6/03/2005

Utah Bans Eminent Domain Use by Redevelopment Agencies: The heartland Institute, 6/1/05

By Henry Lamb

Utah Gov. Jon Huntsman Jr. (R) on March 17 signed into law Senate Bill 184, effectively preventing the exercise of eminent domain authority by redevelopment agencies, which otherwise had the power to transfer land from one private entity to another. Local governments may still use eminent domain for more traditionally defined and understood "public purposes."

First State Legislature to Act
Utah appears to be the first state to take legislative action to curb the use of eminent domain by local governments. The use of eminent domain by local governments has grown over the past 30 years as cities have taken private property from one owner to give or sell to another private owner whose proposed use promises increased tax revenue or other economic benefits.

The Michigan supreme court ended the practice there in July 2004 by reversing the infamous 1981 Poletown decision, which had allowed a Michigan city to remove more than a thousand private homeowners from land that was then given to General Motors.

The U.S. Supreme Court is considering a similar case brought by Susette Kelo against the New London Development Corporation, created by the city of New London, Connecticut. New London is trying to use its eminent domain power to take Kelo's home to give or sell to a private developer.

Economic Benefits Insufficient
As in Utah, mayors and city planners across the nation contend economic development is a sufficient "public use" to satisfy the requirement of the Fifth Amendment. Until the Poletown reversal in Michigan, courts generally held in favor of the cities. The U.S. Supreme Court's decision in Kelo will have much broader application than the Michigan decision did. City planners and property rights advocates alike eagerly await the court's decision, expected in June.

Utah's legislation takes the matter out of the courts, by statute placing a higher value on the private property rights of individuals than a city's desire to increase tax revenues. Local politicians in Utah were outmaneuvered by local citizens, who organized and convinced their state legislators to take action to protect property rights.

Municipal Officials Strongly Opposed
While popular among property owners, SB 184 faced stiff opposition from municipal officials in the state. "We feel strongly that this bill not only robs local government leaders of a critical economic development tool but sends the wrong message to business leaders nationwide about the climate in Utah for new business growth," argued Centerville Mayor Michael Deamer in a letter released shortly before Huntsman signed the bill into law.

"The powers of eminent domain simply should not be used when we're talking about private development," State Sen. Curtis Bramble (R-Provo) countered.

"I'm seeing prime commercial ground that would be developed regardless of [eminent domain seizures], and we turn around and give developers the tax increment. Why are we doing that?" Bramble asked.

Trend Foreseen
"The legislators of the State of Utah should be commended for taking the federal and state constitutions seriously," Sterling Burnett, senior fellow with the National Center for Policy Analysis, said. "It is always suspicious when the government takes property in the first place, but when it does so there must be a public purpose for its actions. It is not a legitimate public purpose to use government to take property from one private individual and simply give it to another.

"There must be limits to government playing fast and loose with eminent domain powers that have the potential to dramatically impact someone's life," Burnett said.

"It's one thing to take land — with just compensation — for the building of a road or some other public purpose," said Burnett. "It's another thing altogether to do this for some notion of central planning or mere wealth maximization. People should not have to sell their own property unless they want to or unless there is some pressing public purpose. Increasing the city's tax base merely for its own purpose is neither morally nor constitutionally justified.

"I wouldn't be surprised to see this become a state-by-state trend," Burnett predicted.

Supreme Court Poised to Intervene
The Utah bill is in many ways a prelude to the issue soon to be decided in the federal courts. In the Kelo case, the Supreme Court is deciding whether a local government can use its eminent domain power to seize property from one private party and transfer it to another private party. The seven plaintiffs in Kelo are property owners whose homes and small businesses were "condemned" by the city of New London solely for the purpose of helping a prospective developer acquire 90 acres of land.

According to New London officials, condemnation and taking of the property by eminent domain is necessary not because the property is uncared-for or a nuisance, but because the new development would support more jobs and create more city tax revenues than the current homes and small businesses.

According to Alex Epstein, a fellow at the Ayn Rand Institute, "This type of justification was given more than 10,000 times between 1998 and 2002, and across 41 states, to use eminent domain (or its threat) to seize private property. The attitude behind these seizures was epitomized by a Lancaster, California city attorney explaining why a 99¢ Only store should be condemned to make way for a Costco: '99 Cents produces less than $40,000 [a year] in sales taxes, and Costco was producing more than $400,000. You tell me, which was more important?'"

As reported by Epstein, Institute for Justice attorney Dana Berliner put the issue in more personal terms. "If jobs and taxes can be a justification for taking someone's home or business, then no property in America is safe. Anyone's home can create more jobs if it is replaced by a business, and any small business can generate greater taxes if replaced by a bigger one."

Matthew Dery, one of the Kelo plaintiffs, added, "People who've never experienced this sort of treatment at the hands of the government should realize that this could happen to them. You take for granted that, in America, you own your property until you choose to sell it, but that's not the way it is in New London, or in Connecticut."


The Heartland Institute
19 South LaSalle Street #903, Chicago, IL 60603
312/377-4000, fax 312/377-5000
www.heartland.org

Henry Lamb is founding chairman of Sovereignty International (www.sovereignty.net) and founder of the Environmental Conservation Organization (www.eco.freedom.org)

6/02/2005

Eminent domain for a veto: Rocky Mountain News (Denver CO), 6/2/05

By Vincent Carroll

When legislation sits on the governor's desk for a long time without his signature, it's often a sign that he has misgivings about it - and very possibly that it's destined for the scrap heap. If such becomes the fate of Senate Bill 230, which bars private toll-road companies from condemning property on their own, it would be the strangest veto of the year.

SB 230 is a no-brainer for anyone who resents the increasing use of eminent domain to line the pockets of private businesses. Usually, of course, local and state governments direct this scheme in which property is seized in the name of a higher economic use. They condemn Peter's house on Paul's behalf because Paul says he needs the land to build a shopping center, manufacturing plant or sports arena.

In Colorado, however, the Front Range Toll Road Co. would even like to dispense with the use of a government enforcer. It cites a 19th century statute apparently authorizing private toll companies to condemn property on their own. No fuss. No hearings or other irritating bows to public opinion. The highway goes here, buster, right through your ranch. Got a problem with that?

Admittedly, highways are the sort of basic infrastructure - unlike a sports arena or shopping center - for which the power of eminent domain was invented. But the vast majority of states that encourage private enterprise to build toll roads do not delegate the power of condemnation, too. They require the toll company to enter into a partnership with the state first.

The 14th Amendment to the U.S. Constitution states, in part, "nor shall any state deprive any person of life, liberty, or property, without due process of law." Yet as attorneys Allan Hale and Robert Hoban point out in a legal analysis on behalf of those urging the governor to sign the legislation, "there is a tremendous distinction between the exercise of eminent domain by a government unit vs. a private entity" because the latter "cannot conceivably comply with this due process requirement."

In short, the 19th century law is unconstitutional on its face. But why wait to see if the courts agree?


Rocky Mountain News: www.rockymountainnews.com

Eminent domain no answer for Uptown: Cincinnati (OH) Enquirer, 6/1/05

Your Voice

By Laura Kleckner

In reply to the "Your voice" column by Rick Hiatt titled "UC, city must get serious with crime" (May 15): As a homeowner and resident of Clifton Heights (the neighborhood just south of the University of Cincinnati), I take particular offense to Hiatt's comments regarding the area surrounding UC.

Known as Uptown, this area employs more than 60,000 people - more than any other area in the city of Cincinnati (including downtown). Although I will readily admit the university and its surrounding neighborhoods have problems with parking, security and housing, clearly Hiatt is unaware of the many improvement initiatives under way to address these issues.

On the south side of campus, a $300 million development project is under way. This project will include student housing, parking, retail space and condominiums targeted toward the many area employees interested in living in the community, as well as young professionals looking for an affordable urban alternative to the high prices of Hyde Park, Oakley and Norwood.

Also under way is a transportation study examining access to/from Interstates 71 and 75; parking supply/demand/management; and bus/shuttle services. This is part of an initiative to specifically address many of the problems highlighted by Hiatt without employing the easy solution of eminent domain.

On a smaller scale, area residents participate in Citizens On Patrol, neighborhood cleanups and landscaping, and have recently secured $30,000 for a lighting initiative to enhance safety.

The Uptown community, like many other urban neighborhoods, has problems, yet we are not a blighted community. A deal for eminent domain brokered by the university and the city, as called for by Hiatt, is not the answer. Although Uptown does not have the aesthetic appeal of Hyde Park, it is a vibrant community comprised of more than just the university.

Our community contains conscientious property owners and businesses unique to the Tristate. We are not simply an irrelevant property adjacent to a major metropolitan university. We are working hard to realize our full potential via a balance of large-scale development, increased owner occupancy and grass-roots activism - not eminent domain.


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

Tall Farm likely to be taken through eminent domain: Huntington (CT) Herald, 6/1/05

By Tom Giordano

If and when the city claims the Tall Farm property off Long Hill Avenue through eminent domain, officials may designate the site for a new municipal golf course.
And in view of action by two city boards last week, seizure of the property appears inevitable.

Both the Planning and Zoning Commission (P&Z) and the Board of Aldermen last week paved the way for the city administration to proceed with plans to take more than 30 acres of Tall Farm property for $2.4 million.

The 33-acre property is bounded on the north by the Views of Long Hill, an age-restricted condominium complex; to the east by Old Coram Road, to the south by homes at the end of Stowe Drive; and to the west by the remaining acreage owned by the Tall family.

Both boards met simultaneously in different rooms at City Hall last Thursday. The P&Z was considering a rezoning request by a private company that had contracted to buy 28 acres from the Tall family to build age-restricted housing, while the aldermen took up the city's plan to take the bulk of the property by eminent domain, primarily for open space purposes.

The Board of Aldermen, with all members present, voted unanimously to authorize "the city to acquire by eminent domain proceedings...30.3 acres of the (Tall Farm) property for open space and recreational purposes," said John "Jack" Finn, the lone Democrat on the eight-member board.

The "recreational purposes" mentioned in the motion, according to Finn, leaves the door open for the city to develop parks or other recreational facilities, such as a city-operated golf course. "The city Parks and Recreation Department has had thoughts of developing a golf course there," Finn said. "And even though I don't play golf, I know its popularity is growing. If the city does decide to go with one, I think it will be widely used."

While the Tall family will keep three acres of the property for personal use, Finn said the city also decided to retain conservation easement and development rights on the additional acreage, which prevents the family from constructing any buildings.

To ensure that, "The city will also acquire by eminent domain an additional 1.9 acres for conservation easement and development rights, which takes in the pond behind the Tall family home and the small garden they maintain," Finn added.

"But the family will still have use of the pond and garden," he said. "They just won't be able to build upon it."

Finn said the city has been negotiating with the Tall family over the past year in an effort to buy the land. "Our corporation counsel advised us that the city met with the family numerous times, but the offers were rejected," he said.

Finn said the city had the property appraised, "and the $2.4 million is what it came out to. The money will be appropriated from the city's capital project fund account for the open space program and recreational purposes."

Shortly after the aldermen voted on the eminent domain issue, "the corporation counsel told the Planning & Zoning Commission about the 8-0 vote," said Rick Schultz, Shelton's zoning administrator.

That prompted a unanimous vote by the four P&Z members present to reject two requests by lawyers for Shelton Realty Associates LLC (in care of Chappaqua Capital Corp. of Pleasantville, N.Y.), which has the contract to buy the 28 acres from the Tall family.

"They [Shelton Realty] wanted a change in the zoning to create a new designation to allow housing for 55 and older, and they were asking that the zoning map be changed," Schultz said.

He said that of the four zoning commissioners present (the full board has six members), "I believe three were regular members, and one was an alternate."

In rendering their decision, the commissioners indicated the city already has an adequate number of sites available that are zoned for age-restricted residential development, Schultz said.

During the aldermen's deliberations on the eminent domain issue, Finn said, a letter from a lawyer representing the Tall family was presented. "It was from Allan J. Rosen, who said in the letter that the city's offer to buy part of the Tall family property had to be rejected because of the contract they have with Shelton Realty," Finn said.

Rosen noted in the letter that the contract gives Shelton Realty the right to buy the property, contingent upon P&Z approval of the requested zoning changes, and that "because of the constraints of the contract..." the city's offer "must be rejected at this time."

Meanwhile, Austin K. Wolf, a lawyer representing Shelton Realty, has filed a mandamus action against the P&Z in Milford Superior Court, a legal action that asks the court to require the P&Z to perform its statutory duty and act on the rezoning applications.

Named as plaintiffs in Wolf's complaint, filed May 12, are Shelton Realty, and Lillian A. Tall, Stephen J. Tall, William A. Tall, and Edward G. Tall, all of 628 Long Hill Ave. The Shelton P&Z is named as defendant.

In the complaint, Wolf alleges that the P&Z conducted a public hearing on the applications on Dec. 14, 2004, and continued the hearing until Jan. 25, 2005, when it was closed.

Wolf notes in the complaint that state statutes "mandate the commission render its decision [on the applications] within 65 days after completion of the hearing..." unless the P&Z requests an extension, and that extension is for "no longer than an additional 65 days."

The commission did request that extension, according to Wolf's complaint, and the plaintiffs agreed, setting a deadline of April 30. But because the P&Z failed to render a decision on the rezoning applications by the deadline, Wolf filed the mandamus action.

A "show cause" hearing was scheduled in Milford Superior Court for 9:30 a.m. yesterday (May 31), in which the P&Z would have to show why the mandamus should not be granted.

That "show cause" hearing was withdrawn, Wolf said, "in view of the aldermen's decision last week."

Wolf said his next course of action in the matter will be decided "when we see what the city does."

"As of now, the board has only approved resolutions," he said. "If the city begins to implement the eminent domain process, we will take appropriate action."

When contacted last week, Stephen J. Tall declined to comment on the actions taken by the P&Z and Board of Aldermen.


Huntington Herald: www.zwire.com

Nevada governor gets eminent domain measure: KRNV-TV4 (Reno NV), 6/1/05

By author

A bill restricting the ability of local governments to take private land for redevelopment projects has been sent to [Nevada] Governor Guinn.

The Senate agreed with changes made to the bill introduced by Senator Terry Care to restrict the use of eminent domain by redevelopment agencies.

Care sought the bill as a result of Las Vegas' taking of private property for the Fremont Street Experience a decade ago.

The final version of the bill allows government to take land for open-space purposes but requires good-faith negotiations first.

In the area of redevelopment, the measure would allow the original owner to take the property back if it was not put to use for a project within 15 years.

Owners of commercial property taken for redevelopment also would have to be paid for the loss of business income, not just the value of the property.


KRNV: www.krnv.com

6/01/2005

Eminent domain: Shades of big brother: Bucks County (PA) Courier Times, 5/31/05

By Courtney Dentch

The primary election may have cost one Nockamixon family their home.

The township has been eyeing 11 acres on Route 611 to expand its park space, and has discussed taking the land through eminent domain. But with three of the five supervisors against that plan, the house was safe.

Now that one of those three, Supervisor Al Santopietro, lost the Republican primary in his bid for re-election, the odds may have changed for Larry and Joan Comly, who have lived there for 12 years.

"We talked about condemning it," Santopietro said. "I think they're leaning toward taking this guy's property."

Eminent domain cases - where governmental bodies take ownership of land parcels for public use in exchange for just compensation - are not common in Bucks and Montgomery counties.

But that's not much consolation to families like the Comlys. Homeowners in similar situations often say the prices offered for the property do not match the amount they could get in an open sale, said Steven Anderson, coordinator for the Washington, D.C.-based Castle Coalition, a grassroots organization that helps homeowners fight eminent domain claims.

"This is not a market transaction, this is not a willing buyer," he said. "They don't have to compensate you at the market value."

Eminent domain has become a widespread problem across the country, Anderson said. There are more than 10,000 threats or cases of condemnation a year in which the majority of the land is seized for private development, he said. Municipalities can OK eminent domain for private use if the area is blighted or if the proposed development is viewed as providing a public purpose, he said.

In the Comlys' case, and most of the local cases of eminent domain, the towns are seeking the land for public use - parks, sewer or road improvements, for example. The public uses are protected in the Bill of Rights, Anderson said.

"It doesn't make it any more palatable, but we do recognize that there are public uses that are covered by the Fifth Amendment," he said. "But it's a moral issue. The Fifth Amendment is part of the Bill of Rights for a reason. Property rights are part of the pursuit of happiness."

The Fifth Amendment says private property cannot be taken for public use "without just compensation." But without market demand to set a real-world price, offers are usually based on appraisals that fall below true market value, Anderson said.

"When negotiating, we take a lot of things into account," Anderson said. "It's not only the physical cost of the land, but the cost of moving and what the land means to the owners."

Over the past three years, the Nockamixon supervisors have been looking at the land around Veterans Memorial Park, at Marienstein Road and Route 611, to find a way to add parking, baseball diamonds and more to the park, said Supervisor Bruce Keyser. Through a friendly condemnation, by which the town offers to buy a piece of land rather than demanding it, Nockamixon purchased 11- and 57-acre tracts, Santopietro said. The Comly land is sandwiched between those parcels and the park.

The Comlys refused to comment on the situation, but a poster taped to a road sign outside their home last week said, "Kick us out for park expansion? Who's next?"

The township offered to buy the land, but the Comlys were not impressed with the $410,000 proposal, Keyser said. The figure came from the second of two appraisals on the property, Santopietro said. The Comlys paid $155,000 for the land and the three-bedroom house that sits on the property in 1993, according to county records.

"You can't get anything comparable for the same price," Keyser said. "These are people who have lived here for quite some time."

Earlier this year, the supervisors discussed taking the house by eminent domain - the town's plan to convert the land to park space falls under the law's acceptable public uses - but Santopietro, Keyser and Board Chairman Jim Litzenberger voted against it. Supervisors Henry Gawronski and Ken Gross were in favor of the proposal.

"The park does need more parking," Gawronski said.

But the outcome of the vote may change as the members of the board change. There are two seats available, and Santopietro lost his primary battle to Tom Keebler.

Fellow incumbent Keyser is also up for re-election, and he and Keebler will face Democrat Nancy C. Janyszeski in the November general election.

"If they get one more vote in this election ... they will take this house to extend the park," Keyser said.

Keebler said he doesn't know enough about the situation to make a decision, since most of the board discussions have taken place during closed executive sessions.

In Pennsylvania, homeowners can appeal the initial appraisals before a three-member panel composed of an attorney, a real estate agent and an engineer, said Herb Sudfeld, a real estate lawyer with Fox and Rothschild LLP.

They hear evidence on the property's value and determine a price. If the property owners are still dissatisfied with the value, they can appeal to the state court, he said.

That's what happened in one eminent domain case in 2001. New Britain seized 37 acres that had been in Edward Garabed's family for more than 75 years to turn it into passive parkland. The town paid about $400,000 for the Upper Stump Road land, but Garabed argued he had received offers of up to $3 million for the property. His appeals of both the eminent domain claim and the value of the land were denied.

In 2003, the Quakertown Community School District voted to condemn 9.5 acres in Milford to expand and renovate Pfaff Elementary School. The land was split between two property owners, and the school district paid $74,700 for 8.3 acres and $22,800 for 1.2 acres under the separate deals.

Souderton Township is looking to buy land on Main Street to add parking for the business district. If the landowners continue to refuse the offers, the supervisors could seek to condemn the properties. And in Franconia, the Souderton Area School District plans to use eminent domain to seize at least two tracts of land off Lower Road to build a new high school.

Despite the handful of local examples, eminent domain is not something that happens often in Bucks County, Sudfeld said.

"It's not like everyone's out there condemning property," he said. "They try to avoid it where they can."

But the threats of condemnation can be just as damaging as the process itself, Anderson said.

"A lot of towns say eminent domain is a last resort, but it's not. It's a first resort," he said. "If it's on the table you're literally not negotiating anymore. It's negotiating at the point of a gun."


Bucks County Courier Times: www.phillyburbs.com

5/31/2005

Southeast retail center caught in the crossfire: Washington (DC) Business Journal, 5/29/05

An eminent domain push could be imminent at Skyland Shopping Center -- if the Supreme Court doesn't negate the debate

By Tim Lemke

D.C.'s National Capital Revitalization Corp. could begin using eminent domain to acquire properties at the Skyland Shopping Center as soon as June 1, paving the way for an upgraded retail complex on the site.

The quasi-public agency would do so even as the U.S. Supreme Court gets ready to rule on an eminent domain case in Connecticut that could stymie NCRC's plans. In the meantime, NCRC is engaging in last-ditch talks to buy through normal means the 14 remaining properties that make up Skyland.

NCRC now owns about 30 percent of the 16.7-acre site at the intersection of Naylor Road, Alabama Avenue and Good Hope Road in Southeast.

In a redevelopment that would be the largest retail project east of the Anacostia River in decades, NCRC wants to turn Skyland Shopping Center into a 240,000-square-foot retail destination with a large anchor store, grocery store and trendy shops.

Landowners who have ardently resisted selling say the shopping center is fully leased and has been sending increasing tax revenue to D.C.

They're also skeptical of recent NCRC efforts to provide them with an equity stake in the new development. Instead, some property owners have come together to present a development plan of their own, calling for a town-center style development with existing retailers but no big boxes like Target.

"We don't want to invest in a project we think will fail," says David Burka, a lawyer representing the Kogod Family, which owns the largest chunk of the remaining land.

NCRC selected McLean-based The Rappaport Cos. to develop the site in 2002. Rappaport says it has verbal commitments from Target and Shopper's Food Warehouse.

The project will cost $48.8 million to develop, according to NCRC, but Burka says that figure is far too low.

NCRC says it will consider the landowners' proposal if the community and Rappaport agree to it.

"We're really pushing for private deals," says Ted Risher, a senior development manager at NCRC. "The eminent domain is something we'll deal with at a later date."

NCRC, however, has been under consistent pressure from the D.C. Council and neighborhood groups to move quickly on the project, in the works since 2001.

The agency insists its plan reflects what the surrounding community wants. It has received support from most of the neighborhood commissioners, along with Ward 7 Councilman Vincent Gray and At-Large Councilman Kwame Brown, a resident of Southeast's Hillcrest neighborhood.

"I've never encountered a person who was against the redevelopment that didn't have a financial stake," Risher says. "This vision was totally driven by the community."

The Supreme Court in February heard arguments in a case from New London, Conn., where the city wanted to take 16 homes by eminent domain and replace them with a hotel, condominiums and office space. The court is expected to decide whether eminent domain can be used for economic development.

"The Supreme Court is hopefully going to define further the boundaries of what constitutes a permissable condemnation," says Earl Segal, a partner with Akin Gump Strauss Hauer and Feld, who has worked on eminent domain cases. "They're deciding it in the context of what can be done in the name of economic development."


Washington Business Journal: http://washington.bizjournals.com/washington

A reservoir of hope: San Bernadino County (CA) Sun, 5/28/05

Lake plan also stirs upheaval

By David Schwartz

It started as a pipe dream a series of lakes and streams to transform the old downtown and solve a host of water woes.

Nine years later, it may become one of the largest redevelopment projects in San Bernardino Valley history.

Called variously Vision 20/20, Downtown Revitalization and most famously, Lakes and Streams, today it carries a more modest moniker: North Lake Project Area.

Despite the name changes, the project still represents a glimmer of hope for many who have watched downtown age and crumble.

As designed, the project would clear a square stretching three-quarters of a mile long on each side. It would demolish 437 houses, six churches and about 30 businesses north of downtown and east of Interstate 215.

In the neighborhood's place, the San Bernardino Valley Municipal Water District would build a 44.5-acre reservoir. The rest of the land would be turned into parkland and developed with 72 houses and 12 acres of shops.

The lake, proponents say, would help ease the problem of high groundwater and speed up decontamination of a water supply for nearly 1million people. By selling the water, officials expect to recoup some of the lake's cost.

Critics doubt it will meet grandiose expectations. And for all its promises, the North Lake Project Area would cost taxpayers more than $150 million and force nearly 1,500 residents from their homes.

"We've been under the ax for seven or eight years,' said Ghassan Abdullah, a 46-year-old physician who lives in the area and takes care of his disabled mother.

Steve Veloz, who lives on G street, has been through relocation before. It was in his sophomore year in high school in the mid-1960s, and the school district cleared out his family's Westside home to make way for Ramona Alessandro Elementary School.

"When you grew up with people you've known since you were a kid, then they bust everyone out of there,' he said. "Then you're living for over 26 years in the area, you establish roots. There are a lot of things here. Sentimental things. I don't want to be moved. To tell you the truth, I don't want to be moved.'

The burly 54-year-old had taken a wood-shingle house built on G Street in the 1930s and stuccoed it, dry-walled it and redesigned it himself.

It's not about the money.

"I'm not going to ever find a house the way my house is,' Veloz said.

Critics argue the project doesn't have to be so large. A proposal in 2003 would have demolished 111 fewer homes than the current plan.

The consultant said the lake needed to be larger and more shallow to address environmental concerns. The final report, though, made no mention of those concerns.

"Did we change the project in an honest and open fashion?' Councilwoman Susan Lien Longville asked. "We didn't. We used a ploy. We used technical issues to eliminate the entire neighborhood.'

Abdullah said, "Displacing 430 households when there are other viable options that haven't been looked at is not the way to get citizens who've been loyal to this city to jump on board.'

The water district says it needs the larger lake to efficiently deliver water.

Water board President C. Patrick Milligan, first elected to the panel in 1964, points to San Bernardino's high groundwater problem. During an earthquake, high groundwater and the sandy soil beneath downtown could create a quicksand-like effect called liquefaction.

An estimated 5.5million acre-feet of water lies beneath San Bernardino, enough to meet the needs of 100,000 families for 55 years without replenishment. The lake, Milligan said, will serve as a hub to sell water to Redlands, Rialto, Colton and Loma Linda. A major step

On April 25, the City Council and the water board agreed to the project's design and certified that it met state environmental laws. Lawsuits filed Friday by residents in the area challenge that assertion.

Approval of the project even with lawsuits looming at the time was a milestone that prompted Milligan to pump his fist and proclaim, "San Bernardino is going to get its lake.'

It didn't come without a fight, though. Protesters packed in, wearing T-shirts that showed Mayor Judith Valles pointing the way out of the neighborhood for broken-looking residents. Yet they were outnumbered by a group of chief executive officers and community leaders who came out to support the project.

An attempt by Lien Longville to get the smaller lake approved failed by one vote.

The project has received its approval and now needs to be built, Milligan said.

"Any people around that think after all these years, all these votes, we're going to resurrect any of these issues, it's never going to happen,' he said. "The time for argument is gone. It has passed. Arguments now are only a matter of history. We're going forward and going to do this project.'

Even longtime opponents are beginning to give up hope.

"I've been fighting this for five years,' said Lucy Romero, whose home that would be demolished is decorated with anti-lakes signs. "But I was at the last meeting. I saw they were for it.'

She has begun to look for a new house.

The water district plans to buy out and compensate residents, renters and business owners in the area. It will pay them enough to find a similar home or apartment nearby, Project Manager John Hoeger said. A downward spin

San Bernardino shares many of the same problems found in urban America.

To understand why bulldozing more than 82.4 acres of houses, businesses and churches appeals to so many is to understand how far the city has fallen.

In the first part of the 20th century, San Bernardino was not just the county seat in name. Route 66 ran through part of the town. Families in dusty desert towns trekked down to Harris' department store to shop in the big city. The railroads from the Pacific Ocean ports carried goods inland, and San Bernardino was a hub.

Perhaps the first blow to the city's future came in 1979, when southbound Interstate 15 split off from Interstate 215 in Devore. The future of retail and housing growth then funneled to Ontario and Rancho Cucamonga, said Nick Cataldo, a local historian.

In 1984, the Kaiser Steel Corp. mill near Fontana closed and 8,800 jobs were lost. Santa Fe Railway's repair shop was moved from San Bernardino to Kansas in 1988, erasing 6,300 jobs. Finally, the city received word in December 1988 that Norton Air Force Base was going to close.

The workers who lived in their small but tidy homes had to look for jobs elsewhere. Investors came in, thinking they were buying low. They rented out the houses, hoping for a quick rebound and a neighborhood on the mend.

Others had the same idea. Entire blocks became rentals. When landlords turned up absent, the area began to deteriorate, said Redlands-based economist John Husing, who studies the Inland Empire.

As jobs and homeowners fled, blight spread. By the mid-1990s, the area north of downtown San Bernardino, on the east side of I-215, had the highest rate of foreclosures in the city.

Like many of the old guard of the city, Edward G. "Duke' Hill was sick of seeing the city deteriorate. A land appraiser, he was active in the community, serving as the president of the San Bernardino Symphony and the Chamber of Commerce.

"It became obvious to me the city had no overall direction, no plan,' Hill said recently.

In 1996, he was headed back from appraising a planned development south of Hesperia, Rancho Las Flores. Nestled in a secluded valley, it is only accessible by a winding road.

He pulled over on his way home and looked out over the valley. He asked himself why people would move to such an inaccessible location and started thinking about solutions for San Bernardino.

Tear up the street grid system. Pump water under the city above ground, flooding the creeks that feed the Santa Ana River. Build some houses and businesses along the banks.

Not long after, he vacationed in Maui. While walking the beach, he spoke into a dictation machine, laying out his vision. That turned into a bound pamphlet titled "San Bernardino: The Future Runs Through It.'

At the same time, Milligan saw that Louis Fletcher, then general manager of the San Bernardino Valley Municipal Water District, was exploring using San Bernardino's high groundwater for a reservoir in Redlands, Milligan said.

"I said Louis, 'I like that idea,'' Milligan recalled.

But he wanted the reservoir to be in San Bernardino.

"We have high groundwater, we're shipping it down to Orange County for free, why don't we use some of it to improve quality of life?' Fletcher remembers thinking.

So Hill, Fletcher and Milligan began talking to Rotary and Kiwanis clubs, at local chamber of commerce events, to everyone who would listen.

"I think we had a very positive response from everybody,' Fletcher said. "It makes sense. If we have all this water, let's use it, not lose it.'

He had thought everything would go smoothly.

"Everybody would love to have the lake, Warm Creek flowing again, pathways, bikeways,' Fletcher said.

That was nine years ago.

Larger lake in
To move the project forward, the City Council and water board hired RBF Consulting in Ontario to prepare the environmental impact report for the project.

The smaller version of the lake, the one that integrated the old housing with the new housing and met the water district's needs, was supposed to be the project's scope.

On June 18, 2003, about six months after being hired, Kevin Thomas, the environmental services manager for RBF, said the lake needed to be more shallow, according to minutes of the San Bernardino Regional Water Resources Authority, which was formed by the City Council and the water board. In order to store enough water, it also had to be wider.

Thomas said RBF's research found problems with the high groundwater level, water fluctuation and clay importation, making the larger option a necessary project, according to the minutes .

The lake expanded from 34 acres to 44.5 acres. Now, 437 homes would be demolished.

When the final environmental report was released, the technical concerns raised by RBF Consulting nine months before were gone. Instead, the smaller project was discounted because it wouldn't provide enough redevelopment opportunities.

At the April 25 joint meeting of the City Council and the water board t o certify the environmental document, Lien Longville made a fiery but ultimately unsuccessful speech advocating a smaller lake.

Valles said she was grandstanding. Milligan accused Lien Longville of bringing up her concerns at the last minute.

Residents, though, said they felt like they had a new ally.

"Getting 83 acres, when the whole project is for a 40-acre lake, and you're going to sell the land back to private developers?' asked Abdullah. "It's cheating the citizens of the city. I would think if you're going to do a project of this size, you'd impact the least amount of people.'

Valles said the decision to go with the larger lake was to meet the needs of the water district.

"This is a better choice of the two,' Milligan said. "I do not believe it was an effective reservoir. I never, ever had much enthusiasm for the smaller lake.'

Sherrie Gundlach, business development coordinator for RBF Consulting, referred questions to the water district.

Water woes
To Milligan, it's not a lake. It's a reservoir. He has always maintained that the redevelopment opportunities are only a side benefit to the water issues that the project would solve.

Rain and melted snow rush down the slopes from the mountain peaks and into San Bernardino. Water sinks beneath the city into what is called the Bunker Hill Basin.

Dammed off by the San Jacinto Fault, 5.5 million acre-feet of water about the size of Lake Shasta when it's full builds up underneath downtown.

The resulting high groundwater, combined with silty and sandy soil, puts much of downtown San Bernardino at risk during an earthquake.

When the groundwater rises too high, the loose sandy soil becomes saturated. In an earthquake, the grains of sand try to slip together but can't get any traction because they're surrounded by water, according to a report prepared by the U.S. Geological Survey.

The ground that buildings use for support becomes similar to quicksand.

"Essentially, everything underneath the buildings just becomes soft and soupy, almost like Jell-O,' said Katherine Kendrick, a research geologist at the USGS.

Scientists say buildings can sink or tilt over.

"It's most common when you have loose sediments, a high groundwater table and the possibility of an earthquake,' said Sally McGill, a professor of geology at Cal State San Bernardino. "We definitely have all three of those factors in downtown.'

Milligan said, "We need the reservoir-lake so we can pump all the water we need out of the basin to keep this city safe.'

McGill said the high groundwater problem could be solved without the lake project.

"It's important to try to lower the groundwater, but you don't have to link lakes and streams to groundwater,' she said.

McGill doesn't have a position on the project.

"That's a question more for people who know about urban planning,' she said.

Lien Longville, who is also associate director of the Water Resources Institute at Cal State San Bernardino, said the project would have little effect on liquefaction. She called that argument a "scare tactic.'

"It is preposterous,' she said. "It may be a good water project, but it sure as hell is not a public safety project.'

Milligan said the reservoir would allow the water district to sell the high groundwater beneath San Bernardino.

"You can't just forever pump water unless you have somebody to pay the bill,' Milligan said.

He maintains that the lake can only be at its proposed site because of the higher elevation and the location of existing pipes.

"It has to be where it is,' he said. "If moving a half- or quarter-mile would have worked, we would have done it.'

The alternative, he said, was to build a farm of steel tanks to help deliver the water, which would only add to the city's blight.

"The city needs to go to work to plan on how it's going to accept this gift and turn it into a diamond for the community,' he said. "It sure needs one.'

The 3 R's
Residents of the area are skeptical. They have heard the buzzwords before. Renaissance. Revitalization. Rejuvenation.

Projects like Carousel Mall and Seccombe Lake were pitched with the same prospect of saving downtown. Instead, they have come to symbolize the city's decline.

"The idea that they're going to put a lake in here and people are going to flock to San Bernardino is ridiculous,' said Deanna Adams, whose banquet hall, Victory Chapel, would be demolished.

When Valles was asked why the city should have faith that this project will be the forerunner of real change, she said with a laugh, "Because it's me. I don't want to be boastful, but I take a great deal of pride in my integrity.'

Valles said that a better comparison than Seccombe Lake would be The Hub project, where a residential community was uprooted. It is now a booming commercial area.

Some see this lake as just a test run for the future. If it succeeds, neighborhoods will clamor for their own lakes.

"This is just peanuts,' Hill said. "This is just the beginning.'

The decision-makers have wrestled with conflicting interests, some telling them to build bigger, others to build smaller or not at all.

What they've settled on is a gamble in financial, political and human costs. It's also something that will take years to complete, even under the most optimistic projections.

For all the unknowns, it's what many bank the city's future on.

"The area is lingering and dying,' Valles said. "We need the project to regain our rightful place as the county seat, culturally and economically."


San Bernadino County Sun: www.sbsun.com

2 suits target lakes plan: San Bernardino County (CA) Sun, 5/27/05

Action seeks court injunction against SB project

By David Schwartz

[San Bernadino] Residents filed two lawsuits Friday challenging the lakes project that would destroy their homes.

The first suit, filed by 10 homeowners, says the final environmental impact report approved April 25 fails to meet state environmental standards. Deanna Adams, who owns and operates Victory Chapel, filed the other lawsuit.

The lakes project would clear out 473 homes on 82.4 acres north of downtown and east of Interstate 215. In their place would be a 44.5-acre lake, with land left over for parks and the development of 72 homes and 12 acres of stores.

The lawsuits, filed in San Bernardino Superior Court on Friday, seek a permanent injunction against the project. They also ask for attorney fees.

"The mass of the demolition of affordable homes and growing businesses is sort of stunning,' said Lou Goebel, the San Diego-based lawyer who filed the lawsuits.

John Hoeger, the project manager, defended the document.

"The (environmental impact report) took years to prepare, hundreds of hours of study,' he said. "It's a well-thought-out document.'

Hoeger, City Attorney James F. Penman and Bruce Varner, the lawyer for the San Bernardino Valley Municipal Water District, had not seen the lawsuits and would not comment on them directly Friday.

"Challenges of (environmental impact reports) are not unusual. It's kind of an expected thing,' Hoeger said.

The lawsuits challenge the environmental document that the City Council and the water board separately certified on April 25.

The lawsuits claim the environmental impact report:

  • Gives inadequate details about relocation.
  • Doesn't deal with the effects on the neighborhood and where people will move.
  • Doesn't consider a smaller option that would have displaced fewer residents.

Even though the April 25 vote was hailed as a major step for the project, many obstacles and potential tripping points remain.

The water district has hired a firm to create a relocation plan, a necessary step required under state environmental law before the water district buys land and relocates residents.

The water district has almost $60 million, but the project is expected to cost at least $150 million. Hoeger said homes might not start to be acquired and residents relocated until more is known about the funding.

The water district "could choose to do this with their own funds, but they'd do it at some risk until they have enough money to complete the project,' Hoeger said. The board of directors, who are elected, have not made that decision yet.

Residents questioned where they'd move to.

"Do you know where 400 affordable homes are for sale in the area? I don't,' said Ghassan Abdullah, one of those suing the city and water district.

"This project is not for the people,' said Steve Veloz, who also lives in the area and is involved in the lawsuit.

The lawsuits question why some of the data in the area is based on old numbers, including the 2000 census.

Veloz was skeptical that residents would be fairly compensated, given the increased home prices and lack of affordable housing.

Veloz said, "There's a house shortage here for regular people.'

It remained unclear how this would affect the project.

Although the residents who are suing can seek a temporary restraining order, Goebel said it was unlikely they would do it immediately.

"Since they're not bulldozing right now, we're going to wait to see what happens next,' he said.

A hearing is set for July 28. Judge John Wade will hear the case.


San Bernardino County Sun: www.sbsun.com

5/30/2005

Landowners cry foul in eminent domain push: The (Palm Springs CA) Desert Sun, 5/28/05

By Nelsy Rodriguez

When Cathedral City City Council voted in March to exercise eminent domain over one of the largest undeveloped pieces of property left in the city, it was seeking to put about 60 acres of land together for possible development.

The 12 small business owners in the area - ranging from the Villa Bakery to Jaguars Only - and the landowners of the area near Sarah Street and Ramon Road were told the city did not have a development plan on the table.

But with the approval on Wednesday of a possible 40-acre RV dealership north of Ramon Road. that has changed - and some of the landowners say they have been taken by surprise.

The City Council approved this week a memorandum of understanding with Merritt RV to negotiate the possibility of building an RV sales and service station on 40 of 63 vacant acres north of Ramon Road.

The business fits part of the profile that city planners had mentioned in calling for the power of eminent domain: A big business that will generate much-needed sales tax for the cash-strapped city's general fund.

The plan is moving fast and some of the landowners are stunned.

A portion of the 40 acres is owned by Dr. Kurt Bochner of Palm Springs and his son Clifford Bochner of Murrieta. The elder Bochner did not return calls for comment, Friday, but said at the council meeting Wednesday that he had planned to develop the land and leave it to his kin as his legacy.

"I'm kind of emotionally shook," Bochner told the City Council before it voted to approve the memorandum of understanding.. "(The city had) assured us that there weren't any (other bidders for the land)."

But as Bochner realized, he doesn't have the final say over what happens to his legacy.

The city's Redevelopment Agency, following the March vote, has the power of eminent domain over the land in question. The City Council in March agreed with the RDA that it was important to secure the right to acquire the land, whether the property owners wanted to sell or not, to assure its further development.

The city then told the owners of Katsu's Laundry, Villa Bakery, Jaguars Only, Cathedral City Car Pros, 7-Eleven and all the others on Sarah Street and Ramon Road consideration would be given to keep them included in whatever large project would come.

"It was like a child and you can't give up a child," Mayor Kathy DeRosa told the group in March, assuring them that as a small business owner herself, she would suggest using eminent domain only if it became absolutely necessary.

The memorandum of understanding allows the owner of Merritt RV 120 days to negotiate with the city about developing an RV sales and service complex and related amenities in that area, according to city staff reports.

The memorandum does not guarantee that an agreement will come, but it does restrict the city from negotiating with any other developers for the time period.

The only exception is with property owners.

Redevelopment Projects Manager Keith Scott said the property owners at this point still could influence what happens with the land, "some of which is occupied, some vacant and some of which the property owner may have a project," Scott said.

Scott said Bochner and all other property owners have a right to compete to develop the land.

Mayor Kathy DeRosa did not return telephone calls requesting comment on Friday.

Bochner, who told the City Council he had invested money in forming plans to build low-income housing on his land, said the city wasn't acting fairly by first telling them that no one had expressed interest in the land and suddenly having an interested party.

"I'm 74 years old," Bochner said, "Now we are asked to compete with an outside (developer) in order to develop our own property?

"I don't think the presentation is fair."


The Desert Sun: www.thedesertsun.com

5/27/2005

Shop owner gets to stay put: St Louis (MO) Post-Dispatch, 5/26/05

By Jake Wagman

A St. Louis auto mechanic whose repair shop was targeted for acquisition to make way for a "Media Box" will get to keep his land after all.

The board of directors for Grand Center, the development agency that presides over the cultural district of the same name, voted Thursday to drop its eminent domain suit against Gentle "Jim" Day, owner of Royal Auto Repair.

"It's a very, very happy day in my life," Day, 58, said from his shop.

For 20 years, Day made his $1,222 monthly mortgage payment. He took title to the land last year. By then, however, he was mired in a court dispute with Grand Center over whether he should be forced to sell so the agency could add an artistic attraction to the area around Grand Boulevard in midtown.

Day's plight became public this year. And Day, the son of Arkansas sharecroppers, received an outpouring of support from opponents of eminent domain. On Thursday, a table near his cluttered office at the repair shop bore news clippings about his eminent domain fight and contact information for the local alderman.

Eminent domain is the power granted in the Fifth Amendment of the Constitution that allows local governments to acquire private property for public benefit.

The U.S. Supreme Court is expected to rule soon on a Connecticut case that could curtail that right, potentially affecting several projects in the St. Louis region and hundreds nationwide.

Day's situation has parallels to the circumstances surrounding Kelo v. New London, Conn., which questions whether eminent domain can be used as a tool for economic development.

In Day's case, that power went to Grand Center, a nonprofit organization run by former St. Louis Mayor Vincent Schoemehl.

The St. Louis Board of Aldermen three years ago named Grand Center as the "master developer" of a swatch of land near St. Louis University, roughly bordered by Forest Park Avenue and Delmar Boulevard. That gave the agency broad control over land use, including the ability to dispense tax incentives, approve or reject building designs and to acquire land.

Schoemehl wanted to see Day's triangle of land between Spring Avenue and Olive Street turned over to a private developer.

Envisioned was a building with a design studio and residential units that would have some sort of "multimedia component," thus dubbed a Media Box.

But on Thursday, Schoemehl said the Grand Center board unanimously followed his recommendation to drop the eminent domain suit against Day. Other Grand Center sites will be scouted for the proposed building, he said.

Schoemehl had been under political and public pressure to reach an amicable settlement with Day after the Post-Dispatch reported the dispute in February. Among those seeking a resolution was the alderman in the ward, Mike McMillan, and U.S. Rep. William Lacy Clay Jr.

Schoemehl would not say whether he would use eminent domain in future land deals.

"I don't have an opinion on that," Schoemehl said.


St Louis Post-Dispatch: www.stltoday.com

MBTA pays $200K in eminent domain case: Cohasset (MA) Mariner, 5/27/05

By Samantha Brown

The Massachusetts Bay Transportation Authority [MBTA] has paid a settlement 10 times that of their original offer to a Cohasset couple whose land was taken by eminent domain as part of the Greenbush line construction.

William and Huguette Stone were the owners of a vacant lot at 383 South Main St., of which the MBTA took a portion by eminent domain last November. The government has the right to take private land by eminent domain for public use, and there is usually compensation awarded to the owner in return.

Although the MBTA originally offered $20,000 for the property, the couple's attorney Peter E. Flynn of Saugus said a complaint was filed in Norfolk Superior Court and an agreement has been reached, paying compensation to the Stones in the amount of $200,000.

"We were thrilled to obtain ten times the MBTA's original offer and present the Stones with a check for an additional $200,000," said Flynn, adding it was especially important for his clients that they were able to come to a resolution quickly, "while also avoiding lengthy, costly, and uncertain litigation."

The land was taken from the Stones Nov. 1, 2004, and at that time the MBTA felt its offer of $20,000 was proper compensation. However, Flynn said the Stones were not happy with the settlement and filed a complaint in Norfolk Superior Court Dec. 7.

Although litigation was filed, Flynn said, "Negotiations with the MBTA continued, which allowed us to come to an agreement quickly and withdraw the complaint before further pursuing the litigation."

The complaint alleges the compensation was "inadequate and does not reflect the fair market value of the property taken, and/or damages to the plaintiff's remaining property." Flynn explained the land is reasonably suited for some limited development, but that "Any development would encounter issues relating to the presence of wetlands, access, and a right of way over a railroad line," once construction of the Greenbush line is complete.

Through much negotiation, the $200,000 settlement was reached, and the Stones filed a notice of voluntary dismissal in Norfolk Superior Court March 15. Flynn said he and his clients are very happy with the outcome, adding while construction of the Greenbush line is somewhat controversial, it is a "worthy project."

spokesman Joseph Pesaturo said in order to build the Greenbush line, the MBTA has taken roughly 90 pieces of property by eminent domain throughout the entire 17-mile Greenbush corridor. There have been 30 eminent domain cases negotiated with property owners and nine property owners, including the Stones, have challenged the MBTA's taking price and have filed lawsuits.

The Greenbush Line is the third leg of the Old Colony Railroad Restoration Project, and is being built as mitigation for the Central Artery/Tunnel Project in downtown Boston. The project will stretch for 17 miles and once complete, will restore train service from Scituate to South Station. The project is intended to reduce automobile traffic on the congested highways leading into the city. According to the MBTA, the project will cost roughly $479 million including planning, engineering, land and permitting costs, along with the cost of construction and new trains.


Cohasset Mariner: www2.townonline.com/cohasset

5/25/2005

"Super Slab" opponents making pitch to Owens: The Denver (CO) Post, 5/24/05

The governor has hinted at a veto for one of two bills intended to block a huge toll road on the plains

By Colleen Slevin, Associated Press

Eastern Plains residents who have fought plans to build a private toll road near their homes are trying to pressure Gov. Bill Owens to sign legislation that would make it more difficult to build such highways.

Opponents of the so-called "Super Slab" project plan to rally Saturday at the state Capitol and also have been e-mailing the White House and the Republican National Committee to draw attention to their cause.

Owens has hinted he could veto at least one of the two bills lawmakers rushed to pass before heading home - a measure that would bar private companies from forcing landowners to sell their land in order to build roads.

Ray Wells, the man behind the project, which is officially called the Front Range Toll Road, has said Senate Bill 230 would block such projects because a few landowners could refuse to sell.

Owens has said he fears it could prevent future private road projects at a time when the state doesn't have enough money to pay for transportation needs.

"No bulldozers are lining up in Elbert County this summer. There is plenty of time to study what should be done," Owens spokesman Dan Hopkins said Friday.

Sharon Croghan, a rally organizer from Adams County, said many people from eastern Colorado have supported Owens because they see him as an advocate of private-property rights. She said vetoing the bills would be inconsistent.

"We're trying to make the point to the governor that this is really important to us. We think a private corporation having that power unchecked is wrong," she said.

Owens, who supported the public-private partnership that built the E-470 toll road east of Denver, is less concerned about the second bill, Hopkins said. House Bill 1342 would require private road projects to follow the same environmental and other regulations required of public roads.

Croghan and rally organizer Patty Sward of Elbert County said they don't support Wells' current proposal but recognize that another road may be needed to help ease congestion partly caused by people who have moved to the country but commute to work in Denver.

They just don't want to see a private company making all the decisions about where and how it should be built.

"When you take that government oversight piece out of it, you're talking David versus Goliath and you're also taking David's slingshot away," Sward said during a telephone interview as she sat in stop-and-go traffic on Interstate 25.


Denver Post: www.DenverPost.com

5/23/2005

Agency may buy Monte del Lago: Monterey (CA) Herald, 5/21/05

The Housing Authority has researched seeking a court order to declare eminent domain

By Joe Livernois

Residents in a North County mobile home park heard encouraging news Friday night in their fight against the corporate owner of their park.

Officials from the Monterey County Housing Authority told tenants of the Monte del Lago park that declaring eminent domain on the property might be possible, depending on how it's appraised. The appraisal is expected to be completed within two months.

"The appraisal will be a huge factor," said Starla Warren, a Housing Authority official who has been investigating numerous scenarios that could help residents fend off steadily escalating rents.

Residents first came to county officials two years ago, after the owner of Monte del Lago started terminating leases and ratcheting up rents on the spaces. Tenants own and make mortgage payments on their mobile homes, but must lease the ground on which the homes sit at Monte del Lago.

The 310-home park is owned by Equity Lifestyle Properties of Chicago, a public company that specializes in buying up undervalued properties.

Resident Bill Hellam on Thursday received notice from Equity Lifestyle that his rent will increase soon to $875, an increase of $350. Hellam is 87 and has lived at Monte del Lago for 24 years.

After determining that it will not pursue a rent control ordinance that would stanch the rent increases, the Board of Supervisors asked the Housing Authority to investigate alternatives. The agency operates housing complexes for low-income and aging residents throughout Monterey County.

The Housing Authority has researched the possibility of seeking a court order to declare eminent domain on Monte del Lago and Warren presented various scenarios to the agency board Friday night. By acquiring the property, the Housing Authority could establish restrictions on rent.

With eminent domain, the agency would have to prove that its acquisition of the property is needed to advance the "public good." The agency would then pay the owner fair market value.

According to Housing Authority officials, it might be able to pull off such an acquisition if the property is not valued at more than about $30 million.

At the same time, the Housing Authority could be in for a legal battle with Equity Lifestyle Properties, which is well-known among mobile home owners as being furiously litigious.

During the past several months, Monte del Lago residents have expressed frustration with the Housing Authority because they sensed it was reticent about pursuing action on their behalf.

But residents said Friday they were impressed with Warren's presentation. And agency officials pleaded with the residents to be patient.

"The big issue for us is that we'll likely be fighting a legal battle with a huge conglomerate," said Alan Styles, chairman of the Housing Authority board. "I understand the emotion, but we need to be careful that what we do here is not going to jeopardize the clients we already have. We need to be absolutely sure what we're doing."

Residents are already starting to flee the park. Among those leaving is Joe Russo, a retired Catholic priest who led tenant efforts against Equity Lifestyle Properties. Russo said he can't afford the rent increases and is preparing to move to another park in Corning, above Chico. He said rents there are about $350 a month, about $600 less than he is paying at Monte del Lago.

But at 87, Hellam said he has no choice but to try to find a way to pay his $875 rent. He said he retains hope that the Housing Authority will find a way to ease the situation.

"I have a feeling after tonight that something is going on," he said. "There are so many people who are giving up hope, but I have a good feeling."


Monterey Herald: www.montereyherald.com

Revitalization Projects Hinge On Eminent-Domain Lawsuit: Washingon (DC) Post, 5/21/05

By Kirstin Downey

Seven years after a real estate agent came knocking at her door [in New London CT] to tell her that her house was being condemned by the city to make way for a luxury hotel and office complex, Susette Kelo, a 48-year-old nurse, is still seething with rage.

Perched stiffly at the kitchen table of the cozy Victorian cottage she refurbished "from the concrete in the basement to the shingles on the roof," Kelo pours out the story of how she has fought the city and state, taking her case all the way to the Supreme Court. "I don't like to be pushed around," she said.

Now one woman's anger and determination may affect urban revitalization projects all over the country. She and her backers say the government has overstepped; those on the other side say such actions are needed for the public good.

Kelo's lawsuit, filed with eight neighbors and financed by the libertarian advocacy group Institute for Justice, alleges that New London's plan to redevelop the waterfront area where Kelo lives is unconstitutional because the government wants to take her land for private redevelopment, not public use as the Fifth Amendment permits.

While the Constitution grants governments the power to take land for public use, it specifies only that owners be given "just compensation" for their loss. Through the years, the people on the losing end of the arrangement have disliked it; the people deciding what needs to be taken have defended it.

There is little dispute over many kinds of public land use, such as that for schools, roads and water-treatment plants. In the past five decades, however, municipalities have expanded the interpretation of "public use" to include revitalizing dilapidated downtowns, removing urban blight and boosting tourism and tax revenue.

In the Washington area, the power of eminent domain, or the threat of it, was used to spiff up Pennsylvania Avenue and to build the Metro system and the development parcels around its stations. The District hopes to redevelop a down-at-the-heels cluster of stores in Southeast Washington known as the Skyland Shopping Center into a more upscale shopping complex, and if the 16 property owners there don't agree to sell their land to the city voluntarily, city officials say they will take the land through eminent domain. That plan could die if the Supreme Court rules in favor of Kelo.

City officials around the nation are watching uneasily as the Supreme Court deliberates. D.C. Mayor Anthony A. Williams (D), who is president of the National League of Cities, said he is worried that the case could interfere with "the critical need of cities to use this tool — reluctantly — for public purpose and benefits."

Williams said the success of the Kelo lawsuit represents the growing political strength of what he views as radical property-rights activists.

"Some of these people wouldn't use eminent domain to build a highway or a railroad," Williams said.

The Institute for Justice says it accepts the use of eminent domain for roads, schools and parks and opposes it for privately owned, for-profit operations. Lawyers there say they have taken Kelo's case because they think it represents a classic case of excessive use of government power. "It's an unholy marriage between land-hungry developers and tax-hungry local governments," said John E. Kramer, an institute spokesman. Institute officials say they found 10,282 incidents of filed or threatened condemnation procedures in which land was given to private, for-profit parties, such as Target or Costco stores or casino parking lots, between Jan. 1, 1998, and Dec. 31, 2002.

The Kelo case arose when New London, an old and scruffy city seeking to jump-start its economy, turned to urban redevelopment. Once a whaling center second only to New Bedford, Mass., and then a shipping and manufacturing hub, New London has slowly lost its industrial and commercial base.

In 1997, Pfizer Inc., the giant pharmaceutical firm that makes such drugs as Zoloft, Viagra and Celebrex, began discussions with state and local officials about a $300 million research plant in New London that would bring 2,000 jobs. It was the first time a major manufacturer had expressed interest in moving to New London in more than 100 years.

In a March 1999 letter, George M. Milne Jr., president of Pfizer's Central Research Division, wrote that the company's New London expansion "requires the world class redevelopment planned for the adjacent 90 acres," which included Kelo's neighborhood, encompassing about 115 properties. Milne said Pfizer needed a 200-room waterfront hotel, a conference center, a physical fitness area, extended-stay residential units and 80 units of housing.

Kelo learned about the government's plan for her property when a real estate agent showed up on her doorstep in early 1998, telling her that her home was scheduled for demolition and that she had better sell quickly. Kelo bought the two-bedroom, one-bathroom house for $53,000 in 1997. The real estate agent offered her $68,000. Kelo told the agent to get off her property. Other area residents were easier to persuade.

The issue of compensation was a sticking point. When Kelo bought her house, the Fort Trumbull area was run down, wedged between a decommissioned military installation and a ramshackle marina, near a malodorous sewage-treatment plant. But by the time demolition of the neighborhood began, there was a blue-chip corporate research center and an attractive waterfront park with bike trails and green lawns. The sewage smell had abated. And when Pfizer decided to build a state-of-the-art day care center for the children of its employees, the corporation bought homes near its compound, paying prices considerably higher than the previous going rates. One house reportedly sold for $400,000. Kelo said the final government offer she received was $125,000.

In a statement, Pfizer said it is not a party to the suit and has no stake in its outcome. It said it had been a "good citizen" in New London and is now the city's largest taxpayer.

Kelo decided to fight the condemnation and got support from area activists who also opposed the project. With the backing of the Institute for Justice, Kelo and eight other property owners sued and won at the Connecticut Superior Court, but the city appealed to the state Supreme Court, which sided with the city. In February, the U.S. Supreme Court held oral arguments on the case, and a ruling is expected sometime this spring.

No construction has occurred at the site because prospective developers were frightened away by the lawsuits and controversy, said New London city manager Richard M. Brown.

In the meantime, the city's financial plight has worsened. In a recent budget statement, Brown reported that the city lost $1 million in expected tax revenue, partially because the Fort Trumbull neighborhood that had once paid taxes has been destroyed. The city's budget had relied on projected building permit fees that never materialized. Homeowners will likely face higher taxes, city officials said. The city took another blow last week, when the Pentagon announced plans to close the U.S. Naval Submarine Base, one of the city's largest employers, eliminating 7,096 military jobs and 952 civilian jobs.

For Kelo, not much of a victory is possible. Her house faces a gated state park with the modernist, six-story Pfizer research headquarters looming overhead. The blocks where her neighbors lived are a flattened expanse of dusty, rock-strewn soil with a handful of remaining structures poking out desolately. A nearby vacant lot is a dumping ground for smashed and abandoned buses and burned-out cars.

"It was always a quiet neighborhood," Kelo said. "Now it's just quieter. I don't like the fact they're all gone, but what can you do?"


Washington Post: www.washingtonpost.com

Eminent domain taking is upheld: The Cincinnati (OH) Enquirer, 5/21/05

Appeals court finds Norwood acted properly

By Sharon Coolidge

The city of Norwood [OH] properly used eminent domain when it seized five properties off Interstate 71, saying the homes and businesses on the land were deteriorating and posed a danger to the community, the 1st District Court of Appeals ruled Friday.

Norwood handed over the land to Anderson Real Estate and Miller-Valentine Group after seizing the properties, citing a study that found the property was deteriorating. They are building a $175-million complex of offices, shops, residences and restaurants. The developers have bought 65 other properties in the area bounded by I-71 and Edmondson and Edwards roads, most of which have already been razed.

The ruling upheld a June 2004 decision by Hamilton County Common Pleas Court Judge Beth Myers.

"The Ohio Supreme Court requires that we give the definition of 'blighted area' a liberal interpretation," wrote 1st District Court of Appeals Judge Mark Painter.

"Once a legislative determination of blight has been made, courts are required to and should be zealous in giving such determination by the city great weight.

"We will not substitute our judgment for that of the legislative body of the city," Painter added.

The decision addressed two properties specifically - a rental home on Delmar Avenue owned by Joe Horney and a home on Atlantic Avenue owned by Joy and Carl Gamble.

But the same argument applies to a third property, the Kumon Math and Reading Center on Edmondson Road.

The owners of Wilker Design on Edwards Road are appealing the city's use of eminent domain separately and the owner of Hyde Park Holistic Center on Edmondson Road has since dropped his appeal.

The Washington, D.C.-based Institute for Justice, a public-interest law firm which represents Horney and the Gambles, said it will ask the Ohio Supreme Court to take the case. Ohio's high court has already said the properties in question cannot be destroyed until the issue is resolved.

Horney and the Gambles have vowed to continue to fight against the taking of their property.

"The appeals court's decision opens the floodgates to further abuse of eminent domain," said Bert Gall, an attorney at the Institute for Justice. "Under its decision, developers are free to buy out a city's power of eminent domain for private development projects. The United States and Ohio constitutions forbid that result, and we are confident that we will prevail at the Ohio Supreme Court."

Norwood's attorney, Tim Burke, said he doesn't expect the Ohio Supreme Court to take up the case.

"Given four judges have all looked at the case and all have decided in favor of the city of Norwood, I think it reduces the likelihood that the Ohio Supreme Court will take jurisdiction over the case," Burke said. "Frankly, I really hope people recognize the fight is just about over and maybe it's time for everyone to move on and allow this project to go forward."

Attorney Richard Tranter, who represents Anderson Real Estate and Miller-Valentine Group, added, "This decision confirms that Norwood's urban renewal process was open, deliberative and served the community interest."

Although the developers cannot touch three properties involved in the appeal, they are close to completing the demolition of the other 68 structures on the 10-acre site, which is the first step of Rookwood Exchange.

Tranter would not comment on when building will begin.

Friday's unanimous appellate decision by Painter, Lee H. Hildebrandt Jr. and Robert Gorman said the city did not abuse its discretion in finding that the area was in danger of deteriorating into a blighted area.

"In our system of government, we require judicial deference to be given to a city council's decisions," Painter wrote. "...legislatures are better able to assess what public purpose should be advanced by the exercise of eminent domain."

The appellate court pointed out that the Norwood council considered several factors, including traffic congestion, noise, diversity of ownership, safety issues because of dead-end streets and the quality of residential living in the area at night because of lights from nearby developments.

After hearing what Norwood considered, Myers found the city had sound reasoning in taking the property. The appellate court agreed.

The Institute of Justice also argued that Norwood's urban renewal plan didn't comply with city code, that eminent domain can't be used to eliminate deteriorating conditions and that the city was using the deteriorating designation to mask the real reason for wanting the property.

The appellate court found no merit in those arguments.

Norwood Mayor Tom Williams said he's pleased with the appeals court's decision. "A Common Pleas Court judge and three appellate court judges have said that Norwood followed the law in the action we took," he said. "It's time for this project to move forward."



TIMELINE

Fall 2002: Anderson Real Estate and Miller-Valentine Group begin talking about Rookwood Exchange, a $175 million shopping and office complex off Interstate 71.

August 2003: Norwood City Council accepts an urban renewal plan that finds property in the area is deteriorating, thus can be seized through eminent domain.

November 2003: Norwood files to take the five properties through eminent domain. Owners of the other 65 properties needed for the project agreed to sell.

September 2003: The property owners file a lawsuit in Hamilton County Common Pleas Court challenging the eminent domain action.

June 2004: Hamilton County Common Pleas Judge Beth Myers ruled the city properly used eminent domain power.

February 2005: The Ohio Supreme Court says three of the properties in question cannot be destroyed until the appeals process is finished.


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

Debate Pits Private Property Against Powers of the State: Online Wall Street Journal, 5/19/05

Later this spring, the Supreme Court is expected to issue an opinion on the power of governments to seize private property.

The closely watched case centers on a New London, Conn., economic development plan. The city wants to use eminent domain to build offices, a hotel, condominiums and parking where houses now stand, arguing that its plan has economic benefits in new jobs and property-tax revenue. But opponents maintain that the project isn't a legitimate public use, saying it unjustly takes private property for a project that will benefit other private interests.

As a warm-up to the court's decision, which is expected sometime before the end of term June 30, economist blogger Don Boudreaux and Harvard Law professor David Barron debate the theories underlying eminent domain and public use of private property.



Don Boudreaux writes: Secure private property rights are the foundation of liberty and commerce — the chief pillars of our civilization. Such rights give each of us the elbow room necessary to develop our unique talents and to think and act in whatever peaceful ways we like, even if others find our thoughts and actions to be disagreeable. Security of these rights also encourages the mutually beneficial exchanges upon which economic prosperity depends, in large part by preventing property transfers that aren't mutually beneficial.

Suppose I think that I value my neighbor's car more than he values it. The only way for me (or anyone else) to be sure is for the law to require me to secure my neighbor's consent to sell his car to me. If I could simply take his car without his consent as long as I agreed to pay the car's blue-book value, there's no guarantee that this property transfer is mutually beneficial. My taking my neighbor's car without his consent is thievery, pure and simple. No economy rises above subsistence without a widespread, hard and fast requirement of mutual consent for property transfers.

Contrary to much modern mythology, nothing about government renders its violations of property rights less objectionable than those of common thieves and vandals. If the city of New London, Conn., is permitted to confiscate property belonging to others, even if it is required to pay fair market value to the former owners, ordinary people will be less secure in their persons and possessions.

And the general populace, if not the local government, will be poorer than otherwise. How could it not be so? If government is permitted to confiscate property rather than purchase it, the presumption must be that government values the property less highly than it is valued by the private owners from whom it is taken. Even if in a particular case this presumption doesn't hold (although we can never know when such a particular case arises), the policy of permitting government to take property without the consent of its owners inevitably encourages thievery by the state.

David Barron writes: Thanks, Don, for getting us going — and in such sweeping terms. It's hard to know what to make of grand claims about the importance of the right to property necessarily conflicting with the government's power to take it — given that the right to property grew up along with the government's authority to exercise the power of eminent domain. The very same Constitution that precludes the government from depriving people of their property without due process of law makes it perfectly clear that the government can take that property for a public use so long as it pays just compensation. The founders were no slouches when it came to property rights. The American historian Charles Beard made a career making that point. But you make them sound like the outspoken leftist John Reed (played by Warren Beatty in the movie "Reds") and his fellow travelers.

So, is it the case that we can't have secure property and permit eminent domain? If so, what's the evidence for that? Seems like we are doing pretty well economically without the constraint. And, in fact, as the Supreme Court has set forth an ever more deferential approach to the government's assertions of authority to engage in eminent domain — in cases such as Hawaii Housing Authority v. Midkiff and Berman v. Parker — economic growth hasn't seemed to falter. Nor, from what I can tell, has a general sense of being secure in one's property taken much of a hit. If anything, market fetishization is on the upswing.

That doesn't mean there are no hard questions when it comes to eminent domain. The Supreme Court is presented with a potentially difficult one at the present moment. The case concerns whether the city of New London can take private property (while compensating) and then make it available for private development. That action at least raises an issue about whether the government is conforming to the Constitution, which requires takings to be for a public use. I think the court should uphold the exercise of eminent domain in that case. I am quite confident you don't. But from your first post, it seems like you think that the government couldn't take the property even if it was going to build a public road or an airport or any number of clearly public uses.

Does our tradition of respect for private property really mean that the government can be held hostage to any holdout who wants to preclude the development of a government highway? Perhaps you think the Constitution should be amended to preclude the government from exercising eminent domain in all cases. If so, I think the "empirical burden" ball to show that would do more harm than good is in your court.

Don writes: Fortunately, while the security of property rights is reduced by decisions such as Midkiff — which gives enormous deference to legislative maneuvers that forcibly transfer property from Private Citizen A to Private Citizen B — property rights remain, by and large, secure in the United States. Indeed, I'm sure that even a Supreme Court victory for the city of New London won't cast us into the dark ages.

As Adam Smith wisely observed upon learning some bad news, "There is a great deal of ruin in a nation." A society as civil and as dynamic as the U.S. can endure and even prosper despite instances of corruption, malfeasance, and petty tyranny.

But the fact that government confiscations of private property aren't so widespread in the U.S. to prevent economic growth doesn't justify such confiscations. To the extent that these seizures occur, they make us less free and less prosperous than we would otherwise be.

David's right that the framers of the U.S. Constitution were "no slouches when it comes to property rights." By and large, I admire their handiwork. But I do wish that they would have rejected eminent domain. As David correctly notes, government asserts that it needs this power in order to prevent its projects from being hamstrung by private owners "holding out" strategically for unjustly high payments.

While such problems are imaginable — and, no doubt, would occasionally occur — I doubt that they are significant enough to entrust politicians with the power to take private property (even if such takings require payment of fair market value). America is planted thick, for example, with private housing developments on large contiguous plots of land that developers manage to assemble without confiscating others' properties. If private developers can achieve such outcomes, there's no reason government officials can't do so.

For those who fancy that government's projects are uniquely important, or for those who imagine that holding government office makes someone unusually saintly or trustworthy, entrusting government with power that we would never entrust to our neighbors or other private citizens might seem sensible. To me, it's dangerous, unjustified, and unjustifiable.

David writes: Looks like our disagreement remains at the threshold — whether any exercises of eminent domain are ever justifiable.

Don suggests that they always result in social loss, and he points to the fact that developers manage to assemble master-planned communities with some regularity without resorting to the exercise of eminent domain. So, he suggests, why should the government be privileged to get land for less than it's worth? After all, it could always buy it at a price the seller would accept. Doesn't that mean that every exercise of eminent domain makes the world poorer?

Sounds plausible, but a few points in that regard:

The first is that these master-planned communities share a common feature — they are located near public roads, which exist only because the power of eminent domain exists. So it's actually not the case that these private developers acted without the aid of the government confiscating someone's property. Could we really have these developments if the private developers themselves had to assemble all of the necessary transportation infrastructure to get people from home to work as well? Indeed, even property that is taken is often property that itself benefited along the way from prior exercises of eminent domain — be they exercises of eminent domain that helped make it possible for the railroad to deliver the construction materials for the building of the home in the first place, etc.

The basic conceptual problem, in other words, seems to me to remain for those who oppose the eminent domain power simpliciter: Eminent domain and private property are more co-dependent than you'd think. So, in permitting eminent domain, we aren't just tolerating a drag on the system. We are upholding a practice that makes the system work as well as it does.

The second point concerns the fact that these master-planned developments are sprouting up further and further out into exurbia. One reason that places like New London occasionally resort to eminent domain is to revitalize a close-in city. It by no means clear that restricting eminent domain — insofar as it precludes cities from revitalizing themselves — makes us all better off if it just ensures that sprawling growth results. The literature on the costs of sprawl is itself sprawling, of course, and it is surely open to differing interpretations. But given the room for debate, why wouldn't we think that democratic processes are a good mechanism for making judgments about how to proceed when the best way of achieving social welfare is by no means clear? Seems to me we have a pretty deep tradition of looking to democratic processes to make such judgments all the time — even when they impose costs on private property owners. I don't think Don means to be calling all forms of property regulation into question, but I'm not sure I see how he isn't.

One final point. As a lawyer, now in dialogue with an economist, I am interested in your view as to whether there is anything to the distinction between takings for "public use" in the classic sense (say, for a public road) and takings in which the government gives the property over for private development (as in New London). Justice Kennedy at oral argument in the New London case kept suggesting the economists would think there is nothing to that distinction. Each kind of exercise of eminent domain is either equally good or bad. But is that right? Do you see a difference between the two — a difference that would make you even more hostile to what the city of New London is doing in particular than to what the framers of our Constitution authorized governments to do more generally?

Don writes: It's true that privately built housing communities depend upon road and sewer systems, which typically are built by government. But this observation doesn't address my argument that eminent domain is unnecessary. The fact that housing developers routinely acquire large contiguous plots of land without eminent domain — that is, by buying individual plots from private owners — suggests that government doesn't need eminent domain to build roads and to do whatever else it does.

Unlike David, I trust democratic mechanisms much less than I trust the rules of private property. If the city of New London, for example, can confiscate private property without the owners' consent, government officials have too little incentive to bargain in good faith with property owners to find out if mutually advantageous deals are possible. Government will confiscate property rather than pay market prices for it. And politicians will pander to special-interest groups eager to gain at the public expense.

The fact that government is democratically elected might put some restraint on use of this power — or it might not. If a majority of voters in New London perceive that they can gain by directing the city fathers to confiscate private property owned by voters in the minority, why should we trust that the city will seize private property only if doing so yields significant benefits to the public at large?

By obliging all persons — including government officials — to pay voluntarily agreed upon prices for any properties acquired, we best ensure that worthwhile transfers of property rights occur and that transfers that aren't worthwhile are avoided.

David writes: The government could build a statewide highway by just bargaining with landowners along the route? What about the owner of the last parcel in the road's path? Is the market value of that parcel whatever that property owner wants to charge? Suppose the owner wants whatever the fair market value of the parcel was before construction on the roadway began plus the entire budget for the roadway's cost now that the owner knows the road is being built? Why is it socially efficient to make society pay that premium?

But even if a flat ban on eminent domain is inefficient, there are hard cases. Can a city take a $200,000 house to permit a developer to build one for a $1 million, claiming the move would be good for the local tax base? Once we dispense with a flat ban on eminent domain, though, our choice is either to have judges do the sorting between good and bad takings or to have the people themselves do it through their elected representatives. Our nation's past experience with judges second-guessing the legislature's economic policies has been pretty dim. So, on balance, I'd cast my lot with the people.

Don writes: You raise an interesting point — usually called the "hold-up problem" — in which a single property owner can hold a project hostage and extract maximum gain. But in reality, because there is almost always more than one way to build a road or to site a large development, there usually isn't any one property owner who can hold the project hostage. This is one reason why private developers commonly succeed in assembling large parcels without using eminent domain.

Moreover, ingenious strategies exist to avoid the hold-up problem. For example, a buyer can negotiate sales contracts contingent upon the buyer acquiring all necessary parcels of land. With such contracts, no one landowner is ever in a position to hold-out strategically for the full value of the project.

You ask, David, whether a legislature should be able to take a $200,000 house to build a $1 million dollar project that increases the tax base. My answer to that (and I hope the Supreme Court reaches the same conclusion in Kelo) is an emphatic no.

One reason is practical: If there really is such a discrepancy in value, the project will take place anyway, as I've argued above. But the second reason is my skepticism about of legislators' ability to dispassionately represent "the people." Which people, after all, are represented? Conflicts exist between those who would benefit from higher tax revenues (for example, developers who would be awarded lucrative contracts funded with these higher tax revenues) and those who lose — namely, property owners whose properties are seized. Politicians are simply too likely to pander to special-interest groups. The more unrestrained is government's power to use eminent domain, the more likely will our country be one marked by too many shopping malls and too few desirable, if not necessarily highly taxable, alternative uses of land.

David writes: Even the contingency contract you describe permits the landowner to extract a premium. If the contract price isn't more than the amount the government would owe as just compensation, then the government could just take and pay without complaint from the property owner. So the question for me is why society should bear the extra cost.

Absent evidence that net social welfare declines unless the government bears the extra cost, efficiency analysis simply can't prove that eminent domain is bad rather than good. And the necessary evidence just doesn't exist.

Our debate ultimately turns on differing views of government regulation. After all, there's no reason to trust government when it engages in zoning but not when it engages in eminent domain. Certainly zoning can "take" plenty of value from property owners. But we've generally recognized that regulation also can create value in property, and for many decades constitutional law has proceeded from that premise. That's partly why zoning generally raises no constitutional problem. And why eminent domain shouldn't either.

But to close on a point of (near) agreement, I grant that taking the $200,000 home causes real concern. Even John Reed might have a problem with that one, and the Supreme Court has long said that you can't take from A to give to B even if you can take for a public use. So I won't be at all surprised if the court makes some noises to that effect, even as it upholds New London's right to redevelop.



David Barron is a professor at Harvard Law School. His writings focus on the legal powers of local governments, federalism and the separation of powers, and he also researches property law and urban sprawl. Barron was a law clerk for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and Justice John Paul Stevens of the U.S. Supreme Court. Prior to teaching, he was an attorney-adviser during the Clinton administration in the Office of Legal Counsel in the U.S. Department of Justice. Barron received his bachelor's in history and his law degree from Harvard.

Don Boudreaux is chairman of the economics department at George Mason University and has held the position since 2001. He previously was president of the Foundation for Economic Education and taught at George Mason and Clemson University. His research centers on the nature of law, antitrust law and economics, and international trade. Boudreaux blogs regularly (with fellow Econoblogger Russ Roberts) at Café Hayek. He received his doctorate in economics from Auburn University and his law degree from the University of Virginia.



Online Wall Street Journal: http://online.wsj.com