Eminent Domain Watch

7/16/2006

City bars first-year use of eminent domain: El Paso (TX) Times, 7/11/06

400 attend Downtown meeting
By Tammy Fonce-Olivas
[The El Paso TX] City Council decided late Monday night to prohibit the use of eminent domain during the first year that the Downtown revitalization plan is implemented.

The resolution was adopted just before 11 p.m. Monday during a special meeting that lasted more than four hours and was attended by about 400 people. The resolution stipulates that properties can only be acquired after the 12th month that the Downtown plan is formally approved by the council.

Mayor John Cook voted for the resolution, breaking a tie vote among the council. Council members Presi Ortega, Susie Byrd, Ann Lilly and Beto O'Rourke voted for the resolution. José Alexandro Lozano, Melina Castro, Eddie Holguin and Steve Ortega voted against it.

The final plan should be presented to the council in October.

The council also voted to allow city staff to continue working with the Paso del Norte Group, which is made up of about 350 community and business leaders. Some of the plan's boundaries, however, were changed to no longer include the Sin Fronteras farmworker center on Ninth Street and incorporate more land near the Magoffin Home on Magoffin Avenue and the convention center. More detailed plans are also needed on how the city will help families and businesses displaced by eminent domain, according to the council.

More than 70 people signed up to address the council on the issue. One after another the speakers told the mayor and city representatives they want to inject more life into Downtown, but they differed on how to accomplish the goal.

The Rev. Rafael Garcia of Sacred Heart Catholic Church, located in Segundo Barrio, told the council that the city's proposal to revitalize Downtown would displace poor families and immigrants. He urged the council not to move forward with the current proposal, which includes relocating some Segundo Barrio homes and businesses. The church is not affected under the current plan.

"The plans for the poor in the Segundo Barrio still remain very unclear and dangerous," Garcia said.

Carmen Zamora, a Downtown resident, said she wants the city to continue to plan the redevelopment of Downtown. The plan is needed to give the city an economic boost and improve the quality of life for its residents, particularly those in the Segundo Barrio.

"We want a better life for our children and our families so we are supporting the plan," Zamora said.

Prior to Monday's meeting, dozens of people marched, chanted and displayed placards in opposition to the city using eminent domain. Those supporting the city's proposal watched protesters or walked inside the Abraham Chávez Theatre to take their seats.

Downtown business and property owners told the council they weren't opposed to Downtown revitalization. However, many business and property owners said they did not support the use of eminent domain to implement the city's plan.

A group of merchants and property owners, which formed the Land Grab Opponents of El Paso, even told city officials they would be challenged in court if it tried to acquire property with the use of eminent domain. Marvin Rosenbaum, with the Land Grab Opponents of El Paso and co-owners of El Paso-Los Angeles Limousine Express, said the use of eminent domain shouldn't be used to spur private economic development.

Starr Western Wear owner Enoch Kimmelman said the proposed resolution on eminent domain would hurt his business, which has been around for decades.

"You want to steal my property and give it to somebody else," Kimmelman said.

The city's proposal calls for establishing anchor tenants, described as a market to be used by local vendors, an arena and a retail center.

It also calls for developing housing units for families of various incomes.

East Side city Rep. Presi Ortega said he favors continuing with plans to revitalize Downtown, because it would help the entire community, especially Segundo Barrio residents.

"It's our obligation to help these people go forward in our community," Ortega said.

East-Central city Rep. Lozano said the city can revitalize Downtown without using the power of eminent domain or bringing an arena to Downtown.

At the meeting, Lozano presented his own redevelopment plan for Downtown, which focused heavily on having businesses and local, state and federal government offices relocate to Downtown to try to stimulate the economy.

El Paso Times: http://www.elpasotimes.com

City Drops Plans For Eminent Domain: KCBD-TV11 (Lubbock TX), 7/10/06

One Lubbock Church is thanking God for a decision the Lubbock City Council made Monday.

That decision is to pay Faith Assembly of God Church $510,000 and drop plans for eminent domain. NewscChannel 11 first brought you the story back in June. You'll recall, the city plans to widen 50th street between Slide and the West Loop. But, that expansion would require the church to lose part of its sanctuary.

At first, the city was only going to compensate the church $250,000. But Monday, the council agreed to pay the $510,000 the church first requested. "We feel like the Lord has answered our prayers and victory has been given," said pastor Terry Nessmith.

The money granted will allow the church to rebuild its sanctuary in order to meet its attendance needs.

KCBD-TV11: http://www.kcbd.com

Eminent domain deadline comes, but family stays put: Asbury Park (NJ) Press, 7/11/06

By Gene Racz
The Halpers remained on their [Piscataway NJ] farm Monday night, defying an eviction notice after indicating earlier in the day they had planned to leave.

"Until they come and boot us out, we're still here," Zac Halper, 16, said at 10:30 Monday night. "It's our home, our land."

The teen said his parents, Clara and Larry Halper, were unavailable — his mother was at a taping of "Hannity & Colmes" while his father was out getting something to eat.

It was a different scene earlier Monday when the Halpers gave the appearance they planned to leave the 75-acre Piscataway farm on the day they were being evicted after a long battle with Middlesex County and township officials.

Minutes before Monday's 3 p.m. deadline set by the New Jersey Supreme Court, Clara Halper was moved to tears. As she and her family scrambled to gather their belongings in the midday heat, one of the many people she met throughout what has been a seven-year ordeal showed up at her doorstep.

Lisa Valle, a township resident who came to know and support Clara Halper in her struggle to keep the farm and business from being taken under eminent domain laws, hugged her, told her she was sorry, and gave her a necklace of her patron saint, St. Michael, that read "Pray for Us."

"I took this family into my heart, as should every American," said Valle.

A modest gathering had lingered throughout the day — friends, acquaintances, neighbors and some opponents of the eminent domain laws that were at the root of the family's eviction after legal wrangling with Middlesex County and the township.

The Halpers contend that the process was rife with conflicts of interest and that parts of the negotiations were not done in good faith.

Piscataway plans to use the property for passive recreation with an arboretum, gazebos, a dog park, several tree nurseries, and jogging and bike paths, according to plans presented in February.

Township officials have maintained the Halper property is an eyesore and has not been actively farmed for years. They also have said the cleanup and preservation of the property as open space is in the best interests of the majority of Piscataway residents.

Behind the scenes Monday, the Halpers' attorney, Barbara Schwartz, was in U.S. District Court for the District of New Jersey in Newark, trying to get a restraining order on the eviction. She was denied the ability to file the motion, according to someone familiar with the proceedings who asked not to be identified.

The case may be appealed further to the U.S. Supreme Court.

Asbury Park Press: www.app.com

Rio Rancho places limits on eminent domain: New Mexico Business Weekly, 7/9/06

By Jason Trenkle
Rio Rancho [NM] City Council voted last week to uphold a previous resolution never to use eminent domain to forcibly take a home or business from an existing owner to make land available for commercial development. But, they say, it's okay to take undeveloped, private property if it's needed for redevelopment plans that improve the greater common good.

The city has used eminent domain to seize property for at least two redevelopment projects in the last two years. It attempted a third time in February, but failed after the attempt was met with stiff opposition from property owners.

Such opposition and a general controversy over the practice caused the council to go to the table on June 28 to pass restrictions against seizing residential homes or commercial businesses, says Rio Rancho Mayor Kevin Jackson. Jackson says he pushed for the restrictions, which passed unanimously, because he disagrees with the actions of former city leadership in exercising eminent domain. But, he says, as long as safeguards are in place the process is a vital economic development tool that can be used for the common good.

Opponents of the process say it's a political tool that rewards developers with access to land for lucrative projects and has been used in the past to coerce and manipulate property owners into selling land at an appraised value that some say is well below what the land might be worth. Many landholders in Rio Rancho own vacant property for investment purposes.

The way it works: When the city determines it needs land for a project, it informs a property owner that it is condemning the property and offers to pay an appraisal value determined by an independent appraiser hired by the city or developer. The owner can accept the offer, pay for their own appraisal, or take the city to court. If the court determines the city has a legitimate need for the land, it can force a sale at a price determined by a court-appointed appraiser.

The use of eminent domain to take land for projects such as roadways and other governmental infrastructure has long been accepted. But its expanded use, to seize property for commercial development, was only approved by the U.S. Supreme Court in June 2005. In that case, Kelo vs. The City of New London, the court ruled that government could seize property for redevelopment purposes under the "takings" clause in the Fifth Amendment of the U.S. Constitution. The case arose out of an incident in New London, Conn., in which private property was condemned to make way for a redevelopment plan.

Peter Johnson, a San Diego, Calif. resident who owns property in Rio Rancho, says eminent domain has given the city carte blanche to go forward in condemning property in areas the city has slated for redevelopment projects.

He says his property, in a 440-acre parcel along Loma Colorado Boulevard near Rio Rancho High School known as Unit 13, has been condemned as blighted property. He says 80 percent of all private property in that parcel has been acquired by the city using eminent domain and then handed over to developers, including Pulte Homes, for development. Johnson questions whether the majority of Pulte's appraisal offers are being made in good faith and whether the city is overstepping its authority.

In a prepared statement, Garret Price, vice president of Pulte Homes of New Mexico says, "We conduct all of our land acquisition activities with respect and fairness." He says more than 92 percent of the lots in Unit 13 "have been successfully contracted" using the appraisal process, with only a handful of holdouts ending up in court.

Former Rio Rancho Mayor Jim Owen, who oversaw eminent domain on two projects — the Cabazon development near Unser Boulevard and Golf Course Road and the Loma Colorado development — says the city's efforts are being made in good faith. He says it is attempting to reverse problems caused by decades-old antique platting. Antique platting refers to how plots of land were sold in the early 1960s to mainly out-of-state land owners by AMREP, a New Mexico real estate company and the major developer of Rio Rancho. Owen says people bought plots of land, at mostly discounted rates, one on top of another, but it hasn't appreciated as much as most expected. Today, those platted areas, including Unit 13, have nearly 300 owners, each with their own septic and water system. He says a few disparate property owners have created a "dangerous" situation for others — roads are washed out and debris has crossed property lines damaging neighboring properties — and because the city doesn't have ownership, it can't do anything to fix the public infrastructure without using eminent domain.

Mark Lautman, director of economic development for Forest City Covington, the developers behind the 12,900-acre master-planned Mesa Del Sol development south of the Albuquerque International Sunport, served 12 years as vice president of AMREP. He said that no one really envisioned today's Rio Rancho when much of the land was sold in prior decades.

"You couldn't call it a master plan, it was really just a lot layout. Not a lot of thought went into [Rio Rancho] becoming a separate city," Lautman says.

New Mexico Business Weekly: http://albuquerque.bizjournals.com

New Rochelle eminent domain hearing set: Westchester (NY) Journal News, 7/9/06

By Ken Valenti
The city will [of New Rochelle NY] hold a hearing Tuesday on whether to use its eminent domain power to forcibly buy property that sits where developer Louis Cappelli plans LeCount Square, a three-tower project planned to fill a prominent downtown block.

Vincent D'Agnillo, one of two partners in the building's ownership, said they were upset to see the hearing scheduled. He said that he and his partner had come close to reaching a deal with Cappelli in recent weeks that would avoid eminent domain, and that Mayor Noam Bramson had assured them the city preferred not to use the power.

He said Cappelli's senior vice president, Joseph Apicella, had seemed to agree on a price for the building recently, only to report the next day that Cappelli would not accept the offer.

"We're very upset and we're very, very uncomfortable about how the negotiations went," D'Agnillo said.

Apicella disputed the account, saying no price had ever been set. He said he was making the owners an offer Friday.

"We've talked numbers back and forth, but we've never agreed to a number," he said.

Bramson was not available for comment Friday afternoon, said his senior adviser, Eileen Songer McCarthy. But the mayor and other city officials have made comments similar to what D'Agnillo reported. They have held that they would prefer to have the property owners reach a deal privately than to use eminent domain, but that Tuesday's hearing was a necessary step to keep the option open as a last resort. The hearing had been scheduled a month ago, but was postponed.

The through-block building carries the addresses 251 North Ave., an office building that once housed the former Standard-Star newspaper, and 50 LeCount Place, home of the nightclub Miami.

Last month, Cappelli resolved a dispute that stood in the way of the project when he reached an agreement with brothers Frank and Anthony Longhitano over a building they own on the block. As part of the resolution, the Longhitanos will take part in the development.

With that agreement, Cappelli has purchased or is in the process of buying most of the properties on the block, and is in talks with the U.S. Postal Service to move at least the trucking operations for the post office on the corner of Huguenot Street and North Avenue.

On Friday, Apicella was hopeful a deal could still be reached with the owners of 251 North Ave. and 50 LeCount Place.

"I can't believe they want to be the lone holdout in a project that's going to create hundreds of jobs and millions of dollars in tax revenue," he said.

The LeCount Square project would include three towers, one soaring some 400 feet, another rising more than 300 feet and a third to reach about 150 feet. The full block of development would include residences, office space, a hotel and stores, for a total of 890,000 square feet.

Westchester Journal News: http://www.thejournalnews.com

Council Considers Eminent Domain: WIBW-TV13 (Topeka KS), 7/9/06 & 7/10/06

By Stephanie Wurtz
It's soon to be the site of a multi-million dollar redevelopment project, but progress in College Hill has hit another bump. "From the city's standpoint, we need this project to get done on a timely basis, so that all of our investment pays off," says Brett Blackburn, Topeka City Council District 7.

Business owner Mike Calvin rents space for a liquor store in College Hill, and has for eight years, but now that developers have bought the property, he's got to go. "As far as how much money he gets and what he was to pay for the value of his business or the value of his lease, that's all going to be decided by the courts," says Blackburn, "whether the parties agree or disagree, the project needs to happen."

Work has already begun on the College Hill redevelopment, but if developers and the owner of the liquor store don't reach a resolution soon, it could mean delays for construction. "If it hasn't, it's getting ready to hold the process up and certainly, they can't tear down the building as long as there's a tenant in the building they can't get that phase of the project started," Blackburn says.

Unlike previous debate with owners of Jerry's Bike Shop and Oscar's Bar in the College Hill area, if the city votes to condemn the liquor store lease, it's not a matter of property owner's rights. "The developers, they are the actual owners of the property and this is just an issue between the property owner and the tenant."

Calvin couldn't be reached by phone, but he does have a notice posted outside his store stating this "use of eminent domain... is just not fair."

And encouraging customers to take action, listing city council districts and council members. The council is set to vote on whether to condemn the lease at the meeting Tuesday.

The disagreement is between the developers of the College Hill project and owner of College Hill Liquor, Mike Calvin. Tuesday's vote means developers can move along with construction plans and now the court will decide how much they should pay Calvin, since he's losing his lease at the building

"I don't know how much of a chance I have here tonight, honestly," Calvin said when he addressed the council Tuesday, "I'm scared, basically the city are partners in this project and of course it will go forward." Back in March, developers bought the property Calvin leases for his liquor store to make room for the College Hill redevelopment.

But now, Calvin and the developers can't reach an agreement on how much he deserves for losing his space in College Hill. "$90,000 is not going to stop this project, the only thing it's going to do is give me a chance to move on," said Calvin, "I had a rock solid location."

"This is a big project, it takes a lot of time and effort to acquire this number of properties to affect change and that's what this is all about," said Bill Newsome, a developer working on the project, "we did not want to be here tonight, but we're at an impasse and the law allows this vehicle to settle an impasse." In a 6-3, council members passed the ordinance condemning Calvin's lease by the required two-thirds majority.

But not all council members think it's the right thing to do. "As a matter of principle, I don't think it's appropriate or fair for the city to take an individual's property and give it to a private company for profit," Bill Haynes, City Council District 5, said after the vote.

Now the court will begin the eminent domain process to determine the price developers will pay Calvin. That process does not factor in the value of the business itself, but does include value of the time remaining on Calvin's lease.

WIBW-TV13: http://www.wibw.com

Land dispute continues: Herald News (Joliet IL), 7/8/06

Romeoville parcel: Protesters support Friendship Centre
By Pat Schager
While trustees calmly carried on a shortened board meeting inside [the Romeoville IL] village hall, about 75 protesters marched outside the building, chanting and carrying signs.

The Picket and Pray rally was organized by supporters of the Friendship Centre at HighPoint subdivision to protest an eminent domain suit filed by the village over disputed land on Weber Road.

Chants of "Save our rec center" could be heard during the board meeting. Gina Marasco, holding a megaphone, urged protesters to let their feelings be heard by the trustees. Dennis Taylor, who works at the center, said supporters have been phoning trustees to tell them their side of the story.

For the past year, Mike Vickery, executive director of the Friendship Centre, has organized protests at board meetings.

Undeveloped land
At issue is undeveloped land near the center that the village wants to develop into open space and recreational uses. The land is on the west side of Weber between Airport and Taylor roads.

Vickery says if the village takes over the land, the center will lose revenue and may be forced to close. "Right now we are $50,000 in the red," Vickery said.

The 10-year-old center uses assessment fees and charges minimal fees for its programs.

In a development agreement between Bigelow Group Inc. and the Institute for Community, certain homes and apartments in HighPoint are assessed a fee that goes to the center to develop and run community programs. When building stopped, so did additional assessment fees.

Building plans
Under a 1995 annexation agreement between Bigelow and the village, apartments were to be built on the land. Building was at a standstill until recently when Bigelow came to the village with a plan to build homes. Village officials have said the property was never developed as originally agreed and the site plan no longer fits the village's master plan. The site is now considered "high priority" for open space by the village.

Mayor Fred Dewald said he wants to be known as the mayor who saw a need for open space and quality of life for all Romeoville residents.

The eminent domain issue now rests in Will County Circuit Court, though all sides say they are willing to meet at any time and any place.

Herald News: http://www.suburbanchicagonews.com/heraldnews

Jury prices acres at $790,000: Will County (IL) News, 7/8/06

More than five times Preserve District's offer
By Cindy Wojdyla Cain
For only the fourth time in its history, the Will County [Illinois] Forest Preserve District has completed an eminent domain case with a jury verdict.

A jury recently ruled that the district should pay $790,000 for 25.77 acres that would provide public access to Lake Chaminwood Preserve in Channahon Township, said district Executive Director Mike Pasteris.

The board's land acquisition committee discussed the case in a closed session Wednesday, but voted in public session to accept the judgment and to reject a final settlement offer from the land owners.

In late November, Chicago attorney Daniel Albers had complained at a committee meeting about the way the district was handling the case. Albers is representing Jeff Dunteman, one of the owners of the acreage off Shepley Road. He said the district's settlement offer of $143,000 was an "embarrassment."

He said the land is taxed at a $650,000 value and the owners received an offer of $800,000 shortly before the district filed eminent domain proceedings.

Typically, the forest preserve district settles eminent domain cases before a jury sets a price, Pasteris said. The forest preserve district has an informal policy that it will file eminent domain cases only with willing sellers who cannot agree on a price with the district.

But Albers said his clients were willing sellers until the district offered a "low-ball" price for the land. He could not be reached to comment on the jury's judgment in the case. Pasteris said only about 40 or so eminent domain cases had ever been filed by the district.

Will County News: http://www.topix.net/county/will-il

7/08/2006

Landowners want eminent domain tweaked: Casper (WY) Star-Tribune, 7/7/06

By Dustin Bleizeffer
A landowner advocacy group says private property rights — particularly for rural landowners — will diminish if lawmakers don't reform Wyoming's eminent domain laws.

Laurie Goodman, of the Landowners Association of Wyoming, said the state must act soon because the federal government is identifying energy corridors across public lands in the West, which will essentially create de facto corridors across private lands as well.

"Most landowners recognize the need to develop. What they don't get is why they, as private landowners, don't have the same rights as states and the federal government, and why they have so little negotiating power," Goodman said.

As the state prepares its official comments to the federal government on its plan to identify corridors across the West for power lines and pipelines, groups including the Landowners Association of Wyoming continue to push for eminent domain reform. The Wyoming Legislature's Interim Agriculture, Public Lands and Water Resources Committee is considering several proposed changes to Wyoming's eminent domain laws. Eminent domain usually describes the power of a government to force access to private land through easement, lease or sale for public use. In Wyoming, eminent domain powers have long been extended to private companies that require easements for water facilities, oil and natural gas pipelines and electrical power lines and substations.

Goodman's group wants lawmakers to extend the same rights that the state enjoys under eminent domain laws to its rural landowners. They include:

A requirement for prior notice.
Initial and annual fees to landowners.
A 30-year limit on all contracts, rather than in perpetuity.

In addition, the Landowners Association of Wyoming wants eminent domain reform to provide for a peer review of whether parties participated in "good faith" negotiations and whether a "taking" of private property is in the greater public interest.

But some industry leaders, including the state's own Wyoming Infrastructure Authority and Wyoming Pipeline Authority, contend those types of changes may have the unintended consequence of making wire and pipeline projects prone to lawsuits and "not in my backyard" delays. When the legislative committee met in April, members agreed not to make any sweeping changes to Wyoming's eminent domain laws, but they did warm to proposals for "good-faith negotiations" and peer review board requirements.

Gov. Dave Freudenthal recently echoed those sentiments.

In response to a survey by the Powder River Basin Resource Council, Freudenthal said he didn't want to repeal private industry's broad use of eminent domain authority because Wyoming's economy relies heavily on energy development. However, he does favor tempering that use by inserting a statutory "good-faith negotiation" requirement — borrowing from the state's year-old Split Estates Act.

"I am opposed to the use of public condemnation in instances like those upheld in the (U.S. Supreme Court) case of Kelo v. City of New London — where economic development was the cited public benefit," Freudenthal said in his written response to the resource council. "In the context of private condemnation, the ability to construct pipelines, power lines and other infrastructure is simply too important to Wyoming's economy to support any repeal of private condemnation authority."

Goodman said that approach puts rural landowners at a disadvantage that urban landowners wouldn't face. She said Wyoming has long contradicted its image as an individual-rights bastion by placing energy development ahead of private property rights and that supporters of eminent-domain reform just want to level the playing field.

"We have five major transmission lines in the works, numerous pipelines, the DM&E rail line in the northeastern part of the state and increasing use of eminent domain authority by coalbed methane gas developers," Goodman said. "It seems to us there's a greater appetite by both public and private parties to use eminent domain, and yet it's supposed to be a last resort."

Casper Star-Tribune: http://www.trib.com

Deception Underlies State Eminent Domain Initiative: BeyondChron (San Francisco CA), 7/6/06

by Randy Shaw
Those concerned about the misuse of eminent domain were encouraged by the circulation of a statewide initiative (Prop 90) to address the problem. Unfortunately, the initiative’s backers sought to capitalize on rising anti-eminent domain sentiment by inserting a sentence jeopardizing the future enactment of most land use laws, including amendments to San Francisco’s Rent Ordinance. This sentence- — which allows property owners to sue government entities over any new law that reduces their property values — overwhelms the good part of the initiative. Prop 90’s specific language limiting eminent domain made this broad sentence unnecessary, raising questions about the motives behind November’s “Protect our Homes” initiative.

Christine Minnehan of the Western Center on Law and Poverty is the chief — and indispensable — advocate for tenants in Sacramento. Minnehan has expressed deep concern about the impacts of the “Protect Our Homes” measure, particularly regarding future amendments to local and state laws protecting tenants. Minnehan writes:

Last week, the Anderson eminent domain initiative, known as the "Protect Our Homes", qualified for the November ballot. While this measure is ostensibly about eminent domain, it contains a very broad clause, authorizing litigation if government actions cause a substantial economic loss to ANY property (Section 19(b)(8) of the attached.) There is an exception for governmental actions to protect public health and safety, but no exception for the public welfare, environmental protection or economic regulation.

On its face, Prop. 90 would appear to create a damages action against a government agency for various kinds of economic regulation including inclusionary zoning, environmental protections and rent control. The attorneys for the steering group for the Anti Prop. 90 campaign, believe that the damages claims could be so large that government agencies would be unwilling to enact, implement or continue to implement these policies.

Prop. 90 does contain a savings clause to protect existing law. However, since future government actions include resolutions, it appears that future discretionary actions to implement existing law would trigger liability. In any event, any new laws would certainly be covered. Additionally, since the measure, if approved, would take effect in November, any laws passed in this session of the Legislature that don’t take effect until January would be subject to the measure.

Members of the Anti Prop. 90 steering committee think that the measure represents so radical a view of property rights that those rights would trump the right of the public’s elected representatives to act in the public welfare.

Not specifically mentioned in Minnehan’s analysis is that future limits to the state Ellis Act would appear to subject government entities to Prop 90 lawsuits. Overall, Prop 90 seems less an eminent domain reform initiative and more a product of property-rights zealots opposed to reasonable land use controls.

BeyondChron: http://www.beyondchron.org

Edgartown turns to eminent domain to expand cemetery: Martha's Vinyard Times (Vinyard Haven MA), 7/6/06

By Jesse Husid
Available land is precious and disappearing in Edgartown, for the living and for the dead. In fact, by one estimate, in 20 years Edgartown will run out of available burial space in town cemeteries.

Following a presentation by the Edgartown cemetery commission, on Monday Edgartown selectmen agreed to ask voters at a special town meeting on July 27 to take a 2.18-acre parcel of land adjacent to the New Westside Cemetery by eminent domain.

Alan Gowell, a member of the Edgartown cemetery commission and a memorial dealer, is intimately familiar with Edgartown's three cemeteries. That is why it came as quite a shock when he learned that the Edgartown United Methodist Church, which had inherited the parcel on Robinson Road adjacent to the New Westside Cemetery, had agreed to sell it to Paul Donovan, a Florida-based developer, without offering the property to the town.

The land is currently under agreement and Mr. Donovan has filed a four-lot subdivision plan with the Edgartown Planning Board.

According to Walter Bunge of Edgartown, treasurer of the Methodist Church and chairman of the committee responsible for selling the property, the parcel was listed openly last November and the town never made an offer.

At the Monday afternoon meeting, Mr. Gowell told the selectmen that the 56-year-old New Westside Cemetery is more than two-thirds sold, leaving what will most likely be less than 20 years worth of future cemetery land available. He said there are no more lots for sale at Edgartown's other three cemeteries: Westside Cemetery, Hilltop Cemetery at Chappaquiddick, and Old Town cemetery at Tower Hill. Taking the parcel he said would provide space for as many as 800 graves as well as a new and more attractive entryway.

Edgartown selectmen decided to let the voters have a say at the special town meeting. Following the presentation by Mr. Gowell, the selectmen agreed to place an article on the special town meeting warrant asking voters to authorize the selectmen to take the property by eminent domain. Mr. Gowell said the property is appraised at $1,550,000. A two-thirds vote would be required for approval.

If voters approve the taking, the purchase would be funded with $100,000 from the cemetery's sale of lots fund, and $400,000 from the Community Preservation Act (CPA) fund. The Edgartown Financial Advisory Committee has voted to recommend the purchase.

Currently covered with a tangle of vines and fallen trees and brush, the parcel lies between the New Westside Cemetery and the Edgartown Fire and Police Stations. It was owned by Mary Willey, an Edgartown School teacher who died in 1990. Ms. Willey left the property and buildings to the Edgartown Methodist Church with the provision that her son, Nathan, be allowed to live in the house. He died in 1994, clearing the way for a sale.

Reached by phone yesterday morning, Mr. Bunge said the town had not notified the Church about its intentions. "I still haven't heard from them on an official basis," said Mr. Bunge. "I was never officially notified about the town meeting."

Saying that it was the town that had been left in the dark, Mr. Gowell said the commission had expressed an interest in purchasing at least part of the property to the Church committee prior to hearing about the sale. "The Cemetery Committee was never apprised that the land was being offered for sale or I would have moved immediately," said Mr. Gowell.

Mr. Gowell said he met with Mr. Bunge this winter after hearing that that the Church had reached an agreement to sell the land to a developer. "I asked to be kept informed," said Mr. Gowell.

According to Mr. Gowell, the first deal fell through but he heard nothing from the church until there was another agreement.

"The next time I heard from the Church was after Mr. Donovan had an agreement to purchase the parcel," said Mr. Gowell. "They told me that the cemetery fence was 18 inches onto their property and asked if I would help." Mr. Gowell contacted Mr. Donovan to see if he would consider selling the parcel to the town for a modest profit. Mr. Donovan said he would not, according to Mr. Gowell.

Mr. Bunge said the reason the town was not contacted is that the church wanted to consummate a sale quickly because it needed the money. "Our committee felt the town wouldn't commit to the purchase," said Mr. Bunge. "This is a very small congregation and we needed to sell the land to make income. With the town, we thought it may take years to do that."

Mr. Gowell said he believes the closing has still not taken place and the parcel still belongs to the Church.

Martha's Vinyard Times: http://www.mvtimes.com

Alaska Governor Signs HB 318 - Eminent Domain: State of Alaska Press release, 7/5/06

Alaska Governor Frank H. Murkowski has signed into law HB 318, a bill that aims to clarify and limit the use of the power of eminent domain when it is used to take private property for government use. The bill, sponsored by Anchorage Representative Lesil McGuire, is in response last year’s US Supreme Court decision in the Kelo case from New London, Connecticut, in which the court said it was permissible for a local government to condemn private properties to allow economic development.

“Alaskans were justifiably upset by the Kelo decision and wanted to make sure the use of eminent domain is limited and narrow in scope,” Murkowski said. “Out of 365 million acres of land in Alaska, fewer than 2 million acres – less than one percent - are owned privately by individuals. An out-of-control government, deciding that taking private property through condemnation to benefit private economic interests, was simply unacceptable to Alaskans. In light of that legitimate concern, it was my pleasure to sign HB 318.”

In addition to restricting the use of eminent domain from being used to benefit private economic development, HB 318 also prohibits its use to take all or part of a primary residence for recreational facilities or projects. HB 318 has an immediate effective date.

Eminent domain conflict now up to city: Daily Toreador (Lubbock TX), 7/6/06

Opinion
By Trey Caliva
The framers of the Constitution were marvelously remarkable in their ability to enumerate specific powers to the government. Powers, which to this day, are essential to its everyday business.

Eminent domain allows the procuring of private lands when needed, and with proper compensation, to benefit the public. The power of eminent domain is specifically laid out in the Fifth Amendment to the U.S. Constitution, the final portion of which reads, "nor shall private property be taken for public use, without just compensation." In most cases, the key battling point when it comes to decisions in eminent domain come from how much compensation should be given for the amount of property being taken.

That is the issue in the current eminent domain battle between the city of Lubbock and the Faith Assembly of God church. The church, which lies between Bangor and Chicago Avenues on 50th Street, is in the way from a planned widening of 50th Street west of Slide Road.

Initially the church had been told it would only lose approximately six-square-feet of land to the expansion and the city offered $250,000 in compensation. However, after closer examination of the projected expansion, the church realized that would literally put them right up against the newly constructed 50th Street. In order to ensure safety for the building and its worshippers the church will have to be moved back 30 feet from the street, at an estimated cost of around $1 million.

After notifying the city, a court-appointed commission rendered a decision that the dislocation would be worth $510,000. While the church agreed to that amount, the city rejected it and instead filed for eminent domain. After seeing the situation, City Councilman John Leonard (who was unavailable at the writing of this column) stated that it seems the city was "looking at the market value instead of the replacement value". He told KAMC News Channel 28, that he was "a little uncomfortable with where we are at."

I spoke with the Pastor of Faith Assembly of God, Terry Nesmith, and he informed me that his church's situation will be the first item on the agenda at the July 10 City Council meeting. It's good to see Councilman Leonard staying on top of the situation and getting this item up for discussion. Now, hopefully, the dilemma of a few of Lubbock's citizens can be appropriately solved.

Yes, 50th Street needs to be expanded. Lubbock is a continuously growing city, which means construction and infrastructure expansion are all too necessary. That expansion, however, cannot come at the expensive of its private citizens. The operable words outlying eminent domain in the Bill of Rights is "without just compensation". If you're going to force someone to relocate buildings and lose land, then make sure they can do so as easily as possible. For Lubbock to know of the $1 million price tag of relocation and cause them to invoke eminent domain (and retain the original $250,000 offering price) is absolutely ludicrous. It's now up to the city to make the right choice.

Daily Toreador: http://www.dailytoreador.com

Piscataway petition urges limits on eminent domain: Asbury Park (NJ) Press, 7/4/06

AT ISSUE: Township's effort to acquire and preserve a farm as open space

PROPONENTS: Don't seize private property for other than a public purpose
By Gene Racz
A citizens group called The Piscataway Property Rights Organization is working to collect 2,500 signatures by mid-August on a petition with the ultimate goal of limiting the township's power to seize private property through the use of eminent domain.

The PPRO wants to build support for a referendum that would ask Piscataway voters to forbid the township's governing body from condemning private property for redevelopment or any nonpublic purpose.

The PPRO will be gathering signatures door-to-door, at the local post office and even at today's Fourth of July parade.

"I think people want to preserve eminent domain for building things like a highway or a school," said Thom Ammirato, who works as a media consultant for PPRO as well as other groups that want to put restrictions on the use of eminent domain usage statewide.

"But," Ammirato added, "I don't think the public supports eminent domain for economic redevelopment purposes that allows a developer to come in and take private property and make a huge profit for its own purposes."

Citing an eminent domain example in town, Ammirato called the ongoing legal battle between Piscataway and its effort to seize the Halper family farm to preserve it as open space "the center in the battle of eminent domain in Piscataway."

The wrangling has dragged on in the courts since the fall of 1999.

As it stands now, the Halper family is facing eviction from the farm on July 12. Ammirato said a protest is in the process of being planned on or near the farm.

The state Supreme Court has ruled that the Halper farm did qualify as public purpose and open space under eminent domain. The remaining question now hinges on an upcoming evaluation date that will dictate the ultimate dollar figure that will be paid by the township.

It isn't expected to be heard for another six to eight months.

A jury has set the value of the farm at $17.9 million, which has been appealed by Piscataway.

Mayor Brian Wahler said he was suspicious that partisan politics were at play behind the signature drive, noting that the PPRO has members with strong ties to the Republican Party.

"This is America. Anybody is allowed to propose to oppose anything," the mayor said, adding that in his 14 years in office, "we have never used eminent domain other than for public purpose."

Asbury Park Press: www.app.com

Eminent domain could affect water rights: El Defensor Chieftain (Socorro NM), 7/5/06

By Argen Duncan
Board members of a group that works to protect private water rights spoke at a general meeting concerning signs that eminent domain could affect those rights.

In response to a question at a recent Rio Grande Water Rights Association meeting at the Socorro County Fairgrounds, water rights consultant and board member Suzanne Smith said the City of Alamogordo is attempting to condemn water rights. She also said Gov. Bill Richardson vetoed a bill that would have protected private property against eminent domain, which allows the government to take private property at a price without the owner's permission.

Board member Martin Haynes said the City of Albuquerque can condemn water rights, but a new project allows the city to divert an amount of water that will probably satisfy its demands for years.

Board member Dick Ritter said a U.S. Supreme Court case from 2005 sets a precedent for the government to take anything. In Kelo vs. City of New London, justices ruled that the constitution places no bar on local governments taking private property for development work.

Smith said she has seen the state engineer, who sets policy for New Mexico rivers and groundwater, take the position that someone who wants to buy water rights from a person whose well was on state land should make an offer to the state Land Office rather than the well owner.

She also said the state engineer no longer allows people to transfer groundwater rights from one well to another because of the position that all water diversions affect the Rio Grande. The state recently approved a permit with the conditions that officials could later decide the diversions affect the river and the owner has to acquire an old water right to use the water.

"You have no stability," she said.

El Defensor Chieftain: http://www.dchieftain.com

Council moves to protect use of eminent domain: Rio Rancho (NM) Observer, 7/8/06

By Tom Treweek
Even though the city council was not deciding to blight areas within Rio Rancho, eminent domain was once again on the agenda last Wednesday, as the city worked to protect what it has called an important tool.

The resolution before the council was a policy statement, sponsored by councilor Howard Balmer, aimed at Gov. Bill Richardson's task force on the "Responsible Use of Eminent Domain," which was established by executive order in June to "help recommend ways for New Mexico to prohibit abusive condemnation practices that could result because of the recent decision by the United States Supreme Court in Kelo v. The City of New London," according to the press release.

The resolution was unanimously approved.

In its resolution, the city council defended its right to utilize eminent domain in accordance with the State Metropolitan Redevelopment Code, which allows for condemning property in cases of "antiquated platting; multiple, disparate ownership; and the clear inability to otherwise effectuate real property consolidation, aggregation and acquisition," according to the resolution.

The council did allow for some variations in the current code, but only to coincide with measures the city has already taken. In January, then-Mayor Jim Owen introduced a resolution that prohibited the governing body from blighting a developed property for the purpose of economic development. In February, the council passed a resolution that required the city to educate residents about the uses of eminent domain, and another forcing the city to "assure fair and adequate compensation-value to individual property owners" who would be affected by the use of blighting.

The only discussion on the item was a motion by councilor Larry Naranjo that struck some of the language in the resolution. Originally, the resolution included language that indicated the city would support legislation that would uphold eminent domain but resist any attempt to limit the power of the city regarding blighting. Naranjo's motion, which passed unanimously, eliminated the city's promise of opposition.

The resolution, because the council passed it, is now the official position of the city. Mayor Kevin Jackson, who was appointed by Richardson to the task force, must now represent this view to that task force.

During his mayoral campaign, Jackson ran against the use of eminent domain for economic development, but he said Wednesday that he could put that aside to abide by the council's will.

"I understand what my marching orders are," he said. "Regardless of my personal viewpoint of the use of eminent domain, I will serve on the governor's task force objectively representing the views of our citizens."

But Jackson could not say that the will of the council, which represents Rio Rancho residents, actually matched the views of those who live within the city.

Previously, the city was vilified by the community for its use of eminent domain in Unit 13 along Loma Colorado Drive and its proposed blighting study in Unit 10, which is southwest of Southern and Unser boulevards. The latter proposal was indefinitely postponed by the council in January.

Rio Rancho Observer: http://www.observer-online.com

7/04/2006

Little help for little guy with eminent domain problem: MetroWest Daily News (Framingham MA), 6/30/06

Opinion
By John P. Lambert
The great howl of rage that greeted the Supreme Court's Kelo decision a few months ago is but a whisper in state legislatures today. A lot of people would be hard put to remember even that Kelo sustained the right of local and state governments to seize private property in order to deliver same to a second private party who could make better economic use of the property and generate greater tax revenue from the taking.

Prior to the ruling, there was strong feeling that many local jurisdictions nationwide had flagrantly abused their eminent domain powers in the furtherance of economic development. Kelo let loose a flood of pent up takings that had been held in abeyance while awaiting the decision. More than two days after the ruling came down, Boston officials called on their mayor to seize waterfront property from unwilling sellers in that city for use in the South Boston convention center (Fan Pier) development project.

Such was the furor over the ruling and the moves by municipal officials nationwide to exercise the approved powers,some 50 house members in the Massachusetts Legislature signed onto a resolution indicating disagreement with the Supreme Court's decision. A bill and a proposed constitutional amendment were also filed limiting taking private property for the sole purpose of economic development unless the seized property was considered dilapidated or "blighted."

The two proposed reforms have not progressed far in the legislative process.

For one thing, constitutional amendments are a rough road to haul. Whereas laws are more easily enacted, they can be changed in a "heartbeat," often in midnight sessions. "Blight" itself, like beauty, is too much that in the eye of the beholder. The term lends itself to interpretation and provides a huge loophole through which to drive a bulldozer.

Elsewhere, Rhode Island merely contented itself with a bill urging Congress to, among other things, nullify the Kelo decision. What affect such resolutions have on Congress is problematical. Connecticut, the state which gave rise to the Kelo ruling, called for a moratorium on the use of eminent domain by all its cities until it could revise its law to protect property owners.

Eight states are currently drafting amendments to their constitutions to prohibit the use of eminent domain for private developments.

Georgia is considering a law prohibiting using eminent domain for "retail, office, commercial, or residential development." Alabama is considering a similar measure.

Texas has a bill that calls for a constitutional amendment to prohibit taking private property for the primary purpose of economic development.

In California, a senator has proposed a constitutional amendment prohibiting use of eminent domain for private use "under all circumstances."

At least ten states — Arkansas, Florida, Illinois, Kentucky, Maine, Michigan, Montana, South Carolina, Utah and Washington — already forbid the use of eminent domain for economic development.

The immediate effect of the Kelo decision and the proposed restrictions on the eminent domain powers of local government has been a rush to takings in the many states (as in Boston's Fan Pier project).

Meanwhile, the pace of proposed reform bills nationwide has slowed to a crawl. An observer of legislative action of eminent domain revisions has commented that he suspects most proposals "are going to die on the vine." Corporate pressure and municipal lobbying has been heavy to preserve eminent domain as a tool in economic development at the local level.

There is much hypocrisy among state legislators in dealing with changes in state laws. Many have been busy watering down bills before them through grandfather clauses and exceptions provisions like the "blight" exemptions.

Clearly, Justice Sandra O'Connor's "little guy" cited in her majority opinion in Kelo has as much clout with state legislators as he does with today's Congress. As for recourse to the ballot box ... what is there to say?

MetroWest Daily News: http://www.metrowestdailynews.com

N.C. General Assembly looks to close eminent domain loophole: The Business Journal of the Greater Triad (Greensboro NC) Area, 7/2/06

By Matt Harrington
The N.C. General Assembly is taking steps to strengthen existing state statutes that outlaw the use of eminent domain for economic development projects in what is a hot-button issue nationally.

As of presstime, the N.C. Senate had not yet passed a modified version of House Bill 1965, which was one of the many proposals put forward by legislators in the year since the U.S. Supreme Court upheld a Connecticut state statute that allowed a city there to take houses for a hotel and convention center.

Pete Brunstetter, R-Forsyth, who serves on the Senate Judiciary Committee, which is crafting the Senate's version of the bill, said North Carolina was one of many states that reacted after the Supreme Court's decision last year.

North Carolina's state statues, similar to Connecticut's, have a loophole that could theoretically allow for eminent domain to be used for private-development projects, he said.

"Most of the states have been scrambling to plug the holes," said Brunstetter, also an attorney for Kilpatrick Stockton and former chair of the Forsyth County Board of Commissioners.

The state's loophole is due to a clause about using eminent-domain powers for urban redevelopment of blighted areas, which are defined as areas where two-thirds of the properties are blighted. The statute says that in such cases, the entire area could be condemned by the local government, as was the case in Connecticut. The Senate bill will try to amend that language to say that only blighted parcels could be taken via eminent domain for a private project.

"The fear that happened was people saying 'Is our statute broad enough to allow for this type of eminent domain action?'" he said.

Brunstetter said it was Sen. Phil Berger, R-Guilford/Rockingham, who found the loophole late Tuesday, while the Senate was considering a bill on the subject. Now that bill has gone back to the Judiciary Committee for further language adjustments. While it was not immediately known when the bill might next be taken up, Brunstetter said he thought it would eventually pass.

"If we're serious about plugging the hole from the (Connecticut) case, this is what we need to do," Brunstetter said.

Berger said he had not heard of any opposition to his amendment yet, but knew that several legislators planned to check with the N.C. League of Municipalities, which published a statement after the Connecticut case last year saying that North Carolina did not have any loopholes in its eminent domain laws.

A call to the League of Municipalities for comment was not immediately returned.

Should a bill pass the Senate, it would then go into a conference committee, where the differences between the House and Senate versions would be resolved and the final bill would go to both the House and Senate for approval.

Berger said another option to close the loophole would be a state constitutional amendment making it clear that the state could never use eminent domain for private projects. Such a bill, proposed by Rep. Paul Stam, R-Wake, is currently in the House, but Berger said he wasn't sure it would be well supported.

The Business Journal of the Greater Triad Area: http://triad.bizjournals.com/triad

7/02/2006

Stop Eminent Domain eviction at the Halper Farm in Piscataway NJ

Drive your RV, pitch your tents, and take a stand against eminent domain abuse by camping out at the Halper Farm until the moment of eviction.

The demonstration starts Saturday July 8th, 2006 and lasts until at least the scheduled eviction on Monday July 10th at 3pm

Location is the farm of Larry and Clara Halper, 4 Bella Drive, Piscataway, New Jersey 08854. The halpers welcome one and all to camp on their land. There is plenty of space.

For information:
Freestar Media LLC
7657 Winnetka Avenue #707
Canoga Park, CA 91306
310-593-4843
www.freestarmedia.com

Board may acquire land through eminent domain: Mt Vernon (OH) News, 7/1/06

By Melissa Raines
“As you can imagine, this is very upsetting and difficult for my family, as we have owned parts of this ground for more than 30 years,” Fredericktown [OH] resident Jim Fox said of his closed-door meeting with the Fredericktown Board of Education Thursday night.

During an executive session held after the general meeting, the Fox family said it was told the board plans to acquire 4.3 acres of their land through eminent domain if a settlement in current sale negotiations cannot be reached.

“Last evening the board told me that if we did not sell the ground that they wanted for the price they wanted to pay, they would take the property by eminent domain,” said Fox.

Fredericktown Superintendent Dan Humphrey confirmed Fox’s statement.

“Bottom line is, if negotiations break down and we cannot reach an agreement on a sale price, we will look into eminent domain possibilities,” he said.

Eminent domain allows school systems and other state agencies to purchase land forcibly even when the land is not for sale, or if a sale price cannot be agreed upon.

Humphrey said the land is important to the Fredericktown Schools expansion project. The board would like to use the 4.3 acres in question for parking and a practice field.

“It may be practice fields, it may be parking. We do need parking down there. The plan is not to put a building down there,” Humphrey said.

According to Humphrey, a second access road would also be built on the parcel, upon the specifications of the Ohio School Facilities Commission. The road would run south of the football stadium and exit onto Columbus Road, east of the Fredericktown United Methodist Church. Fox said he is planning to donate the portion of his land needed for the road construction.

The board wants to acquire the four acres, which contains 17 proposed building sites, while it is still vacant.

“We’re looking at what we need down the road. We feel like we’re landlocked back there, and the board is trying to use foresight. We have to make sure that we have what we need for the future,” Humphrey said.

Fox, who has lived in Fredericktown for 43 years, said he has been asked by the school board to attend three closed-door meetings recently, to discuss the matter. Humphrey said the subject has only been discussed in executive sessions because land negotiations are involved.

“Any time you negotiate for land, that’s very legal to negotiate in executive session. Any time you’re dealing with land purchase, that’s how you do it,” he said.

Residents who have expressed concerns about how additional traffic in the area caused by a second access road would affect their property values, privacy and safety, declined to go on record. Humphrey said no residents have spoken to him about the matter, and he was surprised the newspaper had been contacted.

“If they’ve got some concerns, I’d appreciate them sharing those with me or another school board member,” he said. The superintendent said the next Board of Education meeting is July 11, and that public discussion is always part of the general meetings.

Fox, who originally offered to sell the schools 2.3 acres of the area in question, and an additional two acres near the current school property, was turned down.

“It just didn’t meet our needs. We think that our needs are better met by acquiring the land in one piece,” Humphrey explained.

The school district recently had the 4.3 acre parcel appraised, and Humphrey said the schools’ purchase offer, which both he and Fox declined to disclose, was “much higher than the appraisal.”

Humphrey said he believes the two sides are so far apart at this point that negotiations are in jeopardy. Fox agreed. Both sides are consulting attorneys and preparing new offers. Humphrey said eminent domain action would take a school board resolution, which has not yet happened. A jury would then be chosen by the courts to determine a fair price to pay for the land.

Humphrey added that the board’s decision to use eminent domain would be based on what the board members feel is in the best interest of the Fredericktown schools.

“There’s no hard feelings between us and the Foxes. We’re trying to make sound business decisions, just like Jim’s trying to make sound business decisions for his family. I have to look at it from the perspective of 1,200 students and their families, and I want to make sure that we spend the money of the community wisely,” said Humphrey.

Fox said his family’s perspective is a desire for fairness.

“They want ground that I don’t want to sell,” he said. “We had our plans for that land all made, and a month ago they came to us and said they wanted it. They came to us and said, ‘this is what we want.’ We told them what we were willing to sell, two acres that they wanted, plus an additional two separate acres. They turned us down, and now it’s back to what they want. They want the land that we’ve already put money into developing. We feel there has to be some give and take.”

Fox said he was surprised by the board’s plans to use eminent domain as a possible means to acquire the property.

“It is hard to believe that one day you can wake up and the government says ‘we are going to take your property.’ That is what is happening to us,” Fox said.

Mt Vernon news: http://www.mountvernonnews.com