1/14/2006

Housing Plan Progresses as Officials Seek Eminent Domain: Lakeland (FL) Ledger, 1/3/06

By Rick Rousos

The city [of Lakeland] is moving ahead with its plan to turn a 14-acre mess near downtown into a residential mecca.

The land behind the Massachusetts Avenue Lakeland Police Station is slated for about 400 town houses and condominiums, with the possibility of at least some "work force housing."

The reconstruction of the neighborhood is a crucial element in the city's plan to bring residents to a downtown and make the core of the city more vibrant.

Construction should begin in mid-2007, city officials say. But just what will be built remains to be determined.

The city has bought 53 parcels in the neighborhood, which backs up to the In-Town Bypass. Initially, the city worked through an agent, who told the property owners he "represented a buyer" but did not say the buyer was the city. City officials say this was meant to keep real estate speculators at bay.

A 54th property is slated for a May real estate closing. Anne Furr, the executive director of the Lakeland Downtown Development Authority, said the city "has so far been unable to work with five property owners."

In other words, those property owners are asking for what is being deemed by city officials as an unreasonable amount of money.

For that reason, city commissioners today will be asked to grant the authority for the community redevelopment agency to use eminent domain — a legal proceeding that forces a sale to the government, in which a judge sets the price — to acquire the remaining five properties.

"We have been abundantly fair, even to the point of being generous," said Joe Mawhinney, a former city lawyer and an LDDA board member.

Just because eminent domain will be an option doesn't mean the city will use it, Mawhinney said. He said it can get expensive because lawyers are in on the act.

Many of the homes, including some apartment buildings, have been bulldozed. But several remain, and 14 families are still living there, Furr said. Most of the people still there have leases that expire in the next few months.

The area now resembles a near ghost town, a no-man's land dotted by empty lots where homes were destroyed, a smattering of mostly rickety homes and few people walking the streets.

That's a far cry from years past, when drugs, crime, prostitution and violence dominated the neighborhood and law-abiding people had little choice but to stay inside. City officials say the only fix for the neighborhood was to start over.

The city will end up spending about $5.2 million to buy the land and another $1 million for demolition, all of which and more will be paid for in the end by whoever develops the property.

WORK FORCE HOUSING?
The city is considering four developers to do the massive refurbishment, including the Carlisle Group, which turned the old Regency Hotel into Lake Mirror Tower.

The size, type and cost of the housing in the redeveloped area for the most part will be determined by the developer, not LDDA and other city officials.

"We don't want half-million dollar homes there," Furr said.

She and other city officials would like to see a mix of middle-priced condominiums, in the $300,000 or so range, and work force housing, maybe in which a police officer or firefighter might be able to live — and walk to work, for $150,000 or $200,000.

Jerry Herring, a developer and LDDA board member, is building Lofts on the Park, a 14-condominium residential project on a vacant lot at 125 N. Kentucky Ave. He said people across America are moving back downtown.

"I agree, this (Lakeland project) should have some work force housing. It should be market-rate housing, whatever the market locally will support. We believe the market will support work force housing anywhere from about $150,000, with midrange housing from $250,000 or $300,000," Herring said.

"The developer should determine the risk, the comfort level. It's their risk, not ours. The city shouldn't force anything on private enterprise. We shouldn't force, we should enable."

Mike Hickman, the president of Lakeland-based Hickman Homes, said work force housing, for people like police, teachers and nurses, "has to be in a high-density setting."

"We are facing a crisis in the affordability of housing. A building permit in the city is over $20,000 before you do anything. Single-family homes are almost a thing of the past. This should be 10 or 15 (residences) per acre — a high-density use with green space. Let the free market prevail, but high density at a reasonable cost."

But the city can make some demands, Hickman said. "The city is in a unique position, because it owns the land."

BETTER ALREADY
Furr, the LDDA boss, said the city has been helpful, considerate and compassionate to the people being displaced by the redevelopment.

But among the people who are still there, some of whom feel like they're being treated like squatters, the opinions of the treatment from the city vary.

Jason Yohn, 30, whose East Bay Street lease in half of a duplex expires in a few months, said the city has been better to land owners than renters.

"They're just trying to run the low-income people out, and that's wrong," he said. He said that now that the apartments have been demolished, "it's nice around here, quiet."

Yohn said he didn't know where he'll go after the lease expires. "This place is for $275," he said. "Where can we find that?"

Iowa Avenue runs north and south behind Massachusetts Avenue and the LPD station. The parcels of land on the east side of Iowa are being bought by the city, the west side is being left alone.

Lorraine Smith, 38, who rents a home on the west side of Iowa, said the neighborhood has improved dramatically since the apartments have been razed.

"This was a very scary place," she said. "There's still some people loitering around here at night, but it's not so bad."

Furr said the apartments that Yohn and Smith talked about greatly accelerated the downfall of a neighborhood that thrived several decades ago.

Benjamin Knight, 24, who owns a home on the east side of the street, said the redevelopment is good only for the wealthy.

"I guess the rich can do whatever they want to the poor," he said.

Knight said he was contacted by a "real estate man" several months ago, but has heard nothing since.

Furr said Knight was one of the five property owners who were hard to bargain with.

She said the city has made repeated attempts to contact Knight, including sending him registered mail, which comes back.

LPD Chief Roger Boatner's officers have spent an inordinate amount of time in the neighborhood that abuts the back door of the police station. Boatner said he's no real estate expert, but does have feelings for what he'd like the neighborhood to become.

"I would just like to see the neighborhood become stable," Boatner said. "In the old days, it was stable. People came and went, and they went to work. Kids played outside. People walked to downtown. A stable downtown neighborhood brings vitality to the area — and to the rest of the city."

Boatner said he spoke recently with a lady who had dinner in a downtown Lakeland restaurant with a female friend from a big city.

He said that as the two women walked a few blocks to their car, and the out-of-town woman "went on and on about how beautiful it was."

The Lakeland woman thought her guest was raving about the beauty of downtown and Munn Park, but that wasn't it.

"Nope," Boatner said. "It was that two ladies could walk safely around downtown at night."

"And if it's that kind of an area we're talking about building, then I'm all for it."


Lakeland ledger: www.theledger.com

Eminent domain now big business: Chicago (IL) Tribune, 1/3/06

Lawmakers, owners confront land grabs

By Crystal Yednak

One day at the age of 82, Irene Angell received an unexpected letter. The city of Des Plaines needed her home and planned to use eminent domain to force her to sell it.

Angell lived in the home for more than 80 years. Before that, it was her father's home, and before that it was her grandfather's home.

And now, it's a Walgreens.

Opting to trade in Angell's home for a retailer with jobs and more tax revenues, Des Plaines invoked a power that local governments have used more than 250 times over the past five years for economic development, a Tribune review of court records shows.

With the national debate over eminent domain expected to sweep into Springfield in January, municipalities are cautioning against overreacting to a recent U.S. Supreme Court ruling that upheld the use of eminent domain for private economic development.

But property owners who have been forced to clear out for strip malls or big-box stores hope the public outcry against eminent domain will prompt Illinois lawmakers to act.

"I still don't think that with private property, a city or state should have the right to go in and force someone out to give it to someone else," said Angell, now 86 and living in Florida.

Overwhelmingly, the eminent domain cases filed in Cook, Kane, DuPage, Lake, McHenry and Will Counties are for traditional public purposes, such as highways, schools, libraries, police stations — projects that will be owned by the government for the public use.

But a review of court cases filed since 2001 shows local governments have used eminent domain powers in many redevelopment projects where private companies end up in control of the land.

Municipal officials say this is nothing new and the current system should not be changed. Chicago area communities have used eminent domain in this way for decades to dream up new plans, they say.

Recent cases range from Chicago's efforts to remake decaying blocks in Englewood and the stockyards area to St. Charles' attempt to replace businesses along the Fox River with condos and retail.

"When the city is taking land for economic development, it's taking it in terms of advancing the public purpose of eliminating slum and blight," said Steve Holler, chief assistant corporation counsel for the City of Chicago's real estate division.

Without eminent domain, Holler said, the city would not see the Wilson Yards project now underway at Montrose Avenue and Broadway. The project will bring senior housing, a Target store, movie theaters and other businesses to the site of a former CTA railyard and a building that housed an adult bookstore.

City officials say they need ways to move out holdouts who can stand in the way of projects that can benefit the whole community.

For example, Chicago recently used eminent domain to obtain land from some owners who were sitting on property along 79th Street, said Langdon Neal, a Chicago condemnation attorney.

"These were absentee landlords, and tax buyers not motivated to do a market transaction," he said.

In some cases, property owners are willing sellers, officials say.

But sometimes they are not.

Even condemnation cases filed for traditional public purposes sometimes provoke passionate speeches about the forefathers' intentions toward property rights.

For people like Clifford Heverly in Elgin, the outrage is compounded when eminent domain is used to make way for private development.

Heverly is still angry that the city condemned his coin and stamp business to make room for what he calls "grass and a tree " — or landscaping for a new downtown condo development.

Heverly said that once a city partners with the developer, it wipes out the need for any sort of market transaction.

"Why should the developer have to come to me and pay me fair market value when you can convince a group of politicians to take it?" Heverly said.

In Illinois, governments can use eminent domain to force the sale of private property and transfer it to another private owner if the property is found to be blighted or on its way to blight.

The state has a list of 13 factors that prove blight, such as dilapidated buildings, obsolete uses or code violations.

"In the Chicago metro area, I think we can all agree there are properties that truly are blighted," said Thomas Geselbracht, a Chicago attorney specializing in eminent domain. "Sometimes municipalities try to use eminent domain where there's not quite as much agreement as to what's blighted."

Critics say blight definitions are written in a way that allows city councils to use the power of eminent domain by citing issues such as cracked sidewalks, buildings older than 30 years, or the lack of a community plan when a place was built. A building with a poorly planned parking lot does not automatically signal blight to some, which has led to extensive criticism of the law in Illinois and elsewhere.

"Blight removal was meant to take away property that was dilapidated and falling down, with high rates of communicable disease and infested with vermin," said Steven Anderson, coordinator of the Castle Coalition, which has led a national campaign against what critics call eminent domain abuse. "Now it means taking a perfectly fine house that happens to be in a nice location."

Nationally, a band of politically diverse groups, including conservative grass-roots groups, civil rights organizations and farmers, have come together to say the pendulum needs to swing back in favor of property owners.

Both Democrats and Republicans in Illinois plan to propose legislation this year.

After being flooded with calls from constituents and holding hearings, state Sen. Susan Garrett (D-Lake Forest) is floating a draft bill that would give landowners more standing in court to contest a government's finding of blight.

State Sen. Ed Petka (R-Plainfield) said the process is now lopsided in favor of the government.

"[The local governments] can use taxpayer money to hire consultants and lawyers," he said.

Government officials argue that Illinois law already includes protections for property owners because the courts are there to prevent abuses.

Also, they point to a 2002 Illinois Supreme Court ruling in a case involving the Southwestern Illinois Development Authority and a metal-shredding facility located near a racetrack.

Racetrack representatives approached the authority about condemning the property on its behalf, offering to pay the acquisition costs and legal fees. They planned to build a racetrack parking lot and argued it would attract other development. Because it would also increase profits for the racetrack, the Illinois Supreme Court found that although governments did have an interest in promoting the local economy, the purpose of eminent domain was not to help a private company avoid the open real-estate market.

The court batted down the agency's attempts at condemnation.

A few years ago, a suburban car dealer wanted to locate a new Volvo dealership along the Eisenhower Expressway in Forest Park, on a site where a U-Haul rental facility had been operating since 1978.

Without making an offer to the U-Haul owners, the developer asked village officials to use eminent domain power to obtain the U-Haul property so the car dealership could be built on the site, according to court records.

Hoping for increased tax revenues, the town found the property blighted.

U-Haul owners contested the decision. A judge later killed the plan, although on a more technical issue. The Volvo dealership is now across the street in Oak Park.

While attorneys for the U-Haul argued eminent domain was being misused, Forest Park village attorney Michael Durkin said the municipality needed to attract the redevelopment project for its financial health, especially when facing escalating costs and static revenue.

Before the redevelopment started in Des Plaines, buildings located near the city center sat vacant, said David Wiltse, Des Plaines city attorney.

City officials saw a way to redraw its downtown into one that would include condos and retail, bringing people and their dollars back into the city center.

Using eminent domain to take about two-thirds of the property in the area, the city constructed a new public library, parking garage and a strip of retail on either side.

"It could not have been done without eminent domain," Wiltse said. "You only need one holdout."

Some of the businesses were relocated to other sites in town, and property owners received fair market value for their properties, Wiltse said.

In the case of Angell's home, the city filed the condemnation suit to build a municipal parking lot, though a Walgreens is now in its place.

Eventually, she and the city worked out a settlement. Her former homestead looks out over other redevelopment projects.

Friends have sent her photos of the Walgreens, but Angell, who once worked at a Walgreens soda fountain, can't quite bring herself to look at them.

"I probably will always get angry about it," she said.


Chicago Tribune: www.chicagotribune.com

1/12/2006

Eminent Domain Abuse in Cinnaminson NJ

New Plan Excel to Redevelop Condemned Suburban Philadelphia Mall: Commercial Property News, 9/23/05

By Michael Fickes

A New York City-based retail real estate investment trust (REIT) will redevelop a 40-acre condemned mall located along Route 130 in the Philadelphia suburb of Cinnaminson, N.J.

Under an agreement with the Cinnaminson Township Committee, New Plan Excel Realty Trust Inc. will take possession of Cinnaminson Mall, which was condemned and taken over by Cinnaminson Township last month. New Plan will pay the former owner, Yardley Associates, an unspecified amount for the property, which has been assessed at $3.7 million.

The redevelopment calls for the construction of a 310,000-square-foot grocery store-anchored, open-air community shopping center with several junior anchors and a mix of national and regional in-line retailers.

New Plan would not comment on the deal, and a Cinnaminson Township Committee representative did not return calls asking for comment. But in a statement, the Committee said that the new center would stimulate Cinnaminson’s local economy.

The deal comes after New Plan sold 69 community and neighborhood shopping centers to Galileo America LLC for approximately $968 million in August, pruning the REIT’s portfolio to 461 properties, including 150 held through joint ventures.


Commercial Property News: www.cpnonline.com





Cinnaminson set for retail renewal: (Camden NJ) Courier-Post, 10/2/05

By Lavinia DeCastro

Nearly 200 people gathered on Saturday morning to witness the first step toward the redevelopment of the long-ailing Cinnaminson Mall.

Wearing commemorative hard hats, onlookers watched as a bulldozer tore down a portion of a long-vacant Caldor store.

"I think this is great," said township resident Faith Steinfort. "This has been an eyesore for so many years."

The mostly vacant mall will be replaced with 330,000 square feet of retail space, said Anthony Minniti, the township's economic development director.

Minniti said he hopes to attract a regional grocer as an anchor, a national retailer and roughly 10 smaller stores to the 39.5-acre site.

"It'll be a similar fashion to what you might see at East Gate (in Mount Laurel)," Minniti said.

Minniti said he expects a New York firm, New Plan Excel Realty Trust, to submit a site plan application to the planning board next week. Construction could begin early in 2006 and be completed by November, he said.

"Just in time for Christmas shopping," Mayor Sandra K. Iaquinto added.

New Plan Excel officials have said they will help relocate the half-dozen businesses that remain at the mall. Most of those businesses are in a building fronting Route 130, one of several structures on the site.

The project is the second-largest redevelopment effort in the Route 130 corridor, after the Willingboro Mall project.

Steinfort said the project will help lower taxes.

"People are always concerned over tax issues," she said. "One of the best ways to help out is to bring ratables to the township."

Richard Charles, also a resident, said a new shopping center will provide a much-needed boost.

"Route 130 is the face of Cinnaminson," Charles said. "This is very exciting for the town. It shows that Cinnaminson is a great place to do business."


Courier-Post: www.courierpostonline.com





Mall to make way for new retail spot: Philadelphia (PA) Inquirer, 9/22/05

By Frank Kummer

Cinnaminson authorized a deal yesterday to redevelop a large shopping center long considered an eyesore by officials and turn it into a modern retail destination.

The Township Committee passed a resolution approving the agreement with NewPlan Excel Realty Trust, which will be designated the redeveloper of Cinnaminson Mall, a 40-acre parcel at Route 130 and Cinnaminson Avenue.

The property, owned by Yardley Associates of Bala Cynwyd, was declared a redevelopment zone in 2002 by the township, but committee members and Yardley could never come to an agreement.

Last month, a Burlington County Superior Court judge ruled that the township could take the site through condemnation.

Under terms of the agreement, the property will now be transferred to NewPlan Excel, and Yardley Associates will be paid an amount not yet made public. The property is assessed at $3.7 million.

"It's wonderful news," said Committeeman Anthony V. Minniti, who oversees economic development for the township. "We've been trying to effect this redevelopment project for three years. It's the gateway to Burlington County. It's a cornerstone."

The property is just north of the Pennsauken Mart, near the Camden-Burlington County border.

NewPlan Excel says the company is "one of the nation's largest owners and managers of community and neighborhood shopping centers," with 450 properties in 39 states.

The property currently contains a complex of buildings in various stages of vacancy. The large Caldor store is closed, as are several smaller stores. But Bank of America is open in a free-standing building. Manhattan Bagel and Eckerd Drugs are open in other buildings.

Plans call for all buildings to be razed and the land graded into a new layout. NewPlan Excel will build a new shopping center, with 310,000 square feet of space. It will include a supermarket of at least 70,000 square feet. Seven to 10 smaller retail shops would be included.

NewPlan Excel will help pay for major improvements to the road intersection at the mall. The state and county would pay for the rest. Improvements would include a traffic signal and lane realignment.

Minniti said the new shopping center would be like a smaller East Gate, a large, popular shopping area on the Moorestown-Mount Laurel border.

The new property will be assessed at about $40 million when fully built, he said.

The judge's order calls for NewPlan Excel and Cinnaminson to complete the transferral of property by Dec. 31. NewPlan officials hope to have a detailed site plan by then and have scheduled an Oct. 1 groundbreaking, which will include smashing a wrecking ball into the Caldor.

Leases on the mall stores still open will be terminated under the court order. However, those stores are free to work with NewPlan Excel.


Philadelphia Inquirer: www.philly.com





People losing their places of business aren't quite as happy
A letter to Eminent Domain Watch

The Cinnaminson Township was able to obtain the right for Eminent Domain on the Cinnaminson Mall in August/September. As a result, the Township was able to force the former landlord, Baker Associates, to sell the property to New Plan Excel, Realty Trust.

The action came about when Baker Associates did not renovate or upgrade or lease the property in a way to benefit the Mall. About 90% of the property was vacant with only a few tenants. The Township saw that surounding cities were building and attracting "big box" stores to their areas. In order to capitalize, they decided to take authority for eminent domain on the property and give it to a firm that would attract and build a better Mall. As a result, the current tenants are being pushed out.

The property is valued at $66 million in tax revenue for Cinnaminson Township.

We own a dry cleaning business at the Cinnaminson Mall and have a lease for another three years. The Township is offering us relocation (we have to pay for replacement/broken machines during the move) to another plaza. But the new plaza is across the street from the original Cinnaminson Mall. The new plan for the Mall also has a plan for a dry cleaning shop, so we will have new competition. So, as a result of the action of begining to tear down the Mall, we have lost over 50% of our business. We do not believe that relocating is going to save us from going broke.

The attorney for the Township claims that their efforts to offer us relocation has fulfilled their responsibilities. Relocating the business is futile and almost all of our machines are highly likely to be damaged. We are at a loss to know how we might approach the Township legally to obtain fair compensation for the current value of the business.

To make matters even worse, the Township is classifing our business as "displaced" even though we are in business, paying rent, and have a landlord. This classification allows us to be eligible only for the NJ WRAP program — which gives us at most $10,000 for a business for which we paid $175,000. All this, before the township has actually executed its eminant domain authority.

We are investigating the possibiliies of a lawsuit against the township and also against the current landlord for not disclosing the situation to us prior to our signing the lease.

Eminent Domain in Sunset Hills MO: St Louis (MO) Post-Dispatch, 11/16/05 & 12/21/05

Sunset Manor residents demand city terminate Novus deal

By Steve Birmingham

Sunset Hills should terminate its redevelopment contract because the developer cannot follow through on promises to buy out the Sunset Manor neighborhood, residents and others told the Board of Aldermen last week.

More than 100 people jammed the Nov. 8 board meeting with many registering the same complaint: Novus Development Company never had the money to pay for any of its scheduled closing dates with over 200 property owners in the neighborhood and the city should have known that.

The city granted $62 million in Tax Increment Financing (TIF) and Transportation Development District (TDD) assistance to Novus to build a $165-million "lifestyle" shopping center in the 300-parcel Sunset Manor neighborhood. The area, bounded by Watson Road, South Lindbergh Boulevard and Interstate 44, contains about 254 residences.

Gerald Carmody, an attorney representing several Sunset Manor neighborhood residents in lawsuits brought against the city, told the board its redevelopment contract should be terminated because Novus never had the financing in place for its scheduled Aug. 22 closing date nor its Sept. 31 rescheduled closing.

He also said the city should have sent the redevelopment plan back to its Tax Increment Financing (TIF) Commission for reconsideration when the physical size of the plan was changed.

"I'm here tonight to ask you to take a step forward, not look back, take a step forward in assessing where we are today with respect to the Sunset Manor redevelopment project, to accept the realities of the situation which is that this redeveloper cannot, and will not, develop the project that you all had envisioned when you approved these redevelopment ordinances, " Carmody said.

Carmody told the board "there is sufficient evidence that you now have before you to accept the fact that this not going to happen and that you need not wait any further to make that determination."

Carmody said he had evidence that what was going on was not what the board thought was happening when it approved the redevelopment ordinances.

"First and foremost, you assumed at the time you entered into these agreements that this developer had the financing to at least close on the houses that he promised these people that he would buy," Carmody said. "That was not the fact, that is not the fact and will never be the fact. He represented to you all that he had the financing that the lending institution has said he never did. Despite his claims that there are other reasons why and why not, the fact is he never did have financing, which I know each of you assumed was in place at the time you enacted these ordinances."

Carmody said that at the time the city approved the redevelopment plan, "it was for a different project than will ever be built."

According to Carmody, during the discovery process involved in the lawsuits, "it is without question that the lifestyle center that has been represented to you will not be there." What was represented to you to be the major anchor (Famous-Barr), a 200,000-square-foot anchor, was not in fact the anchor presently contemplated. And what was represented to you was not that they (Novus) were going to go to an adjoining municipality (Crestwood) and grab a retailer, something you all have said historically that you did not want to have happen."

Carmody also said Famous-Barr was Novus' only announced tenant and that they were going to have to pay that tenant $10 million to move from Crestwood to the city of Sunset Hills.

Not only were they going to have to pay $10 million to move Famous-Barr, "thereby putting in jeopardy all the TIF money that would be generated by that large square-footage, that tenant was not going to pay one dollar in rent for that 150,000 square feet of space," Carmody said.

Finally Carmody said the reduction in square footage for the entire project, which was smaller that what the TIF Commission considered, meant the city should have remanded the matter back to the TIF Commission for more consideration.

"Instead, you went forward," Carmody said. "Your consultant (PGAV) has admitted under oath that based upon that change the project should have gone back to the TIF Commission and should not have been approved by you. That did not happen."

The smaller project area (722,000 square feet) means "six acres of this project for which you have authorized Novus to condemn property will never be developed. These people will be forced out of their homes and businesses will be vacated. Tell me why that is not a substantial change to this project.

"Those are changes that have now been admitted that you did not know then," he said.

Will Aschinger, a member of the Stop The Sunset Hills Land Grab, told the board the neighborhood's residents needed the city's help in restoring the neighborhood.

"We want to hear the city's plans to put our neighborhood back together,' Aschinger said. "You allowed this to happen; you favored the developer over your constituents; now the burden is on you to fix the problem. It is your responsibility to develop a plan. You chose to run for office. We need a plan. It's your responsibility."

Aschinger said the residents would be happy to meet with the city to discuss ideas they have, such as applying for grant funds to restore the neighborhood.

"We need some of you to speak up, any of you that have a conscience about what is going on, to speak up and try to help save this neighborhood," Aschinger said. "We come here for accountability. You've not held Novus accountable for their failure to act and their misrepresentations. We hold you accountable because you were elected to protect us. Enough is enough. End the Novus development agreement tonight and begin to put our city back together. Do your duty and end this madness."

Mayor James Hobbs said the board "would address this in due time. As you know we have three lawsuits pending and there are certain things we can do and we cannot fight the lawsuits in public and we will not do it. We're proud of you tonight for giving us your information and appreciate it very much."




Suit alleges Novus manipulated financial information

By Steve Birmingham

A lawsuit alleges Sunset Hills did not follow state Tax Increment Financing Act requirements and that Novus Development concealed financial information from the city that could have effected the TIF assistance it received from the city.

Attorneys for William and Shirley Aschinger filed a motion for summary judgement Dec. 12 in their suit against Sunset Hills that attempts to overturn two ordinances approving a redevelopment of the Sunset Manor neighborhood and naming Novus Development as the project's developer.

The motion alleges that Novus substantially changed the nature of the
redevelopment plan after the city's TIF Commission hearings were concluded this summer, during which the Commission voted against the redevelopment plan.

In his argument, Jerry Carmody, an attorney for the Aschingers, stated that both Peckham Guyton Albers & Viets, Inc. (PGAV) and the city's bond counsel, who would have been responsible for issuing the $42 million in TIF bonds approved by the city in May, told Novus the project had to be referred back to the TIF Commission because of the substantial changes made to the plan.

The motion alleges that evidence shows that between the time the city's TIF Commission concluded its hearings in April and the city approved the redevelopment plan a month later, Novus made substantial changes by switching its anchor tenant from Bass Pro Shops to Famous-Barr, revised the site plan from over 750,000 square feet to over 821,000 square feet and dramatically increased the size and cost of the project.

According to the motion, Novus concealed from the city's consultant and the TIF Commission information that the cost of the project had increased from the $162 million proposed to the TIF Commission to almost $180 million.

The motion also alleges that Novus changed the anchor store during the TIF commission hearings but did not notify the commission nor PGAV until the hearings were concluded.

Novus originally agreed to pay Bass Pro Shops $30 million to build it a 200,000-square-foot building, which bumped the cost of the project up $15 million to over $177 million. When Novus later learned Bass Pro Shops would not be part of the development Novus replaced them with a 155,000-square-foot store and entered into a deal with Famous-Barr by promising them $10 million to move from the Westfield Shoppingtown/Crestwood and promising not to charge them rent for the life of the lease.

This change, the motion alleges, had significant legal consequences because under Missouri's TIF Act, as long as Bass Pro Shops was the anchor tenant, 100 percent of the tax revenue generated by the it would go to pay off the TIF bonds: With Famous-Barr as the anchor tenant and moving from one municipality to another within St. Louis County, Missouri's TIF Act allows only a portion of the tax revenue to be used to pay off the bonds.

The motion alleges that when the city, PGAV and the city's bond counsel learned that the revisions changed the project and that it should be sent back to the TIF commission, Novus manipulated its projections to convince them otherwise.

Jonathan Browne, president of Novus Development, was out of town and unavailable for comment.


St Louis Post-Dispatch: www.stltoday.com

Eminent domain ruling targeted by Wisconsin Farm Bureau Federation: The (Milwaukee WI) Daily Reporter, 1/2/06

By Sean Ryan

The Wisconsin Farm Bureau Federation is lending its support to proposed state legislation that would narrow the applicability of eminent domain. The federation listed the Kelo v. New London U.S. Supreme Court decision as a top issue of 2005, and listed legislation to counter that decision as a priority for 2006.

The Kelo ruling affirmed municipalities' authority to use eminent domain to acquire a property and lease or sell it to a private entity for redevelopment. Wisconsin state law already allowed this. The new proposal awaiting a state Senate vote would set criteria — such as a higher crime rate — that targeted properties would have to meet.

"It (Kelo) flipped a light switch on the power that municipalities had," said Tom Thieding, executive director of public relations for the federation. He said the federation is interested in protecting property rights of people who own agricultural land around municipalities that could be targeted for redevelopment.

"From agriculture's perspective, there's a real concern for agricultural land that's right around a municipality because agricultural land is taxed at a lower rate," Thieding said. "They could pretty much straight out say, ‘We want this land, and we're going to condemn it.'"

A concern is that, even if a city sits down to negotiate a price with a property owner, its eminent domain authority would overshadow the discussion, Thieding said. "The private landowner is always at a disadvantage because it's always hanging out there," he said. "I think that allows municipalities to lowball a little bit because they know they can do that."

Williams' bill
Rep. Mary Williams, R-Medford, authored the bill the federation is supporting. It said that property a municipality targets for eminent domain with the intent of conveying it to a private entity must be blighted. That could mean it is dilapidated, unsanitary, overcrowded or too large for its lot, but it must be "detrimental to the public health, safety or welfare."

Any residential property must be abandoned and have a higher crime rate than the municipality it's located in. "It defines the term ‘blighted property,'" Thieding said. "They're trying to narrow it down, so that's a starting point."

Williams' bill has 37 sponsors in the state Assembly and Senate. The state Assembly passed it on an 88-9 vote on Sept. 27. The Senate Committee on Judiciary, Corrections and Privacy — with co-sponsor Sen. David Zein, R-Eau Claire, as chairman — will consider it next. Two of its four remaining members are also sponsors.


The Daily Reporter: www.dailyreporter.com

Business groups and lawmakers join forces to tighten eminent domain rules: Ft Madison (IA) Daily Democrat, 1/2/06

By Gerry Baksys

If you go next door to ask your neighbor for a cup of sugar, chances are that you will get it. If you ask for the deed to their house so you can develop a Wal-Mart, you might not be so lucky.

However, because local and state officials can seize your property to do just that, state lawmakers - with the backing of several business groups - are planning legislation to prevent that from happening.

Under the Iowa and federal Constitutions, the government has the right to seize private property -with just compensation - for ‘the public good.' This practice is called “eminent domain,” and has been used for years to build or fix public properties like streets, parks, or highways.

However, when New Haven, Conn. decided to seize private residences in order to give that property to a private developer, a huge lawsuit arose. The case ultimately went before the United States Supreme Court who, in a 5-4 vote, upheld the city's right to use eminent domain in that instance.

The repercussions of that decision have sent numerous state legislators scrambling to enact laws that would limit the use of eminent domain in their states. Iowa is no different.

According to House Democrat Phil Wise, legislation is already being planned - even before the session starts - to limit the use of eminent domain in Iowa.

“I am working with a bipartisan group to craft legislation to make modifications in Iowa's eminent domain law,” Wise said. “It is in response to the Supreme Court decision in which they made it clear that the notion of public good can be very broadly construed. Some of us believe too broadly construed.”

Wise added that the goal is not to eliminate the power of eminent domain, but to merely limit it to what he said was its intended purpose.

“Eminent domain historically has been used for two things,” Wise said, “One is for the public-good projects like highways or streets, things of that nature. And it has been used in areas that have been designated as blighted. We are trying to find a balance of what is really for the public good. The taking of private property by government is a very powerful tool that needs to be used sparingly.”

Republican House member Dave Heaton agreed. He said that eminent domain should only be used in very specific circumstances, and not for giving private property to private developers.

“I don't have a problem with eminent domain for public projects,” Heaton said. “But I do have a problem when it is used to acquire the land and then hand it to another person for private development. That will be difficult to define. So I look forward to a lot of discussions on this topic.”


Daily Democrat: www.dailydem.com

Survey shows support for eminent domain amendment: Everything Alabama, 1/1/06

By Phillip Rawls, Associated Press

Gov. Bob Riley wants to put Alabama's new eminent domain law into the state constitution, and a survey of Alabama legislators shows many have the same goal.

In response to an Associated Press survey, about two-thirds of the House and Senate said they would support a constitutional amendment.

"As I go through my rural district, that is the number one issue," said Sen. Gerald Dial, D-Lineville.

In June, the U.S. Supreme Court issued a 5-4 decision saying local governments could use their powers of eminent domain to seize property needed for private development projects that would generate tax revenue.

A month later, Riley called the Legislature into special session and won enactment of a law preventing city and county governments from condemning property to use for private development, such as a shopping center or manufacturing plant. It retained the use of eminent domain for traditional projects, such as schools, parks and roads, and to remove blighted neighborhoods.

In a recent interview, the Republican governor said the law addressed the immediate problem, but when the Legislature convenes Jan. 10, he will ask the lawmakers to approve a proposed constitutional amendment that would put the law into the state constitution.

If approved by the Legislature, the next step would be to present the proposed constitutional amendment to Alabama voters in a statewide referendum. If the restrictions are put into the constitution, they would be harder to change than a state law, Riley said.

In an Associated Press survey answered by 73 percent of the House and 91 percent of the Senate, a constitutional amendment had support from 68 percent of the House and 69 percent of the Senate. Opposition came from 15 percent of the House and 16 percent of the Senate, with 17 percent of the House and 16 percent of the Senate undecided.

Senate President Pro Tem Lowell Barron, D-Fyffe, said he sees no need for a constitutional amendment.

"We've addressed that issue. The law we've passed is strong," he said.

Sen. Larry Dixon, who helped write the new eminent domain law, said the fight won't just be over putting the current law into the constitution. It will also be over making the constitutional amendment stronger than the law.

Dixon, R-Montgomery, said he will propose a constitutional amendment that would prohibit the use of eminent domain to remove blighted neighborhoods. Rep. Gerald Allen, R-Cottonwood, said he's working on a similar constitutional amendment that will restrict or ban the use of eminent domain in blighted neighborhoods.

Both expect opposition from city officials who want to retain the power to clean up declining areas of town.

Sen. E.B. McClain, D-Midfield, expects city officials to make a powerful argument. "I think blighted neighborhoods will have to stay in there," he said.

But Allen said Alabama landowners are calling for more protection.

"We feel like the Legislature has a responsibility to its citizens to present the constitutional amendment and let them go to the polls," he said.


Everything Alabama: www.al.com

1/01/2006

Eminent Domain Hits Home: Columbia (MO) Daily Tribune, 12/31/05

Man hopes struggle will instruct others

It took five years and a contested decision from the U.S. Supreme Court, but Doug McDaniel finally has his captive audience.

"Most people, when you start talking about eminent domain, get glassy-eyed and don’t think that it could ever happen to them," he said.

It happened to McDaniel, 49, whose family has lived outside of Linn in central Osage County since 1791. McDaniel complained to legislators, but nothing happened.

Then in June, the Supreme Court drew national attention to the use of eminent domain, ruling property could be taken for private redevelopment that generates more taxes.

Gov. Matt Blunt responded by appointing a task force on eminent domain. Now the issue is among the Missouri General Assembly’s priorities for the 2006 session.

But the new interest comes too late for McDaniel. After negotiations with Ameren produced no agreement, the St. Louis-based power company used eminent domain to acquire the land it needs to build a 345-kilovolt power line that will help Ameren sell electricity in northwest Arkansas. The line cuts through McDaniel’s fields, running six feet from his metal barn and 75 feet from the farmhouse.

"When this first started out, as the landowner, naturally, I thought I had more rights to the land than anyone else," he said. "I was pretty shocked that people other than me had more rights to my land."

Missouri law gives municipal governments the authority to condemn private property for public use, such as the construction of roads and electric and water lines. Although local governments can also use eminent domain to seize property for private developments, such as shopping malls or office buildings, some private companies also have this condemnation authority.

Michael Cleary, a spokesman for Ameren Services, said Ameren does everything it can to work out an agreement so the utility has permission to use the land without the property changing ownership.

Cleary said that sometimes, with particularly reluctant landowners, eminent domain is the only way to acquire land needed for an electrical line.

"The landowner wouldn’t have power if someone somewhere hadn’t granted an easement to get the power to them," he said. "Putting it in someone else’s back yard isn’t really an option, because then you just have another landowner."

The examples of eminent domain use extend throughout the state, yet geography affects the debate.

In rural areas, utility company easements are one of the most common manifestations, because private property is rarely needed for commercial development.

Likewise, larger cities have plenty of power lines, but a city government can increase its tax base by declaring homes or apartment buildings "blighted," thus opening them for development by other private entities.

But the definition of blight is subjective and often has been criticized as a mechanism for taking private property and using public money to redevelop it.

"A piece of property should have to be clearly blighted and not just in worse shape than mine to call it blighted," said Sen. Chuck Gross, R-St. Charles, who served on the governor’s eminent domain task force. "It shouldn’t be a relative figure but an objective standard that isn’t left up to the whim of a local government or the court."

As frustration over eminent domain mounted, a special House committee was named in 2003 to study the state’s eminent domain laws. McDaniel was among those urging change. But the full House never voted on the committee’s recommendations.

Since then, McDaniel’s legal battles with Ameren have continued, and the state is again gearing up to change how eminent domain and easements can be used.

A gubernatorial task force appointed to study eminent domain has recommended its changes, and a slew of bills have been filed. Some would narrow the types of properties that can be seized under eminent domain; one would require businesses that use eminent domain to acquire private property to give 2 percent of the annual earnings from the site to the former landowners.

Had the recent recommendations from the governor’s task force been in place when Ameren began its project in 2001, the company still could have put a power line through McDaniel’s farm, but it would have happened differently.

Ultimately, Ameren condemned and repossessed a tract on McDaniel’s farm. One proposal calls for stripping eminent domain authority from private companies. This would not necessarily include utility companies, but the task force urged the legislature to consider whether utilities and railroads should also have the same condemnation authority as the government.

Under the task force recommendations, McDaniel would have been given information about his legal rights as soon as Ameren indicated it wanted an easement for his land, and he would have had access to a state ombudsman to help him through the process.

In spite of the recent attention, McDaniel said most people still don’t understand eminent domain, which makes them vulnerable.

"People think if they own their home and pay their taxes, it’s theirs, but if someone with more money comes along and wants to develop it, run power lines over it or a sewer line under it, they could lose it," he said.

Cleary said it’s important to differentiate between the instances when utility companies use privately owned land to extend electrical, gas or water lines across property and when developers and municipal governments use eminent domain for redevelopment.

"Utility projects provide a community service that ultimately benefits the entire community," Cleary said. "It’s an entirely different situation than condemning property to turn it over to a private developer for an office building or a shopping center. That’s what’s really raised the public ire."


Columbia Daily Tribune: www.columbiatribune.com

State court rules against Norwich for eminent domain land: Norwich (CT) Bulletin, 12/30/05

A state appellate court has ruled against the city of Norwich in a dispute over the value of a small parcel of land the city seized by eminent domain.

The 198-202 Main St. parcel, already incorporated into the Wauregan Hotel project under construction, was condemned and seized by the city from Bozrah-based Styx Investors in Norwich, LLC in 2003.

In 2004, a superior court decision ruled in favor of the city in determining of the value of the property. But a State Appellate Court decision to be published Tuesday overturns the ruling siding with an argument that the value of the land should be determined in conjunction with the Wauregan project rather than the market value.

The city had proposed an offer of $16,000, which prompted the appeal to superior court. Appraisers for Styx pegged the value at $95,000.

In their decision, the appellate court noted it was publicly known the land was to be used in conjunction with the development of the Wauregan Hotel.


Norwich Bulletin: www.norwichbulletin.com

Eminent domain task force issues final report: Kansas City (KS) Business Journal, 12/30/05

The Missouri Task Force on Eminent Domain issued a list of 18 recommendations Friday to Missouri Gov. Matt Blunt for changes and improvements in how eminent domain is used in the state.

In a written release, Blunt said he endorses the recommendations, which, if enacted, are expected to make a difference in curbing the abuse of eminent domain in the state.

The recommendations include:
  • Legislation to define just compensation, blight, public use and good faith negotiations.
  • Legislation that ensures property owners are made aware of their rights and that property owners have sufficient time to participate in the process.
  • Laws to allow for mediation and cost recovery.
  • Laws to protect landowners if the condemning authority acts in bad faith or doesn't use the land for its original purpose within a certain time frame.
  • Laws that limit eminent domain powers to elected officials and their appointees.
  • Laws that prevent eminent domain use to take farm land for economic development purposes.
  • Studying the possibility of a state government official to help citizens with the eminent domain process.



Kansas City Business Journal: http://kansascity.bizjournals.com

Governments Address Kelo Backlash: The Heartland Institute, 1/1/06

By James Hoare

State and local governments are responding to a groundswell of citizen outrage over the U.S. Supreme Court's June 23, 2005 decision in Kelo v. City of New London. As citizens prove adamant that government should not violate private property rights merely to enhance tax revenue by forcing one private citizen to sell his or her property to another, bills designed to end eminent domain abuse are being authored in legislatures across the nation.

Thirty-eight states have passed legislation restricting eminent domain abuses or are currently in the process of doing so. Support for reform legislation is remarkably bipartisan and evenly distributed throughout the country.


Kansas Represents Bipartisanship
The heartland state of Kansas provides a typical example of the bipartisan support for eminent domain reform. State Senate Majority Leader Derek Schmidt (R-Independence) teamed with Sen. Greta Goodwin (D-Winfield) in September to unveil legislation limiting the circumstances under which government can take one citizen's property and transfer it to another.

"The notion that property ownership is a right doesn't have much meaning if a majority of the city council, county commission, or state legislature can vote to take a person's property and give it to somebody else," explained Schmidt, quoted in Greenwire on September 30.

"I certainly believe that some adjustments are in order to protect private property rights," added Republican colleague Sen. Phil Journey (R-Wichita). "To give land to another person so that person can make money and grow the tax base is outside the purposes of eminent domain and outside the right of government to take private property. There needs to be a very high burden of proof for such actions."

The proposed legislation is equally popular among Democrats. "I just think it's an abuse of power" for government to take property from one private citizen and give it to another, state Rep. Harold Lane (D-Topeka) told the October 7 Topeka Capital-Journal.

Protecting basic property rights "is a people issue," agreed state Rep. Ann Mah (D-Topeka).

Many States Taking Action
While the Kansas proposal waited to be formally addressed by the legislature, other states also took steps to curb eminent domain abuse. The Wisconsin Assembly passed eminent domain legislation on September 27 and forwarded it to the state Senate. The Pennsylvania House passed eminent domain legislation in November. The Michigan Senate passed eminent domain legislation on November 9, and Ohio Gov. Bob Taft (R) on November 16 signed into law a measure preventing local governments from seizing unblighted land for economic development.

"Citizens have been rising up against eminent domain abuse," said Scott Bullock, senior attorney at the Institute for Justice. "It has been an incredible thing to witness.

"With 38 states either limiting eminent domain abuses or currently in the process of doing so, this is a grassroots movement of epic proportions," Bullock said. "There is a real opportunity to change the law, and state legislators from both parties are taking notice."

Local Governments Join Fray
In many cases, local governments decided not to wait for state legislative action and began the process of enacting private property protections of their own. In St. Charles, Missouri, City Councilman John Gieseke introduced a resolution on November 1 to prohibit the city from confiscating private homes for the purpose of giving the land to another private citizen for economic development.

"Can you imagine someone coming to your neighborhood and taking your home to put up a Wal-Mart?" said Gieseke at a November 1 city council meeting, according to the November 6 St. Louis Post-Dispatch.

Local businessman Kevin Rogers, who owns a Dairy Queen, expressed disappointment during the meeting that the resolution applied to homes but did not safeguard other private property.

"I'm strongly opposed to somebody coming and taking away my Dairy Queen to develop it and make some developer rich," Rogers said.

Acknowledging Rogers' concern, Gieseke proposed to expand the resolution. "If the area's not blighted and there's a legitimate business, eminent domain should not be used," Gieseke agreed.

Eminent Domain Abuser Dumped
Local officials who supported broad exercise of eminent domain power did so at their own peril. St. Louis Alderman Thomas Bauer was recalled from office by residents of his blue-collar neighborhood after he played a pivotal role in displacing local residents from their homes for the purpose of building a gas station and convenience store.

Bauer asserted his intention was to improve the neighborhood's economy and convenience with the new business, but his words fell on deaf ears.


More than two dozen documents addressing eminent domain, including the full text of the majority and dissenting opinions in the Supreme Court's Kelo decision, are available through PolicyBot™, The Heartland Institute's free online research database at www.heartland.org. Click on the PolicyBot™ button, and select the topic/subtopic combination Law/Eminent Domain.

The Heartland Institute: www.heartland.org

James Hoare is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon: jhoare@mcgivneyandkluger.com

Petitions oppose eminent domain in Clayton: St Louis (MO) Post-Dispatch, 12/28/05

By Margaret Gillerman

A group of downtown Clayton property owners turned in petitions at City Hall on Wednesday to try to force a public vote on the use of eminent domain for the $190 million Centene Plaza redevelopment project.

"Eminent domain for the enrichment of a private party is wrong," said David Danforth, one of the property owners and the president of Mint Properties Inc. "We have not been offered fair prices, and many of us would rather not move at all."

Members of the group - called the Clayton Committee to Stop Abuse of Eminent Domain - presented the petitions to acting City Clerk June Waters. The petitions ask the Board of Aldermen to repeal two ordinances passed Dec. 13, one allowing the Centene Plaza redevelopment project and one allowing use of eminent domain to obtain properties in the 7700 block of Forsyth Boulevard for the project. Should the board refuse, the petitions seek to force the city to hold a referendum.

City Manager Mike Schoedel said the Centene project had unanimous support from the board. Centene provides managed health care for Medicaid recipients and for children whose family income is too high for Medicaid but not sufficient to afford private insurance.

"We remain convinced that the project to keep Centene's headquarters in Clayton and generate 800 new jobs is in the best interests of the people of Clayton and the entire region," Schoedel said. "It will ... revive an area that has suffered high vacancy rates and plummeting economic performance over the past decade."

Schoedel said the property owners would be paid at least 105 percent of the market value of their property. "The city is obligated to make certain that existing property owners are treated fairly, and we will do that," he said.

The five property owners whose properties would be taken say their properties are well-maintained and house viable businesses. The properties - from 7716 through 7736 Forsyth - include the Dolan and Edward L. Bakewell realty offices, the Kohner Building and a spa, among other businesses. The project would not affect Cafe Napoli and a few other stores immediately east of Napoli.

Both Dolan and Bakewell would have to go, and the companies do not want to move.

"We have been part of the Clayton community for a long time, and we've supported it for a long time, and we would like to continue to do so - at this location," said Daniel F. Sheehan Jr., president of Dolan Realtors and owner of the properties at 7716-18. Dolan has been in Clayton since 1951 and at the site since 1977. Bakewell, one of Sheehan's tenants, has been in Clayton since 1930 and at that site since 1981.

Centene plans to build a new corporate headquarters in a 16-story building at Hanley Road and Forsyth Boulevard, renovate its existing office building, buy a city-owned parking garage and build a new strip of retail stores. Centene is asking for a tax abatement.

The property owners in opposition said they support the Centene project, except for the retail strip.

"Just look across the street. I defy anyone to tell me they see blighted buildings," said Laura Dierberg Ayers, a lawyer representing the Clayton Committee to Stop the Abuse of Eminent Domain. "Clayton voters do not support the use of eminent domain in such an abusive manner ... not tax abatement giveaways."

She said the group gathered about 270 signatures of registered voters, five times as many as needed for a referendum. The next step is for city officials to turn over the paperwork to the county election board to verify that the signatures are valid.


St Louis Post-Dispatch: www.stltoday.com

Use of eminent domain stirs debate: (Lincolnshire IL) Pioneer Press, 12/29/05

By John Roszkowski

Carol Johnson doesn't like the idea of the government taking people's property and then turning it over to a private developer for just another retail center.

Johnson is one of many Lake Zurich residents who has protested recent efforts by her village to condemn five properties in the downtown to pave the way for a new retail and condominium development.

While her property is not directly affected, she worries that her home, which is located only a couple blocks from the proposed development, could be targeted for condemnation in the future.

Supreme court ruling
The use of condemnation by villages to redevelop downtown areas has produced a debate between property rights advocates and village officials. The debate intensified recently with the U.S. Supreme Court's Kelo decision which expanded government powers to condemn property for private development projects.

In the past, governmental units have primarily used eminent domain to provide vital services to the public, such as new roads, hospitals or utilities.

State Sen. Susan Garrett, D-29th, of Lake Forest, has proposed a bill to better clarify when eminent domain can be used for private development and provide more protection to individuals whose property is taken.

"The legislation tries to find a balance between economic development and property rights," she said.

Garrett's bill would limit the taking of property for private development to property that is "blighted" or to areas defined as blighted under the Tax Increment Allocation Redevelopment Act. It also would require the condemning authority to pay reasonable relocation costs to affected property owners, if necessary, and to reimburse reasonable attorney's fees to property owners who contest condemnation if a court determines the taking of property was not warranted.

Garrett said she plans to introduce the bill during the spring legislative session and hopes to get feedback from citizens, businesses, developers and local governments by Jan. 6.

Chris Wilson, executive director of the Lake County Municipal League, which represents 42 cities and villages in the county, said Illinois already has very strong laws in place to protect the rights of property owners when eminent domain is used for redevelopment purposes. She worries the additional expenses could kill important projects.

"It just encourages people to litigate and stall. It doesn't give them any incentive to sit down with local governments and negotiate in good faith," she said.

Earlier this year, Lake Zurich filed eminent domain lawsuits against five parcels in its downtown along Main Street and Lake Street. Four of the properties were residential rental homes and one was a business, the Rock N' Roll Grill.

Lake Zurich Village Administrator John Dixon said all of the properties the village sought were within the village's downtown Tax Increment Financing District. Dixon said a village five-year study found property values in that area were experiencing little growth, and in some years declining.

"We had spent considerably money on infrastructure enhancements in that area, but property values weren't keeping up," said Dixon.

He said Lake Zurich has already reached an agreement with three of the property owners on a purchase price.

But many homeowners like Johnson are concerned about the precedent being set by the village's action.

"If a village can capriciously take a person's property and sell it to a developer, everybody's got to be worried," she said.

Eric Waggoner, a principal planner for Lake County, said the county is monitoring eminent domain legislation at the state level but has yet to take an official position.


Pioneer Press: www.pioneerlocal.com

Eminent domain — Recreation can be legitimate use of this government power Anchorage (AK) Daily News, 12/29/05

Opinion

Eminent domain, a standard power granted to government under the U.S. and Alaska constitutions, sure is getting a bad rap these days.

It started with a controversial U.S. Supreme Court ruling that allows the government to take property (albeit at fair market value) for private redevelopment projects. Critics on the left and right assailed the ruling. Many states and cities, Anchorage included, reacted with laws saying their governments can't use eminent domain in the way the court had authorized.

It was an understandable and legitimate response. Turning government-condemned land over to private owners leaves too much room for abuse by well-connected development interests. If there's a strong enough public purpose to justify the government forcing someone to sell against his wishes, the property should remain in public ownership.

Now comes Anchorage Assemblyman Chris Birch. He wants to pile additional restrictions on the city's potential use of eminent domain. He's hoping his colleagues will agree to limit the city's power to force the sale of a property interest — even an easement just a couple of feet wide — when it's used exclusively for trails or other so-called "leisure" purposes.

His latest version exempts sidewalks and trails that are done when street and roads are built or upgraded. That change helps limit the damage his proposal might do. But overall, his ordinance is still an overreaction based on the idea that trails and other recreation facilities are somehow frivolous. In fact, they are part of the infrastructure of a healthy community.

Public health officials have pointed out that the nation is in the midst of an obesity epidemic. One major cause is sedentary lifestyles. Getting people active is a legitimate goal of government policy.

The easiest, most popular form of exercise is walking. Making it easier to get around on foot, including purely "recreation" trails, is an important public health measure. In a survey this year by the city parks department, four of the five most popular recreation activities involved trails. Vast numbers of walkers, runners, bikers and skiers ensure the trails are heavily used year round.

An expanding trail network is also part of a balanced metropolitan transportation network. The easier it is to walk or bike or ski, the more people can shop, go to work, or visit friends without hopping in a car. Every time a car is not started, Anchorage's air stays cleaner.

Those who oppose the southern extension of the Coastal Trail hope Birch's ordinance will drive a stake in project's heart. The southern route requires easements along small slices of many properties. Some easements are below the bluff, out of sight of the owner's house. In other places, the trail needs to cross small sections of private property alongside a public street or road.

Birch's ordinance would give the most recalcitrant homeowner veto power over the entire trail extension. Letting one person kill a project that serves thousands of people in the entire community is clearly not in the public interest.

Given the Assembly's conservative tilt, and demonstrated hostility to the Coastal Trail extension, Birch's ordinance may pass. But it's a misguided measure that would make it harder to build the infrastructure that makes Anchorage a healthy community.

BOTTOM LINE: There's no good reason to ban the use of eminent domain for recreational projects in Anchorage.


Anchorage Daily News: www.adn.com

Milwaukee Neighborhood Group Calls for Eminent Domain Use: (Wisconsin) Daily Reporter, 12/23/05

By Sean Ryan

A neighborhood group around the Hartung Quarry landfill wants the city of Milwaukee to unleash its eminent domain powers.

The city-owned landfill is completely surrounded by a classic suburban single-family neighborhood. The Hartung Park Neighborhood Association wants the city to convert the landfill into a public park, but first it wants the city to acquire and rip down the neighborhood’s five remaining apartment buildings, located on North 99th Street. It also wants to see a cul-de-sac of owner-occupied houses built in their place.

“We know there’s all this crap going on up there,” said Margaret Silkey, president of the roughly 45-member association. “We just want to keep the neighborhood a decent, viable place and not have it become a run-down area.”

The local alderman, Jim Bohl, is sponsoring a resolution to order the Department of City Development to plan for a tax incremental financing district to pay for the new park. The plan includes acquiring the five, four-family apartment buildings around the landfill and redeveloping the lots.

Although the resolution orders DCD to make a “good-faith effort” to do that without using eminent domain, Milwaukee Mayor Tom Barrett said he doesn’t want to touch the idea of acquiring the properties for redevelopment.

“It’s a dangerous road to go down,” he said. “I have not seen any member on the council wanting to tear down these homes except the alderman in the local area.”

Kelo ruling
The situation hits a nerve that the U.S. Supreme Court’s Kelo v. New London ruling left raw in 2005 when it said governments could use eminent domain to acquire property for economic development. It’s a case Barrett, Bohl, Silkey and Milwaukee County Supervisor Lynn De Bruin referenced when discussing Hartung.

Bohl said he’s got grassroots backup and that the neighborhood would be ready to pepper the mayor with calls and letters to gain his support. Silkey said she knows Barrett and said, “I can understand why Tom feels like that.”

“We’re going to have to develop some strategy to perhaps enlighten the mayor,” she said.

This looming conflict was news to three of the four property owners caught in the middle. Apparently nobody from the city or neighborhood told them about the discussion over whether or not their buildings should be torn down. Nonetheless, the three said the same thing when they heard the news: I’ll negotiate, but the price better be right.

“I’d be screaming and kicking if it wasn’t worthwhile,” said Dominic Ambroselli, a Milwaukee resident who owns one of the five apartments. “It’s totally a money thing. I could potentially love the plan if they could be in my favor as far as the price. Otherwise, it would be a terrible plan if I could do a lot better on the open market.”

Two of them said they bought the properties because they knew the landfill would turn into a park one day and increase the value of the buildings. Donald Janowski, a Brookfield resident who owns two of the buildings, bought his about 10 years ago, and Ambroselli said he waited 20 years for the city to build the park.

“I have to assume that it would be a good scenario for my property here,” Janowski said about the park. “I don’t know if the city of Milwaukee can afford it, but with all the taxes I pay them ...”

Unlikely scenario
De Bruin, who is working on the park plan with the city as chairwoman of the county Parks, Energy and Environment Committee, said she thought eminent domain was an unlikely prospect.

“The negative of that is those properties might not be gone, but one positive of it is that you won’t have to force people out of their homes,” she said.

Silkey said that, as an ex-realtor, she understands the issues at play but thinks the buildings should go for the greater good of the area. She said the buildings generate police calls, have garbage on the curb and attract an unsavory crowd of tenants.

“It’s a matter of taking away someone’s livelihood — which is the rent from those buildings — so that is a big issue,” she said. “The multifamilies will deter from the beauty and the use (of the park) because there is so much activity going on down in the corner. … It’ll spill over into the park, and people will use it for who knows what.”

Tom Holman, who owns an apartment across the street from Hartung Quarry, said he’s been trying to upgrade his tenants and recently booted one that was causing a lot of trouble. Janowski said he screens his tenants very closely but that the apartment between the two buildings he owns has some problems.

“I’m very cautious and very careful about who I rent to,” said Janowski, who spent $20,000 renovating his properties in recent years. “I try to rent to people that will be good for the neighborhood.”

The city’s Zoning, Neighborhoods and Development Committee is scheduled to consider Bohl’s resolution on Jan. 10.


The Daily Reporter: www.dailyreporter.com

12/25/2005

Eminent domain challenge feared: Tri Valley (Pleasanton CA) Herald, 12/24/05

Officials worry new laws could hinder or halt some Livermore development

By Mike White

[Livermore CA] officials fear that pending legislation in Sacramento and Washington, D.C., to restrict the use of eminent domain could hurt efforts to revitalize this city.

The legislation on the state and federal levels was prompted by the U.S. Supreme Court's decision in June upholding the right of a Connecticut city to take land for the construction of a development project, including a hotel and conference center.

Both houses of the U.S. Congress are considering measures to restrict the government's ability to take land through eminent domain. Additionally, at least three petitions have been filed with state officials signaling the possibility of initiatives to curtail the use of eminent domain.

The sentiment for restricting eminent domain actions predates the Supreme Court case. Laws were enacted in Utah and Nevada earlier this year and in Colorado in 2004 that either eliminates the use of eminent domain in most cases, as in Utah, or forces the government to show a property is blighted before it is taken, as in Colorado and Nevada.

Livermore officials have watched the mounting campaign against eminent domain with apprehension. The city's redevelopment agency is one of the most active in the area in using the method to acquire property that officials view as paramount to revitalization.

For instance, over the course of the past two years, the city has filed numerous court cases to acquire land in the "Golden Triangle" to develop such projects as retail shops, a movie theater and a performing arts center. The triangle is bounded by First Street, South Livermore Avenue and Railroad Avenue. Earlier this year, after the acquired buildings were demolished, the less than 1-square-mile triangle was nearly devoid of buildings. Construction began late this year


Tri Valley Herald: www.insidebayarea.com/trivalleyherald

12/23/2005

Newport still using eminent domain: Cincinnati (OH) Enquirer, 12/23/05

By Ryan Clark

After a second appearance before the Newport City Commission, Raymond Butts may have caused some change in the minds of city commissioners.

Butts came before the commission in November imploring it to pass legislation to prohibit the use, or the threat of using, eminent domain to obtain property for city projects.

The commission declined, saying it would be too difficult and would limit the ability of the city to grow through development.

But a month later, when Butts again asked the commission to consider the issue, he brought an example of how the city of Bowling Green, Ky., passed such a law.

Butts, who lives on Joyce Avenue and ran for City Commission in 2002, produced a copy of a Bowling Green ordinance that specified the city would not use eminent domain, or any "threat thereof," unless it pertained to city projects.

Butts said it proved that such an ordinance could be written and passed. And an ordinance could deter developers from threatening to use eminent domain to convince property owners to sell their land, he said.

Still, commissioners declined to take a step toward drafting an ordinance.

"When you make those kinds of decisions, it makes it very difficult to make change," Newport Mayor Tom Guidugli said.

But Guidugli did say he would try to get eminent domain laws changed at the state level.

"I'm going to work with legislators to make sure it's clear and clean and that it's not abused," Guidugli said.

Guidugli said there have been two projects for which the city has used eminent domain: some properties for the development of Newport on the Levee and for land in the Cote Brilliante neighborhood, which has not been developed.

Commissioners previously said there are no current projects for which eminent domain would be used. Butts countered that the city should be able to pass an ordinance saying it would not use eminent domain.

Still, Guidugli said passing an ordinance would limit the city if a future project was devised that required eminent domain.

Guidugli pointed to the good that can come from development.

"Without eminent domain, (Newport on the Levee) would have never happened," he said.


Cincinnati Enquirer: http://news.enquirer.com

12/22/2005

Senator wants eminent domain reform on ballot: Sacramento (CA) Bee, 12/22/05

By Daniel Weintraub

California conservatives are forever searching for the next Proposition 13, the property-tax-cutting initiative that tapped into a deep, bipartisan disgust with government in 1978 and ushered in an era of tax reductions and spending limits that ultimately helped pave the way for Ronald Reagan to win the presidency.

Have they found it in eminent domain? That long-standing policy, enshrined in the U.S. Constitution and state laws, allows the government to force the sale of private property for public use as long as it pays the owner fair market value in return.

The definition of "public use," once limited to highways, parks and the like, has evolved over the years to something more akin to "public purpose." Lately, the chief use of the power has been on behalf of economic development, with governments buying land considered blighted and then selling it to another private party to transform into other, more productive uses.

Decades of policy creep that slowly expanded the reach of eminent domain troubled some who followed the issue closely, but never excited the public much. Now that may be changing. Last summer's U.S. Supreme Court decision in the Kelo case has ignited a rebellion across the country that will likely play out here next year.

In Kelo, a case involving a Connecticut woman whose house was the object of the city of New London's desire, the court ruled that it was legal to take one person's home and sell it to another if the proposed new use of the land would produce higher tax revenues for the government. Although legal experts said the case broke little new ground, as an emotional touchstone it was different, and it triggered a countermovement to roll back the power of eminent domain through legislation and state constitutional amendments.

Texas and Alabama were among the first to pass laws limiting the power of local government to take homes and businesses for private profit. Earlier this month, the Pennsylvania Senate, in a unanimous vote, passed the Property Rights Protection Act, which would prohibit the use of eminent domain for commercial development and tighten the definition of blight. Then, both houses of the Michigan Legislature passed a constitutional amendment that would prohibit the taking of private property for transfer to another private entity "for the purpose of economic development or enhancement of tax revenues."

In California, Sen. Tom McClintock, a libertarian-leaning Republican from Simi Valley, introduced a similar measure, SCA 15. That proposed constitutional amendment would allow government to use eminent domain only to take private property for public use and would require that the government agency that takes private property retain ownership of it or lease it to a private entity regulated by the Public Utilities Commission.

McClintock's bill stalled in the Legislature, where Democrats pushed an alternative that would adopt a two-year moratorium on the use of eminent domain to take owner-occupied residential property for transfer to a private use. During the moratorium, the state Library's California Research Bureau would conduct a study on the use of eminent domain in California.

But McClintock isn't going to wait around. He has submitted two versions of his proposal as a ballot initiative, and he intends to begin circulating one of them for signatures early in 2006. One version is almost identical to the measure he tried to move in the Legislature. The other is more sweeping and would also roll back the government's right to restrict a property's potential use, and thus its value, through regulation. McClintock seems to be leaning toward the narrower version.

"There is nothing that stirs the American heart more than a manifest abuse of power that creates an injustice," McClintock told me last week. "Taking one person's home or business to give it to another for personal gain is exactly such an abuse of power." McClintock's proposal could sharply limit the scope of redevelopment in California, forcing the agencies that do such work to deal only with willing sellers if they intend to transfer title of the land to another private party. And even in those cases where property owners are willing to sell their land, the kind of constitutional protection McClintock is talking about would probably drive up the price of property government agencies are seeking to acquire.

Still, McClintock believes his proposal has the potential to attract wide bipartisan support, at least outside the halls of the Legislature.

Advocates for the poor and for minorities have expressed interest in the issue here and elsewhere. Rep. Maxine Waters, a Democrat from Los Angeles, has been working with Republican Rep. Richard Pombo of Tracy on a set of federal reforms aimed at the issue.

"Homes aren't being seized in upscale Republican neighborhoods," McClintock said. "They're being seized in working-class neighborhoods. Major corporations aren't suffering from the seizure of their businesses. It's mom-and-pop shops that are being seized. This is the theft by the politically powerful of property owned by the politically weak. That strikes a chord among honest liberals."

If he's correct, eminent domain may prove to be as powerful a political issue as it has been as public policy.


Sacramento Bee: www.sacbee.com

12/21/2005

Land dispute puts eminent domain laws under fire: Atlanta (GA) Journal-Constitution, 12/22/05

By Eric Stirgus

A Stockbridge landowner and his lawyers argued last week that the city's plan to use eminent domain guidelines to take his property violate the purpose of the law.

John Horvath testified in a condemnation hearing last Friday that his seven acres are no slum. City officials have said there are slum areas in Stockbridge, and its redevelopment plan, which encompasses Horvath's property, will revitalize those areas. A city-hired appraiser admitted during the hearing that Horvath's property was in good condition.

"The Horvath property and the surrounding property is not a slum," said Robert Remar, one of Horvath's attorneys.

The city is willing to pay $650,000 for the property, but Horvath is fighting the acquisition. A special master assigned to the case rejected Horvath's plea that the case be tossed out. The three-hour hearing ended without resolution and is scheduled to continue today.

Several property owners have contested the city's plan to redevelop 22 acres near North Henry Boulevard into a new City Hall, surrounded by homes and shops. They argue eminent domain should not be used for private development.

Some state lawmakers have jumped into the fray, saying they will pass legislation changing Georgia's eminent domain laws. State Rep. Steve Davis (R-McDonough) said he will file a bill requesting a 120-day statewide moratorium on all efforts to use eminent domain laws until revised guidelines are created.

"It gives us the time to work this out while protecting the citizens of Stockbridge," he said.

Stockbridge City Attorney A.J. "Buddy" Welch Jr. contends that most residents support the city's plan.

"What the city is doing will be a positive for the city of Stockbridge for the next 50 years," Welch said after last week's hearing. "It's an excellent plan."

Horvath and his attorneys are not convinced.

Horvath, an orthodontist, said he bought the property in 1990 to expand his practice. His property is the largest tract of land that the city wants for its plan. Under one set of plans presented at the hearing, multistory residential and commercial structures will be built on Horvath's property.

At the hearing, Horvath's attorneys argued that the city has proceeded without a clear vision for what it wants to do with the area, citing several plans they've seen. They argued Horvath should have the opportunity to develop his property, not the city.

Welch countered the complaints are "smoke screens" to gain public sympathy.

Horvath is the last property owner who has not either settled on a price for his land or concluded a condemnation proceeding. Three other property owners have said they will appeal condemnation decisions.


Atlanta Journal-Constitution: www.ajc.com

Eminent domain proposal favored in Assembly: Anchorage (AK) Daily News, 12/21/05

ASSEMBLY: Homeowners don't want private property taken for "leisure amenities."

By Richard Richtmyer

The Anchorage Assembly on Tuesday got a taste of opposition to the city's proposal to take private property by eminent domain to build a southern extension of the Tony Knowles Coastal Trail.

South Anchorage Assemblyman Chris Birch has proposed reining in the city's power to take property through eminent domain, forbidding it in instances when the planned public use is for "leisure amenities."

That includes parks, trails and pedestrian paths, greenbelts and a range of other uses that are defined in an ordinance on which the 11-member panel heard public testimony at their meeting late Tuesday night.

Birch's proposal remains on the table even though earlier Tuesday a committee that allocated federal funding for Anchorage transportation projects dropped the Coastal Trail extension from its project list. The panel, Anchorage Metropolitan Area Transportation Solutions, ditched plans to extend the Coastal Trail south and postponed until at least 2010 Mayor Mark Begich's plan for easing congestion at the Lake Otis Parkway-Tudor Road intersection.

Although the proposed Coastal Trail extension isn't mentioned specifically in Birch's proposal, it appears aimed at thwarting the use of eminent domain, which refers to the government's right to acquire private property at fair market value for public uses such as roads, bridges, hospitals and schools.

More than a dozen people lined up to give the Assembly their take on the idea. Most of them spoke out in favor of Birch's plan, and many of them own property that would be affected by the proposed route currently under consideration.

Begich estimates that the extension would need to cross about 80 parcels of private property, but he noted that not all of those pieces would need to be taken through eminent domain.

"Public use has a potential for misuse by special interest groups," said South Anchorage resident Mary Whitmore, who favored Birch's ordinance. "It sounds good, but somebody always wants something at somebody else's expense."

Jan Asserd, who said some of her land was taken through eminent domain when the original Coastal Trail went in, also urged the 11-member panel to adopt Birch's plan.

"Stop the insanity and support this," she said. "We don't have a socialist government."

The Assembly heard testimony from at least 17 people at its hearing Tuesday, which went late into the night. It did not debate or take action on Birch's proposal, however.

Some members suggested that the city wait until similar moves to rein in local government's eminent domain powers move through the state Legislature and Congress before taking action on Birch's plan.


Anchorage Daily News: www.adn.com

Eminent domain’s defenders go to work: Kansas City (KS) Star, 12/20/05

By Kevin Collison

Missouri opponents of eminent domain may open a second front, and the potential new challenge rattled the board of the Economic Development Corp. last week.

In a lengthy discussion of the difficulties that economic development agencies expect to face next year in the Missouri General Assembly — chiefly an assault on eminent domain and tax-increment financing — Spencer Thomson, a development attorney at Blackwell Sanders Peper Martin, tossed a new grenade.

“There is a movement to put before the public a referendum petition to see major curtailment of the use of eminent domain,” Thomson said. “It would be extremely detrimental.”

Thomson, who serves on Gov. Matt Blunt’s eminent-domain task force, said the Institute for Justice, a Washington-based Libertarian public-interest group, was behind the effort.

Kansas City economic development officials have lobbied state lawmakers to soften some of the proposed legislation that would change eminent-domain laws after the furor over last summer’s U.S. Supreme Court decision in Kelo vs. City of New London. The officials say they think they’ve had some success in convincing lawmakers that eminent domain is a vital economic development tool, but they were alarmed by the possibility raised by Thomson that the issue could bypass the legislature and go directly onto the ballot.

“We need a new dialogue with the public,” said Peter Yelorda, chairman of the Tax Increment Financing Commission. “The Institute for Justice is playing to fears that big government will take your property. They don’t understand the economic issues involved. … If it goes to the public, we’re in trouble.”

Scott Bullock, an attorney for the Institute for Justice, said his organization does not organize petition drives directly, but would support a local effort.

That local effort may be led by Missouri First, which supports a strict interpretation of the U.S. Constitution. The group’s Web site, www.mofirst.org, says the group is “dedicated to the sovereignty of Missourians.”

Ron Calzone, a director of Missouri First from Dixon, said his group was “strongly contemplating” a petition effort.

“The General Assembly is subject to politics, and a lot of people with special interests have less than the peoples’ interest in mind,” Calzone said. “This is a populist issue. … We think that whatever the General Assembly decides to do, the people will make sure something happens.”

Calzone said his group was not opposed to eminent domain for needs such as bridges, roads and other uses that are “genuinely publicly owned and used facilities.”

EDC board members said they think that if Missouri eliminates the use of eminent domain for development projects properly defined as being beneficial to the overall public, such as the downtown redevelopment under way, the state will suffer. “We will put ourselves at a tremendous disadvantage to other states,” said Gary Sage, chairman of the EDC’s legislative committee.


Kansas City Star: www.kansascity.com

Petition filed to reign in government right to eminent domain: The Oklahoman, 12/21/05

By The Associated Press

Government's use of eminent domain to obtain private property would be more limited in Oklahoma under an initiative petition filed with the Secretary of State's Office Tuesday.

Members of the citizens group Oklahomans in Action delivered nine boxes containing about 170,000 signatures in an attempt to force a statewide vote on the issue. The group needed 117,101 signatures to put the proposed statutory change in state law on the ballot.

The measure would prohibit state and local governments from condemning private property under eminent domain when it intends to transfer the property to a person, business or corporation for economic development.

Government could still use eminent domain to condemn private property for health and safety reasons, to build roads and bridges and other transportation systems and utilities.

Bruce Niemi of Tulsa, spokesman for the group, said the petition was a response to a U.S. Supreme Court decision in June that allowed the use of eminent domain in Connecticut to take property and give it to a private party for economic development.

The case, entitled Kelo v. City of New London, Conn., said the Constitution allows governments to condemn private property if its development would benefit an economically distressed city.

James Dunn, an Oklahoma City attorney who has represented private property owners in eminent domain issues, said Oklahoma law is different than Connecticut's but that the practice of eminent domain still is abused in the state.

"There's still not adequate protection for private property owners to not have to give up their land," said Dunn, a candidate for attorney general next year.

"People are very upset about the abuse of eminent domain. We've got to protect private citizens' property rights," Dunn said.

Supporters said they know of no organized opposition, but officials at a statewide business and industry group described the petition as a "knee-jerk" reaction to the Supreme Court's decision.

"We support keeping the current statutes as they are," said Ronn Cupp, vice president of The State Chamber. "People don't need to overreact on something in Oklahoma that's really not that big of a problem."

"We hate to see somebody take a knee-jerk kind of reaction," said Jim Mason, the Chamber's vice president of technology. Mason said the change in state law could impede economic growth.

In Oklahoma, eminent domain has been used for a variety of urban renewal projects where blighted areas were condemned to make way for private commercial or residential development, including the University of Oklahoma Health Sciences Center in Oklahoma City.

The petition was the second filed by Oklahomans in Action in as many days. The group, which believes in smaller government, submitted the so-called taxpayer bill of rights on Monday to put new limits on state government spending.

The Secretary of State will verify the number of signatures in each petition before forwarding them to the state Supreme Court, which will decide any protests or challenges.


The Oklahoman: http://newsok.com

12/20/2005

Eminent domain clash peaking: Pioneer Press (St Paul MN), 12/18/05

Is road a 'land grab' or for public good?

By Mary Divine

A long-standing fight between Afton landowners over a proposed road comes to a head this week, when the City Council is set to decide whether to launch eminent domain proceedings to build it.

If the city votes Tuesday to go forward and ends up acquiring 1.5 acres of land to build a north-south extension of 45th Street, it would be a first for this small St. Croix River Valley community, officials say.

Boris Popov needs the road to build on vacant land he owns on the bluff above the river. He owns more than 12 acres, but only the lower portion can be reached by road. Popov, who lives nearby in Afton, claims the lower section can't be built upon because of its steep slope; he wants the city to build a road on the bluff from 45th Street to the upper section of his and a nearby parcel.

"It's an ugly scenario, and it's an unfortunate scenario," he said. "But what is worse than taking the land by eminent domain is to deny a citizen the right to use their land."

Mark and Kathy Dahl own two of the three parcels south of Popov's property and oppose the road. Under the city's plan, they would lose about 1 acre on the western edge of their 20-acre plot for the road.

"It's a land grab," said Mark Dahl. "I'm staggered that the city can take someone's land against their will. The fundamental question is, where does it end? Can they take an inch, a half mile or mile?"

Dahl is a surgeon, but he and his wife are also accomplished artists — he is a sculptor and she paints. They bought their land overlooking the St. Croix five years ago so they would have a quiet place to pursue their passion.

"I looked for four years for a property where I could stand in the middle of it and not hear cars," said Kathy Dahl. "We've worked all our lives to have 20 acres and not hear traffic. We don't want a road there, and we don't think it's right to have one citizen of Afton being favored over another citizen of Afton."

Mark Dahl said it is wrong for the city to use eminent domain to acquire property for what he called a private use.

"Why should (Popov) get a second access point when the public is not served by this?" Dahl asked. "The only purpose of this road is to give him more lots, and that's not a legitimate reason to take privacy away from another citizen."

Popov said other nearby landowners also would benefit from the road, which would run about 1,000 feet.

Afton Mayor Dave Engstrom says the city has the power to acquire the land and sees a public purpose to the road.

"We have to grant reasonable access to (Popov's) property," Engstrom said. "The buildable part of the lot is on the top of the hill where he doesn't have access. I would not vote on the variances needed to build where he does have access because of the steepness (of the land)."

The Dahls and Philip and Margaret Thuma, who would lose some of their 9 undeveloped acres for the road, also are challenging the city's claim that the road to Popov's property would follow the path of what the City Council has declared an abandoned roadway.

The Dahls and the Thumas claim that road is simply an old driveway that never reached Popov's land. The Dahls lost a district court case on that issue after a judge ruled it was up to the City Council to decide the matter, but they have since appealed.

Margaret Thuma said the lower part of Popov's acreage could be developed if the proper variances were granted.

"There is no public use served by this road," she said. "Rather, this is a private convenience being provided to one individual. We're going to fight this, and we're not going to grant them access through our property at all."

Engstrom expects the City Council on Tuesday night will authorize staff to proceed with a petition for eminent domain. The first step will be for the city to try to reach a settlement with the landowners.

The mayor said property owners would be paid for any land acquired for the roadway, while "benefiting landowners" will be assessed some of the cost of the road's construction.

City officials have yet to decide who would be declared a "benefiting landowner." That decision will follow appraisals that should be finished in February and would be the basis of purchase offers made to the Thumas and the Dahls.

They would then have up to 60 days to review the offers or have their own appraisals done. If they decide not to accept, the City Council would need to vote again — probably sometime next spring — to take the land through eminent domain. The couples would still be paid for the land in that event.

The Thumas and the Dahls say they would not benefit from the road and should not be assessed any portion of its estimated $225,000 cost.

If Afton does pursue it, the city will be among a small percentage of Minnesota municipalities to have done so. In the last 6½ years, only about one in six Minnesota cities has used eminent domain, according to a survey by the League of Minnesota Cities.

"We know it is often controversial because it is a very awesome power," said Eric Willette, manager of policy analysis for the league. "Cities have to take the power seriously, and it can't be done on a whim. The interest of (a) private property owner has to be placed second to the public good."

The issue has been on the front burner this year following the U.S. Supreme Court ruling that New London, Conn., could seize private property through eminent domain to make way for new private development.

Engstrom said eminent domain has gotten a bad rap lately because of that decision.
"This is not taking from a private party and giving it to a private developer," he said. "This is compensating (landowners) for a strip of land for public use, which is a road. This is a public road for public use."


Pioneer Press: www.twincities.com