Eminent Domain Watch: 10/22/06

10/28/2006

Challenger Puts Focus On Eminent Domain: Hartford CT Courant, 10/28/06

By Charles Stannard
Democratic state Sen. Andrea Stillman's bid for a second term in the 20th Senate District is facing an aggressive challenge from Christopher Oliveira, an Old Lyme lawyer and Republican Party activist who claims Stillman did not object to New London's controversial use of eminent domain for the redevelopment of the city's Fort Trumbull neighborhood.

Stillman, 58 of Waterford, was elected to represent the seven-town shoreline district in 2004, succeeding Melodie Peters, another Waterford Democrat who had represented the district for 12 years. Stillman represented the Waterford-based 38th House District from 1992 to 2004.

Oliveira, 36, is making his first bid for elective office after previous involvement in the Republican Party, including service as Old Lyme's Republican town chairman and as a member of the Republican State Central Committee.

The district covers New London, Waterford, East Lyme, Old Lyme, Salem and portions of Montville and Old Saybrook.

Although the eminent domain controversy has eased after a settlement with the Fort Trumbull homeowners in June, Oliveira has made it a campaign issue by alleging that Stillman avoided active involvement in the long-running issue because J. Solomon Inc., a New London business she co-owns with her husband, was selling stationery supplies to the city and the New London Development Corp., which had initiated eminent domain proceedings against several property owners who refused to sell their homes to make way for redevelopment.

Oliveira raised the issue at the campaign's only public debate, held Tuesday in Old Lyme, and has continued to press it with freedom of information requests seeking records of business between J. Solomon Inc. and the city. He claims that more than $700,000 in business with the city over the past decade and $3,500 in sales to the New London Development Corp. led Stillman to "tacitly support" the actions of the city and the development agency during the eminent domain controversy.

"Those folks went to her for help and she did nothing," Oliveira said, adding that Stillman should have limited the company's business with the city and ended all sales to the development agency during the controversy. "It's the definition of a conflict of interest," he said.

Stillman bristles at Oliveira's effort to link her business with the eminent domain issue. "I think it is despicable that he is denigrating a well-respected family-owned business to improve his chances of getting elected state senator," she said.

Stillman rejects claims that she tacitly supported the eminent domain actions. Furthermore, she said, the New London Development Corp. was established under an agreement between the city council and the administration of former Republican Gov. John G. Rowland. "There was no legislative input," she said.

Stillman also pointed to her support, during this year's legislative session, of two unsuccessful amendments that were intended to limit the use of eminent domain for economic development projects.

Oliveira calls for both legislative action and a constitutional amendment to limit the use of government acquisition of private property via eminent domain. Stillman said she intends to support legislation that would require a referendum or town meeting vote to confirm any municipality's decision to use eminent domain.

Hartford CT Courant: http://www.courant.com

Public Hearings Begin on NJ Eminent Domain Reform Bill S-1975: New Jersey Eminent Domain Blog, 10/27/06

By Bill Ward
On October 26, eminent domain reform took center stage as New Jersey Senator Ronald Rice (D-Essex) held the first of several hearings on S-1975, the bill that has evolved from Assemblyman Burzichelli’s version (A-3257). Burzichelli’s bill was passed by the Assembly on June 22, 2006, and referred immediately to Senator Rice’s committee. Thursday’s meeting was held at the Irvington Senior Citizen Community Center on Springfield Avenue.

Details of Thursday's testimony
Senator Rice recognized Irvington Mayor Wayne Smith as the first speaker. Irvington is one of those distressed communities, located between Newark and Maplewood, which is in desperate need of revitalization and an increase in its tax base.

“One of the tools we need to have is the power of eminent domain under the current redevelopment laws,” the Mayor said. “The challenge is when communities [such as Irvington] grow, eminent domain is absolutely necessary to advance growth.” Mayor Smith acknowledged that protection should be given to property owners and abuses should be discouraged.

I [Bill Ward] was the second speaker called to the podium. As I have opined previously, my testimony to the committee stressed the necessity of a comprehensive review of all the statutes that govern eminent domain and relocation regulations. Senator Rice invited me to submit written comments which will be posted at the New jersey Eminent Domain Blog upon completion. Senator Rice affirmed that his committee is indeed considering changes to the Local Redevelopment Housing Law (LRHL), N.J.S.A. 40A:12A-1; the Eminent Domain Act of 1971, N.J.S.A. 20:3-1; and the Relocation Assistance Act, N.J.S.A. 20:4-1.

Assuming the bill is passed by the Senate and signed into law by the Governor, key issues that property owners directly affected by threatened acquisition should be aware of are the effective date of the act and whether it will apply to pending cases such as those in Long Branch and Asbury Park.

The bill in its present form does away with the project influence rule, and would permit the property owner’s appraiser to value the acquired property based on the development plan. The present law limits property owners to value based on the underlying zoning unless they can prove probability of zone change. See See Jersey City Redevelopment v. Kugler 58 NJ 374, 379 (1971), and State v. Gorga 26 NJ 113, 117 (1958).

One of the chief benefits we see to the proposed changes is the transparency which will now be in the initial notice to property owners regarding their properties' inclusion in an area of need of redevelopment. The law, if it is passed, will require these notices sent to both property owners and the tenants to state clearly that the municipal action could result in the properties being acquired by eminent domain proceeding. This will get their attention in time to contest the proposed action.

Senator Rice indicated, by his discussion with members of the public who testified and directives to his staff, that he will need to continue to study and address several important issues:

The number of years within which a blight declaration will remain effective
Transparency in the government process leading up to adoption of a blight declaration
Transparency and clarity in the notice provisions to the property owners and tenants effected by the municipal action
Issues dealing with small businesses (the “mom and pop stores”) as well as residences
Environmental concerns

Property owner Santos Cruz, a member of Citizens in Action of Mt. Holly, New Jersey, testified. Mr. Cruz indicated that he was born in Puerto Rico, an American citizen by birth, and had built up a viable business in Mt. Holly that supports his family. “[Eminent domain] is a sword that cuts both ways. You’re making it impossible to live in this state,” Cruz said. “I worked hard to get a piece of the pie and you’re taking it away. We worked for the American dream and you people have made it the American nightmare….If holding land in the United States is not sacred, then what you are going to do? What are we fighting for? The people want fairness – there’s no fairness in the law.”

Senator Rice agreed that there should be fairness in the process, but he also stated that he needs to get 21 votes to advance the bill.

George Mytrowitz, a member of the Newark Mulberry Street Coalition, addressed issues concerning the duration of blight designation and the adverse effect on small businesses, many of which don’t survive the acquisition and relocation process, thus eliminating essential services to the effective areas. “Eminent domain is killing the blue collar jobs,” he said. “Our property is not blighted. We will prove that in court… A moratorium needs to be put in place while [this issue] is explored.”

Manuel Amaral, a small business owner from Harrison, made an emotional appeal to Senator Rice. “I called my mayor," he stated. "How come you guys are taking my property? I’m very concerned for my future, my kids’ future, and my neighbors….I see my future, my kids’ future going down the drain... There’s no place in Harrison to go. I’ve worked 30 years for this….We’re losing our freedom.”

Linda Brnicevic, a member of the Bound Brook Concerned Citizens Coalition, spoke about conditions in her community. Hurricane Floyd flooded large portions of Bound Brook in 1999. Her property and those of her neighbors were among the affected properties. Bound Brook appears to be using the circumstance of the flood as a reason to declare her area “in need of redevelopment.” Parenthetically, she noted that Bound Brook also seeks to eliminate a large Hispanic segment of the community by acquiring and redeveloping these properties. “This was a silver bullet to cleanse the community,” she said.

Displacement is a sad corollary to natural disasters, such as those areas affected by Hurricanes Katrina and Rita in New Orleans and portions of Missisippi. The community is not only displaced by the natural disaster, they are permanently removed through governmental action couched in terms of redevelopment. Read Linda Brnicevic’s written testimony to the committee.

Among other people offering testimony were William Potter, Esq., of Potter and Dickson, chairman of the Stop Eminent Domain Abuse Coalition, who addressed the definition of blight and how far the legislature has taken the word “blight” from its original constitutional meaning in the LRHL. He referenced Public Advocate Ronald Chen’s report on this issue.

Concerned citizens are welcome to forward written testimony submitted to the Senate Community and Urban Affairs Committee to the New Jersey Eminent Domain Blog to be considered for publication.

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

Panel shifts course on eminent domain: Jackson Hole WY Star-Tribune, 10/27/06

By Dustin Bleizeffer
A legislative committee on Thursday dropped its own draft bill to reform Wyoming's eminent domain laws and instead approved a substitute draft put together by a group of energy industry and agriculture group leaders.

Joint Agriculture, Public Lands and Water Resources Committee Chairman Sen. Gerald Geis, R-Worland, cast the single dissenting vote against the substitute bill. He said he was disappointed that opposing factions involved in the process were unable to bring a compromise to the committee.

Eminent domain usually describes the power of a government to force access to private land through easement, lease or sale for public use. In Wyoming, eminent domain powers have long been extended to private companies that require easements for water facilities, oil and natural gas pipelines and electrical power lines and substations.

At issue are several key provisions that private property advocates say are needed to make the state's eminent domain laws fairer without throwing up roadblocks to industrial development: first, early notification to landowners of intent to develop; and second, a checklist of compensation triggers.

Some type of certification that ensures a condemnation actually meets the state's "public necessity" requirement is also needed, according supporters of eminent domain reform.

The substitute bill, which was put together by energy industry leaders and officials from the Wyoming Stock Growers Association, Wyoming Wool Growers Association and the Wyoming Farm Bureau Federation, excluded those provisions. Jim Magagna, executive vice president of the Stock Growers Association, said those provisions "went too far" and would have rendered the committee's bill dead on arrival if brought to the Legislature.

However, the committee did re-insert notification and compensation provisions to the new bill. The measure now will be introduced to a select House committee, where further amendments will be considered.

Jackson Hole WY Star-Tribune: http://www.jacksonholestartrib.com

Court declines to hear megamall eminent domain challenge: WSTM-TV, Syracuse NY, 10/24/06

Associated Press
A final hurdle to the start of construction of a multi-(b)-billiond-dollar megamall in Syracuse [New York] has been removed.

The state's highest court has refused to hear a challenge by ten stores to the Syracuse industrial development agency's use of eminent domain to expand the Carousel Center into Destiny U-S-A.

Yesterday's decision by the Court of Appeals means developer Robert Congel can begin on an expansion plan that's the first step in transforming Carousel Center into a mall that would rival Minnesota's Mall of America as the nation's largest retail-entertainment complex.

Macy's, J-C Penney and eight other stores had asked the Court of Appeals in Albany to block the use of eminent domain o seize some of the stores' lease rights at the mall.

WSTM-TV, Syracuse NY: http://www.wstm.com

Blackwater Eminent Domain Trial: Booneville MO Daily News, 10/24-25/06

By Darren McFadden
The eminent domain case between the city of Blackwater and several property owners in the city went to trial Monday in Cooper County Circuit Court. Blackwater city attorney Patrick Cronan presented the city's case by bringing City Clerk Jim Atkinson to testify.

Atkinson began by outlining the city's plans for the property. He said that the old grain elevator near the railroad tracks has been donated to the city. The city is planning to make the elevator the centerpiece of an agriculture museum and farmers' market on the property and surrounding lots. Part of the property claimed by the city is to be used for parking.

Eminent domain is the allocation of private property for public use, such as a highway, park, or military base. The U.S. and Missouri constitutions require that residents whose property is taken be given fair warning and just compensation for their property. If the owners refuse to sell, the government has the right to force them off the property by eminent domain.

When the trial began, there were some inconsistencies regarding the actual defendants still in the case. Cronan claimed that a number of defendants listed in trial documents have settled with the city and asked that their names be stricken from the list.

Basically there are three families left fighting the city's takeover. Michael Root, Sr. and his sons Michael, Jr., and Aaron and Walter and Edna Young are being defended by attorney Thomas Bolling of Marshall. Benjamin Simmons is representing himself and his wife and son's interest in the case.

Bolling contested Atkinson's version of the plans for the park put forth in his testimony. Bolling asked Atkinson about a newspaper article about the proposed annexation in which Blackwater Mayor Bobby Danner was quoted as saying that part of the land will be used for an RV park. Atkinson replied that he had heard discussions about an RV park, but that he was not aware of any specific plans.

Bolling then asked if the city had put together a study of the need for parking at the proposed park. Cronan objected that there was no statute requiring an independent study to determine parking needs before annexing property for a park. Judge Koffman agreed that there was not a law stating that requirement specifically, but that the city is required to show probable cause for the need of all the property it plans to annex.

After much discussion on the way to phrase the question, Atkinson said he was not aware of a plan put together by the city to show that the city needs all of the property it plans to annex in order to properly provide for the needs of the proposed park.

Bolling also asked Atkinson about a black heritage historic district that may have a stake in determining how the land is used. Apparently part of the land the city wants to take over was once the site of a church used by black slaves. The building is gone, but there is still a historic designation on the land. Atkinson said that to his knowledge the city had not taken this into consideration.

. . .

[When the city and the property owners finished their cases, Judge Robert Koffman announced he would review the testimony in court, the cases cited by both sides supporting their positions, and other evidence, then make a decision.]

The question before the judge is whether the city has sufficiently proved the need for eminent domain, the power of a government to obtain land for public use, in the acquisition of land for a city park.

There are three families who hold a number of city lots who are fighting the city's attempt to take the land. The family of Walter Young and the family of Michael Root are represented by Thomas Bolling, and Benjamin Simmons is representing his own family's interest in the case.

City attorney Patrick Cronan briefly took the stand to testify that he had performed title searches on behalf of the city and contacted the property owners in question, offering them payment based on an appraised value by the Cooper County assessor's office.

Bolling did not present any witnesses, but he did ask the judge to throw out the case, saying the city had not sufficiently presented their case.

Koffman took Bolling's objection under advisement, but did not rule on his motion.

Simmons took the stand in his own defense and accused the city of trying to force property owners off their land without the resources to buy it, and Mayor Bobby Danner specifically of trying to promote his own hotel and restaurant business through the addition of the park. He also said he planned to countersue the city.

The longest testimony was by Danner, who was brought to the stand by Cronan to rebut Simmons' testimony.

He testified that city voters had approved a 1/2-cent sales tax for capital improvement, and that the revenue was going to be used by the city for the park. He said the tax was not enough to sufficiently pay for all the park facilities right away, and that parts of the park would be phased in over a number of years.

He also testified that the idea for the park was the result of a survey of city residents, and that the council already had discussed plans for the park before the decision to seek the property by public domain was made, something disputed by Bolling.

In response to cross-examination by Bolling, Danner said that he was not sure if the plans for an RV park were discussed before the ordinance authorizing the city to obtain land was approved by the council. He also denied a newspaper article quoting him to say the land that will be purchased adjacent to his hotel will be used for parking.

After cross examinations were done, Koffman asked the mayor some questions about the city's plans. Danner said the city did not include some land in the middle of the proposed park because there were residences on the land.

When Koffman asked him why the city needed so much land for the park, Danner replied that most of the land is in the flood plain and therefore cannot be used for homes or other purposes, but a park is an acceptable use of the floodplain.

Booneville MO Daily News: http://www.boonvilledailynews.com

Eminent Domain Ordinance Aired by RTM: Fairfield CT Citizen-News, 10/25/06

By Holly M. Pullano
Although no vote was taken on the matter, the pFairfield CT] Representative Town Meeting on Monday engaged in a discussion regarding the possible adoption of an eminent domain ordinance.

Eminent domain is the power of the state to take private property without the owner's consent for public use. Recently, the term "public use" that generally guided eminent domain decisions was expanded to include private development. This was effectively changed in Kelo v. New London when the U.S. Supreme Court in June 2005 allowed a private developer in New London to seize private property in order to build a hotel, which the city said would increase its tax base.

According to RTM Moderator Joel Green, Monday's discussion was the first time that members had the opportunity to hear and consider the ordinance, which is sponsored by James Millington, R-1. The ordinance is co-sponsored by Michael Hahn, R-1; Alexis Harrison, R-2; Martha Sue Eckert, R-3; Marc Montanaro, R-3; Bryan LeClerc, R-9; Harry Ackley, R-4; Charlene Lebo, D-5; Brian O'Gara, D-5; Julie Powers DeMarco, D-6; and Patti Dyer, D-6.

According to the proposal by Millington, the ordinance, if adopted, would "prohibit acquisition of certain property by eminent domain for privately held or controlled economic development purposes." If adopted, the proposed ordinance would state the following: "The Representative Town Meeting of the Town of Fairfield respects the rights of its citizens who own and reside in residential real property; and believes that a primary responsibility of government is to protect private residential property and home ownership."

The ordinance, if adopted, would go on to state that the RTM "views the United States Supreme Court's decision in Kelo et al. v. New London et. al. as a threat to citizens of the Town of Fairfield who own residential real estate and live in their homes."

The Kelo decision effectively gives municipalities and the state significant power to take private property for private development under the public use doctrine.

The intention of the proposed ordinance is "to prevent the application of the Kelo decision in the Town of Fairfield by prohibiting the acquisition of certain owner-occupied residential real property by eminent domain," the document continues.

According to the proposed ordinance, this would include the acquisition of residential real property by eminent domain "for use in a municipal development project where the property would be privately owned or controlled or where the process would result in the homeowner losing their home."

During Monday's meeting, Millington addressed RTM members and urged them to support the ordinance as written. "This ordinance is fairly straightforward and provides the basic protection to homeowners," Millington said. "By enacting this ordinance we are sending a clear message that we have no intention of doing this."

"I think we all support senior and affordable housing, but not by taking someone else's home to do it," Millington added.

During the meeting, First Selectman Ken Flatto explained his viewpoint on the issue of eminent domain. "I could never support taking a private home," Flatto said. "I don't see us [the town] ever doing that regardless of any ordinance, and I want to reassure anyone that might think that may be a possibility."

But Jeffrey Steele, R-2, said that regardless of whether the town supports or objects to eminent domain, the RTM should take action in order to ensure protection of the town's residents. "We say it's never going to happen, but let's back it up with action by having a protection zone to never let this happen," Steele said. "The ordinance is in place by other towns, and there's no reason why we can't have it here. Let's be on the leading edge of protecting our town."

At that point, Robert Greenberger, D-8, addressed the RTM, stating that he would like to see the document be referred back to the Legislation and Administration Committee so that the language could be revised. "If we're going to do this, let's do it right," Greenberger said, adding that "the language might need to be tightened up."

Millington then spoke again, explaining that prior to his distribution of the proposed ordinance, he had thoroughly researched the matter and compared the document to neighboring towns that had adopted similar eminent domain ordinances. "Basically, this ordinance is a mirror image of the one that passed in the city of Milford," Millington said.

Millington then explained that the proposed ordinance had been distributed to the RTM in July, giving the members adequate time to review the document and make their suggestions for revising it. "We had a lot of time to look at this, and this ordinance as written came under a great deal of scrutiny and debate in Milford," Millington said. "I don't think this needs further interpretation. Taking this back to the subcommittee will just delay adoption of this."

Several other members agreed with Greenberger's motion to send the proposed ordinance back to the committee, but a motion to do so failed by a vote of 15-27; two members abstained.

Several members, including Martha Brooks, D-8, and Heather Dean, D-4, also told the RTM that Assistant Town Attorney Eileen Kennelly was in the process of researching the ordinance as proposed in order to answer questions members may have.

Kennelly said yesterday that she is in the process of compiling "as much input as possible" in relation to the ordinance, which will be presented to members during their next scheduled committee meetings in November.

When asked whether adoption of the ordinance was an urgent matter, Kennelly replied that it was not since the town "has no plans whatsoever" to become involved in an issue regarding eminent domain.

Members are scheduled to discuss and possibly vote on the proposed ordinance at their next scheduled meeting at Osborn Hill School on Nov. 27 at 8 p.m.

Fairfield CT Citizen-News: http://www.fairfieldcitizen-news.com

State Supreme Court to hear eminent domain case: Gloucester County NJ Times, 10/25/06

By Trish Graber
The [New Jersey] state Supreme Court has decided to hear a case involving a three-year-old land dispute between the borough and a local property owner.

George Gallenthin, president of Gallenthin Realty Development Corp., challenged the borough's decision to include his property in a redevelopment area to make way for the future Port of Paulsboro, arguing that his property did not meet redevelopment criteria.

Early this year, the state Appellate Division ruled that the borough acted accordingly when including the privately-owned piece of vacant land in its redevelopment plan in 2003.

Part of the land would be condemned for construction of a bridge extending from Exit 19 off Route 295 to the proposed Port of Paulsboro, in order to re-route commercial traffic from local roads.

Gallenthin appealed the borough's decision to Superior Court and later appealed the court's dismissal to the Appellate Division.

In March, the Appellate Division ruled that the borough followed "statutory procedures in reaching the conclusion that the plaintiff's property met the criteria for designation as an area in need of rehabilitation."

The Supreme Court will now decide the case.

Gloucester County NJ Times: http://www.nj.com/news/gloucester

County hardens stance against eminent domain: Ruidoso NM News, 10/24/06

By Dianne Stallings
Following up on previous correspondence emphasizing the opposition of Lincoln County commissioners to using the power of eminent domain for economic development purposes, County Manager Tom Stewart fired off another letter.

Commissioners already stated their disagreement with a stance by the National Assoc-iation of Counties that apparently is opposing legislation passed by the Senate that would guard private property rights.

Commissioners passed a resolution months ago opposing governmental condemnation of private property without just compensation and for reasons other than health, safety and welfare of the community, such as in needed right-of-way for improved roads.

Last month, Commissioner Maury St. John alerted the board to legislation introduced by U.S. Sen. James Inhofe (R-Okla.), called the Private Property Protection Act of 2006, that aims to protect private property rights against eminent domain abuse and calls for any entity receiving federal funds to abide by a call not to use eminent domain for economic development or face the loss of federal support.

Tuesday, St. John brought up House Resolution 4772, sponsored by U.S. Rep. Steven Chabot (R-Ohio), that would remove issues of local zoning from the state to the federal level, allowing people to appeal directly to federal courts.

On a motion by Commissioner Tom Battin, Stewart was directed to write a letter to the county's congressional delegation members stating their opposition to the resolution.

"It appears that H.R. 4772 helps developers sue local governments in federal courts," Stewart wrote U.S. Sen. Pete Domenici (R-NM). "The legislation would encourage developers to bypass state courts and local resolution of issues procedures where most land disputes now are resolved. The inevitable result will be a flood of litigation ... borne by local taxpayers. As such, far from preserving the rights of property owners, this bill constitutes a threat to the nation's communities and homeowners.

"In summary, the legislation would undermine fairness and predictability in development, undercut local use and environmental protections and impose enormous costs on local government and our citizens. Please reject H.R. 4772."

Summarizing the resolution, former New Mexico Association of Counties executive director Gus Cordova wrote that the legislation would make it easier for people to sue local governments. Zoning requirements in place may be moot, regardless if they are in the best interest of the community, he wrote.

"With H.R. 4772, if the developer disagreed with this zoning, they could file suit against the county and take the case directly to federal court," Corova wrote. "This sets up a potentially expensive and never-ending process for counties, who could face multiple lawsuits in federal courts over local zoning laws."

Ruidoso NM News: http://www.ruidosonews.com

Judge upholds use of eminent domain: Milwaukee WI Journal-Sentinel, 10/23/06

Property adjacent to Bayshore deemed blighted
By Marie Rohde
The city [of Glendale WI] acted within its rights when it condemned private property adjacent to the Bayshore shopping center's $300 million makeover, Circuit Judge Francis Wasielewski has ruled.

As a result of the ruling, Glendale will proceed with "full speed" to begin construction on a new public street and bus turnaround on the property, said Alan Marcuvitz, a lawyer representing the city.

The Goodyear Auto Service Center leases a building on the property. Earlier this month, the Glendale Plan Commission approved plans for the construction of a new building for Goodyear two blocks north on Port Washington Road. That building is expected to be completed by spring.

The Seemann Family LLC, a living trust created by Harold and Edna Seemann, owns the property at 5960 N. Port Washington Road that Glendale had condemned, using its powers of eminent domain.

In his ruling, Wasielewski found that the area was blighted and that the city was condemning the property for a public project, meeting the criteria of the state law.

Glendale argued that quick action was needed to preserve the property that has long been one of Glendale's top taxpayers.

According to city records, the 1.4 acres that Glendale condemned is assessed at $1.225 million; the building is valued at $5,000.

After obtaining appraisals of the land, the city offered $2.092 million for the Seemann property. Marcuvitz said the Seemanns can file a lawsuit if they think the amount is low.

Hugh Braun, the lawyer representing the Seemanns, said they had not decided whether to appeal.

Milwaukee WI Journal-Sentinel: http://www.jsonline.com

Brooklyn Property Owners and Tenants File Federal Eminent Domain Lawsuit: Develop don't destroy Brooklyn, 10/26/06

Press release
A group of ten plaintiffs – property owners and tenants from the site targeted for Forest City Ratner’s (FCR) proposed Atlantic Yards project in Prospect Heights, Brooklyn – filed a Federal lawsuit, in the Eastern District, to stop the State of New York from taking their properties for the developer’s private benefit through an abuse of its eminent domain powers. The suit says that the defendants’ use of eminent domain for the “Atlantic Yards” project is unconstitutional.

Governor George Pataki, FCR’s President Bruce Ratner, Empire State Development Corporation (ESDC) Chairman Charles Gargano, Mayor Michael Bloomberg, Deputy Mayor Dan Doctoroff, Forest City Ratner Companies and its parent Forest City Enterprises, amongst others, are named as defendants.

Develop Don’t Destroy Brooklyn (DDDB) has organized the legal team/ Lead counsel is Matthew D. Brinckerhoff of the constitutional law firm Emery, Celli, Brinckerhoff & Abady (ECBA); counsel for tenant-plaintiffs is Jennifer Levy of South Brooklyn Legal Services; co-counsel is DDDB attorney Jeffrey S. Baker of Young, Sommer, Ward, Ritzenberg, Baker & Moore; and a team of dedicated volunteer attorneys.

“This lawsuit presents a textbook example of what the Fifth Amendment expressly prohibits: the taking of one citizen’s property in order to benefit a powerful and influential private citizen. Our case is strong–the sham process employed by defendants to justify the taking of plaintiffs’ property for Bruce Ratner’s ‘Atlantic Yards’ is precisely what was forbidden by the majority in last year’s controversial Supreme Court Case - Kelo v. New London,” lead attorney Matthew Brinckerhoff said. “The ‘Atlantic Yards’ proposal is premised upon the abuse of eminent domain. Plaintiffs will not stand idly by while their properties are seized by the State and given to Bruce Ratner to maximize his enrichment. We seek a court order prohibiting the State from abusing its eminent domain power in violation of the Fifth Amendment.”

Property owners and tenants in the proposed development have the right to keep their homes and properties. New York State has no legal right to take those properties for a private, favored developer when there is no comprehensive development planning process, no bidding process for the condemned land, a phony “blight” finding and when that project is wholly conceived and driven by that private developer for that private developer’s benefit. This is the case with Forest City Ratner’s “Atlantic Yards” proposal.

Tenant attorney Jennifer Levy said, “I represent low-income renters and most of my clients in this case are rent-stabilized tenants who will be removed from their long-term homes, distanced from their families, and removed from their communities, if this Project is permitted to proceed. This case represents an unjustifiable use of the State’s eminent domain powers, which only permit the use of eminent domain where there is a resulting public use. It is not permissible to use eminent domain for the benefit of a private developer displacing vulnerable populations.

“We are calling on the Public Authorities Control Board – Silver, Bruno and the Governor – to postpone any vote on the proposed 'Atlantic Yards' project until the courts have ruled on eminent domain,” said DDDB attorney Jeffrey Baker. "There is much that is illegal with the Ratner ‘Atlantic Yards’ proposal and its process. Its abuse of eminent domain, which we will show with this case, is at the very foundation of the project’s numerous violations of the law."

“We want to stay in our homes, keep our businesses, and keep our properties. Our case, at its core, is very simple: Bruce Ratner does not have the right to ask Governor Pataki to take my home and give it to Bruce Ratner, and the Governor does not have the right to oblige Mr. Ratner. We are sure that most people agree with us on that,” said plaintiff and DDDB spokesman Daniel Goldstein. “With our suit here in Brooklyn we are standing up for millions of people across the United States who understand that the abuse of eminent domain can impact anyone and has gone too far. We are excited that our case may rein in eminent domain abuse here in New York City and across the country.”

Lead DDDB legal volunteer Candace Carponter said, “We fully support, congratulate, and deeply respect the courage of these owners and tenants in defending their fundamental constitutional rights. As the Ohio Supreme court said in its ruling for owners in the City of Norwood eminent domain case, 'although the judiciary and the legislature define the limits of state powers, such as eminent domain, the ultimate guardian of the people's rights...are the people themselves.’”

The 8.8 million square foot, $4.2 billion “Atlantic Yards” project was first conceived by Forest City Ratner and unveiled in December, 2003, at which time it was made clear that private property (homes and businesses) would be condemned, seized and transferred to the developer to construct his project and bring enormous profits to the development corporation. The City of New York and the State of New York never had any plan for the proposed project site, and thus, “Atlantic Yards” and its dependence on eminent domain abuse is entirely driven by the developer, and the private goals of the Forest City Ratner corporation. The Supreme Court’s Kelo decision in the summer of 2005 forbade this kind of favoritism in takings.

A copy of the complaint is online at:
http://dddb.net/php/reading/legal/eminentdomain

Develop Don't destroy Brooklyn: www.dddb.net

Daniel Goldstein: 917-701-3056, press@dddb.net

NJ Senate to consider a version of eminent domain bill passed by the Assembly in June 2006

new Jersey state Senator Ronald Rice (D-Newark), Chair of the New Jersey Senate Community and Urban Affairs Committee, has scheduled hearings on S-1975. This proposed legislation is the senate version of the “Burzichelli” bill which passed the New Jersey Assembly in June 2006 and seeks to amend portions of the Local Redevelopment Housing Law and the Eminent Domain Act of 1971.

Proposed changed to New jersey laws impact eminent domain cases undertaken as part of local redevelopment efforts. Click here to download the latest version of the bill:
http://www.njeminentdomain.com/RICE_1975_I1.pdf.
Bear in mind that the text of the bill can be changed without notice. The text between [brackets] includes proposed deletions and that the underlined text comprises new changes to the bill.

Information from the new Jersey Eminent Domain Blog by Bill Ward: http://www.njeminentdomain.com

Pines ballot question affects eminent domain orders: Miami FL Herald, 10/22/06

A ballot question would restrict the use of eminent domain for economic development in Pembroke Pines
By Amy Sherman
Pembroke Pines voters will be asked Nov. 7 whether they want to limit the city's ability to acquire residential property for economic development.

The proposed amendment to the City Charter is a reaction to a controversial U.S. Supreme Court decision that last year upheld the right of New London, Conn., to take Suzette Kelo's pink home with a river view for commercial development.

A ''yes'' vote in Pembroke Pines would prohibit the city from taking a similar action.

Typically, cities use their power to ''take'' property - known as ''eminent domain'' - to clear the way for public works such as roads or parks. But some cities have used their powers - at times in the name of cleaning up blight - for economic development.

Since Kelo, 31 states and about 80 cities have passed eminent-domain reform laws, said Steven Anderson, of the Institute for Justice, a law firm based in Arlington, Va., that works on eminent domain cases.

Florida legislators this spring passed a measure limiting the use of eminent domain, but went a step further: They put a statewide constitutional amendment on the ballot that would prohibit using eminent domain to transfer private property to developers. However the Legislature can enact exemptions to the ban by a three-fifths vote.

Pembroke Pines City Attorney Sam Goren concluded in a memo that the changes to state and federal laws make the city's move unnecessary.

But if the state statute were to be repealed or altered, the City Charter provisions would remain in place, Goren concluded.

Phil McConaghey, a frequent city critic, says it's crucial for the city electorate to pass the measure even though Florida has tightened its law.

City officials included $15 million for redevelopment in a bond referendum approved by voters in 2005. The money is expected to go toward the older, eastern side of town.

''There isn't any more pieces available in the eastern end to do economic development without taking in some residential property,'' McConaghey said.

Commissioners have said they don't intend to seize homes for redevelopment, but agreed to the ballot measure.

''This will ensure to some extent that future commissions will be bound by the will of the people,'' Commissioner Bill Armstrong said.

Two other proposed charter changes would delete obsolete provisions and change appointments to the Charter Review Board from continuous to once every five years.

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

Eminent domain changes proposed: Trenton NJ Times, 10/22/06

By Eva Loayza
There is no "magic bullet" for private property owners fighting the government over eminent domain, but a bill recently passed by the state Assembly and now before the Senate would at least level the playing field.

That was a key piece of encouragement related by attorney Mary Lou Delahanty and her husband R. Kevin McGrory, former city municipal court chief judge, to about a dozen residents who attended a discussion concerning eminent do main at the Trenton Meeting of Friends yesterday.

The discussion, co-sponsored by the Latino Community Land Trust and BOOST (Building Open Opportunity Structures Together), came just days after the city council voted to allow the administration to condemn portions or entire private properties for a South Ward project if a deal cannot be reached with the owners.

The ordinances adopted by the council are for properties on Centre and Lamberton streets needed for the balance of an 84-unit condo project proposed by K. Hovnanian for the Champale Redevelopment Area.

Delahanty said it is next to impossible under current legislation for a private property owner to fight condemnation action by a municipality. Delahanty said in her practice she has found it is better to focus resources on litigating the issue of fair market value rather than trying to fight a municipality on eminent domain.

Practical strategies for dealing with condemnation actions include not accepting a municipality's first offer, which may be lower than subsequent offers, she said.

Delahanty also advised property owners to get an appraiser to assist in the initial negotiations.

But McGrory pointed out that in most cases of condemnation and eminent domain, it is difficult for property owners to incur the cost of attorneys and appraisers while the condemning authority easily can afford such expert assistance.

McGrory said a bill that passed the state Assembly and is pending in the Senate would make a number of changes to the local redevelopment and housing laws.

One of the most important changes would be a shift in the burden of proof for designating an area as in need of redevelopment, he said. Current law gives the condemning party the benefit of the doubt. Those challenging a condemnation ordinance are required to prove it is arbitrary and unreasonable, which McGrory said is an exceedingly high burden of proof.

The bill also would change the type of compensation offered to a property owner from fair market value to replacement value. Delahanty said that is significant in a city such as Trenton with so many "depressed" properties. "You are giving someone the price it will take to have that structure again and that becomes a more fair process," said Delahanty. "People will be more protected."

Others changes include increased notice to people who re side in potential redevelopment areas about pertinent meetings and hearings.

Trenton NJ Times: http://www.nj.com

10/22/2006

We urge 'no' vote on eminent domain: Royal Oak MI Mirror, 10/20/06

Editorial
Last year, the U.S. Supreme Court ruled in Kelo v. City of New London that a government body could use its eminent domain authority to promote economic development and transfer property from one private entity to another.

The 5-4 decision was controversial and drew strong negative reaction from both conservative and liberal groups. But the decision left open to each state the opportunity to set limits on the legislative powers of its Legislature and municipalities in defining the proper use of eminent domain.

The majority cited the 2004 Michigan Supreme Court decision County of Wayne v. Hathcock as an example of setting limits on eminent domain. In that decision, the Michigan court ruled against the county using its eminent domain power to acquire additional land for the proposed Pinnacle Aeropark development.

The state Legislature has placed a constitutional amendment on the November ballot, Proposal 4, that builds on the Hathcock decision in setting limits on eminent domain. It provides that government compensate owners at 125 percent of market value when the property is a principal residence, restricts taking public property for transfer to a private entity, shifts the burden of proof on defining public use to the government and protects against future legislative or judicial actions that would jeopardize property rights.

We understand the concern about overreaching government and the misuse of eminent domain. But we also know that there are times when eminent domain is necessary for economic development.

The Wayne v. Hathcock decision, which is now law in Michigan, goes a long way toward protecting private property rights without overstepping and limiting a necessary government prerogative for the general welfare. The proposed amendment would create barriers to eminent domain that could have serious consequences for future urban development.

We urge a 'no' vote on Proposal 4.

Royal Oak MI Mirror: http://www.hometownlife.com

Eminent-domain victors get keys back: Cincinnati OH Enquirer, 10/21/06

By Steve Kemme
The owners of the three properties involved in the Norwood [OH] eminent-domain case now can enter their dwellings any time they want.

On Friday, attorneys for the developer who lost the precedent-setting eminent domain battle in the Ohio Supreme Court turned over the keys to those properties and to the gate at the entrance of the 11-acre site.

The transfer of keys occurred before a hearing in the courtroom of Hamilton County Common Pleas Judge Beth Myers. Certain issues such as compensation for damage to the properties and for attorneys' fees still need to be resolved.

The property owners - Joy and Carl Gamble Jr., Joe Horney, and Sanae Ichikawa-Burton and Matthew Burton - now can go onto the properties without asking the developer's permission.

The Gambles, Horney and Burton won their legal battle against Norwood and the Rookwood Partners to get their properties back. Rookwood Partners wanted to build a $125 million commercial development on the site bordered by Interstate 71 and Edwards and Edmondson roads. The developer had acquired all but the three properties on the 75-parcel site.

The Ohio Supreme Court ruled July 26 that Norwood illegally used eminent domain to seize the properties and ordered their return.

The Gambles had lived in their house for 35 years before being forced to leave almost two years ago. Horney had rented out his two-family house, and the Burtons had converted a house on the site into a math and reading learning center.

Joy Gamble and Sanae Ichikawa-Burton said they are happy to have unlimited access, but they're not happy about the condition of their properties.

Gamble said their property has been vandalized while in the developer's possession.

"It should be given back to us in the condition it was when we were forced to leave," she said. "The Ohio Supreme Court said to give us our home back, not an unlivable pile of junk."

Ichikawa-Burton said water has seeped into the basement of her former learning center, creating a potential mold problem. There has been other damage, too, she said.

"We are not going to take the property back the way it is," she said. "It's a mess. They need to repair everything."

Horney was out of town Friday and could not be reached for comment.

Attorneys for all the parties hope to reach an agreement on what damage to the properties the Rookwood Partners must repair, who will pay for restoring utilities to the properties and whether the developer and Norwood must pay the fees of the attorneys for the Gambles, the Burtons and Horney.

The Institute for Justice, a civil-liberties law firm in Washington, represented the Gambles, the Burtons and Horney at no charge.

Institute attorneys Scott Bullock and Bert Gall said Ohio law requires the losers of eminent-domain cases to pay the winners' attorney fees, regardless of whether any fees were charged. Attorneys for the Rookwood Partners and Norwood will be disputing that.

Another point of dispute is how much of the $1 million set aside in property valuation deposits controlled by the court must be returned to Rookwood Partners.

Tim Burke, attorney for Norwood, said Rookwood Partners believe all the money should be returned. With the court's permission, $273,544 has been withdrawn from those accounts to pay mortgages and fees to attorneys in the property valuation part of the eminent-domain case.

Myers encouraged attorneys in this case to continue trying to reach an agreement on all these issues.

Cincinnati OH Enquirer: http://news.enquirer.com

Eminent domain imminent? Trenton NJ Trentonian, 10/20/06

Lamberton Street project wins vote, fueling more opposition
By L A Parker
An ordinance that could eventually allow the City of Trenton to implement eminent domain as a tool for property acquisition won support by a 5-2 vote for the one property blocking an 84-unit condominium by power developer K.Hovnanian.

That vote last night caused a domino effect as unanimous decisions were voiced for the city to enter into negotiations with 11 other property owners whose homes or yards exist in the Lamberton and Centre street area.

K.Hovnanian plans to build most of its expansive project on a nearby vacant Champale factory site.

Antoinette Shelton, who owns a house on Lamberton Street but lives in Yardville, first addressed City Council at Washington Elementary School before scores of others, mostly against any idea of eminent domain, followed.

Shelton accused Trenton Mayor Doug Palmer of "lying from day one."

"He said that no one would lose their homes....This project could be built without taking our property,’’ Shelton said.

Shelton and her husband Ed potentially could lose part of their yard and a row of five garages should the City plan continue.

South Ward Councilman Jim Coston, who joined North Ward Councilman Milford Bethea as dissenting voters, said that K.Hovnanian should build around the Shelton property.

Coston also noted that the Sheltons had contributed $500 for his successful city council campaign which ousted incumbent John Ungrady.

"It’s in my elect report and on my blog,’’ Coston, who said he was "conflicted’’ about the project, said.

Other project detractors included failed mayoral candidates Tony Mack and Frank Weeden.

Mack predicted eminent domain gone mad saying that approval of these ordinances would cultivate similar concerns throughout Trenton.

"If City Council approves this then look out East Ward. Look out North. Look out West,’’ Mack warned.

Weeden accused the Administration of poor planning and communication.

"This wasn’t necessary. The city could have had a good project without taking this property,’’ Weeden said.

While most residents expressed disappointment with eminent domain, others supported a project that is being billed as a premium revitalization initiative that could expand beyond the South Ward.

"This is a significant development in the history of our city, significant because we will have a nationally recognized residential builder performing work in Trenton,’’ said Metropolitan Trenton African American Chamber of Commerce President and CEO John Harmon.

Harmon, another mayoral candidate who in May lost to fifth-term Mayor Palmer, said the project has legs.

"The success of this project should not be addressed in the context of the South Ward only. As a community, we must look at the overall impact this project will have on the potential of our entire city,’’ said Harmon.

Centre Street homeowner Jeanette Rosie said she is happy with her settlement with the city and ready to move on.

"They offered me a price that I thought was pretty good. I’m just too old to take care of this house on my own,’’ Rosie said.

"I’m 68 years old and have lived in this house since I was seven. This is my big chance to get out."

Shelton said she may consider a lawsuit to block the City Council decision.

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

Ballot Initiatives in 6 States Capitalize on Eminent Domain Outrage: Mother Jones Blog, 10/20/06

By April Rabkin
One sentiment that has cut across party lines in the past year is eminent domain outrage. Libertarians and environmentalists, Nascar dads and the NAACP, everyone seems to object to Kelo v. New London, the Supreme Court decision that allows a city to force working class neighborhoods to sell out to developers.

A year ago, at a public hearing about New London, I saw a shaggy, bearded activist in Connecticut read what sounded like beat poetry about eminent domain. Rumor had it that Urban Outfitters was selling "Kelo" shirts.

Joking aside, now developers are taking advantage of the public opposition.

I wrote a couple weeks ago how one New York real-estate magnate paid $5 million to get a few eminent domain initiatives on the state ballot. Such initiatives are on the ballot in six states that if passed would cripple environmental land-use regulation, and cost the states billions of dollars.

Called pay-or-waive schemes, they require the government to compensate landowners for new regulations that devalue their property, or waive the regulations altogether. (In Oregon, which already has pay-or-waive, property owners in the past three months filed more than $5 billion in claims).

Here's a rundown of the initiatives by state, from the Sightline Institute:
http://sightline.org/research/sprawl/res_pubs/property-fairness/6-initiatives

Most of the 2006 ballot measures have two distinct components: 1) they outlaw “Kelo-style eminent domain,” in which a government condemns private property and hands it over to a private party; 2) they introduce a “pay-or-waive” scheme: when new laws or regulations reduce the value of private property, the government must either compensate landowners or waive the law.
WASHINGTON - INITIATIVE 933
Introduces a pay-or-waive scheme affecting both real and personal property, retroactive to at least 1996; and creates extensive new requirements for property impact assessments. 933 mentions eminent domain, but includes no language that would change current eminent domain policy.
Status: 933 contains few safeguards for health and safety, public nuisances, or applying federal law. The measure’s retroactive clause will almost certainly clog the state’s courts with lawsuits - a danger worsened by a provision that taxpayers pay legal fees for both sides, win or lose. Unique among the 2006 measures, 933 applies to both real estate and personal property (which includes stocks and bonds, contracts, vehicles, livestock, and much more). Two independent analyses from the state’s Office of Financial Management and the University of Washington estimate that 933 would cost taxpayers approximately $8 billion in compensation in the first several years after it became law (ii). Opposed by a broad cross-section of Washington organizations, including many farm groups.

CALIFORNIA - PROPOSITION 90
Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
Status: Opposed by a large and diverse array of California organizations, including the state’s Farm Bureau, Chamber of Commerce, NAACP, and police, fire, labor, conservation, and homeowner groups. If enacted, Proposition 90 is estimated to cost California taxpayers tens of billions of dollars.

IDAHO - PROPOSITION 2
Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
Status: Kelo-style eminent domain is already outlawed in Idaho. Local opponents warn that under Proposition 2’s pay-or-waive scheme recent community victories - such as a proposed coal-fired power plant near Burley, Idaho, which was turned away with broad populist support - could be overturned, with few rules or regulations remaining to protect local residents.

MONTANA - INITIATIVE 154
Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
Status: Struck down by the Montana courts in September, along with two companion measures, because signature-gatherers engaged in what the judge termed a “pervasive and general pattern and practice of deceit, fraud and procedural non-compliance.” The Montana decision may have a ripple effect in other states because many of the tactics used by signature-gatherers in Montana were used to put property measures on the ballot in the other Western states. As of early October 2006, the Montana Supreme Court had not yet ruled in the case.

OREGON - MEASURE 37
Introduced the nation’s first pay-or-waive scheme, retroactive for landowners who owned their property prior to the enactment of a regulation affecting their property’s value.
Status: Passed by voters in 2004. Key elements are still being litigated, but counties are actively granting waivers from land-use laws for Measure 37 claimants. There’s growing concern among Oregon’s residents that the measure goes too far in reducing protections for communities. As of August 2006, property owners had filed more than 2,200 claims totaling more than $5 billion.

ARIZONA - PROPOSITION 207
Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
Status: Opposed by the state’s conservation community, including the Grand Canyon chapter of the Sierra Club and other groups.

NEVADA - PISTOL
Outlaws Kelo-style eminent domain; and introduces a pay-or-waive scheme for new laws.
Status: The People’s Initiative to Stop the Taking of Our Land (PISTOL) was partially invalidated by the Nevada Supreme Court because it violates Nevada’s rule that initiatives may contain only a single subject. Only the Kelo-related portion will go before voters. Like Montana’s court decision, Nevada’s ruling may echo in the four other states where the property ballot measures contain both eminent domain reform and a pay-or-waive scheme.

Mother Jones Blog: http://www.motherjones.com/mojoblog

No need to clarify state's eminent domain with ballot Proposal 4: Bay City MI Times, 10/20/06

Editorial
Of all the misguided attempts on Nov. 7 to change Michigan's constitution, Proposal 4 takes the cake.

The ballot proposal is a knee-jerk reaction to a 2005 U.S. Supreme Court ruling involving eminent domain. The court ruled that the U.S. Constitution does not prevent governments from taking private property for private development.

It doesn't affect Michigan.

Our state constitution already defines eminent domain as the power of a government to take private property for a public use.

Yet, in case there is any confusion here about what is allowed, the Michigan Supreme Court settled the question even before the U.S. Supreme Court took it up.

In 2004, the state's highest court ruled that ''general economic development'' is not a ''public purpose'' suitable for the use of eminent domain.

On the issue of blight, Proposal 4 takes a gray area in the law and shades it a bit. The proposal still would allow governments to seize rundown private property for redevelopment, but would force cities to meet a higher standard in defining what is blight.

Those whose land is taken may not like the process, but eminent domain is supposed to be used for the greater public good.

In Michigan, it is.

Our Supreme Court says so.

Our constitution says so.

On Nov. 7, a ''no'' vote for Proposal 4 will say so, too.

Bay City MI Times: http://www.mlive.com/news/bctimes

Tracking eminent domain: Roanoke VA Times, 10/20/06

Norfolk Southern could use eminent domain to seize land for its proposed shipping yard
By Greg Esposito
Since announcing plans in June to build an $18 million intermodal shipping yard in Elliston, Norfolk Southern has faced criticism from local and state politicians and questions from concerned homeowners whose land makes up the proposed site.

The 50-acre site would include land owned by 10 families along U.S. 460 on the banks of the Roanoke River on the far eastern end of Montgomery County. While landowners have said Norfolk Southern has made it clear that it will use eminent domain to seize land if necessary, Gov. Tim Kaine and Del. David Nutter, R-Christiansburg, have spoken out against such a tactic.

With $12.8 million in state funds earmarked to go toward the site, Pierce Homer, Virginia's secretary of transportation, said the port won't receive any state funding unless the company convinces the state that no other site will work.

[The Roanoke Times interviewed Irene Leach for insights into the controversy.] Irene Leach is an associate professor of consumer studies at Virginia Tech and president of the Consumer Federation of America. She's followed several cases involving eminent domain both inside and outside Virginia during her 23 years at Virginia Tech. She lives in Ironto, about four miles from the proposed site.

Q: Most people think of eminent domain as something that the government can do. How is it that some private companies have the power to seize private property?

A: Companies, like railroads ... because of the needs that they serve, have historically been given this right.

Q: Has the definition of public use changed over the years? Can you shed some light on how it's defined?

A: Public use has over the years been looked at in a lot of different ways, and it's been the focus of a lot of research over time ... in making sure that it is a broad benefit. Over time that has been allowed to mean a broad variety of things. Part of where it's been looked at - the one that probably is in the front of people's minds right now --would be the Kelo decision up north where people's homes were taken so there could be something brought into the area that would bring in more money. There was a decision made that it would be better for the whole if those people lost their homes so that they could put in big high-rise hotels. The most recent eminent domain that I can think of in our area would be when they [Norfolk Southern] brought in the trash train [in 1992 through parts of Roanoke and Montgomery counties].

Q: Do different states interpret eminent domain differently? Where does Virginia fall in the spectrum?

A: That's where a lot of the action is right now, in how states interpret what that public use is. And Virginia, just like many of the other states, continues to have discussions about what it ought to be, how it should be done, and you look at the bills that have gone in the legislature the last 10 years or so. Each different year there's a number of different issues about eminent domain. I think it's one of those things where there's a continuing discussion and a continuing refinement ... and the federal government continues to look at it as well, so it's kind of a moving target in a way because we need it to be interpreted in so many different ways. Yet, the underlying piece is still the fact that we do allow some entities the right to condemn private property.

Q: From what you know about the situation in Eastern Montgomery County, is there any question that Norfolk Southern will be able to claim eminent domain if it comes down to that?

A: I'm afraid that they are going to be able to do that. The state has a goal of trying to get trucks off of Interstate 81, and I think that people beyond this area think that it is something that would be helpful for everyone. And so I'm very much afraid that the people of Eastern Montgomery County are going to have very little control over this when it really comes down to it.

Q: How is it determined if something like the intermodal port will be for the public good?

A: The courts make that decision if people are not willing to negotiate and agree to do that. But again, they'd be looking at the benefit of people in the broad sense, not just the people of the county or even the state.

Roanoke VA Times: http://www.roanoke.com

Eminent Domain ordinance tabled to delight of property owners: NA Today, North Arlington NJ, 10/20/06

An ordinance seeking to impose condemnation along Porete Avenue was tabled by the council majority at last night's [North Arlington] council meeting.

A standing room only, pro-Massa audience filled the council chamber to support the North Arlington Property Rights Coalition from being inflicted with the humiliation of a protracted condemnation process. Council President Phil Spanola chaired the meeting in Pitman's absence and the ordinance was removed from the agenda.

Ordinance #1968 was scheduled for a vote this evening, but the matter was tabled until the January, 2007 meeting of the Mayor & Council.

"The voters will choose a new mayor come November 7th. Once a new mayor is elected by the people, we can then decide on how to proceed," said Councilman Steve Tanelli.

Voters will also vote on November 7th to impose vast restrictions on the usage of eminent domain seizure. Should that referendum pass, any attempt to impose eminent domain in the future could be a moot point.

"We need private property protection from eminent domain. That's why I decided to get into this race. The people are tired of these developer tricks and scams. If I'm elected, eminent domain seizure for the purposes of filling the pockets of wealthy developers will not happen on my watch," said council challenger Al Granell, a former target of eminent domain earlier this year.

NA Today, North Arlington NJ: http://natoday.net

Eminent Domain and Takings: Living on Earth - National Public Radio, 10/20/06

Voters in four Western states will decide ballot initiatives next month that could profoundly change the regulation of private property. Host Jeff Young talks with Law Professor Jim Huffman about what that might mean for environmental protection and the ability to limit sprawling growth.

YOUNG: Congressional and state offices aren't the only things at stake this November.
Voters in Arizona, California, Idaho and Washington state will also decide ballot initiatives that could profoundly affect regulation of private property. Supporters say the new laws would protect property owners from government action that could take away or limit the use of land. They want to make government pay if a new regulation reduces property value. In legal jargon that's called "takings."

Others take aim at government's use of eminent domain—that's taking private property for public use. Here's part of an ad from supporters of the item on California's ballot. It's called Proposition 90.

AD SOUND: After 50 years in our home, the government tried to take it away from us. They call it eminent domain. Imagine, our government taking our home and giving it to a developer!

YOUNG: Opponents say the new laws could bankrupt governments, cripple environmental protections, and bring more sprawling development. Here's an ad they're running in California:

AD SOUND: But it's opposed by police, firefighters, environmentalists, business, labor, and taxpayers. More than 200 groups throughout California. Join them and vote no on 90. It's a taxpayer trap.

YOUNG: We've asked an expert in constitutional and natural resource law to help us make some sense of this heated and often confusing debate. Jim Huffman is former Dean of the Lewis and Clark Law School, in Portland, Oregon.

Professor Huffman, thanks for joining us.

HUFFMAN: It's my pleasure.

YOUNG: Professor Huffman, would these initiatives affect the ability of a state or local government to regulate to protect the environment?

HUFFMAN: Absolutely. They will have limiting effects on all kinds of regulation if that regulation impacts on property.

YOUNG: And how does that work? What's the mechanism at play here?

HUFFMAN: Well, for example, if you had a law that was designed to protect endangered species, and a part of that regulation, the impact was that private property owners could not do certain things on their property that might impact on the endangered species, these measures presumably would require the government to pay for that diminished value that resulted from that regulation.

YOUNG: To make sure I understand this, so a state or local government would essentially be looking at a pretty high price tag in order to enforce the laws that are on the books?

HUFFMAN: That's right. Although there's a wide array of estimates that are made as to what it would cost. Here in Oregon we have such a measure, a compensation takings measure. So far, it doesn't appear that that measure is having as widespread an impact as it was anticipated. I think there's been about 3,000 claims filed. And the reality of it is, under the Oregon measure, that the government's not paying anything because they have the alternative of waiving the regulation. That is not true in all of these pending measures. Some of them don't give the government the option of waiving the regulation, which means they would have to come up with the money to pay for the diminished property value. And that could be very significant.

YOUNG: Apparently, as I understand it, part of the appeal of these initiatives for those signing the petitions, and, presumably, for those who might vote for them, is because of the interest in a recent Supreme Court case, a pretty high profile case from Connecticut that had to do with eminent domain. What role is that playing in these ballot initiatives' battles out west?

HUFFMAN: Well, I think that that case, it was called Kelo against New London, Connecticut, I think that it has been a real stimulus for a focus on property rights. The Kelo case was about the use of eminent domain and that is what's gotten the juices flowing politically. And it has, in all of these states, they have then piggybacked with that, the compensation measure which I think is much more significant, much more aggressive. So I think it has muddied the waters. And although they are both about property rights, they're very different concerns with very different support groups, I think.

YOUNG: What I hear from the opponents to these initiatives is they see something a little more sinister at play in the scenarios you're describing here. They see a kind of a larger effort to pretty much dismantle the regulatory mechanism. Do you see something like that at play here?

HUFFMAN: Well, I think that's part of what's at play. The interest groups supporting this, I think, are basically anti-regulation interest groups. But I think what has gotten this thing off the ground and made it a cause that's been picked up all across the country is the concern about individual property owners. I think those facts in the Kelo case are what really what got this ball rolling. So I don't think...I think it's a mistake to conclude that this is all about a sort of a national top-down conspiracy to limit regulation. It's partly that, but I don't think we would be in the position we are in with these measures having a fair probability of passing, if there weren't this grassroots concern among individual property owners that, but for the grace of God, there go I into this regulatory pit and lose the value in my property.

YOUNG: If these ballot initiatives do have some success come November, do you think we're going to see more of these? Is this the start of a trend here?

HUFFMAN: I think so. I've watched the property rights movement for 25-30 years and I would say they're on a high right now and I think they won't stop with this.

YOUNG: Well, thanks for speaking with us today, Professor Huffman. Professor Huffman is former Dean of Lewis and Clark Law School and an expert in constitutional law and natural resource law. Thanks again.

HUFFMAN: You're very welcome.

Living on Earth - National Public Radio: http://www.loe.org

City's eminent domain petition OK'd: Princeton MN Union-Eagle, 10/19/06

By Joel Stottrup
Mille Lacs County District Court Judge Steve Ruble has ruled in favor of the city of Princeton in the city’s petition to proceed with eminent domain to acquire land for extending city sewer and water mains to the west.

The city has mains extended now to the Rivertown Crossing development area bounded by Highway 95 on the north, First Street on the south, Pine Loft Road (21st Avenue) on the west and Highway 169 on the east.

The city’s plan is to extend the mains just under 4,000 feet farther west.

The driving force originally to extend the mains was the proposed Heritage Village housing development.

Solid Ground, the development company, had proposed building more than 500 housing units at Heritage Village but early this year the plan went into hibernation.

The approximately 200-acre site of that proposal was west of where First Street curves to the north, and west of County Road 3 going south of First Street.

But there is still development potential before even getting that far west. Robert Soule, and Mike Williams, to name a couple of landowners, have land west of the Pine Loft Road axis and east of where First Street turns north.

Ten parcels would be affected by eminent domain, which is the forcing of people to sell their land.

Parcels 1-3 are listed under Robert W. and Madelyn N. Soule.

Parcel 4 is listed under New Life Christian Center, Peoples Bank of Commerce, and United Power Association.

Parcel 5 is listed under Scott J. and Paula J. Schmidt, Paul C. and Susan G. Walker, and Matthew Walker, and Sherburne State Bank.

Robert M. and Shearon D. Pontious and Peoples Bank of Commerce have parcel 6.

Michael F. and Toni J. Williams have parcel 7. Jane E. Odgers and Bank of America have parcel 9.

Parcel 10 is listed as 3K limited liability partnership, Woodlands National Bank; Frank D. Simon Jr., and Carol Simon; Dinner at Five, Inc.

Gale D. and Dennis M. Hatch have parcel 11.

The findings by Judge Ruble, from the Seventh Judicial District, were that an environmental assessment worksheet (EAW) is not needed for the utility extensions.

This was based on the calculation that even if the 869 acres where the mains would go were fully developed as industrial, the average daily flow of sewage would be 869,000 gallons.

That is well short of the 1 million gallons per day that would trigger an EAW, the court found.

At least one attorney claimed during the June 28 eminent domain hearing this year that the city had not chosen the best route for the extension.

The court agreed with consulting engineer Mike Nielson’s response during the June 28 hearing that the city’s route choice is a “reasonable exercise of municipal authority.”

The court also found that during the past several years the city received requests for city utilities regarding more than half the parcels abutting what the extension would be. Those requests could not be accommodated without city sewer and water, the court found.

Testimony cited
The court findings noted City Council member Lee Steinbrecher’s testimony that a few days before the hearing he had spent most of the day talking to developers for a “big box” retail store about parcel 1. City sewer and water would be needed to make that happen, Steinbrecher had said.

The court findings state that city utilities have to be in place in advance of someone wanting to locate on parcels.

The court also stated that the city “experienced loss of” the Heritage Village development that had been proposed due to the city’s “failure to have these public utilities immediately available.”

The court also pointed to the council’s resolution this past July 12 to proceed immediately with the utility extension. The court said the proposed taking of the needed land for the extension is necessary.

The only thing the court found lacking in the city’s plan was that its planning commission had not reviewed the proposed acquisition and submitted written findings that the utility extension comply with the city’s comprehensive plan.

The planning commission met last Thursday and submitted the written statement that the extension project would comply with the comprehensive plan.

City Attorney Richard Schieffer told the City Council last Thursday that it is “unusual” to have as much as five to six hours of testimony and two hearings for an eminent domain petition, as happened in this case.

He noted that if either side is dissatisfied with the district court’s decision, they can appeal to district court for a jury hearing.

The council passed two motions last Thursday relating to the eminent domain decision. One was to accept the planning commission’s finding that the proposed utility extension is compatible with the comprehensive plan.

The other was to have a feasibility study done for the project.

The court will have to appoint three commissioners to ascertain and report the amount of money or damages the city will be liable to pay for the taking of land for the utility extension.

The determination of the cost must be made no later than 90 days from the date the commissioners are appointed.

The commissioners are to each be paid $200 per day and 45 cents per mile, and reasonable compensation for meals. Schieffer told the council the city has to pay those costs.

Princeton MN Union-Eagle: http://www.unioneagle.com

Foes look to states to curb taking of property: Asbury Park NJ Press, 10/22/06

By Bill Bowman
When it comes to governments' power to seize private property for other uses, Lori Ann Vendetti says she believes two things: First, some governments abuse that power. And second, a solution to that problem must be found quickly.

But Vendetti, like other Shore area residents involved in the issue, isn't necessarily looking to Washington for that solution. At least not yet.

Vendetti, who owns a home on Ocean Terrace in Long Branch — across the street from her parents — counts herself among those in the movement to end eminent domain abuses who believe the most efficient way to achieve their goal is at the state level.

That, she said, could be either through legislation or an amendment to the state Constitution.

"My ultimate thing would be to have a constitutional amendment on eminent domain," she said. "That's what my goal is going to be this year, but that's a pretty tall order."

A federal-level bill, Vendetti added, may be too broadly written and take too much time to implement to be of any help to her and her neighbors facing the prospect of Long Branch taking their properties for the beachfront north redevelopment.

Of the many issues that have been incorporated into campaign platforms by candidates running in the upcoming congressional elections, eminent domain abuse is perhaps the one that has attached to it the most emotion.

A Monmouth University/Gannett New Jersey Poll released last year showed overwhelming majorities of state residents opposed to the practice of taking properties and selling them to commercial developers.

The ruling last year by the U.S. Supreme Court in Kelo v. New London, in which the court affirmed a government's ability to seize private property for private development, energized those in the anti-eminent domain movement. Politicians of every stripe and at every level voiced their displeasure with the ruling, and 30 state legislatures passed laws limiting the use of eminent domain. Another 11 states have similar measures on ballots this November.

Federal legislation has been slower to come about. The House of Representatives in November 2005 overwhelmingly passed the Private Property Rights Protection Act of 2005. Republican Reps. Christopher H. Smith and H. James Saxton and Democratic Reps. Frank J. Pallone Jr. and Rush D. Holt all voted for the bill.

But the bill, which would deny federal funding for any town found to be abusing its eminent domain powers, hit a wall in the U.S. Senate, where it now languishes in the Judiciary Committee.

A similar bill introduced by Sen. James Inhofe, R-Okla., was designed to bypass the judiciary committee, but Senate Majority Leader Bill Frist, R-Tenn., has refused to allow a vote, according to the Washington-based Castle Coalition.

It's that kind of politicking that leads Shore residents such as Denise Hoagland of Long Branch to focus their efforts on Trenton. Hoagland, who owns a home on Ocean Terrace, and several of her neighbors in the Marine Terrace, Ocean Terrace and Seaview Terrace neighborhood, are fighting the city's efforts to seize their homes for the beachfront redevelopment project.

"Do I think a federal bill would help? Sure, if it was actually acted upon and actually put to use," she said.

"I just don't think that (federal legislation) would help for New Jersey and any eminent domain cases that are happening right now."

Long Branch is not the only Shore town where the specter of eminent domain is riling residents. Asbury Park's City Council may vote to use it to further the long-awaited waterfront redevelopment projects, and projects in Neptune's Midtown section and Neptune City's industrial area are also potential candidates for official condemnation actions.

Neptune resident Dorothy Argyros has been a vocal opponent of any type of eminent domain since she lost her home several years ago for a state highway widening. She said federal legislation would be a good thing.

"Everything that can be done should be done," she said, but she wants Gov. Corzine to first issue a moratorium on the use of eminent domain until efforts to control its use can be finalized.

She said she is "very disappointed that Corzine, who promised that once he got in office, by executive order would establish a moratorium until such time as the situation could be studied, has now forgotten about that and he's not keeping his promise."

Joe Galiani is a Neptune City resident who left his job at Park Steel & Iron because he felt the borough was going to take the Evergreen Avenue plant in its effort to redevelop the general Steiner Avenue area.

Galiani, an outspoken critic of the borough's plan, said he doesn't believe any politician wants to curb the use of eminent domain.

"I would think both parties would be out to screw the American people over," he said.

Corlies Chong of Neptune City has supported the borough's Steiner Avenue area redevelopment effort. He acknowledged that there are abuses, but, he said, they should be dealt with at the state level.

"I support anything that keeps the property owner as whole as possible," he said. "But I think that's something that frankly has to come on a state level rather than the federal level. I think from the federal level, it's just such a broad stroke. States are different, towns are different, situations are different."

Asbury Park NJ Press: www.app.com

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