Pushing the limits of 'public use' — USA Today, 3/31/2004

By Dennis Cauchon
Rene Corie installs drapes in Florida mansions. Her husband, David, builds the mansions' gates.

Eight years ago, the working-class couple finally found some waterfront real estate they could afford: a two-bedroom house for $70,000 in Riviera Beach, a poor town near the wealthy enclaves of Palm Beach and Jupiter.

But Riviera Beach now wants to bulldoze the Cories' home and 2,200 others to make way for one of the nation's grandest redevelopment plans: a collection of high-rise condos, bigger homes and upscale shops. The city plans to use eminent domain — its power to confiscate private property for projects that benefit the public — to take the homes of 5,100 people if the residents do not agree to move.

"It's un-American to take my property and give it to a private developer," says Rene Corie, 55. "I couldn't afford a water view anywhere else."

The use of eminent domain is meeting growing resistance in courts, legislatures and neighborhoods from Connecticut to Ohio and Colorado. The criticism targets local governments' efforts to spur economic growth by transferring land from homeowners and shopkeepers to developers or corporations.

Local governments are using eminent domain to acquire land for Wal-Mart, Target and other retailers that need big sites for stores. Land also is being taken for manufacturing plants, hotels, condominiums and parking lots.

Riviera Beach Mayor Michael Brown says his predominantly black community is trying to take advantage of its greatest resource: the waterfront. "For their own selfish reasons, some people want to live near the water and pay little or no taxes," he says. "Who wouldn't? But city government has to look out for all residents."

Larry Morandi, environmental program director for the National Conference of State Legislatures, says cities are using eminent domain to address financial problems. "They are taking property they don't believe is generating enough tax revenue and turning it over to a developer who will generate more taxes," he says.

To accomplish this, cities are pushing the legal limits of eminent domain. California City, Calif., declared vacant property in the Mojave Desert as "urbanized and blighted" so it could acquire land for a Hyundai auto testing facility.

Legislatures in 10 states this year are considering limits on the use of eminent domain that benefits private corporations, but the measures aren't likely to pass immediately. "It's a tough concept for legislators to understand," Morandi says. "It often takes several years for these types of laws to pass." The Arizona Legislature last year enacted similar limits.

"The use of eminent domain has expanded for years, but the pendulum is swinging the other way now," says Scott Bullock, attorney at the Institute for Justice, a non-profit legal group in Washington, D.C., that is trying to establish precedents for limiting the practice.

Government at all levels has long used eminent domain to acquire land to build roads, schools, parks, hospitals and other projects of public benefit. The Constitution says private property can be taken for "public use" if the owner receives "just compensation." Courts have traditionally defined "public use" broadly. "Just compensation" usually means fair market value as determined by an appraiser.

Whether economic development justifies the use of eminent domain is at the heart of many disputes.

In a landmark case, Detroit cleared the ethnic Poletown neighborhood in 1981 for a General Motors luxury car plant. The city took 1,300 homes, 140 businesses, six churches and a hospital. The Michigan Supreme Court is considering whether to overturn the precedent in a current case that involves taking 1,300 acres near the Detroit airport for a business complex. [Note, this was written in March 2004, before the Michigan court overturned Poletown in the case of Wayne County v. Hathcock; it was also before the US Supreme Court agreed to hear the case of Kelo v. New London, now on the docket for the 2004-2005 term. See archives for details.]

City planners say eminent domain is a crucial tool for restoring the economic health of cities and older suburbs. Older communities often need higher tax revenue and new attractions to remain vibrant.

"Sometimes you have to acquire an old gas station or massage parlor to make way for a better use," says Jeffrey Finkle, president of the International Economic Development Council, an association of professionals involved in community development. "The community is often 100% behind these projects, and the problem may be one landowner who wants $1 million for a $400,000 project."

New York City used eminent domain to acquire land for a Pathmark supermarket on 125th Street in Harlem.

"Without eminent domain, that supermarket never would have happened," says Orlando Artze, program vice president of the Local Initiatives Support Coalition, a national non-profit corporation that helps revitalize urban neighborhoods.

Harlem's Pathmark store has brought the neighborhood 100 jobs, lower food prices and the convenience of not having to travel 40 blocks to shop, Artze says. But he and other urban planners fears that aggressive use of eminent domain could backfire. "If it's overused, we run the risk of legislatures and courts becoming skeptical — and that would be bad news for people who care about inner cities," he says.

In Florida, Riviera Beach, a city of about 30,000 people, wants to redevelop 800 acres along its waterfront and U.S. Highway 1 with luxury housing, yachts and upscale shops.

The mayor says the project will increase the assessed value of the property from less than $80 million to as much as $2 billion. The added tax revenue will finance better roads, new schools and safe streets, Brown says. "We will eliminate poverty in Riviera Beach."

But Herman McCray, a restaurant owner and former city councilman, says razing whole neighborhoods is too great a price to pay. "Things should be done in moderation," he says.

Rene Corie's waterfront view may soon be gone. Across the street, a lot has been cleared for high-rise condos. The developer plans to build an 8-foot-high wall around the complex. "They are taking what I love," she says.

The mayor sees it differently: "The people who live on the water are cheating the poorest members of our community."

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USA Today: www.usatoday.com

Future of eminent domain focus of MSU College of Law symposium — Michigan State University College of Law, 11/10/04

Michigan State University College of Law will host a half-day symposium, “The Death of Poletown: The Future of Eminent Domain and Urban Development after County of Wayne v. Hathcock,” from 1 to 6 p.m. Friday, Nov. 12, at MSU’s Law College Building. The event is open to students, legal educators, legislators and practicing attorneys.

At the symposium, leading property law experts will speak about Hathcock’s impact in overruling the Michigan Supreme Court’s famous 1981 Poletown decision, which had insulated municipalities from judicial scrutiny of whether their condemnations of private property meet the constitutional requirement that this occur only for a “public use.” The result was an explosion in the use of eminent domain for private urban development. Panel discussions at the symposium will focus on eminent domain and its use in urban development under the new “public use” standard established in Hathcock.

“The Michigan Supreme Court’s decision in Poletown is famous for two reasons,” said Adam Mossoff, an assistant professor of law at MSU and the organizer of the conference. “First, it effectively eliminated the ‘public use’ requirement in the eminent domain provision of the Michigan Constitution, and, second, it was the first such decision in the country, with the federal government following suit in 1984 with the U.S. Supreme Court’s Midkiff decision. Thus, the implications of Poletown’s reversal are tremendous.”

Panelists include Eric R. Claeys from St. Louis University School of Law; James W. Ely Jr. from Vanderbilt University; James E. Krier from University of Michigan Law School; Lee Anne Fennell from University of Illinois College of Law; William A. Fischel from Dartmouth College; and Ilya Somin from George Mason University School of Law.

In addition, Alan T. Ackerman of Ackerman & Ackerman, and Mischa M. Gibbons of Zausmer, Kaufman, August & Caldwell, two attorneys who worked for the opposing parties in Hathcock, will speak about their experiences in litigating the case.

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Contact: Janet Harvey-Clark, MSU College of Law, (517) 432-6959; or Russ White, University Relations, (517) 355-2281, whiterus@msu.edu

City staff explain redevelopment regulations — Bowling Green (KY) Daily News, 11/10/04

Officials plan to keep moving ahead with downtown projects

By Jim Gaines
Bowling Green’s city commissioners and a small crowd from interested organizations got an exposition Tuesday night of city staff’s efforts to buy land for downtown redevelopment.

“We want to go over what the process is,” City Manager Chuck Coates said. “This is not a discussion on LifeSkills; this is not a debate with the Downtown Redevelopment Authority.”

The city is involved in a disagreement with the Kentucky Heritage Council over whether it has to review for historic significance every building more than 50 years old, which the city wants to buy, in a 29-block downtown area, or consider only those bought with federal dollars.

To detail that discussion, a special commission meeting – “strictly informational” – was scheduled, Coates said.

The city’s role in downtown revitalization efforts is to acquire, clear and assemble property for redevelopment, he said. That must involve some local money, since the $674,000 a year Bowling Green gets as federal entitlement money won’t be enough.

Some local money will go to buy land for the Southern Kentucky Performing Arts Center’s planned downtown site and other projects, Coates said.

“We will be using city dollars to acquire a site for a ballfield, if that comes together,” he said.

Alice Burks, assistant to the city Housing and Community Development Director – Special Projects, gave commissioners an explanation of the federal regulations – referred to as Section 106 – governing how to deal with historic properties.

“The reason that the city of Bowling Green gets involved in Section 106 is when we receive federal funding,” Burks said. The Housing and Community Development Act of 1974 requires the city to review buildings more than 50 years old for historic significance if they’re slated to be demolished or affected by redevelopment projects.

“We are the ones that have to make the final decision,” she said.

That usually boils down to a discussion and agreement between the city and the state historic preservation office, Burks said.

Consideration of historic significance doesn’t prohibit demolition; it just makes sure that historical importance is taken into account and that all options are considered, she said.

The current disagreement concerns the planned purchase and demolition of 538 State St., adjacent to Circus Square, for a new headquarters for LifeSkills.

The city says that that’s an isolated project, not subject to the review standards since the land is being bought with local money rather than federal dollars. The Kentucky Heritage Council says the overall effect of redevelopment requires a broadening of the review.

“They think that Circus Square has an effect on the entire 29 blocks,” Burks said.

In October, heritage council Executive Director David Morgan sent the city a letter saying just that.

“This was kind of an about-face from what we’d been told back in the summer of 2003,” Burks said.

At that time, the heritage council said it was only interested in projects using federal funding, not everything in the area, she said.

City staff maintain that considering all buildings more than 50 years old in the 29-block redevelopment area would place an “unnecessary burden” on, and cause delays for, private developers if the city assists their projects in any way, Burks said.

But when she asked Morgan if the city should stop all property buys until this is resolved, he said no, according to Burks.

“We have basically put a hold on the purchase of 538 State St. until we can get some resolution on this,” she said.

Commissioner Joe Denning asked again if the city, to be safe, shouldn’t quit buying property downtown until the dispute is straightened out.

Coates replied that there’s no dispute over land use for the city’s community center, or an elderly housing project.

“We have to keep some of these projects going,” he said.

Coates characterized the dispute with the state as a “friendly disagreement,” but said that no one knows when the federal advisory council’s decision will come in.

The argument has been submitted to the federal Advisory Council for Historic Preservation.

“We’re waiting to hear their opinion as the whether the entire 29-block area is subject to review,” Burks said.

Asked by Mayor Sandy Jones to clarify standards and uses of eminent domain, Harmon said that the city rarely uses condemnation to acquire land.

“We probably acquire 95 to 98 percent of our property by agreement,” he said.

In an 11-block redevelopment project in the St. Joseph area, the city used eminent domain to buy one old house and a small trailer park, Harmon said.

There are three condemnation actions going on now, all for the rebuilding of the city’s community center, he said.

When the city uses eminent domain to buy property, it must first have a legitimate project lined up for the site, Harmon said. An appraiser determines the property’s fair market value, and an offer is made. If the city and owner can’t agree on a price, city staff ask commissioners to approve eminent domain proceedings. The matter goes to court, and an owner can challenge the method’s use. If the sale goes ahead, a 12-member jury must decide unanimously on a fair price.

It’s Harmon’s opinion that a current U.S. Supreme Court case dealing with eminent domain won’t affect the Kentucky law that allows condemnation for urban redevelopment.

That case, from Connecticut, is about using eminent domain strictly for economic development projects, not clearing “slum and blighted areas,” as the Kentucky law allows, he said.

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Bowling Green Daily news: www.bgdailynews.com

School district sells 24.7 acres to Home Depot for $30 million — San Diego (CA) Union-Tribune, 11/9/04

By Helen Gao
Three years after using eminent domain to take possession of a 24.7-acre parcel in Kearny Mesa, the San Diego Unified School District is selling the vacant land to Home Depot for $11.2 million more than it paid.

The school board was scheduled today to authorize the district to begin escrow on the $30 million sale. District officials said the site is unsuitable for a school and there is no other school district use for it.

The district bought the parcel in 2001 to build a central food processing and distribution facility with plans to also consolidate other operations. A year later, the project was scrapped. Instead of a central food center, the district decided to improve existing facilities.

The parcel on Copley Drive is south of state Route 52 and east of Interstate 805 in a business/light industrial park.

The money from the sale will go into a capital improvement account. District facilities chief Bob Kiesling said the money would most likely be spent on conversion of large high schools into clusters of career-themed academies or other, smaller projects.

Kiesling said Home Depot was the only bidder for the parcel because district trustees set the minimum bid at $30 million, $6 million more than staff members suggested.

"We knew the price was fairly high. We were comfortable we were going to get some bids," Kiesling said.

The previous owner of the site was San Diego-based West RNLN, LLC. When the district initiated the eminent domain proceeding against the company, the court approved a negotiated settlement of $18.8 million for the land.

Under the U.S. Constitution, public entities can condemn private property for public use as long as they pay the owners the fair market value. Typically, eminent domain is used to acquire land for freeways, parks, schools, redevelopment projects and other public purposes.

Herbert Lazerow, professor of law at the University of San Diego, said it's not unusual for public agencies to not follow through with a project after using eminent domain to acquire land. Lazerow also said there is nothing wrong with a public agency making a profit from the sale of land it condemned, as long as the condemnation was not done to make a profit.

The profit, he said, is "probably the result of the fact the government has owned the land for two to three years and has been the beneficiary of this extraordinary run-up in real estate prices."

According to property records, West RNLN paid $13 million for the parcel when it bought the land in 1999 from The Copley Press Inc., the parent company of The San Diego Union-Tribune.

David Dorne, a member of the law firm Seltzer Caplan McMahon Vitek who was listed as an attorney representing West RNLN, had little to say about the district's transaction or its condemnation of his client's land.

"We don't have a reaction," he said. "It was a legal matter. We don't have much to add or take away from it."

The district uses a portion of the site for storage of portable classrooms and buildings.

As part of the purchase agreement, it will lease back up to 7 acres from Home Depot for a maximum of $19,800 a month until Aug. 31, 2005, so it can continue to use the land for storage.

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San Diego Union-Tribune: www.signonsandiego.com

Paying for Property — The Wall Street Journal, 11/9/04

Editorial Opinion
Property rights may not draw as many headlines as gay marriage, yet we'd like to draw readers' attention to an important initiative that Oregonians approved last week. The measure is proof that voters can make sensible decisions on even emotional environmental issues. It's also a precedent for land owners that could spread to other states,

Measure 37 dealt with the growing abuse of "regulatory takings." These have become a big favorite with environmentalists, who see them as a backdoor way of stopping development even on private land. In Oregon, for instance, regulations have forbidden property owners from cutting down their own trees or building on their own lots. The state government isn't obliged to pay a dime for these new, privately owned state parks.

Measure 37, which passed Tuesday with 60% of the vote, doesn't forbid authorities from regulating land use. But it does excuse owners from rules enacted after they bought their land or compensate them for complying. The immediate effect will be to stop the most frivolous land-use regulations, since state and local governments can't afford the millions of dollars it'd take to pay for all the land they "take" in this fashion.

This is the second time Oregonians have passed the measure, the first version having been tossed out by the liberal Oregon Supreme Court on a technicality. In the intervening four years, greens have opposed any new measure as an environmental calamity. Yet hundreds of thousands of rural and suburban folk, some with dreams of new homes, others with ambitions to start businesses or expand farms, recognized this for the hyperbole it was. Owning property is, after all, a basic Constitutional right -- as Oregon voters just reminded the nation.

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The Wall Street Journal: www.wsj.com

Election adds new twist for LifeSkills — Bowling Green (KY) Daily News, 11/7/04

Walker, incoming commissioners plan to take cautious look at controversial move

By Jim Gaines
The total turnover of the Bowling Green City Commission in Tuesday’s election adds new players to the debate over LifeSkills’ planned move downtown.

But it might also provide a chance for all parties to step back, reassess their positions and start afresh.

“What I would like to see is to have all involved parties come to the table and work this out,” Mayor-elect Elaine Walker said.

LifeSkills, the city of Bowling Green, the Downtown Redevelopment Authority and the Kentucky Heritage Council should meet to find an acceptable solution to the impasse, rather than “fight to the death, one way or the other,” she said.

“I think those are the people that need to get together. We are not here to oppose one another. We need to work together. I think that people need to be willing to give a little bit. And I have not seen that. I have seen intransigence.”

Continued butting of heads serves neither the public interest nor LifeSkills’ clients, she said.

Current commissioners agreed June 29 to buy land on the 500 block between Chestnut and State streets to help the social-service agency build a 40,000-square-foot consolidated headquarters. LifeSkills already owns two properties on the block, and asked the city to buy eight more. Four of those have now been bought, according to Commissioner Joe Denning.

But the project has run into one snag after another:

• Questions about the validity of LifeSkills’ lease to another city property, which it offered in trade.
  
• A looming U.S. Supreme Court ruling on whether cities can use eminent domain to buy property for private redevelopment projects.
  
• Complaints from the DRA that it was being excluded from the very sort of projects it was formed to oversee.
  
• Suggestions that LifeSkills should choose another block, leaving its selected site – next to the centerpiece of redevelopment efforts – for a project that will attract tourists.
  
• LifeSkills’ allegation that opponents of the project were only acting out of prejudice against the mentally ill, and might be sued.
  
• And most recently, in October, word from the Kentucky Heritage Council that one building to be demolished for the LifeSkills project, at 538 State St., needs to be reviewed for historic significance.

“The biggest fear that I have is the city’s recent use of eminent domain,” Walker said. “I have serious concerns about taking private property from an individual and turning it over to another private individual.”

She hopes that the city will hold off on buying more property for the project until the Supreme Court issues a decision.

“I believe that this is an improper use of eminent domain, and I am hopeful that the city commission does not push forward on this,” Walker said.

Incoming commissioners generally echoed Walker, welcoming a broad discussion but asking for a hiatus until that can be arranged.

Brian “Slim” Nash used to work for LifeSkills and wants to see the organization stay downtown – but not on its selected site.

“I do not support – and I’ve said this all along – their locating on the particular piece of property that’s being discussed at this time,” Nash said. “If we can all compromise just a little bit, I think that everybody can walk away from this situation happy.”

The agency should look for another site nearby, but not on the “most prominent piece of property downtown.”

“I truly believe that this is achievable, but if everybody continues to just dig their heels in, nobody’s going to end up a winner,” he said.

His discussions with Dale Bond, president and CEO of LifeSkills, have thus far been “cordial and friendly,” and he would like things to remain on that level.

“I have asked everybody within the LifeSkills organization that I know, not to continue to play this ‘thinly veiled discrimination’ card,” Nash said.

Although Nash admits that discrimination against the mentally ill, disabled and substance-abusers exists, he doesn’t think that has anything to do with various officials’ opposition to LifeSkills’ chosen site.

“It has to do with premier property in a downtown redevelopment project,” Nash said. “It concerns me and it hurts me when people try to paint (other) people into corners by saying that if you’re against them, then you’re discriminating.”

Mark Alcott said that he stands by his campaign statements about LifeSkills: That he wants to see LifeSkills in a downtown headquarters, but not on the block adjacent to Circus Square. He would rather place it a block away, on the other side of Chestnut Street, as suggested by the DRA.

Delane Simpson said that the city should pause in land buying until all the legal facts are known about the land deal, eminent domain and state requirements.

Brian Strow said that he opposes the potential use of eminent domain for promoting private redevelopment projects.

“I do hope that the city has put the purchase of land for LifeSkills on hold,” he said. “If they haven’t, then they need to.”

LifeSkills attorney David Broderick said that he could speak on behalf of the organization in “wholeheartedly” welcoming a roundtable discussion with concerned parties.

“If they want to sit down and talk, that’s a positive sign, and we would welcome the opportunity,” he said.

LifeSkills does not have a problem with waiting until January for resolution, Broderick said.

“I think at this point in time, we have a contract with the city but we’re willing to talk to anybody,” he said. “I think it is a positive statement of the new administration that they want to talk to us, and we welcome the opportunity. Unfortunately, the only dialog that we’ve had has been from (outgoing City Commissioner Jim Bullington), and that has not been very positive.”

Bond backed up Broderick’s statement.

“We’ve had no meetings with the new or the current city administration, and we’ve not had a board meeting,” Bond said. “So officially there’s nothing to say. But I think I would reinforce what David had to say: That we are assured that there will be discussion with both administrations within some reasonable time frame.

“I’m comfortable that we’ll all work together, and things will work out in some reasonable win-win fashion.”

An Oct. 12 letter from the Kentucky Heritage Council says that the city may have violated federal historic preservation regulations by not having the building studied. That could be considered an attempt to circumvent requirements, possibly jeopardizing future funding, according to David Morgan, the council’s executive director.

City staff, who have been working on the land purchases, asked for a special commission meeting this Tuesday to publicly explain their position. The backup documents for that meeting indicate that city staff still disagree with the state’s judgment, and have submitted the respective positions to the federal Advisory Council for Historic Preservation.

According to the meeting announcement and agenda, commissioners will take no formal action at the meeting.

“The city staff is supposed to present all the facts to us about what they’ve found out,” Bullington said. “I would assume that LifeSkills will present any information they want to, the DRA will present anything they want to. It’s just purely a fact-finding meeting.

“In my opinion, ignoring the procedure required for historic properties has given us a black eye with the state. It would really seem that since we did know it was a historic building, we should not have taken the attitude, ‘We don’t have to ask you.’ Just because you don’t have to doesn’t mean you shouldn’t do it.”

And, it appears, the city did have to ask the state historic preservation agency after all, he said.

Bullington said that if the building does require historic preservation review, that process will probably take three months.

“I don’t think all of the questions can be answered before the end of the year,” he said.

Several commissioners have said individually that they would like city staff to stop property acquisition for LifeSkills until the legal questions are ironed out. But that doesn’t carry the force of an official instruction, Denning said.

“My concern is that we as a city commission have not, in session, directed the staff and the city manager to stop buying property,” he said.

But a formal order to halt such purchases may come soon after Tuesday’s meeting, Denning said.

The outgoing commission, in his opinion, has a responsibility to its successor not to undertake any major moves at the last minute.

Commissioner Alan Palmer said the current commission, for its remaining two months in office, is for now locked into supporting the LifeSkills project as approved – at least officially.

“We’re pretty much bound by this contract with LifeSkills to proceed with purchasing the properties in that block,” he said. “I guess we could choose to reverse ourselves on that, but we could face potential litigation from LifeSkills if we step back from that contract.”

Between the historic preservation dispute and the upcoming Supreme Court case, it makes sense to at least pause in land-buying, Palmer said, “but by doing that, what we’re saying basically is, we’ll just turn it over to the new city commission.”

Commissioner Dan Hall said he doesn’t object to adhering to the current deal.

“I guess we’re just going to have to wait and see what LifeSkills wants to do,” he said. “I supported it and I still support it, and if they want to move ahead on it before the end of the year, then that’s what I’ll support.”

Walker said that she admires the outgoing commissioners who want to halt the project until their successors take office.

“They have shown their integrity by that statement,” she said.

One of LifeSkills’ arguments for putting its headquarters on that particular block was the fact that it already owns two of the 10 properties there. But perhaps not for long.

Gary West, executive director of the Bowling Green Area Convention and Visitors Bureau, said that he has talked with Bond and former LifeSkills board chairman Fred Keith about the visitors bureau’s interest in buying the 1875 Underwood-Jones house at 506 State St. LifeSkills now operates a Child Crisis Stabilization center in the building.

The bureau tried to do that in 2001, but LifeSkills asked for the money on a short timetable and the visitors bureau couldn’t line up private backers rapidly enough, West said.

“I’ve always viewed the Dr. Jones house as a potential tourist attraction, for a Shake Rag museum, for New Era (Planning Association) offices, or a place carriage rides could begin or end,” he said. “We treat downtown as a tourist attraction.”

LifeSkills wanted $295,000 for the house in 2001, West said, and if given another opportunity, “we would certainly try” to come up with the money.

Bond said that while LifeSkills has started discussing a sale with West, no decisions have been made.

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Bowling Green Daily News: www.bgdailynews.com

Eminent domain case goes to high court — The Stamford (CT) Advocate, 11/6/04

By John Nickerson
The city's [Norwalk's] eminent domain case against Maritime Motors car dealership isn't over yet.

Yesterday, the state Supreme Court agreed to review the case in which the city's Redevelopment Agency is trying to force the sale of the dealership and its storage lot to Stamford-based Reed-Putnam developer Fred F. French.

The city has been on the winning end of the case, which for 16 months has wound its way through Superior Court and the state Appellate Court.

Sometime next year, the Supreme Court will hear legal arguments unless the case is withdrawn or otherwise resolved, said Rhonda Sterley-Hebert, spokeswoman for the state Judicial Branch.

During of the legal battle, the city has said that the two parcels totaling 1.6 acres are essential to developing Riverwalk, the largest portion of the Reed-Putnam urban renewal plan.

Within the 13-acre Riverwalk site, bordered by West Avenue, Interstate 95 and Metro-North Railroad's Danbury Branch line, the city plans to build four office buildings that will bring an additional 1 million square feet of office space to Norwalk.

But Fred F. French and Maritime LLC, the owner of the dealership at 51 West Ave. and storage lot at 31 Putnam Ave., have been unable to arrive at a selling price.

A month ago, Maritime attorney Michael Taylor of the Hartford-based Horton Shields & Knox law firm petitioned the state Supreme Court asking for an appeal.

Yesterday, Taylor said he was optimistic.

"I'm thrilled that they picked it up. I think its a recognition that our argument is a strong one. Several justices seem to have a concern about the Appellate Court's decision," Taylor said in a telephone interview.

Taylor based his petition to the Supreme Court on two legal points.

The first questions the city's legal right to take the dealership and storage lot simply because it fails to conform to the urban renewal plan's stated objective of locating more office buildings on the site.

"If you have a building, they are not supposed to take it unless they make every effort to integrate it into their plan. The bottom line is they are supposed to keep the good buildings," Taylor said.

Taylor's second argument is that when the plan, which was approved by the Common Council in 1983, came up for amendment in 1998, the city should have advanced a new finding of blight for the area. He believes that with all the improvements made to the plan area over the intervening 15 years, the blight was gone and therefore the plan was complete.

Jonathan Bowman, who is representing the city in the legal battle, acknowledged that eminent domain is a hot issue for the state Supreme Court, but said his case will prevail.

He said the city has made, as it is legally required to do, a "reasonable" effort to include the dealership and its storage lot in the plan. But because the properties are clearly in the way of an expansion of West Avenue and an extension of Reed Street, it would be unreasonable to reconfigure the entire development to suit Maritime Motors.

As for Taylor's blight argument, Bowman said he is unconvinced. Bowman works for the Bridgeport law firm of Cohen and Wolf.

By Taylor's logic, Bowman said, making gradual improvements within an urban plan area would be the kiss of death to the legality of any future amendment. "It's a red herring," Bowman said.

Bowman said he believes that the court decided to take up the case because it wants to weigh in on the issue of how redevelopment plans are allowed to operate in a blighted area.

But one decision by the Supreme Court involving a Stamford diner may raise questions about Norwalk's case.

In 2002, the Supreme Court threw out the condemnation of Curley's Diner on West Park Place in Stamford because the redevelopment agency relied on an outdated finding that the area was blighted.

The court's unanimous decision said a redevelopment agency cannot "make an initial finding of blight and rely on that finding indefinitely to amend and extend a redevelopment plan to respond to conditions that did not exist, or to accomplish objectives that were not contemplated at the time that the original plan was adopted."

To do so, the court said, would confer such agencies with "an unrestricted and unreviewable power to condemn properties" and convert "redevelopment areas into their perpetual fiefdoms."

In 1988, the diner was placed in a redevelopment zone first designated in 1963.

But Bowman said the Curley's Diner case does not apply because the Maritime Motors' properties were always part of the Reed-Putnam redevelopment plan. The 1998 amendment reconfigured the plan, but didn't add new properties.

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The Stamford Advocate: www.stamfordadvocate.com

Magistrate sides with Chippewa landowners — The (Cleveland OH) Plain Dealer, 11/4/04

By Terry Oblander
The Medina County [OH] Park District wants to buy a 68-acre farm on the west side of Chippewa Lake to save it from developers.

Its purchase offer: $530,000.

A court decision issued yesterday to settle a boundary dispute for the property may prove costly, though.

Maloa and Bill Palmer never really wanted to sell the land they had farmed for 28 years and hoped to leave it to their three daughters. But if they did sell, the land would become their retirement nest egg, she said.

Their price tag: $3 million.

Park Director Thomas James said the park board decided last year to go to court to take the 68 acres by eminent domain because the two sides were so far apart and so were the appraisals commissioned by each. Eminent domain is a legal process that allows a governmental body to seize private property for the public good after paying the property owners a fair price.

"There's little likelihood of a solution when there's that big of a difference in the appraisals," he said.

Maloa Palmer sees the court action as an unconstitutional land grab by the county park system.

The Palmers' farm is sandwiched between two parcels already owned by the park district 50 acres on the north and 320 on the south. James said the district just wants to preserve the shoreline of the state's largest natural spring-fed lake from further residential or commercial development.

Relying on deeds more than 150 years old that define the property in terms of "chains and links," Medina County magistrate James Leaver yesterday ruled that the Palmer property extends into Chippewa Lake not to the shoreline as the park board argued.

Leaver ruled that the property extended into the lake, giving the Palmers valuable rights to the portion of the lake.

Most of the land beneath the waters of Chippewa Lake is owned by Chippewa Lake Properties Inc., a subsidiary of Continental Business Enterprises Inc. In 1998, county voters rejected an 0.25 percent sales tax that would have raised $3.7 million needed to buy the 360-acre lake.

Meanwhile, the Palmers are pushing a plan to build 36 homes on their 68 acres and 36 adjoining acres. Medina County Planning Commission staff members have recommended that the planning commission disapprove the plan for several reasons, including the eminent domain action. But, Maloa Palmer said she and her husband have no intention of building the housing development, Chippewa Lake View Estates. She said the plan was developed to demonstrate to the court that its development value is much higher than the county's offer.

The eminent domain trial has been set for Dec. 8 in Common Pleas Judge Christopher Collier's courtroom.

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The Plain dealer: www.cleveland.com

Woman Fighting Eminent Domain Gets To Keep Property — (Dallas-Ft Worth TX) NBC5, 11/4/04

Mansfield Wanted To Buy Woman's 2.5 Acres
A Mansfield [TX] landowner gets to keep all of her property after all.

The city wanted to buy 2.5 acres of Wanda Allen's property to complete a huge development that includes a public softball complex.

State law allows cities to acquire property by eminent domain, if it will better the community, but residents and neighbors opposed the idea, and Wednesday night, the Mansfield City Council agreed to look for another place to build.

"I don't think the city has a right to take people's land from them, it had nothing to do with the money, it's the citizen's right to fight for what they believe in," Allen said.

An architect is still working out the new plans for the development.

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NBC5: www.nbc5i.com

'Wet house' plan relies on eminent domain — [Duluth MN] News Tribune, 11/2/04

DEDA approves a plan to take control of a dilapidated Central Hillside apartment building

By Peter Passi
Nearly two years after the Duluth City Council approved using eminent domain to take control of a dilapidated apartment complex in the Central Hillside neighborhood, the Duluth Economic Development Authority [DEDA] did the same thing.

At the behest of city staff, DEDA members approved taking the old San Marco Apartments, 222-226 W. Third St., with plans to tear them down, making way for a 25-bed home for chronic alcoholics. If all goes according to plan, Center City Housing Corp. will begin construction of the new $2 million facility, called a domiciliary or "wet house," this spring and have it ready for residents before the end of 2005.

Assistant City Attorney Bob Asleson explained that the city's legal authority to seize the property had been questioned, and it was determined that DEDA was in a stronger legal position to take it.

But DEDA commissioners narrowly approved plans to exercise its power of eminent domain, voting 5-4 Monday. Supporting a resolution to condemn and take the property were Greg Gilbert, Donny Ness, Jim Stauber, Russ Stewart and Russ Stover. Opposing the measure were Neill Atkins, Laurie Johnson, Timothy Little and Roger Reinert.

"I don't like seizing property or using eminent domain," DEDA President Atkins said in explaining why he would vote against the resolution.

But the majority of DEDA members were of the opinion that there was a public need for the project, and so far efforts to negotiate a willing sale of the property have been unsuccessful.

Mary Anderson, who owns the building, believes she has not been offered a reasonable price. "It's not fair," she said. "I've been paying taxes on that property for 50 years."

Anderson has been offered $60,000 for the property. Asleson explained that the buildings are unsound and need to be demolished. He said that an appraiser has placed the value of the empty property at $180,000, but it will take about $120,000 to remove the existing structures.

Paul King, Anderson's friend, said the city should rightly pay about 10 times what it is offering for the property.

The apartment complex has been cited for numerous code violations, and the city condemned it for habitation in 1998.

Stewart pointed out that there is a process by which Anderson can make a court appeal in pursuit of more compensation.

Asleson said Center City Housing Corp. would pay taxes on the property after the construction of its domiciliary.

Before DEDA can proceed with plans to take the San Marco Apartments, its action must be approved by the Duluth City Council. Barring any surprises, that should not be a problem, however, because DEDA is composed entirely of Duluth city councilors.

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News Tribune: www.duluthsuperior.com

Eminent Domain Is Mere Thievery — The [New London CT] Day, 11/2/04

Letter to the Editor

By Mark Wickerd, Griswold [CT]
I watched the news recently and witnessed a family in Bristol [CT] having their home torn down to accommodate a new business. The town took their land through eminent domain to sell it to a business for less than it was worth.

The same thing is happening in New London and being fought in the courts right now. I am appalled to see towns and cities “stealing” the homes from families to supply the land to big business (Stealing, n., Taking (the property of another) without right or permission.) These people do not want to sell their land, so city and town officials are using eminent domain taking it for less than it is worth.

This is not what eminent domain was meant to accomplish. It is just city and town attorneys bending the law to accomplish a theft of property.

The rest of us just sit and watch, because it is not happening to us. We are no better than the people who stand and watch someone being assaulted on the street and don't come to their aid.

If you want to help, please check out Web site www.castlecoalition.org before you are a victim.

To all you city and town officials involved in these actions, just remember one thing. In the end, we all have to answer for what we do in our lives and may be when your end comes and you think you are going home, God just might say, “Sorry, your home was taken by eminent domain.”

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The Day: www.TheDay.com

Cities watch eminent domain case — The Business Journal of Kansas City, 10/31/04

U.S. Supreme Court ruling could hinder urban redevelopment

By Jim Davis
Area economic development officials anxiously await a U.S. Supreme Court ruling on what they consider to be one of their most important tools — eminent domain.

The practice lets municipalities take property from owners with whom they can't otherwise negotiate a deal.

Jim Devine, CEO of the Lee's Summit Economic Development Council, said the court's decision could curtail municipalities' ability to assemble land for projects that will produce jobs and taxes.

Although Lee's Summit hasn't used eminent domain to assist private developers, Devine said the threat of condemnation sped negotiations to buy property for the SummitWoods Crossing shopping center. Lee's Summit used eminent domain to acquire ground for a new City Hall, which will open in 2006.

"It's a tool without which we can't do our jobs," Devine said.

Kansas City has been more active in its use of eminent domain. Last month, Jackson County Circuit Judge Edith Messina ruled that the city could condemn the former Jones Store Co. building south of 12th Street between Walnut and Main streets to make way for Kansas City Live, a proposed downtown entertainment district.

Earlier this year, the city used eminent domain to finish assembling property for H&R Block Inc.'s headquarters, which is under construction southeast of 13th and Main streets.

Andi Udris, CEO of the Economic Development Corp. of Kansas City, said eminent domain "absolutely has been critical" to the city's sweeping strategy to revitalize Downtown. But Udris said the Supreme Court's decision won't affect the city's ability to condemn property that has been determined to be blighted. This finding already had been made Downtown.

The court will rule on whether cities can use eminent domain to seize property that isn't blighted. The case involves an attempt by New London, Conn., to take property for a development the city contends it needs to generate more taxes.

Udris said this attempt is more aggressive than Kansas City's stance on eminent domain. The city doesn't attempt to take property that isn't blighted, he said. A blight determination already has been made for the site of the Sprint Center arena, which is to be built northeast of Grand Boulevard and Truman Road.

But a national economic development leader said the blight requirement is cumbersome and adds complexity to cities' efforts to assemble property.

Jeff Finkle, CEO of the International Economic Development Council in Washington, said that having to find blight to use eminent domain adds another step to redevelopment efforts.

The Supreme Court will rule on a narrow issue, Finkle said, but he cautioned that a ruling in favor of property owners could have a wider effect that would limit eminent domain's use.

"There's always a danger that you're going to lose something you had before," he said. "What we had before was the ability to use eminent domain to clear slums and blight."

A Kansas City-area commercial development expert said the Supreme Court will interpret the U.S. Constitution's Fifth Amendment, which lets governments take private property for public uses provided that sellers receive what's determined to be fair compensation.

Kevin Nunnink, a managing director of Integra Realty Resources Inc. in Westwood, said he expects the court to require cities to make a blight finding before pursuing condemnation. This requirement would counter the direction taken by a growing number of state courts, Nunnink said.

The crucial issue becomes how blight is defined, he said. If the court allows latitude in this interpretation, he said the effect on Kansas City's use of tax increment financing and other public incentives would be minimal. Imposing more rigorous standards could prove more debilitating.

"That would be devastating to inner cities," he said. "It would encourage suburban sprawl."

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The Business Journal of Kansas City: www.kansascity.bizjournals.com/kansascity

Interview with City Representative Vivian Rojas — (El Paso TX) Newspaper Tree, 11/1/04

An excerpt
By Steve Ortega
El Paso City Representative Vivian Rojas currently sits on City Council as the first-term City Representative for District 7. Rojas first gained recognition in 2002 as the tenacious spokeswoman for the Invest in El Paso Coalition. The controversial coalition vigorously opposed the proposed tax increment finance districts in the Thomason Hospital area. Spurred by her activism, she ran for City Representative for District 7. In May of 2003, voters elected Rojas to City Council in a run-off election. On October 7, NPT contributor Steve Ortega sat down with Rojas to get her perspective on special interest influence in local government, the transition to a city manager form of government, and her relationship with the Mayor. She also offers insight concerning the new “chief litigator” position occupied by former City CAO Jim Martinez and she weighs in on Dan Power’s sudden resignation from City Council.

NPT: During the previous mayoral administration, you were very vocal in opposing the eminent domain power of the proposed tax increment finance (“TIF”) district for the Border Health Institute. Was this the driving factor in terms of your motivation in running for a seat on City Council?

REPRESENTATIVE ROJAS: First of all, I want to make it clear that I was not an opponent of the Border Health Institute. That is a misconception that was made by the previous administration, who was in disagreement with me about the TIFs. As I became more educated about the TIFs, I strongly opposed them because they were removing the right of the property owners to negotiate the sale (price) of their property. I also found out that the neighborhood were my grandmother lives (which is located in the then-proposed TIF district) was targeted for private sector business. That was an argument that I kept trying to make. If these people (the former administration) are interested in the property of these citizens who have lived there for over forty years then let them (the residents) negotiate so that way they can sell to the private sector.

NPT: So your problem with the TIF district is that the eminent domain power was not going to be used for a public use, but instead for private use?

REPRESENTATIVE ROJAS: Yes, it was being used as a very strong tool to remove the property rights from these property owners. It was being sold as a governmental need, but it was really a private sector initiative. I got involved by attending City Council meetings and lobbying Council members. I also sat up at night watching Council meetings so that I would be an informed advocate.

I really did this to be an advocate for my grandmother because she started hurting physically. She was becoming physically ill. It seems that the perception is that politicians don’t realize how their decisions truly impact people’s lives…sometimes in a negative way. Their decisions can cause people to get ill and stressed out such that they have health problems. People told me I really needed to do my homework. I remember when I was getting involved that I thought that Council members were uninformed and ill-prepared to deal with the issues.

NPT: Should eminent domain ever be used?

REPRESENTATIVE ROJAS: I am not a fan of eminent domain. I will tell you that there are situations, like with the El Paso Zoo expansion, they (the City of El Paso) negotiated the prices with the property owners. I was very happy with that because there was a give and take. They even helped to relocate these people. There were some owners who petitioned for higher prices and the government had to go back to the table and negotiate.

NPT: Right after you were elected, you were quoted by the El Paso Times as saying the following, “I learned to my dismay that public policy is often made with no input from the people involved and when citizens appear before City Council, they are often treated as a nuisance.” After fifteen months on Council, do you think things have changed?

REPRESENTATIVE ROJAS: I think the Mayor’s Neighborhoods First initiative has helped to empower neighborhoods. We’ve had decisions overturned. We’ve had Council members’ opinions and votes change because of the appearance of these neighborhood associations. I’ve learned that you need to get organized. There are times where neighborhood residents have come together to express their concerns and the Mayor may say, “Can you make this short?” or “Can we only have one spokesperson?” I don’t agree with that. We are supposed to listen to the community’s concerns. How else can we understand their problems if we don’t allow communication? Neighborhoods First has empowered neighborhoods, but these residents need to take the time to meet and organize formally.

...

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The Newspaper Tree: www.newspapertree.com

David the landowner fights government Goliath — Canada Free Press, 11/1/04

By Henry Lamb
Three years ago, the government of Collier County, Fla., approved a three-year conditional permit for Jesse Hardy to begin the construction of an aqua-culture project. The plan called for the excavation of four 20-acre fishponds on his 160-acre homestead, about 30 miles East of Naples. The "conditions" placed on the permit were to insure that the ponds were actually the size and depth shown in the plan, and that the project proceeded in an environmentally sensitive manner.

The three-year progress review has been under way for several months. Renewal requires a recommendation by the planning commission and approval by the county commission. Every condition of the original permit has been met, according to Jesse's attorney. Nevertheless, by a vote of 7 to 1, the planning commission rejected the renewal permit Oct. 21; it takes a four-fifths vote of the county commission to override the planning commission. The county commission vote is scheduled for Nov. 16. This vote could be Jesse's last strike.

The material excavated from Jesse's fishpond has proven to be quite valuable road-building material. Collier County is one of Jesse's best customers. The county engineer says that Jesse's site is the only place in the entire county where the material can be purchased. Were it not for Jesse's excavation, the county would be forced to haul the material as much as 100 miles from sites across the state.

Jesse Hardy at his first 20-acre fishpond nearing completion.

Since the permit was first issued, Jesse's land has become the target of rabid environmentalists hell-bent on returning the Everglades to its "natural" condition. The massive, $8 billion project has already forced thousands of landowners off their property. Jesse doesn't want to leave. Engineering studies show that Jesse's land is not necessary to complete the project. What Jesse wants doesn't matter.

Nancy Peyton, of the Florida Wildlife Federation says, "It is not a good location for people to be. ..." Her organization has the money and political clout to lobby local and state officials, while Jesse has nothing more than the revenue from his excavations to pay engineers and attorneys to try to defend his rights. Now the county is threatening to remove his only source of income.

The excavation material under the four proposed fishponds is worth several million dollars. Property-rights proponents contend that if the county denies Jesse the right to excavate and sell his material, the county will have, in effect, taken valuable property from Jesse, for which "just compensation" is due.

Opponents argue that Jesse's right to excavate the material arises from the county's permit in the first place, and therefore, the county has the power to deny the right to excavate.

This argument gives rise to the much deeper question: How does the county or state acquire the power to override the inherent right of an owner to use his property as he chooses?

It's not hard to trace the legislative history of Jesse's situation to the 1976 Comprehensive Planning Act adopted by the state of Florida and extensively modified over the years. There is no question that the state and the county have the legislative authority to deny Jesse the use of his property. Nor is there any question that the exercise of this authority results in extensive financial loss to Jesse.

The state is expected to condemn Jesse's land and take the property by eminent domain. Will "just compensation" be based on the value of the land, including the value of the excavation material? Or, if the permit is denied, will the value of the land be limited to the palmettos, pines, alligators and rattlesnakes – a difference of several million dollars?

When the state secures title to the land, will the state prevent the county from continuing to excavate the material it badly needs, thereby forcing the county to haul its material several hundred extra miles, or will the state effect an agreement with the county that allows the county to continue using Jesse's material for several years before the Everglades project ever touches Jesse's land?

Jesse is one of thousands of victims whose right to own and use private property has been eroded by the socialistic notion that central planning must prevail over individual freedom. In Jesse's case, there is no logical reason why he should not construct his fishponds, selling the excavated material to the highest bidder. His nearest neighbor is miles away, and his land is 30 miles from town. The use of his land as he chooses harms no one, and helps many. Still, Nancy Peyton, and her followers have convinced the county officials that Jesse's wishes and constitutional rights should be ignored to achieve what she thinks is the best use of Jesse's land.

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Canada Free Press: www.canadafreepress.com
Henry Lamb (email: henry@freedom.org) is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International

Lynn eyes taking land from GE by eminent domain — The (Lynn MA) Daily Item, 10/28/04

By David Liscio
City Council President James Cowdell is resurrecting his fight to take industrially contaminated land owned by GE in West Lynn by eminent domain, intending to use the sprawling acreage as an economic development site rather than allow it to remain an asphalt lot surrounded by homes.

Cowdell this week lashed out at GE for what he calls its corporate policy of stalling to avoid a costly environmental cleanup.

"Their tactic is to stall and wait for me to go away, but I'm not going away," he said. "GE does not take care of their properties. I have pictures that show weeds and asphalt and chainlink fencing as their legacy in Lynn."

According to Cowdell, the time has come "to put GE's feet to the fire." The city councilor Tuesday found plenty of support among his colleagues who agreed to vote on a possible eminent domain taking in two weeks.

"GE would be very happy looking at asphalt for the next 50 years, especially on Federal Street," said Cowdell, referring to a paved-over industrial site once home to aerospace instrumentation manufacturing, the ground beneath it contaminated by solvents and other substances.

"Delay. Delay. Delay. Don't spend a nickel in Lynn if you don't have to. That's how they think at GE," he said. "I've tried for two years to negotiate, to work with them, but now I'm convinced they aren't negotiating in good faith. I'm done. They're not even attending the meetings of the task force that was set up to move this process along."

Under Cowdell's plan, the Lynn Economic Development and Industrial Corp. (EDIC) would assume ownership of both lots on Federal Street as a result of the eminent domain taking and develop a re-use plan.

"The land is contaminated and GE should clean it up, considering the company has a budget that's more than most countries in this world. If they won't, we'll do it and send them the bill," he said. "If you stick a shovel into the dirt down there, it'll glow in the dark."

Richard Gorham, a spokesman for GE in Lynn, disputed Cowdell's suggestion that the company is not participating in negotiations or attending the task force meetings. "We've attended just about all, if not all of those meetings," he said, noting that John Craynon, the company's environmental projects manager, has been a key member of the task force.

"What (Cowdell) is saying is very misleading," Gorham said. "The task force was initiated by the city and the mayor's office and it has made tangible inroads. We have reopened Federal Street and more recently completed the sale of lots of Center Street, where housing is planned."

Gorham said GE invested money to environmentally clean the Center Street property, bringing it up to residential standards. "We made it clean enough to build houses on," he said.

GE also worked out an arrangement with the River Works Credit Union, leasing it land for additional customer and employee parking in West Lynn. "We even paved the lot for them," he said.

GE recently sold property on Cooper Street to a private investor who plans to construct a storage warehouse, according to Gorham.

As for GE property abutting Federal Street, Gorham said the company has received several proposals for development, including one from a limousine firm that nearly reached fruition.

"Lots of folks were frustrated when that deal fell through because it was almost finalized," he said, explaining that most proposals relate to the company's defunct Factory of the Future building on Western Avenue, once touted as a model flexible machining center.

"We've moved on from the limo deal and we're currently looking at other options for that property," Gorham said. "We want to find the best use and we're not lying dormant in our approach to it."

Unlike Cowdell, the GE spokesman said the contaminated land has value. "Based on some of the offers we've had for the Factory of the Future building and the lot beside it, I can tell you the property has value," he said. "Value is one of the things that has to be assessed in any eminent domain taking, and it takes time to go through that legal cycle. But at some point, value would be determined."

Meanwhile, GE continues to pump the groundwater beneath the Federal Street property though a series of filters as part of its ongoing environmental cleanup. And residential neighbors continue to monitor their basements for signs of solvent vapor.

"We plan to continue the task force meetings," said Gorham." We think they have been productive."

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The Daily Item: www.thedailyitemoflynn.com

Court must limit eminent domain — York (PA) Daily Record, 10/28/04

Letter to the Editor

By Larry Aiken, Hellam Township
I am pleased to hear that the high court is going to hear a case involving eminent domain. There is hope that they can remind our government that it exists for the protection of the people and their property, not that the people and their property exist to benefit the government.

Homeowners in New London, Conn., are trying to save their homes from being taken for a riverfront hotel, health club and offices. The city officials said it's in the people's interest because it would bring in more money for the town. Using that criteria, if you own valuable land, the government can feel justified in taking it from you and giving it to someone else simply because that someone else may be able to give the government more money than you would.

In our own area, since 1999 the City of Coatesville has been trying to use eminent domain to take the Saha farm, which is located outside of the city and, I would have thought, their jurisdiction. All this effort is to build a municipal golf course and golf-related facilities (real essential services).

Locally, we have York County working on behalf of the Lancaster-York Heritage Region headed by the brother of our U.S. Rep. Todd Platts and with a county commissioner sitting on their board trying to take away the farm, homes and livelihood of the Kohr families to put in a park (real essential services).

So I guess the lesson we learned here is that if you don't own something but want it and the people who do own it won't give it to you — cozy up to all the highest government officials you can.

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York Daily Record: www.ydr.com

Resident continues fight against eminent domain — (Long Branch NJ) Atlanticville, 10/27/04

MTOTSA resident says legal action against city likely.

By Christine Varno
For at least one resident of the [Long Branch] redevelopment zone, events of the past decade have turned life into a nightmare.

But Denise Hoagland said she won’t stop fighting to save her home from being taken by the city through eminent domain.

“I don’t want to be doing this,” said Hoagland last week. “It’s a horrible situation. I want to go back to my old life; I want to go back to being the ‘World’s Best Mom.’ “

Hoagland, [of] Ocean Terrace, resides in the city’s Beachfront North redevelopment zone Phase II, which has been slated for eminent domain.

Plans call for the 36 properties in the three-street neighborhood — Marine Terrace, Ocean Terrace and Seaview Avenue, known as MTOTSA — to be bulldozed and replaced with high-end condominiums.

“My daughter asked me, ‘Mommy, if we live in a free country, how can they take our home?’ ” Hoagland said. “I answered, ‘We live in a free country and we have the power to say what is being done is wrong. And that is exactly what we are doing.’ ”

Hoagland, 37, and her husband, Lee, 38, bought their beachfront home in July 1993 when the house was vacant, overgrown with weeds, and slated for foreclosure. They fixed up the house, ripped out walls, redid flooring, gutted the kitchen, landscaped the yard and added a deck.

“We did everything,” she said. “There was not anything we didn’t do.”

The Hoaglands decided the house, and by extension their neighborhood, would become their home where they could build a family and raise their children.

For Hoagland, a person’s home is an extension of that person.

“So, your home becomes yourself,” she explained. “It’s a creation.”

Hoagland is raising her three daughters in their MTOTSA home — Daisy, 9, Violet, 7, and Jasmine, 5, and she said the thought of losing their home upsets her youngest daughter the most.

Jasmine was home-birthed because, Hoagland explained, when a child is born in the family’s home, it is welcomed into a caring and loving environment.

“Jasmine is the perfect child,” Hoagland said. “Her middle name is Joy, and she is the epitome of joy, and being born here has done that.”

Hoagland said the threat of eminent domain is crushing her daughter and her family.

“Jasmine cannot visualize the destruction of her home,” she said.

“She asked me if we left [the home], if the city wouldn’t knock the house down. That is how much she loves this place. She would leave it to save it.”

The city signed a binding agreement for developer status with co-developers The Applied Cos., Hoboken, and Matzel and Mumford Corp., a division of K. Hovnanian, Middletown, for phase two in 2000.

The developers submitted plans to bulldoze the MTOTSA properties on Feb. 27. According to Long Branch Mayor Adam Schneider, the plans are consistent with the city’s redevelopment plans.

“Nobody told me [when I bought my house] that in the future my home would be plowed down,” Hoagland said. “There was no notification.”

In 1996 the city began to produce its plans to redevelop the oceanfront and downtown Broadway area. Hoagland said that at that time, she attended a couple of the city meetings because she received a notice that her home was located in a redevelopment zone.

“We looked at the little plastic model of my home with the porch and the detached garage and the gardens, and it was still in the plan,” she said. “It was a revitalization. Our area was slated for infill.”

She said she has dedicated the past year to trying to save her home from what she says is the city’s abuse of eminent domain, and it has cost her money, time and separation from her children.

“This has been extremely stressful,” she said. “I do not work out anymore. I can’t. I have no time. I am not going to take any more time away from my children.”

On May 18, MTOTSA submitted to the city a plan the residents designed to save their homes. The plan calls for keeping their properties and blending the new with the old. It includes a commitment from homeowners to repair, restore and remodel their properties to conform to the city’s plans for the oceanfront.

Hoagland said it has become obvious to her that the city has not taken the plan seriously.

Several attorneys have approached MTOTSA who are willing to represent the residents, according to Hoagland, who said MTOTSA is preparing for the fact that residents will be taking legal action to save their homes.

“My children do not know what it is like to not be able to see the sunrise on the ocean every day,” she said. “Are they fortunate? Yes, but why should that be taken from them for someone else’s gain?”

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Atlanticville: atlanticville.gmnews.com

MTOTSA group meets with developer — (Long Branch NJ) Atlanticville, 10/27/04

Residents support redevelopment, resist eminent domain

By Christine Varno
Residents of the Long Branch’s Beachfront North redevelopment zone, Phase II, have designed a revitalization plan for their neighborhood that one resident said has finally been taken seriously.

“This is the first time someone has really listened to our plan [to revitalize the neighborhood],” said Olga Netto, who lives in the redevelopment zone known as MTOTSA — Marine and Ocean Terraces and Seaview Avenue. “We are not interested in selling our properties, but we want to share our plans.”

On Oct. 21, Roger Mumford, president of Matzel and Mumford Corp., a division of K. Hovnanian, Middletown, designated co-developers for phase II with the Applied Cos., Hoboken, held a meeting with MTOTSA.

Mumford could not be reached for comment by press time.

The developers submitted a redevelopment plan for the MTOTSA properties to the city on Feb. 27, which calls for the three-street neighborhood to be bulldozed and replaced with townhouses and condominiums.

The 36 properties in MTOTSA are slated for eminent domain.

“We support redevelopment,” Netto said. “We do not support eminent domain. Do not tell us we have to leave.”

Mumford sent a letter to MTOTSA on Sept. 7 to “communicate our [Mumford’s] desire to meet with you [MTOTSA] for the purpose of discussing the purchase of your property.”

MTOTSA responded to the letter Sept. 18.

“We are still willing to meet with you as a group, with the understanding that we intend to keep our homes, so we can assure you that we will not stand in the way of any redevelopment you wish to perform on land that you or the city of Long Branch owns,” the group wrote.

For two hours at the Ocean Place Resort and Spa on Ocean Boulevard, Netto, along with Lori Vendetti and Denise Hoagland, presented the overview of the MTOTSA revitalization plan to Mumford.

“We took the city’s original plan and showed how we can fit in with the plans the city already made,” Netto said. “We told our [MTOTSA] history.”

The revitalization plan was initially submitted to the city on May 18 and on Sept. 24 the group went public with the plan.

The plan was submitted with a list of the names of MTOTSA homeowners, all of whom signed a statement saying they wanted to keep and preserve their homes, according to Hoagland.

The plan includes a commitment from the homeowners to repair, restore and remodel the properties to conform to the city’s oceanfront redevelopment project, she said.

MTOTSA requested features to further the revitalization of their neighborhood including:

• Information on how to qualify for funding
  
• Year-round resident permit parking
  
• Paving of streets
  
• Sidewalks that conform with work being done in beachfront north phase I
  
• Gas light or solar-powered street lights
  
• Underground telephone and cable lines
  
• Bike paths and open area.

About 90 percent of MTOTSA homeowners attended the meeting, according to Hoagland, who said she asked the developers to read the revitalization plan and consider keeping MTOTSA intact in the redevelopment plan by blending the new with the old.

“He [Mumford] listened to our plan and listened to our stories,” Netto said. “He [Mumford] was quite surprised that people have been here for an average of 46 years. It [MTOTSA] is a third generation of people.”

MTOTSA asked Mumford in the letter on Sept. 18, “Is your letter [on September 7] an offer to purchase our properties or an offer to provide a condominium in an ‘elevator serviced building’ in exchange for our properties?”

Netto said Mumford was very clear in saying at the meeting that if a MTOTSA homeowner has property of equal value to a condominium, a swap could be arranged. If the property is worth less, he indicated, there would be a problem, according to Netto.

A follow-up meeting will be scheduled within the next couple of weeks, according to Netto.

“Positive things are happening,” she said.

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Atlanticville: www.atlanticville.gmnews.com

The eminent domain 'free fall' — The Roanoke (VA) Times, 10/25/04

By Reginald Shareef, columnist

I’ve watched with interest this fall as the U.S. Supreme Court has agreed to hear the case of Kelo v. City of New London. The legal question here is whether a municipality, using the power of eminent domain, can take private property for economic purposes. The case is interesting because it will determine whether cities can seize a person’s property and transfer it to private developers to boost an ailing economy. At the same time, the case is redundant because economic development has been the catalyst behind urban renewal “takings” for the past 50 years.

As the French like to say, “the more things change, the more they remain the same.”

What is different about the Kelo case is the “fig leaf” covering the economic development component of government takings is stripped away as New London openly condemned property that will be used in a private development plan. Heretofore, governments have used their eminent domain powers to condemn property in “blighted” areas, ostensibly to improve them. What a hoax! What really has happened is that these properties were turned over to private developers for economic development.

In Roanoke, we can look at the controversial Kimball and Gainsboro urban renewal policies to see that these were clearance, not revitalization, projects. Where neighborhoods once stood, businesses and other commercial ventures now exist. As I wrote in a 1991 U.S. Department of Housing and Urban Renewal grant that studied the effects of urban renewal on these communities, economic development is at the heart of these initiatives and creates a win/win for private developers (who don’t have to buy the property and thus, develop it cheaply and then sell for a huge profit) and the municipality (which enhances its tax base). The only people who lose are displaced residents who often are not adequately compensated for their property as required by law.

In New London, Susette Kelo and several other homeowners in a working class neighborhood filed a lawsuit after city officials announced plans to raze their homes to clear the way for a waterfront hotel, health club, offices and 80 homes. The homeowners argue that the takings would only be legal if it serves to revitalize slums or blighted areas dangerous to the public.

However, New London administrators contend the condemnations are proper because the development plans serve the “public purpose” of boosting economic growth and thus are valid public use projects that outweigh the property rights of homeowners. The Connecticut Supreme Court agreed and ruled that New London had a valid “public use” to justify eminent domain based on the thousand of jobs and significant revenue that would be generated by the redevelopment of the 90-acre parcel.

The redevelopment plan coincides with a decision by the pharmaceutical giant Pfizer to build a nearby research facility. The property takings are an amenity for Pfizer’s new facility. The plan develops a “24 hour” urban village where Pfizer employees can work, walk, shop, drive and dine.

The model urban neighborhood in the country is located in Legacy Town Center in Plano, Texas, headquarters of the giant information processing company EDS. The town center features pedestrian-friendly streets, upscale boutiques, galleries, restaurants, theaters, a hotel and 640 apartments within a five-minute walk to EDS. The center is within a mile of other large employers such as Frito-Lay, Dr. Pepper and Comcast.

Urban neighborhoods attract the young creative professionals who drive the knowledge economy. These communities have sprouted up in Rockville, Md., San Jose, Calif., and Atlanta. Developers know that “if you build it, they will come.”

The major difference in those urban neighborhoods and the one planned in New London is that private developers purchased the land themselves to build these live-work centers. For instance, Legacy’s developer was EDS Real Estate Asset. Conversely, Pfizer is using the City of New London as a proxy to seize private property. That’s both illegal and unethical.

Pfizer could make Kelo and other homeowners offers for their property at prevailing market rates. That’s what EDS Real Estate Asset did in Plano. However, using the government to take the homeowners’ property under the “just compensation” clause of the 5th Amendment will likely result in final settlements below what the owners could have gotten in the free market.

Talk about a slippery slope &151 government used to pretend it was involved in neighborhood revitalization when the strategic goal was always displacement and economic development. Now, the economic development cover is blown. If the Supreme Court accepts the Connecticut high court’s reasoning, any home or small business could be condemned and replaced by a project that produces more tax revenue.

If that occurs, we are beyond a slippery slope and in a free-fall concerning the 5th Amendment’s power of eminent domain “takings” and just compensation. Government should not serve as the middle man for property takings simply so that businesses can cheaply secure property it desire. Poor people have suffered under this constitutional violation for years. Maybe now, the high court will stop the 5th Amendment from being turned on its head.

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The Roanoke Times: www.roanoke.com

High court decision on eminent domain could answer Waterbury's questions — (Waterbury CT) Republican-American , 10/25/04

By Nicolas Zimmerman
When Tony Bennett serenades Waterbury residents with the opening lines of "I Left My Heart in San Francisco" next month, the Palace Theater will join the arts magnet school and new University of Connecticut branch as a jewel of the city's $189 million downtown renaissance.

The project's boosters say downtown now joins the popular Brass Mill Center mall that opened near downtown in 1997.

Not so long ago the Naugatuck Valley Development Corp., the agency that has overseen the city's downtown revitalization, had a plan they said would funnel shoppers from the mall to the burgeoning entertainment district downtown.

The group had drawn up plans as early as 1997 to acquire through eminent domain more than 40 buildings — covering about eight acres — along East Main Street. Eminent domain gives government the right to purchase private property for public use.

At the time, city planners said they thought the ramshackle stretch of homes and businesses could better serve the citizens of Waterbury if it was redeveloped into higher-end retail and residences. John Lembo, then-project director for NVDC, said the goal of the project was to create a bridge to downtown.

But residents and business owners resisted. Committees were formed and public hearings followed. In the end, a Municipal Development Plan — a prerequisite for cities that wish to use eminent domain — never materialized.

NVDC's president at the time, John Michaels, posed the most pertinent question in this newspaper's pages: "If the tax rolls have the potential to grow, should we clean up East Main Street, add to the tax rolls, or let it sit there?"

Seven years later Michaels' question will finally get a response. Next month attorneys for a group of New London residents will argue that growing the tax rolls — even for economically depressed cities — does not justify a "public use" under eminent domain law.

In the New London case, the city has tried to use eminent domain to develop a residential neighborhood adjacent to pharmaceutical giant Pfizer's new $270 million research facility. The city has argued that the project, which would include a hotel, upscale housing, private offices and more, would benefit the public by generating more jobs and tax revenues than the homes and modest business there now.

The plan called for the city to buy the 90 acres of land that comprised the Fort Trumbull neighborhood, and then lease it to private developers. Ted Taub, a Florida lawyer specializing in real estate and land-use law, said eminent domain has traditionally been used for two purposes: for public projects like roads and schools, or to clear severely distressed slums. The New London case represents neither.

Taub said he thinks the Supreme Court is likely to raise the standard cities must meet to show a redevelopment project serves a "public good."

In its brief to the Supreme Court, attorneys for the New London residents warn of the dangers of the so-called "best use" interpretation of eminent domain laws. Since all homes and small businesses generate fewer tax dollars and jobs than do large businesses, they argue that no individual will be safe if the court rules in favor of the city of New London.

If that is the ruling, Waterbury could seek to resurrect its plans for East Main Street. Lembo said East Main Street could still be a valuable asset to the downtown revitalization plan.

"It's an area that would work to the advantage as a gateway to the downtown area and it's certainly in need of rehab," he said. "But how it's going to be rehabilitated is on the shelf."

But, he added, "It's hard to move forward with a Municipal Development Plan unless you have the support of the community."

J. Paul Vance Jr., president of the Waterbury Board of Aldermen, said he doesn't think the New London decision will have much impact on Waterbury — no matter which way the court rules.

Vance said Waterbury is ahead of the curve when it comes to economic revitalization, thanks to the magnet school, UConn and the reopening of the Palace Theater on the horizon. The best way to lure business to Waterbury, he said, is to get people downtown so they can see that it's safe, lively and has plenty of parking.

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Republican-American: www.rep-am.com