3/26/2006

Moves made in Albany to soften eminent domain's impact: (Westchester NY) Journal News, 1/29/06

Commentary

By Phil Reisman

If you believe that eminent domain often amounts to a shameful swindle of homeowners and small businesses, then here's something you can do about it.

Write to your representative in Albany and tell him or her to get behind a new piece of proposed legislation marked A09473, which was recently drafted by state Assemblyman Adam Bradley, a Democrat from White Plains.

Make no mistake. This is not a means to stop eminent domain, but a meaningful solution to make it fairer. Passing this law will help bring balance to a high-stakes enterprise in which government can legally seize private property under the justification of a public purpose.

Before I get into the specifics of Bradley's bill, here's some background. Traditionally, eminent domain has been used to make way for things like bridges, roads and libraries or, similarly, for urban renewal projects in abandoned areas. In recent years, however, it has gained well-deserved infamy because municipalities desperately in search of greater and greater tax revenue have increasingly resorted to condemning viable middle- and working-class neighborhoods as "blighted" so that hot-shot profiteers can transform the urban landscape into mega-developments complete with high-rise apartments, hotels and big-box stores.

Look no further than downtown Port Chester to see what eminent domain has wrought.

Though property owners are compensated for their losses, they often have little chance to fight against condemnation or even get a fair deal, especially in states like New York, where the system has long been rigged in favor of the unholy alliance of government and big corporate interests. They may get a judge's low-ball interpretation of a "fair market" value but find themselves unable to find a replacement property because they've been priced out by the ever-rising cost of real estate.

Public outrage about eminent domain bubbled over in the wake of last year's controversial 5-to-4 Supreme Court decision that upheld the right of New London, Conn., to expedite a giant hotel complex by seizing modest waterfront homes, some of which had been owned by generations of families.

A couple of months ago, I wrote a column in which I touted the ideas of John A. Humbach, a professor at Pace University School of Law in White Plains, who believes it is unrealistic and even reckless to indiscriminately stop cash-strapped municipalities from using eminent domain as a way to climb out of fiscal distress.

In a nutshell, Humbach said a better approach would be to ensure that an "unwilling seller" receives at least the amount of money needed to find a comparable home or business property in the same town.

I called this humanistic concept "Humbach's Rule."

Bradley told me the column "hit the nail on the head" and was the inspiration behind A09473. The current draft bill has four components.
  • It calls for the option of a jury trial to decide any claim involving a private residence or a business with gross receipts of less than $1 million.
  • It requires that the property owner receive compensation "at least equal to the actual cost of purchasing an equivalent property in a similarly situated location with a similar structure on the property."
  • The bill demands that property owners be reimbursed for their legal fees and court costs.
  • It calls for the reimbursement of all moving expenses and mortgage closing costs.

Bradley said the possibility of placing the issue of fair compensation into the hands of an impartial jury was the key piece of the legislation.

"It's pivotal," he said. "You're automatically going to have a much more sensible approach to what compensation is because Sam the shoemaker who's been in business for 80 years is going to have much more sympathy from a jury."

Humbach, who testified before a state Senate committee about eminent domain in October and who has read Bradley's bill, stressed that not all cases would necessarily go before a jury.

"It sits there in the background," he said of the possibility. "And that means that the homeowner or business owner can always say: 'This is just not fair. I want to take my case that I am being under-compensated to 12 people who aren't professionals and don't have an interest.' That'll keep both sides honest."

This bill makes sense. But believe me, the lawyers and powerful developers they represent will lobby like hell to make sure it never passes.

They tried but failed to stop a law that was pushed hard by Assemblyman Richard Brodsky, D-Greenburgh, that did away with the diabolical system of using legal classified ads as the only means to notify unsuspecting citizens that their property was about to be seized.

And they are trying to stop a proposed Westchester law, backed by Legislators Tom Abinanti, D-Greenburgh and Jim Maisano, R-New Rochelle that would, among other things, prohibit the county from giving grants to developers who have benefited from eminent domain.

The guys with the deep pockets don't have to win. But it's up to you.


Journal News: www.thejournalnews.com

Bill looks to change eminent domain law: Beaufort (SC) Gazette, 1/29/06

By Michael R Shea

Debates over government powers to condemn private land for public projects could affect Jasper County's 15-year work-in-progress, a cargo container terminal on the Savannah River.

A bill sponsored by several Charleston senators and Sen. Scott Richardson, R-Hilton Head Island, seeks to change the language of the existing state law on eminent domain. Rather than condemnation for "public purpose," the legislation would change the language to "public use" and provide a checklist of requirements the project would have to meet.

The legislation reads in part:
  • The property must not be condemned for a private use.
  • The public body must own, operate, and retain control over the condemned property.
  • A mere public purpose or public benefit including ... economic development, does not constitute the requisite public use for property to be condemned by eminent domain.

If applied to the Jasper County case, all counts could invalidate the county's agreement with SSA Marine. In that pact, the county would condemn and retain ownership of the land on which the private company would build and operate the terminal.

"The (proposed bill) could mean the county would have to operate the port," Jasper County Councilwoman Gladys Jones said Wednesday.

But Jasper County's condemnation, issued in January 2005, could be grandfathered if the pending bill were to become law.

"It shouldn't affect our condemnation effort; that was filed over a year ago," said Jasper County administrator Andrew Fulghum. "Our attorneys are monitoring it."

The Senate Judiciary Subcom-mittee meets at 10 a.m. Wednesday to discuss the eminent domain bill and six others. Some want to curb the list of bodies that have the power to condemn.

"Right now some 60 entities in South Carolina have eminent domain powers, and it's been discussed generally (in the General Assembly) to commit it to elected bodies and some others like the Department of Transportation and the Ports Authority," said Howard Duvall, executive director of the S.C. Municipal Association.

Since the controversial June 2005 decision by the U.S. Supreme Court on Kelo vs. City of New London, many states have begun addressing the condemnation issue. In that case, a Connecticut municipality was allowed to condemn

15 homes for an economic-development project related to a nearby Pfizer pharmaceutical operation.

One hundred residential and commercial lots were purchased, in addition to the 15 homes that were condemned, to enact a city development plan that called for a resort hotel; a conference center; a state park; more than 100 new homes; and various research, office and retail spaces.

"For a 'public use,' it means you cannot turn around and give it to a developer, even if it's an economic-development project that's within the public purpose," Duvall said.

A bill sponsored by Sen. Dick Elliott, D-Horry County, aims to clarify that the General Assembly interprets eminent domain laws by the S.C. Supreme Court's standard, not the federal court's. The state court precedent contains stricter condemnation requirements.

Another bill, sponsored by 22 senators, seeks to create a committee to study the issue.


Beaufort Gazette: www.islandpacket.com

City to invoke eminent domain: St Petersburg (FL) Times, 1/27/06

Nearly 2,000 homes are planned for a Tampa Heights project, but some landowners don't want to sell

By Janet Zink

Carmen Brown Johnson says her family has owned land in Tampa Heights for nearly 100 years.

Now, they'll have to sell it or the city will force them to.

The City Council voted unanimously Thursday to begin eminent domain proceedings if necessary in a neglected part of Tampa Heights where a developer wants to build a 60-acre master-planned community with nearly 2,000 homes.

A development team that includes developer Bill Bishop, Lazydays RV SuperCenter founder Don Wallace and Bank of America has already paid top dollar for properties in the area roughly bounded by North Boulevard, Ross Avenue, Tampa Street and the Hillsborough River.

According to the property appraiser's Web site, one property owner bought a vacant parcel in the neighborhood for $15,000 in 1997. The developers paid him $200,000 for it in August.

Fewer than a dozen holdouts remain, so the developers turned to the city for help.

"This is not a situation where we're trying to attract more business to the area to collect more taxes," said City Attorney David Smith. "This is an area that meets the statutory criteria for slum and blight."

That's in contrast to a controversial U.S. Supreme Court case involving Connecticut homeowners, in which the court ruled that eminent domain could be used to take land for private economic development even if it had not been declared blighted, Smith said.

Smith said the Tampa Heights case serves a public purpose.

Some property owners, though, don't want to sell.

Among them is Julia Jackson, who owns seven parcels in the area. She lives on one parcel, which means the city can't force her to sell it. The developers said they will not pursue three properties that surround her home.

Jackson said she was offered $700,000 for all of her land, which the Hillsborough County property appraiser values at about $240,000.

She said she won't sell unless she can get enough money to buy seven properties somewhere else in the city.

Johnson's father owns a vacant lot valued at about $30,000. She said the family doesn't want to sell and has hired an attorney to fight the taking.

"It's not a money issue. We just don't believe the project's going to come to pass as they say it is," she said.

But City Council members said the developers' proposal benefits the public and will help revitalize an economically depressed neighborhood.

A study in 1999 determined the area suffered from slum and blight, and the city turned it into a community redevelopment area, which means some property taxes collected in the neighborhood are reinvested directly back into it.

"No one has ever taken the power of eminent domain lightly," said council member Rose Ferlita.

In this case, she said, the developers have offered good prices to property owners.

"They've treated everyone with dignity," she said. "Some people want to stay longer than they should."


St Petersburg Times: www.sptimes.com

Lawyer wins another round in eminent domain case against the city: Austin (TX) American-Statesman, 1/28/06

City might argue the case in a lower court

By Sarah Coppola

Little Guys who take on the government rarely win, unless the Little Guy is a guy like Harry Whittington.

Whittington, an Austin lawyer, is very rich, very stubborn and very patient — qualities that come in handy if, like him, you're waging a long legal battle against the city.

Six years ago, Austin condemned a downtown block Whittington's family owned to build a $10.5 million parking garage. Whittington's been fighting the city ever since. He racked up two legal victories last year, and on Friday racked up a third: The Texas Supreme Court denied the city's request to hear an appeal, which basically re-affirms a prior ruling in Whittington's favor.

The city law department, which has spent $387,000 on the case, doesn't plan to throw in the towel just yet. It can and will choose from two options, Austin's chief of litigation, Anne Morgan, said: Ask the state Supreme Court again to hear the case or argue the case in a county court trial, which Austin never had a chance to do.

Bring it on, says Whittington, who seems unfazed at having spent "hundreds of thousands of dollars" on his legal fees. He says his winning streak should give comfort to property owners unnerved by a recent U.S. Supreme Court decision in favor of city condemnations.

"This," Whittington, 78, said of his lawsuit, "shows how the judicial system should work if you stay with it."

Whittington's family, which owned the block on Red River between Fourth and Fifth streets since 1980, wanted to develop the lot into apartments or shops. But the city had other ideas: building a 700-space garage for visitors to the nearby convention center and Sixth Street, and a $19.3 million chiller to cool nearby buildings.

A board initially told the city to pay Whittington $3.6 million for the land, which Whittington rejected. Austin built the garage anyway and opened it last year. So far the city has earned about $181,000 charging for parking there, which helps pay back bonds used to build the facility.

Whittington lost Round One of his legal battle in 2002 when a county court judge ruled that the garage was a public use — the legal standard for condemnations — and a jury ruled that the block was worth $7.7 million. The city has set aside that money, but Whittington can't take it unless he stops appealing. And he doesn't plan on quitting now, especially with a few wins under his belt.

In June, the Third Court of Appeals agreed with Whittington that Austin failed to prove it needed the land for a public purpose.

In January 2005, a district judge ruled in Whittington's favor in a second lawsuit, saying Austin failed to condemn an alley on the block. That case is still pending in an appeals court.

The city faces a bevy of gloomy outcomes if it keeps losing, such as attempting to condemn the land again, demolishing the garage or giving Whittington a cut of the parking-garage profits. Both sides say they are willing to try to settle the case instead, yet neither seems willing to make the first move.

Whittington is always coy when asked how long he plans to fight, or exactly what he'll do with the land or garage if he wins them. At this point, he seems more invested in the battle itself.

"We're right on the law," he said. "And we're not in any hurry."


American-Statesman: www.statesman.com

Bill seeks to restrict eminent domain use : Beaufort (SC) Gazette, 1/26/06

Opinion: Use should be in good faith

Few things enrage Americans more than someone tampering with their right to own property — and to hold onto their property. South Carolina lawmakers are following the lead of at least 21 states to limit the ability of government to take property.

Americans were outraged over the 2005 U.S. Supreme Court ruling in Kelo v. New London, which basically said that local governments could take a person's property if its use could be turned into a higher tax base.

Federal and state constitutions recognize the power of government to condemn private property and take it for a justified public use — a highway, for instance. But in the Kelo decision, the court said that a community could take a person's land and allow a company to build a mall.

According to [The Cato Institute] Cato.org, "For many years ... courts have read the public-use restraint broadly, enabling governments to take property from one owner, often small and powerless, and transfer it to another, often large and politically connected, all in the name of economic development, urban renewal or job creation."

But as Sen. Lindsey Graham, R-S.C., said during the confirmation hearing for Supreme Court Chief Justice John Roberts, "I have gotten more phone calls about the Kelo case than anything the Supreme Court has done lately. I want you to know that my phone is ringing off the hook and that every legislature that I know of is going into session as quickly as they can to correct that."

[South Carolina] Gov. Mark Sanford joined the fray in December, and he mentioned in his State of the State address last week his intentions to work with the General Assembly to change the law to protect property rights.

This week House Speaker Bobby Harrell and House Judiciary Chairman Jim Harrison introduced a bill to strengthen eminent domain laws. "We can't leave it up to the courts to protect us," Harrison said at a press conference Tuesday. A bill also has been introduced in the Senate.

The proposed eminent domain law changes would:
  • restrict the governmental authorities that could use it;
  • define the term "public use;"
  • limit when it could be used for economic development purposes.

Limiting its use in economic development is the key in this legislation. It should contain the most strict language possible, and it should be invoked only for bona fide public uses.


The Beaufort Gazette: www.beaufortgazette.com

3/22/2006

Use of condemnation challenged in Haverstraw village: The (Westchester County NY) Journal-News, 1/21/06

By Ron X Gumucio

Owners of a medical complex [in Haverstraw NY] want to develop their building as they see fit, rather than let the village condemn it so a health-care facility and affordable housing can be built.

Lawyers for Pat Lynch and Ken Griffin, the owners of Graziosi Medical Complex, are challenging the village's plan to use eminent domain to acquire the West Broad Street building for the proposed public use. David MacCartney filed a petition of notice Wednesday in the Appellate Division of state Supreme Court in Brooklyn.

The village and Board of Trustees are named in the complaint and have 20 days to respond. MacCartney said he would then have three months to file legal arguments.

"It is our position that this is a taxpayer-funded tenant acquisition of private property," MacCartney said. "Basically we question why the village is condemning property when the private owners plan to fulfill the same public purpose. ... But they propose to do it with private funds."

Housing Opportunity for Growth, Advancement and Revitalization wants to build a mix of one-, two- and three-bedroom units on the second and third floors above a Hudson River Community Health facility. HOGAR, which rents space in the building, would keep its offices on the first floor.

Lynch said during a public hearing in July that he and his partner wanted to build affordable housing but would use private funds. His plan included a mix of retail stores and professional offices and six to eight affordable-housing rental units.

"We're confident that the court will decide in our favor because it's a public need," said HOGAR Executive Director Edna Rivera. "This is not a private developer gaining a profit. This is a clear need for the community."

Mayor Francis "Bud" Wassmer agreed.

"My opinion is that the village is on very firm ground," he said. "The owner's plan is not consistent with the village's and while this will slow the process, we will eventually be able to move forward."

Rivera said it would cost $4.39 million to expand and renovate the building. If the village successfully condemns it, HOGAR plans to finance most of the purchase using a Community Development Block Grant loan, as well as money from selling the units.

The Ginsburg Development Corp., which is building a $400 million waterfront redevelopment project, would contribute $180,000.

In the complaint, MacCartney states that the village "successfully scared off" all potential purchasers who had outbid HOGAR by saying it planned to acquire the building for a new village hall. This allowed HOGAR to again start negotiations with the former owner of the Graziosi building.

However, a few months after Lynch and Griffin bought the building, the village scheduled a public hearing for the proposed condemnation. The village's actions unfairly benefited HOGAR and would satisfy Ginsburg's requirement to provide affordable housing to the community, MacCartney said.

"It's an abuse of the condemnation powers and it's unconstitutional," MacCartney said.

Wassmer denied any wrongdoing by the village.

Wassmer said Ginsburg does need to satisfy some requirements, "but with or without him, we need affordable housing."


The Journal-News: www.journalnews.com

3/21/2006

Lawyer: Water tank dispute is not misuse of eminent domain: (Beckley WV) Register-Herald, 1/26/06

By Fred Pace

Rick Staton, a Mullens attorney representing the Eastern Wyoming County Public Service District in a lawsuit involving Bud Mountain land owners, says he wants to clarify inaccurate or misleading information about the case.

“This is not an eminent domain case in the context of the U.S. Supreme Court ruling this summer, nor the legislation the House of Delegates recently adopted,” Staton said. “Those issues involved taking private property for a private purpose.”

The water battle revolves around the PSD’s desire to construct a $14.7 million public water system in Mullens, Corinne, Bud, Black Eagle, Wyco and surrounding areas. Land owners that may lose property have accused the PSD of abusing eminent domain powers.

Jo Ann Lester, a family member of one land owner, also claims the PSD was not responding to Freedom of Information Act requests for information about surveys done on proposed sites.

The PSD had petitioned Wyoming County Circuit Court for right of entry to three parcels of land owned by Annie Hagy, Larry and Karen Pressley, and the heirs of Pink Byars. Lester said the land owners reached an agreement several months ago, giving engineers the right to survey proposed sites for the tank and tower.

“Taking someone’s land is taking someone’s land,” Lester said. “This is an eminent domain case in our opinion.”

Staton says the law allows for taking land for a public purpose.

“This matter involves acquiring property for a public purpose, which is providing water to an unserved area inhabited by dozens of families on Bud Mountain,” Staton said. “Many are currently trucking water into their homes. Ironically, many of the litigants in this case do not live on Bud Mountain and do not have to truck their water. The tank is necessary to providing water to these families. Blocking construction of the tank blocks these families’ access to potable water. The acquisition of a part of any property for a water tank has to be proved to the court to be necessary and for a public purpose.”

Staton said Lester’s claim that the PSD is not answering FOIA requests is incorrect.

“The PSD is not hiding the survey results,” Staton said. “In fact, a previous order entered last year which compromised the right of entry on the property specifically authorizes the PSD to share the results with the other parties. They have already been given much information. Further, court rules governing lawsuits would already require that. I know it’s sexier to report that people are withholding information, but that’s not the case. The parties who spoke to you know that they are getting the survey results, and in fact have already received some engineering data.”

Staton said a recent FOIA request was for information that belongs to the engineers, not to the PSD.

“It is not information the PSD has, nor has a reason to have,” he said.

Staton said the sole purpose of the motion last week was to clarify the PSD’s obligations to respond to FOIA requests vs. its responsibilities to provide information to and through attorneys in a pending litigation.

“While FOIA allows information to be requested and exchanged between parties and if applicable their attorneys, rules of the court regarding pending litigation require the information to be exchanged only in the context of that litigation,” Staton explained. “Further, court rules prohibit parties or their attorneys from contacting either side except through the litigation process. In fact, it is technically an ethical violation for me to respond to the FOIA requests on behalf of the PSD while the litigation is pending, unless I do so directly to their attorney. These requests are being made by the litigants, not their attorney, and many times without even their own attorney’s knowledge.”

Staton added it is already public information that most of the “22 alternative sites” land owners claimed were better for the new water tank and tower have already been determined by engineers to not be suitable sites for the project.

“They have provided no engineering reports to the contrary,” he said. “It is wrong for anyone to portray that the PSD is looking at only two of more than over two dozen potential sites for the tank. In fact, the PSD would be abrogating its responsibility by choosing a site that is not good and which requires costly litigation to get the tank placed there. Does anyone reasonably expect that the PSD sat down in some dark room and said, ‘We have better places for the tank we can get more cheaply and faster, but let’s go after these two?’”

Staton says the current litigation was to request access to the property solely to determine whether a portion of either of the properties is suitable for location of the tank.


Register-Herald: www.register-herald.com

Legislation Introduced To Block Eminent Domain Law: (Berlin MD) Coast Dispatch, 1/26/06

By Shawn J. Soper

In response to a landmark U.S. Supreme Court decision last year that essentially broadened the powers of local governments to seize private property in the name of economic development, State Senator Lowell Stoltzfus (R-38) this week introduced legislation aimed at tightening Maryland’s application of eminent domain.

Stoltzfus and several of his colleagues this week introduced legislation titled the Property Protection Act of 2006 in the Maryland General Assembly, which, if approved, would eliminate economic development as a valid reason to evoke eminent domain in Maryland. The bill’s introduction comes on the heels of a Supreme Court decision to broaden eminent domain powers to include economic development.

Eminent domain, by definition, is the right of government to seize private property for public use in exchange for payment of fair market value. Traditionally, local governments use eminent domain to take property with compensation to the owners when it is needed for roads, bridges, schools or other infrastructure.

However, the high court’s decision last summer broadens eminent domain powers to a level most property rights enthusiasts are not comfortable with. The Supreme Court voted 5-4 to uphold plans by officials in a coastal Connecticut town to condemn nine private homes along the waterfront to pave the way for a large office complex and marina project.

“It caused a huge outcry, and rightfully so,” Stoltzfus said. “Property rights are fundamental to us as Americans and we like to believe our private property and our very homes are safe from seizure by the government.”

Stoltzfus said evoking eminent domain in the name of economic development opens up all sorts of potential property seizures including many in Worcester County.

“This can be applied anywhere,” he said. “This could be applied in places you wouldn’t even consider. Ocean City is ripe for it if we don’t tighten up our own eminent domain statutes.”

The Supreme Court’s decision allowed the nine waterfront properties to be seized for economic development because the justices believed the proposed project was a better use of the land than what was on the ground.

“Perceived blight should not be used as the basis for seizure,” said Stoltzfus. “If it can, than half of the quaint, waterfront shanties that dot our coastline could be seized if a glamorous project was proposed to replace it. It’s too subjective.”


Maryland Coast Dispatch: www.mdcoastdispatch.com

House OKs eminent domain limits: Ft Wayne (IN) Journal Gazette, 1/27/06

By Niki Kelly

[Indiana] Lawmakers hopped on the anti-eminent domain bandwagon Thursday, voting unanimously in the House to restrict the use of condemnation for private profit.

Hoosiers have shown more concern over the use of eminent domain since a key U.S. Supreme Court decision came down last year.

That pressure gave Rep. Dave Wolkins, R-Winona Lake, the support he needed to pass House Bill 1010, which now moves to the Senate for consideration.

He told his colleagues about a letter he received from an elderly South Bend man who has lived in the same home for almost 60 years. He went to a meeting recently and was told the city was taking much of one neighborhood through eminent domain.

So far, the highest offer for any of the homes on the street is $40,000. “That’s not right,” Wolkins said with a quaver in his voice. “I ask you to help me solve this problem.”

The bill would make it harder – and more expensive – for cities, towns and counties to take private property and then transfer the land to a private, for-profit entity.

For instance, the city of Fort Wayne in 2000 used eminent domain proceedings to force a $2.2 million purchase of the Belmont Beverage lot at Harrison Street and West Jefferson Boulevard. The land was to be used for a third downtown hotel to be owned and operated by a private company.

But now the city has decided against that location, and the land is in limbo.

Traditionally, eminent domain has been used on projects of public use, such as a road or a school or park. But the practice has slowly morphed into public good, such as creating more jobs or adding to the revenue base.

It was the latter approach that the U.S. Supreme Court ruled in favor of last year. The legislation affects an entity that uses eminent domain to acquire a parcel of property from a private person “with the intent of ultimately transferring the ownership or control of the parcel to another private person.”

Under these circumstances, the taking of the parcel would have to be a last resort.

The parcel would also have to meet more specific conditions for a judge to determine it is blighted and available for condemnation, such as being subject to health or housing code violations.

Those sections will make it close to impossible for cities to acquire farmland for a large manufacturing plant or other economic development project, according to a few Democrats who spoke on the measure.

But it was not enough for them to vote no.

“I believe this is one of those efforts that we’re undertaking not for political agenda or partisan reasons but out of necessity,” said Rep. Trent Van Haaften, D-Evansville.

He differs with an exception in the bill for the Indiana Department of Transportation but wanted the legislation to move forward for improvement.

A large portion of the legislation addresses how much money owners of the land would receive in an eminent domain case. Current law requires “just compensation,” but the bill would force cities, towns and counties to pay homeowners 150 percent of the fair-market value, plus relocation costs.

Businesses would not be eligible for the increased percentage but could claim damages, such as loss of income.


Journal Gazette: www.fortwayne.com

Eminent domain bill should pass: Cook County (MN) News-Herald, 1/26/06

This summary is not available. Please click here to view the post.

Seitz on panel to study eminent domain: Cincinnati (OH) Enquirer, 1/26/06

By Greg Korte

State Rep. Bill Seitz, R-Green Township, is one of three representatives selected by Ohio House Speaker Jon Husted to serve on a panel that will study Ohio's eminent-domain laws.

The special legislative task force is part of a bill calling for a year-long moratorium on the use of eminent domain for economic development following a U.S. Supreme Court case finding the government takings constitutional.

The review also comes as the Ohio Supreme Court considers a landmark case out of Norwood that pits a developer against homeowners who had their houses taken for an office and retail complex.

Seitz said the task force would try to balance private and public interests while maintaining the government's fundamental right to take property.

Other lawmakers appointed to the panel this week are state Reps. Bob Gibbs, R-Lakeville, and Joseph Koziura, D-Lorain. The Cincinnati area is represented by Probate Judge James C. Cissell, who represents judges, and Dinsmore & Shohl attorney Richard B. Tranter, who was appointed by the Ohio attorney general.


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

Bill would alter eminent domain payment: Myrtle Beach (SC) Sun-Times, 1/26/06

Bill would alter eminent domain payment; Edge version includes zoning restitution

By Zane Wilson

An Horry County House member's attempt to add compensation for loss in value from changes such as rezoning has thrown another dimension into the debate on limiting property condemnations.

State Rep. Tracy Edge, R-North Myrtle Beach, is the lead sponsor of the House version of the bill to limit eminent domain, or condemnations by government agencies, to public use.

Edge's version includes payment for loss of value if property is rezoned or its land use is changed, a situation some refer to as a "regulatory taking" because it is different from an actual taking of the land for a use such as a highway.

Edge and other Horry County legislators were among a group who fought for the same payments several years ago but lost. During those debates, Edge's employer, developer Burroughs & Chapin Co. Inc., had lobbyists working in favor of compensation for regulatory takings.

Edge, a vice president at B&C, could not be reached for comment Wednesday, but no action was taken by a House subcommittee that began work on the bill.

Though he is the lead sponsor, Edge has clout with him on the bill. There are 17 other sponsors including Speaker Bobby Harrell, R-Charleston, Judiciary Committee Chairman Jim Harrison, R-Columbia, and Agriculture and Natural Resources Chairman Billy Witherspoon, R-Conway. All of the sponsors are Republicans.

Also on Wednesday, a Senate subcommittee began work on similar bills, none of which include payment for regulatory takings. Senators said they do not want to include that concept in a bill to limit eminent domain.

Mark Nix, director of the S.C. Landowners Association, asked the Senate to include the payments in its bill, but Sen. Greg Gregory, R-Lancaster, said that was not likely.

Nix also spoke to the House subcommittee, saying far more people are affected by regulatory takings than by eminent domain.

Requiring the payments would "make our local county officials more responsible for their actions," Nix said.

Rep. Ben Hagood, R-Sullivans Island, said that would freeze zoning and hamper attempts to manage growth in high-growth areas, Bo Shetterly, lobbyist for the S.C. Association of Counties, said the bill "is going to do serious harm to land-use planning."

He said the bill as written would require local governments to compensate people in a residential zone if they are refused the right to open a business at their house.

Bob Guild, lobbyist for the Sierra Club and Coastal Conservation League, said "we all benefit" from land use plans and zoning that protect everyone's rights to use their property in a way that does not harm their neighbor's rights.

"Some very valid and interesting points have been brought up today," said Rep. Greg Delleney, chairman of the subcommittee. He told those with opinions on the bill to try to work out an agreement and the subcommittee will consider the proposal again next week.

The Senate subcommittee agreed it should focus on limiting condemnation to public use, and making a better definition for that.

The point is not to allow property to be taken for "public benefit," which means it could be condemned for economic development by another private owner.

The bills are a reaction to a U.S. Supreme Court ruling last year that said condemnation for redevelopment is constitutional.

Staff attorney Paula Benson said state law on eminent domain already demands "public use" but that there are loose ends such as an unclear definition of condemnation for "slum clearance" that should be cleaned up.


Sun Times: www.myrtlebeachonline.com

Hundreds urge legislators to limit eminent domain: Columbia (MO) Missourian, 1/26/06

Senate committee looks at reforming property and land development laws

By Chris Blank, Associated Press

Hundreds of people rallied at the [Missouri] Capitol on Wednesday, demanding lawmakers make it harder to take private property through condemnation for redevelopment by others.

The crowd, which included a mix of people organized by the Missouri Farm Bureau and the Missouri Eminent Domain Abuse Coalition, urged lawmakers to allow the taking of private property only for public uses, such as roads and utility lines.

The use of eminent domain by local governments and some private entities has garnered attention nationally after last summer’s U.S. Supreme Court ruling that communities could condemn property and turn it over to private entities for development to increase the tax base.

Gov. Matt Blunt said property should only be taken under eminent domain for a “compelling public reason” such as for roads or public buildings.

“The idea that we can seize a small business, the government can seize a farm, the government can seize a house, that the government can even seize a church or a house of worship is repugnant,” Blunt told the crowd.

Missouri Chamber of Commerce President Daniel Mehan said there have been abuses with the use of eminent domain, but called for balancing property rights with development needs.

“It’s extremely important for redevelopment in urban areas,” he said. “The city of St. Louis and the city of Kansas City need that tool to revitalize areas of those cities.”

Charles Kruse, president of the Missouri Farm Bureau, said the protesters came to Jefferson City to “infuse a greater common-sense level in this building and around this state.”

St. Louis resident Maxine Johnson, who led several chants during the rally, said she came because eminent domain threatened her basic constitutional rights.

“Whether they offer you $1 or $1 million, it doesn’t matter,” she said. “It’s your house, and you should have the choice of if you want to sell.”

Johnson, 49, lives with her husband and six children in a house built in 1883. She and some of her neighbors have been resisting a townhouse development since 2003.

She said the state needed to get involved because municipal officials have used eminent domain to take private property and do with it what they wish.

“Why should people buy a house when other people can come in and take it 10, 15 years from now?” Johnson said.

The protest occurred the same day the Senate Economic Development Committee heard testimony on several bills to change the state’s eminent domain and tax increment financing laws.

The four measures varied from what one senator called the “nuclear option” — a constitutional repeal of municipal eminent domain authority for “blighted” property — to a tweaking that its sponsor said would correct at least two-thirds of tax increment financing abuses.

Tax increment financing allows local governments to declare certain areas eligible for development for tax breaks.

The use of both eminent domain and tax increment financing often involves local government declarations that an area is “blighted.” But blight carries a fairly broad definition, including “dilapidation; obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; abandonment; excessive vacancies; overcrowding of structures and community facilities; lack of ventilation, light or sanitary facilities; inadequate utilities; excessive land coverage; deleterious land use or layout; depreciation of physical maintenance; and lack of community planning.”

The sponsor of what he called the nuclear option, Sen. Kevin Engler, R-Farmington, said the legislature needs to better define blight and change how tax increment financing can be used, or risk a ballot initiative to do it for them.

The committee’s chairman, Sen. John Griesheimer, R-Franklin, introduced his own bill that he said would help limit the abuses of tax breaks designed to prompt development without getting into blight. Over the objections of Griesheimer, an interim legislative committee he led called for changes to the blight definition.

“I reached the conclusion that I don’t know if we can get there and reach a consensus on blight,” Griesheimer said.

Some lawmakers have said the legislature needs to address both eminent domain and tax increment financing. Blunt has said he believes eminent domain concerns can be addressed separately from those concerning tax increment financing.

A special gubernatorial task force that studied eminent domain use recommended several changes — all of which Blunt has endorsed. The task force suggested that the state develop a higher standard of “blight” in eminent domain cases than exists for tax increment financing, but it did not recommend any specific definition.


Columbia Missourian: http://columbiamissourian.com

Committee passes eminent domain bill: (Provo UT) Daily Herald, 1/26/06

By Alan Choate

Changes that would make eminent domain proceedings more transparent sailed out of a Utah Senate committee Wednesday morning.

Eminent domain is the power of cities, counties and other governmental units to take private property for public uses.

Utah law already prevents the taking of land for private uses, which has been a national issue following a U.S. Supreme Court decision allowing such a taking last year, said Sen. Howard Stephenson, R-Draper and the sponsor of the bill.

But not all is well with the implementation of the current rules.

A handout from Craig Call, Utah's property rights ombudsman, listed several problems arising out of the current eminent domain law:

Some mayors have claimed the ability to condemn land without City Council action.

Property owners don't have the right to protest the decision to condemn their property or be notified when a public body is going to consider such a decision.

While state law requires the condemning entity to inform property owners of the options they have in the process, some entities interpret that to mean they don't have to offer the information if they merely threaten to condemn land.

"It just seems like an anomaly to me that a decision can be made to take their land without even notifying the property owner," Call said.

Stephenson's bill would remedy those problems by specifying when the notifications must take place and stating that "only the legislative body of a political subdivision can condemn land, not the mayor or city manager acting alone."

Property owners also would have a statutory right to protest the eminent domain action before a condemnation action is taken.

Call described it as a "fine-tuning" of the process, and said the use of eminent domain — usually employed when a government entity and a property owner can't reach a decision on compensation for the property — is improving.

For example, the state Department of Transportation acquired 23 percent of the property it pursued by eminent domain in 2001, a figure that's now less than 4 percent, said Call.

Still, he added, "it's not needed anywhere near as much as it's done."

The legislation now proceeds to the full Senate.

SB 117 — Eminent Domain Amendments — sponsored by Sen. Howard Stephenson, R-Draper, specifies that only the legislative body of a political subdivision can approve a land condemnation and requires property owners to be given notice and a chance to protest before a condemnation decision is made.



Daily Herald: www.heraldextra.com

3/20/2006

BB&T ends loans for eminent domain: USA Today, 1/25/06

By Paul Nowell, Associated Press

Regional bank BB&T will make no loans to developers who plan to build commercial projects on land taken from private citizens by the government through the power of eminent domain.

"The idea that a citizen's property can be taken by the government solely for private use is extremely misguided; in fact it's just plain wrong," John Allison, chairman and chief executive of the Winston-Salem-based bank, said Wednesday.

No other large U.S. bank has a similar policy, according to BB&T spokesman. The bank declined to estimate how much business they expect to lose as a result of the new policy.

In June, a divided Supreme Court ruled in Kelo v. City of New London that cities may raze people's homes to make way for shopping malls or other private development. The 5-4 decision gave local governments the power to seize private property in the name of increased tax revenue.

BB&T said 38 states have recently passed or are considering laws to ban the use of eminent domain for private development. Similar legislation is pending before Congress.

"While we're certainly optimistic about the pending legislation, this is something we could not wait any longer to address," said BB&T chief credit officer Ken Chalk. "We're a company where our values dictate our decision-making and operating standards. From that standpoint, this was a straightforward decision; it's simply the right thing to do."

BB&T is the nation's ninth-largest bank, with $109 billion in assets and more than 1,400 branches in 11 states and Washington, D.C.


USA Today: www.usatoday.com

Could Eminent Domain Claim Private Property? WIBW-TV13 (Topeka KS), 1/25/06

By Lisa Boschert

Some may call it the American dream. Jerry Morgan started his bike shop with only $900. Recently, it’s turned into a nightmare, "The last six months has been very difficult to get up everyday."

Morgan fixes everything from new bikes to his 1949 car, but right now he's trying to fix something bigger, “I'm real concerned that the power of government is being used for purposes it wasn't intended to be used for."

If the City Council votes to use their power of eminent domain tonight Morgan fears this could be the end of his bike shop.

He says the developer isn't offering him enough money to move elsewhere, and it would be too much to rent from the developer.

But not everyone shares his sentiment.

Councilmen Clark Duffy is leading the campaign, and the developer has said the owners are setting unreasonable prices.

Morgan says he'd like to settle this and get back to business, “Working on bicycles it would be really nice.”

Morgan has offered to renovate his building to fit into the development's retail spaces, but the developer is not accepting that offer.

If the council approves eminent domain, Morgan would be forced to take whatever developers offer him.


WIBW: www.wibw.com

Constitutional Amendment Restricting Eminent Domain Introduced: KPVI-tv (Boise ID), 1/24/06

By Associated Press

A constitutional amendment was introduced in the Idaho Legislature today to limit the power of local governments to condemn homes and private property to make way for economic development projects — like industrial parks, sporting complexes and golf courses.

Republican Representative Lenore Barrett of Challis is the latest lawmaker to introduce legislation to restrict the so-called "eminent domain" authority of cities, counties and other government entities.

Her resolution calls for citizens to vote in November on amending the constitution to ban condemning private property for any project that might stimulate the local economy.

The House Local Government Committee sent the resolution to print this afternoon and hearings on the measure are expected later this session.


KPVI-tv: www.kpvi.com

Bill proposed to curb eminent domain: Des Moines (IA) Register, 1/25/06

By Associated Press

[Iowa] State Rep. Bill Dix introduced a bill Wednesday aimed at curbing the ability of local governments to seize private property for economic development projects.

"Confiscating private property for monetary gain is unacceptable," said Dix, R-Shell Rock. "Our citizens should not fear having their homes bulldozed to build hotels, or their farms seized to build factories."

At issue is a legal concept known as eminent domain, which allows local governments to force the sale of private property for an essential public purpose, such as construction of a road or school.

Dix’s bill and a similar measure introduced in the Senate last week by Sen. Jeff Lamberti, R-Ankeny, were prompted by a recent U.S. Supreme Court ruling on eminent domain in a Connecticut case.

The high court ruled that a local government could take property from one owner and give it to another for economic development, which it deemed an essential public purpose.

The Iowa bills would limit the ability of local governments to use that power.

"Due to the Supreme Court’s ruling, it is imperative that we take aggressive action to protect Iowa property owners," said Dix.

House Judiciary Committee Chairman Kraig Paulsen, R-Hiawatha, said he would put Dix’s measure at the top of the panel’s agenda.

"We will move it forward," said Paulsen. "I do fully expect we will get an eminent domain bill to the governor’s desk."


Des Moines Register: http://desmoinesregister.com

EDC board discontinues eminent domain to seize private land: Boston (MA) Globe, 1/25/06

By Associated Press

In a move supported by Gov. Don Carcieri, the [Rhode Island] state Economic Development Corporation [EDC] will discontinue using eminent domain to take people's property and give them to private developers for economic development.

The policy change came in a vote by the EDC's board on Monday.

"We're trying to send a clear message that when it's owner-occupied we're respecting those rights," said Carcieri, who's chairman of the EDC. He asked the agency last year to revise its eminent domain policy that would protect Rhode Islanders' homes from eminent domain condemnations for office buildings, hotels and other private uses. Carcieri said earlier this month that he plans to introduce legislation to prevent the use of eminent domain for economic development statewide.

State Rep. Charlene Lima, D-Cranston, introduced legislation earlier this month that would prevent the state or a municipality from taking people's property against their will if the land will be more than 10 percent privately owned.

The EDC still plans to use eminent domain for the general public good — such as building bridges or laying utilities. The quasi-public agency also will still use eminent domain for economic use, but only when it involves unoccupied property.

The U.S. Supreme Court ruled last year that states can take property for economic-development purposes if such a move would benefit the public good. The ruling upheld a decision by the City of New London, Conn., to seize seven property owners' land so developers could build a hotel and high-end condominiums to keep pharmaceutical giant Pfizer expanding in the state.

Since that ruling, about 40 states have passed legislation to prevent local governments from taking private property for shopping malls, hotels or other private development, according to The Providence Journal. Some states, such as Michigan, are amending their constitutions to prohibit taking personal property for economic development, the newspaper reported.

The EDC used its power of eminent domain in 2001 to condemn 40 acres of private property in Smithfield so Fidelity Investments could expand its corporate campus along Route 7.


The Boston Globe: www.boston.com

NLV mayor cautions against overuse of eminent domain: Las Vegas (NV) Business Press, 1/23/06

By Arnold M Knightly

As the City of North Las Vegas moves ahead with redevelopment in the downtown area while managing growth elsewhere in the city, Mayor Michael Montandon says the abuse of the expanded eminent domain legal precedent set last June by the U.S. Supreme Court could lead to a loss of an important government tool.

"We will use it if it is necessary and if it is a bona fide, legitimate public use," Montandon said. "But we will not use it for economic development, those kind of purposes."

In a 5-4 decision, the Supreme Court backed a lower-court ruling, stating that a city's redevelopment plan did serve a greater public need and by promoting economic growth it could be classified as a public use project and therefore the land could be purchased for a fare market value from the owners against their wishes.

Older North Las Vegas properties such as this motel might be subject to eminent domain. However, like Mayor Oscar Goodman in Las Vegas, who is also facing redevelopment challenges, Montandon insists that eminent domain will be used for public use, not private-to-private exchanges. Earlier this month, city officials told the Las Vegas Sun that they wouldn't rule out using eminent domain in the pursuit of a new city hall.

LEGITIMATE USES
Montandon stated that eminent domain could be used for public uses, like acquiring land for a waste-water treatment plant or for widening Fifth Street. "Those are legitimate public uses that the city should have eminent domain in their bag as a tool if they need it."

In an application for a brownfield grant for the downtown area, the city stated that it already owns a lot of land within the redevelopment area, but that it "will continue to acquire remaining property" through many channels, including "eminent domain."

Montandon agreed with the dissenting opinion written by Justice Sandra Day O'Connor in Kelo v. New London, Conn., saying he "would have written the exact same opinion."

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The [Constitution's] Founders cannot have intended this perverse result."

As the City of North Las Vegas moves ahead with its master plan as outlined in an 18-page booklet titled, "Visioning 2025 Strategic Plan," city officials expect to face some hard choices during redevelopment.

ATTRACTING NEW BUSINESS
"The reality is you're going to have some displacement," said Jeremy Aguero, a principal at Applied Analysis, who points out that to attract new businesses to North Las Vegas Boulevard, East Lake Mead Boulevard and Cheyenne Avenue that some use of eminent domain may be necessary.

The City of Las Vegas settled an eminent domain suit in 2004 for $4.5 million brought by the Pappas family who lost retail space downtown for the building of the Fremont Street Experience.

"It could be bad because some of those businesses are people's livelihoods," Aguero said. "I don't think you want to discount the reality for those people."

The state Legislature passed, and Gov. Kenny Guinn signed, two bills that could limit the abilities of local governments to use eminent-domain powers. The city must prove that two-thirds of an area claimed for redevelopment is blighted by showing four out of 15 blighting factors. Some of the factors include structural damage, flood problems, sanitation violations and improper land use.


Las Vegas Business Press: www.lvbusinesspress.com

Gov. Sanford, lawmakers announce eminent domain bills: WIStv10 (Columbia SC), 1/24/06

Gov. Mark Sanford joined with lawmakers in the House and Senate on Tuesday to announce legislation designed to limit government’s ability to seize private property.

Three bills have been introduced in the S.C. Senate, with companion bills to be introduced this week in the House, that are aimed at protecting private property rights by limiting governments' eminent domain powers.

In his State of the State address, Gov. Sanford said the recent U.S. Supreme Court decision, Kelo vs. City of New London, Connecticut, has shown a need for further eminent domain protections in South Carolina and that he will work with leaders in the General Assembly to promote that legislation in the coming year.

"A fundamental part of quality of life is the notion of ownership of one's property, and that's what these bills are ultimately all about," Gov. Sanford said. "The Kelo decision means we have to act now to protect property that people have invested money, work and time into over the course of many years. Property ownership is one of our most fundamental rights, and I'll work with the House and Senate in the coming session to make sure that right is secure in South Carolina."

Chip Campsen (R-Charleston) says, "We need to strengthen the definition of public use and reassert that in South Carolina, you can't take private property and give it to another entity. If there is some public benefit there must be an important use before that occurs"

The current bills address a number of areas in the law highlighted by the Kelo decision. If passed, the bills would ensure condemned property would be used for legitimate public uses as well as better defining public use, prohibit public bodies from delegating eminent domain powers, prohibit condemnation simply for 'blight,' and allow property owners to re-purchase property at condemnation prices if the property isn't used within ten years.

Since the Kelo decision, at least 35 other states have begun work on strengthening their eminent domain statutes. Several states are considering constitutional amendments, while the governor of Connecticut, where Kelo originated, has called for a moratorium on cities using their eminent domain powers.

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


WIStv10: www.wistv.com

Camden trial to test eminent domain: Philadelphia (PA) Inquirer, 1/23/06

.
A judge will decide whether the city's Cramer Hill section - target of a $1.2 billion project - is truly blighted

By Dwight Ott

The hour of reckoning for Camden's redevelopment efforts has arrived.

In a long-awaited court battle over the use of eminent domain in the Cramer Hill section, 200 residents and four large businesses are scheduled to square off today against state and local officials and representatives of developers participating in the $1.2 billion Cramer Hill redevelopment plan.

"The case is critical for the revitalization of the city," said the city's chief operating officer, Melvin R. "Randy" Primas. "What the trial is about is whether or not Cramer Hill is an area in need of redevelopment."

The plan calls for moving as many as 1,200 households to make way for 6,000 new houses, 500,000 square feet of retail space, a marina, and a golf course.

This is the first phase of a two-phase trial, said Olga Pomar, one of the attorneys for the residents.

"The judge has to decide whether the city planning commission and the City Council are correct in their decision that Cramer Hill is blighted or not," she said.

Depending on how many witnesses testify, the case - which involves a dozen or more attorneys - is expected to last about two weeks. The project is on hold until the issue is resolved in the court.
+
Resident Mary Cortes said the use of eminent domain in Cramer Hill was "an abuse of the elderly, an abuse of the middle class, and abuse of the children who don't know where... to move."

Said Rich Ochab, a spokesman for developer Cherokee Camden L.L.C.: "The city has made the commitment that residents will have the opportunity to stay" in Cramer Hill if they want to.

If state Superior Court Judge Michael Kassel decides that Cramer Hill is blighted and needs redevelopment, the defendants must prove in a subsequent trial that their plan is not arbitrary and capricious or a violation of the New Jersey and U.S. Constitutions.

If city and state officials lose, the project must go back to the planning board and Council.

Similar cases are being filed across the country by property owners as local governments use eminent domain to develop areas marked as blighted or in need of redevelopment.

Eminent domain allows governments to acquire private property for public benefit with just compensation for the owners.

The Cramer Hill plaintiffs argue that local government is abusing this power. The concern is that the rush to redevelop has blurred the meaning of "public benefit" in distressed cities looking for a revival and in suburbs seeking more revenue amid dwindling resources.

In Kelo v. New London, the U.S. Supreme Court ruled last year that government, through eminent domain, could legally take private property and hand it over to private developers to generate more local tax revenue.

The court found nothing unconstitutional about using eminent domain to force owners in New London, Conn., to sell their property (at fair market value) so it could be replaced with offices, a hotel and new residences - a project expected to create more than 1,000 jobs and increase tax revenue.

The court said economic development qualified as "public use."

Justice Sandra Day O'Connor disagreed, writing in her dissent that "all private property is now vulnerable to being taken and transferred to another private owner."


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

Cramer Hill plan tossed: (Camden NJ) Courier-Post, 1/25/06

By Renee Winkler

A Superior Court judge on Monday invalidated the city's redevelopment plan for the Cramer Hill neighborhood, ruling that the planning board erred when it neglected to swear in two land-use experts before they testified in May 2004.

The ruling by Superior Court Judge Michael J. Kassel invalidated both the planning board resolution establishing Cramer Hill as an area in need of redevelopment and City Council's ordinance creating a redevelopment plan for the neighborhood.

It marked the third time a judge found fault with the way city officials proceeded with the plan, which would require the relocation of about 700 families to make way for 5,000 new housing units, 500,000 square feet of commercial space and a golf course.

But at least one city official who supports the project said proponents will do what they have to do to see it to fruition.

"We are committed to moving forward," Randy Primas, the city's chief operating officer, said after Kassel's ruling. "We think it's a good plan."

Kassel's ruling leaves Cherokee Investment Partners of Raleigh, N.C., as the entity with a contract to carry off the $1.2 billion redevelopment plan but without a designated community in which to work.

Kassel kept intact a court order that bars the purchase of properties through condemnation proceedings in the neighborhood.

City officials now must schedule another planning board meeting, at which testimony again would be taken to determine whether Cramer Hill is a blighted neighborhood.

If the planning board passes such a resolution, the matter would proceed to City Council, which again would have to adopt an ordinance establishing a redevelopment plan.

Both actions require public hearings.

"Those who voted for it are still on the planning board and City Council," Primas said.

Primas and Joseph Kenney, an attorney for the Camden Redevelopment Agency, argued unsuccessfully for a 90-day stay on a trial that was to begin today.

If the plaintiffs who are seeking to block the redevelopment continue their objection, it would cause a lengthy delay while a new lawsuit is filed, Kenney said.

Kassel, who took over as the judge in the case several months ago, said he would keep the case and permit attorneys to rely on depositions and expert reports that already have been completed.

The challenge to the validity of the planning board's vote was a last-ditch move by Jeffrey I. Baron, a land-use attorney retained by Camden businessman William Hargrove to stop the redevelopment project.

Baron, who estimated that legal fees for both sides in the dispute have topped half a million dollars, argued that a review of procedures showed that neither Anish Kuman, the author of a study that found Cramer Hill to be in need of redevelopment, nor city planner Charles E. Lyons were sworn in before giving their reports at two planning board meetings in May 2004.

Jeffrey Miller, an attorney for Cherokee, tried to downplay the importance of an oath, referring to the board's actions as legislative only, not judicial.

Kassel rejected Cherokee's argument, saying, "It's not testimony unless it's sworn. It just words."

After the hearing, Miller acknowledged he was surprised by the judge's ruling but said Cherokee will continue to push for approval of the project.

In the meantime, he said, Cherokee is busy with a redevelopment plan in Pennsauken.

Within hours of Kassel's ruling, Primas was trying to contact planning board members to set up another meeting. He could not estimate how quickly that meeting could be scheduled, but he did say it requires public notice and could possibly be held on a Saturday.

Primas said he believed that misunderstanding about the redevelopment proposal led to residents' opposition, including the appearance of about 800 people at a public hearing before council.

"I think people now understand we're not talking about taking everyone's home," he said.

Two residents who attended Monday's court hearing, however, remained opposed to the plan.

Colandus "Kelly" Francis, president of the Camden County branch of the NAACP and a resident of Camden's Parkside community, said the plan to sell market-value housing in the city's riverfront area is not workable.

"People are not going to pay $200,000 for a home when there aren't good schools, good city services, limited fire protection and limited police," Francis said. "The taxes would kill you. For a $200,000 house, you'll have to pay $9,000 taxes in Camden. Go to Cherry Hill and pay $6,000."

Samuel Benson of North Camden, a city resident since 1958, described the invalidation of the resolution and ordinance as "a huge victory."

"I know they will come back again. This isn't over with," Benson added. "City officials are dealing with billions of dollars. They're not going to turn their back on it."

Benson said he believes the city's next attempt at redevelopment will be in North Camden.

"And we're not going to just give it up," he said.


Courier-Post: www.courierpostonline.com

3/05/2006

Panel OKs toll-road limits: Denver (CO) Post, 1/20/06

Fight against "takings"

By Jim Hughes

Undeterred by Gov. Bill Owens' veto of the same proposal last year, the Senate Transportation Committee on Thursday unanimously approved a measure that would prohibit private toll-road developers from using eminent domain powers to condemn land.

The Republican sponsor of Senate Bill 78, Sen. Tom Wiens of Castle Rock, said negotiations with Owens' office have so far yielded no compromise on the issue that last spring brought hundreds of activist homeowners to the state Capitol.

The controversy arose when it became known that the Front Range Toll Road Company planned to use a 19th-century law to condemn a swath of land to the east of Front Range communities so it could build a for-profit north-south tollway. Wiens' bill would do away with the condemnation powers offered in that law, forcing toll-road companies to enter into partnerships with governments.

"When your house and your land is in danger of being taken from you, it changes your whole attitude," explained Barbara Fillmore, whose ranch straddling the line between Elbert and El Paso counties lies in the proposed transportation corridor.

Fillmore and a handful of other homeowners attended Thursday's hearing at the Capitol, saying they were gratified to see the committee once again support Wiens' legislation.

Supporters of the bill are hoping this election year for a change of heart from Owens or a willingness in the General Assembly to override another potential veto, said homeowner Patty Sward-Malczewski of Elizabeth. It takes a two-thirds majority in the House and the Senate to overcome a governor's veto.

"If you're up for election or re-election, why would you vote against this?" Sward-Malczewski said. "It doesn't make political sense."

Owens vetoed Wiens' bill last year because he said he didn't want to preclude private solutions to transportation problems in the state, he said.

But that argument does not hold up to scrutiny, Wiens said Thursday. There are other ways for private companies to build toll roads without condemnation


Denver Post: www.denverpost.com

Eminent domain on agenda: Cullman (AL) Times, 1/21/06

By David Mackey

After passing a law designed to curb the use of the "eminent domain" power to seize citizens' property following a controversial decision of the U.S. Supreme Court, Alabama legislators are considering several proposals to go even further. Cullman County's state representatives said they have yet to come out in favor of any of the proposals.

Sen. Larry Dixon, R-Montgomery, has proposed an amendment to the state constitution barring the taking of private property for commercial or industrial development. His amendment would also require that if any property is seized, not used for the stated purpose and then sold, it must first be offered for sale back to the original owner at the price paid to them upon seizure, less taxes.

Sen. Jack Biddle, R-Gardendale, has proposed an amendment nearly identical to Dixon's, but allowing seizures of "blighted" property in urban renewal zones.

An amendment offered by Sen. Steve French, R-Birmingham, bars the state and Alabama municipalities from taking property for "any purpose other than actual use by the public." French's amendment also mandates that property owners are entitled to monetary compensation for any use of eminent domain that restricts their rights to use their property.

The state Legislature passed a law in 2005 barring eminent domain seizures for private purposes after the U.S. Supreme Court declared such takings constitutional in a Connecticut case known as Kelo v. New London.

All amendments to the state constitution must be approved by Alabama voters.

State Rep. Neal Morrison, D-Cullman, said Friday he was "not in favor of anything out there right now."

"I'm looking at all the options, but we've got to be real cautious," Morrison said.

He said he was concerned that a hastily-enacted amendment could inadvertently impede takings for traditional public purposes like building roads or schools. As an example, he spoke of a project to widen Highway 278 to improve safety.

"If it means taking somebody's property, then I'm in favor of taking it ... because it's for the good of the public as a whole," Morrison said.

Rep. Jeremy Oden, R-Vinemont, said he favored French's proposed amendment over the others, and hopes to add a clause of his own if a bill reaches the House.

Oden said he wants any amendment to include a provision that if a seized property is sold within seven years of its taking for more money than was paid to the owner, the original owner of the property would then be paid the difference.

He said he believes the proposed amendments do, and should, allow takings for public purposes.

"Utilities and roads, that's the reason (eminent domain) was developed, not for economic development reasons or anything like that," Oden said Saturday.

State Sen. Zeb Little, D-Cullman, did not return messages seeking comment.


Cullman Times: www.cullmantimes.com

Owners claw against eminent domain bid: Contra Costa (CA) Times, 1/22/06

By Laurie Phillips

Demolition will begin by summer on a handful of buildings along Railroad Avenue, and after the scraps are cleared and fresh lawn is rolled out, a lush green strip will mark the entrance to a city intent on improving its image.

The city of Pittsburg [CA] expects to pay as much as $3 million to acquire the 13-parcel stretch at the corner of California Avenue and construct a sound barrier. But it's not enough, say two men who own parcels the city needs to proceed with the project. They believe the city is lowballing them for prime land adjacent to Highway 4.

"Because no one is challenging them, they do whatever the heck they want," Dave Shepard, who operates a real estate business on one of the parcels, said of Pittsburg's leaders. " ... They really need to understand, 'Hey, you're out of line.'"

Shepard and Jack Moore, who owns a building near Shepard's now leased by an engineering firm and Caltrans, know what the city is doing is legal but don't believe it is fair.

"Justify it? They don't have to justify it," Moore said. "They have eminent domain on their side."

Kerry Lyman, the project manager for the site, said the city has been more than fair in offering both men just compensation for their properties, required by law when cities acquire private land for public projects through eminent domain. Relocation agents have met with Moore and Shepard to explain the process and help them find a new location.

Independent appraisers hired by the city most recently valued Shepard's property at $360,000 and Moore's at $365,000. Garrett Evans, director of the city's redevelopment agency, said the city paid somewhere in the high $200,000s to low $300,000s to buy the other properties along that stretch.

To receive more money, Lyman said, the men must prove their properties are worth it.

"We have a fiduciary responsibility, because this is taxpayer money we're spending, not to just throw dollars at people and make them go away," he said. Noting the men have used arguments about square footage and location to demand more money, he added, "I don't know if I can blame them, but you can only go so far without abusing the system."

While property owners do not see the complete appraisal created for the city for each parcel, Evans said they are offered the highest value for their land based on one of three approaches: income generated by the property, comparable sales in the area or cost to rebuild the building. Using recent sales tends to yield the highest value in this market, he said.

Evans invited Moore and Shepard to submit their own appraisals for consideration. In past cases when the owner produced a valid appraisal that was higher than the city's, he said, the property value was determined by splitting both appraisals down the middle.

Both men said they plan to conduct their own appraisals, but only Moore plans to submit his to the city for consideration. Shepard said he'll submit his in court.

Attorney Mark Epstein of San Francisco law firm Seiler Epstein Ziegler & Applegate, who has worked on many eminent domain cases, encouraged both men to submit their own appraisals to the city. In the process that follows, he said, property owners typically receive more than what they were originally offered for their land.

That said, he added, Moore and Shepard should be mindful of the fact that "a real estate appraiser is looking at what zoning in the area allows to be built there, not necessarily what's there."

The men also wondered why an uninhabitable residential property Shepard used to own elsewhere in Pittsburg was appraised at $360,000 – the same amount he was offered for his land by the freeway.

With some exceptions, Evans said, residential land is worth more than commercial land in Pittsburg because there is higher demand for it.

Shepard must vacate his building by March, Moore after the highway improvements in the area are finished.

"I know in the end, I'm going to come out ahead in this," Shepard said. "I'm going to win. But I feel obligated to take this as far as I can so something happens."

Evans believes people are treated fairly when their properties are acquired by eminent domain, a process that he said allows ample opportunity for public participation.

"When we sit down with somebody (whose property) we're looking to acquire, we encourage them to seek another appraisal, seek legal representation, to make sure that all their legal interests are considered," Evans said. "Our end goal is to seek a resolution to this that both sides can walk away from."


Contra Costa Times: www.contracostatimes.com

Don’t tinker with eminent domain law: (Des Moines IA) Business Record, 1/22/06

Our View

There’s a classic David vs. Goliath battle brewing in the Legislature over the government’s use of eminent domain. In the end, it may not amount to much more than a lot of bluster about a power history shows hasn’t been abused much in Iowa.

Oh, the proposed law will play well in rural Iowa. It’ll play well with entrepreneurial mom-and-pop business owners like some of those in the East Village area who fear failure to bring their buildings up to standards set by new developers may result in their losing their properties in a condemnation battle. It’ll play with libertarian-thinking people who like to keep the government at arm’s length. For all of that chest-thumping on behalf of the little guy, though, a bill in the Iowa Senate that would sharply limit a government’s ability to condemn land looks more like election-year grandstanding than actual problem-solving.

In theory, private property rights, engrained in our national psyche as one of the most basic of human rights, are worth protecting at all costs. The problem with that line of thinking is that it doesn’t address how one party’s property rights are infringed upon by an adjoining owner’s decision to allow property to exist in squalor. Looking at the issue through that lens, it’s hard to argue against eminent domain when it’s used to acquire truly blighted areas so run down that they inhibit development around them, thus spurring redevelopment for public purposes or even another private development that lends stability to a neighborhood. It’s also hard to argue that its use isn’t improving downtown Des Moines’ west side, where the Western Gateway Park was a stimulus for impressive private development projects like the Meredith Corp. expansion and the Nationwide-Allied Insurance, ING Insurance and Wells Fargo Financial buildings.

It should be understood that a government’s condemnation power is effective only when used sparingly and other means of acquiring land have been exhausted. That’s been the tradition in Des Moines and throughout Iowa, and there simply is no evidence, anecdotal or empirical, to suggest that local government officials suddenly will embark on a reckless spree to acquire land for retail stores, manufacturers, hospitality businesses and other economic activities.

But to strip local governments of the power of eminent domain because they might eventually abuse it seems unnecessarily harsh. Talking about it should be warning enough for them to stay on course : Use eminent domain wisely and sparingly, or lose the power altogether.


Des Moines Business Record: www.businessrecord.com

Eminent domain looms over downtown project: (Eugene OR) Register-Guard, 1/22/06

By Edward Russo

It's called the ultimate weapon or the last resort.

Whatever the name, the power of eminent domain, as exercised by the city of Eugene, could play a pivotal role in the unfolding downtown redevelopment drama.

Yet Oregon voters - through a statewide ballot measure regarding eminent domain - ultimately may influence what the city can or cannot do to acquire land along Broadway on behalf of developers.

City officials say they don't want to use eminent domain to acquire land for a proposed shopping, office and entertainment complex on Broadway.

They say they will try to help the developers and property owners reach sales agreements that the developers have so far been unable to accomplish on their own.

"The (City) Council's pretty clear that eminent domain is something that we rarely use," said City Manager Dennis Taylor. "Our charge is to work on how we can get a project to go forward, rather than some type of veiled threat about condemnation."

But city officials haven't ruled out the possibility of using eminent domain, either.

And that's where the ballot measure could come in.

Last year, a divided U.S. Supreme Court upheld the constitutionality of local governments' forcing private property owners to sell in order to make way for private commercial development if there is a legitimate public purpose.

The ruling has prompted backlash efforts to strengthen property-owner rights in several states, including Oregon.

Oregonians in Action, a property rights group, is circulating signature petitions to put a measure on the November ballot that would prevent governments from acquiring land from one private property owner and selling it to another property owner for private use.

"We are trying to remedy the very narrow situation where the government says, `We know better than you what to do with your property, so we are going to declare your property as blighted, take it from you and give it to this developer who will put it to what we think is a much better use,' "said Ross Day, a lawyer for Oregonians in Action.

The Oregon Constitution and state laws give local governments wide latitude in using eminent domain, Day and other lawyers said.

In eminent domain, a court, after hearing arguments from both sides, sets the sale price that a government must pay an owner for his property.

The state constitution allows cities to use eminent domain as long as the property is being acquired for a "public use."

"Public use" is a broad term that can include economic development, said Glenn Klein, an attorney for the city of Eugene.

So, local governments are not limited to using eminent domain for roads, public buildings, parks and other publicly owned facilities. There are no laws preventing governments from acquiring property under eminent domain and then selling it to a private property owner as long as the project is "associated with some kind of public benefit," Klein said.

Public urban renewal agencies have used eminent domain to acquire blighted property, clear sites and improve streets, and then to sell the land to private owners for development, he said.

The Connecticut connection
The use of eminent domain by New London, Conn., triggered last year's Supreme Court case. New London, through a private, nonprofit development agency, sought to acquire private homes along a waterfront and then to sell the land to developers. The developers were to build offices, housing, a marina and other facilities near a proposed $300 million research center by pharmaceuticals giant Pfizer.

Justice John Paul Stevens, writing for the majority, cited cases in which the court has interpreted "public use" to include slum clearance and land redistribution.

Stevens wrote that a "public purpose" such as creating jobs in a depressed city can be used to satisfy constitutional requirements for condemnation. "Promoting economic development is a traditional and long-accepted function of government," he wrote.

If Oregon voters approve the pending ballot measure, that could prevent Eugene from acquiring downtown property through eminent domain and selling it to a private developer, Day said.

However, the ban would not likely stop a condemnation that got under way before the law took effect, he said.

Whenever a government agency gets involved in redevelopment, there's a chance it will consider using condemnation.

The downtown Eugene proposal is particularly volatile because many of the private properties the developers - Tom Connor and Don Woolley and their partner, The Opus Group - want to secure are owned by small-scale business people and are occupied by tenants, including stores, taverns and offices.

If city officials fail to help the property owners and the developers reach sales agreements, the City Council could be asked to approve condemnation. That would test how far councilors are willing to go to support the developers' plan.

"I wouldn't rule out the possibility of condemnation, but you really would have to make a case for that," said Jack Roberts, director of a Eugene-Springfield business recruitment agency, and a joint owner of a Broadway building in the project footprint sought by the developers.

Roberts said he's willing to sell. But many of the other adjoining property owners are more reluctant.

Viable existing businesses
Scott Kirkpatrick, who lives near downtown Eugene, doesn't object to the city helping Connor and Woolley redevelop the properties they own downtown. But, to him, it makes no sense for the city to condemn buildings that house viable businesses, such as the John Henry's and Horsehead taverns. Kirkpatrick, who patronizes those night spots, noted that Connor and Woolley own downtown buildings that are mostly empty, plus the pit on Willamette Street that once was the site of the F.W. Woolworth building.

"I would like to see the energy spent there first, before we condemn businesses that already employ people and bring people downtown," Kirkpatrick said.

Taylor, the city manager, said that in coming weeks city employees will act as ambassadors of sorts between property owners and developers, to see if sales deals can be reached.

City employees could play a similar role to that of Springfield officials, who have sought purchase options on property in the Glenwood area as a possible site for the McKenzie-Willamette Medical Center, he said. In those cases, Springfield officials asked property owners to name their price. About a dozen owners responded with initial prices averaging a lofty $1.1 million an acre.

There are other ways for the developers to acquire property besides agreeing to a high price, Taylor said. Those may include giving property owners an ownership stake in the new development, or rental space in it at favorable rates, he said. "There are a lot of ways to skin this cat," Taylor said.

At a Jan. 9 council meeting, most councilors were enthusiastic about the downtown project. Still, the majority worried about possibly having to weigh the development's potential benefits against the negatives of condemnation.

Council divided
Councilor Chris Pryor said he likes what he's heard of the Connor and Woolley project.

Connor and Woolley are "longtime community residents who want to build something that will be beneficial commercially, and contribute to the overall quality of life," he said.

But the city should use condemnation only "under the most extreme circumstances, where all other options have been exhausted and the community's need has been established," he said.

Councilors Betty Taylor and Bonny Bettman said they were troubled by the prospect of condemnation. They objected to giving city staff permission to work with the developers, but at the Jan. 9 meeting were outvoted, 6-2.

Bettman said the city should use eminent domain only "to achieve a quantifiable and very high priority public good, like health or safety."

Property owners in the proposed development area, some of them "loyal to downtown for decades, should have the right to maximize their investment by selling to the highest bidder, or remain in business if they so choose," she said.

"The targeted businesses are not an obstacle to downtown redevelopment; they are only an obstacle to Connor (and) Woolley's attempts to monopolize solid blocks of downtown property," Bettman added.

Sue Prichard, a real estate broker working for Connor and Woolley, said it's easy to characterize the situation as wealthy developers trying to maximize their profits and the "little guy getting squeezed."

But the project would improve the heart of the city, she said. "Instead of talking about what we don't want, let's talk about what we do want. What I want is a more vibrant, diverse, fun and interesting downtown. And if it takes the combined efforts of the city, the developers and the individual property owners, then that is what we should do."


Register-Guard: www.registerguard.com

Eminent domain legislation goes too far: Indianapolis (IN) Star, 1/22/06

My View

By Matthew Greller

The Indiana Association of Cities and Towns opposes House Bill 1010 on eminent domain. While we affirm that property rights of Hoosiers need to be protected from unreasonable seizure by government, we believe adequate protection already exists in Indiana law.

HB 1010 imposes unreasonably severe restrictions on government acquisition of private property for public ends. It narrows the types of properties where eminent domain may be applied and unnecessarily drags out the process in a manner that would cripple many timely economic development initiatives.

It's possible the bill's sponsors may be overreacting to the much-publicized impasse between the Indiana Stadium and Convention Building Authority and N.K. Hurst Co. over property needed for the new stadium project. This single case should not rush us to judgment that could have unfortunate ramifications.

Eminent domain is a rarely used government action, frequently upheld by state and federal courts, that lets a city or town acquire property with just compensation and relocation expenses to property owners. It may be used only for the public good, with stringent review and public input. It is used only as a last resort after all private negotiations have failed. Without eminent domain, many roads, sewer lines, water resources and other public projects would never have been completed.

Without the possible use of eminent domain, Indiana probably would not have the AM General Plant in Mishawaka, the Toyota plant in Gibson County or the Isuzu plant in Tippecanoe County.

More recently, eminent domain was a factor in the Fall Creek Place project in Indianapolis, the revitalization of an entire inner-city neighborhood that earlier had been plagued with blight and street crime.

In the city's acquisition of more than 250 properties, 28 cases of eminent domain were filed and used only when the owners of the property could not be found.

Responsible Indiana cities and towns historically have and will continue to judiciously balance the rights of private property owners with the interests of the entire community.

HB 1010, with all its new restrictions, is not needed to protect those rights. In fact, in a state where many economic development initiatives are being pursued with a sense of urgency, HB 1010 could well be counterproductive.


Indianapolis Star: www.indystar.com

Eminent Domain Knocking on Church's Door: The Conservative Voice, 1/21/06

By Jerry Falwell

I learned this week that a small Baptist church in Oklahoma is at risk of losing its place of worship because it sits on a site where city leaders want to build a shopping plaza.

This eminent domain business is getting serious.

Since the U.S. Supreme Court’s Kelo ruling last year, we are facing a brand new ballgame in terms of private property and what that term really means.

For the Rev. Roosevelt Gildon, pastor of the Centennial Baptist Church in Sand Springs, Okla., eminent domain is threatening to tear his church apart.

I’ve never met Rev. Gildon — or “Rosey,” as his friends call him — but as a pastor of nearly 50 years, I can imagine the feeling of helplessness this man must be feeling. He’s been leading the flock for seven years at the church. And now the congregation is looking to their shepherd for answers, with government officials threatening to take the church property.

Government officials in Sand Springs have told Rev. Gildon they will be seizing the church property in order to build a “super center.”

This is an alarming development, one that should send shivers down the spine of any pastor reading this column.

In the Kelo case, a group of Connecticut homeowners chose not to accept a corporation’s offers so that a business area could be developed. So the city council authorized the corporation to acquire properties within the designated area. When homeowners refused the offers, the development corporation voted to use eminent domain to acquire the properties, even though the owners were averse to selling.

Following a trial, the case was appealed to the state supreme court, which determined that the use of eminent domain for economic development doesn’t violate public use clauses of the state and federal constitutions. Appeals failed to protect the rights of the property owners.

We are now seeing that “economic development” is more powerful than personal property rights — or church rights, in the case of Centennial Baptist Church.

In a National Review Online (www.nationalreview.com) article titled “Unholy Land Grab,” Heather Wilhelm reported that this church property takeover is unnecessary.

“The way things are now, Centennial Baptist Church could easily live side-by-side with new stores, houses, or businesses,” Ms. Wilhelm wrote. “Yet Centennial remains in the crosshairs — even though two nearby national chains, a taxpaying McDonald’s and a taxpaying O’Reilly’s muffler shop, have been left alone.”

She also reported that Centennial is not run down; in fact, she reports that the building is like new and fully functional. So this isn’t a case of city officials getting rid of a dilapidated old church.

Rev. Gildon has now coalesced with Americans for Limited Government and Oklahomans in Action to fight the takeover bid of his church.

I’m no lawyer, but maybe the federal Religious Land Use and Institutionalized Persons Act or 2000 (RLUIPA) can provide protections for Rev. Gildon’s church. RLUIPA is a federal statute that provides stronger protection for religious freedom in terms of land use. The statute has been beneficial in halting discriminatory zoning laws that target churches across the nation.

In the meantime, my prayers are with Rev. Gildon and his congregation. They should be afforded the right to remain at their present location so that they can serve God and fully minister to their community. Let the money-hungry corporate big boys either build around the church or move on to another locale.


The Conservative Voice: www.theconservativevoice.com