Frenchtown developer is 'in this for the long haul': St Louis MO Post-Dispatch, 2/12/07

By Mark Schlinkmann
Acquiring property [in St Charles MO) for a mixture of new homes, shops, restaurants and offices in the city's historic Frenchtown area has gone more slowly than planned, but the developer still hopes to carry out the project.

"We're in this for the long haul," said Kim Paris, project manager for New Melle-based Griffey Construction. "If people are willing to sell at a price that keeps the project viable, it will happen. If they feel they all need to be millionaires, it won't happen."

The City Council voted last May to declare the 15-acre site, along and near the north end of North Second Street, blighted.

Griffey had hoped by now to be on "the verge of breaking ground" on the project, Paris said. However, the company so far has acquired only two properties, both vacant.

Paris said the delay was due partly to the council's decision last year to limit the use of eminent domain for the project.

A key restriction exempts several existing businesses from being forced to sell under threat of city condemnation. That, Paris said, has made it difficult to come to agreement on sale prices with their owners.

Eminent domain can still be used if needed to acquire some other property, such as buildings considered nuisances or beyond repair.

Meanwhile, the developer has yet to submit a formal redevelopment plan to the city.

The plan, which needs council approval, could include property tax breaks. Other developers are allowed to submit alternative proposals for the site, but none has done so.

Paris said Griffey is waiting until after the April 3 municipal election to submit its plan. Voters will choose a mayor, and eight of the 10 seats on the council will be contested.

"We've come too far to hold this out as a political pinãta," she said. "We're waiting to see what the lay of the land is (politically) and to let things calm down."

Last year, the Frenchtown blighting issue drew crowds of supporters and opponents to City Council meetings.

Members of a neighborhood booster group called CPR — Citizens Promoting Redevelopment — said a large-scale, city-aided effort was needed to combat long-festering problems of blight and that a piecemeal approach won't work.

Opponents, a mixture of business owners in the redevelopment area and eminent-domain foes from other parts of the region, said forcing anyone to sell property would be unfair. The council approved the bill but added the restrictions on eminent domain.

The redevelopment site includes vacant lots and buildings, including some owned by the city, but also businesses such as auto-repair shops and used car lots.

The southern end of Second, which is dotted with restaurants and antique shops is outside the redevelopment area.

Councilman Rory Riddler, whose 1st Ward includes the area, said he's eager to see the project go forward.

"I had pushed them a little bit," he said. "They asked if they could have the first quarter (of the year) to finish putting something together."

One CPR member, Mark Nitchman, said he and other supporters in the neighborhood remain hopeful that the project will be built.

He said he has faith in the developer's commitment to the area, which was established in the 1700s and is known for the remaining French flavor of some of its architecture.

"Hopefully, it's not dead," Nitchman said of the project. "It's standing still for a minute."

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St Louis MO Post-Dispatch: http://www.stltoday.com

Jackson may take land for housing: Asbury Park NJ Press, 2/12/07

Township wants owners to sell
By Fraidy Reiss
Some 80 years ago, Roger Gilbert's great-grandmother won a small piece of land in [Jackson Township NJ] as a door prize from a New York City theater.

Since then, the 20-by-100-foot parcel, which lies in the woods just north of West County Line Road, has been passed down in his family through four generations, he said. Gilbert inherited the lot from his father about a decade ago, and he hopes one day to give it to his son, David, who is now 15.

"The land itself is so small, it's not really worth a lot of money," said Gilbert, 52, who lives in Bethlehem, Pa. "It's strictly sentimental value."

But the Gilbert family tradition may end before David inherits the land.

The town wants to acquire Gilbert's lot and 22 other small, undeveloped parcels in the area so it can build affordable housing. And under the terms of an ordinance scheduled for a public hearing on Tuesday, the town would acquire the lots either by negotiating with the property owners or by invoking its power of eminent domain.

That power gives government the right to take private property for a public purpose, after paying the owner just compensation.

To Gilbert, though, that power is "un-American."

"It goes against my very upbringing as a U.S. citizen, this eminent domain," he said. "It's wrong for a township to come in and take (property) without getting the approval of the people."

Solar Avenue project
The project for which Jackson plans to acquire Gilbert's and other lots, called Solar Avenue, calls for 100 low- and moderate-income rental units, said John Russo Jr., the township affordable-housing attorney. The units would be built on 20 acres north of West County Line Road and west of Christopher Columbus Boulevard.

The units would partially fulfill the town's affordable-housing requirement, set forth by the state Council on Affordable Housing, Russo said. He added that Jackson's COAH requirements are the second-highest in the state, behind Toms River.

If the town acquires all 20 acres, it will sell them for $1 to an affordable-housing developer, Russo said. The developer then would apply for funding, build the rental units and manage them, he said.

Acquiring the land
Jackson already owns more than half of the 20-acre area on which the Solar Avenue project would be built. The town acquired several parcels as a result of property tax defaults, and last month it purchased another 10 acres, Russo said.

That purchase, from co-owners Barbara Klein Halpern of West Long Branch and Eva Mermini of Tinton Falls, closed on Jan. 24 and cost the town $250,000, said Kevin Starkey, the attorney who represented the town.

Jackson paid for the 10-acre property with affordable-housing fees it has collected from developers over many years, Russo said. And over the next few months it hopes to use the same money to acquire the remaining 4.15 acres of the 20-acre site, he said.

"No taxpayer money is used to fund this project," Russo said.

The 4.15 acres consist of lots ranging in size from .04 acres to .64 acres.

Other New Jersey towns have used their power of eminent domain to take property for affordable housing, said attorney Peter H. Wegener of Lakewood, who represents Long Branch homeowners fighting eminent domain in their town.

"Whenever you get involved in taking property from one individual to give (to) another individual for residential purposes, you have a questionable situation," Wegener said.

However, the Solar Avenue situation is not as "black and white" as the one in Long Branch, he said. The 23 lots Jackson wants to acquire are vacant, he pointed out, and they are difficult to develop because they are so small.

Jackson would offer to pay fair market value, as determined by an appraiser, to the 16 owners of the 23 lots, Mayor Mark A. Seda said. Officials plan to use eminent domain only as a last resort, if any owners refuse to sell, he said.

"I don't want to do it, but if I have to, I will," Seda said.

Birthday gift
Chris Rosetto is not sure if he wants to sell.

The 47-year-old Toms River resident received a small piece of vacant property when he turned 14, as a birthday gift from his father. He remembered bringing his friends to the wooded 20-by-100-foot lot and telling them he would live there some day.

"They laughed at me," he said with a grin.

Now Rosetto is "disappointed" to learn Jackson wants to acquire his lot — and if he does not agree on a purchase price, the town will resort to eminent domain, he and his wife Myrtle said.

"I never heard of your property being taken away from you, for what the government thinks you should have, to build a house for somebody else," Myrtle Rosetto, 49, said.

"It's unbelievable," Chris Rosetto agreed. "That's your government, though."

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Asbury Park NJ Press: http://www.app.com

Arroyo Grande drops eminent domain, roundabout idea: Santa Maria CA Times, 2/12/07

By Josh Petray
A preferred alternative for the Brisco Road-Halcyon Road interchange remains to be decided after the use of eminent domain to acquire land and relocate 200 to 250 gravesites for a roundabout has come to a halt.

“After all the concerns were discussed, it looks like we likely will not be pursuing the roundabout option in terms of any additional study at this time,” said Arroyo Grande City Manager Steve Adams.

Councilman Jim Guthrie said the roundabout was identified as a cheaper alternative in the range of $5 million, versus as much as $15 million or more for other options.

According to city officials, the roundabout option could have mitigated the need to widen the Brisco Road undercrossing at Highway 101.

Guthrie, along with Mayor Pro Tem Ed Arnold, both said they are not in support of moving forward with the roundabout option.

“I think that would be just bad policy if we were going to start condemning gravesites,” Arnold said.

Guthrie and Arnold met with representatives of Arroyo Grande Cemetery District and Brisco's Hardware to discuss the roundabout after a proposed $25,000 contract for a feasibility analysis and an environmental document for the project was voted down Jan. 9 by the City Council.

The Cemetery District and Brisco's Hardware both abut the intersection and neither support the roundabout.

If the city were to pursue the roundabout, it might be necessary to acquire cemetery land by means of condemnation, according to Adams.

It's land where an estimated 200 to 250 graves currently sit, according to Mike Marsalek, general manager of the cemetery.

Arroyo Grande Cemetery District board member Tom Runels said gravesite relocation would cost about $6,000 to $8,000 per grave.

That doesn't sit well with the district board, whose members said they've received a handful of calls in opposition to the roundabout and moving gravesites, Runels said.

“I would say, ‘Think about if your loved one was disinterred. That wouldn't be nice,'” Marsalek said. “You can see why we're against it. People would be outraged, and that's what a couple of people have said, that if anything were to happen to the cemetery ... it's kind of like, sacred, almost on a moral ground. It would almost be immoral to take away something like this.”

Said Marsalek, “Think about the legal problems with families with their loved ones - it's almost a moral issue, isn't it? We've had several calls from people. Nobody says, ‘Do it.' Everybody says, ‘Don't do it.'”

Brisco's Hardware owner Howard Mankins said 75-foot delivery trucks would have problems negotiating the roundabout and making deliveries to the store.

“On Fridays when our delivery time comes, we'll have a couple of trucks parked out on the street out there trying to get in,” he explained. “Well, they can't get in, so they have to wait until one gets out.

“Well, can you see a 75-foot truck in a roundabout, or a second one, or a third one, waiting to get into our parking lot?” he said. “Right now, they park on the street. We even go out now and halt traffic to get them in and out without a roundabout.”

Mankins suggested improvements to El Campo Road, south of Arroyo Grande, as an alternative to solving traffic problems at the Brisco Road interchange.

“We are getting an enormous amount of traffic from the Nipomo Mesa, and they come down Halcyon Road directly to the freeway right here at this intersection, and they could go over to El Campo and get on the freeway there if (an interchange there) were built,” Mankins said.

City officials have also said the roundabout option would likely trigger the need for a full environmental impact report, thereby delaying the project beyond the deadline to request 2008 State Transportation Improvement Program funds.

Adams said the city will come up with other options and select a preferred alternative in late spring or early summer.

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Santa Maria CA Times: http://www.santamariatimes.com

Ivy League University May Use Eminent Domain in West Harlem: Associated Content, 2/11/07

Is it Boon or Gentrification?
By Renee Morway
Fox News reported today that Columbia University may try to use eminent domain to acquire the 17 acres from 125th to 133rd Streets in New York City known as Manhattan Ville. The University claims expansion is necessary as it is currently only one-half the size of Harvard and one-third the size of Princeton and Yale.

According to Emerging Minds Magazine, Columbia is one of the city's largest landlords. The acquisition of Manhattan Ville would double the current size of the University's campus. Columbia plans to build a bio-chemical research center on the property, which would have five stories below ground level, potentially wreaking havoc on the environment.

Columbia has already acquired 85% of the area and is trying to cut a deal for the rest. According to the New York Sun, "The University has hired an outside organization to determine if the area is blighted. Such a determination would likely cause friction in part because the definition of blight is unclear and because the university is funding the study." The blight study may conceivably help Columbia to exercise the law of eminent domain to acquire the remaining 15% of the area if property owners were to hold-out.

One man clearly holding out is Nicholas Sprayregen. According to the New York Sun, he owns the largest chunk of any private property owner in Manhattan Ville. Most of it is devoted to his family's self-storage business and he has no interest in selling out, hoping instead to pass his business on to his children.

In addition to Mr. Spraygregen's refusal, Emerging Minds Magazine reports that Columbia also faces opposition from The Coalition to Preserve Community. It is a new grass roots movement that has led the fight against gentification of West Harlem. It claims Columbia is carrying out gentrification with the support of New York Mayor Michael Bloomberg. It fears that Columbia's plan will displace homes and small businesses in Manhattan Ville.

Emerging Minds Magazine reported that Nellie Bailey of the Harlem Tenants Council in New York stated that the 2004 Vera Institute for Justice's study on family homelessness in New York showed that, among other factors, neighborhoods experiencing gentrification like Central Harlem had higher numbers of families becoming homeless. Central Harlem ranked in the top 10 neighborhoods in the city with a high displacement rate. The New York City social service agency, Coalition for the Homeless, says there are 36,166 people who sleep in the city's shelters and welfare hotels each night, and 14,884 are children.

According to the Fox News report today, the State of New York is reviewing eminent domain and appears to be onboard. It believes the takeover would be good for the local residents. Columbia would spend $7 billion to create 6,900 jobs. Two-thirds of them, approximately 4,600 jobs, would go to the local community.

Would Columbia's acquisition of Manhattan Ville be a boon to the West Harlem community or is it gentrification?

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Associated Content: http://www.associatedcontent.com

Legislature works to restrict eminent domain usage: Jackson MS Clarion Ledger, 2/11/07

Miss. House, Senate offer competing bills in response to court's ruling
By Julie Goodman

House Bill 300: Restricting eminent domain: http://www.clarionledger.com/assets/pdf/D061253210.PDF House Bill 1209: Selling land taken by eminent domain: http://www.clarionledger.com/assets/pdf/D061311210.PDF Senate Bill 2152: Restricting public use of eminent domain: http://www.clarionledger.com/assets/pdf/D061312210.PDF

A key roadblock has been removed from pending negotiations on eminent domain, but the issue - which pits private property rights against the forces of economic development - could be headed for heated debate with competing House and Senate bills.

Senate Bill 2152 says land can be taken for a direct public use, but a tax revenue increase or a general economic improvement does not count as direct public use.

"If that results, that's great, but that cannot be the justification for taking somebody's property," said Sen. Charlie Ross, R-Brandon, the bill's lead author.

House Bill 300, however, is more restrictive.

"My bill prohibits taking private property for private economic development purposes, period," said Rep. Jamie Franks, D-Mooreville, a co-author.

The bill makes exceptions for drainage and levee facilities, roads and bridges, and other public needs.

The controversy started after a 2005 U.S. Supreme Court decision allowed private property to be taken for economic development purposes under Connecticut's statute. It stressed that states are not prohibited from placing their own restrictions on eminent domain.

States across the country reacted.

Larry Morandi, director of state policy research for the National Conference of State Legislatures, said 34 states have passed measures restricting the use of eminent domain for economic purposes.

Some of those states have since introduced additional legislation, and the remaining 16 states are considering eminent domain bills this year. Mississippi falls into that group of 16.

But proposals have varied greatly from state to state, with some passing only procedural measures and others limiting the use of eminent domain to projects such as highways, reservoirs and libraries, for example.

Morandi said he was surprised that Mississippi did not pass legislation last year but could not predict what the state would do this time around.

The bill died last year after the House and Senate could not agree on its provisions.

This year, the Senate's legislation is almost identical to its bill last year. But in the House, lawmakers got rid of a potential stumbling block by addressing a concern of farmers in Tishomingo County.

Under House Bill 1209, the state Inland Port Authority could sell property acquired through eminent domain back to its original owner or his or her children. That sale could happen if the property is not used or planned for use for a public purpose.

The proposal is meant to help Tishomingo County farmers who sold property years ago. Part of their property was taken for a railroad and then leased back to the farmers.

"The owners of the property who sold it to the Port Authority have been leasing it back, have been paying for all these many years for the property, but now it's not being used," Rep. Jim Barnett, R-Brookhaven, said recently on the House floor

At least one group, the Mississippi Association of Realtors, which represents more than 6,000 people in all phases of real estate industry, is not backing the House bill.

"We don't need to have such a dramatic response to this because protections are already in place," said Angela Cain, the association's chief executive officer. She said more restrictions would slow economic development, impeding job creation and homebuilding. The organization is backing the Senate bill.

Potentially complicating matters are the main proponents of each bill - who are running for the lieutenant governor's seat and could end up head-to-head in the general election.

Franks said he has not read Ross' bill this year, but said, "If it's what he had last year, it's a lot weaker," he said.

"The most fundamental right as an American citizen is to own property. And why should an American citizen or a citizen of Mississippi just be holding a piece of property until the government says, we're going to take it for someone else. That's wrong," he said.

Ross said he's not critical of the House proposal.

"I focus on ensuring that it's used for a direct public use rather than who it's transferred to. And I will say, the House bill and the Senate bill are both trying to get to the same place," he said.

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Jackson MS Clarion Ledger: http://www.clarionledger.com

Mayor wants discussion on redevelopment: Lodi NJ News-Sentinel, 2/9/07

By Matt Brown
Lodi Mayor Bob Johnson has called for another look at redevelopment, but he says he's not interested in taking property for private enterprise.

At Wednesday's City Council meeting, the mayor said he was interested in revisiting the city's dormant redevelopment agency. The Lodi Redevelopment Agency, which is charged with improving neighborhoods and removing blight, is not active because it does not have a project zone.

Redevelopment agencies have been criticized for their use of eminent domain; taking property for either public or private use. Lodi passed an ordinance in March 2006 which prohibits eminent domain for private development.

"No one is saying we should revisit eminent domain," Johnson said. "I'm just trying to get a conversation going."

Johnson said blighted areas, such as land along the Union Pacific railroad tracks, could be put into a redevelopment project zone. As the value of the property in the project zone increases, the redevelopment agency would receive the profits from tax revenue. The agency could reinvest the funds into the project zone by cleaning up graffiti, adding street lights or paving streets, Johnson said.

"We are gun-shy about discussing this," he said. "People said they don't want eminent domain. I think we can accomplish this without eminent domain."

Local advocate Jane Lea led a campaign to abandon the redevelopment agency in 2002. The agency has done nothing and exists in name only.

Lea, a 2006 council candidate, said county services are hurt by redevelopment.

She said county services rely on revenue from property taxes, and funds are siphoned off when redevelopment agencies receive profits from property taxes.

"The county is broke," she said. "Cities with large redevelopment agencies don't pay their fair share. They are stealing from the county."

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Lodi NJ News-Sentinel: http://www.lodinews.com

Stolle, Norment named in complaint alleging conflict: Newport News VA Daily Press, 2/9/07

By Bob Lewis, Associated Press
Two [Virginia] state senators are named in complaints filed by an attorney and conservative Republican activist from Roanoke who contends the lawmakers have conflicts of interest regarding eminent domain legislation.

In letters to the Division of Legislative Services, G. David Nixon alleges that Republican Sens. Kenneth W. Stolle of Virginia Beach and Thomas K. Norment of James City have "thwarted attempts to bring about meaningful eminent domain legislation."

Nixon notes in the letters that Norment and Stolle work for the Kaufman & Canoles law firm. Because the firm's work includes property condemnation and eminent domain litigation, Nixon's complaint says, Norment and Stolle both have conflicts on the issue and both sit on the Senate Courts of Justice Committee, which decides the fate of eminent domain bills.

Neither Stolle nor Norment practice eminent domain law, and both said the attorneys in their firm who do overwhelmingly represent landowners fighting efforts to have their land taken through eminent domain.

He also notes that both have connections to the state's dominant utility, Dominion Resources. Both reported hunting trips to Georgia paid for by the company, and Norment owns stock in the company, which uses eminent domain to condemn land for power line rights of way.

On Jan. 31, Stolle and Norment both received advisory opinions they had sought from Attorney General Bob McDonnell that said their employment presented no conflict that would bar either from discussing or voting on eminent domain legislation. The ruling, however, did not address involvement with Dominion, a giant power company fighting for legislation this year to run a major new high-voltage power line through suburban northern Virginia.

Stolle and Norment both rejected Nixon's assertion.

"It's absolutely irresponsible and spurious," said Norment. "I find it shocking that a fellow lawyer would file a complaint like and accompany it with a news release."

Stolle reasoned that there were political motives behind the complaint.

"My guess is this arises from a group of people who have tried to force some eminent domain reform language through and they don't like Tommy and I having votes on the process," Stolle said.

Both senators are among the ring of Republican moderates who have dominated fiscal policy in the Senate for years and outraged GOP conservatives by supporting tax increases passed in 2004.

Nixon has served on the Roanoke city GOP committee for 30 years and said he has been active in opposing moderates the party's conservatives call RINOs, or Republicans in name only.

"But that's completely aside from whether they have a conflict of interest. They should not be carrying the ball for condemner clients that they have," Nixon said.

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Newport News VA Daily Press: http://www.dailypress.com

Court limits Baltimore’s use of eminent domain: Delmarva Daily Times, Salisbury MD, 2/9/07

Associated Press
Baltimore had no reason to take a Charles North bar with a speeded-up form of eminent domain called “quick take,” Maryland’s highest court ruled Thursday.

Quick take, Maryland’s Court of Appeals said, requires an agency to prove that it needs property urgently and for the public good. In the case of the Magnet bar, wrote Judge Dale R. Cathell, the Baltimore Development Corp. did not demonstrate either.

“Agents of the City literally refused to answer any questions directed at the immediate need for this specific property, but appeared to have adopted the attitude that the City did not have to have a specific immediate need for the property, so long as sometime in the near or distant future they had such a need,” Cathell wrote. “This extraordinary power conferred upon the City ... was not for the purpose of allowing such entities to use it ’whenever they wanted to.”

John C. Murphy, the lawyer for Magnet owner George Valsamaki, said the high court sent a message to those who would push the limits of eminent domain and hurt property owners.

“The court is saying that what the city is doing now does not meet the standards,” Murphy said. “That’s a big change for a city which basically has used quick take for all of its acquisitions.”

By condemning the Magnet and some 20 other Charles North properties, Baltimore officials hoped to put together a sizable tract to attract developers. Revitalizing the depressed area between Mount Vernon and Charles Village along the Charles Street corridor was BDC’s intention.

The city filed a quick take petition on The Magnet in March, and gained immediate possession of the property without a hearing.

Valsamaki had 10 days to challenge the seizure, which he did, calling the city’s stated reason for taking his property “patently insufficient.”

BDC officials had argued that quick take was “critically important” to Baltimore’s neighborhood revitalization projects.

Baltimore City Solicitor George Nilson said that with this ruling, the city will have to change its ways.

“I think they’re saying you have to have more specific things in hand when you exercise quick take power and that the government bears the burden of proving that the taking is justified,” Nilson said. “And, because you bear that greater burden, you’re going to have to have fairly particular plans.”

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Delmarva Daily Times, Salisbury MD: http://www.delmarvanow.com

State Sen. Neville's eminent domain bill gets committee endorsement: Farmington NM Daily Times, 2/9/07

By Walter Rubel
A bill that would prohibit local governments from using eminent domain laws for economic development purposes was endorsed Thursday by the Senate Public Affairs Committee.

Senate Bill 401, sponsored by Sen. Steve Neville, R-Aztec, would remove the ability to condemn property from the Metropolitan Redevelopment Code. That is the only piece of existing legislation that allows the use of eminent domain for economic development purposes, according to former Lt. Gov. Walter Bradley, who served on a task force last year to look at the state's eminent domain laws.

Eminent domain allows a government entity to condemn property, and pay the owner fair market value when land is needed for public use. It has traditionally been used for things such as roads and utility lines. But a Supreme Court ruling in 2005 said that a community in Connecticut was within its rights when it used eminent domain to take land to make way for a new commercial development.

Neville pushed through a bill last year in response to that ruling.

Gov. Bill Richardson vetoed the bill and formed a task force to look at the problem. The task force had recommended repeal of eminent domain from the Metropolitan Redevelopment Code, and Richardson supported that decision.

"Last year's bill was more of a shotgun approach. This is a very surgical instrument," Neville said. He said it would leave in place all of the traditional uses for eminent domain.

Neville is a real estate appraiser by trade and told committee members he has been involved in several negotiations for things such as public right of way. He said even the threat of condemnation will force people to sell homes and property against their will.

"Even though they are being paid fair economic value, it does not compensate for a home that has been in your family for generations," he said.

Bill Fulginiti, executive director of the New Mexico Municipal League, said repeal of the existing law would prevent cities from being able to deal with slums and blighted areas.

"Municipal officials were elected to protect the health, safety and welfare of their residents," Fulginiti said. "If areas are truly blighted and have slum conditions, it would be irresponsible not to deal with that issue."

But Neville said those situations could be dealt with through public nuisance laws.

The bill now goes to the Judiciary Committee.

A separate bill, which would limit municipalities' use of eminent domain to within city boundaries, was also endorsed Thursday by the Public Affairs Committee.

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

Statewide Survey Shows Support for Eminent Domain Reform: California Alliance to Protect Private Property Rights, 2/9/07

News release
A recent survey, commissioned by the California Alliance to Protect Private Property Rights, shows voters overwhelmingly support a ballot measure to protect property rights from eminent domain abuse.

The survey, conducted by Public Opinion Strategies, asked 1,000 likely voters if they would support a proposition that would "add a new law in California designed to protect homeowners and other property owners from having local government take their property, under what is called 'Eminent Domain', in order to use the property for developers to build shopping centers and industrial parks." 67% responded that they would vote for such a measure. Results indicated broad support across party affiliation, region and ethnicity.

"Even after the narrow defeat of Proposition 90, California voters remain deeply concerned with protecting private property rights," said Stephen Kinney, pollster with Public Opinion Strategies. "This survey shows that a well drafted ballot measure would have the support of voters in 2008."

Despite outrage from voters over the U.S. Supreme Court's 2005 Kelo vs. New London decision, California's State Legislature has failed to provide "Kelo reforms" that would curb eminent domain abuse.

"The Governor and Legislature have promised to reform eminent domain abuse this year," said Jon Coupal, president of the Howard Jarvis Taxpayers Association. "If the California Legislature fails to provide homeowners property protections, voters will have no alternative but to qualify yet another ballot measure."

"Californians feel it is wrong for government to profit by seizing private property from unwilling sellers, only to use the property for projects that benefit the wealthy and politically connected," said Marko Mlikotin, president of the California Alliance to Protect Private Property Rights. "The results of this survey put opponents of eminent domain reform on notice."

Public Opinion Strategies Survey, Crosstabs
Public Opinion Strategies is a national political and public affairs research firm founded in 1991. A leader in the industry, they have conducted over three and a half million interviews with voters and consumers in all 50 states. This survey was conducted February 5-7, 2007 among a sample of 1000 likely California voters.

Survey Question - "The ballot proposition would add a new law in California designed to protect homeowners and other property owners from having local government take their property, under what is called 'Eminent Domain,' in order to use the property for developers to build shopping centers and industrial parks."

Party	Support	Oppose
GOP	72%	24%
Dem	62%	30%
Ind.	73%	23%
Region	Support	Oppose
Central Valley	75%	19%
Sacramento	70%	24%
Los Angeles	68%	28%
SF Bay Area	64%	26%
San Diego	69%	29%
Inland Empire	72%	24%

The California Alliance to Protect Private Property Rights is a statewide organization dedicated to exposing the abuses of eminent domain in California. The organization was founded by Yolo County farmers and taxpayer advocates fighting Yolo County's use of gambling profits to seize the 17,000 acre Conaway Ranch through eminent domain.

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California Alliance to Protect Private Property Rights: http://www.calpropertyrights.com

SLV Water District votes to use eminent domain to take Felton water system: Santa Cruz CA Sentinel, 2/9/07

By Gwen Mickelson
The San Lorenzo Valley [SLV] Water District voted unanimously Thursday night to use eminent domain to take control of the privately owned Felton water system.

By approving a resolution of necessity, the five-member water district board took the final step needed before initiating the eminent domain process to take over California American Water Co.'s water system in Felton, which serves 1,350 customers.

"For me it was really the issue of local control. The people of Felton have made it very clear that they wanted this to happen and they want local representation," said Director Larry Prather.

Eminent domain is the power of government to take private property for public use, provided owners receive fair compensation.

Applause and cheers greeted the directors' vote.

"We are very, very excited," said Jim Mosher, a member of Friends of Locally Owned Water, which has led the charge for public ownership of the water system. "This is a major step in the process. It confirms all the testimony and all the work FLOW has done over the last four years. This truly is a David and Goliath story and we are going to win"

Cal Am representatives, however, said the vote will land the issue in court.

"It's unfortunate that this is going to resort to litigation. We believe the water district cannot establish the elements of eminent domain in court," said Cal Am lawyer David Skinner.

More than 50 people attended the meeting in Ben Lomond. Nearly 30 speakers, complaining about high rates, urged the district to take the system over.

"I'm outraged to the point of the limit of my patience," said Larry Ford, a FLOW member.

The main purpose of Thursday's hearing was to give Cal Am the opportunity to address the board to raise issues, according to district staff.

Skinner objected to the move, stating in a letter that the district did not comply with government regulations and did not offer the true value of the system when making an earlier offer to buy it.

"The water district cannot provide better service or better water quality than California American," Skinner told directors Thursday night.

During more than four years of attempts by Felton residents to buy the waterworks, Cal Am has consistently said it is not for sale.

Unhappy with the price of water and certain aspects of service, Felton residents in 2005 passed an $11 million bond, Measure W, to buy the waterworks and asked to become part of the neighboring San Lorenzo Valley Water District.

That money should be sufficient to pay for both eminent domain proceedings and the water system, said Barbara Sprenger, a FLOW member.

The San Lorenzo Valley Water District board of directors voted unanimously in December to offer $7.6 million to Cal Am for the Felton system. District Manager Jim Mueller estimated that eminent domain proceedings could cost up to $500,000.

A court case could take 12 to 18 months to resolve, said Mueller.

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Santa Cruz CA Sentinel: http://www.santacruzsentinel.com

Contractor Fights Eminent Domain: Charleston WV State Journal, 2/8/07

DOH lawsuit involves 'rare' road work bid situation for W.Va. 10 project in Logan County
By Juliet A. Terry
The welcome signs at West Virginia's borders say "Open for Business," but one contractor said his experiences of late prove the slogan is anything but true.

David Heeter has been in business in the Mountain State for nearly 40 years. His company, Heeter Construction Inc. and its affiliates, routinely bid on and complete projects valued from $10 million to $40 million.

His latest foray in competitive bidding for state highway projects has led him to the courtroom, however, not the construction site.

The dispute concerns a piece of land in Logan County that Heeter owns and the state wants to take through eminent domain proceedings. The land would be for waste disposal from a 2.5-million-yard excavation project that is part of plans to make W.Va. 10 a four-lane highway.

Circumstances behind that disagreement concern not just eminent domain law but also rules and practices affecting the bidding process for state road projects.

"There is something underhanded going on here," Heeter said of his dispute with the DOH [Dept of Highways].

The state insists it simply is trying to level the playing field in the bidding process for the Route 10 project. No one is playing favorites, according to Tony Halkis, director of the DOH legal division.

Heeter and the DOH have taken their dispute to the courtroom. A bench trial before Logan County Circuit Judge Eric O'Brient began Feb. 6 and will continue Feb. 12.

W.Va. 10 Bid
In April 2006, Heeter submitted a bid of $21.7 million for a W.Va. 10 project.

One of his sister companies, Contractor Enterprises Inc., purchased one of six potential waste sites suitable for the project in Logan County. Heeter paid $125,000 for the land and spent an additional $300,000 clearing the site so it would be ready to receive waste from the massive excavation project at Rita, about three miles north of Man.

Four other companies also bid on the project, and, according to court documents, Heeter's bid was the lowest of the five, but all the bids were at least 50 percent higher than the estimated cost of the project.

"When the bids came in 50 percent higher than the job ought to cost, we asked why," Halkis said. "It was determined that this waste area was key."

So the state invalidated the bids, re-estimated the cost of the project and prepared a new bid process. The DOH also set about obtaining Heeter's waste area through eminent domain proceedings.

Contractor Enterprises then sued the DOH in circuit court to stop the eminent domain proceedings.

According to DOH engineers, Halkis said the waste site was the only one big enough to accommodate the project. Acquiring the land for waste disposal would mean that all contractors who bid on the project a second time would have the option of using the land rather than Heeter having a competitive advantage because he already owned the land.

"Mr. Heeter was smart enough to buy it, and when we condemn it, we will pay him full market value," Halkis said. "We have the absolute right to condemn waste areas. ... We don't really want to take a waste site ... but we're trying to level the playing field here."

Heeter said the state has offered to pay him $118,000 for the site - far less than his total costs for purchasing and preparing the land.

He also said that other contractors who bid on the project testified that they had planned on using nearby lands for waste disposal, which contradicts the DOH assertion that Heeter's land is the only suitable site for waste disposal.

'Rare' DOH Move
As Halkis indicated earlier, the state is not in the habit of using eminent domain to take land for waste disposal on road projects.

Former Department of Transportation Secretary Fred Van Kirk testified Feb. 6 that the department never acquired a waste area in his 39 years there.

Halkis, who has been with DOT for more than 40 years, admitted the DOH was faced with a unique decision when it decided to take the eminent domain route.

"I've been here since 1961. It has happened before ... but it is rare," he said. "... That's the ideal site, according to our engineers. It's the only site for this project."

Cost Disparity
Heeter said he believes the eminent domain proceeding is more about helping out-of-state contractors than anything else.

"I've already built three sections of Route 10 in the past six years. We've saved the state $4 million on those projects," Heeter said, adding that his $21.7 million bid on the latest project was $4 million lower than the next-highest bidder.

"If we were awarded this one, we would have saved the state a total of $8 million in taxpayer money."

He said the state's project estimate of $14 million was outdated. The disparity between the estimate and the bids was from increases in construction costs and fuel, not the cost of providing a waste disposal area, Heeter said.

"The whole deal is that (DOH) has a whole bunch of new people down there, and they want to give somebody an advantage over me," Heeter said. "... I see some favoritism going on. They want to see someone else get this job. Eminent domain doesn't mean they can take this land to drive the price of the project down."

Heeter, a Spencer resident, has contacted Delegate Bob Ashley, R-Roane, for help. After looking at the situation, Ashley told The State Journal it has raised a few red flags.

"I am really concerned the state is starting a new precedent of acquiring spoilage (land)," Ashley said. "I don't know if there is anything I can do right now, but I don't understand why we're picking on a West Virginia contractor if we're supposed to be open for business."

Halkis said the DOH is trying to preserve a level playing field in its bidding process, not discriminate against Heeter.

"He's a fine contractor. It's just unfortunate we are in this situation," he said.

The Contractors Association of West Virginia filed a brief with the court in support of Heeter's position. The group said it supports the state's right to take land through eminent domain but said the state should have exercised that right before the project first was advertised for bid.

"It is not good policy to bid a project, review the bids, refuse the bids, condemn property that would have been used as a waste site and was owned by a sister corporation of the low bidder, then re-bid the project with that property available to all bidders as a waste site," the association said. "Such an approach does not ... encourage entrepreneurship and competition."

Halkis said the W.Va. 10 project is slated to be available for re-bid in March.

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Charleston WV State Journal: http://www.statejournal.com

City blows eminent domain proceeding, losing lots: Hillsdale NY Independent, 2/8/07

By Diana Ladden
Edward Keegan, Sr. has regained title to land on North Fifth Street [in Hudson NY] he lost to the city as the result of an eminent domain proceeding.

The city initiated eminent domain proceedings in 2004, characterizing Mr. Keegan's lots at 61-65 and 67-69-71 North Fifth Street as urban blight. The eventual seizure of the lots, which the city wanted for low-income housing, was upheld by an appeals court last year. But the whole case has now unraveled because of a procedural error by the city, said Mr. Keegan's lawyer.

As the case made its way through the appeals process, the city filed an updated appraisal required by the court, but it failed to meet the deadline set by law. The city's appraiser Anthony Concra was unable to attend court, having been called away on a family matter. According to Mr. Keegan's lawyer, Andrew Howard, the city's lawyer, Robert Gagen, then withdrew his case.

The matter was dismissed with prejudice, which means the city cannot pursue its claim to the lots.

According to Mayor Richard Tracy, Mr. Gagen informed him during the hearing on the case Wednesday, February 7, before state Supreme Court Judge Christian Hummel, that the judge would not grant a postponement and that an affidavit given by Mr. Concra was not accepted.

"Our appraisal on the property was $100,000," said the mayor. "Our lack of an appraisal left us with the option of paying $293,000 for the property, the amount from the Keegan's appraisal." The mayor said the city was not prepared op pay the higher price for the properties.

Mr. Keegan expressed both delight and surprise at the latest turn of events, adding, "But I'm sure the taxpayers won't like the end result. They have to pay my legal fees for the last four years."

Mr. Howard said Mr. Keegan was never formally offered compensation for the properties. The city had an appraisal done in June 2004, but it was never updated.

The deadline for filing updated appraisals was last December 1. "The city tried to file their appraisal from 2004 on the eve of the evaluation hearing, but it was not only late, but outdated," said Mr. Howard.

Mayor Tracy called the situation frustrating. "I hope Mr. Keegan will do what's right and pursue the necessary improvements to these properties," he said

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Hillsdale NY Independent: http://www.zwire.com

Ratner foes have first day in court: The Brooklyn NY Paper, 2/10/07

By Ariella Cohen
A familiar cast of characters clashed in the first courtroom battle over the fate of Atlantic Yards — with opponents saying the project abuses state condemnation powers and a state lawyer retorting that plaintiffs are “naive” to the ways of the world.

The state is allowed to seize private property, but only if it can demonstrate that it is doing so for public benefit. Lawyers for a handful of tenants and building owners in Atlantic Yards’ 22-acre footprint questioned that public benefit.

“If [Bruce] Ratner makes billions of dollars from the development and the city makes [less], then how is his benefit not the primary motive [of condemnation]?” asked Matthew Brinckerhoff, lawyer for Daniel Goldstein, whose apartment building is near center court inside Ratner’s proposed basketball arena.

Empire State Development Corporation lawyer Douglas Kraus scoffed at the plaintiff’s case against the $4-billion, 16-tower residential, office, arena and retail mega-project, calling it “fictional,” “hyperbolic” and “at odds with state law.”

He joked that the case was based on a naïve understanding of “the way things work,” his shorthand for the inner workings of government.

“If this is their approach,” Kraus said, “I would like to talk to [the plaintiffs] about buying stock in that nice bridge I passed on way over here.”

Kraus asked the judge to dismiss the case, though admitted that the amount of tax revenue, the number of affordable units and the number of jobs that will be created by the Ratner’s Xanadu had dropped since the project was introduced.

He said that the changes didn’t alter “the fact that this project would create affordable housing, eliminate blight and bring an arena to Brooklyn.”

The hearing, ostensibly to debate a motion to dismiss the case put forward by Ratner, the city and the state, ended inconclusively with Federal Judge Robert Levy promising to issue a decision “as soon as possible.”

It is unlikely that Levy will dismiss the federal eminent domain complaint, a complicated, case filed by Goldstein, who is also spokesman for Develop Don’t Destroy Brooklyn, and 12 other Prospect Heights property owners who believe that their homes are being taken for a development that will primarily benefit Ratner, rather than the public.

Legal experts said that Levy could send the constitutional claim to state court, where most eminent domain complaints are heard.

In New York’s courts, the case could have a harder time because of its judges’ reluctance to rule against other governmental bodies on land-seizure cases, said eminent domain lawyer Robert Goldstein, who is no relation to the plaintiff.

Throughout the four-hour hearing, the players brandished a newfound mastery of arcane legal precedents, but little new insight on the case at hand, known formally as “Goldstein v. Pataki.”

Ratner’s lawyer Jeffrey Braun used the same line of argument that he used in fighting an earlier lawsuit intended to stop the project — namely that Ratner’s mini-city would revitalize a “blighted” area in Prospect Heights, where brownstones sell for more than $1 million.

Braun pleaded with the judge to drop the case as quickly as he could.

“It would be torture to allow this case to move forward,” he said.

Should this case get dismissed, opponents are prepping another battle, this time against the state’s supposedly flawed environmental impact statement.

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The Brooklyn NY Paper: http://www.brooklynpaper.com

His domain to the end: Newark NJ Star-Ledger, 2/8/07

Long Branch holdout, 93, dies at home
By Mark Mueller
Though he could barely walk, Albert Viviano ambled to protest meetings and rallies in and around Long Branch. Later, when he couldn't walk at all, he rolled to them in his motorized wheelchair, a little American flag in one hand, a placard in the other.

At 93, with his heart slowly giving out, Viviano was motivated by one thing: the right to die in his home.

The city of Long Branch wants that home, one of two dozen converted bungalows local officials have been trying to seize for three years to make way for new development.

The battle continues, but not for Viviano. On Sunday, he died in his bed, two blocks from the boardwalk he cherished, in the neighborhood he had known for 75 years.

"He won," said Viviano's daughter, Estelle Toscano. "My father won because he died in his own house."

It's a refrain heard repeatedly in Viviano's tiny neighborhood, which has become something of a symbol in one of the most closely watched disputes over eminent domain in the nation.

Viviano, who spent his teenage years fitting wheels onto horse-drawn wagons in Newark, was the oldest among the homeowners who have refused to sell to the city. And while it was clear his health was failing, he insisted on attending meetings and rallies, creaky body be damned.

"He just uplifted everyone," said neighbor Lori Ann Vendetti, 45, a member of the coalition opposing Long Branch's plan. "You have some bad days in this fight, and then you'd see Al coming out with the little flags on his wheelchair and the button on his jacket and his poster. It was an inspiration."

What drove Viviano is what drives most of his neighbors: a deep love of Long Branch and a firm belief that government should not have the right to take a home indiscriminately.

"He couldn't believe this could happen in America, how someone who fought in the war, had a business and gave back to his country could just lose his home," Vendetti said. "He was fighting with all his might against that."

The courts, so far, have sided with Long Branch. In June, a Superior Court judge ruled the city was within its right to take the homes along Marine Terrace, Ocean Terrace and Seaview Avenue.

The plan calls for the homes to be razed in keeping with a $1 billion redevelopment project that has already transformed parts of the city.

The residents are appealing the June decision, saying they will take the fight to the U.S. Supreme Court if they have to. They don't want to envision an alternative.

Most of them have been part of the neighborhood for decades. Few knew it as well as Viviano.

"All my life, he's been a fixture there," said William Giordano, 42, whose back yard faces Viviano's home on Marine Terrace. "The neighborhood will never be the same without him."

Like so many in the area, Viviano came from Newark. When people asked what he did for a living, he told them he was a blacksmith. His daughter said that description wasn't quite right, though, because Viviano never worked with a horseshoe in his life.

In his youngest days, before the automobile had infiltrated every part of society, Viviano made and installed wagon wheels while working for his father, Toscano said. Later, he did metalwork on trucks.

The business did well enough to allow Viviano's father to buy the modest three-bedroom bungalow on Marine Terrace in the 1920s. It was a fair-weather place then, with a broad, breeze-catching porch.

The Vivianos would head down from the city on weekends. Until the construction of the Garden State Parkway, it could be a rough trip, the bad roads wreaking havoc on the flimsy inner-tube tires in use at the time.

"He told us they'd always get flat tires, sometimes two or three flats on one trip," Giordano said. "So they'd have to keep pulling over and patch them up."

To Viviano, the journey was worth it. Neighbors said he'd walk the beach - and later the boardwalk - several times a day, chatting with passersby and enjoying the ocean views. With his wife, Mary, he'd sit out on the porch, calling out to neighbors and regaling neighborhood kids with stories.

After retiring 26 years ago, Viviano moved down to Marine Terrace full-time, puttering around in his small basement workshop and dreaming up little inventions. Unsatisfied with a spoon to scoop out jelly from a jar, he hammered out a utensil with a little less swell, his daughter said.

Long before televisions came with shut-off timers, Viviano fashioned one by stripping the timer from his washing machine.

"He had an engineer's mind," said Toscano, who must now decide whether to keep up her father's fight. "He did things to the detail."

And if he didn't get it quite right the first time, he didn't give up.

Friends said he took that spirit into the struggle with Long Branch.

"He loved Long Branch, and he loved his home, and he couldn't see letting anyone take it away from him," said Anna DeFaria, 81, a friend and neighbor. "This fight meant everything to him. He was our rock."

The death of Mary Viviano two years ago coincided with Viviano's own decline in health.

Over time, he traded a cane for a wheelchair and accepted in-home help on a 24-hour basis. Still, the fight to save his home consumed him.

"He would say, 'This is my home. I want to die here,'" DeFaria said.

No one would have blamed Viviano for taking it easy, letting the younger residents take on the city. But Viviano wouldn't have it.

"He could have just given up, but he didn't," said Fifi Vendetti, 77, Lori Vendetti's mother. "He fought hard for our cause. We hope we don't let him down. We hope we win, and we hope he looks down upon us when that happens."

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Newark NJ Star-Ledger: http://www.starledger.com

GOP says change to rule a proxy for eminent domainGaithersburg MD Business Gazette,2/7/07

But Senate Democrats prevail in technical change to the chamber’s procedure
By Douglas Tallman
[Maryland] Senate Democrats on Tuesday pushed through a technical change in the way the chamber handles legislation — a proxy war, Republicans maintain, over whether local governments should have the right to seize property for business projects.

‘‘They’re changing the rules for one bill, and I don’t think that’s the way to do things,” Senate Minority Whip Allan H. Kittleman said.

The change forbids senators from altering a bill into a proposed constitutional amendment. Constitutional amendments must pass both the Senate and the House with a three-fifths majority and be approved by voters.

During the 2006 session, lawmakers were prepared to pass limitations on the government’s power of eminent domain. Democrats wanted the limits in statute; Republicans wanted the limits in the constitution. When the GOP began winning Democratic converts during floor debate, supporters of the bill pulled it from consideration.

For the 2007 session, Senate Majority Leader Edward J. Kasemeyer (D-Dist. 12) of Columbia offered a rule change that no bill could be amended into a constitutional amendment. It passed on a party-line vote.

Democratic leaders, however, said the eminent domain fight had nothing to do with the proposal and everything to do with procedure.

‘‘If there is a constitutional amendment, it should go through the committee first,” said Sen. Lisa A. Gladden (D-Dist. 41) of Baltimore.

Each General Assembly chamber has a tiny book that provides the guidelines on how legislation moves through legislature. Very little of it changes year to year, but Republicans have used it as a battleground to assert their rights.

This year, the GOP offered three proposals of its own, and each was rejected Tuesday.

‘‘This was ‘Stomp on Minority Rights Day,’” said Sen. Alexander X. Mooney (R-Dist. 3) of Urbana.

One proposal would have allowed the minority party to make committee assignments for its members. On a voice vote, the chamber decided to make no change, with the pledge that the Democrats would consult the Republicans on assignments.

A party-line vote also refused to change the number of senators needed to end debate, now at three-fifths. Sen. Andrew P. Harris (R-Dist. 7) of Cockeysville proposed increasing that to two-thirds. That would have meant 19 senators would have to cut off discussion on a topic instead of the current 16. Of the 47 senators, only 14 are Republicans.

Anyone can be in the minority in a debate, Harris argued, whether the issue is gun rights, abortion or the death penalty.

Judicial Proceedings Chairman Brian E. Frosh (D-Dist. 16) of Bethesda said three-fifths was reasonable and moderate.

Kittleman (R-Dist. 9) of West Friendship also proposed requiring a committee vote for every bill. He said the public gets short-changed when they testify for a measure but a committee never votes on the bill.

Senate President Thomas V. Mike Miller Jr. said a panel could have several reasons for not voting on a measure. He recalled a House committee chairman who routinely killed Senate bills. When he was Judicial Proceedings chairman, Miller (D-Dist. 27) of Chesapeake Beach said, he ignored House bills to get the House chairman to change his tactics.

That rule was voted down on a largely party-line vote.

Later, Miller said, a bill that doesn’t get a vote in committee might not be legitimate.

‘‘Or maybe a senator or delegate sponsored a bill and didn’t work ... hard enough to get a vote,” he said. ‘‘Probably from some backbencher who has done nothing and not worth the powder to blow him or her up with.”

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Gaithersburg MD Business Gazette: http://www.gazette.net

Family continues fight to stop Newmarket from using eminent domain: Foster's Daily Democrat, Dover NH, 2/7/07

By Michael Goot
The family whose land the [Newmarket NH] school district is considering taking through eminent domain to build a new school campus tried to block any such attempt during the town's deliberative session on Tuesday.

School officials are considering using 13 acres of wooded property behind a home at 231 South Main St. to construct a $20.6 million, 100,000-square-foot high school and allow all the town's schools to be together in a campus-style setting. The property belongs to Mike Weit and Debbie Hale, a married couple who do not wish to sell.

Hale tried to amend two separate warrant articles to bond $1,279,200 for architectural and engineering fees to design the new school and to appropriate up to $1,650,000 to purchase land. Hale wanted language that would have required the district to build a school "only on land purchased by the district or town by agreement with any selling landowner."

"How would you feel if you suddenly found out that town officials decided to take over your property and build a school on it without your knowledge or your consent and they wonder why we're upset," Hale said before a crowd of more than 60 people at the school district's deliberative session at Town Hall.

"We have been physically ill every day for the past two months. We have had to hire an attorney to protect our rights in a town that has been home to four generations of our family," she added.

Hale said the family simply does not want to sell regardless of the money. The couple intends to enjoy the land with their horses when they retire. She promises never to give up this fight.

The amendment failed both times it was offered. Following the vote on the warrant article to appropriate $1,650,000 from capital reserve funds to buy land, Hale asked for a recount. Moderator Bob Madea rejected the idea but a majority vote overruled him. Hale then asked for a secret ballot and her proposed amendment narrowly failed 34-31.

School Board Chairman Chris Hawkins said while the school district has not ruled out using eminent domain to accomplish its expansion plans, it has not evoked this option. First, the district must make a good-faith offer for the land. The initial appraisal was $52,000. However, Hawkins said on Tuesday the district has since received an updated higher number.

"I don't want to get into the specifics of it because we have not had an opportunity to share it with Ms. Hale and Mr. Weit," he said.

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Foster's Daily Democrat, Dover NH: http://www.fosters.com

Eminent domain ruling overturned: Cincinnati OH News Record, 2/7/07

Impact of decision on Calhoun Street project unknown
By Ian Sexton
The Calhoun Street Shell gas station/Subway restaurant expansion held its grand opening only days after a Jan. 26 ruling in Ohio's First District Court of Appeals overturned the City of Cincinnati's use of eminent domain. This ruling overturned the original court ruling allowing the city to purchase the land where the former Hardee's and Arby's buildings stand on Calhoun Street.

The ruling cited the Norwood case, which was decided by the Ohio Supreme Court, as precedent.

The prospective retail tenants want to wait and see what the development plan will be, said Gerry Siegert, University of Cincinnati's associate vice president for Financial Affairs in the Office of the Controller.

"Everything up there is contingent on setting a plan ... until there is a development plan, retail tenants are slow to make a decision," Siegert said.

Due to the eminent domain reversal, the project is not able to expand as far west as originally planned, Siegert said.

The impact of the Subway/Shell station expansion is being determined, according to Siegert.

There are a number of investors and retail tenants who are waiting to commit to the project, but want to be sure of its future, according to Siegert. "It is something that is extremely complicated, something like the eminent domain can derail it," Siegert said. "To the extent, there has been difficulty developing an economically viable plan."

Matt Bourgeois, director of Clifton Heights Community and Urban Redevelopment Corporation [CHCURC] said he agrees. "We are going back to the drawing board with this project ... They want a viable development plan for the entire site," Bourgeois said.

It is unknown where the project goes from here. The city has 45 days from the date of the ruling to file for an appeal. "Without a complete development plan, it is hard to say what the effect of the eminent domain ruling will be," Siegert said.

CHCURC is waiting for the go ahead from UC, since the university is a financial backer of the project.

"We're ready to move whenever," Bourgeois said. While the project is being delayed, there are other things to work on in the mean time, Siegert said.

The City of Cincinnati is party to the eminent domain ruling. Scott Stiles, an assistant city manager, said legal counsel for the City of Cincinnati is still deciding whether to appeal.

"It rests solely in [the city's] hands," if they want to appeal the domain ruling, Bourgeois said.

The costs of the continual delays are minimal. Two costs, land holding interest and predevelopment costs, are associated with such project delays, Bourgeois said.

"Most of the land cost is in the ground, everything else has already been bought," Siegert said.

UC has funded the project with loans made from its endowment, according to Siegert. The endowment receives interest made on the loans. A few years ago the Board of Trustees voted to allow this investment because the interest from the loans would go back into the endowment, Siegert said.

Bourgeois and Seigert said they feel the investment is not in danger of being lost, but at the same time want to make the project as safe a bet as possible. "Nothing is a sure thing in real-estate," Siegert said, referring to the risk of investing in the project.

CHCURC and UC point to development of the Calhoun Street project as a positive one for the community.

"I just think this is something that the university really, really wants to see happen," Siegert said. "No one likes seeing the condition of the property the way it is right now."

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Cincinnati OH News Record: http://media.www.newsrecord.org

Developer backs trailer residents in eminent domain fight: Hackensack NJ Herald News, 2/7/07

By Suzanne Travers
Robert D. Bonanno, 80, isn't a man with a plan, he's a man with lots of plans – at least a half dozen rolled up like posters in a tall cardboard box he keeps under his desk.

Since 1948, when he started a car repair shop along a two-lane road that is now bustling Route 46, Bonanno has been working on a strategy that has turned an old horse barn into a 5,000-square-foot building for his family truck company and grown a little plot of land into an 11-lot, 6.1-acre parcel with an assessed value of nearly $5 million.

Seven businesses employing about 60 people occupy the land, Bonanno said.

"It was nothing when I bought it," he said of his first real estate purchase, in the mid-1950s. "Route 46 was in its infancy."

One of Bonanno's plans, the purchase of Brown's Trailer Park in the mid-1980s, brought him to appeals court last Tuesday, when his attorney, Jan Brody, led the fight against the borough of Lodi's attempt to seize 20 acres of land using eminent domain. Some 200 residents of two trailer parks slated to be seized fought alongside Bonanno under the banner organization Save Our Homes.

The borough [of Lodi] argued that Brown's and neighboring Costa Trailer Court are blighted and could be taken for development into upscale senior housing and a strip mall.

The seizure would be in the public interest because it would increase revenues, allowing the borough to reduce property taxes, Mayor Gary Paparozzi has said.

But Bonanno has his own plans for redevelopment. He plans to lease two acres to a convenience store chain and gradually phase out the trailer park.

Bonanno bought Brown's in 1986 with redevelopment on his mind. Land along the highway had appreciated in value. He was using the lot behind his truck company, GoodYear Motors (Bonanno means "good year" in Italian), to store trucks, which he considered a waste of the valuable property.

First, he planned town houses, then a medical building with apartments. An architect who was helping him draw up plans suggested the town wouldn't approve them without an alternate access route for residents, one that wasn't off Route 46. They could create that route through the adjacent trailer park, so Bonanno purchased it for $950,000, he said.

An oddity for North Jersey, the park was built in the 1930s but grew after World War II, when entertainers - "show people," Bonanno called them - crisscrossed the country on tour and stopped to refuel outside New York City. The Brown brothers began selling gas, propane, water and mobile home parts, and to accommodate demand for a place to stop and sleep, they lay down cement "trailer pads," to prevent trailers from sinking, on top of an old landfill.

Bonanno said he asked the town for help in finding alternate housing for the low-income residents living in the trailer park, but learned he could not relocate tenants or raise their rents beyond the borough's rent-control rules. So he developed a new plan: to let the trailer park die a death of attrition, without pushing anyone out. As residents moved out, he shut the vacated trailers down.

"We had 74 but I've been in a program for years and years to diminish that," he said. "We've got it down to about 40 homes."

Gradually, he has shifted tenants from one side of the park to the other to create a parcel fit for development. He convinced the borough to sell him the dead-end strip of Boyd Street that cut between his truck lot and the trailer park. A small lot the Brown brothers had sold off for a diner effectively cut his property in half, so when the Mexican restaurant there went up for sale, he bought that land, too.

Bonanno cleared enough land, about two acres, to sign a contract with Quick Chek Corporation of Whitehall Station to lease two acres for $25,000 a month. He said the eminent domain case created legal limbo, but Quick Chek was willing to wait until the case is resolved. Steven Rash, project manager for Quick Chek, said the formal lease and payments would not begin until the borough has approved the store's plans for the site.

Bonanno's plans for the truck parking lot still lack detail, but will be "whatever will come in that's tasteful for the town and myself," he said. He has yet to take any of his plans before the Lodi planning board.

Catherine Weiss, an attorney with the New Jersey Public Advocate's Office, which filed a friend of the court brief in support of Save Our Homes, told several members who attended the court hearing that their fight was unusual in part because Bonanno had the means to mount a well-funded legal challenge. Most people affected by eminent domain do not have the money to fight municipalities, she said.

"They have a rightful cause," Bonanno says of Save Our Homes. But he also notes that the borough's land seizure would damage the businesses on his property.

"They do not pay you for your business, they pay you for the value of the real estate," he said. "I've been here for 57 years. I've generated a lot of goodwill. I have a big area to park trucks. Many towns won't have me."

Bonanno, who looks decades younger than his age, says eventually his children and grandchildren will take over and run the property.

"I'm a great-grandfather and I don't have that much time on Earth," he said, "but my plans have always been that this would be passed on to my family."

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Hackensack NJ Herald News: http://www.northjersey.com

Eminent domain bill introduced: Ft Collins CO Coloradoan, 2/7/07

By Jason Kosena
A bill requiring government agencies seeking to exercise the power of eminent domain to notify county commissioners, property owners, residents and owners of business concerns in the area being targeted was introduced in the Colorado Senate this week.

The bill, sponsored by Sen. Steve Ward, R-Glendale, and Sen. Lois Tochtrop, D-Thornton, will now head to the Senate Committee on Local Affairs, which Sen. Bob Bacon, D-Fort Collins is chairman.

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