Campaign to Reform Eminent Domain Abuse Kicks Off Signature Gathering: California Alliance to Protect Private Property Rights, 7/3/07

News Release
Legislature Continues to Consider Meaningless Property Rights Legislation
A broad [citizens'] coalition announced it is launching its efforts to begin the signature gathering process to qualify the California Property Owners and Farmland Protection Act (CPOFPA) for the June 2008 ballot. Since the U.S. Supreme Court’s controversial Kelo v. New London decision two years ago, 41 states have enacted eminent domain reforms to protect the private property rights of citizens, with 20 states passing meaningful protections, but true reforms have eluded California so far.

Supporters of eminent domain reform cite the State Legislature’s consideration of the redevelopment industry’s ACA 8 as further evidence that no meaningful reform will be considered this year. ACA 8, submitted by Assemblyman Hector De Le Torre (South Gate), has been roundly criticized by private property rights experts, small business, taxpayer, farm and faith based groups as meaningless legislation. The Institute for Justice, who litigated the Kelo case, says of ACA 8 that, “the act will do little to prevent the actual taking of private property in California – and this flaw is fatal.”

“Laws that allow government to seize private property from California homeowners to build shopping centers and industrial parks must be changed,” said Jon Coupal, president of the Howard Jarvis Taxpayers Association. “Since the legislature has failed to protect private property, voters will.”

Unlike ACA 8 which is riddled with loopholes, the California Property Owners and Farmland Protection Act outright prohibits government’s ability to profit by taking private property from one property owner and giving it to another.

“Family farmers and ranchers are very concerned about abuses of the government’s power to condemn land. It’s not right that court decisions allow the government to take your property and give it to someone else.” California Farm Bureau Federation President Doug Mosebar said. “This ballot measure helps assure that farmland continues to produce food and agricultural products, and offers much-needed protection for home and business owners throughout California.”

Major provisions of the California Property Owners and Farmland Protection Act include:

• Protect all properties from being taken for private development – including homes, businesses, family farms, places of worship and rental property.
  
• Continue to allow property to be taken for true public uses, such as highways, parks and schools.
  
• Prohibit government from seizing property for the same use as that of the original owner.
  
• Require that the property be offered for sale to the original owner if the public use for which a property was seized is ever abandoned.
  
• Provide agricultural and open space protections (aka Conaway Ranch Provision).
  
• Entitle property owners who are evicted by eminent domain to compensation for temporary business losses, relocation expenses and other reasonable expenses.
  
• Prohibit government from determining the price a property owner can charge to sell or lease their property.

While Prop. 90 was defeated by a slim margin last year, a survey conducted by Public Opinion Strategies earlier this year indicated that over 67% of potential voters would support another ballot measure to protect their property from developers looking to build shopping centers and industrial parks. Since the CPOFPA does not include Prop. 90’s regulatory takings and has no limitation on government’s ability to take property for legitimate public projects, proponents are confident that this measure will qualify for the June 2008 ballot.

“Our campaign to restore private property rights protections for all Californians will be one of the state’s most ambitious campaigns ever” said Senator Jim Nielsen, ret., president of the Alliance. “Voters must stand united against special interests that seek possession of their homes, businesses and family farms.”

Opponents of ACA 8 have questioned the motivation for the League of California Cities effort to introduce a poison pill provision (amendment) later in the legislative process that would undermine passage of the California Property Owners and Farmland Protection Act. Should both ballot measures win voter approval next year, the poison pill provision would dictate that the measure with the most votes becomes law. Conceivably, the measure with no real protections could become law, leaving voters with the impression that they have been provided property protections when in fact they have not.

The proposed initiative will require 763,789 signatures to qualify for the June 2008 ballot.

The California Property Owners and Farmland Protection Act is sponsored by the Howard Jarvis Taxpayers Association, California Farm Bureau Federation and California Alliance to Protect Private Property Rights.

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California Alliance to Protect Private Property Rights: http://www.yesonpropertyrights.com

City might use eminent domain to take over historic mansion: KVIA-TV7, El Paso TX, 6/18/07

The [El Paso TX] city government has taken another step towards taking over the historic A.B. Fall mansion.

The mansion, formerly the property of Albert B. Fall, is located at 1725 Arizona in Central El Paso.

Fall's granddaughter, Marthana Bethune, tells ABC-7 the city has set aside $633,000 to buy the mansion pending a decision. Bethune believes the mansion should become a museum.

A series of complaints and failed inspections during the past ten years has made city officials debate taking control of the mansion.

Three commissioners appointed by a judge have determined the value the city will pay for the historic building if the eminent domain proceedings go through.

A hearing is scheduled for July 18th to determine if the city can go through with the purchase.

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KVIA-TV7, El Paso TX: http://www.kvia.com

San Bernardino County scrambles to protect power of eminent domain: Riverside CA Press-Enterprise, 6/19/07

By Duane W Gang
San Bernardino County is moving to pass new laws to protect its ability to use the power of eminent domain to acquire property. Other cities and counties across the state are doing the same.

To meet the requirements of a state law approved last year, local redevelopment agencies must outline their programs to use the often controversial land-acquisition tool. If not done by July 1, the agencies could lose the power of eminent domain.

San Bernardino County supervisors take up ordinances today, while the city of San Bernardino passed similar measures Monday.

Kathy Thomas, head of the county's redevelopment agency, was unavailable Monday for comment.

But county spokesman David Wert stressed that passage of ordinances for the Speedway, Cedar Glen and Mission Boulevard redevelopment areas does not mean the county has plans to use eminent domain to acquire land.

"It's controversial when ... the government goes in and takes a person's home and forces them to relocate when they don't want to," Wert said.

"The redevelopment agency has never done anything like that," he said. "When the redevelopment agency has used eminent domain in the past, it is to acquire portions of people's property to put in place infrastructure improvements."

Eminent domain allows a government to take property without an owner's consent as long as a fair market price is paid.

The proper use of eminent domain has become a more heated topic of debate since a 2005 U.S. Supreme Court decision that the city of New London, Conn., could use eminent domain to take private land and turn it over to another private entity if it would result in a more economically beneficial use.

A local voter-approved change in San Bernardino County's charter, known as Measure O, prohibits the county from using eminent domain to turn land over to another private entity. But the measure, approved in November, does not apply to the redevelopment agency, a separate legal entity that supervisors oversee.

Wert said the ordinances do not contain any specific properties targeted for acquisition. And he said Measure O, placed on the ballot by supervisors, shows how reluctant current supervisors are to use their eminent domain power.

Wert said county officials believe if no action is taken by July 1, the redevelopment agency would no longer be allowed to use eminent domain.

"It is not prudent to slam the door on that by not filing a plan," he said.

Each of the county ordinances up for a vote contain time limits on the use of eminent domain, ranging to 2016.

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Riverside CA Press-Enterprise: http://www.pe.com

Rich vs. Poor — San Diego Gym’s Eminent Domain Fight: North Country Gazette, Chesterton NY, 6/19/07

SAN DIEGO — Kick out the poor, bring in the rich
Kick out the poor, bring in the rich: those are the goals of a bogus “blight” declaration that National City, Calif., is expected to move forward Tuesday night.

In renewing a declaration that two-thirds of National City (a predominantly Hispanic San Diego suburb) is “blighted,” the city government’s goal is not to remove blight, but rather to remove the poor and minorities who have managed to purchase property and replace them with the rich and politically powerful.

But National City did not count on the Institute for Justice (IJ) — a public interest law firm with a long and successful history of fighting eminent domain for private gain — taking up the cause of National City property owners and fighting back.

On June 19, the Community Youth Athletic Center (CYAC) — a gym in National City that helps low-income, minority kids stay off the streets and avoid gangs — announced it would join the Institute for Justice to challenge the decision by National City, Calif., to target the gym, as well as many other properties, for eminent domain.

“We’re going to fight the city’s outrageous plan to take away our gym so a developer can build condos for rich people,” said Victor Nuñez, vice president of the CYAC and a San Diego County Deputy District Attorney. “We’re doing what we teach our kids to do; we’re standing up for what is right.”

“With its bogus blight designation, National City is laying the groundwork to destroy flourishing small businesses, churches and service organizations like the CYAC,” warned Jeff Rowes, a staff attorney with the Institute for Justice. “Each of these pieces of property may not be put to its so-called ‘highest economic use,’ but each provides the owner with the opportunity for a better life. If that property is taken, only to be handed over to someone else with more wealth and political influence, these industrious but poor individuals will lose their American Dream.”

What is happening in National City is part of a nationwide trend of eminent domain abuse where the vulnerable are victimized. In a study released Tuesday analyzing U.S. Census data, the Institute for Justice documented that eminent domain abuse disproportionately takes land from the poor, less-educated and minorities across the nation. The study, “Victimizing the Vulnerable: The Demographics of Eminent Domain Abuse,” vindicates the warning offered by former U.S. Supreme Court Justice Sandra Day O’Connor, who wrote in her dissent in the infamous Kelo case that eminent domain would be used “to transfer property from those with fewer resources to those with more.”

The first-of-its-kind national study systematically examined U.S. Census data to determine the demographic profile of people subject to eminent domain abuse in 184 projects. It found that 58 percent of those targeted with the threat of eminent domain were minority residents and their annual median income was less than $19,000. Moreover, people living in areas targeted for eminent domain for private development are significantly poorer and more likely to be minority than people elsewhere in their own cities. The report is available at: http://www.ij.org/publications/other/demographic_study.html

Not only does National City hope to kick out current property owners and replace them with wealthier ones, but it also plans to take on more debt, according to IJ. A “blight” designation enables a government redevelopment agency to incur huge debts and capture property taxes that would otherwise go to the county. California redevelopment agencies collectively owe more than $60 billion and are the exclusive recipients of property taxes on more than $380 billion worth of property. Overall, redevelopment agencies capture about 10 percent of all property taxes collected in California.

Demonstrating one of the many ways the blight declarations are unconstitutionally stacked against property owners, National City’s City Council did not even release any of the documents necessary to challenge the blight designation until just a few days before Tuesday’s Council hearing, making it impossible for property owners to effectively challenge what the city is doing at the meeting—the only opportunity the law provides for them to do so, IJ officials said.

“California’s new eminent domain statute must be vigorously enforced by the courts if the poor and ultimately all Californians are to be protected from eminent domain abuse,” said Dana Berliner, an Institute for Justice senior attorney. “The courts must allow property owners the opportunity to review and challenge so-called blight designations. That is what this case is all about.”

“If you believe eminent domain is needed for redevelopment, look around you; virtually everything in America has been built without it,” concluded Rowes. “Development can be done, but it shouldn’t be done through government force. It should be done through private negotiation.”

This Saturday, June 23, marks the second anniversary of the Kelo ruling. The backlash against the Kelo ruling was swift and nearly unanimous. Public opinion polls consistently show that more than 80 percent of Americans disapprove of using eminent domain for private gain, as is going on in National City. Already 41 states, including California, have reformed their statutes to some degree to afford property owners greater protection against the wrongful seizure of their property. The two state supreme courts that have squarely considered the Kelo question unequivocally rejected the use of eminent domain for economic development.

The California Supreme Court has not taken a case in three decades addressing statutory and constitutional limitations on redevelopment. With so many Californians, many of them economically disadvantaged and minority, facing gross eminent domain abuse, the time is ripe for the California Supreme Court to consider this important issue and rein in this awesome power of government

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North Country Gazette, Chesterton NY: http://www.northcountrygazette.org

Strength of Griswold eminent domain rule questioned: Norwich CT Bulletin, 6/15/07

By Julie A Varughese
At a special [Griswold CT] town meeting Tuesday, residents approved an ordinance, 15-3, designed to protect private property from being usurped by the municipal government for economic development.

Residents who spoke against the ordinance were concerned about its ability to protect property owners adequately and provide fair compensation when land is taken.

"I think this is weak," said Norman Higgins, who voted against the ordinance. "When we all go to sell our property, we ask for a greater price."

The ordinance stipulates the owner of residential, vacant, industrial or commercial property will be compensated at 125 percent of the appraised value, which would be calculated by a certified appraiser.

Resident Ron Ward said that amount could be negotiated, or it would be battled through the court system if a property owner is not satisfied with an offer.

Resident Harry Hansen asked if the town could sell usurped private property to a private entity.

Selectman Bill Stetson said he didn't know.

The ordinance was drafted in response to the Kelo v. New London Supreme Court decision in 2005, which ruled a government could transfer private property from one owner to another for economic development.

In New London's case, the Fort Trumbull neighborhood will be eliminated to build condominiums, a hotel and offices.

The decision upset property owners and politicians throughout the state and nation, and several towns in Eastern Connecticut looked into drafting ordinances protecting property owners. Griswold selectmen looked at these ordinances for guidance when drafting their own.

Stetson and First Selectman Anne Hatfield said the town's ordinance can provide more protection for property owners than a state law.

The ordinance does not limit the town's right to use eminent domain for public purposes, such as construction of sewers, highways, sidewalks, rights of way, flood and erosion control, or for any other transaction where the property rights acquired will be held or controlled by the town.

Resident Ron Ward spoke in favor of the ordinance, saying it is only meant to be taken as a policy stance, and it may really not provide much protection at all.

"We do not have the ability in the town of Griswold to control what the state wants to do," Ward said. "We just have to take what comes down the way."

He speculated before any decision is made on a case of eminent domain, public hearings likely would be held.

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Norwich CT Bulletin: http://www.norwichbulletin.com

Wal-Mart proclaims win in Hercules fight: Contra Costa CA Times, 6/15/07

By Tom Lochner
A Contra Costa judge, confirming her earlier tentative ruling, has invalidated a Hercules ordinance that underpinned the city's effort to acquire by eminent domain a tract owned by retail giant Wal-Mart.

The ordinance, adopted by the City Council in September, sought to confirm the continued existence of the city's eminent domain authority in the so-called Dynamite Project Area and extend it for another 12 years.

Wal-Mart spokesman John Simley this week proclaimed "a clear win for the many thousands of customers who know Wal-Mart saves them money so they can live better" and said it would resume the process of applying to the city to build a store.

But City Attorney Mick Cabral said Hercules is considering other legal avenues for possibly using eminent domain.

In late spring 2006, the City Council authorized the invocation of eminent domain to seize the property for its fair-market value, contending Wal-Mart had shown bad faith by filing application after application for a store that would exceed the size limit under a 2003 development agreement with the previous owner of the tract. The parcel remained fallow, leading to a finding of economic blight by the city. The Dynamite Project Area refers to a dynamite plant that closed several decades ago, leaving behind physical blight.

Wal-Mart's latest, scaled-down application last year was for a 99,000-square-foot store, down from the 140,000-plus square feet of two earlier applications. The city contends the maximum size for any individual store on the tract is 64,000 square feet. Wal-Mart says its store falls within the approximately 168,000 total square footage of store space allowed for the tract.

The Wal-Mart tract is the 17-1/4-acre future Bayside Marketplace off John Muir Parkway roughly midway between San Pablo Avenue and San Pablo Bay.

Wal-Mart attacked the ordinance adopted in September on two main grounds: first, that the city's eminent domain authority in the project area had lapsed and therefore could not be extended; and second, that the city could not back up its finding of blight, a necessary condition for asserting eminent domain. Blight must be both physical and economic under current redevelopment law.

Contra Costa Superior Court Judge Judith Craddick, in striking down the September ordinance amending the redevelopment plan, ruled that Hercules had not made the case that the property is blighted. The ruling did not address whether the city's eminent domain authority had actually lapsed at the time the council adopted its ordinance.

"We're pleased with the judge's decision confirming that the city's ordinance was not valid," Simley said. "We're looking forward to working with the city to complete the application process and bring a very distinctive new store to the community."

Cabral did not elaborate on what basis the city might yet try to seize the Wal-Mart tract by eminent domain. The council discussed the Wal-Mart-eminent domain issue in closed session earlier this week, but Mayor Ed Balico said there was nothing to report when the council reconvened in open session.

Cabral expressed confidence that even if the city should decide no longer to pursue eminent domain, the terms of the 2003 development agreement would block the kind of store Wal-Mart has proposed.

Wal-Mart's announcement in late 2005 that it had purchased the Bayside Marketplace tract to build a store there has provoked stiff opposition from residents who say it would clash with the pedestrian-friendly concept of the Central Hercules and Waterfront areas by drawing automobile traffic mostly from out of town. Many residents denounced Wal-Mart at City Council meetings last year, accusing the company of paying low wages and providing lousy benefits to its employees while causing a net loss of sales tax receipts for host cities by destroying neighboring businesses. Wal-Mart has denied those charges and maintained throughout that it enjoys widespread community support in Hercules.

Craddick held in abeyance a permanent injunction to restrain the city from implementing a 2001 merged and restated redevelopment plan until the 2006 amendment is lawfully adopted, pending proof from the city of actions it has already taken to implement the 2001 plan. Cabral said the city expects to present the evidence by mid-August and that a final court ruling on the issue is likely in mid-September.

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

Articles from Texas about Governor Perry's June 2007 veto of eminent domain bill

• http://corridornews.blogspot.com/2007/06/its-regrettable-that-perry-
  cast-aside.html
  
  
• http://corridornews.blogspot.com/2007/06/now-government-is-in-business-of.html
  
  
• http://corridornews.blogspot.com/2007/06/with-this-veto-perry-has-left-every.html
  
  
• http://corridornews.blogspot.com/2007/06/hes-got-big-ag-background-but-since-hes.html
  
  
• http://corridornews.blogspot.com/2007/06/gov-perry-has-sent-message-loud-and.html
  
  
• http://corridornews.blogspot.com/2007/06/sen-hegar-im-confused-why-all-of-sudden.html
  
  
• http://corridornews.blogspot.com/2007/06/perrys-playbook-when-all-else-fails.html
  
  
• http://corridornews.blogspot.com/2007/06/taking-of-private-property-has-become.html
  
  
• http://corridornews.blogspot.com/2007/06/it-is-not-responsibility-of-individual.html
  
  
• http://corridornews.blogspot.com/2007/06/unfortunately-this-veto-exposes.html
  
  
• http://corridornews.blogspot.com/2007/06/perrys-desire-for-giant-limited-access.html
  
  
• http://corridornews.blogspot.com/2007/06/current-texas-law-allows-land-grabs-hb.html
  
  
• http://corridornews.blogspot.com/2007/06/txdot-and-toll-road-authorities-oppose.html
  
  
• http://corridornews.blogspot.com/2007/06/trans-texas-corridor-land-grabs-remain.html
  

Jury to City - Pay Up: Philadelphia PA Daily News, 6/25/07

By Dave Davies
When the U.S Department of Housing and Urban Development told the city in 2005 that it had violated federal relocation law in dealing with Ed and Debbie Munoz, the city told the feds to take a hike.

The Munozes, whose Juniata Park business was in the path of a planned housing development, complained that they'd lost their business, home and savings in part because the city had kept them in the dark for two years about plans to take their property.

And they said the city had failed to apprise them of their legal rights to relocation expenses and business counseling at a time when it would have made a difference.

As the Daily News reported last year, the city told HUD and the Munozes it had followed the law in acquiring the land and owed them nothing.

But the Munozes took the city to court, and a federal jury saw it differently.

After a four-day trial in March, a jury concluded that the city indeed had violated the federal Uniform Relocation Act, and awarded the Munozes $497,230 in damages. The city also must pick up the Munozes' legal fees.

"We all cried. My daughters just sobbed," Debbie Munoz said of the moment she heard the verdict. "It was vindication for us hanging in there through this nightmare."

The Munozes bought a neighborhood grocery and garden center in August 2001 with high hopes for a second career. Debbie was a social worker with an interest in gardening. Ed had run a small business.

They got bank loans for $1 million to buy and improve the grocery, pledging their New Jersey home as collateral.

But soon after they opened the place, they started hearing from angry customers that the city was going to close the market and take the land for a planned housing development.

"People were coming in real hostile, accusing us of selling out to the project," Debbie Munoz said.

So while business deteriorated over the next 2-1/2 years, Munoz tried to get information from every city agency she could get on the phone about plans for the area.

She got nowhere.

"We had to make business decisions, and couldn't get any straight answers," Munoz said. "We couldn't sell without disclosing the possibility it might be taken, but didn't want to invest in something that had no future."

Ed Munoz became seriously ill in 2002 with ulcerative colitis and related complications, which the couple believe were stress-related.

The Munozes finally closed the business and declared bankruptcy in spring 2004, just as the city was moving to acquire the property.

Once the business was in bankruptcy, city officials said, the city was legally barred from offering the Munozes compensation for the property. The city got the parcel at a sheriff's sale, and the Munozes got nothing.

The Munoz property was taken for the Twin Homes at Frankford Creek, a 50-unit mixed-income development that city officials and the Frankford Community Development Corp. began planning at least as early as 2002.

City officials maintained that from 2002 through 2004, it wasn't clear whether the Munozes' corner lot would be needed for the project.

And they said they couldn't have legally informed the Munozes until that spring, when legislation authorizing the taking of their land went to City Council. But information developed in the civil case suggests the city had its eye on the Munozes' property much earlier.

For example, then-city housing director Deborah McColloch's notes of a September 2002 meeting on the Frankford Creek project contain the phrase "need to acquire the entire triangle," indicating an area that includes the Munoz property.

And an April 2003 letter from the Frankford CDC, which was developing the project, specifically asked the city's Redevelopment Authority to acquire the Munoz property.

There were other documents, including site plans and a state loan application, that referred to the Munoz property.

"The law requires that as soon as it's practical, the city has to tell property owners that the city is considering acquiring their land," said the Munozes' attorney, James Golden. "It's really common sense."

Golden said the evidence makes it clear that the city hid its plans from the Munozes, and they were harmed.

City officials declined to be interviewed on the verdict, though RDA spokesman Frank Keel said in a prepared statement that the city sees "no factual or legal basis" for the judgment, and the city has filed motions to challenge the verdict.

In court filings, city lawyers acknowledged that federal law requires early notice to property owners, and that a HUD handbook says that "as soon as an agency has identified properties it might be interested in . . . the agency needs to notify the owners in writing."

But they insisted that the city has good reasons not to tell property owners until it is sure it will acquire their parcels. If the city informs owners of a possible taking and plans then change, city attorneys argued, the city could be exposed to legal action.

Further, the city argued that the Munozes' business had failed for many reasons, including the closing of a nearby Acme, actions taken by the previous owner and Ed Munoz's illness.

The city's "forensic accountant determined from a review that [the Munozes'] business was worthless after December of 2002, nine months before the FCDC and the city had even obtained the requisite funding to make the project happen," city attorneys wrote.

Debbie Munoz agreed that her business had other problems, but said the uncertainty and ill will that the impending project brought hurt the business, and that the two years she spent not knowing what the city's plans were left her in a decision-making limbo.

Munoz said she was disappointed that the city appears determined to appeal the jury's decision.

"I wish I could get up tomorrow morning and just live my life," Munoz said. "I need to have this off my mind at 4 o'clock in the morning."

Three years after the Munozes lost their property, construction still hasn't begun on the Twin Homes at Frankford Creek.

City documents say that should happen later this year.

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Philadelphia PA Daily News: www.philly.com

Husted Announces Passage of Eminent Domain Legislation: Campaigns & Elections Magazine, 6/13/07

Bill Will Protect Rights of Private Property Owners
Ohio House Speaker Jon Husted (R- Kettering) today announced the passage of House Bill 5, priority legislation aimed at protecting private property owners by restricting the use of eminent domain in Ohio.

"This bill establishes statewide standards for private property owners throughout the state of Ohio," Husted said. "It sets a clear standard for property owners and protects their rights without standing in the way of economic progress."

Eminent domain is the power of a state to seize an individual's private property to fulfill a public need without the consent of the property owner. House Bill 5 was introduced as priority legislation in the House to address the issue of eminent domain in more detail as a direct result of the United States Supreme Court's ruling in Kelo v. New London. The ruling in Kelo stated that a city's exercise of eminent domain power in furtherance of an economic development plan was constitutional.

In response to the Kelo ruling, the Eminent Domain Taskforce was established in the last General Assembly to review eminent domain. The taskforce made recommendations on addressing eminent domain rights in Ohio, preserving the rights of private property owners and preventing Kelo-type eminent domain takings from occurring in Ohio.

House Bill 5 implements a number of the recommendations made last year by the task force. Among the highlights of House Bill 5 are provisions that prohibit communities from using eminent domain powers to acquire property except when necessary and for a public use. The legislation further requires communities to provide a development plan describing the public need for the property.

To address the issue of defining what property can be considered blighted, the bill provides a clear description of blight and a ‘blighted area' as being an area where 50 percent or more or the parcels are blighted. The legislation also protects farmland from being declared blighted.

In addition, the bill requires entities wishing to use eminent domain to provide a period for public comment as well as an appraisal of the property in question. The property owners would have the option of repurchasing the property if it has not been used within five years.

House Bill 5 passed the House today and now moves to the Senate for consideration.

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Campaigns & Elections Magazine: http://campaignsandelections.com

Eminent domain: Cherry Hill NJ Courier-Post, 6/14/07

Re: "Cramer Hill plan won't take houses"
By Theodore Z Davis
I want to take this opportunity to describe the approach Camden will be pursuing in supporting redevelopment activities in city neighborhoods.

Whenever possible, the city will avoid displacing residents of Camden neighborhoods through the use of eminent domain. As reported in the "Courier-Post," the redevelopment plan proposed for the Cramer Hill neighborhood and presented at a neighborhood meeting on May 30 does not call for the acquisition of any occupied housing.

In other neighborhoods, city agency staff will work closely with community members to identify redevelopment goals and priorities and to implement redevelopment plans based on these goals and priorities. Eminent domain powers will be used to acquire vacant properties and may be used, as a last resort, to acquire occupied properties.

However, the city will do as much as possible to avoid residential displacement and, in those instances in which displacement is proposed to occur, will ensure that affected residents will be offered a choice of housing options that will be equal to or better than their current housing status.

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

Theodore Z Davis is Chief operating officer of Camden NJ

City Council divided on issue of eminent domain: Auburn CA Journal, 6/13/07

By Jenna Nielsen
The Auburn City Council will have to hash out its eminent domain policy within the city's redevelopment area at a future meeting.

After a split vote of 3-2, the council decided to direct staff to bring back a stricter policy that would limit the redevelopment agency's authority to use eminent domain in the redevelopment area for traditional public purposes only, not to transfer property from one private property owner to another.

The redevelopment plan already contains a provision restricting the use of residential eminent domain authority.

Once the policy takes effect, it will remain for 12 years.

Councilmembers Kevin Hanley, Mike Holmes and Keith Nesbitt voted to further restrict the ordinance.

"The controversial issue we have been dealing with is the use of eminent domain for private purposes and I would prefer that we use cooperation rather than coercion," Hanley said Tuesday. "There have been abuses with government using these tactics and this guarantees that a future council can only use eminent domain for traditional purposes."

Mayor Bob Snyder said he trusts future councils to make decisions that have the best interest of the city in mind.

"I trust the city council and the community values that would guide the city council," Snyder said. "Right now, no one on the council wants to use eminent domain, but who knows what the future will hold?"

Snyder said he couldn't think of an example of when it would be necessary to use eminent domain, but that he did not want to tie the hands of a future council.

"We really need to trust the city council and give them all the powers they might need in the future," he said. "To do otherwise doubts their ability to make decisions for the city." Hanley said when it comes to protecting property rights, even an honest council would not make a difference.

"Elections of good people cannot stop the problem by itself," Hanley said. "A lawyer from Wal-Mart could come in and tell a small property owner, 'if you don't take this price, the city can come in and take your property.' Even an honest councilmember may not know when those threats are happening because they aren't happening in the public."

Recent misinformation floating about the city's eminent domain authority resulted in some city staff members to go on damage control.

Many in the community had expressed concern that the city's recent approval to expand its redevelopment area to more than 480 acres could mean some commercial properties within city limits are targeted for eminent domain, specifically Eisley's Nursery.

But that's a harsh rumor city officials have said just isn't true, and is a gross exaggeration of what the redevelopment plan actually means.

Council members have said on repeated occasions that the use of eminent domain would be used as a last resort, and that no specific properties have been targeted.

In a March 28 Journal article, City Manager Bob Richardson said he had already begun receiving phone calls about the city's authority to use eminent domain within the redevelopment area.

"We have had some residents contact us concerned about what this all really means," Richardson said. "We are not going to go out and bulldoze anyone's property." The Auburn City Council unanimously voted to expand the existing redevelopment project area May 7. City leaders say that the project will help eliminate blighted properties and areas within city limits.

Eisley's Nursery was just one of dozens of area businesses that were labeled as "blighted" in a 131-page report conducted by the city and GRC Consultants, based out of Orange, Calif.

The report included dozens of photos of properties throughout the city, none of which were named, but were labeled as blighted.

Based on the city's definition, blighted areas include high crime, declining property values and unsafe conditions.

Asked last month whether he believes Eisley's has been targeted by the city, Earl Eisley responded that he has no way of knowing if that is true or not. "At this point, the city has taken pictures and published our business as blighted," Eisley said. "And even if this City Council can't take property through eminent domain, the next council can - there is no security for us down the road."

The council, during a joint session with the Auburn Urban Development Authority, voted to approve the expansion of the existing targeted area, which was originally approved in 1987. Parts of Nevada Street, Highway 49 and Blocker Drive are included in the new area.

The decision by the two agencies, which are governed by the City Council, will also increase the limit on the amount of tax percentage the existing area may receive. If the property values go up as the city works to beautify the area, the city would benefit and so would residents, officials say.

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Auburn CA Journal: http://www.auburnjournal.com

Eminent domain a real concern if TAD passes : Camden County GA Tribune & Georgian, 6/15/07

Letters to the Editor
By Lou Eyerly, St Marys GA
Not only did Durango rape the mill and return to Mexico with millions by selling off parts of the mill and borrowing millions from a national banking system, now LandMar comes in and wants a tax allocation to basically pay for cleaning up the tremendous toxicity at the mill.

The letter from Greg Bird ("LandMar goes a TAD bit too far with our taxes") on Wednesday (June 6) has it correct, but the devil is also in the details. If you get a copy of Tax Allocation Districts [TADs] in Georgia, look on page 8 under: What restrictions apply if a county or municipality is not the redevelopment agency, sub paragraph (5) says "The power of eminent domain may only be exercised by the local legislative body of the country or municipality, or a downtown development authority."

The local legislative body, if the TAD passes on June 19, will place the authority of eminent domain in the hands of a board appointed and not elected to exercise eminent domain power over us. That is not advertised and probably will not be brought out to us before we vote. What a powerful tool to be used against the average citizen.

Also, why should the citizens of St. Marys and the county pay for the cleanup of the Gilman property? Billionaires have purchased the mill, why should they not pay for the cleanup instead of us? My grandmother used to say, "When you buy the dog, you also buy the fleas on the dog." Use some of Greg Bird's figures to see how much each and every one of us will pay for 30 years. So everyone must vote, and when you vote, be sure you understand the issue. Be careful you do not vote yourself into welfare.

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Camden County GA Tribune & Georgian:
http://www.tribune-georgian.com

Property Owners Win One: Human Events, 6/13/07

By John Stossel
Opponents of eminent domain finally have something to celebrate. After a public campaign, Target Corp. has decided not to build a store on condemned property in Arlington Heights, Ill.

Five years ago, the Village trustees declared the International Plaza shopping center and other properties blighted, setting the stage for condemnation under eminent domain. The business owners who were to lose their stores fought the "blight" designation in court but failed.

Yet they didn't give up. They and their supporters held protests at trustee meetings. They were aided by the Sam Adams Alliance and Foundation, which launched a letter, telephone and flyer campaign that threatened to boycott Target if the company went through with its plan to occupy property seized by the government.

In late May, the Alliance triumphantly announced, "Target backed out of their contract with the Village. International Plaza tenants have saved the property from eminent domain abuse, at least for the time being".

The Village attorney said pending lawsuits by tenants of the shopping center were one reason for Target's decision.

It's only a reprieve. The trustees smell big bucks, so they may try to find another major chain to be the principal retailer in the 35-acre development area. In the past, several retailers have been more than willing to build on stolen property. So the residents of Arlington Heights and the Sam Adams Alliance may need to launch another campaign.

Nevertheless, Target's announcement is good news indeed.

The "takings" clause in the Constitution's Fifth Amendment says government cannot take private property "for public use without just compensation." I object to anyone having his property taken by force, but at least traditionally, this power of eminent domain ("superior ownership") was limited to the building of highways, bridges and parks - things meant for general public benefit. But over the last 40 years, governments have redefined "public use" to include private use that they argue has public benefit. Towns began to condemn properties said to be "blighted" and hand them over to private developers, who promised higher tax revenues and jobs.

In 2005, the U.S. Supreme Court blessed this outrageous argument in the infamous Kelo v. New London case. Fortunately, a public backlash followed the ruling, and 41 states have put restrictions on eminent domain for private development. But many of these laws have loopholes for "blighted" property.

Blight is in the eye of the beholder. The Institute for Justice, a libertarian public-interest law firm, says that "the definition of 'blight' has become so broad and unprincipled that governments regularly target perfectly fine homes in ordinary neighborhoods for the wrecking ball."

The use of eminent domain for private profit is the tip of the iceberg of an unappreciated threat to individual freedom. States and municipalities routinely engage in economic planning that would make the old Soviet Union blush. State and local planning boards manipulate the tax laws and hand out cash subsidies to favored retailers and manufacturers, while those without political connections bear the full tax burden or are shut out altogether. The favoritism escalates when governments feverishly compete with one another to attract an auto-assembly plant or a big-box store. Private businesses play each government off against the others to get the most corporate welfare possible.

Who pays? The taxpayers and property owners who are forced to sacrifice for the "common good."

Why do we assume that politicians and bureaucrats know better what's good for the community than people themselves? Competition within free markets benefits everyone. Voluntary exchange is always win-win. Political schemes - which always require force - benefit some at the expense of others.

Many uninformed people think there can't be economic development without planning. That's another myth. Most of America's astounding economic growth occurred without government guidance [See "Kelo v. City of New London: Do We Need Eminent Domain for Economic Growth?."]

The Arlington Heights story shows that big companies respond to public protests. There is a lesson in that. Governments will stop stealing private property from the powerless when businesses refuse to cooperate in this larceny. So the next time one of those giants signs on to a development project made possible by eminent domain, give them an earful.

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Human Events: http://www.humanevents.com

Mr. Stossel is co-anchor of ABC News' "20/20" and the author of "Myth, Lies, and Downright Stupidity: Get Out the Shovel - Why Everything You Know is Wrong"

Sugar Creek delays decision on Sugarland: Blue Springs MO Examiner, 6/12/07

Residents concerned about eminent domain
By Joe Parmon
As several residents facing potential relocation waited anxiously for a decision, Sugar Creek city aldermen last night tabled a vote to approve the proposed Sugarland Center redevelopment project along with a tax increment financing plan designed to entice a developer to begin construction.

If all three phases are completed, about 60 homes would be affected in the project area situated on about 40 acres at the northwest corner of Sterling Avenue and U.S. 24. A grocery store and other attractions are slated to be built, while residents fear eminent domain could be used to take homes and clear the way for the development.

Aldermen discussed several issues surrounding the project, including the purchase of property and negotiations with the developer, Sugarland, LLC, during an executive session following the regular meeting.

The eminent domain issue has raised the ire of citizens across the state and elsewhere. Resident Penelope Marth handed aldermen and others copies of a local newsletter which contained a press release dated May 21 in which a circuit court judge ruled in favor of an Arnold, Mo., dentist who had fought to save his dental practice from what he claimed was eminent domain abuse. Saying she doesn't want to sell her home, Marth remarked she and others object to eminent domain allowing cities to seize private property for the benefit of another private entity.

"I'm not against redevelopment, I'm against eminent domain abuse," said Marth, whose family has lived at her home on South Harris since 1920. Marth said there are better locations in the area for the redevelopment.

"To see land that has never been developed, and to see trees, streams, parks, and wildlife cemented over, that's wrong," commented Marth.

South Sterling Avenue resident Eleanor Miller said she has lived in her home for the past 48 years and doesn't want to move either.

"I've raised my kids in that home. I don't want them to take it," she said.

City Administrator Ron Martinovich has said the city doesn't have eminent domain authorization and is attempting to buy the homes, as the city is seeking to obtain the property for the first phase by Aug. 1.

The total redevelopment cost for the first two parts of the project is $42.3 million, with the developer asking for $23.5 million in TIF assistance.

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Blue Springs MO Examiner: http://www.examiner.net

Losing Homes To the I-580 Interchange: Castro Valley CA Forum, 6/12/07

By Robert Souza
A timeworn proverb reads, “a man’s home is his castle”, and for a handful of Castro Valley residents, their castles will soon become a freeway exchange.

“I was lucky enough to buy my house at a time when the market was low,” said Dave Fulkerson, who’s lived in his Juniper St. home for a dozen years. “With this freeway coming, I feel like the county is trying to low-ball me on the price of my house.”

Fulkerson claims he’s seen other Castro Valley homes that are similar to his selling for upwards of $669,000. But he says he’s been offered just under $600,000 by the Alameda County Transportation Improvement Authority (ACTIA) and the Associated Right of Way Services (ARWS )— less than what he feels his castle is worth.

“Signing that right-of-way contract is like putting your head in the noose.” Fulkerson declared.

ACTIA wants to purchase the homes on Juniper to construct a “diamond” interchange on I-580 near the existing Redwood Road off ramp and close an off-ramp on Center Street and the on-ramp from Castro Valley Boulevard across from Marshall Street.

“We’re going through the same negotiation process as regular home buyers do,” ACTIA Deputy Director Art that fair market value be offered to the owner, so similar to regular real estate purchases, these can go back and forth in negotiations.”

Dao said the county goes the “extra step” when it makes an offer for a house, offering an additional $5,000 for homeowners to retain their own property appraisal. In this instance, ACTIA is using Associated Right of Way Services, Inc. of Pleasant Hill to independently assess the four homes on Juniper.

“I don’t know where I will be able to buy a house like this for what they are offering me. They’re telling me if I think my house is worth more—I need to prove it to them,” said Fulkerson, who’s also upset by the inconvenience of the situation.

In addition to acquiring the four homes on Juniper, the project calls for eliminating some of the parking spaces at Spencer’s Mortuary at 21228 Redwood Road.

“We’ve known about this for at least three years,” said Wes Dao said. “It’s required by law," [noted James] Fisher, president of Spencer’s Mortuary. “There were meetings where projects were shown to us, each contingent upon funding.” At first, Fisher was uncertain how close the exchange would come to the mortuary, and he was concerned it might all have to go. But under the adopted plan, the loss will amount to just 25 of Spencer’s 75 parking spaces.

Fisher said ACTIA explained to him that after a parking lot reconfiguration and homes on Juniper are removed—up to 20 spaces might be recovered.

“We’re hoping we will end up not losing any spaces. There are times when we have 90 to 95 cars here for a service,” Fisher said, stressing the importance parking has on the mortuary’s business. Compensation for property is in the works and so far, no attorneys have been contacted. “I hope it will continue that way.” added Fisher.

Juniper resident Mike Bernardo has previous experience with eminent domain, and described the current state of affairs as being the least amusing of all for him.

“First, they told me I would be losing my house entirely,” Bernardo said. “Now all they want is to buy 15 square feet for $12,000 and to rent an additional amount of footage for two years at $6,100 a year.”

When he thought he’d lose his home, Bernardo said he went to Arizona to scout out real estate. “I’m glad I didn’t buy anything — I would have ended up owning two properties,” he said.

Dave Fulkerson plans on finding a property appraiser so he can determine what to do next. “I don’t trust or believe them at all. They just want to sweet talk us until they can buy us out,” he said.

Director Dao said eminent domain might be used if no agreement is reached between the property owner and ACTIA.

“In that instance, a court will determine the value of land and can issue an order of possession, which is a court order saying the property owner must sell and accept the terms,” Dao explained. Eminent domain dates back hundreds of years. In the U.S. it has traditionally been used to build railroads, streets, waterways, public and government buildings, and the interstate highway system.

Dao describes the land acquisition procedure as an all inclusive process that ACTIA acknowledges has its share of detractors. “It would be counterproductive for us to not give owners their fair market value,” Dao added. “But at the same time we need to safeguard the amount we spend as a stewardship of public funds.”

Construction of the I-580 interchange is due to begin in 2010. For more information on the project, please visit website:
www.actia2022.com/projects.com.
For more history on eminent domain, visit:
www.leginfo.ca.gov.

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Castro Valley CA Forum: http://www.ebpublishing.com

Statement to Seven Devils Town Council: Go Blue Ridge, Boone NC, 6/12/07

By Justin Grimes
I rise to speak [at the June 11 Seven Devils Town Council Public Hearing} on behalf of many: in particular the 184 Seven Devils property owners and residents who have petitioned you town council members to drop this eminent domain process to purchase the Hawksnest golf course and on behalf of the owners of Hawksnest Ski Resort.

Thank you for the opportunity to speak. I’d like to debunk the untruths in a petition that was circulated by I presume the group calling themselves the save the Seven Devils golf course.

Number one, the petition does not mention this Eminent Domain public hearing, a needed meeting before municipalities can attempt to take private land for the public’s good. Was this an intentional omission?

When a normal, rational citizen thinks about a municipality using Eminent Domain Statutes to take private land for the public’s good, he or she normally thinks of the public’s need for a highway, railroad, or maybe a school; something that benefits all the people. To take a private enterprise like a golf course by eminent domain flies in the face of this established reason.

Maybe this consideration by the Town Council of Seven Devils is exactly why we have a new bill in the legislature in Raleigh that intends to strengthen our already strong statutes against municipalities from willy-nilly appropriations of private land and enterprises. The proposed amendment would prevent governments from using their power of eminent domain to take private property for commercial purposes: The bill reads that “private property shall not be taken except for public use,” and it prohibits municipalities from taking private enterprises. The bill has passed the House and is presently awaiting approval in the Senate.

This brings me directly to the save the golf course petition. The first sentence of the 2nd paragraph reads, “a year ago the owners of the golf course property in Seven Devils, for their sole benefit…”

Their sole benefit; they own the property folks, have owned the property for years, the town does not own this property and it has never owned this property and has no vested interest in this property.

Do you property owners want the Town Council of Seven Devils to tell you what to do in your backyard, if the town council decides that your backyard would make a good volleyball court, would you allow them to take your land by eminent domain?

The land in question is zoned for recreational use, and that’s exactly what it is and has been used for.

The second sentence says “citizens of Seven Devils have been denied access reducing the summer recreational acreage by 89%.” There is a presumption of ownership in this petition.

Listen carefully, the golf course is private property and when the golf course was open less than one percent of the Seven Devils property owners used the Hawksnest facility. I’ll say that a different way, out of the 1492 resort residents (census data) on ladies day, six women of Seven Devils played golf, on men’s day, a gracious number, 25 men of Seven Devils played golf: a total of 31 people, only 00.02 percent of the community. Or in other words, the save the golf course group is comprised of a very few and almost all are not qualified to vote in Seven Devil’s elections, they are not residents of North Carolina.

Does this Town Council really think that the public good is best served by indebting itself long-term by getting into a losing business on behalf of a privileged few?

The petition sentence continues by saying that “significantly reducing property values in the town.” There is no quantitative evidence to support this statement. A trip to our county’s tax appraisers offices will quickly debunk this untruth. We know we went to look and suggest that you folks do the same.

In 2005, when the golf course was open, the combined (Watauga and Avery) property valuation for the town of Seven Devils was $98,222,458. With the golf course closed in 2006, the combined property valuation was $100,777,556 and in 2007, the property valuation was $133,322,070.

In the middle of the 2nd paragraph, the petition reads “return it to the public recreational use…” HUH… that’s exactly what our resort provides, recreational use; thousands have and do enjoy our ski resort and tubing operation. Hundreds, maybe thousands more of Seven Devils residents, their extended families including a lot of grandchildren and their guests and renters enjoy our winter recreational facilities: compare the numbers to the handful who used to play golf.

That’s exactly what Hawksnest has been trying to communicate to you Town Council members for too long. The Ski resort greatly benefits your community. The golf course was a financial burden, the Ski resort had to underwrite the losses the golf course incurred.

This brings me to the logic of any municipality anywhere wanting to go into the golf course business. You had better have deep pockets. Golf courses are expensive to maintain and the general consensus in the golf business is that a good businessman would not invest in one unless the development had lots of additional land from which to make revenue or make the course private and let membership dues underwrite the costs.

*According to Superior Court Judge Downs in a judgment issued on May 21, 2007 against the Village of Sugar Mountain, His Finding of Facts number 60 dealt with the Sugar Mountain Golf Course. The judge stated “the golf course loses money each year and must be subsidized by the Village. According to the June 30, 2004 audit, the golf course lost $43,000 and received a $41,000 subsidy from the Village. According to the June 30, 2005 Village audit, the golf course lost $95,000 and received a $60,000 subsidy from the Village. According to the budget for 2005-2006, the Village transferred $60,600 from its general fund to subsidize the operation of the golf course.”

The Sugar Mountain Golf Course is a mature and well-maintained facility. It is surrounded with homes and lodging. With all this going for it, the golf course still loses money each year. The High Country is not a Myrtle Beach. What property tax hike would you expect if the Town purchases the closed Hawksnest golf course?

The golf course needs millions of dollars of work and the erosion problem from impervious town streets will need addressing, the cost to you taxpayers, enormous.

You already have one of the highest tax rates in North Carolina, adding millions of dollars in debt to purchase the golf course will not improve your tax rate, it will skyrocket when burdened with the deficits the golf course will likely incur.

The petition calls the property an environmental gem, and we agree. If you town council members were truly vested in what’s best for the environment, you would have already trashed the idea of taking the golf course property by eminent domain.

Aren’t you aware that golf courses are toxic waste pools? I am personally known for my past work as an environmental journalist. Environmentally, ski resorts are far friendlier to our environment than golf courses. Golf courses use tons of chemicals each year that percolate into local streams and ground water and in particular the biocides used on greens are so toxic that they also pollute the air.

Did you know that golf course superintendents suffer from an alarmingly higher incidence of cancers than the general population, source the United States Golf Association?

The environmental degradation evidence of golf courses is widely-held knowledge, I suggest you invest a little time and investigate for yourselves before damning Valley Creek to tons more petrochemicals.

If you, like us, really want to be an environmental friend to this property, I encourage you to look positively upon our desired long-term use of the property, we want to expand the ski resort, and in our plan, most of the land would be used for the ski resort and basically undisturbed.

Unlike the taking of the privately held golf course by an eminent domain purchase, an expansion of the ski resort makes good economic sense for the residents of Seven Devils!

Our new ski resort expansion will make what is already a good ski resort, a primo facility, arguably the best ski area in the south. The availability of new parking in the plan for expansion will ameliorate traffic congestion by providing quick and easy parking spaces.

With an expansion, Seven Devils owners who rent will see an increase in rentals and in turn, property values will rise and both counties and the town will benefit from increased revenue from local taxes and the town’s occupancy tax.

What unwritten obligations do the Town of Seven Devils have to our greater community’s good and prosperity? Our Ski industry is undeniably the economic engine for Watauga and Avery counties. Thousands of people with smiling faces enjoy our winter recreational facilities and annually provide rental revenue to the more than 100 rental unites located in Seven Devils. They also fill our area motels, restaurants and retail establishments; and hundreds depend upon Hawksnest for winter employment, many are Seven Devils’ residents.

Compared to surrounding counties that don’t have ski resorts, Watauga and Avery propser during the winter months; motels and condominiums are rented, gas is purchased, retail thrives; economic numbers across the board are favorable. The other counties drop off the map in the wintertime, unemployment skyrockets and motel rooms are dormant.

Sugar Mountain is prospering, the town and resort work together there.

Why can’t we work together on a development plan that can really benefit the residents of Seven Devils and the greater community?

This brings me to the most difficult part of debunking the save the golf course petition. The petition reads “the Town Council should not be coward by the bullying of a few…” What does this mean? The unfortunate political facts are these.

When Hawksnest informed the Town that the golf course was closing, the town did not step up and try to help save the golf course by offering any assistance or subsidy. The Town has never made an official offer or entered into negotiations with the owners to purchase the golf course outright.

It’s important to point out to the public and press that Seven Devils is a very small community, three of the town council members and the wife of the town manager sit on the Seven Devils board of adjustment, the mayor’s wife is an alternate member or in other words, power sits in the hands of a few.

This same board of adjustments voted down Hawksnest expansion plans? The question is really why, was there an ulterior motive? Are the same people acting on behalf of the primarily non-resident group calling themselves the save the Seven Devils golf course group?

Since members of the town council also sit on the board of adjustment that turned down Hawksnest expansion plans, do we now have the truth of why? Was their motive all along to take over the golf course? In good conscience, why did they so rapidly ignore the town’s zoning laws, why didn’t they work positively and in good faith with the owners of Hawksnest to mitigate any concerns they may have had over the expansion plans?

Is it true that initially, the save the golf course group attempted to raise the money privately to purchase the golf course? Is it true that they failed to raise the money? And regrettably for the community, could it be true that this save the golf course group has manipulated elected officials into attempting this scheme to take the golf course away from its rightful owners by eminent domain.

Should we call this what it is? “An Official Land Grab,” or in answer to the petition, WHO IS BULLYING WHOM?

Isn’t it time to bury old personal animosities that have been driving too many of the town’s decisions and work together on a development plan that will truly benefit all the people.

Again, on behalf of these 184 petitioners and Leonard Cottom, President of Hawknest Ski Resort, please vote tonight to end this Eminent Domain process.

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Go Blue Ridge, Boone NC: http://www.goblueridge.net

Wareham plans to keep fighting eminent domain case: South Coast Today, New Bedford MA, 6/9/07

By Brian Boyd
The town [of Wareham MA] is pressing on with its legal fight to reduce the $1.1 million a federal jury said Wareham owes a landowner whose beachfront property the town took.

The town's attorneys took the first step to bring the dispute to the 1st U.S. Circuit Court of Appeals when they filed a notice of appeal Thursday.

In 2003, the town took 5.35 acres by eminent domain to expand Swifts Beach and paid $450,000 to owner Barbara Deighton Haupt, who later sued for more. Jurors decided in April the land was worth $1.55 million, leaving the town liable for the balance plus interest.

The town's lawyer, Richard Bowen, would not disclose the grounds on which the town is appealing the verdict.

"I would not give the other side any heads up until they get the brief," he said.

The court will establish a schedule for the case, and the two sides will submit their briefs. A three-judge panel would then hear oral arguments, Mr. Bowen said.

Selectmen Chairwoman Brenda Eckstrom deferred questions about the appeal to the town's attorneys.

The town had earlier filed a motion asking the U.S. District Court judge who presided over the trial to reduce the amount or grant a new trial. The lawyers argued there was no basis for the dollar figure jurors chose, but the judge rejected their argument.

Jeffrey Angley, Mrs. Haupt's attorney, said the town has no prospect for success in the appeals court, and he is disappointed it is unwilling to put the matter to rest.

"I'm surprised the town is willing to spend what will be considerable more amount of money to pursue an appeal in this case, when it already lost a motion for new trial," Mr. Angley said.

Mr. Angley has estimated the town owes a total of $1.2 million, including interest. He said Friday the interest will continue to accrue as the town wages its legal battle.

During the trial, the town argued the land was worth $730,500, assuming a duplex could be built there, based on a reappraisal.

Mrs. Haupt's legal team presented different potential values, ranging from $3.1 million, based on the assumption that a beach club with building could be constructed there, to $1.2 million if the best prospect was for a duplex.

The jurors decided the greatest potential was for a duplex with beachfront and assigned a value. In their unsuccessful motion to alter the verdict, the town's lawyers asked the judge to shave $350,000 off the verdict, bringing it down to the $1.2 million figure given by Mrs. Haupt's expert.

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South Coast Today, New Bedford MA: http://www.southcoasttoday.com

Property owner upset hospital acquired house, land for less than value: Midland TX Reporter-Telegram, 6/10/07

By Ruth Campbell
Property owner Kerry Faudree fought Midland Memorial Hospital on buying her property and lost.

Faudree, a family therapist specializing in treatment of alcoholics and children of alcoholics, went through a process known as eminent domain.

Hospital attorney Darren Skyles said eminent domain is the power to take private property for public use by a state or municipality. The hospital district is a political subdivision of the state.

The hospital district's enabling legislation gives it the power to take property to construct parking lots "to further the purposes of the district," Skyles said.

Faudree said in this case eminent domain, one of the first reported in Midland, offered examples of people receiving unfair compensation for their property and of a municipality not handling the proceedings professionally.

This past fall, Faudree said she was contacted by the hospital about buying her property at 2108 Tennessee Avenue and 2106 Tennessee Avenue. In November, she said, the hospital offered a "horribly low" price and wrote a letter to her husband, Matthew Faudree, saying they would offer fair market value.

Faudree also contends the hospital didn't view her business as legitimate and neighboring doctors got more money for their property than she did.

Her husband said he was not interested and she didn't hear from the hospital until she received the condemnation notice. Edmondson said the hospital has been working with the Faudrees and all the property owners "for quite some time."

"I don't think it could've been done any better. ... We feel we did our best. We're coming up on a deadline. We had to move forward and go ahead and request eminent domain proceedings. What's done is done. We're moving on," Edmondson said.

Faudree said Edmondson's assistant took her to see possible office replacements, but all were under contract. She said she and fellow property owners on Michigan and Tennessee Avenues never were informed as a group about what was going on with the hospital's plans.

"I don't think they handled it in a professional, ethical manner. Nobody knew what was happening," Faudree said, adding that if all the property owners worked together, they could have fought the hospital.

The hospital got an appraiser who went back 10 years to get a comparable price. Faudree said her appraiser also valued her property lower because he couldn't find any history on it. A bid on the Faudree property came in at $92,000. It was declined, as was another for $94,000, Kerry Faudree said. She wound up with $108,000 when she needed at least $150,000 to move.

Edmondson said the hospital asked for counter-offers multiple times, but "never got an answer."

Of the $108,000 she was given for 2108 Tennessee Avenue, $15,000 went toward fighting the case, she said. The hospital paid $114,000 for the 2106 Tennessee Avenue property, according to records.

Prices paid for the properties, according to hospital information, range from $47,500 to $255,000. Edmondson said prices paid had nothing to do with whether property was owned by doctors.

Because of the housing shortage, Edmondson said, the hospital has been approached by people who want to buy the houses and move them to other parts of town. The hospital recently was taking bids for the property and a decision will be made this week.

"From a property standpoint, ... there's a difference between commercial property, which is what the doctors own, and her property, which is considered residential property," Edmondson said. "Commercial property brings in more money because of the way it's constructed."

The three-member commission appointed by County Court At Law Judge No. 1 Al Walvoord to hear the eminent domain case indicated they would like to give Faudree more for her property, but the panel went with precedent - in this case the appraisal.

"People need to know how to deal with eminent domain. Every lawyer told me the law really isn't black and white. It's gray," Faudree said. "All the lawyers felt sorry for me, but sorrow doesn't do it. You've got to get a lawyer familiar with eminent domain."

"People need to be educated. They need to realize the government can come in and take your land for any reason they so choose," Faudree said. "... If people don't know what's happening, they get bulldozed. Laws protect the condemnor. They don't protect the condemnee."

Faudree said she will have to move into an office building, which she feels is less beneficial to her clients and herself. "This was a real safe environment for them. I know I'll be OK and I'll find a way to get through this. I couldn't get a lawyer to fight further."

Edmondson said the hospital serves a public need and acquiring the lots was part of it. The hospital first considered building a parking garage, but found it would cost $5 million, overbudget for what was planned.

Total cost of property acquisition and parking lot construction was under $3 million, hospital information says.

"We feel for them if we've caused any inconvenience. We serve a public need as a hospital and acquiring the properties for additional parking fulfills that role. As a hospital district, we're responsible to the taxpayers and the prudent thing to do is get appraisals on property so it's fair and equitable to both parties.

"That's what we did and that's what we paid," Edmondson said.

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

Opponent of eminent domain use wins runoff: El Paso TX Times, 6/10/07

By Gustavo Reveles Acosta
Eastsiders on Saturday elected Rachel Quintana - a staunch opponent of the use of eminent domain in Downtown redevelopment - to a four-year stint in the El Paso City Council.

Quintana, 28, defeated Jim Suerken in the runoff election, in which a dismal 5 percent of voters participated.

"I'm humbled. It's awesome," Quintana said in a phone interview from her victory party at one of state Rep. Joe Pickett's properties. "I knocked on 1,500 doors today alone, and I think because I delivered my message to people personally, that really made a difference."

Just about 2,100 of the more than 42,000 registered voters in the East Side district went to the polls to decide who would fill the seat being left vacant by East Side city Rep. Presi Ortega. Ortega couldn't run for re-election because of term limits.

Quintana, 28, ran a campaign of fiscal conservatism and of opposition to some of the most important initiatives proposed by Mayor John Cook and the majority of the City Council.

Throughout her campaign, she said she would oppose not only eminent domain but also the selling of certificates of obligation for flood repairs as well as the unified development of about 3,000 acres of Public Service Board land in the Northeast.

"My promise is to let the voters decide on these issues to put them on a ballot and let them make the decision," Quintana said. "I'm not just talking eminent domain. I mean any major detail of the business of the city."

The majority of the board and Cook supported Suerken, who had said he would work with the the council on some of the initiatives Quintana opposed.

Suerken could not be reached for comment Saturday night.

Quintana, a University of Texas at El Paso graduate working as a courier for Federal Express, said that who supported whom during the campaign was no longer an issue, and that she wanted to work effectively with all council members.

"That doesn't matter. It's a clean slate. I hope to unify the council," she said. "I am a very positive person, and that's what I expect for the next four years."

Quintana will be sworn into office during a ceremony June 19 at the Plaza Theatre, she said.

Voters interviewed Saturday said they were split between the two 20-something candidates on the ballot.

John Vega said he voted for Quintana because she told him during a home visit that she would keep taxes down.

"That's the most important thing for me right now because I'm a homeowner and my taxes are through the roof," he said. "I can't afford for anyone to come in and raise them anymore."

But Suerken supporters said they wanted to continue the progressive measures the majority in the City Council have fulfilled.

"He seems like a bright young man full of great ideas for the city," Rosa Guevara said. "I think he could move the city forward."

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El Paso TX Times: http://www.elpasotimes.com

Board revisits plan for Portola middle school: KPIX-TV5, San Francisco CA, 6/21/07

The West Contra Costa Unified School District's board voted unanimously Wednesday night to reconsider its plans to move Portola Middle School to Fairmont Elementary School's campus.

School Board President Karen Pfeifer said today that while she believed that the board's original decision to move the school to the Fairmont site, at 724 Kearney Street, was a good one, she felt that the board needed to open the process up to the public before moving forward.

Many people in the neighborhood told school board members that they didn't understand what the decision was based on, and "Frankly, I found it difficult to answer their questions," Pfeifer said.

The original plan would have involved re-locating Fairmont Elementary School, the city's library and senior center as well as removing five homes and one small apartment building.

Only two of the homes affected by the original plan were owner-occupied, Pfeifer said, but those two families said they didn't want to sell their homes and wouldn't move.

Pfeifer said that the school board hadn't intended to use its power of eminent domain to force the families to sell, but thought they might reconsider their stance if a middle school was literally built up around their property with only a chain-link fence separating them from the school's 640 sixth through eighth grade students.

Residents near Fairmont Elementary School said they didn't want a middle school in their neighborhood. Their reasons, according to Pfeifer, included increased traffic, increased noise and increased trash tossed carelessly in the streets and in people's yards, a phenomenon that seems to occur around all schools.

Pfeifer said that some people also simply seem to be afraid of kids and don't want them around.

Although the school board may still decide to move the middle school to the Fairmont campus, after Wednesday's vote, they will now hold public meetings on the topic with agendas posted to notify members of the public and they will hire a California Environmental Quality Act consultant to help find other possible viable sites for the school.

The problem with Portola's current site arose more than a year ago when the school district began making plans to re-build the middle school and engineers discovered that it was on top of an ancient slide.

When the school was originally built, it met all safety standards of the time, but the state has since revised those standards, making the school no longer in compliance.

According to Pfeifer, the earth beneath Portola Middle School hasn't moved for thousands of years and had the school district left the school alone, they might never have discovered the problem. But now that they have discovered it, the school has to move.

"It's not our business to tell people how to live," Pfeifer said. "It's our business to provide the best education we can in the safest place possible.

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KPIX-TV5, San Francisco CA: http://cbs5.com

N.J. Supreme Court clarifies 'blight' meaning in Gallenthin eminent domain case: New Jersey Eminent Domain Blog, 6/13/07

By Bill Ward
In a unanimous decision which invalidated Paulsboro’s redevelopment classification of the Gallenthin property, the New Jersey Supreme Court analyzes the meaning of blight as it pertains to the New Jersey Constitution and the Local Redevelopment Housing Law (LRHL) in Gallenthin Realty Development, Inc. v. Borough of Paulsboro (A-51-2006):

The Constitution expressly authorizes municipalities to engage in redevelopment of “blighted areas.” The State may take private property only for a “public use.” Under the Blighted Areas Clause of the New Jersey Constitution, the clearance, replanning, development, or redevelopment of blighted areas shall be a public purpose and public use for which private property may be taken or acquired. The LRHL empowers municipalities to designate property as “in need of redevelopment” and thus subject to the State’s eminent domain power.

In the Court’s final analysis, Paulsboro’s view of blight was incongruent with both the statutes and the Constitution. Paulsboro interpreted subsection 5(e) of the LRHL to permit redevelopment of any and all properties that were stagnant, or not fully productive. Any property which is underutilized could be deemed blighted under this flawed approach and, had the Court's interpretation adopted such an expanded definition of blight, most properties would be eligible for redevelopment. Instead, the Court held:

Because the New Jersey Constitution authorizes government redevelopment of only “blighted” areas, the Legislature did not intend N.J.S.A. 40A:12A-5(e) to apply in circumstances where the sole basis for redevelopment is that the property is “not fully productive.” Rather, subsection 5(e) applies only to areas that, as a whole, are stagnant and unproductive because of issues of title, diversity of ownership, or other similar conditions. Therefore, the Borough of Paulsboro’s redevelopment classification in respect of the Gallenthin property is invalidated.

However, the Court also said that its holding does not prejudice any future inquiry by the Borough regarding whether the property is “in need of redevelopment” based on any other legitimate grounds.

Paulsboro’s approach in blighting the property was flawed because of the absence of substantial evidence under the statutory criteria in the LRHL. In this case, the Court clearly states that a record must contain more than a bland, recitation of applicable statutory criteria. Paulsboro’s failure to provide such a record led to the invalidation of the blight designation:

Paulsboro’s only reason for designating the Gallenthin property as “in need of redevelopment” was that it was not being utilized in a fully productive manner. Those considerations, standing alone, are insufficient to engage the municipality’s power to designate property as “in need of development” and, therefore, subject to eminent domain. Further, there is no evidence in the record that the broader redevelopment area suffered from a lack of proper utilization caused by conditions of title of the real property therein.

Paulsboro retained expert Remington and Vernick to perform a study of the “BP/Dow Redevelopment Area.” There was no reference that the Gallenthin property should be included because of access problems associated with the larger redevelopment area, nor did the borough’s professional planner, George Stevenson, testify about access problems. Had such evidence been provided, the Court might have reached a different conclusion. In any case, the access issue could have been ameliorated with a partial taking as referenced in the oral arguments.

Instead, the expert report merely included a recitation of the subsection 5(e) of the LRHL and concluded that the Gallenthin property should be designated solely because it was stagnant and underutilized. The Court also noted that the record was silent about the borough’s designation of protected wetlands as a redevelopment area. Nor did the record contain evidence that the Gallenthin’s property was integral to the BP/Dow Redevelopment Area. To merely say that the Gallenthin property was not being utilized in a fully productive manner was not enough to declare the property blighted or to engage the municipality’s power of eminent domain The Court had no choice but to invalidate the designation.

The Court stopped short of declaring section 5(e) unconstitutional by focusing only on the fact that Paulsboro didn’t meet the substantial evidence test in this particular case:

Because it must be presumed that the Legislature intended subsection 5(e) to function in a constitutional manner, and because subsection 5(e) is reasonably susceptible to an alternative interpretation, the Court concludes that the Legislature intended N.J.S.A. 40A:12A-5(e) to apply only to property that has become stagnant because of issues of title, diversity of ownership, or other similar conditions. By adopting that construction, the Court avoids rendering subsection 5(e) unconstitutional and gives effect to the Legislature’s original purpose in adopting the language that would become subsection 5(e).

Because the Court's holding does not prejudice any future inquiry by the Borough, there is practical significance to the 42-page opinion written by Chief Justice Zazzali. The borough could redo the blight study in conformity with the Court’s opinion and the requirements of the statute. In all likelihood, those corrections would be upheld. This decision is a temporary bump in the road for Paulsboro, and gives municipalities further instruction on how to blight a property.

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

Ohio Senate votes to limit eminent domain: ThisWeek News, Columbus OH, 6/7/07

By Michael Maurer
The Ohio Senate voted overwhelmingly last week to limit the power of government to take private property under eminent-domain proceedings.

The Senate approved both a constitutional amendment for the fall ballot and a revision to Ohio's current eminent-domain statutes.

Both the resolution and the bill require further action by the Ohio House of Representatives before becoming effective.

Sen. Tim Grendell (R-Chesterland), who last year led a task force that examined the use of eminent domain for economic development, sponsored both a resolution that would put a constitutional amendment on the fall ballot and a bill that would restrict state and local government's ability to take land because of "blight," the legal term for neighborhood deterioration that allows the government to condemn even well-cared-for homes and properties.

"This issue we're talking about today goes to the fundamental right of Ohio citizens, the right to own private property," Grendell said.

Much of the debate centered on whether the amendment should prohibit takings that are "solely" for economic development, or more broadly, takings that are "primarily" for economic development.

Sen. Steve Stivers (R-Columbus) argued that "solely" is too narrow a word and would not in practice prevent takings at all.

"With regard to primarily versus solely, it is almost impossible to prove that something is solely the motivation," Stivers said. "If there are secondary or tertiary interests to something, you could say, 'Gee, we did it for all of these reasons, not just this single one.' That's why the word primarily is important to use."

The constitutional amendment also would abrogate home-rule powers of municipalities, prohibiting them from adopting different eminent-domain standards from the laws generally applicable to the state.

Sen. Kevin Coughlin (R-Cuyahoga Falls) said an Ohio Supreme Court decision issued last year, known as "Norwood," appeared to protect Ohioans' property rights against economic development takings, but it may not do so.

"I know for a fact there are law directors in the state of Ohio who advise their mayors that the Norwood decision doesn't change anything about their ability to use Kelo-type takings," Coughlin said.

Among the provisions of S.B. 7:

• Land taken from one private landowner under eminent-domain proceedings may not be transferred to another private landowner unless the land has been determined to be blighted by an elected legislative authority.
  
• Land may not be considered blighted unless 90 percent of parcels in the area are themselves blighted.
  
• Landowners could receive attorney fees if the value of the land is found by a court to be at least 25 percent more than the value initially proposed by the taking authority, or if the court determines that the takings were not necessary as a public use.

The constitutional amendment passed 21 to 11, with Sens. David Goodman (R-New Albany), Tim Schaffer (R-Lancaster) and Stivers voting yes and Sen. Ray Miller (D-Columbus) dissenting.

S.B. 7 passed 29 to 3, with all four central Ohio senators voting in favor.

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ThisWeek News, Columbus OH: http://www.thisweeknews.com

Eminent Domain Fix At Risk: Hartford CT Courant, 6/6/07

Billboard Clause Could Lead To Cuts In State's Share Of Federal Highway Funds
By Mark Pazniokas
The Federal Highway Administration warned Tuesday that the legislature's recent reform of eminent domain laws violates the Highway Beautification Act and could cost the state about $40 million annually.

Legislators voted by overwhelming margins last week to reform how municipalities can take property by eminent domain, saying the measure was a protection for homeowners against big government.

But the legislation also requires better compensation for a more frequent target of eminent domain proceedings - billboards taken down by the state to make way for transportation projects.

State transportation officials fought unsuccessfully to delete the provision, saying it could drive up the cost of transportation projects, including the Hartford-New Britain Busway, which will require the removal of 10 billboards.

On Tuesday, the department played a new card - a letter from a federal highway official warning that Connecticut could lose 10 percent of its annual federal highway funds. The money ranges from $355 to $440 million.

"I think it is an empty threat," said John Barrett, a co-owner of Barrett Outdoor Advertising and a former president of a state billboard trade group. "Don't be fooled. That's exactly why you got it last minute."

The letter said the new compensation policy runs afoul of a federal law passed during the administration of Lyndon Johnson, when the first lady, Lady Bird Johnson, made highway beautification a pet cause, resulting in federal policies that discourage billboards.

The administration of Gov. M. Jodi Rell, who must decide in coming days whether to sign or veto the bill, asked legislators Tuesday night to consider passing a second bill deleting the billboard language.

Chris Cooper, a spokesman for Rell, declined to say if the governor would veto the bill if the offending provision is not removed.

Rep. Art Feltman, D-Hartford, who wrote the legislative language as co-chairman of the planning and development committee, said he was surprised by the late objection.

Feltman said he is no friend of the industry, which has one owner in the legislature: Sen. John Fonfara, D-Hartford, who runs a billboard company called Face Value.

"It's not a kind of business I admire," Feltman said. "I am a big admirer of fairness."

The focus of legislators during the eminent domain debate last week was on homeowners, like those New London residents whose challenge of a land-taking led to a U.S. Supreme Court decision affirming the right of municipalities to take homes for economic development.

"This goes to the very core of everything that is good and right in this nation," Rep. Shawn Johnston, D-Thompson, said during the House debate. "You work hard, you save some money, you buy a house."

But the billboard industry says it, too, has been victimized by eminent domain. The state traditionally has paid only for the value of the sign, not the lost income, Barrett said.

"This whole bill was about doing the right thing," he said. "That's all we are asking for here."

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Hartford CT Courant: http://www.courant.com

Poway considers eminent domain ordinance: North County Times, Escondido CA, 6/6/07

By Andrea Moss
The Poway [CA] City Council on Tuesday gave initial approval to an ordinance that describes the city's authority to acquire properties.

The city will almost certainly need that authority, also known as eminent domain, to proceed with a town center project that the council approved in March. On Tuesday, Poway Redevelopment Director Dena Fuentes told the council that the power would remain unchanged by the proposed ordinance, which simply "restates" the existing power in a way that would bring the city in compliance with a state law passed in September.

That law requires redevelopment agencies to adopt ordinances that explain how those agencies can acquire property. The new ordinances must be approved by July 1, under the state law.

Poway's proposed ordinance will come back to the council for a final vote June 12.

The city formed the Paguay Redevelopment Project Area as a way to revitalize sections of Poway that were physically or economically deteriorated. The project area includes 8,200 acres, or roughly half the city, with most of the area centered around Poway and Community roads.

The Poway Redevelopment Agency - actually, the council in a dual role - oversees the project area. And the agency gets its money from a so-called tax increment, or the difference between original and new property tax revenues in the redevelopment area.

Those taxes typically increase as improvement projects within the project area cause property values to go up. The agency can use the increment for similar projects or offer it as an incentive to developers willing to do the same.

Used properly, the approach can greatly improve blighted areas. Aware of that, every city in North County except Encinitas has created at least one redevelopment area.

The idea of government agencies having the power to acquire properties is frightening to some people because it brings to mind cases in which private property was condemned so that a government entity could acquire and incorporate it into projects deemed necessary for the public good. Highways and schools are examples of projects for which forced sales have been carried out in various places around the country.

Fear of eminent domain escalated after the U.S. Supreme Court ruled in 2005 that government agencies could use eminent domain to seize private land and transfer it to private developers to build shopping malls or similar projects.

Poway's existing redevelopment ordinance lists a variety of ways the city can acquire property. Those include buying it, accepting gifts or grants of property, or swapping one site for another.

The city can also work out a cooperative agreement, lease "or any other means authorized by law."

The council decided when it created the redevelopment agency that it would never use eminent domain to buy properties zoned for and developed as residences. The ordinance leaves the door open for Poway to acquire other types of property through condemnation, though.

Fuentes told the council that, since 1991, the city has only done so a couple of times. In both cases, the property involved was environmentally contaminated, and the city used authority given to it under a state act that allows government agencies to seize property, if doing so is necessary to ensure that the contaminants are removed, she said.

That nuance made those cases technically different from any involving the use of eminent domain as defined in the existing and proposed city ordinances, said Fuentes.

Poway's eminent domain power will expire in 2016. A staff report that Fuentes prepared for the council says that if the redevelopment agency wants to acquire any properties between now and then, it will try to work out a "fair market" purchase price with the owners.

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North County Times, Escondido CA: http://www.nctimes.com

Atlantic Yards suit dismissed by federal judge: Crain's New York NY Business, 6/6/07

By Erik Engquist
A federal judge today dismissed a lawsuit against the $4 billion Atlantic Yards development in Brooklyn. The ruling, eagerly awaited for two months, is a major blow to opponents of the project, who plan to appeal.

The lawsuit challenges the eminent domain condemnations that Atlantic Yards needs to proceed. Thirteen residents and businesses in the project’s footprint have refused to sell their apartments, buildings or long-term leases to Forest City Ratner Cos., which wants to build a 19,000-seat arena, a huge office and retail complex, and more than 6,000 apartments.

"Today's decision is an important victory not only for Atlantic Yards but for Brooklyn as well. This decision means we are one step closer to creating over 2,200 units of affordable housing, thousands of construction and office jobs and bringing the Nets to Brooklyn," said Bruce Ratner, president and CEO of Forest City Ratner Companies.

Their suit’s chances, say project opponents, are best if the case remains in federal court. That is why they say they will appeal the ruling issued today by Judge Nicholas Garaufis to the U.S. Court of Appeals for the 2nd Circuit.

“Part of the reason we have a better chance to win [there] is because the federal courts are much more familiar with constitutional issues and are less susceptible to political pressures,” said the plaintiffs’ attorney, Matthew Brinckerhoff days before the ruling.

A federal magistrate judge had recommended in February that the case belonged in state court. Judge Garaufis disagreed, but dismissed the case on its merits.

Another suit by opponents, challenging the process by which the state reviewed and approved the development, remains pending. But the eminent domain lawsuit was considered the greater threat to the project.

The crux of Mr. Brinckerhoff’s argument was that the condemnations do not have a primarily public purpose, as required by New York’s eminent domain law.

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Crain's New York NY Business: http://www.newyorkbusiness.com

City May Use Eminent Domain To Obtain More Arena Land: WFTV-TV9, Orlando FL, 6/5/07

The city of Orlando needs more land for its new arena and it may use eminent domain to get it.

The city is in negotiations to buy three pieces of land in the Parramore area for just under $3 million.

The council took a vote, Monday, which would allow it to use eminent domain if it can't come to an agreement with the land owner.

The city has already spent more than $35 million on land for the arena.

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WFTV-TV9, Orlando FL: http://www.wftv.com