Hercules vote goes against Wal-Mart: San Francisco (CA) Chronicle, 5/24/06

Council OKs using eminent domain to block retailer
By Patrick Hoge
The Hercules [California] City Council voted unanimously Tuesday night to take the unprecedented step of using eminent domain to prevent Wal-Mart from building a big-box store on a 17-acre lot near the city's waterfront.

The vote caused most of the 300 people who had packed Hercules City Hall for the meeting to break out in cheers and applause.

"The city of Hercules is very unique. People from the outside have to understand that,'' said Hercules Vice Mayor Ed Balico just before the vote.

During a 90-minute public comment period that preceded the vote, nearly everyone who spoke urged the council to fight Wal-Mart.

"Throw the bums out," Hercules resident Steve Kirby said at the podium of Wal-Mart. "Wal-Mart will never understand what we want."

Another resident, Anita Roger-Fields, expressed concern for small businesses in the city, saying they could be driven out of business by the discount store. "(Wal-Mart is) the worst thing that could happen to our community. They want to crush the competition."

The vote is the latest twist in a battle between the city and the discount-store chain, which wants to build a store near the city's historic waterfront. The city contends Wal-Mart's plan to build a discount store does not fit with its plans to develop the waterfront into a pedestrian-oriented village with high-end shops and homes.

"I'm elated. This is the result we wanted. The fact that it was unanimous is wonderful. Our City Council really came through," said Brenda Smith Johnson, an information technology vice president with JP Morgan Chase in San Francisco who moved to Hercules in 1992. "I know this is going to be a hard fight but we're up to it."

Some residents were infuriated that Wal-Mart had warned that if the City Council voted for eminent domain, the move would cost the city millions.

"I don't like to be threatened and they threatened my community,'' Bob Steiner, a certified public accountant and magician who lives in Hercules, said after the vote.

Only about four people spoke in favor of Wal-Mart. "The city has no guarantees that anybody is going to develop the property if they take it away from Wal-Mart," said Hercules resident Andre Wilson.

The vote allows the city to begin proceedings to acquire Wal-Mart's property by force to achieve its redevelopment goals.

Following the vote, Wal-Mart spokesman Kevin Loscotoff said Wal-Mart will evaluate the situation and decide what to do next.

The city was once a company town, home to a dynamite plant that during World War I was the nation's leading producer of TNT, and some turn-of-the-century homes that used to house company officials have been restored. The city plans to continue developing land along the waterfront to fit its vision.

"Why should we have to sell ourselves short when we have this great waterfront," Hercules resident Valerie Wilgus said following the vote.

Some residents have said they would prefer grocery stores such as Whole Foods, Trader Joe's or Andronico's, and specialty shops like those in Berkeley's swank Fourth Street district.

The vote comes after Wal-Mart rejected a city offer to buy its property earlier this year.

Officials from the nation's largest retailer have said they are determined to open a store on the company's 17 acres overlooking San Pablo Bay. In a letter to the city on Tuesday, Wal-Mart attorneys argued that eminent domain was unnecessary because the company had tailored its project to meet the community's desires, downsizing the proposed store and garden center from 167,000 square feet to roughly 100,000 square feet and designing the shopping center to have "a very attractive, village-like appearance.''

But critics countered that Wal-Mart's latest plan was still more than 50 percent larger than a store plan approved for the site before the retail giant bought the property.

The city was the first in the state to adopt a redevelopment code that prescribes the design of streets, building dimensions and some architectural requirements, such as front porches. A key part of the plan called for a waterfront village with high-density housing and shops, a shoreline park, a train station, bus service and even a ferry stop.

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San Francisco Chronicle: www.sfgate.com

N.C. House committee recommends restrictions on eminent domain: Myrtle Beach (SC) Sun News, 4/25/06

Gary D. Robertson, Associated Press
[North Carolina] Legislators should pass a law during the coming session that would prevent local governments from using eminent domain authority to clear the way for private economic development projects, a state House committee decided Tuesday.

The practice is not common in North Carolina, but such a law would calm public worries arising from a U.S. Supreme Court decision that said the practice was legal, according to members of the House Select Committee on Eminent Domain Powers. The committee stopped short of asking the General Assembly to approve a proposed constitutional amendment that would limit government power to acquire homes and businesses for private projects.

North Carolina law already limits local governments to nine conditions in which cities and counties can condemn private land, but some towns and cities have received exemptions over the years for economic projects. Committee members have said they believe the existing law is pretty strong, but have proposed a law that would close any loopholes.

"I don't think we need to be messing with the (state) constitution," said Rep. Bruce Goforth, D-Buncombe, a committee co-chairman. "I think we can solve the problem and I don't see that anybody should have a concern."

Eminent domain gives government the authority to take private property for public use, usually in exchange for compensation to the property owner. The U.S. and state constitutions provide for eminent domain.

The panel began meeting three months ago in response a Supreme Court ruling last year that allowed the town of New London, Conn., to take houses on property that would be used for a hotel and convention center.

North Carolina and other states responded to the case by examining how to prevent a similar situation within their jurisdictions. At least five states have passed laws restricting eminent domain for private development and South Carolina lawmakers are considering a constitutional amendment limiting government power to take private land.

The bill recommended to the Legislature by the House panel would limit eminent domain exclusively to public uses already set out in law, such as the creation or expansion of roads, parks, sewer lines and government buildings.

Any laws granting additional condemnation authority to specific local governments beyond the statewide restrictions would be repealed July 1 unless condemnation proceedings were ongoing.

About 10 so-called local eminent domain laws have been passed since 1981, half of them for economic development projects such as industrial or business parks, according to legislative researchers. The proposed bill would prohibit towns and cities from condemning land for such parks in some cases.

Critics of the proposal argue any bill will be insufficient, since the General Assembly could repeal the law later. A constitutional amendment would provide more protection, they argue.

"A constitutional amendment is the only way North Carolinians will be protected from eminent domain abuse," said Darren Bakst with the John Locke Foundation, a conservative-leaning think tank. "Even if a statute did protect us, it is ridiculous to think that a statute is proper protection for a fundamental right like property rights."

Some lawmakers are expected to file a proposed constitutional amendment when the Legislature reconvenes May 9. Three-fifths of each chamber must back such a measure, which then must be approved in a statewide referendum.

Boyd Cauble, a lobbyist for the city of Charlotte, said in a telephone interview that the Legislature should consider granting narrow condemnation authority for economic development projects when "someone can build a better case for a greater public good."

The General Assembly gave Charlotte condemnation authority in 2000 to remove a used tire dealer whose refusal to sell his land blocked a deal to help a nonprofit arm of the local chamber of commerce build a business park in a distressed area. The merchant left before the city invoked its authority, Cauble said.

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Myrtle Beach Sun News: http://www.myrtlebeachonline.com

Illinois House Votes To Overhaul Eminent Domain: CBS-TV2 (Chcago IL), 4/25/06

By Corina Quinn, Medill News Service
The battle over whether local municipalities should have the power to seize private property may be winding down in Illinois.

Last week, the state House overwhelmingly passed a bill that would overhaul the state's eminent domain law by setting higher standards for municipalities that want to seize land for private redevelopment, such as shopping malls.

It also would require governments to increase the compensation they offer to property owners when land is taken for both private and public use, including roads and schools.

"What we've created is an eminent domain act that is one complete statute . . . where people can go and understand what their rights are," said state Sen. Susan Garrett (D-Lake Forest), who wrote the first draft of the bill. The measure passed 85-6 on April 18.

"What we have today is just case law, which is scattershot and depends on who your attorney is and what you can afford," Garrett added. "My goal was a law that people understood, one with transparency, and not making the process about who can hire the best lawyer."

Garrett said she introduced the bill after a landmark U.S. Supreme Court decision last year that broadened the power of local governments to take property and transfer it to private developers for economic growth. That decision allowed states to determine their own eminent domain statutes, and many states have restricted their laws in the aftermath, she said.

Illinois' bill will go back to the state Senate, which last month approved a more stringent version. The Senate reconvenes May 2, and if it concurs with the House version, the bill will be sent to the governor.

Despite its passage in the General Assembly, the bill was met with strong opposition from local municipalities, which say it poses a threat to their urban development plans. A number of cities, including Chicago, successfully lobbied to amend the bill.

The result is a measure that's "livable," said Roger Huebner, general counsel for the Illinois Municipal League, which originally opposed the legislation.

The revised bill sets higher standards for governments seizing private property. The government must prove the property is essential for a successful development project and provide a substantive renewal plan for the area.

In addition, when governments seize property for either private or public use, they are required to cover homeowners' relocation costs and, in some cases, their attorney's fees if the owners choose to fight the seizure.

Huebner said that the House amended the bill to ensure that development plans already underway — such as the $15 billion expansion of O'Hare International Airport — are not affected if the measure is passed.

"We also wanted to make sure those additional costs for attorney's fees and relocation are reasonable," he added.

Garrett said she agreed with the changes. "We did not want to deter economic development, so the difficult thing about this [bill] is striking that balance between economic needs and property owners' rights," she said.

But the compromise has not swayed all local officials.

"If the [city] administration had advised me to, I would have opposed it," said Chicago Ald. Bernard Stone (D-50th). "But unfortunately, I was never advised until the bill went before the Senate. Now I'm afraid it's too late."

Garrett praised the bill for being "extremely fair" and said she does not expect any additional opposition to it.

"States are grappling with how to handle this," Garrett said. "Many are going from one extreme to the other, and I think what we've done is strike a balance. I can honestly say that what we've done could be model legislation."

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CBS-TV2: http://cbs2chicago.com

Eminent-domain measure euthanized: Denver (CO) Post, 4/25/06

The "Old Yeller" proposal would have restricted the power of governments to take private property for economic development
By Chris Frates
The sponsor of a [Colorado] constitutional amendment to prevent governments from taking land for economic development killed his proposal Monday but said he is willing to work with the House speaker on a proposed compromise.

Still, Republican Rep. Al White of Winter Park said the proposed deal being brokered by Democratic House Speaker Andrew Romanoff is "stopgap" because it is a statutory measure that would be much easier to change than a constitutional amendment.

The new proposal, White said, "may slow the avaricious cities in concert with the greedy developers in taking the private property of the poor citizens of Colorado" until a constitutional amendment by citizens initiative can be passed in November.

On Monday, White asked his colleagues to kill his proposed constitutional amendment, House Concurrent Resolution 1001, because it had been changed so drastically for the worse.

He said the situation reminded him of the movie "Old Yeller," which, when he was a boy, "made me cry like a baby."

"I'm calling this now the 'Old Yeller' (proposal) because it's been bitten by a rabid skunk and I've got to put it down. And it makes me cry like a baby," White said.

(In the movie, Old Yeller had to be shot because the dog had developed rabies after being bitten by an infected wolf.)

Romanoff said this newest proposal is modeled after a Michigan measure.

It would require "clear and convincing evidence" that the property is not being taken for economic-development reasons but to eradicate blight. It would also require governments to reimburse homeowners at least 125 percent of fair market value for their principal residence.

"I think it strikes the right balance between private property rights, which we should protect, and community interest that we should not ignore," he said.

But the problem with a statutory change, White said, is that powerful interests like municipalities and developers can easily lobby for changes to the law if they don't like it.

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Denver Post: http://www.denverpost.com

Senate weakens eminent domain bill: Palm Beach (FL) Post, 4/25/06

By Alan Gomez
[Florida] senators made a significant turnaround Monday on a bill aimed at limiting the ability of governments to seize private property through eminent domain by temporarily exempting ongoing projects like those in Riviera Beach and possibly Boynton Beach.

Legislators have been working for eight months to craft a bill that would no longer allow local governments to use eminent domain to take private property for economic redevelopment after the U.S. Supreme Court upheld a law in June that allowed New London, Conn., to take people's homes for just that reason.

But on Monday, Riviera Beach Mayor Michael Brown made an impassioned plea to senators to allow him the chance to fulfill the $2 billion redevelopment of his city, which will require displacing more than 1,000 renters and homeowners to revitalize the city's waterfront.

Brown told senators he returned to Riviera Beach after college to attempt a "rescue mission" of his hometown, which he said leads the county in crime rates, AIDS rates, drug use rates and poverty rates.

"Without this (exception), we will be certainly relegating those kids and those families to a sure and complete and continuing poverty," Brown said.

Senators agreed to a change that would allow community redevelopment agencies that have entered an agreement with a master developer by October to use the old, more-lenient standard for eminent domain takings through 2010. Otherwise, the bill (SB 2168) would severely restrict takings geared toward economic development in cases filed after Oct. 1.

Riviera Beach has not signed a contract with Viking Inlet Harbor to develop the property, but the bill would give the city more than five months to complete those negotiations.

The bill could also affect Boynton Beach's redevelopment efforts, where city officials are trying to revitalize the Heart of Boynton partly through eminent domain proceedings. Without the exception, Boynton Beach's ongoing and planned eminent domain proceedings could be wiped out by the new law.

Boynton Beach Assistant City Manager Wilfred Hawkins said he doesn't know the city's time frame for finding a master developer, but he said of the Senate bill, "That language would be of concern."

The language also concerned the Rev. E.J. Maddox of Triumph the Church and Kingdom of God in Christ, which the city has sued to take by eminent domain for its Heart of Boynton project.

"I think a face-lift of Boynton is greatly needed and is good," Maddox said. "However, when you talk about taking people's property that have worked very hard all their lives... where are they going to go to afford housing?"

The House has already given a strong indication of its thoughts on the exception for ongoing projects.

The House version of the bill (HB 1567) that was passed unanimously two weeks ago would go into effect July 1 and contains no exceptions of any kind.

Reps. Anne Gannon, D-Delray Beach, and Priscilla Taylor, D-West Palm Beach, tried to amend that bill on the House floor to provide an exception similar to the one put in the Senate bill Monday, but withdrew the amendment when told that it would be voted down.

Property rights advocates called the exception a dangerous slippery slope that could open the door for other government agencies to take advantage of.

"If it's wrong to take people's property, it's wrong today and nothing's going to make it right six months from now," said Carol Saviak, executive director of the Coalition for Property Rights.

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Palm Beach Post: http://www.palmbeachpost.com

Senate sends governor bill limiting use of eminent domain: Centre (County PA) Daily Times, 4/25/06

By Martha Raffaele, Associated Press
Local governments and other authorities [in Pennsylvania] would face stricter limits on seizing property for private commercial development projects under a bill passed unanimously Tuesday by the state Senate.

The measure, sponsored by Sen. Jeffrey Piccola, would generally ban the use of eminent domain for private development unless the property meets a narrower definition of "blight." The measure was passed Monday by the state House and now goes to Gov. Ed Rendell.

The legislation is in response to a U.S. Supreme Court ruling in June that the city of New London, Conn., could take 15 homes to build a mixed-use waterfront development to boost the local economy. The ruling drew protests across the nation and prompted many states to consider changing their laws on the government's ability to take private property.

A companion bill sent to Rendell on Monday by the House of Representatives would increase reimbursements to property owners whose land is seized for public uses. The measure would increase maximum relocation payouts from $5,250 to $6,300 for renters, from $22,500 to $27,000 for homeowners, and from $10,000 to $12,000 for businesses and farming operations.

Piccola, R-Dauphin, said both bills "will provide substantive rights to protect property owners from government overreaching in eminent domain."

Piccola's bill would eliminate a portion of state redevelopment law that allows a local government or authority to declare eminent domain by citing "economically or socially undesirable land uses."

"It can no longer be used to take ordinary neighborhoods for private development or to take neighborhoods just because the people who live there have less money," Piccola said.

Under the bill, a property can be considered blighted if it is a health or safety hazard, abandoned, or has been tax-delinquent for two years.

Kate Philips, Rendell's spokeswoman, said Tuesday that the governor would review the legislation.

"The governor's main focus with this legislation is that the greater good of the community is properly balanced with a property owner's rights," Philips said.

Piccola's bill also would allow Philadelphia, Pittsburgh and Delaware County, which is home to the city of Chester's rundown waterfront, to act until Dec. 31, 2012, on projects in areas those governments have already certified as blighted. The measure would also prevent one local government from condemning property within another jurisdiction without the other government's permission.

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Centre Daily Times: http://www.centredaily.com

Eminent Domain: Who defines the greater good? Bradenton (FL) Herald, 4/22/06

By Brian Sokoloff, Associated Press
When [Riviera Beach FL] Mayor Michael Brown envisions the future of this hardscrabble city, he sees no poverty, no drug dealing and no prostitution.

Brown sees hope and high-paying jobs. But progress doesn't come without sacrifice.

The city's multibillion-dollar effort to remake itself could send to up to 6,000 residents packing in potentially one of the nation's largest eminent domain seizures, leaving many wondering who defines progress. The project has placed Riviera Beach at the center of a nationwide battle over whether government should be allowed to force people from their properties for construction of private development.

"You can't just take away from people what they've worked so hard for," said Princess Wells, 54, whose home and salon are slated for removal under the city's plan.

The proposed $2.4 billion project to revamp the marina district in one of Palm Beach County's poorest cities includes high-end condominiums, houses, shops, offices and yacht slips. About 1,700 homes and businesses are slated for condemnation to make way for construction.

Brown sees it as a catalyst for prosperity that will bring opportunities - and millions in tax revenue - to the rest of the city, where a quarter of the 31,000 residents live in poverty.

"(Italian philosopher Niccolo) Machiavelli said it best - the hardest thing to do is to sustain and change the order of things," Brown said. "I will use every ounce of energy I have to fight to make a better life for these people. There will be no more lower class.

"For all those who don't like it, tough."

Traditionally, governments have used eminent domain to build public facilities like schools, parks, prisons, airports and roads. But the Supreme Court ruled last year in a Connecticut case that local governments can use eminent domain to seize property for private developers if it will be used to raise the city's tax base and benefit the entire community.

The ruling left open the option for states to devise their own regulations.

An amendment and a bill are working their way through the Florida Legislature to severely limit condemnations of personal property for any private use.

"From the barbershops to the courthouse, all I've heard was 'Please don't let them take our property,'" Rep. Arthenia Joyner, D-Tampa, said after the House recently passed by a 116-0 vote a restrictive eminent domain bill (HB 1567). The measure now goes before the Senate.

"I don't think people's property should be taken for private use, period," Gov. Jeb Bush said following the vote.

In February, South Dakota became the first state to enact a law that prohibits government from seizing personal property through eminent domain for private use. Indiana, Georgia and other states have since enacted similar laws, among 47 states, including Florida, that are considering or have already enacted such laws.

Dana Berliner, a lawyer for the nonprofit Washington, D.C-based Institute for Justice, says Riviera Beach's plan is the largest current project in the country under which a city is attempting to recreate itself with the threat of eminent domain seizures.

"Once you allow eminent domain to be used for private development and for increasing taxes, you don't have limits anymore, and that means that people can lose their homes repeatedly," said Berliner, who represented the Connecticut homeowners in the Supreme Court case.

"This land is very valuable and the attitude is 'Why should we waste this prime real estate on low income people?'" she added. "It's a terrible thing."

Wells is holding her ground, refusing to sell. The developers who have offered some residents twice the market values for their homes have not approached her, leaving few options but to eventually accept the city's offer of about 30 percent above appraisal, plus relocation assistance.

"What, little people aren't important anymore? America is made of little people, small hardworking people," Wells said angrily. "Stability means a lot to people and to have that swept away, that's just devastating.

"In how many other American communities is so much being taken from people who have so little?" she said.

Mayor Brown, a lawyer who is serving his fourth term, says Riviera Beach is on the brink of bankruptcy and needs redevelopment if it is ever to thrive here in Palm Beach County, home to some of the world's wealthiest people. He says young adults, in particular, will benefit from the expanded economy.

"In order to be a vibrant city, the people who live here have to have decent jobs," he said. "Why should we continue to allow these kids to be guaranteed an early death or continued poverty?"

But there's an inherent distrust in government here, an idea that Brown and officials like him have lost their way.

Wells remembers the glisten in the mayor's eyes when he once called the town a "gold mine."

Her husband built their tidy single-story pink house 23 years ago, and the couple raised four children there.

"When we built our house, we didn't have much money. We prayed a lot," Wells said. "We love our house. Why would I sell?"

Wells has no idea where she would go, given the high price of new housing and the added costs of insurance on a more expensive home.

Floyd Johnson, director of Riviera Beach's Community Redevelopment Agency and the man in charge of administering the project, says the city will likely only have to seize some 30 properties under eminent domain. He says others will sell to developers or take the city's buyout, but they don't have much choice.

"We are uniquely positioned to do something that will launch a turning point in the lives of this community," said the former city manager of Fort Lauderdale and blighted Richmond, Calif., outside San Francisco.

Johnson compares Riviera Beach's plan to the construction of the nation's interstate highway system, a project that connected coasts and commerce and paved the way for economic prosperity but displaced thousands in its path.

"A rising tide will hopefully raise all ships," Johnson said. "There are those who are reminiscent of the good old days here. The greater good extends beyond them."

He predicts the project will move forward regardless of any new laws, but admits it could make the situation difficult.

"It could potentially slow down projects if the power of eminent domain were completely removed," he said. "It would empower the people and delay the whole shooting match."

Viking Inlet Harbor Properties, a joint venture between Viking Yacht Co. and resort-development firm Portfolio Group, is overseeing and developing the project.

Viking CEO Robert Healy notes that he'll build up to 800 affordable homes in Riviera Beach, bring in 1,500 new jobs and create a 400-student maritime vocational academy.

"Now I'm no saint. I'm a good businessman," Healy said, adding that the plan will benefit him and residents. "That's good business."

Painter Martha Babson, 58, sold her $220,000 house in the redevelopment zone for $732,000 to billionaire H. Wayne Huizenga, founder of Blockbuster Entertainment and owner of the NFL's Miami Dolphins. Huizenga is also working with Viking.

Babson says she only sold under the threat of eminent domain, and would never have left her home of 13 years. She's now considering moving inland to find affordable housing.

"I'm outraged. This is so un-American. It's legalized stealing," Babson said.

"Unless the state changes the law, people of my echelon, the financially challenged, will always be the people who get moved. Is there ever an end?" she said. "What is to stop the same thing from happening to me again somewhere else?"

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Bradenton Herald: http://www.bradenton.com

Eminent Domain Battle Rages in Bedford: Lynchburg (VA) News and Advance, 4/22/06

By Janet Nguyen
The city of Bedford played a rarely used card last week in a long-running battle with a landowner near the city’s old leaking landfill.

When the city asked Bedford County Circuit Court to use eminent domain to acquire the 44-acre tract, it was only the second time in more than 20 years that the city has sought to exercise that power, according to the city’s attorney, William Berry.

The action was one of two taken by the city last week in the dispute; it also filed its response to a $2.5 million lawsuit filed by the landowner, Mike Schrock, in February, denying many of his complaints.

Under eminent domain, the government can seize private property for public use. In this case, the city is asking the court for permission because it maintains that ownership of the land is necessary to monitor the groundwater, remediate the contamination and prevent any further spreading.

Schrock says the city’s use of eminent domain is just a ploy.

“(The city) is trying to use eminent domain as a bargain wedge against me to drop my suit against them,” said Schrock. Schrock’s lawsuit claims the city’s now-closed landfill, which operated from 1960 to 1994, has caused him to suffer from damages to his property and business operations as well as the loss of value, profits and use of his property.

The city’s response to his lawsuit requests that the court “dismiss the complaint with prejudice” and award the city its attorney’s fees and costs incurred.

Berry, who has worked as Bedford’s city attorney for more than 20 years, said that eminent domain was sought after negotiations with Schrock failed.

“Before a municipality can exercise the right of eminent domain or condemnation, the law requires that you make a bona fide offer to the person owning the property,” Berry said.

“If you cannot come to some agreement for purchase of the property and it’s needed for public purposes, then the law provides that you can go to the court and through the eminent domain statutes obtain the property for the public,” said Berry.

“And my experience is most people have felt that they’ve been treated fairly by the city and have been willing to convey their property.”

Schrock said the city initially offered him about $300,000 for his entire property, but was unsatisfied with the offer.

“My property is worth considerably more than they offered me, and they know it’s worth considerably more than they offered me,” said Schrock, who added that he has made counter offers.

In a news release sent out last week, the law offices of Troutman Sanders, which represents the city, stated that Schrock had refused to respond to the city’s offer.

Court documents filed by the city indicate that it has attempted to acquire the property, including furnishing Schrock with a written statement explaining the factual basis for the city’s offer, a copy of the appraisal on which the offer was based, and a copy of a title report.

Schrock has 21 days from the date of the filing to respond to the petition for condemnation. Afterward, either party may ask for a trial date, said Berry.

“I think the city intends to try to draw this to a close as soon as it can,” he said.

“I wasn’t surprised by their response … and I’m not surprised by any of the things that they’re asking for,” Schrock said Friday.

“I always hoped Bedford would take the high road and do something in a business-like fashion, and I haven’t seen that.”

Schrock said he plans to sell his property once the case is settled.

“I’d like to get as far away from Bedford as I possibly can and never return here.”

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Lynchburg News and Advance: http://www.newsadvance.com

Meeting On Use Of Eminent Domain In Flats Gets Heated: Newsnet5.com (Cleveland OH), 4/21/06

Board Passes Resolution For Use Of Eminent Domain In Flats Development
Tempers are flaring about a new plan aimed at revitalizing the Flats.

The Cleveland-Cuyahoga County [OH] Port Authority Board met Friday morning to discuss the use of eminent domain. Ownership of the 21 pieces of property owned by 11 companies would be transferred to developer Scott Wolstein.

The land would be used for Wolstein's $225 million proposed residential and retail development.

But the use of eminent domain is not sitting well with some members of the community, and tempers boiled over during the meeting.

Norm Edwards, of the Black Contractors Association, was one of those who object to the plan, and he made it clear during the meeting.

His outburst prompted him to be escorted out of the meeting.

The board passed the eminent domain resolution, which now goes to Cleveland City Council.

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Newsnet5.com: http://www.newsnet5.com

City Of Tuscaloosa Could Use Eminent Domain To Take Property: NBC-TV13 (Birmingham AL), 4/20/06

Business Owners Reject City's Offers To Buy Buildings
The city of Tuscaloosa is trying to buy out many downtown business owners as city leadership works to revitalize downtown.

City leaders plan to build a federal courthouse, public plaza and upscale retail space in the heart of downtown. The city is taking the land for the courthouse and plaza using eminent domain, but it is trying to buy out 13 business owners whose properties would be used for private development.

Tuscaloosa Blue Printing is one of the first businesses to move. Shirley Crowder's former landlord accepted the city's offer to buy the old Tuscaloosa Blue Printing store. Now, Crowder and her sister have relocated just a few blocks from their original shop.

Crowder and her sister said the benefits of having a renovated downtown outweigh the trouble of needing to relocate.

Not every business owner agrees, however.

"We've been here nearly 70 years. My grandfather opened this store between 1935 and 1940," said Ed Barton, of Tuscaloosa Furniture.

Barton said Tuscaloosa Furniture is not on the market, regardless of the offer.

"We have no interest in selling the building whatsoever," Barton said.

Legally, the city could force Barton to sell using eminent domain, but Barton pledges to fight back if the city tries. He said the amount the city is offering is a fraction of what the buildings are worth.

"The offers are extremely low," Barton said.

The owners of several downtown businesses, such as Cabiness Paint, Norris Radiator and AESC Superstore, are rejecting offers from the city.

Tuscaloosa Mayor Walt Maddox said that even though the city could legally take the businesses using eminent domain, he will work out mutually acceptable deals with any business owner whose property would be used for private development, such as condominiums or coffee shops, around the public courthouse and plaza.

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NBC-TV13: http://www.nbc13.com

Eminent Domain Case A Watershed, Opponents Agree: Arkansas News (Little Rock AK), 4/21/06

By Doug Thompson
A property condemnation case from Connecticut has become a surprising watershed in efforts to "curb judicial activism," conservative leader Phyllis Schlafly said Thursday.

Elliot Mincberg, legal director for People for the American Way, agreed Thursday the U.S. Supreme Court ruling in Kelo vs. New London has had a surprising and largely negative impact on citizens' view of the judicial system. People for the American Way is a non-profit group that opposes efforts by Schlafly and other conservative to gain more appointments of conservative judges or bar courts from hearing certain cases.

The Supreme Court's ruling in the Kelo case upheld a state court decision the city of New London could condemn property, including private homes, to make way for commercial development. The June 23 ruling divided the court in a 5-4 vote.

Schlafly came to Rogers on Thursday to speak at an issues forum of the Eagle Forum, held at 6:30 p.m. in the Pinnacle Country Club. The Eagle Forum is a conservative grassroots group founded by Schlafly in 1972. About 100 people attended the forum, which could become an annual event, according to Arkansas Eagle Forum executive director Peggy Jeffries of Fort Smith. The Arkansas chapter has held meetings on an as-needed basis since it was formed in 1977 and has never gone a year without an issues forum, Jeffries said, but is considering more regular meetings.

"I've fought the mischief of activist judges for more than 20 years, including judges who ban the pledge of allegiance and display of the Ten Commandments," Schlafly said in an interview before Thursday's meeting. She said those issue are vital concerns to most citizens, but often resulted in resolutions passed by Congress "which did nothing."

The Kelo decision, however, is having a lasting effect, convincing many doubters courts have gone too far, Schlafly said. She said she didn't expect an eminent domain case to have such a deep resonance, but is glad it does.

Mincberg said Schlafly's description of the Kelo case's effect was accurate, and that was particularly surprising "considering that the court was upholding a local legislative decision" to condemn the property. "I think it's still too early to see how this will shake out, though," Mincberg said. "Much of it appears to be resulting in action in state legislative bodies that are concerned with powers in state constitutions, and on the decisions of local zoning commissions. However, there's a good deal of anger and concern."

"It's ironic that Schlafly and others complain about courts overruling local decisions, and here we have a case where the court did exactly what they say they want: Upheld local authorities," Mincberg said. "They want judicial activism. They just want activist judges that will do their bidding."

In other issues, Schlafly said in an interview that immigration policy has brought about a clash between conservatives and the Republican Party's campaign donors. "What happened is that conservatives are demanding a bill to secure our borders," she said. "The House passed a bill because of that," a tough immigration bill that 88 percent of the Republican members of the House support.

The bill stalled in the Senate, and conservatives are "mad as hops" about it, Schlafly said: "Follow the money. The people who give contributions want money. Look at H-1B visas," visas that allow high-tech companies to bring in foreign nationals if there is a shortage of skilled labor in a particular field. "There's no shortage of engineers and computer specialists in this country. There are 100,000 to 200,000 people in those professions who are unemployed or under-employed. The visas keep getting granted so companies can pay immigrants half price."

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Arkansas News: http://www.arkansasnews.com

Eminent domain the main topic at committee meeting: Torrington (WY) Telegram, 4/21/06

By Jerry Abbott
On Wednesday morning, the Joint Agriculture, Public Lands and Water Resources Interim Committee met at Eastern Wyoming College to discuss several important topics with the most hotly contested being Wyoming’s legislation of eminent domain.

An overview panel of four individuals addressed the joint committee on Wednesday with their view of eminent domain in Wyoming. The committee members were: Tom Toner of Yonkee and Toner, LLP; Matt Micheli of Holland and Hart, LLP; Jim Magagna, vice-president of Wyoming Stock Growers Association; and George Parks, executive director of the Wyoming Association of Municipalities.

In the discussion that followed, it was apparent that there is a wide variance of opinion regarding the appropriate use of the power of eminent domain. The majority felt that eminent domain in Wyoming should be changed/clarified with new legislation.

A number of terms brought different views from the overview panel. One such term was “just compensation.” Micheli felt that the value of land taken exercising eminent domain should be determined by looking at comparable property. He said, however, that companies often end up paying a premium for private land because they want to avoid the cost of court proceedings.

“They get more because we pay more to stay out of legal negotiations,” Micheli said.

According to Micheli, the problem with a 20-year lease is that after the utility, like a pipeline, is in place, the landowner has you over a barrel. At that point, the landowner knows you do not want to take out the pipeline and is prone to charge some exorbitant price for the new lease agreement.

Another method of determining just compensation is a licensed appraiser. In this case, it was noted that land values change over time and change with the installation of telephone poles or railroad lines. Sometimes the land may only be suitable for grazing.

One approach to fair market value used a jury of peers. The idea was that peers would know what land is worth in a given area. Several land owners proposed rental or lease agreements for fair compensation over a lengthy period of time.

“This is just the initial discussion on an issue that will be looked at for a long time,” Parks said. “The Legislature will be addressing eminent domain in a way that makes it fair to all the parties.”

After the overview panel discussion, the joint committee heard from the public. The majority of testimony was from landowners or their representatives who alleged that companies had not treated them fairly and had abused their eminent domain authority.

Several presenters stated that the big companies were not willing to negotiate and had a “we are doing you a favor” attitude. One presenter said to him it wasn’t just dollars and cents. It was mentally draining.

One landowner said he had five days to “take it or leave it.” He has spent $10,000 in legal fees fighting and the case is still not settled. He said there should be some compensation for time spent in negotiations, even if a settlement is not reached.

There was great concern that the impacts to private land are kept in a single corridor. Also, owners stressed that needed electric lines, pipe lines, railroad tracks, etc., should run through federal land before condemning private lands.

Testimony by an electric company representative stressed his company’s fair use of eminent domain. He noted that electric lines could not go for miles just because a landowner did not want the lines on his land. The representative also noted that if the electric company had to pay periodic fees to land owners for the use of their land, it would be a logistical nightmare and would increase electric rates. His company provides electric service in several states.

“I would like to see land owners paid for the total time that land obtained through eminent domain is in use,” said Rep. Jim Hageman, chairman of the House Agriculture Committee and vice chairman of the joint committee. “A mutual agreement is fine but if they go through the courts, the land owner needs to be paid for the rest of time the agreement is in existence. We need to give the land owner a bit more balance.”

Hageman said that he could identify with landowners who face the realities of eminent domain. His ranch has railroad, power lines and highways through it.

“We need to strengthen our subdivision side of eminent domain,” said Gerald Geis, chairman of the joint committee. “We will have a September meeting of the joint Ag committee and use a whole day to draft legislation. Once we have the draft there will be a lot of public debate. Right to minerals supersedes other people. The constitution is pretty clear regarding mineral rights.”

Each of the legislators interviewed said there must be a fair balance of power.

“I look at eminent domain as taking away private property rights,” Sen. Curt Meier said. “It takes away personal freedom but without it there wouldn’t be any sewer, electric, water or other necessities. As a legislative body we need to strike a balance. It is not a necessary evil; it is just necessary. Yesterday I made a motion to draft a bill for public eminent domain and a bill for private eminent domain. In those bills we need to clarify six things: good faith negotiation process, allowance for leasing of land for indeterminate time periods, public purpose, just compensation, put the burden of proof on the condemner and allow for easements only for the original use. (If the easement is used for other purposes, the landowner gets a “bite of that apple” too.)”

Regarding eminent domain, the Wyoming constitution provides that: Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation.

The Wyoming Eminent Domain Act permits the state, counties and municipalities to exercise the power of eminent domain. Also, water companies, railroad companies and utility, petroleum and pipeline companies are authorized to exercise the power of eminent domain as specified in statutes.

Under Wyoming law, “any person, association, company or corporation authorized to do business in Wyoming” may condemn for “a way of necessity over, across or on so much of the lands or real property of others, as necessary for reservoirs, drains, flumes , ditches, underground water pipelines, pumping stations, canals, electric power transmission lines, railroad tracks, sidings, spur tracks, tramways, roads or mine truck haul roads.”

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Torrington Telegram: http://www.torringtontelegram.com

Crawford County legislators unveil eminent domain legislation: Arkansas News (Little Rock AK), 4/21/06

By Aaron Sadler
Two Crawford County lawmakers released a draft proposal Thursday that they said would safeguard property owners from eminent domain takings for private purposes.

Sen. Ruth Whitaker, R-Cedarville, and Rep. Rick Green, R-Van Buren, said they would sponsor legislation in the 2007 regular session to prohibit use of government eminent domain powers for private development.

The duo said a law is necessary because of a ruling last year in which the U.S. Supreme Court said the city of New London, Conn., could condemn private property for another private enterprise.

The lawmakers' proposed "Arkansas Property Owners' Rights Protection Act" would prohibit condemnation for private use or for a development that would enhance tax revenue.

Also, the proposal would amend the definition of a "blighted area" in the state's Tax Increment Financing legislation to exempt all farmland.

Republican gubernatorial candidate Asa Hutchinson praised the proposal, which he said he hoped was spurred by his call last summer for legislative action on the issue.

Hutchinson's Democratic opponent, Attorney General Mike Beebe, has said a provision in the state constitution is strong enough to protect property owners. The constitution allows for eminent domain takings for public purposes only with just compensation.

"Our state constitution already protects private property owners, but (Beebe) has said in the past and he continues to be open to legislation to restate and clarify that," Beebe campaign spokesman Zac Wright said.

Whitaker said the draft legislation was not intended as fodder for political candidates.

"We have assured everyone that has asked, the media in particular, it is not for any candidate," Whitaker said after unveiling the proposal at a state Capitol news conference. "This is for the citizens of the state by the legislators of the state. Period. End of sentence."

Their intent was to ensure Arkansans and the media that legislators were working on a response to the Supreme Court ruling, Whitaker said.

"I applaud their efforts in addressing what I see as a problem across our nation and something that should be addressed in Arkansas," Hutchinson said. "I spoke early on that we need to take action in Arkansas and that we need to provide protection from eminent domain abuse."

Whitaker and Green were joined by Reps. Shirley Walters, R-Greenwood, Daryl Pace, R-Siloam Springs, Bill Sample, R-Hot Springs Village and Bob Mathis, D-Hot Springs; and Sen. Steve Higginbothom, D-Marianna.

Mathis is term-limited and Higginbothom is not running for re-election this year.

Green and Whitaker said they have discussed eminent domain legislation for about two years and the need for a state statute became urgent after the Supreme Court ruling.

The draft legislation could not have been completed in time for a special legislative session earlier this month, Green said, although he considered asking Gov. Huckabee to include it in his special session call.

Whitaker said the bill would have been inappropriate to consider during a special session on education.

"We didn't have the bill in its final draft form, and something of this magnitude and importance, we just didn't feel the need to rush," Green said.

They said several instances illustrate the need for legislative action, contending that some municipalities or state agencies have or have threatened to abuse existing eminent domain law.

Green said a Little Rock woman was warned last year that her property may be taken for the purpose of constructing a nonprofit organization's headquarters. Another "blighted" tract of land taken in Fort Smith has set empty for years, he said.

Both said they were disturbed by a Polk County jury verdict awarding no money to a Russellville landowner whose property was taken by the Arkansas Highway and Transportation Department for an Interstate 40 off-ramp.

Highway Department spokesman Randy Ort said state law currently allows the department to offer no money for eminent domain takings if the value of remaining land will be significantly enhanced by the condemnation.

"That property before did not have access to the interstate," Ort said. "It's now considered a prime spot. The law allows a property owner to be compensated in benefits to the remainder of the property. This is not something we apply very often."

Ort said the land in question, about 61 acres, was appraised by the Highway Department at $1.22 million before the highway improvements. An after-improvements appraisal set the value of the landowner's remaining 53 acres at $2.8 million

Green and Whitaker's bill would ensure that landowners are compensated the value of the property taken, notwithstanding the affect of the taking on the value of adjacent property.

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Arkansas News: http://www.arkansasnews.com

Eminent domain question goes to voters: Boston (MA) Globe, 4/21/06

[New Hampshire] lawmakers say it's time to hear what the public thinks of eminent domain. Voters headed to the polls this November will be asked to decide whether the state constitution should be changed to make it harder for the government to seize land through eminent domain.

Measures proposing such a constitutional amendment already passed the House and Senate by 60 percent majorities. Now it goes to the voters, where it must win a two-thirds majority to pass.

The eminent domain question was sparked by a U.S. Supreme Court decision last year that supported an effort by New London, Conn., to seize private homes for a commercial development.

Legislators already have made changes to state law to prevent use of eminent domain to benefit private developers, but supporters of an amendment say it is needed to prevent the courts from changing the interpretation of the laws.

"Laws can be changed very easily, but a constitutional amendment once it's passed by the people is there for a long time," Senate President Ted Gatsas said. "I think the people have a right to be heard on this issue."

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Boston Globe: http://www.boston.com

Bloomberg Says Power to Seize Private Land Is Vital to Cities: New York (NY) Times, 5/3/06

By Diane Cardwell
Wading into yet another contentious national debate, Mayor Michael R. Bloomberg came out vigorously yesterday in support of the government's right to seize property by eminent domain, and said Congressional attempts to limit those powers would have dire consequences for the nation's cities.

His remarks come in the wake of a 2005 Supreme Court decision establishing the right of localities to seize properties for economic development projects. That ruling set off a firestorm that has spread across the country and in New York, where the potential use of eminent domain has drawn opposition in such projects as the proposed Atlantic Yards complex in Brooklyn.

"You would never build any big thing any place in any big city in this country if you didn't have the power of eminent domain," Mr. Bloomberg said, speaking at a ground-breaking ceremony in Times Square, which was redeveloped in part through government condemnation of private property. "You wouldn't have a job, neither would anybody else standing here today. None of us would."

Of late, Mr. Bloomberg has ramped up efforts to influence a range of national policy issues including immigration and gun control. But on this issue he is taking a position that could be at odds with the feelings of New Yorkers wary of development or suspicious of government efforts to seize private property.

The mayor is most concerned that the pending legislation would cut off all federal economic development funds to state or local governments for up to two years if they use eminent domain in private development projects. Bloomberg administration officials warned that passage of the bill in Congress could, at a minimum, mean the loss of hundreds of millions of dollars and almost 100,000 jobs for the city.

"There are some in Albany and Washington," Mr. Bloomberg said, who do not "appreciate the crucial importance of eminent domain to our ability to shape our own future. They mistakenly equate it with an abuse of government power, and ignore the benefits that come to us all from responsible development of formerly blighted areas."

The bill, passed last year by the House of Representatives and now pending in the Senate, is one of many federal and state measures aimed at constraining the government's power to seize private property that have been proposed or adopted in the wake of the Supreme Court ruling.

Since the ruling, which upheld the authority of New London, Conn., to condemn homes to allow for private redevelopment, conservative and liberal members of Congress have joined together to fashion new federal limits on eminent domain seizures. At the same time, lawmakers in nearly every state have advanced bills and amendments, addressing an issue that is often emotionally fraught among their constituents.

"The vast, overwhelming majority of Americans are opposed to using eminent domain," said Dana Berliner, a senior lawyer at the Institute for Justice, a leading advocate for curtailing its use.

"There's still in the United States a very strong ethic that you work hard so that some day you or your children can own a home," she said, adding that using eminent domain for private development makes a mockery of those aspirations.

"The only people who are really supporting it are government, planners and the developers that take advantage of eminent domain," she said.

In New York, for example, the proposed use of eminent domain by the developer Forest City Ratner to bring a basketball arena and a swath of residential, office and commercial towers to the Atlantic Terminal area touched off fierce opposition, especially in surrounding neighborhoods.

The concept, though, proved unpopular elsewhere as well. A New York Times poll in April 2004 found that only 18 percent of city residents favored the construction of a new basketball arena in Brooklyn it if it required the demolition of homes and businesses. (Forest City Ratner is the development partner of The New York Times Company in building its new Midtown headquarters, a project that itself involved government condemnation of private property.)

To the Bloomberg administration, however, the wheels of economic development would grind to a halt without the use of eminent domain. Low-cost housing developments like the Nehemiah homes in East New York, Brooklyn, and Melrose Commons in the Bronx would not have been built and Times Square would remain "the poster child for a seedy, dangerous, unattractive, porno-laced place," Mr. Bloomberg said.

City officials also argue that New York State law protects property owners from abusive uses of eminent domain because it requires property to be designated as a blight before it can be seized for private development and because people have access to the courts. But many critics dismiss that argument.

"New York's blight designation is a joke," Ms. Berliner said. "You can call anything in the state blighted under New York's definition."

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New York Times: http://www.nytimes.com

Columbia’s Domain: New York (NY) Sun, 5/3/06

Editorial
While [New York] Mayor Bloomberg, speaking from Father Duffy Square, was offering another discourse on the importance of eminent domain as a tool in private development, a not so little eminent domain drama was unfolding uptown, where Columbia University is seeking to expand into West Harlem and is being resisted by a business owner, Nicholas Sprayregen.

He recently sent each of the university’s trustees another letter asking them to respect his property rights. The latest word was that the letters were received Monday, but as of yet there has been no response. If Mr. Sprayregen’s past experience is any guide — he’s been down this road three times already — the
silence will grow only more deafening. Columbia wants a site roughly between Broadway and 12th Avenue from 125th Street to 133rd Street, and it expresses willingness to seek the aid of the state.

Mr. Sprayregen fears that they will get it. Columbia has assembled deeds to about 70% of the properties in the proposed footprint for its new West Harlem campus, which it calls Manhattanville. Of the remaining 30% of the properties, Mr. Sprayregen owns the largest chunk of any private property owner. Most of it is devoted to his family’s self-storage business. Mr. Sprayregen professes no interest in selling out, hoping instead to pass the business on to his children. He worries that relocation is not a feasible option since the success of his self-storage operation depends on physical proximity to his customers. He worries about the impact of closing the business on those customers, not to mention his 25 to 30 employees and his commercial tenants, which include a supermarket and a hair salon.

The university makes some compelling arguments. Columbia is certainly an important institution for the city. It has been here since New York was a colony. Its proposed expansion at Manhattanville would, it says, bring thousands of jobs and millions of dollars to the city’s economy, while giving a new face to a neighborhood that hasn’t always been in the best shape. Administrators claim that assembling a contiguous campus is key to its educational mission by enabling better cooperation between scholars in different departments that might otherwise be scattered around the city.

Ordinarily, the market would sort all this out, but New York’s eminent domain laws make this a far from ordinary situation. Because the university reserves the right to ask the state to seize Mr.Sprayregen’s land in the name of “economic development,” the situation has become anything but a normal business negotiation. The deck is stacked in favor of Columbia getting all and Mr. Sprayregen getting scant compensation. Even if Columbia doesn’t need to get the state to invoke eminent domain in the end — and that process is invariably more expensive and time-consuming than a private purchase — the threat encourages landowners like Mr. Sprayregen to sell out sooner than they ordinarily would.

Not only is this bad for property owners, but it can be bad for the surrounding
communities. Such,at least,has been the observation of none other than a professor of clinical psychiatry and public health at Columbia,Mindy Fullilove. In a recent book, “Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It,” Dr. Fullilove describes her experiences touring cities that were transformed by urban renewal projects. When we spoke to her this week, she faulted Columbia for not understanding the damaging effects a project of this sort can have on the surrounding community. She suggests that Columbia has not been effective enough at communicating with the neighbors. With the possibility of eminent domain in the cards,we’d posit, it doesn’t need to.

As it stands, almost two years ago, the deputy general counsel of Columbia, Howard Jacobson, executed a letter with the Empire State Development Corporation in which the school and the ESDC agreed to consider condemning some of the properties on the site. The university now claims that it is not proceeding with efforts to get the state to invoke eminent domain, but even if it is not — Mr. Sprayregen points to the 2004 letter as evidence that it is — the school refuses to close the door on the possibility. No doubt all of this is being watched in Washington, where the Senate is in a knot over a bill that passed the House overwhelmingly and would put a stop to eminent domain abuse. This is a time for advocates of the use of eminent domain to use that power very gingerly.

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New York Sun: http://www.nysun.com

Some Rockford IL cases involving eminent domain: Rockford (IL) Register Star, 4/20/06

A dispute over a 23-acre parcel for a second Hononegah High School in Rockton heads back to court April 27. The Hononegah School Board wants land near the intersection of McCurry and Willowbrook roads, but officials and owner Chris Hodges were unable to agree on a sale price.

Ed St. Germain of Machesney Park accepted $167,000 — the village even chipped in $2,300 for his moving expenses — in December 2005 for his mobile home and land along Illinois 173, which is in the middle of a retail boom.

The Winnebago Park District started eminent-domain proceedings to buy Roy Gayle Baseball Complex when the Texas-based funeral services company that owns the land wouldn’t budge on the asking price. After an initial court hearing in September 2005, Service Corporation International said Rockford Pony Baseball could continue to play ball for an indefinite period while negotiations for the land sale continue.

Rockford officials invoked eminent domain in 1999 to acquire Los Torres Market on South Main Street to develop a $7 million Gray’s Fine Foods supermarket. Owner Guadalupe Torres sold the property to the city for $224,000 in 2000; he died in 2003.

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Rockford Register Star: http://www.rrstar.com

Eminent domain bill may be sidelined: Denver (CO) Post, 4/20/06

The sponsor of a proposed constitutional amendment is upset with changes made in the House
By Chris Frates
A proposed constitutional amendment to prevent governments from taking land for economic development purposes could be killed today unless major changes are made, the sponsor said Wednesday.

House lawmakers gave preliminary approval to House Concurrent Resolution 1001 on Wednesday, but they changed it so significantly that Republican Rep. Al White, the bill's sponsor, said the final product "is just abhorrent."

"It goes in the opposite direction of where I wanted to go," the Winter Park lawmaker said. "I don't have any faith that it will be amended in the Senate so I'm going to kill the bill."

But Democratic House Speaker Andrew Romanoff of Denver said he may delay a final vote on the bill to see if a consensus can be reached.

White said he would not allow the bill to pass the way it stands now.

If White kills his proposal, he said, he and other supporters would continue the effort to petition a less refined proposal onto the ballot this November.

HCR 1001 would have allowed governments to condemn a property in a blighted area if necessary to improve the area, even if the property itself is not blighted. It would have also allowed for consensual condemnation, White said.

But Democratic Rep. Paul Weissmann of Louisville won narrow approval for an amendment that made several major changes, including one that would allow governments to condemn whole swatches of property.

Weissmann said he was trying to reach a balance between private property and public use.

Meanwhile, a House committee unanimously passed a bill detailing the requirements a private toll road developer would have to meet before building a road.

"It's tough to balance this stuff, but I think this sets up a process that anyone affected by a toll road would have lots of opportunity to comment on it and affect the decisions," said Democratic Rep. Jack Pommer of Boulder, the bill's sponsor.

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Denver Post: http://www.denverpost.com

Who's exempt from eminent domain? Free Market News Network, 4/20/06

Missouri legislators made an attempt to clarify state eminent domain policy last week; however, the debate quickly broke down into a debate over special situations for minority groups, according to the Kansas City Star.

Last year the U.S. Supreme Court ruled that state and local governments could use eminent domain to confiscate property for redevelopment. The decision has forced state and local lawmakers to create their own property rights laws. In Missouri, the eminent domain debate quickly spiraled out of control as lawmakers began to propose non-uniform exceptions to the state’s right to confiscate property.

First, the House unanimously approved legislation to exempt any house of worship from being subject to eminent domain, citing Constitutional protections of religion. After witnessing the success of that legislation, another bill was proposed to exempt gun retailers with the argument that the Second Amendment should protect them. Next, supporters of the health care industry and stem-cell research proposed that research facilities and hospitals should be exempt because they provide care for people with chronic diseases and save lives.

The debate continued for five hours before a joint bill to exempt both research facilities and gun retailers was voted down. The spiraling debate over private property is not unexpected. Legal historians point out that the right to private property is so fundamental to the rights defined in the Constitution, that when eminent domain is questioned all other rights are questioned as well.

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Free Market News Network: http://www.freemarketnews.com

State Cracking Down On Eminent Domain: CBS-TV2 (Chicago IL), 4/19/06

[Illinois] lawmakers are moving forward with even stronger limitations on local governments' ability to take private property for economic development.

The House voted 85-to-six today for the measure brokered by lawmakers and municipal officials.

It's in response to a U.S. Supreme Court decision last year that expanded governments' eminent domain powers.

The newest version would make governments meet a stronger burden of proof for why private property should be taken.

In cases where that burden is met, the measure would give those private owners more money for giving up their property.

The measure now heads back to the Senate, which approved a different version last month.

But supporters of the House plan say it is more acceptable to municipal officials who feared the Senate version would hurt redevelopment of blighted areas.

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CBS-TV2: http://cbs2chicago.com

Local Family Fights County to Protect Land from Eminent Domain: WVNS-TV59 (Ghent WV), 4/18/06

The Pocahontas County commission is threatening to take a family's land to build a sewer treatment facility
By Natalee Nabors
Pocahontas County faces a growing sewer problem.

"The stream is now being polluted by the several inadequate systems, including numerous packaging plants and the Snowshoe treatment plant in itself," said Joel Callison, president of the Pocahontas County Commission.

Now, the county is threatening to take land from private owners, the Sharp family, to build a sewer plant.

It's land the family has owned for more than 200 years, and it has a lot of history.

"The log cabin that Robert E. Lee visited during his first campaign as General through Pocahontas County sits on this land," said Tom Shipley.

Shipley is a member of the Sharp family and is leading the battle against the county commission in an effort to keep the family’s land.

They say most of the county's sewage problem can be traced to one source, the Snowshoe ski resort, and he says it’s only fair that Snowshoe bear the cost of fixing the problem.

"There is not much here, except Snowshoe, and that's why it's so odd that they would want to come 14 miles off the top of the mountain to come and put a sewer treatment plant on our farm," said Shipley.

And there are other concerns. Sinkholes throughout the property have some questioning whether the land is even safe enough to support a sewer treatment plant.

The family is also concerned about trout that breed in a nearby stream and how the odor from a nearby plant would effect their bed and breakfast business across the street.

"This burden should never be placed on a family," Shipley says.

There is some hope for the family. At Tuesday's county commission meeting, engineer George Phillip proposed a new plan.

It would use state property and would avoid the expense and headache of a legal battle.

"I proposed today to the county commission that we partner with WVU College of Engineering to build a timber frame bridge using grant money available, so this site can be used as an alternative to the Sharp Farm site," said Phillips.

The family hopes the county will go with Phillips' plan or come up with another that spares their land.

"We're not trying to stop economic development. We're not trying to stop Snowshoe. We can't understand why this is happening and it's not necessary," said Shipley.

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WVNS-TV59: http://www.wvnstv.com

Legislature failed property owners on eminent domain: Decatur (AL) Daily, 4/19/06

Editorial
Most voters wanted two things from legislators when they went to Montgomery in the winter to begin a new session.

Voters didn't want additional taxes, and they wanted tighter control over government and private parties' ability to condemn their land.

Legislators, in an election year, were not about to raise taxes, and managed to give some people a brief reprieve from sales taxes on the first weekend in August when parents do heavy back-to-school buying.

But they couldn't overcome the pressure from city and county government lobbyists and developers who see new restrictions on use of eminent domain as an impediment to progress.

Legislators had lame excuses for the proposed constitutional amendment not going on the July ballot for voters to approve. One reason, they said, was that the House-Senate compromise came so late on the last night that not enough House members remained in the chamber to pass the bill.

Another reason, they said, was that the proposal would have been on the July 18 primary election runoff ballot when fewer people tend to vote.

Obviously, not enough House members cared about the bill passing for them to stick around for the vote. So, take that you property owners who vote!

One sure way to spice up the run-off election would have been to have the proposed amendment on the ballot.

The U.S. Supreme Court ruling in a Connecticut case that allowed private developers to seize waterfront land for redevelopment frightened property owners everywhere. After the court's decision last year, the Legislature rushed through a bill that gives more protection but it leaves many property owners feeling vulnerable.

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Decatur Daily: http://www.decaturdaily.com

Idaho Group Urges Support for Measure Blocking Eminent Domain Seizures: Agape Press (Tupelo MS), 4/19/06

By Allie Martin
A Christian values and religious freedom advocacy group is urging pastors, their congregants, and others in Idaho to support a petition drive to protect churches and church members' private property from eminent domain abuses.

Last year, the U.S. Supreme Court ruled in the case of Kelo v. City of New London, Connecticut, et al. that the Constitution of the United States does not prevent government officials from condemning churches and private homes under eminent domain and seizing the property for commercial development projects.

However, individual states can pass laws prohibiting abuses of "eminent domain" and of the government's condemnation powers. The Kelo decision has prompted citizen activists in a number of U.S. states to push for such protections and to urge their lawmakers to move on enacting the necessary legislation.

Pastor Bryan Fischer is executive director of the Idaho Values Alliance. He says a petition drive has been initiated in an effort to put on the November ballot a proposed state law that would protect individuals and churches from entities seeking to exploit eminent domain to take their property. The proposal would prohibit local governments from condemning churches, homes, or businesses for private development projects.

"Any church in America can be vulnerable to eminent domain abuse," Fischer observes. "In fact," he notes, "the more attractive the location of a church is, the more vulnerable it is to abuse because greedy local governments can look at the best locations as prime spots for commercial development."

The Idaho Values Alliance spokesman believes the Kelo decision placed the free-speech rights of religious individuals and institutions at stake. "The motivation seems to be clear," he notes. "Churches generate no property tax revenue for local governments, and businesses do; so it's made churches especially vulnerable to eminent domain abuse."

Organizers must gather 70,000 signatures by April 30. Fischer is mobilizing an army of volunteers to gather the needed signatures by the deadline in order to get the proposed law on Idaho's November ballot.

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Agape Press: http://headlines.agapepress.org

City of Bedford Seeks to Exercise Eminent Domain Powers: Lynchburg (VA) News and Advance, 4/17/06

By Janet Nguyen
The city of Bedford [VA] has asked Bedford County Circuit Court to use eminent domain to acquire about 44 acres of land that has been polluted by the city’s old, leaking landfill.

The property belongs to Mike Schrock of 1477 Draper Road. He filed a $2.5 million lawsuit against the city in Bedford County Circuit Court in February.

Schrock’s lawsuit states that the city’s operation of the now-closed landfill has caused “harmful and toxic chemicals, hazardous substances and pollutants from and in the landfill … to negatively impact the air, the groundwater, and the surface water on, within, and under the Schrock Farm.”

The city believes it could better clean up groundwater contamination if it owned the property. The old landfill opened in the 1960s and closed in 1994.

The city has attempted to acquire the tract of land for several years, but Schrock has said it was not feasible to sell just a portion of his land. Instead, he offered to sell his entire 92-acre farm, but was unsatisfied with the $300,000 the city had offered.

“I did not feel that was a reasonable or realistic offer,” said Schrock Monday.

Instead, he agreed to allow the city to test the groundwater on his property as long as it shared the results with him.

Schrock said in July that the city had offered him $132,000 for the 44-acre tract.

“Our offer is fair based on the value of the property and the actions approved by DEQ (the Department of Environmental Quality) to address any alleged impact on Schrock’s property,” said John W. Daniel II of Troutman Sanders, which represents Bedford City, in a news release.

Former city manager Craig Meadows said in July that the city and county had discussed using eminent domain if Schrock refused to sell.

Under eminent domain, the government can seize private property for a public use.

“We prefer to reach a settlement with Mr. Schrock,” said Daniel in the press release.

“They can attempt it, but I don’t know how they can legally prevail in the courts,” said Schrock.

According to the release, Schrock has refused to respond to the city’s offer and has refused to make a counter offer.

“That is a totally untrue statement. I have made them several counter proposals and they know exactly what those counter proposals are. They chose not to accept them,” said Schrock on Monday.

“They’re trying to get the property because they don’t want to pay for it, so they’re using eminent domain as a backdoor approach,” said Schrock.

“We have tried to resolve this matter without delay and in an amicable way,” said Daniel.

“The city has a responsibility to the taxpayers to insist on a reasonable solution to this issue that is fair to the citizens.”

In March 2004, the city announced that six homes along Bell Town Road had wells contaminated by leakage from the landfill.

The contamination triggered the city to construct a waterline that would supply city water to the six homes. As part of the city’s corrective action plan, the waterline was completed in December.

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News and Advance: http://www.newsadvance.com

Improving Tennessee's Eminent Domain Laws: The (Chattanooga TN) Chattanoogan, 4/17/06

Opinion
By Susan Lynn
This Session the Tennessee General Assembly is at work trying to guarantee and reassure the citizens of their private property rights where eminent domain is concerned. More than 60 bills seeking to protect the public were filed in February. Some of the ideas attempt to change the process; some attempt to amend definitions. Very quickly, one bill known as the Farm Bureau bill, rose to the top and passage seems imminent. Like all of us, farmers want protection from seizure of their private property for private economic development.

While my respect for the Farm Bureau is very great, after being worked through committee, this bill essentially guarantees very little protection for Tennesseans when it comes to eminent domain. To quote Sandra Day O'Connor in her dissent of the Kelo decision, the "specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

The bill states that 'public use' shall not include either private use or direct public benefits deriving from private economic development or private commercial enterprise, including the benefit of increased tax revenue and increased employment opportunities - except in the case where eminent domain is used for; roads, public utilities, private utilities, housing authorities, community development agencies for urban renewal or redevelopment plans; or for industrial parks. Looking at that list, I really can't think of any exception for private economic development by eminent domain that the bill leaves out.

The bill also sets up a mechanism for taking land for industrial development. One merely makes an offer that is declined and then heads to Nashville to the Department of Economic Development for a certificate of need. Tennesseans with family farms reading this article who hope to hand their land down to their offspring may wonder how well the Department of Economic Development will protect their property from a seizure for private industrial development. One may ask why the certificate shouldn't come from the Department of Agriculture.

The opening clause of the bill purports to quote Article 1, Section 21 of the Tennessee Constitution by stating there should be no use of eminent domain "unless the taking is for public use and accompanied by just compensation" but this restatement omits one other very important criterion "the consent of his representatives." You see the Tennessee Constitution includes an accountability clause. Elected representatives must guard their constituent's interests and protect their rights while at the same time balancing the "common good." Faced with such a decision, most representatives would very soberly consider the rights of their voter verses the benefit to the public from such a seizure and therefore vote accordingly.

Another aspect of the bill that remains suspect is a clause that allows for the disposal of previously seized property by resale to a private person or corporation. Certainly fairness would dictate that any land acquired by eminent domain that the government wishes to dispose of should be offered to the previous owner, if living, for the right of first refusal.

Several other areas of the bill cause me to pause and wonder just what this bill is trying to secure or protect for the public. The Kelo decision shocked many of us and shattered our traditional understanding of the government's eminent-domain powers and the rights of private property owners. Traditionally, public use includes a public highway, public school, or a military base. Public use has also included firms and government entities that offer government regulated services to the public and need property for right of way including water, railroads, and power generation.

The legislature must protect the citizens of Tennessee against the potential for abuse at the hands of our own government. Tennesseans should insist that the law require developers to purchase private property on the open market. The process this bill sets up actually increases the likelihood that an unethical state official could abuse eminent domain for personal gain or political favors. Please contact your state representatives and encourage them to pass an eminent domain bill that strengthens the hand of property owners.

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The Chattanoogan: http://www.chattanoogan.com

Susan Lynn is a Tennessee State Representative

Proposed amendment tackles eminent domain: Contra Costa (CA) Times, 4/18/06

By Jordan Rau and Virginia Ellis
California law restricts the use of eminent domain to areas that the government has decreed are blighted.

A Democratic proposal pending in the California Legislature would tighten the rules of how property could be seized. But it does not go far enough for Republicans, whose stricter measures have been rebuffed in the Democratic-led body, and they are trying to take the issue to the November elections.

Republican Sen. Tom McClintock has made the subject a central part of his campaign for lieutenant governor. In addition, property rights backers have submitted a number of proposed initiatives. The one considered to have the best chance of making it on the November ballot is a constitutional amendment called the "Protect Our Homes Act." The Fund for Democracy, a New York-based property rights group whose leaders include libertarian developer and term limits advocate Howie Rich, last month contributed $1.5 million for signature collection.

Dave Gilliard, a Republican consultant working on the effort, said the campaign has collected nearly half a million of the 598,105 signatures necessary to place it on the ballot, and expects to file the petitions for verification with elections officials next month.

Like some of the other ballot proposals, the Protect Our Homes Act would amend the Constitution to ban the seizure of property for private uses. But it would also expand the definition of who is affected by government takings in ways that would allow neighboring property owners to receive compensation if their assets become devalued as a result — a potentially costly change for governments.

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Contra Costa Times: http://www.contracostatimes.com

Eminent domain foes’ scare ad ignores steps courts have taken: East Valley (Mesa AZ) Tribune, 4/17/06

Editorial
An inflammatory radio ad was broadcast across the state [of Arizona] last week, in an effort to pressure the Legislature into rushing out a badly drafted state constitutional amendment related to private property rights.

We have explained previously our concerns with the amendment and its possible negative impact on proper zoning regulations. But we alarmed now that groups with noble intentions are using misleading information to pollute the debate on this critical topic.

The radio ad was created by Americans for Limited Government and Arizona HomeOwners Protection Effort to promote legislation that would add new restrictions on government use of eminent domain to seize property. The bill, and a companion initiative drive, are part of a nationwide response to last year’s unsettling decision by the U.S. Supreme Court that the federal Constitution doesn’t forbid government from taking a person’s home or business and giving it to a developer to generate more tax revenues.

The radio ad reflects generic, nationwide concerns about the issue instead of recognizing we have much stronger protections here in Arizona. It begins by describing how “grandma’s ho has been seized by the government . . . jus so they can build another strip mall.” The narrator then says the only way to preven this from happening again is for the Legislature to adopt SCR1019.

Lori Klein, a spokeswoman for Arizona HomeOwners Protection Effort, admitted proponents of SCR1019 want the Legislature to act because the initiative drive might not gather enough petitions to qualify for the November ballot. But Klein defended the ad’s approach by saying we can’t trust the courts.

“When you have laws that are open to interpretation, we need to have statutory rules that make it clear how to protect private property rights,” Klein said.

That might have been a valid concern years ago, when some cities were taking property for economic development and no one really challenged the condemnations as unconstitutional. But recent cases involving Bailey’s Brake Shop in Mesa, the Pillow family of Tempe and the Tempe Marketplace project have changed the situation dramatically. A series of court decisions has clearly established that our constitution bars the use of eminent domain to benefit another private party.

Unless judges start ignoring these landmark rulings, grandmas in Arizona never will have to worry about city hall taking their homes to build shopping malls.

We urge private property rights advocates to be more responsible with their efforts to encourage change. Otherwise they risk alienating potential allies who understand what Arizona law does, and does not, allow.

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East Valley Tribune: http://www.eastvalleytribune.com

Eminent domain is dead! (Long live eminent domain!): The Boston (MA) Globe, 4/16/06

Opinion
By David Barron
Last summer in Kelo v. City of New London, the Supreme Court upheld a redevelopment plan for New London, Conn., that involved seizing private homes to enable commercial development near a major pharmaceutical company. New London argued the plan would jump-start the stalled local economy, and the decision, a 5-to-4 vote, affirmed the government's power under the Consitution to use eminent domain to take private property for economic development as long as just compensation is paid.

No sooner had the court issued its decision than widespread opposition arose. Spurred by the warning in Justice Sandra Day O'Connor's dissent that the ruling threatened to trade in every Motel 6 for a Ritz, press accounts played up the likelihood that cities would soon seize middle-class homes and small businesses to enhance the local tax base. The result was a broad legislative backlash that has been portrayed as stunningly successful.

A recent front-page headline of The New York Times announced, ''States Curbing Right to Seize Private Homes." It joined other recent stories-including a similar piece on the front page of USA Today-that suggest the Supreme Court's decision will soon be a dead letter. ''It's open season on eminent domain," Larry Morandi of the National Conference of State Legislators told the Times. And that's more or less how the Times and others have played it.

But while virtually every state, including Massachusetts, is considering legislation to curb Kelo, a closer look at the legislative response reveals a different story. As moving as the plight of holdouts like the Connecticut resident who was the lead plaintiff in Kelo may be, Americans have long been of two minds when it comes to property rights. On the one hand, there is the old notion that ownership is inviolable, a home is a castle, and the government has no business messing with private property. On the other hand, there is the equally old notion that no one is an island and that the value in any individual's property is deeply interconnected with the health of the community as a whole. Eminent domain may be a power that people love to hate, but it's also one that communities that are serious about planning are rightly reluctant to restrict-and one that should not have to be used only in poor and minority neighborhoods, where residents usually have the least amount of political influence.

As a legal matter, the Constitution says the government can only take private property for a ''public use," but more than a century of precedent interprets that requirement to mean government may use eminent domain for a ''public purpose." Just as government took private property to promote private railroads and mills a century ago, it has done so in recent decades to promote commercial building to revitalize urban areas, from the Inner Harbor in Baltimore to Lincoln Center in New York City.

New London's effort to address its severe economic distress by using eminent domain for private waterfront development seemed well within bounds to the court's majority, even though it involved taking homes in good repair. Nevertheless, the decision came as a shock to many unfamiliar with constitutional case law, generating a groundswell of opposition spanning the usual left-right divide.

Anything opposed by both the conservative Institute for Justice and the liberal NAACP would not seem long for this world, the authority Kelo upheld has thus far survived largely unscathed. As many as 50 anti-Kelo bills are pending in some states, and, at last count, 14 states have enacted laws against it. But to this point, only one has a new law that actually limits eminent domain to government-owned development projects, such as roads, schools, and airports. And that state is South Dakota - which has a legislature that is not big on nuance lately, having just banned abortions in all cases except to save the life of the mother.

The other anti-Kelo state statutes all have more bark than bite-and, interestingly enough, tend to allow exemptions for eminent domain aimed at redevelopment in blighted areas. For example, Alabama's, the first to pass, provides that eminent domain can't be used for economic development except ''on a finding of blight in any area covered by any redevelopment plan or urban renewal plan." That means even a fine house in a ''bad" neighborhood may be taken as part of a broader redevelopment project.

Texas's law contains strong pro-property rights rhetoric before providing that taking private property and handing it to private developers is just fine so long as the private benefit results incidentally from community development or urban renewal efforts aimed at improving ''blighted areas." Another section permits eminent domain in connection with a pending stadium project for the Dallas Cowboys, while yet another allows it for constructing a museum.

Idaho, Kentucky, West Virginia, Utah, and Wisconsin have enacted similarly porous legislation. Indiana and Georgia arguably have somewhat stricter new laws, but they, too, exempt blighted properties, and Indiana's law expressly permits takings for technology parks. Laws passed by Colorado, Delaware, and Ohio are even less aggressive, and Michigan has simply kicked the issue to voters by calling for a constitutional referendum. Thus, the Institute for Justice, which once seemed poised to win a clean sweep, now merely touts the fact that many states have ''in some way" responded to Kelo.

Of course, it's only been one year. But the pending legislation is itself riddled with carve outs in which the very thing that supposedly must be stopped-using eminent domain to transfer property from one private person to another-is expressly permitted.

For its part, Congress has enacted one symbolic anti-Kelo bill, while another bill has passed the House that bans federal funds to states that do not bar the kind of takings Kelo permits. But the federal government is on the hook for lots of money to redevelop areas ravaged by Hurricane Katrina, and eminent domain involving transfers to private developers is likely to be a key feature. What's more, many real estate developers, known to make political contributions, strongly defend the decision. It's unlikely that federal legislation restricting eminent domain will go too far.

But it's more than the developer lobby that's slowing the backlash. Large numbers of communities in America are in need of revitalization while others are eager to maintain themselves as lively, attractive places. Eminent domain is one tool for improving the conditions of neighborhoods. One of our own area's most successful community development organizations, the Dudley Street Neighborhood Initiative, for example, lobbied to be given the power of eminent domain in the 1980s so it could revive a long-depressed neighborhood in Roxbury. By taking privately owned abandoned property, and developing housing in its place, the private community group was able to do just that.

But while the real story of the Kelo backlash should be welcome news for those concerned about the future of cities, the power it upholds can be abused. The potential for corruption is great, and, as Justice Clarence Thomas powerfully argued in his Kelo dissent, poor and minority communities may be hurt by redevelopment plans that claim to help them. The federally subsidized urban renewal programs of the 1950s cleared many close-knit neighborhoods in order to promote private development. The dubious results, combined with the massive displacement that resulted, led many to refer to urban renewal derisively as ''Negro removal."

The fact that many anti-Kelo bills restrict the use of eminent domain to blighted areas should therefore trouble even the decision's supporters. ''Blight" is often code for black and poor. One of Kelo's striking features was that it permitted a city to use eminent domain even without showing that the targeted neighborhood was blighted, so long as it implemented a real plan for redevelopment. In that way, the court indicated cities should not have to do redevelopment on the backs of poor and minority residents in order to comply with the Constitution. There's nothing to cheer in a legislative reaction that would now limit local governments to doing just that.

Rather than banning eminent domain for economic development, or restricting it to ''bad" neighborhoods, we should focus on reforms that would ensure the communities in which it is so often used have a say in the planning process. That means ensuring those who are least likely to have a voice in economic redevelopment get one.

Shifting decision-making power over eminent domain from unaccountable redevelopment authorities to local city councils is a start. So, too, is requiring community development corporations to be part of the planning process and to make that process meaningful. But prohibiting our cities and towns-and the poor and minority residents within them-from reaping the benefits of a powerful development tool that can attract new jobs and improve deteriorating conditions makes little sense.

Thankfully, the Supreme Court has enabled us to determine how useful a tool eminent domain can be. Equally important, the opposition Kelo stirred has not yet resulted in the overreaction that once seemed inevitable.

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The Boston Globe: http://www.boston.com

David Barron is a professor at Harvard Law School