Initiative challenging Conaway plan halted: Davis (CA) Enterprise, 3/6/05

By Elisabeth Sherwin
Woodland resident Michael Contreras received some discouraging news late last week when the county's legal counsel found the subject of his proposed initiative — eminent domain — could not be challenged.

Contreras wanted to put an anti-eminent domain initiative on the ballot. It would require Yolo County to stop all eminent domain proceedings until it had a majority of voters approving the action against an unwilling property owner.

Contreras announced at the Jan. 26 meeting of the Conaway Ranch Joint Powers Authority that he intended to move ahead on his initiative specifically to stop the county from taking the 17,300-acre Conaway Ranch land by condemnation, a legal process that the county began last summer.

On Thursday, County Counsel Steve Basha released his legal opinion.

"This office has determined that the subject of the proposed initiative is not legally valid," he wrote. "This determination is based on appellate court decisions that hold that the power of eminent domain is a matter of statewide concern (and not subject to local regulation)."

More than 30 years ago the state Supreme Court ruled that a taking by eminent domain is not a municipal affair, but a matter of statewide concern that may be regulated only by the state Legislature.

"Accordingly, even if the proposed initiative were to obtain the requisite signatures and be approved by the electorate, it would be invalid," Basha wrote.

Contreras could not be reached for comment Saturday.

But Contreras was one of several opponents of the county's position on eminent domain and the Conaway Ranch who have spoken out recently, including the Yolo County Farm Bureau, the Yolo County Taxpayers Association, former state Sen. Jim Nielsen and the Sacramento-based People's Advocate.

The county additionally angered people when it canceled all future Conaway Ranch Joint Powers Authority meetings until the eminent domain issues is settled. The lawsuit is due to be heard in Yolo County Superior Court perhaps by June.

JPA members include Yolo County; the cities of Davis, Woodland, Winters and West Sacramento; UC Davis; and the Yolo County Flood Control and Water Conservation District. The JPA was set up to manage the property, but the county is attempting to buy the property.

In July, Yolo County supervisors reluctantly moved to initiate legal eminent domain proceedings to acquire the ranch property in the Yolo Bypass for public benefit.

In mid-December, the property, which includes farmland and 50,000 acre-feet of water rights, was purchased by Steve Gidaro, a Sacramento developer, and a group called Conaway Preservation Group, LLC. The land was purchased from the National Energy and Gas Transmission Inc., formerly known as PG&E Properties. The purchase price is believed to be about $60 million.

The Conaway Ranch JPA had been meeting monthly but little action could be taken while the county is involved in the court action.

"The county's involvement in eminent domain proceedings have, for the short term, made it practically impossible for the county to fully utilize the technical expertise of the authority members in developing a long-term management plan for the ranch," said Suzanne Mikesell, county public information officer.

"If and when the county becomes the owner of the ranch, it will be in a much better position to work with JPA members to develop a long-term management plan for the ranch," she added.

For this reason, Supervisor Mike McGowan, chairman of the Joint Powers Authority board, requested that JPA board meetings be postponed.

"Upon the successful conclusion by the county of its eminent domain proceedings, JPA board meetings will reconvene and the county and the JPA board will seek public input and participation into the development of an effective long-range management plan for the ranch," Mikesell added.

But several groups and individuals are urging the county to end its eminent domain effort.

"I believe it is time to reconsider," said former state Sen. Nielsen. "The magnitude of this undertaking and fiscal consequences, the lack of public input and knowledge, the concomitant lack information and direction among JPA members, the lack of planning, the accruing costs of consultants and legal fees warrant a 'whoa' to the eminent domain proceedings."

However, if the eminent domain process is halted, it won't be thanks to a voter-approved initiative.

Public documents relating to the Conaway Ranch can be found at the county's Web site, www.yolocounty.org

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The Davis Enterprise: www.davisenterprise.com

Case could redefine eminent domain: (Hampton Roads VA) Daily Press, 3/5/05

The Supreme Court could change the law allowing land to be seized and turned over to developers

By Fred Carroll
Frank Ottofaro fought Hampton officials all the way to the state Supreme Court when they condemned a house he owned for a road to the Power Plant, a retail hub subsidized by the city but built by a private developer.

Ottofaro lost.

Even so, he refuses to drop the fight. Two years later, he still cusses city officials even as he recovers from surgery to remove a kidney stone.

"I'm for progress but not for stealing people's property," Ottofaro said. "They violated my constitutional rights. I don't know why you take the Constitution and rip it up in pieces."

A case before the U.S. Supreme Court could please people like Ottofaro by redefining the power of eminent domain - the government's right to seize private property as long as it's for a public use and the owner gets fair compensation.

The decision could restrict the use of property condemnation in instances where government turns land it has seized over to private developers for construction, such as Virginia localities can do when redeveloping blighted neighborhoods.

"It's a quarrel over how expansive is the meaning of public use," said William Van Alstyne, a law professor at the College of William and Mary.

Riverfront residents of New London, Conn., sued to halt town officials from demolishing their homes to clear the way for an office complex that complements a nearby pharmaceutical company.

Town officials describe the project as a renewal effort that ultimately benefits residents by bringing in new jobs and boosting tax revenues. Opponents call it a land grab that benefits the private developers, not taxpayers. Van Alstyne said the court's decision to hear the case surprised legal observers who considered the issue settled.

Governments traditionally used eminent domain powers for direct public uses - such as building a road or school. But a 1954 Supreme Court ruling allowed governments to take property and resell it to private developers for projects that overhauled blighted neighborhoods.

Most legal observers don't expect the justices to overturn the earlier ruling after hearing them question lawyers, Van Alstyne said.

"Otherwise, the race is on," he said.

Regardless, Mark Flynn, legal services director for the Virginia Municipal League, doubts the ruling will change eminent domain use in Virginia, which handles condemnations differently than Connecticut.

In Connecticut, government officials can take land for economic development - regardless of its condition - if they show that tax revenues will increase.

In Virginia, localities must show that an area is predominantly blighted and outline a redevelopment plan for it. Then if a property owner refuses to sell, officials can condemn the land.

"We don't do it very often," Flynn said, "but it is important when it does happen - to the landowner and the locality."

For example, Newport News housing officials figure they've condemned a single lot - excluding those condemned because ownership was unknown or uncertain - over about two decades for a neighborhood of new houses and a proposed industrial park.

Local officials consider eminent domain a powerful negotiating tool that forces otherwise uncooperative landowners to deal in good faith with government officials.

Newport News Vice Mayor Charles Allen, a planning consultant who represents the city's oldest neighborhoods, said judges and legislators should ensure that landowners are fully compensated for existing and prospective financial losses, rather than erode eminent domain powers.

In February, the General Assembly approved legislation that allows judges to order government agencies to pay some court costs for landowners in certain instances. The legislation awaits Gov. Mark Warner's signature.

"It was tremendous progress," said Del. Terrie L. Suit, R-Virginia Beach, who sponsored the two bills, "although it was not everything we wanted."

Virginia was one of six states this year to consider bills that would have prevented governments from taking properties with the intent of giving them to private developers, according to the National Conference of State Legislatures.

The bill was tabled.

Nationwide, more than 10,000 instances of filed or threatened government condemnations for private use occurred between 1998 and 2002, according to a report for the Institute for Justice, a libertarian public interest law firm.

An institute spokesman said the report likely reflected just a fraction of condemnation cases since it relied on news reports and court papers that wouldn't identify all instances.

The report highlights Hampton's efforts to spur the Power Plant and Ottofaro's lawsuit - even though neither the city nor the state Supreme Court characterizes the road as a private use.

In January 2003, the justices called the road an "undisputed" public use owned and controlled by the city, with leftover land going to the city's economic development authority. They did not consider Ottofaro's contention that his property - which the city bought for $170,000 - was taken to help build the Power Plant.

Ottofaro, a 70-year-old retired railroad employee and gas station operator, refuses to accept the ruling. He carries several copies of the institute's report and has frequently blistered Hampton council members in public meetings.

"You think I had a fair trial up there?" he asks. "Heavens no."

Hampton officials expect about 26,000 cars and trucks to travel the road daily in about a decade.

They expect the Power Plant to bring in millions of dollars in tax revenue - money that could pay for firefighters, street repairs and other public services.

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The Daily Press: www.dailypress.com

Eminent domain abuse: Bristol (VA) Herald Courier, 3/6/05

Letter to the Editor

By Linda Crosswhite Tate, Abingdon VA

I find it a little ironic that the headlines of the Feb. 25 Bristol Herald Courier told about the delinquent taxes in Washington County and surrounding areas.

It might interest people to know that paying your taxes on time doesn’t mean that you will always be able to keep your property, even though you work hard all your life to provide a home for your family.

The eminent domain law is being abused all over America. The Taylor’s Hill project in Abingdon is a perfect example of how this law is being abused.

According to Webster’s Dictionary, eminent domain means: The right of a government to take private property for public use, just compensation usually given to the owner. The key words are public use.

My mother, Naomi Crosswhite, who is 86 years old, and my brother, Kelly Crosswhite, as well as others who live on Taylor’s Hill, have no problem giving up some of their land for road improvements. The objection is having their land taken to build someone else a house. To us, this clearly is not the meaning of public use.

We also wonder why vacant property, owned by a local real estate agent, isn’t included in this project. There is other property that really needs to be cleaned up where no one is living, so use that.

We all need to attend Abingdon Town Council meetings and find out what is going on in our neighborhoods before it happens to us.

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Bristol Herald Courier: www.tricities.com

PSU files petition for eminent domain: Pittsburgh (KS) Morning Sun, 3/3/05

By Jessica Tims
Pittsburg State University has filed a petition for eminent domain to acquire the last piece of property it needs to construct a new student health center on south Broadway.

Negotiation between the university and JD and Irene Ransom of Joplin, Mo., the owners of the property at 1803 S. Broadway, have been back and forth since January 2004. Because the negotiations have been going on for more than a year and the parties are still in a deadlock, the Kansas Board of Regents has given the university the authority to use eminent domain to acquire the property. The school filed the petition on Friday.

"This is something we would only do when we need the property and negotiations become futile," said PSU Attorney Darron Farha. "That's what's happened here. These negotiations between us and the Ransoms have not been about their unwillingness to sell the property, it's been about the price of the property."

Standing in the way of the negotiations is state statue KSA 76-147. That law states regents institutions must get two appraisals before purchasing real estate and that the institution is prohibited from paying more than the amount of the highest appraisal.

On April 2, PSU Director of Purchasing Jim Hughes and the Ransoms met at the property with two appraisers - Chuck Hosman and Bob Langford. According to the university, it chose Hosman and the Ransoms chose Langford. However JD Ransom said it wasn't that cut and dry. He said he picked Langford off a list provided to him by the university.

"They threw out some names," Ransom said. "I am from Missouri, so I just picked one out. I am paying for the next one myself."

Hosman appraised the property at $53,000 and Langford appraised the property at $56,500 - the Crawford County Appraiser's Office lists the property value at $44,500.

On May 17, John Patterson, vice president of administration and finance for PSU, sent a letter to the Ransoms formally offering them $56,500 for the property. On June 14, JD Ransom asked for $100,000.

"When they first approached me, that's what I told them because I didn't want to sell it because it's part of my (retirement) portfolio," Ransom said. "I threw out that figure just to get them off my back because I didn't want to sell it. I didn't think they would come in and use the law to take it."

Because of the state statute, the university could not pay more than $56,500 for the property. So in a letter dated Dec. 15, 2004 Farha informed the couple again that the state law would not allow the university to purchase the real estate for more than the highest appraised value. Farha told the couple the university would keep the offer of $56,500 open until Jan. 31, 2005. In the letter Farha also made the Ransoms aware that the university could use eminent domain to obtain the land.

At that time the Kansas Board of Regent was holding a meeting, and on Dec. 15 and 16 the regents gave the university the authority to use eminent domain. Soon after Farha said he spoke with JD Ransom and Ransom said he would have a new appraisal when the two men met again on Jan. 26.

At that meeting Ransom did not have another appraisal. Ransom said he tried to hire an appraiser, but the man he was dealing with did not want to become entangled in an eminent domain battle.

At that meeting Ransom told Farha $67,000 was the lowest he and his wife would go. Farha said he told Ransom the most the university could offer was the $56,500, plus some reasonable appreciation since the appraisal had been done nearly a year before. In an e-mail on Feb. 4, Farha offered to have two more appraisals of the property done. But Ransom said he wants to hire his own appraiser. He said he has already found a new appraiser who is licensed in Kansas that is willing reappraise the property and get involved with the eminent domain proceedings. Ransom will pay for that appraisal himself.

On Feb. 15, Ransom wrote a letter to the Kansas Board of Regents offering them his lowest price of $65,000 for the property. But, again because of KSA 76-147, the board declined the offer.

On Friday, Pittsburg State filed the paper work to acquire the land.

There is still not a timeline for when the new health center will be constructed, however the university would like to have the last piece of land now so that it can use the land for additional parking until construction starts.

The university has already acquired three other properties from two other landowners in the area that will be the new student health center. According to Hughes, the university was approached by those property owners to purchase their land.

"We very seldom go out and ask somebody to sell us a piece of property," Hughes said. "It is generally somebody coming to us to ask if we want a piece of property."

A consideration hearing will be held at 9:30 a.m. on March 31 at the Crawford County Judicial Center in Pittsburg. At that hearing a judge will decide whether or not PSU has the right to acquire the property using eminent domain. If it is determined the school does have that right, three appraisers will be appointed to value the property.

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The Morning Sun: http://morningsun.net

Eminent Domain Has Broken City Hearts: The (New London CT) Day, 3/3/05

Letter to the Editor

By Rose Cerreto, New London
When I read the letter titled “Eminent domain can revive New London,” published Feb. 27, I had to smile. The writer has been here for only one year. What would she know about New London and eminent domain reviving it?

I've lived here all my life. I am 86 years old, but I remember when I was 41 years old. The great eminent domain kicked us all out of our homes in east New London. Yes, that's what I said, kicked us out of our homes.

When my brother, Tom, who has since passed away, went to see C. Francis Driscoll, the head of redevelopment in New London at the time. Mr. Driscoll told my brother that we had to get out. If we didn't, they would put the money — $8,000 — in the bank and every month that we stayed in our homes they would take the money out of the bank and in the end there would be no money and no home. His words were that we were stopping progress.

Please, go there and see what progress we were stopping. As far as I know, there is nothing there after about 40 years.

I heard a well-known bus company wanted to build a bus station there, but New London said no. Just think how that would have revived New London and the taxes the bus company would have paid.

I praise Fort Trumbull residents for what they are doing, but I hate to say this — they are not going to win.

We all lost our homes and there were a lot of broken hearts.

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The Day: www.theday.com

Eminent domain resolution off the agenda: The Haddon (NJ) Herald, 3/3/05

By Timothy Green
A crowd of residents and a news crew from Comcast's CN8 went to last week's Haddon Township Commissioners' meeting expecting the commissioners to pass a resolution to use eminent domain, but the item was mysteriously dropped from the agenda.

Commissioner Kathy Hogan said she was given an amended copy of the agenda on Feb. 18, which listed the acquisition of three private residences, but they did not appear on the agenda handed out at last Tuesday's meeting.

Mayor William Park Jr. said the item was not introduced because he would like to come to a compromise with residents living in the redevelopment zone instead of using eminent domain.

"I don't feel comfortable with having anyone lose their homes," he said. "I'd rather see there be an agreement reached."

But one resident thought the item was taken off the agenda because of the media scrutiny placed on the township.

"The microscope has been put on you three from the news people and the TV people," said John Sandone as he addressed the commissioners. "That's what stopped this. This is not the act of a good conscience." He added that Haddon Township is only threatening to use eminent domain because it is being influenced by Fieldstone Associates.

Sandone is currently suing Haddon Township because he, too, is in danger of losing his property through forced condemnation. Another resident, Leonard Ruediger, whose home on Center Street was one of the properties listed for acquisition on the original agenda, has joined Sandone's lawsuit.

A letter from Kenney & Kearny, the law firm representing the two men, was read into the public record by We C.A.N. coordinator Pat Seidman on Ruediger's behalf. The letter was dated Feb. 22, the same day of the commissioners' meeting.

Resident John Smith questioned if Ruediger's property would still be on the agenda if he had not joined the lawsuit.

Park said the township would like to work with Ruediger to "explore other options." He said he would try to help Ruediger relocate to an area of town closer to the Speedline.

If an agreement can be reached with Fieldstone to purchase Ruediger's property, by law it would have to pay any relocation costs. But, if the township uses forced condemnation, then the costs would fall to the township, according to redevelopment council Kathy Ward.

The agenda did list the purchase of property from two residents, but Park said that in these instances it was voluntary.

The possibility of using eminent domain to take away the property of people living in the Dy-Dee Wash redevelopment zone has long been on the minds of township residents, especially those people living in the redevelopment zone. Hogan wanted something done to protect those people who either live or own businesses in the redevelopment zone.

"I move that we radically revise the contract with Fieldstone," Hogan said. "If this contract is not revised I think we should take the proper steps to rescind it. I feel that I was lied to and the people of Haddon Township were lied to."

This statement garnered applause and cheering from the attendees, many of who were wearing "eminent domain abuse" stickers, and silver whistles as a sign of support for Hogan, who has been referred to as a whistleblower.

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Haddon Herald: www.zwire.com

Eminent domain debated: Edwardsville (IL) Intelligencer, 3/3/05

Hot topic addressed by local law firm during seminar

By Norma Mendoza
Rene Bassett Butler wasted no time in getting to the point about eminent domain.

"Can the Illinois Department of Transportation take your land?" she said. "Yes, they can. Can you do anything to stop them? No, you can't."

Bassett was opening a free seminar about eminent domain sponsored by the Bassett Law Office at the Collinsville Holiday Inn last week. Rene and her father and law partner, Merle Bassett, were the presenters. Advertised in several issues of local newspapers, the seminar promised to discuss the rights of owners of farmland, residential and business properties.

As it turns out, when the issue is the power of eminent domain by IDOT, property owners have few rights. They do have the right to be represented by an attorney in their bid to be justly compensated for the property and they have the right to a trial by jury in determining what is just compensation.

Governmental bodies are given the power of eminent domain in the Fifth Amendment to the U.S. Constitution. However, the Constitution requires that property owners must be given "just compensation." It also states that the intent of the government must be to use the land for the public good.

That is often a bone of contention in eminent domain cases — just what is the "public good?" Many claim it should be for a road, but in some cases it could be for a school. When there is a dispute about whether it is for the public good, the issue is usually decided in the courts.

An extreme form of eminent domain is the power to quick-take property. Outside of Chicago, only the state of Illinois (IDOT) and the Southwestern Illinois Development Authority have the power of quick take.

The Illinois Supreme Court ruled in 2002 that SWIDA overstepped its authority when it agreed to the request from Gateway International Raceway in Madison to use its power to quick take the property of National City Environmental for Gateway to use for a parking lot. SWIDA temporarily lost its quick-take power over that one.

Last year, closer to home, Sunnyside Nurseries lost its battle to keep IDOT from quick taking six acres of the nursery land for Governor's Parkway.

The difference in the two quick takes was that SWIDA tried to take property from one private entity for the benefit of another private entity and the Sunnyside property was taken for a road.

The road was deemed to be for the public good while the parking lot was deemed to be for private gain even though SWIDA claimed it would ultimately benefit the public.

The issue of eminent domain has come to the forefront as local governments discuss the I-55 Corridor Plan and the 158 Connector Road. Property owners have become nervous about whether their land will be taken. Many remember when land was taken for Interstate 270 and again for Interstate 255.

In both cases, several property owners put up fights to save their land, but in the end the highways were built.

Bassett Butler advised the three dozen or so attendants at the seminar to get prepared if they believe their land is in the way of an IDOT project. She said not much can be done until they are notified by the agency that it proposes to take their land. She said they should wait until that point to have an appraisal done and contact an attorney.

Bassett Butler noted that she and her father have been representing landowners for the past seven years. Before that, Merle Bassett was a special assistant attorney general and handled land acquisition for the state in Southern Illinois. It is this experience, she said that gives the Bassetts familiarity with the state's procedures.

"Aren't you walking both sides of the fence?" one man said.

Bassett said he only worked with SWIDA on behalf of the municipalities that hired SWIDA to help them with eminent domain issues.

Bassett Butler also touted the law firm's network of appraisers who are also experts in the field of eminent domain.

"We're finding out that the state appraisers are doing this on contract and they're what we call windshield appraisers," Merle Bassett said, indicating they do "drive-bys."

One man asked if anything can be done about land that was taken in 1955, but never used by IDOT. Merle Bassett said there is recourse when the state abandons an eminent domain claim.

"A landowner went to court over land taken in 1965 and won," he said.

He told another questioner that if a new highway comes within 10 feet of a landowner's house, the state has to buy the entire property, but if it's an already established road and is being widened, the state only has to buy a portion of the property.

Some criticized the Bassett Law Office for presenting the seminar. Bassett Butler was up front about welcoming new clients, but presented a straightforward informational seminar.

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Edwardsville Intelligencer: www.goedwardsville.com

Government exceeds its domain: (Yucca Valley CA) Hi-Desert Star, 3/2/05

The Hi-Desert Star's view
In a small Connecticut city, a struggle is taking place between homeowners and their local government - a struggle that reaches far beyond the East Coast, and into every county and town in America.

The New London, Conn., city government wants to buy the properties of seven residents, to bulldoze the houses and make way for a development project that would include a hotel, conference center, offices and health club.

All would be owned by private companies.

The city says it has the right to seize the property thanks to eminent domain - the government's right to buy private property for public use.

The Fifth Amendment allows governments to take private property - as long as they pay the owners "just compensation" and as long as they use the property for the public good.

Eminent domain is used all the time across America, to secure land for schools, roads and other public uses. In Yucca Valley, the town government is seizing property to secure land for a community center in the south side of town.

We have questioned the wisdom of the Town's declaring eminent domain on private property to build its new community center, arguing the town council is setting a dangerous precedent.

We still wonder if building a second community center in this area is worth the act of seizing private property - albeit for "just compensation."

But by seizing land for private companies, the City of New London has the Town of Yucca Valley beat by a mile.

The New London government argues it needs the offices, hotel and other projects to boost jobs and sales-tax revenue for its struggling city.

It has offered the homeowners money for their property - but that's not the issue. They simply do not want to leave their homes.

The property owners have taken their case all the way to the Supreme Court.

In the past, the Supreme Court has been unwilling to interfere when eminent domain has been challenged. The judges have deferred to state and local elected officials.

We hope they do not fail to issue a ruling in this case. They are not being asked to expand the Constitution or even to reduce local powers - because seizing land for private development is a power local governments should not have. It is a power no government should have.

To allow such a practice to stand is to ignore an implicit threat to all property owners in the country - right down to the Morongo Basin.

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Hi-Desert Star: www.hidesertstar.com

Sumner County asks state for changes to eminent domain law: The (Gallatin TN) News Examiner, 3/2/05

By Katrina Cornwell
Sumner County [TN] landowners who find themselves in the path of planned infrastructure improvements could be entitled to additional compensable damages in the future under a measure approved by the Sumner County Commission Monday.

The commission passed a resolution Monday that encourages the Tennessee General Assembly to amend state law as it applies to compensable damages to landowners whose properties are condemned for infrastructure improvements under the eminent domain law.

The legislation asks that property owners be compensated for future damage and loss of use of the overall parcel as an element of damage, which could be considered when awarding damages for condemnation of property.

The issue of additional compensation for landowners was raised recently by property owners who are impacted by a proposed 30-mile natural gas transmission line, which would cross Sumner and Trousdale counties.

Sue Carr said she and her husband Kenneth oppose the pipeline crossing their 185-acre farm mainly because it will come through some their “choice land on Alexander Lane.”

“The proposed gas line is coming through the very middle of it. The very prime choice land that we have,” she said.

County law director Leah Dennen said the issue about compensable damages under the state’s current eminent domain law was raised by District 2 Commissioner David Cummings.

State law does not address the damages the county’s resolution lays out, she said.

“When you lose land, it sets out what damages you’re entitled to,” Dennen said. “One thing that you haven’t been able to get is future use. It’s so speculative. What happens if they take a third of your property and it really damages the entire parcel. It is really asking the general assembly to look at those laws.”

Meanwhile, state lawmakers have several new pieces of legislation to consider concerning both eminent domain law and the proposed gas transmission line.

The State House of Representatives passed House Joint Resolution 7 Monday, asking the Federal Energy Regulatory Commission to deny Midwestern Gas Transmission Company’s Eastern Extension Project.

The resolution passed with 94 “yes” votes and no “no” votes, and because it is a joint resolution between the state House of Representatives and the state Senate, it will now be considered by state senators. It would take 17 votes to carry the measure.

McDonald was pleased with the showing of support among state legislators on the resolution.

“I was very pleased,” he said. “We worked very hard to explain the situation in Sumner and Trousdale counties. I worked with all the interested parties. Several came to see me on that resolution. We were able to explain the problem and the project isn’t necessary according to the independent consultants that made a presentation on the project at the county administration building. All those things made a difference too.”

McDonald has also sponsored another piece of legislation in support of landowners in Sumner County who are opposed to the Midwestern Gas Eastern Extension Project.

He introduced House Bill 106 Jan. 31 and if it is approved, it would require a petitioner for eminent domain to obtain written permission from a landowner before entering onto any parcel of land.

McDonald recently spoke before representatives of the Federal Energy Regulatory Commission, who held a “scope meeting” at the Sumner County Administration Building Feb. 24 to gather citizens’ input about the proposed pipeline, which would cross 157 tracts of land.

Standing next to him were state legislators Sen. Diane Black, R-Gallatin; Sen. Mae Beavers, R-Mt. Juliet and Rep. Stratton Bone, D-Lebanon.

McDonald said he opposes the Midwestern Gas transmission line project for several reasons.

“I continue to oppose Midwestern’s Eastern Extension project because one I don’t think it’s necessary and two I’m gravely concerned about the environmental impact,” he said. “Three, I’m concerned about safety issues, and four, I’m concerned about the devaluation of the property that the folks own. For those reasons, I continue to be opposed to it.”

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The news Examiner: www.gallatinnewsexaminer.com

Patents Pending: The American Prospect Online, 2/23/05

A D.C. official takes a renegade approach to get lower-priced drugs for residents

By Barbara T. Dreyfuss
Unless the drug industry starts to negotiate significantly lower prices, it may find itself battling debt-strapped states for control over the manufacture of drugs. States already take land and other property in order to benefit the public by building things such as roads and schools. Now some legislators and officials are saying they should be able to take away a drug company’s intellectual property, its patent. They want to give these patents, which allow a company to manufacture a product, to competitors that agree to sell the drugs to the states at much lower prices.

Patents are the key to huge drug-company profits. The industry will fight vociferously to protect them. In West Virginia, where the issue came up last summer, industry lawyers warned a legislative advisory council away from proposing such action on patents, claiming it would be unconstitutional. With virtually unlimited resources, the drug companies could drag states through courts for years. Still, the specter of states compelling companies to license their patents to other firms terrifies the industry. And even the fight to do this would open the industry to further scrutiny on pricing policy. All of which, some officials hope, could make drug companies more willing to negotiate discounts.

That’s what District of Columbia Councilman David Catania hopes will happen. Catania, a Republican who recently registered as independent after breaking with President Bush over the same-sex-marriage issue, introduced a compulsory license bill February 1. It authorizes Washington, D.C.’s mayor to declare a health emergency and, under eminent domain authority, issue a compulsory license to a generic firm to produce select patented drugs.

Under eminent domain requirements, the patented drug company would be given “just compensation” for the patent. The councilman argues that if drug companies were smart, they would “start talking about price reductions now rather than leave themselves open to a long, drawn-out due process review and hearings to determine just compensation.” Such review and hearings, he warns, would expose “just how pervasive the price gouging and profiteering has been.”

That’s precisely what happened when the Bush administration’s former health and human services secretary, Tommy Thompson, wanted to pressure the Bayer Corporation to give the government better discounts on its antibiotic Cipro during the anthrax scare. Thompson started threatening to have generic companies make Cipro if Bayer wouldn’t offer the government better pricing. Bayer immediately gave the government dramatic price discounts. Thompson acted after the Canadian government said it would override the patent and contracted with a generic company, Apotex Inc., to make Cipro. Catania, who chairs the District’s health committee, plans hearings March 22 with Washington health-care leaders, AARP, drug-company representatives, and a key legal architect of the bill, West Virginia University law professor Kevin Outterson. Outterson argues that states (the District of Columbia has all the legal powers of a state, notes Catania) derive the legal authority to have a company manufacture a patented product owned by another firm from two sources. First, states already take property for building roads and government sites under eminent domain powers, and could extend those powers to intellectual property, such as drug patents. Second, in a 1999 U.S. Supreme Court opinion (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank), the Court said that a state’s infringement of a patent, for a public purpose, is not by itself unconstitutional, so long as the state compensates the patent owner for the loss of the patent. To meet the public purpose clause of the Court’s ruling, Outterson proposes that states only break a patent to make drugs for public employees and Medicaid enrollees.

Outterson explained his ideas in late January at a meeting of the National Legislative Association on Prescription Drug Prices, a group of senior legislative leaders of eight Northeast states, Hawaii, and the District of Columbia. Outterson told them he knows of two states where legislators are drafting bills based on his proposal, and at the meeting Vermont legislators publicly indicated interest in doing so.

Catania says he doesn’t know if this bill “will be the silver bullet that brings sanity to pricing pharmaceuticals in the District,” but he believes states will be watching closely to see what happens with this “very new, fresh approach.” While the idea of a state seizing drug-patent rights and giving them to a generic manufacturer may seem extreme, remember that a growing number of state leaders, both Republican and Democratic, are already advocating illegal action, namely importing drugs from Canada, in a desperate attempt to get lower priced drugs.

States have always been a laboratory for innovative policies. Given the tremendous budgetary and constituent pressure on legislators to do something on drug costs, patent pending may take on new meaning.

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The American Prospect Online: www.prospect.org

The pain of eminent domain: 3/2/05

By Richard A. Epstein
Few Supreme Court cases in recent years have attracted more attention than Susette Kelo's battle against New London, Conn. New London, which claims it is a depressed city, wants to boot Kelo and her neighbors off their property to promote economic development.

Before they can do so, the Supreme Court has to answer a deceptively difficult question: What, if anything, does the Constitution require of a government when it takes property for a public use?

Most people think their homes are their castles - and hence, they are somewhat stunned to hear that their castles can be taken. But their feelings are somewhat assuaged if they think that the property will go to build a road or a military base - from which they would quickly conclude that the taking is for a public use, even if the road leads to nowhere and the military base is nonessential.

But for more than 150 years, such guidelines have been regarded as too narrow for government. Early cases have allowed the state to take or condemn property for focused public uses. Let's say, for example, that a mine is separated from a railroad spur by a tract of scrub land. The only way to move ore from mine to railroad is by aerial tramway over the scrub land. Without condemnation, the owner of the useless scrub can hold out to extract a small fortune from the mine owner. Hence the willingness of courts to come to the mine owner's aid.

Kelo's case is on the opposite side of the spectrum. She places a high subjective value on ownership of her home. Meanwhile, her house does not block the creation of any public project. Nor is any in the offing for years.

Kelo has become a cause celebre because in 1954, the Supreme Court cut local governments more slack than they deserve by holding that any slum clearance project was for a public use even if it meant removing some sound structures.

The Supreme Court's attitude was, and may still be, that state legislatures should determine what is a good plan and what is a bad plan. That is why Justice Sandra Day O'Connor has asked what standard should be used to "second guess" the legislature. The implicit subtext is that urban renewal projects are tough to understand and it is too bad if small people get unceremoniously dumped in the name of urban improvement. After all, if courts don't ask about the benefit from the public road, why ask about the benefit for urban renewal?

Fair question, for which there is, I think, a fair answer. We know roads are needed, and that individual landowners (like the owner of scrub land) could hold out for fortunes if condemnation were not allowed. But why do we "need" this particular urban renewal plan? It can't be because the lawyer for New London, Wesley Horton, trots out his master plan in oral argument and urges the court to assume that once Ms. Kelo and her neighbors are removed, this plan will materialize and tax revenues will increase. Truth is that the only pretty thing about this plan is his diagram. Otherwise, everything is in complete disarray for reasons that have nothing to do with Kelo's last stand. New London has spent $73 million in state money for environmental cleanup, infrastructure improvement, and the like, but at this time the city can't name a single project that will go on the nearly 90 acres it already owns, and can't imagine a single public use for the private homes it is so eager to condemn. And no sane lender would ever advance a dime to the city on the strength of optimistic tax projections that don't have a chance of being realized, given the downward spiral of this program since its inception.

Will at least five members of the Supreme Court be willing to open the doors to this Potemkin village? If they will just turn the doorknob, they might articulate a test that says, minimally, that before the city can adopt an urban renewal program, it has to present an integrated plan that requires inclusion of private homes. Just wanting to build fancy single-family homes doesn't cut it: Lots of developers do creative in-fill work all the time in Philadelphia and elsewhere, without condemnation powers. What is needed is evidence for a large plant or facility that cannot be located elsewhere. New London's lust for the Kelo home doesn't come within a country mile of meeting that overgenerous standard.

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Richard A. Epstein is a professor of law at the University of Chicago, the Bedford Senior Fellow at Hoover Institution, and a commentator on the National Constitution Center's "Constitutional Minute."
e-mail: repstein@uchicago.edu.

City's Eminent Domain Stand Is ‘disgusting': The (New London CT) Day, 3/1/05

Letter to the Editor

By Jackie Quercia, Norwich (CT)
It is unconstitutional, immoral and downright disgusting for New London to be in the business of taking people's homes by using the lame excuse that it will increase the local tax base. If that were the only criterion needed, then we are all at risk of losing our homes.

It is happening — and successfully — all across this country that elitist developers are trying to take property by using such tactics.

This is not a free country when you can lose your home or business on a whim or because someone decides that he or she has a better use for it.

I have been under the misguided impression that the laws in this country were put in place to protect us. It certainly does not appear so, at least not in New London.

I have never been so angry at anyone as I am at the city “fathers” who made this decision. They are bullies, and if I owned one of the homes they are trying to take away, I would chain myself to my front door. Every person in this country should be very afraid of what is happening.

We all need to take a strong stand against such tyranny.

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The Day: www.theday.com

Eminent Domain Huge Threat To Homeowners: The (New London CT) Day, 3/1/05

Letter to the Editor

By Daniel Bavasso, Westerly CT
In response to the letter to the editor titled “Eminent domain can revive New London,” published Feb. 27. The writer's home, property or business could be next for the overall good. So, New London can become the next Stamford.

Not to worry — they will give you fair-market value, which means they will give you squat compared to what it is really worth. This big, wonderful project could be a big white elephant in five years. Nobody knows.

One more thing, a person's home doesn't need to be “historically significant” to be valuable to the person who lives there. I didn't know the writer is an expert on blight. She seems to assume quite a bit for someone who has lived in New London a whole year — unlike the affected people who have lived there most of their lives, if not all. I don't know what business the writer is in, but she can assume this — she'll never get mine.

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The Day: www.theday.com

Board delays eminent domain: (Univ of North Carolina) Daily Tar Heel, 3/1/05

By Sam Shepard
The ongoing struggle to acquire a local satellite campus for Durham Technical Community College was continued Monday when the Hillsborough Town Board decided to delay the use of a tactic that could get it the land.

The Trump Group, the Florida-based developer hired by the town to acquire the property, and the landowners, the heirs to Marvin Glenn and Doris Huckabee, still had not reached an agreement on the sale of the land Monday.

The Town Board was scheduled to discuss the possibility of using eminent domain - the process by which a town can acquire private property for public use - Monday if no agreement had been reached between the parties.

But the board decided to table the issue until at least Thursday.

"They seem to be real close on negotiating a deal," said Mayor Joe Phelps.

The town decided to delay a decision on whether to use eminent domain - which first requires a 30-day notice - to see if the two sides can reach an agreement.

When the parties failed to reach an agreement earlier this year, the Trump Group requested at the town's Jan. 10 meeting that it use eminent domain.

But after a meeting Feb. 17, the town decided to wait until Monday to discuss such action.

The land in question is a parcel of land the college needs to provide access from N.C. 86 to the proposed satellite campus.

The college set an April 15 deadline for the land's purchase.

"This plan has been going on for years," Phelps said. "We do feel like it's a good proposal for Hillsborough."

Now, if the parties have not completed the contract by Thursday, the town will take the first steps toward using eminent domain.

But both sides seemed confident Monday that the contract will be signed in the next day or two.

"I've signed for my side," said Peter Henn, executive director for the Trump Group, adding that the only step left in the process is for the landowners to sign.

Henn informed the board that the only issue that still needs to be worked out is a minor disagreement over phrasing.

He declined to provide specific details, but he told the board that the landowners' lawyer, Ry Winston of Collett & Associates in Charlotte, was working on his clients' side of the contract Monday night.

But in order for the deal to come through, 14 landowners must sign the contract - a number Henn said could create minor problems.

Barbara Baker, dean of student services at Durham Tech, said the college chose the parcel of land in Hillsborough out of 17 possible locations.

"I think it's a great location for the college," she said.

"I am just assuming it's going to get worked out."

Durham Tech hopes that the new campus will offer new opportunities for students, including support services and computer lab space, Baker said.

Baker said that in the next six weeks, the county and the college board of trustees will look to move forward with their plans.

"We're in the process of selecting an architect," she said.

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Daily Tar Heel: www.dailytarheel.com

End the misuse of eminent domain: Mansfield (OH) News Journal, 3/1/05

EDITORIAL
The U.S. Supreme Court may decide whether eminent domain can be used to secure private property for private uses.
Private property must be protected.

There is a growing fear for property owners that their property may not be as sacred as it once was.

And the U.S. Supreme Court is at the center of what might be considered a state's rights issue over eminent domain, the government act of converting privately owned land into public land, subject to reasonable compensation.

We aren't sure where it will end, but recently there's been a new and disturbing twist to this issue.

In years past eminent domain was used only to secure private land for public purposes, such as building highways through cities, building schools, parks, buildings for water plants and other facilities that would benefit the public.

That made sense. But now there is a case before the high court of an attempt to secure private property for private development. We think that's crossing the line.

A developer in New London, Conn., wants the city to use eminent domain to further a privately financed project.

The nation's high court struggled last week to balance the rights of property owners against the goals of town officials who want to sweep away old neighborhoods and turn the land over to private developers.

Riverfront residents who are suing the town of New London say their working-class neighborhood is slated for destruction primarily to build an office complex that will benefit a pharmaceutical company that built its research and development headquarters nearby.

The justices expressed sympathy for the longtime residents. At the same time, they questioned whether they have the authority to stop the town's plans.

The outcome could have significant implications. Where does the public good begin and end? We're sure there will be more court cases, litigation and a continued gray area over what can be declared under eminent domain.

In recent years, there have been more than 10,000 instances of private property being threatened with condemnation or actually condemned by government for private use, according to the Institute for Justice. The group represents the New London residents who filed the case.

We can only wait for the high court ruling and hope private property ownership continues to be protected.

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Mansfield News Journal: www.mansfieldnewsjournal.com

Council members wary of eminent domain: (Lincoln NE) Journal Star, 2/28/05

By Deena Winter
The future of an east downtown block is now in the City Council's hands.
Developer John Q. Hammons has proposed building a hotel on this Lincoln block, bounded by P and Q and 17th and 18th streets.

Do council members vote Monday to approve redeveloping the block, likely paving the way for a $16 million hotel the mayor said will generate an extra $485,000 in tax revenue per year?

Or do they refuse to give city officials the power to evict existing property owners, possibly derailing the fast-tracked hotel plan?

They appear to want it both ways.

They may have to choose.

The hotel plan likely would die if the council approves redeveloping the block but doesn't arm city officials with eminent domain, said Dallas McGee of the city's Urban Development Department.

"The council could do that, but I believe if they did that it would probably kill the project," he said. "We do need the ability to use eminent domain in order to assemble the block. Because without it we would not be able to acquire the property, and neither would a developer."

Because the property isn't for sale, he said, it would be difficult to negotiate a price with the owners.

The council will have a public hearing Monday and likely vote on whether to redevelop the block, now home to a convenience store, restaurant, car lot, repair shop and parking lot.

Council members were generally supportive of the hotel when interviewed Friday. But they also said they didn't want business owners hurt in the process.

Here's where they stood days before the hearing:

• Jon Camp senses the council supports the hotel, he said, but is reluctant to authorize eminent domain. Although he is not sure how he'll vote yet, he said, one thing is certain: "I'm going to ask a lot of questions."
  
  
• A council member known for asking questions, Jonathan Cook, said he wants the property owners treated fairly.
  
  "I'm not sure that's happening," he said.
  
  He said developer John Q. Hammons — whose public company owns 44 hotels and manages another 14 — should negotiate directly with property owners and not expect the city to assume that role.
  
  "It's always easy for somebody who wants to build something to have the government do the dirty work," he said. "I think we need to consider this more carefully and not be starry-eyed."
  
  He also questions whether the hotel would reap new revenue or siphon it from existing hotels.
  
  "You can do a cost-benefit analysis (to justify) anything the government wants to do," he said.
  
  
• Terry Werner said the hotel would be good for Lincoln, but he wants the city to take care of existing businesses.
  
  "I think we're just going to have to listen to public testimony and make a tough, tough decision," he said. "I support the project but my goal is to make sure the property owners are taken care of."
  
  
• Annette McRoy said she's still wrestling with the proposal. "I hope we can come to an agreement with these property owners without using eminent domain. I want to treat everyone fairly if we do this."
  
  
• Patte Newman is leaning against authorizing eminent domain. She said the block is not like the vacant lots near 48th and O streets, an eyesore that property owners haven't cleaned up.
  
  "Generally what I've been hearing from everyone is this is absolutely morally wrong and un-American," she said. "This community respects local business owners."
  
  
• Ken Svoboda supports the hotel proposal, he said, and he'll listen to both sides of the debate. But he opposes the use of eminent domain — especially because the project is on a fast track to meet Hammons' ambitious timeline. He fears that as deadlines loom, the city would resort to condemning the property.
  
  He likely would support a plan allowing the city to proceed without the eminent domain authorization.
  
  
• The Journal Star was unable to reach the only remaining member, Glenn Friendt.

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The Journal Star: www.journalstar.com

Eminent Domain - Your Home Is Your Castle! Mortgage News Daily, 2/28/05

Or, maybe the punctuation is wrong. Perhaps the headline should read “Your home is your castle?

In other words, don’t get too comfortable in that recliner in front of the big screen TV while the kids whoop it up on the swing set in the back yard.

Why? The right of the government – federal, state, and local (even the school board) to evoke a right called Eminent Domain.

Eminent domain (it would be nice to abbreviate this as ED, but, gosh, Bob Dole has made that almost impossible) is nothing new. It is guaranteed by Article [sic — it's Amendment, not Article Five of the United States Constitution and has made possible the building of highways, dams, schools, and other crucial public works projects across the country for over two hundred years. Basically, eminent domain is the right of the government to take private property (after providing fair and equitable compensation) for the public good [sic — its public use, not public good].

Imagine if you will, the Interstate Highway System looking like a slalom course as it crosses the country, weaving in and between the homes and farms belonging to people who refused to sell their property to make way for the bulldozers. Countless farmers, businesspersons, homeowners, sometimes entire towns, have been forced to leave property behind so that massive projects such as the Quabin Reservoir in Massachusetts or the Glen Canyon Dam in Utah/Arizona could be constructed.

Some of these projects are easier to justify than others, and there will always be critics who say that the off ramp or the elementary school should have been put in a different location – perhaps where public lands already existed or landowners were willing to sell. Still, for over a hundred years, these takings by Eminent Domain were for public works projects and could at least stake a claim to serving the common good.

Then, in 1954, in Berman v. Parker, the Supreme Court ruled that cities can apply eminent domain to raze crime-ridden or decrepit areas for private purposes, making way for what became known as urban renewal.

Apparently, well under the radar, or at least unnoticed by the mainstream media, this ruling has slowly morphed into what local municipalities now consider a right to condemn private property in order to turn it over to other private ownership for development.

In Ogden, Utah the City Council wants to replace an older “blighted” neighborhood containing 34 homes and eight businesses with a Wal-Mart.

San Bernardino, California successfully evicted homeowners and a motel to build a new shopping center.

Riviera Beach, Florida has developed a plan to condemn 1,700 homes and apartments. While the city is probably years away from acting, these plans have substantial impact on homeowners’ ability to sell or desire to improve their properties.

According to The Institute for Justice as quoted by the Associated Press, there have been over 10,000 cases where private property was either threatened by condemnation or actually condemned by government for private use. (A second source quotes this figure for the time period 1998 to 2001.)

This all came into the spotlight earlier this week when the Supreme Court heard the case of Susette Kelo v. City of New London and New London Development Corporation. In this case, the City of New London, Connecticut, has condemned a stable, working class neighborhood near the Thames River to allow a private developer to build a glossy new office and residential complex. The development is intended primarily for use by Pfizer, the pharmaceutical mega-company, but will also house a hotel, river walk and a marina. By all accounts, the existing neighborhood was not blighted (much of it has already been leveled); it is occupied by middle-class homeowners who love their homes and maintain them. New London has justified the taking because the new project would, conceivably, provide more taxes and more jobs which it views as critical to the economy and future of a depressed New England town. The city plans to give the developers a 99 year lease on the property for one dollar a year.

Under eminent domain, the government generally notifies owners that a property is being considered for a public use and, after surveys and appraisals, makes an offer for that property. If the owner does not consider the price to be fair, or if he simply does not wish to give up his home or business at that, or maybe any, price, the government can then take the land. The owner is usually free to negotiate for a higher price for the property prior to the actual taking. But, under most rules, only after actual condemnation can the owner contest the price in court. Such court challenges are often well beyond the financial and emotional capabilities of those being displaced. Homeowners in New London freely admit that they would have been unable to fight eviction had it not been for the support of The Institute for Justice which has headed the Supreme Court challenge.

In the New London case specifically, but in many of the takings currently being protested throughout the country, the courts must feel like King Solomon trying to decide custody of the baby. Should the property rights of a few homeowners (seven in New London) outweigh the economic benefits that might accrue to an entire community? Should the economic interests (and profits) of Wal-Mart or a commercial developer be traded for the often more emotional interests of less affluent land owners who were, after all, there first?

In oral arguments before the Supreme Court on Monday, both attorneys and Justices showed the ambiguities that must be addressed by any decision. Even Scott Bullock, a senior lawyer with the Institute of Justice conceded, under questioning from Justice David Souter, that it could be a legitimate public purpose for a city to use tax money to buy up property for economic growth, but, in his view, only when people want to sell. Justice Souter than asked if there could not be a similarly legitimate public purpose in requiring people to sell. Bullock then retreated to a position that, perhaps government could force a sale for such purposes in certain cases, but only where the taking is certain to generate precise benefits.

Justice Sandra Day O’Connor asked New London representatives whether there should be any limits on government power in eminent domain proceedings. An attorney for the City said that the power of the people to vote representatives out of office constituted such a limit.

Aside from the issues raised in the New London case, there are others that may not be quite so obvious.

Should government be allowed to designate entire neighborhoods for “renewal” years ahead of any intention of acting? Property owners within such areas are placed in limbo for years, often unable to sell property, possibly even refinance it, because of a looming threat of condemnation

Does the earlier Supreme Court ruling that “blighted” neighborhoods are fair game discriminate against the elderly and the poor, those most likely to live in such areas?

Should property owners be able to avail themselves of court protection at an earlier time than after condemnation has actually occurred? Might there be a mediation process established above the level of the government agency doing the taking that can level the playing field for property owners?

The New London case has stirred the pot. There have dozens of public protests this week in areas with ongoing eminent domain controversies, so perhaps this issue will, at long last, get the public airing it deserves.

Meanwhile, don’t get too comfortable in that recliner.

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Mortgage News Daily: www.mortgagenewsdaily.com

Trans-Texas Corridor

The proposed Trans Texas Corridor is a massive toll road project that — if implemented — will swallow up over a half million acres of rural land via eminent domain. That land will be used not only for transportation but as State owned rental property for essentially unrestricted business use.

The enabling legislation is online at www.corridorwatch.com/ttc/law/hb3588-text.htm

You can keep up to date on this evolving situation at www.transtexascorridor.blogspot.com

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Porkus Maximus Tex: distantdetails@mac.com

Growth of eminent domain is a troubling omen: (Fairfield CA) Daily Republic, 2/27/05

Opinion

By Bill James
A case before the U.S. Supreme Court could ultimately shape the future of Suisun City's redevelopment plans for Old Town.

In case you missed the front page story a few days ago, the high court is struggling to rule on a suit brought by residents of a small Connecticut town against City Hall. City leaders plan to use the power of eminent domain to take control of homes and businesses in a working-class neighborhood and turn the properties over to a private developer.

Sound familiar?

Suisun City voted unanimously last year to restore its power of eminent domain so it might use it as a tool to improve blighted areas around the community. During discussions at the time, it was clear the City Council was targeting some Old Town buildings and at least a couple of apartment complexes.

At the center of the discussion in Washington, D.C., is the contention of the attorney representing the city of New London, Conn., who said the increased tax revenues was enough of a legal basis for the city to exercise its power of eminent domain.

Justice Sandra O'Connor asked the attorney, Wesley Horton, if the city wanted to seize the property to turn "a Motel 6 into a Ritz-Carlton Hotel, would that be OK?" His answer was, "Yes."

That is extremely bothersome.

This attorney just scoffed at the protections of the Fifth Amendment that limits the taking of private property for public use with just compensation.

Oh, the city is willing to pay the multitude of property owners in New London.

The problem is many of New London's residents don't want to sell and a number of the properties aren't run down.

One report tells of Susette Kelo, a nurse who bought a run-down property in the New London neighborhood. She restored it into her dream home, only to learn a short time later the city had condemned it. A court order is the only thing keeping her from eviction. What the justices decide will seal her fate.

Using the reasoning of New London's attorney arguing the case before the court, no property in America is safe. If a government agency deems it can make more tax revenue by razing "blighted" property, it should be able to move forward anytime, anywhere.

That would mean Suisun City could take control of the entire west side of Main Street if chose to and then sell it to a private developer.

Using that same argument - that any big box retailer would generate more retail tax than a couple of small "mom and pop" stores - the bulldozers should be rolling soon.

I can see it now: Wal-Mart replacing Kmart. Why not Disney building a new theme park on the Lagoon Valley property? Why settle for a golf course, some executive homes and a business park? "Disney Valley" will certainly generate more tax dollars.

One of the discussion points before the court by the homeowners' attorney is the lack of standards that currently exist when cities grab whole neighborhoods for economic revitalization.

Few would argue with the premise that Suisun City's use of eminent domain to clear out the old Crescent neighborhood more than decade ago was a good application of the law. Victorian Harbor has been a key element in Old Town's steady improvement.

What I would hope would come out of this case is this: The Supreme Court should establish some clear standards that apply when invoking eminent domain.

Preventing decay of neighborhoods is important. And no one wants to see the equity of someone's home or business being sucked out because of neighboring blighted properties.

But without specific justification, forcing the sale of someone's property because someone has more political pull goes against the basic philosophy of our democracy, which should protect life, liberty and the pursuit of happiness.

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The Daily Republic: www.dailyrepublic.com

The public 'use' and private wrongs of eminent domain: Universal Press Syndicate, 2/27/05

Opinion

By James Kilpatrick
The Supreme Court heard argument last week in the most significant case it will hear this term. The case is Kelo vs. City of New London. By the time the court's term ends in June, we may have a better picture of what has become of the concept of private property in the United States.

The facts are brutally simple: Susette Kelo owns her modest home in New London, Conn. She wants to keep it. The city of New London wants to take it away from her. Mind you, there is not the slightest vestige of an iota of a scintilla of evidence that the affected area is a slum.

Under the city's plan, her house and a dozen other private homes would be demolished. The cleared land then would be leased for private development. If the city wins, and everything goes according to plan, the developers will make a potful, the city will tax the enhanced real estate, and Mrs. Kelo will be out on the street.

In case you arrived late for this exercise in despotic democracy, New London is invoking its power of eminent domain. The power is embedded in the Fifth Amendment to the Constitution. It permits government to acquire private property for public use upon payment of just compensation. The power is an indispensable tool of civil government. It lets us build public streets and public highways, public schools and public libraries, public parks and public capitols.

The key words in all this are "public use." The Constitution does not authorize New London to take private property for public "benefit" or public "convenience" or for some inchoate public "purpose."

For a century and a half the two words were precisely construed. Then came the landmark case of Berman vs. Parker in 1954, perfectly exemplifying the maxim that bad cases make bad law. Here the Supreme Court unanimously approved the public condemnation and private redevelopment of a rancid slum in Washington, D.C.

Justice William O. Douglas flew into flights of eloquence: "Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river."

Once Douglas was wound up, there was no stopping him. A legislative body, he decreed, may consider values that are "spiritual as well as physical, aesthetic as well as monetary." It is within the legislative power "to determine that a community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled."

Then came the conclusion that struck some commentators, including this one, as indefensible:

"Property of course may be taken for redevelopment which, standing by itself, is innocuous and unoffending. Nothing in the Fifth Amendment stands in the way."

Thus began the crooked trail that led to last Monday's oral argument before the Supreme Court. The Berman case concocted a piece of semantic legerdemain. Presto! "Public use" became "public purpose." A constitutional dam was fatally breached. Little by little, in thousands of cases across the country, courts have authorized seizures under the power of eminent domain.

Whatever may have been the slum-clearing merits of the Berman opinion of 1954, these have been offset by the subsequent erosion of property rights as old as Magna Carta. Every schoolboy knows the story. In 1215, a band of barons gathered at Runnymede. There they laid down an enduring principle of human rights: A peasant's humble home is his castle. Mrs. Kelo's innocuous and unoffending little home in New London is her castle. Those barons met on a meadow overlooking the Thames River of England. By nice coincidence, the Kelo house overlooks the Thames River of Connecticut. A good omen.

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James J. Kilpatrick: kilpatjj@aol.com