Pushing the limits of 'public use' — USA Today, 3/31/2004

By Dennis Cauchon
Rene Corie installs drapes in Florida mansions. Her husband, David, builds the mansions' gates.

Eight years ago, the working-class couple finally found some waterfront real estate they could afford: a two-bedroom house for $70,000 in Riviera Beach, a poor town near the wealthy enclaves of Palm Beach and Jupiter.

But Riviera Beach now wants to bulldoze the Cories' home and 2,200 others to make way for one of the nation's grandest redevelopment plans: a collection of high-rise condos, bigger homes and upscale shops. The city plans to use eminent domain — its power to confiscate private property for projects that benefit the public — to take the homes of 5,100 people if the residents do not agree to move.

"It's un-American to take my property and give it to a private developer," says Rene Corie, 55. "I couldn't afford a water view anywhere else."

The use of eminent domain is meeting growing resistance in courts, legislatures and neighborhoods from Connecticut to Ohio and Colorado. The criticism targets local governments' efforts to spur economic growth by transferring land from homeowners and shopkeepers to developers or corporations.

Local governments are using eminent domain to acquire land for Wal-Mart, Target and other retailers that need big sites for stores. Land also is being taken for manufacturing plants, hotels, condominiums and parking lots.

Riviera Beach Mayor Michael Brown says his predominantly black community is trying to take advantage of its greatest resource: the waterfront. "For their own selfish reasons, some people want to live near the water and pay little or no taxes," he says. "Who wouldn't? But city government has to look out for all residents."

Larry Morandi, environmental program director for the National Conference of State Legislatures, says cities are using eminent domain to address financial problems. "They are taking property they don't believe is generating enough tax revenue and turning it over to a developer who will generate more taxes," he says.

To accomplish this, cities are pushing the legal limits of eminent domain. California City, Calif., declared vacant property in the Mojave Desert as "urbanized and blighted" so it could acquire land for a Hyundai auto testing facility.

Legislatures in 10 states this year are considering limits on the use of eminent domain that benefits private corporations, but the measures aren't likely to pass immediately. "It's a tough concept for legislators to understand," Morandi says. "It often takes several years for these types of laws to pass." The Arizona Legislature last year enacted similar limits.

"The use of eminent domain has expanded for years, but the pendulum is swinging the other way now," says Scott Bullock, attorney at the Institute for Justice, a non-profit legal group in Washington, D.C., that is trying to establish precedents for limiting the practice.

Government at all levels has long used eminent domain to acquire land to build roads, schools, parks, hospitals and other projects of public benefit. The Constitution says private property can be taken for "public use" if the owner receives "just compensation." Courts have traditionally defined "public use" broadly. "Just compensation" usually means fair market value as determined by an appraiser.

Whether economic development justifies the use of eminent domain is at the heart of many disputes.

In a landmark case, Detroit cleared the ethnic Poletown neighborhood in 1981 for a General Motors luxury car plant. The city took 1,300 homes, 140 businesses, six churches and a hospital. The Michigan Supreme Court is considering whether to overturn the precedent in a current case that involves taking 1,300 acres near the Detroit airport for a business complex. [Note, this was written in March 2004, before the Michigan court overturned Poletown in the case of Wayne County v. Hathcock; it was also before the US Supreme Court agreed to hear the case of Kelo v. New London, now on the docket for the 2004-2005 term. See archives for details.]

City planners say eminent domain is a crucial tool for restoring the economic health of cities and older suburbs. Older communities often need higher tax revenue and new attractions to remain vibrant.

"Sometimes you have to acquire an old gas station or massage parlor to make way for a better use," says Jeffrey Finkle, president of the International Economic Development Council, an association of professionals involved in community development. "The community is often 100% behind these projects, and the problem may be one landowner who wants $1 million for a $400,000 project."

New York City used eminent domain to acquire land for a Pathmark supermarket on 125th Street in Harlem.

"Without eminent domain, that supermarket never would have happened," says Orlando Artze, program vice president of the Local Initiatives Support Coalition, a national non-profit corporation that helps revitalize urban neighborhoods.

Harlem's Pathmark store has brought the neighborhood 100 jobs, lower food prices and the convenience of not having to travel 40 blocks to shop, Artze says. But he and other urban planners fears that aggressive use of eminent domain could backfire. "If it's overused, we run the risk of legislatures and courts becoming skeptical — and that would be bad news for people who care about inner cities," he says.

In Florida, Riviera Beach, a city of about 30,000 people, wants to redevelop 800 acres along its waterfront and U.S. Highway 1 with luxury housing, yachts and upscale shops.

The mayor says the project will increase the assessed value of the property from less than $80 million to as much as $2 billion. The added tax revenue will finance better roads, new schools and safe streets, Brown says. "We will eliminate poverty in Riviera Beach."

But Herman McCray, a restaurant owner and former city councilman, says razing whole neighborhoods is too great a price to pay. "Things should be done in moderation," he says.

Rene Corie's waterfront view may soon be gone. Across the street, a lot has been cleared for high-rise condos. The developer plans to build an 8-foot-high wall around the complex. "They are taking what I love," she says.

The mayor sees it differently: "The people who live on the water are cheating the poorest members of our community."

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USA Today: www.usatoday.com

Future of eminent domain focus of MSU College of Law symposium — Michigan State University College of Law, 11/10/04

Michigan State University College of Law will host a half-day symposium, “The Death of Poletown: The Future of Eminent Domain and Urban Development after County of Wayne v. Hathcock,” from 1 to 6 p.m. Friday, Nov. 12, at MSU’s Law College Building. The event is open to students, legal educators, legislators and practicing attorneys.

At the symposium, leading property law experts will speak about Hathcock’s impact in overruling the Michigan Supreme Court’s famous 1981 Poletown decision, which had insulated municipalities from judicial scrutiny of whether their condemnations of private property meet the constitutional requirement that this occur only for a “public use.” The result was an explosion in the use of eminent domain for private urban development. Panel discussions at the symposium will focus on eminent domain and its use in urban development under the new “public use” standard established in Hathcock.

“The Michigan Supreme Court’s decision in Poletown is famous for two reasons,” said Adam Mossoff, an assistant professor of law at MSU and the organizer of the conference. “First, it effectively eliminated the ‘public use’ requirement in the eminent domain provision of the Michigan Constitution, and, second, it was the first such decision in the country, with the federal government following suit in 1984 with the U.S. Supreme Court’s Midkiff decision. Thus, the implications of Poletown’s reversal are tremendous.”

Panelists include Eric R. Claeys from St. Louis University School of Law; James W. Ely Jr. from Vanderbilt University; James E. Krier from University of Michigan Law School; Lee Anne Fennell from University of Illinois College of Law; William A. Fischel from Dartmouth College; and Ilya Somin from George Mason University School of Law.

In addition, Alan T. Ackerman of Ackerman & Ackerman, and Mischa M. Gibbons of Zausmer, Kaufman, August & Caldwell, two attorneys who worked for the opposing parties in Hathcock, will speak about their experiences in litigating the case.

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Contact: Janet Harvey-Clark, MSU College of Law, (517) 432-6959; or Russ White, University Relations, (517) 355-2281, whiterus@msu.edu

City staff explain redevelopment regulations — Bowling Green (KY) Daily News, 11/10/04

Officials plan to keep moving ahead with downtown projects

By Jim Gaines
Bowling Green’s city commissioners and a small crowd from interested organizations got an exposition Tuesday night of city staff’s efforts to buy land for downtown redevelopment.

“We want to go over what the process is,” City Manager Chuck Coates said. “This is not a discussion on LifeSkills; this is not a debate with the Downtown Redevelopment Authority.”

The city is involved in a disagreement with the Kentucky Heritage Council over whether it has to review for historic significance every building more than 50 years old, which the city wants to buy, in a 29-block downtown area, or consider only those bought with federal dollars.

To detail that discussion, a special commission meeting – “strictly informational” – was scheduled, Coates said.

The city’s role in downtown revitalization efforts is to acquire, clear and assemble property for redevelopment, he said. That must involve some local money, since the $674,000 a year Bowling Green gets as federal entitlement money won’t be enough.

Some local money will go to buy land for the Southern Kentucky Performing Arts Center’s planned downtown site and other projects, Coates said.

“We will be using city dollars to acquire a site for a ballfield, if that comes together,” he said.

Alice Burks, assistant to the city Housing and Community Development Director – Special Projects, gave commissioners an explanation of the federal regulations – referred to as Section 106 – governing how to deal with historic properties.

“The reason that the city of Bowling Green gets involved in Section 106 is when we receive federal funding,” Burks said. The Housing and Community Development Act of 1974 requires the city to review buildings more than 50 years old for historic significance if they’re slated to be demolished or affected by redevelopment projects.

“We are the ones that have to make the final decision,” she said.

That usually boils down to a discussion and agreement between the city and the state historic preservation office, Burks said.

Consideration of historic significance doesn’t prohibit demolition; it just makes sure that historical importance is taken into account and that all options are considered, she said.

The current disagreement concerns the planned purchase and demolition of 538 State St., adjacent to Circus Square, for a new headquarters for LifeSkills.

The city says that that’s an isolated project, not subject to the review standards since the land is being bought with local money rather than federal dollars. The Kentucky Heritage Council says the overall effect of redevelopment requires a broadening of the review.

“They think that Circus Square has an effect on the entire 29 blocks,” Burks said.

In October, heritage council Executive Director David Morgan sent the city a letter saying just that.

“This was kind of an about-face from what we’d been told back in the summer of 2003,” Burks said.

At that time, the heritage council said it was only interested in projects using federal funding, not everything in the area, she said.

City staff maintain that considering all buildings more than 50 years old in the 29-block redevelopment area would place an “unnecessary burden” on, and cause delays for, private developers if the city assists their projects in any way, Burks said.

But when she asked Morgan if the city should stop all property buys until this is resolved, he said no, according to Burks.

“We have basically put a hold on the purchase of 538 State St. until we can get some resolution on this,” she said.

Commissioner Joe Denning asked again if the city, to be safe, shouldn’t quit buying property downtown until the dispute is straightened out.

Coates replied that there’s no dispute over land use for the city’s community center, or an elderly housing project.

“We have to keep some of these projects going,” he said.

Coates characterized the dispute with the state as a “friendly disagreement,” but said that no one knows when the federal advisory council’s decision will come in.

The argument has been submitted to the federal Advisory Council for Historic Preservation.

“We’re waiting to hear their opinion as the whether the entire 29-block area is subject to review,” Burks said.

Asked by Mayor Sandy Jones to clarify standards and uses of eminent domain, Harmon said that the city rarely uses condemnation to acquire land.

“We probably acquire 95 to 98 percent of our property by agreement,” he said.

In an 11-block redevelopment project in the St. Joseph area, the city used eminent domain to buy one old house and a small trailer park, Harmon said.

There are three condemnation actions going on now, all for the rebuilding of the city’s community center, he said.

When the city uses eminent domain to buy property, it must first have a legitimate project lined up for the site, Harmon said. An appraiser determines the property’s fair market value, and an offer is made. If the city and owner can’t agree on a price, city staff ask commissioners to approve eminent domain proceedings. The matter goes to court, and an owner can challenge the method’s use. If the sale goes ahead, a 12-member jury must decide unanimously on a fair price.

It’s Harmon’s opinion that a current U.S. Supreme Court case dealing with eminent domain won’t affect the Kentucky law that allows condemnation for urban redevelopment.

That case, from Connecticut, is about using eminent domain strictly for economic development projects, not clearing “slum and blighted areas,” as the Kentucky law allows, he said.

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Bowling Green Daily news: www.bgdailynews.com

School district sells 24.7 acres to Home Depot for $30 million — San Diego (CA) Union-Tribune, 11/9/04

By Helen Gao
Three years after using eminent domain to take possession of a 24.7-acre parcel in Kearny Mesa, the San Diego Unified School District is selling the vacant land to Home Depot for $11.2 million more than it paid.

The school board was scheduled today to authorize the district to begin escrow on the $30 million sale. District officials said the site is unsuitable for a school and there is no other school district use for it.

The district bought the parcel in 2001 to build a central food processing and distribution facility with plans to also consolidate other operations. A year later, the project was scrapped. Instead of a central food center, the district decided to improve existing facilities.

The parcel on Copley Drive is south of state Route 52 and east of Interstate 805 in a business/light industrial park.

The money from the sale will go into a capital improvement account. District facilities chief Bob Kiesling said the money would most likely be spent on conversion of large high schools into clusters of career-themed academies or other, smaller projects.

Kiesling said Home Depot was the only bidder for the parcel because district trustees set the minimum bid at $30 million, $6 million more than staff members suggested.

"We knew the price was fairly high. We were comfortable we were going to get some bids," Kiesling said.

The previous owner of the site was San Diego-based West RNLN, LLC. When the district initiated the eminent domain proceeding against the company, the court approved a negotiated settlement of $18.8 million for the land.

Under the U.S. Constitution, public entities can condemn private property for public use as long as they pay the owners the fair market value. Typically, eminent domain is used to acquire land for freeways, parks, schools, redevelopment projects and other public purposes.

Herbert Lazerow, professor of law at the University of San Diego, said it's not unusual for public agencies to not follow through with a project after using eminent domain to acquire land. Lazerow also said there is nothing wrong with a public agency making a profit from the sale of land it condemned, as long as the condemnation was not done to make a profit.

The profit, he said, is "probably the result of the fact the government has owned the land for two to three years and has been the beneficiary of this extraordinary run-up in real estate prices."

According to property records, West RNLN paid $13 million for the parcel when it bought the land in 1999 from The Copley Press Inc., the parent company of The San Diego Union-Tribune.

David Dorne, a member of the law firm Seltzer Caplan McMahon Vitek who was listed as an attorney representing West RNLN, had little to say about the district's transaction or its condemnation of his client's land.

"We don't have a reaction," he said. "It was a legal matter. We don't have much to add or take away from it."

The district uses a portion of the site for storage of portable classrooms and buildings.

As part of the purchase agreement, it will lease back up to 7 acres from Home Depot for a maximum of $19,800 a month until Aug. 31, 2005, so it can continue to use the land for storage.

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San Diego Union-Tribune: www.signonsandiego.com

Paying for Property — The Wall Street Journal, 11/9/04

Editorial Opinion
Property rights may not draw as many headlines as gay marriage, yet we'd like to draw readers' attention to an important initiative that Oregonians approved last week. The measure is proof that voters can make sensible decisions on even emotional environmental issues. It's also a precedent for land owners that could spread to other states,

Measure 37 dealt with the growing abuse of "regulatory takings." These have become a big favorite with environmentalists, who see them as a backdoor way of stopping development even on private land. In Oregon, for instance, regulations have forbidden property owners from cutting down their own trees or building on their own lots. The state government isn't obliged to pay a dime for these new, privately owned state parks.

Measure 37, which passed Tuesday with 60% of the vote, doesn't forbid authorities from regulating land use. But it does excuse owners from rules enacted after they bought their land or compensate them for complying. The immediate effect will be to stop the most frivolous land-use regulations, since state and local governments can't afford the millions of dollars it'd take to pay for all the land they "take" in this fashion.

This is the second time Oregonians have passed the measure, the first version having been tossed out by the liberal Oregon Supreme Court on a technicality. In the intervening four years, greens have opposed any new measure as an environmental calamity. Yet hundreds of thousands of rural and suburban folk, some with dreams of new homes, others with ambitions to start businesses or expand farms, recognized this for the hyperbole it was. Owning property is, after all, a basic Constitutional right -- as Oregon voters just reminded the nation.

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The Wall Street Journal: www.wsj.com

Election adds new twist for LifeSkills — Bowling Green (KY) Daily News, 11/7/04

Walker, incoming commissioners plan to take cautious look at controversial move

By Jim Gaines
The total turnover of the Bowling Green City Commission in Tuesday’s election adds new players to the debate over LifeSkills’ planned move downtown.

But it might also provide a chance for all parties to step back, reassess their positions and start afresh.

“What I would like to see is to have all involved parties come to the table and work this out,” Mayor-elect Elaine Walker said.

LifeSkills, the city of Bowling Green, the Downtown Redevelopment Authority and the Kentucky Heritage Council should meet to find an acceptable solution to the impasse, rather than “fight to the death, one way or the other,” she said.

“I think those are the people that need to get together. We are not here to oppose one another. We need to work together. I think that people need to be willing to give a little bit. And I have not seen that. I have seen intransigence.”

Continued butting of heads serves neither the public interest nor LifeSkills’ clients, she said.

Current commissioners agreed June 29 to buy land on the 500 block between Chestnut and State streets to help the social-service agency build a 40,000-square-foot consolidated headquarters. LifeSkills already owns two properties on the block, and asked the city to buy eight more. Four of those have now been bought, according to Commissioner Joe Denning.

But the project has run into one snag after another:

• Questions about the validity of LifeSkills’ lease to another city property, which it offered in trade.
  
• A looming U.S. Supreme Court ruling on whether cities can use eminent domain to buy property for private redevelopment projects.
  
• Complaints from the DRA that it was being excluded from the very sort of projects it was formed to oversee.
  
• Suggestions that LifeSkills should choose another block, leaving its selected site – next to the centerpiece of redevelopment efforts – for a project that will attract tourists.
  
• LifeSkills’ allegation that opponents of the project were only acting out of prejudice against the mentally ill, and might be sued.
  
• And most recently, in October, word from the Kentucky Heritage Council that one building to be demolished for the LifeSkills project, at 538 State St., needs to be reviewed for historic significance.

“The biggest fear that I have is the city’s recent use of eminent domain,” Walker said. “I have serious concerns about taking private property from an individual and turning it over to another private individual.”

She hopes that the city will hold off on buying more property for the project until the Supreme Court issues a decision.

“I believe that this is an improper use of eminent domain, and I am hopeful that the city commission does not push forward on this,” Walker said.

Incoming commissioners generally echoed Walker, welcoming a broad discussion but asking for a hiatus until that can be arranged.

Brian “Slim” Nash used to work for LifeSkills and wants to see the organization stay downtown – but not on its selected site.

“I do not support – and I’ve said this all along – their locating on the particular piece of property that’s being discussed at this time,” Nash said. “If we can all compromise just a little bit, I think that everybody can walk away from this situation happy.”

The agency should look for another site nearby, but not on the “most prominent piece of property downtown.”

“I truly believe that this is achievable, but if everybody continues to just dig their heels in, nobody’s going to end up a winner,” he said.

His discussions with Dale Bond, president and CEO of LifeSkills, have thus far been “cordial and friendly,” and he would like things to remain on that level.

“I have asked everybody within the LifeSkills organization that I know, not to continue to play this ‘thinly veiled discrimination’ card,” Nash said.

Although Nash admits that discrimination against the mentally ill, disabled and substance-abusers exists, he doesn’t think that has anything to do with various officials’ opposition to LifeSkills’ chosen site.

“It has to do with premier property in a downtown redevelopment project,” Nash said. “It concerns me and it hurts me when people try to paint (other) people into corners by saying that if you’re against them, then you’re discriminating.”

Mark Alcott said that he stands by his campaign statements about LifeSkills: That he wants to see LifeSkills in a downtown headquarters, but not on the block adjacent to Circus Square. He would rather place it a block away, on the other side of Chestnut Street, as suggested by the DRA.

Delane Simpson said that the city should pause in land buying until all the legal facts are known about the land deal, eminent domain and state requirements.

Brian Strow said that he opposes the potential use of eminent domain for promoting private redevelopment projects.

“I do hope that the city has put the purchase of land for LifeSkills on hold,” he said. “If they haven’t, then they need to.”

LifeSkills attorney David Broderick said that he could speak on behalf of the organization in “wholeheartedly” welcoming a roundtable discussion with concerned parties.

“If they want to sit down and talk, that’s a positive sign, and we would welcome the opportunity,” he said.

LifeSkills does not have a problem with waiting until January for resolution, Broderick said.

“I think at this point in time, we have a contract with the city but we’re willing to talk to anybody,” he said. “I think it is a positive statement of the new administration that they want to talk to us, and we welcome the opportunity. Unfortunately, the only dialog that we’ve had has been from (outgoing City Commissioner Jim Bullington), and that has not been very positive.”

Bond backed up Broderick’s statement.

“We’ve had no meetings with the new or the current city administration, and we’ve not had a board meeting,” Bond said. “So officially there’s nothing to say. But I think I would reinforce what David had to say: That we are assured that there will be discussion with both administrations within some reasonable time frame.

“I’m comfortable that we’ll all work together, and things will work out in some reasonable win-win fashion.”

An Oct. 12 letter from the Kentucky Heritage Council says that the city may have violated federal historic preservation regulations by not having the building studied. That could be considered an attempt to circumvent requirements, possibly jeopardizing future funding, according to David Morgan, the council’s executive director.

City staff, who have been working on the land purchases, asked for a special commission meeting this Tuesday to publicly explain their position. The backup documents for that meeting indicate that city staff still disagree with the state’s judgment, and have submitted the respective positions to the federal Advisory Council for Historic Preservation.

According to the meeting announcement and agenda, commissioners will take no formal action at the meeting.

“The city staff is supposed to present all the facts to us about what they’ve found out,” Bullington said. “I would assume that LifeSkills will present any information they want to, the DRA will present anything they want to. It’s just purely a fact-finding meeting.

“In my opinion, ignoring the procedure required for historic properties has given us a black eye with the state. It would really seem that since we did know it was a historic building, we should not have taken the attitude, ‘We don’t have to ask you.’ Just because you don’t have to doesn’t mean you shouldn’t do it.”

And, it appears, the city did have to ask the state historic preservation agency after all, he said.

Bullington said that if the building does require historic preservation review, that process will probably take three months.

“I don’t think all of the questions can be answered before the end of the year,” he said.

Several commissioners have said individually that they would like city staff to stop property acquisition for LifeSkills until the legal questions are ironed out. But that doesn’t carry the force of an official instruction, Denning said.

“My concern is that we as a city commission have not, in session, directed the staff and the city manager to stop buying property,” he said.

But a formal order to halt such purchases may come soon after Tuesday’s meeting, Denning said.

The outgoing commission, in his opinion, has a responsibility to its successor not to undertake any major moves at the last minute.

Commissioner Alan Palmer said the current commission, for its remaining two months in office, is for now locked into supporting the LifeSkills project as approved – at least officially.

“We’re pretty much bound by this contract with LifeSkills to proceed with purchasing the properties in that block,” he said. “I guess we could choose to reverse ourselves on that, but we could face potential litigation from LifeSkills if we step back from that contract.”

Between the historic preservation dispute and the upcoming Supreme Court case, it makes sense to at least pause in land-buying, Palmer said, “but by doing that, what we’re saying basically is, we’ll just turn it over to the new city commission.”

Commissioner Dan Hall said he doesn’t object to adhering to the current deal.

“I guess we’re just going to have to wait and see what LifeSkills wants to do,” he said. “I supported it and I still support it, and if they want to move ahead on it before the end of the year, then that’s what I’ll support.”

Walker said that she admires the outgoing commissioners who want to halt the project until their successors take office.

“They have shown their integrity by that statement,” she said.

One of LifeSkills’ arguments for putting its headquarters on that particular block was the fact that it already owns two of the 10 properties there. But perhaps not for long.

Gary West, executive director of the Bowling Green Area Convention and Visitors Bureau, said that he has talked with Bond and former LifeSkills board chairman Fred Keith about the visitors bureau’s interest in buying the 1875 Underwood-Jones house at 506 State St. LifeSkills now operates a Child Crisis Stabilization center in the building.

The bureau tried to do that in 2001, but LifeSkills asked for the money on a short timetable and the visitors bureau couldn’t line up private backers rapidly enough, West said.

“I’ve always viewed the Dr. Jones house as a potential tourist attraction, for a Shake Rag museum, for New Era (Planning Association) offices, or a place carriage rides could begin or end,” he said. “We treat downtown as a tourist attraction.”

LifeSkills wanted $295,000 for the house in 2001, West said, and if given another opportunity, “we would certainly try” to come up with the money.

Bond said that while LifeSkills has started discussing a sale with West, no decisions have been made.

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Bowling Green Daily News: www.bgdailynews.com

Eminent domain case goes to high court — The Stamford (CT) Advocate, 11/6/04

By John Nickerson
The city's [Norwalk's] eminent domain case against Maritime Motors car dealership isn't over yet.

Yesterday, the state Supreme Court agreed to review the case in which the city's Redevelopment Agency is trying to force the sale of the dealership and its storage lot to Stamford-based Reed-Putnam developer Fred F. French.

The city has been on the winning end of the case, which for 16 months has wound its way through Superior Court and the state Appellate Court.

Sometime next year, the Supreme Court will hear legal arguments unless the case is withdrawn or otherwise resolved, said Rhonda Sterley-Hebert, spokeswoman for the state Judicial Branch.

During of the legal battle, the city has said that the two parcels totaling 1.6 acres are essential to developing Riverwalk, the largest portion of the Reed-Putnam urban renewal plan.

Within the 13-acre Riverwalk site, bordered by West Avenue, Interstate 95 and Metro-North Railroad's Danbury Branch line, the city plans to build four office buildings that will bring an additional 1 million square feet of office space to Norwalk.

But Fred F. French and Maritime LLC, the owner of the dealership at 51 West Ave. and storage lot at 31 Putnam Ave., have been unable to arrive at a selling price.

A month ago, Maritime attorney Michael Taylor of the Hartford-based Horton Shields & Knox law firm petitioned the state Supreme Court asking for an appeal.

Yesterday, Taylor said he was optimistic.

"I'm thrilled that they picked it up. I think its a recognition that our argument is a strong one. Several justices seem to have a concern about the Appellate Court's decision," Taylor said in a telephone interview.

Taylor based his petition to the Supreme Court on two legal points.

The first questions the city's legal right to take the dealership and storage lot simply because it fails to conform to the urban renewal plan's stated objective of locating more office buildings on the site.

"If you have a building, they are not supposed to take it unless they make every effort to integrate it into their plan. The bottom line is they are supposed to keep the good buildings," Taylor said.

Taylor's second argument is that when the plan, which was approved by the Common Council in 1983, came up for amendment in 1998, the city should have advanced a new finding of blight for the area. He believes that with all the improvements made to the plan area over the intervening 15 years, the blight was gone and therefore the plan was complete.

Jonathan Bowman, who is representing the city in the legal battle, acknowledged that eminent domain is a hot issue for the state Supreme Court, but said his case will prevail.

He said the city has made, as it is legally required to do, a "reasonable" effort to include the dealership and its storage lot in the plan. But because the properties are clearly in the way of an expansion of West Avenue and an extension of Reed Street, it would be unreasonable to reconfigure the entire development to suit Maritime Motors.

As for Taylor's blight argument, Bowman said he is unconvinced. Bowman works for the Bridgeport law firm of Cohen and Wolf.

By Taylor's logic, Bowman said, making gradual improvements within an urban plan area would be the kiss of death to the legality of any future amendment. "It's a red herring," Bowman said.

Bowman said he believes that the court decided to take up the case because it wants to weigh in on the issue of how redevelopment plans are allowed to operate in a blighted area.

But one decision by the Supreme Court involving a Stamford diner may raise questions about Norwalk's case.

In 2002, the Supreme Court threw out the condemnation of Curley's Diner on West Park Place in Stamford because the redevelopment agency relied on an outdated finding that the area was blighted.

The court's unanimous decision said a redevelopment agency cannot "make an initial finding of blight and rely on that finding indefinitely to amend and extend a redevelopment plan to respond to conditions that did not exist, or to accomplish objectives that were not contemplated at the time that the original plan was adopted."

To do so, the court said, would confer such agencies with "an unrestricted and unreviewable power to condemn properties" and convert "redevelopment areas into their perpetual fiefdoms."

In 1988, the diner was placed in a redevelopment zone first designated in 1963.

But Bowman said the Curley's Diner case does not apply because the Maritime Motors' properties were always part of the Reed-Putnam redevelopment plan. The 1998 amendment reconfigured the plan, but didn't add new properties.

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The Stamford Advocate: www.stamfordadvocate.com