5/07/2007

Eminent Domain Case at the N.J. Supreme Court - Gallenthin Realty v. Borough of Paulsboro: New Jersey Eminent Domain Blog, 4/24/07

By Bill Ward

On Thurday, April 26, 2007, at 9:30 a.m., the New Jersey Supreme Court will hear oral argument on the case of Gallenthin Realty Development Inc v. Borough of Paulsboro. This case has been characterized on the front page of the New Jersey Lawyer (April 23, 2007) as “perhaps the most significant eminent domain case to reach the high court in decades.” (See New Jersey Lawyer, "Eminent Domain: Showdown at the Court" by Robert Seidenstein.)

This case come to the Court through a petition for certification granted by the Court in October 26, 2006. Gallenthin Realty Development is represented by Peter Dickson of the firm of Potter & Dickson in Princeton. Dickson alleges in his brief that the case raises questions regarding the abuse occurring under the 15-year old Local Redevelopment Housing Law, where land is taken that is not blighted as that term is used in the New Jersey Constitution of 1947, Article VIII, Paragraph III. Dickson further alleges that the legislature has gone beyond the state constitution in enacting the LRHL in 1992 and in its definition of blight (NJSA 40A:12A-5 a-h).

In a unanimous opinion decided on July 14, 2006, the Appellate Division of the New Jersey Superior Court rejected all of Gallenthin’s arguments regarding the propriety of the blight declaration and the underlying action of the planning board and the governing body of the Borough of Paulsboro.


In its brief in support of the petition of certification, Gallenthin asserts that:
This Court has never reviewed any case under the “Local Redevelopment Housing Law,” N.J.S.A. 40A:12A-1 et seq. (“LRHL”), enacted in 1992. This case brings before this Court very significant unanswered questions raised by the increasing use – and abuse – of the LRHL to take land far beyond any reasonable test of what constitutes a “blighted area” under N.J. Const. Art. VIII, 11 3, § 1 If the lower court opinions stand, then there will be virtually no check or limits on what kinds of property may be designated an “area in need of redevelopment,” and no meaningful judicial review of whether such designations are supported by “substantial evidence.”

The questions which the Court agreed to review are as follows:
A. Whether a designation of a property as “in need of redevelopment” can be based solely upon a bar assertion that the property is “vacant” or not “fully productive” without any analysis or finding that such property is part of a “blighted area” as required by N.J. Contst. Art I, ¶ 1 and Art. VIII, § 3, ¶ 1?

B. Whether a municipal designation of a property as “in need of redevelopment” is to be judicially reviewed according to a very deferential standard, or according to a true “substantial evidence” standard, or a standard based upon heightened scrutiny because of the severe interference with property rights secured by N.J. Const. Art. I, ¶ 1 and the substantial powers acquired by a municipality as a consequence of such a designation?

The case has attracted significant attention from interested parties on both sides of the eminent domain issue. Amicus briefs have been filed by the League of Municipalities and the Builders Association; in addition, Ronald Chen, New Jersey's Public Advocate, has filed an Amicus Brief, as has the Stop Eminent Domain Abuse Coalition of New Jersey (StopEDA), and others.

The Gallenthin property consists of 63 acres of vacant land located on the Delaware River opposite the Philadelphia Airport. At the heart of the argument before the Court is whether the blighting of this property is proper merely because it is vacant land and not presently utilized. Gallenthin asserts that the testimony before the planning board was based on mere conclusions without any evidence of decline, decay or other unsafe or undesirable conditions that would substantiate a blight designation.

The case is important because the New Jersey Supreme Court has been asked to review whether the Legislature overstepped its constitutional bounds in defining blight as “an area in need of redevelopment.” The oral argument Thursday should give some indication of how the Justices view this situation. Whatever opinion is issued, it will have significant impacts on pending cases involving the LRHL and blight designations.


New Jersey Eminent Domain Blog: http://www.njeminentdomain.com

Owner, city fight over land: Fremont CA Argus, 4/23/07

Fremont officials want to build new fire station on man's property in Niles

By Chris De Benedetti

The owner of a vacant Niles lot coveted by the city for a new fire station is contesting Fremont's effort to acquire his land by use of eminent domain.

Fremont officials want the land, at 37299 Niles Blvd., next to G Street, for a new fire station.

The city's current Fire Station No. 2 is at 37645 Second St., just 3-1/2 blocks from the proposed site. But officials said the station, built in 1952 and at roughly 3,700 square feet, is too small and outdated to adequately serve the area.

However, property owner Ron Ikebe twice has rebuffed the city's attempts to buy the 9,894-square-foot lot. Ikebe said he counteroffered with a request to exchange his Niles parcel for other city-owned land. Fremont officials rejected the idea, Ikebe said.

"It feels like they want to take your Cadillac and replace it with a Volkswagen — or nothing at all," said Ikebe, a Mountain View real estate agent.

In March 2005, Fremont officials first offered to buy the land for $259,000, he said.

He refused. City officials made another offer last November for $300,000, which he also rejected, Ikebe said. Since then, negotiations between the two parties have reached a stalemate, prompting the City Council on April 10 to approve using eminent domain to acquire the parcel.

Ikebe is contending that the city's offers, based on work by the city-hired appraiser, N.A. Lefmann Associates, is below market value.

Fremont officials declined to comment on details, such as offer prices, while negotiations are continuing. "We've asked (Ikebe) to supply us with information that backs up his claim," Fremont Real Property Manager Randy Sabado said.

Did Ikebe comply with that claim?

"He has provided some," Sabado said, adding that he cannot comment further while the parties are in negotiations.

Meanwhile, Fremont officials have said eminent domain also became necessary because Ikebe's parcel satisfies a number of requirements, including size, location, traffic, access and costs.

In addition, it causes the "least private injury" because the lot is vacant and requires no relocation of private residences or businesses, city officials said.

Rebuilding the station at the existing site is not feasible because more space is needed to contain a pass-through driveway for modern firefighting equipment, city officials said.

Modern stations today are a minimum of 7,000 square feet, and Fremont officials have planned the two-story station to be about 7,600 square feet.

In addition, its new location will help speed emergency-response times because Niles Boulevard is an arterial street, Fremont officials said. The proposed site is 2-1/2 blocks from Niles Boulevard.

Once built, the new station would serve the Niles neighborhood with two large parking bays, one engine company, an office and a work area for emergency medical service.

The station also would contain a kitchen, dining room, living room, fitness room, a number of bedrooms and bathrooms, an outdoor patio and a public reception area.


Fremont CA Argus: http://origin.insidebayarea.com/argus

Woman awarded $2.3 million in ODOT eminent domain case: Newark OH Advocate, 4/23/07

By Kent Mallett

A jury awarded a Jersey Township woman $2.3 million Thursday for 8.9 acres of land taken by the Ohio Department of Transportation for the Ohio 161/37 widening and relocation project.

Mildred Fry, 74, lost the land from the middle of her 32-acre farm at the southwest corner of Beech and Dublin-Granville roads. She was awarded compensation that included $1.5 million for land and structures removed and $830,000 for damage to land not taken.

Fry’s attorneys, William Goldman and Michael Braunstein, convinced the Licking County jury of their case in Judge Thomas Marcelain’s courtroom in Common Pleas Court. ODOT had offered $657,450. The lawsuit was filed in 2005.

“I don’t believe she got a nickel more than it was worth,” Goldman said. “Her land and future financial security were substantially disrupted by ODOT’s taking of her property. We are delighted that the jury agreed that Fry needed to be fairly compensated.”

ODOT District 5 spokeswoman Cindy Brown said ODOT’s offer was based on the opinion of a certified appraiser and ODOT believed its offer was fair. Brown said ODOT has not made any decision on whether to appeal the verdict.

Goldman said the major difference between the two sides was the potential commercial use of the land, located adjacent to New Albany, just down the street from utilities and in an area that would be commercial.

The ODOT offer was not an attempt to cheat Fry or deliberately undervalue her land, Goldman said.

“ODOT had an appraiser who felt his was correct,” Goldman said. “It was an honest difference of opinion. This was not an exceptionally unusual case.”

ODOT offered $30,000 per acre and she won $165,000 per acre, Goldman said.
Fry lost a house, fitness center, barn and all of the property’s access to Ohio 161. She still owns 10 acres north of the land taken and 11 acres to the south.

She has since moved to live with her daughter and granddaughter, Goldman said.

Goldman and ODOT will meet again in Licking County Common Pleas Court, on April 30 and May 10 in front of Judge Jon Spahr, in other cases involving land taken for the Ohio 161/37 project.


Newark OH Advocate: http://www.newarkadvocate.com

5/06/2007

Social cohesion and land acquisition: Financial Express, Mumbai India, 4/21/07

A pragmatic re-calibration of processes could help resolve India’s SEZ conflicts

By N K Singh & Jessica Wallack

Two words — land acquisition — invoke a torrent of controversy. The dry phrase conjures up stymied infrastructure plans, months of political wrangling over special economic zones (SEZs), damaging flashpoints like Nandigram, and, at best, endless months of public discussion, legislative action and court proceedings that rarely culminate in outcomes that everybody is happy with.

India is not alone in trying to navigate the tensions between private property rights and public purposes as times change, infrastructure needs grow and the economy evolves. Worldwide, debates about ‘eminent domain’ centre on a few tricky questions that most laws (including India’s Land Acquisition Act) leave ambiguous.
  • What is public purpose? Is general public benefit, which might include higher tax revenues, or “development” of the area, enough? Or does the public have to own, control, and have open access to the newly repurposed area?
  • When should it override private property rights? This is particularly tricky for democracies, where the general concept of “the voice of the people” can be at variance with the other ideal of restraining the tyranny of the majority who would benefit from a new power plant or road if the individual would just step aside. Even non-democracies like China have conflicts between individual property rights and some kind of group desire to do something new with that property: witness the protracted battle over the “nail house” that remained standing (sticking out like a nail) until a few weeks ago while a Shanghai developer excavated the ground around it for a shopping mall.
  • What is “fair” compensation for somebody who does not want to trade his land for anything else? Not only are there technical questions about how to calculate market value, but there are also philosophical questions about what “market value” means to somebody who really does not choose to participate in the market. While most of the public outcry focuses on under-compensation of landowners, there are also strategic questions about how to avoid over-compensating private owners with public monies.

The current efforts to rewrite the Land Acquisition Act of 1894 will not resolve the conflicts, but the country does have an opportunity to at least lessen the rancour. We have two main suggestions.

The new Act should have a sliding scale for approving public purpose over private rights, with increasing weight to landowners’ voices as the “public purpose” becomes
less direct

The new Act should have a sliding scale for approving public purpose over private rights, with increasing weight to landowners’ voices as the “public purpose” becomes less direct. The current law lumps together public infrastructure, expansion of state-owned corporations, refugee settlement, and all-encompassing provisions for town or rural planning and planned development of village-sites. Until recently, it looked like SEZs might be included as well.

Eminent domain powers would be strongest for projects that the public will have open access to and directly benefit from. Elected representatives or town planners could approve land acquisition through something like the current process, which would hopefully become less contentious if the compensation suggestions below are followed.

Projects that will have restricted access or less widespread direct public benefits should require an overwhelming approval from the landowners and surrounding areas. This creates a kind of weighted public interest test to override some individual rights if developers cannot buy the necessary land through voluntary markets. A recent bill in Utah, for example, requires two-thirds of the city redevelopment authority boards and 80% of people who live in proposed redevelopment project area to sign a petition saying they want the land to be acquired under eminent domain.

Another weighting option could give even more power to affected landowners: let the group of affected landowners vote on the acquisition and compensation deal, and require a super-majority to sanction the deal in order for it to go through.

Compensation should be calculated at the time of acquisition, and linked to the public benefits obtained in any project. Market compensation should be based on the value at the time of acquisition, not notification as is now the case. Past amendments in 1967 and 1984 have reduced the delays between notification and actual acquisition, but not enough given the inevitable court cases that stop the clock on acquisition after notification.

Compensation should include the provision of a stake in future value increases. Often, the public project for which land is acquired increases land values for nearby landholders whose land is not acquired. The person who gives up the land is compensated at the old valuation, while his neighbours are free to wait and sell at the new valuation enabled by the project.

The market value at the time of notification, the current basis for compensation, is unlikely to fully incorporate the future increase in value since there are a number of hurdles in the way of the project—including the outcome of the public comment and inquiry period itself —that increase risk. A mechanism needs to be evolved which would enable those whose land is being acquired to benefit from such future gains in land value consequent on its development.

Maintaining social cohesion and undertaking land acquisition need careful balancing. Both are equally important.


Financial Express, Mumbai India: http://www.financialexpress.com

Columnist N K Singh and Professor Jessica Wallack of the University of California, San Diego, are collaborating on a book on infrastructure reform on India

Public fearful of eminent domain: Union NJ Local Source, 4/20/07

By Jackeline Leon

[Union NJ] residents and business owners crowded the Bonnell Room in the Municipal Building to hear about the redevelopment plan, but instead left feeling deceived.

Township committee members held a public meeting April 18 regarding the selection of redevelopment plan consultants. The two candidates, Harry Baker and Ian Sacs, presented possible strategies for redeveloping Union, while representatives of The Metro Company LLC and township committee members looked on.

The meeting was not held in the auditorium on the main floor but in the comparably small Bonnell Room. A large amount of Union residents and business owners filled the room in hopes of hearing about the redevelopment plan and how, specifically, it would affect their homes and businesses.

Township committee members were surprised to see more than 50 residents and business owners attempt to fit inside the room to hear the proceedings.

"We expected someone would show up, but we definitely did not expect that turnout," said Mayor Restivo.

Committee members dissasociated themselves from the yellow flier sent to "Union Center merchants and surrounding residents" in which the meeting was labeled a "must attend" meeting.

Pointing to the flyer, Restivo said, " This is erroneous," and added, "In order for us to hear qualifications of these people, we need to have it open to the public." Restivo continued to explain that if more than two committee members are discussing topics related to the township, meetings need to be made public.

Restivo began the meeting on Wednesday night by addressing the public's concern that they were misled about the topics to be discussed.

She later said, "I apologize to the public for any misunderstanding but we want to explain that no action was taken at the meeting and that it was just for the purpose of interviewing those candidates."

When the public discovered the meeting would only be in reference to the two gentlemen vying for a consultant contract, some individuals left the room.

Those who left said they wouldn't have come at all had they known about the original intent of the meeting.

"I have errands to do and if I would've known the meeting was going to be about these guys praising themselves I wouldn't have even bothered to come," said one resident who asked to remain anonymous.

Topics discussed during the meeting were traffic and parking problems and possible solutions.

One candidate, traffic engineer Ian Sachs, has worked in Hoboken, Elizabeth, Jersey City and the meat-packing district of New York City.

He said that if he were chosen to manage the project, he would plan on adding a service area to Route 22. "We want to make it more pedestrian friendly for those who live nearby to walk or use their bicycles."

Sachs also stated that attention would be given to the Stuyvesant Avenue and Morris Avenue intersection.

"We don't see why the streets have to be so huge and why pedestrian walks are so long because we noticed that the center is doing two things: acting as a main thoroughfare and also trying to portray a quaint environment."

Township officials who participated in the interviews voiced real concerns the public may have.

"I'm concerned about whatever we do about traffic and how it will affect homeowners that are right behind some of these businesses," said Committeeman Peter Capodice.

"We don't want to make their lives miserable."

As they heard the interviews, eminent domain fears resurfaced among members of the public.

After seeing people lose their homes in places like Long Branch, many are fearful they'll see the story repeat itself in Union.

"I've seen people get kicked out of their homes of 40 years, and then the town turned around and built nightclubs and hotels," said Union resident Giuseppe Micelli.

She added, "The township called my building blighted but it's not, it's perfectly fine but these politicians take your property under the guise that it is blighted." She then angrily added, "The last I heard that was not a democratic way unless I woke up in Russia today, " said Marlene Goldstein.

One Union resident of 21 years who wished to remain anonymous prefers no change. "I think its ridiculous what they're trying to do because Union is OK as it is."

Others said that if their land were to be acquired then they would rather see it utilized for the good of the community.

"I understand if they take it to build a hospital, a school or something like that but they're just going to take my business to give to a developer and I'll be lucky if I get 25 cents to their dollar," said Raul Rodriguez, owner of Computer Doctor.

He and his wife, Concepcion Rodriguez, have lived here for 35 years.

"We love Union, but this is too much," said Concepcion Rodriguez.

Mayor Restivo explained that no plans have been made yet and that they do not intend to acquire any land.

"That is not our main purpose- becasue we don't want to take property. We just want to make the township a viable area, and eminent domain is only a last resort."

The candidates were not yet selected but the township has either two options. They can either hire consultants themselves or have Metro Company hire them and ammend their contracts to include the new services.

"We feel redevelopment plans wouldn't be fulfilled if we didn't pull in these experts," said Stuart Portney, president of Metro Company and consultant for the redevelopment plan.

Linda Martin, manager of Joe's Place, attributes a loss of about 40 percent of profits to the unavailabilty of nearby parking for her customers during lunch time.

"I think something should be done to accomodate the customers because its the businesses that end up losing money," she said.


Union NJ Local Source: http://localsource.com

Long Branch lawyer says city didn't abuse eminent domain: Asbury Park NJ Press, 4/18/07

By Carol Gorga Williams

It's the city's turn to tell its side of the story in the eminent domain controversy, and in legal papers, it spins a markedly different saga, suggesting that MTOTSA supporters engaged in revisionist history to concoct a version of events more favorable to their side.

The city's position is buttressed by a long-anticipated "friend of the court" brief filed by the state League of Municipalities, a powerful lobbying group.

"This case is not a case of eminent domain abuse," writes lawyer Lawrence H. Shapiro, representing the city. "Rather, this case involves an unsubstantiated challenge to the proper exercise of eminent domain through a process procedurally correct, substantively sound and which is a necessary component for proper planning for the revitalization of an area in dire need of redevelopment."

Scott G. Bullock is a lawyer with the Virginia-based Institute for Justice, a nonprofit law firm helping to represent MTOTSA, about 19 property owners in the Marine Terrace, Ocean Terrace and Seaview Avenue area. Bullock said not only is this a case of eminent domain abuse but it might be the most sensational example of such abuse in the country.

"I think they are engaging in scare tactics in this case and trying to convince the court this is going to grind to a halt all redevelopment projects in New Jersey," said Bullock, noting he is working on a reply brief to the city's 125-page missive. After that, oral arguments will be scheduled in the appellate division.

Shapiro notes the defendants in the case admit they were informed of the city Planning Board study that predated the city's determination to designate the area for the redevelopment, and many of them testified before the Planning Board. They were also properly notified of subsequent council actions, he said.

According to the legal brief, MTOTSA residents "continued to stand idly by" in the period between the 1995 designation of the area in need of redevelopment through other key events, including the 2001 ordinance authorizing the condemnation of their properties.

The "disingenuous arguments" that they were misled by drawings, pictures or statements made by officials that their properties would never be condemned "is contrary to the official actions taken publicly by the City Council, on notice to all," the brief notes.

"As such, this appeal constitutes nothing other than a baseless challenge to an award-winning, properly studied and considered redevelopment plan, which is returning the city of Long Branch to economic stability, improving the general welfare of the city and providing a heightened reputation as a destination to be visited," Shapiro said.

Bullock said the bottom line is that there are serious factual disputes between what the city alleges happened and what MTOTSA believes, which only can be settled by a hearing in which witnesses give testimony under oath.

"That is something (Superior Court) Judge (Lawrence M.) Lawson did not permit, and that is something we are confident the appellate court will order given the fact that that is New Jersey law," Bullock said.


Asbury Park NJ Press: http://www.app.com

Post-Kelo America: Reason Magazine, 4/20/07

Assessing the progress of eminent domain reform

By Ilya Somin

The Supreme Court’s 2005 decision in Kelo v. City of New London generated a massive political backlash. Kelo endorsed the condemnation of private property for transfer to other private owners in order to promote “economic development.” The Fifth Amendment's requirement that such seizures must be for a “public use” can be satisfied, the Court ruled, by virtually any claim that there might be some sort of public benefit.

Polls show that 80 to 95 percent of Americans oppose the decision, including overwhelming majorities of Democrats, Republicans, women, men, and members of every major racial group. Many observers, such as Judge Richard Posner, predicted that the political response to Kelo would be so strong that it could obviate the need for judicial protection of property rights. Some states have made real progress. But the Kelo backlash hasn’t been nearly as effective as many expected.

Nearly every state legislature has either adopted or considered legislation to curb eminent domain, but only 14 have enacted laws that actually provide significantly increased protection for property rights. Seventeen states have passed laws that purport to restrict eminent domain but actually accomplish very little. Texas, for example, banned “economic development” takings, but it continues to permit them under other names, such as “community development.”

The most common tactic—used in some 15 states’ post-Kelo laws—is to allow economic development condemnations to continue under the guise of alleviating “blight.” While it may sometimes be desirable to use eminent domain to transform severely dilapidated areas, many states define “blight” so broadly that almost any neighborhood qualifies. A 2003 Nevada Supreme Court decision, for example, concluded that downtown Las Vegas is blighted. Similarly, a 2001 New York appellate decision held that Times Square is blighted, paving the way for the condemnation of property to build a new headquarters for The New York Times.

What's more, the states in most need of reform tend to be the least willing to adopt it. Consider the 20 states that have the largest numbers of Kelo-like condemnations, according to data compiled by the Institute for Justice, the public interest law firm that represented the property owners in Kelo. Thirteen of them have enacted either ineffective legislation or none at all. Moreover, two of the states with otherwise effective reforms exempted the parts of those states where most condemnations occur. Pennsylvania’s reform includes a five-year exemption for Philadelphia and Pittsburgh, and Minnesota’s exempts the Twin Cities area, also for five years. By then, the political uproar over Kelo will likely have subsided, making it easier to extend the exemptions without much public scrutiny.

Similar shortcomings have bedeviled reform efforts at the federal level. President Bush’s June 23, 2006, executive order on Kelo, for example, banned the use of eminent domain for “private development,” but allowed takings for private owners who promise to use the land for both private and “public” development. This is the exact argument accepted by the Supreme Court in Kelo, and therefore does little to mitigate the decision’s reach. Legislation enacted by Congress in 2005 has been similarly ineffective.

Generally, reforms enacted by referendum have been more effective than those enacted through the legislative process. In 2006, voters in 12 states considered anti-Kelo initiatives that sought to ban or curtail the condemnation of private property in order to promote "economic development." Ten of the 12 passed, all by lopsided margins. The only two that failed were proposals in California and Idaho that were tied to complex and controversial "regulatory takings" laws that roped in other of types of government regulations. Of the 10 initiatives that passed, at least six (Arizona, Florida, Louisiana, Nevada, North Dakota, and Oregon) and possibly a seventh (Michigan) are worded strongly enough to provide real protection for property owners beyond that provided by preexisting law.

Why has the Kelo backlash fallen short in so many state legislatures? Some blame the political power of development interests and local politicians who benefit from condemnations. While these groups have indeed spearheaded opposition to reform, the bigger problem is probably public ignorance. It takes specialized knowledge to distinguish an effective “anti-Kelo” bill from one that’s mostly for show. Most voters lack both the ability and the incentive to scrutinize such details closely. Surveys show that most citizens are often unaware of even basic facts about politics, and eminent domain is unlikely to be an exception to this rule.

Developers and other interest groups, by contrast, have far superior knowledge about the details of legislation and strong incentives to keep track of them. Thus, politicians can satisfy voters angered by Kelo by passing laws to "reverse" it, while simultaneously avoiding the ire of development interests by not giving those laws teeth. This dynamic will likely get stronger as the anger generated by Kelo wanes and public attention shifts to other issues.

Referendum initiatives tend to be more effective than most legislative reforms because they’re often drafted by activists instead of politicians. Property rights activists don’t need to appease powerful pro-condemnation interest groups. Four of the six clearly effective post-Kelo initiatives were drafted by property rights advocates in states where referendum questions can get on the ballot without first being approved by the state legislature. By contrast, the three relatively ineffective new laws were submitted to voters by state legislatures, and suffered from the same flaws as other legislative reforms.

Referenda are far from a panacea for Kelo. Several of the initiatives enacted last fall are flawed, and 26 states do not permit lawmaking by referendum at all. There is also the danger of pro-condemnation forces using the referendum process for their own purposes. For example, the California League of Cities (CLC), a coalition of local governments seeking to preserve their power to condemn property, is currently trying to place an essentially meaningless eminent domain “reform” on the state’s November ballot as a way of preempting a stronger referendum initiative sponsored by property rights advocates. The CLC initiative cleverly includes a provision stating that it would supersede any other eminent domain referendum enacted on the same day, so long as the latter gets fewer votes than the CLC proposal.

The political response to Kelo has led to some important reforms. But it has also led to the enactment of a great many ineffective or meaningless laws. Further progress requires us to understand both the successes and the failures of the Kelo backlash.


Reason Magazine: http://reason.com

Ilya Somin is an assistant professor at George Mason University School of Law. He has written several pro bono amicus briefs in takings cases for the Institute for Justice. He also wrote an amicus brief in the Kelo case itself, on behalf of the late urban policy theorist Jane Jacobs. He writes regularly for the Volokh Conspiracy weblog.

Two senators face queries over conflict: Newport News VA Daily Press, 4/19/07

An ethics panel meets today to consider an attorney's allegation of conflict of interest

By Hugh Lessig

Two influential Hampton Roads state senators face questions from a Senate ethics panel today over allegations they have a conflict of interest in the ongoing debate over eminent domain reform in Virginia.

The Roanoke attorney who filed the complaint, David Nixon, said he would also testify before the committee. Sens. Kenneth Stolle, R-Virginia Beach, and Thomas K. Norment Jr., R-James City, will make separate appearances later in the day. The meeting is expected to be private, which the law allows, although several groups have asked that it be opened, Nixon said.

Stolle and Norment are attorneys for the firm Kaufman and Canoles. Nixon said the firm represents clients that have a stake in thwarting eminent domain reform, such as government bodies and utilities. He has accused both senators of using their legislative positions to that end.

Both senators have said Nixon's complaints are baseless.

The debate over eminent domain mushroomed in 2005 after the U.S. Supreme Court ruled that government could condemn land for economic development.

It arose from a case in New London, Conn., where local officials took private property through condemnation as part of a larger redevelopment strategy. Across the country, politicians expressed outrage at the ruling.

Nixon's complaint alleges both senators stymied meaningful eminent domain reform last year, when the state House of Delegates approved a bill that would have prohibited economic development or broadening a government's tax base as reasons for condemnation.

The complaint says the bill was watered down in the Senate so that it made no substantial changes in the law.

Stolle and Norment have pointed to an opinion they received from Attorney General Bob McDonnell before the Senate took up eminent domain bills this year. McDonnell concluded they did not have a conflict of interest.

"If the attorney general had thought we even had a perceptual problem, we would have recused ourselves on this," Norment said earlier this year.

Norment and Stolle said they have never handled an eminent domain case as attorneys.

Nixon said McDonnell's opinion does not clear the two senators. The opinion referred to a different area of the state code from the one cited in the complaint. Also, the opinion did not address Norment's personal interest in Dominion Resources, Nixon said.

Norment has held stock in Dominion Resources and has accepted gifts from the company, including a hunting trip to Georgia that was valued at $1,722. Stolle also went on that hunting trip. Dominion is the holding company for an extensive user of condemnation powers, DominionVirginia Power, the complaint says.


Newport News VA Daily Press: http://www.dailypress.com

City moves to block houses through eminent domain: Eugene OR Register-Guard, 4/19/07

By Edward Russo

Eugene's leaders on Wednesday signaled interest in exercising the power of eminent domain to preserve 65 forested acres from development near the Amazon Creek headwaters in south Eugene.

With Mayor Kitty Piercy breaking two ties, the City Council voted 5-4 to begin eminent domain proceedings on two tracts of land that the owners have long tried to develop with houses in spite of stiff opposition from area residents.

Martin and Leslie Beverly's Deerbrook subdivision would be on 26 acres south of West Amazon Drive's terminus. Joe Green of Aurora wants to develop 39 acres between Dillard Road and Nectar Way.

The council on May 21 will hear the public's opinion about the city acquiring the land. Under eminent domain, the city can try to buy property. But if negotiations fail, the city can force a sale through the courts.

South Eugene Councilor Betty Taylor introduced the eminent domain proposal at the request of the Southeast Neighbors and other groups that have waged long battles against the developments.


Eugene OR Register-Guard: http://www.registerguard.com

Jury sides with property owners in eminent domain case: Jackson MS Clarion-Ledger, 4/18/07

A Hinds County jury awarded a property owner $620,928 in an eminent domain case today.

Gulf South Pipeline Company, LP had initially offered $34,000 to Robert and Paula King for temporary and permanent easements across their property located south of Terry.

The jury’s award was based on the Kings’ statement of value.

The easements would be used to install a 4,200-foot pipeline. The pipeline would be part of a $800 million project to connect a natural gas line from east Texas to Simpson County


Jackson MS Clarion-Ledger: http://www.clarionledger.com

Convention center task force member questions use of eminent domain in site selection: Midland TX Reporter-Telegram, 4/18/07

By Colin Guy

Convention center committee member Nelson Spear raised the question of whether or not eminent domain proceedings might be necessary to acquire property for a new convention center during the committee's meeting Tuesday, noting that residents would probably like to know if their vote contributes to the involuntary acquisition of private property.

During a discussion of potential site locations for a new convention center architect Mark Wellen, whose firm Rhotenberry-Wellen assisted with the convention center study, noted that several locations around town were considered in the study, but that downtown is probably the best site, in part because a successful convention center needs to be in close proximity to a high-quality hotel such as the Hilton Midland Plaza.

Spear noted that constructing a large facility downtown could require the displacement of existing properties and expressed concern that the city's eminent domain authority may be used if some property owners are reluctant to sell, something he said "kind of sticks in my craw."

"The public will want to know specifically if you'll keep that as a hold card or if you'll take that off the table," Spear said.

Wellen said the use of eminent domain is an issue that comes up with any large land acquisition and the use of eminent domain by municipalities is a "hot topic" around the country right now. However, he said, for the most part the situations in which people have become upset are when cities have taken private property and turned it over to the private sector. Midland Chamber of Commerce President John Breier noted that if property for the convention center was acquired through eminent domain that it would be the same principle as acquiring land for roads, bridges or other public amenities.

"People tend to triage these things... a highway or a public road may be higher on their triage (list)," Spear responded. "I can guarantee not everybody will put a convention center on top of their triage."

Committee member Jane Wolf said she does not expect that city officials will treat the issue of property rights lightly. By way of example she said that a number of years ago the city was in the process of widening Illinois Avenue and encountered two property owners near Midland High who did not want the city to cut into their front yards. The city agreed to work around them and did not make any changes until after the homeowners no longer occupied the houses, she said.

"I think our city has a history of being very considerate of property owners. ... I don't think they'll run over anybody," she said.

City officials told the Reporter-Telegram after the meeting they do not like the idea of using the city's eminent domain authority and would utilize it cautiously and only as a last resort if necessary. District 3 City Councilman Scott Dufford said he would never be comfortable with using eminent domain to take someone's property and hand it over to a private individual or company. He said he does not believe using eminent domain to acquire land for a convention center will become an issue, but that it is possible "you might find one or two holdouts."

Committee member Roy Gillean said he was one of about a dozen property owners who consulted with Midland Mayor Mike Canon regarding site selection for a convention center and it seemed as if there were only one or two people at the meeting who would be reluctant to sell their property voluntarily. At-large City Councilman Wes Perry told the Reporter-Telegram the only way eminent domain would be used is if a property owner was "trying to hold the city hostage."

"It's not something we want to do, but the other side of it is if you have someone that's not being reasonable that's not the right thing either," Perry said.

He said if the City Council decides to place a convention center bond proposal on the November ballot voters will be provided with a specific proposed location and a "pretty good" idea of what the cost would be. Canon told the Reporter-Telegram a specific location for a proposed convention center should be selected within the next 40 days.


Midland TX Reporter-Telegram: http://www.mywesttexas.com

River of Greed: Broward New Times, Palm Beach FL, 4/19/07

The plan includes playing footsie with a controversial land baron and paving over a piece of the Everglades

By Bob Norman

The Broward County School Board and the City of Weston are about to sell us all down the river of grass.

District leaders are set to waste tens of millions of dollars on a bad land deal involving an extremely wealthy political contributor. The deal involves what appears to be a sham tax break for the seller and threatens a key component of the government's $10.5 billion Everglades cleanup.

The South Florida Water Management District is dead-set against the plan and promises to fight it, a conflict where the only sure loser will be the taxpaying public.

Topping it off is the fact that there's a perfectly good site in a better location that would save taxpayers a fortune.

But the district, as has been shown countless times in the past, has no qualms about squandering our money when politics are in play. That was proven most recently when board member Beverly Gallagher spearheaded the $4.3 million purchase of virtually worthless swampland at the behest of a gaggle of lobbyists and other political players last year.

This coming boondoggle is different, though, and not just because it will dwarf that one in cost to taxpayers or that it's pitting education against the environment.

It also hasn't happened yet. The board is set to vote on the purchase at next Tuesday's meeting. So there's still time to stop it.

Be warned: You're going to hear that this project is desperately needed to relieve overcrowding at Weston's Cypress Bay High School. That's true. It's a given that a new school, now known only as MMM, needs to be built. It's the chosen site that is disastrous and utterly irresponsible, not the idea for a school itself.

The land in question consists of 45 acres on a dead-end street at the edge of the Everglades in Weston. The bulk of the land is owned by multimillionaire land baron and developer Ronnie Bergeron, who has pumped hundreds of thousands of dollars into local politics, much of it into School Board races.

One of the main motivations behind the cowboy-hatted and belt-buckled Bergeron's contributions in the past has been to help him sell his land to the overpaying, bloated bureaucracy at the board. This time, though, he claims he doesn't want to sell, which will force the School Board to go through the costly process of eminent domain to purchase the land.

But Weston Mayor Eric Hersh, who is joined at the hip with Bergeron in the deal and has shepherded it from its infancy, tells us not to worry about that eventuality.

"I've been meeting with Mr. Bergeron for over a year," he says. "Mr. Bergeron is not a willing seller, but providing it is done through eminent domain and it's a fair-market value, he will not fight the eminent domain process."

That raises a good question: If Bergeron has been willingly negotiating with Hersh and is happy to sell the land at "fair-market value," why is the eminent domain process necessary at all?

Answer: It will likely drive up the price of the land and also serve to give the wealthy Bergeron a sweet tax break. Under federal tax laws, a regular sale would give Bergeron only 180 days to reinvest his profits in real estate to avoid paying capital-gains taxes. But if the land is sold via eminent domain, the seller gets a three-year shelter from paying capital gains taxes, which in this case will amount to several million dollars. It would also allow Bergeron to leverage the profits more freely to reinvest in other real estate.

In other words, it's a sham. And the School Board knows it. In official records, officials wrote that Bergeron "desired" to sell the land via eminent domain. That's what's called a contradiction in terms.

The financial shenanigans might be a matter for the IRS or the FBI, but they're almost insignificant compared to the environmental concerns and cosmic cost of the site. We'll start with the Everglades angle. The Bergeron property borders an area that has long been slated by the state as a giant reservoir for the massive Everglades restoration project. There is only one lonely road that accesses the site, SW 36th Street, and the school project hinges on that road's being available.

Problem: That portion of SW 36th Street is going to be flooded as part of the reservoir by the South Florida Water Management District.

Putting the road underwater is a crucial part of the $10.5 billon Everglades restoration plan, says SFWMD's deputy executive director, Ken Ammon. Right now, water from residential areas — full of pollutants like oil, phosphorous, and acids — is being pumped into the Everglades. The reservoir will store that water so it can be purified before contaminating the swamp. It's a $450 million project that has been in the works for many years.

"The city is demanding that the road stay put where it is," Ammon says. "I'll just say that the attitudes of Hersh and [City Manager John] Flint have been disturbing. Essentially, it doesn't matter if there is Everglades restoration or not to them."

Hersh seems to confirm this when he tells me: "That road is a perfectly good road owned by the City of Weston. We are not going to give it up. They don't own the land. We do."

This is setting up a battle between education and the environment that will pit tax dollars against tax dollars. The fight will ultimately be determined by the state's Department of Community Affairs.

It can't end well. If the School Board purchases the Bergeron land and somehow beats the water district, the Everglades will suffer. If it buys the property and loses to the water district, it will be stuck with yet more land that it can't use.

And that land will come at an outrageous price. The board will have to buy all 45 acres — which, according to the figure of $900,000 per acre mentioned in School Board records, could result in a whopping sales price of about $40 million.

On top of that, 15 acres of the Bergeron site is occupied by a nursery owned by Rusty Hayes, who is adamant about not wanting to sell. Hayes won't even let the School Board on the property, so nobody knows if it's usable for a school. Another unknown will be the cost of replacing Hayes' nursery.

In addition to all of that, another road is slated to be built through environmentally sensitive lands. That will require regulatory approvals that might not come, and construction of the road could cost at least $8 million, according to district records. The total comes to, oh, about $50 million before the first brick is laid.

"It's an astronomical cost to the district," says board member Phyllis Hope, who represents both Weston and Sunrise and has emerged as a rare voice of reason on this issue.

Hope prefers a nearby site in Sunrise. Anybody with common sense and a semblance of civic responsibility would. That site, on New River Circle near the Sawgrass Sanctuary, has the advantage of having ten acres already owned by the School Board. In addition, the City of Sunrise, which favors building MMM in its city, owns 28 more acres there and is willing to donate the land. All told, it would require only the purchase of nine private acres.

We're talking about a savings over the Bergeron site of $30 million. On top of that, the Sunrise site is also more centrally located and could be used to relieve other overcrowded schools.

But Hersh and his Weston allies balked — in part because they don't want to share the school with other communities. "It would be used to relieve Plantation High," the mayor says. "And we wouldn't know if that site is available for six months to a year. We need relief now."

So choosing between tens of millions of dollars and a relatively short wait, Weston goes with throwing away the money. After all, it's not their cash. It's ours.

"When campaign contributors are involved and you're playing with tax money, anything goes," says longtime education activist Charlotte Greenbarg, who has seen years of this kind of lunacy and waste at the School Board.

The School Board so far has blindly followed Hersh's irresponsible lead. In a March 22 site selection committee vote, the vote was 10-8 in favor of the Bergeron acreage, in large part due to Weston's influence on the process. A possible sign that other politics were in play was the presence of Bergeron lobbyist and girlfriend Aleida "Ali" Waldman in the audience monitoring the proceedings.

"The problem with that location is that it can only benefit Weston and nobody else," says Sunrise City Commissioner Roger Wishner, adding, "But what Weston wants, Weston usually gets."

In this case, the prima donna western city's gain will count as a giant loss for taxpayers and for the Everglades.

It will come up for a vote at next week's meeting. Barring a massive outcry or a sudden rush of reason by board members, it will surely be passed. Board member Hope says she will plead with her colleagues to vote against this measure and urge them to support the sensible Sunrise site instead.

She even asked Interim Superintendent Jim Notter to include a presentation for the Sunrise site, since the vote was so close, but he shot down the idea.

So the administration, as usual, is failing the people. The vote is Tuesday. It's up to us.


Broward New Times, Palm Beach FL: http://www.browardpalmbeach.com

Road Projects Run Into Gridlock: Tampa FL Tribune, 4/16/07

By Anthony McCartney

Plans to relieve congestion on some of Hillsborough County's busiest roads are stuck in a bureaucratic traffic jam.

The bottleneck has proven to be buying the land - voluntarily or forcibly - from property owners along popular thoroughfares such as Race Track Road and Gunn Highway.

County commissioners last year approved $460 million in new road projects, creating dozens of new transactions and sometimes lawsuits for county workers to handle.

In addition, the county has another half-billion dollars in projects being contemplated by a task force studying transportation needs.

Wednesday, commissioners are expected to approve hiring two new employees for the county's real estate office and two for the legal department.

The hires will cost about $186,000 this year, and $348,000 annually after that, Management and Budget Director Eric Johnson said.

An additional $165,000 will be spent on a consultant to review the county's road-building process and find ways to streamline it.

The increased workload for the county's attorneys and real estate agents is related directly to growth, Real Estate Director Mike Kelly said.

Kelly's department handles all land purchases and has about 15 people dedicated to transportation projects.

In the best cases, property owners agree to sell to the county voluntarily. If not, the county begins the lengthy process of taking the land through eminent domain.

County attorneys now are involved in more than 170 eminent-domain cases, which can range from wrangling over the offered price to disputes with other governments pursuing county land.

The most involved cases occur when the county seeks to force a property owner to sell, said Dean DiRose, a county attorney who handles eminent-domain cases.

Some of the county's lawsuits to secure land for the widening of Race Track Road and Gunn Highway date back to 2005.

County commissioners must approve a resolution before a lawsuit can be filed. Then it can be months, even years, before a case is resolved.

DiRose, who has worked eminent-domain cases for the county since 2000, said plans to widen Race Track Road started a noticeable increase in the number of cases his office handles.

Some of those cases are complicated because business owners must be compensated for lost profits.


Tampa FL Tribune: http://www.tbo.com

Gregoire signs eminent domain measure into law: KNDO-KNDU, Yakima WA, 4/16/07

Associated Press

Wash. Governor Chris Gregoire today signed into law a measure that would require better notification of citizens before their property is condemned for a public purpose through eminent domain.

The measure evolved in reaction to a state Supreme Court decision involving Barbara and Ken Miller, whose property in south Tacoma was condemned by Sound Transit to make way for a parking lot for a train station.

Sound Transit posted a notice on its Web site of the meeting where the condemnation action would be taken. The Millers never saw the Web site notice, and appealed. But the state Supreme Court ruled five-to-four that the Web site posting satisfied the notice requirement.

The law will require state agencies, cities and counties, school districts and other government entities to send certified letters to property owners before voting to take their property. It will also require publication of advance notice of the meeting in the largest area newspaper.


KNDO-KNDU, Yakima WA: http://www.kndo.com

Carl Gamble won eminent domain battle: Cincinnati OH Enquirer, 4/16/07

Obituary
Case a victory for homeowners

By Steve Kemme

Carl Gamble Jr., who won a three-year legal battle to save his home from demolition in the landmark Norwood eminent domain case, died Friday at St. Elizabeth Medical Center South in Edgewood after a bout with cancer and heart and lung problems.

Mr. Gamble, 70, and his wife, Joy, were forced to leave their house of 35 years in February 2005 after a Hamilton County judge upheld Norwood's right to use eminent domain to take their home.

The Gambles, who operated a small grocery story in Walnut Hills for many years, were the last property owners in that 11-acre site at Edwards and Edmondson roads to leave. A developer planned to build the $125 million Rookwood Exchange there.

But the Gambles and two other property owners took the fight to the Ohio Supreme Court and won. Property-rights advocates throughout the country hailed the court decision as a victory in the battle against eminent domain for economic development.

But Mr. Gamble's health problems forced the Gambles to give up their dream of returning to their home. The Gambles, who had moved to an apartment in Edgewood, sold the house to the Rookwood Partners for $650,000 two weeks ago.

"He was really a courageous man who stood up for the rights of every homeowner and small-business owner in Ohio and throughout the country," said Bert Gall, an attorney for the Institute for Justice, a Washington-based civil liberties law firm that represented the Gambles and the other holdouts for free in the eminent domain dispute.

"Carl was a rock throughout the entire fight," Gall said. "He never lost sight that he wasn't just fighting for his home, but for everyone else who has been affected by eminent domain abuse."

Mr. Gamble had been hospitalized for the past few months.

Joe Horney, another one of the Norwood holdout property owners who became a good friend of the Gambles during the eminent domain battle, said Mr. Gamble fought cancer with the same quiet determination he fought the eminent domain case.

"He was a great guy and a great friend," Horney said.


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

Some residents cry foul over eminent domain use: Billings MT Gazette, 4/16/07

By Tom Howard

For the second time in three months and the third time in three years, the City Council has authorized use of the city's power of eminent domain to acquire private land to complete street or utility projects.

Eminent domain is a section of law that allows governments to acquire private property for public uses. City officials say they use eminent domain only as a last resort when efforts to acquire property have reached an impasse.

On March 26, the council authorized staff to begin condemnation proceedings to acquire seven properties in the Blue Creek area. The city is seeking easements for a city sewer line to serve Briarwood. Although installing the sewer line will require extensive excavation, the construction area will be reclaimed. Unlike street projects, the sewer right of way won't be easy to find within a few years after construction is completed, city officials say.

City Administrator Tina Volek said the city has reached agreement with the owners of six parcels in the Blue Creek area. Negotiations are continuing with other owners, she said. Last fall, the council filed suit against the owners of five parcels on Grand Avenue in order to acquire right of way for the widening the street between Ninth Street West and 12th Street West. A district judge has allowed the city access to the properties so the road project can be completed this summer. Construction is scheduled to begin April 23.

In 2004, the city initiated condemnation proceedings to acquire street right of way through the Peter Yegen Jr. Golf Course. The two sides settled on a price two years later and the street project was completed last year.

Eminent domain has been a hot-button issue among property rights advocates for more than two years after a Supreme Court ruling that allowed the city of New London, Conn., to bulldoze people's homes to make way for shopping malls and other private development.

Although the case Kelo vs. City of New London expanded government's ability to take private property, local residents needn't worry about the city of Billings swooping in and seizing people's homes and businesses, said Councilman Richard Clark.

"In that case the court said they could use eminent domain for economic development," Clark said. "But we have never done that before, and the chances of me voting for something like that are zero."

"I hope we don't have to use (eminent domain) any more," said Councilman Larry Brewster. "Every time we've decided to do it, we've used it as a tool for negotiations."

Brewster said the city uses eminent domain only when there's a possibility of a project being delayed. With construction costs increasing at 8 to 10 percent a year, completing a project sooner saves money for taxpayers in the long run, he said.

"This council has been up front that they're not interested in using eminent domain for anything but for a specific public project," Volek said. "It's certainly not the nature of this council to do like they have back East and condemn large parcels for urban renewal."

Although city officials say that that they use eminent domain only as a last resort, many Blue Creek residents still don't like the thought of a sewer line going through their property.

Detta Graham, whose back yard abuts Blue Creek, worries that the sewer project could damage the creek bed and discourage visits from wildlife.

"The sad part is we have all kinds of birds - pheasants, ducks, geese, cranes and turkeys," Graham said. "They're going to destroy the creek bed."

Graham, a real estate agent, said the city offered her $4,200 for one-tenth of an acre for the sewer easement. She said that's well below market value of around $60,000 per acre for similar property.

Michele Johnson, of 2705 Blue Creek Road, is one of the property owners with whom the city has been negotiating. She said the city's eminent domain powers put property owners at a disadvantage.

The city has offered Johnson $3,350 for a 20-foot-wide easement across her property. Johnson said she has offered an easement from 12 to 16 feet wide.

The way the city's offer is written, Johnson said, "the city can do whatever it pleases and the property owner gets to repair all the damages." Johnson said she wants a fair contract, she wants to be reimbursed for what she has spent on legal fees and she wants the city to promise that it will never try to annex her property.

Councilwoman Joy Stevens said the city has agreed to reimburse property owners for their legal expenses as part of a settlement. Although the current council isn't interested in annexing Johnson's property, she said, future councils may decide differently. The current council can't prevent future councils from annexing property, she said.

Johnson has challenged the City Council before. In 2005, she was a vocal opponent to the Heritage Trail Plan, a network of biking and hiking paths being developed in the Billings area. Johnson and other Blue Creek residents were upset because the plan included maps showing potential bike trails crossing private property. Some worried that the city or county might use eminent domain powers to seize property and build trails.

The City Council and the county commissioners agreed to amend the trail plan.

Johnson asked the county commissioners last week to help "rein in the city's abusive actions."

Commissioner Bill Kennedy said the commissioners don't have the authority to intervene in the city's lawsuit, nor can they prevent the city from annexing property. Montana annexation law is stacked in favor of cities, and if Johnson wants to change the law, she will have to ask the Legislature to change the law, Kennedy said.

Wyeth Friday, planning division manager for the City-County County Planning Department, said the city initiates annexation only when the property owners request it.

In December 2004, the city began condemnation proceedings against Yegen Grand Avenue Farms to acquire the right of way to extend Zimmerman Trail through the Peter Yegen Jr. Golf Course.

The two sides eventually agreed on a price of $575,000, avoiding a court fight. Before that, two appraisals were conducted. One estimated the property was worth $478,500; the other put the value at $237,762. City Councilman Vince Ruegamer said the city agreed to pay the premium of nearly $100,000 above the higher appraisal with the understanding that the money would be paid to the golf course.

At the time, city officials said they probably saved money because taking the case to court would have cost more and could have delayed the project.

Charlie Yegen of Yegen Grand Avenue Farms said the case boiled down to a disagreement over how much the property was worth.

Throughout the process, city officials always tried to be fair, Yegen said. He doubts that the city would exercise its powers of eminent domain in order to seize property for urban renewal.

The city's attempt to acquire property along Grand Avenue was complicated when the city discovered underground fuel storage tanks at the site of the former Dairy Queen restaurant at 11th Street West and Grand. A gasoline station operated on the property before it was a restaurant.

Reger Properties Inc., owner of the Dairy Queen property and a defendant in the case, has asked the court to direct the city to pay Reger $294,000, which was the city's last offer.

Reger's legal brief argues that the city should pay for cleaning up any contamination because Reger had already agreed to the city's offer and the city had known that the property previously had a gas station.

Deputy City Attorney Kelly Addy said the city is willing to pay "just compensation" for the property, but he didn't specify a figure or range. The city is still awaiting environmental tests to determine if any of the underground fuel tanks have leaked.

According to preliminary estimates, it may cost about $5,000 to remove each storage tank. If little soil contamination is found, the cleanup costs could amount to a small portion of a $2.7 million road project. A state program to cover the cost of cleaning up underground storage tanks may also be available if contamination is found, Addy said.


Billings MT Gazette: http://www.billingsgazette.net

Debating the benefits of eminent domain: northjersey.com, Hackensack NJ, 4/15/07

By Adrienne Lu

Since the U.S. Supreme Court upheld the rights of municipalities to seize homes and other private property in the name of economic development nearly two years ago, New Jersey lawmakers have been debating whether to restrict municipalities' use of eminent domain.

The Assembly has passed a bill that supporters say would help protect property owners. A version of the bill has been stalled in the Senate.

In the meantime, eminent domain controversies continue in North Jersey. In Lodi, residents of two mobile home parks await a decision from the state Appellate Division on whether the borough's plans to seize the property for redevelopment are acceptable.

Emerson may use eminent domain to help turn its downtown area into a $150 million swath of homes, shops and offices. And in North Arlington, the Borough Council agreed last year to condemn properties of owners unwilling to sell to EnCap Golf Holdings. The borough recently declared the agreement void, but EnCap is suing to have the terms of the 2006 deal enforced.

Supporters of the Supreme Court decision, Kelo v. New London, say towns need the authority to seize and redevelop properties to enable economic development, among other goals. But critics say towns should be held to stricter standards to prevent abuse.

Should New Jersey take steps to further regulate the use of eminent domain?

PRO
Michael Kates, a lawyer representing the homeowners in the Lodi mobile home park case, believes the state should establish basic criteria that must be met before eminent domain can be used for redevelopment.

"I'm a municipal attorney at heart, and believe that redevelopment is a useful tool," Kates said. "I just think there's some tightening that has to be done to protect people from being thrown out of their homes."

Joseph Burgis, president of Burgis Associates planning firm, said that although the Kelo ruling reaffirmed the rights of municipalities, the publicity "awakened everyone to the negative side" of the issue.

"It's a delicate balance between the needs of the municipality to utilize eminent domain in certain limited circumstances versus the property rights of individual property owners," Burgis said.

Kendell Kardt, a resident leading the fight to save the Lodi mobile home parks, doesn't trust government to decide when there is an overriding public need for eminent domain.

"Basically, they just want to be able to coerce people into selling their property and do what they think is best for a town, but I don't have any confidence really in government's ability to plan that kind of thing," Kardt said.

Some, including Edward Trawinski, a land-use and zoning attorney and former Fair Lawn mayor, believe the reforms being proposed now don't go far enough.

"Justice [Sandra Day] O'Connor in Kelo said if you allow government to take someone's property because you can generate more tax ratables, every Motel 6 will become a Hyatt," Trawinski said.

"I don't think anybody would say that housing that is abandoned and boarded up shouldn't be subject to the power of condemnation," he added. "On the other hand, if it's a good house and it just happens to be located in the wrong location, government should have to go a long way before they can flip it over to a developer."

Sen. Ronald Rice, D-Essex, sponsored a measure that is being combined into the reform bill. He said that in reviewing the existing statutes, two issues emerged time and again: the lack of transparency in the process, particularly for property owners, and fair compensation. He said he wants to make sure both issues are addressed in the new bill.

CON
Gerald Salerno, who represents the Lodi Planning Board in its case against the mobile home park, said the power of eminent domain is essential.

"I think it's proven to be a very positive means by which a community can redevelop," Salerno said.

He acknowledged there is a potential for abuse, but said the process is "pretty well regulated by the court system" and by the requirements of state statutes.

Scott E. Mollen, a lawyer who specializes in real estate litigation, said that sometimes a private developer may simply be the best vehicle to achieve a broader purpose.

"The absence of abusive cases involving merely taking someone's property to make profit ... since the Supreme Court ruling, confirms my thesis that government has used eminent domain judiciously in the past as a general rule and would be expected to continue to do so," Mollen said.

Fort Lee has avoided using eminent domain several times, instead negotiating with property owners until reaching an agreement. The borough has exercised eminent domain only once in recent years, when it condemned an unfinished commercial building to allow another developer to finish it.

Raymond Levy, Fort Lee's economic development director, called eminent domain "a very, very powerful tool in terms of getting redevelopment going."

Levy said that as long as the state requires a municipality to establish that an area meets certain criteria before proceeding, eminent domain is a useful tool.

"I think at the end of the day ... these things really have to be looked at on a case-by-case basis, which they are in New Jersey," Levy said.


northjersey.com, Hackensack NJ: http://www.northjersey.com

Foundation backs off push for S. Dallas land seizure: Dallas TX Morning News, 4/15/07

Eminent domain plan for redevelopment of Frazier was disputed

By Scott Goldstein

The Dallas foundation that for months pushed for a controversial change in state law to allow the use of eminent domain for economic development in South Dallas is backing off the proposal – for now.

Officials with the Foundation for Community Empowerment and the nonprofit it formed to plan and facilitate development say they will not scale back on a broad plan to transform the Frazier neighborhood of South Dallas with commercial, industrial and residential projects.

But they now must do so without the legislation that would have allowed them to call on the city to seize large areas of "blighted" property – including several blocks at a time – for redevelopment.

"I think there's a lot of work that we can do right now that does not immediately call for the necessity of eminent domain," said Jon Edmonds, president and chief executive officer of Frazier Revitalization, a nonprofit formed by the Foundation for Community Empowerment in 2005 to acquire property and plan development.

"Having said that, it is a tool that we need and we're going to need," Mr. Edmonds said.

Mr. Edmonds was hired this month to replace Nat Tate, who resigned last month after criticism of the proposal from area residents and leaders. Among those who said they would fight the plan were state Sen. Royce West, D-Dallas, and state Rep. Terri Hodge, D-Dallas, whose districts include the Frazier neighborhood.

Opponents said the proposal would allow the city and private developers to displace some of the area's poorest residents. They also point to a history of misuse of eminent domain, including when the city booted out hundreds of homeowners, most of them black, in 1969 to expand Cotton Bowl parking for the Dallas Cowboys, who decided to move to Irving.

Mr. Edmonds' position is a marked shift from that of his predecessor, and to some extent, his boss, J. McDonald "Don" Williams, founder and chairman of the Foundation for Community Empowerment.

Mr. Williams and Mr. Tate said in recent weeks that it is virtually impossible to revitalize a large area of poverty linked with crime and drugs without acquiring blocks of land as opposed to scattered parcels.

In an interview last week, Mr. Williams, a former Trammell Crow executive, said his position is unchanged. In the long term, he said, eminent domain must be an option. Without it, both Mr. Williams and Mr. Edmonds say, progress on commercial projects will be limited because those property owners willing to sell often demand up to five times the appraised value.

"It makes some of the commercial revitalization impossible financially. The deals just don't work," Mr. Williams said. "I think residential is largely unaffected because you can move around."

City officials say the foundation's altered strategy has little effect on their stance on the issue. Officials said they were involved in talks with the foundation primarily to ensure that the proper safeguards would be in place to protect the community if legislation passed. But the plan was not part of the City Council's legislative agenda.

City e-mails obtained by The Dallas Morning News in response to an open records request seemed to indicate that housing director Jerry Killingsworth was hopeful of a change in eminent domain law but was wary of the appearance that he was leading the efforts.

In an August e-mail to City Manager Mary Suhm, Mr. Killingsworth proposed enlisting the city's chief lobbyist Larry Casto to work behind the scenes with Mr. Williams and others "to craft the best strategy and legislation to try to move this issue of expanded condemnation powers forward.

"Hopefully, this would start the wheels in motion such that I can bow out of a front-line role in this effort and take a back seat, which is where I need to be," Mr. Killingsworth wrote in the e-mail, also addressed to Assistant City Manager Ryan Evans.

In an interview last week, Mr. Killingsworth said the city shifted its position once eminent domain was not included in the council-approved legislative agenda.

"A year ago, we were exploring whether or not eminent domain should be a part of our legislative agenda, and a decision was made for it not to be part of the legislative agenda," Mr. Killingsworth said.

Ms. Suhm said it is not unusual for city officials to discuss numerous potential proposals before a legislative agenda is finalized.

"As we develop a legislative program and we start looking at projects like that, we look at all the possibilities," Ms. Suhm said. "The council did not elect to include that, so it's off the table for us."


Dallas TX Morning News: http://www.dallasnews.com

Residents a cash register for eminent domain: Cherry Hill NJ Courier-Post, 4/15/07

Opinion

By Kathy Hogan

It is a slick public relations ploy for redevelopers and local elected officials to say they will only use eminent domain "as a last resort." What that says is "we will only use force if we have to." And what that really says is "we will absolutely use eminent domain to forcibly take private property away from its owners for the benefit of private redevelopment unless we can employ nastier ways to crush their spirit into giving up and selling to us "voluntarily.' "

Citations issued
Suddenly, the local government starts issuing citations for never-used code violations, suddenly there are health inspections, checks on business licenses, and property owners are forced to spend thousands in legal fees to fight for the right to keep their own properties.

Ask the friends of Pat Fritzsche, who is laying in an early grave at the age of 54 because his local government targeted him with pressure to sell his corner pub to redevelopers after he worked there for 36 years. Suddenly, Fritzsche was being hit with citations and code violations. Fritzsche angrily protested the bullying harassments at a public meeting on Jan. 4, 2006, where the pro-redevelopment mayor made fun of him and mocked him. Fritzsche died four days later.

Ask Dr. Matthew Olivo, whose nerves were worn to a frazzle by the legal bills and long fight for his right to keep his second-generation dermatology center built by his father. At least he had the money to fight with, others have not. I could easily list a hundred similar examples, there are thousands where the human toll of eminent domain abuse, state sanctioned theft, has ground property owners into devastation fueled by the power-tripping greedy aggressions of local officials acting as pimps for redevelopers.

Lou Bezich, the author of the April 1 Perspectives piece, is a public relations man for redevelopers. He has suggested what he calls an "extreme management firestorm" to address public opposition to eminent domain abuse. While the military imagery may be fitting in these aggressions, what he suggests does not address what the problem is. You can't put lipstick on a pig and say it's pretty. You can't "extreme manage" property owners into not noticing what you are doing is taking their private property away from them by force for the benefit of larger and better funded private profiteers.

Extreme management
The concept of "extreme management" would imply there is any basic level of management in the first place. Basic bare minimum management would be a better place to start. The redeveloper here (and the same one letter writer Bezich wrote about) assumed responsibility to maintain one property in a safe condition and still hasn't done so.

I've asked the redeveloper about 12 times since September to paint over the graffiti at the site. It's now April and nothing has been done, except now there is more graffiti. That's a pretty basic "management" task to tend to, wouldn't you say?

These out-of-town redevelopers, whose jumbo-sized mother ship has landed on top of us, have no interest or consideration for our people. We are a cash register to them and they have been less than candid with us on a number of occasions.

What redevelopers mean by "management" is crowd control. What kind of dog and pony show do we have to stage to keep the public at bay and minimize the damage of people picketing and protesting against us? Bezich announces his radical new ideas like having processes that are "transparent" and the need for "civic engagement." In the words of any 8-year-old, duh. Does the idea that government redevelopers should have transparent processes and civic engagement come as news to the redevelopers Bezich works for?

Shameless attitude
To the hundreds of hard-working Americans fighting to keep their properties, Bezich writes, "they can ratchet up the underdog to cult status." There may or may not be a way to ever rescue redevelopment from the disaster it has become for our nation, but this attitude toward its victims does not do much to light the way. And Bezich's defense of the redevelopers who pay him, let's just say it's "transparent."


Cherry Hill NJ Courier-Post: http://www.courierpostonline.com

Kathy Hogan is a commissioner in Haddon Township

4/15/2007

Law protecting residents might hurt community: Hampton Roads VA Daily Press, 4/14/07

Tighter eminent domain rules could keep some people in a stinky neighborhood

By Veronica Gorley Chufo

Stricter eminent domain laws may threaten the relocation of about 200 Pinewood Heights [VA] residents, who endure foul odors and noise from a nearby meatpacking plant and other industries.

State lawmakers this month passed changes to the state's eminent domain law, which allows local governments to take private property if they pay for it.

The state housing department is evaluating the changes and what it will mean for projects such as Smithfield's, a spokeswoman said.

"We are anxiously waiting to find out what effect this is going to have on our project," Smithfield Town Manager Peter Stephenson said.

The changes might make it tougher for governments to take properties and carry out redevelopment projects across the state, including ones in Smithfield, Newport News and Suffolk.

"It's used very sparingly, but in cases of public necessity, it's a valuable tool," Stephenson said. "Nobody wants to see it abused. Unfortunately, the cases where it's abused have brought about this knee-jerk reaction."

It's a big victory for individuals' property rights for landowners, said Joseph T. Waldo, a Norfolk-based lawyer who represents landowners in eminent-domain cases.

"Virginia is a very harsh state when it comes to property rights," Waldo said. "The bill is a major step in the right direction."

In November, Smithfield agreed to accept a grant to improve the living conditions of Pinewood Heights residents by relocating about half of them. The rest would be moved in later years.

But the town didn't enter a contract with the state housing department until February. The new law affects plans adopted after Jan. 1. The town plans to ask the state attorney general whether the changes apply to the project.

The amendment narrows the definition of blight. Before, a property that wasn't blighted could be taken as part of a neighborhood redevelopment project if the surrounding properties are blighted, Waldo said.

Now, each property must be ruled blighted, which the new law defines as "any property that endangers the public health or safety in its condition at the time of the filing of the petition for condemnation and is (i) a public nuisance or (ii) an individual commercial, industrial or residential structure or improvement that is beyond repair or unfit for human occupancy or use."

In Pinewood Heights, not all of the houses are in disrepair. Some have recently been upgraded.

With eminent domain, the town would be able to buy those houses at fair-market value. But if they're not deemed blighted, then the landowner dictates how much he or she is willing to sell them for.

"It's just going to drive the cost of the project through the roof, and that comes back on the taxpayers," Stephenson said. "To me, that's the sad irony of it."

James Gurganus, executive director of the Williamsburg Redevelopment and Housing Authority, agreed.

"Small towns and old cities are going to become slums," Gurganus said. "The towns and cities cannot afford to rehabilitate the properties and neighborhoods on their own."

For Newport News, that new definition could put stumbling blocks before the expansion of Madison Heights, where the city has demolished blighted houses between 26th and 28th streets to make way for new affordable houses.

"It could really cripple the housing authority's ability to get rid of blight," said Derek Kahn, the housing agency's director of community development.

In Suffolk, the city is working on an affordable-housing project called The Fairgrounds. The changes might make it harder to put together a site to redevelop, said Clarissa McAdoo, executive director of the Suffolk Redevelopment and Housing Authority.

Pinewood Heights homeowner Phyllis Townsend said she was disturbed to learn that the changes might threaten relocation.

"They don't consider us as taxpayers, as a neighborhood," Townsend said. "They need to come out here and stay a week and see for themselves - the sounds we hear, the smells we put up with and now, this time of year, the bugs are bad."

If the town offers decent places to live, it shouldn't need to use eminent domain, Townsend said.

Cases where landlords are unwilling to part with the rent they make from houses might call for eminent domain, Stephenson said.

Eminent domain is a worthwhile tool for redevelopment or improving residents' lives, but it can be used unnecessarily, Waldo said.

"If you've got a blight situation and it would benefit the community and you would treat them fairly and compensate them, it would be a good thing," he said, "but we should never force people to leave their homes."

Stephenson said Pinewood Heights is a prime example of the benefit of eminent domain.

"Because of the industrial location of the neighborhood, it needs to be relocated," Stephenson said, "but this may preclude that from happening."


Hampton Roads VA Daily Press: http://www.dailypress.com

Jury hears eminent domain case: Argus Observer, Ontario OR, 4/13/07

By Andy Gates

A jury will decide today how much money the state of Oregon should pay to Poole Real Estate Corporation for four acres of land that was taken through eminent domain to be used for a key road project in Ontario.

Eminent domain is the constitutional power of government to seize private property for public use, and the Oregon Department of Transportation used that authority to take four acres of land Jan. 10, 2006, owned by Poole Real Estate Corporation (PREC), according to a jury synopsis of the case filed by the Oregon Department of Justice in Malheur County Circuit Court.

Jurors will determine how much compensation PREC should receive from the state for the land because amounts proposed by the two entities vary by around $1.4 million, according to the state’s jury synopsis.

The Oregon Department of Transportation asserts it should pay $238,400 for four acres of PREC land.

However, PREC claims the land is worth a lot more, or $1.6 million according to the state’s jury synopsis.

The PREC land will be used in a road project involving a newly constructed Yturri Beltline around Ontario that will connect to a new North Ontario Interchange at Interstate 84, according to the jury synopsis.

The purpose of the project is to reduce truck traffic through downtown Ontario — that traffic was a problem for city government and roadway maintenance, according to a trial memorandum from the Oregon Department of Justice on behalf of ODOT.

PREC property includes a lot near the I-84 interchange purchased in 1970 where a Shell station was built; an adjacent 10 acres was later purchased in the mid-1980s where a cardlock facility was erected; and then during the next several years PREC acquired additional land, according to a trial brief from PREC attorney John McCulloch Jr., Salem. The state argues the road project adds value to the four acres of land in question, but attorneys for PREC assert the land had an intended use before the project.

“The state’s experts contend that there are special benefits to the land after the project is completed and the owner’s experts deny that there are any,” according to the state’s trial memorandum.

However, PREC contends that before the project, the property would have been used to build a truck stop, along with additional land owned by PREC.

“The owner believes that before this project he had an integrated 15.19-acre parcel perfectly situated for development of a truck stop-travel center, and with a highest and best use therefore. Plaintiff’s (state) appraisers argue that the property had no such highest and best use; and that any very significant value of the property is only as a result of this state project,” according to McCulloch’s trial brief.

Jurors should determine the value of the four acres on the date of Jan. 10, 2006, according to the state’s jury synopsis. PREC contends the state took 2.67 acres in May 2002 for the Yturri Beltline construction, but during the next several years PREC acquired more land so it had a 15.19 acre “larger parcel,” from which the state is taking four acres, according to McCulloch’s trial brief. The state, however, claims PREC has around 12 acres of property remaining after the four acres is taken out, and the land is not all directly touching or utilized for the same uses, according to the state’s jury synopsis. The jury trial was held all week and is scheduled through today, according to the Malheur County Circuit Court Clerk’s Office.


Argus Observer, Ontario OR: http://www.argusobserver.com

Eminent Domain Seizures Loom Over West Maspeth: Queens Chronicle, Rego Park NY, 4/12/07

By Colin Gustafson

The government’s proposal to renovate or replace the Kosciuszko Bridge could bring innumerable benefits to motorists who traverse the dilapidated 1.1-mile stretch of the Brooklyn-Queens Expressway each day. But for a handful of residents and industry workers in West Maspeth, the impact could be devastating.

In a draft of the Kosciuszko Bridge Project’s Environmental Impact Statement, the Department of Transportation considered five different building alternatives. They include plans to refurbish the 68-year-old bridge and build either one or two parallel spans; demolish the existing bridge and replace it with two new bridges; or build a temporary bridge while construction on another permanent bridge is ongoing. Construction could cost between $515 million to $712 million and take up to six years.

The project could displace as many as nine Maspeth businesses and between 260 and 368 employees, state officials said. “This is going to be difficult, even under the best of circumstances,” said George Kosser, vice president of operations for Karp Associates, a door manufacturer that has operated out of the same plant on 43rd Street for more than five decades.

With over 100 employees, Karp is the largest business in the neighborhood facing seizure under eminent domain. All five of the state Department of Transportation’s building proposals would force the company to relocate, while a sixth “No-Build” option would leave it unscathed.

Already this month, Karp executives have entered talks with state officials on a potential time frame for relocating — a process that would be especially hard for the manufacturer, since its interlinked assembly lines and delicately calibrated machinery cannot be moved without major interruptions to the operation. To stay afloat, Karp would have to open a whole new plant before leaving the old. “We’re not a distributor who can just pack up and move,” he said. “If we don’t get a few years to rebuild, we won’t survive.”

In the meantime, state officials have instructed the company to continue its daily operations as if there were no prospect of being displaced. Under federal statute, the government is not required to reimburse a business for decisions made on the assumption that its assets will be seized under eminent domain. Such rules allow federal and state officials to minimize future liability — for instance, if a business owner buys up expensive new properties in hopes of being handsomely compensated for them later.

That same rule, however, has left Karp in financial limbo, with a recently purchased lot that can no longer be developed. “It does not pay to put the effort and agony into expanding it,” Kosser said. “We’re realists: We know it’s going to be taken along with everything else, and we don’t want to further jeopardize our company or employees.”

Karp’s northern neighbor, the Choudri family, may also lose their properties to the Kosciuszko project. One of the state’s proposals, which calls for the rehabilitation of the bridge and construction of a second bridge on its eastbound side, would result in the right-of-way acquisition of the three adjacent houses owned by Akhtar Choudri, who has lived in the area for 28 years.

Now, Choudri’s 42-year-old son, Tes — who occupies one of the homes on 43rd Street with his wife and child — is hoping to simply cut his losses. State officials have promised him a new home in or near Middle Village, if they decide to seize his father’s properties, he said. But if the government does not take the homes, the noise of construction and other disruptions will likely drive the family out anyway, he said.

“I’d prefer to leave. If the state adopts another plan, and we end up staying, all that (construction) is going to be happening right over my child’s head,” Tes Choudri said. “I’d never give up my home voluntarily, but every other option is just going to kill us. It won’t be worth the aggravation.”

Businesses that do remain, along with residents of more than two dozen other homes on the Queens side of the project, can expect noise increases during construction, according to the impact study. The state will release its completed Environmental Impact Statement in either August or September, according to department spokesman Adam Levine. The approved proposal still has to be reviewed by federal transportation officials.

Before the completion of the impact statement, the state will host two public hearings; one in Brooklyn on April 19 and the second on April 26 at DeVry Institute of Technology, located at 30-20 Thomson Ave. in Long Island City


Queens Chronicle, Rego Park NY: http://www.zwire.com

Eminent domain issue in mall case: Bristol CT Press, 4/2/07

By Jackie Majerus

Attorneys for the city and for Ocean State Job Lot argued before the Connecticut Supreme Court Thursday over whether Bristol can evict the Rhode Island-based retailer from the downtown mall.

The case seems to rest on whether the city's purchase of the property amounted to the same thing as use of eminent domain.

In Ocean State Job Lot's lease, it says that if a certain amount of the mall property "shall be acquired or condemned by right of eminent domain for any public or quasi public use or purpose," the landlord may terminate the lease.

The city's position is that the lease allows it to terminate the lease because the city acquired the property for a public use.

But Ocean State Job Lot's argument is that the city did not use eminent domain to buy the mall property and so cannot simply terminate the store's lease.

"This is a contract interpretation case," said attorney Houston Putnam Lowry, who represents the city.

Bridget Gallagher, the lawyer representing Ocean State Job Lot, said the city never used its power of eminent domain when it bought the mall two years ago - and couldn't have at the time, because there was no redevelopment plan for the property.

She said no city board ever passed a resolution to use eminent domain and that no official ever testified that the city intended to use that power.

"No such evidence was ever introduced," Gallagher told the panel of five justices.

The city wouldn't have been able to continue to use Lowry, Gallagher said, if it intended to use eminent domain to take the property, because Lowry also worked for the former mall owners and would have had a conflict of interest.

"The city did not want to use eminent domain," Gallagher said.

At one point during Lowry's argument, Lowry had a somewhat contentious exchange with Senior Associate Justice David Borden.

"Of course the city has the power of eminent domain, once it goes through the formal statutory requirements," said Borden.

Lowry said the city was en route to using eminent domain, having taken the first step, which he said is negotiating for the property. According to Lowry, there isn't any difference between the city buying a piece of property and taking it by eminent domain.

"A vote to purchase is synonymous with a vote to condemn," said Lowry.

Ocean State officials have repeatedly said they want to keep their downtown Bristol location, and John Conforti, the company's chief financial officer, said that is still true.

The store's lease runs until 2014, Gallagher said.

Conforti, who attended the arguments before the Supreme Court, said he was impressed by the session.

"The justices came across as very astute," said Conforti. "This is such a higher level."

Conforti said that Lowry's argument was "fluff" to Gallagher's "fact."

City corporation counsel Edward Krawiecki Jr., who also attended the Supreme Court arguments, said the burden was on Ocean State Job Lot to show why the appellate court ruled in favor of the city.

"The city's case is very strong," said Krawiecki.

But Krawiecki acknowledged that it is "possible" that the Supreme Court will overturn the lower court's ruling.

"It's hard to predict what the Supreme Court will or will not do," said Krawiecki.
It may be many months before there's an answer.

Krawiecki said if the justices do not deliver their ruling by mid-June, it will be at least September before they do.

The city could condemn Ocean State Job Lot's lease instead of pursuing an eviction, Krawiecki said, but he said this route was chosen instead.

"The last administration did not want to condemn," said Krawiecki. When Mayor William Stortz took office, Krawiecki said, the case against Ocean State was already under way.


Bristol CT Press: http://www.bristolpress.com

The diner vs. City Hall: Fortune Small Business Magazine, 4/4/07

A small restaurant owner battles her local government over eminent-domain power - and wins

By Ian Mount

Maria Aposporos must never have heard the adage about fighting city hall. The 60-year-old owner of Curley's, a Stamford, Conn., diner, took on her local government when the city decided that her location, on gentrifying West Park Place, would be a perfect spot to build an apartment tower.

The city tried to use its eminent-domain powers to buy the property for $233,000, some $1 million less than Aposporos's appraiser thought it was worth. Aposporos fought Stamford in the Connecticut Supreme Court and won.

The city then erected a chainlink fence around three sides of Curley's (which has no Web site, but can be reached at 203-348-2020), cutting it off from a parking lot and dumpster.

Aposporos countered by winning a seat on Stamford's board of representatives.

But lately things haven't been looking good for Aposporos. As a member of the minority Republican Party, she says that her power on Stamford's board is nil.

And her attempts to sue for access to the parking lot - to which Stamford mayor Dannell Malloy says she sold the rights more than 20 years ago - have been unsuccessful. "I'm getting frustrated," Aposporos admits.


Fortune Small Business Magazine: http://money.cnn.com/magazines/fsb