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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appellate Court grants stay of eminent domain: Long Branch NJ Atlanticville, 11/21/06

Judges' order puts condemnation of home on hold, pending appeal
By Christine Varno
A [New Jersey] state Appellate Court has ordered the city [of Long Branch] to hold off on using eminent domain to seize a beachfront home for a redevelopment project.

An order granting a stay of the city's pending condemnation action against Louis and Lillian Anzalone's Ocean Terrace home was signed Nov. 16 by Appellate Judges Jack L. Lintner and Christine L. Miniman.

"This is a very good sign," said the Anzalones' attorney, William J. Ward Monday.

"You do not get a stay granted very often," said Ward, of Carlin & Ward, Florham Park. "They are not routinely granted."

The stay prevents the city of Long Branch from seizing the Anzalones' property while an appeal is pending of a state Superior Court decision that affirmed the city's right to take the property through eminent domain for private redevelopment.

The stay will remain intact while the appeal is pending, Ward said.

"The city cannot take the property until a final decision is made on whether [the city] has the right [to take the homes] is made," Ward said.

"This is a significant victory for the property owners and bodes well for a favorable decision on the merits of the case," Ward said.

"It is not a slam dunk that we will win the appeal," he said, "but it is a very, very positive sign."

City Attorney James Aaron did not return a phone call seeking comment Monday.

Ward explained that the stay order is significant because the property owners must demonstrate a probability of success in the merits of the appeal in order to meet the standard for obtaining a stay.

"The court was obviously satisfied," Ward said.

Institute for Justice (IJ) senior attorney Scott Bullock agreed.

"I think [the stay] is phenomenal news," Bullock said Monday.

IJ is seeking co-counsel status in the appeal to represent a group of city residents in the Anzalones' neighborhood, known as MTOTSA, who are also facing condemnation proceedings.

"This obviously indicates that they are taking the appeal very seriously," he said, adding, "Just like [in the Anzalone case], this same relief could now be granted to all the MTOTSA homeowners."

Ward filed the motion asking the Appellate Court to grant the stay Oct. 25.

Ward is representing the Anzalones in an appeal of a June 22 decision by Superior Court Judge Lawrence M. Lawson who ruled that the city has the right to use eminent domain to take the homes in the Beachfront North, phase II redevelopment zone for a luxury condominium project.

Plans for the area call for developers MM Beachfront North II, consisting of K. Hovnanian, Middletown, and the Applied Cos., Hoboken, to raze the modest beachfront neighborhood and construct three buildings consisting of a total of 185 condominium units in its place.

In Lawson's decision, the initial motion for a stay was denied.

"This time, we have judges with a different perspective," Ward said. "I think what got their attention, although it does not say it in the order, was the conflicts of interests [argued in the brief filed for the stay]."

In the brief, Ward charged that the lower court erred by not granting discovery to obtain facts surrounding allegations of conflicts of interest.

The brief charged conflicts existed between Aaron's law firm, the law firm of Greenbaum Rowe Smith and Davis, Mayor Adam Schneider and the Long Branch City Council, developer K. Hovnanian and the Monmouth Community Bank.

The bank, the brief stated, provided a line of credit to the developer and employed some City Council members who selected the developer.

Ward charged that Arthur Greenbaum was involved in a conflict because his firm represented the city in condemnation proceedings while he was a director and shareholder of developer K. Hovnanian.

Aaron's firm was also involved in a conflict, according to Ward, because while Aaron represented the city, his firm represented K. Hovnanian.

Ward stated in the brief, the relationships between the law firms, the city, the developers and the bank, "create the appearance, if not of actual conflict, to have improperly influenced the city's actions taken in pursuit of the Beachfront North Redevelopment and the condemnation of the subject property."

A group of some 20 residents in the three-street Marine Terrace, Ocean Terrace and Seaview Avenue neighborhood known MTOTSA are also appealing Lawson's decision.

The MTOTSA homeowners are being represented by attorney Peter H. Wegener in the appeal.

The public interest law firm IJ, based in Arlington, Va., has applied for "pro hac vice" status to enter the case as co-counsel with Wegener.

Ward said that the decision for his client is a win for the entire MTOTSA neighborhood.

"Once a stay is granted in our case, then a stay will be granted for MTOTSA, once they file for it," Ward said.

Also on Nov. 16, Appellate Court Judges Lintner and Carmen J. Messano denied a motion from the city to accelerate the appeal.

Ward said he filed a brief on the merits of the appeal last week and the court could possibly schedule oral arguments to begin in the appeal in six months.

The MTOTSA residents are a few steps behind in the appeal, Ward said, because Wegener and the city are still involved in a court battle over the admission of IJ into the case.

"This decision is just positive for my clients and for the rest of MTOTSA," Ward said.

MTOTSA resident Lori Ann Vendetti said Monday that this is the first positive step for the homeowners.

"The appellate division is giving this serious thought," Vendetti said.

"They are not being biased as I felt the Monmouth County court and [Judge] Lawson have been.

"This means they are not shutting the doors on us," Vendetti said, adding, "This is really good news to get just before the holidays."

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Long Branch NJ Atlanticville: http://atlanticville.gmnews.com

Eminent domain needs changes - Task force, county commissioner claim power being abused: Farmington NM Daily Times, 11/22/06

By Cory Frolik
The [New Mexico] Governor's Task Force on Responsible Use of Eminent Domain released a 24-page report on eminent domain issues in the state, recommending that [the state]revise its current legislation governing its use.

According to the report, current law creates the potential for governmental abuse by promoting private economic development by the government seizing private property through the use of eminent domain. As a result, the task force recommended the state law be changed.

San Juan County Commissioner Tony Atkinson was a member of the task force and says he is proud of the decided recommendations. Atkinson voted in favor of restricting government power, citing his belief that there is some power the government should not have.

"I simply do not trust (unchecked power). I've been involved in government too long to entirely trust it," he said. "Property rights are extremely important in my way of thinking. There is a time when you absolutely have to (use eminent domain). But a new subdivision or new Wal-Mart is not one of those times."

But Atkinson fears the recommendations may not be enacted. He says the majority view was won by a relatively slim margin (10 to 3) and added there is a possibility that the governor could ignore the task force's proposals.

The task force recommended repealing the urban renewal law and community development law as well as removing the eminent domain authority from the Metropolitan Redevelopment Act (MRA).

Current New Mexico law states that "a municipality shall have the right to acquire by condemnation any interest in real property, including a fee simple title thereto, which it may deem necessary for, or in connection with, a metropolitan redevelopment project under the Redevelopment Law. A municipality may exercise the power of eminent domain in the manner provided by the Eminent Domain Code, or when found appropriate by the governing body."

To date, Rio Rancho is the only government entity in New Mexico to utilize the power of eminent domain for development purposes. But Atkinson and other task force members fear other entities might use the power.

At least for now, however, Atkinson said San Juan County and its metropolitan areas are particularly dedicated to avoiding such abuses.

"In the 30 years I've worked with the county the only project (we used eminent domain) is the 350 highway across Crouch Mesa. People didn't like the project from day one and they would not consent. They were adamant about it," he said. "That was a last resort. Most everyone seems to understand that situations like that are going to happen."

The report mentions possible plans for redevelopment in Farmington and how the city has shied away from considering using the power provided by eminent domain.

"In the city of Farmington, a metropolitan redevelopment plan is currently being considered to revitalize private and public property in the downtown area. That plan calls for a public-private partnership, which would encourage business activity and relocation to the city's primary commercial district. Interestingly, the City Council will not use the power of eminent domain to further the project. According to testimony presented to the task force, the City Council believes that property owners are more likely to embrace redevelopment if not faced with the fear of condemnation," the report states.

The majority of task force members concluded that eminent domain is not required to promote economic redevelopment and revitalization in the state. There are other condemnation powers allowed under other state laws that will suffice in providing governments with the power they need without overreaching their authority, the majority decided.

There are at least two other statutes that use eminent domain. But, as Atkinson pointed out, these statutes, which were not touched by the task force, allot such power only for the purposes of public projects, road projects, health and welfare, and utility lines.

Other recommendations by the task force include creating additional protections, which include refining the definition of slum and blight areas, improving notice and hearing procedures, and providing relocation and transition assistance for uprooted property owners.

The most important recommendation, Atkinson said, was to remove eminent domain from the MRA.

These members cited the subsequent inability of governments to improve conditions in their cities and urban sectors. This group asserted that the MRA already requires governments to prove the need for the condemnation and the use of private property through eminent domain.

To date there is no indication that the governor will heed the consultation of the task force. Still, Atkinson is hopeful that the governor will listen to the task force's advice since he plans on addressing a number of legislative committees on its findings before the next legislative session.

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Farmington NM Daily Times: http://www.daily-times.com

Broward may end effort to seize church in Fort Lauderdale for recovery center: South Florida Sun-Sentinel, 11/22/06

By Brittany Wallman
Broward County [FL] will consider dropping a two-year effort to force the sale of a church in southwest Fort Lauderdale to make room for a drug and alcohol treatment center.

Commissioner John Rodstrom told his colleagues Tuesday he decided to try to halt the lawsuit after learning a few days ago the county was using government condemnation powers against a religious institution.

County commissioners voted unanimously to hold a private session Dec. 5 to discuss ending the eminent domain lawsuit and to ask the judge hearing the case to put it on hold in the meantime. The county wanted the church's property at 330 SW 27th St. to build a new Broward Addiction Recovery Center for people with drug and alcohol problems.

If the county used eminent domain, it would have to pay for the property, which is appraised at $1.6 million. The county also would be responsible for the church's legal fees.

When county commissioners voted in 2004 to condemn the land, the church was a tenant on the property. The congregation is a rare church of Gypsies, or Roma. Gypsies are a nomadic people thought to have originated in India, now dispersed around the globe.

Rodstrom said the public no longer supports the use of eminent domain in a case like this against a nonprofit. He noted the Nov. 7 voter approval of a constitutional ban on government use of eminent domain for private development, unless it's approved by three-fifths of the state House and Senate. This case doesn't fit that description because it doesn't involve private development.

But Rodstrom said he thinks the public wouldn't support using it to trade one nonprofit for another. Rodstrom said he learned details of the case when he read about it last week in the South Florida Sun-Sentinel. "As district commissioner, it was never divulged to me at any time...that we were doing eminent domain against a religious institution," he said.

Rodstrom said the county could build its drug and alcohol treatment center on land it already owns on the same block by making the building taller.

Pastor Dan Tennis, who leads the Christian Romany Church, said he was encouraged by the news. His attorney, Brian Patchen, could not be reached for comment.

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South Florida Sun-Sentinel: http://www.sun-sentinel.com

Eminent domain foes should stop skewing facts: New York NY Daily News, 11/21/06

By Errol Lewis
Now that a small group of 10 homeowners and one business has filed a federal lawsuit to try to block the proposed $4.2 billion Atlantic Yards project in Brooklyn, it's more important than ever to separate reality from spin in the debate over how, when and why governments use eminent domain - the power to force people to sell their property to the government in order to make way for economic development.

Ever since the Supreme Court used a 2005 Connecticut case, Kelo vs. New London, to reaffirm a centuries-old practice in which governments can order the purchase of property in blighted areas through eminent domain and transfer it to private developers, opponents of eminent domain in Brooklyn and elsewhere have tried to paint a picture of state and local governments rampaging across the American landscape, seizing people's homes willy-nilly in thousands of cases and transferring the property to favored new private parties in secret, semicorrupt deals.

A conservative Washington-based legal group, the Institute for Justice - which brought, and lost, the Kelo case - says it has documented 10,282 wrongful uses of eminent domain between 1998 and 2002. This year, the institute claimed that after the Kelo decision, local governments "threatened eminent domain or condemned at least 5,783 homes, businesses, churches and other properties."

Those would be troubling statistics - if they were accurate.

In reality, according to Profs. Robert Dreher and Johan Echeverria of Georgetown Law School, the Institute for Justice's alarming numbers are little more than a quick-and-dirty count of media reports in which officials said eminent domain might be used. About 90% of those 5,783 cases were such speculative musings, and the group made no attempt to count when a study or public statement led to no further action.

The institute's statistics also are wildly inflated, counting individual properties in one project as separate uses of eminent domain. The alleged 10,000 cases of eminent domain actually involved only 222 projects, according to the Georgetown profs.

The fact the institute cooked the numbers comes as no surprise; the group has been pursuing a hard-right ideological agenda ever since opening its doors in 1991. The group's founder, Chip Mellor, has waged bare-knuckled legal battles for years to defend agencies accused of discrimination and trying to kill affirmative action. Mellor once worked for Clarence Thomas (whom he calls "a mentor").

The institute has gone on to lead high-profile fights to replace public education with a privatized voucher system and block the ability of unions to organize workers. And Mellor's group operates something called the Castle Coalition (as in "a man's home is his castle") - which masquerades as a grass-roots group battling eminent domain but actually is one more arm of the group, dedicated to the overall mission of protecting the conservative big-business interests who fund the institute.

Here in Brooklyn, groups like Develop Don't Destroy Brooklyn and bloggers who support the group's lawsuit against Atlantic Yards often post items from the Institute for Justice, including links advertising T-shirts the group sells. And they parrot the institute's fictitious claim that eminent domain is out of control.

The reality is that the Supreme Court has recognized eminent domain to be a crucial, seldom-used tool that enables local governments to arrange projects like Atlantic Yards that benefit the many and deliver "just compensation" to the few for their property.

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New York NY Daily News: http://www.nydailynews.com

RTM may limit town's eminent domain powers: Fairfield CT Minuteman, 11/22/06

By Chris Ciarmiello
Should the town [of Fairfield CT] be able to condemn private citizens' homes and turn the land over to developers if the developers build a private complex that creates jobs, generates tax revenue and, in general, benefits the town? The U.S. Supreme Court has responded with a controversial "yes" to that question, but the Representative Town Meeting could soon say otherwise.

A year and a half after the high court ruled that the city of New London could seize and demolish residential homes as part of a plan to redevelop the struggling area, the RTM is about to vote on legislation that would block such a practice in Fairfield. Under the ordinance, proposed by RTM member James Millington and co-sponsored by six Republicans and four Democrats, the town would be prevented from seizing private, owner-occupied residential property and giving it to developers for economic development projects, if the resulting development would be privately owned or controlled. The proposal was slated to be discussed at RTM subcommittee meetings this week after press time, and then be considered by the full RTM at its Nov. 27 meeting, scheduled for 8 p.m. at Osborn Hill School.

Last month, when presented to the RTM for the first time, the proposal was met with dissent from a few members, and Millington said recently that he was afraid the legislation might get bottled up in a subcommittee. "It is a great concern of mine that people are starting to show opposition to this," he said. While some say they can't imagine a scenario in Fairfield in which the town would take people's homes and turn them over to private developers, Millington said that shouldn't stop legislators from providing residents with protection. "We need to be looking towards the future and ... laying down a blanket of security for future generations," he said, adding that similar eminent domain limitations were approved by voters in eight states on Election Day.

RTM Majority Leader Douglas Jones, D-4, said Monday that, while some members are opposed to the ordinance, he had not heard of any plans to keep it from the RTM floor. Jones said he opposes the ordinance, which he called unnecessary "feel-good" legislation. RTM approval is already required any time the town wants to take land through eminent domain or condemnation proceedings, he said, meaning that the body will have a say should any future land seizure plans arise. "Let's vote on the merits [of individual proposals]," he said.

Landmark case spurs proposal
The motivation for the ordinance was the June 2005 U.S. Supreme Court decision involving New London. The case arose because the city was trying to use its eminent domain powers to seize several privately owned homes and give the land to developers who would create a complex that included a hotel, conference center, new homes, and office and retail space.

Under eminent domain statutes, the government can take private property, provided that it compensates the owner and uses the land for a "public use," such as schools or roads. While the New London development would not be publicly owned or operated, or even fully accessible to the public, the high court ruled that the land seizure fell under the "public use" provision because it was part of a plan to generate jobs and tax revenue for the struggling city. The court's 5-to-4 decision set off a firestorm of controversy, with many saying that it had gone too far in giving the government the right to take people's land.

First Selectman Kenneth Flatto said recently that he supports the local ordinance proposal. "I think it's a reasonable safeguard," he said, though he added that he could not imagine the town ever trying to take people's homes and give them to a private developer. "I do think it is somewhat redundant," he said, but he added that if the legislation makes people feel safer, there is nothing wrong with it.

While there may be no current threat to residential homeowners, Millington said the RTM should still pass the legislation now, rather than wait until it is too late.

Some have discussed having the ordinance apply to the taking of commercial property as well, but Millington said he only wanted the legislation to address the issues raised by the New London decision, which focused on residential property.

The ordinance also applies only to homes whose owners live in them. It also does not apply to properties that contain five or more homes, because such properties are defined as commercial under real estate laws, Millington said. He said the proposed ordinance mirrors legislation approved in Milford and other Connecticut towns.

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

Lawmakers Want Constitution To Limit Eminent Domain: WCPO-TV9, Cincinnati OH, 11/22/06

By Associated Press
Ohio voters may get to decide next year whether to limit government's ability to seize private property.

State lawmakers are considering putting a constitutional amendment on the November 2007 ballot that would prevent people's homes from being taken to make way for economic development.

In July, the Ohio Supreme Court ruled unanimously in a case from the Cincinnati suburb of Norwood that private development isn't a sufficient reason for seizing homes under the state Constitution.

Across the nation, property rights advocates have praised the ruling, which frustrated developers and city officials.

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WCPO-TV9, Cincinnati OH: http://wcpo.com

Penn Twp. family fights eminent domain: The Hanover PA Evening Sun, 11/21/06

By Ashley Adams
Dana Heston and her husband Bill are happy with their four-bedroom, two-bathroom brick home on the corner of York and Center streets in Penn Township.

The two say it is a perfect fit for their six children.

Over the eight years they've lived there, Dana said the family has made many improvements, such as building a garage out back and remodeling most of the inside.

But now they could lose their home to eminent domain.

The Hestons went to the Penn Township Commissioners meeting Monday night to get answers but left with nothing resolved.

"You guys haven't given us a time to discuss this issue," Dana Heston said. "We asked to be put on the agenda and you didn't do that. I deserve and we demand the right to defend ourselves and our home. You meet with the developers, but you won't meet with us."

Commissioner Joe Klunk said the public-comment portion of the meeting is not the appropriate time for a discussion with the commissioners. He told Dana and Bill Heston if they didn't have anything further to comment on, they should sit down so the meeting could continue.

Dana and Bill Heston left the meeting angry and upset.

Paul Burkentine of Burkentine & Sons Contractors Inc. is planning to build a development called Brookside Heights on a 40- to 50-acre tract of land to the rear of the Heston property. He has been working on the project for four years.

Burkentine said a traffic study performed during the planning process showed a signal light is needed at York and Center streets, right by the Hestons' home.

Burkentine offered to pay for the signal, which he said is needed because of the increase in traffic – not only from his subdivision, but from other subdivisions that have sprung up in surrounding areas in recent years.

Penn Township Manager Jeff Garvick said the need for a traffic light at the intersection of York and Center streets dates back to the 1970s. Garvick pulled out the township's comprehensive plan as proof.

"Traffic counts continue to increase," Garvick said. "This is not something we just pulled out of our hats."

Changes to the intersection would include adding left-turn lanes on York Street, widening Center Street to 34 feet and widening York Street to 35 feet. Because both streets will be widened, right-of-way easements at the intersection are needed.

So Burkentine went about the task of acquiring the necessary easements on all four corners of the intersection. He secured easements and rights of way on three out of the four corners.

"Everyone was good to work with, it just took time," he said.

The only property left to acquire is the Heston home.

Dana Heston said her family is willing to move, but they want the fair-market value for their home – something, she said, hasn't been offered to them.

Two years ago, she said, Burkentine came to the family, explained the situation and offered to buy the property for $160,000. He also offered to give the family another property he owned that's similar to their current house.

Dana Heston said her family was willing to take the offer, but it was suddenly taken off the table and another offer of $132,000 was given. Dana and her husband just laughed at that. Their home was last appraised at $161,000. They countered Burkentine with a new asking price of $350,000.

"This is our home," she said. "We want a fair price for it."

Since then, Dana Heston said, Burkentine will not answer her calls nor calls from the family's lawyer. As far as she is concerned, the deal is off.

But Burkentine said the final offer for the Heston home was between $160,000 and $165,000 and he has continued to try and negotiate over the past two years but the family isn't answering his calls.

So, as a last resort, Burkentine went to the township for help.

Garvick said the township was trying to stay out of the negotiations between the developer and landowner. But since an impasse has been reached, there is nothing else the township can do but take the property by eminent domain, he said.

"The commissioners are not happy about having to do this," Garvick said.

The Fifth Amendment to the U.S. Constitution gives the federal government the right to take private property for public use as long as just compensation is given. The due-process clause of the 14th Amendment allows a state or local government body to take private property with just compensation for the good of the public.

Garvick said the improved intersection at York and Center streets is sorely needed and a major benefit to the safety of the community.

"This signal is necessary in order for us to continue to grow as a township," Garvick said. "It is a matter of individual right versus collective good. Bill and Dana are great people. I feel bad."

But Dana Heston and her family are still mad. Their home is being taken and they blame Burkentine and Penn Township. Dana said someone needs to speak up against the township taking properties for the benefit of developers.

Burkentine, on the other hand, doesn't feel he deserves to get the blame.

"This is an off-site improvement we are offering to do," Burkentine said. "The big thing is that this is something being done for the safety of the community. We are helping the township by paying for this improvement."

Garvick said the commissioners have not voted on whether to approve an ordinance of condemnation for the house yet. Once that is done, the township will make an offer to the Hestons and proceed with the eminent domain.

"There are laws to handle this sort of thing," Garvick said. "We are going to let the laws handle this."

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

Stay granted in eminent domain case in Long Branch, N.J.: New Jersey Eminent Domain Blog, 11/20/06

By William Ward
he Appellate Division of the New Jersey Superior Court granted the request of property owners Louis and Lillian Anzalone for a stay of the eminent domain action threatened against their home located at 32 Ocean Avenue, Long Branch, New Jersey. The Order for Stay, signed by presiding judge Jack L. Lintner, will prevent Long Branch from seizing the Anzalone property while the appeal is pending. The City of Long Branch also filed a motion to accelerate the appeal. That motion was denied.

Superior Court Assignment Judge Lawrence Lawson previously denied a stay to the property owners in the MTOTSA neighborhood in his 60-page opinion issued on June 22, 2005 (http://www.njeminentdomain.com/state-of-new-jersey-kelo-anniversary-the-eminent-domain-abuse-saga-continues.html). The decision of the Appellate Division is significant because the property owners had to demonstrate a probability of success in the merits of the appeal in order to meet the standard for obtaining a stay. Stays are not automatically or routinely granted in condemnation matters.

This is a significant victory for the property owners and bodes well for a favorable decision on the merits of the case. For both orders of the court: http://www.njeminentdomain.com/ANZALONE-MOTION%20FOR%20STAY.PDF

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

Camden needs eminent domain: South Jersey Courier Post, 11/19/06

Commentary
By Arijit De
In a recent front-page article in the Courier-Post, an attorney with South Jersey Legal Services argued that all of the plans to redevelop Camden should be stopped while the governor names a new chief operating officer.

As the article noted, Legal Services opposes any redevelopment project which calls for the city to use the power of eminent domain. The position taken by Legal Services is shortsighted and threatens to prevent the revitalization of "America's poorest city."

The problems in Camden are well known: poverty, crime, a failing educational system, low tax base, etc. The problems are so severe that Camden is the only city in New Jersey under state supervision. COO Randy Primas, who recently announced his resignation, recognized that the city could not be revitalized without comprehensive redevelopment plans.

Efforts halted
However, his efforts to revitalize the city have been stalled by lawsuits filed by Legal Services. Legal Services has taken the extreme position that there should be no redevelopment in Camden if it involves the relocation of even one family. When Legal Services filed suit to block the Cramer Hill redevelopment plan, a mediation session was quickly arranged with a retired appellate judge. The mediation failed because the Legal Services attorney told the judge she would not negotiate if the redevelopment plan included the use of eminent domain to acquire even one occupied residential property. The judge commented on the unreasonableness of her position and quickly adjourned the mediation.

Legal Services has taken similar and equally extreme positions regarding redevelopment plans for Waterfront South. Legal Services objected to the use of eminent domain in this environmentally challenged neighborhood, even though more than 40 residents of the homes targeted for acquisition asked [to be], and in fact have been, relocated.

Legal Services has taken the same position in Bergen Square, arguing that this neighborhood, where more than 50 percent of the properties are vacant and which has lost more than 13 percent of its population in the last 10 years, is not in need of redevelopment.

Change needed
No reasonable person would dispute that Camden needs drastic change. It needs to rebuild its tax base and bring back its middle class. The redevelopment plans promoted by Primas would do just that. And, the plans provide that residents will be relocated in similar homes in their neighborhood. There is certainly room in Camden for more people - the population of the city has dropped by more than 45,000 over the last 50 years.

Of course, Camden and other distressed cities cannot be revitalized with only public funds. The state of New Jersey already provides Camden with most of its operating budget, but clearly will not provide sufficient funds to rebuild the city. Furthermore, there is little federal aid available for urban renewal.

Private investment is the only way Camden can be revitalized. Private redevelopers will not get involved in Camden or any other distressed/urban area unless there is an opportunity for a profit. Redevelopment on the scale that is needed in Camden cannot be accomplished unless land is assembled for a redeveloper. Land cannot be assembled for redevelopment unless a municipality has the power of eminent domain.

Court decision
Legal Services and other opponents of eminent domain have been mobilized since the Supreme Court decision in Kelo v. City of New London, Conn. Retired Justice Sandra Day O'Connor, in her dissent, criticized the majority's decision because it would allow a city to acquire and demolish a Motel 6 in order to build a Ritz-Carlton. Camden of course has no Motel 6 - or any other hotel or motel for that matter.

While eminent domain may or may not have been abused in New London or other suburban towns, the situation in Camden is totally different. While the number of homes which need to be acquired by eminent domain may be debatable, the necessity of the city's power to use it is not. Those who blindly oppose any redevelopment in Camden if it includes the possible use of eminent domain for even one residence are ensuring that Camden will continue to deteriorate. The power of eminent domain must be available if the city is to move forward and lose the label of "America's poorest city."

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South Jersey Courier Post: http://www.courierpostonline.com

Arijit De is executive director of the Camden Redevelopment Agency:
http://www.camdenredevelopment.com

How to handle eminent domain disputes: Des Moines IA Business Record, 11/19/06

Opinion
By Rick Carter and Larry Curtis
You are notified that your city government is interested in buying your property "at a reasonable price." The area is to be developed into a shopping and entertainment quarter. You and your neighbors live in a quiet, peaceful part of town, close to amenities. But you know that if a settlement is not reached between you and the city, the city might be able to take your property anyway through "eminent domain." The city argues that, although little of the area has actually been claimed by developers, this is the best area for development. Besides, it fits well with the city's Conceptual Development Plan.

The way you see it is that because of a distant promise of increased tax revenues and growth, the city is destroying a wonderful neighborhood. The city council has no visible incentive to ensure that growth will actually materialize and little reliable expertise in knowing or understanding what really works. The city leaders are relying on engineering and economics staff people who might know very little more. You cannot help wondering if someone in the government has been offered private incentives to open the area to development.

The mayor and council, on the other hand, want to make real progress during their watch. They see your neighborhood obstructing commercial expansion by sitting in the path of the growth the CDP promises. By opening this area rather than an undeveloped section, new street access and utility trunk lines will not be necessary. Moreover, a number of developers have expressed interest in the area. They can only see the good in the exercise of eminent domain if necessary, resulting in lower taxes for residents and new and exciting facilities for the community.

Who is right? Both sides have valid points, but there are realities:

1. Governments have no immediate and direct incentives to ensure positive long-term growth. Hence we must trust in their dedication to the common good, yet be watchful for ulterior motives,
   
2. Few have the expertise and experience to predict what specific part of a city will be most attractive to future business, or fit best with future product and service delivery modes. Interference with natural market progression may result in negative consequences,
   
3. Many developers do not know when to stop. An example is Houston in the 1980s. Once they are done with one project, they will pour themselves into the next. After all, developing is what they do,
   
4. Business development increases the tax base and often improves employment. Business taxes are more efficient than residential. For every tax dollar the city receives, it pays out $1.22 in services for residential properties but only 30 cents for commercial.
   
5. With growth come problems: more traffic, more demand for services - water, police, fire protection, snow removal, etc.

What is the solution? We are firm believers in markets. Unimpeded, they can work for the public good. But is it good to handcuff local governments with laws that can suppress progress? The solution is in the community itself. We all must be mindful of what is happening to our city and our citizens. With open-meeting laws, access to all kinds of information and the ability to meet with members of government at every level, there is little excuse to let city officials ramrod their plans for the future through to fruition. No project can be completed without community support - either directly or by lack of opposition.

When someone else's neighborhood is threatened by eminent domain, you must ask yourself two questions:

1. Is this right for our community?
   
2. Will they be coming for my house next?

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Des Moines IA Business Record: http://www.businessrecord.com

Rick Carter (rbcarter@iastate.edu) is a professor of finance, and Larry Curtis (lrcmayor@iastate.edu) is adjunct assistant professor of accounting in the College of Business at Iowa State University:

Proposed charter amendment in Creve Coeur targets eminent domain: St Louis MO Post Dispatch, 11/17/06

Supporters gather signatures to put measure on ballot
By Erin Taylor
Several Creve Coeur City Council members spent part of Election Day last week collecting signatures at polls to put a proposal regarding eminent domain on a future ballot.

The goal would be to amend the city charter to require a "supermajority" of council votes to approve the use of eminent domain.

Councilman David Kassander, Ward 3, said preliminary counts indicate proponents exceeded the 1,250 signatures needed to put the issue on a future ballot.
If approved by voters, a supermajority of six council members - rather than five - would be needed to authorize the use of eminent domain in the city

The group spearheading the proposed charter amendment is made up of four council members - A.J. Wang, Ward 2; Kassander, Ward 3; Jeanne Rhoades, Ward 4; and Laura Bryant, Ward 4 - as well as several city residents.

There have been ongoing disputes in the city regarding the use of eminent domain, due in part to the Olive Boulevard Transportation Development District (TDD). A city task force was created late last year to study the issue and make recommendations.

Within the TDD, an additional sales tax is levied on retail sales to fund infrastructure improvements along Olive Boulevard.

The task force made several recommendations, one of which states that eminent domain should not be used unless the action is "not primarily for economic development purposes."

At a task force meeting in June, Susan Murphy, who served on the task force on behalf of the Creve Coeur-Olivette Chamber of Commerce, said she did not agree with a simple majority vote to approve the use of eminent domain for projects relating to economic development.

A simple majority vote would be acceptable if the project were to benefit the public overall rather than a developer, Murphy said.

A motion at the same meeting, recommending a supermajority vote to approve any use of eminent domain, was defeated.

A bill introduced at a City Council meeting in September that would have allowed placing the proposed charter amendment on the Nov. 7 ballot received the support of five council members but did not pass.

"The Creve Coeur City Council has been extremely divided on the issue of eminent domain, particularly with three council members and the mayor sitting on the Olive Boulevard TDD board," Kassander said.

"We just don't want to risk the council voting this down again," he said. "Our goal is to provide Creve Coeur voters with a genuine opportunity to be heard on this vital issue that directly or indirectly affects us all."

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St Louis MO Post Dispatch: http://suburbanjournals.stltoday.com

Eminent Domain Fight Not Over Yet, Say Supporters: San Diego CA Business Journal, 11/20/06

By Michelle Mowad
The ability of government to take private property for public use was challenged in the Nov. 7 state election [in California]. And while current eminent domain law was upheld, many believe the fight for reform is far from over.

Proposition 90 asked voters if state law should be amended to limit government’s ability to take private property through eminent domain. Though 53.6 percent of San Diego voters voted in favor, only 47.6 percent of voters statewide supported the measure.

Supporters argued the ballot measure would stop government from taking property through unfair use of eminent domain and without just compensation.

Opponents said Proposition 90 would enable landowners and corporations to demand huge payouts from state and local taxpayers and halt construction of needed projects.

Ruben Garcia, district director for the U.S. Small Business Administration’s San Diego District Office, said he expects this issue to remain on the minds of local business owners for the foreseeable future. He said many were relieved that the proposition failed while others remain concerned.

“I don’t think that the eminent domain reform is going to go away,” said Garcia. “I think there are too many people that are concerned about government being able to take land and not pay market value or give proper compensation.”

Garcia said proponents argued that without the use of private land for public growth development will come to a halt.

Bruce W. Beach, partner with the San Diego office of Best Best & Krieger LLP, criticized Proposition 90 by stating it was too broad and poorly drafted.

Beach, who represents public and private clients in eminent domain proceedings, said many changes have already been implemented by the Legislature to address criticisms in the process.

Changes include covering property owners’ costs to have appraisals conducted if they choose not to settle, and a clause for property owners to be able to buy back their property if it is not used within a set time period.

“Parts of Proposition 90 would have dramatically changed the way eminent domain was done in this state and almost all other states,” said Beach. “Proponents intended to keep public agencies from using eminent domain by making it so expensive that it would be almost impossible to use.”

The Centre City Development Corp., San Diego’s downtown planning and redevelopment agency, has used eminent domain for numerous projects both public and private.

The CCDC acquired 56 properties for Petco Park from 1998 through 2003 and 33 properties for the development of Horton Plaza in the late 1970s through early 1980s.

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San Diego CA Business Journal: http://www.sdbj.com

Legislature, governor tinker with eminent domain: Sacramento CA Bee, 11/17/06

Opinion
By Timothy Sandefur
The U.S. Supreme Court's notorious 2005 decision in Kelo v. New London allowed state and local governments to condemn private land and transfer it to developers to construct shopping centers or other private development. The ruling led to a nationwide outcry, and last week voters in nine states adopted new restrictions on eminent domain to prevent such abuses.

In September, Gov. Arnold Schwarzenegger signed five bills that he claimed would rein in abuses of eminent domain in California. Unfortunately, these laws accomplish little - they simply tinker with procedural details while leaving the state's abusive redevelopment industry intact.

For example, SB 1206 is supposed to narrow the legal definition of "blight" - an important step because current law defines that term so vaguely that virtually anything can qualify. Once politicians declare a neighborhood "blighted," they can use eminent domain to take any land there and give it to developers.

However, the new law does not fix the problem. Instead, it allows officials to declare property blighted whenever they think there are "abnormally low lease rates," "conditions that prevent or substantially hinder the viable use or capacity of buildings" or "nearby incompatible land uses that prevent the development of ... the project area." What qualifies as "viable," "abnormal" or "incompatible" is still left to politicians to decide.

The bill also requires cities to file various reports whenever they propose to redevelop neighborhoods, but in practice, this does virtually nothing to restrict their almost unlimited power to redistribute land.

SB 53 is even less effective. Under current law, once a neighborhood is declared "blighted," that designation applies indefinitely, allowing officials to seize the land at any time. But while the new law claims to put a time limit on blight designations, it actually gives government unlimited authority to renew them at any time. Nor does it put any actual limits on eminent domain. In fact, SB 53 declares that cities "may" refrain "from acquiring by eminent domain specified types of real property, including ... residential property." That's right - politicians "may" decide not to take your home. But if they want to, this new law won't stop them.

SB 1210 requires government to pay a property owner's attorney's fees if a court later finds that the government failed to offer the owner a reasonable amount for the land. How come it doesn't define "reasonable" or change existing "quick take" rules that unfairly block property owners from challenging the government's right to seize their land in the first place? "Quick take" procedures allow government to take land immediately by depositing the amount it estimates the property to be worth into a bank account controlled by the court. Property owners are not allowed to touch the money unless they waive their right to challenge the taking. Given such rules, most property owners - knowing how hard it is to beat city hall - take the money and give up. The new legislation leaves this unfairness in place.

SB 1650 and SB 1809 are even less limiting on eminent domain. The first restricts government's power to change the use of land after it has been taken, and the second requires government to file a disclosure notice with a county recorder when it targets a neighborhood for redevelopment.

But neither creates any actual protection for people whose homes and businesses might be taken by bureaucrats who want to give that land to someone else.

According to a June report by the Castle Coalition, the nonprofit group that litigated the Kelo case before the U.S. Supreme Court, California officials have seized 50 properties for transfer to private developers and have threatened to condemn 296 more in the 16 months since Kelo was decided.

In that same period, more than half of the other states have enacted new restrictions on eminent domain. Yet California's lawmakers don't seem to think the issue is important enough to act. They spent 2006 shooting down any attempt at genuine reform, substituting instead these five insignificant changes that leave home and business owners vulnerable to unfair takings.

Meanwhile, Proposition 90 - a clumsily written attempt to restrict eminent domain abuse - was narrowly defeated at the ballot box last week. That initiative would have provided powerful protection against use of eminent domain for wholesale "redevelopment," and would also have required government to compensate property owners when it deprives them of their property rights through regulation as well as when it uses eminent domain to take their land outright.

This is a controversial idea, yet despite that fact, and despite the initiative's many technical flaws, about 3.3 million Californians said "yes" to it, indicating they are outraged over government's ravenous appetite for land. Window dressing like the five new eminent domain laws is unlikely to appease their desire for reform.

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Sacramento CA Bee: http://www.sacbee.com

Timothy Sandefur is a staff attorney at the Pacific Legal Foundation, specializing in eminent domain, and author of the book "Cornerstone of Liberty: Property Rights in 21st Century America" - tms@pacificlegal.org

Eminent domain off the map in Harrison: Gloucester County NJ Times, 11/17/06

By Matthew Ralph
The [Harrison NJ] township planning board inserted language specifically opposing eminent domain in an open space and recreation plan Thursday, after hearing concerns over a map of proposed greenways along environmentally sensitive areas included in the plan.

The amended plan, originally presented to the board by the Delaware Valley Regional Planning Commission (DVRPC) more than a year ago, will be included in recommendations the planning board will eventually propose to the township committee as part of an ongoing master plan review process.

The open space plan was one of several items the planning board reviewed at the first of at least two public meetings for the master plan review held Thursday night at the Toscano Center at Clearview Regional High School. About 150 people attended the meeting, which included a presentation about a proposed Richwood Town Center and a discussion of raising minimum lot sizes. A second public meeting to discuss the master plan review is scheduled for Nov. 27.

Several residents in attendance raised concerns over the greenway map, which was characterized by officials as a "guideline" and "wish list" to use for future conservation and open space planning.

Andrew Worick, who owns a horse farm on North Main Street, said he was concerned that having his property included on the greenway map would diminish its value and encourage trespassing. He said he was also concerned about what he characterized as a vague and open-ended map.

"I'm not ready to have (my property) tampered with unless you tell me something more definite," Worick said, expressing a concern that the map would open up the door for possible use of eminent domain in the future.

Other property owners who spoke expressed concern that the greenway would open the door for trails to be forced upon private land owners.

"What scares me is the power a guideline has," said Bernadette Simonetti, a High Street resident.

Suzanne McCarthy, a planner for DVRPC, said the greenway map would not take away any rights from property owners, but rather guide the township in approaching land owners to discuss preservation. She said any action within the greenway would have to be done strictly on a voluntary basis.

"Greenways are not a trail," McCarthy said. "It doesn't involve the taking of land. The open space plan is a pre-approved list of land that could be preserved."

Mayor Phil Rhudy, who sits on the planning board, suggested the inclusion of language in the open space that eminent domain would not be used to preserve any properties included in the greenway map. The plan already included an action plan outlining a preference for property acquisition using open space funds.

The township started a land preservation committee earlier this year that has already successfully negotiated with three property owners using money from a dedicated municipal open space tax to purchase easements and additional features of property to add to the pool of money offered by state and county preservation programs.

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Gloucester County NJ Times: http://www.nj.com/news/gloucester

N.J. Judge Suggests Eminent Domain For Takeover Of Beach: NBC-TV10, Philadelphia PA, 11/17/06

Government officials from the state of New Jersey who want to force five Surf City residents to give them permanent access to the beach are between a rock and a hard place.

A judge says the state's attempt to control the privately owned land in perpetuity is too long a time.

The judge is suggesting the state seize the land through eminent domain. In that case, the state would have to pay for the property.

The state says the federal government is insisting on permanent access as part of its beach replenishment program.

The property owners say signing over rights forever amounts to an illegal taking.

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NBC-TV10, Philadelphia PA: http://www.nbc10.com