Taking Notice: New York (NY) Sun, 12/7/05

Editorial
Monday's ruling by a federal appeals court in an eminent domain case comes as welcome news for those who had worried that the Supreme Court's disastrous ruling in Kelo v. New London would be the last judicial word on whether and when and how the government can take a private individual's property. In this case, Brody v. Village of Port Chester, the 2nd Circuit here in New York ruled that the Empire State's old eminent domain law was unconstitutional. On its face, the ruling may look like a moot issue because the law that was challenged has since been changed, but it is actually an important decision that could have some significant effects.

William Brody bought two adjacent parcels of land in Port Chester in 1996, on which he renovated four buildings that he then rented out to local businesses. However, the village eventually developed a broader redevelopment plan for its downtown and waterfront areas and decided to seize Mr. Brody's property so that a private developer could build a parking lot on it. Under the state Eminent Domain Procedure Law in effect at the time, the village's industrial development agency only needed to publish a vague notice in a local newspaper to inform landowners of the one opportunity they would have to challenge the village's decision to take their property.

Mr. Brody argued that he had missed such a hearing because he had not been properly informed that it was going to occur, a claim a three judge appeals panel credited unanimously. The government violated Mr. Brody's 14th Amendment right to due process; the village should have mailed him - and other landowners - an individual notice that his property was in danger. In one sense, the practical effects of this case will be limited. Thanks to the efforts of Assemblyman Richard Brodsky, the state has long since changed the law to require individual notice of the sort the court has just mandated in Brody.

The assemblyman has moved on to further reforms, such as requiring local legislative bodies like city councils to actually vote on eminent domain takings. Mr. Brody's buildings have already been razed. But, as both a lawyer at the Institute for Justice who represented Mr. Brody, Dana Berliner, and a spokesman for Mr. Brodsky, James Malatras, told us, there may be many New Yorkers whose land had been condemned under the old law but who didn't even know about it because the government hasn't yet moved to seize control. It's hard to count these individuals because often they themselves do not even know they might be affected.

The case will have larger implications. Ms. Berliner notes that many states and localities attempt to use procedural tricks such as hiding notice of hearings to make it easier to exploit their powers of eminent domain. Now, a federal appeals court has quashed that. Even though the Supreme Court's Kelo ruling stands, allowing takings for private economic development projects, government will not have carte blanche in respect of how it takes the property. Mr. Malatras points out that, in basing its ruling on the Fourteenth Amendment, the appeals court has reminded everyone that significant constitutional issues remain to be considered in the eminent domain debate. Brody will serve as a wake-up call to eminent domain exploiters and reformers alike that the fight over how to restrain this government power is not over yet.

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New York Sun: www.nysun.com

Senate acts to limit economic use of eminent domain: Philadelphia (PA) Inquirer, 12/8/05

Critics warned that community renewal could be harmed. Rendell has reservations over the bill.

By Diane Mastrull and Angela Couloumbis
Despite warnings that the revitalization of cities and older towns would suffer, the Pennsylvania Senate yesterday passed legislation to limit government's ability to seize private land for economic reasons.

The so-called Property Rights Protection Act, which prohibits the use of eminent domain for private economic development and tightens the definition of blight, was unanimously approved and heads to the House for consideration. The House passed a similar measure last month.

But Senate Bill 881, written by Senate Majority Whip Jeffrey Piccola (R., Dauphin), has been considered the leading legislation of several bills pending in Harrisburg aimed at reining in the controversial property condemnation process of eminent domain.

Those efforts, along with others in Congress and in more than 30 states, are in response to a U.S. Supreme Court decision in June that expanded the concept of what is a justified use of eminent domain.

In Kelo v. the City of New London, the justices ruled that the Connecticut city could force the sale of homes and businesses in a neighborhood not deemed blighted to make way for private economic development.

What followed were predictions by property rights groups of land grabs by local governments. Lawmakers rushed to their statehouses with proposals aimed at slamming shut a door the justices opened.

"The idea that a citizen's property can be taken by the government and turned over to another citizen for nongovernmental use is simply an outrageous proposition and something that was never intended by our founding fathers," Piccola said in a statement yesterday.

Redevelopment advocacy groups lobbied right up to yesterday's late-afternoon vote to try to get what they considered the most objectionable provisions in the bill stricken. Those included a ban on the use of eminent domain for private investment and a requirement that a majority of a property must be blighted in order for condemnation to be used to acquire it.

Those efforts were fruitless.

"The bill is detrimental to the state as a whole and particularly to our older communities," said Janet Milkman, president of 10,000 Friends of Pennsylvania. "Private investment is the key to their survival and this bill chases it away."

Milkman said her group would now work on getting the House to amend the bill or pass another bill "that better reflects the realities of redevelopment and the actual impact of eminent domain in Pennsylvania."

Among those supporting Piccola's bill is the Washington-based Institute for Justice, a Libertarian public interest, nonprofit law firm that locally has helped Lower Merion residents fight a plan by the township to possibly use eminent domain to revitalize the Ardmore business district.

Steve Anderson, a lawyer with the institute, said the Piccola bill could serve as a national model for eminent domain legislation in that "it attacks both condemnations for private commercial development and blight."

Gov. Rendell is not yet won over.

"We still believe there is more work to be done," said Rendell spokeswoman Kate Philips. "The governor has said he can support a bill that strikes a fair balance between homeowners' rights and the good of an overall community. Hopefully, we can get something to the governor's desk that does that."

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Philadelphia Inquirer: www.philly.com

Rangel wants eminent domain bill reworked: New York (NY) Business.com, 12/5/05

By Erik Engquist
The bill to restrict the use of eminent domain that overwhelmingly passed the House should be revised in the Senate, said Rep. Charlie Rangel, D-Manhattan.

Speaking at a Crain’s New York Business forum today, Rep. Rangel said the bill should clarify the conditions for eminent domain usage rather than leave the question to courts. He would allow eminent domain if it were used to produce affordable housing, he said. The bill seems to allow for that, though it isn't mentioned specifically in the text, his office said.

Reps. Anthony Weiner, D-Queens, and Carolyn Maloney, D-Manhattan, who appeared with Rangel at the forum and who also voted for the House bill, remain opposed to any use of eminent domain to benefit a private developer. “Eminent domain is one of the most awesome powers of government and should only be used for public good,” said Rep. Maloney. They didn’t mention the affordable housing issue.

Rep. Weiner said he supports the Atlantic Yards project proposed for Brooklyn by Forest City Ratner Cos. He predicted the company will be able to purchase all the needed property without using eminent domain.

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New York Business.com: www.newyorkbusiness.com

Sanford to push for protection against eminent domain: WIS-TV (Columbia SC), 12/5/05

By Bryce Mursch
Governor Mark Sanford was in Aiken on Monday to emphasize the need for strengthening the state's eminent domain laws in the wake of a recently-defeated local TIF proposal.

Earlier this year, the governor vetoed S.97 because of his concern that it expanded eminent domain powers at the expense of private property rights. That same bill was almost used to create a TIF district that gave benefits to private developers.

Governor Sanford said that issue, combined with the recent US Supreme Court decision, Kelo v. City of New London, Connecticut, have illustrated the need for stronger eminent domain protections in our state, and that he will work with leaders in the General Assembly to promote that legislation in the coming year.

"Protecting property that people have invested money, work and time into over the course of many years is key to allowing families to create wealth, and key to the notion of quality of life," Gov. Sanford said. "I think the recent US Supreme Court decision was a step in the wrong direction when it comes to protecting one of our most important constitutional rights, and it means we have to take a new look at and shore up existing laws rather than be forced to react later on down the road."

Sanford identified several issues for possible incorporation into a bill in the coming legislative session. Among those are limiting which governmental authorities can use eminent domain, better defining the term "public use," and tightening the definition of what constitutes a "blighted area."

Gov. Sanford also thanked key legislators that have committed to working on this issue going forward.

Since the Kelo decision, at least 21 other states have begun work on strengthening their eminent domain statutes. Several states are considering constitutional amendments, while the governor of Connecticut, where Kelo originated, has called for a moratorium on cities using their eminent domain powers.

Alabama and Texas both called a special legislative session to deal with the issue.

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WIS-TV: www.wistv.com

The Kelo Backlash So Far: Positive Liberty, 12/05

By Timothy Sandefur, Pacific Legal Foundation
In the months after the Kelo decision was announced there was much talk of a "backlash" in the states. Since state law can provide greater protections to people than federal law does, people hoped to change state law to protect themselves from eminent domain abuse. But, as I argue in a forthcoming paper, the backlash so far has accomplished little.

Most state legislatures have been out of session since shortly after Kelo was announced, which means that so far only four states have enacted laws in response to Kelo: Alabama, Texas, Ohio, and Delaware. Unfortunately, these four provide little protection for property owners, despite their big promises. In other states, the situation has been even more disappointing. California's legislature considered three measures to limit eminent domain abuse, and turned all three down, even though two of these would have been band-aid solutions that would have done very little.

When the other state legislatures come back into session in January, can citizens of other states hope for greater protection? Only time will tell, but I'm pessimistic. There are two major obstacles to serious eminent domain reform: the public choice effect, and the sad state of American political philosophy. Still, there may be reason for optimism: the Pennsylvania state house has passed a bill which, if enacted, would create excellent protections for the state's property owners, and the U.S. House of Representatives has also passed an excellent bill limiting the availability of federal funding for projects in which eminent domain is used for economic development.

Let's take a very brief look at the four bills that have passed, as well as the three proposals that failed in California, and then the Pennsylvania and federal laws that have each made it half way through their respective legislatures.

Alabama
On August 3, Alabama became the first state to respond to Kelo by enacting S.B. 68A. This law adds two sections to the Alabama State Code. After reaffirming the power of eminent domain, the operative paragraph of the first section declares that

Notwithstanding any other provision of law, a municipality or county may not condemn property for the purposes of private retail, office, commercial, industrial, or residential development; or primarily for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation, or other business entity. Provided, however, the provisions of this subsection shall not apply to the use of eminent domain by any municipality, housing authority, or other public entity based upon a finding of blight in an area covered by any redevelopment plan or urban renewal plan pursuant to Chapters 2 and 3 of Title 24, but just compensation, in all cases, shall continue to be first made to the owner.

The italics highlight the problem. Although SB 68A forbids the use of eminent domain for private uses or solely to enhance tax revenue, it continues to permit the use of eminent domain for redevelopment pursuant to two chapters of Title 24 of the Alabama Code, sections devoted to urban renewal and redevelopment projects.

Chapter 2 of Title 24 targets neighborhoods which "impair economic values and tax revenues, cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the state." It allows "the clearance, replanning and preparation for rebuilding of these areas and the prevention or the reduction of blight." The "clearance" — i.e., condemnation — of such areas is declared to be a "public use[] and purpose[] for which public money may be spent and private property acquired." The chapter specifically authorizes a government "housing authority…or any incorporated city or town" to use eminent domain

(1)…[t]o acquire blighted areas, which are hereby defined as areas, including slum areas, with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals or welfare of the community;

(2) To acquire other real property for the purpose of removing, preventing or reducing blight, blighting factors or the causes of blight….[and]

(4) To sell or lease land so acquired for uses in accordance with the redevelopment plan….

Chapter 3 gives similar authority to officials to "plan and undertake urban renewal projects," including the authority to "eliminat[e] (and…prevent[]…the development or spread) of slums or blighted, deteriorated or deteriorating areas." Among the things that cities may do to "prevent the development of deteriorating areas" are the following:

Acquisition of real property [through eminent domain] and demolition, removal or rehabilitation of buildings and improvements thereon, where necessary to eliminate unhealthful, unsanitary or unsafe conditions, lessen density, reduce traffic hazards, eliminate obsolete or other uses detrimental to the public welfare, or to otherwise remove or prevent the spread of blight or deterioration or to provide land for needed public facilities.

Before exercising the power to "acquire," or "demolish," or "remove" buildings which are "obsolete" and "detrimental to the public welfare," city officials must create a redevelopment or urban renewal plan. Such a plan must "provide[] an outline for the development or redevelopment of [the targeted] area and [must be] sufficiently complete:

(1) To indicate its relationship to definite local objectives as to appropriate land uses and improved traffic, public transportation, public utilities, recreational and community facilities and other public improvements;

(2) To indicate proposed land uses and building requirements in the area; and

(3) To indicate the method for the temporary relocation of persons living in such areas and also the method for providing, unless already available, decent, safe and sanitary dwellings substantially equal in number to the number of substandard dwellings to be cleared from said area, at rents within the financial reach of the income groups displaced from such substandard dwellings.

This requirement is a procedural barrier that is quite easy for city officials to cross. The requirements impose no limit on the uses to which private property may be put as part of a redevelopment plan, so a plan may include redistribution of property to private developers. Even non-blighted, commercially viable property may be condemned in Alabama if it is part of a neighborhood that is declared blighted: "the mere fact that some of the buildings in the area are standard and substantial does not require that they be omitted from the operation of the project." And since Alabama's redevelopment laws allow not only for the eradication of slums, but also for the "prevention" of "deteriorating" areas, redevelopment authorities are free to condemn property solely for the purposes of improving the local economy.

So, under Title 24, city officials may declare property "deteriorating" whenever it fails to perform economically up to an standard that they would prefer to see. Officials may draft a redevelopment plan, adopt it by a city council vote, and use it to condemn homes and businesses for economic development.

None of this is changed by SB 68A. It specifically preserves the operation of Chapters 2 and 3 of Title 24 without alteration. The new law simply reiterates that the state may condemn property only after it has followed the relatively simple procedure of declaring the area blighted and preparing a redevelopment plan. These are not serious obstacles to determined developers and bureaucrats.

Texas
On September 1, Texas Governor Rick Perry signed SB 7B, a long bill which in some ways repeats the errors of the Alabama legislation, and in other ways, does improve protections for Texas property owners. SB 7B amended Texas' eminent domain laws to prohibit "the use of eminent domain" if the taking:

(1) confers a private benefit on a particular private party through the use of the property;

(2) is for a public use that is merely a pretext to confer a private benefit on a particular private party; or

(3) is for economic development purposes, unless the economic development is a secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society from slum or blighted areas under:

(A) Chapter 373 or 374, Local Government Code, other than an activity described by Section 373.002(b)(5), Local Government Code; or

(B) Section 311.005(a)(1)(I), Tax Code.

As with the Alabama law, the exceptions provided for in subsection 3 undo many of the promised protections of subsections 1 and 2. Under the Fifth Amendment's Public Use Clause, even after Kelo, it is already unconstitutional for states to employ their eminent domain power to "confer a private benefit on a particular private party" or to do so under a pretext. The problem is that "public benefit" is defined so broadly, and that legislatures are given so much judicial deference, that almost any private benefit can be rationalized as being public benefits, and hence evade the supposed limits on eminent domain.

Although the Texas Constitution declares that property may only be taken for a public use, the state's courts, like federal courts, have interpreted the "public use" requirement to allow the transfer of condemned property to private parties so long as doing so benefits the public in some way. In fact, chapters 373 and 374 of Texas' Local Government Code — which cover "community development" and "urban renewal," respectively — are unusually explicit in the degree to which they allow for private entities to benefit from the use of eminent domain. Under Texas law, eminent domain may be used to condemn private property that fails to perform economically, and to transfer, lease, or sell that property to private developers who use the property for their own profit.

There are, however, two significant improvements in the Texas reform measure. First, although it allows condemnations under chapters 373 and 374 to continue unaltered, it does limit the use of eminent domain as provided for by other Texas statutes. The state's laws allow cities to condemn property to construct sports stadiums, or to provide "librar[ies]," "auditorium[s]," "market house[s]," "recreational facilit[ies]," or "for any other municipal purpose the governing body considers advisable." Texas even explicitly allows local governments receiving federal economic development grants to "lease or convey [condemned] land…without the solicitation of bids, to a private, for-profit entity or a nonprofit entity…if the land or interest will be used by the private, for-profit entity…in carrying out the purpose of the…grant…if the [city] adopts a resolution stating the conditions and circumstances for the lease or conveyance and the public purpose that will be achieved." All of these provisions are now restricted. This was made clear by the fact that, at the last minute, some craven legislators amended the bill specifically to allow the Dallas Cowboys to continue with their plan to condemn private property for the construction of a football stadium!

The second improvement in SB 7B is its limitation on the deference accorded to condemnation decisions. It declares that "the determination by the governmental or private entity" that a proposed condemnation "does not involve" a forbidden private taking "does not create a presumption" which courts are obliged to follow. In simpler terms, a legislative declaration that a taking is for a public use shall not receive judicial deference. This is probably the most significant part of the legislation, given the threat that such deference poses to property owners. In the past, Texas courts have declared that "where the legislature has declared a certain act to be for a public use, such declaration must be given weight by the courts," which makes it difficult for property owners to prevail. By eliminating this presumption, SB 7B provides for genuine judicial review of the legitimacy of takings.

Delaware
S.B. 217, signed by Governor Ruth Ann Minner on July 21, is little more than a paragraph long. It declares that:

Notwithstanding any other provision of law to the contrary, the acquisition of real property through the exercise of eminent domain by any agency shall be undertaken, and the property used, only for the purposes of a recognized public use as described at least 6 months in advance of the institution of condemnation proceedings: (i) in a certified planning document, (ii) at a public hearing held specifically to address the acquisition, or (iii) in a published report of the acquiring agency.

The bill also amends a section of the law to pay for the attorneys' fees of parties whose property is taken through eminent domain.

While the six month cooling-off period may have its advantages, it has three major flaws. First, the provision does not affect the definition of a "public use" in any way. Second, while allowing the public an opportunity to protest the condemnation of property is certainly laudable, the security of private property rights cannot be entrusted to the political process. Third, a six-month cooling off period may prove unworkable without exceptions, which may doom this provision to being amended and eventually repealed.

The definition of "public use" is, of course, at the heart of the entire controversy over eminent domain. The Delaware reform measure simply refers to "a recognized public use." But the state's courts have held that "agencies of the State may condemn private property [and transfer it to private parties] provided that the primary purpose of the condemnation is to benefit the public." Without defining "public use" with greater precision, the Delaware reform measure will do little.

The six-month requirement is likely to give residents of affected neighborhoods time to rally in opposition to an exercise of eminent domain, and such political opposition has proven effective in restraining abuses of eminent domain. But political opposition is simply not enough to prevent the abuse of this power. As Justice Robert Jackson famously noted, "[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to…property…may not be submitted to vote; they depend on the outcome of no elections." While it is gratifying to see citizens protesting the abuse of their rights and challenging such abuses at the ballot box, it is not a sign of constitutional health.

Finally, the prevalence of so-called "quick take" measures reveals that in many circumstances, a strict waiting period is simply not considered possible, and it is easy to conceive of at least some emergency instances in which it would be legitimate for government to condemn property more quickly. In such a circumstance, it is far more likely that exceptions will be added to the sixth-month requirement than that the state will abide by it in the face of extraordinary pressure. As Alexander Hamilton once observed, "[w]ise politicians will be cautious about fettering the government with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable."

Ohio
Ohio is one of the most abusive states when it comes to eminent domain. The state's courts are extremely deferential to legislative declarations that an area is "blighted," and they will only overturn such declarations when they are "arbitrary," "unconscionable," or if there is "no sound reasoning process that would support that decision." Thus Ohio courts not only interpret "public use" liberally, but even give "a liberal interpretation" to the term "blight."

Ohio's reaction to Kelo, SB 167, imposes a moratorium, effective until December 31, 2006, on all condemnations of "private property that is not within a blighted area, as determined by the [condemning agency], when the primary purpose for the taking is economic development that will ultimately result in ownership of that property being vested in another private person."

During the moratorium period, a Legislative Task Force to Study Eminent Domain and Its Use and Application, will convene to study the issue and write a legislative report. This task force will be made up of 25 members: three members of the state House, three members of the State Senate, one "member who shall be a statewide advocate on the issues raised in Kelo," one attorney representing Ohio property owners, two attorneys with special expertise in eminent domain law, one non-attorney representative of Ohio property owners, one person representing small businesses, one person delegated by the Director of Development, another delegated by the Director of Transportation, and one member each representing the following: the "home building industry," the real estate industry, the planning industry, licensed realtors, labor unions, historic preservation organizations, municipal corporations, counties, townships, and a representative of the Ohio Prosecuting Attorneys Association or the Ohio Association of Probate Judges.

Three observations come immediately to mind: First, this moratorium does not apply at all to condemnations of property that are already "within a blighted area." Condemnations in these properties may proceed unhindered. Second, it seems to apply only to condemnations of property for "economic development," as distinguished from condemnations that are supposed to eradicate blight. But these are not distinguishable concepts. Because properties are often declared blighted due to their failure to perform up to a desirable economic level, economic development projects routinely start with a declaration that the current use of property constitutes a blight. Finally, and most importantly, the Ohio Legislature is not obligated to act on the Task Force's report in any way. Considering the state's record it seems highly unlikely that serious reform will follow the Task Force's report.

California
Despite much public outrage over the Kelo decision, California has yet to enact any provision to limit the abuse of eminent domain. Three attempts to limit the power redevelopment condemnations were quickly buried by the state Legislature.

The first proposal, SCA 12, would have amended the state Constitution by adding a single sentence: "Public use does not include the taking of owner-occupied residential property for private use." This provision has two flaws. First, it is already the law, and always has been, both in California and nationally, that private property may not be taken for "private use." Kelo does not declare otherwise. It simply held that a taking is not a "private use" if it is rationally related to a legitimate public interest. Since condemnation and private transfer of property in blighted areas is considered a public use, a ban on takings for "private use" would be legally meaningless. Second, SCA 12 would have applied only to "owner-occupied residential property," and not to businesses, apartments, churches, or other private property throughout the state. This is startling, given that most victims of private takings in California appear to be small businesses. The condemnation of the Gran Havana Cigar Factory in San Diego is a prime example.

The second California proposal, SB 1026, was also limited to "owner-occupied residential property." Like the Ohio reform measure, this proposal would have imposed a two-year moratorium on condemnations of such property, while a committee wrote a report on eminent domain abuse. Like SCA 12, this proposal would have done nothing to protect businesses, churches, apartment buildings, or other properties. Unlike SCA 12, this proposal actually defined "private use" — as "any use other than as a public facility or a public works that is owned and operated by the public entity" — which would have given the proposal at least some legal significance. But since it only imposed a moratorium, without requiring that the state legislature do anything once the investigation was completed, the proposal would probably have accomplished little.

The third proposal, SCA 15, would have imposed meaningful limitations on the abuse of eminent domain. It would have amended the state Constitution to prohibit the use of eminent domain except where the taken property was "owned and occupied by the condemnor, or another governmental agency utilizing the property for the stated public use…or…leased only to entities…regulated by the Public Utilities Commission." Although it allowed for the incidental use of government property for "gift shops, newsstands, shoeshine stands" and other occasional uses, as well as the use of eminent domain to provide for public utilities, SCA 15 would have forbidden government from taking people's homes, businesses, farms, churches, or other property, and giving the land to private commercial entities for their own use and profit. SCA 15 would therefore have restored the "actual public use" interpretation of the public use clause, whereby eminent domain could only have been used to provide government-owned, and government-operated buildings, including roads, schools, or parks.

All three of these proposals were defeated in the state legislature. As well-known Sacramento journalist Dan Walters noted, defenders of eminent domain hoped to "cool off the anti-eminent domain fervor," by drafting "legislation that would place a two-year moratorium on the seizure of private homes (but not commercial property), and authorize a study of the practice, thus giving their members a chance, or so it seemed, to side with the anti-eminent domain sentiment without doing any real damage to redevelopment agencies." But even such watered-down proposals failed. At the time of this writing, several other bills are still pending in the legislature, but few of them promise serious protection for property owners.

Pennsylvania
On November 1, the Pennsylvania House of Representatives passed HB 2054. This bill prohibits the use of eminent domain "to take private property in order to use it for private commercial enterprise." The only exceptions are cases in which the property owner consents, where the property is transferred to "a common carrier" or "incidental" commercial activities such as gift shops or newsstands in government buildings, where the condemnation is necessary to eliminate public nuisances or dangerous buildings, or where the condemnation is necessary to eliminate "blight" as narrowly defined by the bill itself.

The definition of blight in HB 2054 eliminates the possibility of economic development condemnations in the style of Kelo: it allows government to declare property blighted only if it is actually a danger to the public (e.g., "a structure which is a fire hazard or is otherwise dangerous to the safety of persons or property"; or "any vacant or unimproved lot…in a predominantly built-up neighborhood which, by reason of neglect or lack of maintenance, has become a place for accumulation of trash and debris or a haven for rodents or other vermin"). In addition, it places a 10-year limit on the lifespan of any declaration of blight.

The Pennsylvania bill is a well-crafted, carefully thought-out measure which provides serious protection for property owners, while allowing government to eliminate actual cases of dangerous or misused property. It contains none of the loopholes of the Alabama or Texas measures. The bill is now awaiting approval in the Pennsylvania State Senate.

The United States
Although the federal government does not usually engage in redevelopment condemnations itself, federal funding is behind a great many such cases, including the notorious Poletown case in Michigan. HR 4128, the "Private Property Rights Protection Act of 2005," received an overwhelming vote of 376 to 38 on November 3. The bill prohibits states or cities from exercising eminent domain "over property to be used for economic development…if that State or political subdivision receives Federal economic development funds." It defines condemnation for economic development as "taking private property, without the consent of the owner, and conveying or leasing such property from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax revenue, tax base, employment, or general economic health." It allows condemnations for common carriers, roads, military installations, the elimination of nuisances, and other traditional uses of eminent domain. States or cities violating the prohibition are punished by being made ineligible for federal funding for two years.

Considering the enormous influence that federal funding has on local governments, there is reason to believe that if HR 4128 is passed by the Senate and signed by the President, it will greatly limit the number of Kelo-style redevelopment takings.

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Positive Liberty: http://positiveliberty.com

Timothy Sandefur is an attorney with the Pacific Legal Foundation:
www.pacificlegal.org

Lawmakers will seek to limit eminent domain: Pueblo (CO) Chieftan, 12/2/05

Opinion

By Lewis Entz, CO State Senator
One of the most critical issues that the Colorado General Assembly will take up in the coming session is the limitation of eminent domain. Eminent domain is the process that the government uses to take private property away from landowners and use it for the public good, such as for a highway or a school.

Last June, the U.S. Supreme Court delivered a very troubling ruling, in Kelo v. City of New London, that expands eminent domain powers far beyond this traditional role. The Kelo ruling allows governments to take land from one private owner and give it to another private owner for no reason other than to generate more tax revenue. I’ve received many cards and letters from constituents concerned about the abuse of eminent domain following that widely reported court decision. I’m writing to let all my constituents know I’ve heard your concerns on this important issue - and I’m on your side.

Any time the government takes land by force and gives it to another private party, we’re treading on dangerous ground. But this Kelo decision sets such a low standard for justifying it - that there be some vague “public benefit” - that abuse is all but certain.

I’ve been serving in the Legislature long enough to know that the “public benefit” usually is not in the best interests of the homeowner or the business owner.

As Justice Sandra Day O’Connor pointed out, this new standard places all private property at the whims of politicians: "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The good news is that Colorado can still place legal restrictions on eminent domain in order to curb the ability of local governments to condemn private land. The scope of eminent domain is a perennial issue in the Legislature, but this year there will be need to comprehensively review and define the limitations of government takings.

Even before the Kelo decision, many local governments in Colorado have used eminent domain to supplant private property with more lucrative big-box developments. These abuses have generally taken place in the Denver metropolitan area, and it is unlikely that they would occur in the San Luis Valley and other rural areas. However, property rights are too fundamental to our way of life to leave this to chance.

There are other concerns here as well. As unlikely as it might seem, the Kelo ruling could open the door for local governments to pursue other agendas at the expense of landowners. It could easily be used to turn private property into open space for environmental protection. More radically, it could be used to condemn gun shops, shooting ranges, and hunting lands in an indirect attack on gun rights. I think we can all agree that such pursuit of political agendas would be unacceptable, and an unconscionable abuse of eminent domain.

As the Legislature works next year to clearly define what is and is not a legitimate use of eminent domain, I will be making sure that property rights of all kinds are protected from egregious abuses. The standard for taking property from one private party and giving it to another needs to be a very, very high hurdle.

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Pueblo Chieftan: www.chieftain.com

Lewis Entz represents Senate District 5, which includes Alamosa, Conejos, Costilla, Mineral, Rio Grande, Saguache, Delta, Pitkin, Chaffee, Gunnison, and Hinsdale counties. He serves on the Senate Agriculture Committee and the Senate Local Government Committee. He can be reached at the capitol at 303-866-4866 or by email at lewis.entz.senate@state.co.us.

Beware council's eminent-domain tactics: Palm Springs (CA) Desert Sun, 12/4/05

Valley Voice

By John Howell
There's a quiet revolution going on across the country. It is the direct result of the recent U.S. Supreme Court ruling in the Kelo case, which ruled that local governments could take private property and give it to a large developer under the guise of doing what is necessary for "the greater good."

This is happening in our valley right now, championed by members of the Cathedral City Council. And they want to keep it quiet because recent surveys have shown that more than 90 percent of all Americans - rich and poor, liberal and conservative, black, brown and white - all oppose these "takings" for "the public good."

Last month, Congress passed an anti-takings law (HR 4128) by a 376-38 vote. The bill restricts the use of federal funds on private development projects that seek to use eminent domain. The bill's sponsor, Rep. Todd Aikens, R-Mo., said, "The taking of private property to be given to private interests for economic gain flies in the face of basic American values, and jeopardizes the American Dream." Sens. Bill Nelson, D-Fla., and John Cornyn, R-Texas, are sponsoring a bill in the Senate to put similar restrictions on cities and states. Around the country, state governments are beginning to address these takings, which most of their constituents see as unfair and anti-American.

That hasn't stopped the members of the Cathedral City Council. They are moving quickly to take whatever property they can before any such law may be enacted.

Hitting close to home
My mother and father are veterans of World War II. Mom was an Army nurse, and dad was a private. They met in England during the war, fell in love and were married there. After the war they came back to America - like so many others - and began to build a life.

Some years later, they followed other family members and migrated to Southern California and have lived in the desert for more than 30 years.

During the 1960s, members of my family bought some commercial frontage property on Highway 111 in Cathedral City. They bet all that they had on this property, and worked hard for decades to improve it and make it successful so that it might support them in their later years. It was how things were done in America.

The Cathedral City City Council has already taken one of their properties "for the greater good," and is now in the process of taking another to build yet another car dealership. This second property provides a significant part of the income my mother and father, both in their 80s, live on each month. I expect they will lose the property and the income. I expect the city again will offer a low-ball price for their land. Just how many car dealerships does Cathedral City need?

What they will do
Before this happens to you, you should know what you can expect from the Cathedral City City Council if they come for your property. They will:

• Work with a large developer and give you no chance to be part of the project.
  
• Not tell you about it; you'll find out by reading it in The Desert Sun.
  
• Offer you 50 percent or less of the appraised value of your land when they take it.
  
• Be angry with you when you object.
  
• Force you to pay attorney fees to go to court to try to get fair value for the land they are taking.
  
• Allow you three minutes at their public council meeting to protest; they then will talk as long as they want about you and give you no time for rebuttal.
  
• Continue to cite "the public good" as their reason contrary to overwhelming public opinion.

The city has identified 50 other parcels of land they might take in the future. Your property could be next.

My family is not opposed to community development - only to taking land from the unwilling. In an effort to save our property, we offered to work with the city to redevelop our land. We submitted several plans and offered to change or modify them to better meet the city needs. It has become very clear that the city only wanted the revenue that car dealerships can bring. It was all about the money.

Take action now
So what can you do? You can contact your state legislators. The Supreme Court, in its Kelo ruling, left open the option of each state to set its own laws in this matter. California needs to move on this now.

Tom McClintock, R-Thousand Oaks, has introduced a bill (SCA15) in the State Senate, and Doug LaMalfa, R-Richvale, has one in the Assembly.

Neither has gotten out of committee yet, and your representatives need to hear from you. Municipalities - who want to keep the power to take land - have considerable influence in Sacramento. Voters have more.

If you're a resident of Cathedral City, you can let the council know how you feel. They have not had a bright light shined on this behavior, and when that happens by the council members hearing from you, we could hope they listen. They will talk about their financial problems - many cities have them - and they see this as a way out (The "greater good," remember?).

They are enamored of the tax revenue that auto dealerships bring in. But at what point do they say "enough"? At what point do we say it? At what point are there enough car dealerships? My family thinks there is room for other businesses, and we want to continue to provide those opportunities.

And you can ask the council members, in whatever city you reside, to find ways to live within their means. As citizens, we all have to do that. City governments need to be fiscally responsible so that they don't have to resort to these tactics to try to balance their budgets.

So when the hard-earned tax dollars from legitimate Cathedral City businesses isn't enough for the elected officials at "Taj Ma-city Hall," perhaps the fault is with the officials and not the citizens. They won't see it that way, of course. So beware. My family is already paying a large price for "the greater good." You could be next.

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The Desert Sun: www.thedesertsun.com

Whose Domain? Allentown (PA) Morning Call, 12/4/05

Opinion
Pennsylvania can break new ground in protecting property owners from abusive land-takings

By Steven Anderson and Dana Berliner
Pennsylvania is poised to become the first state to effectively rein in eminent domain abuse.

Very shortly in Harrisburg, the Senate will vote on S.B. 881, the Property Rights Protection Act, a thoughtful response to the tragic U.S. Supreme Court decision in Kelo v. City of New London and Pennsylvania's horrible history of using the power of government to transfer homes and small businesses to well-connected developers.

As the nation's leading advocate for owners affected by eminent domain for private development, we've seen a number of reform bills introduced and signed into law. None has come close to the sensible reforms now introduced by Sen.Jeffrey Piccola, R-Dauphin, and 26 co-sponsors. Unfortunately, those who want no limits on eminent domain are plying their considerable influence — they've already gotten the Senate vote on the bill postponed — to sabotage any real reform.

The current bill does two simple things: it prohibits the use of eminent domain for commercial development and tightens the definition of blight. Under current law, an area can be razed if only 10 or 15 percent of its buildings have supposed "blight," and the standards for determining blight are lax. Instead, the reform bill would require a majority of the property in an area be truly blighted to use eminent domain.

Cities would retain considerable leeway in blighted areas under the new law, as well as the long-standing ability to condemn abandoned, dangerous or severely tax delinquent properties.

To be sure, the bill could be even stronger. But it strikes a reasonable balance by preserving municipalities' ability to address real problems, while giving property owners much-needed protections.

For too long, overzealous local governments, armed with fancy conceptual drawings and the studies paid for by self-interested developers, have threatened property owners in Pennsylvania with eminent domain for private profit.

For example, the Ardmore Historic Business District, including Scott Mahan's third-generation office supply store, Eni and Betty Foo's Chinese restaurant and the VFW and American Legion posts, may be leveled for newer, sterile stores and condominiums. Peter and Robin West's art studio and home in Washington could be razed for a retail, commercial and residential development. Coatesville residents Dick and Nancy Saha spent six years and the bulk of their retirement savings to prevent their family farm from becoming a golf course.

The proposed new bill would help end such abuses, but will leave untouched local governments' ability to acquire property to build everything traditionally considered a public use, like roads, bridges, schools and courthouses. They can still build water mains and power and sewer lines.

Cities will still have the power of eminent domain, but they wouldn't be able to use that power just because private developers want to make more money with other people's land. Development will still occur, but it will occur as the result of private negotiation, not by government force.

Under current law, any home, small businesses, church, farm or other property can be taken if it is deemed "economically undesirable," and opponents of the reform bill-those, such as developers and municipalities, whose reaction can be measured by the power they stand to lose, have suggested that any reform effort make an exception for "economic blight."

What both terms really mean is someone else has a plan for your property that forecasts greater tax revenue. As a result, no one's property would be safe — anyone's home or small business could make more money as a luxury condominium or a big-box store.

To allow property to be taken for those reasons would render the protections in the reform bill worthless.

Americans everywhere have voiced near-universal disapproval with the Kelo decision and the unfettered ability of government to take property from one person only to give it to someone else with more money or better connections. This bill shouldn't be hijacked by the special interests that are interested only in fattening their wallets or tax coffers. Pennsylvania, a battleground for rights throughout this nation's history, has the chance to restore the most basic right of all, the right to keep what you own. Citizens should tell their elected representatives not to let the opportunity for real reform go by.

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The Morning Call: www.mcall.com

Steven Anderson is the coordinator of the Castle Coalition, a nationwide network of citizen activists fighting eminent domain abuse.

Dana Berliner is a senior attorney at the Institute for Justice, a legal advocate against eminent domain abuse.

Easton may take South Park land by eminent domain: Fairfield (CT) Minuteman, 12/1/05

By Bill Bittar
The future holds several possibilities for the South Park Avenue property formerly known as DiNardo Farm. Age restricted condos may crop up, 74 affordable units could be installed on concrete slabs or the 29.6 acre parcel could become a public park with access to trout fishing in Mill River.

The property, at 18 and 22 South Park Ave., is owned by Running Brook Farm LLC, which is appealing a Planning & Zoning Commission decision to deny its plan to build 44 units of age-restricted housing last year. While the case makes its way through court, Running Brook has a new application for 74 units of affordable housing before the town's land use boards. Now, the Board of Selectmen is considering taking the parcel by eminent domain for open space, which would prevent any development on the property.

"We're looking at all the options the town has," First Selectman William Kupinse said Monday. "The Board of Selectmen has not decided absolutely on taking the property. If terms can be worked out, we would certainly consider buying the property. If terms cannot be worked out, we may decide to take the property."

"The town's going to pursue every option to protect the town's interests in terms of South Park Avenue," Selectman Robert Lessler said Monday.

The selectmen met with the finance board in executive session - which is closed to the public - about a month ago to discuss the town's options. And at its November meeting, the Board of Finance approved funds for an updated appraisal of the South Park property and for a design of a public park to be drawn up. The board also allowed the P&Z to hire an expert to study the proposed sewer system for the affordable housing plan and for attorney Ira Bloom to serve as legal counsel for the P&Z and the Conservation Commission in the matter.

"I wouldn't want to comment until I was contacted by the town," Matthew Ranelli, the attorney representing Running Brook Farm LLC and its developer, Philip DiGennaro, said Monday.

The P&Z hearing on the affordable housing application held in November was continued to Dec. 12 and the Conservation Commission will review the plan on Dec. 13.

Criticizing the plan
Both Lessler and Kupinse oppose Running Brook's affordable housing plan. Scott Centrella, who is the third selectman, was unavailable to comment by press time. Because 23 of the units would be sold below market value, the plan meets the state definition of affordable housing. As a result, the burden of justifying a denial would fall on the town.

Kupinse believes the state statute is meant to enable developers to build denser housing in towns, rather than to promote affordable housing. Thirty percent of an application's housing units must meet the state definition of being affordable, while 70 percent may be sold at market value.

"I think it's a thrown together development, which is more like a glorified trailer park than an affordable housing development," Kupinse said. "And I'm not so sure the sewer treatment plant they have is sufficient to handle the sewage. If there are problems, they ultimately fall on the town."

Lessler said the quality of the construction for the modular units in the proposal is unappealing and "the lowest possible." He also expressed concern over the increase in town services that a significant number of school-age children living in the housing could demand, and health concerns due to the close proximity of Mill River.

Kupinse said the town had appraised the South Park property at around $3.2 million last year. But both he and Lessler said one drawback of taking the property by eminent domain is that the town could pay the owner what it believes the land is worth, only to have a judge decide it is worth more, after the town is already committed to buying it.

"There are certainly other possibilities within the universe of possibilities," Lessler said of options for the Board of Selectmen to pursue. Among them, he said are negotiations between town officials and the developer for sale of the property to the town; for the developer to bring back a modified version of the age-restricted housing plan; or for another type of development to be proposed.

"We all have to put our thinking caps on," Lessler said.

Town park favored
Kupinse said a park "makes sense" because the town already owns open space property across the river and the Aspetuck Land Trust owns a chunk of property to the northwest of the parcel. He said the next step is for the Board of Selectmen to try to reach out to the property owner to see if there is any interest in selling the land to the town without pursuing eminent domain to take the property.

Andrew Kachele, a Board of Finance member, said he and his fellow board members had all agreed to fund the appraisal and park design to allow the Board of Selectmen to gather the information it needs to make a decision down the road. In the meantime, Kupinse said a decision on whether to approve the affordable housing plan rests with members of the P&Z and the Conservation Commission.

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Fairfield Minuteman: www.zwire.com

LaMalfa rips ruling on eminent domain: Red Bluff (CA) Daily News, 12/2/05

Yolo judge OKs acquisition of Conaway Ranch
Yolo Superior Court Judge Timothy Fall Thursday ruled that Yolo County can acquire Conaway Ranch through eminent domain proceedings.

"The Yolo County Board of Supervisors applauds the court's decision," said board chair Helen Thomson.

"Today's ruling allows us to preserve the most significant remaining open space and agricultural lands in the county, for the future of our county, by protecting it from private land speculators and developers and keeping our water in Yolo County," Thomson said.

Assemblyman Doug LaMalfa, R-Richvale, doesn't see the victory as a positive. In fact, in a statement released Thursday, he decried the ruling.

"It is disappointing to be that the ruling was against the legal owners of this land, but it only underscores what needs to be done to safeguard private property ownership in this state," said LaMalfa.

"The land grabbers and their apologists would say that we already have adequate protection," LaMalfa said.

"This decision clearly illustrates the deficiency in law that judge and jury would make such a finding regarding farmland legally purchased and owed by any Californians," LaMalfa said.

Conaway Ranch, east of Woodland, consists of 17,300 acres of agriculture and wetlands habitat and 50,000 acre-feet of water rights.

In the spring of 2004, National Energy & Gas Transmission, Inc. (NEGT), a bankrupt Maryland-based company, put Conaway Ranch up for sale in a closed-bidding process not legally open to the county as a public agency.

According to a press release sent by Yolo County, after attempts to negotiate with NEGT were rebuffed the Yolo County Board of Supervisors voted unanimously on July 8, 2004, to take action to protect and preserve Yolo County's largest remaining agricultural and open space area.

Supervisors chose to initiate eminent domain proceedings, a process which includes determining fair market value of the property for which the owners would be justly compensated.

Five months into the process, a consortium of land speculators and the Sierra Health Foundation, led by a well-known developer, Steve Gidaro, purchased the property from NEGT.

"Had we not done all we could to acquire this resource for public benefit, to ensure that the ranch is preserved and protected for future generations, we would have sold out the citizens of Yolo County," said Yolo County Supervisor Mike McGowan. "This is an issue of public interest versus private profiteering."

LaMalfa said that the case should be a rallying point to further pursue the cause of eminent domain reform through a reluctant Legislature.

"If they will not do the right thing, we will join the people of California to do it ourselves with a ballot initiative in November 2006."

This action allows the county to move forward with the acquisition process. LaMalfa added that there isn't a legitimate reason for the county to do this.

"This story is not over by any stretch, and I expect more legal wrangling on Conaway," said LaMalfa. "But beyond that, we must secure statewide property rights and stop these abuses, such as Yolo supervisors' efforts to take Conaway Ranch, that represents no legitimate public use."

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Red Bluff Daily News: www.redbluffdailynews.com

Sayle submits article to take GHYC land by eminent domain: Nantucket (MA) Inquirer & Mirror, 12/1/05

By Jason Graziadei
Nantucket voters in April will again decide whether the town should acquire the Great Harbor Yacht Club property by eminent domain.

A citizen’s article proposed by Charles Sayle III for inclusion on the 2006 Annual Town Meeting warrant would have the town take the yacht club’s 1.5-acre waterfront parcel on Washington Street Extension for a sum not to exceed $10.5 million.

Sayle, 25, whose family owns Sayle’s Seafood adjacent to the yacht club property, also submitted a second article that would take only a portion of the club’s waterfront property for a sum not to exceed $5 million.

Warrant articles involving eminent domain takings require a two-thirds majority to be approved.

Should the taking succeed, Sayle has proposed that the property be used as a full-service boat yard and by other marine service industries, for shellfish propagation and the loading and unloading of commercial or recreational fishing vessels. His proposal also calls for a new public boat ramp and dinghy dock, and the preservation of the travel lift – used to move boats into and out of the water – in its current location.

“This is just to preserve the water-dependent use that’s always been there,” Sayle said Tuesday. “This is pretty much to keep it the way it is and enhance the public benefits.”

His articles will mark the second time that Nantucket voters will consider an eminent domain taking of the property. During the 2004 Annual Town Meeting, islanders shot down a similar proposal for the yacht club property that would have also involved the creation of a port authority to regulate harbor activities. That proposal, backed by the Board of Selectmen and the Finance Committee, would have allocated as much as $20.6 million for the taking. The article was overwhelmingly defeated by a 652-183 vote.

Great Harbor developer Gary McCarthy called Sayle’s new articles “absurd” and said they only continued the “obstructionist” tactics of the club’s opponents that have included legal challenges at every rung of the regulatory ladder.

“I’ve read them and find them absurd from start to finish,” McCarthy said. “It’s nothing more than obstructionism. At the (2004) Town Meeting, when there was more at issue and a lot less defined, what did they achieve? Sixteen or 19 percent approval when they needed 67 percent? I don’t think this means an additional delay, it’s just more annoyance.”

Sayle said his two articles differ from the 2004 eminent domain proposal because they do not include the creation of a port authority and the significant development and dredging of the harbor that it would require. Also, both articles do not include the taking of any yacht club property west of Washington Street Extension.

“I think what scared everyone away on that one (in 2004) was the threat they would turn it into a big port, hauling gravel and modular homes and the massive dredging to get barges and tugboats in there,” Sayle said. “And this doesn’t include the entire site like the other one did.”

Among the 10 people who signed Sayle’s petitions seeking to include the articles on the warrant were several members of the island scalloping community, including Frank Dutra, Carl Sjolund, Stephen Bender, David Coombs, David Glidden, Ken Kelley and Doug Smith.

The yacht club’s recently-submitted subdivision plans for both its waterfront parcel and land-side property were other factors which prompted Sayle to submit the two articles, he said. Although McCarthy has said the subdivision route is intended only as a last resort should the development of the yacht club continue to be delayed by litigation, Sayle said the threat of residential development and the loss of public access to the water led him to submit the articles.

McCarthy and his partner Blake Drexler have proposed the yacht club on a 3.3-acre parcel straddling Washington Street Extension formerly home to the Grey Lady Marine boat yard.

Plans call for the primary structures of the $45 million club to include a clubhouse, poolhouse, sports barn and a boat barn. If approved and constructed, it would be the island’s second yacht club, located on the opposite side of the downtown historic district from the Nantucket Yacht Club on South Beach Street.

Both McCarthy and Great Harbor Yacht Club attorney Sarah Alger objected to the $10.5 million compensation figure within Sayle’s article. Alger, who is also the town’s elected Town Meeting moderator, said she would recuse herself from that job when the two articles are on Town Meeting floor.

“The valuation is not even close,” Alger said. “The town would have to pay whatever the damage award was. You can’t just say $10 million. I’d be crazy to speculate, but it would be a lot of money. This seems like a last-ditch, desperate attempt to hold this project up and it’s an unfortunate use of citizen’s time.”

According to Sayle, he calculated the $10.5 million figure based upon town assessor’s tax data, which values the waterfront parcel at $10,295,600.

Alger also said she objected to opponents of the club resorting to repeated eminent domain proposals to take the Washington Street Extension property.

“One of the things that interests me is the use of eminent domain to control development,” Alger said. “Particularly the repeated use of eminent domain to get to an end you can’t get to through another process. I don’t think there’s anything that prevents someone from doing this, but it’s an interesting question of when it becomes an abusive process.”

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Inquirer & Mirror: www.ack.net

Eminent domain OK'd for Seneca land buys: WSTM-TV (Syracuse NY), 12/1/05

The state's economic development agency says the state should move forward with eminent domain proceedings to help the Seneca Indian Nation acquire land around its Niagara Falls casino.

The Senecas were promised the land as part of their 2002 compact with the state. That agreement let the tribe build the casino and two others in western New York in exchange for sharing slot machine profits.

The tribe has bought about half of the 50 acres it was promised in Niagara Falls but hasn't been able to close on two dozen downtown acres containing homes and businesses.

After a public hearing and review, the Empire State Development Corporation concluded late last month that the Senecas' plans to expand their casino-based operations would be good for Niagara Falls. The agency said for that reason, the state should exercise its power of eminent domain on the tribe's behalf.

The owner of a water park (John Bartolomei) that would be shut down disagrees. He says he'll challenge the eminent domain proceedings in court.

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WSTM-TV: www.wstm.com

Encap and eminent domain: NA Today (North Arlington NJ)

Editorial
The rights of property owners seems to be at stake if EnCap gets its way.

Some Porete Avenue business owners nearly revolted at a meeting earlier this week when told they must vacate to make way for the controversial mega development.

EnCap attorney Eric Wisler claims he wants to "work hand in hand with property owners."

That's a strange claim when owners are organizing and threatening to go to court to save their properties.

Eminent domain is a dangerous step that is a threat to every property owner.

It sets a precedent that a private property can be seized not for the public good, but for the economic well being of a private developer.

What parameters are being placed on the usage of such a controversial determination? Can eminent domain be used haphazardly by EnCap? Why is EnCap considered a partner of the borough when in fact EnCap is suing the borough for lower assessments?

How can you talk about vacating property on one-hand while filing a tax appeal in another?

That seems to be exactly what EnCap is doing.

The North Arlington governing body needs to reign-in the explosion of potential development now taking place.

You have the prospect of literally thousands of new residents and nearly 500 new school-age children as predicted by this website over a year ago.

What is the real financial impact as opposed to the economic benefit?

The real question is this: does the impact outweigh the benefit?

The borough has secured $17 million dollars over five years. But what would be the cost of a new school? How about a police substation or firehouse? Where will the money come from to construct such essential public services in lieu of this population explosion?

What would be the cost of new teachers, police officers and other municipal employees? How do you stabilize municipal taxes if the population of the community doubles?

$25 million dollars? $35 million dollars? What exactly is the cost to homeowners? When will this information be made public for all to evaluate?

As lawyers huddle in back rooms from public view, residents are beginning to wonder what exactly is happening. Predetermined agendas are an insult to most people. EnCap's inability to deliver the specifics and details of this project seem almost endless.

When will taxpayers get a straight answer on anything when it applies to Arlington Valley?

The governing body to its credit has formulated a citizens committee to evaluate the path of redevelopment. But when is this committee going to actually meet? When will these meetings take place? What is the mission statement of this committee?

Apparently Borough Administrator Tim Roberts will chair this committee if and when they meet. Given the numerous plans on the table and the number of people these plans will create, when does Mr. Roberts plan to call this committee of citizens together to evaluate these proposals?

Mr. Roberts is a stranger to North Arlington. He lacks the contacts or the relationships with the community to create a comfort level with homeowners. When does he plan to engage this community as the day to day municipal manager?

Eminent domain is a weapon, not a tool of government.

To haphazardly use eminent domain stirs a fear with any homeowner that this could happen to them. This government needs to demonstrate to homeowners that eminent domain is a tool of last resort, not a weapon of expedient change.

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NA Today: www.natoday.net

Eminent-domain issue roils Stanhope: Newark (NJ) The Star Ledger, 11/30/05

By Steve Chambers
Two weeks before Christmas, the tiny Sussex County borough of Stanhope is scheduled to hold a wrenching, soul-searching town meeting to determine its future.

Norma Peterson Fluke, a 68-year-old widow who has lived in town her whole life, will be there, as will some factory owners who are her neighbors in the old industrial park at the edge of town.

At issue is whether their properties alongside the Musconetcong River would be better suited to a large-scale housing development — and whether the town should consider using its powers of eminent domain to seize the land and turn it over to a private developer.

"If this goes through, I'll be run out of town," Fluke predicted bitterly as she stood on her porch beside a large sign reading, "Please save our business and my home."

Supporters of the plan argue that it twins nicely with one proposed across the river in Netcong, where officials want to put upscale housing beside the borough's train station.

The case illustrates how even rural areas are beginning to use the powerful redevelopment tools that were devised as a solution to urban blight. But in a small town like Stanhope, town leaders will have to look longtime neighbors in the eye as they make life-altering decisions.

The town of 3,500 people straddling the Morris County border has signed an agreement with K. Hovnanian Homes, the state's largest residential builder, to build some kind of large-scale townhouse development. (The builder has provided no specifics but says it could include senior housing.)

The borough's land-use board is scheduled to decide Dec. 12 whether to designate the 19-acre tract "in need of redevelopment," a first step toward invoking eminent domain.

Government is increasingly using these powers, once devoted to making way for things like schools, highways or rail lines, to advance private development. In June, the U.S. Supreme Court upheld this expanded use of eminent domain, but the decision has caused a nationwide backlash. Bills are pending in dozens of states — including New Jersey — that would curtail the practice.

Supporters of people like Fluke argue private citizens shouldn't be forced to sell their land just because a town can improve its ratable base by flipping the property to a developer.

"We've been here paying our taxes all along, and now the town can come along and say we have to sell so they can make a profit," said Fluke's brother, Rusty Peterson, who runs the family tree-service business on the property. "Are we living in a democracy or under communism?"

Fluke's father, Pete Peterson, bought the house in 1949. He ran a tree service, an auto-body shop and, down by the river, a sawmill. Peterson and Sons Tree Service, which has maintenance contracts with 140 towns, including Stanhope, still operates from the one-acre property.

Fluke grew up in the house, which perches on an acre of high ground at the edge of the industrial park, and she moved back in 1982 after her mother died. She worked in the local post office for decades before retiring. One relative served as postmaster, and her father was a councilman.

Mayor Diana Kuncken said it may be possible for the tree service and other businesses to relocate, and she noted that people would be compensated for their land if the borough chose to move forward.

"This is an evolving situation, with nothing set in stone," she said. "And we are very sensitive to the needs and rights of the property owners. We're not out to hurt anyone."

Fluke argues that the tree service would be hurt: Owning the centrally located property outright keeps the tree service competitive. Without it, she said, the business would falter.

"Is this going to be a town filled with houses and no businesses?" asked her grandson, Jim Tuttle.

Town officials say they were forced into the dilemma in recent years, after Compac, operator of one of the larger factories, built a new facility in Hackettstown and started shopping its Stanhope building around.

The only prospective buyers were developers, Mayor Kuncken said. One, K. Hovnanian, suggested creating a broader redevelopment zone around the Compac site, and town officials decided that might improve their chances of influencing the look and scope of the project, she added.

Doug Fenichel, a K. Hovnanian spokesman, said the project would transform underused or abandoned industrial properties into good ratables.

"There are only a few property owners, and certainly we would want to make sure they were dealt with very fairly," he said.

Not moving forward, Kuncken said, would mean waiting for the remaining factories to fall like dominoes, leaving the town with a patchwork of new development.

"We could sit back and let it happen," she said, "or we could be proactive and plan something for the future that blends with what we have and provides financial stability."

Fluke said she isn't as angry at Hovnanian — she said builders have been forced into such situations by longtime resistance to development by towns. But she is livid about a shroud of secrecy that has surrounded the project.

At one meeting, she said, the mayor denied any specific plans. Fluke's daughter, Marjorie, who lives nearby in town, turned up evidence of the Hovnanian agreement after demanding public records.

"It's the lying that makes you the angriest," Fluke said. "They try and pull the wool over your eyes."

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Newark Star-Ledger: www.nj.com

Like a thief in the night, eminent domain ruling is now everyone’s common villain: Ashville (NC) Citizen-Times, 11/30/05

Opinion

By Dave Russell
"That will be overturned,” was the first sentence out of my mouth when I heard about Kelo vs. New London, the Supreme Court case expanding the power of local governments to seize property via eminent domain.

“This was the Supreme Court. Who are they going to appeal to? There is no judge after this except St. Peter,” replied my equally-incredulous friend on the phone.

Five months after the June 23 decision, eminent domain remains a hot topic. Using the Internet search engine Google, one can find 2,070 news stories searching on the words, “eminent domain” and 540 on “Kelo.”

The Los Angeles Times, in the story, “An Eminent Domain High Tide,” notes that the town of Riviera Beach, Fla., “wants to displace about 6,000 (of its 32,500) residents and raze their homes to build a yachting and residential complex.”

In what is called the largest eminent domain case in the country, Riviera Beach Mayor Michael D. Brown said the goal of the $1 billion plan is to “forever change the landscape” and generate jobs to pull Riviera Beach out of economic doldrums. Local resident Martha Babson, 60, a house painter who lives near the Intracoastal Waterway and would be affected by the seizure, sees it differently: “What they mean is that the view I have is too good for me, and should go to some millionaire.”

At least there is a plan behind that land-grab. That’s not always the case. Sometimes all local governments have to have to justify seizing property is a “vision.”

From the Pioneer Press, based in Park Ridge, Ill., comes the headline, “Trustees OK use of eminent domain.”

According to the story, village officials in Skokie, Ill., want to seize Value Transmission from owner Avery Tarshis, despite his protest that, “My business has been predicated on being on this corner for years. Is taking this property away good for Skokie or good for a developer?”

But there is no developer. Not yet. “Village officials maintain that upgrading the area now officially known as the West Dempster Street Business Redevelopment District is good for the village. The village has not been in contact with any developer and maintains its only motivation is to improve the area.”

The village manager, Al Rigoni, notes that Skokie will offer to relocate the shop and pay some of the costs, saying, “We’re under no obligation, but we would want to do that because it’s the right thing to do.”

Perhaps just as powerful as eminent domain itself is the threat. The words “Threat of eminent domain” brought 25 news stories on Google.

According to the Bridgeport News of Bridgeport, Conn., the city is wrangling with United Illuminating Co. (UI) over 15 acres it owns. The Bridgeport City Council recently passed a resolution giving the mayor the power to “pursue eminent domain to take the land if UI continues to hold out for sale terms unacceptable to the city.” The story goes on to say, “City officials hope the threat of eminent domain will bring UI to its senses.”

From the Examiner of Washington, D.C.: “The Michigan-based developer already owns that site after buying out the owners of 69 single-family residences, some of whom were pressured to sell under the threat of eminent domain.”

Owners of professional sports teams wanting a new stadium needn’t worry if someone lives where they want to play. Eminent domain is being used (either directly or as a threat) in Washington, D.C., and Arlington, Texas, to make room for teams to play and fans to park.

Oklahoma State University is looking to build an athletic village that would displace about 400 homes and businesses on 100 acres. As KOTV stated, “OSU could buy the land under its right of eminent domain if homeowners do not agree to sell their property.”

Other headlines reveal a predictable backlash against eminent domain use (or abuse, depending upon which end of the gun you are on).

From the Tri-Town News of New Jersey comes the headline, “Mayor seeks eminent domain limits.”

“Lawmakers may curb eminent domain use” says a headline in the Louisville Courier-Journal.

The San Luis Obispo (Calif.) Tribune: “Walls built against eminent domain.”

“Bill gets tough on eminent domain,” says the Boston Herald.

This month, the U.S. House of Representatives passed H.R. 4128, the Private Property Rights Protection Act of 2005, which will deny federal funding to any local government that uses eminent domain for private economic development in which property is transferred from one private owner to another.

The Castle Coalition, a libertarian group fighting eminent domain abuse, lists 38 states (N.C. is not one) with current proposed state legislation on eminent domain.

Legislative sessions nationwide in 2006 will most likely see a wave of proposals to limit eminent domain. Let’s hope the Old North State is among them.

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Citizen-Times: www.citizen-times.com

Pa. pols must OK eminent-domain protections: Delaware County (PA) Times, 11/30/05

Editorial
A U.S. Supreme Court decision in June started a nationwide uproar. In a 5-4 decision the justices ruled it was OK for the city of New London, Conn., to seize 15 homes in a working-class neighborhood so a private developer could build a riverfront hotel and office complex.

There were no problems with the homes — they weren’t abandoned. They were not in a blighted area. But in the majority opinion penned by Justice John Paul Stevens, the city’s need for greater tax revenue was sufficient for it to take over the homes of its residents.

Pennsylvanians witnessed similar government activity when Coatesville went outside its city limits to usurp 48 acres of a former Drexel Hill couple’s farm to put in a golf course.

Reacting to that affront to individual rights, the Pennsylvania Legislature enacted a law to prevent municipalities from straying outside their boundaries to take over someone’s property.

Now our state legislators are considering laws to prevent local governments from padding their tax coffers at the expense of hard-working, taxpaying residents when a more lucrative tax entity appears on the scene.

On the first day of November, the House passed a bill sponsored by state Rep. Glenn Grell, R-Hampden Township, to amend Pennsylvania’s eminent domain law.

Grell’s bill prevents the seizure of private property for use by a private developer unless the owner consents or the property is blighted.

The bill describes a blighted property as one that threatens health or safety, is abandoned or tax delinquent. The bill further requires a majority of the area to be blighted before redevelopment can be considered.

Now the matter goes to the Pennsylvania Senate, where Sen. Jeffrey Piccola, R-Dauphin, is the main sponsor of a bill to narrow the definition of blight. Current law allows seizure of properties deemed "blighted" if put to "economically undesirable" uses — a broad description open to a number of interpretations.

Originally slated for vote before the Thanksgiving recess, Senate Bill 881 is now scheduled for an early December ruling. But the Pennsylvania League of Cities and Municipalities wants to slow down the legislative process and Sen. Connie Williams, D-17th, agrees.

Earlier this month she asked to have her name removed from the bill to change eminent domain laws.

"..when I removed my name it was clear to me that the bill sponsor was more interested in fast-tracking his legislation than in fully exploring the issue and the use of eminent domain in Pennsylvania," she wrote in a letter sent to this newspaper.

Since the Supreme Court decision, Alabama, Texas and Delaware enacted laws that tighten the power of eminent domain in their states. Thirty states, including Pennsylvania, are considering similar legislation.

In a frightening reaction to the June ruling, the U.S. House of Representatives passed a bill that would shift eminent domain decision-making from the local and state level to the federal level. Hopefully, the U.S. Senate will not have a similar knee-jerk reaction. This is not a matter that belongs in Washington, D.C.

Williams is correct in asking for careful consideration of the implications of new restrictions in eminent domain law. Philadelphia officials fear the House bill will hamstring them in any attempt at redevelopment. But, eminent domain should not fall through the same cracks many important pieces of legislation have found in this state recently.

The Senate must agree on a bill that gives municipalities rights, but not to the degree exercised in Connecticut. Elected leaders must act as just that - leaders - to ensure Pennsylvania joins the ranks of those states which have already recognized the need to protect citizens.

The new law deserves careful study, but not at the risk of inaction. It is one more area an electorate lately re-awakened to the activity in Harrisburg should monitor.

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Delaware County Times: www.zwire.com

Eminent Domain Issue Haunts Farmers Posted: Harrisonburg (VA) Daily News Record, 11/30/05

By Tom Mitchell
For landowners, fighting city hall may become a way of life, say farmers in the Shenandoah Valley.

Producers in the Valley expect the issue of eminent domain to surface over the next several months, especially when farmers discuss key interests with newly elected legislators.

A seminar Tuesday at the Virginia Farm Bureau’s state convention about eminent domain — the right of a government to take private land for public projects — drew more than 200 producers. The clinic, titled "Eminent Domain: What Landowners Need To Know Now," was a featured focus on the second day of the bureau’s 80th annual convention.

A panel formed for talks on landowners’ rights addressed ways property owners can combat businesses that seek to have such property condemned for the purpose of development. Panelists included Joseph Waldo, whose company in Norfolk targets cases involving eminent domain and condemnation law, and Richard Krause, director of regulatory relations for American Farm bureau Federation.

Delegates from the federation choose a platform to present to the Virginia General Assembly in January. Over the next month, producers across the state will host talks with leaders in state government to address such issues as eminent domain, which producers say affects all landowners.

Eminent domain allows government to seize private property through an act of condemnation, and a recent case in New England reaffirmed such power.

Hot Topic
Conversations about eminent domain increased throughout Virginia after last summer’s high-profile case in New London, Conn., when the U.S. Supreme Court ruled that local government could condemn private homes to build a hotel, health club and office complex that would create more tax-based revenue.

"Eminent domain will definitely come up," said Danny Wampler, a poultry and beef farmer from Mount Sidney. "Politicians have given it a lot of lip service, but I haven’t yet seen them do anything concrete about it."

Discussing property rights with legislators in the Valley is easy, Wampler says, because most representatives from the Valley understand farm concerns. Getting government officials’ attention elsewhere in the state will be vital, producers say.

"When we meet with delegates from Northern Virginia, that’s where we’ll really have to make inroads," Wampler said. "There’s not much agriculture up there."

The forum also included two farmers who successfully challenged compensation offers after the Virginia Department of Transportation sought to have sections of their farms condemned.

One of the farmers, a corn and soybean producer from Chesapeake named Ray Cartwright, won a $2.4 million award earlier this year, after demanding increased compensation from VDOT for what Cartwright said was an impact on his farm by the state department of transportation highway improvement project.

"You can win," Cartwright said. "Just keep it to the grindstone, and do what you’ve got to do."

Uphill Climb
Despite recent successes, farmers like Carl Arey from Bridgewater insist that the battle with developers’ efforts at land seizure will be tough.

"It’s kind of scary, because agriculture doesn’t have enough clout," Arey said. "City people want open space, but a lot of them don’t want farms."

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Harrisonburg Daily News-Record: www.dnronline.com

No eminent domain for Tempe: East Valley (AZ) Tribune, 11/30/05

By Garin Groff
The Arizona Supreme Court on Tuesday set back Tempe’s efforts to build a massive shopping center through condemnation.

The high court decided not to consider Tempe’s request to overturn an eminent domain case that stands in the way of Tempe Marketplace.

Several property owners have refused to sell land needed for the project and the city has tried to force them to sell through eminent domain.

Private property advocates said the decision is a big win.

"I’m just thrilled," said Del Sturman, a spokesman for Desert Composites, one of the remaining holdouts. "It’s solidifying that private property rights are still very important. And they’re more important than a shopping center and they’re more important than some one else’s profit motive."

Miravista Holdings and Vestar Development Co. control all but 28 acres of the 120-acre project. The city has said the scattered industrial lots are essential to finishing the project and cleaning up environmental hazards.

Tempe Mayor Hugh Hallman said Tuesday it was too early to know what’s going to happen next.

The decision doesn’t necessarily kill Marketplace — or the possibility Tempe could use eminent domain. The city can still turn to the Arizona Court of Appeals, though that’s the court that issued the ruling Tempe wants to overturn.

Tuesday’s decision will create even more heartburn over eminent domain, said David Merkel, who represents the League of Arizona Cities and Towns.

Because the court didn’t uphold or strike down eminent domain — it merely declined to hear the matter — cities will remain confused over when it’s OK to seize land for redevelopment.

"I wanted to hear the Supreme Court say who was right and who was wrong and they decided not to do that," said Merkel, who has sided with Tempe. The court did not say why it declined to take the case.

Tempe wanted the court to overturn the 2003 Randy Bailey eminent domain case — a landmark ruling for redevelopment projects in Arizona. In that case, the Arizona Court of Appeals said Mesa could not force brake shop owner Randy Bailey off his land and transfer it to a hardware store owner.

The court said the private landowner was receiving a substantial benefit while the public was receiving a relatively small one, which is not the intent of eminent domain.

That case has confused cities because it conflicted with previous Arizona Supreme Court rulings about condemning land for redevelopment, Merkel said.

Tempe argued the public would benefit substantially because the Marketplace would clean up an environmental mess left by years of industrial use. In the process, Vestar Development will build the shopping center and make a profit.

The city argues the developer’s role is essential to help pay for important benefits — cleaning up former landfills, getting rid of potentially explosive methane gas and demolishing unsafe buildings.

The Arizona Court of Appeals ruled Sept. 13 that the city’s attempted condemnation did not meet the standards for public use.

The remaining landowners question the benefit of seizing their land to build a shopping center. They say the city has exaggerated the supposed hazards and insist Tempe doesn’t need to take every property to clean up the area.

Tempe should instead negotiate with property owners for what they feel is a fair price or change its redevelopment plans, said Tim Keller of the Institute for Justice.

The organization has helped landowners in eminent domain cases.

Property owners said they hope the Supreme Court refusal will make Tempe give up eminent domain.

"The Supreme Court has sent a real strong message to the city that they don’t have a case," Sturman said. "We’d like them to go away and leave us alone because we’re tired of being hassled."

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East Valley Tribune: www.eastvalleytribune.com

Win for eminent domain could leave it as a loser: Chicago (IL) Tribune, 11/28/05

Opinion
By Steve Chapman
Local governments that want to use their power of eminent domain to promote economic development won a huge victory last June when the U.S. Supreme Court agreed with them that seizing private property for such purposes does not violate the Constitution.

But that triumph brings to mind Oscar Wilde's remark: "In this life there are two great tragedies. One is not getting what one wants, and the other is getting it. The last is much the worst."

You would expect that winning in the Supreme Court would mean local and state governments would have a much easier time using their condemnation authority in the name of creating jobs and revenue. Instead, they find they have ignited a rebellion. When the court said the city council is free to take your property to put up a Mega Mart, a lot of Americans replied, "Seize this!"

The Supreme Court decision concerned an effort by the city of New London, Conn., to demolish private homes, over the objections of the owners, so a commercial development could be erected in their place. But five months later, that hasn't happened, and it may never.

The mayor fears the plan "may not be as viable" as it once was, investors are leery of the wrath of property-rights advocates, and the state legislature has asked cities to hold off on such seizures until it can rewrite the law. Meanwhile, one local owner says he's optimistic enough to put on a new roof.

Never has a victory cigar made such a big explosion. By giving cities a free hand to take property from one private owner and give it to another, the Supreme Court scared the bejesus out of millions of taxpaying homeowners.

They took to heart what Justice Sandra Day O'Connor warned in her dissent: "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." As fellow dissenter Justice Clarence Thomas lamented, "Though citizens are safe from the government in their homes, the homes themselves are not."

The U.S. Constitution says the government may forcibly acquire your home or your land only "for public use" and only for a fair price. The public-use requirement traditionally covered things like highways and railroads, and it also allowed the government to raze decaying blocks that amounted to a public nuisance. But in this ruling, the court said, "Private use, public use - what's the difference?"

Now, as long as the government claims that the public will benefit in some way, it can grab any property it wants and give it to anyone it chooses. If local officials think they can generate more tax revenue by kicking you out of your home and turning the lot over to someone else, the court said, they're entitled to try.

That outcome didn't sit well with a public that regards a person's home as his castle. Americans accept many limits on their property rights, but the idea that they could be arbitrarily deprived of their houses to accommodate a well-connected developer was too much to bear.

The most important sentence in the Supreme Court's decision was the one saying, "Nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power." That opening quickly sparked a movement to restore the constraints on government power that the Supreme Court eliminated.

This month, the U.S. House of Representatives approved a bill to bar state and local governments from taking property for economic development. Texas, Ohio, Alabama and Delaware have passed laws aimed at curbing such seizures. The Institute for Justice, a libertarian public-interest law firm that challenged the New London project, says it's working with lawmakers in 38 states on similar legislation.

A strange coalition has sprung up to lobby for such measures, ranging from the NAACP to the American Farm Bureau Federation. In the House, the cause brought together liberal Rep. John Conyers, a Democrat from Michigan, and conservative Rep. Tom DeLay, a Republican from Texas, who normally can't agree on whether the pope is Catholic.

For now, the momentum is on the side of those who favor limits on the use of eminent domain. The supporters of aggressive, government-sponsored redevelopment thought they had won the war when the Supreme Court came down on their side. But it may turn out they just found another way to lose.

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Chicago Tribune: www.chicagotribune.com