Council to authorize eminent domain: Downingtown (PA) Ledger, 4/29/05

By Bryan G. Robinson
By a vote of 4-0, Downingtown Borough Council passed a motion last week to advertise the intent to adopt an ordinance that would allow the borough to condemn 9.8 acres on the Alcoa property at 520 Lincoln Ave., if need be.

Voting for the ordinance were council president Brenda Brinton, and councilors Heather Bruno, Anthony "Chip" Gazzerro and David Proctor.

Absent from the meeting were council vice president Jamie Bruton, who was out of town, and Tom Roderer, who was ill.

The ordinance reads that the acquisition "is necessary for the reduction in the perils caused by flooding, because the borough may, after acquisition, construct thereon a stormwater detention basin for the accumulation and dissipation of stormwater." In other words, the borough wants to build a basin to catch stormwater from Parke Run before it gets farther downstream, thus flooding properties in the borough, specifically along Green Street and Jefferson Avenue.

Downingtown Borough Manager Steve Sullins said that especially when one considers the health, safety and welfare of borough residents, the borough is well within its rights to enact such an ordinance, if necessary.

"We have to do something," said Gazzerro after the meeting. "It's been going on for years and years. We're trying to handle everybody's water coming in."

In 2001, the borough had an appraisal done with Alcoa for 9.8 acres, for $480,000, but no agreement had been reached.

Since then, according to Sullins, the borough has not been able to reach anyone with the company with the authority to authorize a transaction. He said he has had numerous talks with Alcoa officials at the local level and did talk with a representative from the real estate office several months ago. However, since 2001, there have been some changes in upper management at the company and the borough has had no formal offer, he said — up until last week.

At last Wednesday night's meeting, borough council president Brenda Brinton announced that she had received a formal offer from Alcoa, which after the meeting, she called "preposterous."

She said the offer came to borough hall on Monday and she was only able to receive the offer on Tuesday. She said that since council did not have an executive session before its meeting last Wednesday night, she only felt right to inform them of the offer at the meeting.

After she made her announcement, the meeting was recessed into executive session. "I didn't know of an official offer," said Gazzerro. "That's why we recessed into the executive session."

Brinton said now negotiations can run concurrently with the ordinance.

(Interestingly, the ordinance as it reads now has a blank line for a "drop-dead" date if negotiations for the acquisition fail to result in an agreement. Sullins said the borough wanted the option to continue negotiations, at this point.)

Sullins said Brinton had been attempting to make contact with Alcoa representatives for several months. "She knows some people in Alcoa," he said. "All of council knew she had been working on it."

As for the offer being "preposterous," he said that the offer was "much more than anticipated." However, he said he thought that with the eminent domain ordinance now on the table, it would give the borough better leverage in negotiations with Alcoa. He said that it would now be up to council whether or not it would adopt the ordinance. His own opinion, though, is that it will happen, he said.

Council, he said, has to advertise no less than seven days from the time that it would adopt the ordinance and that the advertisement for the intent to adopt would be in the newspaper shortly.

The next meeting for borough council is Wednesday, May 18.

On Monday, he said that since the formal offer, borough officials have not been in contact with Alcoa representatives. "We're still reviewing the offer," he said.

Roderer's comment

In a telephone conversation with Roderer last week, he said that personally he would have voted against the motion. "It's not a solution to our problems and sets a bad precedent for taking property," he said. "It's a Band-Aid on a bullet wound."
He said he thinks a basin will do little good. "It will make a little bit of a difference," he said.

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Downingtown Ledger: www.zwire.com

City sets eminent domain in motion: Atlanticville (Long Branch NJ), 4/29/05

Council approves retaining attys. for next phase of redevelopment

By Christine Varno
The Long Branch City Council took the first steps toward condemnation of properties in the Beachfront North Phase II redevelopment zone at Tuesday’s meeting.

The council approved two resolutions authorizing the city to retain two law firms to “perform services of redevelopment counsel for the Beachfront North Phase II project of the city of Long Branch.”

“[The resolutions] are obviously for acquisition of the property,” city Financial Director Ronald Mehlhorn Sr. said in an interview prior to Tuesday’s meeting.

One resident of the redevelopment zone said she is ready for this step.

“The city is taking private property and handing it over to a private developer,” Denise Hoagland, Ocean Terrace, said before the meeting Tuesday.

“It is wrong and it does not get any clearer than that.

“This is the beginning of them raping us of our due process and our properties.”

The resolutions award a $25,000 contract to Ansell, Zaro, Grimm and Aaron, Ocean Township, City Attorney James Aaron’s law firm, and $75,000 to Greenbaum, Rowe, Smith & Davis, Woodbridge.

Aaron said at the meeting his law firm is being retained to handle negotiations “if, in fact, the MTOTSA property owners want to negotiate.”

“If the homeowners cannot reach a compromise with the city, and as a last resort the city must use eminent domain,” he said, Greenbaum, Rowe, Smith & Davis would handle those proceedings.

If there are no negotiations, or if the city does not have to resort to eminent domain, the fees would be returned to the developers, he added.

According to Mehlhorn, the fees are provided by the designated developers of the zone, Applied Cos., Hoboken, co-developer with Matzel and Mumford Corp., a division of K. Hovnanian, Middletown, which have been given the right to redevelop the 36 properties in the three-street neighborhood, known as MTOTSA – Marine and Ocean Terraces and Seaview Avenue.

The area is slated for eminent domain and plans call for the properties to be razed and replaced with upscale townhomes and condominiums.

“My understanding is that most of the appraisals have been done and some offers have already been made to the property owners [in MTOTSA]” Mehlhorn said.

“If there is not a forthcoming agreement [between the city and the property owners], then condemnation will be used to acquire the properties.”

Before eminent domain is enacted by a governing body, several procedures must be followed by the city, explained Michael S. Kasanoff, Red Bank attorney. Kasanoff is representing a resident of the first phase of the Beachfront North redevelopment zone whose home already has been taken through eminent domain proceedings.

“Prior to eminent domain, there has to be good faith negotiations [between the city and] property owners,” he said.

“Appraisers must appraise the properties. The city then decides if the figure is appropriate before making an offer to the property owners.

“After the property owners receive an offer, they can get counsel and negotiate or say ‘no, under no circumstances.’ ”

If the property owners refuse, Kasanoff continued, “there essentially is a stalemate [between the city and property owners] and a compromise is unable to be reached. That is when the city can file eminent domain proceedings.”

According to MTOTSA members, which represents 26 of the neighborhood’s 36 property owners, they are not willing to sell their properties.

MTOTSA has hired Peter H. Wegener, an expert in defending eminent domain cases with the law firm of Bathgate, Wegener and Wolf in Lakewood, to represent them.

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Atlanticville: http://atlanticville.gmnews.com

Senate Panel's Eminent Domain Move Kills 'Super Slab': CBS-TV4 (Denver CO), 4/27/05

With 275 people from the eastern plains looking on, a [Colorado state] Senate panel Tuesday backed a bill that would effectively prevent the building of private toll roads such as the 210-mile long "Super Slab" project.

The crowd that had packed into the Old Supreme Court chamber applauded after the vote, hoping the measure would prevent the road's developers from forcing them to sell their land. Others who couldn't fit into the room listened to the meeting in a room upstairs.

The measure from Sen. Tom Wiens, R-Sedalia, would strip eminent domain power from developers of private toll roads, including the highway proposed for the plains between Pueblo and Fort Collins. Without that power, developers wouldn't be able to force people to sell their land for the project.

Ray Wells, who wants to build the Front Range Toll Road to the east of Interstate 25, has said Senate Bill 230 would effectively kill his project.

Because lawmakers are in a rush to get bills heard in both the Senate and the House before the session ends May 11, Sen. Stephanie Takis, D-Aurora, decided not to allow any public testimony. Instead she asked those in favor of the bill to stand and the sergeants at arms counted 275 people. Only one person a representative of the state transportation department stood when she asked who opposed the measure.

Front Range Toll Road Co. lobbyist Kathy Oatis declined comment. The company issued a written statement saying that it would only use eminent domain power as a last resort and supported adding regulations to protect property owners and the environment.

Republican Sen. Ron May, who represents El Paso County where much of the opposition to the road is based, tried to change the bill to still allow eminent domain but require private companies to follow the same rules as the state in paying fair cost for land. That angered toll road opponents but Takis ruled it out of order, saying it didn't fit under the bill's description.

Takis said the amendment had been offered by May on behalf of the transportation department.

Sen. Nancy Spence, R-Centennial, was the only senator to vote against the proposal. She said lawmakers should have heard from transportation officials about their problems with the measure rather than just making a decision based on emotions.

"I cannot support letting 275 people set highway policy for the state of Colorado," Spence said.

Wiens said the 19th century laws, which allowed private toll roads to be built, needs to be changed because it was never intended to allow highways carrying trucks and cars. He said the law makes it so easy to gain the power of eminent domain over people's property that he was able to fill out the registration paper work to build a toll road between Boulder to Pueblo during his lunch hour.

Irene Lobaido of Peyton said residents should never have been forced to defend their property against Wells.

"What right does he have over me just because he's a rich man?" she said.

Residents have come a long way since learning about Wells' plans after a bill he backed easily passed the House earlier this session. They mobilized quickly, holding large meetings and starting Web sites. About 500 of them showed up last month to watch the same Senate committee kill the pro toll road bill.

Road opponents have now hired a Denver lawyer to help them fight the proposal and they're working with lobbyists for environmental groups as well as one working for cable magnate John Malone, who owns land in the path of the proposed toll road in Elbert County.

Chuck Shaw of the Eastern Plains Citizen Coalition said members helped write Wiens' bill as well as another one introduced Wednesday by state Rep. Jack Pommer, D-Boulder. He said they'll be following those bills and could put more pressure on Gov. Bill Owens to support their effort. One option is holding a tailgating party at the governor's mansion, he said.

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CBS-TV4: http://news4colorado.com

Eminent domain debate plays role in Republican primary campaigns: York (PA) Dispatch, 4/26/05

By Melissa Weiler
As debate over the use of eminent domain continues throughout York County, a smaller contest is taking shape in Lower Windsor Township, the epicenter of the argument.

Supervisor William Buser, whose term expires at the end of this year, is again running for the Republican nomination, this time facing Russell Blew and Mary Caldwell.

The winner of the May 17 primary will likely become the next supervisor, unless someone else wins the Democratic nomination through write-in votes.

All three candidates say preserving the township's largely rural nature is a high priority, but have mixed views on a plan by York County Commissioners to use 915 acres of township land to build a park.

The commissioners want to acquire 80 acres through eminent domain, a move protested by the owner, Columbia builder Peter Alecxih. The county is currently in negotiations for another 800 acres of farmland overlooking the river, owned by the Kohr family, but has said it will consider eminent domain if it is not successful.

Blew said that he is in favor of landowners' individual liberties, and opposes the county's plan.

Wouldn't support taking: "I would never support the taking of private property by government, for purposes other than obvious public good," said Blew. "A highway, or a life-saving facility, perhaps but never for a public park."

Blew said he believes landowners in the township are the ones who are best able to plan for the future.

"The planning that goes on at kitchen tables in Lower Windsor Township is probably better than some of the professional planning being done," he said. "None of those groups are in it for the long haul — when you change those plans, you may be screwing up a family's plan that has been going for generations."

Blew said some of the township's recent accomplishments — such as its comprehensive plan — need to be more closely examined.

"Things in the township have changed, and some of those changes I'm not so fond of," said Blew, adding that he feels the board needs to do a more effective job of communicating with residents.

No 'stiff-neck position': Buser, who has farmed in the township since 1956, said he hasn't yet spoken either for or against the county's plans for a park.

"I didn't really take a stiff-neck position either way," he said, adding that he would like to see the issue resolved in the near future.

In the past few years, the township has undergone a sometimes contentious process to create a comprehensive plan, official map and zoning ordinance, designed to control growth.

"We had some pretty nasty meetings for a while there," said Buser. "There's still a little more to be done it's all being done for the betterment of the township."

Buser said the township also has a good farmland preservation program, especially important because the township is zoned to be about 85 percent agricultural.

"There are some issues on the table yet I would like to see be addressed," said Buser, who said he feels that his experience makes him the most qualified candidate.

Dismayed at $2 million: Caldwell said that as a member of the township's planning commission and a staunch supporter of farmland preservation, she was dismayed to see the board give $2 million to the York County Commissioners recently — money which may be used to support the proposed park. The money is to be used for a public park — but not for any land taken through the eminent domain process.

Although Caldwell says the issue of eminent domain is out of the control of township supervisors — it's now between the county and the landowner — supervisors can still control the financial effects of the county's decision.

Caldwell said that the $2 million should have instead been used toward the township's own efforts to preserve open space, instead of being given to a government body that can raise its own money through taxation. "We've lost our ability to follow through on our plan — a plan approved by supervisors," she said. "It was a direction we were going in, to provide services to our residents.

"Having this money leave our community is putting a hardship on us," she said.

Caldwell said the township's comprehensive plan calls for a park on the other side of the township, as well as carefully planned development.

"We need proper stewardship of Lower Windsor Township funds," she said. "I would like to make sure that we have short- and long-range planing practices in place for financial responsibility."

Future plans: On another issue, Buser said that, if re-elected, he will work to ensure that funding for the three fire departments serving the township remains steady, or is increased.

Currently, the board gives $47,000 annually to each of the departments East Prospect Fire Co., Yorkana Fire Co. and Craley Fire Co.

"I am going to see that we donate to those fire companies what they need to keep going," said Buser. "If we have to go to paid service, it will probably cost us much more, and we would have less protection."

Blew said he thinks he can effectively serve the township by providing an engineer's viewpoint and helping to better manage the township's assets.

"There aren't many people in the township that know me," he said. "My main job has always been serving my family and my church, and earning a living.

"Residents might find it useful to have a registered engineer working for them voluntarily on a township supervisor level."

Caldwell calls preservation of farmland and open space a priority. If elected, she said, she wants to make sure the board uses the tools it has available to guide development and recreation in areas that the township has already designated. In addition, Caldwell said that she would like to see the township reinstate the agricultural land preservation program, which uses funding to purchase permanent agricultural easements.

"It's an important program for the entire county," she said. "By preserving farmland, we can maintain a small-town rural community atmosphere here in Lower Windsor Township."

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York Dispatch: www.yorkdispatch.com

Nevada eminent domain bill wins state Senate approval: KRNV-TV4 (Reno NV), 4/26/05

A developer-backed bill that would limit use of eminent domain powers by government entities to preserve open space won approval on a 16-to-four vote in the state Senate.

There was no discussion as the bill by Senator Terry Care moved to the state Assembly for final legislative action.

The bill would help a developer tied up in a lawsuit over plans to build upscale homes on the old Ballardini ranch just south of Reno, but Care says he doesn't want to interfere with that litigation.

Senator Dina Titus, D-Las Vegas, one of the four senators who opposed the bill, said after the vote that she had received about two dozen calls and e-mails from open-space advocates and conservation groups opposed to the measure.

Minnesota-based Evans Creek LLC paid 8.5 million dollars for the Ballardini ranch in 1998, and wants to build nearly 200 upscale homes on part of the scenic property.

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KRNV-TV4: www.krnv.com

Are Private Benefit Condemnations a Thing of the Past? American Bar Assn Symposium, 4/29/05

Implications of Kelo v. City of New London
What will the Supreme Court decide in Kelo v. City of New London? The Supreme Court is expected to render a decision by the end of June, 2005 as to whether condemnations based on purely economic benefit will be allowed to continue, but you can hear the argument again in a program being presented at the American Bar Association, Section of Real Property Probate and Trust Law Spring Symposia in Washington, D.C.

Michael Rikon, chair of the Condemnation Committee will moderate a program entitled, “Are Private Benefit Condemnations a Thing of the Past? Implications of Kelo v. City of New London.” The speakers are Professor Steven Eagle of George Mason University Law School; Alan Ackerman, Esq. of Troy, Michigan who was successful in convincing the Michigan Supreme Court to reverse the Poletown decision in County of Wayne v. Hathcock; Dana Berliner, Esq. of the Institute of Justice and plaintiff counsel in Kelo; Daniel Krisch, Esq. of Horton, Shield & Knox, attorneys for the City of New London; James Burling, Esq. of the Pacific Legal Foundation; and Charles S. Webb, III, Esq. of Berger & Webb, attorneys to Forest City Ratner and other developers.

The program is scheduled for April 29, 2005 from 4:00 p.m. to 5:30 p.m. at the Fairmont Hotel, Washington, D.C.

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Michael Rikon: 212-422-4000, e-mail c/o LGeller@ggrgpc.com

Realtors' ads spur meeting: York (PA) Daily Record, 4/22/05

York County President Commissioner Lori Mitrick will meet April 28 with board members of local Realtors and builders associations to discuss the use of eminent domain.

The Realtors Association of York & Adams Counties has spoken out against the county's condemnation of a nearly 80-acre parcel, known as the Highpoint, for a proposed park overlooking the Susquehanna River in Lower Windsor Township.

The association has been running advertisements urging taxpayers to call the county commissioners to dissuade them from using eminent domain for the park.

Mitrick will meet behind closed doors with the representatives. The public and news media will be excluded.

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York Daily Record: http://ydr.com

Nevada lawmaker pushes ahead with eminent domain bill: Las Vegas (NV) Sun, 4/22/05

By Brendan Riley, Associated Press
A [Nevada] state senator pushed ahead Friday with a developer-backed bill that would restrict government eminent domain powers, despite opposition from open-space advocates hoping to preserve an old ranch near Reno.

At the urging of Sen. Terry Care, D-Las Vegas, the Senate on Friday approved amendments to his SB326 that leave intact wording that backdates the bill to effectively help a developer hoping to build upscale homes on the old Ballardini ranch.

Care insisted he doesn't want to interfere with pending litigation, but added government entities shouldn't be allowed to do what Washoe County is attempting in trying to block development of the Ballardini ranch on prime land just south of Reno.

The lawmaker said his purpose is to stop government entities from "really taking farms and ranches simply because they look nice, they're attractive, they're the last of their kind and on that theory shouldn't be touched."

It's improper "for the government to say 'We want it. We're not going to do anything with it. We just don't want anything to happen to it,'" he added.

Advocates of preserving the Ballardini ranch argue that the bill should be rejected because it makes an unwarranted end run around pending litigation over the open-space effort.

Steve Walther of Protect Our Washoe, a group trying to preserve the 1,000-acre ranch, told legislators earlier that Care's bill restricts eminent domain powers "just to protect one piece of ground for a Minnesota developer."

Minnesota-based Evans Creek LLC, which paid $8.5 million for the ranch in 1998, wants to build nearly 200 upscale homes on part of the property.

Washoe County Manager Katy Singlaub has said there's overwhelming public support for the preservation effort, but an "environment of mistrust" prevented a settlement.

Earlier plans had more than 2,000 lots, and Singlaub said the latest plan for a smaller project could help revive settlement efforts. But she added a local-level dispute resolution process should be used, rather than a new state law.

Attorney Frank Thompson, representing Evans Creek, has said the use of eminent domain to preserve the Ballardini ranch as open space was arbitrary and not supported by any court rulings. But Michael Chapman, a lawyer representing Washoe County, said a 1951 state Supreme Court ruling supports the county - and the bill would unfairly harm the county's position in the pending Ballardini litigation.

Pam Wilcox, head of the state Public Lands Division, also opposed the bill, saying it would harm the state's authority to acquire property for various state purposes.

SB326 would prohibit state and local governments from using eminent domain authority to acquire property for open-space or wildlife habitat preservation, but Care said that wouldn't block acquisition for a park or for flood control.

As originally written, SB326 would have applied to cases that arise beginning July 1. But Care made the bill retroactive to include any pending cases. He also said he wasn't pushing the bill for Evans Creek.

Care, an attorney, has said his interest in eminent domain began with the Fremont Street Experience case that led to a split state Supreme Court ruling in 2003 against Harry Pappas and his family, whose property was taken for the downtown Las Vegas project in 1993.

Care's bill adopts the dissenting views in the 4-2 ruling. The two dissenting justices said there should have been a formal process to determine whether the area was really blighted.

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Las Vegas Sun: www.lasvegassun.com

Marina project divides candidates: Houston (TX) Chronicle, 4/19/05

Four seeking mayor's post in Freeport

By Zen T C Zheng
The four candidates vying to be Freeport's mayor are divided over a proposed privately owned boat marina project.

Seeking the position are Steve Upton, a Brazoria County sheriff's deputy; Clan Cameron, a coordinator for a food-packaging company; Lon Siddall, a security officer for Dow Chemical Co. who also is a member of the city's Economic Development Corp.; and City Councilman Jim Phillips, who once served as county judge.

Jim Barnett, the current mayor, decided not to seek re-election after holding the post for 10 years.

The candidates say the marina project has divided the city. The project calls for an 800- to 900-slip marina to be built by a private investor along the Old Brazos River near the Pine Street bridge. The city is using eminent domain proceedings to acquire tracts from Western Seafood Co. and Trico Seafood Co., which are fighting the takeovers in court.

Upton, 48, criticized the city for making a major decision like the marina project without input from residents. "Before they make major decisions, they must let the citizens vote to have a voice in it," he said. "This is exactly what I want to do."

Upton supports having a marina in the city, but is against the city's way of pursuing it. "I'm against the city taking people's properties without honest negotiation," he said. "Also, these businesses have been here for many years supporting the city. Why do you run these businesses out of Freeport for another business?"

Cameron is against the marina project. "That is not the place for the city to say what business should be there and what business shouldn't. The city just needs to get out of the way and let people stay in business and live," he said.

Cameron, 40, said taxpayers should have had a chance to vote on the city's major projects, such as the planned marina and a proposed community building in Freeport Municipal Park, which would cost $798,000 to build.

Siddall, 54, who joined the city's Economic Development Corp. in 2003, said bringing new businesses to Freeport is a priority for him. He said he would continue that effort if elected mayor. He defended the city's marina project as one way to bring in new businesses and said eminent domain is needed to obtain the land for the project.

"The marina is a key to attract business down here. It's a jump start for Freeport," he said. "Once we get themarina, restaurants and services are going to locate here." He said the city's pledge of $6 million of tax money for the marina project is a wise investment. He said Freeport Marina LP, the private investor that is proposing the project, would pay back the loan with a 6 percent interest.

Phillips, 71, who served as Brazoria County judge from 1990 to 1994, called himself a "strong supporter" of the marina project. "We need it. That's the way to jump start and revitalize the downtown area," he said. "I'd like to see us negotiate the purchase of the properties without having to go to court. I want to see it come to fruition."

Clan Cameron

Cameron said the city has "lost focus" in its priorities. He said his basic platform for running for mayor is his ambition to improve the city's aging infrastructure. "We are not having our priorities right. The city has spent a lot of money on big projects that don't amount to anything. They look pretty only," he said. "This is an old city with a lot of things we haven't taken care of. They are only worried about pumping life into downtown, but if we take care of the infrastructure throughout the city, businesses are
going to move here."

A Tacoma, Wash. native, Cameron moved to Freeport when he was 12. He graduated from Freeport High School and is a Desert Storm veteran. He has worked at a food-packaging company operated by Employment for Persons with Disabilities, an Angleton-based nonprofit organization, since 1994.

Cameron said he would focus on flood control as his top priority. He said many neighborhoods are at risk of repeated flooding. "Some areas have gotten worse. Twice within the last three years during storms, you could run a boat down my street," said Cameron, who lives on Fourth Street.

Cameron said his next priority would be to replace the city's sewer system. The city's 10-year plan to replacesewer lines is too long a wait, he said. In addition, Cameron said, he would speed street repairs and reconstruction.

Jim Phillips

Phillips said he is aware of the often-contentious relationship between the city and residents, especially property owners. However, he blamed it on the economic development corporation.

"We have had a breakdown in communication with those property owners. There are glitches in the economic development corporation," he said. "From the beginning when we began the development of downtown, the EDC has never involved the property owners in the process."

Phillips is retired from the Marine Corps and worked for 31 years at Brazosport High School as a teacher, assistant principal and principal. As mayor, Phillips said, he would continue efforts to clean up the city and seek to attract new businesses. He also wants to decrease the property tax rate without affecting city services. Over the last six years, he said, the tax rate has dropped by 7 cents, to 71 cents per $100 valuation.

In addition, he would push for raising the city's homestead exemption from $40,000 to $80,000 for those who are at least 65 years old or are disabled.

As the city promotes economic growth, improvement to infrastructure and maintenance of city services should not be neglected, Phillips said. "We still need to improve the quality of life of people. We need better drainage, streets, police, fire and EMS protection, as well as more recreational opportunities," he said.

He said he wanted to renovate the recreation center at the municipal park and add programs and exercise equipment to the facility. "We have already had a beautiful city golf course. Let's do something for people who don't play golf," he said.

Lon Siddall

Siddall said if he were elected mayor, his top priority would be to improve "the poor communication between the city government and the people."

He said city officials fail to respond to residents' questions and properly explain issues that residents don't understand.

"I want to improve that by representing them," Siddall said. "If they ask a question, I'll answer it. If I don't have an answer, I will get an answer and get back to them. These people have the right to ask questions."

A Freeport native, Siddall has worked as a security officer for Dow Chemical since 1981. Prior to that, he was a deputy constable.

He was a Freeport City Council member from 1993 to 1997. He has been a police officer with the Oyster Creek Police Department since 1992 while working for Dow Chemical.

He praised the city's beautification effort that includes getting rid of deteriorated buildings. "We did this for urban renewal economic growth," he said. "We couldn't get developers here because of how the city looks."

Steve Upton

Upton has been a sheriff's deputy in the jail division since 1999. He taught at Alvin Community College andBrazosport College, and was Freeport's fire marshal from 1981 to 1994. In 1995, he was elected Precinct 1 Place 2 Justice of the Peace in Brazoria County, but lost a re-election bid in 1999.

Upton, who was born in Richwood, has called Freeport home since he was 9. He said he was encouraged to run for mayor by some business people who were "disappointed with the current leadership."

"We got a problem in Freeport. Citizens don't have a voice," he said. Upton called the city's effort to condemn and demolish old buildings an injustice to some property owners.

"They condemned a whole bunch of buildings without letting people fix it. They always said the buildings were beyond repair," Upton said. "I don't think that's right."

Upton said he wants to create more recreational opportunities for children and youth. "We need to do something for our children, some place for them to go without alcohol, drugs and trouble," he said.

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Houston Chronicle: www.chron.com

Eminent domain case in court end of July : The (Central IL) Pantagraph, 4/21/05

By Greg Cima
Attorneys will argue in late July whether Normal [IL] can move forward with eminent domain claims on land slated for a hotel, parking garage and conference center.

Phil Montalvo, the attorney representing landowners Bill and Orval Yarger and Alec Wade has asked the court to dismiss the town's eminent domain claims. Arguments will be heard July 26.

The town and the landowners are locked in a legal battle over properties at 207 S. Fell Ave., 211 North St. and 213 North St. The town and the owners accuse each other of not bargaining over a sale price in good faith.

The development would take up much of the land bordered by Fell Avenue, Broadway and Beaufort and North streets. Plans included a $30 million, 10-story hotel, 300-space parking garage and 40,000 square-foot conference center.

If the town wins in court action in July, the case will later move to a jury to decide what would constitute fair compensation for the land.

The town filed the eminent domain lawsuit in September

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The Pantagraph: www.pantagraph.com

Farmer wins compensation in eminent domain case: Virginia Farm Bureau Federation, 4/21/05

Property rights proponents in Virginia celebrated a victory for their cause last week when Chesapeake farmer Raymond Cartwright was awarded $2.4 million from the Virginia Department of Transportation.

At issue was 60 acres of Cartwright’s 1,500-acre corn and soybean farm taken by VDOT via condemnation so that the George Washington Highway (U.S. Route 17) could be rerouted. As a result of the rerouting, another 391 acres of the farm was left with no public road access, severely diminishing the land’s monetary value.

While Cartwright, 52 and a lifetime resident of the property, was happy to sacrifice some of his land in the name of public safety, he was not pleased with VDOT’s initial restitution offer in 2002 of $112,000. With the help of attorney Joseph Waldo of the Norfolk law firm Waldo & Lyle, Cartwright mounted a legal challenge to the offer, at which point VDOT increased the suggested reimbursement to $300,000.

“They were trying to say the value of the property was what a farmer would pay for the farmland. The Cartwrights said no — that the value is what Chesapeake would pay to develop the property,” Waldo explained.

Waldo and Cartwright reasoned that the property in question would have been worth about $6,000 per acre based on what developers were paying for similar tracts in western Chesapeake. However, the property became unattractive for development after the new U.S. 17, scheduled to open in November, prevented legal access to it. Because the highway is a limited-access road, there can be no entrance points other than the ones pre-established by VDOT. Cartwright can access his landlocked fields only from a neighbor’s land or private roads now.

“We had never hired a lawyer to do anything but settle our parents’ estate,” he said of his family. “VDOT pushed us in a corner. The new road is a good thing — it’s progress, and we’d never try to stop that.”

On April 14, a Chesapeake panel of commissioners awarded Cartwright about $90,000 for 13 of the 60 condemned acres—and another $2.3 million for the additional 391 acres that suffered diminished value.

The final amount exceeded VDOT’s original offer by more than 2,000 percent. Earlier this year, Virginia Farm Bureau Federation successfully lobbied for legislation allowing courts to award landowners “reasonable appraisal and engineering fees, and reasonable fees and travel costs for up to three expert witnesses testifying at trial,” provided the landowner is awarded at trial an amount exceeding the condemner’s final written offer by 30 percent or more. The law goes into effect July 1, so Cartwright still will have to pay the costs for the appraiser, surveyor and land planner he hired.

“The General Assembly still has a long way to go, because we’re behind so many states,” in eminent domain matters, Waldo said. “The trend is to give full compensation when a property is damaged or land is taken. These new bills are wonderful first steps.

“The Cartwrights said it best when they said they felt they were right all along. This confirms that,” he continued. “More and more, we’re seeing property owners studying the offers made to them to determine whether they’re truly fair offers. And when they believe they’re not, they’re seeking out professionals to help them.”

While $2.4 million is a significant award, Cartwright expects to spend between 40 percent and 50 percent of the money on taxes and fees for legal representation, expert witnesses and appraisers.

VDOT has 10 days to appeal the award; an appeal hearing is scheduled for April 25.

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Virginia Farm Bureau Federation: www.vafb.com

Eminent domain an option for board with coal project: The Southern Illinoisian, 4/20/05

By John D Homan
The Williamson County Board conducted a public hearing Tuesday with testimony provided by both proponents and opponents of an energy park project initiated by the Marion-based Steelhead Development Co.

Steelhead, with the financial backing of parent company Cline Resources and Development in West Virginia, has plans to develop the Southern Illinois Clean Energy Center, which will be a coal gasification-based electric generation and substitute natural gas facility. It would be located northeast of Johnston City near the Williamson-Franklin county line.

Projected to provide more than 300 jobs ultimately, construction on the coal mine (Phase 1) is set to begin this July with initial production set for next year. Phase two, which includes a power plant, is on the books to be in operation by 2008. Phase 3, or the Synthetic Gas facility, would open for business in either 2008 or 2009.

Altogether, the company is projected to invest $1.4 billion into the project.

Proponents of the project at the hearing included Johnston City Mayor Vernon Kee, Operating Engineers business manager Wes Cook and Assistant Director for the Department of Commerce and Economic Opportunity Larry Woolard. All argued that the operation of a coal company will provide job opportunities and revitalize the area.

Opponents were Earl Ray and Merlena Eberhardt of Johnston City, their attorney James Bleyer, Marion attorney Steve Green and Johnston City resident Donald Eberhart.

Both Eberhart and the Eberhardts own property that Steelhead wants to purchase to gain access to rail transportation of the coal that will be mined in the county.

Earl Ray Eberhardt is less than excited about the company's proposal and repeatedly told the board about it.

"I've been harassed the last four years over this railroad bed," Eberhardt said. "I'm about ready to call it torture. I am planning to keep the property."

The county board, however, has the right to take control of and sell Eberhardt's property for public use, a legal process known as eminent domain.

Bleyer said the establishment of a new coal plant is "wonderful," but believes that purchasing the property is premature.

"You're talking about condemning the land before anything's been done (by the coal company). Isn't that getting the cart ahead of the horse?"

"This is a real investment in the community," Woolard said. "You're talking about five-million-plus tons of coal mined a year here and eventually a synthetic natural gas plant with more than 300 jobs and a $33 million cash injection into this county alone."

Woolard said he supports the project wholeheartedly.

"I encourage and support you (commissioners) to stand with the company on this," Woolard said. "We don't see these kinds of job opportunities very often. That's over 300 families that could be impacted by the establishment of quality jobs in this county. The coal industry is in a regeneration mode right now. Mines are opening all over the state."

Jim Morris, vice president for Steelhead, said mine construction plans remain on schedule and added that he believes the company has "been more than fair" in its financial offer to the Eberhardts, reportedly 10 times the assessed value of the property.

County board member Robert Barnett said everyone who runs for public office has the desire to create jobs and enhance economic opportunities for the region.

"This is an excellent opportunity that will affect much more than Williamson County," Barnett said. "I have a lot of sympathy for the Eberhardt family, but as hard as a decision as this is to make, we must make it for the good of the many even if it hurts a few because we would like to see our area grow and prosper."

Cook said Southern Illinois is economically deprived and the opening of a new coal mine would be a major shot in the arm.

"The company has shown an interest in using local union workers and we need the work bad. The company is investing a substantial amount of money and we appreciate that," Cook said.

Kee said he has known the Eberhardts for decades and considers them friends, but as mayor of Johnston City, feels obligated to the citizenry as a whole to do the right thing, which he said is supporting the Steelhead project.

"Even though the railroad bed does not run through Johnston City, the future benefits we will derive will be tremendous - not only today but for years to come."

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The Southern Illinoisian: www.southernillinoisan.com

Freeport extends marina project: Th (Brazoria County TX) Facts, 4/20/05

By Michael Wright
[Freeport TX] City Council extended its contract with a developer to build a new marina on the Old Brazos River over the objections of a majority of residents in a standing-room-only council chambers Monday.

Opponents of the marina, which is being funded by a $6 million loan from the city to the developer, Walker Royall of Dallas, urged council to wait until after the May 7 city elections to take action. The mayor's position and two council seats are on the ballot, potentially reversing the majority in favor of the deal.

Wright Gore III, whose family owns Western Seafood and has sued the city to
keep it from condemning its land and turning it over to Royall, said council isn't respecting the wishes of its residents by renewing the contract, which was to expire in July.

Gore also said the Freeport Economic Development Corp., which recommended extending the contract, voted with three of its seven members absent and didn't take public input. "The EDC voted to renew this without any participation or questions from the audience Thursday night," Gore said. "No one was allowed to speak, no one was allowed to ask a question, no one was allowed to put any input on this."

Mayor Jim Barnett shot back at Gore. "You're just rambling here," Barnett said. "If it wasn't for you, we wouldn't even be talking about this tonight."

Council approved the one-year extension by a 4-1 vote, with Councilman Larry McDonald voting against it. Steve Upton, one of four men running to replace Barnett - who is not seeking re-election - also urged council to put off a decision. "This is an issue that can wait," Upton said. "Let the council that's going to be the council leading next year make the decisions. It needs to wait for the people to speak."

Councilman Jim Phillips, development corporation board member Lon Siddall
and Clan Cameron also are running for mayor.

City Manager Ron Bottoms said waiting doesn't make sense. "The issue at hand is the extension of the one-year agreement and why extend it now," Bottoms said. "The short reason is we have a council that's educated on the issue."

Under terms of the agreement, the economic development corporation, which is funded by the half-cent sales tax, would loan Royall $6 million to fund the marina's construction.

Bottoms said the loan would be secured by $1 million in cash, $800,000 in property and the improvements the developer makes on the site. "Before he can make any draws on that $6 million loan, he's got to spend his $1 million," Bottoms said. "Then you start spending the $6 million as the development occurs. It's not going to happen, but let's just say he walks two months into it after he's spent $2 million of the city's money. We have the money set aside, plus we have the land now to make it happen, so it's a very secured loan."

Gore said his family supports the marina, but objects to the loan and the
city's use of eminent domain to take property from one owner and give it to another private owner. A federal district court has ruled the city can take the land, but the parties are waiting on the U.S. Supreme Court to rule on a similar case.

While most of the people at Monday's meeting were against the deal, it wasn't unanimous. "I want to let you and everybody else know that Mr. Gore does not represent all of the citizens," Sandra Leavey said.

Bottoms said the marina can be the engine that revitalizes the city, leading to restaurants and hotels around the site that will create jobs and increase the city's tax base.

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The Facts: www.thefacts.com

San Pablo will take mobile home park: Contra Costa (CA) Times, 4/19/05

By Tom Lochner
The [San Pablo CA] City Council on Monday voted to take over the Alvarado Mobile Home Park by eminent domain.

The 49-unit mobile home park is part of an 18-acre tract on San Pablo Avenue between Church Lane and Vale Road that the city wants to redevelop with market-rate housing.

Dubbed the Circle S Project Area, it includes Alvarado; the 200-plus unit Circle S Mobile Home Park; a defunct lumber yard and warehouse; and a Salvation Army store.

Alvarado owner Edward Biggs doesn't mind letting go of the property, said his representative Robert Trockey. But Biggs doesn't like the $2.76 million appraisal price the San Pablo Redevelopment Agency is offering.

Biggs wants $4.2 million.

The legal process of forcing a sale through eminent domain could take about a year, Arner said. The process often concludes "on the courthouse steps," said City Manager Brock Arner.

The council vote was 4-0. Councilwoman Sharon Brown, a real estate broker, recused herself to avoid any appearance of impropriety, even though she has no conflict of interest, she said.

The council will likely decide in the next four months whether to also acquire the Circle S park by eminent domain. It already owns the lumber property.

Once the redevelopment agency has assembled the entire 18 acres, it may seek a developer or develop the property itself, Arner said. He said construction could begin in a few years.

Mobile home residents would be offered relocation benefits of as much as $50,000 per household, officials have said.

If the city turns to a developer, current residents would not be offered any protections other than the relocation benefits, Arner said.

If the city develops the property, elderly and disabled residents could stay as tenants in new housing units at rents equal to what they paid for their spaces as of March. Other tenants could stay at subsidized rents for three to five years, Arner said.

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Contra Costa Times: www.mercurynews.com

Homeowners fight to stay in Norwood : Cincinnati (OH) Enquirer, 4/19/05

By Sharon Coolidge
A developer has begun bulldozing property near Interstate 71 to build a multimillion-dollar office and shopping complex in Norwood, but three property owners aren't giving up their battle to stay.

The Washington-based Institute for Justice brought its fight Monday to the Ohio 1st District Court of Appeals, arguing that Norwood never should have been allowed to seize the owners' property through eminent domain because the property wasn't deteriorating.

Norwood city laws permit the use of eminent domain for urban renewal when an area is blighted or in danger of becoming blighted. The city said the property was deteriorating and dangerous because fire crews could not adequately access properties.

Tim Burke, who represents the city, said Norwood City Council had the right to use eminent domain because taking the property will benefit the public through urban renewal and will spur economic redevelopment.

"This is about balancing public welfare versus the private good," Burke said.

The institute's attorney, Dana Berliner, said economic development is not mentioned in the city's ordinance that outlines the eminent domain action.

"The question is not whether it's a good or bad project," Berliner said. "It's whether Norwood violated its statutes in taking the property."

The Institute for Justice, which represents homeowners Joy and Carl Gamble and rental property owner Joe Horney, is appealing a June 2004 decision by Hamilton County Common Pleas Judge Beth Myers.

Myers ruled that Norwood could take their homes and businesses through eminent domain, paving the way for the city to transfer the property to developers Anderson Real Estate and Miller-Valentine Group.

A third person, who owns the Kumon Learning Center, also is fighting the eminent domain action, but was not part of Monday's appeal. The owners of Wilker Design and Holistic Healing Center were part of the original case, but have since sold their property to the developers and dropped their appeal.

The developers want to expand Rookwood Commons and build Rookwood Exchange, a $175 million complex of offices, shops, living units and restaurants.

The case dates to 2002, when Anderson Real Estate and Miller-Valentine Group proposed the development, which would sit on a triangular piece of property bounded by Interstate 71 and Edmondson and Edwards roads. The development required demolishing 71 properties.

The developers suggested using eminent domain as a way to take the property, but city officials insisted that they first try to obtain the property privately. Sixty-six owners agreed to sell for a minimum of 25 percent above fair market value, but five owners wanted to stay, including the Gambles and Horney.

Appeals Court Judges Robert Gorman, Lee. H Hildebrant Jr. and Mark Painter will issue a decision sometime in the next few months. The court has said the homes and businesses on the three properties in question cannot be destroyed until the issue is resolved.

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Cincinnati Enquirer: http://news.cincinnati.com

Eminent domain top Freeport issue: The Facts (Brazoria County TX), 4/17/05

By Michael Wright
Three of the men running to replace longtime Freeport Mayor Jim Barnett agree the city has the right to use eminent domain to condemn land planned for a new marina on the Old Brazos River, though they disagree on whether that time has come. However, a fourth candidate said taking land for the benefit of a private investor is a gross violation of property rights.

Jim Phillips, Steve Upton and Lon Siddall expressed varying support for eminent domain, the right of the government to take private land for public use by paying fair market value, though Upton and Siddall both said it should be used only as a last resort of negotiations in good faith. Clan Cameron, however, said government had no business taking private property unless it’s going to be used for a public project.

“For the city to take land from one private owner and give it to another, that’s not right,” said Cameron, 40, a clean room coordinator for EPD, Inc. Cameron said the city has a marina at Bridge Harbor and doesn’t need to fund a new one for the benefit of private interests. “We already have an existing business,” he said.

The city, through its Economic Development Corporation, plans to loan $6 million to developers to build a new marina along the waterfront. The economic development corporation has moved to condemn land that the owners don’t want to sell, then turn around and sell that land to the developers.

Western Seafood Co. is fighting the city and the Freeport Economic Development Corporation for 330 feet of waterfront property along the Old Brazos River that belongs to the 50-year-old business.

Both sides are awaiting the results of a similar case before the United States Supreme Court. Phillips said condemning the land is acting in the interest of the city as a whole. “It’s going to benefit everyone else who lives in the city,” he said. “That’s what economic development is all about. It may be good for one person, but it’s also good for all the people that reside in the city.”

Phillips said the city isn’t technically condemning any land. “We’re not taking private property,” he said. “The Economic Development Corporation is taking private property. It’s a separate entity established through the half-cent sales tax.”

In fact, the Economic Development Corporation’s board handles tax money and reports to City Council. Siddall, 54, a former councilman who sits on the board, said eminent domain should be used only as a last resort. “I believe in eminent domain and I also believe it can be used in the wrong way,” said Siddall, who works in emergency services and security for Dow Chemical Co. “When nothing else happens, then yes, eminent domain is the tool. I don’t believe it’s happened here.”

Upton, 48, a sheriff’s deputy who works in the Brazoria County Detention Center, said he also believes eminent domain should only be used as the ultimate weapon in this battle in case negotiations fail. “If it fails and the marina is the best thing for the city and the only way we could get the property is eminent domain, then maybe we have to use it,” he said.

Phillips, who has served 13 years on council, sandwiched around a term as Brazoria County Judge from 1991 to 1995, said the city’s overall economic development is his top priority. “We’re right in the middle of doing something we should have done 20 years ago, and I don’t want to walk away from it,” he said. He said he’s proud of the city’s recent beautification efforts and hopes to see them continue.

Upton, a former justice of the peace, said he wants to create a more citizen-friendly environment at City Hall. “I want to get the city turned around and get it back in the hands of the citizens instead of the people who have their own interests,” Upton said. “I think it’s going to take getting the citizens aware that when something comes up you have the right to address the council and ask questions.”

Siddall also said council needs to be more responsive to residents. “I hope to make an attempt to improve communications from City Hall to the citizens,” he said. “It’s lacking and it’s caused lots of animosity in Freeport. When people call you, you just don’t ignore them. People are feeling like they’re not getting represented.”

Cameron, who lost a bid for a council seat last year, said the city needs to focus on basic services. “I’ve been basically walking the streets and talking to the citizens,” Cameron said. “They say, ‘This is an old city.’” He said his top three priorities would be flood control, which he believes to be inadequate, improving the city’s sewers and its streets.

The Freeport mayor serves a two-year term and makes $150 a month.

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The Facts: http://thefacts.com

Eminent domain: Salina (KS) Journal, 4/16/05

City defends decision to force sale of land for soccer fields

By Tom Dorsey
It’s been called the offer you can’t refuse.

Eminent domain — the government’s right to buy your property whether you want to sell or not — long has been controversial. Critics use phrases such as “abuse of power” when they talk about it. Salina City Manager Dennis Kissinger says much of the rhetoric is overheated.

“I think people make too big a deal out of eminent domain,” Kissinger said. “In most cases, it wasn’t that the owner said they wouldn’t sell at any price. It’s just a disagreement over price.”

The issue surfaced in Salina recently, most notably in connection with the North Ohio Street overpass project. Five property owners refused the city’s offer and ended up in court.

And last week, the city commission decided to use eminent domain to acquire farmland southeast of town for a soccer complex. The city wants to buy 65 acres of land; three of the four parties agreed to the city’s offer of $6,500 an acre. The owners of the fourth parcel — a 17-acre tract in the Smoky Hill River flood plain that has been owned by the Olson family for nearly 100 years — have been holding out for $10,000 an acre.

Kissinger said that although eminent domain cases are highly visible, they are very much the exception.

“It’s really a fairly small number of cases,” Kissinger said.

In the past 15 years, the only other instances of the city resorting to eminent domain involved the realignment of the Belmont at Ohio street intersection, the drainage basin for the Knox sandpit, and installation of a sewer interceptor back in the 1980s, Kissinger said.

On the other hand, the city routinely acquires land, easements and rights of way.

“The record shows we deal fairly with the property owner,” Kissinger said.

Just recently, the city reached an agreement with the owner of a house next to a fire station.

“If we had been substantially off in price, we would have found ourselves in eminent domain,” he said.

The courts have said that government can acquire private property, so long as the owner is justly compensated and the property is put to “public use.”

What can be taken?

But while many people agree that expanding the fire station or building an overpass are legitimate public uses, the issue is less clear-cut in some other cases.

When plans for a NASCAR track in Kansas City, Kan., were announced, Wyandotte County used eminent domain to acquire dozens of parcels with homes. The Kansas Supreme Court ruled it was a public use, even though the track is owned by NASCAR.

Similarly, the city of Merriam used eminent domain to allow a BMW dealership to expand, and Shawnee County resorted to eminent domain to acquire land on behalf of Target, the big-box retailer.

Last year, a bill was introduced in the Kansas Senate that said “the taking of private property for the purpose of selling, leasing or transferring such property to any private entity ... for industrial or economic development shall not constitute public use.” It failed to pass the Senate.

Conflicting rulings
Two months ago, the United States Supreme Court heard testimony in Kelo v. City of New London, a case in which the city wants to acquire a 90-acre neighborhood and lease it to a developer for $1 a year. A ruling is expected this summer.

Court rulings around the country have been mixed. While the Connecticut Supreme Court sided with the city of New London, the Arizona Court of Appeals in 2003 said the city of Mesa could not use eminent domain to take property from a brake-shop owner and turn it over to Ace Hardware. And in 2002, a federal court in California prevented the city of Cypress from condemning a church-owned property and selling it to Costco.

Kissinger pointed out the city of Salina has never used eminent domain to acquire land for economic development. In fact, the city is reluctant to use eminent domain in some cases involving traditional public uses.

“If someone has a family home they’ve lived in for 55 years, to acquire that for parkland may be substantially different than acquiring wheat fields,” Kissinger said.

In the soccer field case, several property owners agreed to sell to the city; only the Olson family held out for a higher price. If the city had been unable to reach an agreement with any, Kissinger doubted that eminent domain would even be considered.

“If all four owners had been resistant, that’s different than if the last one is,” he said.

The process isn’t necessarily rancorous.

“We each have a job to do,” Kissinger said. “Our job is to make sure taxpayers don’t grossly overpay. But we are required to pay fair value.”

Mark Hagen, a lawyer in Overland Park who takes eminent domain cases, says fairness is what eminent domain is all about. When railroads started spreading west in the 19th century, speculators made huge profits buying up land that would be required for right of way.

“That is why eminent domain came about,” Hagen said. “It’s basically to prevent profiteering. It’s very public. Nobody gets their land taken away by some secret government action. It’s going to be on the record, and the appraisals will be part of the record.”

Started in 1889
Gary Olson, who along with his brother, David, and mother, Vonna, own the 17 acres in question, said it’s hard for him to imagine the property being used for soccer. His great-grandfather, Gust Johnson, who was born in Norway, started farming in Saline County in 1889. According to county records, in 1909 he bought a tract of land along the river in Walnut Township, southeast of Salina.

In April 1936, less than three months before he died of cancer, Johnson sold the property to Ruth Olson, his daughter and Gary’s grandmother.

“I remember as a kid going down there,” Olson said.

Olson said he’s not necessarily opposed to selling the property. In fact, his family has sold property to the city and Salina School District in the past. Neither of the other instances — land the city acquired in the early 1990s for a sewage pump station on Magnolia Road, and a parcel the school district bought about three years ago for future expansion (Olson still farms the land) — involved eminent domain, but Olson believes it would have come to that if he had refused to sell.

“This is the third go-round of, ‘either you do this, or we’ll do that,’ ” Gary Olson said.

We’ve got other ideas

Olson says his family had other plans for the parcel the soccer club wants now.

“My brother had other ideas for the land,” he said. “He maybe wants to put in a miniature golf course.”

David Olson didn’t return telephone calls for this story.

But county zoning regulations would appear to make a miniature golf course impossible unless the property were first rezoned. Under the regulations, a variety of uses are permitted in agricultural zones, but miniature golf courses are allowed only in industrial, business or village zones.

For instance, with a conditional-use permit, drive-in theaters, gymnasiums, go-cart tracks and golf courses that have a country club are allowed. (Golf courses without a county club don’t require a permit.)

The potential for commercial development of the land is limited by its location — much of the Olson’s 17-acre tract is in the river’s flood plain; some is in its floodway. Before development of any sort proceeds in a floodway, a study must be conducted and conclude the changes will not cause the flood level to rise.

Shawn O’Leary, the city’s public works director, estimates that less than a fifth of the land to be used for the soccer complex is in the floodway. He’s confident the flood zone designation will not sink the project.

“We did a fair amount of exploratory work on all these issues,” he said.

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Salina Journal: www.saljournal.com

Eminent domain in White Plains urged: (Westchester NY) Journal News, 4/17/05

By Susan Elan
A White Plains councilman wants city officials to use the power of eminent domain to clear a downtown commercial property for construction of 42 units of affordable housing.

"The use of eminent domain would fulfill two purposes," Councilman Robert Greer said Friday. "It would help affordable housing and create open space in the downtown."

But several other council members shied away from the idea of seizing land from a private property owner even if it serves "a legitimate public purpose," as Greer maintains.

Greer's proposal involves property at 185-187 Main St. adjacent to a $350 million hotel, residential and retail complex, called Renaissance Square, that developer Louis Cappelli is building.

City officials will hold a public hearing Thursday on Cappelli's plan for affordable housing, as well as a request by him to increase the height of his approved Renaissance Square residential towers at 221 Main St. To sweeten his appeal for a height increase from 350 feet to 400 feet, or about 40 stories, Cappelli has pledged to give $1.5 million to the city's affordable housing fund in addition to building 42 affordable units, as required by the city.

Initially, Cappelli proposed constructing the units next door to Renaissance Square. But he was unable to reach a deal with Stanley Drucker, owner of the building at 185-187 Main St. Drucker declined to comment.

Cappelli then proposed construction on property he owns at 240 Main St., home for more than two decades to a popular lunch spot called the Corner Nook Cafe.

That suggestion incensed rival developer Martin Ginsburg, who wants to construct a $100 million luxury condominium complex at 250 Main St. Ginsburg has been fighting Cappelli in court over ownership of 240 Main St.

Ginsburg argues that the property should be turned into open space to enhance the City Center Plaza.

Greer's call for the use of eminent domain at 185-187 Main St. supports Ginsburg's contention that the city would gain by opening up the City Center Plaza without sacrificing affordable housing.

"We have the opportunity for a very nice public plaza at the City Center," Greer said. "Putting affordable housing there would wreck that."

Mayor Joseph Delfino called Greer's plan "an interesting proposition."

But Delfino added, "It raises a number of procedural and legal issues that would have to be addressed. Naturally, the Cappelli organization is eager to get their approvals for financing. I would hope this would not delay or stall the process."

Cappelli did not return calls for comment.

Council President Thomas Roach and Councilwoman Rita Malmud said they were reluctant to impose eminent domain in this situation.

"In this case, it would be a hostile use of this power," Malmud said.

Jack Harrington had opposed Cappelli's call to use eminent domain to remove the Bar Building at 199 Main St. to make way for his Renaissance Square complex. But Harrington, a former member of the city's Conservation Board and a former president of the White Plains Historical Society, said he would not necessarily oppose the seizure of land under the scenario suggested by Greer.

That property, site of the Karamba Cafe Restaurant, has no historic value, Harrington said. The Bar Building preservation campaign won national historic recognition for the 1926 Gothic and art deco structure.

Roach said the hearing Thursday at City Hall will tackle multiple facets of the affordable housing issue, including price.

"I don't call it affordable housing if it costs $1,800 or $2,000 a month," Roach said.

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The Journal News: www.thejournalnews.com

Surviving Eminent Domain: KSDK-TV5 (St Louis MO), 4/15/05

Former Residents Near Lambert Talk About Being Forced Out
Dozens of homeowners in St. Louis City and County will be forced to move, once construction begins for improvements to Highway 40. Five years ago, homeowners near Lambert St. Louis International Airport lived that nightmare.

The runway project called W1W affected dozens of homeowners in communities close to Lambert Airport. Fred and Laverne Neuroth lived in the Carrolton subdivision for 42 years and raised 4 children in their home, before they were forced to move 3 years ago

The Neuroths moved to O'Fallon, Missouri. After they were bought out, the couple had 2 months to find a new home. "Trying to find a new place that fits the needs of your family is a hard task," says Fred.

"You're no longer in control of your life-that's where the problem comes in", says Laverne. The Neuroths believe younger homeowners received better prices for their homes and had overall better experiences with relocating than older homeowners.

Fred and Laverne say the people they dealt with from the airport were fair, for the most part, but their lives will never be the same. "All of those memories. You can't put a price tag on them", says Fred.

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KSDK-TV5: www.ksdk.com

CU Paving Way For Eminent Domain Use: Columbia (University) Spectator, 4/15/05

Letter to State Requests Dialogue About Possible Condemnation, CU Provides $300,000

By Jimmy Vielkind and Erin Durkin
Columbia officials have requested that the state consider condemning property in West Harlem for the University’s Manhattanville expansion plan and have made a payment of $300,000 to cover the state’s legal fees.

The request was made in a letter sent last summer to the Empire State Development Corporation, a state authority that facilitates development projects and can condemn property for private developers using eminent domain, and signed by Columbia’s Deputy General Counsel Howard Jacobson. Spectator obtained the letter under the Freedom of Information Law.

While the six-page letter is only a preliminary agreement between Columbia and ESDC and contains no specific promises to condemn property, it is the clearest expression to date of the possibility that eminent domain, the ability of government to forcibly buy property for “public use,” may be used for Columbia’s expansion and has raised concerns about how open the University has been in its dealings with the community.

“Columbia has requested that the ... Empire State Development Corporation, subject to applicable law, consider the condemnation of portions of the Property not under Columbia Control and the transfer of title by deed, subject to appropriate restrictions, to facilitate development by Columbia of facilities to be used for academic, administrative, student and faculty residences, retail, parking, on-site energy, open space, a hotel and other related or ancillary uses and public amenities currently under discussion. This letter agreement sets forth the agreement of Columbia to pay certain costs to the extent incurred by ESDC in connection with the Project,” the letter states.

The document also contains assurances that Columbia will assume liability for any lawsuits brought against ESDC in their work, which was defined in the letter as “drafting, reviewing and/or negotiating ... restrictive deeds and land acquisition and disposition agreement(s) between ESDC and Columbia, and necessary or appropriate documents related thereto.”

University officials downplayed the significance of the agreement and explained that Columbia’s communication with ESDC is a necessary part of any development of the scope of the planned Manhattanville project.

“We have said repeatedly that the decision [to use eminent domain] is the state’s, and we are not prepared to take the option off the table. Signing this reimbursement letter was a necessary step to preserve the option,” said Liz Golden, a University spokeswoman.

The letter stipulates that Columbia will pay ESDC $300,000 to cover any costs incurred in conjunction with its work on the expansion project, including the retention of condemnation counsel. University officials and ESDC both confirmed that the payment had been made. The letter also states that if the balance of the account in which the payment was placed drops below $100,000, ESDC will request additional funds. University officials said that this scenario has not yet taken place, meaning that ESDC has spent no more than $200,000 investigating possible condemnation in Manhattanville.

The last paragraph of the letter states, “If the foregoing accurately sets forth our understanding, kindly sign two of the enclosed copies of this letter agreement in the space set forth below, ... whereupon this letter agreement shall become a binding agreement.” The space below is signed by Charles Gargano, chairman and chief executive officer of ESDC.

Chapin Fay, an ESDC spokesman, confirmed that the letter represented a legal agreement between the University and the authority. He emphasized, however, that it was preliminary.

“Columbia University has asked ESDC to consider assisting in the University’s proposed expansion, which may include the use of eminent domain,” he said. “ESDC is currently evaluating the proposal and determining whether any ESDC assistance might be appropriate ... No commitment has been made regarding any potential ESDC actions.”

In order for any above-ground condemnation to go forward, property must be declared “blighted” under the law as determined by an independent blight study. Such a study was not mentioned in the letter and University officials denied they had asked for one to be conducted.

Jordi Reyes-Montblanc, chairman of Community Board 9, said he was not surprised to learn that the use of eminent domain in Manhattanville was under consideration. He said he thought that any such move would take place in the future and that he had not been informed that Columbia had initiated communications with ESDC.

“What is a surprise is that it has actually been contracted with ESDC, that they have actually paid $300,000 to ESDC, and that Mr. Gargano, without even deigning to consult with the community, has signed this agreement,” he said.

Reyes-Montblanc said that the relationship between the University and the community would be affected by what he called “a very destructive action by Columbia.”

“I’m disappointed at Columbia, and I’m highly pissed off at ESDC,” he said. “Now we cannot trust either one.”

Fay called Reyes-Montblanc’s criticisms “unfounded,” noting there is “a very public process involved when we get to that point.”

“We are not at that point yet, and no commitment or decision has been made other than to consider a proposal,” he said.

Golden said that the letter’s disclosure would not change Columbia’s standing while working with community members and groups.

“The issue of condemnation is not new and we will continue to keep the community informed about our proposed actions in Manhattanville,” she said. “In any ongoing relationship, there are going to be areas of agreement and sometimes areas of disagreement. Our first priority is to continue to negotiate the purchase of properties in a way that addresses the needs of individual owners and meets the University’s objectives.”

Susan Russell, chief of staff to City Councilman Robert Jackson (D-Washington Heights), said the Councilman was disturbed that Columbia had initiated communication about condemnation without informing the community. She said that, after reading the letter, he had called Columbia Senior Executive Vice President Robert Kasdin to express his concerns.

“He [Jackson] didn’t know that Columbia had done this and he is disappointed that the Community Board did not know about this, because he thought that there would be more openness and discussion in this process,” Russell said.

“They keep representing to the community that they don’t want to go in this direction, and then we find out about this document,” she said, adding that Jackson “hopes there will be more transparency on Columbia’s part” and “expects much better going forward.”

Councilman Jackson, whose district includes the affected area, is “absolutely opposed” to the use of eminent domain in Manhattanville.

“We do expect that people will react strongly to this,” Russel said.

Reyes-Montblanc also warned that the letter would have significant impact.

“Those who know me know that there will be some kind of reaction, and it will not be pretty,” he said.

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Columbia Spectator: www.columbiaspectator.com