Camden business block, library would be spared: (South Jersey) Courier-Post, 2/11/05

Council acts to save properties
By Luis Puga
[Camden NJ] City Council members on Thursday amended a $1.3 billion downtown redevelopment plan, acting to preserve the current library, a business block, an office building and a private home.

Council members also tabled a controversial ordinance that would allow 72 properties in Cramer Hill, including 43 occupied homes, to be taken by eminent domain.

"They did the right thing, but this isn't over yet," civic activist Frank Fulbrook, who fought to save the Federal Street library, said after council approved the amendments.

Council members were considering the downtown plan on second reading, the final step before a measure can be approved. But the amendments created a new plan, so council members must have a public hearing and second vote at a yet-unscheduled meeting.

The amendments would preserve the library at 418 Federal St. and the South Jersey Legal Services building at 745 Market St. It would also spare businesses along the 500 block of Market Street and would remove a private home in the 400 block of Lawrence Street from the "may be acquired" list.

Attorney Mike DelDuca, representing South Jersey Legal Services, expressed gratitude, but noted that Randy Primas, the city's state-appointed chief operating officer, could still overturn council's decision.

"Thank you, but we know you don't have the final word on this," he said.

Primas could not be reached before press time for his reaction.

Fulbrook presented 806 signatures on a petition to keep the library on Federal Street. The plan called for the library building to hold county offices and for a new library to be built downtown.

The revisions to the downtown plan passed in a 4-2 vote.

"I support the first three amendments, but not the fourth," council President Angel Fuentes said. He and Councilman Israel Nieves voted against the amendments. Councilman Frank Moran was absent.

The Market Street amendment was proposed by council members Ali Sloan El and Dana Redd. Redd said there was no developer interested in that portion of the city and no existing plan for what would be built there.

"I don't feel comfortable leaving them to be acquired if there is no plan and no project that is moving forward," Redd said.

Eric Eifert, owner of 418 Lawrence St., convinced council that his small plot, with a single-family home, should not be acquired by eminent domain for the expansion of Rutgers University. He noted that the home has historic value and that Rutgers would not have to pay taxes on the lot.

However, most of the 86 people who attended the meeting came to comment on an ordinance to acquire 72 properties by eminent domain in Cramer Hill. Eminent domain allows the city to acquire private property for public use. The properties would be acquired to make way for the construction or rehabilitation of low- and moderate-income housing.

Olga Pomar, an attorney with South Jersey Legal Services, said council shouldn't adopt the ordinance because of ongoing litigation surrounding the $1.3 billion Cramer Hill redevelopment. She also noted that council is in the process of readopting the plan.

"Eminent domain is an extreme option," said Ivan Foster, a Cramer Hill resident. "Why use it at this juncture?"

However, Olivette Simpson, of the Camden Redevelopment Agency, told council members that the acquisitions were not part of the redevelopment plan. She said they would facilitate building replacement housing for residents of Ablett Village and Centennial Village. Those residents would be relocated under the redevelopment plan.

While Sloan El pressed to vote against the ordinance, it was tabled in a 4-1 vote, with Redd abstaining.

At the same meeting, the Bergen Square Redevelopment plan was approved on first reading. Council members amended that plan to include an avenue. The avenue is smaller in width than a proposed boulevard that planning board members opposed when they approved the plan in December.

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Courier-Post: www.courierpostonline.com

Case University symposium on eminent domain video is online

A video of the Case University symposium on eminent domain is now archived on line. http://law.case.edu/centers/business_law/content.asp?content_id=63

Eminent domain laws don’t play by rules of Game: Virginia Farm Bureau Federation, 2/10/05

Earl Game is 76 years old. He would have retired from his business, Game’s Farmers’ Market, 10 years ago had he not been called to battle.

Game has waged war with the Virginia Department of Transportation and Hampton Roads Center Parkway. At issue was his business — a Newport News staple even before he bought it in 1972—and the land it occupied.

The state needed the land in 1999 to complete the parkway, a major highway as wide as six lanes in spots, connecting Hampton to Newport News. The new road intersects with Harpersville Road, where Game’s land and store are located. Construction went right to the doorstep of the business.

“The front entrance to the store was right on the intersection — I mean right there,” Game said. “They backed off adding one of the lanes they’d planned, and I reworked my parking lot and put up a couple of new entrances.”

Game used some of the money he received from the state for his property to make the adjustments, but he had to “fight ‘em like a dog,” as he puts it, to get the compensation — nearly $800,000.

“The state’s initial offer was for a little more than $24,000; they wanted to make a quick take on the property,” he said. “I wouldn’t agree on the settlement, so we went to court. I’ve got a $5 million-dollar-a-year business here; they were going to give me $20,000, $25,000, but it was going to cost me $150,000 just to do the electrical work needed from the disruption.”

Eventually, Game was awarded more than 30 times what VDOT originally offered him.

“I felt like I had no rights, like VDOT was telling me, ‘This is the law, so we can do it,’” he said. “I’m not against eminent domain per se, if you need my property for the public good. But I should be reimbursed so I can put my business back in shape after they’re done with it.”

Eminent domain issues have become such hot topics that Virginia Farm Bureau has initiated two bills currently in the General Assembly that address the subject.

HB1820 would require prerequisite actions by a condemner prior to exercising right of entry onto identified property, including communicating information to the landowner concerning the names of representatives that will be entering the property. Those individuals would be required to carry identification. If a court determines that the property has been damaged by an entrant, the property owner would be eligible to receive costs or expenses incurred.

HB1821 seeks to require condemners to pay the landowner’s costs and experts’ fees, excluding attorneys’ fees, if an award at a trial exceeds a final offer by more than 30 percent. Both bills have cleared the House of Delegates and were crossed over to the Senate on Feb. 8.

Game reasons that, in the long run, the state would be better off offering to work with property owners by making initial offers that consider not just the value of the property, but also costs involved in renovating. He believes if the state had simply worked with him in the beginning, costs associated with going to court could have been avoided. When VDOT goes to court, it is taxpayers’ money that is spent.

“I’m not bothering anybody, I’m paying my taxes, I’ve got 60-some employees; I like to think I’m doing somebody some good,” he said. “If they can take a man’s property, they should come to us and help us stay in business. And why should it cost me money, not to mention time away from work, because they messed with me?”

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Virginia Farm Bureau Federation:
804-290-1019, website www.vafb.com

Earl Game: 757-595-1887

Interview with Dino Paspalakis: NewPatriot Radio, 2/9/05

Interviewed by host Bill Mabon
Dino Paspalakis has been fighting an abuse of eminent domain, in which the City of Daytona Beach wants to take his family business — an amusement park on the city's Boardwalk — and turn it over to private developers for condominium and other upscale gentrification projects. Dino was recently interviewed by host Bill Mabon on New Patriot Radio.

Listen to the interview at www.NewPatriot.us

City to seize property via eminent domain: Hesperia (CA) Star, 2/8/05

By Beau Yarbrough
After a year of negotiations, the City of Hesperia [CA] is moving to forcibly acquire land it wants for road and drainage improvements on Sultana Street.

The land, on the north side of Sultana Street from Fuente Avenue to where it dead-ends at the California aqueduct, is to get public works improvements — including paving and storm drainage — as part of the improvements required in the construction of a 325-unit housing tract south of Sultana Street.

Forecast Homes contacted six separate property owners, but only five have sold the necessary portions of their properties to the company. A year after negotiations with the homeowners began, Forecast Homes asked the city to step in. The Hesperia City Council voted last Wednesday to begin eminent domain proceedings.

The legal seizure of the land won’t happen overnight, though.

“Nothing will happen quickly,” City Attorney Sam Crowe said at the meeting, noting that it would take “years to go to trial.”

In the meantime, the negotiations continue with the Guttman family trust, which owns the parcel of land.

“I don’t think there’s an argument with the street” going in,” Crowe said. “There might be an argument with the value.”

That is exactly the problem according to Bruce Guttman, who spoke at the meeting representing the Guttman family trust.

The County of San Bernardino appraised the 30-foot strip that will form the northern half of Sultana Street from Fuente Avenue to the aqueduct and runs the entire width of the parcel as being worth $500.

Guttman said the appraisal works out to less than a penny and a half per square foot. A later verbal offer from Forecast was $43,000, according to Guttman.

“That is not a realistic, viable offer for the property,” Guttman said, “But it’s a start, at least.”

The county appraised the land as having relatively little value “based on the fact that it’s totally unbuildable property,” City Engineer Mike Podegracz said later. The property is the continuation of a city street, the development code requires that “when the development occurs on the Guttman property ... it will be required to be street right-of-way. Because of that, it has a nominal value.”

Councilwoman Rita Vogler was the lone dissenter in the 4-1 council vote to exercise the right of eminent domain.

“I think we just jumped too fast on this,” Vogler said later. “The absolute last thing you ever want to do is take someone’s property.”

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Hesperia Star: www.hesperiastar.com

Educational forum held on eminent domain: Haddon (NJ) Herald, 2/9/05

By Dan Keashen
The first time I knew my house was in a redevelopment zone was when I found surveyors on my property over the summer," says Westville resident Jason Mchenry.

Since the redevelopment has come to Westville many residents are concerned about their homes being taken through eminent domain.

A group of Haddon Township residents made a special trip to the small river town to provide answers and solutions.

In the summer months of last year the Land Use Commission of Westville - on the basis of a determination of need report by an outside planner - designated a swath of water front property as a redevelopment zone.

In mid-January the town council and Mayor Bill Packer passed the controversial resolution in front of a crowd of 250 dissenting residents.

Once the legislation was passed for the use of condemnation on 30 properties along Timber Creek residents needed find out how to save their homes.

After Mchenry got an official notice of the redevelopment zone he started to do research into eminent domain.

He found out the process is the power in which a municipality is given by the state of New Jersey to condemn blighted properties for the public good.

He says that he was given the contact number of Haddon Township resident John Smith by the Castle Coalition - a non-profit grassroots organization that organizes residents against the abuse of eminent domain.

"Jason called me up and asked me if I could help him save his house," says Smith.

At St. John's Lutheran Church, urban planner and the Lead Coordinator for We C.A.N. of Haddon Township, Pat Seidman addressed the concerns of residents like Mchenry.

Sitting at a table in front of a packed room Seidman and We C.A.N comrades John and Jean Smith explained the process of eminent domain.

"When we started talking about our situation in Haddon Township you saw a state of shock settle in to the crowd. I don't think anyone knew the full impact of the redevelopment resolution," says Smith.

Smith notes the residents of Westville were looking for a way to fight for their homes.

"They needed to figure out a solution, but I don't think they realized how overreaching the redevelopment statutes of New Jersey are. We gave them our perspective of what we've done and what can be done to stop this injustice by local municipal leaders," says Smith.

He adds the overall consensus was the way to stop redevelopment and condemnation is to change your political leaders that put "tax rateables as a priority over residents."

Seidman - who lectures on the subject community planning, development, and public participation - says the community of Westville needs to organize and work together on the issue.

"I wanted the residents of the town to know, if they stood together on this issue and pulled for each other they had a better chance of stopping this land grab."
Seidman says one passionate person can change things in a community.

Mchenry says the most important lesson learned from the meeting was to organize with other residents against the unfair taking of property.

"We're going to need to really come together like they did in Haddon Township. We need to find a change in the local government because in this case they've forgotten about the hard working residents that put then in office," says Mchenry.

While Mchenry and his peers organize for the fight to save their homes the municipal government is continuing to go forward with the redevelopment plan.

"Everything the Smiths and Pat Seidman brought down here were insightful and educating for us. Now we know what we're gone have to do to keep our homes," says Mchenry.

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The Haddon Herald: www.zwire.com/site/news.cfm?brd=1695

Senate approves eminent domain for Lead lab: Rapid City (SD) Journal

By Denise Ross
The state Senate passed a bill Monday to allow the South Dakota Science and Technology Authority to take underground property for use in a national underground science lab.

SB61, which passed 26-9, gives the authority the power to use eminent domain to obtain property 100 feet or more below the surface for use as a science laboratory. SB61 is part of the state's ongoing efforts to put a cutting-edge science lab in the defunct Homestake gold mine in Lead.

Gov. Mike Rounds has advocated for the bill, saying it might be needed in the event a property owner tries to block the authority from acquiring property. The mine's owner, Barrick Gold Corp. of Canada, has agreed in principle to donate much of the underground mine for use as a lab. However, Barrick's subsurface rights are mineral rights.

"Questions have been raised about the ultimate grant of property rights from the Homestake/Barrick folks. The rights they have to the subsurface are for minerals and the extraction of minerals," Senate Majority Leader Eric Bogue, R-Faith, said. "This gives the authority very limited authority to use eminent domain to take the subsurface property rights in the furtherance of its public purpose."

Sen. Ken McNenny, R-Sturgis, voted against SB61. He said he supports the lab but called the granting of eminent domain authority premature.

"I'm concerned that perhaps we're acting a little bit hastily," McNenny said. "Using eminent domain to acquire underground rights is unusual to say the least."

McNenny said he would prefer to wait to grant the eminent domain authority until South Dakota is chosen as home for a new underground lab.

Last week, the Senate passed a bill that would allow the Science and Technology Authority to invest its funds through the South Dakota Investment Council.

Both bills now move to the House for consideration.

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Rapid City Journal: www.rapidcityjournal.com

For more information, contact Defenders of the Black Hills: AveleenaCFeywine@st.bhsu.edu

Senator Rejects Claim Bill Puts Property Rights In Jeopardy: Savannah (GA) Business Report and Journal, 2/7/05

By Ted Carter
A [Georgia] Senate bill its author says is designed to give local governments a way to pay for infrastructure projects has brought charges the measure gives private companies a way to seize private property.

Republican state Sen. Dan Moody of Alpharetta insists his legislation, Senate Bill 5, makes no changes in current eminent domain law. It does, however, provide a "fresh approach" to expanding water, transportation and other public systems "without a massive government spending spree," he said.

Senate Bill 5's backers include Senate Leader Bill Stephens of Canton and Senate President Pro Tem Eric Johnson of Savannah. Moody and the bill's supporters say it simply lets companies pay the costs of infrastructure projects that local governments could not otherwise afford. It also provides an opportunity to streamline the projects and to approach them in a comprehensive fashion instead of piecemeal, they say.

The companies would recoup their investments and make a profit through charging fees and granting leases at rates agreed to by the sponsoring local governments, Moody said. Communities "can do this rather than borrowing or selling bonds to build the projects," he said, and noted the sponsoring local government would gain ownership of the project after a specified time.

"It's all accelerating new public infrastructure," he said. "My district is growing by leaps and bounds and needs more infrastructure."

Moody's bill does give the local government engaged in the public-private agreement the option of issuing bonds for the projects. It also gives a local government the option of making loans or grants to the company taking on the infrastructure project. But the local government maintains the right to keep a lien on the property and the improvements made to the property, according to the bill.

The lone reason the bill mentions eminent domain is to note that local governments have the authority to take land for public infrastructure projects, Moody said. Removing the eminent domain language would not alter either the intent or effectiveness of the bill, he added.

"It's just 100 percent wrong," to claim the legislation would subject property owners to having their land taken by private enterprise, Moody said.

He said the protests over Senate Bill 5 have overshadowed companion legislation, Senate Bill 86, that would specifically forbid local governments from using eminent domain powers for economic development projects.

The Associated Press recently reported that the public-private agreements would allow companies to build other projects on condemned land as long as the projects did not conflict with projects built under the agreement. That's not the intent, Moody said.

"You can't arbitrarily do something on the property that is designed for the public purpose," he said.

However, the legislation does state "nothing shall prohibit an operator of a qualifying project from providing additional services for or from the qualifying project to public or private entities other than the responsible public entity so long as the provision of additional service does not impair the operator's ability to meet its commitments to the responsible public entity pursuant to the public-private agreement as determined by the responsible public entity."

Moody noted he's willing to alter any language in the bill to reflect intended restrictions on private enterprise. "It's not my intent at all to allow the operator to do something on the land other than what the project specifies."

The Republican lawmaker declined to predict passage of the bill but speculated its chances will improve once it is understood the bill is not a mechanism for handing eminent domain powers to private enterprise. Newspaper editorial writers and radio talk show hosts such as Libertarian commentator Neal Boortz, who calls the measure "a blatant assault on private property rights", have fed some of that perception that property rights would be at risk.

Moody said he's been working on the legislation for two years and will keep pushing for its passage. "I'm a very patient individual I'm not going to let Neal Boortz sidetrack me," he said.

To read a copy of the bill online: www.legis.state.ga.us/legis/2005_06/fulltext/sb5.htm

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The Business Report & Journal: www.savannahbusiness.com

Listen to webcast of NPR debate on eminent domain abuse

National Public Radio's Justice Talking presented a debate on eminent domain abuse earlier this month. You can listen to it online at your convenience, at:
www.justicetalking.org/viewprogram.asp?progID=494.

Speakers are James Kunstler who opposes eminent domain except for traditional "public use" and and Jeff Finkle who interprets economic development as fitting this category.

Editorial opinions:

• Kunstler didn't do his homework before the debate and therefore didn't do a good job in it.
  
• Finkle kept referring to property being taken by eminent domain as "blighted," totally obfuscating the point of Kelo v New London and other situations in which the property is viable.
  
• The debate was held at the new Constitution Center in Philadelphia, so the audience was primarily from that city and the "Neighborhood Transformation Initiative" was mentioned frequently. Here the point was missed that most of the property being taken under this program is truly blighted — typically vacant and/or abandoned and a hazard to public health and welfare.

Listen and see what you think.

Fight is on to save ancient forest: Newsday, 2/3/05

By Carolyn Thompson (Associated Press)
Erie County [NY] is considering using eminent domain to seize control of a rare forest that sprang hundreds of years ago from Lake Erie's sandy shore.

The forest, with its hemlock, black cherry and oak trees, is the oldest forest in the state, experts say, but even more exceptional is its location on a sand dune.

"To find an old-growth hemlock forest on sand, well there's only one other example in the world," said Bruce Kershner of the Buffalo Audubon Society.

Kershner is among those fighting the property owner's plans to build a home on the dune, located in the town of Evans, about 15 miles west of Buffalo.

Jeffrey White has said he would build in a place where there are no trees, but authorities say even that would damage the dune and the ancient trees it supports.

Erie County's commissioner of environment and planning has asked county lawmakers for permission to pursue the land through eminent domain, saying months of negotiations to buy the property from White have been fruitless.

Commissioner Laurence Rubin said he suggested a price of $750,000 for the 18-acre parcel, more than $200,000 over what White paid the former owner's estate in 2003. The land, known as Pine Lodge, was a private camp during the first half of the last century. About five acres are considered environmentally sensitive.

"He turned that down," said Rubin, who said White named a $2 million price tag.

White, who did not immediately return a phone message Thursday, said earlier that he dropped his initial plans to subdivide and build several houses on the land after the county raised concerns about the old-growth hardwoods, deciding instead to build only one home, for his family.

"It was the right thing to do," he told The Buffalo News in January.

But an environmental consultant's report sought by the county strongly advises against any construction on the dune, warning it would increase the likelihood of water and wind erosion.

White disagrees, countering that the trees have already survived centuries of battering by lake winds and waves.

Kershner, an old-growth forest expert, estimated the age of one fallen hemlock, a kind of evergreen, at 586 years, based on a count of its rings. Other trees, still standing, are even older, he said.

"We were floored," said Kershner, author of the recently published "Sierra Club Guide to Ancient Forests of the Northeast" and several other environmental books.

"When something is this rare and unique — globally unique — one doesn't go messing around with it without saying I don't care about it's significance," he said. "This is an example of our native heritage."

The only other old-growth dune hemlocks are on Lake Michigan's eastern coastline, in Sleeping Bear Dunes National Lakeshore. Hemlocks are seldom found in sand because of their need for constant moisture.

"When you lose this, it's irretrievable," Kershner said.

The proposal to pursue eminent domain is before the Legislature's Economic Development Committee. In the meantime, the Evans Town Board will decide later this month whether to require White to perform an environmental impact study before beginning construction on the land.

Environmentalists spoke in favor of the requirement at a board meeting on Wednesday. White attended but did not comment.

If a court approves acquisition of the land by eminent domain, an independent appraiser would set the price to be paid to White.

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Newsday: www.newsday.com

Key Panel Passes Bill to Ban Taking Private Land for Economic Development: Savannah (GA) Business report and Journal, 2/4/05

The Georgia Senate Judiciary Committee Thursday voted unanimously to pass legislation restricting the use eminent domain powers. Senate Bill 86, authored by Sen. Jeff Chapman (R-Brunswick), prohibits the exercise of the power of eminent domain for the purpose of transferring the condemned property to a private developer, corporation or any other private entity for the purpose of expanding the tax base or for economic development.

"This bill should help to set property owners' minds at ease that their property can not be condemned by a local government and then turned over to a private developer," Chapman said.

The intent of the bill is that the private rights of residents and businesses should be protected over the interests of private developers and corporations. If passed, it will not restrict local governments' current powers of eminent domain. However, the power of eminent domain should be used sparingly, and such laws should be strictly and narrowly construed for the sole use of legitimate redevelopment projects, Chapman said. The Committee, chaired by Sen. Preston Smith (R-Rome), approved the bill after a brief discussion period with a bi-partisan vote of 10 to 0.

"There has been a considerable amount of controversy and misunderstanding surrounding eminent domain lately," Smith said. "I applaud Sen. Chapman for having the foresight to come forward with this legislation. This should help clear up these misunderstandings and ensures that private property owners' rights are protected." As a freshman senator, this is Chapman's first piece of legislation.

The bill now heads to the Senate Rules Committee to be considered for floor debate by the full Senate.

Chapman represents 3rd Senate District which includes Brantley, Camden, Charlton, Glynn and McIntosh counties.

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Savannah Businessreport and Journal: www.savannahbusiness.com

Groups Back NLDC's Eminent Domain Case: The (New London CT) Day, 2/4/05

By Ted Mann
A broad range of states, cities and economic development groups has asked the U.S. Supreme Court to uphold the New London Development Corp.'s use of eminent domain at Fort Trumbull as a proper use of the government's power to seize private land.

Among the groups coming to the defense of the city and the NLDC, in friend-of-the-court briefs filed last week, were the National League of Cities and International Municipal Lawyers' Association; attorneys general from 13 states and the District of Columbia; and the Connecticut Conference of Municipalities.

CCM assembled a coalition of more than 30 other state municipal associations to argue that “the Fifth Amendment does not prohibit the State of Connecticut from empowering a distressed municipality to use eminent domain to assemble small urban parcels into a unified package suitable for modern economic development.”

The briefs were filed as attorneys for the NLDC and the city prepare to defend their condemnation of 15 properties at Fort Trumbull, where the city hopes a planned hotel, office and residential development will generate much-needed tax revenue for the city.

The seven property owners have appealed the city's efforts to seize the land to the nation's highest court, arguing that the economic development proposals do not represent a proper “public use” for their land, and asking the court to require more stringent judicial oversight of eminent domain applications.

Oral arguments in the case, known as Kelo v. New London, will be heard by the justices Feb. 22.

A slew of advocacy groups filed amicus curiae briefs on behalf of the Fort Trumbull property owners, and by Friday a similarly large group had leapt to the city's defense, depicting eminent domain as a harsh but necessary remedy for urban woes.

“The assembly of urban lands for economic growth is a ‘public use,' as it eliminates the accretion of small parcels that has acted to hinder old cities like New London from competing in the market for economic development projects,” attorneys for CCM and 32 allied organizations wrote. “...As such, it plainly falls within the police powers of the State of Connecticut, which has determined that its municipalities need the power to assemble lands to create developable urban parcels that the market itself has been unable to supply.”

The briefs argue that eminent domain is an invaluable tool for cities and states trying to further redevelopment plans, or, as in New London's case, to boost a sagging tax base.

“We've focused on both New London and the broader question ... of the importance of economic development to municipalities, especially in Connecticut,” said Allan B. Taylor, an attorney at Day, Berry & Howard in Hartford, who wrote the CCM brief.

Attorneys from the Institute for Justice, a public-interest firm representing the property owners, have said taking land purely to bolster private business — even to improve the city tax base — is unconstitutional, and have criticized the NLDC's development plan as speculative and vague.

CCM's lawyers reject that assertion, as the NLDC and the city did in their own brief, and warned that asking the courts to make decisions on the specifics of eminent domain uses, as the institute suggests, would give the judiciary a responsibility intended for legislatures.

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The Day: www.theday.com

Eminent Domain, Private Property, and Redevelopment: The Reason Foundation, 1/05

Eminent Domain, Private Property, and Redevelopment: An Economic Development Analysis

Executive Summary

By Samuel R. Staley and John P. Blair
Eminent domain is the power governments have to confiscate, or take, private property as long as it is for a legitimate “public use” and property owners receive “just compensation.” Whereas eminent domain was initially intended to ensure that public services, such as roads and highways, were available to the public, local and state governments often use eminent domain for any project that is considered economically beneficial. Public use, as a practical matter, has morphed into a more ambiguous “public benefit.”

An estimated 10,000 cases between 1998 and 2002 involved projects where private parties benefit substantially from government seizures of property under the banner of economic development or urban redevelopment.

The result of this broadening discretion may be exemplified by Kelo v. City of New London, a case before the U.S. Supreme Court in which property owners are challenging the decision of New London, Connecticut to seize their homes because the city decided redevelopment for commercial purposes would generate higher property values and taxes.

Eminent domain in urban development projects tends to be:

1. Arbitrary, driven by local politics rather than standards and objective criteria;
   
2. Inequitable, giving large and well-connected property developers an advantage over existing homeowners and businesses;
   
3. Serving private purposes, effectively becoming a legal way private developers can circumvent the conventional real estate market and force other property owners to sell their property to developers while reaping substantial financial gains;
   
4. Without substantive limits, because statutory criteria for blight determinations are so broad they fail to constrain eminent domain’s use for redevelopment purposes.

Economic development planners and city officials claim that redevelopment could not happen without an ability to consolidate property and comprehensively redevelop it. They also claim that eminent domain is only used as a last resort after less intrusive and aggressive approaches have failed.

Two Case Studies: Mesa and Lakewood
The two cases studied here — Mesa, Arizona and Lakewood, Ohio — show that eminent domain is not treated as a last resort, but as just another strategy in the redevelopment tool box.

In Mesa, Arizona, eminent domain was used by the city to promote downtown redevelopment. A detailed analysis of city procedures involving a redevelopment project intended to encourage the expansion of a local hardware store revealed:

• Eminent domain was a tool of first resort, not last resort.
  
• Properties targeted for redevelopment were identified by potential private investors, and the city then proceeded to condemn the properties in order to sell them to the private developers.
  
• The city’s redevelopment agreement with private developers would have amounted to effective subsidies ranging from $176,000 to $592,000 dollars.
  
• Existing small business owners and homeowners were effectively shut out of the negotiations and redevelopment decisions.
  
• Many properties seized were viable and growing. Property values in the neighborhood increased by 19.3 percent between 2000 and 2002.

In Lakewood, Ohio, the city’s redevelopment plan for the area estimated that the total tax value of real estate in the West End could increase from $31.3 million to $131.1 million by transforming the area from an older, affordable residential neighborhood to a mixed-use “lifestyle center” with offices, high-end restaurants, luxury apartments, and movie theaters. To use eminent domain the City had to declare the entire West End neighborhood “blighted” or “deteriorating.” An analysis of trends in the neighborhood found:

• Property values in some parts of the West End were increasing faster than for the city as a whole, suggesting a strong real estate market.
  
• Residential vacancy rates for homeowners were falling faster in the West End neighborhood than for the city as a whole.
  
• Homeownership rates had increased in the West End neighborhood between 1990 and 2000.
  
• The West End neighborhood was healthy, growing, and stable using standard criteria of neighborhood development.

Policy Implications
The study recommends urban policymakers refocus urban redevelopment policy by:

1. Focusing on the achievable, not grand visions for change, transformation and redevelopment;
   
2. Using the private sector whenever possible, but ensuring projects with local government involvement serve a legitimate public purpose (not net fiscal benefit);
   
3. Focusing on core competencies, such as providing key public services well to lay a foundation for broadbased investment and economic development;
   
4. Creating sustainable economies through private investment;
   
5. Providing leadership that is focused and transparent to create accountability;
   
6. Respecting the rights of all citizens, not just those able to access the political process;
   
7. Encouraging voluntary and incremental redevelopment to build a strong foundation for future development by securing property rights for a broad-based citizenry and business community, not those with political access to economic development initiatives;
   
8. Rigorously evaluating blight determinations to limit the arbitrary and often capricious use of eminent domain to serve narrow public and private interests.

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The Reason Foundation: www.reason.com

A complete copy of the report is online at www.rppi.org/ps331.pdf

Norwood holdouts pack up, move out: Cincinnati (OH) Enquirer, 1/3/05

By Steve Kemme
After fighting for more than two years to stay in the house they have lived in for half their lifetimes, Joy and Carl Gamble Jr. have decided to pack up and move out.

A small moving van on Wednesday took some of the Gambles' possessions from their Atlantic Avenue house while they live temporarily at their daughter's house in Independence.

A large moving van will be there today to take the rest. The Gambles will move out on Friday.

"It's a very unhappy situation here," Joy Gamble said. "We're in our late 60s. It's a heck of a thing to be going through at our age."

The Gambles and four other property owners have waged a legal battle for two years to try to stop Norwood from using its eminent domain power to seize their property and turn them over to the developers of the proposed Rookwood Exchange.

This development, a $125 million complex of offices, shops, housing and restaurants, is expected to generate about $2 million a year in earnings tax revenue for financially struggling Norwood.

The Institute for Justice, a civil liberties law firm in Washington that has been representing the holdout property owners for free, still has pending court appeals.

But the Gambles' decision to leave means the end of this legal fight could be near.

During the contentious eminent-domain battle, 66 other families in the triangle-shaped neighborhood between Edwards and Edmondson roads and Interstate 71 have been eager to sell to developers and move out. But the legal battle has kept them in limbo and forced some families to pay two mortgages a month.

The Gambles' neighbors are not shedding any tears for them. Some blame them for the long delay and are angry with them.

"I don't have feel any sympathy toward them at all," said Anita Jones, who lives on Garland Avenue, one block from the Gambles. "In fact, they aggravate me."

Her husband, Rolston, needs an oxygen tank. They have been waiting for two years to close a deal on a house near a daughter in Mount Orab.

But they couldn't close until they sold their Norwood house.

"We've been sweating this out," Anita Jones said.

Paul Triance, who lives a few doors from the Gambles, was glad to hear they're leaving.

"It's a very happy day that they're moving out," said Triance, who lives with his wife, Lisa, and their two children. "It's been difficult for us. You hope nothing breaks down in your house. You basically just exist, waiting until the final outcome."

Seventeen months ago, Bob and Donna Laake moved out of their house in the proposed Rookwood Exchange site and bought a house in another part of Norwood.

"We thought we would make payments on two houses for just a couple of months," said Donna Laake, who is Norwood's health commissioner. "But we've been doing it for 17 months."

The Gambles don't walk away empty-handed. A jury awarded them $280,000 in a property valuation trial. The developers also agreed to give them $2,500 for moving and storage expenses.

"We lost - somewhat," Joy Gamble said. "We're still going to fight it. But we have to get out of our house."

Bert Gall, an attorney for the Institute for Justice, criticized the Rookwood Exchange developers, Jeffrey R. Anderson Real Estate and the Miller-Valentine Group, for not allowing the Gambles to stay in their house until the Ohio Supreme Court rules on their motion to stop their home from being demolished while their appeal in another court is decided.

"It's cruel to insist that they must leave while their motion before the Ohio Supreme Court is pending," Gall said.

The Institute fights eminent domain actions throughout the country. The law firm has an eminent-domain case before the U.S. Supreme Court that has similarities to the Norwood case.

Richard Tranter, attorney for the Rookwood Exchange developers, declined to respond directly to Gall's statements about the developers.

"Rather than dignify Mr. Gall's comments with a direct response, I merely note that the Institute continues to pour gasoline on a matter that has been resolved," Tranter said. "The focus now should be the 66 property owners who are counting on us to close on their properties without further interference or delay imposed by the Institute."

Donna Laake, who moved into the neighborhood in 1975, said it was a wonderful place to live. But the noise, traffic and lights brought on by the growing commercial development hurt.

"It's a shame they couldn't have picked up the whole neighborhood and moved it somewhere else," Laake said. "But we still keep in touch with our old neighbors. The friends we had when we lived there are still our friends."

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The Cincinnati Enquirer: www.enquirer.com

Hearing imminent on fate of depot site: Pawtucket (RI) Times, 2/3/05

By Douglas Hadden
To seize, or not to seize.

That is the basic question city officials will trot out before the public in a public hearing in three or four weeks.

And on it turns who will own the former train depot site straddling the line with Central Falls, what would get developed there and whether the blighted 90-year-old building survives.

The land-taking process is called eminent domain, and before city resident Jean Vitali’s property could be taken, there are many legal hoops to jump through, which City Planner Michael Cassidy outlined Wednesday to a City Council panel.

Cassidy, who is also executive director of the Pawtucket Redevelopment Agency, said PRA would function as owner. Steps involved in taking the land include having two property appraisals done for review by a third appraiser to arrive at what is called "fair market value."

That figure would be used as the starting point for negotiations with Vitali, Cassidy said. If talks did not produce an agreement, the next move by the PRA, which would also be acting for Central Falls, is to Superior Court to take the property and put its offering price in an escrow account.

Vitali could sue over the compensation amount as inadequate, but not stop the process.

The problem for the PRA — and for the Pawtucket Foundation, which has its own concept for the site that centers on saving the depot — is that Vitali in 2003 granted a $1.4 million purchase option to a private developer, Warwick RICS LLC, an entity of Memphis-based SMPO Properties Inc. and its partners, Oscar "Ike" Seelbinder and Jack Mitchell.

The partners, seeking final council passage of a zone change from residential to commercial for 40,000 square feet of the site on the Pawtucket side, need that approval to close the deal and launch their $30-$40 million project, in which the depot would be torn down.

But if they get the rezoning, a court setting the property’s value would have to take into account not only the $1.4 million purchase cost, but also four long-term commercial leases lined up for the site, said John Garrahy, an attorney for Warwick RICS.

Another potential difficulty, according to Garrahy, is whether the law that grants PRA eminent domain power would apply where a developer is in place to put up a project and thus cure the blighted condition.

There are other obstacles too: Cassidy said PRA currently has only about $642,000 set aside to take the depot property as well as five much smaller, blighted properties elsewhere in the city. He said an appraisal of the property was done about two years ago but did not reveal what value it determined; Seelbinder has said he thinks it was $400,000 or less.

Garrahy also noted the U.S. Supreme Court has agreed to look at a Connecticut eminent domain case, which may indicate the court wants to take a closer look at the widening use of that governmental power in recent years.

But an attorney for the foundation, Michael Horan, downplayed the severity of the seizure power. "When people hear eminent domain, they think it’s this Draconian slice," when "it’s clearly not," he told the meeting of the council Ordinance Committee.

Councilor Thomas Hodge said there was a "big misconception" that "we’re going to steal the property."

The panel’s chairman, Councilor David Moran, said the public perception of eminent domain as a severe move has been "a problem from day one" for the depot issue.

Councilor Robert Carr had several sharp questions about the consequences of eminent domain, which brought out that PRA could sell the property to its chosen developer for less than it bought it for; and that SMPO, which would put up commercial buildings first then seek to bring back commuter rail in its second phase, could also negotiate with the state, federal and other agencies involved in the rail project.

But Cassidy said the agencies would rather deal with the two cities.

Cassidy also said "it’s possible" the PRA’s chosen developer may also determine the depot lacks structural integrity or would be too expensive to repair. He said if the building, eligible but not on the National Historic Register, was placed on that list, PRA could not use federal or state dollars to tear it down.

Cassidy also noted there are extensive federal and state tax credits available for historic buildings that would make saving it more attractive to developers.

While the property remained in PRA hands, Cassidy said, the agency would continue to pay property taxes on it here and in Central Falls.

"But they would be paying taxes on a blighted building," Carr said, well below what a new development there would bring in.

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Pawtucket Times: www.zwire.com/site/news.cfm?brd=1713

Getting a primer in eminent domain: Somerville (MA) Journal, 2/3/05

Opinion

By Roger Kolb
The paths to expertise are many, but they usually originate at a place called youthful experience.

That went through my head the other day as I sat in the living room of Highland Avenue's Jim Campano. Campano, a self-described street guy who's more likely to know the definition of "sowsky" than "syzygy," is an expert on something you wouldn't figure him for in a million years. But an expert he is, someone whose views are eagerly sought in private conversation, on college campuses and by nationwide political action groups.

Campano is an authority on the phenomenon known by the legal and not particularly grammatical phrase, "eminent domain." As I understand it, the term originated in the Middle Ages. Before legislation became the responsibility of parliaments and congresses, the king was the preeminent institution in the land, and the entire country was his personal domain. If His Excellency coveted your property badly enough, you, your spouse, kids, pigs and chickens would soon find yourselves out on the street. But with the slow growth of democracy and individual property rights, that changed. The U.S. Constitution, for one, guaranteed property rights and declared that property could only be taken away from the citizen after "due process of law." As interpreted by the courts, the state had to have a compelling reason to purchase your house or business, and the reason had to take the form of a desperately needed public works project - road, bridge or school - from which everyone could theoretically benefit.

"All that changed in 1954," said Campano, "in the Supreme Court decision Berman vs. Parker." A Pandora's box was opened, one that our founding fathers would have abhorred, he continued, "when the court changed one little word in its definition of "eminent domain." It changed the phrase "public use" to "public purpose." And a few years after that, "public purpose" became "public benefit." "Public benefit" has meant that a local government can take property away from one private home or business owner and give it to another."

"Why would it do that?" I asked.

"The mayor, either to keep a campaign promise or because he faces re-election, has to keep property taxes down. He studies your street and learns that you and your neighbors' annual tax bill, combined, is $98,000. Hell, ninety-eight grand is chicken feed compared to what the city could get if your street had a Wal-Mart and a Home Depot on it. Next, someone from City Hall walks up and down your block and notices that number 12 has paint peeling off and that number 28 has a lot of junk thrown around in the driveway. He recommends to the mayor that your street be declared blighted - "blight" being a word you hear a lot in eminent domain discussions. The city publishes a tiny announcement in some section of the local newspaper no one ever reads. It says that your street, now a slum, is being taken and that everyone has to be out by July 1. A few weeks later, an official from City Hall knocks on your door and reminds you that you have exactly one month to vacate. Then he says the city is prepared to pay you $25,000 for the house or business you probably could get $300,000 for on the open market."

Campano is himself a victim of eminent domain. He was a teenager in Boston's West End in 1958 when, four years after the Berman vs. Parker ruling, the entire neighborhood was gutted to make way for privately owned Charles River Park.

"Surely the situation you describe," I said to him incredulously, "doesn't happen in the United States."

"That's what Don Hewitt, the producer of '60 Minutes,' said two years ago," Campano observed. "In Lakewood, Ohio, the mayor was trying to kick residents out of a lovely neighborhood to make way for luxury condos. An anti-"public benefit" activist from the Institute for Justice made phone call after phone call to '60 Minutes,' but no one would pay any attention to him. Finally, he got through to Hewitt himself, who said he was shocked to find out that this could go on in the U.S."

"'60 Minutes,'" Campano continued, "ended up doing a story about it, a story that woke a lot of people up. The mayor had declared the neighborhood blighted because a few houses had paint peeling off and because none had an attached garage. When the '60 Minutes' people pulled up in front of the mayor's house to interview her, guess what they found. The mayor lived in a house that had paint peeling off, and that didn't have an attached garage!"

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Somerville Journal: www2.townonline.com/somerville

Eminent domain case on trial: Salina (KS) Journal, 2/3/05

Foley Equipment wants compensation

By David Clouston
How much is land in proximity to Wal-Mart stores worth? The answer may decide a civil case on trial in Saline County District Court.

Foley Equipment Co. is appealing the award of court-appointed appraisers for its land that was acquired as part of the reconstruction and reconfiguration of the highway interchange at Interstate Highway 70 and Ohio Street. The jury is to determine just compensation and any damages allowable by law.

The case centers on 4 acres of land, two permanent easements and a temporary construction easement. Foley seeks compensation of $665,000. A panel of three appraisers awarded the company $229,016.

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Salina Journal: www.saljournal.com

Jersey localities back eminent domain power: Newark (NJ) Star-Ledger, 2/3/05

By Tom Hester
The New Jersey State League of Municipalities yesterday joined with leagues in 30 other states to enter a U.S. Supreme Court case that will determine whether municipal governments can take private property for economic redevelopment.

The leagues filed a friend of the court brief on the side of New London, Conn., in the case, which is to be heard by the high court Feb. 22. The case pits seven New London homeowners against their city, which is trying to take their property so a developer can build an office, hotel and residential complex. A decision is expected by June.

Historically, cities and towns have used condemnation to clear land for new schools, parks, highways, and other public facilities. A series of laws passed in the mid- 1900s enabled municipalities to take land they believe is blighted and turn it over to a developer. A 1954 U.S. Supreme Court decision affirmed that right. Opponents argue that in some cases cities and towns are taking well-kept homes and viable businesses for the benefit of private developers.

In Newark, residents of the city's Mulberry Street urban renewal neighborhood have filed a lawsuit to stop the government from declaring their property blighted to make way for a $550 million, 2,000-condominium project. Eminent domain has also been used to clear the way for redevelopment projects in New Brunswick, Perth Amboy and Jersey City.

"The league has joined to support New London in this matter to protect the right of New Jersey municipalities to use the important power of eminent domain to promote economic development," said William G. Dressel, its director. "That power, even though it may not be used except in rare situations, is important so municipalities in New Jersey can continue to rebuild their tax bases and revitalize their economies."

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Star-Ledger: www.nj.com/news/ledger

Mistrial in property case — Cincinnati (OH) Post, 2/2/05

House display 'outrageous'

By Kimball Perry
Attorney Gary Powell thought the camera inside his Treo 600 cell phone was something he would never use -- until Monday.

"I didn't see a use for it. I'd just as soon not have it. Now, I'm glad I do," Powell said Tuesday, after a judge saw the pictures Powell took with the phone camera and granted his request for a mistrial.

Powell and attorney Tim Burke were hired to represent Norwood in the fight to use its power of eminent domain to seize private property and sell it to a private developer to build Rookwood Exchange, a commercial, office and residential complex.

Monday's trial, before Visiting Hamilton County Common Pleas Court Judge John O'Connor, was to determine the value Norwood would have to pay for the 3811 Edwards Road property owned by Motz Properties. An appraiser valued the property at $175,000.

After the jury was selected Monday, the judge ordered jurors be given a tour of the property to give them a better sense of its worth. Once inside the building, though, the jurors, court workers and attorneys got a surprise.

The owners had festooned the interior with signs, banners and a mannequin dressed in clothes attacking the government's use of eminent domain to seize private property.

That was done, Burke and Powell argued Tuesday, to convince the jury to award Motz a higher price.

"(Motz's) outrageous conduct was calculated to serve no legitimate purpose, but rather to illegitimate(ly) injure the City of Norwood's position in front of the jury," Powell and Burke wrote in their request for a mistrial.

Inside one room of the building, the owner posted editorial cartoons attacking Norwood's use of eminent domain and a photo of a group of protestors in the legal fight over the issue.

The building's back door, which jurors passed to get to the basement, bore a sign reading, "Government Quit Selling Us Out to Developers."

In the basement, jurors saw a banner proclaiming "Fight Eminent Domain Abuse in Norwood" next to a mannequin dressed in a T-shirt that sported an anti-eminent domain message. The dummy also was holding a sign that read "Being Forced to Sell is Just Not Right."

A stunned Powell couldn't believe his eyes, so he whipped out his cell phone and started snapping away.

"Pictures say a lot," he said Tuesday.

"You could not have described it. You needed the pictures," Burke added.

The judge granted the request Tuesday for a mistrial.

The case will be back before O'Connor Thursday for another attempt at a trial, but Powell said Tuesday the sides have agreed in principle on a price for the property and might tell the judge the case has been settled.

Norwood has argued it needs the properties for Rookwood Exchange, planned for 200 condominiums, apartments, retail space and 550,000 square feet of office space. The project and its tenants are expected to pump an additional $1.8 million annually in earnings tax into the coffers of the financially strapped city. The development also will generate an additional $300,000 per year for Norwood schools.

Property owners who didn't sell to the city and critics have argued that using eminent domain to take private property to sell to a private developer is unfair.

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The Cincinnati Post: www.cincinnati.com

How eminent domain is done elsewhere — Haddon (NJ) Herald, 2/2/05

By Dan Keashen
The foundations of liberty were reinforced in California by the Anaheim City Council in November. It passed a resolution, 3-1, with one abstention, prohibiting the city from using the power of eminent domain.

The local ordinance stopped the land grab vehicle from taking one piece of private property for the benefit of another private person or business.

According to the City of Anaheim meeting minutes the new City Council Policy No. 220 stipulates, "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."

Many people who live in the Westmont section of Haddon Township, and all over New Jersey are experiencing the effects of eminent domain. It is used for the condemnation of private property by local municipalities in redevelopment projects under the supposed benefit of the public.

Although the Anaheim ordinance has no bearing nationally on New Jersey redevelopment law, according to the Institute for Justice, it is a positive reinforcement to people's personal property rights.

"Anytime a city reins in its power to condemn private property it's a step in the right direction and we support it. This will give private property owners a guarantee that they will be protected from a project that has no public purpose," said the coordinator of the Castle Coalition, Steven Anderson.

He said the city has highlighted what eminent domain was created for and quashed the speculative definitions of public use.

According to Anderson, The Castle Coalition - located in Washington D.C. - is an effort by private property activists to take matters into their own hands. "It was inspired by watching several communities defeat seemingly unstoppable projects to take homes and businesses to give to other private parties," said Anderson.

According to Douglas Gershuny, deputy director of the South Jersey Legal Services, many municipalities in New Jersey - including Haddon Township and Westville - will use eminent domain to build their tax rateables base.

"They've used municipal economic impact for the definition of public use. The same with the big corporations like Wal-mart...they operate under the guise of creating jobs as contributing to the public good," said Gershuny, adding these definitions are skewed towards developers.

While the legislation from Anaheim did not make national news it gave hope for the thousands of threatened property owners watching the Kelo vs. City of New London Supreme Court case.

The Castle Coalition hopes to see more municipalities honor their residents by protecting their liberties with similar legislation.

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The Haddon Herald: www.zwire.com/site/news.cfm?brd=1695