1/16/2006

Backing eminent domain: San Bernardino County (CA) Sun, 1/9/06

City pushes to maintain procedure

By Kelly Rayburn

Over the past few years, when [Fontana] city officials here have gone to Sacramento or Washington, D.C., they've gone to ask for help in completing freeway projects, for money to build a library and a teen center, and for relaxation of the rules that protect an endangered fly.

In 2006, add protecting the ability to obtain private land for public projects to that list. Eminent domain, officials here say, is under attack.

And they say that could spell doom for a host of city projects from widening roads and building parks to providing low-income housing.

The concerns officials face have come amid continued backlash from last year's U.S. Supreme Court ruling in the Kelo v. City of New London, Conn., case, which upheld local governments' rights to seize private property and give it to another private party.

Critics charged that the court was rewriting the U.S. Constitution, and, in the wake of the decision, both the federal and state governments considered placing stringent restrictions on eminent domain.

City Manager Ken Hunt said the issue is largely misunderstood by the media and politicians alike.

He argues the decision did little except preserve what cities had been allowed to do for decades.

"(Kelo) was so misrepresented by the media outlets that all these political folks said `ah-hah, there's a hot-button issue,' " he said. "The whole thing has been blown out of proportion."

Hunt said that in his dealings with other city managers in the region, this issue is not yet a major concern. He believes it will be if the state or federal government moves closer to passing major legislation on it.

In California, state Sen. Tom McClintock, R-Thousand Oaks, has been a leading advocate of reforming California's law on eminent domain.

He proposed legislation in 2005 to bar governments from using eminent domain to take property and hand it over to another private party.

The legislation went down on a party-line vote, McClintock said, but he plans to reintroduce it. He's also pursuing the possibility of getting his proposal directly before voters in the form of a ballot measure for the November election.

Asked if he thought it had public support, he said, "overwhelmingly."

"This isn't a question of partisanship or ideology. This is simply right or wrong," McClintock said.

Three other organizations, including the Howard Jarvis Taxpayers Association, are also moving to launch ballot measures curbing eminent domain.

Hunt agrees that there is strong support for curbing eminent domain, calling legislative backing for such measures "huge."

That's what worries him.

Although McClintock's legislation was not designed to eliminate the government's ability to seize land for public projects, Hunt offered an example where, from his point of view, the city's use of eminent domain and subsequent work with a private developer paid public dividends.

When the city was looking to build the first of now three senior-housing complexes in the downtown area, it needed to acquire 23 pieces of property in one square block.

Deputy City Manager David Edgar said the city did not have much trouble obtaining 22 of those properties. There was one holdout.

According to Edgar, an appraiser the city hired put this property owner's triplex at a value of about $175,000. The owner wanted more than $900,000.

The city initiated eminent domain, and, eventually obtained the land before turning it over to private hands to build the senior center.

The complex, the Village at Sierra, opened in 2003.

From Hunt's point of view, the application of eminent domain allowed the city to achieve a number of important city goals for downtown, including getting rid of blight and providing low-income housing.

But it's not only public-private partnerships that have Fontana worried.

Although McClintock's proposal would not bar governments from using eminent domain for strictly government projects, such as roads or parks, Hunt cited the possibility of legislation impeding eminent-domain use against nonprofit organizations such as churches as evidence that such projects could be in danger.

For Janice Rutherford, the Fontana City Council's most vociferous property-rights advocate, it's technicalities like these that make her believe current legislative eminent-domain proposals are misplaced.

Rutherford said she was "very disappointed" with Kelo and went so far to say elected officials need to refocus on property rights and "remember the fundamental principles on which our nation is founded."

But she thinks the remedies offered so far aren't right.

"There are some reforms needed," she said. "I support those reforms. I think the language needs tweaking."


San Bernardino County Sun: www.sbsun.com

Group Opposing Eminent Domain Gathers 1,200 Signatures For Measure: ABC-7 News (Denver CO), 1/9/06

Supporters of a state constitutional amendment to limit the government's use of eminent domain to seize property said they have gathered 1,200 signatures in support of getting it on the November ballot.

The signatures were collected in two days at the National Western Stock Show in Denver in an effort led by a group called Colorado Citizens for Property Rights, the group said Sunday. Supporters need 100,000 signatures to get a proposed amendment to limit eminent domain on the ballot.

A U.S. Supreme Court ruling this summer allowed local governments to seize property for economic purposes, but said states were free to enact their own laws protecting property rights.

Colorado Citizens for Property Rights is seeking an amendment to the state constitution that would limit the government's ability to use eminent domain to take property for private uses such as stores, private toll roads, corporate campuses or other economic development projects.

They said their proposal would not affect the use of eminent domain for public projects such as highways, schools or utilities.

The group was formed last year to fight the proposed "Super Slab" private toll road along the Front Range. The developer had been planning to use the power of eminent domain to take over private property for the project.


ABC-7 News: www.thedenverchannel.com

FB Survey — Americans Oppose Eminent Domain: American Farm Bureau Federation , 1/9/06

News Release

Americans remain strongly committed to protecting private property from the possibility of unjust seizure, according to the results of a nationwide survey released today by the American Farm Bureau Federation (AFBF) during the organization’s annual convention.

The poll shows, regardless of geographical, partisan and other demographic differences, Americans are unified nearly 2-to-1 against government use of eminent domain to take private property, except in limited circumstances such as when the public at large would clearly benefit from a new road, electric utility or similar project.

Likewise, 83 percent of Americans oppose the use of eminent domain to further private development initiatives. Seizure for private development was the issue at the heart of the Kelo v. New London, Conn., case decided by the U.S. Supreme Court last year. That case made national headlines when the high court ruled that property could be taken from one landowner to advance the economic development efforts of another private entity.

“The Kelo case sent shockwaves through American agriculture,” said AFBF President Bob Stallman. “If there is any land type on the outskirts of urban areas that is attractive to developers and vulnerable to government-sponsored seizure, it is our disappearing farmland. This case really sounded a justified alarm in farm country.”

In the survey, when respondents were asked about the Kelo ruling, an overwhelming 95 percent expressed disapproval; of those respondents, 87 percent said they disagreed strongly with the ruling.

“That kind of near unanimity on this key property protection issue is heartening,” Stallman said. “The protection of private property is a key thread in the fabric that makes up bedrock American values and to have agreement on this issue that cuts across all demographic boundaries should send a clear message to lawmakers at all levels – fix this problem now.”

Farming, in particular, received solid support when respondents were asked to prioritize entities that should be off-limits to eminent domain proceedings. For example, 14 percent said farms with a portion of land set aside for conservation or environmental preservation should be protected from condemnation. This is directly in line with the level of support respondents said should be given to historical monuments, churches, schools and hospitals.

Likewise, 12 percent of those surveyed said family farmers should be exempt from eminent domain laws, compared with 9 percent who support exempting private businesses and 8 percent who support exempting all landowners.

“America’s farm and ranch families are unique in that they literally rely on their land for economic survival,” Stallman said. “It is encouraging that when Americans are given a list of possible exemptions from eminent domain seizures that farm families came out on top.”

Furthermore, Americans are much more likely to disagree than agree (67 percent to 24 percent) that the government is justified in using eminent domain laws against a small number of individuals who refuse to sell property when most of their neighbors agree to sell so a development project may proceed.

In addition, the survey illustrates the extent to which there is agreement among Republicans and Democrats on this issue. Although a higher percentage of Republicans said they were strongly opposed to eminent domain – 45 percent compared with 40 percent of Democrats – the overall level of opposition among Republicans or Democrats was similar, with 66 percent of Republicans and 63 percent of Democrats expressing opposition to eminent domain.

Women expressed stronger opposition than men to the use of eminent domain. For example, when women were asked to state their level of support or opposition to the right of the government to take private property for public purposes, while paying the owner fair market value, 65 percent of women expressed opposition, compared with 59 percent of men.

The results also show that Americans share the same general views about eminent domain, regardless of where they live. When asked to state their level of support or opposition to the right of the government to take private property for public purposes, close to two-thirds of Americans expressed opposition: 65 percent in the East, 58 percent in the South, 59 percent in the West and 65 percent in the Great Lakes region.

The telephone survey of 1,076 adults was conducted by Zogby International. The nationwide survey, conducted Oct. 29 through Nov. 2, 2005, contains a margin of error of +/- 3 points.

The survey is one component of the grassroots “Stop Taking Our Property” (STOP) campaign initiated by the American Farm Bureau Federation following the Kelo ruling.


American Farm Bureau Federation: www.fb.org

Eminent-domain case goes to court: Cincinnati (OH) Enquirer, 1/8/06

By Steve Kemme

The eminent-domain fight in Norwood is to head into Ohio's Supreme Court on Wednesday, with the fate of three remaining homes at stake. Owners contend Norwood illegally took private property for a $125 million retail, residential and office complex.

EMINENT DOMAIN: PRO AND CON

Attorneys for Norwood and the Rookwood Exchange developers say Norwood has the right to take the property because:
  • Norwood needs the property to accomplish urban renewal goals. The U.S. and Ohio Constitutions uphold the rights of municipalities to use eminent domain for urban renewal.
  • Norwood's urban renewal study identified problems in the area bordered by Edwards and Edmondson roads and Interstate 75 that Rookwood Exchange will eliminate. Problems cited include traffic safety, substandard lots, and bad street layout.
  • The Ohio Constitution allows eminent domain to be used for a public purpose and specifies that improving a municipality's economy, creating jobs and building new housing are public purposes.

Attorneys representing the three property owners fighting eminent domain say Norwood has no right to seize the property because:
  • Norwood relied on a flawed urban renewal study as a basis for declaring the neighborhood "deteriorating."
  • Any law that allows a normal neighborhood to be declared deteriorating and subject to eminent domain is unconstitutional. It gives local governments too much power to transfer someone's property to another private party.
  • Norwood developed urban renewal plans for the proposed Rookwood Exchange site simply to acquire eminent-domain authority. Urban renewal plans are supposed to be undertaken to eliminate blight.

The bitter, lengthy legal fight over Norwood's right to take private property for a $125 million retail, residential and office complex resonates far beyond this financially struggling city.

Municipalities, property owners, developers and state lawmakers nationwide are watching to see whether the Ohio Supreme Court sides with Norwood and the Rookwood Exchange developers or with three property owners - an elderly couple who have lived in their house for 35 years, a man with a rental house and a couple who operated a small math and reading center.

The outcome of this three-year legal battle will influence how other Ohio cities use eminent-domain authority to seize property for economic development. It also could provide clues about how eminent-domain laws might change in other states.

On Wednesday, Norwood's eminent-domain case is to take center stage in Ohio's highest court.

Attorneys for Norwood and the Rookwood Exchange developers will argue before the Ohio Supreme Court why they believe Norwood acted legally when it seized the three lots. The city plans to tear them down for a development expected to generate $2 million in tax revenue.

They contend that Norwood was serving the public good by trying to replace a deteriorating neighborhood with a new development that would create jobs, housing and generate badly needed tax revenue.

Meanwhile, attorneys for Joy and Carl Gamble Jr., who want their house back, Joe Horney, who wants his rental house back, and Sanae Ichikawa-Burton and Matthew Burton, who operated the Kumon Math & Reading Center, will challenge the city.

They say the neighborhood was not blighted or deteriorating. They contend that Norwood illegally took private property.

The seven-member Ohio Supreme Court may take several months to issues a decision.

This is the first eminent-domain case to come before a state supreme court since the U.S. Supreme Court's landmark 5-4 decision last year. In Kelo v. New London, the court supported the right of New London, Conn., to use eminent domain to seize homes and businesses to allow a developer to build a hotel, health club and offices.

Beyond establishing economic development as a legitimate reason for eminent domain, the court gave state supreme courts leeway to provide greater protection for private property owners, if they desire.

"The Norwood case will serve as a real indication where states may go in this area," said Scott Bullock, an attorney with the Institute for Justice, a civil liberties law firm in Washington, D.C., that represents the Gambles, Horney and the Burtons. "It will determine whether there will be any meaningful limits on eminent domain in the state of Ohio."

"This case means a lot to local governments in Ohio," said Tim Burke, an attorney for Norwood. "Older, built-up communities, especially, need the power of eminent domain to put together property for economic development."

Bill Baldwin, a Cincinnati attorney who often represents developers in real estate and commercial transactions, said there's another reason why the Norwood case has created such widespread interest.

"There is a universally held perception that unless I'm in a slum or the government wants to built a highway in front of my house, I'm safe from eminent domain," said Baldwin, one of the attorneys who represented Hamilton County in the seizure of riverfront property needed for the construction of Paul Brown Stadium. "It's startling to people that the government could take your property even if you're taking good care of it and they're not building a highway."

The three buildings that had been owned by the Gambles, Horney and the Burtons sit in a large empty tract of land cordoned off by a chain-link fence. They are the only remnants of the middle-class neighborhood that had been bordered by Interstate 71 and Edwards and Edmondson roads.

The other 64 homes and two small businesses were demolished in April. So far, the courts have protected the remaining three buildings from the wrecking ball while the case is being decided.

Initially, 66 of 71 property owners in the neighborhood agreed to sell to the Rookwood Exchange developers, Anderson Real Estate and the Miller-Valentine Group. Five property owners resisted. After two lower courts ruled in Norwood's favor, three of the five decided to appeal to the Ohio Supreme Court.

Until the three remaining buildings are torn down, the developers can't start building the Rookwood Exchange and Norwood can't begin collecting the anticipated tax revenue.

And until the case is resolved, the holdouts have put their lives on hold. Courts awarded them sums of money far above their properties' market values, but they don't want to use the money while the case is pending.

The Gambles, who are in their late 60s, are living with their daughter in Northern Kentucky. About two months ago, they drove past their old neighborhood and saw the house they had bought as a young married couple and where they had raised their two children.

"I felt sadness and sorrow," Joy Gamble said. "There's our home, and we're elsewhere. But we're happy it's still standing. What Norwood did to us was wrong. They threw us to the wolves."

Another indication of the extensive interest in the Norwood case: 14 groups filed amicus or "friend of the court" briefs on behalf of the three holdouts; and eight groups filed in support of Norwood and the Rookwood developers.

The Tennessee-based National Federation of Independent Business Legal Foundation filed a brief supporting the three property owners. This business organization is an advocacy group for small business owners.

"Norwood was outrageous in labeling the properties as deteriorating and blighted," said Karen Harned, executive director of the group's legal foundation. "If we're going to start defining properties as blighted when somebody thinks it might bring in more tax revenue, then almost every home or small business could be called blighted."

The American Planning Association, a Washington, D.C.-based nonprofit group representing more than 38,000 professional planners, filed a brief in favor of Norwood and the Rookwood developers.

Lora Lucero, who heads the association's committee that reviews court cases throughout the country, said Norwood's use of eminent domain was "very appropriate," even though the neighborhood hadn't become a slum.

"We think it was very important that community leaders not wait to take action until it gets to the point where properties already have suffered from years of neglect and blight," Lucero said. "Norwood saw a neighborhood heading in the wrong direction and wanted to take a pro-active stance."

She said the American Planning Association believes eminent domain should be avoided whenever possible.

"In Norwood's case, the facts are crystal clear that it was a tool of last resort," Lucero said. "That's why it was easy for us to support Norwood in this case."

In reaction to last year's U.S. Supreme Court decision, legislators in about 40 states have or will consider changing laws to make eminent domain more difficult to use. Ohio recently placed a one-year moratorium on using eminent domain for economic development while legislators consider changes in state law.

Burke says the Norwood case boils down to a basic dilemma: "How far do you go to respect individual rights in relation to the efforts of a municipality to better the condition of the community as a whole?"

Bullock expressed the same point in a different way.

"Ohio now has a choice as to which direction it'll take," he said. "Will it go toward the U.S. Supreme Court's Kelo decision or will it go in a direction that provides real limits on eminent domain authority?"


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

Idaho looks at eminent domain restrictions: Jackson Hole Star-Tribune (Caspar WY), 1/6/06

By Christopher Smith, Associated Press

Idaho is one of 44 states whose legislatures plan to stiffen laws limiting when private homes and businesses may be seized by local governments to make way for public works or economic development projects.

But it's one of only a few that may go so far as to attempt to amend the state constitution to rein in what many lawmakers see as government-sanctioned land grabs.

The arcane subject of governments' eminent domain powers became a hot issue after the U.S. Supreme Court ruled in a Connecticut case last year that using such power to take private land for economic development projects to be built by private companies qualifies as a "public use."

Idaho's constitution gives local governments the right to condemn private property for water and mining development as long as owners are fairly compensated, and says "any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use."

"Right now, you don't have a clear definition of what constitutes public purpose," said Rep. Lenore Barrett, R-Challis, who has two constitutional amendments drafted for possible introduction in the session beginning Monday. "The language is crucial here and I think it needs to be in the constitution."

Amending Idaho's constitution requires a two-thirds majority vote in both the House and Senate and simple majority approval by voters in the following general election. While several lawmakers are crafting proposals to limit eminent domain powers, some are not convinced that changes to the state's constitution are necessary.

"I don't want to go down that slippery slope to change the constitution until we've worked on something statutorily," said Sen. John McGee, R-Caldwell, who plans to introduce legislation. "I'm confident that we can come up with something that protects private property rights while at the same time we don't need to squelch business."

Idaho House Speaker Bruce Newcomb, R-Burley, said he believes the only entities in Idaho that could flex eminent domain powers for private economic development are local urban renewal districts and he's seeking to limit that ability in the new session.

"They told me they like to have that hammer available when they negotiate," Newcomb said at the Associated Press 2006 Idaho Legislative Preview Thursday. "That was a bad thing to say."

Property rights groups say eminent domain power is being abused by governments to make so-called "private-to-private" land transfers, where cities and counties claim the private economic development projects qualify as public use.

Although the issue has not created a high-profile case in Idaho yet, the Web site of the watchdog group The Castle Coalition lists dozens of legal clashes on private-to-private transfers around the country, ranging from Tempe, Arizona, where the city is trying to condemn 19 private businesses to build a new shopping mall, to St. Paul, Minn., where the city council wants to condemn a liquor store known as Booze Mart to make way for a private developer's town home and commercial buildings.

Historically, eminent domain was used by governments to acquire private land for public projects such as bridges, libraries and highways.

Sometimes, older neighborhoods were labeled "blighted" and condemned through eminent domain to make way for urban renewal projects. But that use is also under fire: In Missouri, lawmakers are considering a constitutional amendment to strip the government of its power to declare private property blighted.

Legislative analysts worry that in the populist zeal to limit eminent domain, a valuable tool to revitalize decaying cities may be shelved. For example, the bans on using eminent domain to foster private economic developments that are being discussed in many states now could bar condemning land for a new public library if the library had a Starbucks coffee shop in the building.

"Legislators are going to have a tough time striking that balance," said Larry Morandi, who monitors eminent domain bills for the National Conference of State Legislatures in Denver. He points to the bill enacted in a special 2005 session of the Texas Legislature that prohibited use of eminent domain to confer a private benefit on a private party or for economic development. In the seven-page bill, the prohibition language takes up one paragraph while the rest of the legislation is a laundry list of exceptions, including allowing local governments to use eminent domain power to condemn private property to build new professional sports stadiums.


Jackson Hole Star-Tribune: www.jacksonholestartrib.com

Local reps part of panel looking into eminent domain laws: Roanoak Rapids (NC) Daily Herald, 1/7/06

By Amy Lotven

Two local members of the N.C. House of Representatives are currently reviewing the state's controversial right to take property from a private landowner for public use.

Rep. Lucy Allen and Rep. Edward Jones are part of a legislative committee examining the eminent domain process, which goes back to English common law and gives the government the authority to take private land in exchange for compensation.

They will consider ways to protect the government's right to take land when necessary, while also protecting landowner rights.

Allen said the first committee meeting consisted mainly of reviewing North Carolina's eminent domain laws and comparing them to other states. “It was educational,” she said.

Allen and Jones are both members of the House Select Committee on Eminent Domain Powers that met Thursday morning in Raleigh. The panel has been asked to recommend to the full General Assembly, when it reconvenes in May, whether to make changes to North Carolina's eminent domain statutes or the state constitution.

The committee was created in response to last year's controversial Supreme Court decision that allowed a Connecticut town to take over citizens' private property as part of a large-scale economic development plan, which included a hotel and other amenities that would be owned and operated by a private entity.

The town had determined that the higher tax base created by the development constitutes a greater “public purpose,” therefore justifying eminent domain, and the majority agreed.

The 5-4 decision, later called “scary” by former Supreme Court Judge Sandra Day O'Connor, who penned the dissenting argument, created a public outcry and prompted many states to take a second look at their own eminent domain statutes.

The overwhelming fear, also voiced by O'Connor and Judge Clarence Thomas, is that the decision erases any definition of “public use” and leaves any property open for the taking if a government deems it is somehow for the public good.

Thomas also noted that the law would disproportionately affect the poor. “The consequences of today's decision are not difficult to predict, and promise to be harmful,” he wrote in his dissent.

“So-called ‘urban renewal' programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities.”

Ed Jones is also concerned how the law affects such communities. “We need to look out for the little person and define what is a blight,” he told the Daily Herald. “If the government wants to knock down the private home of a person with little resources and replace it with an apartment complex, it may increase the tax base and give people more places to live, but it may not fit the definition of public purpose,” he said.

Declaring a neighborhood or area as “blighted” is one reason often given for taking away private land. Jones said his understanding of blight is that it has to do with the health and safety, rather than the with monetary value of the property.

North Carolina law lays out nine conditions under which cities and counties can condemn private land, including the creation or expansion of roads, parks, sewer lines and government buildings. It does not include private development.

Jones said the meeting consisted mainly of reading over definitions and trying to set the ground rules for the discussion. “We still don't know where we're going with it,” he said. “It's so complex.”

Panelists asked the legislative staff to provide more information at the next meeting, for which a date has not been set, regarding how property values are determined when the government compensates owners for seized property.


The Daily Herald: www.rrdailyherald.com

Eminent Domain reform to be major issue next legislative session: ECM Publishers (Coon Rapids MN), 1/6/06

By T W Budig

Among the properties claimed by the sweep of eminent domain is the Minnesota State Capitol.

The issue has become big.

On Thursday (Jan 5) a diverse coalition — Minnesotans for Eminent Domain Reform (MNEDR) — presented proposed eminent domain reform legislation to be carried by a bipartisan pair of lawmakers.

Within minutes of that press conference, three local Republican senators — Sean Nienow, Pat Pariseau, and Mady Reiter — were hawking a rawboned eminent domain reform bill whose sleekness they believe make it a perfect alternative bill.

Gov. Tim Pawlenty, too, on Thursday added his voice to the growing din calling for eminent domain reform. “In general, we have given our government too much latitude,” he said.

Eminent domain is the legal process by which government can take private property.

A recent U.S. Supreme Court decision, Kelo v. City of New London, helped push the festering issue into national prominence last summer.

The MNEDR press conference had supporters lining a wall — representatives from groups seemingly unrelated like the Urban League and Farm Bureau.

Rep. Jim Johnson, R-Plymouth, House Civil Law and Elections Committee chairman and attorney general candidate, and Sen. Tom Bakk, DFL-Cook, are carrying the MNEDR legislation.

“This Bakk/Johnson legislation is the key vehicle for reforming eminent domain abuse in Minnesota,” said attorney Lee McGrath, executive director for the Institute For Justice Minnesota Chapter and MNEDR frontman.

Restrictive use
Some provisions in the MNEDR bill include a restrictive use of eminent domain, a compensation provision that requires payment to include costs beyond bricks and mortar — a business’s total value, for instance — reimbursement of legal costs of property owners who successfully defend against an eminent domain, and an eminent domain public hearing by elected officials requiring a majority vote for action.

One local person who heartily endorsed the MNEDR proposal was Jim Meide of Champlin.

Meide, 77, a retired teacher and MNEDR member, and his wife Beverly, 75, have lived in a home along the Mississippi River for 30 years, raising six children there. Now they believe their “castle on the Mississippi” is threatened by a proposed development by the City of Champlin.

“I want to die in that house,” said Meide at the press conference, saying the couple considers the home an investment.

“Offer me a million dollars and I’ll think about it,” he said of selling his home.

Johnson, who believes an eminent domain bill will pass the Legislature this session, argued that people facing eminent domain judgment feel helpless against the juggernaut of government.

“People who sell with a gun to their head are not selling voluntarily,” he said.

The legislation proposed by three local senators is shorter than the MNEDR — just 13 lines.

“We decided we wanted it simple,” said Pariseau, R-Farmington, saying the bill focuses on definitions. But most eminent domain concerns can be addressed by the bill, said Nienow, R-Cambridge. “This is quick and easy,” he said.

A handful of other eminent domain bills have already been simmering within the Senate Republican caucus, Pariseau explained.

The legislative session does not begin until March.

Emotional responses
Jim Miller, executive director of the League of Minnesota Cities, worries about emotional responses to the U.S. Supreme Court Kelo decision.

“Our main concern is that we don’t have kind of a hysterical reaction to a factual situation that’s been misrepresented,” said Miller.

He argues that the League's 853 city members have shown restraint with eminent domain — only a fraction using it in recent years.

McGrath called the results from a recent League survey “bogus.”

The U.S. Supreme Court Kelo decision does not change Minnesota law, said Miller. “Eminent domain is and of itself is not something anyone would say is good idea,” said Miller.

But it is a tool of government, he argued.

Nienow, too, views eminent domain as a legitimate function of government. “But the use of that has pushed the boundaries of what we as a people would generally agree on,” he said.

Miller does not expect an agreement to be worked out on eminent domain prior to start of session.


ECM Publishers: www.hometownsource.com

Met Council to consider ban on eminent domain funding: Minneapolis/St Paul (MN) Business Journal, 1/6/06

By John Vomhof Jr

The Metropolitan Council will consider a ban on grants for projects in which local governments use eminent domain to transfer property from one private party to another, the agency said.

The proposed policy comes in the wake of a recent U.S. Supreme Court decision that upheld local governments' rights to condemn land and transfer it to private developers if it would result in a public benefit. The ruling allows eminent domain to be used for projects that would generate more jobs or increased tax revenue, as well as public-use projects such as roads and parks.

Met Council Chairman Peter Bell said the policy would "help prevent the abuse of eminent domain and safeguard the property rights of individuals and business owners."

The Met Council's Community Development Committee will consider the policy at its Jan. 10 meeting. The committee's recommendation would then go to the full council.

Eminent domain has become a heated topic since the Supreme Court's decision in June. On Thursday, a coalition called for Minnesota to reform its eminent domain laws. Sen. Tom Bakk, DFL-Cook, and Rep. Jeff Johnson, R-Plymouth, said they will co-author a bill that would only allow eminent domain to be enacted for public-use projects.


Minneapolis/St Paul Business Journal: http://twincities.bizjournals.com

Stadium authority tries an eminent domain end run: Marion (IN) Chronicle Tribune, 1/5/06

Editorial
Legislature should not let it succeed

This is not a good time of year to get down on the Indianapolis Colts or anything connected with the state's National Football League team, but efforts to get the Colts a new stadium go too far.

The Indiana Stadium and Convention Center Building Authority, which has plans to build the Colts' new luxury stable in downtown Indianapolis, filed a lawsuit Friday to take over some property it wants through eminent domain.

The stadium authority filed the suit before 2005 ran out in an attempt to avoid possible restrictions the General Assembly might enact this session.

The stadium wants 4.26 acres of property at 230 W. McCarty St., claiming the property is blighted and a candidate for eminent domain.

The authority filed two other lawsuits last month, one going after a 2.3-acre lot at Capitol Avenue and South Street, and the other going after a small lot that contains a piano store near the Hurst building.

The stadium authority wants the Hurst property so it can fulfill its obligations to provide enough parking around the stadium.

The problem is that the Hurst property, at least, isn't blighted. It's the site of the N.K. Hurst Co. bean factory, a thriving business that's been in operation on the site since 1938 and does not want to move.

Eminent domain - the taking of private property by government for public use - has gotten a bad rap over the years, and it wasn't helped by the recent Supreme Court decision in Kelo vs. City of New London, Conn., which said that it's all right for government to take private property and turn it over to private developers looking to turn a profit.

The idea behind eminent domain is that government should be able, as a last resort, to buy someone's property, paying them what it's worth, for infrastructure projects such as a new highway or school.

But it's something else to do that for economic development, as important as that is.

A football stadium does not rank up there with a highway or a school. It amounts to economic development.

Some would argue that a new stadium would mean more money for Indianapolis and that a new stadium amounts to a public benefit.

More likely, they just don't think a bean factory is as cool as an NFL franchise, even though the bean factory is doing well, providing jobs and paying taxes.

The government has offered the Hurst company $3.7 million for its property, including the factory building. Hurst officials, according to The Indianapolis Star, have estimated the costs of moving the factory alone at more than $7.5 million, not including the cost of acquiring new land and a new building.

Indiana's current eminent-domain law is so vague that government can often get by with simply calling a property blighted, whether it is or not. Such would appear to be the case in the Hurst case.

Rep. David Wolkins, R-Winona Lake, has been quoted as saying he plans to sponsor legislation that would make it more difficult for governments to take private land.

His bill would allow governments to seize land only when there's no reasonable alternative. Wolkins also said he likely would make the bill retroactive so it would apply to the Hurst case.

On the football field, it's "Go, Colts!" But in the stadium-vs.-bean-factory contest, it's "Go! Fight! Win, Hurst!"


Marion Chronicle Tribune: www.chronicle-tribune.com

Supreme Court ruling prompts eminent domain reform push in Minnesota: Minnesota Public Radio, 10/5/06

By Tom Scheck

State lawmakers, property rights advocates and others are demanding the state limit property seizures by government agencies. The move comes as a result of last year's U.S. Supreme Court decision on eminent domain. The court ruled local governments can use eminent domain to take property from one private entity and give it to another private entity if it's in the public interest. The ruling outraged many people. But some officials are urging caution. They worry lawmakers may react too quickly without giving the process enough thought.

Jim Meide is the type of guy who sees his home as his castle. He and his wife have lived in their Champlin home for nearly 30 years.

"We worked hard," he told a Capitol news conference on Thursday. "We paid off our mortgage and made improvements to our American dream house. We retired and expected to live out our retirement in our castle on the Mississippi River."

But Meide is hopping mad at the city of Champlin because he says it wants to use eminent domain to take his property. The city supports a marina, condominiums and a restaurant proposal on the site. Champlin officials did not return calls to confirm his account. Nevertheless, Meide says he doesn't want to sell his house and is worried that the city may seize it through eminent domain.

Opponents of eminent domain say that's a violation of personal property rights. Dozens of people attended a news conference urging lawmakers to change the state's eminent domain laws.

Local governments use the process mostly for public uses, like building a road, a park or other public building. But in some instances, they use it for redevelopment and economic development purposes. State lawmakers are worried the practice may increase in light of the U.S. Supreme Court decision.

"One of the most fundamental rights of Americans is the right to own your home or your own farm or your own piece of land and in Minnesota it's not that difficult, in fact it's relatively easy to take that home or that farm or that little piece of land and we don't think it should be," says Rep. Jeff Johnson, a candidate for attorney general.

The issue is so hot right now that every legislative leader and Gov. Pawlenty supports some change. The debate is over which properties should be protected. Some lawmakers want to forbid local governments from using eminent domain to seize private property for the use of another private entity. Others want to restrict local governments seizure of a person's home for private use except in cases of extreme blight. The definition of "blight" is also being debated.

Sen. Tom Bakk, DFL-Cook, says lawmakers may quibble over the minor details, but hopes they pass some sort of changes during the upcoming session.

"Our hope is that we can keep this a nonpartisan issue because I would bet you that the person who's home is being taken doesn't care about partisan politics and this issue should rise above that," he said.

Some city officials say they're worried lawmakers may overreach in their attempts to fix a problem that wasn't even a concern a year ago. Moorhead City Manager Bruce Messelt says cities and towns rarely use eminent domain but says it's a good option to have available. Messelt says a broad overhaul of the law may make things difficult for local government agencies.

"We could see the pendulum swinging to the point where we tie the hands of local governments to such an extreme amount that local governments will not be able to deal with blight, with environmental contamination, with shuttered and closed businesses and property owners who live in Florida and just don't care. If we take away those tools then we have to be careful to understand what those communities might look like in five or 10 years," according to Messelt.

For example, Messelt says Moorhead residents have called on city officials to renovate the downtown for years. He says they worked with landowners to make the changes without using eminent domain. He says other cities may find it necessary.

Tom Grundhoefer, with the League of Minnesota Cities, says he's concerned lawmakers may restrict the flexibility needed to manage land on the local level. He says locally-elected officials have been reluctant to use eminent domain in recent years and may take a more cautious approach as a result of the Supreme Court ruling.

"Given the public reaction, the media reaction and the political reaction, I think our local elected officials are maybe approaching eminent domain with a higher level of sensitivity than they did before," Grundhoefer says.

Grundhoefer says a survey by his organization found that 34 Minnesota cities used eminent domain to seize land for redevelopment or economic development between 1999 and 2005. But critics say the number is too low and doesn't account for the number of property owners who sold as a result of the threat of eminent domain.


Minnesota Public Radio: http://news.minnesota.publicradio.org

1/14/2006

House debates eminent domain: Jackson (MS) Clarion Ledger, 1/4/06

Bills to restrict use now move to Senate for consideration

By Laura Hipp

The ability of the state, cities and counties to take private property for stores or manufacturing plants would be stopped under a Mississippi House plan approved Tuesday.

But governments could still take an individual's land for roads, utilities and parks.

"A big multibillion company should not be allowed to take your farm, home, church or cemetery to make more money," Rep. Jamie Franks, D-Mooreville, said.

Franks sponsored two pieces of legislation changing a state statute and the Constitution to restrict the use of eminent domain, which allows the government to take land from private owners. An constitutional amendment would require a statewide vote.

The bills move to the Senate for consideration.

Franks' proposals on eminent domain were a response to a U.S. Supreme Court ruling last year that declared government could take property for any use — public or private.

Taylorsville resident Mark Bryant wants a tougher law that stops gas and oil companies from taking land as well.

He unsuccessfully fought an oil company last year that wanted a 50-foot section of his family's land. The company took the land through eminent domain proceedings.

"It took away my homesite," said Bryant, who wanted to one day build a house on the Smith County land. "They've got the money to do this, and the private land owner doesn't have the money to fight it."

House Concurrent Resolution 10 calls for a change in the state Constitution to limit eminent domain to only public uses, such as parks, road and utilities. A statewide vote in November would be required. It passed with a 117-1 vote.

House Bill 100 proposes statutory changes that would take effect immediately after approval from the Senate and the governor. It prohibits taking land for retail, commercial or industrial uses. It was approved in a 116-3 House vote.

Rep. Leonard Morris, D-Batesville, who dissented in both votes, said some property owners receive a tax break for shedding land through eminent domain when locating industrial prospects — rather than selling the land directly. He proposed an exemption for industrial uses but lost.

"We are using a sledgehammer to kill a gnat," said Morris, former executive director of North Delta Planning and Development Issues. "We are going to prohibit economic development in this state period."

The Mississippi Development Authority will comply with lawmakers' decision in economic development deals, said spokesman Scott Hamilton.

Senate Judiciary A Chairman Charlie Ross, R-Brandon, said before the House bills were approved that he has not studied the House proposals but plans to offer his own.

Last year's U.S. Supreme Court decision "goes way too far" in granting government the power to seize private property, Ross said.

His proposal would require eminent domain to be allowed only when the government seizes property for direct public use.

For instance, Ross said, using eminent domain to seize land for the purpose of increasing tax revenue would not be a direct public use.

"I believe that strikes the right balance," Ross said. "It's not a radical change from the current law and will continue to provide protection to private property owners."


Clarion Ledger: www.clarionledger.com

Eminent domain barriers proposed: East Valley (Mesa AZ) Tribune, 1/4/06

By Howard Fischer

An East Valley lawmaker hopes to throw more roadblocks in the path of cities that want to use eminent domain.

And Rep. Chuck Gray, RMesa, wants quick action. He already has proposals scheduled for a hearing — and vote — by his committee this Monday.

Gray proposes:
  • Property owners be entitled to a jury trial to decide whether seizing their property is really for a legitimate public purpose. Now, a judge solely decides if the action is legal.
  • Municipalities must prove to the court the land is needed for a true public purpose. Current law presumes government is acting legally, forcing the property owner to demonstrate otherwise.
  • Legal fees for landowners when they challenge property seizure to give their land to someone else.
  • City councils be blocked from discussing the matters behind closed doors.

The bills will get a fight from municipalities.

"They would make condemnations for economic development purposes almost impossible," said Mary Okoye, lobbyist for Tucson.

Gray — chairman of the House Committee on Federal Mandates and States Rights — is crafting an even more comprehensive measure to bar municipalities from taking one person’s property and giving it to another, no matter what the reason.

Kevin Adam, lobbyist for the League of Arizona Cities and Towns, said that could undermine urban renewal projects.

Plans often call for replacing what is on the property with hotels, shopping and other commercial development.

"Are you going to cripple the ability of cities and towns to redevelop and address slum and blight, particularly in urban areas that are undergoing significant decay?" he asked.

Gray countered that not even urban blight gives the government the right to take one person’s property and give it to someone else.

He said cities can use nuisance laws to force landowners to bring the buildings up to code.

"But to take that property away from them and then give it to another person because of the tax revenues it might bring the city has nothing to do with the blight itself, other than as a cover to take the property," Gray said.

Adam said ordering property owners to clean up or close down is not a solution to urban blight.

"I suppose you could shut them down and board up that business, that home," he said.

"Basically, you have an unoccupied building which is a potential for additional crime."

The U.S. Supreme Court ruled last year that cities can take private property and turn the land over to another private developer. The justices said increased tax revenue and new jobs were enough to qualify the action as a taking for "public purpose."

Arizona has a more restrictive constitutional provision which bars taking private property for private purposes. And Arizona judges have twice rejected efforts by cities — Tempe and Mesa — to take land to give to new private businesses as part of municipal redevelopment projects.

But Gray said cities "always see new angles and new ways to twist the laws."

In Tempe, the city tried to use eminent domain to force industrial businesses off their property to build the planned Tempe Marketplace. Several property owners sued successfully to block condemnation.

In the Mesa case, judges said Mesa could not force brake shop owner Randy Bailey off his land and transfer it to a hardware store owner.


East Valley Tribune: www.eastvalleytribune.com

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

By Rick Rousos

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Lakeland ledger: www.theledger.com

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

Lawmakers, owners confront land grabs

By Crystal Yednak

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

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

And now, it's a Walgreens.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But sometimes they are not.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Chicago Tribune: www.chicagotribune.com

1/12/2006

Eminent Domain Abuse in Cinnaminson NJ

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

By Michael Fickes

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

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

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

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

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


Commercial Property News: www.cpnonline.com





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

By Lavinia DeCastro

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

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

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

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

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

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

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

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

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

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

Steinfort said the project will help lower taxes.

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

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

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


Courier-Post: www.courierpostonline.com





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

By Frank Kummer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Philadelphia Inquirer: www.philly.com





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

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

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

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

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

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

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

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

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

Sunset Manor residents demand city terminate Novus deal

By Steve Birmingham

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




Suit alleges Novus manipulated financial information

By Steve Birmingham

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

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

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

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

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

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

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

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

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

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

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


St Louis Post-Dispatch: www.stltoday.com

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

By Sean Ryan

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

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

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

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

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

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

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

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


The Daily Reporter: www.dailyreporter.com

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

By Gerry Baksys

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

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

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

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

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

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

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

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

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

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

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


Daily Democrat: www.dailydem.com

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

By Phillip Rawls, Associated Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But Allen said Alabama landowners are calling for more protection.

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


Everything Alabama: www.al.com