Couple was not paid for seized land: (Ft Wayne IN) News-Sentinel, 6/16/05

Kruses didn’t take $5,000 offered; now city says project benefits will be only payment

By Kevin Leininger
Some might call Stan and Diana Kruse greedy. Others might accuse them of trying to block the inevitable march of progress.

But to the Kruses, the city’s seizure of land needed to run a new sewer line past their Rothman Road home – without paying them a cent for the property – is about far more than money.

“The Fifth Amendment says the government can’t take your property without just compensation, but that’s exactly what the city is doing,” said Diana Kruse, who has lived at 6930 Rothman Road since 1967. “We (raised) seven kids here, and the property was to be passed down to them. Now I feel like my heart’s been cut out, like we’ve been raped and robbed.”

City officials disagree, of course. Even though they offered the Kruses $5,000 for the property late last year hoping to avoid an expensive condemnation process – an offer the Kruses rejected – Water Resources Program Manager Ted Nitza said a cash payment now would be “inappropriate because we feel the benefits of the project (to the Kruses) exceeds the value of what was taken.”

Because the Kruses have appealed the condemnation approved May 18 by the Board of Works, Allen Superior Court Judge Stanley Levine will decide whether things such as a new fence and the ability to trade a septic tank for city sewers is adequate compensation for nearly three-quarters of an acre of what is becoming prime real estate. But State Sen. Dennis Kruse – a distant relative of Stan Kruse – believes the fact that the dispute has gotten so bitter indicates “the city has not handled this properly. It looks like somebody just got upset (with the Kruses for rejecting the initial $5,000 offer) and simply cut off negotiations and communications (with them).”

“It is my responsibility as state senator to see that (the Kruses) are fully compensated and fairly represented,” Kruse, R-Auburn, said in a letter to Mayor Graham Richard on Wednesday.

In some ways, the Kruses’ story is familiar: Their once-rural 11-acre property – still home to two horses and several cats and dogs – is quickly being surrounded by new neighborhoods requiring sewer and water service. The 260-home Valencia neighborhood is being built just to the east of the Kruses, for example, and other developments are coming. And, because of all that additional traffic, Rothman Road will have to be widened one day – another reason the city needed the 15-foot right-of-way from the Kruses.

Nitza said the new sewers will also benefit the owners of several homes near Hazelett and Rothman roads who are now using septic systems that often fail because of Allen County’s poor soil conditions. “It can cost $10,000 to $15,000 to replace a tank,” Nitza said to illustrate the sewer project’s value to the Kruses. “And Stan Kruse has already asked to tap into the sewer.”

But it can cost homeowners thousands of dollars to connect to sewers, too – and there has been no discussion of waiving those fees for the Kruses, Nitza said.

By law, the city must determine the value of land, trees and improvements such as fences condemned through its power of eminent domain. But the Kruses believe their property is worth far more than any benefits they will receive in return. “It’s absolutely absurd,” Diana Kruse said of the city’s offer – or lack of it. “We told them we wanted to get our own appraisal. But they wouldn’t wait.”

“The developers are just using the city to get our land because they couldn’t get it on their own,” added Stan Kruse, who believes the land and other improvements are worth about $20,000 and said he’s interested in sewer service only because it’s available. His septic system is working just fine, Kruse said, and there is no record of any problems there, said Gary Chapple, pollution control director for the Fort Wayne-Allen County Board of Health.

Nitza said the sewer is not being installed on the other side of Rothman Road because there is already a water line there and the city wants to keep sewer and water pipes separate for health reasons. Using the Kruses’ side of the road will also cost taxpayers less, he said.

Roy Buskirk, a County Councilman and land appraiser, said he has never heard of a case where government “didn’t pay at least something (for property), and I’ve been doing this for 19 years.”

Nitza, however, said it’s not unusual for landowners simply to donate easements, and is satisfied the city has met its moral and legal obligations in the Kruses’ case. By the time Levine decides, the work in front of the Kruses’ home may be long-completed.

All of which leaves Diane Kruse wondering whether the couple should simply bow to progress and sell their remaining 10 acres – property the city is equipping with sewer tap-ins for two additional homes which would be valuable to developers but are of little interest to the Kruses.

“I don’t feel good about all these homes being built, and we’ve had (traffic) deaths out here already,” Diana Kruse said. “This may not be a big deal to the city, but it is to us. To see everything we’ve worked for …”

Choked with emotion, she couldn’t finish the sentence. But her meaning was clear.

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News-Sentinel: www.fortwayne.com

Eminent domain cited for new lines: (Appleton WI) Post-Crescent, 6/17/05

Assembly bill would force sale of land for power transmission

Associated Press
Local governments would be forced to sell public land to utilities for power line routes under a GOP-authored bill the [Wisconsin] state Assembly passed Thursday.

The bill is designed to make Douglas County officials give up public land for American Transmission Company’s $420 million high-voltage power line, Democrats said. The line will stretch from Duluth, Minn., to Wausau.

The County Board voted in February not to negotiate with ATC over county land the company wants for 2.5 miles of the line. ATC filed a lawsuit this week in Douglas County Circuit Court asking a judge for the land.

Major state utilities, including Alliant Energy, Madison Gas & Electric and Wisconsin Public Service, have lobbied lawmakers to pass the bill, according to state Ethics Board records.

“They’re hell-bent on getting this power line through,” Douglas County Board Chairman Douglas Finn said.

ATC communications director Randy Satterfield, a lead lobbyist for the bill, said state law forces utilities to consider building projects along established routes, such as existing power lines, railroads or highways, before looking at private land. Most of those existing corridors lie on public land, he said.

Wisconsin needs the additional power the line will bring in, he added. Douglas County’s move has forced the company to re-plot the route, costing time and ratepayers’ money, he said. The company has since submitted two alternate routes to state regulators in which the line would cut through private land of 20 to 50 different owners.

“This bill is terribly important for the people of Wisconsin,” he said. “It’s going to ensure the work we have to do ... can get done on time and on budget without affecting more private landowners than it needs to.”

The Republican-controlled Assembly passed the measure 61-35. The state Senate, also controlled by the GOP, also must pass the bill and Democratic Gov. Jim Doyle must sign it before it can become law.

Doyle spokeswoman Melanie Fonder said the governor “generally” supports the bill.

“The governor wants to make sure Wisconsin has a secure supply of energy. We want to ensure the line is going to be built and that fair market value is paid for the land,” Fonder said.

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Post-Crescent: www.postcrescent.com

Newark makes two moves toward redevelopment: Newark (NJ) Star-Ledger, 6/17/05

Plan for new downtown area opens door for eminent domain

By Jeffrey C Mays
The Newark City Council approved two pieces of legislation that will have a major impact on development in the city. One will create an entirely new downtown neighborhood on 13.5 acres, and the other will make it easier to transfer city-owned land to developers.

Both met resistance from residents at Wednesday night's council meeting, but the council said they felt the changes were in the best interest of the city.

A redevelopment plan for 13.5 acres of the downtown Mulberry Street neighborhood was approved by a vote of 5 to 4, clearing the way for the city to officially designate a developer and begin taking private property using eminent domain.

In another move, the entire city of Newark has now been deemed an area in need of rehabilitation, by a 6 to 3 vote, making it easier for the city to create the type of redevelopment plan being used on Mulberry Street.

"We are talking about enhancing neighborhoods," said Councilwoman Bessie Walker.
The Mulberry plan is a 13.5-acre project to build more than 2,000 market-rate condominiums and create an entirely new neighborhood.

The redevelopment plans calls for mixed-use buildings with stores on the bottom, wide plazas, a park and the option of an arcade.

City officials say it is the first effort to create an entirely new neighborhood and not just build two- and three-family houses.

"It's an exciting day, a historical day for the city of Newark," said Emilio Farina, a principal in the Mulberry Street Urban Renewal Co., the developer that will probably be chosen for the project.

Supporters of the project packed the council chambers wearing T-shirts and buttons. The central planning board unanimously decided to recommend the plan to the city council on Monday.

George Mytrowitz, a spokesman for the Mulberry Street Coalition, a group of property owners fighting the use of eminent domain for the project, urged the city council to postpone voting on the plan until his group's lawsuit challenging the blight designation is decided.

"We knew it was a foregone conclusion," said Mytrowitz. "The city is wasting taxpayer dollars to come up with a plan when they know we are contesting it in court."

Councilman Augusto Amador, who voted against the Mulberry Street plan, said the city council should have waited until the U.S. Supreme Court issued a ruling on a case it is hearing regarding when the government can take private property for a public use and exactly what constitutes a public use.

Mytrowitz said he was also concerned about the city council declaring all 24 square miles of Newark as an area in need of redevelopment.

"The city is trying to fast-track development. Your house or business, your most important possession, may not be safe," said Mytrowitz.

Right up until the vote, the city council had questions about what the designation would mean. Assistant Director of Economic and Housing Development Johnny Jones and Corporation Counsel JoAnne Watson explained that the designation does not change the process the city would have to follow to use eminent domain.

Instead, city officials said the designation would allow for smaller areas to be targeted for redevelopment. The city would be able to take city-owned parcels and combine them with parcels owned by developers to create neighborhood redevelopment plans.

To meet the standard for rehabilitation, an area must show a pattern of vacant, substandard or deteriorated housing; have half of its housing stock or water and sewer infrastructure at least 50 years old; or stand to benefit from rehabilitation to prevent more deterioration. Newark's sewer system is at least a century old.

City planning officials currently declare an area in need of redevelopment if they want to put together neighborhood plans. That designation allows the city to take private property and devise plans to redevelop the area. It also allows the municipality to convey city- owned land to private developers without going through the public bidding process.

In order to be declared in need of redevelopment, an area has to meet several criteria, including unsafe and dilapidated buildings, underused land, and abandoned commercial or industrial areas.

The city council has to ask the central planning board to investigate whether an area is in need of redevelopment. Hearings must be held by the planning board, and the council must approve the planning board's recommendation.

Jones said that process can take from six to eight months and can cost the chance at outside funding.

Attorneys from McKirdy and Riskin, one of the leading firms on eminent domain issues in the state, questioned why the city would need to be declared in need of rehabilitation when the state's redevelopment laws already give the city broad powers.

Nancy Zak, a community activist who works for the Ironbound Community Corp., said the city should concentrate on finishing its Master Plan and updating its zoning laws. Proper planning and zoning would eliminate the need to do so many neighborhood plans, she said.

"I have no problem voting on different areas in need of redevelopment, but I don't believe all sections of the city of Newark are in need of rehabilitation," said Councilman Donald Tucker, who along with Amador and Luis Quintana voted against the designation.

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Newark Star-Ledger: www.starledger.com

Polk Considers Eminent Domain to Get Water: The (Lakeland FL) Ledger, 6/16/05

County officials seek five-acre lots for much-needed wells, but don't know if they can force landowners to sell

By Mike Grogan
The laundry list of needs in this fast growing region is a long one.

It includes new roads to accommodate the huge increase in traffic, more schools for the children of the families that are moving here, a series of wells to provide the water for all the new homes and businesses, and quality-of-life necessities such as parks and libraries.

Paying for the amenities to support past growth or to meet the needs that new development brings is an issue that all the counties in Four Corners are trying to solve — with varying degrees of success.

But money isn't the only issue. There is also the matter of acquiring the land that is necessary -- land to pave over for roads or on which to build schools, libraries and parks, and land to drill through to get to underground water sources. With rural and agricultural lands disappearing quickly to the developers' bulldozers and graders, property values throughout Four Corners are skyrocketing, making it more and more difficult to set land aside for public purposes.

Local officials have a tool at their disposal that is used sparingly to acquire the needed land. It's called eminent domain, and it allows county governments and municipalities to take privately owned property to use for the public good.

But Linda McKinley, the deputy county attorney for Polk County, said recently there are rules that put restrictions on governments by limiting their ability to use eminent domain powers to take a citizen's property.

"To use eminent domain, it must be proven that there is a compelling public purpose to acquire the land," McKinley said.

In the past, she said, Polk County has used eminent domain to condemn property for road construction and drainage purposes, both of which have been accepted by the courts as a public purpose that supercedes personal property rights.

"You can condemn for parks, recreation and schools, too," McKinley added.

The question came up in recent weeks as to whether eminent domain could be used to acquire land necessary to site wells in northeast Polk County where the county's severest irrigation restrictions are in place because of the strain growth has put on the water supply.

County Commissioner Paul Senft and the county's water resources manager, K.V. Duke Clem, have said past promises to provide new wells in the area have had to be put on hold because of the difficulty of finding property to put them on.

"The problem is getting landowners to let go of the land for the wells," Clem said at a water resources meeting recently held in Four Corners.

With property values increasing as they are, he added, owners are unwilling to give up the five acres it takes to sink and maintain a single well. That led to the question of whether the county's powers of eminent domain could be used to acquire the land. Clem said he didn't know if that is a proper use of eminent domain.

"I've never seen one (condemnation) done for a well," McKinley said. "That doesn't mean it couldn't be done."

The major issue, she added, is whether the well could be just as easily located elsewhere than on a specific piece of property.

"You have to prove a reasonable necessity for that particular spot," she said, citing the law governing the use of eminent domain.

There is little question that providing a water supply is a viable public purpose, McKinley said. The question is, what makes one well location more essential than another.

That is not the issue when it comes to siting such things as schools, roads or parks, all of which are pretty much area-specific in that they serve certain neighborhoods or districts.

Jay Wheeler, who holds the District One seat on the Osceola County School Board, said he is all for the use of eminent domain for acquiring land for much needed schools. Osceola County, he said, is growing so fast that 29 students — one full classroom — are being added to school rolls each day. That is making it difficult to build schools fast enough to accommodate the influx of new students.

"I don't want to displace folks who live (on their property)," Wheeler said. "But if it makes sense to put a school in a certain location, I don't want to get what (price) they decide to give us."

The "they" he was referring to is developers who often set aside land within their development for new schools. Poinciana developer Avatar, Inc., for instance, is well known for donating land for public purposes such as schools.

"I've never seen a case of eminent domain in Poinciana," said Jeanette Coughenour, manager of the Association of Poinciana Villages. "The developer always seems to come through when something is needed."

Coughenour said one problem with the use of eminent domain is that it often results in litigation by the property owners.

Another of the rules of eminent domain is that in order to take a property, the government must pay a fair market price to the owner. Just what is the fair market price for a specific parcel is often disputed by the property owner, Coughenour said.

"That tends to take a long time," she said. "You don't want to be tied up in court all the time."

Counties often find other ways to get the land they need for certain projects. In some cases, such as the building of new roads, governments will negotiate with property owners in order to reach a price that is equitable to both rather than use eminent domain. That, said Osceola County Commissioner Atlee Mercer, is the case in the planned construction of the Poinciana Parkway, the road that should provide a much-needed additional exit point from the sprawling community of 52,000 that spreads over Osceola and Polk counties.

In other cases, such as the road in Polk County now being called the Green Swamp Trail, visionary planning in the past provided much of the land the two-lane road, which will run somewhat parallel to U.S. 27 and ease traffic on the four-lane highway, will use.

The Green Swamp Trail was planned by the county years ago before the abundance of subdivisions were build to the west of U.S. 27. Foreseeing the amount of growth that was expected to come to the area, Polk County made it a requirement of developers to set land aside for the roadway before their construction plans were permitted.

So the land is available to the county when it decides to build the road to run from the Polo Park neighborhood just south of the Polk/Lake county line south to Deen Still Road and possibly be continued farther south to where the Posner development is being built in the area once known as Baseball City.

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The Ledger: www.theledger.com

Grassroots to host debate on eminent domain: York (PA) Daily Record, 6/16/05

Participants will include York County commissioner and Realtors representative

By Teresa Ann Boeckel
Supporters of a proposed park at Lauxmont Farms will debate a Realtors association official this month about the use of eminent domain.

Grassroots, a local organization, is hosting the debate at 7 p.m. June 28 at Sam and Tony's Celebrations, 243 W. Market St. in York.

Grassroots is not taking any side on the issue, said Linda Seligson, a member of the advisory committee. The purpose is to inspire public debate.

Panelists will include Doug Kilgore, York County vice president commissioner; Jackie Kramer, executive director of the Farm and Natural Lands Trust; and Steve Snell, executive officer of the Realtors Association of York & Adams Counties Inc.

York County commissioners voted 2-1 last year to take a parcel, known as Highpoint, by eminent domain for a park overlooking the Susquehanna River in Lower Windsor Township.

Lancaster County developer Peter Alecxih Jr., who planned to build homes on the 79-acre parcel, is fighting the taking in court.

County officials remain in negotiations with the Kohr family, which owns Lauxmont Farms. If talks fail, the county would consider using eminent domain, President Commissioner Lori Mitrick testified in court last week.

Kilgore said he will talk about the benefits of the park project and the plans for it.

"I think we have to do everything in our power to get out and talk about the project and the benefits of it," he said. "I think the more information we can get out to the people, the better we are."

Snell said he isn't interested in talking about the park. He wants to address Highpoint and the issues that eminent domain raises.

Snell said he decided to participate in the debate because the issue has lacked a thorough public discussion.

Seating will be limited for the debate, Seligson said. It will be first-come, first-served.

• At issue: York County officials want to acquire part of Lauxmont Farms, a parcel known as Highpoint and some neighboring utility lands for a proposed park in Lower Windsor Township. Supporters call it the Susquehanna Riverlands Preservation Project.
  
• The latest: Grassroots, a local organization, is hosting a debate on eminent domain. The county used that power to condemn Highpoint and may use it if negotiations fail in attempts to acquire Lauxmont Farms.
  
• Debate time: 7 p.m. June 28 at Sam and Tony's Celebrations, 243 W. Market St. in York. Seating is limited to 150 people.

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York Daily Record: http://ydr.com

Builder says no eminent domain use in Neptune: Asbury Park (NJ) Press, 6/14/05

4-BLOCK AREA IN QUESTION

By Dan Kaplan
The organization likely to redevelop a nearly four-block stretch of West Lake Avenue [in Neptune] is hopeful no properties will be taken by eminent domain to make way for the project, its executive director said Monday night.

Trenton-based nonprofit CityWorks' Executive Director Tom Clark said at the Township Committee meeting that he is confident his organization can negotiate with the approximately 15 affected properties — including three homes — to avoid eminent domain, by which government acquires private property for public use.

"Businesses that are currently viable, we absolutely want to remain there," Clark said, citing two taxi companies, a barber shop and a restaurant as merchants he hopes to include in the $20 million to $25 million project.

The plan, Clark said, is to offer business owners the option of relocating their businesses as tenants. Or, he said, the businesses can use the money they make selling their buildings to purchase a piece of the project.

A resolution naming CityWorks to serve as the project's redeveloper was listed on Monday night's agenda but was not voted on before press time.

Tentative plans call for the construction of a minimum 30,000-square-foot medical and government office building at West Lake Avenue and Route 35, Clark said before the meeting. And 25,000 to 30,000 square feet of retail and commercial space — with 40 residential units above — would be constructed to the east, he said.

Bessie Wade, a nearly 50-year resident of West Lake Avenue, said she supports the plan, as long as it will cater to township and Asbury Park residents.

"I think it's good if they are going to develop it in the right manner," Wade, 78, said as she left the meeting. "Maybe it'll bring in other people to see what's going on in (the) Midtown (section)."

The project would reinvigorate an area with many vacant storefronts that was devastated by the Asbury Park riots 35 years ago, Clark said.

"We know that the community still exits," he said. "And we know that the community needs to be served."

"This is not gentrification," he added before the meeting. "This is economic development. This is not a Starbucks project."

Mayor Thomas J. Catley said that for the committee to endorse the project, in the works for more than five years, members need to know that jobs and business opportunities will "flow to the community itself."

That's the idea, Clark said, adding that the project will provide tax relief for all residents.

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Asbury Park Press: www.app.com

Supreme Court and eminent domain issues: The Cleveland (TX) Advocate, 6/14/05

By Jim Jones
The city of Cleveland is not alone in finding itself caught in the middle of a struggle between the rights of private property owners and the desires of states and cities to utilize limited space to benefit the public.

The Institute for Justice states that in just five years there have been approximately 10,000 declarations or threatened declarations of eminent domain in 41 states.

Eminent domain is a constitutionally protected practice that allows government bodies to condemn properties, most often blighted or slum areas, in order to construct public use projects such as roads or hospitals. Governments wishing to take private property must pay fair market value to the owners of that property.
The practice has been in effect for the greater part of this country's history, allowing railroads and canals to be built in earlier times.

In current times there are growing conflicts over these takings. Unlike the issue here in Cleveland, many governments are trying to stretch the boundaries by expanding the definition of what constitutes "the public good." One case in particular made its way to the Supreme Court when arguments were heard in February.

The case, Kelo v. New London, pits a handful of homeowners and small businesses against a Connecticut city wishing to condemn their property. While city officials here in Cleveland wish to proceed with the construction of a city hall explicitly for public use, officials in New London and other areas are attempting to say that any new development that will increase tax revenues may merit the use of eminent domain. In addition, New London has given its power of eminent domain over to a private development group, The New London Development Corporation.

This, according to the Institute for Justice, turns governmental power over to private corporations who do not have to answer to voters or taxpayers.

Concerns of abuse are being reported across the country and could worsen if these less restrictive guidelines are the norm. Under intense questioning from Supreme Court Justice Antonin Scalia, the New London attorney admitted that any property that could yield higher tax payments is vulnerable when he agreed it would be acceptable to condemn and take a Motel 6 so it could be converted into a Ritz-Carlton if it produced more tax money.

The Institute for Justice, representing Kelo, states this kind of thinking guts the rights of every private property owner since nearly everyone's home or community would generate more tax revenue if it were replaced with a shopping mall or giant warehouse store. When pressed by another justice as to why private developers simply didn't buy out the homeowners, New London Development Corporation's attorney stated that the developers needed to have the threat of eminent domain to prod home and business owners to sell their property, and that takings for "economic development" were no different than taking private property to build a school.

This line of thinking has broken out across states such as Ohio, Kansas and Michigan, where private property has been taken from its owners for such things as parking lots for General Motors, and distribution centers for Target.

Property owners and their supporters as well as state and city governments should find new guidelines on eminent domain handed down to them soon, as the Supreme Court is expected to announce its ruling later this month.

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The Cleveland Advocate: www.zwire.com

Speakers square off over greenway: The Union-Recorder (Milledgeville GA), 6/10/05

By Keich Whicker
Of all the rhetorical fireworks at the public hearing about Baldwin County's proposed budget Tuesday, those regarding the funding of the Oconee River Greenway Authority and the proposed greenway project were the most incendiary.

Five people addressed the commissioners during the appearances portion of the meeting. Three speakers were against the greenway, two in support - although there were about another half dozen residents in attendance with "Greenway Supporter" stickers affixed to their chests.

Jim and Mary Purcell, who own property in Wilkinson County along the Oconee River, were not among them.

They believe the greenway should not receive the $75,000 currently earmarked by the county in its 2006 budget to cover ORGA's operational costs because they view the authority as an entity bent on controlling the river and its tributaries and keen to seize private property. They also believe the public is being misled by the authority and its supporters.

"After reading the documents and requesting and receiving a copy of the mission statement from (ORGA), my husband and I discussed the possibility that the general public was being spoon-fed information on an as-needed agenda basis," Mary Purcell told the commissioners Tuesday.

"House bill 596 (which created ORGA) allows (ORGA) to control the Oconee River and all impounded waters of the Oconee River," she said. "What I anticipate is a taking, which will allow the authority to control a corridor along the banks of the Oconee. Who will do the taking? I called the state attorney general's office and was told that all (ORGA) had to do was ask and they would have the power for a condemnation or a taking."

Alison Spencer, an assistant attorney in the state attorney general's office, told The Union-Recorder on Wednesday that ORGA did not have the power to condemn or take ownership of private property. She also said the legislation that created the authority did not grant it control of the river on any other impounded waterways.

She also said she thought it was unlikely anyone in the attorney general's office informed the Purcells that ORGA only needed "to ask" for such powers, as the authority was only empowered to do what was explicitly spelled out in its legislation.

To acquire the power the Purcells believe ORGA already possesses, the authority would have to seek amendments to its legislation, which would have to be approved by the General Assembly.

Mary Purcell also argued that the bill and its subsequent amendments granted ORGA the authority to control properties that border the greenway's property on the river, and stated that she believed commissioners from a variety of counties would be asked to condemn land so that it could be taken over by the authority and create a lengthy greenway corridor down the river.

Both the chairman and executive director of ORGA denied this.

"That is patently false," said Peter Boylan, who is president of Georgia Military College and chairman of ORGA. "In fact, the attorney general has rendered an opinion that the greenway does not have that power. The greenway will not encroach on the property of any landowner who does not wish to provide a property easement."

Jim Purcell followed up his wife's comments with questions about the integrity of the 2004 economic report produced by Dr. Faye W. Gilbert and the J. Whitney Bunting School of Business at Georgia College & State University, which claimed the greenway could benefit the city and county's economy by as little as $325,560 or as much as $5,331,102 per year.

Purcell said the report was based on broad assumptions and a lack of projections for the specific aspects of activities associated with the facilities.

"If you think greenway is a gold mine for Baldwin County, you may believe in fool's gold," he told the commissioners. "They have not been forthcoming. They have not told you everything that they are up to, they just told you what they wanted you to hear."

Gilbert said her report was never intended to be a specific forecast of the future. Her goal was look generally at what might be possible if a greenway were constructed.

"You cannot pinpoint sales forecasts in the absence of data," she said. "So the whole point of this report was to estimate the potential and to paint different pictures of what might occur for this greenway."

Gilbert also stressed she was not biased either way with regard to the greenway, and pointed to her use of three different methods in the report as evidence of her efforts to ensure the accuracy of its final estimates.

"That's the reason to do three different approaches," she said. "For me personally, my academic task was to paint some potential pictures of what might occur."

Boylan shrugged off the assertions of the Purcells and argued that the greenway would be a positive addition to the community that would improve local economics, aesthetics and quality of life.

He said the river was an important resource and that residents should be able to view the river, to use the river and realize the other advantages that come to communities with rivers flowing through them, all of which were almost impossible now, given the current conditions along the riverbank.

"Presently, the Oconee River is an uninviting resource, lined with privet and trash," he said. "Shouldn't our citizens be provided the opportunity to share in this wonderful resource by visiting it and be able to walk along it, enjoying the scenery?"

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The Union-Recorder: www.unionrecorder.com

Owner raises issue of property rights: Newark (NJ) Star-Ledger, 6/12/05

Letter to the Editor
By George Mytrowitz, Newark Business Owner
Newark’s mayor and council election is a year away but candidates are already lining up and making declarations about what they will do to create a better Newark. As a long-time Newark property owner, I hope that some of these candidates come forward to address the vital issue of the future of property rights in this city.

The current administration seems to care nothing about private property and is more than willing to take homes and thriving businesses and hand them over to politically connected builders. Not surprisingly, the developers most favored by city hall are also important campaign donors to the mayor and council.

Redevelopment is important to any older city such as Newark. However, it must be done with a purpose – to improve the lives of the city residents, not the bottom line of developers. Redevelopment should be done fairly and without the taint of favoritism or political corruption. Too often, the “little guy” is forgotten in the mega million dollar deals: the families that lived here for generations or the business that has been here for decades and dutifully paid their taxes get nothing from redevelopment.

Currently the city is touting the Mulberry Street Redevelopment plan – a $550 million, 2,000 condominium unit project that is displacing hundreds of people and scores of businesses. None of the property owners have been asked to participate in the redevelopment process – we have just been told to sell or the city will take our property.

Newark voters in other wards should take heed of the Mulberry Street project and be very wary of their future property rights. The city council is taking steps to make condemnation of private property for redevelopment easier as it moves to take control over more and more neighborhoods. Your house, your business could be the next victim of the mayor and council’s desire to cut deals with developers. Before considering who you will back in next year’s city election, you should demand to know which candidates will protect your right to own private property – and which ones will take your home and give it to a developer.

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Newark Star-Ledger: www.nj.com/starledger

Connecticut Property Case Could Affect Glens Falls, NY: (Glens Falls NY) Post Star, 6/10/05

By Maury Thompson
The U.S. Supreme Court is expected to soon decide a property rights case that could have ramifications on future development projects in downtown Glens Falls, N.Y.

In the case, homeowners in New London, Conn., argue that the city illegally used eminent domain to take their homes in order to redevelop the neighborhood for a hotel complex and luxury townhouses.

Eminent domain, also called condemnation, allows property to be taken for public use — provided there is adequate compensation.

Lawyers for the homeowners say taking property under a comprehensive urban renewal plan does not meet the standard of "public use" that entitles municipalities, school districts and some quasi-government agencies to take property by eminent domain.

The potential to lower the general tax burden, in and of itself, does not constitute a public use, property rights advocates say.

Those advocates say this case — if decided in the homeowners' favor — would substantially rein in the use of eminent domain for economic development practices that courts have generally allowed for more than two decades.

"It will affect every property owner across the country," said Steven Anderson of the Institute for Justice, a property rights group representing several New London homeowners.

The use of eminent domain became an issue in the Glens Falls mayoral race earlier this year when the Warren County Conservative Committee endorsed city 2nd Ward Councilman Peter McDevitt, largely because of his opposition to using eminent domain to acquire the Burger King property at the corner of Glen and Warren streets.

BBL Inc., an Albany-based development group, had proposed building a hotel complex at the site adjacent to the Glens Falls Civic Center, but owners of the Burger King said they're not willing to sell the property.

McDevitt and others have also said that Glens Falls Mayor Robert Regan may use eminent domain to redevelop property downtown for a Boscov's department store.

Regan acknowledged this week that he is monitoring the New London case closely, but he said he does not know if he will attempt to use eminent domain to facilitate either project.

"The way I look at it, we have a lot of projects we're working on, and we always look for the best ways to accomplish them," he said. "I don't put a lot of energy into thinking about specific mechanisms or get overly focused on them."

Courts have generally upheld the use of eminent domain to facilitate economic development projects since a landmark Michigan Supreme Court case in 1981, when the city of Detroit used eminent domain to redevelop a residential neighborhood for a General Motors plant, said Mark Moller, editor in chief of the Cato Institute Supreme Court Review.

The Michigan Supreme Court, however, recently reinterpreted some aspects of the earlier decision, providing the basis for the New London case.

In New London, Pfizer Inc., a pharmaceutical company, agreed to build a research center in New London, with the understanding the city in cooperation with the New London Development Corp., would develop a 90-acre site along the Thames River for a hotel, offices and luxury town houses.

The research center was completed in 2001, but the rest of the development is in limbo because several home owners have been fighting the eminent domain process.

The argument over eminent domain revolves around the interpretation of 12 words in the Fifth Amendment to the U.S. Constitution: "nor shall private property be taken for public use without just compensation."

Critics of the New London project, such as Moller and Anderson, say the intent was to limit the use of eminent domain to specific projects like roads and schools that benefit the general public.

Allowing local governments to seize property and turn it over to developers leaves the process susceptible to corruption and cronyism, critics say.

Left unchecked, they suggest, officials could target virtually any property for any reason.

"None of us are safe in our homes at all. That's what it comes down to," said Carol LaGrasse, president of The Property Rights Foundation for America, based in Stony Creek.

Regan said that it appears to him that the nation's forefathers wanted to make sure that people whose land was taken received fair compensation.

"The basic ability of a community to control its destiny needs to be conserved," he said.

Regan pointed to the use of eminent domain to acquire property for railroads as a precedent for taking property to facilitate private economic development projects.

"All of those were upheld, and they were 100 percent private companies," he said.

From his understanding of the New London case, it appears city officials may have been able to settle out of court, Regan said.

"It looked like there were some lost opportunities to negotiate," he said.

Money isn't always the issue, however, said Anderson, of the Institute of Justice.

One of the litigants in the New London case is an 87-year-old woman who has lived in the same house since she was born.

Regan said that the 1981 case in Detroit may be an example of when a city goes too far.

Even if the Supreme Court does overturn the New London acquisitions, he said, the court most likely will clarify under what conditions eminent domain can be used for economic development projects rather than reject its use wholesale.

If the court does rule that municipalities can not take properties to carry out comprehensive plans, the city could still take downtown property by declaring it blighted.

Courts have generally allowed municipalities to take blighted properties and turn them over to another private property owner to redevelop since the mid-1950s, experts on the topic said.

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Post Star: http://rismedia.com

Long Branch mayor still favors eminent domain: Asbury Park (NJ) Press, 6/10/05

SUPREME COURT RULING DUE

By Carol Gorga Williams
As the U.S. Supreme Court prepares to issue its conclusions as to the use of eminent domain in community redevelopment cases, [Long Branch NJ] Mayor Adam Schneider remains committed to the process, despite any political price he may pay.

"Maybe the best thing that could happen is they throw me out of office," said Schneider, adding that he could spend more time with his family.

For the last 15 years, Schneider has spearheaded a citywide redevelopment effort that in the last 18 months has produced some opposition.

"I feel comfortable and confident we're doing this the right way," he said.

Schneider and city Business Administrator Howard H. Woolley Jr. shared the dais on Thursday with David Barry, president of Applied Development Co., Pier Village's Hoboken-based developer who also is working with Matzel & Mumford to develop Beachfront North.

They were joined by Jeffrey A. Nadell, director of Urban Opportunities for K. Hovnanian Homes, the proposed redeveloper of Beachfront South, in a presentation before members of The Northern New Jersey District Council of the Urban Land Institute, a nonprofit group that champions "smart growth."

Donald M. Moliver, director of the Real Estate Institute and the Pozycki professor of Real Estate at Monmouth University, moderated the session for professional planners, architects, engineers and developers. The afternoon was billed as a case study of the redevelopment process, with Long Branch as a successful model, according to the institute.

The panel discussed the increasing unpopularity of using eminent domain to acquire properties for urban redevelopment, and Schneider said despite any hits he may take, he believes it is the only realistic way to amass properties for redevelopment.

"If elected officials look at urban decay . . . and leave it alone, then they are immoral. If we had left it alone, we would not have done our job," he said, describing an oceanfront filled with slums and troubled by high crime.

"What is the alternative?" Schneider asked, adding that "market forces" were never going to bring change.

Schneider said redevelopment was successful in his city because most people supported it and because he had the backing of the council. He said some politicians are "playing to that crowd" when they suddenly start to oppose redevelopment.

"I would not venture down that road with that kind of politics in my town," he said. "I never saw this as my vision. I don't consider myself a visionary at all. I was smart enough to listen to smart people, and I got the public involved (by) asking them what they want in their town."

Schneider said in the second phase of Beachfront North, homes valued at $60,000 to $90,000 have received appraisals placing properties in the $500,000 to $600,000 range.

"You couldn't walk these neighborhoods at night," Schneider said. "Nobody would come here. We had to do it."

He said of the pending Supreme Court case that "if they tell me the rules of the game have changed, and I have to stop what I'm doing, I'll stop."

But he said he doesn't think that is likely.

"Without eminent domain, you can't redevelop the area in any meaningful way," said Barry.

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Asbury Park Press: www.app.com

Eminent domain used for new school: (Woodland CA) Daily Democrat, 6/10/05

By Kat Isaacson
In anticipation of an influx of new students during the next five years, architect Dwayne Evans has submitted an updated design for a new Esparto High School on 64.55 acres along County Road 85B, between Highway 16 and Grafton Street.

Administrators are working with the architect to design a high school that would initially accommodate 600 students and eventually as many as 2,000.

However, EUSD is currently in court attempting to enforce eminent domain authority to obtain the property from landowner David Denebeim, who bought the parcel in 1994. Under current law, eminent domain allows school districts to disregard the zoning classification of any land parcel and purchase the property regardless of whether landowners want to sell.

"Schools are unique in their ability to take land; if you or I wanted to do this, we couldn't. It's not unusual for them to take ag land. From my perspective as ag commissioner, it's very counterproductive," said Yolo County Agricultural Commissioner Rick Landon.

EUSD Chief Business Officer Tim Brock said the school district will be purchasing the land by relying heavily on developer fees, which are paid per square foot to EUSD. Brock added the funds are kept in an account and are only spendable on "providing facilities."

Eminent domain hits hard for landowner

But the issue is sensitive for Denebeim, who said he is reluctant to forfeit the land, though he realizes the school district will purchase his land regardless of his wishes.

"Basically, the school district said, 'We can do this the easy way or the hard way, but either way it's going to be your property,'" said Denebeim, a certified public accountant in San Francisco who fell in love with Yolo County during the early 1990s while helping a friend with his beehives. "I initially had a lawyer when the school district contacted me two or three years ago and he wrote them letters and they backed off. But then he retired and moved to Oklahoma and all of the sudden in January, they're calling me again. It just kind of shattered my dreams."

The school district then filed a lawsuit against Denebeim several weeks ago to force his compliance and gain "right of entry," which Brock said has gone fine thus far, with no court appearances necessary.

"There was some resistance ... we need a 'right of entry' to gain unhindered access to the property for testing," said Brock. "But I think we're going to come to an agreement."

Yet Denebeim said he talked to several different attorneys who advised him the school district would get the land regardless of whether he fought them in court. Denebeim said the district originally offered him $450,000 for his property, but after conducting his own research on comparable prices, he realized it was worth much more.

"I told them to back off ... that what they were offering is way too low," Denebeim explained. "So they filed with the judge to force me to let them onto the property ... They said they want the land for a good cause and I said 'Bull.' I don't consider paving over the best farmland in the world a good cause."

And various community members feel the same way, including Esparto resident Brian Paddock, who's lived in the community for about five years.

"I feel that the school district is behaving improperly when they act under a cloud of secrecy with public money to secure their wishes. Information like this should have been released to the media and public long ago," said Paddock. "I even asked a school board member months ago what the progress was on the property and he told me he could not discuss it. I wonder if they are holding off discussing this with the public until the deal is done?"

But Brock explained the EUSD is attempting to take Denebeim's property "under the threat of eminent domain" - that is, the school district is enforcing its eminent domain authority, though the slightly altered language would allow Denebeim to receive a tax break on the sale of the property.

And the school district does have several "good" reasons to eye Denebeim's property; specifically, the property sits adjacent the Winters Canal and enjoys unlimited water access, an aspect hard to come by in California and especially attractive for schools. The acreage also receives good sunlight all year long, little fog and little frost which affects Capay Valley during cold weather as well as a Delta breeze which Denebeim said keeps the area very cool during especially warm weather.

He also stated the property is not ancestral or inherited, inclining him to feel slightly less attached to it, though he described the property and Esparto as a place he could build his "dream home."

District Superintendent Tom Michaelson added he understands concerns from the community, however, with a rapidly expanding community and the school district expecting an additional 600 students within the next five years, there's little choice but to accommodate Esparto's growing educational needs.

"Some people feel there might be other properties we could build on," Michaelson explained. "But we really haven't met any other viable options ... I know there's divided opinion but we took a large amount of time to look at alternate types of properties."

Yet just recently, due to the expensive nature of the lawsuit and the time and energy it's costing him, Denebeim said he finally decided to give the school district a dollar amount he'd be willing to settle for. Though he bought the land intending to continue farming and later retire there, he said he realizes the school district will eventually take the property and he doesn't necessarily mind selling it - but he doesn't want to "get screwed over" financially during the process. But the CPA said the district has been playful regarding an agreement, though he feels his offer is fair and the administration has implied they'll most likely agree to the amount.

"We're actually very close to reaching an agreement, I think," said Denebeim, who's scheduled to appear in court with school district officials, Tuesday.

"Except they keep pushing the court dates back so I don't know if they're playing a game with me; I'm a little unsure ... I just want to get this settled; I just want to be treated fairly," he added. "I don't want to have to settle this in court."

County officials hold misgivings about site proposal

The 64.55-acre site is currently being reviewed by Landon for comments and suggestions, but the commissioner said the proposed site will be doubly difficult for EUSD to obtain because it's protected by the Williamson Act. He added he feels the school district would be wise to look elsewhere for a new high school site, given the effect a school would have on surrounding landowners.

"Our office has a lot of concerns for this ... I told them in the beginning and I'll tell them any time they want - I don't think it's a great idea. A new school is the most impactful thing I can think of," Landon said, who added he recently wrote a letter to the district expressing his disapproval.

The Williamson Act restricts prime agriculture land to uses compatible with agriculture, wildlife habitat, scenic corridors, recreational use, or open space. Records at the Yolo County Assessor's Office show Denebeim maintains a contract with the county to protect his land under the Williamson Act; however, the contract can be canceled if otherwise found to be in the public interest.

Evans said the school district would pursue canceling Denebeim's contract should EUSD move forward with its plan to purchase the land. Should the school district wish to cancel the contract they must receive approval from the county's Board of Supervisors, noted Sargit Dhaliwal, associate planner with the county's Planning and Public Works Office.

"A school would have a negative impact on surrounding growers, because it's very conducive to city growth," Landon explained. "Typically, putting a school in the middle of ag land causes the city to grow around it because that's where everyone wants to live. It wouldn't surprise me if in another twenty years, Capay Valley and Esparto saw a lot of growth."

But putting the school in the middle of suburban areas is exactly what Evans said he originally desired to do. The architect, who previously designed Janesville Elementary and Richmond Elementary in Janesville and Susanville respectively, said he'd prefer to build the new high school closer to Esparto's city center, but acquiring a parcel of land that large would be difficult to achieve. Evans added he'd like to find a place closer to where students live but "it's just not reasonable."

Supervisor Frank Sieferman Jr. said he recognized the agriculture preservation and traffic issues involved with building a new high school on the property, adding the purchase is " not an easy choice ... but this is not a done deal."

"Their needs are great ... and it looks like no matter what is done they're going to pursue this," Sieferman said. "We're going to have to work through the process with the school system and city staff."

Other issues affecting the site proposal

The proposed site will also come with a number of other serious issues attached, including its current zoning classification as protected prime agriculture land, various "ag buffer zones" situated around the proposed site and high traffic already flowing through CR-85B, an often-used alternate route for Highway 16, Interstate 505 and roads near Cache Creek Casino. Various residents in the Esparto community have also noted concerns regarding other privacy invasions such as stadium lights and noise.

"Putting up with the traffic is just part of the community," Evans remarked. "We've been working with a traffic consultant and a traffic engineer who have been conducting studies and there's not that high of volume of traffic on 85B. We're not anticipating any problems."

Michaelson said traffic studies recently conducted in anticipation of the new high school have actually shown traffic has slowed and even reduced around CR-85B. He added additional suggestions regarding how to avoid traffic and safety hazards will be sought from Esparto's Fire Department as well.

The proposed site for the new high school is spacious compared to the 10 acres Esparto High currently sits on, though with the inclusions of sports fields, a stadium with a track and a 100-yard football field, the parcel provides less space for construction than would be ideal, Evans said.

Most of the school site will be constructed upon flat land, though one section will sit upon a ridge included in the acreage. Evans added he'd like to include a student activity area within the vista to maximize students' experience at the new high school.

The proposed site also falls within the vicinity of various agricultural "buffer zones," commonly known as the number of feet from which any person must refrain from entering around agricultural land that has been sprayed with herbicides or pesticides. Biologist Elpidio Tijerino, with the Yolo County Department of Agriculture, explained there are multiple orchards, vineyards and other ag land surrounding the proposed school site, which will upset farmers and landowners required to maintain a quarter-mile buffer zone around the school site, due to the nature of sprays and oils used on orchards.

Landon said within the last year only two sprays have been used on the land by Denebeim - "Round-up," a herbicide with a half-life of two to 174 days and "Abound," a fungicide with a half-life of several months. Landon explained because both have such short half-lives - that is, half of the amount of time it takes for a herbicide, fungicide or pesticide to dissipate - neither will affect students, staff, administration or any livestock by the time the new high school is built. He said Denebeim remains environmentally friendly, often using a worm bacteria poison - "Dipel" - for bio-control which causes worm's death during digestion.

Landon said he believes any herbicides or pesticides used in the area currently will have little residual effect in the future, though he stressed farmers and landowners surrounding the proposed site will not be happy given the required quarter-mile buffer zone they'll be required to maintain around the school.

Dave Guerrero, with the county's department of agriculture, said before construction can begin, the site must also be approved by the county's Board of Supervisors.

The school district will also need to seek appropriate permits before any construction begins, Michaelson added.

Are there other options?

Michaelson said the school district has spent time looking at about 10 other properties within Esparto's vicinity, though they've been hard-pressed to find any which provide enough space for current needs as well as future growth.

"In general I think the concept is great; (Tom Michaelson) is definitely on the right track," said Paddock. "And I understand the constraints they're under. But I'm not totally convinced the school district or Tom Michaelson is fully committed to understanding the concerns of the community."

Paddock also said he believes the school district would be making a "really bad move" if they enforced eminent domain authority over Denebeim, adding that building the school on CR-85B could be risky, given that "more and more people have discovered that road as an alternate route for Highway 16 and other roads around (Cache Creek) Casino."

Evans said the Esparto school district and his design team are also working with Pamela Wee, an engineer with Sacramento County's environmental department, to complete the necessary environmental reports needed to purchase the proposed school site.

Calls made to Pamela Wee at her office were not returned by press time.

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Daily Democrat: www.dailydemocrat.com

'Public use' could trump private rights: Orlando (FL) Sentinel, 6/9/05

By Mike Lafferty
After hearing a brief description, Dana Berliner feels fairly certain that I live amid blight.

My neighborhood, for example, has dirt roads, which could qualify as "defective or inadequate" roadways under Florida's definition of blight.

The lots are mostly 2½ acres, which might mean my neighborhood has an "inadequate and outdated building density pattern."

"No problem designating you" as blighted, concluded Berliner, a senior attorney with the Institute for Justice, a civil-liberties organization.

Of course, Florida law is used so broadly that there are few places that you could say with certainty are not blighted.

Which makes life very convenient for local governments that wish to create redevelopment districts and need an official finding of blight to do so.

Redevelopment districts are places deemed as run down and in need of money and attention.

It seems like such a worthy cause.

Too bad this zeal to rescue downtrodden downtowns and ragged resort areas have devolved into government-sanctioned thuggery.

Berliner's 2-year-old report — "Public Power, Private Gain" — was an exhaustive study of governments' use of eminent domain power to force the sale of private property.

This might not seem so bad if the seized property went toward a park or a road or a library or even a stinky sewer plant.

Reasonable people agree that is what the Constitution's Fifth Amendment must have intended in allowing governments to take private property for "public use."

Instead, governments are forcing sales and handing property over to wealthy guys who want to build malls or hotels or offices that will generate truckloads of tax money.

"Public use," it seems, now extends to "economic development" and "making developers even richer than they already are."

In New London, Conn., "public use" meant taking an old neighborhood to make way for shops and housing more suitable to the suits who work at Pfizer's nearby research headquarters.

Not everyone in New London went quietly, filing a lawsuit that went to the U.S. Supreme Court, where an attorney for the city argued that seizing a Motel 6 and turning it over to Ritz-Carlton is OK.

The supremes are supposed to decide soon, but some places are not waiting.

In Utah, where one city tried to take homes to make room for a Wal-Mart, lawmakers recently approved a law restricting the use of eminent domain in redevelopment areas.

Which brings us to Volusia County, where Daytona Beach is slobbering over a California developer's $115 million plans for a new lodging and entertainment complex that will provide happiness, prosperity and additional tax revenue.

All that stands in the way are a couple of pesky property owners who have a problem with Daytona Beach ordering them to sell for the benefit of a private developer.

The property owners are scheduled to get their day in court later this month.

The stakes? If Daytona Beach wins, it gets a shining city on the ocean.

The rest of us lose a little more freedom.

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Orlando Sentinel: www.orlandosentinel.com