Eminent Domain Watch: 04/23/06

4/25/2006

Reforming Eminent Domain in Arizona: National Center for Policy Analysis, 3/7/06

Daily Policy Digest
In 2005, the U.S. Supreme Court upheld New London, Connecticut's use of eminent domain to condemn several properties the city claimed stood in the way of additional tax revenues and new jobs. However, nothing precludes states from restricting their takings power, so Arizona should take the opportunity to reexamine its slum clearance and redevelopment statutes to help ensure the security of private property, say Benjamin Barr and Tim Keller, of the Goldwater Institute.

The Arizona Constitution promises Arizonans strong private property protection; yet municipalities use slum and blight statutes to circumvent this safeguard. Arizona has expansive definitions of blight and slum, coupled with the sanction of property takings for private development. Eight areas of legislative reform should be considered, say Barr and Keller:

Eliminate open-ended definitions of blight and slum and define public use; refining these definitions is important because vague definitions give municipalities wide latitude to use, and abuse, their eminent domain powers.
Prohibit municipalities from using eminent domain to take private property for private commercial development.
Require detailed slum clearance plans, and increase structural, notice and evidentiary standards.
Afford property owners the right of redress.
Shorten the duration and revise existing slum designations.

Furthermore, Scottsdale, Arizona, provides a vivid example of statutory abuse that hindered redevelopment, say Barr and Keller:

In 1993 city officials declared the downtown a slum and blighted area under the redevelopment statutes, immediately bringing the threat of eminent domain.
As rumors persisted about redevelopment projects, property owners refused to invest more capital and signing long-term leases proved very difficult.
Since repealing the Downtown Redevelopment Area in 2002, private investors have poured $2 billion into downtown.

Source: Benjamin Barr and Tim Keller, "This Land is My Land: Reforming Eminent Domain after Kelo v.City of New London," Goldwater Institute, January 17, 2006.

For executive summary:
http://www.goldwaterinstitute.org/article.php/870.html

National Center for Policy Analysis: www.ncpa.org

Illinois Senate OKs measure on eminent domain: Belleville (IL) News-Democrat, 3/4/06

Will restrict powers to take over property

Associated Press
Local governments would have a tougher time taking residents' property for economic development under a bill approved by the Illinois Senate.

The measure, approved 44-2, would apply a higher standard for local governments to exercise eminent domain to clear the way for private development projects. The bill now goes to the House.

Officials from local governments throughout the state opposed the bill, claiming it would hamstring efforts to improve their communities through redevelopment.

But supporters said the measure strengthens property-owner protections weakened by a U.S. Supreme Court decision last year that expanded local governments' eminent domain powers.

"The way it is now, the property owner is clearly at a disadvantage," said Sen. Susan Garrett, D-Lake Forest, the bill's main sponsor. "This levels the playing field."

The measure would require local government to prove that a property is "blighted" before it can take it for private development. Officials also would be required to have detailed redevelopment or renewal plans in place before they condemn property.

The bill wouldn't affect local governments' power to declare eminent domain for public projects such as roads and reservoirs.

Roger Huebner, general counsel for the Illinois Municipal League, said the legislation could dampen developers' interest in revitalization projects by complicating the redevelopment process.

"What the bill does is increase the value of what a local government has to pay to get rid of blight," Huebner said.

The U.S. Constitution says governments cannot take private property for public use without "just compensation." But for decades, the court has been expanding the definition of public use, allowing cities to employ eminent domain to eliminate rundown properties.

In June, the Supreme Court ruled 5-4 that New London, Conn., had the authority to take homes for a private development project. But in its ruling, the court noted that states are free to ban that practice.

Since then, five states have passed eminent domain laws in response to the ruling and as many as 40 more are considering legislation, according to the National Conference of State Legislatures.

News-Democrat: www.belleville.com

Eminent domain bill held up by concerns over water: Radio Iowa (Des Moines), 3/7/06

By Darwin Danielson
A bill passed in the Iowa House that would limit the authority of local governments to condemn private property is having trouble gaining support in the Senate. Senate Democrats say they have concerns about a section of the bill that makes it more difficult for a city or county to acquire land for drinking water.

Representative Jeff Kaufmann, a Republican from Wilton, says there's the potential for local governments to misuse the condemnation law and he believes that's happening with a lake development project in Madison County. He says there are many other examples besides that one in Madison County and the potential for many others, where "in the guise of drinking water, we're going to put condos around a lake and drowned out hundred year old farms."

Kauffman says he sees the bill as a protection rather than a barrier to development. Kauffman says he understands the need for projects to create drinking water sources. Kaufmann says he doesn't have a problem with the drinking water, he has a problem with the condos that surround the "drinking water," and the skiing that follows. He says some of the drinking water projects are a small piece of what is private economic development.

But Senator Herman Quirmbach, a Democrat from Ames, says without the ability to take land for public good, cities would be hamstrung. Quirmbach points out a case in Ames where a developer wanted to build houses around an old quarry the city used for a backup drinking water supply. Quirmbach, a former Ames City Councilman, says the development would've ruined the water quality.

Quirmbach says they didn't use eminent domain in the case, but he says had this bill been law, he could see how the developer could've held the issue up in court for years. Or Quirmbach says the developer could've forced the city to pay well beyond market value for the land. Quirmbach says Democrats want to provide more protection for property owners, but he says there needs to be an exception for cities so they can secure a good water supply.

Quirmbach says Iowa has droughts every decade or so and when a drought comes, water is an issue of local security "as important as any national security issue you can think of." Kauffman says he'll work with Quirmbach to try and find a compromise on the condemnation bill that takes into account the needs of local governments and the rights of property owners. Both lawmakers made their comments on a program on KUNI radio.

Radio Iowa: www.radioiowa.com

House bill would set restrictions on using the process for development: Springfield (MO) News-Leader, 3/4/06

By Chris Blank, Associated Press
A [Missouri] House proposal would expand how much money people could receive when their property is taken through eminent domain while also imposing more restrictions on using the tool for economic development.

The bill adopts almost all of the 18 recommendations made last December by a gubernatorial task force charged with studying eminent domain.

Concerns about eminent domain grew after a U.S. Supreme Court ruling last summer that upheld the ability of local governments to condemn private property so it can be transferred to other private entities that could generate more taxes.

One of the most contentious questions facing lawmakers is whether private property should be able to be taken for private economic development. The bill filed Thursday with the support of almost half the House members splits the difference — allowing private property to be taken for economic development, but only if cities can demonstrate other purposes for taking it as well.

Jim Roos, the coordinator for the Missouri Eminent Domain Abuse Coalition, said that doesn't go far enough, and that the bill focuses on changing side issues rather than directly addressing eminent domain.

"We weren't saying you have to change the process by which you take our property, our homes and our businesses, but rather, that you should stop doing it completely," he said.

Leslie Holloway, the Missouri Farm Bureau's director of government affairs, said the group believes the bill contains sufficient limitations on using eminent domain to promote economic development, because it also puts more restrictions on "blight."

Local governments can declare areas to be "blighted" in order to seize them through eminent domain, but "blight" has a loose definition, and some cities have drawn criticism for using the designation inappropriately.

To address "blight," the House proposal would both tighten its definition and make it harder to seize property by declaring it "blighted" than to use private property for "public uses," such as roads and electrical lines. It would also prohibit farmland and land that has never been developed from being declared blighted.

Business groups have said it's important to strike a balance between preventing abuses and ensuring that building and utility projects don't become more expensive.

Jeff Craver, tax counsel for the Missouri Chamber of Commerce and Industry, said the key issue lawmakers need to address is finding a way to stop repeats of the eminent domain abuses that have already been documented.

"This bill stops cities from using a thirst for tax dollars under the guise of economic development as the justification for taking someone else's property," he said.

But he said the parts of the bill that get into public uses and compensation for those whose land is taken from eminent domain don't contribute to the core issue and could make it more expensive to build and deliver utilities in Missouri.

When determining compensation for the use of eminent domain, the proposal would require the consideration of factors such as how long someone has owned the land and the expected earnings from the new development.

Holloway said there are intrinsic values that can't be measured simply by paying what the land is worth.

"A just compensation is required under the Missouri Constitution, and it's important to clarify under state statute that this includes more than just the appraised value of the land," she said.

Leaders in both the House and Senate have listed further restrictions on the use of eminent domain as one of their priorities, and groups on both sides of the issue say several changes are likely before a final bill is passed.

The News-Leader: www.news-leader.com

Eminent domain law may be too broad: Jacksonville (FL) Daily Record, 3/7/06

By Bradley Parsons
Florida’s eminent domain laws face imminent changes according to state Rep. Dick Kravitz.

Eminent domain allows the government to take private property for public use. But it will become more difficult for cities and counties to use following the upcoming legislative session, Kravitz predicted at a legislative briefing last week.

The current law is too broadly worded said Kravitz. The current law says “blighted” properties can be taken for a “public purpose.” That language needs to be tightened to prevent abuse.

“The way things are looking now, there will be a significant tightening on that,” said Kravitz. “Something like ‘public purpose’ could refer to almost anything.”

The briefing was called by Mayor John Peyton to outline the City’s legislative priorities to state lawmakers and lobbyists. During the meeting, Peyton emphasized “home rule and local control,” but it appears the state will take a heavier hand in protecting property rights.

City officials have appealed for the state to stay out of eminent domain. Ron Barton, the executive director of the Jacksonville Economic Development Commission, has called eminent domain a sometimes necessary tool for economic development. In a near three-decade career in Florida economic development, Barton said he’s rarely seen eminent domain abused.

“I don’t know if people are aware that it’s a power rarely used and very rarely abused,” he said.

Barton expressed concern in January about the potential for politically-charged changes to eminent domain.

The U.S. Supreme Court voted 5-4 last June (Kelo vs. New London)to uphold the City of New London, Conn.’s right to take private property for sale to developers of a mixed use condominium and office project. New London wanted to boost capital investment in a poor part of town and increase tax revenues.

Barton doesn’t agree with New London’s rationale, but it looks like he will have to deal with the political fallout. Barton said recently that he was concerned that politics was “riding herd” in Tallahassee with regards to tightening eminent domain.

Shortly after the Kelo decision, Florida House Speaker Allan Bense formed a committee to study property rights in preparation for the upcoming session. State Rep. Everett Rice is pushing a resolution that would call for a popular vote on strengthened property rights language to be added to the state constitution.

But Barton said Florida’s protections are sufficient. Peyton told Kravitz during last week’s meeting that he thought Florida “does a good job protecting property rights.”

Barton fears that tighter restrictions will make it harder for the City to use eminent domain when necessary. He said it should be used only to clear blighted areas. Those areas go undeveloped for decades or longer for a reason, he said. Without government intervention, they would continue to sit as obstacles to the economic development of the surrounding neighborhood.

But Kravitz said he’s seen eminent domain abused and pointed toward Florida’s Riviera Beach as an example. The predominantly black beach community’s local government plans to use eminent domain if necessary to move 6,000 locals to make way for a billion-dollar development.

Riviera Beach Mayor Michael Brown cited the Kelo decision in pushing the City’s plans.

Daily Record: www.jaxdailyrecord.com

Lawmakers begin checking out bills on eminent domain: The (Nashville) Tennessean, 3/7/06

By Lucas Johnson, Associated Press
Tennessee lawmakers yesterday began discussing a number of eminent domain bills, most of which would prohibit seizing property for economic development or private use.

Both parties have introduced bills after last year's ruling in which the U.S. Supreme Court found that the city of New London, Conn., had the authority to take homes for a private development project.

Governments have long purchased private property for the construction of roads, bridges, dams, sewer lines and the like. If owners are unwilling to sell, governments can use eminent domain to force sale of the property.

The Supreme Court ruling has prompted Tennessee and about 40 other states to debate putting new restrictions on the practice.

One of the 36 bills before a joint bipartisan committee would require the state or municipality condemning the private property "to pay the owner three times the value of the property as determined by the average of three appraisals."

The bill's sponsor, Rep. Frank Niceley, said his legislation would keep the state from "buying too much land" and give the individual being bought out enough money to relocate comfortably.

"It's a traumatic experience when someone comes in and takes something from you," said the Strawberry Plains Republican. "I'm not in favor of the state taking any land for economic development."

Rep. Stacey Campfield, R-Knoxville, is proposing three eminent domain bills. One would allow a 120-day moratorium on the transfer of property from one private entity to another to give a committee an opportunity to review the transaction.

He said it also would allow the property owner being approached a chance to try to negotiate a better price, instead of being forced to settle.

Campfield cited the case of a Knoxville family who owned a wrecking company and was threatened with condemnation if the family didn't accept the city's buyout price.

"We told them no, and the letters started coming about condemning," said Mary Turner, whose husband inherited the company from his father.

The Tennessean: www.tennessean.com

New London City Council missed a chance to heal the city: Mondo QT, 4/4/06

By Carola Solomonoff
Yesterday evening, the New London City Council, in a 5 to 2 vote, missed a chance to heal the city it represents.

It's been roughly 6 years since the New London city government and the quasi-public New London Development Corporation (NLDC) used eminent domain to seize the homes of residents in the modest waterfront neighborhood of Fort Trumbull. The rationale was that the homes stood on land which would produce more tax revenue via an upscale redevelopment.

The use of eminent domain opened a rift in the body politic of New London. Some Fort Trumbull homeowners resisted the "taking". All the way to the U.S. Supreme Court. Though the Court, in its Kelo v. New London decision, ultimately let New London and the NLDC's interpretation of "public use" stand, the finding did not bring peace to the city. Plus, people across the nation reacted with revulsion to the ruling, as did a majority of citizens and major media within Connecticut.

In late Summer, 2005, Governor Jodi Rell declared a moratorium on evictions in Fort Trumbull. Since that time, a resolution has been sought that would allow the city to proceed with its redevelopment plans, yet also respect the rights and dignity of the last few remaining homeowners of Fort Trumbull.

At last night's city council meeting, City Councilors William Cornish and Charles Frank of the One New London Party, put forth a proposal that the last occupied homes in Fort Trumbull be moved onto one parcel of the neighborhood's land. The owners would have the deeds to their homes returned, and would pay back taxes from last June. But though the 5 other members of the City Council (New London's main governing body), Mayor Beth Sabilia, and the quasi- public NLDC agree to the homes being moved to the plot — they want the homeowners to lease the buildings from New London and the NLDC. Forcing homeowners to become tenants of local government and a quasi-public agency.

The last standing homeowners of Fort Trumbull have until May 31st to either leave with a monetary settlement (but only after signing a waiver of any future legal action) or stay on as the tenants of those who took their homes. There is some hope Governor Jodi Rell will once again intervene.

Mondo QT: www.mondoQT.com

Lower Merion backs off use of eminent domain: Philadelphia (PA) Inquirer, 3/24/06

A resolution amending a controversial plan that had authorized the taking of 10 buildings in Ardmore's historic district by eminent domain was approved Wednesday night by the Lower Merion Board of Commissioners.

The measure, approved by a vote of 12-0, with two abstentions, said that the township shall not use eminent domain to acquire "any of the particular properties in the Ardmore Redevelopment Area solely for the purpose of private enterprise, development and gain."

Philadelphia Inquirer: www.philly.com

Groups fighting eminent domain: Contra Costa (CA) Times, 3/6/06

By Scott Marshall
[San Ramon] residents start Web sites [and] blogs, [saying] officials are not listening to their concerns over rezoning issue. Some of them oppose establishment of "eminent domain" property acquisition rules, while others fear local golf courses could be rezoned into other uses.

Their common bond — they feel the city isn't listening to their concerns. Members of both camps complain the city isn't listening to them or answering their questions about pending decisions they believe could adversely affect them.

And now, they're joining forces. The golf course people have a Web log and have put the eminent domain issue at the top of its home page with the headline, "Could they point a gun at you?" above a picture of a tot pointing a toy gun at the reader.

Eminent domain is linked with the potential golf course rezoning because they both are tools the city wants but that residents reject, said golf course rezoning opponent Jan Desmarais.

Foes of that rezoning have established a legal fund and have consulted two attorneys who have so far worked for free in examining their claims, Desmarais said.

Added Diane Smith, a vocal opponent of the rezoning, "It has become obvious (city leaders) do not want community involvement.

Although coming from different directions, "It's the same fight," said eminent domain opponent Ted Mendelson, who operates Mendelson Autobody on Beta Court. City officials have proposed re-establishing eminent domain — rules to allow the city to buy out property owners at "fair market value" — in that area of northern San Ramon. Most Beta Court business operators rent their spaces.

"Once the general plan got accepted, it has to be law," and residents' views don't get heard, Mendelson said. The golf course rezoning foes, he added, are "going to be a great ally."

Changing the land-use designation of the two golf courses from parks to commercial recreation, would open the door to development uses, opponents say, ranging from emergency and transitional housing and more intensive recreational uses to new housing.

City Council members, planning commissioners and planners say such fears are groundless and that rezoning opponents are wrong. Vice Mayor Carol Rowley read a statement at a council meeting saying such fears have no basis in fact.

"It's going to go through the normal process," said San Ramon Mayor H. Abram Wilson. "I believe, I know, that once the residents understand and get all the information, they will realize how unfounded these claims are."

The proposed revision, in the works since 2003, would bring the city's zoning ordinance into compliance with voter-approved General Plan 2020. City Council members and planners have met with opponents for several hours on several occasions.

Still, the issue took on a life of its own, as Smith and Desmarais gathered more than 250 signatures from people who live near the Canyon Lakes Golf Club and the San Ramon Golf Club.

Still not satisfied, the cause of the golf course group has made increasingly incendiary claims, including that the city didn't properly advertise meetings and that they have something to hide.

The eminent domain group, fewer in number and less vocal than the golf course neighbors, are business owners on Beta Court. They became alarmed when the Times and a Web site operated by longtime city government observer Roz Rogoff wrote about the eminent domain proposal.

The city wants to have eminent domain included in the Crow Canyon Specific Plan, which would establish mixed-use, pedestrian-friendly housing and businesses on the north side. The Planning Commission has deadlocked on whether housing should cover the Beta Court area. Housing there, Mendelson says, would result in landlords forcing his and other businesses out of the area.

Such organized opposition to city government in San Ramon hasn't been seen since a turbulent period in 2002 and 2003. Former Mayor Dianne Schinnerer formed Citizens for San Ramon in 2002, when the City Council evaluated and then fired City Manager Herb Moniz, who was rehired by the present council in 2003.

In 2003, Friends of San Ramon was formed to fight, among other things, a heliport proposed for a site near Iron Horse Middle School by Sunset Development Co.

Scott Marshall covers the San Ramon area. Reach him at 925-743-2216 or smarshall2@cctimes.com.

San Ramon opponents
Residents disenchanted with San Ramon city government have started their own Web log at http://SanRamonTalks.blogspot.com. San Ramon resident Roz Rogoff operates www.SanRamonObserver.org, on which she posts reports about city meetings, events, politics and community events. For the Observer's primer on city politics, visit www.sanramonobserver.org/user/Friends-Citizens.pdf.

Contra Costa Times: www.contracostatimes.com

NFIB plans fight for eminent domain protections: South Florida Business Journal, 3/6/06

The state section of the National Federation of Independent Business has said prohibiting eminent domain abuses by government is its top priority for the 2006 legislative session.

The state small-business advocacy group said it expects the Florida Legislature to address the issue in the wake of last year's U.S. Supreme Court decision, Kelo v. New London.

In a recent survey it conducted, the group said 91 percent of respondents said the government's power of eminent domain should be restricted to prevent private property from being seized for private commercial enterprises for economic development.

"Small-business owners believe the government should never abuse its awesome power of eminent domain," NFIB/Florida State Director Allen Douglas said. "Seizing private property for private development or for the expansion of the government¹s tax base does not sit well with small-business owners. NFIB will continue to work closely with the legislature to implement protections for private-property owners."

Douglas said NFIB would also continue to pursue comprehensive civil-justice reform, including eliminating joint and several liability, also known as the "deep pockets" rule.

Joint and several liability can force parties partially or remotely responsible for a loss to pay a disproportionate share of a court award or sometimes even the entire amount.

Last year, the group said, 91 percent of NFIB members responding to a survey said liability should be limited to the percentage of fault assigned to each defendant.

"Florida should join our neighbors in Georgia and South Carolina, which adopted meaningful tort reform last year and addressed the abuses of joint and several liability," Douglas said. "Defendants should be responsible for their share of the blame, but not be targeted because they have deep pockets."

NFIB said it will also pursue reforms to the state's constitutional amendment process.

In particular, the group said small business supports establishing a 60 percent majority threshold to alter the constitution. Currently, it takes a 50 percent plus-one-vote majority to change the constitution.

South Florida Business Journal: http://southflorida.bizjournals.com

Freeze sought on eminent domain: Knoxville (TN) News Sentinel, 3/5/06

By Tom Humphrey
A Knoxville legislator is pushing for an immediate freeze on some uses of eminent domain, contending that governments may launch a "mad grab" for private property while the General Assembly debates new restrictions on condemnations.

Rep. Stacey Campfield, R-Knoxville, said he will seek a House floor vote Monday that would clear the way for a 120-day eminent domain "moratorium." Critics say the move is unnecessary and could have unintended consequences.

House Judiciary Committee Chairman Joe Fowlkes, D-Pulaski, who has headed a legislative study of eminent domain issues, said it appears Campfield's move is intended to protect Mark Saroff, owner of McClung Warehouses on Jackson Avenue in Knoxville, in an ongoing dispute with the Knoxville Community Development Corp.

"He's trying to decide a lawsuit that hasn't even been filed yet," said Fowlkes, an attorney. "That's not the Legislature's business. That's the business of the judicial system."

Campfield and Saroff said the move could potentially benefit Saroff, but the need for a prompt moratorium goes far beyond any individual or situation.

"There is a fear that, before we (legislators) can actually pass an eminent domain bill and have it become law, maybe months from now, that cities and counties could go into a full confiscation mode," Campfield said.

Campfield also sent a letter to Gov. Phil Bredesen on Friday, urging that he act by executive order or otherwise to impose an eminent domain moratorium. A Bredesen spokeswoman said the governor had received the letter, but had no comment.

Bredesen is scheduled to speak Monday before a Tennessee Municipal League conference at the same time the legislative committee begins discussion of the pending legislation.

At least 59 bills and three resolutions calling for new restrictions on eminent domain have been filed in the state Legislature since a U.S. Supreme Court decision last year that allowed a Connecticut city to condemn private property for a commercial development. The court's decision, Kelo vs. City of New London, is known as the Kelo case.

Many local government representatives in Tennessee, however, contend that state laws already provide adequate protection for landowners and nothing like the Kelo situation could arise.

"Kelo has zero bearing on the laws in Tennessee," said Margaret Mahery, executive director of the Tennessee Municipal League, which represents city governments statewide.

In the Legislature, Fowlkes said current plans call for holding hearings on all the introduced eminent domain bills while using one as a framework - a measure that grew out of a study committee and is sponsored by Fowlkes in the House and Sen. Doug Jackson, D-Dickson, in the Senate.

Provisions in several of the various bills may be incorporated into the framework bill by the committee before it is sent along through the process for floor votes in the House and Senate.

The framework bill, filed as Senate bill 3296 and House bill 3450, would repeal all rights of several governmental entities to use eminent domain, including "watershed districts," "public mills" and "public ferries" that have such rights under current law.

It also puts new restrictions on other eminent domain efforts. For example, a provision Fowlkes said was sought by the Tennessee Farm Bureau declares that "under no circumstances shall land used predominantly in the production of agriculture be considered a blighted area."

Designation as a blighted area is one way to trigger condemnation and apparently would be a possibility for any potential condemnation of the warehouses owned by Saroff.

Saroff has been in a back-and-forth battle with the Knoxville Community Development Corp. since the city designated the land around Jackson and Depot avenues in Knoxville as a redevelopment and urban renewal area in 2002. Such areas require all property owners to submit remediation plans or risk having their buildings condemned.

Saroff has moved to remedy problems with the properties, but they have not been deemed adequate by KCDC.

Campfield said Saroff is at risk of having his property taken and transferred to another developer, but that situation is not the primary motivation in his push for an immediate moratorium.

"He may be the poster child, but he is not necessarily the only person who could have their property taken if there is a mad push to grab up as much land as they (governments) can before legislation to stop this abuse can be put into effect," Campfield said.

Campfield said his bill is narrowly tailored so it applies the moratorium only to situations where condemned land winds up in the hands of another private person or entity, having no effect on use of eminent domain for road construction, schools and the like.

Procedurally, his move for a prompt vote requires a suspension of normal legislative rules. The first step, to suspend those rules, requires a two-thirds majority vote, and Campfield said he will seek that vote Monday on the House floor. His bill is sponsored in the Senate by Sen. Mae Beavers, R-Mount Juliet, who Campfield said is "a few days behind me" in similar plans.

Fowlkes said the Campfield move is an ill-advised "shot in the dark" that could have unintended consequences and ramifications. Mahery gave a similar assessment.

"We think our laws in Tennessee have worked so well that any changes need to be made with a lot of deliberation and a lot of study, not just change for change's sake," she said. "This is such an emotional issue there are many misrepresentations and misunderstandings and something could be done to hurt Tennessee."

Saroff said he feels a moratorium is "imperative."

"This is not Stacey Campfield trying to protect his friend," said Saroff, adding that he is a Democrat while Campfield is a Republican. "This is a nonpartisan issue and immediate action needs to be taken to protect the property rights of all Tennesseans."

Once a condemnation lawsuit is filed, Saroff said, "There is no protection to the property owner in the state of Tennessee" under current law.

Fowlkes disagreed. He said that, if a condemnation proceeding is brought in court, the landowner can challenge over whether the property is "blighted." He cited a 1998 Court of Appeals decision where a Chattanooga landowner won, blocking plans by the city of Chattanooga to condemn land for construction of a stadium.

"From what I've seen, the courts in Tennessee have leaned toward the private landowner in these cases," Fowlkes said.

He said the Legislature will likely give final approval to changes in eminent domain law "in the next two or three months" and an immediate moratorium is unwise.

"There may be another city somewhere else that has blighted property that needs to be condemned and developed. Why should we be stopping that?" Fowlkes said. "We could be affecting hospitals, anything out there. This is a shot in the dark."

Campfield contended, however, that there is no harm in holding up any pending eminent domain moves that would give property to private owners. The moratorium, he said, will give legislators the time they need to deliberate on an effective and comprehensive reform bill.

The News Sentinel: www.knoxnews.com

On eminent domain, new complications have come up: Huntsville (AL) Times, 3/5/06

Opinion

By John Ehinger
Is there such a thing as legal overkill? If you have one law against something - murder, for instance - do you need more laws against it?

Actually, you might - at least sometimes.

Take Alabama's law limiting the use of property condemnation. The law was passed last year after the U.S. Supreme Court said states could condemn property for private resale and reuse. But the court stipulated that states could limit such actions as they saw fit.

So Alabama passed its statute to keep people's homes and land from being taken for such things as shopping centers, restaurants and industries.

Giveth and taketh
But some people didn't think the law went far enough. After all, what the Legislature giveth, the Legislature can taketh away. So they proposed a constitutional amendment. That way, such restrictions would be imposed by the voters and could only be repealed by the voters.

Now, as the debate continues in the Legislature, citizens are treated to the odd spectacle of some special interests saying the law goes too far and others saying it doesn't go far enough.

At the core of the proposal, there's seemingly not much wiggle room. But because the amendment would allow condemnation and private reuse of "blighted" property, a debate arises over what "blighted" means. To tell you the truth, I don't know.

And last week one cattle farmer said the proposal didn't go far enough, that it was laden with special-interest goodies. Meanwhile, an attorney for the city of Birmingham said the proposal in its current form would harm beautification efforts. Again, I have no idea what he was talking about.

In the face of such contradictory objections, I might be tempted to say leave well enough alone. Alabama has a law and that should suffice.

But I can also think of some loopholes. Private firms that want to build toll roads have in the past asked the Legislature for the power of eminent domain. (Otherwise, they couldn't build their roads.) Under the 2005 law, nothing would prevent the Legislature from amending the language to allow that.

And I cannot deny the reality that eminent domain is broader than it used to be. The federal government, for example, has given condemnation powers to private energy companies to build such things as electrical transmission lines, oil pipelines and natural-gas terminals.

Who might get special powers next? New-car dealers? Drug companies? Shouldn't someone draw a line somewhere?

In addition, I don't know whether we are to trust the Legislature to impose limits on eminent domain by statute alone. Historically, the Legislature has often played favorites on matters both serious and trivial. (Alabama still has an official state whiskey, even though the owner of the company was charged later with bootlegging.)

At the same time, the public might wonder about cities and counties fighting the limits on condemnation when many of those cities and counties complain daily about the lack of home rule and how the Legislature controls everything.

The case for caution
Public seizure of property ought to be for a public purpose, period. Blighted urban areas can be dealt with in ways that do not take someone's property and sell it to someone else.

Even so, unless the constitutional amendment can be done right, we shouldn't do it at all. Otherwise, we'll be doing it again and again (isn't that the history of the Alabama Constitution and its 700-plus amendments?) with lawsuits resulting from every change.

Taking the new law, restating it in constitutional amendment form and then submitting it to the voters shouldn't be this difficult. I guess it just shows why so many other persistent problems plaguing this state are so damnably difficult to solve.

The Huntsville Times: www.al.com/opinion/huntsvilletimes

City uses eminent domain tool: Montgomery (AL) Advertiser, 3/5/06

By John Davis
[Tuskegee AL] Mayor Johnny Ford doesn't have time to mess around. His town has a Tuskegee Airmen Museum ramping up next year and is expecting it to bring 400,000 tourists to the town of 12,000.

"All this has to go," he said, standing on the south side of Interstate 85 near Exit 38, the exit that's going to route people to his town. Ford wants to take 40 acres near the interstate and turn it into a shopping district complete with two hotels.

The problem is, right now there's an underground oil leak from a dilapidated gas station and an abandoned motel in the town's way. On Friday he took a backhoe to the gas station, a little favor he's doing for its owner, free of charge and out of Ford's own pocket.

Ford loves eminent domain.

He says his town needs it as a catalyst for economic growth. He says he doesn't believe in taking people's homes, but he has a problem with absentee property owners in his town, some as close as Montgomery.

"I would suggest you talk with some of the people in Tuskegee," said Jay Robert Street, when asked about efforts to revamp broken down houses in Tuskegee.

Street owns one of the 60 properties the city recently declared public nuisances. Owners typically have 90 days to get their buildings up to code before the city steps in, using tax liens to pay for repairs and cleanup.

"Here is an example where eminent should be used," he said of the 40-acre gateway to Tuskegee.

The eminent domain issue is a touchy one for a lot of people, especially since the U.S. Supreme Court ruled that economic development can be a legitimate reason to condemn private property.

Ken Groves, director of planning and development for the city of Montgomery, says eminent domain most often is used as a threat to bring recalcitrant property owners to the bargaining table.

"The teeth of it is in the threat," said Groves, who in 30 years hasn't been part of an eminent domain proceeding.

The tri-county area witnessed its own eminent domain fight in 2003 when the Prattville Airport needed land to expand its runway by 2,800 feet.

The owners of the land the Prattville Airport Authority wanted for the expansion demanded more money than the authority wanted to pay. The matter was settled in Autauga County Circuit Court when the airport authority had to pay $581,000 to the owners for a 73-acre strip of land. This amount was nearly twice the authority's valuation.

After the ruling, Wetumpka attorney John Enslen, who represented land owners Jon, Ben and Donald Strength in the case, said the extra money was to compensate the brothers, who were being inconvenienced by the forced sale.

In response to the Supreme Court ruling, the Alabama Legislature passed a law last year forbidding municipalities from condemning property to bring in stores, businesses, industry, houses or nongovernment offices.

Moves on Goat Hill to propose a constitutional amendment forbidding eminent domain for private economic uses has broad support among lawmakers.

None of this bothers Ford. His plan for turning broken down buildings into a new Tuskegee is moving forward. Buildings that the city has liens against eventually could wind up on the auction block, and once under city control, Ford says, offers of free rent for months or even a year could be used to lure businesses.

Carolea Simpson of Tuskegee, whose family owns four houses the city has declared public nuisances, says she understands what the mayor is doing.

She's looking at selling the four houses the city has condemned. If she can't find a buyer, she'll demolish the two that are in the worst shape, eliminating a little piece of the rot and mold that is eating many of the older buildings in Tuskegee.

"They're trying to get rid of those unsightly buildings," she said.

The Advertiser: www.montgomeryadvertiser.com

Proposed eminent domain rules worry downtown Waterloo proponents: (Waterloo Cedar-Falls IA) Courier, 3/5/06

By Tim Jamison
Downtown [Waterloo] revitalization boosters fear proposed changes in the state's eminent domain laws could severely hamper their efforts.

An Iowa Senate committee is expected to begin discussions this week on legislation putting stiff restrictions on local governments' ability to acquire property from unwilling sellers when the land would be used for commercial purposes. The House approved a similar bill last month by an 83-15 margin.

Waterloo City Attorney Jim Walsh said such legislation could drive up the cost to taxpayers as the city and Waterloo Development Corp. move forward with downtown revitalization efforts. Waterloo Development is attempting to acquire numerous properties on downtown's west side. The hope is to attract private developers to invest in entertainment- and sports-themed businesses tied to riverfront improvements funded by Vision Iowa.

"If they do this it will be based on hyperbole and knee-jerk reaction by uninformed legislators," Walsh said. "They're opening a can of worms for purely political reasons."

Eminent domain is essentially forcing property owners to sell with a jury determining a fair price. Under the proposed law, local governments could still use eminent domain for public improvement projects, such as roads, sewers and city-owned buildings. But the proposed law would curtail a city's ability to condemn property under urban renewal plans if the land would be turned over to another private owner.

"I think we have to remember that we're talking about individuals' personal property," said Rep. Bill Dix, R-Shell Rock, who supports the measure. "For (a local government) to be able to pass that property from one owner to another, just because somebody thinks it would be better, is not acceptable."

The legislation comes on the heels of a U.S. Supreme Court ruling last year in Kelo v. New London. The court found the Connecticut city government had the authority to use eminent domain to acquire private property for an economic development project.

"I think it's been a growing concern here in Iowa, but the Kelo decision really brought it to light," Dix said.

But Walsh said the rules could have a chilling effect on local economic development, especially in areas where blighted buildings drive away new businesses and investors.

"We're trying to do urban renewal in downtown Waterloo," he said. "If there's a beat-up old building in the Riverfront Renaissance area and somebody is just collecting rent on it and not investing in keeping it up, that person is going to loot the taxpayers of this town if this legislation goes through."

Walsh predicts higher prices from owners.

"They could get five, 10, 20 times what this property is worth by holding a gun to the head of the taxpayers and refusing to sell otherwise," he added. "This is taxpayer robbery."

Dix counters buyers should expect to pay more.

"If you're trying to buy someone's property who doesn't want to sell right now there's justification in paying a premium," he said.

The bill's supporters have also included an exception that could help in some urban renewal efforts.

If 75 percent or more of the assessed value included in a project or plan area is slum or blighted, the remaining property in the plan area is subject to condemnation. But the law shifts the burden of proof from the property owner to the municipality to prove by "clear and convincing evidence" that certain properties are truly in a blighted condition.

Walsh said 99 percent of the land acquisitions by the city are closed through negotiation.

"I have yet to hear of a case of abuse (of eminent domain) here in Iowa," he added.

Dix said he believes constituents want action before that case rears its head.

"Why do we have to wait for the gun to go off?" he said. "If they try to take somebody's property when the Legislature is not in session, we wouldn't be able to act to protect that property owner."

The Courier: www.wcfcourier.com

Eminent domain abuse bill leading list of early filings: (Lafayette LA) Daily Advertiser, 3/3/06

Louisiana lawmakers are already filing bills for the 60-day legislative session that opens March 27. ... Thus far, the most needed legislation is a bill by Rep. Peppi Bruneau, R-New Orleans, proposing a constitutional change to prevent what has become known as "eminent domain abuse." It would tighten language in the Constitution allowing government to take property " for a public purpose." Essentially, the Bruneau bill would block expropriation of land for commercial uses, preventing government and business from joining forces to condemn homes and replace them with businesses that increase the tax base.

In a recent five-year period, according to the New York Times, "there were 10,000 reported cases of cities and states condemning or threatening to condemn homes and businesses to make way for private companies to expand."

"Unfortunately," the Times says, "the victims ... are most often the elderly, the poor and minorities. They lack the money and political power to persuade the government to respect their rights."

General Motors Corp., for example, once persuaded the city of Detroit to condemn a neighborhood called Poletown and sell it cheap to GM to build an auto factory.

The city of Merriam, Kan., condemned a Toyota dealership so it could sell the land to a BMW dealer.

A frequently cited example of the ability of corporate lobbyists to convince cities to give them someone else's land involves billionaire Donald Trump. He convinced Atlantic City, N.J. to condemn an elderly widow's home so he could build a limousine parking lot.

The basic argument of corporate lobbyists is that the public good will be served. The underlying motivation for cities to respond favorably is that the new occupant of the property will increase the city's tax base.

Several organizations are fighting eminent domain abuse across the country. Bruneau's bill will be a strong weapon in the battle here. It has been filed early. We hope it will be passed quickly - and that the constitutional change will be made in a timely fashion.

The Daily Advertiser: www.theadvertiser.com

No Eminent Domain for Private Gain: The Epoch Times, 3/3/06

By Merian Kiernan
On Saturday, Feb. 25, people across California launched a massive grassroots campaign to gather 800,000 signatures by early May to qualify "Limit Eminent Domain: The People's Initiative" for the November 2006 ballot.

According to information from www.LimitEminentDomain.org, "School teacher Suzette Kelo had turned a rundown Victorian into her dream home only to have the City of New London, Connecticut try to seize it by eminent domain for the benefit of a large private corporation. Most people think that eminent domain can only be used for a legitimate public use like a school or fire station. The Kelo decision confirmed a practice of abuse that has been happening all over California and the nation. Many homes, businesses, and places of worship have been seized and many more are threatened. If owners resist, their property can be forcibly taken by the government and given to another private owner just because the new use might generate more revenue."

This past November, the U.S. House of Representatives passed on to the Senate, by a wide bipartisan majority, The Private Property Rights Protection Act (H.R. 4128). It was a funding bill only that put a 2-year moratorium on eminent domain legislation, giving all states a chance to enact or change their own policies.

Last summer, a U.S. Supreme Court decision that sanctioned the use of eminent domain to take one person's home or business in order to give it to another for private profit was enacted. "No eminent domain for private gain" is the motto being used to formulate change to California's Constitution via The People's Initiative.

KGO, KSFO and KICU 36 media coverage of this initiative has seen overwhelming response and interest from the public. With California's current housing market being what it is, most homeowners rely upon the value of their property to be their biggest financial asset. Home ownership provides a secure and comfortable place to live, and can be a blanket of security for future investment and retirement. Even though the Anderson forecast predicted a few months ago that home sales would plummet to a five-year low, the median home price in California last month rose to $425,000.

Judith Christensen, Redevelopment Director and City Council member for Daly City, says, "A lot of city officials don't like to use eminent domain, but they see it as a necessary tool." But what she points out is that this people's initiative is not about eminent domain of public property that government agencies, school districts, water departments, etc. use. This initiative is only concerning private property such as in the Kelo case. "Individual rights are what this country is about," says the schoolteacher who got mad with government, got together with her neighbors and ran and won her City Council seat in 2004. Judith is also a committee member of the initiative.

Annette Hipona, of Daly City, Initiative Proponent and Initiative Coordinating Committee organizer, staged an information site on Mission Street, at the "Top of the Hill" area of Daly City. This very site, nicknamed, "The Landmark Site," is one location where Daly City used eminent domain ruling to take a privately held small business property of 40-50 years, enabling it to be sold against the owner's will. Two small auto body shops were given up for a private developer to build 70 luxury condos at this site. City officials say the pros of this deal are more tax money, but opponents say that most of the new tax monies generated go back to the redevelopment itself, not into the public's general fund. This is the fund that pays for community police, firefighters, libraries, etc.

Judith Christensen pointed out that "small businesses are the #1 properties that are taken by eminent domain, and with 80 percent of the public jobs created by small business this is not a good situation for a city. Most new jobs created now are part-time, not paying a living wage."

Annette Hipona tells of her gradual involvement of becoming a grassroots member of her community with a story that happened six-and-a-half years ago. A very large planned development slipped by the eyes of her neighbors when a legal notice was posted for the required two weeks in a small local paper. Working together with a neighbor, she printed flyers and went door to door, getting a lot of response, encouraging her involvement in city held meetings and networking with other concerned individuals. At first she was nervous about her involvement and tried to keep anonymous, but gave into the realization that the grassroots networks are all interconnected with many different organizations helping one another. She learned from books on how to write legal referendums, and finally decided to help get a concerned individual elected to a City Council position.

It has been strictly a grassroots, volunteer only, non-partisan initiative—with strictly no pay to volunteers. There will be volunteers presenting petitions for signatures in all areas of California. As Hipona explains, "We all are doing things strictly out of love" for the issues we stand for. And her reason for a person to get involved and sign the initiative in order for it to be on the voter's ballot in November is this: "A one year hearing can put any property under eminent domain and because redevelopment affects all people who pay taxes, whether one lives across or right next to a redevelopment, he should be concerned."

With this initiative, California will be given an opportunity to put a safety net on eminent domain ruling to further the protection of property ownership. Hipona explained, "The Democratic party has shown support and will most likely back the initiative as a proposition. And there is a similar resolution passed by the Republicans backing the concept. So what needs to be done now is to get enough signatures to place it on the November ballot for a vote."

The Epoch Times: www.theepochtimes.com

Senate OKs measure to restrict eminent domain: Chicago (IL) Sun-Times, 3/3/06

Associated Press
Local governments would have a tougher time taking residents' property for economic development under a bill approved by the Illinois Senate.

The measure, approved 44-2 on Thursday, would apply a higher standard for local governments to exercise eminent domain to clear the way for private development projects. The bill now goes to the House.

Officials from local governments throughout the state opposed the bill, claiming it would hamstring efforts to improve their communities through redevelopment.

But supporters said the measure strengthens property-owner protections weakened by a U.S. Supreme Court decision last year that expanded local governments' eminent domain powers.

"The way it is now, the property owner is clearly at a disadvantage," said Sen. Susan Garrett, D-Lake Forest, the bill's main sponsor. "This levels the playing field."

The measure would require local government to prove that a property is "blighted" before it can take it for private development. Officials also would be required to have detailed redevelopment or renewal plans in place before they condemn property.

The bill wouldn't affect local governments' power to declare eminent domain for public projects such as roads and reservoirs.

Roger Huebner, general counsel for the Illinois Municipal League, said the legislation could dampen developers' interest in revitalization projects by complicating the redevelopment process.

"What the bill does is increase the value of what a local government has to pay to get rid of blight," Huebner said.

The U.S. Constitution says governments cannot take private property for public use without "just compensation." But for decades, the court has been expanding the definition of public use, allowing cities to employ eminent domain to eliminate rundown properties.

In June, the Supreme Court ruled 5-4 that New London, Conn., had the authority to take homes for a private development project. But in its ruling, the court noted that states are free to ban that practice.

Since then, five states have passed eminent domain laws in response to the ruling and as many as 40 more are considering legislation, according to the National Conference of State Legislatures.

Sun-Times: www.suntimes.com

4/24/2006

Wilhelmina Dery, Who Fought Eminent Domain, Dies In Her Fort Trumbull Home: The (New London CT) Day, 3/14/06

By Elaine Stoll
New London Lifelong New London resident Wilhelmina Ciavaglia Dery, one of the Fort Trumbull homeowners who took their fight to save their properties from being seized by eminent domain all the way to the U.S. Supreme Court, died Monday at age 88.

She died in the same house, at 87 Walbach St., where she was born Feb. 20, 1918, in the first-floor bedroom, to Andrea and Rose Ballestrini Ciavaglia.

Mrs. Dery attended New London schools and graduated from the former Williams Memorial Institute in 1937.

She married Charles F. Dery on February 7, 1945, in St. Joseph's Church.

Mrs. Dery, known to some as ran Ciavaglia's Market, a business started by her parents and later operated with her husband and sons until 1995, from her house on Walbach Street.

The business was the last grocery store in Fort Trumbull by April 1983, when Mrs. Dery recalled growing up in the neighborhood in between attending to her customers.

It was beautiful, she told The Day at the time. It was the most wonderful place to live.

Mrs. Dery's ties to Fort Trumbull stretched back even longer than her 88 years. Her grandmother emigrated there from Italy in the early 1890s, and her family home has stood in the neighborhood since 1905.

She sought to save the Walbach Street home and three others owned by her family as a plaintiff in Kelo v. New London, which the Supreme Court decided against the Fort Trumbull homeowners last June.

Though her name is less recognizable than that of lead plaintiff Susette Kelo, Mrs. Dery was immortalized in the dissenting opinion of Justice Sandra Day O'Connor.

Petitioner Wilhelmina Dery ... lives in a house on Walbach Street that has been in her family for over 100 years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. Their son lives next door with his family in the house he received as a wedding gift, and joins his parents in this suit, O'Connor wrote.

O'Connor, joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas in the 5-4 decision, argued that the use of eminent domain at Fort Trumbull was essentially different from that upheld by the Supreme Court in previous cases. Those cases allowed governments to transfer land from one private owner to another because the original use harmed society.

Here, in contrast, New London does not claim that Susette Kelo's and Wilhelmina Dery's well-maintained homes are the source of any social harm, O'Connor wrote.

Besides her husband, Mrs. Dery is survived by son Matthew Dery, daughter-in-law Suzanne Dery and grandson Andrew Dery, all of New London.

The Day: www.theday.com

Response to inquiry from Erick & LyNae Marshall

Hello Mr. and Mrs. Marshall:

Eminent domain can be used as long as it meets minimum scrutiny, that is, as long as it has a rational relation to a legitimate government purpose. Whether there was a government purpose is a question of fact for the jury (or the judge sitting as jury).

The question is, was there a government purpose in your government's plans to rezone and "revitalize," or was there, in fact, a private purpose? That is, did government simply exchange a government purpose for a private purpose? Did it sell government purpose to a developer?

I emphasize this because, under current, law, making that factual determination is the only way to legally stop eminent domain. If the court can be shown that there was, in fact, no government purpose, then government cannot use eminent domain because the eminent domain does not bear a rational relation to a legitimate government purpose. It does not meet minimum scrutiny.

Sorry about all the legalese, but you are in the realm of lawyers and courts if you want to resist this, and you have to use their language.

What does this have to do with the Kelo case? Well, chronology is very important in deciding if there was, in fact, a government purpose. New London presented the following chronology to the U.S. Supreme Court in the Kelo case:

New London decided it wanted to revitalize;
New London announced its desire;
Pfizer Corporation heard about it and approached New London with a plan.
New London accepted Pfizer's plan.

If you read pages 97-100 in the article with the link below, you will find out that that was a lie. It came out after the Kelo decision that the following was the true chronology:

Pfizer wanted land in New London in order to expand;
Pfizer approached New London with its plan;
New London adopted the plan;
New London announced that it wanted to revitalize.

What is missing in the second series of steps? What is missing is the fact that New London decided to revitalize. In fact, New London did not make that determination. In fact, it simply adopted Pfizer's purpose. It exchanged government purpose for a private purpose. This is important: even the Justices asked about it in oral argument during hearing on the Kelo case at the Supreme Court. It was decided that the first chronology was what happened. The Court was wrong (or, in my opinion, it actually knew that the second chronology was true but wanted to find for the city and against the property owners).

Probably from the time the city manifested a wish to rezone, you have legal standing to challenge the government with respect to your property. You can probably ask for declaratory relief declaring any rezoning or "revitalization" decisions made so far, to be invalid on the basis that there is in fact no government purpose. Also ask for an injunction against the city ordering a halt to any further actions relating to rezoning or "revitalization."

Your attorney will have to get to work on discovery. Subpoena documents and get depositions which show that government officials met with private developers before the rezoning and "revitalization" announcements. It sounds like they were approached by a developer, and agreed to turn over government purpose to the developer.

By the way, who are the developer interests? You have to find out all about that. You have to be very methodical, go back very far in time, and present evidence to the Court about who talked to whom, when, and what was said. Get all the documents relating to the rezoning and "revitalization" decisions of the government, no matter how far back they go. Often developers have their eyes on a piece of property — and begin talking to government officials about it — long before the public knows anything about it.

There is currently an action going on in New Jersey in which the attorney is trying to find out exactly these things. The filed complaint is online at this site:
www.kevinbrownformayor.com

Look at page 5, paragraph 14 of the complaint. This is the sort of thing your attorney is going to have to show: that private parties decided what they wanted, then got government to agree to give them what they wanted. That is the only way you will show that there was, in fact, no government purpose. You will want the Court to give you a declaration that the rezoning and "revitalization" actions by governments do not pass minimum scrutiny and are therefore invalid. You will want a permanent injunction to stop any further government action relating to rezoning and "revitalization."

Let me know if you have any questions. Good luck!

Cordially yours,
John Ryskamp (philneo2001@yahoo.com)

Ryskamp, John Henry, "The New Constitution: The Eminent Domain Revolt and Its Consequences" (December 29, 2005). Available at SSRN: http://ssrn.com/abstract=898284 or DOI: 10.2139/ssrn.562521

4/23/2006

Business and dreams headed for Eminent Domain Doom? Help!

To: Eminent Domain Watch

From: Erick & LyNae Marshall

We built our home 11 years ago on Centerville Lake in Centerville MN. LyNae's parents built next to us. (It's two blocks from the 'downtown' area - comprised really of two bars and an insurance office.)

In 2005, the City Council was considering rezoning our home, our parent's home and our surrounding neighbors to "mixed use". We of course put up a stink and the council voted to keep us residential. However, the City Council is now preparing to "revitalize" the downtown. The city has not actually used the words "Eminent Domain" Yet because, in our opinion, there is so much heat over this in the local papers with the neighboring town of Hugo. We believe that Eminent Domain is indeed what Centerville Council is preparing to do.

We believe this because:

This year, we purchased an old run-down home 1/2 block down the street from our home. That whole square block just down the street from us has recently been rezoned to "mixed use". We run our own small electrical business and thought that since the city rezoned that block, we could 'set up shop' just down the street. The city currently owns 1/2 of that square block, while the other half are residential homes. The "revitalization development plans" show that our property will be a holding pond for the development which will consist of shops on the street level with "high density affordable housing" on the the 2nd and 3rd level. It is our understanding that the City of Centerville will receive a government 'kick-back' of approximately $200,000-300,000 if a developer puts up "affordable housing".
This month, the city contacted us about doing an appraisal on our property. We refused. To date, the city has not given us a straight answer on who is the possible developer, although we already know that it is a local resident along with one of the town's bar owners (the bar owner will be able to implement the tax increment financing.) Also, the city will not give us an answer as to whether or not they plan to take all or a portion of our property (the "revitalization plans" currently show all of our property as a holding pond.)

We are all for "revitalizing" our dumpy looking town (LyNae was on the "MN Design Team" revitalization committee 5 years ago.) But, revitalization could easily be accomplished by getting the local bar owners and surrounding homeowners to clean up their places. We are even in support for shops and condos if local business owners and homeowners would be willing to sell their properties - and some are. But we are not in favor of "high density affordable housing" as it would negatively impact the value of our home here on the lake. This is another reason we purchased the dilapidated home down the street; as a 'buffer zone' between our home on the lake and "high density affordable housing".

For several years, little Centerville and the much larger town of Woodbury, were the fasted growing towns in MN. Has Centerville City (population of about 3,000) become too big for its britches with this growth spurt? We can see that ultimately, our property is headed for "Eminent Domain Doom".

Does anyone have any advice or help for us at this time?

Erick & LyNae Marshall: acemitch@usfamily.net

State looks to reform eminent domain laws: (Kinston NC) Free Press, 3/2/06

By Barry Smith
John Moore of Wake County said that he spent a lot of time, money and effort when a power company wanted to take part of his land in southwestern Wake County.

Moore, who uses his land as a horse training facility, said that in the process of dealing with the power company over the price of the land it wanted, he was never compensated for expenses for attorney, appraisers and other services, an amount that he said cost $85,106.

Moore told his story on Wednesday to a state House committee that is looking into reforming the state’s eminent domain laws in the wake of a U.S. Supreme Court decision last year that allowed a Connecticut town to take private property for private development. One thing the committee is looking into is requiring the government or, in Moore’s case a utility, to pay attorney and appraiser fees if they low-ball their “just compensation” offer.

“If municipalities have a right to condemn property and they are able to do so without having to reimburse attorney’s fees after making grossly low offers, then they will continue to make grossly low offers,” Moore said once he had finished speaking to the committee.

The Fifth Amendment to the U.S. Constitution allows governments to take private property for public use provided that “just compensation” is given to the property owner.

The committee pored over draft legislation that would require courts to award property owners costs and expenses, including reasonable attorney fees, appraisal fees and engineering fees, if the amount the court awards the property owner is more than 25 percent higher than the amount the government or utility made in its initial offer.

One of the members of the committee, Rep. Robert Grady, R-Onslow, said he agrees with requiring attorney fees to be paid.

“I really don’t think it’s fair for a citizen to be attacked by government-paid attorneys and then the citizens have to pay for their own attorneys even if they win,” Grady said. Otherwise, he said, the government attorneys could drag the case out for a long time and “starve out” the citizens.

“A provision to pay the attorney fees when the citizen wins I think is only fair,” Grady said.

The draft legislation would also disallow any local acts giving local governments the right to take property for private development purposes.

The wording is in the form of a statute and not an amendment to the N.C. Constitution.

Rep. Wilma Sherrill, R-Buncombe, the co-chairwoman of the committee, said she thinks that the legislation will “make it perfectly clear that the laws of this state don’t allow for the taking of private property for private use.”

She said that she had consulted with a number of lawyers about the wording in the proposed new law.

“I feel real good about it,” Sherrill said.

Grady said that while he would prefer a constitutional amendment, the legislation is a good starting place.

“I’m willing to work with this and start the process with this and see how it works,” Grady said.

The House committee is preparing legislation to be taken up by the 2006 short session of the General Assembly, which begins in May.

The Free Press: www.kinston.com

Citizens debate eminent domain: Decatur (AL) Daily, 3/2/06

By M J Ellington
People from across Alabama showed up Wednesday to ask legislators at a public hearing to protect them from those who might seek to take their land for a fast-food restaurant or discount store.

So many people packed the House County and Municipal Government Committee's chamber that the crowd spilled into the hallway and committee Chairman Rep. Bill Dukes, D-Decatur, moved the hearing on proposed eminent domain legislation to the main House chamber.

"I represent John Doe," said Terry Francisco, who told committee members that after he heard about the hearing Wednesday morning, he checked his children out of school, picked up his wife and drove with his family to Montgomery. Francisco, who did not say where he lives, said it is important for lawmakers to help people like him by protecting his right not to sell his property or have it condemned for big business.

Upstairs in the House visitors' gallery, a crowd of families with children and business people who shared Francisco's view observed the hearing.

Ricky Coldfrancesco said he drove from Birmingham to understand both sides of the issue.

Coldfrancesco, who operates a small lawn care business, said he wanted to see how government really works. Late in the hearing, he had some conclusions and some questions. "There are a lot of opponents to this," Coldfrancesco said. "My question is: Is it a bad bill or is it just emotion talking?"

At issue was HB622, a compromise measure on eminent domain that sponsor Rep. Marcel Black, D-Tuscumbia, said attempts to answer concerns raised by similar bills introduced earlier in the session.

The committee will not vote on the measure until a future meeting.

Sponsors of at least five bills introduced this session say their legislation would protect private property against being taken by government for commercial development, but all five have opposition.

The sponsors say their bills would improve the law Alabama passed last summer, soon after the U.S. Supreme Court ruled that New London, Conn., had the right under that state's law to take private land for commercial development.

Lawmakers and Gov. Bob Riley said at the time that they wanted to tighten the bill's section on taking so-called blighted property and have voters decide whether to make the revised bill an amendment to the state's constitution. Now lawmakers must decide if any of the bills introduced so far are good enough to submit to voters.

Freddie Patterson of the Alabama Farmer's Federation said an attorney for his organization was in the group that helped draft HB622. Patterson said that while ALFA supports the bill, he considers it a work in progress.

"Negotiations are still going on to tighten the section on blight," Patterson wants stronger protection for landowners, but he said there are still things in the bill that need work.

Sonny Brasfield, associate director of the Alabama Association of County Commissions, also was involved in drafting the bill, but he said his organization has concerns. "We appreciate the fact that the sponsor included provisions that allow county governments to do business," Brasfield told committee members. "I urge you to think long and hard about whether Alabama needs to put provisions in this bill in the constitution." Brasfield said there are times when counties need to use eminent domain that the bill makes more difficult.

Greg Cochran with the Alabama Municipal Association said his organization opposes the bill, as does Jim Stanley, an attorney for the city of Birmingham.

Stanley said the bill "would severely cripple" the city's ability to deal with blighted areas.

Decatur Daily: www.decaturdaily.com

Eminent domain reforms on the brink of approval: (Terre Haute IN) Tribune Star, 3/2/06

Editorial
An important piece of legislation that would place badly needed restrictions on government use of eminent domain to seize private property is working its way toward passage [in Indiana].

A Senate version of the law passed Tuesday night and must go back to the House for approval. Hopefully, House members will concur with the reasonable language approved by the Senate and the law will be sent to the governor’s desk. When that happens, Gov. Daniels should sign it — with an exclamation point.

According to an Associated Press report, under the bill, property must meet certain conditions of being blighted before it could be taken by government eminent domain for private purposes. The conditions could include property being unsafe, unsanitary or uninhabitable by people.

The Senate version does contain an exception that would allow governments that occupy most of an area in question to take just a few parcels, as long as they were not owner-occupied, if they were needed to complete an economic development project.

The proposal would force governments to pay 125 percent of fair-market value for farmland and pay homeowners 150 percent of the value of their property in order to seize it for such purposes.

Hopefully, the exception won’t create an obstacle for what is otherwise a necessary bill to curb seizing of private property by public entities.

The Indiana General Assembly is tackling reforms to eminent domain laws this year in response to a controversial U.S. Supreme Court decision last year that allowed cities and other governments to seize homes and businesses for private development. The ruling created the need for local safeguards to protect landowners.

To its credit, the Legislature responded aggressively to curb potential abuses of eminent domain laws and is on the brink of putting a reasonable proposal on the governor’s desk.

Tribune Star: www.tribstar.com

Chamber — Don't change eminent domain: (Mason City IA) Globe Gazette, 2/28/06

By John Skipper
The Mason City Chamber of Commerce is lobbying state legislators not to restrict a city’s right to exercise eminment domain.

Thursday is the deadline for filing bills.

Eminent domain gives cities the power to take ownership of private property for public use.

Robin Anderson, executive director of the Mason City Chamber, has asked members of the Mason City Downtown Association to join the Chamber in contacting area legislators in support of the current eminent domain law in Iowa.

Iowa Senate Republicans have filed legislation that would reduce the power of local governments to condemn property for economic development projects.

The move was prompted by a U.S. Supreme Court ruling last year that strengthened the ability of local governments to use their eminent domain powers to take private land. Cities and counties have always been able to force property owners to sell private property for such public purposes as building streets or utilities.

But the Supreme Court ruled that economic development could be considered a public use. In that context, a local government could force the sale of one person's private property and then sell it to another private property owner as part of plan to grow a business area.

The GOP bill would specify that economic development does not constitute a public use in Iowa.

Backers said the bill would not affect condemnations that clear the way for uses that are more obviously public uses, such as school buildings, utilities and roads. But opponents say the proposed legislation could cut off legitimate public uses.

The Iowa Chamber Alliance, a coalition of development groups, opposes any change in the state's eminent domain laws. "We have yet to see anybody to show us the problem they're trying to fix," said Dave Roederer, a spokesman for the alliance.

Anderson said, “Our position is quite simple. Current Iowa law provides strong private property protection while keeping redevelopment costs to an affordable level. This protects taxpayer dollars and does not unduly enrich property owners.

“I hope the Senate will be aware of hasty decisions made by other states and recognize the strength of Iowa's current eminent domain laws. Our job at the Chamber and EDC is to focus on improving the business environment to directly impact main street and commercial businesses - specifically, to focus on ways to promote job growth, enhance our workforce, and create infrastructure for the future. The Legislature needs to be strategic in setting policies for economic growth by looking at every issue in this context,” she said.

Globe Gazette: www.globegazette.com

Long Branch OKs city's use of eminent domain: Asbury Park (NJ) Press, 3/1/06

In regard to Broadway project

By Carol Gorga Williams
The [Long Branch NJ] City Council on Tuesday night authorized the use of all legal means necessary, including eminent domain, to acquire up to 57 lots in the Broadway redevelopment sector.

Up to two-thirds of the properties already are owned by the developers or the government, officials said, and, unlike in other sections, this project is aimed at commercial uses.

City Attorney James G. Aaron said the ordinance involves 57 properties, of which 30 to 35 are under contract with the developer.

Members of the council, which voted 5-to-0 to adopt the ordinance Tuesday night, said they heard the objectors' message but believe the revitalization of the business corridor is critical to the overall success of the redevelopment plan.

Council President Anthony Giordano said that when the council began meeting with the public on redevelopment issues 12 years ago, people said revitalizing Broadway should be a top priority. Broadway had been deteriorating for 30 years, Giordano said.

"The main business corridor, the number one industry, was dominated by go-go bars and massage parlors," he said. "That was the situation that had to be addressed."

Most of the businesses there are occupied by tenants although a few are owned and some of those owners have said they have issues with the way the city and the developer have handled negotiations.

Among those critics is Gobal Panday, who owns Rainbow Liquors and who wanted to bring his own $15 million redevelopment to the zone. He said he was rebuffed.

Panday doesn't believe he can negotiate freely with the threat of eminent domain dangling over his head.

"For the last 20 years, we've stuck here through thick and thin," Panday told the council. "We'd like to be a part of this development."

Another who has frequently criticized the city is the Rev. Kevin Brown, a potential mayoral candidate whose building at 162 Broadway is in the redevelopment zone.

Brown tried to qualify as a redeveloper for that building but also was rebuffed. In 2000, he sued the city over its refusal to allow him to operate a church or mission at the site. That portion of the lawsuit recently was dismissed although he is appealing.

In the meantime, he joined the New Jersey Coalition Against Eminent Domain Abuse. The coalition formed in February in Princeton to oppose the use of eminent domain and is calling for a boycott of the businesses of the redevelopers of the Broadway Arts Center.

"This ordinance is proof the local elected officials haven't gotten the message . . ." Brown said. "I believe it will be the last nail in your political coffin if you allow more eminent-domain abuse."

Lori Ann Vendetti, a member of the Marine Terrace, Ocean Terrace, Seaview Avenue Alliance which has gone to court to block the taking of some homes in that area, said officials should allow the commercial area to revitalize naturally.

"Why don't you say, "No,' to this ordinance . . . and let people negotiate with these businesses on their own," Vendetti said. "Everyone knows Long Branch is the poster child for eminent domain abuse.

"Vote "No,' and let the revitalization occur on its own. It will happen."

The redevelopers/business owners include the Katz and the Siperstein families, who together own Siperstein's Paint and Decorating Centers, and the Pereira families, who own Pax Construction, among other properties. They are partners in the Broadway Arts Center, which will span Broadway between Second Avenue and Memorial Parkway, through Belmont and Union avenues.

Broadway Arts Center will feature two performing arts theaters, including a home for the New Jersey Repertory Company. The second theater will be housed in the old Paramount Theater, currently used by Siperstein's Paint and Decorating Center, which will relocate to Joline Avenue.

Asbury Park Press: www.app.com

Senate Approves Revised Eminent Domain Bill: WISH-TV8 (Indianapolis IN), 3/1/06

The Indiana Senate has unanimously approved a revised bill that would place restrictions on the ability of most government units from seizing private property and transferring it to private entities.

Under the bill, property must meet certain conditions of being blighted before it can be taken by government eminent domain for private purposes.

The Senate added a provision allowing governments to take a few parcels if they're needed to complete an economic development deal.

Governments would have to pay 125 percent of the fair-market value for farmland and pay homeowners 150 percent of the value of their property to seize it.

If the House concurs with the Senate's changes, the bill would go to Governor Daniels for his consideration.

WISH-TV8: www.wishtv.com