Holdout battles OSU in eminent domain case: Arkansas City KS Traveler, 12/7/06

By Justin Juozapavicius, Associated Press
A judge could decide Thursday if a property owner can go ahead with his challenge of Oklahoma State University's use of eminent domain to take his property for a planned athletic village.

For months, holdout homeowner Kevin McCloskey has claimed the university has no authority to take away his land because OSU's governing body, the Board of Regents, has failed to abide by a long-forgotten requirement that at least five of its eight members be farmers.

He accuses the university of violating a 1944 state law that says farmers must have a majority on the governor-appointed Board of Regents.

''We are optimistic that the laws out there intended to protect us will indeed do that,'' McCloskey said.

But university officials say OSU has been as sympathetic as it could be to McCloskey and other landowners and accuse him of trying to get more money out of the deal.

The university has gone to court to try to seize McCloskey's 66-year-old ranch-style house through eminent domain, or the taking of private property for public use.

''We have said from the beginning (McCloskey's) claims are extraneous and irrelevant to eminent domain,'' said OSU spokesman Gary Shutt. ''The issue of questioning the qualifications of the regents has nothing to do with eminent domain.''

McCloskey bought the home in 2005, a couple of months before the university announced it would clear out the Stillwater neighborhood north of Boone Pickens Stadium to make way for an indoor practice complex, outdoor practice fields and a baseball stadium, thanks to a record, $165 million gift from oilman alumnus T. Boone Pickens.

The university had offered McCloskey $62,000 for his home, or about 2 1/2 times more than he paid for it.

But he turned it down, later saying the whole matter could be settled for less than $90,000.

In October, a board of court-appointed appraisers estimated McCloskey's property to be worth $84,000 which, by law, OSU was required to pay to the court, even without a final settlement between the two parties.

In the meantime,both sides are weighing a jury trial to decide the matter.

''It's not a win or lose fight, it's a degrees of losing fight,'' McCloskey said.

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Arkansas City KS Traveler: http://www.arkcity.net

Millville approves restrictions on eminent domain: The Press of Atlantic City NJ, 12/7/06

By Saba Ali
[Millville NJ] City Commission passed a resolution to restrict the use of eminent domain Tuesday night.

The resolution stated that the city will not use eminent domain toward the “condemnation of owner-occupied, single-family residential dwelling units,” an issue that has sparked concern with local residents.

Millville First, a local group of citizens concerned with how development is affecting taxes in the city, is currently collecting signatures for a petition that bans the use of eminent domain unless for public use such as roadways.

The group has collected more than half the signatures required to force city officials to either create an ordinance against eminent domain or put the issue on the ballot for a vote.

Encouraged by the resolution, Millville First member Robert Tesoroni Jr. stated that while the city is taking small steps in the right direction, it still has much further to go in order to protect residents from having their homes taken from them.

Those who are living in rental units owned by landlords are not covered by the resolution, Tesoroni pointed out.

Mayor Jim Quinn said that resolution was put into place to assure residents who own their homes that they are protected and to increase homeownership in the neighborhoods.

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The Press of Atlantic City NJ: http://www.pressofatlanticcity.com

Eminent domain case near trial: San Luis Obispo CA Tribune News, 12/2/06

By Bob Cuddy
A Templeton man is accusing the county of building a road across his property to benefit a private landowner in what he calls an abuse of the eminent domain process.

Morris Aron, an orthopedic surgeon, wants more money for the property than the county is offering, in addition to monetary damages. The figures fluctuate as the litigation moves forward, but the difference between the two sides could be as much as $3.5 million.

Attorney Todd Amspoker, who is handling the case for the county, called Aron's allegations about abuse of eminent domain "absolutely ridiculous."

Nonetheless, "it rubs me the wrong way that the government can just come in that way" and take land, Aron said.

The local case is playing out against a national backdrop of concern over eminent domain abuse, a discussion triggered by a U.S. Supreme Court decision last year.

Eminent domain allows a government to take private land for the public good, giving the owner fair value. These takings usually are for libraries, schools and roads.

The Supreme Court's decision, in Kelo v. City of New London, Conn., allows local governments to seize property for private development, including hotels and shopping centers. The public benefit would be the tax revenue raised by the development, which in theory would be spent for projects that benefit the entire community.

The Kelo decision triggered a frenzy of local government takings as well as an anti-eminent domain backlash, including Proposition 90 on the Nov. 7 ballot in California, which would have limited land takings. Proposition 90 lost.

Aron's case is scheduled for trial Monday in Superior Court. His attorney, Herman Fitzgerald of Burlingame, said two issues face the court: whether the government has the right to take Aron's land, and how much should it pay.

Aron's 10.6 acres are just off Highway 101 in Templeton. He said he bought the property 10 years ago as an investment but had no immediate plans to develop it. He paid just under $1 million for it.

A few years ago, Aron said, the county decided it needed to run a road through his land connecting Las Tablas Road and Peterson Ranch Road.

"Public interest and necessity require the project," called "the Bennett Way extension project," according to court documents.

The road took about 1.59 acres of Aron's land, slicing it from north to south into two parcels of about 7 acres and 2 acres, curtailing his own potential for development there, Aron said.

He didn't want to put the road through. The county took the land under eminent domain and already has built Bennett Way.

Fitzgerald and Aron said the only reason the county wants the road is to benefit the Peterson Ranch subdivision and its developers.

"The taking confers a private benefit on an identifiable private third party developer," according to court documents.

That is only part of Aron's complaint, however.

The county originally offered him $525,000 for the 1.59 acres based on its perceived market value. It later scaled that back to about $100,000 because the land is zoned for agriculture, and that is its perceived market value under agricultural zoning.

Amspoker says Aron would have been required to put in a road when he developed his property and would have had to dedicate that road to the public.

"If you are subject to a dedication requirement, you don't get paid commercial value for property you would have had to give up anyway," Amspoker said.

"This is a public road," he said, and Aron's claims are "absolutely ridiculous."

Aron insists that he didn't intend to put the road in and the government should not get to just go in and build it.

Should the court rule in Aron's favor, what could he do about his property, with the road already built? It's a good question, Fitzgerald said. "How do you put it back together?"

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San Luis Obispo CA Tribune News: http://www.sanluisobispo.com

Property rights fight eminent domain again: San Luis Obispo CA Tribune, 12/2/06

By Harrison Sheppard
Just weeks after voters rejected a controversial measure to reform eminent-domain laws in California, taxpayer advocates have returned with a similar measure they say will protect property owners from some government seizures.

The measure, sponsored by the Howard Jarvis Taxpayers Association, would still allow governments to seize private property for public purposes but would prohibit seizures for private development.

The measure is similar to Proposition 90, which voters rejected earlier this month, but differs in a few key aspects.

For one, Prop. 90 had a provision – not included in the Jarvis measure – that critics said would allow developers to sue if their projects were blocked or properties were devalued by government decisions such as zoning restrictions.

California voters rejected Prop. 90 by about 360,000 votes, with 47.6 percent in favor and 52.4 percent opposed.

"Clearly the closeness of the vote on Proposition 90 made it clear this issue is not going to go away for California," said Jon Coupal, president of the Howard Jarvis Taxpayers Association.

The proposed California Property Owners Protection Act is being reviewed by the state Attorney General’s Office. If it meets the basic legal requirements, the office will issue an official title and summary.

Supporters can then begin collecting the signatures needed to qualify it for the 2008 ballot.

Both Prop. 90 and the new Jarvis measure are in response to a U.S. Supreme Court ruling in 2005 that a Connecticut city had the right to use eminent domain to seize private property and turn it over to a private developer to further the community’s economic development plan.

But Prop. 90 was opposed by a broad coalition of groups and elected officials – from Gov. Arnold Schwarzenegger and defeated gubernatorial candidate Treasurer Phil Angelides to organized labor and the California Chamber of Commerce.

Megan Taylor, a spokeswoman for the League of California Cities, a leading opponent of Prop. 90, said local governments recognize the need to reform eminent domain in California.

They opposed Prop. 90 primarily because of the lawsuit provision, but they also believe the solution should be worked out through the legislative process, not the ballot as Jarvis is now attempting.

Taylor also said California already has stronger protections for property owners than Connecticut.

"The legislative process lends itself to the broad-ranging, open discussion we all need to have about what the concern is and how we can address it, while still making sure we preserve our ability to meet our responsibilities as local governments to build affordable housing and address the infrastructure needs of the community," Taylor said.

"We understand the voters are concerned and reform is a priority for us over the next year."

Coupal said his organization is also willing to work through the Legislature, but introduced the ballot measure in case that option does not work.

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San Luis Obispo CA Tribune: http://www.sanluisobispo.com

Texas Farm Bureau seeks limits on eminent domain: Houston TX Chronicle, 12/1/06

By Angela K Brown, Associated Press
Saying it's still too easy for Texans to lose their land, the Texas Farm Bureau wants to overhaul state laws on how governmental bodies can seize private property.

Under a proposed bill, not as many entities would have the power to take land and homes from residents.

Also, if land were to be seized for pipeline or utility lines, residents would receive ongoing royalty payments in addition to the property's fair market value. No matter what the land would be used for, residents would be paid for their attorneys' and appraisal fees and given enough time to move.

The issue is to be discussed at the group's 73rd annual convention starting Saturday in Arlington. The group is expected Monday, the final day, to adopt a policy that will be part of a bill submitted during the state legislative session in January.

"This is an important issue because we should have the opportunity to keep and develop our land as we see fit," Kenneth Dierschke, president of the 385,000-member organization, said today. "In some cases eminent domain is necessary, but when they take land, people need to be treated fairly."

Although the organization opposes the Trans-Texas Corridor — Gov. Rick Perry's proposed toll road network across the state — farmers and ranchers generally are more tolerant of traditional eminent domain uses, such as for roads, Dierschke said.

The Texas Farm Bureau also is proposing a constitutional amendment based on a bill passed during last year's special legislative session. The new law, among other things, prevents governmental entities from seizing private property for economic development projects.

Passing the state law and getting it into the constitution would guard against legal challenges.

A state constitutional amendment has to be approved by two-thirds in the legislative chambers, and the governor does not have to sign it. Then it goes straight to the voters, who get their say in a statewide election.

The Farm Bureau's eminent domain bill was filed during the 2005 special session in Texas two months after the U.S. Supreme Court ruled that governments can take land for private development to generate tax money, prompting worries that local entities would grab homes and turn the property over to developers.

But the Kelo vs. City of New London, Conn., ruling also allowed states to ban that practice.

While Texas law was strengthened after the bill was passed in 2005, more needs to be done, Dierschke said. That's why the group is proposing the constitutional amendment and another eminent domain bill, he said.

"Our people in Austin will be working diligently to get it passed," he said.

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Houston TX Chronicle: http://www.chron.com

Eminent domain gives government power: The Saratoga NY Saratogian, 12/02/06

By Jim Kinney
[Corinth NY] Village Mayor Bradley Winslow figures he'll have to use the high school gym for the public hearings when the village moves forward with plans to take the old International Paper Co. mill by eminent domain.

He knows the subject will bring out way more people than will ever fit in the village hall.

Just like the people who came out Thursday in Fort Edward who opposed that town's efforts to take the proposed site of a PCB-sediment processing plant, also by eminent domain.

Both are unusual uses for eminent domain power, which is when a municipality goes through the courts to take real estate, or an easement to use real-estate, over the owner's objections. The municipality must make fair-market compensation to the owner.

It makes it impossible for one property owner to block a needed road or improvement. But the power has its critics, especially after 2005 when the U.S. Supreme Court approved of a Connecticut city's use of the power to put property in the hands of a private developer.

'If the power exists, it will be used,' said John Bergeron, who fought Saratoga County's efforts to take his property in Hadley from 2000 until the county stopped trying earlier this year. The county went with another design for its emergency radio network that doesn't need Mount Anthony, the peak where Bergeron owns property.

The county is still taking property in Edinburg for another tower, though.

'If you are about the power of the government, you say 'Yeah, lets get stuff done!,' Bergeron said. 'But if you believe in civil liberties you start to ask what rights a citizen has.'

He had to hire lawyers, but won't say how much the fight cost him.

'I don't like to think about it,' he said. 'I probably spent more time fighting this than was reasonable. But the alternative was to let them walk all over me.'

In most cases, it's a town building a road or laying water pipe. That's why Corinth's and Fort Edward's plans are unique.

'To control our own future,' Fort Edward Supervisor Merrilyn Pulver said.

She wants plans for the facility to go through town planning and zoning processes. It's a way for the town to get some leverage in the planned dredging of PCB-contaminated sludge from the river's bottom.

Critics say the eminent domain proceeding is just like a federal appeal the town is pursuing in the dredging situation, a delaying tactic.

EPA spokesman Leo Rosales said the eminent domain proceeding, which is in its early stages, isn't slowing the process. GE and EPA are negotiating with the site's owners, D.A. Collins Cos of Mechanicville.

Dennis Prevost of Fort Edward came to a meeting Thursday of the Community Advisory Group, or CAG, for the dredging project to protest. He asked where the town plans to get the money to pay D.A. Collins for the property if it's successful in getting it by eminent domain.

'Also, it would come off the tax rolls,' he said. 'That drives up all our taxes to make up for that lost revenue.'

In Corinth, Mayor Winslow said he understands the sentiment. The village has a budget of only $2.2 million. IP sold the plant to New York City based Philmet for $2.75 million two years ago. That price included property outside the village that wouldn't be included in the seizure.

'I can understand not wanting to bond all that money,' Winslow said. 'But we want to redevelop this property that has just sat there since IP sold it.'

He said the village will likely work with a developer who would front the money.

'Let's say if we end up owning it, we won't own it for long,' he said.

An attorney for Philmet said this week that the company is preparing a plan to redevelop the property that doesn't include importing trash. But he wouldn't say when.

He did say the village has a poor case for eminent domain and that the company plans to fight in court.

The city of Saratoga Springs said in court papers filed in September that it needed access to properties along Saratoga Lake in part to fix values on those properties for the eminent domain process. But that same suit said the city would likely just need an easement to run pipe, not permanent use of the property.

Saratoga County only has a small fraction of the more than 100 easements it will need for its water project, Wes Carr, the project's staff member, said.

'We'll have to do some eminent domain,' Carr said. 'Some property owners won't agree. It's just the law of averages.'

Bergeron said he expects the Supreme Court to revise its stance on eminent domain and private development, situations like Winslow described for the IP mill.

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The Saratoga NY Saratogian: http://www.saratogian.com

Plainfield voters nix eminent domain: Norwich CT Bulletin, 11/30/06

Residents say 'there's no need' for it
By John Penney
[Plainfield CT] Residents Wednesday approved an ordinance banning the use of eminent domain.

"There's no need for developers to take residential property in this town," said Nick Bolanis, 46. "Especially with large commercial tracts available in town."

The eight residents who attended the five-minute meeting unanimously supported the ordinance, which states the town shall not use the power of eminent domain for economic development.

The ordinance also says any town meeting authorizing the use of eminent domain for economic development shall be deemed void and without authority.

"This is the first step toward an extra layer of protection," said First Selectman Kevin Cunningham, who campaigned on an anti-eminent domain platform. "Developers will have to negotiate with individuals, without using the threat of eminent domain as a means to profit."

According to Cunningham, the idea for the ordinance sprang from the 2005 U.S. Supreme Court decision of Kelo v. New London, which allowed municipalities to seize private property for commercial or economic development use.

Since the Supreme Court decision, several towns, including Putnam, Orange and Canterbury, have enacted eminent domain restrictions, mainly as a response to the negative backlash stemming from the ruling.

Shelley Hopkins, who spearheaded the town's Eminent Domain Committee, said she was pleased with Wednesday's vote.

"We just want to make sure what happened in New London doesn't happen here," Hopkins said.

The ordinance will take effect 15 days after official publication.

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

Ohio Supreme Court declines to hear eminent domain case: Akron OH Beacon-Journal, 11/30/06

Associated Press
The Ohio Supreme Court has declined to hear the case of an 80-year-old woman whose home was torn down by this city for a road project.

Justices voted 6-1 Wednesday in Columbus to pass on the case, but did not explain their decision.

Emma Dimasi and her son and lawyer, Vincent Dimasi, were appealing a June ruling by a state appeals court. The 1st Ohio District Court of Appeals ruled that the Dimasis could not appeal Cincinnati's claim of eminent domain until after a jury trial determined the home's value.

Emma Dimasi's home of 47 years was torn down by the city July 20.

After the appeals court ruling, the Supreme Court ruled in a separate eminent domain case that the Cincinnati suburb of Norwood could not seize homes for a retail development.

The Dimasis argued that case should have applied to them, claiming the road widening project would benefit Good Samaritan Hospital's $122 million expansion.

Two lower courts rejected that argument. The city and the hospital have said the timing of the two projects was coincidental.

The case now moves to a trial in Hamilton County Common Pleas Court to determine possible compensation for the Dimasis.

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Akron OH Beacon-Journal: http://www.ohio.com/mld/beaconjournal

New eminent domain war: Cincinnati OH Enquirer, 11/27/06

Vincent Rack's family has owned North Bend land since 1932; now Green Township wants to claim 6.5 acres of it
By Gregory Korte
Vincent Rack pointed out the electrical transmission lines that cut through his property on West North Bend Road, the construction equipment he's stored there for more than 50 years, and the ramshackle Civil War-era cottage that's the only thing in the neighborhood older than he is.

"Do-gooders," he said, are "trying to make North Bend like some high-class road."

"There ain't nothing high-class about this road," he said.

Those "do-gooders" want to take the property his family has owned since 1932 to extend Kleeman Road into a new township park.

The Green Township trustees filed an eminent domain lawsuit against Rack last month, seeking to take 6.5 acres of Rack's property for $540,000.

"You want to know the story? They're trying to get rid of Vince Rack," Rack said.

Now 87, Rack has fought zoning battles with the township for two decades. He's won some and lost some.

The eminent domain case, filed last month in Hamilton County Common Pleas Court, continues the dispute between Rack and the township over the zoning of the property, where Rack keeps heavy equipment for his development and equipment company, Monfort Supply.

The case is also likely to test the new rules of eminent domain in Ohio following the Ohio Supreme Court decision in Norwood v. Horney. The ruling struck down as unconstitutional a law allowing the use of eminent domain for economic development - or the taking of property from one private property owner to give to another.

That, Rack and his attorney say, is exactly what's going on.

"It's probably not where you want to take your family for a picnic," said Rack's lawyer, Vincent A. Dimasi, noting the utility transmission lines that cut through the property. "If that's a park, it's the worst park I've seen in my life. I think a couple guys just got together one day and decided to take the land by eminent domain, and they came up with this park idea."

Dimasi has some personal experience with eminent domain. He represented himself and his mother, 80-year-old Emma Dimasi, in an eminent domain battle over his mother's Clifton house.

Lower courts ruled that the city of Cincinnati could take her house for a road project that helps Good Samaritan Hospital, and the case is now before the Ohio Supreme Court.

In Rack's case, Dimasi is using a similar argument: That the taking isn't just for a road, but to promote economic development.

A subsidiary of Butler County Surgery is building a medical office next door, but has only a one-lane, 20-foot private drive to the property.

But Green Township Law Director Francis M. Hyle said the case has nothing to do with the issues raised in Norwood. The township isn't claiming the property is blighted.

"This is not a taking for economic development. It's not for the benefit of any private developer. We're not going to sell the land off," he said. "Is it an eyesore? I'll let you judge for yourself when you look at it. It certainly stands out on North Bend Road when you look at it."

State Rep. Bill Seitz, a former township trustee who represents the area in the Ohio General Assembly, has been one of the leading voices for eminent domain reform in the state. But he said the taking of private property for a public use - in this case, a park - is a time-honored and widely accepted use of governmental power.

"If you look at Mr. Rack's history, he's a quite litigious fellow," said Seitz. "So if there's anyone who would try to push the envelope, it would be him."

Rack was 12 when his parents bought the property on West North Bend Road for the family homestead, small farm and contracting business. That was 1932, and since then the family contracting business has built more than 30 subdivisions and acquired enough heavy equipment that it needs several properties along North Bend to store it.

Rack lives in a ranch house about 200 feet to the south, at the corner of North Bend and Rackacres, a street of $230,000 houses he developed in the 1970s.

Rack has handed off the daily operations of his companies, the V&G Rack Co. and Monfort Supply Co., to his seven sons and daughters, all of whom work for the family business. Rack said his full-time job is to fight with the township.

The township's economic development director, Adam Goetzman, and the chairman of the board of trustees, Chuck Mitchell, did not return calls seeking comment.

They're both named in a $15 million federal lawsuit against two dozen current and former township and county officials as well as neighborhood activists. That lawsuit claims a "local Republican regime" conspired to violate Rack's civil rights through repeated zoning enforcement actions. The defendants are trying to restrict the use of his property so he is effectively being deprived of it use, Rack alleges. He also claims government officials defamed him, violated his due-process rights and interfered with his business.

Rack filed the federal lawsuit three years ago, and it's still in the procedural stages. Dimasi predicts long legal battles in both cases:

"If you were to place Vince Rack and Chuck Mitchell head to head you'd see two sides of the same coin. They're both very stubborn. They're a couple tough old dogs who have been in fights before. They're in for the duration. Neither one is going to back down. It's going to be a war."

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

Hercules May Block Wal-Mart With Eminent Domain: CBS-TV5, San Francisco CA, 11/29/06

The city of Hercules [CA] is planning to file a lawsuit of eminent domain in Contra Costa County Superior Court in Martinez by the end of this week in an effort to take over a 17-acre parcel of land in central Hercules currently owned by Wal-Mart Stores Inc., according to City Attorney Alfred Cabral.

The city council voted unanimously Tuesday night in what might be a first for a redevelopment agency to invoke the city's eminent domain authority to acquire land from a commercial developer, Cabral said.

Historically, redevelopment agencies have used eminent domain to take over residential property to use for commercial development that will bring more revenue to the city, Cabral said.

The piece of land in question began as a 105-acre parcel of developable land that the city determined was blighted in 1983 when it formed its redevelopment agency.

The redevelopment agency entered into a development agreement with a Southern California developer called Lewis Operating Company in November of 2003.

The plan was for the development to take place in three parts, with two areas being used for residential housing, and the third, the 17-acre parcel, to be used to build a neighborhood shopping center.

According to Cabral, the city spent $500,000 planning the shopping center, which was designed to include a grocery store, a drug store and several smaller stores.

Wal-Mart bought the property from Lewis in November 2005.

In December 2005, Wal-Mart submitted an application to the city to build a 167,635 square foot store, which the city rejected.

In February 2006, Wal-Mart came to the city with a proposal for 100,000 square foot store with several smaller stores attached, Cabral said, which the city denied as well.

The city wanted a neighborhood shopping center and had zoned the property for that purpose, not for a big box store, Cabral said.

On Tuesday, the city council, which is also the redevelopment agency, adopted a resolution to file an eminent domain lawsuit to acquire the 17-acre parcel from Wal-Mart in order to build the shopping center they had originally planned. They also voted to extend their eminent domain authority for an additional 12 years.

After the first time the council passed the ordinance, Wal-Mart filed a lawsuit challenging the redevelopment agency's authority to invoke eminent domain on the property.

In a letter delivered to the city Tuesday, attorneys representing Wal-Mart claimed that the city's eminent domain authority expired in 1995. Once that authority has lapsed, the city no longer has any legal authority under California's Community Redevelopment Law to resurrect the authority, the letter claims.

Cabral, however, said that the city's redevelopment agency has a 40-year lifespan, during which time the city has the authority to invoke eminent domain rights.

The city has until late December to file a response to Wal-Mart's lawsuit, Cabral said.

In the meantime, the city is planning to file its eminent domain lawsuit by the end of the week to take over the property and Wal-Mart will have 30 days to respond.

Wal-Mart's attorneys have also argued that the city failed prove that the property is blighted, a prerequisite in invoking eminent domain authority.

The letter claims that since the city increased its offer to buy the property from $13 million to $14.5 million it has conceded that the land is not blighted.

"The agency's concession that the value of the property has increased 11 percent over the last six months is a clear admission that the property does not suffer from 'economic blight' - a statutory prerequisite for it to be taken by eminent domain," the letter claims.

Cabral, however, claimed that the property is in the same condition as it was in 1983 when the city found the entire 105-acre area to be blighted and formed its redevelopment agency.

"It's not producing revenue, it doesn't provide any houses or services," Cabral said. "Just because a property is blighted doesn't mean it doesn't have value."

Wal-Mart attorneys have also accused the city of not considering their newest proposal for developing the land, a plan they claims it submitted to the city eight months ago.

In the letter, Wal-Mart attorneys wrote that the proposed plan would include a much smaller Wal-Mart store - a 97,000 square foot store as opposed to a previously proposed 163,000 square foot store. The store would also sell groceries. Several smaller stores, outside eating areas and a drugstore are also in Wal-Mart's plan, according to the letter.

"Finally, the proposed Bayside Marketplace is consistent with the city's vision for the development of the property, as reflected in the city's general plan," Wal-Mart claims.

The city, however, wants the commercial development it set out in its general plan, and that development does not include a Wal-Mart.

"Cities always have the right to plan development within their community," Cabral said.

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

RTM gets political on eminent domain issue: Fairfield CT Minuteman, 11/30/06

By Chris Ciarmiello
The debate over what some have called a "feel-good" ordinance stirred some feelings that were less than warm Monday night, as the Representative Town Meeting, amid accusations of political gamesmanship, delayed action on legislation intended to prevent the town from seizing residents' homes and giving them to private developers.

In a vote that fell directly along party lines, the Democrat-controlled RTM voted 26-to-23 to form a special committee to work on the legislation, which was proposed by James Millington, R-1, and co-sponsored by six Republicans and four Democrats. It did so after Town Attorney Richard Saxl told members that Robert Morrin, a former state assistant attorney general who specializes in eminent domain proceedings, had reviewed the ordinance at Saxl's request and found its language to be "full of holes."

The vote to have the five-member special committee work on the ordinance came after Democrats called for a private caucus, which under RTM rules allowed them to halt the meeting and retreat to a separate, private room. Republicans followed suit about 10 minutes later with a caucus of their own, and it was another 25 minutes before both parties returned and the meeting was resumed. Julie DeMarco, D-6, one of the ordinance's co-sponsors, then made the motion to send the proposal to the special committee.

Democratic leadership declined to say what specifically was said in their caucus, and why it could not have been discussed in public. Millington said that in the GOP caucus he gave a brief rehashing of the ordinance and answered questions about the proposal.

The special committee will have 60 days to work on the ordinance, which will be back on the RTM's agenda at its January 2007 meeting.

Dragging feet?
Millington blasted the decision to delay action on the legislation, which was spurred by the controversial 2005 U.S. Supreme Court decision that allowed the city of New London to seize residents' homes and turn them over to a private developer as part of a plan to revitalize the struggling city. "It's very disheartening," he told the RTM, saying that the proposal has been before the body for months and been through the RTM's subcommittees twice without any of its detractors previously suggesting an amendment to its wording. "How long is this going to go on?" he said. "This has been here for five months."

Others, including some of the proposal's co-sponsors, supported the move to revise the legislation. "This is an important ordinance," said Brian O'Gara, D-5, one of its co-sponsors. "I'd rather get it right and take 60 days to make sure we get it right." He added, however, that he did not want the plan to go to the committee and then "never see the light of day."

The proposed ordinance, which Millington said mirrors legislation adopted in other towns, says that the town cannot seize by eminent domain any owner-occupied homes for economic development purposes, "if the resulting project will be privately owned or controlled."

Under eminent domain statutes, municipalities are allowed to seize private property, provided that they give the landowner fair market value for the property, and provided the property is needed for a "public use," such as schools or roads. But while the New London development would not be publicly owned or operated - or even fully accessible to the public - the U.S. Supreme Court ruled that the land seizure fell under the "public use" provision because it was part of a plan to generate jobs and tax revenue for the city.

After Monday's meeting, however, Saxl said that even if approved in its current draft, the eminent domain ordinance would not in fact prevent a situation similar to the one that occurred in New London. He said the proposed ordinance would not prevent the town from forming a redevelopment authority that could take residences on the town's behalf as part of an economic development plan, which is what happened in New London.

Detractors of the proposal have also said that all eminent domain proceedings must come before the RTM anyway, and that a future RTM could simply overturn the ordinance and then approve the seizure of residential homes for private economic development.

Millington said that he has repeatedly asked town attorneys and RTM members who have concerns about the ordinance to provide help in tightening up the legislation, but that no one has responded.

No immediate threat, first selectman says
The decision to delay a vote on the ordinance does not appear to have any major ramifications. Asked Monday if there were any plans for the town to take residential property for economic development purposes in the next 60 days, First Selectman Kenneth Flatto said, "Absolutely not."

Resident Russell Jennings, the lone member of the public to speak on the plan to send the ordinance to the special committee, said that every day of delay is a day that residents lack protection against a New London-type situation, however. "I tell you there is nothing more important than having our property protected that we have worked for and paid for," Jennings said.

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Fairfield CT Minuteman: http://www.zwire.com

Governor's task force calls for axing eminent domain: The Santa Fe NM New Mexican, 11/30/06

By Staci Matlock
Get rid of eminent domain - the ability of local governments to condemn and take private property for economic development.

That was the controversial recommendation made Wednesday by the governor's eminent domain task force in a report to lawmakers at the Capitol. It's liable to become a big topic in January when legislators gather for a 60-day session. ``This is a really hot political issue,'' said task force co-chairman J.D. Bullington, who was among the minority voting against the recommendation.

The task force recently voted 10-7 to recommend removing eminent domain powers from a state law that gives municipalities the ability to condemn properties as ``slum or blight'' and redevelop them to boost economies. It was the only recommendation where task force members split drastically, and largely along rural-urban lines, with most in favor coming from rural areas, according to co-chairman J.D. Bullington.

Other recommendations from the task force include increasing public notice of proposed property condemnations and tightening the definition of slum and blighted areas in the 1979 Metropolitan Redevelopment Act to make it harder for a local government to use eminent domain.

The task force, which was appointed by Gov. Bill Richardson, made its recommendations to the interim legislative Water and Natural Resources Committee. Richardson wanted the task force to examine existing laws and hear comments from the public about how eminent domain is used or abused in the state.

New Mexico and other states are revisiting the eminent domain issue following a U.S. Supreme Court opinion in the Kelo case. The high court ruled that New London, Conn., could condemn the houses of Susette Kelo and eight of her neighbors, and turn over the waterfront properties to a developer for offices and new homes. The economically depressed city argued the development was for ``the greater public good'' and would generate needed jobs.

Two dozen states have already passed laws restricting the ability of municipalities to make similar moves. ``Some members of (our) task force decided if you really want to make sure Kelo is never an issue, do away with eminent domain,'' Bullington said.
According to the task force report, the state's municipalities so far have rarely used eminent domain for economic development.

Richardson can ignore or use any of the task force recommendations in the final bill he proposes to legislators. Other bills on the subject are likely to be proposed.

``There was something like 11 bills on this last session,'' Bullington said. ``I expect to see that many or more again this session.''

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The Santa Fe NM New Mexican: http://www.freenewmexican.com

An unfair financial burden: Cincinnati OH Post, 11/30/06

Commentary
For the Fennell family, it has been a nightmare.

For over a hundred years they've owned a little piece of downtown Newport at the corner of Fourth and York streets, land where they've operated a successful piping business and leased buildings to other successful businesses like Goodyear Tire & Rubber and an auto detailer.

They've paid their taxes, provided jobs and generally kept up the property. In other words, they've been a valuable asset to the city.

Then the Transit Authority of Northern Kentucky decided it wanted the Fennell's land for a bus depot that would allow it to consolidate nine different bus stops.

After nearly a decade of stress, struggle and legal fighting, the family has prevailed: Last week a circuit judge in Campbell County (for the second time) rejected TANK's attempt to force the family to sell the property.

TANK has neither the financial resources to build the $8 million transit center nor a clear sense of what it wants to do, Judge Julie Reinhardt Ward wrote in her ruling. Both elements are critical standards that must be met when a government agency wants to take land from private owners for a public purpose.

Ward's ruling was similar to a 2003 ruling by her predecessor, Judge William Wehr, that was successfully tossed because of a technicality.

But Ward declined to force TANK to pay attorney fees for the Fennells, which had reached $333,000 as of the first ruling and now were said in one published account to approach $700,000.

We think that's wrong.

Judge Ward's discretion was apparently based on precedent: Kentucky's statutes do not require attorney fees to be paid in unsuccessful eminent domain cases, and there's little case law in the state - little precedent - that provides for it.

The one case that applies requires a judge to find that the agency in some way acted in bad faith or abused the process - such as causing unreasonable delay - in trying to force the sale of the land. Ward said she could not make such a finding: "This Court does not believe that there is sufficient evidence that TANK was proceeding with the case in an effort to wear out the Respondents," she wrote.

We're not going to argue the merits of that conclusion, even as we point out that TANK persisted in its case even after it lost once in circuit court and after it lost the federal funding for the project.

But we do submit that there is something seriously flawed in a system that requires a property owner to spend that kind of money to fight off the government's unsuccessful attempt to take their land.

It's not that we're against eminent domain, and government agencies' attempts to use it. Properly used, condemnation is a reasonable legal tool that enables roads, sewer plants, water lines and the like to be built. Local governments, particularly those in established urban areas, need to have ample tools - including eminent domain - to promote redevelopment, especially if we're serious about trying to limit suburban sprawl and about revitalizing our urban cores.

But when the courts rule that the government fails to make its case, that eminent domain is inappropriate or unnecessary or illegal, it's patently unfair to punish property owners with crushing financial burdens merely for sticking up for themselves.

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Cincinnati OH Post: http://news.kypost.com

Irvine eminent domain rule passes: Orange County CA Register, 11/29/06

Irvine measure keeping private property owners' land from being seized for use by another private party wins first approval
By Sonya Smith
[Irvine CA] city officials are on the way to making it more difficult to seize private property.

The ordinance unanimously approved by the council Tuesday night would prohibit the city and redevelopment agency from acquiring private property to give to a private party without the landowner's consent.

The ordinance does not prohibit the city and redevelopment agency from acquiring land for government projects such as parks, streets or sewers.

"Property rights are the cornerstones of democracy in the United States and should be protected," Councilman Sukhee Kang said.

The ordinance will need a second approval by the council to become law.

Several Orange County cities have adopted eminent domain measures. In the Nov. 7 election, voters in cities including Anaheim, Newport Beach and Dana Point widened restrictions on eminent domain.

But the statewide Proposition 90, which would have restricted eminent domain, failed.

Some groups said it would have given developers too much control over local agencies.

The Irvine City Council asked for the eminent domain measure at the same time as it voted to take a "no" stance on Prop. 90.

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Orange County CA Register: http://www.ocregister.com

Dresser could become center for newest eminent domain case: Terre Haute IN Tribune-Star, 11/28/06

By Austin Arceo
The chairman of a riverfront development committee would not comment about the group potentially using eminent domain to buy land for the project, despite initial assurances that it wasn’t even considered.

The Wabash River Development and Beautification Committee created a plan for long-term development along the river, which includes residential and commercial opportunities along the eastern shoreline and greenway and wetlands preserve west of the Wabash River. But right in the middle of the highlighted area for development is Dresser, a small residential area outside of Terre Haute where committee members envision new development.

“Ultimately, we hope to get a [Federal Emergency Management Agency] grant to buy up Dresser, turn that into a greenway,” committee chairman John Mutchner said at a Vigo County Council meeting on Nov. 21.

“Ultimately, that will become a city park.”

He echoed those plans Monday afternoon during a presentation to the Vigo County Park and Recreation Board. After the meeting, he would not comment on whether or not eminent domain would be used, even as a last resort, to acquire land in Dresser.

“I’d rather not even address that,” Mutchner said. “I’m simply saying we hope we don’t have to get involved in that. We hope that, for the good of the community, we can resolve this thing.”

Several Terre Haute officials who also are committee members have previously said that eminent domain, or the government’s right to buy private land for a public use, would not be used.

Dresser, also known as Taylorville, lies in the middle of a flood plain, and laws prevent people from building or renovating homes in the area. The levee protecting Dresser has decayed from neglect, as government entities have denied responsibility for maintaining it.

Now the committee, which includes several officials from the Terre Haute and Vigo County governments, wants to buy land there. Terre Haute has allocated $200,000 this year and $200,000 more next year for the project. Vigo County has committed $100,000 this year and $100,000 next year to help the committee.

Last year, the U.S. Supreme Court ruled in Kelo vs. City of New London, Conn., that a local government could use eminent domain to buy land for private development as part of the city’s economic revitalization plans.

If the government wanted to buy land for a public park, Dresser residents could be forced into selling despite their objections, said Jeffrey Stake, a professor at Indiana University’s School of Law-Bloomington.

While it could be easy to oppose politically, “the government taking land for public use in a park or greenway where people walk is not going to be easy to resist,” Stake said.

“Basically, the government had the power to do that for a long time and ‘Kelo’ didn’t change that.”

Indiana recently amended laws regarding eminent domain after the U.S. Supreme Court’s decision.

The new law allows the government to use eminent domain to give land to a private developer in certain instances.

Dresser resident Floyd Cheesman noted that while some of his neighbors do well, others live only on Social Security.

He thinks that eminent domain might ultimately be used to buy land there.

He also said that committee members and government officials have not communicated much with Dresser residents.

“We live in a vacuum,” Cheesman said. “You’d tend to think there would be some language between us, but there’s nothing. I just don’t understand it.”

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Terre Haute IN Tribune-Star: http://www.tribstar.com

N.J. Supreme Court denies Bloomfield eminent domain appeal: New Jersey Eminent Domain Blog, 11/28/06

By Bill Ward
The New Jersey Supreme Court denied certification to the Township of Bloomfield in its effort to advance an appeal in the 110 Washington Street case. The Appellate Division of the Superior Court unanimously upheld the decision of Essex County Assignment Judge Patricia Costello, who dismissed the condemnation suit. Bloomfield has now exhausted the appeal process in New Jersey.

This case is over, but the other Bloomfield litigants in the matter of Lardieri et al v.Township of Bloomfield continue to fight the township's efforts to blight and acquire the small business owners' properties by eminent domain proceedings. This matter has been assigned to Judge Patricia Costello, the same judge who decided the 110 Washington Street case.

In the past year, we have seen Toll Brothers, a national builder of residential units, pull out of the Bloomfield project. Forest City Ratner remains the designated developer for Bloomfield and continues to bear the litigation costs, which are reported by the Independent Press to exceed $410,000 to date. Judge Costello will schedule a case management conference on the Lardieri matter shortly.

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

Click here for the original appellate court decision: http://www.njeminentdomain.com/Twp%20Bloomfield%20v%20110%20Washington%20St-A6770-04.pdf

Hercules considers buying Wal-Mart lot: San Jose CA Mercury News, 11/27/06

By Tom Lochner
The Hercules City Council will consider invoking eminent domain Tuesday to acquire a Wal-Mart-owned lot at the fair-market value.

The world's largest retailer had applied to build a big-box store on 17-1/4 acres along John Muir Parkway about midway between San Pablo Avenue and San Pablo Bay. But even Wal-Mart's latest, scaled-down plan for a 99,000-square-foot store exceeds the 64,000-square-foot limit of a development agreement with the previous owner of the property, the city contends.

The action the council will consider Tuesday, a so-called resolution of necessity, would be similar to one the council adopted in May.

Wal-Mart challenged the May council action, contending the Hercules Redevelopment Agency's eminent domain authority had lapsed. The city said it did not, but the council nevertheless extended the authority in September for 12 years.

Wal-Mart filed suit earlier this month, contending the council's extension is illegal. Hercules City Attorney Mick Cabral said Wal-Mart's argument is absurd.

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San Jose CA Mercury News: http://www.mercurynews.com

Eminent domain strategy on table: Hanover PA Evening Sun, 11/26/06

By Tim Pratt
The Tyrone Township [PA] supervisors and some residents are looking into ways to fight a possible land seizure by eminent domain to build a natural gas compressor station proposed near Oxford Road and Route 234.

At an October public meeting held by Duke Energy, the gas transmission company proposing the compressor station, Duke officials said that although it would be a "last resort," land adjacent to the 40-acre property could potentially be seized for power lines that would serve the station.

But that statement didn't sit very well with the roughly 30 people in attendance.

So on Dec. 4 at the Heidlersburg Volunteer Fire Co., the Tyrone board of supervisors and several residents will hold their own public meeting to discuss combating eminent domain and other strategies in dealing with the proposed station.

"The meeting will cover details of a proposed ordinance that may challenge the exercise of eminent domain by corporations that operate under state charters," the supervisors said in a letter to all township residents. "The ordinance would prohibit them from operating in a township in ways found to be contrary to the will and better judgment of local citizens and their elected officials."

Thomas Linzey, Esq., and Ben Price from the Community Environmental Legal Defense Fund are scheduled to speak at the meeting.

Duke Energy has held three public meetings since February to discuss the compressor. Besides eminent domain, citizens have also been concerned with the safety of the proposed station.

Duke officials have said a compressor station is needed every 50 to 70 miles in order to boost pressure in pipelines and deliver natural gas from Texas to numerous sites throughout the Northeast.

Officials said the existing natural-gas pipelines are losing pressure because of friction in the pipes and increases in the number of locations the pipes are accessed. According to Duke Energy representatives, Tyrone Township is a prime location for such a compressor.

The nearest Duke Energy compressor stations are located in Chambersburg and Marietta.

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Hanover PA Evening Sun: http://www.eveningsun.com

Eminent domain measure is back: San Gabriel Valley CA Tribune, 11/23/06

By Harrison Sheppard
Just weeks after voters rejected a measure to reform eminent-domain laws in California, taxpayer advocates have returned with a similar measure they say will protect property owners from some government seizures.

The measure, sponsored by the Howard Jarvis Taxpayers Association, would still allow governments to seize private property for public purposes but would prohibit seizures for private development.

The measure is similar to Proposition 90, which voters rejected earlier this month, but differs in a few key aspects.

For one, Proposition 90 had a provision - not included in the Jarvis measure - that critics said would allow developers to sue if their projects were blocked or properties were devalued by government decisions such as zoning restrictions.

California voters rejected Proposition 90 by about 360,000 votes, with 47.6 percent in favor and 52.4 percent opposed.

"Clearly the closeness of the vote on Proposition 90 made it clear this issue is not going to go away for California," said Jon Coupal, president of the Howard Jarvis Taxpayers Association.

The proposed California Property Owners Protection Act is being reviewed by the state Attorney General's Office. If it meets the basic legal requirements, the office will issue an official title and summary. Supporters can then begin collecting the signatures needed to qualify it for the 2008 ballot.

Both Proposition 90 and the new Jarvis measure are in response to a U.S. Supreme Court ruling in 2005 that a Connecticut city had the right to use eminent domain to seize private property and turn it over to a private developer to further the community's economic development plan.

But Proposition 90 was opposed by a broad coalition of groups and elected officials - from Gov. Arnold Schwarzenegger and defeated gubernatorial candidate Treasurer Phil Angelides to organized labor and the California Chamber of Commerce.

Megan Taylor, a spokeswoman for the League of California Cities, a leading opponent of Proposition 90, said local governments recognize the need to reform eminent domain in California.

They opposed Proposition 90 primarily because of the lawsuit provision, but they also believe the solution should be worked out through the legislative process, not the ballot as Jarvis is now attempting.

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San Gabriel Valley CA Tribune: http://www.sgvtribune.com

Lawmakers want constitution to limit eminent domain: Akron OH Beacon Journal, 11/22/06

By Julie Carr Smyth, Associated Press
Ohio voters may get to decide next fall whether to restrict government's ability to seize private property for economic development.

State lawmakers are considering acting to put a constitutional amendment on the November 2007 ballot before the end of the year that would keep governments from using economic development as a justification for seizing people's homes.

Responding to recommendations of a task force the Legislature formed in the wake of the U.S. Supreme Court's controversial Kelo decision, the amendment also would forbid governments from using the increased revenue they might make in ceding land to a private developer as evidence that the property is "blighted."

"That was exactly what was the heart of the matter in the Kelo situation," said Jason Warner, an aide to Rep. Bob Gibbs, a task force member pushing the amendment. "Government was going into areas where it was not necessarily blighted, but they could make more money off of the property as a shopping mall than as a residential development."

Gibbs and Sen. Tim Grendell, who co-chaired the Ohio task force, alerted fellow lawmakers of their intention to introduce the amendment in memos issued last week. Grendell's memo said he is crafting a bill for introduction by next week to complement the proposed amendment that would lay out specific procedures for government takings of private land, including the definition of blight.

In July, the Ohio Supreme Court unanimously ruled in the landmark Norwood case that private development on its own - even when it will improve economic conditions - isn't a public use allowed under the Ohio Constitution.

Across the nation, property rights advocates praised the ruling, the nation's first since the Supreme Court said in Kelo v. City of New London, Conn., that governments had such a right.

Many were outraged by the decision, which they viewed as turning on its head the concept of eminent domain as a tool for the public good. Many states responded by proposing constitutional restrictions on the practice.

Such propositions passed this month in Arizona, Michigan, Florida and New Hampshire, among other states. In California, where environmentalists and politicians saw their state's proposal as a threat to natural areas, the issue failed.

Warner said Ohio took a more measured approach with its task force than some other states, and Gibbs sees no need to rush the amendment.

"This amendment wouldn't appear on the ballot until November 2007 anyway, so we don't really see any usefulness in rushing it to the ballot right now when we've just completed a lengthy election cycle," he said. "He's just getting the word out that we're not going to let this go away."

Sen. Kevin Coughlin, who is leading the eminent domain issue in the Senate, said he and Grendell are in conversations with Senate leadership over the timing of the vote - if it is taken at all.

He noted that the task force's recommendation to advance a constitutional change survived heated debate by only one vote, and that no decision has been made on whether the amendment should move forward at all.

Ruling Republicans lost one Senate seat and seven House seats from their majorities on Election Day, which could be a factor because authorizing an amendment requires a three-fifths majority of both chambers, he said.

"While this is not a partisan issue, you can bet some of the cities are going to view any constitutional change as an encroachment on their home rule, so in the minds of Democrats property rights go out the window," Coughlin said.

Susan Cave, executive director of the Ohio Municipal League, said cities' ability to seize property under eminent domain is already sufficiently limited in Ohio, particularly following the Norwood case.

"Now that we've had a fairly sweeping Ohio Supreme Court decision, which really covered every inch of the issue, it seems they're just doing something that they probably don't need to do," she said. "There are a number of protections in place and they've been used very successfully, I must say, by the other side."

She said cities fear some traditional uses of eminent domain, such as running sewer and water lines to new subdivisions, could be viewed as economic development and stopped under such a measure.

Rep. Bill Seitz, who co-chaired the task force with Grendell, said passing the issue during the lameduck session would give opponents of the measure ample time if they want to put together their own amendment.

"I'm of the mind what when we have a blue-ribbon task force and they come out with recommendations, you should move on the recommendations before it becomes just another report gathering dust somewhere," he said.

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Akron OH Beacon Journal: http://www.ohio.com