Mayor eyes eminent domain in property battle: Reno (NV) Gazette-Journal, 4/7/05

By Sandi Hoover
FAST FACT

Eminent domain is the government’s right to acquire private property for public use. The governmental entity may be a federal, state, county or city government, school district, hospital district or other agency.

They can take the property with or without the owner’s permission. The Fifth Amendment to the Constitution provides that “private property (may not) be taken for public use without just compensation.”

The eminent-domain process usually involves the acquiring governmental entity to pass a resolution to take the property (condemnation). That includes a declaration of public need. It’s followed by an appraisal, an offer and negotiation.
Some of the public uses supporting eminent domain include schools, streets and highways, parks, airports, dams, reservoirs, redevelopment, public housing, hospitals and public buildings.

Carson City could consider using powers of eminent domain for the first time to acquire the former Wal-Mart property on South Carson Street if the site is added to the city’s redevelopment district.

On Thursday, officials instructed their redevelopment director to look into including the nearly 13-acre site now owned by former television star Max Baer Jr. in the district for possible retail development.

“If we’re going to look at redevelopment areas, then we better start looking at that property,” said Mayor Marv Teixeira. “One of the things redevelopment looks at is blighted areas, and I absolutely would embrace eminent domain.”

Baer, who starred as the Jethro Bodine on the long-running TV show, “The Beverly Hillbillies,” bought the Wal-Mart site after the retail giant moved across the county line to Douglas County in July 2002. But after his plans to build a casino complete with a flaming oil derrick were quashed, he refused to budge.

“It isn’t that he hasn’t had offers to purchase that property and it isn’t that we haven’t had conversations with him. He has a sign up that says, ‘This Building is Not for Sale or Lease,’” Teixeira said.

“Does that show he cares about this community? Well, I care about this community, and with this property-tax cap, if we don’t pick up more sales tax revenue, we are going to have to cut services,” Teixeira said.

Carson City Economic Development and Redevelopment Director Joe McCarthy said that eminent domain requires that any property taken be put to public use.

“We are heavily reliant on sales tax here and I think a case could be made for bringing in retail to maintain services such as fire and public safety,” he said.

Teixeira said enough is enough.

“He’s been holding onto that property and won’t do anything with it. Well, guess what? This city does have power.”

But Baer said it isn’t going to be that easy.

“When you condemn something as a blight, the problem is, ‘What is the market value?’ And that was established by Sam’s Club’s offer to me, which was substantially higher than I paid,” Baer said.

“The second thing is that it has to be taken for public, not private, use — for a park or a swimming pool or something like that. You can’t just condemn it and give it to some other developer,” he said.

“And the third thing is that deed restrictions travel with the property and I’ll do whatever I need to do to protect myself within the law,” he said.

“This is called America, and the U.S. public believes, ‘Don’t tell me what to do with my piece of property,’” he said.

Baer also said he has gotten a bad rap in Carson City and that he bought the property because he was led to believe he could build his casino as he envisioned it.

“I would not have bought that Wal-Mart if I’d thought nobody wanted my casino, or that restrictions couldn’t be worked out, but I was led to believe there was a solution,” he said.

McCarthy said the eminent-domain process is a last resort and one the city never has used in its history.

He said that including the Baer property in the city’s redevelopment district could work to the owner’s advantage.

“There are restrictions on the property now, but if he can meet those requirements, we will aggressively help him,” McCarthy said.

“But this gives the city the authority to be proactive. The message I got from the board was that they’re not comfortable with that property sitting there vacant,” he said.

---

Reno Gazette-Journal: www.rgj.com

Eminent domain bill would affect Nevada land controversy: Las Vegas (NV) Sun, 4/6/05

By Elizabeth White, Associated Press
A new amendment to a developer-backed bill reviewed Wednesday by Nevada lawmakers would block conservation advocates from preserving 1,000 acres of prime land south of Reno as open space.

SB326, proposed by Sen. Terry Care, D-Las Vegas, would prohibit state and local governments from using eminent domain authority to acquire property for open-space or wildlife habitat preservation.

Washoe County is trying to designate the Ballardini Ranch area as open space. Advocates of public acquisition say the ranch would provide a needed link to U.S. Forest Service land in the Sierra foothills.

But Minnesota-based Evans Creek LLC, which paid $8.5 million for the ranch in 1998, wants to build nearly 200 upscale homes on part of the property and is in a court fight over Washoe County efforts to acquire the land.

As originally written, SB326 would have applied to cases that arise beginning July 1. But Care proposed an amendment Wednesday that would make the bill retroactive to include all pending cases in the state - including the Ballardini Ranch.

Care said that while he's hesitant to propose legislation that would affect a specific case, "in this case, where I would regard it as an abuse of power, I think we're right to make an exception."

Care also said he wasn't pushing the bill for Evans Creek. He told the Senate Judiciary Committee that the ranch wouldn't be used for a bridge, school or firehouse or other public uses that can justify eminent domain authority.

Care also said the legislation tightens provisions relating to the designation and seizure of blighted property, and that he originally learned about the Ballardini Ranch issue because of a newspaper article.

Tim Nelson of Evans Creek said the land for a long time has been zoned for residential use and that "a layman can see that this is an infield property" that sits five minutes from downtown Reno. He also said development plans include a large amount of green space and public trail access through the property.

Frank Thompson, a lawyer who represents Evans Creek, said "open space and wildlife habitat have never been grounds for the exercise of eminent domain."

"We believe that SB326 simply clarifies and reinforces existing law," he said.

Judiciary Chairman Mark Amodei, R-Carson City, pressed those trying to keep the area open for evidence of the authority to use eminent domain in this case and whether there's a need to declare all of the acreage open.

"No one has testified to the need for 1,000 acres for access," he said. "Tell me why 180 (housing) units can't be clustered somewhere. Why does the county need the whole thing?"

Karen Mullen, director of the Washoe County regional parks department, said picnicking and watershed and wildlife preservation are other reasons to keep the space pristine.

Michael Chapman, a lawyer representing Washoe County, said he has no doubt that state law already covers open space under the acquisition authority because the law includes a provision for "public uses."

"It does not contain the two words 'open space,'" Chapman said. "(But) this is a public purpose for the benefit of the inhabitants of the county."

---

Las Vegas Sun: www.lasvegassun.com

UA going after acre next to its tech park: Tucson (AZ) Citizen, 4/6/05

By La Monica Everett-Haynes
A local landowner may be forced to sell the UA [University of Arizona] a one-acre plot of Southeast Side land that skirts UA's Science and Technology Park.

The Arizona Board of Regents, on behalf of the UA, filed an eminent domain lawsuit in March against Dennis Keith Luttrell, according to Pima County Superior Court documents.

Eminent domain, which has disgruntled property owners for centuries, allows government entities to buy private property for public use when an owner refuses to sell. Sometimes government is successful; other times, it fails.

The parcel is a patch of desert land at 8650 S. Rita Road. Given the UA's desire to develop the Science and Technology Park, regents hope the courts will condemn the land, forcing Luttrell to let it go, court documents show.

The land would become a parking lot or be used to expand the park, said Paul Allvin, a UA spokesman.

The land is littered with old vehicles and airplane parts and poses environmental and safety problems, Allvin said.

"They may be leaking oil or gas into the ground and that lends a sense of urgency to this," Allvin said.

Vina Paulette Waters, Luttrell's ex-wife who is listed in the documents as a property beneficiary, said Luttrell purchased the plot more than 20 years ago.

Waters said the two divorced 22 years ago and she didn't know what Luttrell intended to do with the land. But, Waters said it isn't the first time Luttrell has had to protect his land from outside interests.

"It's sad," Waters said. "It's just the corporation going after the little guy."

Luttrell did not return messages left yesterday and Monday at Spanish Trail Apartments, 305 E. Benson Highway, which he owns.

Luttrell's desert land is worth $27,000, according to the Pima County Assessor's Web site. Allvin said the UA has made an offer and is awaiting Luttrell's reply.

Philip S. Abromowitz, a local attorney who specializes in eminent domain cases, said property owners generally can't stop agencies from taking their land once a decision has been made.

"The whole idea is in balancing private rights against public need and good," said Abromowitz, who has been involved in more than 220 such cases.

Yet the U.S. Constitution Fifth and Fourteenth amendments and the Arizona Constitution grant private property owners protection through court proceedings.

Pima County Superior Court has scheduled a May 9 hearing on the matter.

While no one can predict the outcome, Abromowitz said government has had success in the past.

Tucson won about 40 eminent domain cases while expanding Speedway Boulevard during the 1990s, he said.

In 1996, regents allowed UA to force three East Sixth Street property owners to sell their property for a future parking lot.

Other entities have also used eminent domain in recent years, but weren't as successful.

Last month, city council members withdrew the authority they gave to begin the eminent domain process against the Flowing Wells Irrigation District.

In 2000, the Tanque Verde district bought the East Side EmKay Ranch with plans to build the district's first high school. But the Tucson Unified School District sued, challenging Tanque Verde and, eventually, construction was halted.

Abromowitz said that in most cases, entities try to negotiate settlements before going to court, but property value opinions get in the way.

"It's a myth to believe that just because the government makes an offer it's correct," he said. "Unfortunately, people are intimidated and don't know their rights."

---

Tucson Citizen: www.tucsoncitizen.com

The Bill of Rights: Eminent Domain: Freedom Daily, 4/6/05

By Jacob G. Hornberger
One of the bedrocks of a free society is a system of private property. The concept of economic liberty is founded not only on principles of free enterprise but also on the principle that people have the right to accumulate the fruits of their earnings. If government has the power to arbitrarily seize a person’s wealth or property, then a person cannot truly be considered free in an economic sense. That is why our ancestors deemed it critically important to protect people’s property from governmental assault through their enactment of the Fifth Amendment, which reads in part as follows:

No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Notice that there are two pertinent “takings” clauses in the Fifth Amendment — the due-process clause and the just-compensation clause. The due-process clause empowers government to take a person’s property but only after following the principles of due process of law, specifically, notice and hearing. That is, suppose a person is accused of defrauding the federal government. Before the government can punish him through incarceration and fine (i.e., deprive him of liberty and property), it must provide him with notice and hearing, where he is entitled to contest the charges against him.

The just-compensation clause works differently. It empowers the government to take anyone’s property, so long as two conditions are met: the taking is for “public use” and “just compensation” is paid to the owner. This clause refers to the age-old government power of “eminent domain.”

The original purpose of eminent domain was to enable government officials to acquire property to establish places from which to run the government. The idea was that in order for the government to operate, it would need, for example, courthouses. Thus, eminent domain supplied government officials with the power to seize a person’s property for that purpose but on the condition that government officials paid the owner for it.

While the “public use” and “just compensation” limitations serve as a check on the power of eminent domain, over time the power has increasingly been abused, especially with respect to the concept of “public use.” In an era of confiscation and redistribution of wealth through the welfare-state functions of government, public officials have increasingly expanded the meaning of “public use” to the point where they are now using the power of eminent domain to take one person’s property in order to give it to another person albeit by paying “just compensation” to the original owner.

Keep in mind that the Fifth Amendment applies only to the federal government, not the state governments. However, by Supreme Court interpretation, the due-process clause of the Fourteenth Amendment incorporates the Bill of Rights and thus applies the restrictions of the Fifth Amendment to the states.

The Berman case
In 1954, the U.S. Supreme Court decided one of the major eminent-domain cases, Berman v. Parker. The case arose from the D.C. government’s condemnation of slum areas in Washington for purposes of “urban renewal.” The process involved throwing people out of their homes for the purpose of beautifying blighted neighborhoods in D.C. While the D.C. government was compensating people for the taking, some residents nonetheless objected to being forced to sell their homes, arguing that the power of eminent domain did not extend to such government projects as urban renewal.

A department store was in the affected area. In addition to questioning the use of eminent domain for urban renewal, the store’s owners argued that their store didn’t even constitute blight.

The U.S. Supreme Court ruled in favor of the government. The Court reasoned, first, that urban renewal was a proper governmental purpose:

Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, [348 U.S. 26, 33] which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.

We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive.

The Court then proceeded to hold that eminent domain could be employed for urban renewal even if title to the property would ultimately vest in private hands rather than be held by the D.C. government:

Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. . .. The public end may be as well or better served through an [348 U.S. 26, 34] agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.

The Poletown case
In 1981, the Michigan Supreme Court decided one of the most controversial cases involving eminent domain. In that case, the city of Detroit had seized thousands of homes, businesses, and churches in an area called Poletown (named for the large Polish population in that area) so that General Motors could build a plant on the site. The city claimed that the “public use” limitation was met by virtue of the fact that the new plant would “create jobs” and increase the city’s tax base. Opponents contended that this wasn’t truly a “public use” because the property owners’ property was simply being taken from them to be given to General Motors.

The Michigan Supreme Court ruled in favor of the city, and the effects of that decision rippled out nationwide. As an article posted on NationalReviewOnline entitled “This Land Is Your Land,” by Timothy Sandefur, observed:

Eminent domain, once limited to public uses like roads or post offices, was unleashed in the service of any well-heeled private party able to persuade the local government to see things its way. In the years since Poletown, eminent-domain abuse has exploded nationwide. As Ramesh Ponnuru has pointed out, powerful corporations frequently send representatives to lobby cities for “free” real estate. The city takes a neighborhood, usually of modest homes, and gives it to a developer or a megastore, and then rakes in the higher taxes. The only losers are the home- and small-business owners, who lack the political influence necessary to persuade local officials to respect their rights. Poletown has become the leading symbol of eminent-domain abuse.

In other words, what began as a power to seize property on which to build courthouses and police stations was extended to seizing and redistributing property to alleviate “blight” and then extended again to seizing and redistributing property to improve the economy and the government’s tax base. Of course, a cynic would be forgiven for concluding that the power was being used to take property from those who lacked political influence in order to give it to well-heeled, politically powerful friends of government officials.

A trend toward property rights
In July 2004 the Michigan Supreme Court overturned its infamous decision in the Poletown case. In Wayne County v. Hathcock, the county had condemned private property for the purpose of giving it to a private developer, arguing that the project would serve the public good through jobs and economic prosperity. The court held that the Poletown case had been wrongly decided and that the “public use” power could not encompass the taking of one person’s property for the purpose of giving it to another person. The August 4, 2004, issue of the Detroit News editorialized:

Michigan’s Supreme Court restored the sanctity of private property rights by reversing a quarter-century-old ruling that allowed the city of Detroit to uproot families and businesses in the Poletown neighborhood so General Motors Corp. could build a factory on their land. The original case was a blow to constitutional protections. The new, unanimous ruling restores the concept that government can’t just take away private property because it thinks someone else might use the property better. ... Municipalities and developers can adjust. Wayne County is going ahead with the Pinnacle Park project. The developers will now have to work harder to obtain rights to land from private owners and pay a higher price. But few constitutional rights are as important as private property rights. The court, in bringing Michigan back into compliance with the intent of the Constitution, served Michigan property owners well.

Equally significant, the U.S. Supreme Court has recently decided to revisit the “public use” issue in the case of Kelo v. City of New London, which involves the city’s seizure of property for private development to boost the city’s economic conditions. The homeowners’ argument can be summed up in their central contention: They “seek to stop the use of eminent domain to take away their most sacred and important possessions: their homes.”

Lost in all this “public use” controversy is a fundamental question: Why should government have the power of eminent domain anyway? If it needs a piece of property, why shouldn’t government officials be expected to negotiate for its purchase, just as everyone else does? If someone refuses to sell, then the government can simply go and purchase its property elsewhere.

We should also bear in mind the personal pain and sorrow that accompanies the forcible taking of people’s homes and businesses, even when “just compensation” is paid. The best example was the Interstate Highway System, a socialized project that destroyed the homes and businesses of thousands upon thousands of people. (See “Highway to Collapse: Spending on Infrastructure,” by Jacob G. Hornberger, Freedom Daily, April 1993)

Given the power of eminent domain, it should be limited to acquiring property for the legitimate functions of government. For most people, there is no such thing as “just compensation” for their home or business, especially given that value is subjective. Oftentimes, people simply aren’t interested in selling or moving, no matter how high the price.

In the private marketplace, a private buyer cannot force people to sell, no matter what the price that is being offered. As the ancient adage goes, a man’s home is his castle. Where is the morality in permitting a prospective buyer to accomplish an immoral end through the use of the government’s power of eminent domain? By limiting the just-compensation clause of the Fifth Amendment to its original intended purpose, we help to restore the sanctity of private property on which economic liberty is based. Of course, by repealing it we would help restore it even more.

---

Freedom Daily: www.fff.org/freedom

Jacob Hornberger is founder and president of The Future of Freedom Foundation, publisher of Freedom Daily: jhornberger@fff.org

We Condemn Thee: Voice of San Diego (CA), 4/5/05

Blight, rights and how the city can make you 'leggo your ghetto'

By Evan McLaughlin
For businessman Ed Plant and Padres owner John Moores, their respective opinions about redevelopment law aren't even in the same ballpark.

Plant, owner and operator of San Diego Refrigeration Services, Inc., was visited by the Centre City Development Corp. in November 1998 immediately following voters' approval of Proposition C, the citywide ballot initiative that kicked off San Diego's most ambitious and expensive redevelopment project to date. The Padres were going to be moving into a new downtown stadium, and in a few years, the team would be taking infield practice where San Diego Refrigeration Services' 68,000-square-foot facility stood at Imperial and Eighth avenues.

"They came to me and said, 'you are our biggest problem and we need you out early,'" said Plant, whose business now runs out of the Port and under a new name, Harborside Refrigeration Services.

Plant said he was shortchanged by CCDC, who was acting as the agent for the city's Redevelopment Agency. The financial settlement to acquire the property and compensate him for relocating as well as the bill he had to pay to clean up the site's environmental hazards almost ruined his business, he said. Among the challenges for Plant, he was given a formal 90-day notice to vacate when he estimated it would take two years to build a new facility to house the six million pounds of frozen food his company stores at any given time.

"I tried to work with them, but they got me in a corner I couldn't get out of," Plant said. "CCDC had no compassion about the situation."

The condemnation of properties has not only irked business owners, but also citizens concerned with preserving historical buildings downtown.

Meanwhile, Moores will have the opportunity to see his near-$1 billion investment payoff for the Padres and his real estate venture, JMI Realty, Inc. His baseball franchise reaps the improved attendance revenue that eventually came with the attractive Petco Park, and JMI was awarded several projects within the new Ballpark district that will feed off clientele drawn to the area because of a publicly financed stadium.

While Plant acknowledged the public benefit of a new ballpark and some new housing, he said his business and others got a raw deal. Leslie Wade, who observed the neighborhood's transition as the East Village Association's executive director, said CCDC "bent over backwards" for each individual situation, but that moving was still very difficult on businesses like Plant's.

Enter eminent domain — a power granted to local governments to acquire private property for the purpose of a greater public benefit, but at the expense of property rights, the law's opponents contend.

"Every government everywhere always says it's a last resort, but it's a tool of first resort and it's the easiest," said Dana Berliner, a senior attorney at the libertarian Institute for Justice. Berliner served as co-counsel on behalf of homeowners in Kelo v. New London, Conn., a case heard by the U.S. Supreme Court in February. In the case, the Connecticut city attempted to seize the homes of several residents to add to a large development project built around a Pfizer research facility because added tax revenues would constitute public good.

In California, a locality must produce a finding of blight — not just the desire for economic enhancement, but an area's dire underutilization, physical dilapidation and social need — before exercising the power of eminent domain. However, many believe the Kelo decision, which is expected in June, will have an impact on how California's law is interpreted.

The state Legislature passed the California Community Redevelopment Act in 1951, amending the state's health and safety code to empower municipalities to improve blighted parts of California cities like San Diego, Oakland and Los Angeles. At the time, many urban areas were losing the downtown businesses as they flocked to whiter, more affluent fringe neighborhoods or in newly established burgs nearby.

In 1992, the San Diego City Council, which doubles as the city's Redevelopment Agency, established a new project area about 1,500 acres bordered by the Port and U.S. Navy bayfront properties to the west, Laurel Street to the north, Interstate 5 to the east, and the Barrio Logan neighborhood to the south. The new Centre City Community Planning Area incorporated the existing Marina, Columbia and Gaslamp Quarter redevelopment zones already in progress while expanding into the Core, Little Italy, Cortez and East Village.

The Marina and Columbia areas were declared blighted in 1976, and the Gaslamp Quarter was declared blighted in 1982. Former Mayor Pete Wilson, who oversaw the creation of CCDC in 1975, said eminent domain is vital to ensuring "the reversal of slum."

"In its own existing state, downtown was neither paying its own way in taxes nor producing jobs. To the contrary, it was producing social problems," Wilson said. "That clearly changed with the physical landscape."

After a legal finding of blight is made for a specific redevelopment project area, properties within that area may be condemned through the power of eminent domain, which is also used for public works necessities, such as extending a freeway through privately held land. In the case of redevelopment, local governments can force private property owners to sell their land in the name of public benefit.

However, the decision is made unilaterally by a city's redevelopment agency, and some believe it is easily abused. The Chargers' recently withdrawn attempt to have the city declare Mission Valley a blighted area — so that construction of a new stadium could be included in redevelopment project — was sometimes referred to as an abuse of eminent domain.

Some, like Councilwoman Donna Frye, believe the law is inflexible. She's skeptical that the Centre City project area fits the description of a blighted community today.

"In the beginning, when they started doing redevelopment downtown, it could be qualified for blight," Frye said. "I'm not convinced now that it meets that definition now."

CCDC acts on behalf of the San Diego Redevelopment Agency in this case, calling on the owner of the property the Redevelopment Agency condemns to seek a settlement and to issue an order of immediate possession. The city obtains the property 90 days later.

Historically, 90 percent of the owners will settle out of court with the agency's offer for the property, CCDC project manager David Allsbrook said. Property owners are compensated with money the city borrows with tax-allocation bonds, which are paid off over time with added tax revenue generated through increases in improved properties' assessed value.

Additionally, owners of the properties condemned by the Redevelopment Agency are also required to dole out the money needed to clean up sites where environmental hazards are left behind.

CCDC posts a description of the project they want to fill the condemned property. A firm is then selected and a price is negotiated for the developer to purchase the acquired land from the Redevelopment Agency.

"At the end of the day, you've taken a blighted area and you've done a good service to an area that has been rundown with a low tax base and high crime," said Frank J. Alessi, vice president of finance and chief financial officer at CCDC. "You wind up with a community that is no longer blighted, has more jobs than it had in the past, and now it's a community that's more viable to work and play in.

"A lot of this stuff doesn't happen on its own," he said.

---

Voice of San Diego: www.voiceofsandiego.org

Adding Accountability To Eminent Domain: Hartford (CT) Courant

Opinion
By Annie Lux
In the 1960s, New London [CT] believed it could bring business back into the center city by using the power of eminent domain to replace historic neighborhoods with highways. The city's strategy backfired. Today, New London remains a depressed city, replete with vacant lots and a riverfront lined with obsolete industry.

In a new plan designed to increase the city's tax base and reverse decades of decline, New London seeks to use eminent domain to condemn middle-class homes in the Fort Trumbull neighborhood to make room for new mixed-use development. Several homeowners have refused to sell their properties and have taken their case all the way to the U.S. Supreme Court.

The question recently argued before the court is whether privately built "economic development" projects qualify as a "public use." Although the Constitution clearly allows government to condemn land for public uses — such as roads, schools or publicly constructed urban renewal projects — private development for the purpose of increasing a city's tax base occupies a grey area. Instead of strictly ruling for either side, the court has the opportunity to take a middle ground by requiring safeguards to ensure that "economic development" projects really do give cities public benefits.

New London undertook an exhaustive planning process and decided that it needed new development, coupled with a downtown river walk and improved infrastructure, to lure citizens to a revitalized waterfront. City officials argue that the proposed retail, housing and office project will help revitalize the city through increasing its tax base, thus increasing city services.

Several residents of the Fort Trumbull neighborhood, on the other hand, see the project as remarkably similar to 1960s urban renewal — a big government scheme that takes land from individual homeowners, with no guarantees that the project will provide the benefits that supposedly justify taking land. Even worse, land is being taken from one private owner and given to another private owner, not the state.

The Supreme Court faces a tough decision: If it rules in favor of the New London homeowners, it severely constrains the ability of depressed cities to improve the economic opportunities available to their residents. If it rules in favor of New London, it sets a precarious precedent for condemning any property that can be more efficiently run by another owner — or, even worse, condemning properties simply because politically powerful companies with friends in city hall desire them.

The court should find a middle ground by encouraging cities and companies involved in economic development plans to put their money where their mouth is through "clawbacks." Clawbacks hold developers financially accountable for doing what they say they are going to do to promote economic development. Down the Connecticut coast, New Haven uses clawbacks. So should New London.

Eminent domain is a powerful tool — one that effectively destroyed many cities in the 1960s. Yet, this same tool, if cautiously applied, can help revive these cities. Economic development should qualify as a form of eminent domain, but only if the law includes further restrictions such as clawbacks to increase its image and to minimize its abuse.

---

The Hartford Courant: www.courant.com

Annie Lux is an editor of The Next American City, a quarterly magazine about the ongoing transformation of America's cities and suburbs, available online at www.americancity.org.

Waiting 50 years for a dream: Philadelphia (PA) Daily News, 4/4/05

Eastwick plan never came true; now it's in court

By Carla Anderson (The Urban Warrior)
Regina Eichinger and Lois Schaub are not exactly household names.

Neither are Ethel and Windle Bird.

Maybe they should be.

They, and others like them, are victims of a certain kind of Philadelphia story - a story with no heroes, where only the rich and powerful win.

Their particular tale is an urban renewal drama that takes place in the southwest part of the city known as "New Eastwick." Even now, almost 50 years after it started, it's still being written.

And to date, the people who are supposed to be their heroes - government officials who took their land, the developer who sold them a promise of a suburban-style heaven - are totally falling down on the job.

These people spent the last 40 years feeling cheated out of the value they thought they were getting. Meanwhile, the private development company hired to build their new neighborhood is walking off with 90 percent profits on land once owned by neighbors like them.

This story started more than 45 years ago, when the Philadelphia Redevelopment Authority used its power of eminent domain to take 2,300 acres for the New Eastwick urban renewal scheme. It was the city's answer to the packaged-housing suburb known as Levittown.

The land was marshy, rural, and lacked city sewers. Redeveloping it meant kicking some 10,000 people out of their homes and acquiring rights to 2,000 separately owned parcels.

Some residents banded together to fight the takeover. But the city won, and promised to develop the land in a way that would serve the public good.

Now, more than 40 years after construction started, plans for the suburban-style development - with cul-de-sacs, shopping centers and high-speed boulevards - remain unfulfilled. Major portions of the residential plan were never built.

It was the city's decision to use 16 acres of this undeveloped land for more parking at Philadelphia International Airport that triggered a lawsuit, sparking the latest chapter in this story.

Korman Co., the Trevose-based company with a lucrative deal to develop the land, says it holds all land rights till that deal expires 10 years from now, and deserves to be paid if the deal is broken.

The 16 acres, which look over the Heinz wildlife refuge, have gained more than $7 million in value since 1958, when government officials first took them. Citing its decades-old deal, Korman says it has the sole right to purchase that property at the 1961 price, which is about $1 million, and take home the $7 million profit it's gained since then.

Common Pleas Judge Albert Sheppard Jr. agrees, and recently ruled in favor of Korman. The company had fairly negotiated this deal back in 1996, Shepperd ruled, when it agreed to give up the development rights to another parcel, the 26-acre site that's home to the PNC headquarters building.

But the Redevelopment Authority says this deal stinks and plans to appeal.

The land is theirs, they say, and so is the profit. It was a mistake for previous administrations to repeatedly extend the 1961 agreement, they say, which signed away development rights at rock bottom prices. And because Korman is not the company that signed the original deal, but only came into the project in 1970, they claim it's not legally binding.

Besides, this isn't the last piece of land that's likely to become an issue. There are 55 acres of undeveloped residential land close by, which Korman also holds the rights to. If the company gets the same deal with these acres, they say, profits would be stunning.

"It's like winning the lottery," said Paul Sehnert, RDA board member and Director of Development Management for the University of Pennsylvania.

"I mean, if I was explaining it to my mother, I'd have to say, 'Gosh, that isn't really very fair, is it?'

"This is land speculation, and condemnation is not meant to siphon speculative land profit to a private sector player."

So the city got taken, obviously. And they've made a stink about it.

But what about the people who lost their land in the first place? The ones who were promised a better neighborhood?

Most of the diverse mix of farmers and families who once staked out their existence in these marshy lowlands of the Schuylkill and Delaware rivers are no longer around.

More than 40 years ago, when the urban renewal bulldozer came through, many took the handful of cash they got in exchange for their homes and became renters in West Philadelphia neighborhoods. Others have disappeared, or died.

But some remain.

Eichinger, for instance, considers herself lucky to still live in the house where she grew up, a modest brick home with a yard where her family once kept horses. The house sat on high enough ground to connect into the new city sewer, so 40 years ago it was one of a few buildings that escaped.

Other neighbors didn't fare so well.

"Take Mrs. Jennings, her house down by the creek, it was a perfectly good house and there wasn't anything wrong with it," Eichinger said. "When they took her house, I think it killed her. She took sick and died right after that.

"I'd say the only good thing to come out of the whole deal was the sewer," Eichinger continued. "We did need that. We used to have it so all the water ran out the kitchen sink and down along the alley there, then into the ditch out front. We called them mud gutters. They'd get to be wide enough you'd need a little bridge up over it. We used to say you weren't baptized till you fell into the mud gutter."

Schaub, who's 87 now, also remembers the mud gutters, and she, too, appreciates the sewer.

But she doesn't think the trade was worth it, either.

"They took away all our stores, all the houses that used to come right up to the street, and I think they tore down something like 30 churches," she said. "We used to have a neighborhood. It was friendly, and the people were nice."

She can't forget the bitter fight that some put up, trying to keep their land. Or the losses.

"I can remember, people coming home from the war, they couldn't understand how they'd gone over to fight for their country, and came back to find their homes were gone," she said.

Some neighbors, including Windle and Ethel Bird, once embraced the idea of redevelopment.

Their old Eastwick home went under the bulldozer in 1973. They took the $15,000 they got for it and bought a $35,000 replacement, a Korman-built single family home on Grosbeak Place.

With a new house and sewers, they thought they were living out the promise of urban renewal in a new "city within a city."

But 10 years later the basement started cracking. The house had been built on a dump, and the ground was sinking. Forty years later, they say they have nothing to show for their investment.

"We need the resale value, but as it is now, we can't get anything for this place," said Ethel Bird.

Bird, like the other neighbors, admits that the original Eastwick neighborhood was run down.

But she's not sure the new one was such a great deal.

"It really just wasn't up to date the way it was then, but people seemed happy. Put it this way: In the old Eastwick, I didn't have to call somebody to let them know I was coming over to visit," she said.

"But here, you do."

The legal rights to the latest bit of profit to come out of this urban renewal project may or may not have been settled, depending on what happens on appeal.

But sometimes there's what's legal, and then there's what's right.

I say any money gained in the battle should find its way back into the lives of those people who suffered when their neighborhood was destroyed. Whether that means building new buildings, or fixing old ones, I can't say.

But I can say the real victims here are certainly not Korman, or even the city, but the countless men, women and children who once owned that land, or bought into a project that didn't deliver.

And $7 million could go a long way toward righting past wrongs.

In the words of Ethel Bird:

"Since they were responsible for me moving here, I'd like to see them put some of that money into my basement."

---

Philadelphia Daily News: www.philly.com/mld/dailynews

Aurora abandons E. Colfax project: Rocky Mountain News (Denver CO), 3/31/05

Short on cash, city hopes developers will step in to fix up land near Fitzsimons

By Javier Erik Olvera
Aurora [CO] is scrapping its plans for the $50 million redevelopment of acreage across from the old Fitzsimons Army Medical Center because the land is too expensive.

For the past three years, the city has planned to transform 17 acres of aging businesses and housing at East Colfax Avenue and Peoria Street into an upscale development anchored by a grocery store.

But the plans ground to a halt Wednesday when city officials realized there was no way around an estimated $12 million shortfall in the funding needed to get the project off the ground.

"It's frustrating," said Mayor Ed Tauer, adding that he is confident the development would have flourished with its proximity to Fitzsimons, which will have 20,000 employees when its evolution into a state- of-the-art medical campus is completed in about a decade.

Some of the 34 property owners who faced losing their homes or businesses if the project had gone forward are breathing a bit easier now, with one saying "it's nice to finally have this monkey off my back."

But Aurora officials say they aren't giving up on plans to redevelop the area but will now rely on developers rather than the city to make it a reality.

"The decision really doesn't change our commitment to the area," said Councilwoman Ingrid Lindemann, adding that she expects developers will be approaching property owners in large numbers as the remaking of Fitzsimons approaches completion.

During the past six months, the city has searched for a way to purchase the acreage, relocate businesses and raze buildings, but came to the conclusion it could come up with only a portion of the $26.8 million needed for the first phase of the project.

"It comes down to the bottom line," said Lindemann of the decision to ditch the plan. "Unfortunately, we could not bite off that big of a chunk at this time."

The project would have been a cornerstone of efforts to refurbish 110 acres around Fitzsimons that the city designated as blighted and wanted to redevelop with coffeehouses, grocery stores and restaurants.

The Peoria Street and East Colfax Avenue intersection became a redevelopment priority, with the city working with a developer to either buy or condemn the property of unwilling sellers.

Several property owners resisted, saying they didn't want to leave the area.

Plans for a 150,000-square-feet project anchored by a grocery store and a restaurant began to unravel last year when the city learned that the developer, Daniel Yacovetta, of Denver Holdings Inc., was in the middle of bankruptcy proceedings.

Some property owners claimed that Yacovetta had threatened to seize their land and made offers that were well below fair market values.

The city divorced itself from Yacovetta and began negotiating with Florida-based Regency Centers, one of the nation's leading developers of grocery store-anchored projects.

After the land was appraised, they began working on several funding options, but were unable to find a suitable one, said Dianne Truwe, the city's director of development services.

"(The city and the developer) thought the project would work . . . but we came to the conclusion that there was a gap that neither one of us could figure out how to cover," she said.

John Dare is one of the property owners happy with the outcome, saying it's the end to a long fight that he didn't want to lose.

"It's nice to finally have this monkey off my back," said Dare, who has owned Fenimore Auto Service for 32 years. "We've been fighting this a long time."

---

Rocky Mountain News: www.rockymountainnews.com

Government approach to eminent domain needs to be reassessed: The Desert Sun (Palm Springs CA), 4/2/05

By James K. Lewis
"Life, liberty and the pursuit of happiness" as long as so-called "public use" doesn't demand it first. Private property is a foundation of our republic; just compensation was included in the Fifth Amendment of the Bill of Rights should one's property be required for public use.

But exactly what is meant by "public use"?

Originally, it referred to government use that would necessarily and directly benefit the public good, such as transportation right-of-way, aqueducts, government buildings and the like. Now it usually means the better good of some private developer - if the government can wring more taxes out of the deal via some convoluted classification of "redevelopment."

In contrast, Michael Allan Wolf, a professor of law and history at the University of Richmond, states that recent case law now dictates: "as long as there is an incidental public benefit, the use of eminent domain is proper."

But is that what the Founders meant when they penned the Fifth Amendment?

To find out, we must do proper exegesis: studying what the reader would have understood the writer to mean at the time a manuscript was written. It helps us discern now what the writer meant then when he wrote "public use."

The Federalist Papers stand as the first authoritative interpretation of the Constitution. In Federalist 42, James Madison gives us a glimpse into the mind-set that would limit such powers when he explains, "The power of establishing post-roads must, in every view, be a harmless power and may, perhaps, by judicious management, become productive of great public convenience."

"Harmless power" and "great public benefit" don't sound like he meant incidental benefit.

Also, though Alexander Hamilton ardently championed federal authority, in Federalist 1 he reassures that the adoption of the Constitution provided for "preservation of property."

To truly understand why they composed the Bill of Rights, we would also have to realize what it was like having an oppressive government confiscate one's home and property without any just recourse, or undergo forced occupation of our homes by threat of life.

They truly comprehended what abuses government is capable of, and that its powers require constraint. They had just fought a war to make sure it wouldn't happen again.

Should government agencies have unfettered power to force the sale of privately owned land to benefit a single company - even if it provides increased jobs and taxes?

Recalling recent valley cities' acquisition of property for the use of private developers - some through aggressive application of eminent domain - should we allow such land grabbing by government agencies under the guise of "redevelopment?"

At some point we, the people, will have to say "enough" and insist on what the founders meant when they wrote the Fifth Amendment and "public use." Private property is just that, private - as is public use, public. We don't need anyone interpreting otherwise.

---

The Desert Sun: www.thedesertsun.com

Businesses and residents have been met with deaf ears: Emdo Speak Out, 4/05

By David Aiken, Ithaca College
A group of students at Ithaca College in Ithaca NY is dedicated to helping residents and businesses of Ardmore PA fight the abuse of eminent domain. The Township of Lower Merion PA is trying to acquire 10 historic properties and businesses which would be turned over to a private developer. Every one of these properties is occupied and several are second and third generation family businesses!

The Township as instituted a project known as the Ardmore Transit Center. This ambitious $140 million plan requires the destruction of those 10 properties in order to construct a much larger complex that would include retail space, residential units, and a parking garage. The central focus is around building a new SEPTA/AMTRAK train station, which everybody agrees needs to be done. The demolition of this block of stores is not a necessity for the project; it is as the Township has argued a necessity to give developers enough interest to even consider the project.

As the Township continues down its path, the businesses that are slated for demolition are unwilling to sell their property. Since this is the case, the local government has gotten all required permission to use Eminent Domain through designating the area a Redevelopment Zone. The businesses and residents have been met with deaf ears from the Township Board of Commissioners when presenting options that do not include the destruction of these businesses. The Urban Land Institute was also brought in by the township for $110,000 to do a study which recommended NO DEMOLITION of properties, yet the study was promptly disposed of by the Commissioners. They have proceeded since this study, done in September 2004, to pass their proposed Option B to destroy these properties. The Township has received approval through all levels of County legislature and has begun solicitation for Request for Proposals from potential developers. The implementation of this Transit Center is imminent unless something is done to prevent the taking of these properties for the use of a private developer.

Our goal, working in conjunction with the building owners, business owners, and residents is to stop the Township of Lower Merion from using eminent domain to implement the project as proposed. The architects for the Township, the Urban Land Institute, and architects for the business/building owners have all developed plans that could meet the needs of Ardmore without destroying these historic properties.

We have developed a website at www.PreserveArdmore.org hich focuses on saving the town from the Township’s plans. The website contain information regarding what can be done that will not require the use of eminent domain. This entire Township of over 60,000 residents is waiting on the outcome of Kelo vs. New London and the only way to make the abuse of this law more prominent is to get people informed.

---

David Aiken: Daiken1@ithaca.edu

Emdo Speak Out is an occasional feature of Eminent Domain Watch through which readers can voice their opinions about eminant domain abuse issues. To be considered for inclusion, send your comments to us at krfapt@aol.com.

MTOTSA hires attorney to fight eminent domain: (long Branch NJ) Atlanticville, 3/30/05

Attorney: Appraisals of properties are ‘far below real value’

By Christine Varno
Faced with losing their homes to redevelopment, a group of Long Branch residents has retained an attorney who is an expert in fighting eminent domain cases.

Peter H. Wegener, of Bathgate, Wegener and Wolf in Lakewood, has agreed to represent MTOTSA — a group comprised of residents of Marine and Ocean terraces and Seaview Avenue. Wegener is representing the property owners as a group and also is representing about 10 of the homeowners individually.

“I have been representing property owners all over New Jersey for 30 years in eminent domain cases,” Wegener said. “It is my entire practice.

“I think the individual property owners who make up MTOTSA have a very strong argument — that the taking of their properties does not serve legitimate public interest.”

For more than a year, when members of MTOTSA have brought their concerns to City Council meetings, Mayor Adam Schneider has repeatedly advised them to hire an attorney to represent them.

With redevelopment plans in Beachfront South moving forward and appraisals under way, the group interviewed six lawyers before choosing Wegener.

“We feel out of all of them, [Wegener] was the most sincere and believed in our cause,” MTOTSA member Lori Vendetti said.

MTOTSA — a group formed by residents living in a neighborhood comprised of 36 properties on the city’s oceanfront — said they have hired legal representation to save their homes from what they say is an abuse of the city’s power of eminent domain.

Properties in MTOTSA, one of six redevelopment zones designated by the city, are slated for eminent domain, which is the power of a governmental body — in this case, the municipality — to confiscate private property for public use.

The designated developer for the project is Matzel & Mumford Corp., a division of K. Hovnanian, Middletown.

Under the Fifth Amendment of the U.S. Constitution, just compensation must be paid for properties taken through eminent domain, and they must be taken for public use. The legal process of eminent domain involves condemnation of the property as blighted, or unfit for habitation.

Redevelopment plans in Long Branch call for the MTOTSA properties to be razed and replaced by upscale condominiums and townhouses.

“There is a great deal of good that comes out of redevelopment projects,” Wegener said. “There comes a time when it reaches an abuse.

“It seems to have become more prevalent and a favored practice of municipalities.”

Wegener said he had a number of ongoing conversations with members of MTOTSA over the course of several months about their cause.

Talks with Wegener took place at the time MTOTSA was seeking help from Institute for Justice (IJ) attorney Scott Bullock.

IJ is a nonprofit law firm based in Washington, D.C., that specializes in the protection of private property when eminent domain is not employed for public use.

Bullock advised the group that IJ could not represent MTOTSA until eminent domain had been enacted by the city.

“I spoke with [Bullock] and agreed to act as local counsel for MTOTSA,” Wegener said. “When the city started moving forward with the taking of their homes, I decided to represent the group.

“My firm has been watching the growth and use of the power of eminent domain in a redevelopment context for the past 10 years..”

Wegener said he believes what is going on in Long Branch with the MTOTSA properties is an abuse of eminent domain.

“When you use the power of eminent domain and say a home is only worth $300,000, but we can put a similar use on that property and get a $2 million assessment for it, that is an abuse of eminent domain,” he said.

A few of the MTOTSA homeowners have received appraisal figures for their properties from the city, and Wegener said some of the numbers were in the $300,000 to $400,000 range.

“That is far below the real value,” He said. “It is not even close.”

“The idea that the city wants to take away these homes at a price that [MTOTSA residents] could not possibly replace what they already have, just because it serves the pocketbooks of developers, is wrong.”

Once MTOTSA homeowners are offered a price from the city for the purchase of their properties, MTOTSA members have said no matter what the figure is, they are not selling.

At that point, the city will exercise the power of eminent domain and MTOTSA will challenge it, Wegener said.

“There is just no basis to take the properties in MTOTSA and say the neighborhood is blighted,” he said. “The neighborhood clearly is not blighted and the homes are meticulous, well-decorated and comfortable, and it is all at a seaside location that is second to none.”

---

Atlanticville: http://atlanticville.gmnews.com

Personal rights and government power: Sun-News of the Northland (Liberty MO), 3/31/05

Letter to the Editor

By Noel G. Chase, pastor, Arley United Methodist Church
Thank you for your front page article in the Sun regarding personal rights and government power.

I have been following this subject for several years and most recently became personally acquainted with it when I volunteered at In As Much Ministries. Every time I visit the Spirit of Liberty Building I hear of the frustration of the volunteers with this situation. As you know the building is offered rent free to In As Much Ministries and to Love INC. They are now being asked to relocate, incurring costs that they cannot afford. I understand that a group called Freedom House has taken up the challenge to find a permanent home, but again at what costs? Every dollar spent for relocation and attorney's fees is one less dollar available to provide food, rent and utility assistance.

I also am acquainted with the church in the Triangle. The Liberty Christian Union Church has been told three times, at least, that they had to relocate with very little notice - November, Christmas Eve and now April 1. Negotiations are continuing, but at a very slow rate from the city of Liberty, so I understand. I also understand that the offers from the city have been far below the appraised value of the property.

If this situation continues in Liberty, and in other sites as your article points out, who knows whose property is next. Perhaps the city will want the Liberty United Methodist Church on the hill or the property owned by the Pleasant Valley Baptist Church at I-35 and 291, or maybe they will want the Sun Publications property, to satisfy private developers.

I do believe that eminent domain, when used properly and fairly, is necessary to allow for public projects to be completed. As long as a fair price is paid to the property owner there should be no problem. My objection is that the city of Liberty has "sold its soul" to developers who want to seize property for their personal gain and just want to make money and don't care about how people are affected. American citizens deserve better than this.

---

Sun-News of the Northland: www.zwire.com

Eminent domain scrutinized: (South Jersey) Courier-Post, 3/31/05

Panel looks at rebirth of Camden

By Luis Puga
A panel discussion Thursday on the challenges to the rebirth of the city quickly turned to the subject of eminent domain.

The discussion at Rutgers-Camden School of Law included panel members Dan Levine, assistant state treasurer; Arijit De, executive director of the Camden Redevelopment Agency; and Dr. Jeff Brenner, chairman of the Alliance for the Revitalization of Camden City. About 75 people attended.

Brenner, whose group is committed to creating civic involvement among residents, said many alliance members had doubts about the ability of the local government and the redevelopment authority to move the city forward.

"This government has not done many things well," the Cooper Grant neighborhood resident said.

"The only thing they have done well is pick up my trash two times a week."

"If we don't do (redevelopment) well, it could get very ugly."

Brenner said he's concerned that residents' frustrations over issues such as eminent domain could boil over. Under a 1992 law, local government can acquire private property for redevelopment provided the properties meet certain criteria, such as being vacant, underutilized, deteriorated or poorly designed. Opponents say the categories are too broad and open to too many interpretations.

Already, South Jersey Legal Services Inc. has filed suits against development proposals in Cramer Hill and Bergen Square challenging the process and the effect it would have on residents.

Helen Higginbotham, a second-year law student, said she witnessed eminent domain in Washington, D.C. "These big developers don't have benevolent motivations," she said. "It's about money."

She asked what the city would do if a pending U.S. Supreme Court case on eminent domain changed the city's ability to use that power for redevelopment.

De said the city is made up of abandoned and neglected properties in private hands.

"We can't (acquire) those properties any other way," he said.

Casi Otvos, a second-year law student, asked what safeguards existed to ensure that public money is being spent effectively. She said Centerville residents charged that in the past, money intended to rehabilitate their homes was never spent.

De said the process is being conducted in public view. He added that skepticism about how money is spent won't change with verbal guarantees.

"Your view is not likely to change until you actually see Centerville change," he said.

De said the city needs to believe it can succeed and be reborn.

"We have to believe that those being trained for construction jobs today - that the generation that follows them will be able to get the engineering jobs inside those buildings," he said.

Levine focused his comments on the $11 million deal to privatize the state aquarium, which he expects will be reopened as Adventure Aquarium by Ohio-based Steiner + Associates on May 25.

"It isn't easy to bring complex deals like that to fruition," he said, noting the city is in a transition period where ideas must be turned into reality.

---

Courier-Post: www.courierpostonline.com

Plowing The Back Forty: Mondo QT, 3/05

By Carola Von Hoffmannstahl-Solomonoff
In post-industrial cities across the nation bulldozers are on a roll. Fueled by the power of government to invoke eminent domain: the right to claim private property in the name of the public good. In theory, fair value must be paid. But the practice of eminent domain (also called "condemnation" and "taking") is rich with examples of property owners forced to sell on the cheap. Eminent domain is traditionally employed when public facilities such as roads and bridges are built. However, in the 1950's several U.S. Supreme Court rulings enlarged the use of eminent domain by broadening the definition of public good in relation to that period's urban renewal projects. In the following decades, as countless urban policy experts hashed over the mid 20th century urban renewal mode of cities, eminent domain took a breather. But with government involvement in real estate growing, particularly in cities, eminent domain is experiencing a rebirth. Once again, the rationale is urban renewal.

The city of Albany is the New York State capital. One of the oldest cities in the nation. Like many upstate New York urban areas, Albany suffers from post-industrial malaise. Though being the seat of state government has kept it from the near death condition of other cities. Solidly Democrat for roughly a century, Albany is a one party town with an autocratic and conservative political machine culture. Class distinctions are still strongly felt. Park South is a small blue collar neighborhood; one of the last of such neighborhoods still breathing in the original, downtown settlement area of Albany. Park South covers 9 city blocks with a racially mixed population of a little under 2000. Most of whom are low or moderate income. Park South was never affluent, but it was stable and tightly knit. Yet during the 90's the neighborhood deteriorated into one teetering on the edge of desolation row. Thanks largely to the wholesale dumping of HUD subsidized tenants into the buildings of one major slumlord — and official neglect.

As Park South slid downward many long time homeowners, landlords and tenants left. Disrepair, drug trade and violent crime became the norm. In 10 years the vacancy rate in Park South doubled to twice that of the rest of the city. Yet a core of residents remained, held by loyalty to place and neighbors. Plus for some, property in Park South represented their primary investment. The value of which was eroding. Abandoning ship would have meant a crushing loss. For over a decade this nucleus of residents worked to address the issues driving the neighborhood down. Some formed a Walk and Watch — which in 2003 received an award for excellence from the state's Attorney General. All knocked repeatedly on municipal doors. Results were either nonexistent or inconsistent. Promises were made but seldom kept. Without sufficient back-up, citizen action re crime and blight produces little lasting improvement. And a whole lot of disillusionment.

Mayor Gerald D. Jennings of Albany is nearing the end of his third term and has announced he'll run for a fourth. Many residents of Park South believe Mayor Jennings never pushed consistent code enforcement in buildings known for drug activity, or in vacant ones left open to the elements by absentee owners. Nor could he be counted on to insure dependable trash removal or provide sufficient police presence. Some thought Jennings was so busy revitalizing the corporate/government enclave in the downtown area near the State Capital that he had little time for Park South. Others suspected there was a reason why Park South — and its property values — were being let slide.

In the Autumn of 2002 such suspicions were fanned when several city employees, in private conversations with neighborhood residents about the possibility of revitalizing Park South, reportedly mentioned that sections of the neighborhood were slated to be razed by condemnation and then redeveloped. Equally disturbing were comments made by then Commissioner of Public Safety Jack Nielsen at a 10/23/02 Park South Neighborhood Association (PSNA) meeting. Nielsen was a former police chief and Jennings appointee. As Public Safety Commissioner his job entailed coordinating police actions with building code enforcement. At the PSNA meeting Commissioner Nielsen in essence threw his hands in the air about the possibility of addressing crime in Park South. Citing problems caused by "an individual landlord" and a shift in the "social and economic level" of Park South's residents. Saying that the answer wasn't "for him to tell the Mayor to put more police officers over here" and that Park South residents had to "look beyond the obvious".

On the north Park South is bounded by Washington Park, a lovely old urban oasis created under the influence of Central Park's Frederick Olmstead. On the south by University Heights. Which in the words of the Albany Community Development Agency* contains "a cluster of large, prestigious educational and health facilities". Including, but not limited to, the Albany Medical Center, Albany School of Pharmacy, Albany Law School, Albany Medical College, Sage Colleges, Capital District Psychiatric Center and the Veteran's Administration Hospital. Some of these institutions belong to the University Heights Association (UHA) a not-for-profit corporation with "the primary mission of enhancing the economic vitality and quality of life of its constituents and neighbors". One of UHA's most notable members is the Albany Medical Center — which owns extensive holdings in two of Park South's nine blocks of real estate.

In early 2003 the Jennings administration officially announced that a transformation of Park South was imminent — and also acknowledged the transformation just might involve some clearance by condemnation. The full plan for Park South revitalization was to be developed under the aegis of the Albany Local Development Corporation (ALDC) a non government agency which works in tandem with the city. Mayor Jennings is an ex-officio member of the ALDC board of directors and also appoints other members. The ALDC would in turn act as agent for the Albany Community Development Agency (ACDA) a government agency where Jennings also serves.

In early February 2003, the ALDC posted an announcement on the City of Albany website seeking a consultant to assist in forming a redevelopment plan for Park South. Two months later the city announced a consultant had been chosen: Design Collective, a Baltimore based urban planning firm. Design Collective has a background in large scale public projects, a number of which have required condemnation in urban neighborhoods. Randall Gross Development Economics (RGDE) of Washington DC was also brought on board. Ultimately RGDE provided a study (Economics & Market Findings) of Park South and its environs which stressed that due to the presence of state government, educational institutions and medical facilities, "Albany is largely a rental market". Hence rental properties, rather than single family homes, are its real estate linchpin. And the best hope for redeveloping Park South.

Input into the Park South Plan was also provided by the Park South Advisory Committee: made up of "a representative group of residents, property owners and institutions". Advisory Committee members included Public Safety Commissioner Jack Nielsen. Plus heavyweight reps from the Albany Medical Center, the University Heights Association (UHA) and Jack Egan, President of the Renaissance Corporation, a non-profit entity with development ties to the UHA. Jack Egan is also CEO of Albany International Airport and a former Executive Director of the New York State Dormitory Authority. Also on the Committee was an Albany Common Council member whose ward includes Park South, as well as more upscale neighborhoods to its east. The Committee also included four small property owners and a tenant from Park South.

The input of neighborhood residents in general was solicited at a series of public meetings and workshops. At these gatherings, a sizable number of Park South residents had strong objections to aspects of what was being proposed for their neighborhood. Nobody objected to revitalization, but many objected to the condemnation approach. Plus, the plan for Park South seemed not in the making but already made; with a massive increase of student housing writ in stone. In a 9 block neighborhood where home ownership levels have shrunk to 11% and where transience has eroded civic participation. And though the city was using crime in Park South as a rationale for condemnation, the majority of buildings owned by the slumlord who contributed so heavily to the problem, were on streets not slated for knock-down.

These objections, plus an alternative redevelopment plan put forth by a group of Park South residents, were duly noted by assorted reps for the city and Design Collective. Several letters of protest were even included in an appendix to the July, 2004 draft version of the Park South Redevelopment Urban Renewal Plan. Commonly called the Park South Plan. Or simply, The Plan.

In early 2005, the Albany Community Development Agency issued an invitation to qualified bidders to offer proposals for the right to implement the Park South Plan. The invitation delineates what The Plan to date calls for:

1. Rental Housing: "120-180 net new rental units"
   
2. Student housing: "preferably under single management" with "200-400 student housing beds". Eighty percent of which will be in "4 bedroom apartments".
   
3. For Sale Housing: "20 to 27 new for sale houses would be marketable in Park South in the next 5 years".

New commercial space on Park South's commercially spotty main artery is also slated, along with 50,000 square feet of office space for the Albany Medical Center. Also mentioned is the possibility that Park South will provide expansion space for the downtown campus of the State University of New York (SUNY). Long time Park South residents who wonder if official neglect will affect new residents, can take comfort in the fact that The Plan promises "City Assistance" will be provided to any new development in the form of "enhanced City services".

The genius of the Park South Plan is that though only one neighborhood appears in its title, another containing many prestigious educational and health facilities plus a major not-for-profit association will benefit as well. Making the Park South Plan two, two, two plans in one! However, plans that call for revitalization by bulldozer frequently come up against stick-in-the-mud types who cling to their homes. Or greedy folk who base the asking price of their property on increasing value, rather than a slum appraisal rate. Since the ACDA invitation informs bidders that "the preferred developer will be solely responsible for funding acquisition of all property" it's probably wise that in order "to assist the preferred developer" the ACDA, a government agency, will be "willing to use the power of eminent domain for land acquisition if necessary".

Overall, the financing of the implementation of The Plan will be handled by the preferred developer. Who will also be paying "all costs and expenses of the ACDA (including but not limited to the ALDC)". The preferred developer will "if possible, provide information regarding programs being used for financing and teams being used for construction." Let's hope the preferred developer does find it "possible" to share this info with the public via its government agency representative — the ACDA. Which after all, will be using the power of eminent domain in the name of the public good.

In order for eminent domain to be used for the Park South Plan, the Albany Common Council was required to pass an ordinance designating the neighborhood an urban renewal area. On March 21st the Council passed that ordinance 9 to 3. The Council member from The Park South Advisory Committee was on the "yea" team.

Developers are now lining up at the gate, hoping to be among the three finalists for the role of preferred developer. Many are politically generous heavyweights based in the Capital Region. Among the local candidates are State Street Partners, LTD. An entity with an "under construction" website providing only an address and phone number. That address is 355 State Street, a four story apartment building apartment building recently purchased by State Street Partners.

According to the Albany Times Union, another candidate is United Development Corporation, at 80 State Street. (There's also an "80 State Street Partners" on the Albany real estate scene. State Street seems positively packed with eponymous partners!) United is part of the United Group of Companies, a conglomerate of multi named entities that provide assorted real estate services. Several United Group entities have been involved with a number of prominent area student housing projects. In 2003, United Development and United Realty Management were hired to develop, construct and manage a $20 million student housing complex for the Renaissance Corporation, acting on behalf of the University Heights Association.

In February, a mention of United Development cropped up in another context: in news stories examining the unexpected 2004 resignation of SUNY Albany President Karen R. Hitchcock. On 02/25/05 the New York Times citing unnamed sources, claimed Hitchcock resigned as president of SUNY in order to take advantage of a loophole in state law which lets state employees dodge investigations by the New York State Ethics Commission. The loophole being that after leaving state employment, whether by retirement or resignation, a person can no longer be investigated for activities as a state employee. The Times, plus other news sources, claimed the focus of the aborted ethics investigation was an alleged kickback deal between President Hitchcock and a potential developer of what has been described alternately as a large student housing project on SUNY's uptown Albany campus, or according to a 02/25/05 story by Channel 10 News in Albany, "300 units of student housing on North Pearl Street". An area in the corporate/government section of downtown Albany. The developer involved in the alleged kickback was United Development.

Karen R. Hitchcock, now principal of Queens College in Ontario, Canada and her attorney strongly deny the story about her exit from SUNY. But with the loophole in state law making an ethics investigation impossible, allegations are left hanging in air. Not only for Karen Hitchcock but for United Development.

As said, eminent domain was a popular urban renewal tool mid 20th Century. Albany itself took a major hit in the 1960's, when Governor Nelson Rockefeller used eminent domain to bulldoze a huge low and moderate income downtown residential neighborhood in order to build the Empire State Plaza complex of government offices. Many of the homes within that neighborhood were built in the same periods as those in Park South. Some were in as poor shape as some are now in Park South. And like Park South, the neighborhood was racially mixed. If protests hadn't ensued, Rocky would have rolled his urban renewal vision up the hill into more neighborhoods — with a highway to the suburbs running beneath Washington Park. To this day, the protests that stopped Rocky from further decimating Albany's residential downtown are remembered proudly by progressive Albanians: the Empire Plaza is still reviled and lost neighborhoods still regretted. Yet by and large, not much protest about the proposed use of eminent domain in Park South has been heard. Except of course, from a sizable number of people who live or own property in Park South.

It could be that to some, the real estate visions of prestigious educational and health facilities and not-for-profit associations, and the hoped for ripple effect on property values and demand for rental housing in the upscale progressive neighborhoods surrounding Park South, seem like such good public goods that circa 2005, bulldozers have become public servants.

According to the ACDA invitation to qualified bidders, The Park South Plan is linked to a wider redevelopment strategy called "The Midtown Strategy". Planning for The Strategy will be developed with funding from The New York State Quality Communities Program. The end result to be "a strategic plan to leverage the investment opportunities and programming needs of (Albany's) institutions of higher learning". Institutions which will be served by The Midtown Strategy include SUNY, members of the University Heights Association and the College of Saint Rose. The city will partner with these institutions to address, among other things, their needs are "student housing, employee housing, commercial services, and programming/educational space". To that end the Strategy study will "take account of studies that have already been completed..". Including "those like Park South".

It would behoove other residential neighborhoods in Albany to also take into account studies relating to Park South. And to consider the methods by which the resulting Park South Plan has been, and will be, advanced. As the use of eminent domain in the name of urban renewal increases across the nation, not only low and moderate income neighborhoods are being bulldozed. Nor are only low and moderate income property owners being forced to sell. In numerous instances viable neighborhoods and thriving businesses have been made to decamp in order to make way for what government deemed bigger and better. The phenomena has become so pervasive that myriad legal challenges are being launched from public policy groups across the political spectrum.

As for Park South itself, after the preferred developer is chosen by the ACDA, that developer will be able to tweak and adjust aspects of The Plan should need arise. Plans, after all, are only maps which circumstances alter. The ACDA must approve any changes and the Common Council will ultimately have to sign off on the final Park South plan as agreed upon by the preferred developer and ACDA. Some residents of Park South have been told by city representatives that this tweaking process means a chance for the changes they desire. Some folks believe — or at least hope — this will be so. Others are less sanguine. When the Albany Common Council signed off on the urban renewal ordinance that left Park South open to the use of eminent domain, the neighborhood lost a major bargaining chip. Leaving it dependent on the word and social decency of an administration that has proved deficient in both categories.

Whether this part or that part of Park South is bulldozed, or whether the crucial slumlord who was left undisturbed for years winds up being revitalized, or even if the use of eminent domain hits a legal snag on the state or federal level, a profound destruction has already taken place in Park South. Over the past few years the weave of friendship and common purpose that held the heart of the neighborhood together in the face of crime and neglect began to unravel as conflicting interests and social divisions were sought out and exploited by those seeking to advance The Plan. Veiled threats were made and guilt was mined. People who worked for years to save their neighborhood were called spoilers and reproached for being selfish when they objected to it being bulldozed.

In a neighborhood where the true spirit of community shone forth, social wedges were driven with the skill typical to pols who ride high on the hog in old machine cities. Where the art of divide and conquer has been polished to a fare thee well, while the will and ability to provide low and moderate income people with safe, clean streets has atrophied. And where now, with the help of public money and eminent domain, the evidence of that failure can be bulldozed into a gold mine for politicians, preferred developers and prestigious tax advantaged institutions.

All in the name of the public good.

• "We like our neighborhood just the way it is. We just want to
  get rid of the crime and drugs." — Park South resident Paul Webster, "Residents Want Voice in Improving Park South" Erin Dugan, Albany Times Union, 01/15/03
  
• "We did not create this mess in Park South. Years of neglect and inaction by the city have brought us to this point. Now we are being asked to trust an administration that has failed to live up to its responsibilities and promises to us" — Park South resident Alice Rabb, "Park South residents lack details on city's plan" Letter to the Editor, Albany Times Union, 11/24/03
  
• "A bulldozer is not the answer. The city is holding this over our heads...the trash is still in the streets, and the drugs are still here." — Park South resident Pat Kelly, "Developer for Park South possible by April" Brian Nearing, Albany Times Union, Albany Times Union, 02/18/05
  
• "The city has just been waiting for the right time to seize our homes...They are going to steal it from us, tear it down and give it to developers" — Park South resident Thelma McCargo, "Door Open for Park South Plan", Brian Nearing, Albany Times Union, 03/22/05

Sources include but are not limited to:

• Invitation to Qualified Bidders, Request for Proposals (RFP) For the Redevelopment of the Park South Plan Area in the City of Albany, New York. Unless otherwise noted, quotes describing The Plan are taken from this 2005 Albany Community Development Agency (ACDA) document.
  
• Transcript 10/23/02 Park South Neighborhood Association PSNA) Meeting
  
• Opportunities & Market Findings, Draft 3-30-04, Randall Gross Development Economics and Park South Market Study, Appendix C, Randall Gross Development Economics
  
• Park South Redevelopment Plan, Implementation Action Steps, Draft 03/30/04 Design Collective
  
• Alternative Plan For Park South Revitalization, Park South Concerned Citizens, Autumn 03
  
• "Albany Project Attracts Interest", Brian Nearing, Albany Times Union, 03/03/05
  
• "Door Open for Park South Plan", Brian Nearing, Albany Times Union, 03/22/05
  
• "Renaissance works on student apartment project" Apartment Finance Today, Regional News: July-August 2003
  
• "Case of Former SUNY Official Points to Ethics Law Loophole" Michael Slackman, New York Times, 02/25/05
  
• "Ethics Probe May Have Led Hitchcock to Leave Albany" WTEN News, Albany, New York posted: 02/25/05 7:40 pm
  
• The general topic of increasing abuse of eminent domain has been
  covered in too many places to list here. One notable document
  being: "Government Theft: The Top 10 Abuses of Eminent Domain"
  Dana Berliner, Castle Coalition, 2002.

---

Mondo QT: www.mondoqt.com

Norwood Business Fights Eminent Domain Ruling: WCPO TV9 News (Cincinnati OH), 3/29/05

A Norwood business owner fighting an eminent domain ruling won't have to worry about a wrecking ball for now.

An appeals court judge has ruled that developers can't touch the Kumon Math and Reading Center until their appeal is heard.

The owners of the Kumon center, which sits across the street from Rookwood Commons, is appealing a ruling that says they have to give up their property to make way for the expansion of the Norwood shopping complex.

---

WCPO TV9: www.wcpo.com

Eminent domain hurting Huntington businesses: The (Marshall University, Huntington WV) Parthenon, 3/30/05

Editorial
A local business that has served the Huntington community for 59 years is being forced out by Marshall University. Eminent domain, the law that allows government to seize private property for public use, has been a buzz word around the Tri-State recently.

Glaser Furniture, a business located on Third Avenue, is being forced to close so Marshall can expand. What message is this sending to other local businesses? How can one business, who has helped the Marshall community, simply be forced to close? Huntington was founded before Marshall was a university, and although Marshall makes Huntington the city it is today, there needs to be some limits to where Marshall can go.

Local businesses bring more options to Marshall students as well as the Huntington community and without them money leaves Huntington. Perhaps now is the time for the city to stand up to Marshall before other businesses, which Huntington has strived so hard to preserve, leave. Local businesses help Marshall, now Marshall should help local businesses.

---

The Parthenon: www.marshallparthenon.com

Boca workers remove truck loads of trash from unkempt home: (South Florida) Sun-Sentinel, 3/29/05

By Luis F. Perez
[Boca Raton] police and firefighters, some in protective gear, sifted through piles of junk Monday outside Albert Schulz's house.

They wanted to make sure the veteran hadn't placed explosives, booby traps or accelerants in the garbage strewn throughout the property.

That was the latest extraordinary measure city officials have taken in the long-running case that has neighbors complaining and the city researching whether it can condemn the house at 600 W. Palmetto Park Road and use eminent domain to take the property. The moves come after years of battles with Schulz to keep his property in the Royal Oak Hills neighborhood clear of debris.

Longtime city workers, elected officials and property rights activists can't recall a municipality using eminent domain to address code violations. City leaders emphasize that taking Schulz's house would be the last drastic step in a nine-year fight to have him clean his property.

"I couldn't find any [similar] reported cases in Florida," said Valerie Hernandez, a property rights lawyer who leads the Pacific Legal Foundation's Atlantic Center in Coral Gables. "But it's clear in the statutes, they have the power to do that."

When the police gave the all-clear, a city-hired crew of five wearing face masks to guard against the rancid smell of rotting food moved onto the property and started carting away two large and six small truckloads of garbage.

Jeff Pasternak, who runs the Delray Beach hauling company the city hired, said Schulz's house was the worst case he has seen.

In the driveway, Pasternak said his workers found boxes of rotting yogurt and Jell-O. He recognized a birthday cake that had turned into a dark mass and a chicken carcass that looked like brown paste. Maggots covered rotting food, and rat droppings were everywhere, he said.

Workers used rakes and pitchforks to sift through the garbage and spook any vermin, Pasternak said.

City officials decided early Monday to move up the date of the cleanup from later in the week because Schulz was arrested Saturday night after allegedly running a stop sign. He was charged with driving without a license and driving an unregistered vehicle, among other charges.

He didn't have his license because on St. Patrick's Day police arrested Schulz, 57, and charged him with driving while intoxicated.

He remained in the Palm Beach County Jail on Monday. His bail is set at $1,000.

"We took this opportunity since he was not going to be around," Assistant City Manager Michael Woika said.

Officials from the state's Department of Children & Families and U.S. Department of Veterans Affairs visited Schulz in jail to check on his mental state and learn whether they could help him, Woika said.

Schulz's case goes back to 1996, when he was first cited for overgrown grass, keeping auto parts and an accumulation of dismantled furniture on his property, and other code violations.

He has since been cited and fined 17 times for junk on his property and owes the city more than $57,000. He will be billed for the cost of Monday's cleanup, as well.

The Palm Beach County Health Department also ordered Schulz to clean up the unsanitary nuisance, but to no avail.

The City Council last week voted to have the city clean Schulz's property. Council members also voted unanimously to ask a court for permission to go onto Schulz's property at any time to clean it.

However, the council's most extreme measure was to ask city staff to look into taking Schulz's property from him if he continues to pile garbage there.

"We want the option available to us," said Mayor Steven Abrams, defending the use of eminent domain. "This is not an aesthetic issue. It's a health and safety hazard."

Nobody is advocating using eminent domain as a tool to correct code violations, Councilman Bill Hager said, but this has been going on for a decade. Neighbors have complained about rats, and the house is within 100 yards of an elementary school.

"We simply cannot tolerate this situation," he said.

Councilwoman Susan Whelchel, who last week proposed using eminent domain, said it is used in only the most egregious cases and would not be used for other code violators.

"There is no slippery slope," she said. "The city of Boca Raton doesn't run around taking property through eminent domain."

She called the Schulz case a lengthy, entangled legal process with no assurance in the end that it would be fixed.

"With eminent domain, the end result is clear," she said.

---

Sun-Sentinel: www.sun-sentinel.com

Residents sue over eminent domain plan: (South Jersey) Courier Post, 3/29/05

By Luis Puga
A community group and 43 residents of the Bergen Square neighborhood filed a lawsuit in Superior Court claiming the proposed redevelopment plan for that area abuses eminent domain and would add to the city's shortage of affordable housing.

The suit was filed on behalf of the plaintiffs by South Jersey Legal Services Inc., which has filed similar suits against redevelopment plans for residents in the Cramer Hill and Waterfront South neighborhoods.

Olga Pomar, a legal service attorney, said her clients, most of whom are homeowners, are worried about losing their homes through eminent domain. The procedure gives governments the ability to take private property in areas designated in need of redevelopment for compensation.

"Some of my clients are on the (plan's property) acquisition list," she said. "Some are not, but they fear the drastic changes that would happen to their neighborhood and fear that their homes may be added" to the list.

The suit states that, because the city and region face a public housing shortage, eliminating existing public housing in the neighborhood goes against the public good. That contradicts the state constitution, Pomar said.

The complaint also states the redevelopment plan primarily will affect low-income black and Hispanic residents.

The suit names as defendants Randy Primas, the city's chief operating officer, as well as the planning board, city council, the Economic Recovery Board of Camden, the Camden Redevelopment Agency and the state.

Representatives for the planning board and the Economic Recovery Board could not be reached for comment. Lee Moore, spokesman for the Office of the Attorney General, said he could not comment on a complaint his office has not seen.

Primas, who also chairs the CRA's board of commissioners, noted most city neighborhoods are made up of black and Hispanic residents. He called that part of the complaint "ridiculous."

"There appears to be a small group individuals who seem determined to stop development anywhere in the city," Primas said.

That's not so, Pomar said.

"We are trying to make sure redevelopment does not cause low-income families, seniors and other vulnerable people from forcibly losing their homes," she said.

City Council President Angel Fuentes said he feels the plan also had community support during public hearings before council.

"It's really sad to see another lawsuit," he said. "These lawsuits are just people trying to maximize their settlements (for their property's acquisition) and so they will not be displaced outside their neighborhood."

Primas said he feels the series of lawsuits against redevelopment plans could affect developers' interest in the city.

"It just seems awfully frustrating," he said. "We are trying to make things to improve the quality life for residents."

---

The Courier Post: www.courierpostonline.com