembly Bill No. 4089 was voted out of committee ”without recommendation” and referred to the Housing and Local Government Committee for further review. This was a coward’s answer to voting this legislation down from the moment of inception. Only Assemblyman Rooney (R) Bergen spoke out forcefully against this bill. Assemblyman Wisniewski, the sponsor, did not even speak in favor of the legislation he introduced. Apparently, he did not want to face the opposition.

Yesterday, the Senate's companion Bill No. 2621 was similarly held for further review without vote on the recommendation its sponsor, Senator Bob Smith (D), District 17 (Middlesex and Somerset Counties). Senator Smith is apparently seeking amendments to the bill which somehow could satisfy the opponents. We don’t think this will happen. One proposed amendment to the bill, which exempts the state of New Jersey and other state agencies from the provisions of the bill, would effectively create a two-tier system for determining just compensation – one for the state and one for other redevelopment agencies. This is blatantly unconstitutional, a violation of due process and equal protection. Redevelopment agencies would be deducting environmental costs for fair market value before making the offer to the property owners. State agencies (e.g., NJDoT, NJSCC, NJDEP) would be using the current system, which values the property as if remediated and deposits the full amount of compensation with environmental clean up costs reserved in the deposit for further determination in a separate proceeding if necessary. This is the precise procedure that the N.J. Supreme Court established in Suydam.

The proposed change by Senator Bob Smith, Chair of the Environmental Commitee would read:

The provisions if this section shall not apply to any condemnation action in which the State, or any State department, agency, corporation, authority, bureau, board, commission or instrumentality is the condemnor.

This amendment was the Senate’s answer to the opposition proffered before the Assembly by the Attorney General’s office. The amendment may eliminate their problem, but it certainly does not solve our problem, or the problem of the vast majority of property owners effected by redevelopment projects. This bill is a moving target, and we expect further amendments that try to address issues raised by the bill’s opponents. As Yogi Berra said, “It ain’t over till it's over.” And in accordance with the admonition by Senator Smith, we will remain vigilant.

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New Jersey Eminent Domain Law Blog: www.njeminentdomain.com

Kelo Case Is Just Part Of Land-Grab Nationwide: The (New London CT) Day, 6/19/05

Editorial

By Gregory N Stone
Susette Kelo and her neighbors aren't the only targets of eminent domain nervously awaiting the Supreme Court decision in the Fort Trumbull case.

The same matter happened to be on the mind of a stranger I met at random in JFK Airport last week. We struck up a conversation in one of the seating areas near the international arrival section of Terminal 4 while I was waiting for my wife to arrive on a flight and she waited for her son from Queens to pick her up. The woman told me she lived in Florida. She said life there was a blast, but she was thinking of moving. She said “they” were trying to take her condominium building. “They” were the city of Boyton Beach, near Palm Beach, in South Florida. The city had plans to acquire the building where she lived by eminent domain “to build bigger buildings that will bring in more taxes,” she told me.

“We're all watching this case in Connecticut,” she volunteered out of nowhere. I hadn't mentioned where I was from.

“You mean the Supreme Court case in New London?”

“I guess that's it. Have they done anything yet?” she asked.

I said they hadn't. The court is expected to hand down its ruling sometime this month.

“Well, there's a feeling that if they (the court) support the city, it will open the floodgates.”

A little research indicated the floodgates are already open. An Internet search using “Boynton Beach eminent domain” turned up hundreds of hits for lawyers specializing in eminent domain and topics dealing with condemnation proceedings by the city's Redevelopment Authority.

Boynton Beach is among coastal Florida communities that are using eminent domain powers to acquire real estate and transfer it to private developers to build luxury condominiums and shopping areas in choice waterfront locations, according to Steven Anderson, director of the Castle Coalition. The coalition, named for the libertarian motto “A man's home is his castle,” is an advocacy group associated with the Institute for Justice, the Washington, D.C.-based organization that has been representing the Fort Trumbull plaintiffs in the New London case.

The coalition has produced a report documenting 10,000 instances of such “private to private” real estate transfers employing eminnent domain in 41 states between 1998 and 2002. Many of them are in coastal Florida, where communities are seeking to displace lower valued real estate with luxury developments to enhance their property-tax lists, Anderson said. In addition to Florida, California and New Jersey stand out for the volume of such cases.

Florida made the process even easier with new legislation that liberalizes the interpretation of blight, one of the conditions that enables municipalities to take property by eminent domain. Blight was the justification when New London used eminent domain to clear areas in the Winthrop and Shaw's Cove areas of the city in the 1960s. The Fort Trumbull case revolves around another constitutionally allowable purpose, of condemning property for public purposes. The Institute argues that securing land for private developers doesn't qualify as a legitimate public purpose.

The woman at JFK said her condominium building is occupied by retirees who purchased their homes for modest prices a number of years ago. But she said with real estate prices soaring, the land they sit on is more valuable than the buildings (and their occupants, I guess).

According to John Kramer, a spokesman for the Institute, this fits into the pattern by which cities are abusing eminent domain powers.

“It falls into the category of ‘the poor don't deserve a view,'” Kramer said, in which municipalities condemn land in middle-class and lower-middle-class neighborhoods to make way for high-density, luxury developments with much higher value, and where the former occupants couldn't afford to live.

He cited the case of a town near the ocean in northern New Jersey where immigrant families from New York built modest summer bungalows decades ago and where they eventually retired. He said the community, Long Beach, went after the property using eminent domain to turn it into an upscale neighborhood of “high density, high-dollar development.”

This sounds a lot like the neighborhood where Susette Kelo has one of the nicest views in New London from the kitchen of her home in Fort Trumbull, but maybe not for long if a majority of the Justices on the Supreme Court agree with the city that they require her land for a public purpose.

And the place Kramer described isn't unlike the development where the stranger I met at Kennedy Airport is standing in the way of progress in the condo she bought for $30,000 20 years ago.

When it comes to the interest in the Fort Trumbull case, it turns out to be a small world.

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The Day: www.theday.com

Couple was not paid for seized land: (Ft Wayne IN) News-Sentinel, 6/16/05

Kruses didn’t take $5,000 offered; now city says project benefits will be only payment

By Kevin Leininger
Some might call Stan and Diana Kruse greedy. Others might accuse them of trying to block the inevitable march of progress.

But to the Kruses, the city’s seizure of land needed to run a new sewer line past their Rothman Road home – without paying them a cent for the property – is about far more than money.

“The Fifth Amendment says the government can’t take your property without just compensation, but that’s exactly what the city is doing,” said Diana Kruse, who has lived at 6930 Rothman Road since 1967. “We (raised) seven kids here, and the property was to be passed down to them. Now I feel like my heart’s been cut out, like we’ve been raped and robbed.”

City officials disagree, of course. Even though they offered the Kruses $5,000 for the property late last year hoping to avoid an expensive condemnation process – an offer the Kruses rejected – Water Resources Program Manager Ted Nitza said a cash payment now would be “inappropriate because we feel the benefits of the project (to the Kruses) exceeds the value of what was taken.”

Because the Kruses have appealed the condemnation approved May 18 by the Board of Works, Allen Superior Court Judge Stanley Levine will decide whether things such as a new fence and the ability to trade a septic tank for city sewers is adequate compensation for nearly three-quarters of an acre of what is becoming prime real estate. But State Sen. Dennis Kruse – a distant relative of Stan Kruse – believes the fact that the dispute has gotten so bitter indicates “the city has not handled this properly. It looks like somebody just got upset (with the Kruses for rejecting the initial $5,000 offer) and simply cut off negotiations and communications (with them).”

“It is my responsibility as state senator to see that (the Kruses) are fully compensated and fairly represented,” Kruse, R-Auburn, said in a letter to Mayor Graham Richard on Wednesday.

In some ways, the Kruses’ story is familiar: Their once-rural 11-acre property – still home to two horses and several cats and dogs – is quickly being surrounded by new neighborhoods requiring sewer and water service. The 260-home Valencia neighborhood is being built just to the east of the Kruses, for example, and other developments are coming. And, because of all that additional traffic, Rothman Road will have to be widened one day – another reason the city needed the 15-foot right-of-way from the Kruses.

Nitza said the new sewers will also benefit the owners of several homes near Hazelett and Rothman roads who are now using septic systems that often fail because of Allen County’s poor soil conditions. “It can cost $10,000 to $15,000 to replace a tank,” Nitza said to illustrate the sewer project’s value to the Kruses. “And Stan Kruse has already asked to tap into the sewer.”

But it can cost homeowners thousands of dollars to connect to sewers, too – and there has been no discussion of waiving those fees for the Kruses, Nitza said.

By law, the city must determine the value of land, trees and improvements such as fences condemned through its power of eminent domain. But the Kruses believe their property is worth far more than any benefits they will receive in return. “It’s absolutely absurd,” Diana Kruse said of the city’s offer – or lack of it. “We told them we wanted to get our own appraisal. But they wouldn’t wait.”

“The developers are just using the city to get our land because they couldn’t get it on their own,” added Stan Kruse, who believes the land and other improvements are worth about $20,000 and said he’s interested in sewer service only because it’s available. His septic system is working just fine, Kruse said, and there is no record of any problems there, said Gary Chapple, pollution control director for the Fort Wayne-Allen County Board of Health.

Nitza said the sewer is not being installed on the other side of Rothman Road because there is already a water line there and the city wants to keep sewer and water pipes separate for health reasons. Using the Kruses’ side of the road will also cost taxpayers less, he said.

Roy Buskirk, a County Councilman and land appraiser, said he has never heard of a case where government “didn’t pay at least something (for property), and I’ve been doing this for 19 years.”

Nitza, however, said it’s not unusual for landowners simply to donate easements, and is satisfied the city has met its moral and legal obligations in the Kruses’ case. By the time Levine decides, the work in front of the Kruses’ home may be long-completed.

All of which leaves Diane Kruse wondering whether the couple should simply bow to progress and sell their remaining 10 acres – property the city is equipping with sewer tap-ins for two additional homes which would be valuable to developers but are of little interest to the Kruses.

“I don’t feel good about all these homes being built, and we’ve had (traffic) deaths out here already,” Diana Kruse said. “This may not be a big deal to the city, but it is to us. To see everything we’ve worked for …”

Choked with emotion, she couldn’t finish the sentence. But her meaning was clear.

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News-Sentinel: www.fortwayne.com

Eminent domain cited for new lines: (Appleton WI) Post-Crescent, 6/17/05

Assembly bill would force sale of land for power transmission

Associated Press
Local governments would be forced to sell public land to utilities for power line routes under a GOP-authored bill the [Wisconsin] state Assembly passed Thursday.

The bill is designed to make Douglas County officials give up public land for American Transmission Company’s $420 million high-voltage power line, Democrats said. The line will stretch from Duluth, Minn., to Wausau.

The County Board voted in February not to negotiate with ATC over county land the company wants for 2.5 miles of the line. ATC filed a lawsuit this week in Douglas County Circuit Court asking a judge for the land.

Major state utilities, including Alliant Energy, Madison Gas & Electric and Wisconsin Public Service, have lobbied lawmakers to pass the bill, according to state Ethics Board records.

“They’re hell-bent on getting this power line through,” Douglas County Board Chairman Douglas Finn said.

ATC communications director Randy Satterfield, a lead lobbyist for the bill, said state law forces utilities to consider building projects along established routes, such as existing power lines, railroads or highways, before looking at private land. Most of those existing corridors lie on public land, he said.

Wisconsin needs the additional power the line will bring in, he added. Douglas County’s move has forced the company to re-plot the route, costing time and ratepayers’ money, he said. The company has since submitted two alternate routes to state regulators in which the line would cut through private land of 20 to 50 different owners.

“This bill is terribly important for the people of Wisconsin,” he said. “It’s going to ensure the work we have to do ... can get done on time and on budget without affecting more private landowners than it needs to.”

The Republican-controlled Assembly passed the measure 61-35. The state Senate, also controlled by the GOP, also must pass the bill and Democratic Gov. Jim Doyle must sign it before it can become law.

Doyle spokeswoman Melanie Fonder said the governor “generally” supports the bill.

“The governor wants to make sure Wisconsin has a secure supply of energy. We want to ensure the line is going to be built and that fair market value is paid for the land,” Fonder said.

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Post-Crescent: www.postcrescent.com

Newark makes two moves toward redevelopment: Newark (NJ) Star-Ledger, 6/17/05

Plan for new downtown area opens door for eminent domain

By Jeffrey C Mays
The Newark City Council approved two pieces of legislation that will have a major impact on development in the city. One will create an entirely new downtown neighborhood on 13.5 acres, and the other will make it easier to transfer city-owned land to developers.

Both met resistance from residents at Wednesday night's council meeting, but the council said they felt the changes were in the best interest of the city.

A redevelopment plan for 13.5 acres of the downtown Mulberry Street neighborhood was approved by a vote of 5 to 4, clearing the way for the city to officially designate a developer and begin taking private property using eminent domain.

In another move, the entire city of Newark has now been deemed an area in need of rehabilitation, by a 6 to 3 vote, making it easier for the city to create the type of redevelopment plan being used on Mulberry Street.

"We are talking about enhancing neighborhoods," said Councilwoman Bessie Walker.
The Mulberry plan is a 13.5-acre project to build more than 2,000 market-rate condominiums and create an entirely new neighborhood.

The redevelopment plans calls for mixed-use buildings with stores on the bottom, wide plazas, a park and the option of an arcade.

City officials say it is the first effort to create an entirely new neighborhood and not just build two- and three-family houses.

"It's an exciting day, a historical day for the city of Newark," said Emilio Farina, a principal in the Mulberry Street Urban Renewal Co., the developer that will probably be chosen for the project.

Supporters of the project packed the council chambers wearing T-shirts and buttons. The central planning board unanimously decided to recommend the plan to the city council on Monday.

George Mytrowitz, a spokesman for the Mulberry Street Coalition, a group of property owners fighting the use of eminent domain for the project, urged the city council to postpone voting on the plan until his group's lawsuit challenging the blight designation is decided.

"We knew it was a foregone conclusion," said Mytrowitz. "The city is wasting taxpayer dollars to come up with a plan when they know we are contesting it in court."

Councilman Augusto Amador, who voted against the Mulberry Street plan, said the city council should have waited until the U.S. Supreme Court issued a ruling on a case it is hearing regarding when the government can take private property for a public use and exactly what constitutes a public use.

Mytrowitz said he was also concerned about the city council declaring all 24 square miles of Newark as an area in need of redevelopment.

"The city is trying to fast-track development. Your house or business, your most important possession, may not be safe," said Mytrowitz.

Right up until the vote, the city council had questions about what the designation would mean. Assistant Director of Economic and Housing Development Johnny Jones and Corporation Counsel JoAnne Watson explained that the designation does not change the process the city would have to follow to use eminent domain.

Instead, city officials said the designation would allow for smaller areas to be targeted for redevelopment. The city would be able to take city-owned parcels and combine them with parcels owned by developers to create neighborhood redevelopment plans.

To meet the standard for rehabilitation, an area must show a pattern of vacant, substandard or deteriorated housing; have half of its housing stock or water and sewer infrastructure at least 50 years old; or stand to benefit from rehabilitation to prevent more deterioration. Newark's sewer system is at least a century old.

City planning officials currently declare an area in need of redevelopment if they want to put together neighborhood plans. That designation allows the city to take private property and devise plans to redevelop the area. It also allows the municipality to convey city- owned land to private developers without going through the public bidding process.

In order to be declared in need of redevelopment, an area has to meet several criteria, including unsafe and dilapidated buildings, underused land, and abandoned commercial or industrial areas.

The city council has to ask the central planning board to investigate whether an area is in need of redevelopment. Hearings must be held by the planning board, and the council must approve the planning board's recommendation.

Jones said that process can take from six to eight months and can cost the chance at outside funding.

Attorneys from McKirdy and Riskin, one of the leading firms on eminent domain issues in the state, questioned why the city would need to be declared in need of rehabilitation when the state's redevelopment laws already give the city broad powers.

Nancy Zak, a community activist who works for the Ironbound Community Corp., said the city should concentrate on finishing its Master Plan and updating its zoning laws. Proper planning and zoning would eliminate the need to do so many neighborhood plans, she said.

"I have no problem voting on different areas in need of redevelopment, but I don't believe all sections of the city of Newark are in need of rehabilitation," said Councilman Donald Tucker, who along with Amador and Luis Quintana voted against the designation.

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Newark Star-Ledger: www.starledger.com

Polk Considers Eminent Domain to Get Water: The (Lakeland FL) Ledger, 6/16/05

County officials seek five-acre lots for much-needed wells, but don't know if they can force landowners to sell

By Mike Grogan
The laundry list of needs in this fast growing region is a long one.

It includes new roads to accommodate the huge increase in traffic, more schools for the children of the families that are moving here, a series of wells to provide the water for all the new homes and businesses, and quality-of-life necessities such as parks and libraries.

Paying for the amenities to support past growth or to meet the needs that new development brings is an issue that all the counties in Four Corners are trying to solve — with varying degrees of success.

But money isn't the only issue. There is also the matter of acquiring the land that is necessary -- land to pave over for roads or on which to build schools, libraries and parks, and land to drill through to get to underground water sources. With rural and agricultural lands disappearing quickly to the developers' bulldozers and graders, property values throughout Four Corners are skyrocketing, making it more and more difficult to set land aside for public purposes.

Local officials have a tool at their disposal that is used sparingly to acquire the needed land. It's called eminent domain, and it allows county governments and municipalities to take privately owned property to use for the public good.

But Linda McKinley, the deputy county attorney for Polk County, said recently there are rules that put restrictions on governments by limiting their ability to use eminent domain powers to take a citizen's property.

"To use eminent domain, it must be proven that there is a compelling public purpose to acquire the land," McKinley said.

In the past, she said, Polk County has used eminent domain to condemn property for road construction and drainage purposes, both of which have been accepted by the courts as a public purpose that supercedes personal property rights.

"You can condemn for parks, recreation and schools, too," McKinley added.

The question came up in recent weeks as to whether eminent domain could be used to acquire land necessary to site wells in northeast Polk County where the county's severest irrigation restrictions are in place because of the strain growth has put on the water supply.

County Commissioner Paul Senft and the county's water resources manager, K.V. Duke Clem, have said past promises to provide new wells in the area have had to be put on hold because of the difficulty of finding property to put them on.

"The problem is getting landowners to let go of the land for the wells," Clem said at a water resources meeting recently held in Four Corners.

With property values increasing as they are, he added, owners are unwilling to give up the five acres it takes to sink and maintain a single well. That led to the question of whether the county's powers of eminent domain could be used to acquire the land. Clem said he didn't know if that is a proper use of eminent domain.

"I've never seen one (condemnation) done for a well," McKinley said. "That doesn't mean it couldn't be done."

The major issue, she added, is whether the well could be just as easily located elsewhere than on a specific piece of property.

"You have to prove a reasonable necessity for that particular spot," she said, citing the law governing the use of eminent domain.

There is little question that providing a water supply is a viable public purpose, McKinley said. The question is, what makes one well location more essential than another.

That is not the issue when it comes to siting such things as schools, roads or parks, all of which are pretty much area-specific in that they serve certain neighborhoods or districts.

Jay Wheeler, who holds the District One seat on the Osceola County School Board, said he is all for the use of eminent domain for acquiring land for much needed schools. Osceola County, he said, is growing so fast that 29 students — one full classroom — are being added to school rolls each day. That is making it difficult to build schools fast enough to accommodate the influx of new students.

"I don't want to displace folks who live (on their property)," Wheeler said. "But if it makes sense to put a school in a certain location, I don't want to get what (price) they decide to give us."

The "they" he was referring to is developers who often set aside land within their development for new schools. Poinciana developer Avatar, Inc., for instance, is well known for donating land for public purposes such as schools.

"I've never seen a case of eminent domain in Poinciana," said Jeanette Coughenour, manager of the Association of Poinciana Villages. "The developer always seems to come through when something is needed."

Coughenour said one problem with the use of eminent domain is that it often results in litigation by the property owners.

Another of the rules of eminent domain is that in order to take a property, the government must pay a fair market price to the owner. Just what is the fair market price for a specific parcel is often disputed by the property owner, Coughenour said.

"That tends to take a long time," she said. "You don't want to be tied up in court all the time."

Counties often find other ways to get the land they need for certain projects. In some cases, such as the building of new roads, governments will negotiate with property owners in order to reach a price that is equitable to both rather than use eminent domain. That, said Osceola County Commissioner Atlee Mercer, is the case in the planned construction of the Poinciana Parkway, the road that should provide a much-needed additional exit point from the sprawling community of 52,000 that spreads over Osceola and Polk counties.

In other cases, such as the road in Polk County now being called the Green Swamp Trail, visionary planning in the past provided much of the land the two-lane road, which will run somewhat parallel to U.S. 27 and ease traffic on the four-lane highway, will use.

The Green Swamp Trail was planned by the county years ago before the abundance of subdivisions were build to the west of U.S. 27. Foreseeing the amount of growth that was expected to come to the area, Polk County made it a requirement of developers to set land aside for the roadway before their construction plans were permitted.

So the land is available to the county when it decides to build the road to run from the Polo Park neighborhood just south of the Polk/Lake county line south to Deen Still Road and possibly be continued farther south to where the Posner development is being built in the area once known as Baseball City.

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The Ledger: www.theledger.com

Grassroots to host debate on eminent domain: York (PA) Daily Record, 6/16/05

Participants will include York County commissioner and Realtors representative

By Teresa Ann Boeckel
Supporters of a proposed park at Lauxmont Farms will debate a Realtors association official this month about the use of eminent domain.

Grassroots, a local organization, is hosting the debate at 7 p.m. June 28 at Sam and Tony's Celebrations, 243 W. Market St. in York.

Grassroots is not taking any side on the issue, said Linda Seligson, a member of the advisory committee. The purpose is to inspire public debate.

Panelists will include Doug Kilgore, York County vice president commissioner; Jackie Kramer, executive director of the Farm and Natural Lands Trust; and Steve Snell, executive officer of the Realtors Association of York & Adams Counties Inc.

York County commissioners voted 2-1 last year to take a parcel, known as Highpoint, by eminent domain for a park overlooking the Susquehanna River in Lower Windsor Township.

Lancaster County developer Peter Alecxih Jr., who planned to build homes on the 79-acre parcel, is fighting the taking in court.

County officials remain in negotiations with the Kohr family, which owns Lauxmont Farms. If talks fail, the county would consider using eminent domain, President Commissioner Lori Mitrick testified in court last week.

Kilgore said he will talk about the benefits of the park project and the plans for it.

"I think we have to do everything in our power to get out and talk about the project and the benefits of it," he said. "I think the more information we can get out to the people, the better we are."

Snell said he isn't interested in talking about the park. He wants to address Highpoint and the issues that eminent domain raises.

Snell said he decided to participate in the debate because the issue has lacked a thorough public discussion.

Seating will be limited for the debate, Seligson said. It will be first-come, first-served.

• At issue: York County officials want to acquire part of Lauxmont Farms, a parcel known as Highpoint and some neighboring utility lands for a proposed park in Lower Windsor Township. Supporters call it the Susquehanna Riverlands Preservation Project.
  
• The latest: Grassroots, a local organization, is hosting a debate on eminent domain. The county used that power to condemn Highpoint and may use it if negotiations fail in attempts to acquire Lauxmont Farms.
  
• Debate time: 7 p.m. June 28 at Sam and Tony's Celebrations, 243 W. Market St. in York. Seating is limited to 150 people.

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York Daily Record: http://ydr.com

Builder says no eminent domain use in Neptune: Asbury Park (NJ) Press, 6/14/05

4-BLOCK AREA IN QUESTION

By Dan Kaplan
The organization likely to redevelop a nearly four-block stretch of West Lake Avenue [in Neptune] is hopeful no properties will be taken by eminent domain to make way for the project, its executive director said Monday night.

Trenton-based nonprofit CityWorks' Executive Director Tom Clark said at the Township Committee meeting that he is confident his organization can negotiate with the approximately 15 affected properties — including three homes — to avoid eminent domain, by which government acquires private property for public use.

"Businesses that are currently viable, we absolutely want to remain there," Clark said, citing two taxi companies, a barber shop and a restaurant as merchants he hopes to include in the $20 million to $25 million project.

The plan, Clark said, is to offer business owners the option of relocating their businesses as tenants. Or, he said, the businesses can use the money they make selling their buildings to purchase a piece of the project.

A resolution naming CityWorks to serve as the project's redeveloper was listed on Monday night's agenda but was not voted on before press time.

Tentative plans call for the construction of a minimum 30,000-square-foot medical and government office building at West Lake Avenue and Route 35, Clark said before the meeting. And 25,000 to 30,000 square feet of retail and commercial space — with 40 residential units above — would be constructed to the east, he said.

Bessie Wade, a nearly 50-year resident of West Lake Avenue, said she supports the plan, as long as it will cater to township and Asbury Park residents.

"I think it's good if they are going to develop it in the right manner," Wade, 78, said as she left the meeting. "Maybe it'll bring in other people to see what's going on in (the) Midtown (section)."

The project would reinvigorate an area with many vacant storefronts that was devastated by the Asbury Park riots 35 years ago, Clark said.

"We know that the community still exits," he said. "And we know that the community needs to be served."

"This is not gentrification," he added before the meeting. "This is economic development. This is not a Starbucks project."

Mayor Thomas J. Catley said that for the committee to endorse the project, in the works for more than five years, members need to know that jobs and business opportunities will "flow to the community itself."

That's the idea, Clark said, adding that the project will provide tax relief for all residents.

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Asbury Park Press: www.app.com

Supreme Court and eminent domain issues: The Cleveland (TX) Advocate, 6/14/05

By Jim Jones
The city of Cleveland is not alone in finding itself caught in the middle of a struggle between the rights of private property owners and the desires of states and cities to utilize limited space to benefit the public.

The Institute for Justice states that in just five years there have been approximately 10,000 declarations or threatened declarations of eminent domain in 41 states.

Eminent domain is a constitutionally protected practice that allows government bodies to condemn properties, most often blighted or slum areas, in order to construct public use projects such as roads or hospitals. Governments wishing to take private property must pay fair market value to the owners of that property.
The practice has been in effect for the greater part of this country's history, allowing railroads and canals to be built in earlier times.

In current times there are growing conflicts over these takings. Unlike the issue here in Cleveland, many governments are trying to stretch the boundaries by expanding the definition of what constitutes "the public good." One case in particular made its way to the Supreme Court when arguments were heard in February.

The case, Kelo v. New London, pits a handful of homeowners and small businesses against a Connecticut city wishing to condemn their property. While city officials here in Cleveland wish to proceed with the construction of a city hall explicitly for public use, officials in New London and other areas are attempting to say that any new development that will increase tax revenues may merit the use of eminent domain. In addition, New London has given its power of eminent domain over to a private development group, The New London Development Corporation.

This, according to the Institute for Justice, turns governmental power over to private corporations who do not have to answer to voters or taxpayers.

Concerns of abuse are being reported across the country and could worsen if these less restrictive guidelines are the norm. Under intense questioning from Supreme Court Justice Antonin Scalia, the New London attorney admitted that any property that could yield higher tax payments is vulnerable when he agreed it would be acceptable to condemn and take a Motel 6 so it could be converted into a Ritz-Carlton if it produced more tax money.

The Institute for Justice, representing Kelo, states this kind of thinking guts the rights of every private property owner since nearly everyone's home or community would generate more tax revenue if it were replaced with a shopping mall or giant warehouse store. When pressed by another justice as to why private developers simply didn't buy out the homeowners, New London Development Corporation's attorney stated that the developers needed to have the threat of eminent domain to prod home and business owners to sell their property, and that takings for "economic development" were no different than taking private property to build a school.

This line of thinking has broken out across states such as Ohio, Kansas and Michigan, where private property has been taken from its owners for such things as parking lots for General Motors, and distribution centers for Target.

Property owners and their supporters as well as state and city governments should find new guidelines on eminent domain handed down to them soon, as the Supreme Court is expected to announce its ruling later this month.

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The Cleveland Advocate: www.zwire.com

Speakers square off over greenway: The Union-Recorder (Milledgeville GA), 6/10/05

By Keich Whicker
Of all the rhetorical fireworks at the public hearing about Baldwin County's proposed budget Tuesday, those regarding the funding of the Oconee River Greenway Authority and the proposed greenway project were the most incendiary.

Five people addressed the commissioners during the appearances portion of the meeting. Three speakers were against the greenway, two in support - although there were about another half dozen residents in attendance with "Greenway Supporter" stickers affixed to their chests.

Jim and Mary Purcell, who own property in Wilkinson County along the Oconee River, were not among them.

They believe the greenway should not receive the $75,000 currently earmarked by the county in its 2006 budget to cover ORGA's operational costs because they view the authority as an entity bent on controlling the river and its tributaries and keen to seize private property. They also believe the public is being misled by the authority and its supporters.

"After reading the documents and requesting and receiving a copy of the mission statement from (ORGA), my husband and I discussed the possibility that the general public was being spoon-fed information on an as-needed agenda basis," Mary Purcell told the commissioners Tuesday.

"House bill 596 (which created ORGA) allows (ORGA) to control the Oconee River and all impounded waters of the Oconee River," she said. "What I anticipate is a taking, which will allow the authority to control a corridor along the banks of the Oconee. Who will do the taking? I called the state attorney general's office and was told that all (ORGA) had to do was ask and they would have the power for a condemnation or a taking."

Alison Spencer, an assistant attorney in the state attorney general's office, told The Union-Recorder on Wednesday that ORGA did not have the power to condemn or take ownership of private property. She also said the legislation that created the authority did not grant it control of the river on any other impounded waterways.

She also said she thought it was unlikely anyone in the attorney general's office informed the Purcells that ORGA only needed "to ask" for such powers, as the authority was only empowered to do what was explicitly spelled out in its legislation.

To acquire the power the Purcells believe ORGA already possesses, the authority would have to seek amendments to its legislation, which would have to be approved by the General Assembly.

Mary Purcell also argued that the bill and its subsequent amendments granted ORGA the authority to control properties that border the greenway's property on the river, and stated that she believed commissioners from a variety of counties would be asked to condemn land so that it could be taken over by the authority and create a lengthy greenway corridor down the river.

Both the chairman and executive director of ORGA denied this.

"That is patently false," said Peter Boylan, who is president of Georgia Military College and chairman of ORGA. "In fact, the attorney general has rendered an opinion that the greenway does not have that power. The greenway will not encroach on the property of any landowner who does not wish to provide a property easement."

Jim Purcell followed up his wife's comments with questions about the integrity of the 2004 economic report produced by Dr. Faye W. Gilbert and the J. Whitney Bunting School of Business at Georgia College & State University, which claimed the greenway could benefit the city and county's economy by as little as $325,560 or as much as $5,331,102 per year.

Purcell said the report was based on broad assumptions and a lack of projections for the specific aspects of activities associated with the facilities.

"If you think greenway is a gold mine for Baldwin County, you may believe in fool's gold," he told the commissioners. "They have not been forthcoming. They have not told you everything that they are up to, they just told you what they wanted you to hear."

Gilbert said her report was never intended to be a specific forecast of the future. Her goal was look generally at what might be possible if a greenway were constructed.

"You cannot pinpoint sales forecasts in the absence of data," she said. "So the whole point of this report was to estimate the potential and to paint different pictures of what might occur for this greenway."

Gilbert also stressed she was not biased either way with regard to the greenway, and pointed to her use of three different methods in the report as evidence of her efforts to ensure the accuracy of its final estimates.

"That's the reason to do three different approaches," she said. "For me personally, my academic task was to paint some potential pictures of what might occur."

Boylan shrugged off the assertions of the Purcells and argued that the greenway would be a positive addition to the community that would improve local economics, aesthetics and quality of life.

He said the river was an important resource and that residents should be able to view the river, to use the river and realize the other advantages that come to communities with rivers flowing through them, all of which were almost impossible now, given the current conditions along the riverbank.

"Presently, the Oconee River is an uninviting resource, lined with privet and trash," he said. "Shouldn't our citizens be provided the opportunity to share in this wonderful resource by visiting it and be able to walk along it, enjoying the scenery?"

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The Union-Recorder: www.unionrecorder.com

Owner raises issue of property rights: Newark (NJ) Star-Ledger, 6/12/05

Letter to the Editor
By George Mytrowitz, Newark Business Owner
Newark’s mayor and council election is a year away but candidates are already lining up and making declarations about what they will do to create a better Newark. As a long-time Newark property owner, I hope that some of these candidates come forward to address the vital issue of the future of property rights in this city.

The current administration seems to care nothing about private property and is more than willing to take homes and thriving businesses and hand them over to politically connected builders. Not surprisingly, the developers most favored by city hall are also important campaign donors to the mayor and council.

Redevelopment is important to any older city such as Newark. However, it must be done with a purpose – to improve the lives of the city residents, not the bottom line of developers. Redevelopment should be done fairly and without the taint of favoritism or political corruption. Too often, the “little guy” is forgotten in the mega million dollar deals: the families that lived here for generations or the business that has been here for decades and dutifully paid their taxes get nothing from redevelopment.

Currently the city is touting the Mulberry Street Redevelopment plan – a $550 million, 2,000 condominium unit project that is displacing hundreds of people and scores of businesses. None of the property owners have been asked to participate in the redevelopment process – we have just been told to sell or the city will take our property.

Newark voters in other wards should take heed of the Mulberry Street project and be very wary of their future property rights. The city council is taking steps to make condemnation of private property for redevelopment easier as it moves to take control over more and more neighborhoods. Your house, your business could be the next victim of the mayor and council’s desire to cut deals with developers. Before considering who you will back in next year’s city election, you should demand to know which candidates will protect your right to own private property – and which ones will take your home and give it to a developer.

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Newark Star-Ledger: www.nj.com/starledger

Connecticut Property Case Could Affect Glens Falls, NY: (Glens Falls NY) Post Star, 6/10/05

By Maury Thompson
The U.S. Supreme Court is expected to soon decide a property rights case that could have ramifications on future development projects in downtown Glens Falls, N.Y.

In the case, homeowners in New London, Conn., argue that the city illegally used eminent domain to take their homes in order to redevelop the neighborhood for a hotel complex and luxury townhouses.

Eminent domain, also called condemnation, allows property to be taken for public use — provided there is adequate compensation.

Lawyers for the homeowners say taking property under a comprehensive urban renewal plan does not meet the standard of "public use" that entitles municipalities, school districts and some quasi-government agencies to take property by eminent domain.

The potential to lower the general tax burden, in and of itself, does not constitute a public use, property rights advocates say.

Those advocates say this case — if decided in the homeowners' favor — would substantially rein in the use of eminent domain for economic development practices that courts have generally allowed for more than two decades.

"It will affect every property owner across the country," said Steven Anderson of the Institute for Justice, a property rights group representing several New London homeowners.

The use of eminent domain became an issue in the Glens Falls mayoral race earlier this year when the Warren County Conservative Committee endorsed city 2nd Ward Councilman Peter McDevitt, largely because of his opposition to using eminent domain to acquire the Burger King property at the corner of Glen and Warren streets.

BBL Inc., an Albany-based development group, had proposed building a hotel complex at the site adjacent to the Glens Falls Civic Center, but owners of the Burger King said they're not willing to sell the property.

McDevitt and others have also said that Glens Falls Mayor Robert Regan may use eminent domain to redevelop property downtown for a Boscov's department store.

Regan acknowledged this week that he is monitoring the New London case closely, but he said he does not know if he will attempt to use eminent domain to facilitate either project.

"The way I look at it, we have a lot of projects we're working on, and we always look for the best ways to accomplish them," he said. "I don't put a lot of energy into thinking about specific mechanisms or get overly focused on them."

Courts have generally upheld the use of eminent domain to facilitate economic development projects since a landmark Michigan Supreme Court case in 1981, when the city of Detroit used eminent domain to redevelop a residential neighborhood for a General Motors plant, said Mark Moller, editor in chief of the Cato Institute Supreme Court Review.

The Michigan Supreme Court, however, recently reinterpreted some aspects of the earlier decision, providing the basis for the New London case.

In New London, Pfizer Inc., a pharmaceutical company, agreed to build a research center in New London, with the understanding the city in cooperation with the New London Development Corp., would develop a 90-acre site along the Thames River for a hotel, offices and luxury town houses.

The research center was completed in 2001, but the rest of the development is in limbo because several home owners have been fighting the eminent domain process.

The argument over eminent domain revolves around the interpretation of 12 words in the Fifth Amendment to the U.S. Constitution: "nor shall private property be taken for public use without just compensation."

Critics of the New London project, such as Moller and Anderson, say the intent was to limit the use of eminent domain to specific projects like roads and schools that benefit the general public.

Allowing local governments to seize property and turn it over to developers leaves the process susceptible to corruption and cronyism, critics say.

Left unchecked, they suggest, officials could target virtually any property for any reason.

"None of us are safe in our homes at all. That's what it comes down to," said Carol LaGrasse, president of The Property Rights Foundation for America, based in Stony Creek.

Regan said that it appears to him that the nation's forefathers wanted to make sure that people whose land was taken received fair compensation.

"The basic ability of a community to control its destiny needs to be conserved," he said.

Regan pointed to the use of eminent domain to acquire property for railroads as a precedent for taking property to facilitate private economic development projects.

"All of those were upheld, and they were 100 percent private companies," he said.

From his understanding of the New London case, it appears city officials may have been able to settle out of court, Regan said.

"It looked like there were some lost opportunities to negotiate," he said.

Money isn't always the issue, however, said Anderson, of the Institute of Justice.

One of the litigants in the New London case is an 87-year-old woman who has lived in the same house since she was born.

Regan said that the 1981 case in Detroit may be an example of when a city goes too far.

Even if the Supreme Court does overturn the New London acquisitions, he said, the court most likely will clarify under what conditions eminent domain can be used for economic development projects rather than reject its use wholesale.

If the court does rule that municipalities can not take properties to carry out comprehensive plans, the city could still take downtown property by declaring it blighted.

Courts have generally allowed municipalities to take blighted properties and turn them over to another private property owner to redevelop since the mid-1950s, experts on the topic said.

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Post Star: http://rismedia.com

Long Branch mayor still favors eminent domain: Asbury Park (NJ) Press, 6/10/05

SUPREME COURT RULING DUE

By Carol Gorga Williams
As the U.S. Supreme Court prepares to issue its conclusions as to the use of eminent domain in community redevelopment cases, [Long Branch NJ] Mayor Adam Schneider remains committed to the process, despite any political price he may pay.

"Maybe the best thing that could happen is they throw me out of office," said Schneider, adding that he could spend more time with his family.

For the last 15 years, Schneider has spearheaded a citywide redevelopment effort that in the last 18 months has produced some opposition.

"I feel comfortable and confident we're doing this the right way," he said.

Schneider and city Business Administrator Howard H. Woolley Jr. shared the dais on Thursday with David Barry, president of Applied Development Co., Pier Village's Hoboken-based developer who also is working with Matzel & Mumford to develop Beachfront North.

They were joined by Jeffrey A. Nadell, director of Urban Opportunities for K. Hovnanian Homes, the proposed redeveloper of Beachfront South, in a presentation before members of The Northern New Jersey District Council of the Urban Land Institute, a nonprofit group that champions "smart growth."

Donald M. Moliver, director of the Real Estate Institute and the Pozycki professor of Real Estate at Monmouth University, moderated the session for professional planners, architects, engineers and developers. The afternoon was billed as a case study of the redevelopment process, with Long Branch as a successful model, according to the institute.

The panel discussed the increasing unpopularity of using eminent domain to acquire properties for urban redevelopment, and Schneider said despite any hits he may take, he believes it is the only realistic way to amass properties for redevelopment.

"If elected officials look at urban decay . . . and leave it alone, then they are immoral. If we had left it alone, we would not have done our job," he said, describing an oceanfront filled with slums and troubled by high crime.

"What is the alternative?" Schneider asked, adding that "market forces" were never going to bring change.

Schneider said redevelopment was successful in his city because most people supported it and because he had the backing of the council. He said some politicians are "playing to that crowd" when they suddenly start to oppose redevelopment.

"I would not venture down that road with that kind of politics in my town," he said. "I never saw this as my vision. I don't consider myself a visionary at all. I was smart enough to listen to smart people, and I got the public involved (by) asking them what they want in their town."

Schneider said in the second phase of Beachfront North, homes valued at $60,000 to $90,000 have received appraisals placing properties in the $500,000 to $600,000 range.

"You couldn't walk these neighborhoods at night," Schneider said. "Nobody would come here. We had to do it."

He said of the pending Supreme Court case that "if they tell me the rules of the game have changed, and I have to stop what I'm doing, I'll stop."

But he said he doesn't think that is likely.

"Without eminent domain, you can't redevelop the area in any meaningful way," said Barry.

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Asbury Park Press: www.app.com

Eminent domain used for new school: (Woodland CA) Daily Democrat, 6/10/05

By Kat Isaacson
In anticipation of an influx of new students during the next five years, architect Dwayne Evans has submitted an updated design for a new Esparto High School on 64.55 acres along County Road 85B, between Highway 16 and Grafton Street.

Administrators are working with the architect to design a high school that would initially accommodate 600 students and eventually as many as 2,000.

However, EUSD is currently in court attempting to enforce eminent domain authority to obtain the property from landowner David Denebeim, who bought the parcel in 1994. Under current law, eminent domain allows school districts to disregard the zoning classification of any land parcel and purchase the property regardless of whether landowners want to sell.

"Schools are unique in their ability to take land; if you or I wanted to do this, we couldn't. It's not unusual for them to take ag land. From my perspective as ag commissioner, it's very counterproductive," said Yolo County Agricultural Commissioner Rick Landon.

EUSD Chief Business Officer Tim Brock said the school district will be purchasing the land by relying heavily on developer fees, which are paid per square foot to EUSD. Brock added the funds are kept in an account and are only spendable on "providing facilities."

Eminent domain hits hard for landowner

But the issue is sensitive for Denebeim, who said he is reluctant to forfeit the land, though he realizes the school district will purchase his land regardless of his wishes.

"Basically, the school district said, 'We can do this the easy way or the hard way, but either way it's going to be your property,'" said Denebeim, a certified public accountant in San Francisco who fell in love with Yolo County during the early 1990s while helping a friend with his beehives. "I initially had a lawyer when the school district contacted me two or three years ago and he wrote them letters and they backed off. But then he retired and moved to Oklahoma and all of the sudden in January, they're calling me again. It just kind of shattered my dreams."

The school district then filed a lawsuit against Denebeim several weeks ago to force his compliance and gain "right of entry," which Brock said has gone fine thus far, with no court appearances necessary.

"There was some resistance ... we need a 'right of entry' to gain unhindered access to the property for testing," said Brock. "But I think we're going to come to an agreement."

Yet Denebeim said he talked to several different attorneys who advised him the school district would get the land regardless of whether he fought them in court. Denebeim said the district originally offered him $450,000 for his property, but after conducting his own research on comparable prices, he realized it was worth much more.

"I told them to back off ... that what they were offering is way too low," Denebeim explained. "So they filed with the judge to force me to let them onto the property ... They said they want the land for a good cause and I said 'Bull.' I don't consider paving over the best farmland in the world a good cause."

And various community members feel the same way, including Esparto resident Brian Paddock, who's lived in the community for about five years.

"I feel that the school district is behaving improperly when they act under a cloud of secrecy with public money to secure their wishes. Information like this should have been released to the media and public long ago," said Paddock. "I even asked a school board member months ago what the progress was on the property and he told me he could not discuss it. I wonder if they are holding off discussing this with the public until the deal is done?"

But Brock explained the EUSD is attempting to take Denebeim's property "under the threat of eminent domain" - that is, the school district is enforcing its eminent domain authority, though the slightly altered language would allow Denebeim to receive a tax break on the sale of the property.

And the school district does have several "good" reasons to eye Denebeim's property; specifically, the property sits adjacent the Winters Canal and enjoys unlimited water access, an aspect hard to come by in California and especially attractive for schools. The acreage also receives good sunlight all year long, little fog and little frost which affects Capay Valley during cold weather as well as a Delta breeze which Denebeim said keeps the area very cool during especially warm weather.

He also stated the property is not ancestral or inherited, inclining him to feel slightly less attached to it, though he described the property and Esparto as a place he could build his "dream home."

District Superintendent Tom Michaelson added he understands concerns from the community, however, with a rapidly expanding community and the school district expecting an additional 600 students within the next five years, there's little choice but to accommodate Esparto's growing educational needs.

"Some people feel there might be other properties we could build on," Michaelson explained. "But we really haven't met any other viable options ... I know there's divided opinion but we took a large amount of time to look at alternate types of properties."

Yet just recently, due to the expensive nature of the lawsuit and the time and energy it's costing him, Denebeim said he finally decided to give the school district a dollar amount he'd be willing to settle for. Though he bought the land intending to continue farming and later retire there, he said he realizes the school district will eventually take the property and he doesn't necessarily mind selling it - but he doesn't want to "get screwed over" financially during the process. But the CPA said the district has been playful regarding an agreement, though he feels his offer is fair and the administration has implied they'll most likely agree to the amount.

"We're actually very close to reaching an agreement, I think," said Denebeim, who's scheduled to appear in court with school district officials, Tuesday.

"Except they keep pushing the court dates back so I don't know if they're playing a game with me; I'm a little unsure ... I just want to get this settled; I just want to be treated fairly," he added. "I don't want to have to settle this in court."

County officials hold misgivings about site proposal

The 64.55-acre site is currently being reviewed by Landon for comments and suggestions, but the commissioner said the proposed site will be doubly difficult for EUSD to obtain because it's protected by the Williamson Act. He added he feels the school district would be wise to look elsewhere for a new high school site, given the effect a school would have on surrounding landowners.

"Our office has a lot of concerns for this ... I told them in the beginning and I'll tell them any time they want - I don't think it's a great idea. A new school is the most impactful thing I can think of," Landon said, who added he recently wrote a letter to the district expressing his disapproval.

The Williamson Act restricts prime agriculture land to uses compatible with agriculture, wildlife habitat, scenic corridors, recreational use, or open space. Records at the Yolo County Assessor's Office show Denebeim maintains a contract with the county to protect his land under the Williamson Act; however, the contract can be canceled if otherwise found to be in the public interest.

Evans said the school district would pursue canceling Denebeim's contract should EUSD move forward with its plan to purchase the land. Should the school district wish to cancel the contract they must receive approval from the county's Board of Supervisors, noted Sargit Dhaliwal, associate planner with the county's Planning and Public Works Office.

"A school would have a negative impact on surrounding growers, because it's very conducive to city growth," Landon explained. "Typically, putting a school in the middle of ag land causes the city to grow around it because that's where everyone wants to live. It wouldn't surprise me if in another twenty years, Capay Valley and Esparto saw a lot of growth."

But putting the school in the middle of suburban areas is exactly what Evans said he originally desired to do. The architect, who previously designed Janesville Elementary and Richmond Elementary in Janesville and Susanville respectively, said he'd prefer to build the new high school closer to Esparto's city center, but acquiring a parcel of land that large would be difficult to achieve. Evans added he'd like to find a place closer to where students live but "it's just not reasonable."

Supervisor Frank Sieferman Jr. said he recognized the agriculture preservation and traffic issues involved with building a new high school on the property, adding the purchase is " not an easy choice ... but this is not a done deal."

"Their needs are great ... and it looks like no matter what is done they're going to pursue this," Sieferman said. "We're going to have to work through the process with the school system and city staff."

Other issues affecting the site proposal

The proposed site will also come with a number of other serious issues attached, including its current zoning classification as protected prime agriculture land, various "ag buffer zones" situated around the proposed site and high traffic already flowing through CR-85B, an often-used alternate route for Highway 16, Interstate 505 and roads near Cache Creek Casino. Various residents in the Esparto community have also noted concerns regarding other privacy invasions such as stadium lights and noise.

"Putting up with the traffic is just part of the community," Evans remarked. "We've been working with a traffic consultant and a traffic engineer who have been conducting studies and there's not that high of volume of traffic on 85B. We're not anticipating any problems."

Michaelson said traffic studies recently conducted in anticipation of the new high school have actually shown traffic has slowed and even reduced around CR-85B. He added additional suggestions regarding how to avoid traffic and safety hazards will be sought from Esparto's Fire Department as well.

The proposed site for the new high school is spacious compared to the 10 acres Esparto High currently sits on, though with the inclusions of sports fields, a stadium with a track and a 100-yard football field, the parcel provides less space for construction than would be ideal, Evans said.

Most of the school site will be constructed upon flat land, though one section will sit upon a ridge included in the acreage. Evans added he'd like to include a student activity area within the vista to maximize students' experience at the new high school.

The proposed site also falls within the vicinity of various agricultural "buffer zones," commonly known as the number of feet from which any person must refrain from entering around agricultural land that has been sprayed with herbicides or pesticides. Biologist Elpidio Tijerino, with the Yolo County Department of Agriculture, explained there are multiple orchards, vineyards and other ag land surrounding the proposed school site, which will upset farmers and landowners required to maintain a quarter-mile buffer zone around the school site, due to the nature of sprays and oils used on orchards.

Landon said within the last year only two sprays have been used on the land by Denebeim - "Round-up," a herbicide with a half-life of two to 174 days and "Abound," a fungicide with a half-life of several months. Landon explained because both have such short half-lives - that is, half of the amount of time it takes for a herbicide, fungicide or pesticide to dissipate - neither will affect students, staff, administration or any livestock by the time the new high school is built. He said Denebeim remains environmentally friendly, often using a worm bacteria poison - "Dipel" - for bio-control which causes worm's death during digestion.

Landon said he believes any herbicides or pesticides used in the area currently will have little residual effect in the future, though he stressed farmers and landowners surrounding the proposed site will not be happy given the required quarter-mile buffer zone they'll be required to maintain around the school.

Dave Guerrero, with the county's department of agriculture, said before construction can begin, the site must also be approved by the county's Board of Supervisors.

The school district will also need to seek appropriate permits before any construction begins, Michaelson added.

Are there other options?

Michaelson said the school district has spent time looking at about 10 other properties within Esparto's vicinity, though they've been hard-pressed to find any which provide enough space for current needs as well as future growth.

"In general I think the concept is great; (Tom Michaelson) is definitely on the right track," said Paddock. "And I understand the constraints they're under. But I'm not totally convinced the school district or Tom Michaelson is fully committed to understanding the concerns of the community."

Paddock also said he believes the school district would be making a "really bad move" if they enforced eminent domain authority over Denebeim, adding that building the school on CR-85B could be risky, given that "more and more people have discovered that road as an alternate route for Highway 16 and other roads around (Cache Creek) Casino."

Evans said the Esparto school district and his design team are also working with Pamela Wee, an engineer with Sacramento County's environmental department, to complete the necessary environmental reports needed to purchase the proposed school site.

Calls made to Pamela Wee at her office were not returned by press time.

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Daily Democrat: www.dailydemocrat.com

'Public use' could trump private rights: Orlando (FL) Sentinel, 6/9/05

By Mike Lafferty
After hearing a brief description, Dana Berliner feels fairly certain that I live amid blight.

My neighborhood, for example, has dirt roads, which could qualify as "defective or inadequate" roadways under Florida's definition of blight.

The lots are mostly 2½ acres, which might mean my neighborhood has an "inadequate and outdated building density pattern."

"No problem designating you" as blighted, concluded Berliner, a senior attorney with the Institute for Justice, a civil-liberties organization.

Of course, Florida law is used so broadly that there are few places that you could say with certainty are not blighted.

Which makes life very convenient for local governments that wish to create redevelopment districts and need an official finding of blight to do so.

Redevelopment districts are places deemed as run down and in need of money and attention.

It seems like such a worthy cause.

Too bad this zeal to rescue downtrodden downtowns and ragged resort areas have devolved into government-sanctioned thuggery.

Berliner's 2-year-old report — "Public Power, Private Gain" — was an exhaustive study of governments' use of eminent domain power to force the sale of private property.

This might not seem so bad if the seized property went toward a park or a road or a library or even a stinky sewer plant.

Reasonable people agree that is what the Constitution's Fifth Amendment must have intended in allowing governments to take private property for "public use."

Instead, governments are forcing sales and handing property over to wealthy guys who want to build malls or hotels or offices that will generate truckloads of tax money.

"Public use," it seems, now extends to "economic development" and "making developers even richer than they already are."

In New London, Conn., "public use" meant taking an old neighborhood to make way for shops and housing more suitable to the suits who work at Pfizer's nearby research headquarters.

Not everyone in New London went quietly, filing a lawsuit that went to the U.S. Supreme Court, where an attorney for the city argued that seizing a Motel 6 and turning it over to Ritz-Carlton is OK.

The supremes are supposed to decide soon, but some places are not waiting.

In Utah, where one city tried to take homes to make room for a Wal-Mart, lawmakers recently approved a law restricting the use of eminent domain in redevelopment areas.

Which brings us to Volusia County, where Daytona Beach is slobbering over a California developer's $115 million plans for a new lodging and entertainment complex that will provide happiness, prosperity and additional tax revenue.

All that stands in the way are a couple of pesky property owners who have a problem with Daytona Beach ordering them to sell for the benefit of a private developer.

The property owners are scheduled to get their day in court later this month.

The stakes? If Daytona Beach wins, it gets a shining city on the ocean.

The rest of us lose a little more freedom.

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Orlando Sentinel: www.orlandosentinel.com