Falls Board approves Main Street Redevelopment Plan: Menomonee Falls (WI) Express News, 9/26/05

By Thomas J. McKillen
The Menomonee Falls Village Board approved the Main Street Redevelopment Plan Sept. 19.

The Main Street Redevelopment Plan addresses the area on Main Street between Pilgrim Road and Hwy. 41/45.

Village President Rick Rechlicz and Trustee Jeff Steliga abstained from the vote. Rechlicz law office is in the area while Jeff Steliga is on the board of Falls Festival Corporation, which owns a building that was previously used as a theater.

While a public hearing on the plan and the Northeast Area Plan July 26 prompted comment from many residents who packed the Village Board room and at three other meeting spaces, only a handful of residents were present when the Village Board approved the Main Street Redevelopment Plan last week.

The Plan Commission previously approved the Northeast Area Plan, which involved changes to the Land Use Plan for the northeast section of the village. During discussion on the Main Street Redevelopment Plan Sept. 19, Trustee Sharon Ellis explained that changes to the plan were made by the Community Development Authority (CDA) that eliminated “misleading pictures that could lead to some confusion in the community” while a map was added that included street names.

Ellis said the CDA “took the feelings and the opinions of the public very much to heart” in making changes and recommending approval of the plan.

Ellis later sought to reassure property owners concerned by how they will be affected by the plan. “The intention of this is to protect your investment in the area — not to bulldoze them — to assist all of the property owners in the area to make it even more successful in the future, not to harm it in any fashion,” Ellis said.

Trustee Michael McDonald also sought to reassure business owners in the area. “We’re not here to jeopardize anybody. What we’re here to do is try to provide some direction to protect your investment, to protect your businesses and try to enhance them as the result of infill (development). What this does is it provides us with a blueprint of what could potentially could go there,” McDonald said. McDonald said that as projects come before the Village Board residents and business owners will have the opportunity to provide input as well as suggest improvements and recommended density for the area.

Trustee Randy Newman also described the plan as a “blueprint” and said the village will need to allocate funds to market the area along with other sections of the village to the private sector. “We just can’t expect this piece of paper to work — we have to work towards it,” Newman said.

Ellis said the next steps would include examining financing options for implementing the plan, which would likely occur in October or November. In addition, the zoning and other development guidelines will have to be reviewed over the next several months. Ellis further added that a motion may come before the Village Board to have the CDA implement the plan. Trustee Dennis Farrell noted the city of Glendale had success having its CDA implement a redevelopment plan.

Trustee Jim Jeskewitz added “this is not a short term plan” and that it could take 15 to 20 years to implement. “It’s going to open the door to new development, to redevelopment and hope we can improve that whole Main Street corridor,” Jeskewitz said.

After the meeting, Dominic Alioto Sr. said he remained concerned about protecting his investment in the area, despite reassurances from several trustees. Dominic Alioto Jr. questioned the impact of new development on his business. “Why do I need an investor if I already have a business there — why do I need an investor? Investors would be for what — to buy my property? I don’t want to sell my property,” Alioto Jr. said.

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Menomonee Falls Express News: www.discoverhometown.com

Senate's Eminent Domain Study Committee to Convene Here Tuesday : The (Savannah GA) Business Report, 9/26/05

Georgia state Sen. Jeff Chapman (R-Brunswick) will chair the first Eminent Domain and Economic Development Senate Study Committee when it meets Tuesday for the first time in Savannah. The hearing begins at noon at the Coastal Georgia Center, 305 Martin Luther King Blvd.

Dana Berliner, a senior attorney at the Institute for Justice, will testify before the Study Committee. Earlier this year, she represented the homeowners when the U.S. Supreme Court ruled that counties and municipalities could use eminent domain for economic development purposes in Kelo vs. New London.

Despite the ruling, the Supreme Court gave states leeway to enact their own laws governing this procedure.

Chapman is the author of Senate Bill 86, a measure passed by the Senate 40-10 last year that places new limits on the public purposes for which property condemnations could occur. The legislation prevents the exercise of eminent domain for transfers of condemned property to private developers, corporations, or other private entities to increase tax revenues or for economic development. The bill awaits action in the House Judiciary Committee, chaired by Wendell Willard of Sandy Springs.

In addition to Chapman, the committee is made up of Senate President Pro-Tem Eric Johnson of Savannah; Senate Majority Leader Tommie Williams of Lyons; Sen. Bill Heath of Bremen; Sen. Kasim Reed of Atlanta; Sen. David Shafer of Duluth and Sen. Dan Weber of Dunwoody.

Chapman said the hearings will explore whether eminent domain problems are occurring in the state. The hearing will also offer residents an opportunity to give legislative input. "Whatever Georgians need to protect them from this outrageous Supreme Court decision, that is what we plan to do," Chapman said in a press statement.

Future meetings of the Study Committee on Eminent Domain are being planned for Augusta, Columbus, and Atlanta before the start of the January 2006 session

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Business Report: www.savannahbusiness.com

Wall Street property owners hire lawyers to fight eminent domain: Stamford (CT) Advocate, 9/26/05

By Brian Lockhart
Wall Street [in Norwalk CT] property owners fearing the city will seize their businesses for economic development have brought in a pair of big guns in eminent domain law.

Scott Sawyer, whose firm represented New London homeowners in the controversial Kelo case, and John Louizos, who successfully thwarted Stamford's attempts to seize Curley's Diner, confirmed last week they have been retained by some Wall Street property owners concerned about plans for revitalization.

The attorneys were in town last week at the invitation of Councilman Michael Coffey, a Democrat whose Ordinance Committee is weighing legislation to ban eminent domain for economic development.

Sawyer told the committee he is familiar with the Wall Street Redevelopment Plan. Passed by the Common Council in July 2004, it proposes building 720 residential units, 1,300 parking places and 45,000 square feet of retail space as well as improving the look of the streetscape.

The plan also calls for the city to work with developers to acquire about 30 properties in the neighborhood.

Sawyer confirmed he represents an unnamed party that owns a building in the neighborhood.

"This particular property owner is more than willing to participate in the plan," he said.

The owner does not want his or her property taken, Sawyer said. Sawyer said his biggest concern is how the city determined Wall Street is a blighted area.

The local, state and national re-examination of eminent domain laws is a result of the Kelo vs. New London case, in which the U.S. Supreme Court narrowly supported efforts by the city of New London to give 15 homes to a private developer to build upscale housing, offices and a marina.

Louizos' clients are Themis Hios and George Papadopoulos, who own about a dozen store fronts at Main and Wall streets.

Neither could be reached for comment, but Louizos said his clients have owned the property since 1958 and do not want to sell it.

The building is targeted for acquisition either through negotiation or eminent domain as part of the city's Wall Street plan. The properties cover 4.7 acres north and south of the Wall Street bridge on the east side of the Norwalk River.

Earlier this year, the Common Council tapped Michael DiScala as the preferred developer.

"The plan shows that our client's property is designated to be taken," Louizos said. "(My clients) want to do what they've always been doing — own their property and derive the benefits of leasing it. . . . We want to make sure their property rights are protected."

Although the Legislature asked municipalities to respect a voluntary moratorium on eminent domain while officials consider amending Connecticut property seizure laws, DiScala and the Norwalk Redevelopment Agency are moving ahead with obtaining appraisals and formalizing agreements and designs.

"We're about to start a friendly dialogue, without attorneys," with some property owners, he said.

DiScala said he is not concerned about Louizos' involvement.

"I would expect that," he said. "It's fine."

But Michael McGuire, another Wall Street property owner, said news that Louizos and Sawyer are involved does not bode well for the Wall Street project.

McGuire, who purchased and renovated the top three floors at 64 Wall St. in 2001, has been a booster of the city's effort to revitalize the neighborhood.

But he said he has concerns about the reliance on eminent domain, arguing property owners appear to be bracing for "a long-term eminent domain battle that will be costly to taxpayers and drag on the economic revitalization of the Wall Street area. And that's frustrating as a stakeholder and businessowner here."

The Redevelopment Agency last week took the latest step in a two-year court battle with Maritime Motors, arguing before the state Supreme Court that it has the right to seize the West Avenue Chevrolet dealership to build an office complex near Reed Street and Putnam Avenue.

Norwalk Redevelopment Director Timothy Sheehan [says] redevelopment, whether or not it involves property seizure, always has the potential for a legal battle.

"Redevelopment by its very nature is fraught with legal challenges and they should be anticipated going into the implementation stages of the plan," Sheehan said.

Property owners in the Wall Street area have been part of the planning, he said. They are notified about public hearings and contacted as developers such as DiScala are brought on board, he said.

"Agency counsel has contacted property owners from (whom) we want to secure appraisals and environmental reports," Sheehan said. "Those who have been receptive, we're advancing appraisals and environmental consultants."

Sheehan, who was advised by counsel not to appear before Coffey's committee because of the Maritime Motors case, questioned whether it is clear that Sawyer and Louizos have "an interest in how eminent domain would be handled in the city of Norwalk."

"You can't say these folks are speaking objectively relative to eminent domain," Sheehan said.

Coffey said, "It might have come up at some point that they had clients in this area" but it is not an issue as long as there is no active litigation.

"I invited them to speak about their experience in the field of eminent domain because our committee is looking for guidance," Coffey said.

But if Sawyer and Louizos have been retained by Wall Street property owners, it is even more reason for the council to forge ahead with restricting eminent domain, he said.

"The reason people are going to retain lawyers is because they feel unsafe," Coffey said.

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Stamford Advocate: www.stamfordadvocate.com

Dutchess legislators unanimous on one thing, strictly limit eminent domain: Mid-Hudson (Newburgh NY) News Network, 9/26/05

Conservatives and liberals have found a common concern: the June U.S. Supreme Court ruling that vastly broadened the powers of local governments to use eminent domain. No longer is it just for the traditional Constitutional provision limiting its use to essential public need. Now, local governments can confiscate property for use by private developers if some broad economic benefit is envisioned.

The Dutchess County Legislature unanimously went on record calling on the State Legislature to adopt statutory limitations on use of eminent domain by the state and local governments.

Even liberal Democrat Joel Tyner called that a good move. “I’m glad were making a statement that if eminent domain is going to happen, it’s going to be for the public good,” he said. “It’s not going to be a giveaway to powerful developers or well-moneyed private interests.”

Republican Marcus Molinaro suggested the Supreme Court decision could in time be reversed.

The resolution was drafted by Republican Shannon Martin LaFrance, who said it was important that the legislature reassure its citizens that “this county will not take private property to benefit other private property.”

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Mid-Hudson News Network: www.midhudsonnews.com

Rethinking eminent domain: The Boston (MA) Globe, 9/25/05

By John Stilgoe
In the end, nature rules. Congress and state legislatures routinely flaunt their power, forgetting for years at a time what rare tsunamis, earthquakes, droughts, and hurricanes remind. Insurance companies recognize acts of God, and even secular jurists use the term easily. Government builds sea walls, storm drains, and bayou levees, but it scarcely controls nature, even in ordinary storms. A major hurricane can erode government power as a raging river tears away a dam, and the aftermath of a hurricane can skewer mere politicians and even laws and jurisprudence.

Hurricane Katrina offers a lesson for many [Boston] area residents, and especially for local politicians and judges interpreting the law of eminent domain. When a divided Supreme Court recently determined that a Connecticut city might take solid homes and prosperous businesses against their owners' wishes in the name of economic redevelopment, it precipitated an ongoing debate about the modern meaning of eminent domain. Hurricane Katrina jams the debate backward on itself, into the quagmires of history.

Essentially, eminent domain is the American term for the right of civil government to take private property against the wishes of owners. Ordinarily, the property in question is real, meaning land and the structures upon it, and the Constitution guarantees owners not only due process, but just compensation.

The legal concept is extremely old, involving feudal rights and responsibilities, and even the divine right of kings. In the early Middle Ages, feudal lords held their estates at the will of the king, enjoying the income from serfs but obligated to serve the king, especially in wartime.

In peace or in wartime, the king might requisition the home or lands, and even the horses and serf, of any lord, as well as the military service of the lord himself. At first, only fools opposed monarchical requirements, but when the British lords forced their king to sign the Magna Carta in 1215, they began limiting royal prerogatives. No longer could the king alone requisition property. At first he and his barons had to do so, and eventually the king, the House of Lords, and the House of Commons had to agree, through the court system.

Taking private property against its owners' wishes and with no recourse helped cause the American Revolution. British generals quartered soldiers in the homes of Boston residents, taking up space if not requisitioning entire houses at their whim. After independence, the young nation limited peacetime eminent domain powers, denying the federal government even the power to build roads. Congress can establish roads, but it still cannot build them: The military and interstate highway system curves around the prohibition by existing as a weapon first and foremost.

Only in the 1840s did some states, and subsequently the federal government, extend the power of eminent domain to private corporations, chiefly canal, toll-bridge, and railroad companies. Such transportation improvements benefited the communal good, yet proved so inflexible in siting that individual landowners, especially in deep valleys, might stop them from being built. Ordinarily, government used and still uses eminent domain powers to build roads and public structures, especially sea walls, schools, and fortifications, but it has used its powers to stimulate economic development.

Urban renewal disasters of the 1960s, such as the wholesale destruction of Boston's West End, forced local legislators and city planners to reexamine using eminent domain to renew so-called blighted areas. No one could define the meaning of blighted, and passing property from private hands through redevelopment authorities to private developers smacked of corruption.

South-of-Boston residents, especially those in coastal towns, need to confront the nasty implications of the recent Supreme Court decision in a post-Katrina era.

If a Category 5 hurricane wipes houses from Houghs Neck, Minot, Humarock, or the coast of Plymouth, Marion, or Mattapoisett, might not the remaining citizens take kindly to an offer to replace the houses with a resort hotel or other business that generates lots of tax revenue while requiring few services and sending no children to school? City councils and town meetings would be voting not to destroy existing homes and businesses, but merely to buy what lots of land the sea had not devoured, and they would be using eminent domain powers to shift the costs of rebuilding streets and other infrastructure from municipal to private hands.

Hurricanes blight neighborhoods, and even entire regions. The south-of-Boston region is vulnerable to hurricanes, and might ask its legislators and congressman to restructure eminent domain laws to prevent post-hurricane chicanery.

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The Boston Globe: www.boston.com

Norwell resident John Stilgoe is Orchard Professor in the History of Landscape at Harvard University

33 eminent domain bills crafted: Pittsburgh (PA) Tribune-Review, 9/24/05

By Sam Spatter
Pennsylvania legislators have introduced 33 bills to resolve the issue of government use of eminent domain in obtaining property from private owners, experts on eminent domain said Friday.

The rush to obtain state legislation is a result of the recent U.S. Supreme Court decision that allows governments to continue to take private property for economic development by private developers.

Rep. John Maher, R-Upper St. Clair, who is co-sponsoring one of the bills, believes that while eminent domain should be used to benefit the public, he questions its use when the beneficiary is a private company.

Maher, along with Eloise Hirsh, former director of Pittsburgh Planning Department, reviewed the good and bad points of eminent domain during an event held by the Urban Land Institute Pittsburgh District Council at the Rivers Club, Oxford Centre, Downtown.

Hirsh, now a resident of New York City, said practically every city in the nation has or will use eminent domain for economic development.

She noted it occurred in Cleveland for Jacobs Field (the baseball park used by the Cleveland Indians), to assemble property for the Inner Harbor development in Baltimore, and for developments currently under way or planned in Fort Worth, Texas.

In Pittsburgh, Hirsh pointed to the 1999 case when H.J. Heinz Co. needed property owned by Pittsburgh Wool owners Jeffrey and Roy Kumer to expand its production facilities. The city's Urban Redevelopment Authority threatened to use eminent domain, but ended up paying $5 million for property that had an assessed value of $1.5 million.

Heinz was offered land and economic benefits by the state of Ohio to relocate its warehouse and truck distribution facility there, said Clifford B. Levine, a partner at Thorp Reed & Armstrong LLP.

The loss of the facility might have led Heinz to relocate out of Pittsburgh and then the future loss of DelMonte Foods Co. coming to Pittsburgh, he said.

"If the Wool site was needed for a highway, and the government used eminent domain to obtain it, would there have been the same controversy over its use?" Hirsh asked.

The Superme Court ruled in the case, Kelo v. New London, Conn., where 15 homeowners refused to sell their property to allow a massive redevelopment project in the town. By a 5-4 vote, the court said the "public use" clause in the Fifth Amendment allows governments to take property even if the property won't become publicly owned, such as for parks, roads or jails.

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Pittsburgh Tribune-review: www.pittsburghlive.com

City grabs building firm's land for houses: Philadelphia (PA) Daily News, 9/26/05

Clearkin Co. leaving Phila. for suburbs

By Bob Warner
After 87 years in Philadelphia - more than half a century at the same address in Juniata Park - James J. Clearkin Inc. is moving.

To Cheltenham.

Hundreds of other firms have left the city in search of lower taxes, better schools, less corruption or more trees.

But Clearkin - a family-owned building-construction company with 15 full-time employees - didn't want to go.

The city is forcing the business to relocate to make room for 50 new houses in a government-subsidized housing development just off Castor Avenue and Wingohocking Street.

It's a Philadelphia example of eminent domain: the government's controversial power - recently upheld by the U.S. Supreme Court - to seize private property for redevelopment pro-jects.

The city contends that the project will improve the neighborhood, offering middle-income people a chance to buy new houses for about $150,000.

"Fifty new homeowners and the Frankford community will welcome this new development," said Frank Keel, a spokesman for the Philadelphia Redevelopment Authority, which approved the government's seizure of the Clearkin property and a dozen other parcels in the seven-acre site. (Its actual location is known as Juniata Park, not Frankford).

$7 million in subsidies
But the project depends on $7 million in subsidies from local and state taxpayers.

And, the Clearkins ask, can it be good for the city to lose solid, taxpaying businesses?

Until the RDA condemned the industrial-zoned property as "blighted," it had provided space for a telephone company, a military recruiting center, an auto-repair shop and a fruit-and-vegetable vendor, besides the construction company and parking for a nearby caterer.

All but Clearkin have closed or moved since the development project was unveiled.

The Clearkins complain that after sticking with the city for four generations, paying hundreds of thousands of dollars in local taxes and providing scores of jobs for Philadelphians, they're being forced out - and the main beneficiary will be the private developer who builds the new homes: OKKS Development Co., based in Bensalem.

"If this project was for the good of the community, you would be building this back on vacant property in the area and not on commercially occupied property," said James J. Clearkin Jr., the company's 79-year-old patriarch, in an angry letter to the city's housing director.

Initial designs for the housing project did not include the Clearkin property. But it was quietly added to the site when city officials decided that the project would be more attractive to potential homeowners without a construction company next door, according to Michael Schurr, president of OKKS.

"The concept of urban renewal is based on momentum," Schurr said. "If you can get people who previously would not have considered living in a particular area, to move in, to take care of their house and property, that can start the ball rolling, get others in the neighborhood to take care of their properties, too."

"This part of Juniata Park is a transition area," Schurr continued. "It doesn't have the same contiguous blight that other parts of the city might have, but it represented an opportunity, a place where people would want to live... . I feel bad that the Clearkins have to move their business. It's unfortunate, but necessary. I think that's what everybody on the city's side decided."

Family outraged
Lawyers have advised the Clearkins that at this point, there's nothing they can do to stop the deal, particularly after that U.S. Supreme Court decision this year upheld the government's right to seize private property for public "improvements," even when the property will be used for private, nongovernment purposes.

But the Clearkins remain outraged at the government's handling of their case, particularly since it appears that the city intentionally delayed telling them that their property had been added to the project.

Only a form letter
More than two years ago, the Clearkins approached the co-developer, the Frankford Community Development Corp., and asked whether their half-acre property was included. They were told no, it was outside the footprint.

Later, the plans were changed to incorporate the Clearkins' site, but nobody told the Clearkins until one week before a critical City Council hearing. That's when the RDA sent a form letter to the Clearkins' office - addressed to "Property Owner" - telling them Council was about to consider an ordinance to "acquire" their land.

Steven Culbertson, until this year the president of the Frankford CDC, told the Daily News that he'd been instructed by RDA officials not to disclose the changes in the project.

"The RDA basically told me not to talk to anybody about it," Culbertson said. "They didn't specifically say don't talk to the Clearkins... . I don't feel comfortable with the way the process occurred, but all I can do now is say that I'm sorry."

The RDA's executive director, Herb Wetzel, told the Daily News that he had not personally told anyone to keep the Clearkins in the dark. But he offered no apology. "We did more than the law requires," Wetzel said.

RDA chairman John Dougherty, the electricians' union leader who is a potential mayoral candidate in 2007, did not return repeated phone calls from the Daily News.

Developers had obtained a $1.75 million grant for the project from the Pennsylvania Housing Finance Agency (PHFA) without disclosing their plans to seize the Clearkin property.

When the agency found out this year - from the Clearkins, not the city - the PHFA's executive director, Brian A. Hudson, sent a letter of protest to the Frankford CDC. "PHFA does not encourage or condone the taking of viable businesses within a community," the letter said.

But instead of withdrawing its financial support, PHFA opted for a gesture that had no real impact: Hudson sent a letter to Culbertson stating that none of the PHFA's money could be used to acquire or improve the Clearkin property.

The letter did nothing to stop the developers from using some of their city subsidies to seize the Clearkins' building.

Who's moving in
OKKS Construction is a three-way partnership involving Orleans Homebuilders, Korman Construction and a trust set up by the family of Lewis Katz, the wealthy businessman who owns the New Jersey Nets.

All three have been major political contributors, particularly to Mayor Street, Gov. Rendell or both. But none has made significant donations to Councilman Rick Mariano, who guided the project through Council.

"I feel bad for Clearkin, but I've known this neighborhood for 50 years, and this is gonna be a good project," Mariano said. "I think they should have given the Clearkins more notice, but I'm still in favor of it."

City officials promised they'd help find the Clearkins a comparable headquarters building inside city limits, according to vice president Joseph B. Clearkin, one of the grandsons of the company founder.

But the properties suggested by the Philadelphia Industrial Development Corporation would have cost significantly more than the $400,000 the RDA offered for the Clearkins' property, Clearkin said.

The Clearkins say they will seek more money by appealing to the city's Board of View, a three-member panel appointed by city judges to resolve such disputes.

And by the end of November, the company expects to have left Philadelphia for good.

"I still think it stinks," said Joe Clearkin. "What they've done to us is completely unfair, but I'll still be sorry to leave. After 87 years, we were one of the oldest Philadelphia contractors.

"We won't be able to say that anymore."

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Philadelphia Daily News: www.phillynews.com