Eminent Domain Watch

8/16/2007

Pipe ruling called important for eminent domain: Riverside CA Press-Enterprise, 7/23/07

By John F Berry
San Bernardino-based Campus Crusade for Christ Inc. will get another shot at an estimated $12.5 million in compensation for land taken via eminent domain after the state Supreme Court said Monday that the case should be heard by a jury.

"We're very happy with the decision," Campus Crusade attorney Scott Heil said. "We're getting the crack we should have had in the first place."

Joseph Vanderhorst, deputy general counsel for the Metropolitan Water District of Southern California, said he was disappointed in the ruling.

Monday's 7-0 unanimous decision is the latest development in the decade-long dispute between Campus Crusade and the Metropolitan Water District.

The ruling is also a victory for private property owners throughout California, said Charles Doskow, a University of La Verne law professor who specializes in eminent-domain issues.

Doskow said property owners want to have their cases heard by juries instead of decided by judges.

"They believe they have a better chance of getting a generous verdict with a jury," Doskow said.

The Legislature could eventually change laws based on this case, he said.

"This stands as an instruction to any judge who tries this kind of case," Doskow said. "Everybody is bound by it."

In 1997, MWD used eminent domain to acquire the right to tunnel under 1,824 acres owned by Campus Crusade at the Arrowhead Springs Hotel in northern San Bernardino, court papers said.

In 2002, San Bernardino County Superior Court Judge John Wade ruled that representatives from Campus Crusade could not present evidence to a jury about the value of the property that the water district wanted for the 12-foot-diameter water pipe.

The judge awarded Campus Crusade $479,000 in compensation, and the organization appealed. At one time, MWD offered $3.5 million, while Campus Crusade wanted $12.5 million.

In 2005, a three-judge panel from the state's 4th District Court of Appeal, Division 2, in Riverside nullified Wade's ruling and sent the case back for trial.

The panel said Wade overstepped his authority when he prevented the property owner from presenting evidence to a jury about the potential value of the land.

MWD appealed that ruling to the state Supreme Court, which heard arguments May 29.

The case now returns to a San Bernardino County courtroom for a status conference Nov. 26, Superior Court records show.

On Monday, Vanderhorst said he was disappointed by the Supreme Court's ruling. He added, however, that he expects a jury will reach the same verdict as the judge did in 2002. He declined to say whether the water district would try to settle with Campus Crusade.

The pipeline is part of the almost 45-mile-long Inland Feeder Project that carries state water from Northern California from a junction just south of Silverwood Lake, to Diamond Valley Lake, near Hemet, through a series of underground pipes and tunnels.

Monday's decision said the now-completed pipe under Campus Crusade is buried hundreds of feet below ground along most of its route. It said the pipe does come within four feet of the surface in spots.

The entire Inland Feeder Project is expected to be completed in 2010, MDW spokesman Bob Muir said Monday.

MWD wholesales water to 26 governmental agencies that together provide water to 18 million people throughout six counties in Southern California, Muir said.

Muir said those customers could see an increase in their water bills in the wake of a high settlement. He declined to say how much.

Heil said the 24-page ruling is technical and helps to clarify the case.

"We need to fully digest the decision," Heil said. "It's a technical ruling, but within eminent-domain circles, it's a fairly important ruling."

Riverside CA Press-Enterprise: http://www.pe.com

Another assault on property rights: Hillsboro OH Times-Gazette, 7/24/07

By John Boehner
Just when you thought it was safe to enjoy your backyard, the government launched another ill-fated assault on private property rights. A bill that would have let Washington politicians condemn or restrict the use of private property with or without just compensation recently failed to get enough votes in the U.S. House to pass. There's no guarantee this bill won't be brought back to the floor soon by the House leadership and passed under different rules - which is why I've decided to use this week's column to inform you about it.

The Eightmile Wild and Scenic River Act would have locked land under government control - preventing private use - and thrown away the key. What's even more preposterous about this bill is that it concerned land in the same congressional district in Connecticut where the Kelo v. City of New London eminent domain case originated. It was just two years ago that the U.S. Supreme Court ruled that your property is your own so long as the government doesn't want it.

In recent years, local governments have tried to broaden their power of eminent domain to allow municipalities to take land from one party and give it to another to improve the local economy. That's not what the Founding Fathers had in mind when they wrote the "Takings Clause" in the Fifth Amendment stating that "private property [shall not] be taken for public use, without just compensation."

The Constitution recognizes that eminent domain can be a necessary tool, but the Fifth Amendment is meant as a check on the government's power - not a launching point for land grabs.

With apologies to Ronald Reagan, the nine most terrifying words in the English language might be, "I'm from the government - I'm here for your land."

In 2005, I co-sponsored the Private Property Rights Protection Act to protect private property and curb abuses of eminent domain. The bill was in response to the Kelo decision, in which the city of New London, Connecticut seized homes to make way for a pharmaceutical company. While this legislation passed overwhelmingly in the House, it failed to make it way through the Senate.

However, President Bush signed an executive order on the one-year anniversary of the Kelo decision stating that the federal government must limit its use of eminent domain and that a taking of private property may not "advance the economic interest of private parties to be given ownership or use of the property taken."

In the most recent attempt to abuse eminent domain, legislation offered in the U.S. House would have designated sections of the Eightmile River as part of the National Wild and Scenic Rivers System. But the bill's language was written such that it could have exposed private property owners to strict regulations on the use of their land or worse, it could have triggered the National Park Service's ability to condemn that land.

A number of my colleagues on the Natural Resources Committee voiced their opposition to this bill in its early stages when it was rushed through the committee process before the National Park Service could answer questions on it. The bill was then brought to a vote in the full House under suspension, which is a type of vote usually reserved for non-controversial legislation, such as naming post offices and federal highways. I and many of my Republican colleagues voted against the bill.

While there were more votes cast in favor of this legislation than opposing it, it fortunately did not get the required two-thirds votes to pass under suspension.

The defeat of irresponsible legislation like the Eightmile Wild and Scenic River Act makes certain that the rights of private property owners guaranteed in the Constitution are upheld. I will continue to fight against this legislation and other bills like it that fail to respect the constitutional rights of private property owners.

Hillsboro OH Times-Gazette: http://www.timesgazette.com

Rep. John Boehner, R-West Chester, represents Ohio's 8th Congressional District

Farm Bureau and allies lead fight for property protection: California Farm Bureau Federation, 7/25/07

By Doug Mosebar
[The California Farm Bureau Federation] has taken the lead on many issues to protect California family farms and ranches, and this summer we step forward to promote private property rights.

With the help of committed Farm Bureau volunteers, we will qualify an initiative for the statewide ballot to protect private property from government seizure for the purpose of transferring that property to another private owner.

We remember the public outcry that arose two years ago, when the U.S. Supreme Court issued a ruling in what has come to be known as the Kelo case. The decision said that local government could seize property from unwilling sellers and transfer that property to another private owner for redevelopment projects, such as a new shopping center.

Government can take property for a legitimate public use through a process known as "eminent domain," and 41 states reformed their eminent-domain rules to prevent abuse of this power in response to the Kelo case. But here in California, special-interest groups block real reforms.

So Farm Bureau, with our partners the Howard Jarvis Taxpayers Association and the California Alliance to Protect Private Property Rights, is co-sponsoring a ballot measure to stand up to government eminent-domain abuses.

Our measure is called the California Property Owners and Farmland Protection Act.

It will protect all properties from being condemned and seized for private development. That's a direct response to the Kelo ruling.

The measure does allow government to continue to take property for a true public purpose - things such as highways, schools and police stations. But it adds important protections for owners who lose their property, including compensation for temporary business losses, relocation expenses and other reasonable expenses.

Our initiative goes even further, by preventing government from seizing property for the same use as that of the original owner.

We call that the Conaway Ranch provision, because of an example of eminent-domain abuse that surfaced in Yolo County. Supervisors there tried to seize a property known as Conaway Ranch, saying it wanted to assure "preservation" of the property and its water. The county even went as far as financing the seizure by securing a loan from a local casino.

Fortunately, public opposition from the Yolo County Farm Bureau and others convinced the county to abandon the effort. But it shows how vulnerable farmland can be to abuses of the government's condemnation powers.

Because farmland generally doesn't cost as much to seize as does residential or commercial property, it is particularly at risk for seizure. So it's especially important to family farmers and ranchers that California enacts reasonable controls on government condemnation powers.

Here's what you can do.

Farm Bureau and our partners need to collect more than 700,000 valid signatures to place the California Property Owners and Farmland Protection Act on the ballot next June. We plan to collect more than a million signatures, just to be safe.

That's a big number, but our partners will help, and if every Farm Bureau member collected just five signatures, we'd be halfway there.

Petitions are available at county Farm Bureau offices. You can also request a petition from the California Farm Bureau Web site at www.cfbf.com/protect or the Californians for Property Rights Protection Web site at www.yesonpropertyrights.com.

At each of those sites, you can learn more about the initiative and read it in its entirety.

We think the California Property Owners and Farmland Protection Act is something every family farmer and rancher in the state can support. Together, we will lead the way to assuring meaningful, long-lasting protection for private property.

California Farm Bureau Federation: http://www.cfbf.com

8/10/2007

Judge - OSU can use eminent domain to take property: Tulsa OK World, 7/23/07

A judge ruled Monday that Oklahoma State University can acquire through eminent domain the final piece of property it needs for a $316 million athletic village.

Judge Donald Worthington ruled in Payne County District Court that the university can take title to the home owned by Kevin and Joel McCloskey. He transferred the ownership of the land to the OSU Board of Regents.

The amount of money the university will pay the brothers for the ranch-style home in Stillwater remains to be determined by a jury trial.

The brothers challenged the university’s right to take the home through eminent domain, the legal concept under which private property can be taken for public use.

The property was estimated last year by a panel of court-appointed commissioners to be worth $84,000, about $20,000 more than the university offered the brothers for the parcel.

The McCloskey brothers said they would appeal Worthington’s decision.

Tulsa OK World: http://www.tulsaworld.com

Nantucket loses eminent domain case: Cape Cod Times, Hyannis MA, 7/20/07

By Hilary Russ
[Massachusetts'] highest court ruled yesterday that the town [of Nantucket] was wrong when it snatched a parcel of land near the airport in 1968.

The property, which abuts Nantucket Memorial Airport, was taken by eminent domain but the seizure of the property relied on shoddy records and a poor attempt to find the parcel's proper owner, according to yesterday's Supreme Judicial Court decision.

"As a matter of fundamental fairness, a town cannot take property, declare the owner to be unknown, and only then investigate whether there is anyone to whom damages can be paid," Chief Justice Margaret Marshall wrote.

It may not have been the only land to evaporate from town tax records long ago. "Some parcels of property simply dropped off the tax rolls in the 1920s and 1930s, particularly in the Surfside area of the town," Marshall wrote.

Another case, filed last year by a couple making similar allegations, may hinge on yesterday's decision, according to court documents.

Because the town took the land nearly 40 years ago, witnesses and documents the town needed in the case were long gone, town counsel Paul DeRensis said yesterday in a telephone interview. "Cities and towns and municipalities need to keep records and know where they are," he said. "We had nothing to work with."

The case decided yesterday was first filed in 2001 in Nantucket Superior Court, when William Devine claimed he was the true title-holder to a piece of land in the Nobadeer section of Surfside, just south of the airport. In 1923, the property was deeded in a will to Lewis Popham Carmer. For unknown reasons, the lot was removed from the town's tax rolls and listed as "owner unknown."

Fast forward to 1968, when the Nantucket Airport Commission voted to acquire the property by eminent domain. The town barely made any attempt to find Carmer, the real owner, beyond checking its own flawed tax records, Marshall said, affirming an earlier Nantucket Superior Court decision by Judge Daniel Ford.

But Devine, a genealogist, found Carmer. Devine's business was to find heirs to land who might be able to assert a claim where there was a defective title. He reached Carmer and offered him a joint proposal to profit off any claims, but Carmer just sold the land to Devine's attorney for $7,500 in 1985. The town started assessing taxes.

After that, the land was transferred to Devine, who put the land into a trust that began, in 2001, excavating to build a house. But the town claimed it owned the land, filled in the plot, revoked the building permit and moved the airport fence so it included the property, according to the SJC decision.

Cape Cod Times, Hyannis MA: http://www.capecodonline.com

Port Chester Businessman Wins Eminent Domain Battle: North Country Gazette, Chestertown NY, 7/22/07

After seven years of litigation, a federal trial judge confirmed last week what Bill Brody has known all along — the government must provide citizens with notice before their right to challenge eminent domain expires. Further, the judge ruled, the Village of Port Chester violated Brody’s rights by failing to do so.

The written by Judge Harold J. Baer, Jr., is a milestone in Brody’s ongoing battle. The New York Legislature, outraged over the injustices inflicted upon Brody, changed the state’s eminent domain laws to require mailed notice to property owners of the threat to their land as well as notice of their constitutional rights. Despite the amendments to the law, New Yorkers still must challenge the use of eminent domain against their property months or even years before the government ever actually moves to take the land.

“This is an important decision for the rights of property owners across the country,” said Dana Berliner, a senior attorney for the Institute for Justice, which represents Brody and property owners fighting eminent domain nationwide. “The judge has rejected the village’s dangerous attempt to undermine the Constitution and vindicated a fundamental principle: that the government cannot rely on hints and rumors to warn citizens that their rights are in jeopardy. It is the government’s job to provide citizens with fair notice — not the citizens’ job to chase down the government and ask if it plans to violate their rights that day.”

“Finally!” said Brody of the opinion. “I’ve said for years that Port Chester violated my rights, and I’m thrilled that a court finally recognized I’ve been right all along.”

While Brody was restoring four abandoned buildings in Port Chester, the village issued him permits but never once informed him that in the end it planned to take his buildings, bulldoze them, and hand the land over to a private developer for a Stop & Shop supermarket parking garage. Instead of mailing Bill notice of the imminent loss of his rights, the village published a legal classified ad that didn’t mention anything about the fact that property owners would be waiving their rights if they didn’t file a lawsuit within 30 days. Now, seven years after his fight began, Bill remains in federal court; proceedings later this year will determine what remedy Bill is due for the Village’s violation of his rights.

“This common-sense ruling is long-overdue: now, there is no question that Port Chester failed to provide Bill Brody with the basic notice guaranteed by the Constitution,” said IJ Staff Attorney Robert McNamara. “For property owners nationwide, this ruling means that there is still some teeth to constitutional protections for their homes and small businesses.”

“Bill Brody has waged a heroic fight against eminent domain abuse, and it is fitting that his constitutional rights have finally been vindicated,” said Chip Mellor, IJ president and general counsel. “His never-say-die determination is a shining example for home and small business owners across the country.”

North Country Gazette, Chestertown NY: http://www.northcountrygazette.org

Port Authority holds second hearing to receive public comment about downtown: Minnesota This Week, Burnsville MN, 7/20/07

By Tad Johnson
The direction of redevelopment in Rosemount’s Core Block East will be decided Monday, Aug. 6.

After receiving two nights of testimony about the city’s intent to use eminent domain to acquire the Ratzlaff Service Station property, the Port Authority is expected to vote during a special meeting at 6 p.m. at Rosemount City Hall.

Rosemount residents and concerned business owners spoke out against the proposal during two public hearings, the latest one Monday, July 16 at Dakota County Technical College.

An estimated 100-plus people attended the meeting that lasted two and a half hours. About 30 people spoke against the project that night, including a handful who were repeat speakers from the June 19 hearing. Four spoke in favor of using eminent domain.

The tense hearing included several direct pleas from residents urging the Port Authority not to use eminent domain.

At the end of nearly every speech, the audience met it with applause despite Port Authority Chairman Mike Baxter asking people to refrain from clapping.

At issue now is whether the Port Authority has determined it needs to use eminent domain and has exhausted all other avenues to redevelop one property owned by Dr. Kurt Walter-Hansen.

If it votes to condemn the property, a three-person panel of assessors will determine the property’s fair market value and compensation amount for Hansen. The process could last some time if it is contested.

Those opposed to eminent domain echoed similar reasons for their stance as in previous meetings.

They feel that eminent domain:

for economic development purposes is wrong because it gives private property from one landowner to another.
will negatively impact further redevelopment downtown as other landowners would have uncertain futures.
will negatively impact the future businesses in the development because many oppose the project.

Hansen expressed his opposition to the plan saying that eminent domain shouldn’t be used to take land away from one private owner and hand it over to another private owner.

He said local government has a role in economic development, but eminent domain is not an appropriate use of power.

“I am committed to working with the city so there is no need to use eminent domain,” said Hansen, who has made his own proposal for Core Block East redevelopment.

City officials have met with Hansen several times to discuss acquisition of the property and about the city’s redevelopment plan. The city made an offer on the Ratzlaff property April 13, but Hansen did not accept it.

Hansen has been opposed to the proposal to place a mixed-use retail and 100-unit apartment building on the site as proposed by Stonebridge Companies of Apple Valley.

Hansen has questioned if the city had correctly handled the transition of the development from Contractor Property Developers Company to Stonebridge Companies. Such a transfer of development companies was set forth in the agreement, according to city officials.

Hansen had sought to become the city’s chosen developer during the open request for proposals for Core Block East in 2005.
Other opinions

Don Ratzlaff, who operates the service station and truck rental business at the property under consideration for condemnation, said the city is going to need to redevelop that area of Rosemount, but this is not the right development.

“That’s Shakopee or Hopkins. I don’t see that in Rosemount,” he said pointing at Stonebridge’s concept plan for Core Block East.

He said if you want multiple housing in Rosemount, they have land available for multiples in the former Brockway Golf Course area.

By proposing to use eminent domain, he said the city has lost the trust of the people of Rosemount.

“I believe you need to turn that trust around,” he said. “Say no to a taking of a property.”

Kathy Klonecky, a member of the Save Rosemount Committee that has mailed four newsletters to residents regarding the issue, urged the Port Authority not to make a mockery of one of the primary values in life.

She said she gets physically ill when she sees someone else’s building on Hansen’s property.

Klonecky told Port Authority members that Save Rosemount has collected 4,000 signatures on a petition opposing eminent domain.

Deb Kaczmarek, a member of the Save Rosemount Committee, didn’t think the city should be involved in redevelopment.

“You are not smarter than the free market, and you are not smarter than the private sector,” she said.

Simon Walter Hansen, the son of Kurt Hansen and partner of the Tri-Store in downtown Rosemount, told the Port Authority that it should redevelop the former Genz-Ryan Plumbing & Heating property as the first project in downtown redevelopment.

“You can do it today. You can show what a big improvement it makes,” he said, adding that when it comes time to redevelop Core Block East, “I’m sure you will have everyone behind you once you have showed people it works.”

Ruthe Batulis, president of the Northern Dakota Chamber of Commerce, says revitalization of downtown Rosemount needs to be done.

She said representatives from the chamber served on the Downtown Redevelopment Committee that provided a vision for the guiding elements to make downtown a more attractive and interesting place.

She said redevelopment will help retain and bring additional businesses to downtown and create a solid tax base.

“It is critical that all parties act in a spirit of cooperation,” she said.

Kim Shoe-Corrigan, the only member of the Rosemount City Council who doesn’t sit on the Port Authority, said she supports the use of eminent domain.

“We need to move forward,” she said, citing that the city has tried to work with Hansen.

She said she feels that there has been many opportunities for citizens to participate and for business owners to participate. She said she is not in favor of scraping the work that’s been done by the Downtown Redevelopment Committee.

Minnesota This Week, Burnsville MN: http://www.thisweek-online.com

Eagan could use eminent domain: Minnesota This Week, Burnsville MN, 7/20/07

Despite protests by some businesses and residents, council votes to keep eminent domain as an option if negotiations fail to secure remaining Cedar Grove properties
By Erin Johnson
Although loyal customers showed up in full force to protest the move, the Eagan City Council on Tuesday voted to keep eminent domain as an option should negotiations to acquire remaining businesses in the Cedar Grove redevelopment area fail.

The city held a public hearing on the issue because, with about 14 properties left to be acquired, the clock is ticking on its ability to use eminent domain to secure them.

Minnesota last year amended its eminent domain law, restricting its use and making it more difficult for cities to acquire private property for redevelopment projects.

But cities that had redevelopment projects underway when the law changed are allowed to follow the old rules for five years after the redevelopment district was created.

For Eagan, the five-year deadline expires next July.

So far, the city has not had to use eminent domain in the area. It has already acquired about 15 properties through negotiations, but talks with some of the remaining property owners have stalled.

Director of Community Development Jon Hohenstein said the city invited businesses to conduct their own appraisals of their properties, which are then reviewed by the city’s appraiser.

According to the city, some property owners have not yet provided appraisals of the value of their property, while others have submitted appraisals that differ substantially from the city’s appraisals.

“We’ve had some situations where the seller’s appraisal and the city’s appraisal are very different, so far different that it would be difficult to close the gap through negotiations,” Hohenstein said.

The city said it will continue to try to negotiate with the remaining property owners and will use eminent domain only as a last resort.

“It remains our goal to reach 100 percent of acquisitions through negotiations,” said Mayor Mike Maguire. “We do not take the discussion of eminent domain lightly.”

But some business owners said they don’t think the city has been fair in its negotiations.

“I suggest that the walk the city has been walking doesn’t jibe with the talk it’s been talking,” said attorney Gary Fuchs, who represents some property owners in the area.

Dedicated customers of some of the remaining businesses — residents and non-residents alike — packed the council chambers to speak out against the use of eminent domain.

“It saddens me to think that the government of Eagan would bring itself down to the level to even use the words ‘eminent domain’ for some companies that have been with the city as long as they have,” said resident John Willenburg.

The majority of speakers were there to support two Cedar Grove businesses in particular that have yet to reach a deal with the city — the Mediterranean Cruise Cafe and Larson Automotive Services.

Owners of both businesses said they don’t want to leave the Cedar Grove area, where they have acquired a substantial customer base.

“We’ve been in the area almost 28 years. That’s a lot of time. That’s a lot of memories,” said Mediterranean Cruise Cafe owner Jamal Ansari. “We are here because we love what we do and we cater to the community. We do something unique that no one else does. ... We want to be treated fairly.”

Jerry Larson of Larson Automotive said that he’s spent “major” money on recent improvements to his building.

“We don’t want to sell our property, but basically you’re coming to take our properties,” he said.

Several people who attended the meeting questioned why the two businesses couldn’t be included in the redevelopment plans.

“You are doing a great thing, trying to make (Cedar Grove) the gateway to Eagan,” Ansari said. “Why can’t we be there?”

Hohenstein said the council has directed staff to work with the area’s new master developer to see if there are any options to keep more of the existing businesses in Cedar Grove.

Council members said they are open to the possibility of some existing businesses being included in the redevelopment plans. Maguire even admitted that hummus and tabbouleh from the Mediterranean Cruise Cafe have become staples at his annual fantasy football draft.

But the businesses are more than just the buildings, he said.

“They are you,” he said. “I hope on hope that we can find a way to work with your businesses, as well as all the others, to maintain your place in this community as true assets.”

Some business owners accused the city of making lowball offers on their property. Phil Fahey, who owns American Accounts and Advisors, said he knows the city has deep pockets and suggested it pay property owners “maybe double what the appraiser comes back with.”

“Share some of that wealth with the current property owners,” he said. “Why not pay us enough so we can stay viable?”

The city denied making lowball offers and said that it has to protect the integrity of its dollars for the entire community.

“Those deep pockets ... are a little bit of the pockets of every one of the 25,000 households that pays property taxes in this city,” Maguire said. “And we have to balance the interests of all of them as well.”

The council heard more than two hours of testimony from 48 people, all of whom opposed the use of eminent domain, before unanimously voting to retain it as an option.

Council Member Paul Bakken called eminent domain a necessary tool in the toolbox of public officials.

“If the city is not able to facilitate a development in that area that works, then the whole thing collapses and the city and the taxpayers are left holding the bag,” he said.

Plans to revitalize Cedar Grove have been in the works for about eight years. Once the “downtown” of Eagan and home to the first mall south of the river, the area began to decline in the 1980s when direct access to Cedarvale Mall was eliminated and Highway 13 was realigned.

The area is now primed to become an urban village with shops, restaurants, transit stations, housing and public spaces, with developers Doran Development and Pratt Homes at the helm.

City Attorney Mike Dougherty said that even if the city initiates eminent domain, it can continue negotiations with property owners throughout the process.

Minnesota This Week, Burnsville MN: http://www.thisweek-online.com

Setback for Newark condo project: Newark NJ Star-Ledger, 7/20/07

Judge rules city failed to prove that the 14-acre site on Mulberry Street is 'blighted'
By Katie Wang
A Superior Court judge in Essex County has dealt a major blow to a plan to build 2,000 condominiums in downtown Newark, saying the city failed to prove the area in question is deteriorating and in need of redevelopment.

The 71-page decision, issued yesterday, cites the watershed state Supreme Court decision, Gallenthin Realty Development Inc. vs. Borough of Paulsboro, handed down earlier this year that limits the government's power to seize land.

In the Newark case, Judge Marie P. Simonelli said the city cannot designate the 14-acre Mulberry Street area "blighted" simply because the property could be used for better purposes. Property owners fought the designation, saying the area was still thriving and that they did not want their land to be seized through eminent domain.

"The court finds that the city declared the entire Mulberry Street area as an area in need of redevelopment solely because it is not properly utilized and fully productive," Simonelli said in her decision. "Under the Gallenthin holding, this declaration does not meet the constitutional requirement of blight and must be invalidated and set aside."

The decision puts the future of the condo project in jeopardy, though all parties involved disagreed on whether the project is dead or viable in an amended form. The Mulberry Street condo project, which was to be developed by the Newark Redevelopment Corp., is slated for a prime tract one block from the Prudential Center arena, scheduled to open in October.

Stefan Pryor, the deputy mayor in charge of economic development, said the Booker administration is analyzing the judge's decision and refused to say whether it will appeal.

"The outcome of the case will not affect the arena project," he said.

John Buonocore, the attorney representing the plaintiffs, declared the condo project dead.

"We are delighted that the court saw through this pre-arranged land grab on behalf of politically favored developers," Buonocore said. "The ruling sends a message to politicians across the state that the courts will not sustain economic development takings under the guise of the redevelopment laws."

Bruce J. Wishnia, one of the principals of Newark Redevelopment Corp., said the decision is a sad day for the city and the state. He said he is not sure what this means for the overall project.

"If the Mulberry Street area is not in need of redevelopment, then the court needs to tell us what kind of area would be," Wishnia said. "If this decision if not reversed, it will effectively shut the door on urban redevelopment in our state."

The Mulberry decision comes at a time when land and redevelopment issues are under intense public scrutiny in a city that has struggled for decades to rebuild itself.

One week ago, Sharpe James, who served as mayor for two decades, was indicted on charges he steered lucrative land deals to companion Tamika Riley. The property owners in the Mulberry case have long alleged political contributions from the developers swayed council members to vote in favor of declaring the area in need of redevelopment.

The judge concluded her opinion with a tart reference to James' criminal charges.

"This evidence certainly provides cause to question the results and validity of the redevelopment investigation," she said. "However, the court mentions it for historical purposes only and makes no determination of the merits of plaintiff's corruption claim. It appears that such a determination may be made in the recently initiated criminal proceedings involving former Mayor James."

The Mulberry Street Redevelopment project made its debut five years ago during James' administration. In November 2002, Wishnia and his partner, Emile Farina, a former aide to then Councilwoman Bessie Walker, pitched the idea to Nathan Allen, director of the city's Department of Economic and Housing Development.

Plans called for the Newark Redevelopment Corp. to negotiate with property owners for their land. If negotiations failed, the developers planned to ask the city to use its condemnation powers to seize those properties.

According to Simonelli's ruling, there is no evidence any negotiations took place.

Instead, she said, the city pursued an investigation into declaring the area in need of redevelopment, paving the way for condemnation.

In her decision, Simonelli leveled stinging criticism at the snug relationship between developers and officials in the city. Attorneys, relatives and consultants affiliated with Wishnia and Farina donated an additional $53,325 to some council members when they were making critical decisions about the project, according to the plaintiffs.

"There is evidence in the present case that the Mulberry Street Redevelopment project and NRC's role as its developer was "a done deal," a fait accompli, before the required statutory redevelopment process began," Simonelli said.

City-hired planner David Roberts issued a report in April 2004 declaring the area in need of redevelopment because the parking lots, storage yards and businesses in the area "consumes land that could otherwise be available for much more productive uses."

But Simonelli faulted Roberts' report, saying it lacked empirical evidence to support his conclusions.

On Oct. 14, 2004, the planning board passed a resolution recommending the city declare the Mulberry Street area in need of redevelopment. The city council agreed and on Nov. 3, 2004, it passed a resolution declaring the area in need of redevelopment.

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

State loses appeal in eminent domain suit: San Antonio TX Express-News, 7/18/08

By Adolfo Pesquera
The Fourth Court of Appeals on Wednesday shot down an attempt by the state of Texas to reverse a $1.26 million award given to the Dallas-based owner of a San Antonio Holiday Inn Select. (Click here for court opinion: http://www.4thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=20332)

Bristol Hotel Asset Co., owner of the Holiday Inn Select near San Antonio International Airport, had sued the Texas Department of Transportation over its eminent domain taking of just over 1 acre.

The taking — a 10-foot-deep strip that faced the frontage road to Loop 410 — was for expansion of the freeway.

The Bexar County Probate Court No. 1 judgment in favor of Bristol took into account the property's diminished market value.

David Bolton, a real estate appraiser and expert witness for Bristol, testified that the condemnation caused the owner to permanently lose its main entrance and several parking spaces.

Major modifications had to be made to the remaining west and east entrances in order to bring the property back into compliance with safety and disability access regulations.

Bolton recalculated the capitalization rate — the rate looked at by investors — and decreased the hotel's value by 5 percent.

The state's main argument was that Bolton should have been disqualified as an expert witness, and probate Judge Polly Jackson Spencer abused her discretion by not doing so.

Justice Karen Angelini, in answering for the Fourth Court, noted Bolton had been an appraiser for 41 years and was a member of the Appraisal Institute since 1972. Angelini said Bolton's methodology, basing damages on a commercial property's income stream, was appropriate since that is the method used by investors.

"Bolton considered the most important impact on the property, from an investor's standpoint, to be the hotel's loss of its main entrance drive," Angelini wrote. "The hotel would no longer operate as designed."

Bolton also noted the hotel sign was no longer in compliance with setback requirements.

San Antonio TX Express-News: http://www.mysanantonio.com

Ohio eminent domain law might change: Newark OH Advocate, 7/19/07

By Howard J. Siegrist
In the aftermath of controversial eminent domain cases in the U.S. Supreme Court and the Ohio Supreme Court, the Ohio legislature now faces two bills aimed at the heart of the eminent domain controversy.

Senate Bill 7 and House Bill 5 propose greater limitations on the government's right to take private property for public uses. The legislation addresses situations where eminent domain would be used on "blighted" properties and for economic development purposes.

The two bills result not only from the recent court cases but also from a statewide task force formed in 2006. The Ohio legislature appointed the task force after the U.S. Supreme Court issued its ruling in the Kelo case, ruling taking of private property for economic redevelopment in Connecticut was not unconstitutional because the state's statute permitted the taking as a valid "public use."

The Ohio task force issued a report in late 2006 that included recommendations for ensuring that Ohio's statute did not permit similar types of takings as the Connecticut case.

Just after the task force report, the Ohio Supreme Court made its ruling in City of Norwood v. Horney, a case that challenged an eminent domain proceeding in a blighted area near Cincinnati. The deteriorating area was to be transferred and redeveloped by a private developer. Ohio's highest court, however, ruled that unlike Connecticut, Ohio law did not authorize the use of eminent domain for such a purpose.

The bills in front of the Ohio legislature would incorporate the Norwood case and some of the task force's recommendations into Ohio's eminent domain statute, Chapter 163 of the Ohio Revised Code. While the two bills differ, several key provisions are similar. A few of these would change our eminent domain law to include:

A requirement that any use of eminent domain be necessary and for a public use.
Clarification of the "public uses" for which eminent domain may and may not be used. Both bills set restrictions on public uses that are for economic development, increasing public revenue, or conveying land to a private commercial enterprise.
A uniform definition of "blight" that includes specific criteria for determining whether a property or an area is "blighted" for purposes of eminent domain.
An exemption for agricultural land that prevents such land from being declared blighted absent any showing of environmental or public health hazards.

Both proposals include other revisions to the eminent domain statute. The bills are progressing through the Ohio Senate and House of Representatives.

To read the bills, an analysis of their provisions and their status in the legislature, visit the Ohio Legislature's Web site at www.legislature.state.oh.us and search on S.B. 7 and H.B. 5.

If the bills pass, look for a full analysis of the new legislation.

Newark OH Advocate: http://www.newarkadvocate.com

Howard J. Siegrist is an extension educator at Ohio State University Extension. He can be reached at (740) 670-5315.

OK given extending city's use of eminent domain: San Diego CA Union Tribune, 7/18/07

By Tanya Sierra
National City [CA] officials can use their eminent domain authority until 2017 after the City Council last night voted 3-0 to approve the extension.

Three of the five council members made the decision after several meetings in which protesters blasted the council, and at least one councilman blasted back. Council members Rosalie Zarate and Frank Parra, who were absent last night for other reasons, recused themselves from the issue because they own property within the city's redevelopment area, where eminent domain would be used.

Eminent domain allows government to take blighted private land to make way for new development. Owners are paid market rates for the properties.

An East Coast civil liberties law firm is preparing to file a legal challenge to the extension, saying National City's methods have violated state statutes, as well as the U.S. Constitution.

City officials don't see it that way.

“Eminent domain is a tool that needs to be used,” said Councilman Fideles Ungab. “It needs to be used properly. If we have to take a property, we will give them an honest deal as long as I'm in office.”

Last week, Councilman Luis Natividad grew frustrated when an opponent called the policy eminent theft.

“For those who say I already had my mind made up before the hearing, that's a lie,” Natividad said last week. “I slap back; that's how I am. I'm not going to sit here and take abuse.”

Before the meeting, Herman Baca, who heads a Chicano rights group in National City, issued a two-page statement criticizing the mayor on his eminent domain position. Baca said extending the city's condemnation authority is politically risky and could end in a recall or with the recently increased sales tax repealed.

Mayor Ron Morrison waved off Baca's letter, saying most of it was lies.

“Eminent domain is a necessary evil whether we like it or not,” Morrison said. “We need to keep as many tools in the toolbox as possible. But just because you have a tool, doesn't mean you use it right off the bat.”

San Diego CA Union Tribune: http://www.signonsandiego.com

City OKs eminent domain use for Nelson House: Today's Sunbeam, Salem NJ, 7/18/07

By Robert Linnehan
[The Salem NJ] City council has unanimously approved the use of eminent domain to obtain ownership of the fire-damaged Nelson House on East Broadway in the heart of the Salem business district.

The action was announced after an executive session of council Monday night.

Council's action sets forth the proper procedures for the transfer of ownership of the Nelson House to the City of Salem and will likely take several months to complete, said Mayor Earl Gage.

The decision to use eminent domain was due to what the city says is the unwillingness of Len Straub, the owner of the Nelson House, to properly secure the building despite having ownership for the past year, Gage said. Straub purchased the building last year in early August 2006. It was later that month that a major fire hit the building.

"It's not closed off for the weather. This building burned a year ago and it still does not have a roof. We've sent Mr. Straub numerous letters about our intentions," Gage said.

"If it's not closed off to the weather it will fall down. We don't want another building sitting in the middle of our downtown like the Fenwick Building. We don't want to make plans to start propping the Nelson Building up two years from now when it starts to collapse."

In addition to the roof, numerous windows in the building still remain broken and wide open.

The Nelson House was the apparent target of an arsonist on Aug. 19, 2006, when 110 firefighters from four different counties were dispatched to fight a blaze that tore through the building for about four hours.

An investigation by New Jersey Arson Units confirmed the fire was an arson.

A number of developers have approached Straub asking to buy the property and have offered fair market prices, but Straub was unwilling to sell, Gage said. The city council also ordered an appraisal of the building and offered to purchase the building from Straub, but the owner stated a counter offer that Gage described as "completely out of line."

Straub could not be reached for comment on the city's claims.

The case will be brought to court and heard by a judge. If the judge rules in favor of the city, a fair market price will be determined by the court and the City of Salem will put funds into a trust for the owner.

If the building is transferred over to the city, Gage said a new roof will immediately be put on to protect the structure. It would then be determined if the Nelson House would be sold to a developer by the city.

"The eminent domain process is not set in stone. If Straub wants to sell us the building he could do so at any time," Gage said. "We've never had to use this process before. It's not our way of going about things, but reluctantly we had to do what's best for the revitalization efforts of our city."

Today's Sunbeam, Salem NJ: http://www.nj.com/news/sunbeam

Council ends eminent domain attempt: Hackensack NJ Herald News, 7/17/07

By Suzanne Travers
Residents of two [Lodi NJ] trailer parks rejoiced Tuesday after the Borough Council ended an attempt to use eminent domain to seize private land for use by a developer.

At a Monday night meeting, the five-member council voted unanimously to drop the appeal of a lower state court decision that found the borough had no grounds to seize the land at Brown’s Trailer Park and Costa Trailer Court. More than 40 residents live in trailers at the trailer parks along heavily-traveled Route 46.

Kendall Kardt, president of Save Our Homes, a group of trailer park residents who fought the town’s seizure attempt, said about 20 members of the group attended the meeting and applauded the council vote.

“Everybody was very happy,” Kardt said Tuesday. “I believe that a lot of people in town found this repugnant on a lot of levels. They felt threatened themselves by the idea that eminent domain could be used to put people out of their homes.”

Councilman Marc Schrieks had supported the borough’s attempt to seize the land on the grounds that private development there would create new tax revenue, and also voted to appeal a state Superior Court judge’s 2005 decision that found the borough had not provided sufficient evidence that the trailer parks met the criteria for a blight designation. The case was argued at the Appellate Division of state Superor Court in Hackensack in January, but the panel has not yet issued a ruling.

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

City to examine buildings for ‘blight’: Desert Dispatch, Barstow CA, 7/16/07

Study needed to extend eminent domain authority
By Jason Smith
The [barstow CA] Redevelopment Agency approved a contract Monday to perform an economic study of deteriorated and abandoned buildings in the redevelopment area. The results of the “parcel-by-parcel blight study” will be used to amend the redevelopment plan and possibly extend the city’s eminent domain powers for another 12 years.

The $30,550 contract was awarded to Corvina-based GRC Associates, Inc. The company stated in its proposal that it will use a combination of sources field surveys, crime statistics, U.S. Census data, and active building code violations in order to determine levels of blight.

The California State Safety Code defines blight as “buildings in which it is unsafe or unhealthy for persons to live or work.” The code further states that blight increases the “obsolescence, deterioration, and disuse” of surrounding land, depressing property values and discouraging economic activity.

According to city documents, the study is required under state law in order for the city to retain its eminent domain authority allowing it to force owners to sell their properties to the city for use for projects.

RDA President and City Council member Joe Gomez said that although he is concerned with blighted areas in the city, “especially along the Route 66 corridor from Muriel to First Street,” he opposes the use of eminent domain.

“I think that the local government shouldn’t have so much power to take the taxpayers’ property away. I don’t think that’s why we got elected,” Gomez said.

City spokesman John Rader said that the use of eminent domain is important for economic development. He stressed that the study will not change the boundaries of the redevelopment zone and residential property owners will not be affected.

“The redevelopment plans do not allow for the agency to exert its eminent domain authority with regard to legally occupied residents,” Rader said.

Despite the assurances that eminent domain powers will be used responsibly, some critics fear that the legal definitions of blight offer the government too much flexibility.

“If you’re creative enough, you can call anything blight. The state definitions and standards are a joke,” said James Burling, director of litigation for the Pacific Legal Foundation, a group that opposes eminent domain abuse.

Desert Dispatch, Barstow CA: http://www.desertdispatch.com

7/31/2007

Senate had the right idea: Akron OH Beacon-Journal, 7/16/07

Letter to the Editor
By Michael G. McFeely, Willoughby
The Ohio House was wrong to block efforts to reform eminent-domain law with a constitutional amendment. Many of us were dismayed when the U.S. Supreme Court refused to curb abuse of these powers, and we had hoped the states would step in to strengthen property rights.

Gov. Ted Strickland signed compromise legislation July 10. But the Ohio Senate was on the right track in its efforts to reform eminent-domain law. Local governments have not respected property rights, so these rights must be given clearly written constitutional protections that override home rule.

Your June 26 editorial headlined ``Hard bargain'' called for the House to hold firm against the Senate's version of eminent-domain reform, which you described as onerous, arguing that local entities do not recklessly use eminent domain. Let's take a look at how local governments have used and abused eminent domain.

When the Ohio Supreme Court ruled last year on eminent-domain use in Norwood, it found that local officials had abused their authority, and the court restored ownership of homes and businesses to their rightful owners. The significant thing to note about this ruling was that it was unanimous, which means that the issue wasn't even a close call, and yet Norwood officials had voted to trash property rights. In this case, a retired couple were driven out of their home when the city applied its version of eminent-domain law.

In December, the city of Cuyahoga Falls enacted a blight definition with conditions that include age, obsolescence, lack of open space, density, street layout, lot layout, proximity to other blighted properties, and something called ``incompatible land use.'' A parcel only has to have two of these criteria to be declared blighted and taken. Property rights should not dissolve in so many subjective ways.

The owner of Akron's Katmandu restaurant was threatened with the taking of his business by eminent domain for a car dealership, before selling under duress. Was that really necessary?

In Cleveland, a developer made only a half-hearted attempt to purchase property in the Flats and instead just handed over the acquisition of land to the Port Authority with its eminent-domain powers. You can do that when you have government on your side. Was seizing property in the Flats really a ``tool of last resort,'' as your editorial described eminent domain?

In March, I testified before the Ohio Senate that if home rule were to prevail in defining blight, local governments would be both the rule-making authority and the beneficiary in eminent-domain cases, hardly a fair and impartial environment for property owners. Local governments that are trying to raise the tax base and thereby tax revenue - and governments never say they have enough tax revenue - would continue to set the bar low for defining blight and the taking of homes and businesses.

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

7/30/2007

'Pioneers' put out by Riverfront renaissance: Wilmington DE News Journal, 7/17/07

Small-business owners say they deserve better than eminent domain
By Adam Taylor
A new plan by the city to use eminent domain to condemn as many as 62 properties in southern Wilmington has some of the owners feeling that they are being kicked out of the renaissance taking place in that part of the city.

City officials have a new vision for the part of southern Wilmington near the $200 million Christina Landing development. But their vision of a neighborhood full of town homes, shops and office buildings does not include some of the area's existing businesses, such as Osborne's Auto Service, located across the street from the upscale residential complex.

Owner Ed Osborne said he feels kicked to the curb.

"I was down here when no one else wanted to be," he said. "I keep a clean business, and called the police when pimps and prostitutes were here. I feel as though I was part of the small group of pioneers who stayed to keep this part of the city from becoming totally uninhabitable."

Mayor James M. Baker said the property owners' concerns are "nonsense." The city has to grow, he said, and southern Wilmington is one of the undeveloped places where that can happen.

"This doesn't have anything to do with being mean and arrogant, and smacking people in the belly," he said. "This is the process we need to have in place to begin fair negotiations with them."

If property owners don't sell voluntarily, the city could seek to condemn them. To do that, the city would have to prove, among other things, that there is a shortage of housing in the area, that the properties represent neighborhood blight, and that the acquisition of the properties is needed to meet the new community objectives.

The city would have to make its case at condemnation hearings in Superior Court, and the rulings could be appealed.

Three steps to help plan along
City Council introduced three measures last week to allow the plan to proceed. One is a proposed ordinance to change the South Walnut Street Urban Renewal Plan; the second an Aug. 23 public hearing on the proposed changes; and the third is an agreement for the Riverfront Development Corp. to oversee the changes if they go through. The corporation is a state-funded agency that has overseen a decade of redevelopment on the Christina Riverfront.

The city's Planning Commission will discuss the proposed changes to the urban renewal plan at 6:30 tonight at the Louis L. Redding City/County Building at Eighth and French streets.

There are no residential properties among the 62 the city wants to acquire, and most are vacant.

Using them for homes and shops instead, city and state redevelopment officials think, would help achieve the critical mass needed for a thriving neighborhood. More residents would attract more restaurants, boutiques and other stores necessary to make the decade-long riverfront-transformation experiment a success.

Attorney Rich Abbott represents five of the property owners, including Osborne.

"This is the city's way of getting land on the cheap for the big private developers who have interests in expanding down there," he said.

Chief among those would be Buccini/Pollin Inc., the Wilmington developer responsible for Christina Landing and the $500 million Justison Landing mixed-use development going up on the north side of the river. Rob Buccini acknowledged he's interested in the land and will respond to a request for proposals the Riverfront Development Corp. will issue if the changes are approved by the city.

Buccini said he's confused by the controversy.

"I hope the property owners there are appreciative of the significant wealth that the construction of the Christina Landing development has afforded them," he said. "Before we were there, that land was worth nothing. Now it's worth several hundreds of thousands of dollars an acre or more."

Attorney has alternate plan
Abbott said the city is trying to sneak the changes through in the dead of summer, when people are not paying close attention to government affairs or are away on vacation. Abbott, a former New Castle County councilman, said it's an old trick that works.

Baker said the process has been open and there was no devious plan to put it into the legislative pipeline now.

Buccini said no one should be surprised. Much of the area was rezoned four years ago to pave the way for these changes, and two years ago some of the junkyards in the area were forced to leave.

Earlier this year, the city held a community meeting to address the urban renewal plan. Osborne attended that meeting, but said there was no mention of taking properties by force. The first he realized that could happen was when he got a letter from the city earlier this month announcing tonight's meeting and stating his property might be acquired by the city "using its powers of condemnation as a slum clearance and redevelopment authority."

Abbott said he'd like the opportunity to convince city officials of his alternative idea that would please most of his clients. He said the light industrial zone on now-undeveloped land that is in the plan should be expanded to include frontage on Walnut Street. The existing businesses could relocate there through a land swap.

Baker said it's premature to discuss such things. The city doesn't know how many of the 62 properties it will eventually need and it could be years before the city gets enough money to acquire them.

That's all the more reason the process needs to be slowed down or stopped for now, said state Rep. Dennis P. Williams, D-Wilmington North.

"I support the mayor's effort to move the city into the 21st century, but there has to be fairness across the board," he said. "The city should put a hold on this, and go to the table with each property owner and negotiate with them first."

Baker said the property owners would be paid fair market value for their properties, but Abbott predicts his clients would get much less.

'This place is my life'
Abbott said the values of their businesses aren't factored into the appraisals, and many of them need to stay where they are to retain their customers.

The city's effort comes at a time when city officials have put an unprecedented amount of attention and resources into long-underserved southern Wilmington. There is a comprehensive development plan to revitalize the area during the next 25 years that city officials say the new changes will mesh with. And Southbridge, southern Wilmington's sole residential area, recently was named as the neighborhood that the
Wilmington Hope Commission will saturate with social services in an effort to reduce violent crime.

Osborne said he wants to give his business to his sons, with the possibility of their passing the business down to their children.

"I don't mind being moved nearby, but I don't want to outright sell," he said. "The most important thing in my life is my family, and this little piece of dirt I own has allowed me to provide for them. A little bit of money won't help me be able to pass on my family business. This place is my life.

"I feel like I'm being stripped of anything I worked for in my life, including being part of this community."

Wilmington DE News Journal: http://www.delawareonline.com

A Reversal of Blight - Eminent domain and redevelopment: New Jersey Eminent Domain Blog, 7/2/07

By Bill Ward
Recent case law suggests that more than a few municipalities declare blight based on reports that cite statutory language without analysis of the property and the categories selected, and most importantly, without linking the criteria to the health, safety and welfare of the community. Many experts presented by the municipalities do not provide substantial, credible evidence to support a conclusion that the study area is in need of redevelopment. These cases and others are discussed in my recent article, Defining Blight: First Steps in the Redevelopment Process published in the New Jersey Law Journal.

Prior to the Kelo case, Camden County Assignment Judge Francis J. Orlando, Jr. set aside a municipal decision designating an apartment complex as an area in need of redevelopment in Spruce Manor Enterprises v. Borough of Bellmawr 315 N.J. Super 286 (Law Div. 1998). No evidence was presented to show how obsolescence, faulty design, excessive land coverage or obsolete layout was detrimental to the safety, health, morals, or welfare of the community.
In Winters v. Township. of Voorhees 320 NJ Super 150 (Law Div 1998), Judge Orlando reversed a blight designation on an 18-acre municipal-owned tract that the township intended for construction of an ice rink. Voorhees argued that the revision of the statute in 1992 created two categories of land eligible to be designated as in need of redevelopment: land that is used by public entities and unimproved land that is not likely to be developed by private capital. The township argued that municipal ownership is all that is needed in order to declare the site a redevelopment area. Judge Orlando disagreed, concluding that ownership of a tract of land by a municipality is not, standing alone, sufficient to support a redevelopment designation; it additionally requires substantial evidence that the land is not likely to be developed through the instrumentality of private capital in order to declare a site a redevelopment area. 320 N.J. Super at 156.
In a post-Kelo case, ERETC LLC v. City of Perth Amboy 381 NJ Super 268 (App Div 2005), the blight designation was reversed because city’s decision to designate the property as in need of redevelopment was not supported by substantial evidence. The court noted:
You can’t just say by reason of dilapidation you’re in an area of redevelopment. You have to indicate how that’s detrimental to the safety, health, morals, or welfare of a community. And in order to demonstrate that … that’s where the evidence comes into play. That could have been demonstrated or possibly demonstrated through zoning violations, building code violations, fire reports, something of that nature. Again, that wasn’t present in the report. (381 N.J. Super at 275)
In Quagliariello v. Township of Edison (L2922-02), Middlesex County Superior Court Judge James Hurley set aside the township’s determination that the property, a charter bus facility, was an area in need of redevelopment. Edison was unable to demonstrate any public purpose for the taking and would have used its eminent domain powers for private purpose to build a Walgreen’s Pharmacy. The township’s expert only made exterior inspections of the property. As Judge Hurley noted in his opinion:
The totality of the Township’s complaints essentially amount to a pothole in the pavement, two boarded-up windows, a few cracks, and a gutter that needed to be cleaned. The Subject Properties were kept in better condition than many people keep their own homes.
Judge Richard J. Donahue dismissed a blight designation for a Bergen County trailer park in 2005, concluding that the municipal planner failed to address the important criteria of the LRHL. In LBK Associates, LLC and Save Our Homes v. Borough of Lodi, (Law Division, A-001829-05), now in the Appellate Division, the planner failed to do interior inspections of the trailers or cite specific safety violations. Judge Donahue said that a mere finding of a need for redevelopment is not enough, and there would have to be an additional showing of public purpose.
In an unreported decision, Township of Bloomfield v. 110 Washington Street Associates, Essex County Assignment Judge Patricia Costello dismissed the eminent domain complaint against 110 Washington Street. None of the criteria cited by Bloomfield were connected to health, safety, or welfare of the community:
In essence, the municipality took the brief description of the property (which arguably was underutilized, vacant and externally neglected as a result of the municipalities’ own actions – see supra), and concluded without any further analysis that this condition equated to a detriment to the public health, safety and welfare. (page 6)

All of these cases paved the way for Gallenthin Realty v. Paulsboro. Contrary to Justice Kennedy's statement in the Kelo arguments, blight is not in the eye of the beholder. Defining blight requires substantial evidence. The Gallenthin opinion will be read carefully by trial and appellate judges when they consider municipal attempts to blight properties under the criteria in N.J.S.A. 40A:12A-5 (a-h).

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

Oak Forest has no plans for eminent domain: Oak Forest IL Star, 7/15/07

By Michael Drakulich
Oak Forest's attempt to extend a tax increment financing district to make way for new development cleared another hurdle last week.

At the same time, though, city officials found themselves having to assure residents living within the district near 159th Street and Central Avenue that any planned development would not force them out of their homes.

The city held a public hearing on the district's TIF extension before last week's city council meeting. Such a hearing is a legal requirement for creating such a district or amending its conditions, giving residents a chance to voice their concerns.

Residents living on Carol Belle Trail, which lies within the district, wanted to know how they would be affected.

Kim Oboikovitz asked specifically whether the city would possibly use eminent domain powers to force residents out and bring new development in.

City officials said there were no plans to move residents. The city is targeting development for the vacant land now used for Oak Fest, and perhaps part of the church property, Mayor JoAnn Kelly said.

The city wants to extend the life of the district for 12 years, but there was some debate among officials as to when the current TIF district expires.

Some said the current TIF had four years remaining on it, but city administrator Steve Jones said he believes it expires in 2009.

The district lies near 159th Street and Central Avenue. It is occupied by Food 4 Less, Midlothian-Oak Forest United Methodist Church, the Oak Fest site and a residential subdivision.

The city is seeking an extension to attract potential developers to the site. Officials have said without it, finding a developer for the site would be much more difficult.

The revenue generated from the TIF district could be used for continued infrastructure improvements.

Jones said there are two steps left before the extension can go into effect.

First, Gov. Rod Blagojevich must approve the extension. Then the city will have to approve a series of resolutions, officially adopting the extension and a revised redevelopment plan.

Jones said among those resolutions is declaring a surplus for local taxing bodies.

He said tax revenue generated by developments built since 1986, such as the homes on Carol Belle Trail and a portion of Oak Forest Commons, would be declared a surplus in the TIF fund.

Those surplus funds would then be distributed to local taxing bodies, such as Bremen High School District 228 and Arbor Park School District 145, among others.

Jones said he expects the matter to come before the city council no earlier than next month.

Oak Forest IL Star: http://www.starnewspapers.com/oakforest

Neighborhood Fights Project with Eminent Domain Proposal: WFSB-TV3, Waterbury CT, 7/13/07

Project In Waterbury Would Add 1,200 Condos
Neighborhood advocates are asking Waterbury [CT] officials to consider buying land out from under developers using eminent domain.

The Waterbury Neighborhood Council has asked the mayor's office to review a strategy that would target properties where developers are pursuing permits for unpopular housing projects.

In the past year, developers have filed applications that, in total, would add more than 1,200 condominiums to Waterbury.

Council members have opposed the projects, saying the proposals would overwhelm city schools and degrade neighborhood character.

WFSB-TV3, Waterbury CT: http://www.wfsb.com