Eminent domain in question: Cincinnati (OH) Enquirer, 8/5/05

Bill in legislature would temporarily halt taking of property until issue is studied

By Steve Kemme
Some local officials and planners have misgivings about a proposal for a moratorium in Ohio on the use of eminent domain to seize people's homes and businesses for private economic development projects in areas that are not blighted.

Ohio lawmakers would use the time to decide whether the state's eminent domain laws need to be changed to give more protection to private property owners.

Two state senators from northern Ohio, Democrat Kimberley Zurz and Republican Tim Grendell, introduced the legislation this week in response to the U.S. Supreme Court decision in June that supported the right of local governments to take private property for economic development.

The decision has caused many states, including Ohio, to consider placing more limits on eminent domain. This week, the Alabama governor signed a law prohibiting cities and counties from using eminent domain for private development.

"We didn't want to hastily jump to conclusion like some states," said Jarrod Bottomley, an assistant to Grendell. "We want time for a reasoned, measured response."

Ohio Rep. Bill Seitz, a Green Township Republican, said he favors examining the state's eminent domain laws for possible changes, but he opposes a moratorium.

"I don't think we need a moratorium because I don't know how many worthwhile projects we would be stopping," he said. "A flat-out moratorium sweeps a bit too broadly."

Ohio Sen. Mark Mallory, a Democrat and a co-sponsor of the bill, said the moratorium, which would not affect projects already under way, wouldn't harm any communities.

"This bill won't stop the progress of any major public projects," said Mallory, who is running for Cincinnati mayor.

"We're trying to ensure there's a balanced approach to the subject of eminent domain. Let's study the state's eminent domain laws and see if they need to be refined. Maybe they do, and maybe they don't."

David Main, president of the Hamilton County Development Co., said a moratorium could hurt the older central cores of cities and the first ring of suburban communities.

"Those kinds of communities need to assemble property in order to make new development feasible," he said. "There are times when, as a last resort, eminent domain needs to be pursued to revitalize an area."

The U.S. Supreme Court decision, which allowed New London, Conn., to acquire property for a shopping center, had special resonance in Norwood.

Norwood has been embroiled in an eminent domain battle for more than two years. The case has many parallels to New London's. Norwood, a financially struggling city, used eminent domain to acquire properties to complete the site for the planned Rookwood Exchange, a $125 million complex of offices, shops, housing and restaurants on Edwards Road.

Lower courts upheld Norwood's action, but the case is still before the Ohio Supreme Court.

Norwood defended its use of eminent domain by contending that the neighborhood was deteriorating and that the new jobs and city revenue that would be created by the Rookwood Exchange would benefit the public.

Tim Burke, attorney for Norwood, said Ohio legislators should be cautious about imposing a moratorium and changing eminent domain laws.

"There's an awful lot of confusion and misinformation about eminent domain," Burke said. "On rare occasions, communities like Norwood need to have eminent domain to make substantial improvements in the community."

Bert Gall, an attorney for the Institute for Justice, a civil liberties law firm based in Washington, praised Ohio's moratorium bill. The Institute is representing the property owners challenging Norwood.

"Ohio home and business owners should rejoice at any talk of a moratorium because the use of eminent domain is so rampant in Ohio," he said. "Legislators across the country are taking steps to lessen the abuse of eminent domain in their states. Ohio is joining a growing trend in this regard."

But Seitz said he doesn't believe there's been any significant abuse in Ohio.

"To say a beleaguered city like Norwood would be prohibited from using eminent domain for any economic development purposes goes too far," he said.

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

To read the proposed legislation for a moratorium on the use of eminent domain, go to www.legislature.state.oh.us and look for Senate Bill 167 under "search for legislative information."

Do-It-Yourself Eminent Domain Reform

Writing your own eminent domain revision? Here’s an analysis of some typical proposals in three states.

By John Ryskamp
CALIFORNIA
This state’s proposed Constitutional amendment contains two key provisions:

• “Private property may be taken or damaged for a stated public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. Private property may not be taken or damaged for private use.”
  
  It appears the authors meant to tighten up “public use” by mandating that it be “stated.” However, any formulation can be developed to satisfy this requirement, without changing the outcome in any eminent domain action. The problem is that no definition of “private use” is provided. In default of that, the courts would be likely to apply the traditional idea: “private”—forbidden—use is eminent domain used in violation of another law or as a result of some criminal violation.
  
  
• “Private property may be taken by eminent domain only for a stated public use and only upon an independent judicial determination on the evidence that the condemnor has proven that no reasonable alternative exists. Property taken by eminent domain shall be owned and occupied by the condemnor or may be leased only to entities that are regulated by the Public Utilities Commission. All property that is taken by eminent domain shall be used only for the stated public use.”
  
  The eye-opener here is “no reasonable alternative.” Strict scrutiny says that the government action must be narrowly tailored to achieve a compelling government interest. “Narrowly tailored” is usually taken to mean that there is no reasonable alternative. Under this provision, therefore, it would appear that all eminent domain is subject to strict scrutiny. One wonders if the authors realize this, and if so, if they realize the level of opposition likely to develop by governments and private interests which have always used eminent domain under minimal scrutiny.
  
  Note that this provision provides strict scrutiny for housing with respect to eminent domain, and so immediately raises the question with respect to housing and other facts, in what other contexts they receive strict scrutiny? In the alternative, what is the likelihood that a pressured court would reconcile “no reasonable alternative” with “public use” to find that “no reasonable alternative” in this proposal, means “rationally related to a legitimate government purpose”—effectively gutting the proposal? Or does this language change the role of the State in the Federal system, making it impossible for the state to legislate for the general welfare? The owner, occupation and leasing provisions seem to be merely more invitations to creative evasion, and not likely to change the outcome of any eminent domain action.

CONNECTICUT
The Connecticut General Assembly decided to conduct its review of eminent domain law through a specially convened Joint Judiciary and Planning and Development Committee, which began hearings on July 28, 2005. There seems to be a split between two provisions:

• “Eminent domain shall not be exercised with respect to housing unless it is substantially related to an important government interest”
  
• “Eminent domain shall not be exercised with respect to housing unless it is narrowly tailored to achieve a compelling government interest.”

These provisions immediately raised the question, what about eminent domain over a business which provides the income—that is, the maintenance—for its owner? Then is this an appropriate addition:

• “Eminent domain shall not be exercised with respect to maintenance unless it is narrowly tailored to achieve a compelling government interest.”

ALABAMA
Signing Alabama’s revision to eminent domain on August 3, 2005, Governor Robert Riley said: “What our new law does is restore the level of protection that existed prior to the Supreme Court's ruling in June,” even though the decision merely ratified previous rulings on eminent domain.

The Alabama law purportedly eliminated eminent domain for industrial, commercial, office, retail or residential development, but could be used to construct roads, public buildings and to remove blight; blight included areas which are obsolete, faulty in arrangement or design, or in danger of becoming blighted. As Dana Berliner, an IJ attorney, said of the blight provision: “All of these are ways of saying we'd like to construct something else here that has a different layout.” (The governor replied that he was willing to consider changes.)

The apparent exceptions to “economic development” are more problematic than the language about blight. In the case of a concept such as “economic development” which, as Justice Stevens pointed out, does not, in the first place, distinguish a different kind of eminent domain, making “exceptions” to “economic development” merely puts the question, what is the Constitution? We are back to square one; the concept of “exceptions” retards, rather than advances, the inquiry into eminent domain.

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John Ryskamp: philneo2001@yahoo.com

Missouri Group Set to Study Eminent Domain Laws: Columbia (MO) Daily Tribune, 8/4/05

By Josh Flory
When a state task force begins examining Missouri's eminent domain system, Steve Hobbs will be helping to look through the microscope.

The Republican state representative from Mexico, Mo., is no newcomer to the issue. While a recent U.S. Supreme Court decision sparked a furor over the government's ability to take private property, Hobbs has been trying for two years to place new restrictions on the state's eminent domain process.

"What we've got is everybody's so desperate to bring in economic development that sometimes we're trampling over rights of private citizens," he said Monday. "That's just not right."

Gov. Matt Blunt appointed the task force on June 28, five days after the Supreme Court upheld the condemnation of 15 properties in New London, Conn. That city is trying to make way for a private development — including a marina, new residences and shops — aimed at economic revitalization.

In Missouri, legislation to rein in eminent domain has focused on broader issues, including cases where that action is used to address blighted areas and is exercised on behalf of public utilities.

Earlier this year, Hobbs filed a bill that would have changed the definition of a "blighted area," stipulating that in cases where a different use of a property could provide more tax revenue, that fact "shall not be a valid factor in determining blight."

The bill limited the ability of entities to change the use of property acquired by eminent domain and outlined several other requirements in such cases, including when property was taken for use by a utility.

The bill didn't gain any traction, and one reason might be that lawmakers and interest groups were waiting to see how the high court ruled in Kelo v. City of New London.

When the task force begins its work, one issue that will likely come up is a 2003 report by the Castle Coalition — a self-described opponent of eminent domain abuse — that said Missouri has one of the worst records in the country on the issue. That report cited 13 cases in five years where cities and towns tried to use eminent domain for private condemnation.

One Mid-Missouri city where the possibility of eminent domain has caused a stir is Rolla, where the city is trying to develop property at Highway 72 and Highway 63 using a tax-increment financing system in which future tax revenues can be used to cover development costs.

Mayor Joe Morgan said eminent domain would be used only as a last resort, but he said the city is concerned about possible contamination of the site in question. He said that if the area were developed, tax revenues would increase.

"If an area's truly blighted, then I think a TIF needs to be used," Morgan said. "And like I say, eminent domain hopefully never has to be a part of a TIF, but that is a last resort."

Warren Dean, who owns eight acres on the site, said the threat of the city taking the property has already affected his ability to find renters, adding that he doesn't believe his property is blighted. "It's not even economically blighted, I don't think," he said. "If they'd leave me alone it wouldn't be for long — if it is economically blighted."

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Columbia Daily Tribune: http://rismedia.com

N.J. bill targets eminent domain: (South Jersey) Courier Post, 8/5/05

Sponsors propose well-defined limits

By Richard Pearsall
A decision by the U.S. Supreme Court in June that opened the door for broad use of eminent domain could lead ultimately to a crackdown on government's authority to seize private property for the public good.

Legislatures in roughly half the states, including New Jersey, are considering bills to limit eminent domain, taking their cues not only from constituents alarmed by the high court's decision, but from the decision itself.

In upholding the right of New London, Conn., to seize private property for economic development, the Supreme Court decided that it was up to legislative bodies, not the courts, to define the public good.

New Jersey, with its large and growing number of redevelopment zones, has seen eminent domain emerge as a major issue in recent months, particularly in communities such as Camden, Mount Holly and Lindenwold, where residents as well as businesses are threatened with eviction to make room for more upscale housing and commercial enterprises.

Among the bills introduced in Trenton in the wake of the Supreme Court's decision is one sponsored by Assemblymen Michael J. Panter of Shrewsbury and Robert Morgan of Little Silver, Democrats who represent parts of Monmouth and Mercer counties.

The bill would "prohibit government from taking homes or businesses to turn over to private developers," Panter said.

"Traditionally, eminent domain has been used only in extraordinary circumstances," Panter said, referring to public projects such as schools and highways. "That's what we'd like to get back to."

The approach has attracted bipartisan support, including sponsorship of similar legislation in the state Senate by Sen. Diane Allen, R-Edgewater Park.

A decision by a state appellate court this week - that Mount Laurel could seize for "open space" a property a developer already had permits to build on - only served to heighten concerns about the breadth of eminent domain.

State Sen. Leonard T. Connors, R-Surf City, believes the state should address eminent domain by constitutional amendment as well as statute.

"Eminent domain is part of our state constitution, so that language has to be changed too, to protect people who don't want to sell properties they have maintained."

The two leading gubernatorial candidates, Democrat Jon Corzine and Republican Doug Forrester, have both expressed concerns about eminent domain.

Some South Jersey residents view eminent domain in general with suspicion.

Westville resident Jim Marley said the Appellate Court's decision in the Mount Laurel case and the U.S. Supreme Court ruling in June go against the will of residents.

"I think they're giving municipalities too much power over what the people want to do," said Marley. He is the spokesman for We the People of Westville, a citizens group that opposes a proposed $40 million waterfront redevelopment project near Big Timber Creek.

In Camden's Cramer Hill section, where nearly 1,000 residences and businesses will be razed to make way for 6,000 homes and commercial sites, some residents have filed lawsuits to stop redevelopment.

Bonnie Miraglia, 48, of Cramer Hill, isn't so convinced of the benefits of eminent domain. Her home would be taken for a proposed elementary school, one she thinks the community needs. However, with delays in the neighborhood redevelopment plan and a lack of state funding for new schools, she said she and her neighbors are stuck.

She said those trying to sell their homes can't find a bank that would give a buyer a mortgage in an area targeted by eminent domain.

Others see eminent domain as a useful tool for progress.

Jose Nunez, 51 of Cramer Hill, pointed to a home close to his brother's shop on River Avenue. Abandoned and haphazardly boarded up, he thinks if eminent domain is used to tear down that house and build something new, that's good.

Mount Laurel resident John Goy said he believes his local government has the best interests of its residents at heart.

He feels uncomfortable when the federal government intervenes in cases of eminent domain.

"That just scares me. (The federal government) is not doing what's best. What are their real intentions?" said Goy.

"It's a good thing for halting development," said Mount Laurel resident Steven Schiavone. But Schiavone disagrees with the use of eminent domain when it forces people out of their homes.

"You need money to fight these things in court, and if you don't then you're out of luck," he said, about displaced residents.

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Courier Post: www.courierpostonline.com

Eminent domain ruling: Shelton [CT] Weekly, 8/4/05

By Scott Sell
Last week, a group representing state municipalities recognized that lawmakers might have been premature in requesting a moratorium from cities and towns on the use of eminent domain to seize personal property for private development projects.

After the U.S. Supreme Court ruling in the June 23rd eminent domain case in New London, many area towns including Milford and Orange, have taken matters to a local level, creating charters with the hopes of halting property seizures occurring within their communities.

Many politicians feel that, despite their personal opinions, they have little control over the decisions that are made on a state level.

"This could be turned over in a matter of days, but there's too much back and forth going on," Senator George "Doc" Gunther (R - 21st District) said. "There shouldn't be. The Constitution provides protection for a person's land and that has to be respected. The question then becomes: are we going to be a state of law or aren't we?"

The Democratic legislative leaders maintain that they need more time to study the issue and organize public hearings, scheduled for later this month. But fierce criticism of the New London ruling from both politicians and citizens is putting pressure on lawmakers to expedite the process.

According to Joel Cogen, executive director of the Connecticut Conference of Municipalities, the use of eminent domain is appropriate when proposed projects are for "traditional public use" and "payment of just compensation is provided." Traditional public works projects include the construction of roads, bridges, community centers and schools, as well as any properties that pose health or safety risks."

However, citizens are concerned that public projects does not necessarily mean for the good of the public. One of Shelton's past cases of eminent domain, which involved the Tall Farm property, is a prime example of the complications of this sort of legislation. On Sept. 28, 2004, the Shelton Planning and Zoning Committee unanimously voted in favor of giving the Board of Alderman approval to acquire the 28.6-acre farm on Long Hill Avenue.

"New zoning laws has made these issues very sensitive, particularly when we're dealing with families and their homes" Ralph Matto of Shelton said. "If a city, any city, wants to take land for any reason, they should investigate the cases in full, weigh out the pros and cons. There are often quite a few negative aspects."

Homeowners and small business owners are unflinching in giving up the life they have created for themselves. Instead, some citizens suggest that towns and cities concentrate on current problems, rather than creating new ones.

"It's nice to look to the future, for the sake of economic stability," Matto said. "But we can't forget about the old projects that were started decades ago and are still unfinished."

As of now, many smaller towns feel that legislation to protect private homes and land is unnecessary, that eminent domain cases would be rare for their communities. But others are adapting a "better safe than sorry" attitude, organizing for new legislation as a precaution.

"I believe the state legislature must take action quickly to protect property rights before other municipalities seeking to maximize their tax base authorize the seizure of more people's homes," said State Representative Lawrence G. Miller (R - 122nd District).

"When the court issued its ruling, it also invited Connecticut to change its law. We've talked about this since last year. The time to act is now."

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Shelton Weekly: www.zwire.com

Dueling eminent domain laws: Stratford (CT) Star, 8/4/05

Councilwoman and candidate say voters want an ordinance

By Fred Musante
Competing eminent domain ordinances have come before the [Stratford] Town Council, prompting its chairman to complain that the issue is becoming a "political football."

Republican mayoral candidate Dominic Costello had a press conference Friday to announce his ordinance proposal and was surprised to learn that Councilwoman Jennifer Hillgen-Santa, R-1, had already submitted one at the beginning of the week.

The two ordinances are similar, both based on an ordinance approved last month in Milford.

The chief difference between them is that Hillgen-Santa's proposal applies only to "owner-occupied real property consisting of four or fewer dwelling units," which is identical to the Milford ordinance, while Costello's proposal applies to all real property, making if far more restrictive.

Costello handed his proposal to Councilman Michael Henrick, R-10, a supporter, who promised to sponsor it, but Councilman-at-large Joseph Crudo said it would not appear on the agenda.

Hillgen-Santa's ordinance was submitted first and there is no need to consider two ordinances, Crudo said, explaining why the first one would receive preferential consideration.

Hillgen-Santa is also chairman of the Town Council's Ordinance Committee, and she represents Lordship, the neighborhood where the most passionate opposition to eminent domain has been voiced.

Crudo had received her proposal on Monday, July 25, but waited to put it on the council agenda while he tried to convince Hillgen-Santa to allow it to be co-sponsored by all 11 members.

This week, however, he said he had received a lot of pressure to add it to the agenda and would do so.

He was critical of Costello's and Henrick's move, because he believes political candidates have no business proposing ordinances.

The issue popped up in Stratford politics only hours after the U.S. Supreme Court issued its Kelo v. New London decision on June 23.

The decision affirmed a municipality's under Connecticut law to take private property by eminent domain and turn it over to a private developer as part of a municipal economic development project.

During a candidates' forum at St. Joseph National Catholic Church in Lordship that night, someone in the audience asked the nine announced candidates for mayor to pledge never to support taking land by eminent domain for economic development, and they did so.

Hillgen-Santa and Costello said they were responding to voters they had spoken to who passionately opposed the Supreme Court decision.

The hottest opposition was expressed in Lordship, where people said they feared the town might grab land to build high-rise condominiums, although no such project has been proposed.

The state Legislature may change the law to prohibit the kind of eminent domain condemnation of property that occurred in New London, but Democrats who hold the majority in both houses of the General Assembly resisted Republican efforts to do so in a special session this summer. They have said they would rather wait until the next regular session convenes and conduct full public hearings on the issue.

Hillgen-Santa said that in her four years on the Town Council, she had never seen competing ordinances submitted on the same issue, but she felt her proposal should receive preference and questioned why Costello had proposed his or why Henrick would sponsor it.

"It seems odd that a mayoral candidate would draft an ordinance and a sitting councilman would submit it," she said.

Costello seemed genuinely surprised to learn that another ordinance proposal was in the works, but he and Henrick said since they hadn't seen Hillgen-Santa's proposal, they would submit theirs anyway.

Costello said that while he has been knocking on doors to campaign for mayor, "every other resident" has mentioned eminent domain as an important concern. He said the issue seemed of particular interest in Lordship.

Hillgen-Santa said she received many calls from her Lordship constituents about the issue, encouraging her to submit an ordinance. "The people in my district have asked me to do this," she said, adding that she isn't running for mayor, or even for re-election to her seat on the Town Council.

Both she and Henrick said even though no candidate or officeholder supports eminent domain for economic development and no developer or official has proposed it, they think an ordinance is necessary to restrict what town officials might want to do in the future.

"You just don't know what the future holds or who's going to be in office," Hillgen-Santa said. "It's good to have things on the books for perpetuity's sake."

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Stratford Star: www.zwire.com

Eminent domain helps Target, Best Buy: (Minneapolis/St Paul MN) Business Journal, 7/29/05

By Ellen P. Gabler
Long before the U.S. Supreme Court ruled on June 23 that local governments can condemn private property for more-profitable private uses, Minnesota's largest big-box retailers were benefiting from the practice across the nation.

Minneapolis-based Target Corp. and Richfield-based Best Buy Co. Inc. are attractive tenants for cities that want to boost their property-tax revenue by building lucrative retail centers, often in place of less-valuable homes or businesses.

The jury's still out, however, on what the decision ultimately will mean for big retailers and the local governments that want a piece of them.

Some think it will prod cities to be more aggressive. Others say a backlash against retailers and local-government power is inevitable.

It's difficult to tell exactly how many cities have taken property to make room for Target, Best Buy and other big-box retailers.

But there are several examples nationally, and some notorious local cases, that involve both retailers. In Minnesota, both Target and Best Buy tangled with messy eminent domain disputes that began in the late '90s and dragged into the new millennium.

• In 1998, the city of Minneapolis condemned the land for Target's downtown store. Part of it was owned by Minnetonka developer Opus Northwest, which lost its suit against the city to stop the project. Rival developer Ryan Cos. U.S. Inc. built the store and office tower there.
  
• In 2001, the city of Richfield condemned two Walser Automotive Group dealerships along Interstate 494 to clear the land for Best Buy's corporate headquarters. Walser sued the city, and the courts affirmed the deal, but raised the amount that the city had to pay for the property.
  
• In 2003, a federal judge scolded Target for its role in helping condemn a site in St. Louis that the company wanted to own instead of lease. The judge said Target falsely threatened the city that it would abandon the store if officials didn't take the property from its owner and allow Target to buy it.
  
• Currently, a developer in Washington, D.C., is urging city officials to condemn a strip mall so it can build a complex anchored by Target. The developer says the project will create 300 jobs and add $3.3 million in annual tax revenue.
  
• In Topeka, Kan., Doug Kinsinger is grateful for eminent domain because it helped the city land a large Target distribution center. The president and CEO of the Greater Topeka Chamber of Commerce said the deal brought 800 jobs to a new industrial and commerce park in 2002. Also, the city threw in $2 million to help acquire the land. But some businesses lost properties as a result.

Corporate welfare?
Nick Dranias calls deals like that "corporate welfare."

Dranias is an attorney for the Minnesota chapter of the Institute for Justice, a public-interest law firm in Washington, D.C. The firm represented homeowners in the case that went before the Supreme Court.

In that case, homeowners in New London, Conn., sued the city for condemning their land to make way for a private development. In a 5-4 decision, the homeowners lost.

That set a precedent allowing local governments to seize homes and businesses for private development. In the past, eminent domain was traditionally reserved for projects tied to public use, such as highways, police stations or hospitals. Over the years, eliminating blighted properties has qualified as well.

By giving local governments broader power of eminent domain, Dranias said, the court has created an open invitation for big-box retailers to elbow their way into quiet communities. The decision also will induce cities to scramble for business, even at the expense of others, he said.

But advocates of the ruling say it will help developers get their jobs done, and assist cities in valuable community redevelopment efforts.

It's not the retailers
In a written statement, Target says it "rarely" uses eminent domain to acquire property and thus won't be affected by the ruling.

Best Buy declined to comment for this story.

Collin Barr, a real estate developer with Ryan Cos., which builds frequently for Target, said big-box retailers aren't really to blame because they aren't usually the ones pining to break ground in new developments. Most often, the push comes from local officials who want to craft a vision for their city, then invite retailers to help make it happen.

"I don't view [the court ruling] as a massive new tool for big boxes to rule over urban America," Barr said. "In the most cases, cities are pursuing it on their behalf."

That's what happened in Richfield, as city officials successfully went after Best Buy's headquarters.

The deal certainly helped change the city's image as an aging inner-ring suburb, but it also means a better tax base.

Bruce Palmborg, Richfield's director of community development, said annual property taxes for Best Buy's corporate headquarters are about $3.2 million, although most of that becomes tax-increment revenue that repays the cost of the project through 2025. The previous property owners generated $700,000 in annual taxes.

The Institute for Justice reports that between 1998 and 2003, local governments threatened to condemn more than 10,000 properties for private use.

Dranias said the group is worried that scarce land, especially in urban areas, and increasingly competitive retail and real estate markets will make condemnation too appealing.

"It's a lot easier to deal with people that have no choice to sell, than to deal with people that have a choice," he said. "Large developers are going to see this as something they need to look at economically."

Change of venue
Legal experts think the Supreme Court's ruling could spur both city governments and community protectors into action, just in opposite directions.

Blaine Harstad, a lawyer with Minneapolis-based Gray Plant Mooty, said he thinks the ruling has fueled the confidence of city governments to more readily use condemnation.

But the decision has sparked an uproar, and legislators across the country want to toughen laws to make it more difficult for governments to seize land and redistribute it for private use. The Supreme Court justices noted that nothing precludes states from limiting government's power of eminent domain.

In Minnesota, courts have generally allowed condemnation for private redevelopment. That could change. Last month, Rep. Greg David, R-Preston, introduced a bill to tighten government control.

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Business Journal: http://twincities.bizjournals.com

Plan Restricts Eminent Domain : Voices (Washington CT), 8/3/05

By John Addyman
Reacting to what it termed a "terrible opinion" by the U.S. Supreme Court, the [Washington Depot] Zoning Commission has proposed an ordinance that will help the town of Washington stifle itself if it's thinking of exercising its eminent domain powers.

The Supreme Court decision allowed the city of New London to take over private homes, then hand them over to a private developer for a renovation project.

The decision has sent shock waves nationwide through municipalities and land-use bodies.

"It undermines property rights in this country," said Zoning Commission Chair Hank Martin of the high court's decision. "It goes against home ownership, to take private property away from one private individual and give it to another."

He said the court has invited municipalities to offer their own regulations to prevent such an occurrence, "to have the local government restrain itself."

Mr. Martin said he had spoken to First Selectman Dick Sears, who was "very supportive of the Town of Washington doing something."

Mr. Martin contacted town attorney Mike Zizka next and proposed an ordinance.

That ordinance will be discussed in a town meeting in August.

Essentially, the ordinance states that no town official, agency or anyone acting in the name of the town "shall be authorized to propose, approve or appropriate funds for the use of the power of eminent domain to take private property" unless the property meets one of three criteria.

First, the property that is to be owned by the town or one of its agencies will be set aside for public use (roads, parks, schools, etc.).

Or, second, the property is to be set aside for open space or drainage or erosion control.

The third criterion is that the property poses a danger to public health or safety and is being taken by the town to remediate conditions or minimizing danger to the public.

"Only one town has enacted an ordinance," said Mr. Martin. "I know that many other towns are looking at this. The notion is widely accepted and supported."

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Voices: www.zwire.com

Eminent domain as a last resort: Spectator-Leader (Linden & Roselle NJ), 8/3/05

Opinion
Linden's City Council appears to have jumped the gun on its July 19 ordinance stating the city's intent to seize International Specialty Products' and Dupont's Tremley Point property. Representatives from both ISP and Dupont have expressed an interest in developing this property themselves, a charge that should be left under the companies' control before the city resorts to the use of eminent domain.

At its July meeting, the City Council, with the exception of two of its members, reaffirmed the city's intent to seize property from ISP and Dupont for its own redevelopment purposes. Specifically, the city wants to build 5 million square feet of warehouse space on the site. Only 8th Ward Councilman Albert Youngblood and 10th Ward Councilman Richard Gerbounka voted against the ordinance.

With the property under the city's control, the council can move forward with its intent to place developer Joseph Morris — represented by the politically connected Weiner Lesniak law firm — in control of warehouse construction.

City Council members anticipate a lawsuit for their action. Their tight lips speak volumes about the ethical fault behind this ordinance. Acquiring this property has been a longtime council goal. There is little doubt the city has been fueled by the U.S. Supreme Court's recent decision giving local governments more power to seize private property for a greater economic development.

In the ISP/Dupont case, there is clearly a need, and an interest, in developing this property for a greater economic good in Linden. But, the responsibility of this task should be left to the property owner. Linden will undoubtedly lose money fighting this case if ISP and Dupont decide to pursue a lawsuit regarding the land. Wouldn't it make more sense for the city to save its money and benefit from seeing the property developed by its rightful owner?

Union County Improvement Authority Executive Director Charlotte DeFilippo has said ISP is only interested in developing the property now that an outside interest exists. If this is in fact true, the challenge should lie with ISP and Dupont to prove their point in following through with a plan to develop the property. Only as a last resort should the City Council move forward and seize the property by force of eminent domain.

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Spectator-Leader: www.localsource.com

Restrictions on eminent domain considered: The Connecticut Post, 8/2/05

By Frank Washkuch Jr
[Stratford CT] Town Council Republicans are pressing for an ordinance that would restrict the town's use of eminent domain to seize property for private commercial ventures.

Jennifer Hillgen-Santa, R-1, and Michael F. Henrick, R-10, each drafted proposals that bar the town from taking property and turning it over to developers.

But Council Chairman Joseph G. Crudo, R-at-large, said that he won't add either proposal to next Monday's council agenda unless it has the body's full backing. The council meets at 8 p.m. in Town Hall.

"I would prefer that this have full unanimous support," said Crudo, noting that Hillgen-Santa approached him first with the idea. "If this would be a 6-to-5 vote or a 7-to-4 vote, we would end up splitting the town again." Numerous communities are considering ordinances in response to the recent U.S. Supreme Court decision in Kelo v. New London, which upheld the city's right to seize homes to make way for a private office park.

Hillgen-Santa's proposed ordinance is based on one recently approved in Milford limiting seizure of land for economic development projects,

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The Connecticut Post: www.connpost.com

Will Green Shirleen be able to tackle eminent domain? Yes! Weekly (Greensboro NC), 8/2/05

By Brian Clarey
Green Shirleen called me to a downtown rooftop via a hushed request over a tenuous cell phone connection last week.

“It’s me,” she said, her drawl broken up by technical caesurae. Or maybe she was chewing gum. “We got to talk, babe.“

...

“I’m talking about the highest court in the land, son. I’m talking about the Supremes.” She leaned down a bit — Shirleen is a good foot taller than I — and whispered in my ear. “They just took away the American Dream.” Her breath smelled like mint juleps.

“You’ve been drinking,” I said.

“Hell yeah, I been drinkin’. I can’t stand to see it. You know what they’ve gone and did?”

“Yeah,” I said. “They basically extended eminent domain to include not just public use but private interests. Now people’s land can be taken for things like strip malls and condo developments even if they don’t want to sell.

“I’m working on something about it,” I added defensively. “It’s a pretty tough subject to tackle.”

“He’s working on something about it,” she said to no one in particular. “Well work on this, darlin’: That call they made, that’s gonna trickle right down here to Greensboro in short order.”

“How do you mean?”

“He wants to know how I mean,” she said, again to no one in particular. “I swear, honey, sometimes you can be as dumb as a Moon Pie without the marshmallow.” One of Green Shirleen’s powers is to catch glimpses of the future — some call it ‘the sight’ — and she can get impatient with others who do not share her gift of foresight. “You been paying attention to what’s been doin’ around here the past few years?”

“Sure,” I said. “We got a new stadium. We’ve got some new roads. We’ve developed downtown and big swaths of farmland. People are opening businesses, buying houses, putting gas in their cars. We’re rockin’,”

“Yeah, we rockin’” she agreed. “But what we’ve had up to now has been more or less what you call ‘organic development.’ You got a bunch of empty land and people who got a need, for stores or homes or what-have-you. Or maybe you got some property that suddenly becomes valuable and you got a chance to cash in and do you a happily every after. Or maybe you already got one of those and you want to keep things right as they are, then you can keep your house and let all the hoopla go up all around you.”

She paused and buffed some fingerprints from her shiny breastplate with the heel of her gloved hand. I didn’t ask how they got there.

“Point is,” she continued, “before you had a choice. Now The Man can take away your house if he wants as long as he keeps crying, ‘Economic development! Economic development!’ Folks can’t even make a stand anymore and it makes me sick.”

Indeed, she looked close to tears. I suddenly sensed her conflict — Shirleen is well-known (in my imagination, anyway) for using her powers of organization, tidiness and super-strength to aid Greensboro’s real estate developers when she’s not fighting crime. If people around here attempted to take advantage of the Supreme Court decision, it would only be a matter of time before they approached Green Shirleen to help them with their plans.

“So where does that leave you?” I asked.

“Somewhere between a prickle bush and a pile of crap,” she said. “I can’t sit back and let people be evicted from their homes when they don’t wanna go. That’s not what I signed on for. But if it’s the law of the land….” She unleashed a huge sigh that blew me back a few steps on the rooftop and ruffled my hair with a nearly hurricane-force gale that still smelled of whiskey and toothpaste. Her mighty shoulders slumped.

“I swear it’s getting so confusing these days,” she said.

“So how you gonna handle it?” I wanted to know.

“Got to protect the little man,” she said. “That’s what superheroing is all about. ‘Cepting Iron Man, of course, but he’s all suit and no muscle anyway.” She made her forearm go taut and it strained against the mysterious fabric of her sparkly purple opera gloves. “So I’m gonna have to keep people honest. Ask all the right questions. Shine light on the injustices.”

“Kind of like we do at the paper.”

“Oh get over yourself,” she said, and then squinted towards the skyline. “Dang,” she said. “Looks like one of the bulbs is out on the JP building’s little scoreboard up there.” She pulled a replacement bulb from somewhere on her belt. “Gotta get on that.” She squinted again to the dominant peak. “Could probably use a dusting up there, too.”

“But what about the little guy?” I asked.

“Oh don’t you worry about him,” she said. “Everything’s gonna be just fine.”

That’s her superhero catch phrase, you know. Only she didn’t sound so sure of herself this time.

Then she launched into the air and made for the blinking display in the sky.

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Yes! Weekly: www.yesweekly.com

Officials try to allay fears about eminent domain: St Louis (MO) Post-Dispatch, 8/2/05

By Mary Shapiro
Ellisville is trying to update its comprehensive plan while also trying to quell rumors about the city's potential use of eminent domain.

A third public planning workshop, scheduled for mid September, will present a preliminary draft of the city's revised comprehensive plan to members of the City Council and Planning and Zoning Commission and residents.

While the city has been trying to gather residents' feedback on the future of their neighborhoods in recent planning workshops, officials admit they've also been trying to dispel rumors the city is considering use of eminent domain.

Some residents say the U.S. Supreme Court's decision reaffirming local governments' right to use eminent domain to force residents to sell their homes for private development has caused alarm, and they worry about its potential use in their neighborhoods.

Ellisville officials insist residents should not be afraid.

"I do not believe cities should have the right to use eminent domain in this manner, and as long as I'm mayor, rest assured that I will never consider it," Mayor Jeff Khoury said. "Missouri law has added a stipulation that only blighted areas can be considered for eminent domain in private development."

Some of the dozens of residents attending expressed their concerns about eminent domain at a comprehensive plan public workshop July 19.

City officials said fears were ignited by an anonymous flyer delivered to homeowners, claiming redevelopment consultants are being paid with tax dollars to seize private property for new retail and multi-family homes.

City Manager Brent Hobgood said the information in the flyer is not true.

"There are no such developments being considered, nor have city officials discussed using eminent domain," Hobgood said. "The workshop was designed to gather public input on the comprehensive plan update, not to tell our residents that we are seizing their homes."

City Planner Ada Hood organized the July 19 workshop, she said, to ask residents how they envision their neighborhoods growing or changing in the future. Hood said public input is the first part of the process to update the comprehensive plan, which is reviewed every three to five years.

"The public workshop process will allow city staff to understand key issues as identified by Ellisville property owners and residents," Hood said.

The comprehensive plan provides policy guidance on the planning, development and redevelopment of the city. The document is given to the Planning and Zoning Commission to review and either adopt or make changes prior to adopting it. The adoption process is conducted at a public hearing, during which residents will have an opportunity to provide input, Hood said.

After several developers contacted Hood, wanting to build multi-family buildings in areas designed for single-family homes, it became important to know what residents thought of the idea, Hood said.

For more information regarding the city's comprehensive plan, residents can visit the city's web site, www.ellisville.mo.us.

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Post-Dispatch: www.stltoday.com

Task Force To Hold First Meeting On Eminent Domain: WMUR TV9 (Manchester NH), 8/2/05

A [New Hampshire] Senate task force on eminent domain was to hold its first meeting on Tuesday.

Senate President Tom Eaton appointed the task force to study laws on the issue and recommend legislation for next year. Eaton wants to guarantee that New Hampshire respects private-property rights from overreaching, well-intentioned municipalities.

Eaton appointed the task force after the U.S. Supreme Court ruled that local governments can use eminent domain to take property from private citizens for private development that benefits a town economically.

Traditionally, governments take property for public works projects, such as roads.

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WMUR: www.thewmurchannel.com

Eminent Domain: Making Omelets or Protecting Nest Eggs

Wayne Lusvardi
Aesop’s Fable of the Hen and the Fox

A fox was out looking for a late supper. He came to a henhouse, and through the open door he could see a hen far up on the highest perch, safe out of his reach.

Here, thought the fox, was a case for diplomacy. Either that or go hungry! So he gave considerable thought to just how he should approach his intended supper.

“Hello, there, friend hen,” said he in an anxious voice. “I haven’t seen you about of late. Somebody told me that you have had a sick spell and I was sincerely worried over you. You look pale as a ghost. If you will just step down I’ll take your pulse and look at your tongue. I’m afraid you are in for quite a siege.”

“You never said a truer word, cousin fox,” replied the hen. “It will have to be a siege, for I am in such a state that if I were to climb down to where you are, I’m afraid it would be the death of me and my nest eggs.”

Moral: Beware of insincere friends!

An oft-heard justification for the use of eminent domain to acquire private property for redevelopment projects is that you “need to break some eggs to make an omelet”

As someone who worked 20 years acquiring property by eminent domain for public agencies, I find this to be a bad analogy. A better analogy might be that people’s nest eggs need protection lest predator foxes steal the eggs under the guise of helping the food chain.

Redevelopment is sold to the public as revitalizing older commercial districts, increasing the property tax base and sales taxes, and stimulating jobs and the local economy. The reality behind the facades of the new malls is quite different than the appearance however. Redevelopment actually has little to do with actual redevelopment and more to do with a struggle for the benefits and wealth-transfers it creates for others.

Communities see very little of the increased property tax from redevelopment projects as most of it is used to pay off bonds and pay bond underwriter lawyers. And more is set aside for paradoxical affordable housing in upscale areas, which is nothing more than corporate welfare.

Redevelopment merely replaces small businesses and non-union jobs with big businesses and union and government jobs.

License to steal
There is only so much expendable income that can be spent on retail products and services in a community. Where redevelopment is successful is when it can “steal” customers from other cities or attract new residents with higher incomes.

So in the San Gabriel Valley of Southern California where I live, Pasadena’s redeveloped historical “Old Town” venue snares customers from a huge catchment area in Southern California. The nearby City of Alhambra “steals” auto buyers with its redevelopment auto mall row; and develops its own new night spots to keep its residents from spending in Old Town Pasadena. The nearby City of Monrovia stops other cities from “robbing” its consumers by using redevelopment to create its own family restaurants. The Fair Oaks Avenue Renaissance Plaza in Pasadena attracts new higher income residents to the surrounding area comprised mostly of minorities, stimulating gentrification and displacing lower income residents.

Redevelopment is a game of value capture. The windfall property values created by redevelopment are pirated away from small owners and often handed to crony developers. Some is circulated back to politicians. The public is left with the not unrealistic impression that government exists for the well-connected, labor unions, lawyers, and bureaucrats rather than ordinary citizens.

Just compensation or just desserts?
Why do we as a society say that landowners must incur any decline in value from the downzoning of their property; but when it comes to the upzoning of property by redevelopment, we require the property’s value appreciation to be transferred to others who are politically connected? If we can’t stop the predatory game of redevelopment at least we could let small landowners have their “just desserts,” not merely “just compensation” for the lowest and worst use of their properties.

The proper role of government under the U.S. Constitution is to protect one’s liberties and nest-eggs of property. This somehow has been twisted into sanctioning the plundering of other’s private property for the personal and collective gain of others and throwing a bone back to those whose property is taken.

Part of the reason for this was U.S. Supreme Court Justice Oliver Wendell Holmes disastrous definition of “just compensation” as “what somebody lost, not what they can gain.” But this has been twisted into a license for others to steal what one could gain from a favorable regulatory change to the zoning of one’s property under the guise of the “public use” doctrine. Like the Aesop’s fable cited above, we should be wary of those who sincerely offer just compensation for our property nest eggs under the pretense that “some eggs have to be broken to make an omelet.”

That is why we should urge our state legislators to vote for Senator Tom McClintock’s proposed State Constitutional Amendment 15 (SCA-15), which would at least make cities have to pay owners the full appreciated value of their properties for redevelopment without the use of eminent domain.

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Wayne Lusvardi: waynelbox-blogger@yahoo.com

Wayne Lusvardi worked for 20 years for the Metro Water District of So. Cal. and lives in Pasadena. The views expressed are his own.

Lower Merion candidates' eminent-domain views: Philadelphia (PA) Inquirer, 8/8/05

By Jeff Price
The fate of Ardmore properties under the sword of eminent domain could come down to election arithmetic:

Subtracting the seats up for election, the tally for Option B among remaining commissioners is 5-2.

Let's look at the races, see how they're shaping up, then try to calculate what the support will be for Option B after the election. Is it possible the voters could save those buildings?

Ward 2, Gladwyne, Penn Valley. Commissioner Ken Davis, for Option B, is retiring. Jenny Brown, an attorney, is unchallenged; there is no Democrat in the race. "The use of eminent domain goes against every fiber in my body, but I don't know what it will look like until it comes before me," she said last month.

Count her undecided, and leave the tally at 5-2.

Ward 4, Ardmore, Haverford. Incumbent Maryem Phillips, for Option B, is running against Republican Cory McClain, a lawyer. "I would hope that any new candidates would take the time to see the years of work that have gone into the steps we've taken so far," she said. McClain needs no such time: If he's elected, "the first order of business is to stop the process."

Outcome could go either way. The tally stays 5-2.

Ward 6, Rosemont, Villanova. Commissioner Mary Wright is retiring. Real estate lawyer Philip Rosenzweig said that although eminent domain has a vital role in redevelopment, "it's not appropriate in many circumstances. It's not appropriate in Ardmore." His Democratic opponent, Linda Henderson, a write-in candidate in the primary, said recently that a job reassignment might force her to withdraw. She, therefore, did not want to discuss her position.

Count one against Option B. The tally, 5-3.

Ward 8, South Wynnewood, East Ardmore. Incumbent Jane Dellheim voted against Option B. Her opponent, Republican Josh Quinter, is also opposed.

The tally, 5-4.

Ward 10, Bryn Mawr, Haverford. Charles Bloom, for Option B, is the third commissioner retiring. Democrat Leigh Anne Smith, a paralegal and community activist, said, "The idea of taking someone's personal property is not sitting well with the public. It's a very troubling issue to the public and to me." Republican candidate Scott Zelov, who formerly owned a manufacturing firm, is a member of the Montgomery County Planning Commission, whose job it is to review local decisions, and which approved Option B. Yet Zelov said, "I don't like eminent domain that would be used to take private property from one owner and transfer it to another private owner."

Count another vote against, a 5-5 tie.

Ward 12, Merion. Republican incumbent James Ettelson is for Option B, and Democrat Brian Gordon, a lawyer, is against.

For purposes of the tally, still 5-5.

Ward 14, Penn Wynne, Wynnewood. Incumbent Felice Wiener was defeated in the primary by Andrew Tanzer. She was out of the country for the Option B vote but said she would have voted no. Although a Democrat, Wiener is considering running on the Republican ballot after winning the GOP vote in the primary. Tanzer, a lawyer, said, "If government encourages organic growth, it works much better than if they tear everything down and build a whole new thing." The other candidate in the 12th, Independent Lance Rogers, a lawyer, said, "I'm horrified by the idea of taking property from private citizens and giving it to private citizens."

Another no vote, tipping the tally to 6-5 against Option B.

Although very unofficial, the candidates' positions indicate anti-eminent-domain forces might have a real shot at overturning the little-loved option.

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The Philadelphia Inquirer: www.philly.com/mld/inquirer

Eminent domain ruling not understood: [Fairfield CA] Daily Republic, 8/5/05

Opinion

By Robert Lando
Given the media sound bites, it's easy to understand why public opinion has weighed so heavily against the Supreme Court's ruling in Kelo vs. City of New London, Conn.

In that case the court ruled that the city of New London could use its power of eminent domain to purchase 15 homes on property needed to implement an ambitious redevelopment plan that would result in the condemned property being owned by a private developer. What made the case newsworthy was New London's frank admission that the area was not "blighted," a designation ordinarily used to justify redevelopment. Rather that city needed to implement its redevelopment plan in order to help relieve the community's "economic distress."

The court's opinion outraged conservative California congressman and governor wannabe, Tom McClintock, who declared that a government agency could now "literally take a house from someone it doesn't like and give it to a person it does like."

That comment, although breathtakingly wrongheaded, was typical of the angry denunciations of the Kelo decision by conservative property rights advocates at one end of the political spectrum and liberals, at the other, who railed against the notion that governments should have the power to side with greedy developers against homeowners.

Redevelopment laws have been around for at least 50 years. Those, like California's redevelopment statutes, give local governments the power to cure "blight" by acquiring private property, either voluntarily or by condemnation, and then selling it to private interests who must develop it in accordance with an established redevelopment plan. In addition to the obvious benefit of clearing slums and other blighted areas, laws such as California's give communities monetary incentives for implementing redevelopment by allocating to them a disproportionate share of the real property tax increases that result from development.

Under the tutelage of former City Manager, B. Gale Wilson, Fairfield was a leader in the creative use of redevelopment laws. In fact, Fairfield's proclivity for finding open space to be "blighted" within the meaning of those laws caused the Legislature to tighten the definition of that word for redevelopment purposes. Even so, California, like most states with redevelopment laws, gives cities broad discretion in determining what constitutes blight and what land can be included in a redevelopment area (and therefore made subject to the power of eminent domain) in order to cure blight.

The reaction to the Kelo case indicates that the public's attitude toward the power of eminent domain is lagging about 50 years behind its attitude toward land-use controls and zoning. It is settled law that governments can exercise enormous control over the uses that can be made of land. It can legally charge huge fees for building permits, limit development to one unit per 260 acres in agricultural areas, limit the establishment of certain kinds of new businesses in commercial areas to protect existing businesses from competition and impose bewilderingly detailed standards for the size, color, height, and design of structures.

The majority of voters seem quite happy with the benefits derived from modern land use controls and the recent trend toward "smart growth" policies that restrict the outward expansion of cities in favor of filling available areas inside existing urban boundaries with high density development.

Faced with growing opposition to urban sprawl and limitations on development in the form of state and federal laws protecting wetlands, endangered species and farmland, it is not surprising that local governments would want the power to use eminent domain to purchase property that blocks the implementation of important land-use plans.

Assuming that it is appropriate to force the owner of a well-kept house with a nice yard in a very bad neighborhood to sell in order to implement a plan that would eliminate neighboring slums and crack houses (a common situation when blight removal is the focus of redevelopment), it would not be unreasonable for a city to want to use the power of eminent domain to purchase a hog farm blocking development of a modern industrial park or a machine shop located in the middle of a planned, low-cost housing project.

California's housing, energy and transportation crises are all largely the result of abandoning old ways of doing things without first creating the institutions needed to implement the new ways. California's legislators should carefully consider this sad fact before rushing to judgment about the Kelo case.

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Daily Republic: www.dailyrepublic.com

Robert Lando is a Fairfield attorney who specializes in real estate law

Committee to hold hearings on eminent domain: Drovers Magazine, 8/1/05

On Friday [7/29/05], the House Agriculture Committee Chairman, Bob Goodlatte joined Reps Henry Bonilla (R-Texas) and Stephanie Herseth (D-S.D.) to introduce the Strengthening the Ownership of Private Property [STOPP] Act.

The bipartisan legislation was introduced in response to the narrow 5 to 4 U.S. Supreme Court decision, Kelo v. City of New London, giving local governments broad eminent-domain power to seize private property from one party and give it to another. Goodlatte was announced that the Ag Committee has been granted primary jurisdiction of this legislation and pledged to hold hearings on the issue in early September.

“This appalling (court) decision strikes a serious blow to the core values of our nation, and has far-reaching implications,” says Goodlatte. “In defining 'public use' so expansively, the Court essentially erased any protection of private property as understood by the Founders of our Nation."

The Supreme Court’s recent ruling gives local governments broad power to seize property to generate tax revenue. State and local governments can now use eminent domain to take away the property of any individual for nearly any reason, including taking property for the benefit of another individual or corporation. Cities can now bulldoze private citizens' homes or seize farmland to make way for shopping malls or other development, essentially ensuring that no citizen's property is safe, said a committee news release.

The STOPP Act will prevent governments from taking property from one private party and giving it to another. When abuses occur, the STOPP Act will prevent localities and states from receiving federal economic assistance on all economic development projects, not just those upon which abuses occur. The legislation will also make state and local governments subject to the Uniform Relocation Act, which provides fair-market value and moving expenses relocated citizens.

“I am pleased to join my colleagues in introducing the Strengthening the Ownership of Private Property Act,” continues Goodlatte. “I am committed to the principles of private property and limited government. I believe this legislation is necessary to ensure that our homes, farms, businesses, churches, and other private property will not be bulldozed in abusive land grabs that only benefit private individuals.”

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Drovers: www.drovers.com

New Jersey Loses Eminent Domain Case, 8/4/05

Press Release
Forest City Ratner Bloomfield Project in Jeopardy

Carlin & Ward, Attorneys at Law
Essex County Assignment Judge Patricia K. Costello issued an order and opinion yesterday dismissing the condemnation case filed by the Township of Bloomfield against 110 Washington Street Associates. This was the first condemnation case filed by the township in its redevelopment project for the downtown center.

The decision of the court is a major setback for Bloomfield in its efforts to acquire property through eminent domain proceedings. The town’s plan was a joint venture of Forest City Ratner and Toll Brothers and included 650 residential condominiums and a 65,000 square foot Stop and Shop with an elevated parking deck.

The court found that the underlying planning process was fatally flawed. The Heyer and Gruel Planning Report improperly designated 110 Washington Street as meeting the definitions of blighted property under the Local Redevelopment Housing Law. The court said, “The record in this case is devoid of any finding that the property is detrimental to the public health, safety or welfare.”

Daniel Goldstein, spokesperson for Develop Don’t Destroy Brooklyn, a community coalition fighting Forest City Ratner’s proposed use of eminent domain in Prospect Heights, Brooklyn, said, “If Forest City Ratner and New York’s Empire State Development Corporation try to make similar blight findings in Brookyn, we are sure they will meet the same fate they have in Bloomfield, New Jersey. And clearly the lack of a planning process for the Ratner proposal in Brooklyn is a fatal flaw, as it was in Bloomfied.” Goldstein continued, “We are very happy for our allies in New Jersey, and that justice has won out, as we expect it to do so in Brooklyn.”

In addition, the court ruled that it was improper for attorney Steven Martino to represent both the planning board and the mayor and council during the consideration of the redevelopment plan and the approval of the plan by the municipality. The court said, “The Defendant argues that the attorneys’ conflicts of interest in dual representation of both the Planning Board and the Township have tainted the determination that the subject property is in need of redevelopment. Clearly, the attorneys should not have represented both public entities at the same time. Such representation is expressly barred by statute. N.J.S.A. 40:55D-24. In addition there are numerous opinions criticizing the same conduct.”

110 Washington Street previously filed an action in Lieu of Prerogative Writ which was dismissed by order of Judge Claude M. Coleman on May 27. Judge Costello ruled that Judge Coleman’s decision did not preclude her from dismissing this complaint since Coleman’s ruling was based strictly on the matter having been filed after the 45-days within which a property owner can challenge municipal action. Judge Coleman did not make any findings of fact or conclusions of law on the merits of the case.

In a companion case which was consolidated with 110 Washington Street, Lardieri et al v. Township of Bloomfield, Judge Coleman entered an order dismissing that complaint on July 20. “It is unlikely now, given the ruling of Judge Costello yesterday, that the township will file any additional condemnation complaints for the project which would include the properties owned by Alessandro Lardieri, Victor and Debbie Lewis, Lewis Santus, and Myrna and Lita Cicero, the plaintiffs in the companion case,” said William J. Ward, principal attorney of Carlin and Ward of Florham Park, N.J.

Both Ward and his partner, James M. Turteltaub, appeared on behalf of the litigants in these cases against Bloomfield. The Township of Bloomfield was represented by Catherine E. Tamasik of DeCotiis, Fitzpatrick, Cole, and Wieseler of Teaneck, N.J.

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Carlin & Ward, Box 751, Florham Park NJ 07932
973-377-3350, fax 973-377-5626
http://carlinandwardpc.lawoffice.com

The full text of the order of Dismissal and the Opinion are online at:
http://www.dddb.net/BloomfieldDismissal.pdf

Alabama limits eminent domain: The Washington (DC) Times, 8/4/05

By Donald Lambro
Alabama yesterday became the first state to enact new protections against local-government seizure of property allowed under a Supreme Court ruling that has triggered an explosive grass-roots counteroffensive across the country.

Republican Gov. Bob Riley signed a bill that was passed unanimously by a special session of the Alabama Legislature, which would prohibit governments from using their eminent-domain authority to take privately owned properties for the purpose of turning them over to retail, industrial, office or residential developers.

Calling the high court's June 23 ruling "misguided" and a "threat to all property owners," Mr. Riley said, "A property rights revolt is sweeping the nation, and Alabama is leading it."

The backlash against the judicial ruling has not received much attention in the national press, although legislative leaders in more than two dozen states have proposed statutes and/or state constitutional amendments to restrict local governments' eminent-domain powers.

Besides Alabama, legislation to ban or restrict the use of eminent domain for private development has been introduced in 16 states: California, Connecticut, Delaware, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Tennessee and Texas.

Legislators have announced plans to introduce eminent-domain bills in seven more states: Alaska, Louisiana, Oklahoma, Ohio, South Dakota, South Carolina and Wisconsin, and lawmakers in Colorado, Georgia and Virginia plan to act on previously introduced bills.

In addition, public support is being sought for state constitutional prohibitions in several states — Alabama, California, Florida, Michigan, New Jersey and Texas.

In an elaborate signing ceremony in the State Capitol's historic Old House Chamber, Mr. Riley said, "Alabamians can rest assured that their homes, farms, business and other private property are safe from being seized by government for a shopping center, or a factory, an office building or new residential development."

The signing immediately won praise from leading property rights advocates who had condemned the ruling and have lobbied state legislatures to block such practices.

"Kudos to Alabama political leaders for taking the first step toward protecting their citizens from eminent-domain abuse," said Dana Berliner, a senior attorney at the Institute for Justice, a public policy organization that conducted the first nationwide study of abusive property seizures.

The law came in response to a 5-4 decision by the high court that ruled that the Fifth Amendment's takings clause — "nor shall private property be taken for public use, without just compensation" — did not prevent the city of New London, Conn., from taking Susette Kelo's property for the expressed purpose of private development in order to gain higher tax revenue.

Although the Alabama law that the governor signed yesterday would prohibit such eminent-domain seizures, it contains an exception that would permit takeovers of blighted properties that could be turned over to private interests — a provision that critics call a loophole for future abuses.

"Alabama's blight law is particularly prone to abuse and must be reformed," Ms. Berliner said. "If legislators close the blight loophole, Alabama will be one of the best states in the country for protecting the rights of home and small business owners."

Jeff Emerson, spokesman for the governor, said yesterday that Mr. Riley would "like to talk to Berliner about this to see how it can be remedied."

The property rights movement, which had been somewhat moribund before the court acted, has spawned what many political strategists expect to be a major issue in the 2006 election cycle.

A number of bills have been introduced in Congress where the issue is winning strong bipartisan support — from California Rep. Maxine Waters, a liberal Democrat, to Texas Sen. John Cornyn, a conservative Republican.

Polls show unusual unity on strengthening property rights. A Quinnipiac University poll, for example, found that 89 percent of voters in Connecticut want the legislature to limit eminent domain. A University of New Hampshire poll found that 93 percent of state residents were opposed to taking property for private development.

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The Washington Times: www.washingtontimes.com

Can anybody out there help?

It all began over 15 years ago. A friend of mine got me a job at a cute neighborhood tavern & grill in downtown Cary, Illinois. I worked there for 9 years bartending, waitressing & learning the business. In 1999, I finally persuaded the owner to sell me not only the flourishing business, but also the property, a small lot with the bar and two apartments above. On January 1st, 2000, I became the very proud owner of a fun little place I called The Cuckoo's Nest.

I had succeeded at "The American Dream". Small-town girl makes good.

Over five and a half years later, business is good. I have done some remodeling & updating. I have made The Cuckoo's Nest a great, comfortable place to eat lunch, listen to bands, or sing some home-grown karaoke. It is a financially sound business on a lucrative property on a main thoroughfare. Here is where the nightmare begins.

Last week, another business owner on my block asked me if anyone had come to see me about buying my property. I told him no and he filled me in on all the rumors about some "big-wig" developers who were going to tear down all our properties (about 13) to build a strip mall. I went to see a few other neighboring business owners only to learn that they had been made offers on their properties. The offers were for about 1/4 of their values and ZERO compensation for their businesses. Nobody has bothered to offer me a dime.

After some research, I have found out why. It is called Eminent Domain.

Friday morning, I went directly to The Village of Cary's zoning and planning commissioner. He told me that yes, they were planning on "redeveloping" a large parcel and that I am smack dab in the middle of it. After being uncomfortable with my barrage of questions, he called in the Mayor of Cary, Mr. Steve Lamal.

Mr. Lamal told me that he had been courting developers to buy "your whole block" and found one that he wanted to "work with". He told me that in the end he would use "condemnation" on any and all holdouts who would not sell. Mr. Lamal also proceeded to remind me that he, as Mayor and Cary Liquor Commissioner, holds my municipal liquor license which could be rescinded at any time. Veiled threat? You betcha.

Some of us are getting together, but we are not sure just what to do.

Can anybody help?

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Cathy Joseph: cuckoo1@earthlink.net