Town-church property rift up to federal judge: Rochester (NY) Democrat and Chronicle, 11/16/05

By Fernando Diaz
A federal judge on Tuesday heard arguments over a motion to dismiss a lawsuit that alleges Brighton's eminent domain of a church's land restricts the church's right to practice religion.

U.S. District Judge David Larimer said that he would issue his decision "very soon."

Faith Temple closed on the purchase of 66 acres of land along Westfall Road near Winton Road to build a religious complex on July 15, but Brighton wants the land to expand the adjacent Buckland Park.

The town initiated eminent domain proceedings shortly thereafter, because by then it was prepared to pay for the parcel with voter-approved bonds.

Faith Temple countered by filing lawsuits in both federal and state courts.

In May, the church lost its fight in the state Supreme Court, which ruled that the church failed to prove the town was attempting to limit the church's exercise of religion.

So far, Larimer has allowed the church to finish its purchase of the land and kept Brighton from fully undertaking eminent domain proceedings.

The state ruled on constitutional grounds and could not issue a ruling on a federal statute, which is where the case is currently being contested.

Brighton's attorneys said Tuesday that Faith Temple's argument is based on a statute enacted by Congress that does not apply to the law of eminent domain procedure.

Attorneys for both sides agreed that the Religious Land Use and Institutionalized Persons Act, passed in 2000, codified provisions guaranteed by the Constitution intended to protect religious exercise.

But William Bauer, who represented Brighton, said the law specifically referred to "land use regulation," such as zoning or landmarking laws, and a government's eminent domain powers are neither.

But an attorney for Faith Temple cautioned Larimer that he could set a dangerous precedent by throwing out the lawsuit.

"It would be ironic for the town to do by condemnation what it could not do by zoning," argued David Cook, who represents Faith Temple.

Cook argued that the Religious Land Use Act was intended to protect religious organizations from governments specifically targeting them. Dismissing the lawsuit could allow municipalities to circumvent its intent in the future, he said.

Brighton Supervisor Sandra Frankel said the town is "confident that Judge Larimer will give this matter his thorough and thoughtful consideration."

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Democrat and Chronicle: www.democratandchronicle.com

Mayor sees developing problem in Ventnor: The Press of Atlantic City (NJ), 11/21/05

By Michael Pritchard
Ventnor Mayor Tim Kreischer has only to look to neighboring Atlantic City's Southeast Inlet to see his biggest fear for his city. Or rather, it's what he doesn't see - a big shiny casino with the MGM Grand logo on it.

Kreischer sees a parallel between the nonexistent casino - which was proposed, but never built because MGM-Mirage could not acquire the land - and Ventnor's redevelopment plans. Last week, the principal developer in the city's plan to redevelop its northeast section, Pulte Homes, backed off from the project, citing the high cost of land acquisition and a reluctance to turn to eminent domain, which has become increasingly unpopular in the country.

Suddenly, Kreischer is seeing the same "what might have been" in Ventnor as he sees in the Inlet.

"There's a lot of people who feel that MGM would be in the Southeast Inlet right now if they hadn't had the problems they had with acquisition," Kreischer said. "Dealing with land speculators who drive up prices is one of the reasons that you have eminent domain involved with these types of redevelopments. Without it, it's going to be very difficult for any municipality to put forward a redevelopment plan."

And for right now, Ventnor is without it.

Ever since the U.S. Supreme Court ruled in June that New London, Conn., was able to legally seize houses in a middle-class neighborhood through eminent domain and turn them over to a private developer, a backlash against eminent domain has swept the country. Several state legislatures, including New Jersey's, are working to curb municipality power to use eminent domain as have several bills in Congress.

In New Jersey, a proposal has been made to place a two-year moratorium on using eminent domain.

Ventnor is now faced with trying to salvage it's own redevelopment plans in that climate.

"One of the things people don't always realize is that I disagreed with the Supreme Court decision," Kreischer said. "Land shouldn't be taken just because you can find a better use. But I've always said that I don't think it applied to New Jersey. The state has a very stringent set of criteria for proving that an area is depressed and in need of redevelopment. And I think we met that standard every step of the way."

However, telling people that their homes are blighted, even if it meets court standards, is always going to be an emotional issue.

"I don't think politicians ever understand the passion they ignite when they try this," said Richard Gober, who led a legal challenge to Ventnor's redevelopment plan. Though the challenge failed in court, it delayed the project nearly four years, enough time for both land values to rise in the area and eminent domain to come under attack.

"These are people's homes," Gober said. "It doesn't matter if you have a $50,000 house or a $500,000 house. It's their home and people want to be safe in their homes. If you come in and try to just take them, people are going to get their backs up and fight.

"And that's what we did," Gober said. "It's just unfortunate that we had to wait until there was a national outcry against eminent domain to win, but it's wonderful that for the moment, people's homes are safe."

But eminent domain can still be a very instrumental part of redevelopment. Kreischer can point to projects in Atlantic City, where almost 2,000 properties have been acquired over more than 10 years for projects such as rebuilding the city's Northeast Inlet, The Walk and for infrastructure improvements for the Borgata Hotel Casino & Spa. Many of the properties were acquired through eminent domain.

Jim Whelan, who was mayor of Atlantic City during the beginning of many of those projects, understands the dual nature of using eminent domain. During his recent successful run for state Assembly, Republicans attacked him for using eminent domain. At the same time, Whelan could point to the success of those projects in the campaign.

In the end, Whelan won his seat, including winning the vote count in Ventnor.

"I've said all through the campaign that there is a lot of grandstanding going on," Whelan said. "Eminent domain isn't new. It's been around forever. And the New London decision didn't change anything. Politicians that are making an issue of this are just pandering. The state has put in sufficient safeguards to make sure it isn't used too broadly."

Whelan, who advised Ventnor on redevelopment issues, however, stressed that eminent domain will always be an issue that causes political divisions.

"There are always differing opinions on projects, but I think anyone who has ever considered using eminent domain has thought about using it only as a last resort," he said. "It's an emotional issue and it can throw people into turmoil. No one wants to use it lightly and move people out of their homes.

"But at the same time it's a necessary, if difficult, tool for redevelopment," Whelan said. "This is a political climate right now which could kill the redevelopment hopes of cities like Newark and Camden. We were lucky in Atlantic City to get a head start on this. But for officials in those towns, if this attitude continues, it could severely handicap any plans they have."

In the meantime, Ventnor officials are hoping that they can salvage some of their redevelopment project. Although Pulte Homes has backed out of a major redevelopment, Kreischer hopes they can still be involved in a smaller scale project.

However, whether the city will be able to look to eminent domain for an assist will depend on whether opposition to eminent domain remains high and the state Legislature approves the moratorium.

"Things could go two ways," Kreischer said. "This could stop any redevelopment project people are considering, including ours, and nothing gets done. Or communities could just go forward, but without eminent domain they are going to have to pay speculator's prices. Maybe they'll pay four times what a property is worth to put together these projects and it will just cost everybody a lot more money."

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The Press of Atlantic City: www.pressofatlanticcity.com

A Pre-emptive Strike in Eminent Domain Battle: New York (NY) Law Journal, 11/16/05

By Terry Sheridan
A prominent redevelopment group is fighting a high-stakes battle to keep control over the use of eminent domain by proposing changes in Florida's takings law that are friendlier to property owners.

In an attempt to blunt a statewide backlash, a bill by the Florida Redevelopment Association [FRA] would reassure property owners that government agencies could seize property through eminent domain only as a last resort.

The Tallahassee-based consortium primarily of municipal redevelopment officials and planners is proposing to give property owners advance notice of condemnation hearings and as much as 150 percent of the government-appraised value of their land.

Currently, property owners get no notice of hearings and only the appraised value of their land. But critics say the proposal is merely a token effort and that the bill is unclear about how much deference property owners would get before losing their land.

The FRA proposal comes as a special state House committee narrows its focus on issues generated by a U.S. Supreme Court ruling that strengthened government's ability to take properties. In the Kelo v. New London, Conn. decision last June, the U.S. Supreme Court backed the use of eminent domain for private development.

The redevelopment group released the measure last month at its annual conference in St. Petersburg.

"The efforts of FRA are to give as much protection to property owners as possible but still maintain the right to use eminent domain," said Jeff Oris, president-elect of the association and government operations director for PMG Associates in Deerfield Beach.

But attorney Amy Boulris of Brigham Moore in Miami, who specializes in property rights litigation, said the group's proposal gives "only a nod to the concerns of property owners. It's not the real remedy that they want people to believe it is."

The legislative battle began to take shape shortly after the release of the Kelo decision, in which the justices urged state legislatures to take up the issue of takings for private use.

Lead plaintiff Suzette Kelo was one of the Connecticut homeowners whose properties were targeted by the city of New London for use in a project to complement a nearby Pfizer Inc. facility.

The justices voted 5-4 in favor of New London, saying the power of eminent domain could be used for private economic development. But the opinion also said that states could craft their own laws on the subject.

The ruling set off a firestorm of opposition. Florida is among many states considering measures to limit the use of eminent domain and to better define conditions such as blight that would lead to takings.

Florida's eminent domain law allows municipalities and other governments to target property in blighted areas. But the definition of blight in Florida is considered among the loosest in the country and can be liberally applied. For example, the law says faulty lot layouts and inadequate mass transit can characterize an area as blighted.

At the federal level, the U.S. House of Representatives voted last week to withhold federal funding from local governments that use eminent domain for private economic development.

U.S. Sen. Bill Nelson, D-Fla., has co-sponsored a similar measure.

In Florida, property takings will rank among the Legislature's biggest issues in the upcoming session beginning in March, said state Rep. Jack Seiler of Pompano Beach.

Seiler, a member of the House Select Committee on Private Property Rights, expects that a committee bill will emerge from a series of hearings.

"We can craft a good compromise but everyone will have to move -- eminent domain lawyers, community redevelopment agencies, cities and counties," he said.

The FRA has its own fix. Its proposed bill helps frame the argument of government in the oncoming debate. The FRA bill would require:

• Agencies to determine after a public hearing that a taking is essential to achieve the redevelopment plan.
• Negotiations and "all other means" be exhausted in purchase attempts.
• The owner receive a written offer for at least 125 percent of the appraised value at least 30 days before a condemnation.
• Governments to pay at least 150 percent of the appraised value of a homestead property that after the taking will be sold or leased to a private party for redevelopment.
• The owner receive a 15-day written notice of a condemnation hearing by a city commission or redevelopment agency.
• And that if the property is a residence, the owner's relocation expenses to a comparable home be paid, not including attorney or appraisal fees.

"We're not mean-spirited people," said David Cardwell, general counsel to the redevelopment group. "We think there may be deficiencies in the notice and due process provisions for early participation by the property owner, and we're willing to get them involved earlier. The property-rights [activists'] position is that elected officials are evil and just want to take people's property."

Cardwell said the redevelopment group's compensation proposal goes far beyond the current requirement that owners be paid the appraised value of their property.

Instead, owners can be paid the value of their parcel as part of a land assembly of several owners' properties. An assembly, which allows a bigger project to be built, is considered more valuable than individual lots.

But Boulris, who represents property owners in eminent domain cases, and attorney and community and economic development professor Frank Schnidman offered a laundry list of problems in the proposal.

Schnidman, who wrote an amicus brief in the Kelo case supporting the arguments of the homeowners who lost, questioned what the FRA means when it states that a condemned property must be "essential" to redevelopment goals.

"We'll have to litigate that," he said. "What's the definition of 'essential'? I guess the Kelo property was essential because an executive in the new Pfizer building would have to look at those houses to see the river. It's 'essential' to see the river, so they had to take the houses."

Boulris questions whether appraised property values will pay property owners enough for their land.

A more apt valuation would be the fair market value determined by a jury, she said.

What's more, a 15-day hearing notice isn't enough time for owners to prepare their side, Boulris said.

Boulris and Schnidman believe one of the bill's biggest gaps is its silence on blight.

Some consider the existing definition in state law to be too easy to satisfy. In 2002, the state law was changed to allow a property taking if two of 14 criteria were met.

While Cardwell insists the change tightened the blight definition, Boulris and other attorneys believe it made eminent domain easier.

Now, while the state House property rights committee is exploring a two-pronged approach to blight, the redevelopment group is standing by the current law, Cardwell said.

The committee is exploring changes to the blight definition so that the designation would be used differently for eminent domain than in ordinary redevelopment efforts and financing.

Rep. Julio Robaina, R-Miami, and Seiler said it's not yet clear what that would mean.

The committee also is considering whether an entire area can be designated slum and blight, or if each parcel within that area must meet the criteria.

"That causes us some concern," Cardwell said.

One parcel that has been maintained and improved amid nine that are deteriorated could hold up the entire redevelopment effort, he said.

Land-use attorney and property rights advocate Brad Gould of Akerman Senterfitt in Miami, who testified before the committee in October, said it became obvious during committee hearings that the redevelopment association and Florida League of Cities are seeking a trade-off with property rights advocates.

"They're willing to provide more due process and willing to do different things on compensation, but they're very concerned about modifying the criteria for slum and blight," he said.

But Cardwell said that unless the redevelopment group agrees "to never, ever, ever use eminent domain, anything else we do is trying to slip something past everyone."

The House committee's next meeting is scheduled for Dec. 5 in Tallahassee. A final report is expected shortly before the next legislative session convenes in March.

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New York Law Journal: www.law.com

Officials take on eminent domain: Today's Sunbeam (Salem NJ), 11/16/05

By Terrence Dopp
One [NJ] state Senate Republican has introduced legislation placing a two-year moratorium on the use of eminent domain by governments to acquire private land for non-public development projects. The process has caused a furor in communities such as Westville, the Cramer Hill section of Camden and other areas undergoing so-called economic redevelopment of "blighted areas."

"We don't really say what a blighted area is," said Sen. Diane Allen, R-Burlington. "It seems like we're trying to go in and weed out our poor folks and build houses for people of means. That's not what we're about in America."

The issue has been at the focus of attention since the U.S. Supreme Court ruled this summer in the case of Kelo v. City of New London, that the Connecticut community was within bounds in using the condemnation process for economic development. The city wanted to take a "blighted" neighborhood for redevelopment, arguing it amounted to the greater good because it would produce greater tax revenue.

Under her legislation, introduced last Thursday, an 11-member study commission would examine potential changes to current eminent domain laws. Eight commissioners would be appointed by legislative leaders of both parties and three ex officio members would include the attorney general, commissioner of the Department of Community Affairs and the commissioner of the Department of transportation.

"We don't have any (checks) right now and that is the problem," Allen added. "What we really need to do right now is to have the moratorium. Let's take a deep breath and look at what we really want to happen."

While acting Gov. Richard Codey's executive and Senate offices did not comment officially on the matter, Allen and others said the prospects of the bill being heard before January were slim.

"Anything is better than what we have now," said James Pennington Jr., one of two Democrats elected to the Westville Borough Council in two decades. He and running mate Woodrow Dooley focused heavily on a contested plan to include homes and businesses in the Timber Creek area in the borough's redevelopment zone.

Pennington said the cases should be heard before state or county boards specializing in condemnation instead of allowing local councils to have the final say.

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Today's Sunbeam: www.nj.com/news/sunbeam

NH Supreme Court Ruling a Setback for Taxpayers, 11/16/05

Press Release
Pennichuck Corporation expressed disappointment at a recent decision by the Supreme Court of New Hampshire because it means that the lengthy and costly eminent domain battle between the city of Nashua and Pennichuck is not going to end anytime soon.

The state Supreme Court upheld a lower court ruling that the state's current eminent domain law is constitutional. "We are certainly disappointed with this decision in that it eliminates an important opportunity to bring this eminent domain battle to a conclusion," said Donald L. Correll, president and CEO of Pennichuck Corporation. "We had hoped to end this process as quickly as possible. However, it's now likely that it will continue for at least the next two years, resulting in millions of dollars in costs both for the city as well as the company."

Correll pointed out that the Court's decision is but one small piece of what is a very complex, lengthy and costly legal battle, that has already resulted in more than 200 legal filings in this case and this decision could result in hundreds more. "The city still has the obligation to demonstrate that any takeover is in the best interest of the public, that it has the financial and technical capacity to operate the facility, and ultimately, if the Commission authorizes it to acquire the utility, that it is willing and able to pay the price set by the PUC."

"For anyone hoping to stop the excessive drain of taxpayer dollars being spent on this takeover effort, this is clearly a missed opportunity. This is not a victory for anyone; certainly not the taxpayers of the city of Nashua who will bear the financial burden of the city's continued actions," said Correll.

Correll said it is important to recognize that the Superior Court, which issued the order that was upheld by the Supreme Court today, also said that Pennichuck can pursue potential damages against the city at the end of the eminent domain process. This action, if successful, could result in the city being liable for many millions of dollars in damages. The Superior Court further said that Pennichuck maintains the right to pursue a jury trial after a decision by the Public Utilities Commission.

"We will continue to vigorously pursue the merits of our claims before the PUC and in the Courts in order to protect our customers, employees and shareholders as we move forward," said Correll. "We continue to believe that it is wrong for government to take over a private company, especially one that has served the community for more than 153 years."

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Pennichuck Corp: www.pennichuck.com

Taft signs eminent domain law: Dayton (OH) Business Journal, 11/16/05

[Ohio] Gov. Bob Taft endorsed a statewide moratorium on the use of eminent domain to seize private property for economic development efforts.

Taft signed the bill into law Wednesday afternoon. The moratorium is in place until Dec. 31, 2006.

The law halts any community from taking private property without the owner's consent if the property is to be used as part of a development project. The law also establishes a task force to study eminent domain and its application in Ohio.

The law is in response to an earlier U.S. Supreme Court decision, Kelo v. New London, which upheld the right of local governments to seize property through eminent domain for use in a private development.

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Dayton Business Journal: http://dayton.bizjournals.com

Daytona residents' suit tossed: Orlando (FL) Sentinel, 11/17/05

Fearing federal seizure of homes, they challenged a 'blighted' label

By Ludmilla Lelis
A circuit judge has thrown out a lawsuit from a group of Daytona Beach homeowners who challenged what they fear is the first step toward a government seizure of homes in their historic beachside neighborhood.

Circuit Judge J. David Walsh upheld a decision by the Daytona Beach City Commission to call the beachside neighborhood "blighted" by dilapidated buildings, crime and other hazards.

A group of residents had challenged the blight designation, concerned it could empower the city to force them to sell their homes for redevelopment. The area includes 48 homes west of State Road A1A on nearly 7 acres between International Speedway Boulevard and Silver Beach Avenue.

Though city officials don't have immediate plans to condemn any homes in the neighborhood, resident Peter Colt said Wednesday that with the blight designation in place, it could easily happen.

"Nobody's home or property is safe," Colt said. "It just goes to show you how government is out of control, and there's no way around it."

He and his neighbors don't think their beachside community is a slum. The neighborhood has many older homes built during the 1920s, '30s and '40s, some of which were named to the National Registry of Historic Places. Colt lives in a historic bungalow, with neighboring houses that have coquina walls, Spanish mission-style architecture, hardwood floors and mature trees.

Since talk of takeover came to his neighborhood, he has become an activist on private-rights issues and kept a close eye on his neighborhood -- something developers are doing as well, he said.

"There's not a piece of property between the river and the ocean that somebody isn't interested in," he said.

Though the case was argued in March 2004, Walsh issued his decision Nov. 10 and quoted a recent U.S. Supreme Court ruling that local governments can seize homes and businesses for private development.

In Florida, redevelopment projects require a government agency to declare an area "blighted," giving them legal basis to potentially condemn the land or use other redevelopment powers, such as special tax financing.

Daytona Beach has declared four other neighborhoods blighted, including the Main Street area. That led to the city's ability to force three boardwalk business owners to sell to make way for a $115 million condominium and retail development.

Residents in the beachside neighborhood south of International Speedway started worrying about condemnation when city officials began working on a study of blight along the southern stretch of S.R. A1A and decided to expand the study to include 48 more homes west of the beachside thoroughfare.

Jacksonville attorney Andrew Prince Brigham, whose firm specializes in property-rights cases and represented the neighborhood association, said there had also been concern that several developers would need the land for their projects.

"Subject to the political winds blowing in a different direction, the city comes into this same neighborhood and calls it blighted," he said.

He said the city's blight study involved a drive-through of the neighborhood and didn't include any photographs showing blighted conditions. In the report, none of the homes was found to be dilapidated, and only 14 percent of the homes as deteriorating. Also, the report mentions high crime as a problem yet offers no specifics.

"This blight study is not being driven by blight first," Brigham said, but by private developers who would need to assemble larger tracts for building projects.

The city's report suggests as much, stating: "That sufficient land area is necessary to accommodate contemporary development standards, including off-street parking, stormwater management, landscaping, setbacks, etc."

Daytona Beach Assistant City Attorney Ben Gross said he realized residents feared the potential for a condemnation but that the city hasn't taken such action against these homes.

The city's redevelopment director, Laura Morgan, was not available for comment.

In his ruling, Walsh wrote that although the residents dispute what city officials decided, he couldn't second-guess city officials' opinions.

"Although it is clear there is substantial disagreement as to whether many of the conditions within the area are such as to support a finding of 'blight,' this court is restricted in its power of review," the judge wrote.

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Orlando Sentinel: www.orlandosentinel.com

Peter Colt: coltpeter@hotmail.com

Court ruling a setback for city: Newark (NJ) Star-Ledger, 11/16/05

Judges say property didn't belong in Perth Amboy redevelopment zone

By Sue Epstein
A six-acre industrial site in Perth Amboy that is home to several small businesses should not have been included in a redevelopment zone, a state appeals court panel ruled in a decision handed down yesterday.

The three-judge panel ruled the city had not proven that the property owned by ERETC met the state requirements of being in need of redevelopment and remanded it to the planning board for further investigation.

"We have carefully considered the record in light of the applicable law and find that the city's decision was not supported by substantial evidence," the judges said in a written decision released yesterday.

The city planning board relied on a report prepared by its planner, Michael T. Carr, when it recommended to the city council on Aug. 1, 2001, that the property be included in a redevelopment zone.

The judges found that the report lacked an analysis of the statutory criteria and did not have any evidence supporting Carr's determination that buildings were "substandard, unsafe, dilapidated, or obsolescent," as required by state law to include property in a redevelopment zone.

The council voted on Sept. 12, 2001, to accept the planning board's recommendation that the property be designated part of a redevelopment area.

The city wanted to use the Sayre Avenue site, located just off Route 35, to build public housing that will replace the Delaney Homes apartments. The Delaney Homes are being demolished to build a high school.

The Perth Amboy Housing Authority had transferred more than half of the residents of Delaney Homes when the high school project was placed on hold. The school was to be built by the state Schools Construction Corp. because Perth Amboy is a "special needs" district, but when the state agency ran out of money, it stopped work on most of its projects.

Leon Zelcer, the managing partner of ERETC, fought the designation from the beginning, arguing that his complex has three businesses that employ 325 people and is not run down. In 2001, he filed suit against the city to stop the action.

Yesterday, Zelcer was "ecstatic."

"It has been a long trek," he said. "This has been going on for four years. Thankfully, they upheld state law. I think it's a landmark case and will make other towns in the state sit up and listen."

Perth Amboy Mayor Joseph Vas said in a written statement that he was disappointed with the court's decision.

"It is unfortunate that they have taken such a narrow view of what constitutes substantial evidence. We believe substantial evidence should be a measurement of the entire record of deliberation before the planning board and council."

The appellate panel's decision overturns a ruling by Superior Court Judge James Hurley, sitting in New Brunswick, who upheld the city's action in June 2004 following a trial.

"In our view, the evidence presented to the planning board, council, and trial court was not sufficient to sustain a finding that the properties ... met the criteria set forth in (the state redevelopment laws)," the judges said in their decision. "Absent substantial evidence, the city's decision to designate (the area) as in need of redevelopment does not enjoy the deference generally accorded such findings. We, therefore, reverse and remand to the planning board for reconsideration of its decision."

The city's efforts to take the property became a major issue in Vas's mayoral re-election campaign last year because one of the attorneys representing Zelcer and his company was Vas' opponent, Billy Delgado.

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Star-Ledger: www.starledger.com

Eminent domain guidelines passed: San Mateo (CA) Daily Journal, 11/15/05

By Michelle Durand
Redwood City [CA] leaders hope to stave off future squabbles over eminent domain by unanimously adopting property acquisition guidelines similar to those a civil grand jury suggested earlier this year.

The guidelines are not mandatory but the ad hoc committee in charge of their creation hope it pushes city staff and officials toward greater sensitivity and respect when contemplating land grabs. After the eminent domain policy used in connection with the downtown cinema project came under fire, the City Council began brainstorming better methods, said Councilwoman Rosanne Foust.

Unfortunately, according to Foust, the civil grand jury delivered its scathing report on the city’s eminent domain use without first consulting the officials involved or asking what was being done. If they had, she added, the jurors would have found that the city was already creating recommendations similar to those later issued in the report.

“The grand jury never ever called any of us sitting up here. They didn’t bother to. That’s sort of an interesting statement,” Foust said.

In April 2004, Judge Quentin Kopp ruled the city unlawfully seized private property and razed a building to make room for the 20-screen cineplex and parking garage on land bound by Broadway, Jefferson Avenue and Middlefield Road. James Celotti’s two-story building was taken on the grounds that a public parking lot would be built on the land but Kopp ruled it was in fact being used to benefit a private developer.

The city declared the block a blighted area and acquired it using eminent domain. Celotti later received a $3 million settlement.

Eminent domain does have its place, said Mayor Jeff Ira, as long as it is “not done in a way that would embarrass the city.”

Foust, who served on the committee with councilmembers Barbara Pierce and Jim Hartnett, said the key component to the new guidelines is recognizing the uniqueness of each property owner and the land parcel. While city interests may be benefited by taking private land, it is important to be sensitive to the intangible impacts on a person’s connection to the community, she said.

The guidelines help residents realize the city is “not just a faceless bureaucracy that is going to take people’s land,” said Councilman Ian Bain.

The adopted guidelines also establishes the mayor as the point person for any future land acquisition issues. City Manager Ed Everett will spearhead the distribution of the recommendation to city employees.

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San Mateo Daily Journal: www.smdailyjournal.com

Battling eminent domain: U S News & World report, 11/15/05

Small Biz Watch

By James Pethokoukis
In this week's issue of U.S.News & World Report, I write about how small businesses can deal with attempts by local governments to exercise powers of eminent domain, which have been enhanced by a recent Supreme Court's decision. Truth is, when governments try to seize private property, business owners don't have many options other than to sue the city or squeal to the media and raise public awareness. But those options can be effective. Late last month, a San Diego jury awarded $7.7 million to cigar-store owner Ahmed Mesdaq, who was forced to move after the city used its eminent domain powers to take his property. Although the city offered Mesdaq $3 million before the trial, the jury found that the offer took into account only the value of the property–not the value of the business due to its location and reputation.

Then there's the story of Sean Wieting, who successfully fought an attempt to condemn his restaurant in Lincoln, Neb. He says energizing the public is key. "It would have cost me $120,000 to move, so I went on TV and handed out fliers to every single customer who came into my restaurant," says Wieting. It also didn't hurt that he was a former University of Nebraska football player in the Cornhusker-crazy state.

The U.S. News article highlights the story of Scott Mahan, who owns an office supply store in Ardmore, Pa. After the local township initially tried in 2004 to use eminent domain to take over a group of downtown properties–including his own–Mahan helped organize a group called Save Ardmore. The group adopted a two-pronged strategy:

• Sue the township.
  
• Get the public on its side and use that awareness as a cudgel to change the political makeup of the board of commissioners.

So far the group is batting .500. During local elections earlier this month, five new members were elected to the Lower Merion Township Board of Commissioners, including three who signed an anti-eminent domain pledge. As Mahan stated in an E-mail to me: "We are encouraged that they will now listen to what the people want, which is local government that will protect their rights."

The group has had less success on the legal front. Last week, a U.S. district judge dismissed the coalition's lawsuit on the grounds it was premature because the township had yet to finalize its redevelopment plan. But Mahan and other local business owners are hoping the political changes will make more legal action unnecessary.

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U S News & World Report: www.usnews.com

Newport defends eminent domain: Kentucky Post, 11/15/05

By Kevin Eigelbach
Four years after it held the first public hearings on a plan to redevelop the Cote Brilliant neighborhood, the Newport [KY] City Commission still finds itself defending the decision.

At Monday's meeting, Joyce Avenue resident Raymond Butts asked city commissioners to consider renouncing the use of eminent domain for economic development.

He was concerned about a recent U.S. Supreme Court ruling that upheld the practice in a Connecticut case.

In 2001, when the city commission presented a plan to build a shopping center where low-income housing was, the commission identified several other neighborhoods as potential redevelopment zones, Butts said.

Butts didn't want to see that happen, he said, and urged the board to "show leadership when it comes to property rights."

City commissioners declined, and defended their pursuit of economic development.

In the case of Cote Brilliant, 99 percent of the residents wanted to sell their property to the city, Mayor Tom Guidugli said.

The other 1 percent wanted the city to buy their property, but said, "give us an extra $100,000," the mayor said.

He blamed the media for reporting only on the few disgruntled property owners involved, and not the overwhelming majority of satisfied sellers.

The city declared 55 acres just west of Interstate 471 "blighted" in 2002, and has struck a deal with Montgomery, Ohio-based Bear Creek Capital to develop a retail project there.

Kentucky is a model state in regard to the number of safeguards it requires before a city can use eminent domain, Newport City Solicitor Mike Schulkens said.

One reason the city pursues economic development so vigorously is because only 10.6 percent of the budget comes from property tax, but 44 percent comes from payroll taxes, Schulkens said.

But Butts protested that some of the city's poorer residents don't have the resources to defend themselves against the threat of eminent domain.

"All citizens, rich and poor, should be protected," he said.

Commissioner Jan Knepshield told Butts he was painting an inaccurate picture of the city commission "swooping in" and taking all kinds of real estate.

In fact, he said, the city didn't take one property in Cote Brilliant by eminent domain.

It's impossible to find one property owner in the neighborhood who could have gotten a better price for his property on the open market, Knepshield said.

It would be easy for the commissioners to jump on the bandwagon against eminent domain, Schulkens said, but it wouldn't really have any effect, since the city's not considering any further such projects.

Butts said he brought the issue up in 2001 and would probably bring it up again.

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Kentucky Post: http://news.kypost.com

Landowner group takes on eminent domain: (Casper WY) Star-Tribune, 11/15/05

By Dustin Bleizeffer
Eminent domain.

Condemnation.

Them's fightin' words in a state that prides itself on property rights and individualism.

But some landowners say the words are now part of the common vernacular in the Powder River Basin where coal-bed methane gas developers are trenching hundreds of miles of pipe and power line to connect thousands of new wells each year.

"They've raised the level of need to convenience, and convenience should not be how we lose our property rights in Wyoming," said Johnson County landowner Steve Adami.

Adami is challenging an attempt by Gillette-based Kennedy Oil to take a 4-mile easement across his ranch via eminent domain for an underground power line. Adami said he's already granted the company an "energy corridor" easement elsewhere on his property, and the additional easement is a matter of convenience because of poor planning by Kennedy Oil.

John Kennedy, owner of Kennedy Oil, contends that he's only asking for what is economically practical and allowed for under Wyoming law. Furthermore, he and other coal-bed methane developers in the area are burying power lines rather constructing cheaper overhead power lines to avoid negative wildlife impacts and marring the ranchers' vistas.

But Adami said he's no rabble rouser. Energy companies seem to wield the threat of condemnation too loosely, he said. And too often landowners give in to avoid the expensive legal fight that seems to almost never favor the property owner.

"When you're faced with it as a landowner, you just roll over. You don't resist because the legal advice is that you will lose," said Adami.

Exasperated at a perceived increase in condemnation threats and the possible ripple effect of the now infamous Supreme Court decision in June that many believe wildly expanded the concept of eminent domain, the Powder River Basin Resource Council (PRBRC) has decided to step into the fight.

The grassroots landowner group was formed in the 1970s and is credited with helping establish a strict set of environmental guidelines for the Powder River Basin coal mining industry, which has flourished ever since and continues to receive national environmental honors.

This month, the PRBRC's board of directors passed a resolution making the eminent domain issue one of its top priorities. PRBRC staff member John Vanvig said the group will mount a campaign urging industry and lawmakers to reserve eminent domain as a last resort in power line construction.

"Suddenly, we've got a lot of people who are inquiring," about eminent domain and condemnation, said Vanvig.

Sheridan attorney Tony Wendtland said several state statutes in Wyoming extend the government's condemnation power to private companies. The test whether a taking would result in "the most public good and the least private harm."

"That standard is not enforced very strictly," said Wendtland. "It's supposed to be harder to use and used less often than it's turning out."

In Wyoming, if a private landowner fights a condemnation attempt and wins part or all of the case, the party seeking condemnation is not required to pay the landowner's attorney fees. It's a major flaw in Wyoming's condemnation statutes that needs to be changed, said Wendtland.

"I think that's incredibly unfair to the landowner, and I think it encourages companies to use (condemnation) because there's no threat there to pay anybody's attorney fees but their own."

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Star-Tribune: www.casperstartribune.net

Eminent domain hot topic: Gwinnett (County GA) Daily Post, 11/13/05

By Dave Williams
The timing wasn't right during this year's General Assembly session for limiting eminent domain in Georgia.

But that was before the U.S. Supreme Court ruled in June that the city of New London, Conn., was legally justified in boosting its tax base by condemning the homes of longtime residents to make way for luxury housing, shops, a hotel and marina.

Now, egged on by property-rights advocates, lawmakers in Georgia and other states are lining up to limit governments' use of eminent domain to purposes that traditionally have been associated with the authority: roads, utility lines and public buildings.

And Georgia Senate Republicans also are working on a bill addressing a second property-rights issue, the loss of an owner's ability to use property as he or she chooses because of government regulations.

"The amount of backlash (since the Supreme Court decision) caught us by surprise," said Larry Morandi, director of the National Conference of State Legislatures' environment, energy and transportation program.

"The ability of private-property advocates to marshal their resources to get to the media with their arguments gave them the momentum they needed."

Georgia Sen. Jeff Chapman was an early convert. The freshman Republican from Brunswick introduced a bill aimed at eminent domain last winter, months before the Supreme Court ruling.

He said he became aware of the issue when he saw a TV news story about a tire dealer in another state whose store was condemned after he refused to sell it to his local government.

"It really stuck in my craw," Chapman said. "I think that was about the most unscrupulous thing I'd ever heard of."

Cities wary
Chapman's bill cleared the Senate easily enough, 40-10, but couldn't get through the House when opposition emerged from the Georgia Municipal Association.

The GMA, which represents city governments across the state, remains the chief opponent to Chapman's bill as a study committee on eminent domain that he is chairing makes its rounds of the state.

During the three meetings the panel has held thus far, the group has questioned whether it's possible to separate projects that serve the "public good," for which eminent domain has long been considered acceptable, and economic development that benefits mainly private businesses.

"How do you define 'economic development?'" asked GMA spokeswoman Amy Henderson. "Running sewer lines is going to improve economic development."

Henderson said that while cities use eminent domain sparingly, the threat of invoking it sometimes is the only way to get uncooperative property owners - particularly absentee landlords - to negotiate a fair sale.

But Chapman said threats are not a proper weapon for local governments to be wielding against property owners.

"The only people I want our government to threaten are terrorists and enemies," he said.

The Association County Commissioners of Georgia, GMA's counterpart for counties, appears to have found some middle ground with recommendations designed to make restrictions on eminent domain acceptable to local governments.

Limits suggested
The ACCG is suggesting that the power be restricted to elected officials, not authorities or other non-elected government boards, and that eminent domain be used only to get rid of blighted neighborhoods, not blighted properties.

Such a provision might have prevented a dispute involving the city of Stockbridge and a flower shop owner that's now in court.

"Henry County is the fourth-fastest growing county in the United States," said Shannon Goessling, executive director of the Southeastern Legal Foundation, which is representing the shop owner. "Under what circumstances could you describe the City of Stockbridge as economically distressed?"

While the ACCG is working toward a compromise on eminent domain, it is willing to go to the mat on behalf of county governments on the second property-rights bill pending in the Senate.

The measure, aimed at what is known as "inverse condemnation," would require that a property owner who cannot use the land as he or she sees fit because of a government regulation be compensated for that lost value.

It stems from a predicament faced by landowners near a planned reservoir in hilly Lumpkin County. A 150-foot stream-buffer requirement in effect there is preventing them from building on the only flat land they own.

Sen. Mitch Seabaugh, R-Sharpsburg, one of the bill's cosponsors, said that regulation is doing the same damage to them as eminent domain, only indirectly.

"Direct condemnation is clear cut, but some of the regulations that have been passed have reduced property values," he said. "The Constitution says if you take a person's property, you pay for it."

Ulterior motive
But Jim Grubiak, general counsel for the ACCG, said inverse condemnation laws are more about intimidating local governments into failing to carry out their duty to protect the public through their power to regulate.

Grubiak cited testimony from an Oregon property-rights advocate at a recent Senate study committee meeting. David Hunnicutt told the panel that of more than 2,000 inverse condemnation claims filed in Oregon since voters there passed the measure by referendum, not a single local government has made a payment.

"They simply rescinded their regulation," Grubiak said.

Since that Senate hearing, the Oregon law has been overturned by a court ruling. Morandi, the official with the National Conference of State Legislatures, said because of uncertainty over the outcome of the appeal in that case, he doesn't believe many states will take up inverse condemnation bills this winter.

But he predicted that the vast majority of the 44 state legislatures that go into session in January will address eminent domain, if for no other reason than congressional pressure.

The U.S. House passed a bill last week requiring states to place restrictions on eminent domain or face a loss of federal aid. While the bill is still pending in the Senate, the writing is on the wall.

"Even in Connecticut, they're likely to pass a law to somewhat restrict eminent domain," Morandi said.

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Gwinnett Daily Post: www.gwinnettdailypost.com

Eminent domain authority questioned: Kinston (NC) Free Press, 11/13/05

BY Barry Smith
State lawmakers next year could be asked to approve a state law or an amendment to the N.C. Constitution that would protect property owners from condemnation for economic development purposes.

The head of an organization representing North Carolina's cities and towns believes such a move would be unnecessary.

The effort arises out of a decision by the U.S. Supreme Court earlier this year which allowed the city of New London, Conn., to use its eminent domain powers to take houses in a neighborhood to use for economic development.

"We're researching the issue and we are looking at what other states are doing," said Rick Zechini, director of regulatory affairs for the N.C. Association of Realtors.

Ellis Hankins, executive director of the N.C. League of Municipalities, said that cities and towns across the state haven't asked for and don't want the power to condemn property for economic development.

"State law does not authorize cities and counties to do what New London, Conn., did," Hankins said. "In our opinion, there is nothing in North Carolina that needs to be fixed."

Eminent domain allows government to take private property for public use, provided the government pays the property owner just compensation.

Gerry Cohen, who heads bill drafting for the N.C. General Assembly, said that state law does not provide any general authority for local governments to use their power of eminent domain for development purposes.

Steve Rose, a staff attorney at the General Assembly, said that the Kelo decision, as it's known, probably would not stand in North Carolina.

"At this point, it's hard to imagine a city trying to use Kelo," Rose said.

Rose said the only thing that state law allows that even comes close to the Kelo decision is a provision that allows governments to take property in blighted areas for redevelopment.

"Typically, nobody much cares if you get in there and knock down a slum," Rose said.

Rose noted that such laws have been on the books in North Carolina for about 30 years.

And, Rose said, there are about 400 local acts that deal with eminent domain, which have yet to be fully researched.

Zechini said that Realtors and other property rights groups might want to get out ahead on the issue and make it crystal clear to prevent the use of eminent domain for economic development.

"The only way to really prevent it is to get a constitutional amendment," he said.

Constitutional amendments require a three-fifth's majority of both chambers of the General Assembly and must then be ratified by the voters in a referendum.

Hankins said he hopes that lawmakers won't approve such a constitutional amendment for fear that it might be too broad.

"It could be more restrictive than the law already is," Hankins said.

Rose said that the Supreme Court's ruling was not a good one.

"It was a lousy decision," he said.

Public purposes generally refer to things used by the public, such as public buildings, schools, roads and water and sewer infrastructure.

"Boy, this does stretch the imagination," he said.

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Kinston Free Press: www.kinston.com

Judge dismisses suit on redevelopment plan: Philadelphia (PA) Inquirer, 11/11/05

By Jeff Price
A federal judge has dismissed a community group's challenge to Lower Merion Township's redevelopment plan for Ardmore, a project especially controversial because it threatens to demolish 10 buildings in the historic district.

U.S. District Court Judge Berle Schiller ruled Wednesday that the Save Ardmore Coalition's lawsuit was premature because the township hasn't finalized the plan.

Coalition attorney Robert Sugarman said yesterday that it may not be necessary to go back to court because of "the situation that will be in place in January."

He was referring to Tuesday's election, in which voters picked seven commissioners for the 14-member township Board of Commissioners, only one of whom supported the redevelopment plan - known as Option B - primarily because it could allow property to be taken by eminent domain.

Matthew Comisky, board president, said the election might not have any impact on the current board's effort to "move the process forward." He stressed that the taking of property through eminent domain is not a done deal.

"Some people in the election had indicated that decisions have already been made, and they haven't," he said. Option B's purpose "is to get some creativity and other ideas as to how to continue revitalization."

John Summers, the township's attorney, said the lawsuit has not had an impact on the redevelopment process.

In fact, on the night of Schiller's ruling, consultants explained to a public township planning meeting how an environmental impact statement for a transit center will be drawn up. Its main element will be a new train station. Afterward, residents were able to talk to consultants and submit written comments.

Although the township billed the evening as a chance for public participation, Sugarman said that "no participation was allowed, no information of substance was released, no documents were made available. They didn't even have a definition of the project boundary."

Sugarman said the judge had stressed in his ruling "the importance of meaningful public participation in the continuing planning."

Given the election results, Sugarman said the township should "stop spending money" on the review process.

However, the township will continue to move forward, Comisky said. A request for proposal, a major step in the development process, should be ready for public comment "sometime in December," he said, and ready "to go out to the development world at the end of the first quarter of next year."

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Philadelphia Inquirer: www.philly.com/mld/inquirer

Backlash to ruling on eminent domain: Philadelphia (PA) Inquirer, 11/14/05

By Diane Mastrull
The words eminent domain have been throwing a fright into property owners for more than half a century, but never more so than in the last six months.

Setting off the nationwide panic attack was a U.S. Supreme Court decision in June that expanded the concept well beyond its usual bounds. The justices ruled that a Connecticut city could force the sale of homes and businesses in a neighborhood not deemed blighted, to make way for private economic development.

Predictions of wanton land grabs by local governments rumbled across the country.

The eminent-domain juggernaut, though, has not materialized. What has occurred is a stampede of lawmakers in Congress and more than 30 states to prohibit the kind of property seizures the high court allowed in Connecticut. Within a week of the ruling, a bill reining in the use of eminent domain passed in Delaware. Five are pending in New Jersey and four in Pennsylvania, where one could come up for a Senate vote as early as tomorrow.

The legislatures are piling through a door that the justices themselves opened. The majority opinion in Kelo v. the City of New London noted that nothing in their ruling "precludes any state from placing further restrictions on its exercise of the takings power."

In no time, bills to do just that were popping out of politicians' printers.

Legislation to safeguard property rights would seem a sure-fire crowd pleaser. And it has been in places such as Ardmore on the Main Line, where a coalition of residents and small-business owners has been fighting off an eminent-domain threat for two years.

But the bills also have taken a drubbing, especially by redevelopment advocates, who call them "knee-jerk." They warn that the limitations on eminent domain would be so tight, and the process of condemning the most blighted properties so onerous, that hundreds of cities and struggling older communities might never be revitalized.

Eminent domain "is a very, very important revitalization tool," said Herbert Wetzel, executive director of the Philadelphia Redevelopment Authority. Without it, he said, more than 7,300 affordable housing units built in the city since 1992 would not exist.

On Wednesday, Wetzel spent four hours in Harrisburg lobbying for compromise language in the bill about to come before the Senate. Under the proposal written by Sen. Jeffrey Piccola (R., Dauphin), property could not be seized unless it met a considerably narrowed definition of "blight." With few exceptions, eminent domain also could not be invoked to clear the way for private commercial enterprises - hotels, office complexes, shopping malls - even if they generated jobs and tax revenue.

The Kelo ruling "made people sit up and take notice and start to realize that in the face of activist courts and local government, private property rights might very well be threatened," said Piccola, whose district includes Harrisburg.

He and like-minded lawmakers have heard pleas for caution from a variety of land-use and redevelopment-advocacy groups such as 10,000 Friends of Pennsylvania, which is urging more study of eminent domain in the state before any bill is put to a vote.

Late last week, Gov. Rendell's office weighed in with a five-page letter of suggested adjustments to Piccola's proposal, to "strike the right balance between the rights of homeowners ... and the critical needs of Pennsylvania's communities to revitalize."

Also calling for changes, a legislator who had been on Piccola's list of sponsors removed her name from the bill.

"It's not time to move this yet without more thought so we do it right," said Sen. Connie Williams (D., Montgomery/Delaware). Her district includes Norristown, where one of the region's largest revitalization projects is just starting up.

But some speed is appropriate, Piccola said, when the matter at hand is taking "private property from one person and giving it to another."

"This issue," he said, "is ripe."

It is less so in New Jersey, but only because the state has been consumed with a governor's race and assembly contests.

The eminent domain bills there have gotten scant attention, but that is likely to change in the new year. Some would prohibit the condemnation of any property that meets local health, safety and building codes. Others would amend the state constitution so eminent domain could be used only for "public purposes" such as schools, roads and parks, not for economic development.

In its Kelo ruling, the Supreme Court found nothing unconstitutional about New London's use of eminent domain to force property owners to sell (at fair market value) in order to accommodate offices, a hotel and new residences - a project expected to create more than 1,000 jobs and increase tax revenues in the distressed city.

For the first time, economic development qualified as "public use," which under the Fifth Amendment of the U.S. Constitution is the sole reason for acquiring property by condemnation, said lawyer David Snyder, an eminent-domain expert in Philadelphia.

Reflecting the contentiousness of the issue, the justices split 5-4 in Kelo. In her dissenting opinion, Sandra Day O'Connor wrote that "all private property is now vulnerable to being taken and transferred to another private owner."

Thus, the stage was set for the legislative frenzy.

For redevelopment advocates, the most worrisome bill is not to be found in any statehouse but in Congress. The Property Rights Protection Act of 2005 would bar any state or local government that receives federal economic-development money from using eminent domain for economic development. Violators would have that funding withheld for two years.

After sailing through the House early this month, the proposal awaits Senate action. President Bush has endorsed it.

In an alert sent to its 20,000 members, the National Association of Housing and Redevelopment Officials warned, "If signed into law, the [act] would have a devastating impact on state and local governments' ability to pursue meaningful community revitalization."

Scott Mahan doesn't want to get in the way of revitalization, but neither does he want to lose his office supply store on Lancaster Avenue in Ardmore, a business founded 80 years ago by his grandfather.

Lower Merion Township's renewal plan for the downtown historic district could involve the condemnation, through eminent domain, of his building and nine others. So late last month, Mahan went to Harrisburg to testify for Piccola's bill.

If any good came of the Kelo ruling, he said, it is the creation of a "groundswell of opposition" to eminent domain.

"People are afraid of losing their property," he said. "They're demanding that their state and local governments offer them the protection they deserve."

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Philadelphia Inquirer: www.philly.com

Eminent domain isn't working for city's residents: (Camden NJ) Courier-Post, 11/13/05

Opinion

By Olga Pomar
Ambitious redevelopment plans are being pushed forward for neighborhoods throughout Camden. Several of these plans propose acquisition and demolition of thousands of occupied homes through the use of eminent domain, the power of the government to purchase property for a "public use" without the owner's consent. The plans then call for construction of thousands of new housing units, mostly upscale homes.

Frantic residents have called South Jersey Legal Services asking what it means to be in a redevelopment area or to have their house on the acquisition list.

It was painful to explain the redevelopment laws to an 82-year-old woman who insists the city can't take her home because she has owned it for more than 50 years, has kept it in decent shape and has paid her taxes.

Nor was it easy to inform a young father who just moved into a house he inherited from his grandfather that the city plans to knock it down.

SJLS has brought lawsuits challenging some of these redevelopment plans on behalf of community organizations and more than 300 residents. We seek to protect the rights of the most vulnerable of these residents — the low-income, senior citizens and the disabled.

Given skyrocketing housing prices and the shortage of subsidized units, these people are at great risk of becoming homeless or living in overcrowded, unsafe and unaffordable housing.

Involvement
Many would welcome a program of neighborhood improvement that involves them in the planning process, builds on existing assets and ensures they will be able to remain and enjoy the improved community. They fear these ambitious redevelopment plans, however, were designed with someone else's interests in mind.

Residents of a redevelopment area have legitimate cause for concern because municipalities enjoy expansive powers under current redevelopment laws, while residents are afforded few rights and guaranteed only meager compensation. Once a redevelopment plan is properly adopted, a municipality can enter into agreements to turn land over to private developers without public bidding and with minimal public oversight. And it can acquire properties within the redevelopment area through eminent domain to effectuate these agreements.

The municipality can take title to a property by eminent domain and evict the resident in less than two months. The municipality must pay an owner only the fair-market value of the property in its current condition. Relocation laws provide that an owner also receive moving costs and an amount up to $15,000 for the purchase of a replacement home, which is usually not enough to purchase another property in the region. Renters who are displaced receive moving costs and up to $4,000 to cover a security deposit and a rent increase for a period up to four years, which covers an increase of about $100 per month.

Relocation laws do not require a municipality to create replacement units or guarantee housing will be available to the displaced household within the municipality.

Local governments often give assurances they will do more than what is legally required, making promises to build adequate affordable replacement housing to ensure residents can remain in their community. The problem is that if these promises fail to materialize, residents have little recourse.

Given these seemingly unchecked powers, it is not surprising that local governments used eminent domain in a destructive manner, destroying viable communities and wreaking havoc.

We should learn from the experience of urban renewal projects of past decades, when some 400,000 homes, primarily in African-American and low-income neighborhoods, were destroyed, while less than 11,000 public housing units were built as replacement units.

Yet new redevelopment initiatives in Camden, designed to eventually designate the entire city as a redevelopment zone, and calling for acquisition and demolition of at least 2,000 occupied homes, bear eerie similarities to the redevelopment proposals of the 1950s and '60s.

The discussion about what should be done is just heating up in New Jersey, and what happens in Camden should be a central issue in that debate.

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Courier-Post: www.courierpostonline.com


Olga Pomar is an attorney at South Jersey Legal Services and is representing low-income Camden residents in several lawsuits challenging certain redevelopment plans recently adopted by Camden City.

Trashing Eminent Domain — Checker's latest film gets Niantic screening: The (New London CT) Day, 11/11/05

By Stephen Chupaska
Filmmaker Nick Checker is worried about people and homes ending up in the dustbin of New London's history.

“Trashed,' his latest picture is both a documentary and a short film about the intermingling of struggle of the Fort Trumbull residents and the city's homeless.

“I feel we had some important things to say,” Checker said.

The documentary part of the film, shot in color, features interviews with city leaders and is narrated in a chowder-thick accent by Father Russ Carmichael, head of the Grassroots Homeless Coalition in New London.

“Some people are just one paycheck away from the street,” Carmichael repeats several times in the film.

Former homeless woman Jennifer Jarvis said “Trashed” was a good project that let people know what it was like to be homeless.

Scott Sawyer, attorney for the seven property owners fighting against the development of Fort Trumbull, relayed the eminent domain story.

Republican City Councilor Rob Pero, the only member of the city government who agreed to be interviewed for the picture, commented on both the excising of social services and the legal kafuffle surrounding Fort Trumbull.

Pero soberly explained the reasons behind Fort Trumbull's redevelopment, tracing it back to both Pfizer's interest in the peninsula as well as the state's and city's hopes for economic capital.

Pat Serluca, former Social Services director, was impressed with the film.

“It was too good to end,” she said.

Pero, who voted to eliminate the social services department, said in the film that he hoped nonprofits could shoulder the burden.

The documentary includes footage of protests of both eminent domain and the loss of social services this past summer but does not provide the audience with a timeline of events leading up to the Supreme Court decision or information about the city's budget crisis.

The fictive portion of film, shot in black and white, stars Waterford native Kathryn Downie as Autumn, a young woman escaping an abusive relationship and arriving in Harbor City, a stand-in for New London.

Autumn soon finds work at a farm for abused horses, helping to rehabilitate a colt named In The Nick Of Time.

Due to a kindhearted landlord, Autumn finds an apartment in a house, which is soon padlocked by the Harbor City Blight Commission — a thinly-veiled reference to the New London Development Corp.

Checker, in the documentary portion of the movie, does not explain that none of the Fort Trumbull houses were blighted, one of the legal stipulations for the use of eminent domain.

"The neighborhood was never blighted," New London Deputy Mayor Bill Morse, who attended the screening at Niantic Cinemas, said. "There were only a few houses that were labeled that."

Morse added he appreciated the value of the movie's message.

In any case, the main character in the movie, Autumn, dressed in shabby thrift store clothes, is soon homeless, living in a box in the forest and lying about it to her saintly employers.

“I really fell into the character,” Downie said. “I related to her.”

Perhaps the unseen star of the film was editor Erik Hall, who managed to seamlessly marry the black-and-white and color footage.

“There was 12 hours of raw footage,” he said.

The film debuted last week to a packed house at Niantic Cinemas, which donated a screen.

Checker and his crew filmed “Trashed” during the late summer, shooting most of it in New London, even using a vacant house in Fort Trumbull as a location. In fact, Autumn can be seen walking past Susette Kelo's now famous pink cottage.

Hall said he plans to recut the picture to prepare for the national festival circuit.

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The Day: www.theday.com

In domain of renewal, a bad law: Philadelphia (PA) Daily News, 11/11/05

By Elmer Smith
West Philadelphia's first full-service shopping center is about to break free of the red tape it has been mired in for years.

That is, it will, assuming that the last 10 vacant and blighted structures left standing in the 31-acre tract can be acquired through eminent domain.

Up to now, acquiring those last parcels wouldn't have even been an afterthought.

The Goldenberg Group, developer of the Park West Town Center project, acquired all of the other properties in the 308,000-square-foot tract by agreements of sale. The 10 it couldn't acquire that way are shells that meet any reasonable definition of blight.

Under eminent domain law in Pennsylvania, the city will acquire the properties at a fair-market value and the project will finally get under way.

But by next year, the city might be prohibited from acquiring the last 10 properties. A proposal in the state Senate, authored by Sen Jeffrey Piccola, R-Dauphin, would prohibit taking any property through eminent domain unless at least 51 percent of the surrounding properties are blighted.

Furthermore, if a bill that passed the U.S. House of Representatives yesterday becomes law, the city would lose all federal economic-development aid for two years if it used eminent domain to take any private property for transfer to another private owner for economic-development purposes.

All of this flurry of legislation comes from a recent decision of the U.S. Supreme Court that upheld the right of New London, Conn., to acquire properties in a thriving, blight-free neighborhood and convey them to a private developer.

The resulting howl was understandable, and the quick response of lawmakers in at least 12 states and in Washington sounds like a textbook case of big government rushing to the rescue of little taxpayers.

But the issue is not nearly that simple. Which may explain why all three members of Philadelphia's congressional delegation have opposed HR 4128.

"The bill was hastily crafted," Congressman Chaka Fattah responded in writing yesterday when I asked him to explain his vote.

Fattah says he is sensitive to governmental intrusion against personal-property rights. But he argues that the bill "would impede local municipal efforts in advancing neighborhood revitalization."

Congressman Bob Brady agrees.

"This at first glance seems to make sense," said Stanley White, Brady's chief of staff. But it would have a substantial back-blast. "This law would stop the Redevelopment Authority from doing most of what it is doing under NTI," he said, referring to Mayor Street's Neighborhood Transformation Initiative.

Seen in its best light, it's bad law for a good purpose. It sounds good, until you examine how eminent domain has been used in Philadelphia.

"We've built more than 7,000 units of affordable housing by acquiring properties to assemble parcels," said Redevelopment Authority Executive Director Herb Wetzel. "We needed eminent domain to do that."

"Under the Piccola bill, you could have a block where every other house is abandoned and we couldn't acquire the properties because the block still wouldn't meet the 51 percent standard.

"In Harrisburg yesterday just about every redevelopment authority in the state opposed the bill."

But it might not matter, if the federal law passes.

This is a city where eminent domain has been used to increase housing options for low-income families and to build projects like the shopping center going up at 52nd and Parkside.

Eliminating eminent domain may do more to hurt than to help the little guys that our lawmakers are rushing to rescue.

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Philadelphia Daily News: www.philly.com/mld/dailynews/news

Supervisors agree to clarify policy on eminent domain: San Diego (CA) Union-Tribune, 11/10/05

By Leslie Wolf Branscomb
Because of the recent nationwide outcry over the prospect of homes being seized by the government, the Board of Supervisors decided it was time to review the county's policy on eminent domain.

The review found San Diego County already gives private property owners strong protection against the abuse of eminent domain.

However, the supervisors agreed that some of the county's policies could be changed to further strengthen them.

The supervisors voted unanimously Tuesday to clarify the county's policy to specifically protect nonblighted, owner-occupied residential structures from being taken and given to another private property owner for economic gain.

"Eminent domain has been very much in the news lately," said Supervisor Ron Roberts, referring to a Connecticut case in which homes were condemned to make way for commercial development, and a more recent San Diego case in which houses might have been taken for other housing.

"It's true that unchecked government may abuse its powers," Roberts said, adding that's why he and Supervisor Bill Horn initiated the review of the county's policy in July.

"The county's policy already strongly favors property rights," Roberts said. "Eminent domain is not a power that this board takes lightly, because we place a high value on property rights."

Horn said: "It makes sense to use eminent domain when it comes to roads and public facilities. But it doesn't make sense to use it to take private property and give it to another.

"I would just like the public to know that we're taking a strong stand on protecting private property," Horn added.

A U.S. Supreme Court ruling in June affirmed the powers of the city of New London, Conn., to take property for economic development.

The ruling caused a backlash at the federal and state levels.

Last week, the [US] House of Representatives approved a bill that would withhold federal money from state and local governments that used eminent domain to force businesses and homeowners to give up their property for commercial use.

The state Senate has introduced legislation to impose a two-year moratorium on taking homes for private projects, giving the state time to study whether to impose new limits on eminent domain.

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San Diego Union-Tribune: www.signonsandiego.com

Eminent domain changes Westville board: Gloucester County (NJ) Times, 11/8/05

By Anne B. Jolis
Fear and anger over eminent domain remained a driving force in borough politics on Tuesday night as voters [in Westville] demanded new blood, ushering newcomers James Pennington Jr., Susan Rodgers and Woodrow Dooley into council and ousting incumbents Art Kelley and Fritz Sims.

Democrats Pennington and Dooley and Republican Rodgers all ran on the platform of opposing eminent domain abuse. The issue has polarized the borough since January when Council voted unanimously to include the homes and businesses in the Timber Park area in the borough's redevelopment zone.

The borough's developer, Fieldstone Associates, has yet to submit final plans for its projected waterfront shops, condos and townhouses. Council has said in the past that, if the proposal is acceptable, they stand ready to seize by eminent domain the properties of any home or business owners who can't come to an agreement with the developer.

By January, however, half of the six-member council will be made up of council members elected on the promise that they will oppose taking private property for this reason.

"It's a victory, but the people of Westville aren't safe yet," said Dooley, who will finish out the unexpired two-year term left open when former councilman Jay Renshaw moved out of state. "If there's a tie in the council, Mayor Packer acts as tie-breaker. He said he would use his vote to invoke eminent domain if he has to."

The Times was unable to confirm Packer's comments.

"The people don't want eminent domain as it stands today," said Rodgers who will step into a full three-year term. She added that whether she will support Fieldstone's plan at all remains to be seen. "They're against eminent domain abuse, against closed-door meetings, and they want to live in a democracy," said Rodgers of her supporters.

Over the summer, the U.S. Supreme Court ruled in a sharply divided vote that seizing private property for economic development is constitutional.

"Mayor and the rest of the council could still abuse eminent domain, but we sent out a great message today to local politicians," said Dooley.

"You take our homes, we'll take your jobs."

Dooley explained that he supports the redevelopment plan to save the borough from "financial dire straits," but not the use of eminent domain as a tool.

Pennington, also elected to a full three-year term, was not available for comment.

According to the unofficial election results, Dooley beat incumbent Kelley by 868 to 374, Pennington garnered 577 votes, and Rodgers took 578 against Independent incumbent Sims' 370. Republican challenger Mark Styan took in 465 votes and Democratic challenger Charles Robbins tallied 401.

Neither Kelley nor Sims returned calls for comment after the unofficial results came in.

Kelley stated earlier in the day that Tuesday's election was one of the most important Westville has ever seen.

"It's very possible that if the incumbents don't win, the redevelopment will not go through," said Kelley.

"This election could basically mean the life or death of Westville."

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Gloucester County Times: www.nj.com/news/gloucester

Florida voters favor eminent domain restrictions: Jacksonville (FL) Business Journal, 11/8/05

An overwhelming majority of Florida voters favor tighter restrictions on the government's use of eminent domain to acquire private property, according to a poll conducted last month by Mason-Dixon Polling & Research Inc.

In a poll of 625 registered voters, 89 percent said they supported having the state legislature adopt "increased protections for property owners," while only 9 percent opposed such a move.

The poll comes after a U.S. Supreme Court ruling earlier this year in a Connecticut case that found governments can use eminent domain to acquire private property and transfer it to a private developer. Eighty-eight percent of those polled disagreed with the U.S. Supreme Court ruling.

The opposition to the ruling was nearly uniform across party lines, with 89 percent of Democrats, 87 percent of Republicans and 87 percent of independent voters disagreeing with the ruling.

Some legislators have suggested an amendment to the state constitution prohibiting the use of eminent domain for economic development purposes. Sixty-three percent of those polled favored such an amendment. Sixty-six percent supported federal legislation that would restrict federal funding for projects where eminent domain was used for economic development purposes.

The poll was commissioned by the Coalition for Property Rights. The margin of error was plus or minus 4 percent.

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Jacksonville Business Journal: http://jacksonville.bizjournals.com

Legislators mull eminent domain: (Gallatin TN) News Examiner, 11/7/05

By Katrina Cornwell
State lawmakers will have no less than a dozen pieces of legislation to consider next year to limit the ways eminent domain can be used to take private property.

That news was encouraging to Sumner County property owners who are fighting federal approval of a 30-mile natural gas transmission pipeline.

Linda Roddy said the efforts of Sumner Trousdale Opposing Pipeline (STOP) have shed light on how eminent domain can be used for private gain.

“We’re not just fighting just for us. We’re fighting against eminent domain,” said Roddy, whose family owns land in the path of the proposed Midwestern Gas Transmission Company (MGT) pipeline.

“That’s every property owner’s right to have property. MGT is a big company and they think they’re just going to bully us around and it’s not going to happen. We’re tired of being run over by big companies,” she said.

Two members of the Sumner County delegation have filed pieces of legislation that will be introduced to the Tennessee General Assembly Jan. 10, 2006.

State Rep. Mike McDonald, D-Portland, has filed House Bill 2432 while State Sen. Mae Beavers, R-Mt. Juliet, has filed Senate Bill 2419 and Senate Joint Resolution 501.

McDonald’s bill proposes to narrow the definition of a “public use” for which eminent domain can be used to take private property.

The bill also aims to prevent a governmental or other authorized entity to take property and transfer it to a private developer, corporation or other non-governmental entity.

“I feel strongly about the principal that it should be used only for the public good,” McDonald said. “The only examples I know to give are schools and roads that benefit the public at large.”

McDonald said governments should not be in the business of taking private property and giving it to a private entity.

“I just think that is contrary to what the founding fathers intended in the constitution,” he said. “People work hard to pay for their homes, their property, whatever it may be...We don’t need to let one entity profit by taking private property of another entity.”

Beavers’ bill also attempts to eliminate the power of government bodies to take private property and transfer it to another party for commercial use.

Her resolution specifies that eminent domain should only be used for public roads or streets, public transportation, railways, utilities, government-owned and used buildings and public facilities for the general use of government or its citizens.

State Sen. Diane Black, R-Gallatin, said she supports measures to limit the scope of the eminent domain law.

“There are a great number of bills that were filed because of Sumner County,” Black said. “I will be a big supporter of keeping private business from coming in and taking people’s property for the sake of private development.”

Linda Webster who owns a 249-acre farm in Bethpage, is glad state lawmakers are focusing on eminent domain.

“We’re all for it,” said Webster, who is a member of STOP. “The big bad wolf will just eat you up.”

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News Examiner: www.gallatinnewsexaminer.com

Eminent Domain Roll Call: H.R. 4128: New Jersey Eminent Domain Law Blog, 11/4/05

By Bill Ward
Voting 376 for and 38 against, members of the [US] House of Representatives passed the Property Rights Protection Act on November 3, 2005. Under the House bill, federal funds would be denied to the states or political subdivisions to acquire property for economic development.

The bill gives any aggrieved property owner the right to bring an action to enforce the provisions of the Act in the appropriate Federal or State court. The law puts the burden of proof on the defendant to show by clear and convincing evidence that the taking is not for economic development.

The Act further provides that a prevailing plaintiff shall be allowed reasonable attorney’s fees as part of cost of the action including expert fees as part of the attorney’s fee.

Interestingly, the only “no” vote in New Jersey’s delegation was Rep. Steven R. Rothman (D) of Fairlawn, NJ. View the House of Representatives Roll Call here.

The bill now goes to the Senate for approval where Senator John Cornyn has proposed legislation.

It’s show time in New Jersey!
Both gubernatorial candidates Jon Corzine and Doug Forrester have said they will take steps if elected to protect New Jersey’s home owners from eminent domain. The [newark] Star-Ledger gives us the essence of the candidates in its Perspectives section:

Corzine: The state must strengthen its laws to guarantee homeowners are protectors.

Forrester: Would create a task force to study possible remedies to the current system.

Acting Governor Codey, soon to relegate to Senate President Codey, does not have eminent domain reform on his agenda. Codey’s position is of paramount importance if any eminent domain reform legislation is going to be considered by the New Jersey State Senate.

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

Mayor won't seize restaurant to aid school: Newark (NJ) Star-ledger, 11/5/05

Jersey City withdraws eminent domain for football-field expansion

By Matthew Reilly
Jersey City Mayor Jerremiah Healy pulled the plug yesterday on the city's role in the proposed condemnation of a restaurant and bar to make way for an expanded football field at a Catholic high school.

The city's redevelopment agency was attempting to seize the Golden Cicada and backroom apartment where owner Cheng Tan lives so the city could then turn the property over to St. Peter's Prep, which wants to expand its practice football field. Healy said he was withdrawing the city from the eminent domain action.

"I support eminent domain where it is necessary and benefits the community as a whole," he said last night. "There are instances when the city's taking of private property for public purpose is appropriate, but this is not one of those instances."

Tan said he is happy the city has dropped its effort to condemn his property, but is still worried that changes in the property's zoning will limit what he can do with it.

"It's a good first step, but the issues are not resolved yet," Tan said. "The zoning was changed to prevent me from doing anything. That's the whole problem. My property will never have its highest and best use. I don't know who would benefit from the property other than St. Peter's. It's another thing I have to talk to my attorney about."

The school argued it had spent $4 million and years acquiring property for needed athletic fields and was being unfairly held up by Tan. St. Peter's built a new football field adjacent to the Golden Cicada, but the field is seven yards shy of regulation and must be lengthened for the varsity team to play its home games there.

The president of the school, the Rev. James Keenan, has said he had offered to buy the garages in the rear of the property, which would have given the school the needed room without affecting the restaurant and bar, but Tan refused.

Keenan could not be reached for comment last night.

The school is still free to negotiate with Tan to buy the property and extend its field, but it no longer has the backing of the city redevelopment agency — and the threat of eminent domain — behind it.

The redevelopment agency had offered $550,000 for the property, plus relocation costs. The liquor license could also be sold for about $150,000, city officials said. But Tan believes the 5,000-square-foot property is worth much more, as it is located next to booming real estate.

Tan said he has considered building condominiums there, and thousands of units are under construction or planned in the neighborhood.

Bill Matsikoudis, the Jersey City corporation counsel, said with the school and the redevelopment agency formally declaring they will not proceed with the eminent domain action, the agency can withdraw from the litigation and Tan will have title to the property.

Tan was represented by lawyers for the American Civil Liberties Union and Rutgers Constitutional Litigation Clinic, who argued the city redevelopment agency was violating the constitutional prohibition on favoring a religion.

Ed Barocas, ACLU legal director in New Jersey, said it is inappropriate for the government to take land from one person to give to another, and even more inappropriate to benefit a specific religion.

Healy said he was eager to settle the issue, which he said he inherited from a past city administration.

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

State lawmaker wants eminent domain limits: Billings (MT) Gazette, 11/5/05

By Jennifer McKee
A Republican lawmaker wants to change the Montana Constitution to prohibit government from condemning private property for urban renewal or economic development projects. However, his efforts would leave untouched government's ability to seize private property for railroads, mines or smelter dumping grounds.

Rep. Rick Maedje, of Fortine, submitted to legislative lawyers Thursday his proposed change to the Montana Constitution. The move is the first step toward getting a proposed constitutional amendment placed on the ballot for voter approval or disapproval.

"You don't lose private property rights by one cut," Maedje said. "It's by a thousand nicks of the blade."

His proposal prohibits all nonfederal government entities from seizing and buying private property for the following reasons:

• To increase tax revenues.
  
• For economic development.
  
• For urban renewal projects.
  
• To create or preserve natural areas, recreation areas or facilities.
  
• To protect viewsheds.

Maedje said the motivation behind the amendment was a June U.S. Supreme Court decision that allowed the town of New London, Conn., to condemn and buy downtown homes to build a private real estate development. The development would generate more tax revenues for the town than the older homes. The nation's top court ruled against the homeowners, creating controversy nationwide.

Montana law allows state and local government to condemn and buy private property for a long list of public and private uses, a power called "eminent domain." Protecting viewsheds, increasing tax revenues and economic development are not listed among allowable eminent domain uses in Montana.

However, the state and local governments can use eminent domain to take private property for roads, sewers and other projects. The law also allows government to take private property for railroads and dumping grounds for mines and smelters or temporary logging roads.

Under eminent domain, the government must pay the original property owners the fair market value of their land, plus legal fees.

Maedje said that because Montana already has a long list of allowable uses of eminent domain, it made more sense to list the five things he thinks should be constitutionally prohibited. If people later decide more things should be prohibited, they can change the constitution then.

He said he picked those five because they have the most potential for abuse.

House Democratic Leader Dave Wanzenried, of Missoula, said he supported Maedje's early efforts because they will prompt a good discussion among lawmakers and Montanans about eminent domain and whether something like the Connecticut situation could ever happen here.

Alec Hansen, executive director of the Montana League of Cities and Towns, said he didn't think Montanans had much to worry about. The Connecticut case stemmed from a Connecticut law that allowed eminent domain seizures for economic development.

That's already prohibited here, he said.

"It doesn't really apply," Hansen said. "Montana is one of a group of states that do not have the power of eminent domain for economic development."

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Billings Gazette: www.billingsgazette.com

Eminent Domain May Be Used If Flats Owners Don't Sell: News Channel 5 (Cleveland OH), 11/2/05

Developer Hopes To Begin Demolition By Early 2006
Property owners in the Flats will soon be getting sales offers from developer Scott Wolstein.

If owners reject the deals, the Cleveland-Cuyahoga County port authority stands ready to take the land through eminent domain.

The Wolstein group wants to start demolition for the development plan by early next year.

Both sides say they hope negotiations will win out over what could become lengthy court battles over eminent domain.

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News Channel 5: www.newsnet5.com

Gingrey Amendment to Protect Houses of Worship from Eminent Domain Abuse: Christian News Today

U.S. Congressman Phil Gingrey (R-GA) today introduced an amendment to H.R. 4128, the Private Property Rights Protection Act, to protect houses of worship and non-profit organizations from eminent domain abuse. Gingrey's amendment would make it illegal for state and local governments to use tax-exempt or non-profit status as a consideration for the taking of property under economic or public use plans.

"In the wake of the Supreme Court's Kelo ruling, religious and non-profit organizations are at particular risk of becoming targets of eminent domain abuse," said Gingrey. "Churches bring guidance to our communities, but they don't bring revenue to the government. Unless we act now, they will become an easy mark for money-hungry developers and governments. I fear for our country if we allow shopping malls and other revenue-raisers to evict our religious organizations simply because God doesn't pay enough in taxes."

The Gingrey Amendment prohibits the consideration of non-profit or tax-exempt status during the economic evaluation of a proposal using eminent domain. The amendment text is attached in PDF format.

The House is expected to consider H.R. 4128 and the Gingrey Amendment on Thursday, November 3.

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Christian News Today: www.christiannewstoday.com