Council to authorize eminent domain: Downingtown (PA) Ledger, 4/29/05

By Bryan G. Robinson
By a vote of 4-0, Downingtown Borough Council passed a motion last week to advertise the intent to adopt an ordinance that would allow the borough to condemn 9.8 acres on the Alcoa property at 520 Lincoln Ave., if need be.

Voting for the ordinance were council president Brenda Brinton, and councilors Heather Bruno, Anthony "Chip" Gazzerro and David Proctor.

Absent from the meeting were council vice president Jamie Bruton, who was out of town, and Tom Roderer, who was ill.

The ordinance reads that the acquisition "is necessary for the reduction in the perils caused by flooding, because the borough may, after acquisition, construct thereon a stormwater detention basin for the accumulation and dissipation of stormwater." In other words, the borough wants to build a basin to catch stormwater from Parke Run before it gets farther downstream, thus flooding properties in the borough, specifically along Green Street and Jefferson Avenue.

Downingtown Borough Manager Steve Sullins said that especially when one considers the health, safety and welfare of borough residents, the borough is well within its rights to enact such an ordinance, if necessary.

"We have to do something," said Gazzerro after the meeting. "It's been going on for years and years. We're trying to handle everybody's water coming in."

In 2001, the borough had an appraisal done with Alcoa for 9.8 acres, for $480,000, but no agreement had been reached.

Since then, according to Sullins, the borough has not been able to reach anyone with the company with the authority to authorize a transaction. He said he has had numerous talks with Alcoa officials at the local level and did talk with a representative from the real estate office several months ago. However, since 2001, there have been some changes in upper management at the company and the borough has had no formal offer, he said — up until last week.

At last Wednesday night's meeting, borough council president Brenda Brinton announced that she had received a formal offer from Alcoa, which after the meeting, she called "preposterous."

She said the offer came to borough hall on Monday and she was only able to receive the offer on Tuesday. She said that since council did not have an executive session before its meeting last Wednesday night, she only felt right to inform them of the offer at the meeting.

After she made her announcement, the meeting was recessed into executive session. "I didn't know of an official offer," said Gazzerro. "That's why we recessed into the executive session."

Brinton said now negotiations can run concurrently with the ordinance.

(Interestingly, the ordinance as it reads now has a blank line for a "drop-dead" date if negotiations for the acquisition fail to result in an agreement. Sullins said the borough wanted the option to continue negotiations, at this point.)

Sullins said Brinton had been attempting to make contact with Alcoa representatives for several months. "She knows some people in Alcoa," he said. "All of council knew she had been working on it."

As for the offer being "preposterous," he said that the offer was "much more than anticipated." However, he said he thought that with the eminent domain ordinance now on the table, it would give the borough better leverage in negotiations with Alcoa. He said that it would now be up to council whether or not it would adopt the ordinance. His own opinion, though, is that it will happen, he said.

Council, he said, has to advertise no less than seven days from the time that it would adopt the ordinance and that the advertisement for the intent to adopt would be in the newspaper shortly.

The next meeting for borough council is Wednesday, May 18.

On Monday, he said that since the formal offer, borough officials have not been in contact with Alcoa representatives. "We're still reviewing the offer," he said.

Roderer's comment

In a telephone conversation with Roderer last week, he said that personally he would have voted against the motion. "It's not a solution to our problems and sets a bad precedent for taking property," he said. "It's a Band-Aid on a bullet wound."
He said he thinks a basin will do little good. "It will make a little bit of a difference," he said.

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Downingtown Ledger: www.zwire.com

City sets eminent domain in motion: Atlanticville (Long Branch NJ), 4/29/05

Council approves retaining attys. for next phase of redevelopment

By Christine Varno
The Long Branch City Council took the first steps toward condemnation of properties in the Beachfront North Phase II redevelopment zone at Tuesday’s meeting.

The council approved two resolutions authorizing the city to retain two law firms to “perform services of redevelopment counsel for the Beachfront North Phase II project of the city of Long Branch.”

“[The resolutions] are obviously for acquisition of the property,” city Financial Director Ronald Mehlhorn Sr. said in an interview prior to Tuesday’s meeting.

One resident of the redevelopment zone said she is ready for this step.

“The city is taking private property and handing it over to a private developer,” Denise Hoagland, Ocean Terrace, said before the meeting Tuesday.

“It is wrong and it does not get any clearer than that.

“This is the beginning of them raping us of our due process and our properties.”

The resolutions award a $25,000 contract to Ansell, Zaro, Grimm and Aaron, Ocean Township, City Attorney James Aaron’s law firm, and $75,000 to Greenbaum, Rowe, Smith & Davis, Woodbridge.

Aaron said at the meeting his law firm is being retained to handle negotiations “if, in fact, the MTOTSA property owners want to negotiate.”

“If the homeowners cannot reach a compromise with the city, and as a last resort the city must use eminent domain,” he said, Greenbaum, Rowe, Smith & Davis would handle those proceedings.

If there are no negotiations, or if the city does not have to resort to eminent domain, the fees would be returned to the developers, he added.

According to Mehlhorn, the fees are provided by the designated developers of the zone, Applied Cos., Hoboken, co-developer with Matzel and Mumford Corp., a division of K. Hovnanian, Middletown, which have been given the right to redevelop the 36 properties in the three-street neighborhood, known as MTOTSA – Marine and Ocean Terraces and Seaview Avenue.

The area is slated for eminent domain and plans call for the properties to be razed and replaced with upscale townhomes and condominiums.

“My understanding is that most of the appraisals have been done and some offers have already been made to the property owners [in MTOTSA]” Mehlhorn said.

“If there is not a forthcoming agreement [between the city and the property owners], then condemnation will be used to acquire the properties.”

Before eminent domain is enacted by a governing body, several procedures must be followed by the city, explained Michael S. Kasanoff, Red Bank attorney. Kasanoff is representing a resident of the first phase of the Beachfront North redevelopment zone whose home already has been taken through eminent domain proceedings.

“Prior to eminent domain, there has to be good faith negotiations [between the city and] property owners,” he said.

“Appraisers must appraise the properties. The city then decides if the figure is appropriate before making an offer to the property owners.

“After the property owners receive an offer, they can get counsel and negotiate or say ‘no, under no circumstances.’ ”

If the property owners refuse, Kasanoff continued, “there essentially is a stalemate [between the city and property owners] and a compromise is unable to be reached. That is when the city can file eminent domain proceedings.”

According to MTOTSA members, which represents 26 of the neighborhood’s 36 property owners, they are not willing to sell their properties.

MTOTSA has hired Peter H. Wegener, an expert in defending eminent domain cases with the law firm of Bathgate, Wegener and Wolf in Lakewood, to represent them.

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Atlanticville: http://atlanticville.gmnews.com

Senate Panel's Eminent Domain Move Kills 'Super Slab': CBS-TV4 (Denver CO), 4/27/05

With 275 people from the eastern plains looking on, a [Colorado state] Senate panel Tuesday backed a bill that would effectively prevent the building of private toll roads such as the 210-mile long "Super Slab" project.

The crowd that had packed into the Old Supreme Court chamber applauded after the vote, hoping the measure would prevent the road's developers from forcing them to sell their land. Others who couldn't fit into the room listened to the meeting in a room upstairs.

The measure from Sen. Tom Wiens, R-Sedalia, would strip eminent domain power from developers of private toll roads, including the highway proposed for the plains between Pueblo and Fort Collins. Without that power, developers wouldn't be able to force people to sell their land for the project.

Ray Wells, who wants to build the Front Range Toll Road to the east of Interstate 25, has said Senate Bill 230 would effectively kill his project.

Because lawmakers are in a rush to get bills heard in both the Senate and the House before the session ends May 11, Sen. Stephanie Takis, D-Aurora, decided not to allow any public testimony. Instead she asked those in favor of the bill to stand and the sergeants at arms counted 275 people. Only one person a representative of the state transportation department stood when she asked who opposed the measure.

Front Range Toll Road Co. lobbyist Kathy Oatis declined comment. The company issued a written statement saying that it would only use eminent domain power as a last resort and supported adding regulations to protect property owners and the environment.

Republican Sen. Ron May, who represents El Paso County where much of the opposition to the road is based, tried to change the bill to still allow eminent domain but require private companies to follow the same rules as the state in paying fair cost for land. That angered toll road opponents but Takis ruled it out of order, saying it didn't fit under the bill's description.

Takis said the amendment had been offered by May on behalf of the transportation department.

Sen. Nancy Spence, R-Centennial, was the only senator to vote against the proposal. She said lawmakers should have heard from transportation officials about their problems with the measure rather than just making a decision based on emotions.

"I cannot support letting 275 people set highway policy for the state of Colorado," Spence said.

Wiens said the 19th century laws, which allowed private toll roads to be built, needs to be changed because it was never intended to allow highways carrying trucks and cars. He said the law makes it so easy to gain the power of eminent domain over people's property that he was able to fill out the registration paper work to build a toll road between Boulder to Pueblo during his lunch hour.

Irene Lobaido of Peyton said residents should never have been forced to defend their property against Wells.

"What right does he have over me just because he's a rich man?" she said.

Residents have come a long way since learning about Wells' plans after a bill he backed easily passed the House earlier this session. They mobilized quickly, holding large meetings and starting Web sites. About 500 of them showed up last month to watch the same Senate committee kill the pro toll road bill.

Road opponents have now hired a Denver lawyer to help them fight the proposal and they're working with lobbyists for environmental groups as well as one working for cable magnate John Malone, who owns land in the path of the proposed toll road in Elbert County.

Chuck Shaw of the Eastern Plains Citizen Coalition said members helped write Wiens' bill as well as another one introduced Wednesday by state Rep. Jack Pommer, D-Boulder. He said they'll be following those bills and could put more pressure on Gov. Bill Owens to support their effort. One option is holding a tailgating party at the governor's mansion, he said.

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CBS-TV4: http://news4colorado.com

Eminent domain debate plays role in Republican primary campaigns: York (PA) Dispatch, 4/26/05

By Melissa Weiler
As debate over the use of eminent domain continues throughout York County, a smaller contest is taking shape in Lower Windsor Township, the epicenter of the argument.

Supervisor William Buser, whose term expires at the end of this year, is again running for the Republican nomination, this time facing Russell Blew and Mary Caldwell.

The winner of the May 17 primary will likely become the next supervisor, unless someone else wins the Democratic nomination through write-in votes.

All three candidates say preserving the township's largely rural nature is a high priority, but have mixed views on a plan by York County Commissioners to use 915 acres of township land to build a park.

The commissioners want to acquire 80 acres through eminent domain, a move protested by the owner, Columbia builder Peter Alecxih. The county is currently in negotiations for another 800 acres of farmland overlooking the river, owned by the Kohr family, but has said it will consider eminent domain if it is not successful.

Blew said that he is in favor of landowners' individual liberties, and opposes the county's plan.

Wouldn't support taking: "I would never support the taking of private property by government, for purposes other than obvious public good," said Blew. "A highway, or a life-saving facility, perhaps but never for a public park."

Blew said he believes landowners in the township are the ones who are best able to plan for the future.

"The planning that goes on at kitchen tables in Lower Windsor Township is probably better than some of the professional planning being done," he said. "None of those groups are in it for the long haul — when you change those plans, you may be screwing up a family's plan that has been going for generations."

Blew said some of the township's recent accomplishments — such as its comprehensive plan — need to be more closely examined.

"Things in the township have changed, and some of those changes I'm not so fond of," said Blew, adding that he feels the board needs to do a more effective job of communicating with residents.

No 'stiff-neck position': Buser, who has farmed in the township since 1956, said he hasn't yet spoken either for or against the county's plans for a park.

"I didn't really take a stiff-neck position either way," he said, adding that he would like to see the issue resolved in the near future.

In the past few years, the township has undergone a sometimes contentious process to create a comprehensive plan, official map and zoning ordinance, designed to control growth.

"We had some pretty nasty meetings for a while there," said Buser. "There's still a little more to be done it's all being done for the betterment of the township."

Buser said the township also has a good farmland preservation program, especially important because the township is zoned to be about 85 percent agricultural.

"There are some issues on the table yet I would like to see be addressed," said Buser, who said he feels that his experience makes him the most qualified candidate.

Dismayed at $2 million: Caldwell said that as a member of the township's planning commission and a staunch supporter of farmland preservation, she was dismayed to see the board give $2 million to the York County Commissioners recently — money which may be used to support the proposed park. The money is to be used for a public park — but not for any land taken through the eminent domain process.

Although Caldwell says the issue of eminent domain is out of the control of township supervisors — it's now between the county and the landowner — supervisors can still control the financial effects of the county's decision.

Caldwell said that the $2 million should have instead been used toward the township's own efforts to preserve open space, instead of being given to a government body that can raise its own money through taxation. "We've lost our ability to follow through on our plan — a plan approved by supervisors," she said. "It was a direction we were going in, to provide services to our residents.

"Having this money leave our community is putting a hardship on us," she said.

Caldwell said the township's comprehensive plan calls for a park on the other side of the township, as well as carefully planned development.

"We need proper stewardship of Lower Windsor Township funds," she said. "I would like to make sure that we have short- and long-range planing practices in place for financial responsibility."

Future plans: On another issue, Buser said that, if re-elected, he will work to ensure that funding for the three fire departments serving the township remains steady, or is increased.

Currently, the board gives $47,000 annually to each of the departments East Prospect Fire Co., Yorkana Fire Co. and Craley Fire Co.

"I am going to see that we donate to those fire companies what they need to keep going," said Buser. "If we have to go to paid service, it will probably cost us much more, and we would have less protection."

Blew said he thinks he can effectively serve the township by providing an engineer's viewpoint and helping to better manage the township's assets.

"There aren't many people in the township that know me," he said. "My main job has always been serving my family and my church, and earning a living.

"Residents might find it useful to have a registered engineer working for them voluntarily on a township supervisor level."

Caldwell calls preservation of farmland and open space a priority. If elected, she said, she wants to make sure the board uses the tools it has available to guide development and recreation in areas that the township has already designated. In addition, Caldwell said that she would like to see the township reinstate the agricultural land preservation program, which uses funding to purchase permanent agricultural easements.

"It's an important program for the entire county," she said. "By preserving farmland, we can maintain a small-town rural community atmosphere here in Lower Windsor Township."

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York Dispatch: www.yorkdispatch.com

Nevada eminent domain bill wins state Senate approval: KRNV-TV4 (Reno NV), 4/26/05

A developer-backed bill that would limit use of eminent domain powers by government entities to preserve open space won approval on a 16-to-four vote in the state Senate.

There was no discussion as the bill by Senator Terry Care moved to the state Assembly for final legislative action.

The bill would help a developer tied up in a lawsuit over plans to build upscale homes on the old Ballardini ranch just south of Reno, but Care says he doesn't want to interfere with that litigation.

Senator Dina Titus, D-Las Vegas, one of the four senators who opposed the bill, said after the vote that she had received about two dozen calls and e-mails from open-space advocates and conservation groups opposed to the measure.

Minnesota-based Evans Creek LLC paid 8.5 million dollars for the Ballardini ranch in 1998, and wants to build nearly 200 upscale homes on part of the scenic property.

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KRNV-TV4: www.krnv.com

Are Private Benefit Condemnations a Thing of the Past? American Bar Assn Symposium, 4/29/05

Implications of Kelo v. City of New London
What will the Supreme Court decide in Kelo v. City of New London? The Supreme Court is expected to render a decision by the end of June, 2005 as to whether condemnations based on purely economic benefit will be allowed to continue, but you can hear the argument again in a program being presented at the American Bar Association, Section of Real Property Probate and Trust Law Spring Symposia in Washington, D.C.

Michael Rikon, chair of the Condemnation Committee will moderate a program entitled, “Are Private Benefit Condemnations a Thing of the Past? Implications of Kelo v. City of New London.” The speakers are Professor Steven Eagle of George Mason University Law School; Alan Ackerman, Esq. of Troy, Michigan who was successful in convincing the Michigan Supreme Court to reverse the Poletown decision in County of Wayne v. Hathcock; Dana Berliner, Esq. of the Institute of Justice and plaintiff counsel in Kelo; Daniel Krisch, Esq. of Horton, Shield & Knox, attorneys for the City of New London; James Burling, Esq. of the Pacific Legal Foundation; and Charles S. Webb, III, Esq. of Berger & Webb, attorneys to Forest City Ratner and other developers.

The program is scheduled for April 29, 2005 from 4:00 p.m. to 5:30 p.m. at the Fairmont Hotel, Washington, D.C.

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Michael Rikon: 212-422-4000, e-mail c/o LGeller@ggrgpc.com