11/26/2004

State High Court Will Hear Appeal Of Eminent Domain Case — The (New London CT) Day, 11/25/04

Seafood company seeking money for value of equipment

By Kate Moran

The state Supreme Court has agreed to hear an appeal from Foss & Bourke, the company that lost its seafood warehouse at Fort Trumbull to eminent domain and is seeking compensation for the industrial equipment that used to be inside.

Unlike residents who refused to give up their homes to eminent domain, Foss & Bourke never challenged the city's right to seize its brick warehouse at 82 Trumbull St. for economic development. However, the owners believe that the city should pay them not just for the real estate but also for the heavy equipment they cannot move to another location.

George Kanabis, the company's attorney, will argue that the city should compensate Foss & Bourke for the loss of an “assembled economic unit” that includes the warehouse and its fixtures –– a 15,000-gallon lobster tank, a 9,000-cubic-foot cooler and special lights, insulated walls and windows, sprinklers, drains and an electric system.

Kanabis said Wednesday that the city and the New London Development Corp. were unable to find a new and affordable location that met the needs of the wholesale seafood business, including proximity to the water. He argued that the equipment lost value because the company had no new location where it could get the machinery up and running.

In other words, selling the equipment as salvage would not bring a price equal to the value the equipment has as part of a functioning business.

“You value it not as equipment per se but as the totality — having everything in place and what that means for the business,” Kanabis said. “Take an old dishwasher in a restaurant. If you have to sell it, it's not worth much, but in place, it has a lot of value.”

In addition, Kanabis said the city should reimburse the company for the special lighting and cooling systems Foss & Bourke installed to keep the seafood fresh — amenities he said would have to be duplicated if the city had found a location where the company could move.

Edward O'Connell, an attorney for the city and the NLDC, said Wednesday that his clients already had factored in the lighting and other features as part of the value of the building.

“Some of these things that their appraiser called trade fixtures were really part of the real estate: the electrical wires and conduits, elevators, window casements, loading docks and things like that,” O'Connell said.

The state Appellate Court agreed with him in a decision issued in September, when a three-judge panel declined to supplement the $336,000 the company got for the building four years ago with additional money for the fixtures.

Judge Barry R. Schaller, writing for the panel, said the company was seeking compensation for the loss of its business, although legal precedent does not award damages for that cause.

The Appellate Court notes in its decision that Connecticut courts have not adopted the “assembled economic unit doctrine” that is recognized in Pennsylvania but which courts in other states, including New York, Ohio, Florida, Alabama and West Virginia, have rejected.

Kanabis argues the state has implicitly adopted the principle and that “it's time now for the Supreme Court to make a decision and let everybody know whether this doctrine is going to be applied in Connecticut or not.”


The Day: www.theday.com

Judge hears Norwood eminent domain case — The Cincinnati Post, 11/25/04

By Kimball Perry

A judge must decide if a Norwood house should be razed to make way for a commercial and residential development, or whether the former owner can appeal a court ruling that awarded the home to the city under its eminent domain laws.

"The point has been that our clients want to keep their property," attorney Bert Gall told Hamilton County Common Pleas Court Judge Beth Myers in a Wednesday hearing.

But attorneys for Norwood and the development countered that the building no longer belongs to Joseph Horney and he should have no say in what happens to it.

Gall -- and his employer, the Institute of Justice, a Washington, D.C.-based agency fighting eminent domain cases across the country -- represents Horney.

Horney is one of five Norwood property owners who refused to sell their property to developer Jeffery Anderson so he could build Rookwood Exchange, a proposed development in the Edwards Road corridor for 200 condominiums or apartments, retail space and 550,000 square feet of office space.

"(Horney's attorneys) say you can have the right to own the property but not the right to use it as you see fit," said attorney Mark VanderLaan, representing the development.

Horney and four other property owners fought Norwood's attempt to take their homes, using eminent domain laws to perform urban renewal on an area Norwood deemed blighted. That was a move the property owners believed was Norwood lending its government power of land seizure to benefit the developer.

Norwood officials insist the move is desperately needed for the financially strapped city, noting it needs the $1.8 million in annual earnings tax the project would add to city coffers as well as the $300,000 per year it would raise for Norwood schools.

Hamilton County Common Pleas Court Judge Beth Myers ruled in June that Norwood could take the property and ordered property valuations trials to determine how much Norwood should pay for each property.

In September, Horney was awarded $233,000 for his property, which he rents out to two tenants. Within days, Norwood placed $233,000 in an account controlled by the Clerk of Courts and then deeded the property to the developer.

Horney wants to appeal that decision but the developer, Norwood and their attorneys, insist that because Horney no longer legally owns the property there is nothing to appeal.

The judge said she would consider Wednesday's arguments and make a ruling at an undetermined future date.


The Cincinnati Post: www.cincypost.com

11/25/2004

Eminent domain: new bully in town — Cleveland (OH) Plain Dealer, 11/12/04

Letter to the Editor

By LeMarr and Patricia French, Willowick OH

Communities like Lakewood and Willowick that have reached the stage known as "full build-out," described in a Nov. 3 Plain Dealer article, go too far when they attempt to seize land for development through eminent domain. Besides being unconstitutional, the taking of property that will not be owned and used by the public is a symptom of a government and a community driven to acts of greed by their hunger for new taxes.

One can only imagine the rage felt by homeowners when government decides that other uses for their property are more desirable because they will produce higher taxes. Imagine the anger created by the pretentiousness of a government that decides that someone's home can be put to a "higher and better use."

In Willowick, city officials have approved a master plan that calls for the construction of condos along the lakefront, including the area where we live. Willowick's Council president has signaled his willingness to use eminent domain in support of this master plan.

Our home, which is on the National Register of Historic Places and which we have no desire to leave, is not to be found in these plans. Instead, upscale condos are shown on top of its bulldozed remains.


The Plain Dealer: www.cleveland.com

11/23/2004

Urban eminent domain case has implications for farmers — California Farm Bureau Federation, 11/24/04

Press Release

By Robyn Rominger

In a case that has significant implications for farmers across the nation, Farm Bureau has taken a position on an eminent domain case that's being heard by the U.S. Supreme Court.

The case is a situation in which the city of New London, Conn., is exercising its power of eminent domain to take waterfront property from private property owners Susette Kelo and others, and give it to a private commercial entity that plans to develop it into a waterfront hotel, office space, luxury homes and other retail businesses.

The U.S. Supreme Court will decide whether governments may seize people's homes and businesses for economic development projects that create more jobs and increase property taxes.

The American Farm Bureau Federation and about a dozen state Farm Bureaus, including the California Farm Bureau Federation, oppose the taking of the private property by the city of New London for this purpose, and plan to file a "friend-of-the-court" brief stating their collective position.

"This is now at the U.S. Supreme Court and it's the biggest property rights case in a long time," AFBF General Counsel Julie Anna Potts said. "That is very important."

CFBF General Counsel Nancy McDonough is also working on this case.

"This is an extremely important property rights case for farmers and ranchers," McDonough said. "It has significant ramifications with respect to local government's ability to take valuable farmland for the purpose of increasing the tax base."

In terms of the Kelo case, "There are homeowners in a working class neighborhood in New London, Connecticut, whose properties are along a waterfront," Potts explained. "The city has decided that they can increase the tax base and make more money for the city with increased economic development in this area. So, despite the fact that some of the homeowners have lived there for decades and do not want to move, they've decided to exercise eminent domain, take these homeowners' private property, and give this property to a private entity to develop."

The city of New London solicited a private development corporation, New London Development Corp., to assist the city in developing the waterfront.

"The city claimed that the economic development was for a public use," Potts said. "Pfizer Corp., a big pharmaceutical company, was building a big research facility on adjacent property. A significant part of New London Development Corp.'s development activity was to create a development that would complement that facility and provide Pfizer's people a place to live, a place to shop and a place to park while visiting Pfizer's facility and give business people a place to stay in a waterfront hotel. And all of this, of course, was a whole lot more money to the city of New London."

She noted that "a bunch of homeowners gave up right away and said, 'We'll take the money that you're offering us and go away,' but there are a few hold-outs. The named plaintiff is Susette Kelo. She bought this little house, likes it and its location, and wants to stay there, so she's been the poster child of defending private property rights."

Originally the case went to a Connecticut state trial court, which ruled in favor of the property owners. Following an appeal, the case went to the Connecticut Supreme Court, which ruled in favor of the city of New London. So the property owners filed a petition for review by the U.S. Supreme Court, which accepted the case for review.

"Now they're going to hear about why this state Supreme Court decision should be reversed or upheld," Potts said. "We believe it should be reversed and are supporting the private property owners. So we're going to file our brief at the same time as the Kelo petitioners are filing their opening brief. We're going to advance our arguments on behalf of agriculture and say that, as a matter of law and a matter of good public policy, individual property rights, including the right to feel secure in your home, will not be condemned for a purpose such as this. Land available for agriculture is constantly diminishing as it is and the taking of private property for this kind of thing could really deal a tremendous blow to farmers and ranchers around the country if it's upheld.

"I just think this issue is so important to Farm Bureau members that every single Farm Bureau member should watch this," Potts added. "This decision will reverberate around the country."

Farm Bureau opposes the taking of private property for public use unless no possible alternative can be demonstrated.

"The California Farm Bureau moved to protect our members on this type of taking over a decade ago when, along with the Riverside County Farm Bureau, we sued the City of San Jacinto over their attempt to 'redevelop' 2,383 acres of productive agricultural land, most of which was protected by the Williamson Act," McDonough said. "Our Governmental Affairs Division then sponsored a change in California's Redevelopment Law to provide added protection to agricultural land from being included in redevelopment projects."

The AFBF board of directors voted to support the homeowners at its October meeting.

"Shortly after that we sent out word to all of the state Farm Bureaus that AFBF was going to be participating in this important case and invited them to join AFBF in this brief," Potts said. "California Farm Bureau was on top of this right away. They were instrumental in getting the law firm who is going to be filing this brief on behalf of Farm Bureau."

The Los Angeles-based law firm is Manatt, Phelps & Phillips. The firm's attorney for the Farm Bureau is Michael Berger.

"He is highly experienced and knowledgeable in this area of law and has an excellent reputation in handling 'takings' cases, including eminent domain cases, and in fact has argued five such cases before the U.S. Supreme Court," Potts said. "He's a renowned expert in this area and the fact that he's doing this on behalf of Farm Bureau is wonderful and it's all thanks to the California Farm Bureau."


California Farm Bureau Federation: www.cfbf.com

American Farm Bureau federation: www.fb.org

Putting freedom into words — The Orange County (CA) Register, 11/22/04

Anaheim City Council bans the use of eminent domain for improper purposes

Editorial Opinion


Your home is your castle. So is your business. Those foundations of liberty were reinforced Tuesday at the meeting of the Anaheim City Council. It passed a resolution 3-1, with one abstention, prohibiting the city from using the power of eminent domain to grab one piece of private property for the benefit of another private person or business.

The resolution was authored by Councilman Tom Tait, a fitting cap to an almost 10-year career on the council spent defending liberty. Term limits made Nov. 16 his last council meeting.

New City Council Policy No. 220 stipulates that "it is the policy of the City of Anaheim that the power of eminent domain not be used by the City Council or Redevelopment Agency to acquire property from private parties, for the express and immediate purpose of conveying such property to any other private person or entity for commercial uses, when there is no public purpose for the acquisition except the generation or increase of sales tax or property tax revenues to the City."

We couldn't have put it better ourselves.

Obviously, the city still can use eminent domain for truly public purposes, such as building roads or schools. But it cannot do so for anything else, including the alleged "public purpose" of bulldozing people's homes and businesses to put up shopping centers that generate more sales tax revenue.

The most famous recent case in which that was attempted, before a federal judge intervened, was in Cypress, Calif. The City Council there tried to take the property of Cottonwood Christian Center and transfer it to Costco.

"It's a clear direction of where Anaheim stands in taking people's property and giving it to another property owner, that we won't do it," Mr. Tait said.

Although doing so currently is allowed by state law, he said that in his opinion the new policy "is an unambiguous message to the world and to the staff that we're not going to do it. It's not just wrong, but unconstitutional. Maybe it could serve as an example to other cities."

Indeed, the U.S. Supreme Court currently is considering Kelo v. City of New London, Conn., where waterfront homes were taken using eminent domain powers to benefit private developers.

Mayor Curt Pringle said that the city already has operated as the new policy stipulates for several years. "But many times people have to be reassured and see what your intent is."

As with the other recent commendable council policy of reducing regulations, that intent is clear: Anaheim protects private property and wants to make it as easy as possible to be a citizen or business in the city of the Angels. However, the new policy could be revoked. So city residents need to remain vocal in telling the council how right it was to ban eminent domain abuses.

The new Anaheim policy should be adopted by every other City Council in California. In honor of the man who pushed the idea, let's call them Tait Policies.


The Orange County Register: www.ocregister.com

11/21/2004

CRA continues to meet residents' needs — Miami (FL) Herald, 11/21/04

Letter to the editor

By Gary Wolforth

Director of Economic Development, North Miami Beach

In the course of public debate, the most important responsibility a government official has is to be truthful and forthright with the citizens he or she serves. Therefore, I am writing to address issues raised in Brian Rook's Nov. 7 letter [Beware: CRA could take your property], regarding the creation of a Community Redevelopment Agency in North Miami Beach.

In the letter, a concern was raised about the use of eminent domain. As most citizens are aware, governments have had the power of eminent domain since the adoption of the U.S. Constitution, and North Miami Beach has had this authority since it was incorporated in 1926. The only time the city has used eminent domain in all that time was to secure a vacant lot to build the police department headquarters.

It is the intent of the mayor and City Council to not use eminent domain to take any property that has Homestead Exemption. The mayor and Council have instructed me to ensure that the redevelopment plan they adopt clearly mandates this protection.

The CRA will not have the authority to acquire homestead-exempted properties from any owner who does not desire to sell his or her property. Any statement otherwise is false.

Additional concern has been raised regarding the creation of the CRA itself. CRAs have existed in Florida since 1969, and approximately 140 of them are in operation. Establishment of this agency will allow our city to capture tax dollars that would have normally gone to Miami-Dade County. Combined with the city's contribution, this money will be used for public improvements, property improvements and business development in the redevelopment area.

Numerous communities have improved themselves by using the resources provided to CRAs, including Hollywood, Fort Lauderdale, Delray Beach, West Palm Beach and Boca Raton.

The city's leadership is currently preparing a CRA plan that will meet the needs identified by the citizens through the public hearing process.

We welcome and urge continued participation and guidance from the citizens, property owners and business owners that this agency is designed to serve.


The Maimi Herals: www.miami.com

Phoenix, ASU plan eminent domain use — East Valley (Phoenix AZ) Tribune, 11/21/04

By Jason Emerson

The Arizona Board of Regents and Arizona State University are backing a plan that will let Phoenix obtain private property for a downtown campus by using eminent domain.

The regents on Friday unanimously approved an agreement with Phoenix that anticipates the use of eminent domain to get property from land owners who are unwilling to sell because of disputes over real estate values.

The agreement also calls for Phoenix to buy and condemn property in the city’s name, take care of paperwork and other obligations related to condemnation cases and land purchases, and provide lawyers for cases.

The deal states that ASU would seek action by the regents, if necessary, to help Phoenix.

Phoenix is assembling land for a 15,000-student ASU campus that would occupy several blocks near the Phoenix Civic Center. The site is generally bounded by Van Buren and Fillmore streets, First Avenue and Third Street. The project is a joint venture between the city and ASU.

ASU officials said they expect difficulties as they build the campus because some land owners are holding out for inflated prices. Eminent domain would ensure land is sold at fair market rates, according to the agreement.

Governments use eminent domain to take private property for a public use. Land owners must get fair value, which is generally defined as the highest price someone would pay to a willing seller. Litigation can result if the parties disagree on the value.

Richard Stanley, ASU’s senior vice president and university planner, declined to give specifics on anticipated condemnation cases.

Tim Keller, a lawyer with public interest law firm Institute for Justice, declined comment on the specific case but said eminent domain abuse comes in many forms, including the government using condemnation to obtain land at below market prices, he said.

The Fifth Amendment guarantees that property owners are justly compensated, Keller said.

Phoenix’s media relations office didn’t return a message last week seeking comment.


East Valley Tribune: www.eastvalleytribune.com/index.php

11/19/2004

Right of 'eminent domain' challenged — Harvard University Gazette, 11/17/04

Weighing the benefits of economic development

By Ken Gewertz

Susette Kelo is about to get her day in court.

This past September, the U.S. Supreme Court agreed to hear a case brought by Kelo and six of her fellow homeowners in the Fort Trumbull neighborhood of New London, Conn., challenging the right of municipal authorities to take their houses by eminent domain.

The case has attracted much attention because it is the first time such a case has come before the U.S. Supreme Court in 50 years and because it represents an opportunity to re-examine what many regard as a growing trend by state and municipal authorities to abuse the right of eminent domain.

Jerold Kayden, the Frank Backus Williams Professor of Urban Planning and Design at the Graduate School of Design, has been watching this case carefully for what it may presage about the future of property rights in the United States. This past Tuesday (Nov. 16), he gave a talk on the subject sponsored by the Kennedy School of Government's Taubman Center for State and Local Government.

"Can a single-family house and land be taken through eminent domain and turned over to a private developer to generate increased jobs and tax revenue? That is in essence the case that is now coming before the Supreme Court," Kayden said.

Kayden explained that the right of eminent domain is sanctioned through implication by a phrase in the Fifth Amendment to the U.S. Constitution. The phrase rounds out a list of protections against unfair government interference, stating, "nor shall private property be taken for public use, without just compensation." The nature of just compensation is always at issue in such cases, Kayden said, with property owners asking for more and government authorities offering less. What is more significant for Kelo v. New London, however, is the interpretation of the words, "public use."

The issue last came before the Supreme Court in 1954 in the case Berman v. Parker when a department store owner in Washington, D.C., sued to prevent the government from demolishing his store to make way for an urban renewal project. Berman contended that it was unfair to take the property of one private party only to give it to another, the private agency that had been awarded the contract to undertake the redevelopment work. The court ruled against him, saying that if the project was in the interest of the community, it made no difference whether the agency carrying out the reconstruction was public or private.

That case set the stage for other cases in which governments took the property of private individuals not only for traditional public uses like highways, schools, or reservoirs, but also to replace "blighted" areas with new construction expected to create new jobs and bring in higher tax revenues.

For example, in 1981, General Motors approached Coleman Young, then mayor of Detroit, with an offer to build a Cadillac plant in a residential neighborhood known as Poletown. On the one hand, the plant would bring jobs and generate tax revenues, but, on the other, a settled neighborhood would be destroyed.

"It was a terrible choice. How do you even begin to decide a case like this? In the end, Young went along with General Motors, and the Michigan Supreme Court sided with the government."

In deciding this case, the court ruled that the benefits to society that would be introduced by the plant outweighed the suffering and inconvenience of the people who lost their homes. But as Kayden pointed out, the future benefits of a given project are always open to interpretation.

"You can always find justification for economic development. I know people at Price Waterhouse who would be delighted to do an economic impact study to show that a manufacturing plant or a stadium or a convention center would benefit the public. But then you could do another study that would come up with the opposite results."

In fact, this is exactly what happened earlier this year when the Michigan Supreme Court reversed its 1981 decision in the case Wayne County v. Hathcock. The court ruled that the county could not use eminent domain to take the property of people living near an airport to clear the way for a noise-abatement/economic development scheme known as the Pinnacle Project. The court ruled that the land could be taken only if it could be shown to be blighted, which it was not.

Susette Kelo and the other residents of Fort Trumbull also firmly deny that their property is blighted, but what is at issue here is whether property can be declared blighted simply because an alternative use of that property would produce greater economic benefits. In the Fort Trumbull example, the drug company Pfizer, which owns a plant adjoining the neighborhood, wants to expand its facilities into the space occupied by the residential area.

"Single-family land use may not be seen as benign," said Kayden. "It doesn't generate very much revenue compared with other uses. Consequently, it may be seen as blight."

Kayden would not predict how the U.S. Supreme Court would rule on this case, although he did speculate about the many different aspects of the case that the court might weigh in making its decision. The court might reconsider the purpose of the Constitution's "just compensation" clause, perhaps taking into account the value of the individual's identity and history or the "demoralization costs" incurred when people are forced to give up their homes to make way for a hotel or a block of high-priced condos. Or the court may shift the burden of decision back on the state courts.

"It's a very tricky issue," Kayden said.


Harvard University Gazette: www.news.harvard.edu/gazette

11/18/2004

Public Power, Private Gain

By Dana Berliner, Institute for Justice

The Despotic Power

As early as 1795, the U.S. Supreme Court described the power of eminent domain—where the government takes someone’s property for a “public use”—as “the despotic power.” Eminent domain has the potential to destroy lives and livelihoods by uprooting people from their homes and businesspeople from their shops. With eminent domain, the government can force a couple in their 80s to move from their home of 50 years. Eminent domain is the power to evict a small family business, even if that means the business will never reopen.

The danger of such an extreme power led the authors of the U.S. Constitution and state constitutions to limit the power of eminent domain in two ways. First, the government had to pay “just compensation.” And second, even with just compensation, the government could take property only for “public use.” To most people, the meaning of “public use” is fairly obvious—things like highways, bridges, prisons, and courts.

No one — at least no one besides lawyers and bureaucrats—would think “public use” means a casino, condominiums or a private office building. Yet these days, that’s exactly how state and local governments use eminent domain—as part of corporate welfare incentive packages and deals for more politically favored businesses.

Public Power, Private Gain is the first report ever to document and quantify the uses and threats of eminent domain for private parties. We have compiled this information from published accounts and court papers covering the five-year period from January 1, 1998 through December 31, 2002. The results are chilling.

Copies can be downloaded, free, from website:
www.ij.org/publications/castle/.
The download can be for the entire report, or on a state-by-state basis.

For a paper-back version of this report, please send a $10, check or money order for shipping and handling, payable to Institute for Justice. Credit cards can not be accepted. You may order up to $5 reports -- cost is $2 for each additional copy. Mail payments to:
Eminent Domain Report
c/o Institute for Justice
1717 Pennsylvania Ave, NW
Suite 200
Washington, DC 20006

Group Says Kansas, Missouri Among Worst Land Grabbers — KMBC-TV (Kansas City MO), 11/17/04

U.S. Supreme Court To Examine Use Of Eminent Domain

You think you own your home or land until a developer comes along and wants it. The watchdog group Institute for Justice says cities in Kansas and Missouri are the worst in the nation when it comes to taking private property for another person's private gain.

"This was our place. That was the family legacy; the family heirloom. I thought it was going to be there forever," said Daryl Penner, who lost his business.

For 70 years, Penner's family ran a business downtown until developers came along and wanted the property, KMBC's Jim Flink reported.

"We just didn't want to sell," Penner said.

Where Penner's shop used to be, is now the future home of Kansas City Live -- a centerpiece of the city's $1-billion plus downtown revival, seized through eminent domain.

"This neighborhood was a health hazard to our community," said Andi Udris, CEO of Economic Development Corp.

The Economic Development Corp. is spearheading the downtown revival, where the city uses something called "blight" to help City Council members determine what stays and what goes.

"There are standards that city inspectors use to determine if properties are blighted or not," Udris said.

Once a property is blighted, Flink said it becomes prime real estate for eminent domain. Some blight seems self-evident, but blight is not black and white.

"Anything is blight if the city legislature says it is," said Sherwin Epstein, an eminent domain attorney.

Epstein said blight, by Kansas City's definition, can be found just about anywhere and is. Flink said the new federal courthouse still sits on blighted land, along with parts of the Country Club Plaza now under development.

"It could be a perfectly sound building that has a business in it that is not prospering," Epstein said.

Roy Kirk's body shop was blighted, too. When his neighbor wanted to expand a parking lot, Kirk knew what was next.

"And I have to fight through legal systems to keep what is already mine," Kirk said.

Because of cases like Kirk's, a group of Washington lawyers, called Institute for Justice, is now fighting for people who claim they are eminent-domain victims.

"Well, if property is being taken for someone else's private benefit, that is not a public use. That not only mangles the words of the Constitution, but it mangles people's basic property rights. And it's outrageous," said Bert Gall, of the Institute for Justice.

For more than 200 years, eminent domain allowed the government to seize a person's land with fair compensation for things like bridges, highways, schools and courthouses.

But 25 years ago, that definition changed when the Michigan Supreme Court ruled that land could be seized for a "public purpose." A purpose that included cities seizing land, giving it to developers who could raise more in tax revenue. Cities started using that definition liberally.

"I plan on running this business my whole life, just like my father has," said Todd Crossley.

Crossley's thriving Ford dealership is blighted, according to the city of Liberty. Crossley said the 30-year-old family business is about to be seized by eminent domain.

"I don't see how it's legal. This is America. You own your own property. Nobody can take it away from you, unless someone has more money than you and then I guess they can take it," Crossley said.

Flink said that it is what more and more cities are doing. Kansas City recently seized Blue Ridge Mall to make way for a Wal-Mart supercenter. Kansas City, Kan., seized land to build the now famous Kansas Speedway. In the process of grand developments, Flink said individual property owners lose their land — a small sacrifice some say.

"And so the question now the public has to decide is: Is one businessman's inconvenience of being relocated to somewhere else in the downtown worth the entire region's economic development future?" Udris asked.

Gall disagrees.

"No one's home is safe if that is the standard — tax dollars and jobs," Gall said.

Penner learned his lesson of eminent domain the hard way.

"You know, you can't fight City Hall. It's unethical, unfair ... it's unconstitutional. It's, like, un-American," Penner said.

Flink said the Penners received $593,000 for their property. That is $17 per square foot. Kirk has been offered $3 per square foot. New construction can easily run $100 per square foot or more.

As for the number of eminent-domain seizures in the metro or nationwide, no one knows for sure because no one organization or clearinghouse keeps a record of all the property seized.

The U.S. Supreme Court will take up the issue of how cities use eminent domain during its next session. The high court will answer the question: Can a city take land from one private owner and give it to another private owner when the only public purpose is to generate more tax revenue?


KMBC-TV: www.thekansascitychannel.com

11/15/2004

Pennichuck seeks injunction to halt Nashua eminent domain petition — Pennichuck Corp, 4/8/04

Press release

Contact: Donald L. Correll, President and CEO, 603-882-5191

Pennichuck Corporation (NASDAQ: PNNW) today announced it has filed a motion in Hillsborough County Superior Court that asks for a preliminary injunction to restrain the city of Nashua from pursuing the taking of Pennichuck property outside the city that is not necessary to provide water service within the city.

Pennichuck also asked the court, in an amended petition for declaratory judgment, for a permanent injunction against the city’s pursuit of its petition to the New Hampshire Public Utilities Commission (PUC) on the grounds it is unlawful.

“We have asked the court to prohibit Nashua from proceeding with its PUC petition in order to stop the irreparable harm being done to Pennichuck and its subsidiaries that began fourteen months ago,” said Donald L. Correll, Pennichuck president and chief executive officer. “Given the magnitude of these issues, we have asked the court to expedite its consideration so as not to prolong the time and expense of additional legal proceedings before the PUC.”

In seeking the injunctions, Pennichuck said the city’s attempt to take properties outside of Nashua is illegal under New Hampshire law, and that the continuation of the eminent domain process would result in additional significant loss of business to the company. The motion also noted that it is in the public interest to halt the PUC petition because serious questions of Nashua’s legal authority have been raised.

Pennichuck’s February 4 petition for declaratory judgment seeks judicial review of and equal rights under New Hampshire law governing municipal takeover of utilities by eminent domain.

The petition asks the court to intervene to end the limbo in which Pennichuck finds itself because of the city of Nashua’s failure to act for more than a year after a referendum vote purporting to authorize the city to pursue taking Pennichuck’s assets by eminent domain. The petition also cites the fact that Nashua’s behavior has caused and continues to cause substantial financial damage to Pennichuck, and is hindering the company’s ability to pursue new business opportunities.

In the amended petition filed today, Pennichuck submitted new arguments based on the city’s March 25 petition to the PUC. Specifically, the company asks the court to issue a declaratory judgment that:
  • the city’s petition is unlawful because it seeks to take Pennichuck property not needed to provide water service within Nashua;
  • the city has exceeded its legal and inherent municipal powers by seeking to acquire property by eminent domain on behalf of a regional water district that does not yet exist and would not have eminent domain authority.


About Pennichuck Corporation
Pennichuck Corporation is a holding company located in Nashua, New Hampshire with three wholly owned operating subsidiaries involved in regulated water supply and distribution in Nashua and towns throughout southern and central New Hampshire; non-regulated, water-related services conducted through Pennichuck Water Service Company; and real estate management and development activities conducted through The Southwood Corporation.

Pennichuck Corporation is traded on the NASDAQ Stock Market under the symbol "PNNW."


Pennichuck Corp: www.pennichuck.com

11/14/2004

Life After ‘Poletown’: What is the Future of Takings in America?

A Roundtable Discussion, Tuesday, November 16, 4:30 p.m. - 6:30 p.m., Chicago IL
Presented by the National Law Journal
and the
University of Chicago Law School

For 50 years, takings jurisprudence has been expanding toward broader definitions of "public purpose." To some, this has been necessary to eliminate urban blight, while others see it as a threat to home and hearth. The tide may have begun to turn this summer when the Michigan Supreme Court reversed the infamous Poletown decision — in which a town was taken and given to General Motors. Things certainly are coming to a head now that the U.S. Supreme Court has agreed to hear two cases: Kelo v. City of New London (a real property takings case) and Lingle v. Chevron U.S.A. Inc. (a regulatory takings case). But what is the right direction to take in shaping the scope of our government’s power to take private property? How courts answer that question will impact the role of government in the development of land and communities in the 21st century. Your home — or your city — could be at stake.


PANELISTS:
Alicia Mazur Berg
Vice President of Campus Environment, Columbia College (Former Commissioner of Department of Planning and Development, City of Chicago)

Dana Berliner
Senior Attorney, Institute for Justice

David Dana
Professor of Law and Associate Dean for Faculty Research, Northwestern University School of Law

Richard Epstein
James Parker Hall Distinguished Service Professor of Law, University of Chicago Law School and Senior Fellow, Hoover Institution

MODERATOR:
Carla T. Main
Associate Editor
The National Law Journal

WHERE:
University of Chicago Law School
Weymouth Kirkland Courtroom
1111 E. 60th St.
Chicago, IL 60637



RESOURCES

Important Cases:
Related Articles:
The U.S. Supreme Court has granted certiorari in two controversial takings cases. For more reading on those cases, see the following briefs filed with the high court:

Developer files lawsuit against businessmen — The (Brazoria County TX) Facts, 11/14/04

By Elliott Blackburn

Two Freeport (TX) business owners and Web site operators will not
change or remove a Web site criticizing development plans in the city despite a libel lawsuit filed against them, the men said.

Dallas developer Walker Royall filed the suit against Wright Gore Jr. and
Davis Henderson, both pitched in an eminent domain battle with the city. The lawsuit accuses the men of libeling Royall through two Web sites and with advertising for the Web sites.

Both men stand by their Web site and said they will not remove it.

"The Web site is going to stay up," Gore said. "We look forward to having
our day in court to defend our first amendment rights."

Attorneys representing Royall did not return phone calls seeking comment. No
court date has been set in the case, which was filed in August, and Royall did not specify what damages he intended to claim in the lawsuit.

Royall is the developer behind Freeport Waterfront Properties, a partnership
with the city working to build a marina that city officials believe will be the key to downtown development and revitalization.

The city needs roughly 600 feet of waterfront property owned by TriCo Shrimp
Co. and Western Seafood for slip space in the marina project, City Manager Ron Bottoms said.

Freeport condemned 100 feet of Western Seafood's property through eminent domain, the power of a government to take private land for public use. Gore challenged that in federal court earlier this year, and now both parties await a U.S. Supreme Court ruling on a similar case to determine whether the condemnation will stand.

The city is hopeful it will reach an agreement with TriCo representatives
soon, but efforts at informal talks and mediation for the remaining 300 feet, which belongs to Western Seafood, have been unsuccessful, Bottoms said.

"It doesn't look very favorable at this point, which is disappointing,"
Bottoms said. "It's really hurting our businesses in the heart of the city."

The lawsuit states that the Web site falsely claims Royall instigated the
eminent domain proceedings and that homes would be included in the eminent domain proceedings. The lawsuit also takes issue with statements that Royall is richer than anyone in Freeport and began collecting Porsche sports cars as a teenager, according to court documents.

Royall does not own a Porsche and did not instigate talks about waterfront
development, according to court documents filed by his attorneys. No residences are slotted for eminent domain seizure under the planned development, the documents state.

Though the suit was filed in district court in August, according to court
documents, Web site and Western Seafood owner Wright Gore III said he did not know about the case until after a September meeting with Walker Royall.

"As soon as I finished meeting with him, he had some guys sitting outside
waiting to give that to me," Gore said.

Dennis Henderson, owner of TriCo and codefendant in the lawsuit, said he had
not been served with papers from the suit but stood by the statements on the Web site.

"We never, ever, ever said anything that wasn't true," Henderson said.
"Everything on that Web site is true, so I'll see Mr. Royall in court."


The Facts: www.thefacts.com

Restoration should have first priority — Daytona beach (FL) News Journal, 11/14/04

Almost all of U.S. 1 in northern Volusia County runs through community redevelopment districts. There are good reasons.

The aging east coast route is lined with many structures that housed businesses and motels in an era when families traveled to Florida on two- or three-lane roads. Times have changed, and many of the dated buildings have not. Its structures cry for renewal — more than can be addressed by a coat of paint or two.

That is why the Legislature specifically included "deteriorating and economically distressed" coastal and tourist areas along with general urban renewal in the language of the Community Redevelopment Act of 1969. The statute, which has been enhanced in years since, gives extra powers to cities to clean up decaying and declining neighborhoods.

Under the law, cities can set up a Community Redevelopment Agency [CRA] and define the geographical boundaries of a distressed area. The agency can create a tax-increment financing system that captures a portion of future tax dollars, which can be used only in the redevelopment district.

The law also gives cities the capacity of bonding to assist private development and the use of eminent domain to buy land when owners refuse to sell. Such powers are prone to abuse, but so far have been used responsibly in this region. Eminent domain has been used sparingly — and area government leaders correctly define it as a last-resort device.

Cities need these renewal tools to attract private investors. Without incentives, it is far cheaper and easier for developers to build on urban edges, plunging deeper into Florida's hammocks and agricultural lands.

Daytona Beach's Main Street Redevelopment Area may be the area's best-known CRA project. Since 1982, it has grown the Ocean Center convention conclave, Ocean Walk and Adam's Mark resorts and more — and these developments have clearly spurred investor interest that affects all of northeast Volusia County.

But CRAs are not just about big projects. DeLand and New Smyrna Beach, for examples, have used CRAs successfully for lower-key undertakings, such as renewal of streetscapes and building facades to retain and grow businesses in their downtowns. In yet another example of a CRA benefit, South Daytona plans to use its TIF funds to bury electric utility lines, beginning in January.

More troublesome are cities that set up CRA projects on the edges of cities in wooded lands — such as Palm Coast did this year and Ormond Beach is preparing to do. While legal, such districts are at odds with the aim of reducing sprawl.

Even when they do what they are supposed to do, CRAs are not risk-free. Cities can go too far by creating too many or too large districts, which can tie up tax revenue at the cost of the rest of the city. Still, CRAs are a means, when used wisely and in combination with other tools, to direct investment back into the neglected, antiquated urban areas.

WHAT IS A CRA?

In 1969, the Legislature authorized local governments to set up special renewal districts as separate legal entities. The concept aimed to give counties and cities extra tools to restore business districts and neighborhoods that had seen better days. The acronym can refer to "community redevelopment areas" but usually refers to the local oversight body, which is called a "Community Redevelopment Agency."

WHAT IS A CRA DISTRICT?

Local governments draw geographical boundaries around areas needing rehabilitation. The district, under law, must include one or more of these elements: A slum area, a blighted area, or an area in which there is a shortage of affordable housing for residents of low or moderate income, including the elderly, or a coastal and tourist area that is deteriorating and economically distressed due to outdated buildings, inadequate transportation and parking facilities, faulty lot layout or inadequate street layout.

WHO RUNS THE DISTRICT?

Either the county or city government, depending on circumstances. Local elected bodies appoint the CRA and an advisory board that reports to the CRA. In many cases, the CRA is the city's or county's elected officers. The appointed advisory board consists of five to nine members who reside or have businesses in the redevelopment district plus others, such as a local architect and planning representative. Advisory board members serve four-year terms and are the chief policy-makers for renewal.

Home-rule charter counties, such as Volusia, have exclusive power under law to establish community redevelopment agencies and may delegate part or all of the power to cities.

WHAT ARE A CRA'S POWERS?

A CRA has several tools to encourage private-sector redevelopment. To raise revenue, the CRAs can institute tax increment financing (TIF), issue bonds and apply for grants. The agency's main purpose — often relegated to the advisory boards — is to create and implement a redevelopment plan. To do so, the CRA can buy and sell property, and it has authority to condemn property for public benefit (known as eminent domain). It can construct roads, sewers, water lines, parks, public facilities and improve buildings within the district borders. It cannot build general-use public buildings or use its funds for regular city or county operations, except for community policing within district borders.

WHAT IS TIF?

In Florida, tax increment funds are derived from property taxes. The first year that a CRA district is designated, a base is set for property-tax revenue and that base is frozen. After the initial year, increases in tax revenue above the base — with some exceptions — are channeled into a special redevelopment trust fund that can be used only in the designated redevelopment area. TIF is not an additional tax on property owners. Ideally, TIF funds encourage private-sector redevelopment, whose new taxes are routed into the redevelopment trust fund. TIF dollars can be used to help fund private projects.

A number of taxing authorities are exempted from the TIF pool. They include school districts, library districts, multi-county authorities (such as water management districts, metropolitan transportation agencies and mosquito-control agencies).

WHAT IS EMINENT DOMAIN?

If an owner refuses to sell property needed for a redevelopment project, a local government (not the CRA itself) can condemn the property and buy it at fair market value. Most governments, including those in Volusia and Flagler counties, consider eminent domain a last-resort measure. Eminent domain can be used only for a public purpose. It cannot take place without public hearings and the involvement of the property owner.

— Compiled by Kay Semion

CRAs in Volusia, Flagler counties

DAYTONA BEACH:

(1) Main Street: Established in 1982, it covers the city's beachside business districts and neighborhoods from International Speedway Boulevard to Oakridge Boulevard.

(2) Downtown/Ballough Road: Two districts established in the 1980s are run by one board. The territory covers the Beach Street and Ballough business areas plus neighborhoods from the Halifax River to beyond U.S.1.

(3) Midtown: Formed in 1998, it was first known as the Westside Redevelopment Area. It includes properties near Bethune-Cookman College west to the Daytona Mall.

(4) South Atlantic: Established in 2001, it covers the beachside properties south of International Speedway Boulevard to the Silver Beach area.

PORT ORANGE:

(1) Town Center: Formed in the 1990s, the area encompasses both sides of U.S. 1 from the north city limits south to Rogers Avenue, plus both sides of Dunlawton Avenue from Spruce Creek Road east across the Halifax River.

(2) Eastport Business Park: Established in the mid-1990s, the district is south of Oak Street east of Spruce Creek Road across the Halifax Canal.

ORMOND BEACH:

(1) Granada/Bovard: Established in 1986, the area encompasses properties along the Granada Boulevard corridor from A1A west to Orchard Street.

(2) Ormond Crossings: Still in development stages, the district encompasses nearly 3,000 acres, mostly wooded, near U.S. 1 and I-95.

DELAND:

(1) Downtown: Set up in the 1980s, the redevelopment district runs along the Woodland Boulevard business district, extending into surrounding areas.

(2) Spring Hill: Still under development, a partnership between DeLand and Volusia County was created this year for the unincorporated area, near Woodland Boulevard, Beresford Avenue and Spring Garden Road.

SOUTH DAYTONA: Established in 1998, it covers a corridor along U.S. 1 and the Halifax River and some areas to the west.

HOLLY HILL: Created in 1996, it covers a corridor along U.S. 1 and LPGA Boulevard.

NEW SMYRNA BEACH: Set up in the 1990s, the district runs along Flagler Avenue, Canal Street to areas west of U.S. 1.

MARINELAND: Established in 2002, the area covers the entire town and its handful of residents.

FLAGLER BEACH: Created in 2002, the area includes most of the city's downtown.

PALM COAST: Created in 2004, the area consists of nearly 3,000 acres of mostly undeveloped land along State Road 100 between Belle Terre Parkway and Old Kings Road.


Daytona Beach News Journal: www.news-journalonline.com

How Not To Lose Your Land — Investor's Business Daily, 11/15/04

By Doug Tsuruoka

You've probably heard the horror stories: Home and business owners are forced to sell their property because a government — either federal, state or local — wants to use that site for something else.

Ed Hathcock is a property owner who fought the law. Unlike the guy in the famous song, Hathcock won.

Under a law called eminent domain, a government has the right to take private property for public use. The Fifth Amendment of the Constitution also holds that "just compensation" be made in such cases.

Attorney Alan Ackerman says anywhere from 20,000 to 30,000 eminent domain cases surface every year in the U.S.

Ackerman is managing partner of Troy, Mich.-based law firm Ackerman & Ackerman. His office handles about 250 eminent domain cases a year.

Hathcock, one of Ackerman's clients, owns Gem Products, a cabinet-making business in Romulus, Mich. Hathcock was among business owners in the area who refused the county government's compensation offer because they said it sharply undervalued their companies.

When they refused, the government invoked eminent domain.

Hathcock and the others filed suit in 2001 against the county's move. The case wound its way through the courts for three years, until the business owners won in July.

Not all eminent domain cases involve small businesses. Some involve bigger firms that must move because of roads or other projects.

The issue pops up often these days as local governments use eminent domain powers to kick-start area economies.

Shopping, Police, Whatever

In principle, says Ackerman, there's nothing wrong with governments doing that.

But, he says, governments often blur the line between public and private use. Taking land to build a new shopping development that will benefit a town is sometimes viewed on a par with building a new police station, he says.

Ackerman contends that's an abuse. But he says businesses now have more ability to protect their rights in such cases.

For example, in Hathcock's case, the Michigan Supreme Court reversed a 1981 decision about the government's right to take property under eminent domain.

The decision let Detroit clear a residential area known as Poletown so General Motors (GM) could build a plant.

The city, suffering high unemployment and a depleted treasury at the time, argued that the economic benefits of the plant — increased jobs and tax receipts — were a proper "public use" of the property.

Until this year, that Michigan case had been used to justify similar government actions in eminent domain cases in states across the U.S.

But in its July ruling, the state Supreme Court ruled that it's unconstitutional under Michigan law for the government to seize property for economic development projects.

Ackerman says the reversal sets another legal precedent that can be cited to affect eminent domain cases in other states.

Hathcock, a Massachusetts Institute of Technology graduate whose business is in a town 20 miles west of Detroit, employs 12 workers.

His case arose because Wayne County had been buying up business properties to make room for a runway extension at a regional airport.

Ackerman says the county compelled purchase of 500 acres from local owners citing "noise mitigation," or the need to remove people who are in unhealthy earshot of the runway.

The county bought another 500 acres from owners willing to sell.

The county then decided to use some of the land not for a runway extension, but for an office park. The project was financed by a private developer.

The offices were slated for construction on 100 acres of land owned by Hathcock and eight others.

When they refused to sell, the government invoked eminent domain.

The legal victory for Hathcock and others means the county can't force business owners to move if the property is earmarked for commercial use.

The county can't appeal the decision to the U.S. courts because federal eminent domain rights weren't involved.

Ackerman says the Michigan court's decision deters government from fostering development through a common eminent domain option. This is where property is condemned due to blight or an environmental cause, but then turned over to a private developer.

"The government can still take property for blight clearance and environmental condemnations. But you're not going to have a Wal-Mart coming into a city (using this legal reason)," Ackerman said.

Five Simple Rules

"The decision drew a line in the sand," Hathcock said. "It said municipal, county and state organizations don't have the right to separate people from their property just because they say they have a better use for (the property)."

Ackerman says small business owners should remember a few basic rules when dealing with eminent domain cases — especially if they've received a written notice or heard a rumor that their property may be taken in such an action:
  • Do not discuss any issue pertaining to the value of your property with anyone without first consulting a lawyer. This could affect the compensation you get under eminent domain.
  • Don't attempt to value your property without the advice of a competent real estate appraiser. Get a lawyer's advice before retaining an appraiser.
  • Don't attempt to get building permits, variances, zone changes, subdivision approvals, curb cuts or reductions in tax assessments without consulting your lawyer. These permits may affect how your property is valued or rated in an eminent domain proceeding.
  • Don't permit anyone to conduct tests, such as explorations for hazardous waste or checking wells for water supply, unless your lawyer gets written agreement that all test results will be supplied to you. The results of such tests may bolster the government's case to condemn your property on environmental grounds.
  • Don't supply copies of leases, expense records, profit and loss statements or similar documents to the government or its representatives without referring such requests to your lawyers. These records can affect how your property is valued in an eminent domain case.

Though many business owners don't like shelling out legal fees, sometimes it's in their best interest, says Hathcock.

"Consulting a lawyer like Ackerman was fundamental to the success of this case," he said.


Investor's Business Daily: www.investors.com

11/13/2004

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."


USA Today: www.usatoday.com

11/10/2004

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.


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.


Bowling Green Daily news: www.bgdailynews.com

11/09/2004

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.


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.


The Wall Street Journal: www.wsj.com