The eminent domain debates: Madison County News, Jefferson GA, 3/8/07

Legislation could give pipeline companies more authority to take private land

By Zach Mitcham
Four out of five Georgia state senators want to make it easier for petroleum pipeline companies to seize private property through eminent domain, a move they say is simply practical planning for growth, a way to ensure that Georgia has enough access to oil.

But critics say legislators who support the bill are simply putting citizens’ private property rights aside and bowing down to the powerful oil lobby.

Two major petroleum pipelines traverse Madison County: Colonial Pipeline and Plantation Pipeline.

Colonial Pipeline has acknowledged plans to run a 500-mile pipeline from Baton Rouge to holding tanks in Cobb County. This expansion project would, of course, occur west of Madison County.

Madison County’s State Senator Ralph Hudgens, who will leave his post after this legislative session to seek Georgia’s 10th District seat in the U.S. Congress, was among those voting in favor of the bill, which passed the senate by a 43-11 vote on March 1.

“Colonial Pipeline explained to me that they are at their capacity and all this (legislation) will do is allow them to put a third pipeline in their existing right of way that they have,” said Hudgens, adding that the expansion will help Colonial serve the Atlanta airport with necessary jet fuel. “It’s primarily for the airport.”

So could the legislation ultimately pave the way for easier seizure of property in Madison County if the petroleum companies eventually choose to run additional lines through the county?

Hudgens said he was assured by Colonial executive Sam Whitehead that this is not the pipeline company’s intent in pushing for the legislation.

“Sam Whitehead knows that I represent Madison County and he came to me on the Senate floor and said that this piece of legislation will not do anything in Madison County and won’t allow us to do anything in Madison County,” said Hudgens. “This is strictly for this pipeline coming out of Louisiana into Powder Springs.”

Hudgens said that restrictions were tightened on pipelines in the ‘80s due to political pressure from south Georgia plantation owners on the General Assembly. The current bill would relax some of those restrictions.

“In the 1980s there was an attempt to put a pipeline down in south Georgia to hook up to another pipeline and some of those big plantation owners in Thomas County started fighting this and they had enough political clout to go and get the General Assembly to put some legislation together to cause it to be impossible to put the pipeline in,” said Hudgens. “This (current bill) will take out some of those provisions that were passed back then. They had to take the provisions out of the existing codes in order to do this (expand from Louisiana to Cobb County).”

House Representative Alan Powell, who represents Madison County, said that he is not in favor of the senate bill.

“It would also allow pipeline companies to expand up to two miles outside their current easements,” wrote Powell in a column about the legislation published in last week’s Journal. “This bill appears expand the ability to condemn private property, and I am among many who are concerned it would lead to further improper use of eminent domain.”

Before it can be put into law, Senate Bill 173 must ultimately passed by the House and signed into law by the Governor.

Those favoring the move said it’s a simple matter. The state is growing. The state needs more oil. Proponents note that in the past 12 years the state’s population has grown from seven to 10 million. And more growth is expected.

“Now these next millions of people coming to Georgia — they ain’t going to be riding bicycles,” said Sen. John Bulloch, as quoted in the March 4 Thomasville Times. “We’ve got to have additional petroleum products in this state. The cheapest way to move them and the safest way to move them is through a pipeline.”

But critics say Georgians shouldn’t be eager to “give pipeline companies a blank check to condemn private property” in the state.

Georgia political columnist Bill Shipp said that “protection of private property rights from eminent domain takeovers” used to be a “bedrock tenet” of Republicans. He said the GOP is forsaking that old-time principle with the pipeline bill.

“The measure eliminates the current requirement that a pipeline company must show ‘public necessity’ to exercise eminent domain for a new or expanded facility,” wrote Shipp this week in a column titled “Return of the pipeline monster (see Page 4A). “…We Georgians are the shocked good guys about to be throttled. We thought we had driven a stake into the heart of the pipeline vampire. Alas, we failed. Senate Bill 173, which would effectively give pipeline companies a blank check to condemn private property in Georgia, is riding a cash-greased rail to becoming law.”

Colonial Pipeline has faced national attention for leaks along its lines. The company was fined $34 million in recent years by the federal government for spilling 1.45 million gallons of oil from its 5,500 mile pipeline in five states.

There have been spills locally, too. Colonial admits to six spills at its booster station just south of Danielsville off Colbert Grove Church Road between 1966-79. Contaminated residential drinking water was discovered in the area in the mid 1990s. The company provided $950,000 for a water line from Madico Park to the contaminant zone.

A group of Colbert Grove area residents has been meeting monthly for more than a year to discuss the spills, the company and issues related to pipeline safety. That group, Citizens Organized for Pipeline Safety (COPS), plans to meet again Thursday night at 6:30 p.m. at Colbert Grove Baptist Church.

Colbert Grove Church Road property owner Richard Bennett, an outspoken critic of Colonial Pipeline, said the senate’s legislation to assist Colonial is atrocious.

“More lies from Colonial Pipeline backed by mostly Republicans who have been bought and sold by the oil industry,” said Bennett. “Same old, same old.”

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Madison County News, Jefferson GA: http://www.mainstreetnews.com

Kean calls for end to eminent domain abuse: Long Branch NJ Atlanticville, 3/8/07

Assemblyman Sean T. Kean (R-11) called for changes in the state's eminent domain laws - including a more rigorous standard for property condemnation - at a town meeting in Long Branch last week.

Kean hosted a town meeting Feb. 28 as part of an initiative to hold town meetings in each of the 25 municipalities in the 11th District.

The meeting was Kean's second town meeting in Long Branch.

According to a press release from his legislative office, Kean said the eminent domain statutes must ensure that the power of eminent domain is not abused.

"By carefully redefining the use of eminent domain and where it can be applied, we can end the practice of using eminent domain to seize homes that are not negatively impacting the community," he said in the press release.

Kean's remarks came in response to many questions from the audience concerning the city's use of eminent domain.

He stated at the meeting that legislation he has proposed would help to protect private property owners by requiring the municipality to determine that the property is detrimental to the health, safety or welfare of its residents in order for it to be condemned, according to the release.

"My legislation would propose a constitutional amendment that requires private property in a blighted area must be determined to be detrimental to the health, safety or welfare of its residents before it can be condemned for development or redevelopment purposes," he said in the release.

"If this legislation were enacted and approved by the voters, peoples' homes could not be taken simply because they are located in a redevelopment zone."

In addition to eminent domain, members of the audience inquired about Kean's view on the Long Branch Urban Enterprise Zone (UEZ).

Kean said he believes the UEZ program is a success and he is committed to working to keep the UEZ program operating.

"The Urban Enterprise Zone program is helping communities like Long Branch to stimulate business," he said, adding, "It would definitely negatively impact the businesses in Long Branch and Asbury Park if the UEZ program is eliminated."

Other issues addressed included the lack of affordable housing in Monmouth County, the governor's recently announced budget, homeowners insurance and proposals to reduce state property taxes.

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Long Branch NJ Atlanticville: http://atlanticville.gmnews.com

Legislators tackle eminent domain reform: Stamford CT Advocate, 3/8/07

By Brian Lockhart
[Connecticut] Legislators last night resumed grappling with an issue that consumed much of last year's state General Assembly session - eminent domain reform.

The legislature's joint Planning and Development Committee held its first public hearing last night on two bills aimed at reforming existing state laws. One was generated by the committee, another by Republican Gov. M. Jodi Rell.

Originally scheduled for 2 p.m., the hearing was delayed until about 6 p.m. because of lengthy House and Senate sessions.

"I think we're expected to get something through," state Rep. Gerald Fox III, D-Stamford, a committee member, said afterward. "And I believe we will."

Eminent domain reform became a priority in 2005 after the U.S. Supreme Court ruled that New London could take homes in the Fort Trumbull neighborhood to make way for a waterfront project slated to include condominiums, a hotel and office space.

But legislators did not reach an agreement in the 2006 session. This year, the eminent domain rhetoric has been replaced by Democrats' and Republicans' calls to reform state energy, health care and education policies.

"This has been too slow a process," Tim Calnen, a lobbyist from the Connecticut Association of Realtors, told the committee last night.

Calnen said association members and the public have become more cynical about whether the state would ever act.

"Is anyone listening?" he said.

The Planning and Development Committee did for three hours last night, receiving testimony from more than a dozen people, including residents from throughout the state whose families had lost property to eminent domain; the Farm Bureau Association; a representative of the state Office of Policy and Management, speaking in support of Rell's bill; and a representative of the Connecticut Conference of Municipalities.

And additional bills are coming. State Sen. Andrew McDonald, D-Stamford, said yesterday that the Judiciary Committee, of which he is co-chairman, will send legislation of its own to a hearing late this month. Fox also is on the Judiciary Committee.

"This must be the year we finally resolve this issue for Connecticut residents," Rell said in a statement yesterday.

The governor has proposed requiring municipalities to integrate private properties into their plans when feasible and making towns and cities prove that the use of eminent domain is "reasonably necessary" to accomplish redevelopment goals.

She also wants property owners compensated 125 percent of fair-market value and seeks a two-thirds or "super-majority" vote of the governing body or town meeting to approve a property seizure by a municipality.

The Planning and Development Committee bill also calls for public hearings on each proposed seizure.

Calnen suggested that the legislature should go a step further and also require a committee of "disinterested citizens" be established in a municipality contemplating eminent domain condemnation to review government actions.

Many members of the public yesterday urged legislators to go as far as possible to ensure their homes cannot be seized for economic development.

"Most of us who have been through it feel you don't take from us to give to someone else to use," said Mike Dudko, who in 2000 lost 40 acres his family had owned for years to Bristol for an industrial park.

But Ron Thomas, the Connecticut Conference of Municipalities' manager of state and federal relations, urged caution.

Thomas said it is worth reexamining the definition of "just compensation . . . to recognize the social and sentimental value of the property" beyond market value.

But he said if the state does decide to compensate businesses for "loss of good will" if they relocate, the burden of proof must be on the business, using "independent expert testimony on the effect the dislocation is likely to have."

Thomas said CCM is also concerned with a section of the Planning and Development Committee bill that would prohibit the taking of any properties that have tenants and that comply with local building and zoning requirements.

Thomas said the provision allows one individual to hold up an economic development project.

State Reps. Craig Miner, R-Litchfield, and Vincent Candelora, R-North Branford, committee members, said the legislature at some point needs to say a resident's home cannot be taken for economic development.

"There should be a floor of property rights we're willing to protect," Candelora said.

Thomas said CCM backs reforms, but the General Assembly also needs to have faith in municipal governments to make the right decisions.

"We know these decisions are extremely difficult," Thomas said. "The prospect of having your home taken away is very disturbing."

Dudko, who attended public hearings on eminent domain reform last session, said he had more faith the Judiciary Committee would take action this year. And he plans to keep testifying.

"It's all over for my family, but I'm still here," he said. "I want to see a change. I want citizens rights protected."

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Stamford CT Advocate: http://www.stamfordadvocate.com

Exeter votes to take farm by eminent domain: Southern Berks News, Boyertown PA, 3/8/07

Exeter [PA] Township School Board members cited onerous negotiations and a costly time extension when they voted 7-0 last week to take farmland by eminent domain in order to build new elementary schools.

In 2005, the district offered to buy 110 acres of Jordan Baucher's farm, which spans the length of Ritters Road between Route 562 and Oley Turnpike Road, for $3.7 million.

The offer was contingent upon approval to build up to three elementary schools. When the agreement expired, an extension cost the district $100,000.

Board President Ken Levan said board members Ken Hart and Robert Quinter had been at a closed session prior to the vote, but other obligations forced them to be absent from the meeting.

After the plan to build one school received township approval, the Concerned Citizens of Exeter Township successfully challenged the decision. Berks Judge Scott E. Lash ruled that the plans were incomplete.

The district is currently appealing that decision.

"It is my understanding that we submit the eminent domain papers, the Baushers have an opportunity to challenge it, and a third party determines the fair market for the property," Exeter Superintendent Dr. Nicholas Corbo said.

He noted the process will take time, citing the Reading Country Club as an example.
"And that's been going on for over a year now," he said.

Corbo reiterated that the school board believes the Bausher farm is the best location for the three schools needed to accomodate growing elementary student populations.

Corbo said the plan is to open the doors to the first school in 2009.

"This is the best-case scenario when everything goes smoothly," Levan said.
"But if things don't go exactly as planned, it will be 2010," Corbo said.

To keep the planning process moving forward, the board heard a report from Gary Bannon of EI Associates, Harrisburg, the district's architect.

Bannon said he has been touring similar school projects in the area, including the new Twin Valley Elementary School in Elverson.

As a result of increasing fuel costs, Bannon said he expects construction costs to rise at a rate of 8 percent a year, which would mean an additional $120,000 a month or $1.5 million a year for Exeter.

"That's the kind of numbers you have to add to your project," he said
"So the lawsuit is costing the Exeter Township taxpayers about $100,000 per month," board member Dr. David Bender said.

Jill Skaist, a member of the Concerned Citizens of Exeter Township, said the reason for the delay is not her organization's fault.

She laid blame on the district's architect because the courts through out the original application due to its deficiencies.

"Their architect should pay restitution," she said.

Corbo said the district is bringing in a relocatable class room to relieve overcrowding, calling this another financial cost forced by the lawsuit.

"We're in the process of having a doublewide relocatable classroom building delivered to Jacksonwald,"Corbo said. "That's in the budget."

The temporary building should be in place by August in time for the beginning of the 2007-08 school year.

As district growth continues with no new building in place, Corbo said, it is possible there might be a need for more relocatable buildings.

"The Jacksonwald buildings will get us though next year," he said. "Then it's a good possibility next year this time we'll be doing it again."

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Southern Berks News, Boyertown PA: http://www.berksmontnews.com

Committee wrapping up eminent domain legislation: WIS-TV10, Columbia SC, 3/7/07

A committee is putting the final touches on legislation that would change how [South Carolina] state and local governments can take property from landowners.

Only a handful of state agencies like school districts, the Transportation Department and the Ports Authority would be allowed to take land without state approval, under the proposals, which are expected to be finished by the end of the month.

Local governments would have to have permission from a city or county council before using the power of eminent domain.

A committee of lawmakers and appointees from the governor have been hearing testimony about the bills this session after 86 percent of voters passed a constitutional amendment in November limiting the ability of governments to take land.

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WIS-TV10, Columbia SC: http://www.wistv.com

Eminent domain process on hold: Glens Falls NY Post-Star, 3/8/07

Corinth Village, Philmet consider deal on former paper plant
By Charles Fiegl
The village of Corinth [NY] is close to an agreement that will end its pursuit to take a former International Paper Co. mill by eminent domain, according to a proposal discussed on Wednesday.

In exchange for dropping the condemnation, the owners of the mill property, Philmet Capital Group, would agree to prohibit industries related to trash and construction debris from operating at the 300-acre Corinth Mills Industrial Park. Industrial waste, however, would not be restricted.

"By (March) 21st, I want this put to bed," village of Corinth Trustee Leigh Lescault said. "I will ask to put this to a vote on the 21st."

About 100 residents attended a village Board of Trustees meeting Wednesday at which details of the proposed agreement were announced by Paul Levine, an attorney from the firm Lemery Greisler, representing the village.

Levine explained Philmet, the village and the town would sign a deed declaration banning municipal solid waste and construction debris industries from the site forever. The property owner would be restricted by the covenant unless it was released from it by the village and town.

The village had asked for industrial waste to be prohibited as well, but representatives for Philmet refused.

"We got two out of three," Levine said. "We can't get industrial waste; they won't give it to us."

The sides are also working on agreeing to a site proposal that would include upgrading the mill's power plant and constructing a 12,000-square-foot building that will be used to manufacture plastic dinnerware, Levine said.

The International Paper mill had produced paper for more than a century before it closed in 2002. Local residents have been concerned about the future of the mill since it closed and have fought against proposals that would bring a trash industry to their community.

In November, the village initiated the eminent domain process. In December, the municipality and Philmet began discussions to avoid the proceeding and answer the village's concerns.

The village Board of Trustees said it would like to move forward with the agreement soon, given nearly $60,000 in attorney fees mounting for the situation. Mayor Bradley Winslow has invited residents to continue submitting their comments on the proposal.

Corinth resident Barbara Weatherwax, who has rallied against trash being imported to the village, said the village would not gain anything under the proposed agreement if industrial waste is not prohibited.

John D'Alessandro, spokesman for the industrial park, said the proposed agreement would not permit industrial waste to be used as an energy source for the power plant. Gas, coal and wood are permitted, he said.

The company does not want to ban industrial waste because the definition is too broad, D'Alessandro said.

"Our goal is to have multiple tenants at the park," D'Alessandro said. "In order to be able to attract tenants, we can't sign a document that locks everything out for us.

"The definition for industrial waste is extremely broad, and what might be industrial waste for one company might be useful to others," D'Alessandro said.

Philmet is ready to sign the agreement, he added.

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Glens Falls NY Post-Star: http://www.poststar.com

Overcorrecting on eminent domain: Roanoke VA Times, 3/7/07

Editorial
The [Virginia] General Assembly went too far in its attempt to rein in expansive powers to seize property after the U.S. Supreme Court's Kelo decision.

The General Assembly overreacted to a U.S. Supreme Court decision that unreasonably expanded eminent domain powers.

A bill on its way to Gov. Tim Kaine's desk goes too far in restricting those powers.

Eminent domain - taking a citizen's property, even with just compensation required - is one of the most intrusive powers granted to government by the U.S. Constitution (behind only imprisonment and execution).

The Constitution limited the exercise of this power to instances when private property was needed for a "public use." But it didn't take long for the definition of public use to broaden, and court decisions soon began using the phrase, "public purpose."

Eminent domain has been approved for private developments that might improve blighted areas or some other broad public benefit and not just projects such as roads, bridges or schools actually used by the public.

Then, in 2005, the U.S. Supreme Court took it even further, ruling in the infamous Kelo decision that government could take private property from unwilling sellers for the sole purpose of economic development.

The "public purpose" now included generating more tax revenue.

As former Justice Sandra Day O'Connor wrote in her impassioned dissent, "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded - i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public - in the process."

This year, the Virginia General Assembly passed a bill to rein in those powers - but it overcorrected, restricting the ability of local governments to resort to eminent domain in ways that genuinely serve a public good.

The bill strictly defines public uses as things such as parks, public buildings and infrastructure.

There is a provision to use eminent domain to eliminate blighted property, but only if the property being taken is blighted itself, not just in a blighted area.

Originally, the Senate passed a bill that would have allowed governments to seize property in an area where 85 percent of the property is blighted. The House rejected that amendment.

But to make some redevelopment projects work, it is occasionally necessary to assemble large tracts of land, which could necessitate taking scattered properties within a parcel that aren't necessarily blighted. If local governments are stripped of eminent domain authority, a lone holdout could stop an entire project in its tracks.

Gov. Kaine should amend the legislation to reflect the more reasonable Senate language.

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

Eminent domain closed? Bridgeton NJ News, 3/7/07

By Jaime Marine
[Millville NJ] City commission will not adopt an ordinance banning the use of eminent domain.

Those were the words of Vice Mayor Joe Derella Tuesday night as he addressed recent concerns over the redevelopment tool and a petition submitted by watchdog group Millville First on Feb. 20.

The petition asked commissioners to pass an ordinance banning eminent domain for the benefit of a private developer or private development.

"Despite the vocal support for eminent domain by residents of our Center City neighborhoods, we have stated that we will not take a single-family house for private development," Derella said. "Eminent domain is an emotional topic.

"Select an emotional topic, wave the flag of fear and then point the finger of blame. That is what occurs when someone wants to play politics or has a personal agenda."

To finalize their position on the petition, signed by over 1,100 voters, the commission passed a resolution stating the proposed ordinance is not subject to initiative, the city clerk does not have to verify the signatures, and that the redevelopment process is not subject to ordinance through voter initiative.

The vice mayor cited a project 40 years ago which proposed the city acquire a 15.5-acre tract of land in the Middle Avenue-West Main Street area.

Known as the Riverview Redevelopment project, it displaced 57 families, 14 single individuals and eight businesses in an attempt to help rebuild and revitalize the most congested and decayed city areas, he said. The city had the responsibility to relocate the families and businesses into suitable locations.

During this project, William Shaw was the mayor and Paul Porreca, now a member of Millville First, was the commissioner of revenue and finance.

"You can look out of the windows of the commission chamber and see the riverview redevelopment project, a great example of private, public and commercial results," Derella said. "Similar to the Riverview Development project, the Union Lake Crossing Project required the acquisition of seven privately-owned properties.

"Unfortunately, after several months of negotiations, two properties were taken by eminent domain. One property, the animal clinic eventually came to terms and was not taken through eminent domain."

He noted Dr. Harold Blumenthal received two times the assessed value of his property and has been relocated to Sharp Street. The other property condemned was the site of a billboard.

"Similar to the Riverview Development Project, Union Lake Crossing will generate $22 million in tax revenue over 15 years vs. the $1.5 million that would have been generated by the seven existing businesses over the same period," he said. "This commission can only hope that Union Lake Crossing can be considered a successful project after 40 years."

Millville First President Emil Van Hook had questioned why the city couldn't pass their ordinance banning eminent domain after it passed what he said were similar ones for the motorsports park and single-family, owner-occupied homes.

Derella said these are all different situations.

"Once a redevelopment project has been completed in a particular area of a designated redevelopment area, the enhanced power of eminent domain provided by state constitution and statutes no longer exists, because that blight in that particular area has been eliminated," he said. "That is why state statute requires this language be incorporated in a municipal development agreement."

When contacted after the meeting, Van Hook said the group is not ruling out the possibility of legal action.

He said commissioners have still failed to address eminent domain in respect to privately owned businesses or other types of properties, aside from single-family, owner-occupied homes.

Van Hook said the city could still hold a non-binding referendum to see how the people feel about the issue.

Porreca said while he considers the issue closed, he took exception to the comment about personal and political agendas.

He said he is not running for office and was only concerned about the community and how things are done.

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

City may use eminent domain: Victorville CA Daily Press, 3/7/07

Nisqualli Road property owner is holding out on 1,800 square feet
By Tatiana Prophet
The city [of Victorville] is using eminent domain as "last resort" measure to capture a slice of turf along Nisqualli Road that would be needed to widen the thoroughfare.

In a unanimous vote Tuesday night, City Council members voted to take a roughly 1,800-square-foot piece of a half-acre lot at the northeast corner of Nisqualli Road and Seventh Avenue, which would be used to build a drain, sidewalk and street signal.

So far, owner Rodolfo Padilla has not responded to city overtures to buy the land, officials said.

"To refresh everybody's memory, the policy of this city has been that we would only consider eminent domain as a last, last resort," Mayor Terry Caldwell said before the vote.

To alleviate traffic, the city has been planning to build an interchange at Interstate 15 and Nisqualli Road for more than six years. It took the Federal Highway Administration four years to sign off the project, and the city just awarded a bid for Phase I of the project on Tuesday night.

After hiring a private appraiser to put a value on the land, the city has gone back and forth with the property owner and still has not reached an agreement on the land, said Deputy City Attorney Bill Medlen. The amounts negotiated are not public record.

"Out of the 70 parcels they needed for this road widening, this was the only one they were not able to settle with," he said.

Padilla did not claim his right to a public hearing and did not show up at the council meeting, which is required by law before the use of eminent domain. Attempts to locate him for comment were unsuccessful.

Taking property by eminent domain is an action that goes through the courts. If the owner chooses to appeal the action, the matter could conceivably reach a higher court, said Steven Frates, a senior fellow at the Rose Institute of State and Local Government at Claremont McKenna College.

"If there's a legal shootout, it could have implications," Frates said.

He added the landmark Kelo vs. City of New London case, in which the Supreme Court ruled that eminent domain could be used for redevelopment purposes, went all the way to the highest court because a woman decided she simply did not want to give up her house.

But Medlen pointed out that in the Padilla case, the use of eminent domain remains squarely for public benefit.

"The city wants to widen a road because everyone knows there's too much traffic on B.V., right?" he said. "And we have a situation where we've settled with 70 people and one person wants to hold out. So what do we do? We hold up a street widening because one person doesn't want to settle?"

Before the council vote, City Manager Jon Roberts seemed perplexed as to why a property owner would resist the improvement.

"If the parcel of land were to be developed privately, (the owner) would need to dedicate this portion to the city at no cost," Robert said, referring to the sidewalk and signal. "I think anyone in the industry would probably concur that the remaining parcel would increase in value once the improvements were made."

The taxable value of the land is listed with the assessor's office at $51,000, which translates to about $2.34 per square foot. Assessed values can be lower than appraisal values, especially if the property has not changed hands in a while.

According to tax records, Padilla bought the property in 2005, after which the assessed value jumped from $18,290 to $50,000.

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Victorville CA Daily Press: http://www.vvdailypress.com

City uses eminent domain for first time in 16 years: Gillette WY News-Record, 3/7/07

By Christa Meland
The City of Gillette has decided to use its eminent domain powers to try and take land from a Jackson-based non-profit organization in order to create an extension between Kluver Road and Warlow Drive.

The last time the city sued for condemnation was 16 years ago, and the practice has been used by the city only a handful of times.

City Council members, most of whom generally oppose taking private land without permission, voted 6 to 1 in favor of using eminent domain earlier this week. They want to sue the Karl Johnson Foundation in hopes of acquiring a 2.28 acre parcel of land southeast of Cherry Lane.

City officials in 2002 listed the Kluver Road extension as a priority in the transportation plan they created. For the past two years, city workers have tried to move forward with the estimated $2.4 million project but have been unsuccessful in negotiating with the nonprofit organization that owns the land.

“We began in August 2006 in earnest to try to acquire (the property),” said Engineering Director Mike Coleman.

He added that city workers have created various road designs for the nonprofit organization to review and have tried to minimize the loss of trailer park lots that the extension would cause to the organization, but they have received no response.

The attorney for the Karl Johnson Foundation was not available for comment by press time.

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Gillette WY News-Record: http://www.gillettenewsrecord.com

Eminent domain limits sought: Warren OH Tribune Chronicle, 3/7/07

By Stephen Oravecz
Legislation in the [Ohio] state Legislature could put limits on Warren’s plans to aggressively use eminent domain to acquire blighted property for downtown commercial development.

The sponsor of Senate Bill 7, state Sen. Timothy Grendell, R-Chesterland, said Tuesday that he does not want to stop the use of eminent domain for economic development, but he wants to make its use ‘‘the exception and not the rule.’’

How aggressive Warren can be could come down to the way lawmakers define a blighted property. Grendell said he expects that to be one of the major debates over his bill and for the first time offered his suggestion: Government could take property for development or redevelopment if 90 percent of the parcel is blighted.

To be declared blighted, it must meet three of nine requirements. They include any structure:

• That’s physical condition presents a public nuisance or attractive nuisance;
  
• That an agency has designated as unfit for human habitation;
  
• That is a fire hazard or is dangerous;
  
• Where the utilities have been disconnected or rendered ineffective;
  
• That is abandoned;
  
• Other criteria cover trash and rodents, delinquent taxes, uncorrected health or safety code violations, health threats.

Grendell said he would be willing to change the bill to require more than three of the requirements.

The bill adds other protections for property owners trying to fight eminent domain. For instance, it requires a public hearing, it requires appraisals be disclosed to property owners, and it prohibits port authorities or park districts from using eminent domain unless county commissioners or trustees give their approval.

The second bill proposed a state constitutional amendment that would prohibit home rule cities from making their own stricter rules for eminent domain. If approved by voters in November, the state rules would apply to all Ohio cities.

That amendment would not affect the situation in Warren, which is not a home rule city.

Sen. Capri Cafaro, D-Hubbard, questioned Grendell about who makes the final decision whether a property is blighted. That ruling, Grendell said, would be made by a judge if a property owner challenges the eminent domain action.

Cafaro said she agrees with Grendell that eminent domain laws should apply uniformly through Ohio, but she wants to make sure the final bill is fair to cities such as Warren that need it for redevelopment.

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Warren OH Tribune Chronicle: http://www.tribune-chronicle.com

Eminent domain on docket: Bridgeton NJ News, 3/6/07

By Jaime Marine
[Millville NJ] City commissioners are expected to vote on a resolution tonight which gives them further direction on a petition submitted by local watchdog group Millville First.

The petition, which asks commissioners to pass an ordinance banning eminent domain for the benefit of a private developer or private development, was submitted on Feb. 20 during the commission meeting.

It also asked for a special election, should commissioners not pass the ordinance, but Millville First members say they now accept the fact that can't happen. No action was taken on the petition by commissioners during the February meeting.

"The city attorney, along with the redevelopment attorneys for the city, have advised that the proposed ordinance is not subject to initiative pursuant to NJSA 40A:12A-28 of the Local Redevelopment and Housing Law," the resolution states.

Therefore, the resolution is proposing the city clerk be relieved of the responsibility to verify the signatures on the petitions, and the governing body accept there are sufficient signatures to satisfy the requirement.

It reiterates, "The redevelopment process is not subject to ordinance through voter initiative."

These proposals go along with Solicitor Rich McCarthy's statements on Feb. 20, where he said, "Any petitions which seek to adopt an ordinance or resolution, through initiative or referendum, to restrict or eliminate (eminent domain) in a designated redevelopment area are in direct contravention of state law.

"If presented with petitions of this type, (the clerk's office) may receive and file them, but (they) are under no legal obligation to take further action."

Millville First President Emil Van Hook has said any city commission should recognize a petition signed by over 1,100 voters.

"They have by ordinance banned condemnation at the request of the motorsports park and in addition they passed a resolution stating they would not condemn a single-family owner occupied home," he previously said.

"There is no question, whatsoever, that if they had any desire to abide by the wishes of the signers of the petition they have the power to do so."

Van Hook previously said the group is not ruling out legal action, but said they are hoping to avoid it.

Also during tonight's meeting, Vice Mayor Joe Derella is scheduled to talk about eminent domain issues. The agenda did not give specifics on his report.

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

Warren may use eminent domain: Warren OH Tribune Chronicle, 3/6/07

By Amy McCullough
[Warren OH] Mayor Michael J. O’Brien said he wants to use eminent domain to ‘‘aggressively’’ pursue several parcels of land downtown that he says are vacant and blighted.

O’Brien said he would like to acquire seven to 10 properties owned by three people off East Market Street as part what is called the Campbell Court Property. The hope is to market a larger piece of land for commercial development.

He declined to give the names of all the owners or the exact locations of the properties, but said the former Jackson’s Lounge, owned by Donald Guarnieri, is an example of the types of properties being considered.

‘‘I’m intentionally being vague because of the possibility of still negotiating prices,’’ O’Brien said.

A message left for Guarnieri was not returned Monday.

Warren Redevelopment and Planning Corp. already purchased and demolished 279 E. Market St, a partially burned, vacant structure, as part of the larger development project.

The mayor said last week that eminent domain has not been brought up in negotiations with the property owners.

‘‘When the law department is comfortable with moving forward, it is my request that we do the eminent domain issue aggressively in the downtown area,’’ the mayor said.

‘‘Once we capture the buildings and demolish them, we would then begin with the new enhancements (a list of business incentives and utility credits) that city council is proposing and we would be able to acquire development projects,’’ O’Brien said.

Repeated messages left for Law Director Gregory Hicks over the last week were not returned but O’Brien said the Law Department is still researching the issue.

He also acknowledged several pieces of legislation moving through both the Ohio Statehouse that would change existing eminent domain laws. One Senate resolution introduced by Sen. Kevin Coughlin, R-Cuyahoga Falls, would bring the issue before voters statewide and could eventually lead to the amendment of the state constitution.

The Supreme Court ruled in 2005 to allow government to use eminent domain to take private property for public benefit with some safeguards.

As a result of that ruling, State Sen. Timothy Grendell, R-Chesterland, pushed to start a task force charged with clarifying Ohio’s eminent domain laws. He also sponsored one of two senate bills on the issue.

‘‘I believe Ohio voters want the opportunity to support private property rights at the ballot box,’’ Coughlin said in a statement. ‘‘Eminent domain should be used sparingly and only when it benefits the public as a whole. Our laws should reflect that and leave no wiggle room for government to abuse its power.’’

O’Brien said the Law Department is taking the proposed changes into consideration as it researches the issue.

According to Tribune Chronicle archives, the last time the city sued for eminent domain was in the mid-1990s. The lawsuit stated the city was unable to reach an agreement with any of the owners in connection to a Summit Street N.W. widening project.

Warren City Council passed a resolution on Dec. 14, 1994, declaring it necessary for the city to claim the land, according to archive reports.

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Warren OH Tribune Chronicle: http://www.tribune-chronicle.com

Eminent Domain Law Bill Being Reviewed: KSL-TV5, Salt Lake City UT, 3/5/07

By John Hollenhorst
The governor [of Utah] has not tipped his hand yet on whether he'll sign a bill that restores the power of cities to buy your home, even if you don't want to sell. The legislation partially reverses a win by angry property owners two years ago.

The legislature undercut the power of eminent domain two years ago. But now they're bringing back a modified version as tool for urban development.

Some Ogden homeowners believe it benefits commercial interests at the property owners' expense.

This collection of modest homes is the neighborhood that stopped Wal-Mart in its tracks a couple of years ago. Some homeowners refused to sell.

Donna Marti, Ogden resident: "I mean it isn't a new, gorgeous home, but it's home."

Evo Marti was literally born in his house 83 years ago.

Evo Marti, Ogden resident: "All our life lived here, raised our kids, and grandkids and great-grandkids. It's home!"

In that old fight, the city wanted to force the deal, using the power of eminent domain to condemn blighted properties for resale to commercial development.

Mark Johnson, management services director, Ogden: "Increased revenues from property tax and sales tax benefit the entire community."

Wal-Mart eventually threw in the towel. The legislature two years ago banned eminent domain for commercial redevelopment projects. But the new bill brings it back in modified form. A homeowner could be forced to sell if 80 percent of his neighbors say "yes".

Mark Johnson: "So if there are 10 properties, of those, eight have to sign the petition."

The legislation sets the stage for a potential battle here where the city eventually expects to take out blighted homes and businesses and build the Ogden River project.

Mark Johnson: "We are trying to rebirth that area, to bring in some new housing projects, some new commercial and some retail."

A councilman from neighboring North Ogden opposes the new bill.

Steve Huntsman, member, North Ogden City Council: "The minute the government steps over and starts taking property, it affects all of us. I just think that it's wrong from a constitutional standpoint."

The Martis say it's wrong for a city to forcibly buy a property and then resell it to the highest bidder.

Donna Marti: "That's like stealing. Robbing Peter to pay Paul."

Governor Huntsman hasn't said if he'll sign or veto the bill. A spokesman said today he's still reviewing it

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KSL-TV5, Salt Lake City UT: http://www.ksl.com

County to reconsider Scull bridge: Seguin TX Gazette-Enterprise, 3/6/07

By David DeKunder
A proposed bridge that would connect Guadalupe and Caldwell counties could get the thumbs-down from Guadalupe County commissioners.

County commissioners could reverse their previous support for the bridge when they meet at 10 a.m., today, at the County Administration Building.

County Road and Bridge Administrator Larry Timmermann said commissioners will decide if they want to rescind their previous support of the proposed Scull Road Bridge, which would be built over the San Marcos River in the northeastern part of the county.

Because of issues relating to eminent domain, commissioners seem to have second thoughts on supporting the construction of the bridge, Timmermann said.

“The project would require that the county take eminent domain against the [property owner],” Timmermann said. “Commissioners court is not willing to do this.”

Timmermann said the property owner has withdrawn his support for the bridge because of the eminent domain issue.

The proposed project, which has a price tag of $500,000, would be built with state funding and funding from both counties.

Last May, county commissioners passed a resolution supporting the bridge, which initially had the support of a property owner in the area.

For the project to go forward, Timmermann said the state requires that both counties pass a resolution supporting the bridge.

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Seguin TX Gazette-Enterprise: http://seguingazette.com

Mishawaka takes legal step on project: South Bend IN Tribune, 3/5/07

Use of eminent domain OK'd to acquire property for underpass
By Sue Lowe
The owner of Loading Zone Liquor doesn't think the city of Mishawaka has offered him enough money to move his business out of the way of the North Main Street underpass.

"Their offer was almost 50 percent less than fair market value," Ray Buzalski said. "We're not averse to selling. But we want enough money to relocate."

His business on the northeast corner of Jefferson Boulevard and North Main Street and the billboard next to it are the only two remaining pieces of property the city needs for the underpass under the Canadian National Railroad tracks.

So members of the Mishawaka Board of Public Works and Safety voted to authorize use of eminent domain proceedings to get possession of those last two pieces of property last week.

The billboard is owned by Burkhart Advertising.

Representatives for the city have reached agreements for the city to buy an additional 40 pieces of property.

Gary West, director of engineering for the city, said the need to go through the courts to get the property won't slow the project down.

"They're at the north end," he said of the pieces of property.

Buzalski said representatives of the Indianapolis law firm representing the city told him in December that the city would use eminent domain.

He said he's not trying to block the project. But he feels the offer the city made for the property is "ridiculous."

"I don't think it's fair a city can bankrupt a small business by using eminent domain," Buzalski said. "All we're trying to do is get a sufficient amount of money to move."

Buzalski said that if he didn't own two other businesses, "the city would literally be putting me and my family in the street."

City attorney John Gourley said the city can acquire the property in four to six months even if there is a trial later to determine the value of the property.

Mayor Jeff Rea said the prices paid for property are based on appraisals from certified appraisers.

He said although assessments are now supposed to be based on market value, the assessments are still not keeping up with appraisals.

People who sell property to the city also get financial help with relocation.

Work on the underpass will begin when the railroad is moved south of its current location. The underpass will then be built at its current location.

The Board of Public Works and Safety already awarded a contract to Jackson Services of Rochester to tear down five buildings. That company bid $46,320 for the work.

The board will open quotes for demolition of the old Mishawaka Transmission building at 1204 N. Main St. at its March 13 meeting.

The underpass should be finished in about two years.

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South Bend IN Tribune: http://www.southbendtribune.com

Del. Joannou isn't afraid to take center stage when he's inspired: Virginian-Pilot, Norfolk VA, 3/5/07

By Harry Minium
The sponsors of legislation to rewrite the state's eminent domain law shook hands exuberantly in a corridor during the final hours of the 2007 General Assembly, after their bill passed both houses by wide margins.

While two of the state lawmakers pronounced their triumph before reporters, Del. Johnny Joannou, D-Portsmouth, arguably the major force behind the legislation, sat alone at his desk on the House floor, quietly reading. He was content to let others drink in the accolades.

Such was not the case a year ago, when Joannou stood on the House floor and almost single-handedly stopped a bill that would have allowed housing authorities to condemn homes and other properties to make way for new hotels or shopping centers.

Quoting Thomas Jefferson, James Madison, George Mason, the Constitution and the Bill of Rights, Joannou thundered before a silent House, "When it comes to inalienable rights, there can be no compromise!"

Del. Robert Bell from Albemarle County and other conservative Republicans were stunned, but they concluded that Joannou was right. Thus began the movement that culminated with sweeping new eminent domain legislation.

"Johnny is not afraid to stand up and say what he believes, even if most of the members of his party or most members of the House don't agree with him," Bell said. "His speech last year made us all sit back and think. He is the one who got this ball rolling on eminent domain."

Though the legislation that Joannou proposed last year was not passed, he began meeting with Republican legislators shortly after the formal session ended.

Put your name on the bill, the Portsmouth Democrat was told. No, he replied. This is a Republican legislature and it needs to be a Republican proposal.

Longtime Richmond Democratic Del. Franklin Hall said that in spite of his conservative principles, Joannou fits the Democratic Party.

Hall noted Joannou supports an increase in the minimum wage, believes unions should be protected and was an early advocate of civil rights.

House Majority Leader Morgan Griffith, R-Salem, said Joannou's philosophy was shaped by his upbringing in Portsmouth. He was raised by Greek parents who came to the United States in the early 20th century. His father was born into a family of 12 siblings, and only four survived into adulthood.

"Johnny is all about protecting the common man," Griffith said. "That's his eminent domain position. It's probably also the root of his position on taxes. The people he grew up with aren't wealthy, they didn't have a lot, so he wants to protect them.

"When he talks about immigration, he talks about how his dad immigrated to this country. He feels like people ought to obey the rules like his dad did," he said.

The day before the General Assembly session ended, the 66-year-old Joannou broke into tears as he recounted his parents' struggle, opening a restaurant in Portsmouth, and sending their only son to Virginia Tech and law school at the University of Richmond.

"In my early years, I learned the only way to get something done was to work hard and try my best," said Joannou, who was raised in a flat next door to the Commodore Theatre. "Even though I didn't have a lot of material things, I was fortunate. I had my mom and dad, and they loved me a lot."

Joannou has worked behind the scenes to help craft everyman legislation that, among other things, restricts government from taking well-maintained homes in redevelopment areas and hinders it from taking even poorly maintained housing.

That has done little to endear Joannou to housing authorities or city councils in Portsmouth and Norfolk, which he represents. Some city officials say the bill, if signed by Gov. Timothy M. Kaine, will make rebuilding their urban cores more difficult.

Being unpopular among the elected elite is nothing new for Joannou.

He has opposed new taxes for transportation, the imposition of tolls on bridge-tunnels, and has been critical of the Portsmouth City Council for not doing more to cut real estate tax rates in the face of soaring assessments. He also angered some in his party for his approval of gun rights and opposition to aiding illegal immigrants.

That's OK, he says. He's not in Richmond to represent the business community or his party. He's there to represent the people back home, many of whom struggle financially.

As a budget conferee, he has garnered the respect and admiration of Republicans, as well as millions of dollars for Portsmouth. The budget just agreed upon includes $40 million to move rail lines out of Portsmouth neighborhoods, $10 million to begin planning a new state terminal at Craney Island, and $1 million to help compensate Norfolk, Portsmouth and Newport News for road damage from truck traffic from the port.

"Our party happens to be in the minority," he said. "That means you have to reach across the aisle to get the votes to do something good for your area."

Even so, he is not above challenging the Republican establishment. Many legislators agree that the ugliest hour of the 2007 assembly came when Joannou and Del. Kenneth Melvin, D-Portsmouth, pleaded with the House not to re-elect Portsmouth Circuit Judge Dean W. Sword Jr.

Joannou said reappointing Sword will "hurt working people."

"Dean is a person of integrity," Joannou said during an interview in his office. "Off the bench, he's a nice guy. I like him as a human being. But I feel like I have a responsibility to the people I represent, and when I think something is not right, that it ought to change. And I don't feel like he's treated people fairly in his court."

Hall, the Richmond Democrat, said what Joannou did in challenging Sword "took enormous courage. Obviously, that wasn't something he did lightly, for an attorney to stand up and criticize a judge.

"He felt strongly about it, and that's what I like about the guy. You can count on him to stand up and tell it like it is."

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Virginian-Pilot, Norfolk VA: http://content.hamptonroads.com

Property Rights versus Public Good: EnergyBiz Insider, 3/5/07

By Ken Silverstein
Proposed natural gas pipelines are fueling a bitter debate over the proper balance between the "public good" and "property rights." The dispute pits landowners against pipeline companies as it relates to the laws that permit the confiscation of land for the purposes of building what is believed to be vital infrastructure.

The feud has spilled over into several communities around the United States. The issue is now on the agenda in both the courts and state legislatures. In all cases, the common solution is for the two sides to work out an amicable agreement - one that will require companies to use circuitous routes that deviate from the original plans.

Without the ability to exercise their right of "eminent domain," developers say they won't do business in a jurisdiction and the people will therefore suffer. Property owners counter that many of the projects are unnecessarily intrusive and that the laws don't give pipeline companies the right to profit at their expense - a proposition that oftentimes gives them inadequate compensation for their troubles.

"Eminent domain exists because services such as electricity, natural gas, sewer and water are considered necessities," says Mike Enoch, general manager of the Chester County Natural Gas Authority in South Carolina. "They are essential services upon which lives and livelihoods depend. The purpose of eminent domain is to prevent any property owner ... from denying an entire community adequate service."

The battle in South Carolina is over a 42-mile pipeline. The pipeline's owner says that the deal would save gas authorities $60 million over 30 years and ensure that adequate capacity exists down the road. Many residents who live along the proposed route are taking the developer, Patriots Energy Group, to court. They argue that not only is the demand for their land invasive but that it is also excessive and that current providers can meet the projected demand for power.

In that state, the law forbids government from allowing private entities to exercise their rights under eminent domain laws unless it would eliminate eyesores or accrue to the benefit of entire communities. It comes atop a 2005 U.S. Supreme Court ruling involving a Connecticut case called Kelo versus City of New London in which the high court decided that government could condemn private property for the public good and even if it involved private development such as hotels and shopping centers.

That diverged from previous interpretations of the law, which said that eminent domain rights could be exercised if such things as roads, schools and hospitals were built. In response to that 2005 Supreme Court 5-4 decision, 34 states have passed laws to try and limit those rights. In Wyoming, for example, citizens have filed a ballot initiative that would protect their private property rights when it involves oil and gas development.

"If our federal constitutional right to property is not going to be protected by the Supreme Court, then we need to ensure that every state has solid state constitutional rights that ensure people's right to property," says Jenifer Zeigler, a legislative affairs attorney for a Washington, D.C.-based property rights group called Institute for Justice.

People Power
Beyond the ballot initiative, Wyoming is considering bills that some lawmakers say will level the playing field between developers and landowners. The measure would ensure that property owners receive better compensation as well as get more money in the event that pipeline development would force them to relocate.

Other bills would go further and prohibit the condemnation of private property unless a project would be used for a public purpose. The transference of private property to other private interest would be forbidden. All proposals, meanwhile, want the disparate sides to negotiate so as to ensure the public would benefit without trampling over landowners.

A recent poll taken in Wyoming says that 77 percent of registered voters there believe that private developers have the upper hand when it comes to negotiating deals with property owners. Pipeline owners say that they favor good faith talks but add that unless they are able to build infrastructure at reasonable costs, they would simply not build.

According to the Interstate Natural Gas Association of America, the country needs to invest $61 billion in its natural gas pipeline infrastructure. It also says that the industry must build 45,000 miles of pipeline in North America and particularly in California and the Northeast. Further delays, it says, will only serve to drive up gas rates.

The permitting process has always been an onerous undertaking. Potential routes are chosen based on construction costs - determined in part by terrain, environmental factors and projected population growth. Safety has also become paramount, particularly since the events of 9/11. Toward that end, developers must demonstrate that they will work with communities and add technology to bolster security - things that don't necessarily generate a return on investment.

After environmental impact reviews are undertaken, all landowners along the proposed route must be notified. If they don't give their consent, then state regulators do have the right to grant eminent domain to the energy companies. The Federal Energy Regulatory Commission, meanwhile, has the authority to step in and break ties if it considers projects vital to the public concern. However, about 90 percent of all cases do not require that kind of federal involvement and are negotiated successfully.

While the degree of permissiveness varies, overall there must not be any significant effect on either the natural habitat or the landowners who lease their rights-of-way. Typically after months of infighting, the common solution is to re-route the pipeline to accommodate all concerns.

"Rarely is it smooth sailing," says Greg Lamberson, manager of International Construction Consulting, based in Tulsa.

Developing pipelines is about building coalitions. The twin goals are to meet the expected future demand for energy without running roughshod over property owners. Policymakers around the country are trying to determine the proper balance -- decisions that will assuredly place personal freedom and energy resilience at odds with one another.

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EnergyBiz Insider: http://www.energycentral.com/centers/energybiz

Rail ordinance would be unenforceable: Salem VA News Messenger, 3/5/07

By Gene Morrell
Residents of eastern Montgomery County have been urging the Board of Supervisors to pass an ordinance designed to blunt Norfolk Southern's power of eminent domain which would enable it to take private land for a proposed intermodal rail facility, but county attorney Marty McMahon told the board this week that such an ordinance "would be invalid and would be unenforceable."

After hearing comments from residents who oppose the facility and representatives of a grass-roots community group called Citizens for the Preservation of Our Countryside urging the board to pass the ordinance, the supervisors asked McMahon to look into the matter and advise the board on whether the county has the power to pass an ordinance making it unlawful for any corporation (i.e., the railroad) to use its power of eminent domain to seize private property for a project such as the intermodal facility.

It is McMahon's job to advise the board on legal matters involving the county government, and while he does sympathize with the concerns expressed by residents who oppose building the facility in Elliston, McMahon told the board, "The law is very clear on this."

Just as the federal law and U.S. Constitution are supreme to state law and the state constitution, the state constitution and state laws reign supreme over local ordinances.

McMahon said based on current Virginia state laws and decisions by the State Supreme Court, the provisions of the proposed ordinance which residents want the board to pass are "inconsistent with and in direct conflict with state law."

McMahon said according to a state law, railroads are specifically authorized to use the power of eminent domain to acquire private property "for its use in serving the public."

Another law also grants the power of eminent domain to other public service corporations such as electric, telephone and gas pipeline companies, McMahon added, and the Virginia Supreme Court has upheld the constitutionality of these laws.

Therefore, if private property owners refuse to voluntarily sell their property to the railroad, it can invoke its power of eminent domain, take the property owners to court and legally force them to sell.

"Local governments cannot forbid what the state government has expressly authorized," McMahon told the board.

Board chair Steve Spradlin asked McMahon what the ramifications for him and the county would be if the board of supervisors were to go ahead and pass the ordinance proposed by the citizens' group.

McMahon replied that Norfolk Southern would likely file with the court to use its power of eminent domain at some point, and then the county would have to go to court to try to enforce its anti-eminent domain ordinance.

Knowing that the such an ordinance would be in direct defiance of state law and was thus unenforceable, McMahon said, "I would have the ethical duty not to go to court and make frivolous arguments" to try to defend the ordinance. If he did, the court could sanction him, and the county could suffer financially as the railroad could ask the court to force the county to pay for its legal and attorneys' fees.

McMahon added the board has "an image to uphold the law," and he said if the board were to pass an ordinance it knows is unenforceable and against established state law and then try to enforce it, "I would worry about the board's image throughout the state."

Even without the ordinance, residents and the board could still lobby at the state level to try to convince officials not to provide public funds for the proposed intermodal facility. "The issue lies at the state level," McMahon said, and supervisor Gary Creed said it's all about the money since Norfolk Southern officials have said they will not proceed with the project without state and federal funding.

Norfolk Southern officials have said the Elliston site is their preferred location for the rail facility, but that proposed site has garnered unrelenting opposition from local residents and the Montgomery County Board of Supervisors, which passed a resolution requesting that the governor and the Virginia General Assembly oppose providing state funding to Norfolk Southern for the development of the rail facility in Elliston.

Supervisor Mary Biggs said perhaps the board needs to look at passing another resolution to try to put renewed pressure on state legislators.

Since the news about the proposed intermodal facility first became public last year, residents of eastern Montgomery County have repeatedly appeared before the board to express their opposition to the intermodal rail facility, citing their worries that the facility will ruin the watershed, ruin the land, damage the water and air quality, and bring massive truck traffic into the eastern part of Montgomery County.

The proposed site for the intermodal rail facility in Montgomery County is located along the south side of U.S. 460 in Elliston, across the road from Rowe Furniture.

If all goes according to plan, the intermodal facility would be completed in 2010.

During the next few years, the railroad, using railroad funds, financial contributions from the federal government and from state funds will improve and enhance the double-stack rail line connecting port terminals in Virginia to the Midwest.

All the various project components of the heartland corridor will involve a capital investment of more than $200 million.

The railroad's agreement with the commonwealth means Virginia would underwrite 70 percent of the projected $18 million cost of the intermodal facility, with Norfolk Southern paying the balance and providing the rail service.

Placement into operation of the facility will depend on successful completion of the clearance project associated with the heartland corridor allowing for the double-stacking of the rail containers through western Virginia and West Virginia, Norfolk Southern officials have stated.

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Salem VA News Messenger: http://mainstreetnewspapers.com

Lawmakers taking aim at proposal for Pinon: Pueblo CO Chieftan, 3/5/07

State Sen. Ken Kester says ranchers and Army headed for a ‘donnybrook.’

By Peter Roper
Southern Colorado ranchers and the Army are headed for their first legislative collision Tuesday over a bill that would withdraw state consent for the Army to use eminent domain to expand the Pinon Canyon Maneuver Site southwest of La Junta.

HB1069 is sponsored by Rep. Wes McKinley, D-Walsh, and Sen. Ken Kester, R-Las Animas, and it would refuse the state's permission for the Defense Department to condemn land in order to expand the maneuver site. The legal impact of the bill, if approved by the Legislature, is less certain and may only be resolved in the courts.

The bill will be considered by the House State, Veterans, and Military Affairs Committee on Tuesday afternoon at the State Capitol.

McKinley said Colorado law grants the federal government permission to use eminent domain, or condemnation, to acquire property for certain federal purposes. HB1069 would simply add a clause saying it could not be used to expand military training areas - meaning Pinon Canyon.

"We can't take the power of eminent domain away from the federal government, but we have a state statute that governs what eminent domain can be used for," McKinley said. "State law also requires that any use of eminent domain be approved by the General Assembly as well."

McKinley acknowledged that he has been given conflicting legal advice about whether the state could prevail in a contest with federal government over its authority to expand the maneuver site.

"We've been assured by the Legislative Council that the General Assembly has the authority to do this," Kester said Friday. "But we realize the Army's attorneys will have a different view of the matter."

The underlying dispute is the Army's desire to expand by 418,000 acres. The training area is 238,000 acres now and straddles the Purgatoire River southwest of La Junta. Many ranch and farm families in the region are opposed to the expansion, fearing the Army will ultimately take their land through condemnation - as it did when the maneuver site was first established in 1983.

"We're trying to do everything we can to stop or delay this because we believe expanding Pinon Canyon would devastate our communities and the economy of our area," Kester said.

Taking all that additional land out of private production, and off public tax rolls, would mean that the counties that contain a bigger maneuver site would stand to lose a significant portion of their tax base, Kester said.

The dispute over expansion pits Southern Colorado against the Colorado Springs metro area. While the ranchers and county officials around the maneuver site argue that losing that much additional land to the Army would cripple their regional economy, Colorado Springs officials have been lobbying the Legislature that an expansion is vital to the planned expansion of Fort Carson - and that growth means an additional $1 billion to Colorado Springs-area economy.

"We met with the Army and they laid out their plans and said they need to expand Pinon Canyon," Kester said. "They didn't change our minds and we didn't change theirs. So I think we're headed for a donnybrook."

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Pueblo CO Chieftan: http://www.chieftain.com

Cities in California push own measure on eminent domain: San Diego CA Times Union, 3/14/07

By Michael Gardner
Fearing tighter controls, California cities have offered to sponsor a statewide ballot measure that would strip away most of their power to seize homes standing in the way of new commercial development.

The draft proposal circulating in the Capitol also seeks to add another layer of protection for small businesses by making it more expensive for local governments to shutter mom-and-pop shops and replace them with bigger tax-generators: malls, hotels or big-box retailers.

The proposed constitutional amendment has been endorsed by leading environmentalists and has the qualified support of a powerful conservative homeowners' advocate as well as the Republican leader of the state Senate.

Democratic leaders have not yet signed on, but they agree with city officials that the Legislature should shape a measure and place it on the ballot rather than leaving it to an initiative driven by special interests.

Local governments and their allies spent about $14.2 million last year to defeat a far-reaching ballot proposition that could have severely curtailed eminent domain authority.

Worried that the close call did not put an end to voter anger over some high-profile, controversial land grabs, cities were determined to offer voters a palatable deal on the next ballot.

“We take the issue of eminent domain abuse seriously,” said Chris McKenzie, executive director of the League of California Cities. “During last year's campaign, we promised voters we would do this.”

The league also has filed a separate proposed constitutional amendment that would limit local governments' use of eminent domain, or condemnation. McKenzie said the initiative, which would need nearly 700,000 signatures of registered voters, is an insurance policy in case talks collapse in the Legislature. A more restrictive constitutional amendment has been submitted by the California Farm Bureau Federation and Howard Jarvis Taxpayers Association.

Key figures, including some politicians who are absolutists when it comes to protecting private property, aren't impressed with the cities' move.

“There's been no change in the battle lines,” said Sen. Tom McClintock, a Thousand Oaks Republican who is carrying his own constitutional amendment, SCA 1.

McClintock demands equal protections for business. “It really doesn't matter whether they take the roof over your head or the shop that pays for the roof over your head,” he said.

City officials say their draft compromise includes safeguards from overzealous redevelopment agencies, cities and counties. For example, the proposal would erect a significant financial barrier by requiring cities to pay at least 125 percent of the fair market value to small businesses, classified as employing no more than 25 people.

“It should be cumbersome for locals to engage business in eminent domain,” said supporter Ken Willis, an Upland city councilman and president of the League of California Homeowners.

However, Willis said local governments need to preserve some condemnation power to tackle drug-infested, run-down neighborhoods.

“You can leave it to grow or you can cure it,” Willis said of the dilemma before cities as they try to rejuvenate dilapidated blocks.

The cities' proposal spells out that owner-occupied homes cannot be condemned and the property put to business use, but it still leaves rentals vulnerable.

Local governments could still condemn homes or private land for public benefit, such as roads, schools, fire stations and hospitals, under all of the pending proposals.

Concern over eminent domain burst into public consciousness in 2005 when a sharply divided U.S. Supreme Court upheld a Connecticut city's right to evict middle-class homeowners to make way for a waterfront project. Kelo v. City of New London became a rallying cry in a nationwide campaign to rein in eminent domain.

In California, the Legislature failed to reach a compromise after months of wrangling. That left an opening for Howard Rich, a wealthy New York real estate broker who bankrolled Proposition 90 on the November 2006 ballot.

While protecting homeowners and businesses, the initiative also was a frontal assault on land-use policy affecting anything from apartments to landfills, opponents said. Opponents of Proposition 90 outspent supporters, $14 million to $4 million.

Although the measure was defeated 53 percent to 47 percent, it convinced local governments that voter backlash was real.

Some environmental groups helped finance the opposition campaign to Proposition 90 and are supportive of the new city-backed proposal.

One key area for negotiation: two types of property – farms and churches – have yet to be offered protections under the cities' plan.

“Public agencies should not take productive farmland for private use,” said John Gamper, a farm bureau lobbyist.

Gamper said he is not impressed with the cities' proposal. Homes are not frequent targets and cities eyeing more tax revenues are not likely to balk at paying more to condemn businesses.

“It's going to be a feel-good bill that doesn't do much,” Gamper said.

Some supporters say local governments already have a hard time condemning farms because it's hard to conclude that fields and orchards are “blight” – a key stipulation before land can be condemned. The last high-profile case cited by the farm bureau was in 1993.

Churches are a touchy issue given the separation of church and state, tax status and other issues. Supporters of the ballot measure are looking for legislative guidance before writing in protections for church property.

Gov. Arnold Schwarzenegger has not taken a position on the new proposal, but he opposed Proposition 90. The Republican governor's signature is not required to place a constitutional amendment on the ballot. However, two-thirds of the Legislature must approve.

In presenting their case for tighter controls, McClintock and others come armed with a long list of small-business owners shut down by cities only to have their property handed to powerful developers.

In San Diego's historic Gaslamp Quarter, a cigar shop was forced out in favor of a hotel. In Oakland, city officials booted out a tire shop. In Cypress, a church was forced to negotiate a land swap because it owned property coveted by a major retailer.

Attorney Tim Sandefur, a leading defender of property rights, is not swayed by the offer to protect owner-occupied homes.

“Homes are rarely condemned. Usually it's small businesses,” Sandefur said. “It's hypocritical. It recognizes that these takings (of businesses) are unfair and yet it still tries to get away with it.”

Jon Coupal, president of the Howard Jarvis Taxpayers Association, sees the proposal as a positive move. Coupal is not officially part of the coalition, but he has been consulted.

“If there were ironclad constitutional protection for homeowners, that would be something we would support,” Coupal said.

Some Republican lawmakers have expressed interest in tougher restrictions, but at least one GOP leader gave a positive review to the cities' proposal.

“Nobody's got it in concrete yet,” said Senate Republican leader Dick Ackerman of Tustin. “But the direction they're going is good.”

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San Diego CA Times Union: http://www.signonsandiego.com

Judge - Long Branch tenant can't challenge eminent domain: Asbury Park NJ Press, 3/3/07

Landlords have agreed to sell property to city
By Carol Gorga Williams
Long Branch tenant William A. Nordahl, fighting the city's right to use eminent domain to take the property he rents, deserves his day in court, his lawyer Barbara J. Gonos told Superior Court Judge Lawrence M. Lawson Friday.

No, actually, he doesn't, Lawson replied. The judge — who last June upheld the city's right to take properties in the Marine Terrace, Ocean Terrace, Seaview Avenue area where Nordahl lives — dismissed Nordahl's complaint seeking to block the condemnation of the property at 67 Marine Terrace.

When Gonos tried to develop the anti-eminent domain argument, the judge told her, "that's in the appellate division, we talked about that months ago. He doesn't have standing to argue this."

Nordahl, whom many credit as the organizing force that led to the creation of MTOTSA, the lobbying group that has marshaled anti-eminent domain forces in the city, is not part of the MTOTSA lawsuit currently on appeal.

Owners Mark and Kathleen Sauve had been interested in participating in a "friendly condemnation," which would have required the judge to appoint commissioners to determine the value of the property.

But ultimately, City Attorney Paul V. Fernicola said, the city and the owners came to terms, so the commissioners were not needed.

Gonos had argued that under the eminent domain statute, Nordahl would be entitled to 90 days notice to vacate, but under the state's tenant protections, he would be entitled to 18 months notice. In some circumstances, he could be entitled to as long as three years notice, she said.

The judge noted that Nordahl is entitled to relocation assistance from the city. Fernicola said the city was willing to let Nordahl stay in the apartment as long as the MTOTSA appeal is ongoing, provided Nordahl does not use that as a defense for continuing to stay if the city prevails.

"What case do you have that says a tenant can stop an owner from proceeding in a condemnor action?" Lawson asked. "I know New Jersey is a tenant state, but I don't know (if) we've gotten to the point where the tenant runs a condemnor action."

The city has made a deal with the Sauves to sell two properties in the MTOTSA zone, 67 Marine Terrace and 72 Ocean Terrace. The city agreed to pay $450,000 for one and $650,000 for the other, Fernicola said.

Lawson did not want to revisit the anti-eminent domain position, saying he heard it in the MTOTSA case that was argued in his court last March.

"I spent roughly 15 days in that neighborhood," Lawson said. "I went down those streets in different cars so no one would recognize me . . . I looked at those individual homes. I want the record to reflect that."

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Asbury Park NJ Press: http://www.app.com

Belmar votes to limit use of eminent domain: Asbury Park NJ Press, 3/3/07

Redevelopment won't target homes
By Erik Larsen
In a 3-to-1 vote, the [Belmar NJ] Borough Council this week adopted an ordinance that prevents the town from using eminent domain to acquire any owner-occupied home for redevelopment.

"We have seen how eminent domain has been abused in other Shore towns, and now the residents of Belmar know that it could never happen here," said Councilman Matthew J. Doherty, a Democrat, who had proposed the ordinance after taking office on Jan. 1. "This ordinance grants protection to homeowners that has the strength of law."

Councilman Barry Zimmerman, a fellow Democrat, cast the lone dissenting vote. Councilman William Merkler, a Republican who had expressed concerns about the ordinance when it was introduced, was not at Wednesday's meeting.

"(Zimmerman's) concern was that he did not want to see one person hold up redevelopment that would benefit the entire town," Doherty said.

Merkler, the only Republican on the dais, had previously questioned the reason for such an ordinance. In the past, borough officials have said there is just one home in the path of the redevelopment plan, and that home had been exempted from the proposal. However, more recently, Mayor Kenneth E. Pringle has said there are actually four or five homes that are potentially in the path of redevelopment.

Doherty said he will propose the ordinance to other local governments that are seeking a way to prevent abuse of eminent domain in their towns.

Doherty has said he hoped to calm fears in town that the council had a redevelopment agenda broader than current plans to rebuild much of the commercial downtown from Shark River to 10th Avenue along Main Street.

The ordinance does not extend to commercial properties because it would eliminate certain tax-exempt opportunities due commercial property owners who sell their lands or businesses in areas legally declared blighted, as in the case of Belmar's redevelopment zone, Doherty has said.

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Asbury Park NJ Press: http://www.app.com

Geneva business rebounds after eminent domain: Ashtabula OH Star Beacon, 3/2/07

By Margie Trax Page
The owners of property seized by eminent domain for the construction of a railroad overpass are moving on and working to build their businesses around the new construction.

Business owner Samuel Fagnilli was forced to rearrange his warehouses and outbuildings along Austin Road when a portion of his property was purchased through eminent domain by the Ohio Department of Transportation.

Fagnilli has moved one warehouse from the roadside where the overpass will be to a piece of property south of the right of way, City Manager Jim Pearson said.

Fagnilli's other warehouse will remain on the property and ODOT will provide Fagnilli with an access road to the building.

But to make the property work for his business, Fagnilli has requested a rezoning hearing to change the property from a general business district to an industrial district.

"Mr. Fagnilli's property is just one of a host of properties purchased by the state for this right of way. In fact, Mr. Fagnilli is one of the last property owners to come forward with a new plan for his property," Pearson said.

That new plan includes small-scale industry, an idea Pearson said has a place in Geneva.

"The Planning Commission feels there is a call for small industry here in Geneva. Right now we don't have any smaller industrial sites," Pearson said. "These 'incubator' or starter spaces gives businesses a place to start and a place to grow right here in Geneva," he said.

City Council read the first reading of Fagnilli's zoning request in Monday's regular meeting. The measure will have two more readings March 12 and March 26. A public hearing on the matter will be held March 26 at 6:30 p.m., just before council votes on the change.

The process of eminent domain on the properties began five years ago when ODOT made a commitment to reduce the number of grade crossings in the state, Pearson said. After state engineers considered 14 possibilities for the railroad crossing.

"It was decided that a straight overpass over Austin Road would be the most efficient and least costly solution," Pearson said.

The City of Geneva will pay 5 percent of the cost of the overpass, Pearson said.

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Ashtabula OH Star Beacon: http://www.starbeacon.com

Preston Council agrees to look into alternative route for Forestville Trail : Preston MN Republican Leader, 3/2/07

City holds off on use of eminent domain
By Sonya Hemrich
The Preston City Council decided at its meeting Tuesday, Feb. 20, to allow six months to study a potential alternative route for the Forestville Trail and appointed a council member to be in on the project negotiations before considering invoking eminent domain.

Councilman Bob Sauer agreed to be the representative from the council to work with the Ristau and Snyder families during negotiations with David Joerg, as well as Dale Wille (a semi-retired landscape architect) from Spring Valley, who are working the trail project, which includes completing a bike trail from Preston to Forestville State Park.

Working for trail progress
Joerg told the council that in order for the trail to proceed and receive more funding from the legislature, the final two proper-ties - owned by Vernon and Kay Ristau and by John and Bernadette Snyder - out of 21 will need to be acquired. He noted that the legislature does not want to grant the money for a trail that may not happen because all of the property hasn't been acquired.

He approached the council and asked that they would invoke the authority of eminent domain - the inherent power of the state to seize (condemn) property for a public reason (for public use) - in order to acquire the property because he feels that he has done everything in his power to negotiate with the landowners. "I have done it (try to negotiate) to the best of my ability," Joerg said. "I don't know where to go from here before eminent domain."

"We would love to go around these folks," he said. "But there is no reasonable alternative."

Joerg said he has consulted with the state engineer, and the same conclusion was reached. "I have been trying desperately with the Ristaus and the Snyders to put this matter behind us," he said.

"I have always considered eminent domain as the last resort," Joerg said. "After trying for years to deal with these people, we don't have any choice." He noted that he has repeatedly tried to contact the Ristaus, but no letters or phone calls were answered.

Joerg said he would like to ask the council, reluctantly, for eminent domain authority. He noted that even if he was granted the authority, he would still go out and try to negotiate with the property owners to try to not let it go to court.

"I would try to reach an agreement without using it (eminent domain) - even though I would have the authority."

He noted that it would be costly for the property owners to fight the eminent domain authority because of lawyer fees to go to court.

"Eminent domain has been on the books since the 1850s," Joerg explained. "It has been around since the start of the state's constitution."

Sauer asked Joerg if the path of the bike trail could still be changed if there was, by chance, an alternative route and there was a mutual agreement. Joerg said that the trail could still be shifted and changed if that was the case.

Sauer also asked Joerg why he chose to approach the Preston City Council instead of the Joint Powers cities - Fountain, Wykoff, Spring Valley, Ostander, Preston and Chatfield.

Joerg said he would have to approach every city council of each city to get its consent. He also mentioned he chose the Preston Council because he believes it is the city that will receive the most benefits economically from the trail.

Property owners
Vern Ristau, owner of one of the properties sought, addressed the council about why he doesn't want to sell.

"I don't understand it," he said. "That land has been in my family for 64 years and we have paid taxes on it; it isn't right for other people to have more of a say in it than we do."

He mentioned that the current plans would block access to his field, and create other problems. "I don't feel it is right at all for us to give up land," Ristau said.

His wife, Kay Ristau, also addressed the council. She said that she realizes this isn't the current council's problem and that the issue was brought up with another council in the past. "I ask that it gets taken back to the Joint Powers," she said. "Let everyone be in on the decision."

"This is the land that we like to hunt and fish on," Kay Ristau said. "We bought it for that reason."

John Snyder, the other owner of the properties sought, also spoke to the council on his family's behalf. "We have the right as land owners to privacy," he said. "Nine years ago I was approached, and told from the start where the trail had to go. There was no mention of alternatives, and I was threatened with eminent domain."

"I don't like being threatened," Snyder said. "Treat us with respect. That land is not railroad right-of-way; that is land the family enjoys."

Snyder mentioned that a problem he has is that the trail is not a necessity; it is merely for recreational purposes. He mentioned that he doesn't have anything against the city of Preston.

"Preston is our town too," he said. "The people (of Preston) want to enjoy their own backyards as much as we do."

"This country was built on rights and freedoms," he said. "What is happening to ours."

Snyder stated that he believes there are other alternatives out there for the trail. "There is a better answer than using eminent domain," he said.

Councilman David Harrison said that the council is asking the property owners what it can do now to make this work. Snyder said it would help if people for the trail learned to work with the property owners. "We've been fighting it because of the way they have been running over everybody."

Arlynn Hovey, who lives close to Forestville, told the council that he finds it hard to understand the city coming and taking the land. "This is not a need, it is a want," he said. "That is why I have a problem with it."

Former council member Steve Knoepke said a few words to the council. "I am here for the taxpayers," he said. "I think this is the wrong application of eminent domain, and I fear that a lot of tax money will be spent here that could be put to better use.

"The monetary figure here is not the issue; they don't want to sell it," Knoepke said. "If it was my land, I wouldn't feel a heck of a lot different."

Knoepke said he worries that if the council granted eminent domain, it would be setting a precedent for future cases. "If a city has this law, where do you stop, who is the next target?" he said.

"I am asking that you employ other cities involved," Knoepke stated. "Ask them if they want to gamble like this."

Council member Heath Mensink mentioned that in the past - in October 2005, when dealing with this same Forestville Trail issue - the council had decided that it wanted to use eminent domain as a last resort.

Snyder was asked by Mayor Kurt Reicks if he would be willing to negotiate still, and he said that he would be willing to do so.

Ristau, when asked the same question, said he would like to have the bike trail completely go around his land, but said if an alternative was found, "it would have to be on our terms." Members of the Ristau family made it clear that they did not trust Joerg, and they did not want to have any further negotiations with him.

"I would like to see a negotiation before going to eminent domain," Reicks said.

"Get Mr. Wille more involved," Ristau said. "He is easier to discuss it with and work with."

Both property owners, the Ristaus and Snyders agreed that they would be willing to work with Wille, and Sauer, as the council representative, over a six month period to study alter-natives that would appeal to all parties.

"It's a good start," Snyder said.

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Preston MN Republican Leader: http://www.hometown-pages.com

Commissioners haven’t ruled out use of eminent domain: Gillette WY News-Record, 3/1/07

Campbell County commissioners did not rule out the possibility of using eminent domain to acquire rights of way for Northern Drive, while underscoring it was an unwanted and last option.

“Sometimes the individual has to take a backseat to the overall good,” Chairman Craig Mader said. “I hope we don’t have to go there but if we do, we do, we do.”

He called the action a “last resort” but added he had his land split in two when Force Road was built. While the move was inconvenient for him, Mader said heavy use of the road was ultimately more beneficial.

Northern Drive, as it is proposed, would cut across the land of at least 20 different property owners.

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Gillette WY News-Record: http://www.gillettenewsrecord.com