Eminent Domain Watch: 10/15/06

10/21/2006

Hartung Quarry eminent domain photoessay

By Mark Draughn
The City of Milwaukee plans to close its Hartung Quarry landfill and convert it to a park. The site is surrounded by a classic suburban single-family neighborhood — except that, five apartment buildings are also located in the area. The Hartung Park Neighborhood Association wants the city to acquire these multi-family properties by eminent domain and develop the street into a cul-de-sac of single-family owner-occupied homes.

A photoessay showing the apartment buildings is online at
http://www.windypundit.com

Mark Draughn: mark@windypundit.com

Developers Consider Suing Florida City for Not Using Eminent Domain Powers: Fox News, 10/18/06

The builders of a multibillion-dollar redevelopment project are considering legal action against the state [of Florida] and city [of Riviera Beach] after being told eminent domain powers will not be used to seize property to make way for the plan.

Viking Inlet Harbor Properties, a joint venture between Viking Yacht Co. and resort-development firm Portfolio Group, has already spent more than $50 million acquiring property in the redevelopment zone, said Mike Clark, president of Viking Associates, the real estate arm of the company.

"Now I'm stuck with these properties but can't develop them because I can't fill in the puzzle pieces," Clark said. "The city spent millions of dollars putting together its comprehensive plan, and we spent well over $1 million in engineering, architectural and planning fees. Our plan now becomes virtually worthless.

"We're certainly considering joining with other developers and perhaps a group of municipalities about the changing of the rules in midstream," Clark added.

The $2.4 billion project is planned for an area that encompasses about 1,700 homes and businesses in an effort to revamp the marina district with high-end condominiums, houses, shops, offices and yacht slips in one of Palm Beach County's poorest cities.

The city was moving ahead with the plans over the objections of some residents who refused to move out of their homes to make way for the project in potentially one of the nation's largest eminent domain seizures.

Mayor Michael Brown has said the city would use eminent domain to force home and business owners to sell their properties in an effort to bring a higher tax base and better paying jobs to the city. However, city officials contend that many residents would choose to sell, making forceable eviction unnecessary.

But after the U.S. Supreme Court ruled last year that local governments could use the power of eminent domain to obtain property for such private development, Florida and 30 other states passed laws restricting the seizures.

Brown still said the plan would move forward because it was already in the works when the law was enacted this year.

However, Floyd Johnson, executive director of Riviera Beach's redevelopment agency, said the city now has no choice but to follow the law. It cannot force residents out of their homes against their will, Johnson said.

Brown declined to comment.

The City Council was set to consider a resolution Wednesday night making it official that it does indeed intend to abide by the law.

Such a resolution would make moot several lawsuits that have been filed against the city by residents seeking to stop the project.

Traditionally, governments have used eminent domain to forcibly buy property so they can build public facilities like schools, parks, prisons, airports and roads. But after the Supreme Court ruling, cities across the country began eminent domain procedures for projects much like Riviera Beach's plan.

Florida voters have a chance to put the state law restrictions into the constitution if they pass Amendment 8 on the Nov. 7 ballot. It would ban the use of eminent domain to transfer property, such as homes or businesses, to private developers unless an exemption is approved by three-fifths of both houses of the Legislature.

The new law and the resolution being considered would effectively stop a large portion of the Riviera Beach project. The developers would then have to negotiate for much higher prices to buy residents' properties if the project were to move forward.

Fox News: http://www.foxnews.com

Developers Consider Suing Florida City for Not Using Eminent Domain Powers: Fox News, 10/18/06

Fox News: http://www.foxnews.com

Dallas to use eminent domain to acquire terminal: Ft Worth TX Star-Telegram, 10/18/06

By David Wethe
The Dallas City Council agreed Wednesday morning at a regular meeting to use its eminent domain powers to acquire the former Legend Airlines terminal at Dallas Love Field. The council voted 11-1 with Maxine Thornton-Reese as the lone detractor.

The next step is for the city manager and the city attorney to begin drafting papers to take over the property on the east side of Love Field. The terminal owners will appeal the process. Dallas Mayor Laura Miller said she "will be pushing hard" to get the takeover done by the time she leaves the mayor's office next June.

Dallas wants to tear down the vacant six-gate terminal to fulfill its end of the Wright Amendment compromise struck earlier this year that calls for the destruction of 12 gates at Love Field.

Councilman Mitchell Rasansky told his colleagues that the city should go ahead with eminent domain because it's under a mandate by President Bush, who signed the compromise into law Friday, to do so.

But Bill Brewer, a Dallas-based attorney for the terminal owners, has said that the city should tear down 12 of its own gates instead of going after his clients’ property. He said Love Terminal Owners wants to auction off the facility, which is located on the northeast side of the airport along Lemmon Avenue.

Miller said during a lunch break in the council meeting today that the gates "are so-called gates."

"They're really just a platform," she said, adding that the gates would need an "enormous" amount of renovation to fit larger planes.

The owners of the building, Love Terminal Partners, have filed several suits to stop the tear-down. Love Terminal Partners has said that the city's condemnation talk killed a $100 million deal to sell the terminal to Pinnacle Airlines, a regional-jet affiliate of Northwest Airlines.

For most of the year, Miller has talked about tearing the building down.

The Wright Amendment compromise was struck by the cities of Fort Worth and Dallas, American and Southwest airlines and Dallas/Fort Worth Airport on June 14. The deal calls for the capacity of Love Field to shrink to 20 gates from 32.

Currently there are 18 gates in operation: 14 by Dallas-based Southwest, two by Fort Worth-based American and two by ExpressJet, a regional-jet affiliate of Houston-based Continental Airlines.

The Wright Amendment compromise was later put into a bill and approved by Congress on Sept. 29.

The local parties agreed to reduce the size of Love Field to 20 gates based on a study by DMJM, which said the current environmental, noise and traffic impacts during around Love Field during the Wright Amendment would be the same if the 1979 went away and more long-haul flights were introduced.

The Wright Amendment was originally passed to protect the upstart D/FW Airport by allowing flights to go from Love Field only to cities in Texas and eight nearby states. The law will be fully repealed by 2014. Until then, airlines are allowed to sell one-stop and connecting itineraries to long-haul destinations if they first stop in the Wright zone.

Ft Worth TX Star-Telegram: http://www.dfw.com

Yes on Question 1 - Stop eminent domain abuse: Manchester NH Union-Leader, 10/18/06

Opinion
VOTERS HAVE a chance in next month's election to protect private property while retaining government power to take land for public use when necessary.

The ballot will ask whether voters want to amend the New Hampshire Constitution to create a new article, 12-a, stating: "No part of a person's property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property."

Everyone should vote "yes."

The amendment would not prevent the government from using its power of eminent domain to do legitimate public takings for projects such as roads and schools.

It would prohibit the government from taking land from a private party and giving it to another private party for projects such as shopping malls, office buildings and other non-public uses.

The power of eminent domain was to be exercised only for legitimate public uses of the land taken. It was never intended to be used to generate tax revenue to fill public coffers.

Vote "yes" on Question 1 and protect all private property in New Hampshire from government theft. Vote "no" and the next house taken by government and handed to a wealthy real estate developer could be your own.

Manchester NH Union-Leader: http://www.unionleader.com

Is the government abusing eminent domain? KVBC-TV3, Las Vegas NV, 10/18/06

In the next several weeks, voters will decide if they believe the government is abusing eminent domain. Eminent domain is when the government seizes your property for public use or for private use if they can prove it will serve the public good.

The mayors of Las Vegas, Henderson, North Las Vegas, and Boulder City say they don't believe it's right for the government to take land from a private owner and hand it over to another private owner.

They say they agree with portions of Question 2, but they say the initiative also has other provisions that could cost taxpayers billions of dollars. Question 2, known as the "People's Initiative to Stop the Taking of our Land" or P.I.S.T.O.L., prohibits the use of eminent domain by the government for private development purposes.

While law makers say they agree with that concept, they say voting yes on Question 2 could cost taxpayers $3 to $6 billion over the next several years.

"Question 2 has some provisions that change definitions of what a governmental entity has to pay when it acquires property for a public project," says Clark County Commissioner Bruce Woodbury.

"It goes too far in that there is a provision that requires that any land that's taken must be developed within 5 years which is almost impossible to do in a major transportation and other infrastructure process," said Kara Kelley from the Las Vegas Chamber of Commerce.

Opponents of Question 2 say the state and local governments would also lose funding because it violates federal regulations. They say for those reasons the initiative could cost taxpayers billions of dollars in additional expenses for our road and highway improvement programs.

"They have fabricated all these numbers," says eminent domain attorney Kermitt Waters. "They have fabricated them to the point that they've taken a few cases in which they went to jury trial and got their got shellacked by the Jury is what they did."

Waters is an eminent domain attorney who helped write the ballot measure. He says Question 2 is a response to years of the government taking advantage of private property owners. "What they give you in money is not near enough to go buy another house similar to it which is what you're constitutionally entitled to," says Waters.

In order for Question 2 to become law, it must pass in this election and then again in 2008. Under Nevada law, when a proposed constitutional amendment is initiated through a petition process, it has to be passed by voters in two separate elections.

KVBC-TV3, Las Vegas NV: http://www.kvbc.com

Retired military officials oppose proposed eminent domain limits: KVOA-TV4, Tucson AZ, 10/18/06

A group of civic leaders and retired military officials criticized a measure on the November ballot that would limit the ability of governments to take property through eminent domain.

Gathering Tuesday south of Luke Air Force Base, the critics said the measure would destroy efforts to protect military bases from residential encroachment.

The fear is that the proposition will weaken local zoning requirements enacted by the Legislature to protect the bases.

Supporters of the proposal say it was needed because the government has abused its powers to compel property sales for public use.

Proposition 207 would require compensation of property owners for any changes to zoning or other land-use laws that owners believe negatively affect their property values.

Opponents say the measure could virtually freeze all zoning and land-use planning, cost state and local governments millions of dollars and lead to lengthy and costly court battles paid for by taxpayers.

State lawmakers passed legislation decreeing which land uses are acceptable within the noise contours of the military bases, and it's up to local governments to make sure zoning is compatible with the installations.

Proposition 207 would grandfather in past zoning. But Jack Lunsford, president and chief executive of Westmarc, a consortium of civic and business leaders in western metropolitan Phoenix, said there is a question whether land sold within the noise contours would be subject to the proposition's terms.

Retired Air Force Gen. Tom Browning, who served as co-chairman of a task force that came up with a plan to protect the state's bases, predicted that if the proposition passes, 15 years of hard work by military base stakeholders, Arizona governors and legislative leaders would, in effect, be undone.

KVOA-TV4, Tucson AZ: http://kvoa.com

Property rights and eminent domain debated: Bismark ND Tribune, 10/18/06

By Dale Wetzel, Associated Press
A North Dakota constitutional amendment is needed to abolish the power local governments have to force the sale of private property for new commercial development, former Attorney General Heidi Heitkamp says.

Heitkamp and Jerald Hjelmstad, assistant director of the North Dakota League of Cities, on Tuesday debated whether North Dakotans should support Measure 2, which would bar local governments from using their eminent domain powers to acquire land for private economic development projects.

"We think that we need to put the power not in the hands of the influential, not in the hands of the Chamber of Commerce, not in the hands of the city officials, but back where the power over property belongs, and that's with the property owner," Heitkamp said.

Hjelmstad said the amendment would have more far-reaching effects than its supporters believe. The amendment could prevent city governments from using urban renewal projects to redevelop run-down areas, Hjelmstad said.

Local governments that condemn property for a public works project also could be stuck holding small parcels of land that weren't needed for the project, instead of selling the property to private owners, he said.

When the city of Grand Forks was acquiring property for a dike project to prevent Red River flooding, the city bought entire lots instead of fragments of property, Hjelmstad said.

"At the end of the project, they were able to piece those parcels back together and get it back on the tax rolls," he said. "Under this measure, they would not have been able to get that property back into private ownership."

The amendment would prevent the state or local governments from forcing the sale of private property for another private project, unless the land was to be used for "conducting a common carrier or utility business." Those would include cable television or telephone networks, power lines, or natural gas pipelines.

Governments could still acquire private land without an owner's consent for public works, such as sewer lines, streets and water towers. "This will not interfere with a road, a bridge, a school or any legitimate government use," Heitkamp said.

A politically diverse group of activists began circulating an initiative petition in September 2005 to put the amendment on the ballot.

They were motivated by a U.S. Supreme Court ruling the previous June, called the Kelo decision, which allowed the city of New London, Conn., to buy up homes to make way for a new marina, office buildings and luxury housing.

The North Dakota Supreme Court, in a 1996 property dispute involving the Jamestown city government and a grocery business, reached a similar conclusion. The Supreme Court ruled local governments could force the sale of private property for economic development projects.

After the U.S. and North Dakota Supreme Court rulings, "there is absolutely nothing that the government couldn't take and call a public use. Absolutely nothing," Heitkamp said. "There is no longer any constitutional restriction ... That is the status of the law today."

Hjelmstad said the Jamestown dispute was unusual, and that local governments were not eager to condemn private property for economic development. However, some circumstances justify the move, such as when a city wants to revitalize a blighted area, he said.

Hjelmstad suggested the debate would be better handled in the Legislature, where changes to state law or the wording of a constitutional amendment would get a more thorough airing.

"In this particular measure, we're left with a take-it-or-leave-it on the wording," he said. "We feel there are going to be some negative consequences by the wording that's been used."

Heitkamp said the initiative campaign has allowed for a more open debate than could be expected in the Legislature, where she said discussions of the issue of private property rights would likely be dominated by special interests.

If forced sales of private property are rare, local governments have nothing to fear from the measure, Heitkamp said.

"There's no onerous burden there," she said.

Comments from readers

Daffy wrote on October 19, 2006 10:33 AM: "I just reread the Jamestown case to refresh my memory. The land taken was a vacant paved lot held by leever's supermarket. They didn't want to sell because they were the only game in town and were overcharging for basic goods and didn't want competition. The taking in Jamestown, if you read it, was good for the community on numerous levels. I may be wrong, but I don't think this law has ever been "misused" in ND. If anything, the "fat cat's" you refer to were the one ones hurt by using it."

Daffy wrote on October 19, 2006 9:12 AM: "Karen - you've made two posts here that make absolutely no sense. Did this hypothetical evil, schemeing, faceless "politician" run over your dog? Even if this measure passed the city can take your property. I would bet you hadn't even considered this concept until this measure was somehow brought to your attention, and suddenly there's this huge threat that the "politians" are going to steal your property."

Daffy wrote on October 19, 2006 9:05 AM: "I do own property and I am not a politician. Tell me how the politicians are beneifiting from this. Isn't Heidi a politician? If the old woman in your example's home is worth 35K she could relocate to a similar property. The only argument is the sentimental one, which is highly overrated in my opinion. The land owners are more than fairly compensated and there are also relocation payments. Progress happens, if the old lady just sits there suddenly her house is worth next to nothing as the lots around her are paved. Also, was eminent domain used in Fargo for Meritcare or has it in Bismarck? NO. I do know that private takings are extremely rare, but they can occur for the good of the community. In Fargo after the 1997 flood a knew dike was contructed and the city bought property from many willing sellers. A couple folks, with property on the wrong side of the dike, refused to sell. The city didn't e.d. the land, they left them. If they wish to have they property value plummet that's there fault. Ya'll make this sound like a giant conspiracy when that just isn't the case. You are just having a knee jerk reaction. Laws are designed to ensure use of property. So Walmart could hypothetically buy every commerical lot that is offered for sale which could house a competitor to prevent any competition and just let the land sit and not be developed? That is not in the best interest of the community."

Karen wrote on October 18, 2006 9:39 PM: "Daffy~ obviously you don't own property OR you are a politican"

Edward wrote on October 18, 2006 4:58 PM: "elected officials have no need for sentimentality unless it will ensure reelection."

YES wrote on October 18, 2006 4:04 PM: "I agree with Donald D. Sometimes you have to paint the picture (which Donald does well) and then people get it. I don't believe we are crotchety folks who want to stand in the way of progress. Progress, to me, is not making a hospital's parking lot bigger so the hospital's pockets can get even deeper. I say Tilly should have every right to keep her home. It should be her decision, no one else's."

Donald D. wrote on October 18, 2006 3:38 PM: "Daffy: I would like to expand on the MeritCare parking lot incident in Fargo. In fact, take a look at the east side of Bismarck's St. Alexius and you will see something close to that happening. But picture this, and please understand that it can and has happened. In 1920 Herman and Tillie Tudwall get married. They begin their new life together and in a few years purchase a nice small home several blocks from the downtown area. As the years go by, the city grows, and they manage to pay off their home on their minimum wage incomes. Herman dies at age 80 and leaves Tillie alone. She continues to live in the house until one day a hospital which is swallowing up land faster than a hungry horse eats hay, offers to buy her home so they can expand their parking lot. Her home is a small old house that truly isn't worth much more than $35,000. Yet the hospital offers her $50,000 for it. Tillie looks at the economics of it and decides she doesn't want, no, she can't sell. She realizes that any newer home now in the city would cost her double the $50,000 and she doesn't have any money to be able to move into an extended care faciltiy. No, she realizes that in addition to snetimental reasons, with her very limited social securtiy and having no house payment; she is much better to refuse the offer and stay put. Now, would it be fair for the hospital to take her home because "some crotchety folks who want to stand in the way of progress despite all logic"? Keep in mind, what you consider "all logic" is different from what Tillie would consider, and even what the hospital would consider as "all logic"! This measure would allow Tillie to live in her home without the threat of losing it to some company that wants to expand."

Donald D. wrote on October 18, 2006 3:36 PM: "Daffy: You state that the Jamestown incident was the only time it happened in ND where property was taken for private use; and the outcry keeps it from happening more often. That is what this measure will insure. It will insure that it will not happen again and again. Truly, to the Jamestown property owner, a thing like this happening once is once too many. How many times has this happened throughout the US. Maybe we are only now starting to get to where governments are more willing to do this type of thing and we need to put a stop to it before it gets to be more common-place. "

Daffy wrote on October 18, 2006 2:51 PM: "If this measures does not pass you can bet their will be over zealous city officials that will go for property," If the measure doesn't pass things will not change, nobody will be "zealous". Once again you make it sound like governmental bodies like nothing more than to pay pennies on the dollar to steal from the poor. If you think that is the case you are certainly uninformed. Eminent domain is well established and cases involving it in the area are concerning the value of the property and the compensation level. Some landowners are simply unreasonable in the beliefs as to what their property is worth. There is absolutely no "stealing". As most property in downtown Mandan currently sits there is very little value, and the price offered is more than generous. I realize it is a bad break to have contaminated property, but that isn't the city's fault. Anyway, I don't think this measure would impact those takings anyway with the except that the city couldn't sell the property to a private owner after the mess is hopefully removed. And how and the "fat cats", whoever they are, reaping the benefits here? Don't get me wrong, I think the city officials in Mandan have not handled the whole situation well, but it isn't the long established eminent domain law that caused the problem. It more of a problem that individaul residents think they should get a windfall for having a contaminated, delapidated eyesore of a building."

Susan Beehler wrote on October 18, 2006 2:22 PM: "To Daffy and Judy Judy, You obviously own no property, that would be in area that the city would want. Daffy, eminent domain was threatened to Mandan businesses and there is currently a case in court, trying to "steal" the property. If remediation works as, we have been told the property is to be cleaned and left in a more valuable condition. If this is not the case, why go to the trouble of remediation. Don't kid yourself those that lose their property because of eminent domain will not reap as great a benefit if they were allowed to retain ownership. The city has lost over 10 businesses downtown and a total of 35 if you go through what is no longer in the 2006 phone book compared 2005, several on the strip too. The city has created business anxiety by threatening eminent domain. This would not even be on the ballot if the Federal Supreme Court had not made the ruling allowing cities broader powers with eminent domain. As taxpayers we better protect ourselves; it is the average guy that will lose out. If this measures does not pass you can bet their will be over zealous city officials that will go for property, after all they have a term to serve and if they do not care if they are re-elected or recalled they will go for it. Besides government positions are not about making money they are not paid like it is their career , if it was we would have full time city officials. On Mandan's Mayor salary Mr. Lamont would not even be able to qualify on his Mayor pay for renting a apartment at the Library Square, it is barely $10,000. An elected city official in the position is either in it to serve or for the power, it is surely not the pay. I will serve Mandan and gladly sacrifice my time for the wage. I am for protecting the average guy not feeding "fat cats"."

Daffy wrote on October 18, 2006 2:05 PM: "Those grocery store deal is about the only example in ND where property was taken for a private entity, and the public outcry for each time this happens is why it happens so infrequently. Without looking up the facts of the Jamestown decision, I believe there were rational reasons to take the property, which I don't think was being used and was purchased to defeat competion, in Jamestown. (I could be completely wrong on my facts) Certainly the community was better off because of the taking. I don't have sympathy for some crotchety folks who want to stand in the way of progress despite all logic. Reminds of in Fargo when the Meritcare parking lot was entirely around an old house that refused to sell. I think there was also a case in Michigan involving a automakers plant that took a huge chunk of low value residential homes. Just like everything, there is the potential to have a negative result, but usually that is not the case. The proponents of this measure try to make it sound like a huge threat to Joe Q Citizen and that just isn't the case, and if in the one in a million happens, you is more than adequately compensated."

Donald D. wrote on October 18, 2006 1:38 PM: "To Daffy: Can you explain how the Jamestown grocery store incident was fair? Or how about the east coast incident? Picuture you being the one who owned the land and regardlous whether or not they offered you a fair price, you just didn't want to sell. Is it fair they can just take it anyway?"

Daffy wrote on October 18, 2006 1:19 PM: "Ya'll are acting like the big bad government is constantly on the prowl to steal people's land. Do you think that all of a sudden there will be a rash of taking? The Mandan debacle was caused by inept leadership, not eminent domain. The property values of the contaminated area are severly diminished, that's just the way it is. "Power back to the people", nice unintentional spin. Elected officials are in the business of being re-elected. Taking their constituants land is not a wise career move and it rarely happens. Sure one or two people get upset in this extremely unusual event. By the way, I think Heidi's interest may be furthered in a couple ways if this passes."

Edward wrote on October 18, 2006 11:26 AM: "Daffy, If the developer wants to purchase property let them pay the price a willing buyer and willing seller agree on. When the developer doen't want to pay the price they turn to the government to take the property under eminent domain. If your property is damaged by oil spilled by another party, feel free to sue for the damage. "

North Dakotan wrote on October 18, 2006 11:05 AM: "YES on ND Constitutional Amendment #2. This amendment places "power back to the people" where it belongs. Our ND politicians had an opportunity (2005 session) to pass a bill supporting property rights and passed NOTHING. If you distrust politicians vote Yes on ND Constitutional Amendment #2!! "

Watch Dog wrote on October 18, 2006 11:04 AM: "Last evenings forum was interesting. Hjelstad's arguements for defeating the measure are weak. Perhaps the greatest weakness lies in his assertion that since public officals are elected we should trust their actions, especially when it comes to eminent domain. Sadly many local politicians are not elected on the basis of campaign issues. Instead many are elected due to deep pockets necessary to support a campaign, they have high name recognition, they are retired or have jobs that allow them to devote time to the position, they don't have an active family driven by the activities of children or the candiate may be the only one running for the office. I doubt that many electors have any idea what the position of their elected officials are on the subject. Heidi is right. We have to protect our property rights. If this measure doesn't pass the developers, money people, the movers and shakers and those who have cozy relationships with elected officials will set the agenda. The little guy, the electorate will be pushed around because we had a blind trust in those who govern. Just watch what is happening with the Burleigh County Commission's handling of Sundown Acres. Whose interests are being represented - the citizens of the county or those of the developer. Can we trust our elected officials to make informed, fair and non-biased decisions? Remember, those with the money have the louder voice."

JudyJudy wrote on October 18, 2006 10:50 AM: "People really need to look closer at this. If this passes, it will cost taxpayers more in terms of more legal challenges and delays on projects. Vote 'NO' on this one - it will cause more problems than it will solve."

Daffy wrote on October 18, 2006 10:46 AM: "If the politicans win this, say goodbye to lots of other freedoms and ownership." Are you kidding? Eminent Domain has been around for ever, nothing would change by not passing this measure. The Mandan debacle was not caused by eminent domain, it was caused by inebt leadership. Govenment should be allowed the right to seize private property to serve the greater good. It's not like the property owner isn't compensated, and usually above what the property could be sold for. It is a tough break for the folks owning property in the contaminated area in Mandan, but the fact is that the property is severly diminished in value due to the diesel. Governments generally don't like to take property under E.D. due to the bad press and the impact on re-election. I guess I see the negative impact of this measure out-weighing the positive."

MM wrote on October 18, 2006 9:31 AM: "yes vote yes on this! stop the local Goverments push for more power! look at how power & corruption has spun Mandan out of control. recently a three generation Mandan business wanted to work with Mandan on relocating (this was by the request of the city), when the owner asked to sit down and talk he was given a paragraph on Eminent Domain. so vote yes on this measure and vote out the corruption in the Mandan "Recall Election" "

Karen wrote on October 18, 2006 9:10 AM: "ABSOLUTELY! Do not give the power to the politicans~ property belongs to the owner~no matter what the city wants. If the politicans win this, say goodbye to lots of other freedoms and ownership."

Susan Beehler wrote on October 18, 2006 9:10 AM: "I will be voting "yes" for property owners! Cities should not be able to take private property so that a developer can reap the benefits. In the name of Mandan's remediation, owners have been threatened with eminent domain, even though their may be another solution to remediate the land without taking it. Mandan is accumulating property for "private developers" because the city does not have the funds to develop it after remediation, the city is investing in property based on speculation of private development. I say let the property owners keep their land and let them develop it or sell it after it has been remediated."

Citizen wrote on October 18, 2006 9:10 AM: "Edward's comment seems like a good idea. However, the way this measure is written, I don't think it would allow for this. Maybe this should be defeated and reintroduced with language that would address the concerns."

Edward wrote on October 18, 2006 8:22 AM: "If land is found not to be needed for a public works project, it should be offered to the prior owner for the same price per acre or square foot it was purchased. If the prior owner does not want the property it could be sold on the open market. That takes care of the Grand Forks situation. Not real difficult to solve."

Property owner wrote on October 18, 2006 7:45 AM: "Hooray for Heitkamp and this measure. I for one am voting "yes" on measure #2."

Bismark ND Tribune: http://www.bismarcktribune.com

Candidate proposes limits on eminent domain: Ft Worth TX Star Telegram, 10/17/06

By Aman Batheja
David Van Os, Democratic candidate for state attorney general, proposed a state constitutional amendment Monday that would allow the use of eminent domain to seize property only in cases that involve public safety and security.

The San Antonio lawyer made the announcement to about 50 supporters at a rally in front of the Tarrant County Courthouse.

It was the 250th county courthouse Van Os has visited this year as part of his "whistle-stop tour" of all 254 county courthouses in Texas that ends Friday in Austin.

Van Os said his proposed amendment is a direct response to the Trans-Texas Corridor, a planned network of toll roads, freeways and rail lines that would be built in part on land seized via eminent domain. The amendment would prohibit the use of eminent domain to acquire private property for economic reasons.

"That's not democracy. That's dictatorship," Van Os said.

The proposed amendment also calls for banning the creation of a toll road in any county where voters haven't approved the creation of such a system.

Democratic candidates statewide have used their opposition to the Trans-Texas Corridor to rally voters.

Ft Worth TX Star Telegram: http://www.dfw.com

Voters to decide eminent domain: Monroe County MI News, 10/17/06

By Stephanie Ariganello
Michigan voters will face five policy issues on the November ballot. While the issues run the gamut from hunting to school funding, all have the potential to impact the daily lives of Michigan residents.

A few of the proposals likely stand out more prominently for Monroe County residents - particularly Proposal 4, the initiative that deals with eminent domain.

The ballot proposal would essentially make it more difficult for governments to use eminent domain to take privately owned land, said Eric Lupher, an analyst with the Citizen's Research Council of Michigan, a non-partisan group. The proposal would change the state constitution and aims to shift the balance from the governmental power to take land toward property owners and their rights to acquire, own, use and protect private property.

With the term eminent domain surrounding the proposed US Rail intermodal railyard in Erie, the ballot proposal is more prominent than it might be otherwise.

When asked how the proposal, if passed, could affect the possibility of the railyard acquiring land in Erie Township, Mr. Lupher said the answer is obscure.

"The U.S. Supreme Court says that legislative decision-making power has been delegated to the railroads," he said. "They appear to have somewhat of a free reign with that decision."

But, Mr. Lupher went on to say, the first provision within the eminent domain law is likely where the answer would rest. The new proposal would block governments from using eminent domain to take a private property for transfer to another private entity for the purposes of economic development or to bolster their tax base.

Yet, any decision would depend on the specifics of the situation. Since it's unclear at this point if US Rail has the power of the rail utilities or if it would be considered a private company, the issue may or may not be affected by the election outcome.

"It would likely end up in court," he said. "The bigger questions (involving eminent domain) is to determine if the decision is legislative - if something needs to be changed in the Legislature."

Eminent domain became a hot topic in Erie Township earlier this year when US Rail informally announced its plans to build a rail yard just off I-75. At a public meeting one offical mentioned that because the project involved the railroad, eminent domain could be a factor. That set off a whirlwind of activity in the township as citizens banded together to halt US Rail, which still has never formally announced plans.

Hundreds of area residents put up signs saying "No Eminent Domain" and several area municipalities, including the Monroe County Board of Commissioners, passed resolutions against the project if eminent domain was being used. Now, some of those area residents are taking down the signs in favor of ones that say to vote yes on the eminent domain proposal.

Other ballot issues deal with funding recreational and conservational activities, hunting mourning doves, paying for schools and teacher retirement and affirmative action in hiring public employees.

Monroe County MI News: http://www.monroenews.com

Analysis of proposed ballot question on Amendment 8 - Eminent Domain: Miami FL Herald, 10/17/06

BALLOT WORDING: Proposing an amendment to [Article X, Section 6 of] the State Constitution to prohibit the transfer of private property taken by eminent domain to a natural person or private entity; providing that the Legislature may by general law passed by a three-fifths vote of the membership of each house of the Legislature permit exceptions allowing the transfer of such private property; and providing that this prohibition on the transfer of private property taken by eminent domain is applicable if the petition of taking that initiated the condemnation proceeding was filed on or after January 2, 2007.

WHAT IT MEANS: The measure would prohibit state and local governments from turning over private property acquired by eminent domain to another private entity or person. The amendment, however, allows exceptions to this policy if enacted by a three-fifths vote in the Legislature. Florida already requires that government must have a ''public purpose'' in order to seize property from private individuals. But lawmakers decided this year to change the strengthen the law in the wake of a 2005 U.S. Supreme Court decision allowing government to take private property and hand it to a private entity for economic development.

PRO: The amendment protects private property rights by making it illegal for government to take property, in the name of economic development, and hand it over to a commercial developer. It makes it clear that government should only use its eminent domain powers for public facilities such as schools or roads.

CON: Some have argued that the amendment is unnecessary because Florida law already places limits on eminent domain takings. The measure has been called a ''knee-jerk'' response to the U.S. Supreme Court decision and will make it harder for communities to redevelop blighted areas.

Miami FL Herald: http://www.miami.com

Council mulls 'domain' over Peirce land: Portsmouth NH Herald News, 10/16/06

By Adam Leech
The [Portsmouth] City Council will receive a report tonight from City Attorney Bob Sullivan on the use of eminent domain, then vote on a tabled motion that could guarantee the city never seizes the Peirce property by way of eminent domain to expand Portsmouth Middle School.

The motion was tabled at the Oct. 5 meeting by a 6-3 vote, with a majority of the council saying it needed more information before saying decisively it has no intention of using the Peirce land.

The report the council will receive tonight will echo what Sullivan already told the Joint School Advisory Committee - the group looking at the future of the Portsmouth Middle School - at a meeting in September.

Although many have assumed the 4.3-acre parcel was off limits because the Peirce family gave it to the city in 1913 with the restriction it be used as a park, Sullivan said the city has the legal right to acquire the property. The city would have to pay for the land, which has informally been assessed at approximately $2 million. The city would need permission from the state attorney general's office because it enforces the Peirce deed restriction.

Councilor Laura Pantelakos, who made the motion to eliminate the possibility of seizure, said she doesn't need to hear a report to know taking the land would not be the right thing to do.

"There's nothing that Bob can say that will change my mind. I've seen the deed. The land was given in good faith," she said. "No matter how you use the term (eminent domain), it's a lot of bull - a lot of lawyer talk. The fact of the matter is the man gave it to the city for open space."

She said she was disappointed a majority of her fellow councilors - Councilor John Hynes and Harold Whitehouse were the only councilors who voted with Pantelakos - would not vote to put the issue to rest and "ease a lot of people's minds."

Assistant Mayor Tom Ferrini said popular assumptions about the restrictions on the deed may not be accurate in terms of what can be done with the parcel. He thought the council should hear Sullivan's presentation, as he did at the joint meeting, before making a decision.

Portsmouth NH Herald News: http://www.seacoastonline.com

Supporters Rally for Eminent Domain Protester: Keene NH Free Press, 10/16/06

Supporters rallied for Winchester resident Lauren Canario in CT on Sunday. Canario was arrested on 9/22 for sitting on the porch of a friend's house reading a book. The home had been seized by the City of New London and the court case went all the way to the Supreme Court in the case Kelo vs. New London. The Court ruled that cities and states could seize people's homes and give the property over to corporations, such a Pfizer, who initiated the Kelo theft.

Lauren moved to New London to help the Kelo folks protect their homes. She was sitting there that morning for the same reason - to protect property rights for all of us. Since the Kelo decision, private property around the nation has been endangered. Lauren knew that we can't wait for politicians to fix the problem - they're creating the problems. So she took direct action. Now she's in jail for a month, at least, and being forced to have a psychiatric exam for her refusal to speak to her captors.

Kelo happened because of our inaction. When enough people refuse to cooperate with evil government decisions, they will have to temper the evil they're doing. It will take action from all of us. No one person can make it happen, but the combined effort of many can do so. If each person does what little they have in their power to do, the cascading effect can be phenomenal. Lauren did her part and she suffers in prison now for it. We, too, can do a little to stem the tide of evil government.

About 20 supporters held signs outside her jail on Sunday for 4 hours, asking for her release and bringing attention to the eminent domain injustice in New London, and around the county. Kat Kanning is fasting for Lauren's release. She began fasting the evening of Friday the 13th and plans to continue until Lauren's release. There are many little things that can be done to help: Write Lauren a letter, write a letter to the editor for your local paper, or for a New London paper, attend a rally, speak up when eminent domain is proposed in your town.

To write to Lauren, send your letters to:
Lauren Canario #334457
c/o York Correctional Institution
201 West Main Street
Niantic, CT 06357

Keene NH Free Press: http://www.keenefreepress.com

Squatters evicted from Fort Trumbull neighborhood: WTNH-TV8, CT, 9/22/06

By Tina Detelj
The Fort Trumbull neighborhood probably thought all the drama ended when the owners of some disputed homes left this summer. Not so. It seems several homeless people moved in on their heels, and Friday some demonstrators were carried away.

In a show of defiance activist Lauren Canario refused to leave the porch of an abandoned home being boarded up in New London's Fort Trumbull neighborhood to keep homeless people out.

The former Las Vegas woman moved here to join the fight against eminent domain which went all the way to the U.S. Supreme Court. Today Canario kept silent and let her body go limp as her husband videotaped her arrest.

The city began boarding up these homes right after homeless people set up camp here. Before her arrest Canario told us what she had seen in recent days.

"I've just seen a tent in the yard and some lights on in the building," Canario said.

A patch of yellowed flattened grass shows where one tent was set up.

There is also evidence in a nearby home that someone had forced their way in. Part of a door jam where the deadbolt goes in has been ripped out.

"I would actually welcome any homeless people to head on down here even though the accommodations are less than luxurious," Canario said.

Canario, who herself is living rent free in a vacant Fort Trumbull building, claims the homeless people were homesteading, not squatting.

"Squatting is being on someone else's land. Homesteading is taking land that no one has. It's pretty much abandoned is not being used."

But this land is going to be used as part of the city's economic development plan. John Brooks, the waterfront development manager, says boarding up these houses was already scheduled, not just a reaction to reports of squatters.

Developers plan to tear down these homes by the end of the year, but first they have to make sure all the asbestos in them has been removed.

WTNH-TV8, CT: http://www.wtnh.com

10/18/2006

Boca talking ‘eminent domain – if necessary’ to create ‘spine’: Boca Raton FL News, 10/14/06

By Dale King
The spine - the proposed downtown Boca Raton pedestrian walkway that officials hope will pump up the central business district - has gotten a new name - and a timeline that shows potential completion by the year 2010.

Development Services Director Jorge Camejo said the term "spine" is something of a misnomer. In a presentation to the City Council last week, he gave it the name: "North/South Open Space Pedestrian Linkage."

And he also developed a timeline - one that shows negotiations for the purchase of land happening later this year and into the first quarter of 2007.

In his presentation, Camejo said the city will use "eminent domain - if necessary" to get the needed property.

Eminent domain - the forced taking of land - has been discussed, but never put into writing. The potential of eminent domain takings has raised red flags among some downtown property owners and, in particular, the Boca Raton Historical Society. That organization is trying to preserve certain sections of the city's retail center because of the historic value.

The society was so concerned about the spine and its impact on the city's historical infrastructure that it held a two-day workshop in May on spine development. No conclusions were reached, but testimony, photos and drawings generated were turned over to the city.

In essence, the spine is a pedestrian walkway intended to connect Mizner Park on the north end of the city's center with Royal Palm Place on the south end. The aim is to create a path with eye-appealing amenities that will draw people to see it, and shop along the way.

In his presentation, Camejo broke the spine development into seven phases. The first - the appraisal phase - has already begun, with the hiring of a company to do the work. The information should be collected by the end of the year, he said.

Land acquisition is the next phase - a stage that also includes public input. Camejo sees this phase as nearly a two-year effort, which should wrap up by the third quarter of 2008.

While that is going on, phase 3 - the visioning process - will be going on during the first six months of 2007. During this period, the conceptual plan for the plaza and pedestrian linkage will be developed, along with a cost estimate.

With money in mind, the city will enter the bond issuance phase in mid-2007, Camejo said. That will also involve public input.

Design of the spine should run from mid-2008 to the first quarter of 2009.

Engineering and construction could start in the second quarter of 2009 in hopes of a grand opening in the fourth quarter of 2010.

Boca Raton FL News: http://www.bocaratonnews.com

Saving homes still the goal: Asbury Park NJ Press, 10/15/06

Topic of the Day: Eminent Domain
By Scott Bullock
The Oct. 12 article "Eminent domain litigants in talks" stated that the Institute for Justice engaging in discussions with city officials and developers about settling the Long Branch eminent domain controversy was a "significant departure" from our earlier claim that the case was ground zero in the fight against eminent domain abuse nationwide. Nothing could be further from the truth.

Until eminent domain is taken off the table and the homes in the MTOTSA neighborhood are saved, the Long Branch case will remain at the forefront of our nationwide efforts to stop the abuse of eminent domain for private parties. If the city and the developers wish to discuss ways of keeping people in their homes that would not require the parties to exhaust the appeals process, we are certainly willing to listen and discuss those options.

But nothing will shake our resolve and commitment to the MTOTSA homeowners to stop the city and the developers from taking their homes against their will.

Asbury Park NJ Press: www.app.com

Scott Bullock is Sr Attorney at the Institute for Justice: www.ij.org

Group fights eminent domain: Bridgeton NJ News, 10/14/06

By Jaime Marine
A petition looking to ban the use of eminent domain for private purposes within the city [of Millville] is now being circulated by local watchdog group Millville First.

"The petitions are out and doing very well," member Emil Van Hook said Friday.

He said over 100 petitions, each with 12 signature slots on them, are currently being passed around the city.

The group hopes to get at least 2,000 signatures.

The petition would be given to the city clerk once the proper number of signatures are obtained, in hopes commissioners would pass the ordinance banning eminent domain for the benefit of a private developer or private development.

If the ordinance is not adopted by commission, the petition calls for the matter to go before the public in the form of a ballot question.

The group needs at least 15 percent of voters who voted in the last general election, meaning they need at least 1,730 signatures of city residents.

Van Hook noted this number could change with the upcoming election.

"We are confident we will be able to get the number," he said.

Bridgeton NJ News: http://www.nj.com/news/bridgeton

The domain game: San Gabriel Valley CA Tribune, 10/14/06

Businesses angered by city s buyout plan
By Alison Hewitt
As part of Azusa's plans to update its aging downtown and other pockets of the city, the City Council recently gave its redevelopment agency the authority to use eminent domain on dozens of small businesses.

The city has no intention to buy those properties yet, said Bruce Coleman, director of economic and community development for Azusa, saying revitalization plans are still in the early stages. Nevertheless, the eventual plan could be to buy up and consolidate some of the smaller parcels in order to attract larger businesses - and the bigger property tax payments that come with them, Coleman said.

Downtown, the goal is to create mixed-use development to put housing and shopping within easy reach of a future Gold Line station. In West Azusa, city planners are considering ways to create large enough parcels to bring in more "big-box" stores to help buoy and diversify the city's property tax income, Coleman said.

Several of the affected business owners are concerned or angry about the proposals. They acknowledge that revitalization might be good for the city but are upset that Azusa might take their property in the process.

"I told them I don't want to sell," said Joe Santoro, who owns

Citywide Sheet Metal in west Azusa. He and his neighbors are on the eminent domain list. "I'm worried the city will buy it," he said. "They won't tell us anything. They say they have no plans for this area yet ... but they must have a plan, because I'm on their hit list."

Others are indifferent, including Tony Lazzeri, owner of a printing company near Santoro's building. "I was thinking of moving anyway," he said with a shrug.

But Fred Raab is angry. His family owns a building in downtown Azusa and rents it out to a travel agency and a photography business. He was one of several property owners on the eminent domain list until they went to City Hall to complain.

"We said, `We're not blighted, we're successful businesses,"' Raab recalled. "A lot of us think redevelopment is fair, but the city has so much property, it's like, `Go ahead and redevelop what you have before you start on more.'

"But they know as soon as they do that, our property values will go up, and they'd have to pay more for our properties."

Even the potential for eminent domain can drive property values down, said Raab and his neighbor, Andrea Cruz. Her father owns a downtown real estate office that also got off the eminent domain list. Fear of eminent domain drives rental tenants to look for new locations, and property owners who are interested in selling sooner than the city is ready to buy have trouble finding a buyer and getting a good price, Cruz said.

"That is all too often what happens," she said. "The city is not acquiring blighted areas - it's that once they acquire them, they depress the property values and it becomes blighted. They are creating the blight."

Coleman disagreed, saying investment is beginning to flow into the city's redevelopment zones. He also emphasized that no one's land is being targeted yet, and that the potential use of eminent domain does not hurt property values.

"We think it's important to be doing this now," Coleman said. "It's a major opportunity to encourage the continued revitalization of downtown and take advantage of the fact that the Gold Line is wanting to locate a station near downtown."

The Gold Line station, proposed to go across Alameda Avenue just north of City Hall, could become the basis for a strong mixed-use development, Coleman said. The city is talking with a developer and searching for large anchor stores that could draw pedestrians in.

All the city's plans could be rendered moot in November if state voters pass Proposition 90, which would prevent government agencies from using eminent domain to build anything other than public projects, such as highways, train stations or public parking lots.

"For a supermarket or a mall or a housing development, they can't do it," explained Bob Stern, president of the Center for Governmental Studies. A second part of the proposition would require the government to reimburse property owners if it makes decisions that decrease the land's value, whether through zoning changes, environmental decisions or other means, Stern pointed out.

But for some properties that Gold Line officials want to turn into part of the future station and parking lot, even Proposition 90 wouldn't end their concerns.

"From everything we're hearing, we'll be bought, either by city for mixed use or by the Gold Line for parking," said John Cortez, whose family owns - and wants to keep - Johnny's Towing and Storage downtown. "We're sort of in limbo."

San Gabriel Valley CA Tribune: http://www.sgvtribune.com

Eminent domain case example of abuse: Murphreesboro TN Daily News Journal, 10/14/06

Letter to the Editor
By Mike J. Liles and Van Cleve Lane
Webster's New World Dictionary defines rape as: "The act of seizing or carrying away by force." When government seizes or carries away your property, it is called eminent domain.

Last week I had the occasion to sit through an eminent domain case in Murfreesboro. This dispute is one of the remaining legacies of former County Mayor Nancy Allen and the past county Commission. This is the boondoggle known as the judicial building.

As you recall, early in 2005 the county took by eminent domain properties from their rightful owners for the purpose of building a county judicial building — a building that has yet to be designed, approved or funded. In fact, the only accomplishment the county can claim is the taking by force of the properties, unless you consider the fact that the county has taken the role as landlord and put away a lot of rental income. That money should be going to the former owners of the buildings, since the former property owners had to sacrifice for decades to pay mortgage and tax payments and keep the buildings rented. Now they must pay for attorneys, land appraisers and consultants.

Those property owners objected to having the property taken from them and sued. One of those owners was Winston Bowling, and it was his trial that I visited. This latest story was not covered by The DNJ or any of the TV stations, and only a couple of people witnessed the two-day trial, but I think it was historic in some ways.

These Maple Street properties are the first time in history Rutherford County has used eminent domain to take property for the purpose of a proposed office building, which again has yet to have plans approved or funded.

This is the worst example of abuse of government strong-arming and mistreatment to the hard-working citizens of this great community. The property was taken as allowed under the law, the court awarded the fee, the attorneys, land appraisers and consultants went happily to the banks with their paychecks, so everyone was happy, right? Well, no! Nothing can replace the 30-plus years the Bowling family and the others have worked to build a future for their family and provide a service to this community.

The citizens of Rutherford County are scared by this abuse of power. Out of our taxes the citizens have to pay for all of this and yet we have no plans for a Judicial Building. Worst of all, the three property owners and the five businesses are hurt, violated and bullied.

As County Attorney Jim Cope said, "The burden of proof lies on the property owner to prove the building is worth more than we have awarded."

As one of those property owners, I have a hard time deciding which is worse — eminent domain or rape. In my opinion, the definitions are the same. I hope our present county leaders have learned from the mistakes of the past and never let this happen again.

Murphreesboro TN Daily News Journal: http://dnj.midsouthnews.com

Properties of Mike J. Liles on North Maple Street were among those that Rutherford County condemned for planned construction of a judicial building

Champale site now an eminent domain fight: The Trenton NJ Trentonian, 10/14/06

Opinion
By L.A. Parker
A co-worker who in 1985 moved to the Trenton area voiced a question heard throughout the city when she first arrived.

"What is that God-awful smell?"

"You mean to tell me that I left the fresh New York State air for this?"

While Fred Sanford enjoyed his famous "champipple," mixture of champagne and Ripple, Trentonians had their Champale, one of the first malt liquor products that targeted specifically the African American community.

Before the sexy-voiced Billy Dee Williams pitched his "The Power of Colt 45 -- It works every time" commercial advertisement, Trenton residents had Champale.

Unfortunately, production of Champale distributed a gaseous by-product that held the city hostage to a "God-awful" smell that reeked worse than a sulfur bomb.

On any given morning Trentonians living near the Lalor Street-based brewery and all compassed points beyond, were brushed back by a Champale fastball.

While this high, hard one under the chin air lurked unpleasantly invisible, the "God-awful smell" reeked to high heaven.

Longtime Lalor Street resident Joseph Lesko watched the business change hands on several occasions.

"They used to make a beer there called Trenton Old Stock and then later on the company became Champale,’’ recalled the 82-year-old Trentonian.

"A lot of smells came out of that building. Sometimes (the smells) were bitter and awful but there were times when they were nice. It all depended on what they were doing inside."

Peoples’ Brewing Company of Trenton manufactured Trenton Old Stock from 1932-1950 before Metropolis Brewing Co. of New Jersey, Inc. purchased the property.

In 1967, Champale, Inc. took over then started a national malt liquor craze that continues today.

A decade following the Champale arrival, the company announced sales receipts that topped $24 million.

Approximately 200 city workers pumped out the brew before the company eventually shut down in 1986.

That same year former Trentonian business writer Jim Fitzsimmons penned a column that then Mayor Arthur Holland sought another brewer or developer for the 2.2 acre property.

No viable business interest developed until recently when mega-builder K.Hovnanian proposed an approximate 84-condominium project that is mired in an eminent domain fight, want-to-get-rich-fast opportunists and other legitimate property owner complaints.

City Council members could vote on the project by Thursday, despite the objections of a few property owners who believe that K.Hovnanian could build around their properties.

If no resolution is reached between developer, city officials and property owners then likely the project is dead.

Such a scenario would leave South Ward revitalization hopes in a funk.

By the way, Champale is manufactured today by Pabst and distributed in New Jersey by LA Piccirillo Inc. in Newark.

The Trenton NJ Trentonian: http://www.zwire.com

10/17/2006

Eminent Domain: Date of Valuation, Blight Declaration and Constitutional Considerations: New Jersey Eminent Domain Blog, 10/15/06

By Bill Ward
On October 11, 2006, the Honorable Patricia K. Costello, Essex County Assignment Judge, issued an opinion in the matter of City of East Orange v Kason Associates, Inc. Docket No.: ESX-L-8278-05. This seven page opinion addresses two issues:

Date of Valuation
The propriety of appraising the subject project as a “going concern.”

The Eminent Domain Act N.J.S.A. 20:3-30 provides for the date of valuation to be the earliest of four possible dates:

The date of interference with the use and enjoinment of the property
The date of entry
The date of the filing of the complaint
The date of the declaration of blight

In the subject case, Judge Costello felt constrained to use subsection (d) of the statute, calling for the date of declaration of blight as the date of valuation. This is premised on the Court’s literal reading of the statute that the earliest of four possible dates should be the date utilized. The property owner argued that the aforementioned subsection of the statute should be read in conjunction with N.J.S.A. 20:3-38, which provides that “the value of any land or other property being acquired in connection with development or redevelopment of a blighted area shall be no less than the value as the date of the declaration of blight by the governing body upon a report by the planning board.” This section of the statute would provide a floor as to value protecting the property owner from a diminution of value caused by the declaration of blight.

The attorneys for the property owner attempted to show the Court that the date of value by stipulation in other blight cases is normally the date of the filing of the complaint; this is so primarily because the date of blight is too remote from the date of the commencement of the action. For example, in Long Branch, all the beachfront properties were blighted in 1996. The complaints were filed in 2002 for Beachfront North Phase I and in 2005/2006 for Beachfront North Phase II. Thus, there was a six to ten year gap between the blight and the filing of the complaint. In Asbury Park, the gap between the initial blight and the filing of the first eminent domain complaints was almost 20 years.

In the case before Judge Costello, the gap between the declaration of blight and the filing of the complaint was 18 months (April 12, 2004 – October 21, 2005). The Court felt there was no substantial time delay in pursuing the condemnation process. Therefore, no constitutional implications were raised by the use of a significantly earlier date. The Court referenced the New Jersey Supreme Court case Jersey City Redevelopment Agency v. Kugler, 58 N.J. 374 (1971), where the gap between the declaration of blight and filing of the complaint was 9 years.

There is no hard and fast rule that speaks to when the passage of time becomes so great that the strict interpretation of the statute must yield to the constitutional guarantee of just compensation (see City of Ocean City v. Mafucci, 326 N.J. Super. 1 (App Div 1999); Desai v. Board of Adjustment Town of Phillipsburg, 360 N.J. Super, 586 (App Div. 2003), certification denied 177 N.J. 492 (2003), (noting that the valuation of the property should comport with the facts and circumstances of the case, so as to assure the property owner just compensation, as contemplated by the Constitution).

The Court concluded “Kason should not be given a windfall as a result of the declaration of blight, or of the minor time lapse between the blight and the filing. The increase in value either as a result of and subsequent to the declaration or as a result of other market factors does not mean that Kason should reap that benefit.”

What windfall? The Court notes in footnote 1: “While neither side has offered facts to explain the valuation difference in this case, I infer from their positions both sides would agree the property appreciated between the blight designation and the filing of the Complaint. The extent of the appreciation is unknown to the Court.”

Eighteen months is not an insignificant amount of time, especially viewed in the light of the accelerating real estate market which was occurring between 2004 and 2005. The property owner was not seeking a windfall in utilizing the date of the filing of the complaint as the date of valuation. He was merely seeking to get the benefit of his continued ownership of the property up to the point of the commencement of the action (filing of the complaint) and the transfer of the title to the City of East Orange. While the Court notes that it did not have any evidence before it regarding the appreciation in the real estate market, it could be easily demonstrated that the appreciation occurred through general market forces and not as a result of the actions of City of East Orange in blighting the property. There is, therefore, no project enhancement at play here.

An issue regarding the date of valuation which impacts the constitutional guarantee of just compensation should not have been decided without an evidentiary hearing and the testimony from the respective real estate experts. This opinion should not be viewed as an precedent by municipal condemning authorities in blight cases to use the date of the declaration of blight as the date of valuation.

Ironically, on the same date as the receipt of the Judge Costello’s opinion, the CLE International Eminent Domain Conference in Princeton, New Jersey, featured a presentation by John Buonocore, Jr., Esq., of McKirdy & Riskin on this issue. Buonocore addressed this very point in his conference report:

If the statute is taken literally (and ignoring unlikely “possession” or “subsection [c] – type” claims), subsection (d) appears right on point in redevelopment situations. The date of value under a literal reading is the date of determination that the area in which the property is located was determined to be “blighted” or “in need of redevelopment” by the governing body pursuant to N.J.S.A. 40A:-12A-6(b)(5).

There is a problem with that construction of the statute. It is clearly unconstitutional as applied in cases where the redevelopment designation was years prior to the taking and values have risen generally in the meantime. Date of value rules do not exist in a vacuum but within the context of fundamentals: Every rule of law in the condemnation context – including date of value rules – is subordinate to the constitutional rule that an owner shall receive just compensation. The date of value must comport with the constitutional mandate of “just compensation.” U.S. Constitution. Amend.V; N.J. Const. Art I, ¶ 20.

- excerpt from "Condemnation in the Redevelopment Context: Date of Value, Post-Blight Declaration Dimunition in Value, Project Enhancement, Scope of the Project and Other Project Influences" presented by John Buonocore, Jr., Esq., October 12, 2006

New Jersey Eminent Domain Blog: http://www.njeminentdomain.com

Debate on Eminent Domain and Proposition 90

Chapman Law School, 10/20/06
The Pacific Legal Foundation will sponsor a debate on eminent Domain and california's Proposition 90 at the Chapman University Law School, Orange CA, on Friday Oct 20 2006 at 1:00 pm. The venue is Room 237, One University Drive, Orange, California 92866. The event is free to general public. Attorneys may receive 3 CLE units for $15 ($10 for current Federalist Society members).

1:00 p.m. Panel One: History of Eminent Domain and Current Controversies.

3:30 p.m. Panel Two: Debate on Prop. 90, which, if passed, would restrict eminent domain and other regulation.

5:00 - 7:00 p.m. Reception.

Participants will include Assemblyman Ray Haynes, R-Riverside; Gary Patton, Executive Director of Planning and Conservation League; Prof. Gideon Kanner, Loyola Law School; Ken MacVey, Best Best & Krieger; Prof. John Eastman and Prof. Lawrence Rosenthal of Chapman Law School; John Murphy, Rick Rayl, and Paul Weiland of Nossaman Gunther Knox & Elliot; Tim Sandefur, Dave Stirling, and Harold Johnson of Pacific Legal Foundation.

Timothy Sandefur, Pacific Legal Foundation: tms@pacificlegal.org

The Long, Long Arm of Proposition 90

By John Ryskamp
West Coast Hotel v. Parrish (1937), established the Constitutionality of health and welfare regulation in this country. That case said that such regulation was Constitutional as long as it was rationally related to a legitimate government purpose.

Unnoticed by either its proponents or opponents, California's Proposition 90 goes far beyond the usual anti-Kelo reforms which restrict when eminent domain may be used. It even goes beyond “Kelo plus” initiatives, which demand compensation not only for eminent domain takings, but also for land use regulations which reduce the value of real property.

Proposition 90 overthrows the scrutiny regime and establishes an entirely new doctrine: every law maintains an important fact. Proposition 90 does not mention land use regulation, or regulation at all; it casts its net very widely: “government action.”

Section 3, Paragraph 8 of the initiative states:

“Except when taken to protect public health and safety, ‘damage’ to private property includes government actions that result in substantial economic loss to private property. Examples of substantial economic loss include, but are not limited to, the downzoning of private property, the elimination of any access to private property, and limitations on the use of private air space. ‘Government action’ shall mean any statute, charter provision, ordinance, resolution, law, rule or regulation.”

The examples provide guidance if the government action relates to real property. But what if it doesn’t? Proposition 90 relates to “private property,” not merely to real property.

Under current law, property under the Fourteenth Amendment is known as “property interests” and is vast indeed. For example, beyond employment the [Supreme] Court [has] found “legitimate entitlements” in a variety of situations….[S]tudents [are accorded] some due process hearing rights prior to suspending them, even for such a short period as ten days….[A cause of action for discrimination is] a property interest….Beyond statutory entitlements, the Court has looked to state decisional law to find that private utilities may not terminate service at will but only for cause, for nonpayment of charges, so that when there was a dispute about payment or the accuracy of charges, due process required the utility to follow procedures to resolve the dispute prior to terminating service.

So, if they lower your unemployment compensation — or end it — is that compensable under Proposition 90? Is an electricity rate increase? Is “education” a property interest, such that suspension is compensable? Is lack of health insurance compensable under Proposition 90? Housing eviction?

Proposition 90 puts power over facts into the hands of individuals, and takes that power out of the hands of the political system. At least in that regard, it is consistent with other anti-Kelo propositions. It is also consistent with American history, in which such facts as freedom of speech were regarded as intrinsic to the human experience and could only be distorted by — and distorting of — government. That’s why they were removed from government. What facts? and, in what ways removed? Those are the questions we are going to have to answer under Proposition 90. But we will be asking and answering them, not the political system. Factual inquiry has replaced government discretion: that is the new equation of Proposition 90. For better or worse, we are on a new Constitutional road.

John Ryskamp: philneo2001@yahoo.com

Pages

10/21/2006

10/18/2006

10/17/2006