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

Senate committee looks at reforming property and land development laws

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Columbia Missourian: http://columbiamissourian.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The legislation now proceeds to the full Senate.

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

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Daily Herald: www.heraldextra.com

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

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

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

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

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

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

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

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

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USA Today: www.usatoday.com

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

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

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

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

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

But not everyone shares his sentiment.

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

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

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

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

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WIBW: www.wibw.com

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

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

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

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

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

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KPVI-tv: www.kpvi.com

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

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

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

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

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

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

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

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

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

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

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Des Moines Register: http://desmoinesregister.com

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

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

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

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

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

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

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

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

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

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The Boston Globe: www.boston.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Las Vegas Business Press: www.lvbusinesspress.com

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

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

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

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

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

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

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

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

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

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WIStv10: www.wistv.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Both actions require public hearings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Courier-Post: www.courierpostonline.com

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

Fight against "takings"

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

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

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

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

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

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

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

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

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

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Denver Post: www.denverpost.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Cullman Times: www.cullmantimes.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Contra Costa Times: www.contracostatimes.com

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

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

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

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

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

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

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Des Moines Business Record: www.businessrecord.com

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

By Edward Russo
It's called the ultimate weapon or the last resort.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Register-Guard: www.registerguard.com

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

My View

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

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

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

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

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

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

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

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

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

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Indianapolis Star: www.indystar.com

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

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

This eminent domain business is getting serious.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Conservative Voice: www.theconservativevoice.com

Senate Puts Eminent Domain on Hold: WXIA-TV (Atlanta GA), 1/19/06

By Denis O'Hayer
Responding to outraged property owners, a state senate committee has just approved a 120-day halt on eminent domain, the power local governments have to seize private land.

At issue is whether the government can take private land for other private development.

Mark Meeks swapped his florist's apron for a business suit to watch the vote. He's in a legal fight with the city of Stockbridge, which wants to force him to sell his shop to make way for a new city hall plus private stores and residences.

Lawmakers have felt the public fury over eminent domain for private projects. Local governments have, too.

But John Hiscox of Macon's housing authority warned there are times when eminent domain serves the public good – even when a private project is involved.

Hiscox says without eminent domain, Macon could never have transformed blighted blocks into vibrant neighborhoods.

“We’re respecting private property. We are creating new homeowners by the dozens,” Hiscox said.

Meeks pointed to existing laws.

“There are laws on the books now. If they want to use those, they can enforce those, and there’s no need to use eminent domain,” Meeks said.

Both sides said a 120-day moratorium would give lawmakers time to sort out an issue that's both controversial and complicated.

There’s also a move now to write limits on eminent domain directly into the state constitution. That would likely intensify the debate even more.

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WXIA-TV: www.11alive.com

Neville proposes bill that would limit eminent domain: (Farmington NM) Daily Times, 1/20/06

By Rhys Saunders and Walter Rubel
Republican senators Steve Neville, Farmington, and Lee Rawson, Las Cruces, have introduced legislation that would prohibit cities and other local government agencies from using their powers of eminent domain to condemn private property for commercial development.

Neville's bill would add a new section to the state's Eminent Domain Code prohibiting the practice. Rawson's bill goes one step further, seeking a constitutional amendment in which voters would be asked to limit the powers of eminent domain in the state Constitution.

Eminent domain gives governments the authority to seize private property, paying the owners fair market value. It has typically been used for public needs such as roads and utilities. But a Supreme Court decision handed down last year allows municipalities to use eminent domain to clear the way for private development.

"The Supreme Court case caused an uproar all over the country," Neville said.

He noted that the city of Farmington is in the process of reviving its downtown area, and has agreed not to use eminent domain laws in that process, but there is nothing now in New Mexico law that would stop them.

"The Constitution says if it's allowed in statute you can do it," Neville said.

Three different state codes would appear to allow for property to be seized, he noted. Neville said his bill would not prevent the traditional uses of eminent domain to meet community needs.

Rawson said even if Neville's bill is passed, he will still seek a change in the Constitution. Putting it into the Constitution will remove politics from the issue and ensure that private property rights are maintained in future years when other lawmakers are in office, he said.

"We both have the same goal," Rawson said.

Local officials in San Juan County applauded the proposed legislation.

"I support that bill," said Farmington Mayor Bill Standley.

Standley said the Farmington City Council is in the process of drafting a resolution that would limit the city's use of eminent domain, restricting the ability to seize both private and commercial property for the purposes of metropolitan redevelopment.

"It's sensible for us to back it up," Standley said of state legislation. "The sooner we do it (pass a local resolution), the better it is to show support of the bill."

Standley said he expects the draft to be brought before the council within "the next couple of weeks," and believes the City Council will vote in favor of the resolution.

Councilor Mary Fischer said she believes a resolution would not have been necessary if the council had not passed boundaries for the metropolitan redevelopment area (MRA).

"It (eminent domain) is what drives the MRA train," Fischer said. "Without condemnation, the whole concept does not work. I think (Standley) may be understanding that support of the MRA is an error and I think he's trying to backstep a little bit."

Fischer said she is not in favor of eminent domain for economic purposes and even termed the idea a "scam" used to "help your buddy at the expense of your neighbor."

She said she believes San Juan County citizens would vote in favor of a bill limiting the powers of eminent domain.

There are certain instances in which eminent domain would still apply under the city's proposed resolution, Standley said.

"Some residents could be deemed not fit (to live at a location) if it's being used as a crack house or for illegal and illicit activities," Standley said. "In that case, the property would be used for city purposes, not for economic purposes. If it's a viable property, I'm not going to exercise eminent domain."

Standley noted that the City Council will be "very diligent" if it ever decides to exercise the practice.

During a Nov. 14 Bloomfield City Council meeting, the council approved a resolution stating that the city opposes eminent domain actions "that would result in the taking of an occupied residence for economic development or redevelopment purposes."

"We couldn't set the law for ourselves or for future councils, but we wanted to say that this is the way the current council feels about (eminent domain)," said Bloomfield Mayor Keith Johnson, who is also a County Commissioner.

Johnson said that if the state legislation is brought before the public, he believes local residents will vote in favor of the bill.

"I think it would have overwhelming support to limit where eminent domain could be used," Johnson said. "For the purposes of roads and utilities, I think it's a necessary tool, but we've never had to use it in Bloomfield."

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The Daily Times: www.daily-times.com