Town passes law against condemnation for redevelopment: Westchester NY Journal News, 1/21/07

<By Robert Marchant
[Yorktown NY] will not be condemning anyone's property to put up a shopping mall.

Bowing to public anxiety over a 2005 U.S. Supreme Court decision that authorized municipalities to take over private property through eminent domain proceedings and turn them over to private developers (Kelo v. City of New London, Conn.), Yorktown's elected leaders unanimously voted last week to prohibit that practice locally.

"It forbids the town of Yorktown from taking people's property unless there's a public use," said Nicholas Bianco, a Town Board member who sponsored the legislation. "The Kelo decision brought it to the forefront."

Bianco said there was strong feeling that taking private property for redevelopment purposes was "unfair."

The town has not been considering any eminent domain proceedings, noted town Supervisor Linda Cooper, but persistent talk around Town Hall had made it an issue. She said the speculation was unwarranted, but it made sense to put the issue aside.

"We wanted to put to rest anyone's sense that the town is going after their property," she said.

The use of eminent domain to acquire property for redevelopment has been used in Port Chester. The high court last week refused to hear the case of Bart Didden, a Port Chester businessman whose land was taken to clear the way for a drug store.

The city of Peekskill has initiated a "blight study" in its downtown district, which city officials deny is a step toward eminent domain proceedings. That issue, however, has captured attention in nearby Yorktown.

The Yorktown law still allows the town to buy out property owners to use land for public infrastructure improvements such as roads and sewers.

A local resident who spoke in favor of the law's passage, Linda Clemenza, said it was a positive step.

"It's something a few residents are concerned with. It's a good start for the community, but the federal, state and county can still supersede the town," she said.

Clemenza, who owns a ceramic studio, said the law was not as ironclad as she would have liked, but it was a move she generally supported.

In the Kelo case, homeowner Susette Kelo filed a lawsuit against the city of New London when it sought to take over her land for economic development in the form of a conference center, resort and condominiums. She has been given a June 15 deadline to move.

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

Courts pave over paradise on farm land: Salem OR Capital Press, 1/19/07

Editorial
Singer Joni Mitchell once wrote the lyrics in her song "Big Yellow Taxi", "Don't it always seem to go, that you don't know what you've got, till it's gone, they paved paradise and put up a parking lot."

Seems these days, it's farmland that can be turned into parking lots.

Worse, a terrible legal precedent out of Washington state has now declared that the farmers don't even need to be directly warned their land is being considered for such developments.

Pierce County beef producers Ken and Barbara Miller have lost a Washington Supreme Court case in which they fought against Sound Transit who wanted 1.25 acres of their property for a park-and-ride lot for a South Tacoma train platform.

The transit agency never bothered to contact the Millers directly about the project. Instead it posted a notice about a public meeting on its website.

The notice never mentioned the name of the farmers, or gave the address or property's parcel number, but the court ruled this was adequate notice.

In a 5-4 decision, the court explained why the transit agency could do what it wanted. "While precedent on this subject is sparse, posting on a public website is at least as likely to provide the community with notice as the specifically approved notice given to a newspaper," wrote Justice Mary Fairhurst for the majority.

It didn't matter that the Millers had never used the Internet before this happened, or that they have fought three years to save their land.

One of the dissenting justices seemed a bit more sympathetic to the plight of the Millers.

"It is highly optimistic to expect a landowner's click of the computer mouse to lead, at the right time and on the right site, to a posted proposal bearing on his property interests."

How many people would even think to check online if their land is being targeted? How many people would know where and when to look, or even recognize it's their property if that wasn't specifically mentioned?

New world order
Welcome to the world of eminent domain and why it has angered and caught the attention of the agricultural community across America.

Farmers are learning the hard way such terms as eminent domain and condemnation. Originally, those terms were usually reserved for when governments needed low-valued or blighted property to meet its needs for public use.

But then the Kelo court case at the U.S. Supreme Court level determined that a government could condemn "underutilized" private land for other private parties and developments. More jobs and higher tax revenue could be used as reasons to condemn land.

At the time, there were warnings this could mean farmland would be threatened.

During the recent American Farm Bureau Federation annual meeting, voting delegates adopted a resolution showing how much it opposed "the use of eminent domain for recreational purposes, open space, private economic development or to expand the land holdings of wildlife agencies."

AFBF added that eminent domain should not be used to condemn or transfer property from one private entity to another for economic development or other private use.

This year, delegates strengthened their policy to add "any condemning entity must negotiate in good faith to acquire property before initiating condemnation. The condemning entity should be penalized if it did not negotiate in good faith." They added that if private property is taken, the just and adequate compensation should include legal costs and "expert witness fees, associated costs, relocation costs, appraisals including highest and best use, replacement costs and participation fees."

The Washington state case shows how Sound Transit did not negotiate in good faith. It didn't negotiate at all.

If governments and agencies ever wondered why there is so much mistrust and frustration with them by the public, this is a blatant example of misuse of power and arrogance.

Everyone knows land use and property rights are some of the most sensitive issues in this country, yet Sound Transit still stooped to this tactic.

The court should also be criticized for the decision it made. This ruling must be challenged for the awful precedent it has set.

The agency didn't have the decency to contact the ranchers, in person or by mail, and only posted its intent of the project on a website in a matter that was too vague to even identify the property.

Bad-faith effort
What's to stop other government agencies, utility companies and others from adopting similar tactics when they desire valuable farm land or other private property? Using the Internet-only tactic is shameful, but proved successful for an agency that didn't have the guts to negotiate in good faith with the farmers.

By the time Ken and Barbara Miller found out about their land was being targeted, it was too late to fight back.

As Capital Press reported earlier, at first the Millers were offered $500,000 for their land. Others in the area had been offered several times that amount for their land. After the court decision, Sound Transit lowered its offer to the Millers to $240,000, adding even more of an insult and monetary pain to the couple.

Now they're struggling to at least get enough to have a little left over after they pay the $200,000 in legal fees they built up as they tried to protect their interests.

At agricultural meetings this winter there is growing frustration being expressed about how valuable agricultural land is being so easily stolen from farmers and ranchers.

Government thieves
Stolen is the right term, not bought. The agricultural community feels it doesn't have enough input into what happens to the land, nor is there fair compensation being offered.

Now is the time to urge and support politicians who may work to change eminent domain laws and practices.

In Washington state, Gov. Chris Gregoire and State Attorney General Rob McKenna are working on legislation that proposes that if a local government considers acquiring property by eminent domain, it needs to send a certified letter to the property owner with notification of an open public meeting to decide the issue and also publish a short newspaper legal notice.

These are good first steps, but it is already too late to help the Millers.

AFBF's policy statement offers some other ways to protect farmland from eminent domain, but ultimately, these land negotiations should be done in good faith and fair compensation should be offered.

What Sound Transit did was disgusting and done in bad faith. It was also deeply immoral, despite what a court ruled about its legality.

It's time to speak up for the land that is valued for agriculture before it becomes more parking lots.

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Salem OR Capital Press: http://www.capitalpress.info

Eminent Domain in Long Branch - The Anzalones petition the N.J. Supreme Court: New Jersey Eminent Domain Blog, 1/20/07

By William Ward
Louis and Lillian Anzalone filed a petition this week asking the New Jersey Supreme Court to hear their appeal of Judge Lawson’s decision. The Anzalone case is fully briefed and pending oral argument in the Appellate Division, including an amicus brief filed by New Jersey’s Public Advocate Ronald Chen, who supports the conflicts of interest argument:

Appellants alleged that three members of the Long Branch City Council had potentially disqualifying conflicts of interest between their official positions and their status as shareholders, officer, and employees of the former Monmouth Community Bank, N.A. (“the Bank”), which helped to finance the redevelopment. In addition, the homeowners alleged potential conflicts involving two of the law firms that have represented the City and other actors in the redevelopment process. The trial court did not have before it a complete factual record relative to these potential conflicts, such as a full chronology of all material events, the terms of the Bank’s loans to the redevelopers, and the scope and timing of the law firms’ relationships with the City, the redevelopers, and the Bank. Without these critical facts, the trial court erred when it denied Appellants discovery and ruled that the potential conflicts were “tenuous” or not “realistic.”

The New Jersey Court Rules R2:12-2a permit a party to petition the Supreme Court directly within 10 days of the filing of the last brief:

a) Filing and Service of Motion. A motion for certification of an appeal pending unheard in the Appellate Division shall be served and filed with the Supreme Court and the Appellate Division within 10 days after the filing of all briefs with the Appellate Division. Within 5 days after service of the motion an opposing party may serve and file a statement in opposition. The motion and statement shall not exceed 5 pages. Nine copies thereof shall be filed with the Supreme Court.

The Supreme Court should take the Long Branch cases because there is an important public interest question concerning numerous documented eminent domain abuses that have occurred under the implementation of the Local Redevelopment Housing Law, N.J.S.A 40A:12A-1 et seq. The Long Branch cases present the Court with a full record of all potential problems and abuse which occurs under this statute. In October, the New Jersey Supreme Court granted certification in the case of Gallenthin Realty Development, Inc. v. Borough of Paulsboro et al (Supreme Court of New Jersey Docket No. 59,982). The question before the Court in Gallenthin involves a review of the Local Redevelopment Housing Law as it applies to that property, a 63-acre vacant parcel of land. A review of LRHL should by all rights include the City of Long Branch v. Anzalone, as it presents a more complete record of issues: i.e., attorney-developer conflicts, arbitrary interpretation of blight under the LRHL, and general failure to comply with the statutory requirements of the LRHL. If certification is granted, we expect the remaining property owners in the companion case, City of Long Branch v. Brower et al to file a similar petition with the Supreme Court. After all, these cases involve an entire neighborhood of single-family residential homes threatened with acquisition by eminent domain.

The two appeals pending from Judge Lawson’s June 22, 2006, ruling are City of Long Branch v. Anzalone and City of Long Branch v. Brower et al. The Anzalone case is pending oral argument in the Appellate Division. The Public Advocate’s brief was filed in accordance with the briefing schedule set by the court in the Anzalone case. The companion case, Brower et al, has not been briefed either by the appellants or the respondents, or the other amicus in the case, the League of Municipalities. The Public Advocate’s brief is filed in both cases and, ironically, it precedes any other briefs in the Brower case. The Brower case was delayed, in part, by frivolous motions filed by Long Branch seeking to exclude the Institute for Justice from appearing pro hac vice in their case.

Long Branch’s motion to exclude the Institute for Justice in the Brower case is part of a continuing pattern by the city, its public officials, and legal representatives to discourage opposition to the redevelopment project. Another example is the confrontation which took place in November 2006 at the League of Municipalities convention in Atlantic City between Mayor Adam Schneider and Public Advocate Ronald Chen. Schneider publicly challenged Chen as he was about to speak at one of the seminars and criticized both Chen’s understanding of Judge Lawson’s opinion and the participation of the Public Advocate in these cases. This was a blatant attempt by the mayor to intimidate the public Advocate and it did not succeed. The Institute for Justice and the New Jersey Public Advocate represent two groups which are concerned with eminent domain abuse. City officials and their counsel have demonstrated a mean-spirited and public attack on the attorneys who defend property owners against eminent domain abuse. This type of intimidation tactic should not be countenanced by the Courts. Judge Sylvia Pressler wrote in Lobiondo v. Schwarz (A-6096-5T1):

After all, public participation in issues of public concern is at the very essence of democracy. As the United States Supreme Court expressed in New York Times v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686, 701 (1964), we have a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

Other states have adopted legislation so called “anti- slap” statutes which are intended to make it difficult for plaintiffs to bring frivolous claims against defendants who speak out on public issues. If presented with the question, the courts should comment on the tactics adopted by the City of Long Branch in these matters. The Star Ledger hit the nail on the head when it titled a column by Paul Mulshine, "In Long Branch, government is the real blight."

The Supreme Court should take the Long Branch cases for the same reason stated in the Gallenthin brief:

This is the first case this Court has reviewed under the 1992 Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq.("LRHL"). There are significant unanswered questions raised by the increasing use – and perceived abuse – of the LRHL to take land that does not meet any reasonable test of what constitutes a "blighted area" under N.J. Const. art. VIII, §3, ¶1, and transfer it to private developers. If the lower court opinions stand, then there will be virtually no check or limits on what kinds of property may be designated an “area in need of redevelopment,” and no meaningful judicial review of whether such designations are supported by “substantial evidence.”

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New Jersey Eminent Domain Blog: http://www.njeminentdomain.com

Eminent domain bill emerges: Casper WY Star-Tribune, 1/19/07

By Joan Barron
If House Bill 124 passes the Legislature, Wyoming city governments will be barred from using eminent domain powers to take private property for economic development.

The House Agriculture, Public Lands and Water Resources Committee adopted the bill unanimously Thursday.

The proposal is expected to generate considerable debate when it goes to the floor of the House. It is largely the product of a coalition of agriculture and industry representatives.

Several people who worked on the bill said Thursday they are generally pleased with the committee's work, although they didn't get everything they wanted.

"This shows when people get together we can solve these issues," said Rep. Doug Samuelson, R-Cheyenne, the committee chairman.

The bill was drafted in response to the U.S. Supreme Court's decision in a case from New London, Conn. The court said local government can take private property for the purpose of economic development.

Samuelson said Thursday the measure exempts the Wyoming Pipeline Authority and the Wyoming Infrastructure Authority from the prohibition. Both entities can build pipelines and transmission lines for transfer to private entities to own and operate.

In response to complaints from landowners, the bill requires a company, as proof of its good-faith negotiations, to make written notice to the landowner at least 90 days before beginning eminent domain proceedings.

The landowners are required to reply to a written offer within 60 days.

Samuelson said the committee wanted specific directions for the "taker" to serve notice of an eminent domain action to the affected landowner.

Although many people said the state's existing law is working well, "case law is the problem," Samuelson said.

Landowners in the past, he said, have rarely been successful in challenging these actions in court. As a result, they are reluctant to pay the cost of a legal action.

Ken Hamilton of the Wyoming Farm Bureau, a coalition member, said the committee improved the bill, "although industry may not agree with me."

Hamilton said a couple of the committee amendments that were opposed by industry may get the bill killed.

"My comments before the committee have been, 'We need something that can get through this body and get by the governor,'" Hamilton said.

Bruce Hinchey of the Petroleum Association of Wyoming, a coalition member, said industry opposes an amendment adopted Friday that allows a landowner attorney fees if a court-ordered jury decides the company didn't negotiate in good faith.

Traditionally, judges have handled these cases without juries.

Because jury cases can take two years to get to trial, the provision could delay an industrial development.

"We feel that's kind of like a lawyer feed bill," Hinchey said. "They can hold things up until the last minute and then tell the landowner to settle, and then they can get their attorney fees."

"We're going to work on that," he added.

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, a coalition member, said he and most of the 30 coalition members are generally pleased with the bill as it came out of committee.

"I think it does take care of the (U.S. Supreme Court) case," Magagna said.

The committee also took out of the bill Friday some compensation provisions that were unacceptable to the coalition.

The committee added in a provision at the agriculture group's request to allow a court to return to a property owner a residence condemned by a municipality for a public building if it isn't built in 10 years.

Laurie Goodman of the Landowners Association of Wyoming, a group that includes urban, rural and business property owners, said all the legislators seem to embrace a desire to respond to private property owners.

"In this case, the public has got to pay attention to the details. It's their property that's at risk," Goodman said.

"Compromises will be made, and property owners have to vigilantly watch that the language that comes out actually protects private property rights," she added.

Eminent domain gives government the power to force access to private land through easement, lease or sale for public use, and by private companies to obtain easements for natural gas and oil pipelines, and electrical power lines.

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Casper WY Star-Tribune: http://www.casperstartribune.net

Dems Put Eminent Domain Reform On Back Burner: Hartford CT Courant, 1/19/07

By Brian Lockhart
After the 2005 U.S. Supreme Court ruling backing New London's use of eminent domain, [Connecticut] House Speaker James Amann asked cities to delay planned seizures of private property until the General Assembly reformed the state's eminent domain laws.

The 2006 session ended last May without an agreement. Yesterday, when Amann and his caucus unveiled their 2007 legislative priorities at the Capitol, the words "eminent domain reform" appeared nowhere on the poster-boards or in the packets provided for the media.

Instead, House Democrats focused on initiatives regarding health care, energy, smart growth, transportation, property tax relief and public safety.

Amann, D-Milford, later said eminent domain reform has not been forgotten. But he said it was listed among secondary, or so-called "tier two" initiatives, following an internal poll of caucus priorities.

"We have so many challenges," Amann said, adding he no longer expects the moratorium to be followed.

The news came as a disappointment to Nancy Esposito, whose Norwalk business, Casey's Sheet Metal Service, is located within a targeted redevelopment area.

Esposito said when the Norwalk Common Council sought to pass eminent domain reforms, opponents argued they should wait for the state to take action.

Esposito said Amann and other legislators are mistaken if they believe constituents are no longer concerned about losing their homes and businesses.

"I'm in the midst of this whole issue in a big way," Esposito said. "I have a lot of contact with the public and hear from people time and time again (who are) totally outraged."

Despite its low ranking among House Democrats' priorities, House Republicans and Senate Democrats yesterday said the General Assembly should take up the issue of property seizures this session.

"It's unfortunate to hear eminent domain is a 'tier two' problem," said House Minority Leader Lawrence Cafero, R-Norwalk. "The real stick in the eye is a case born here in Connecticut made eminent domain a national issue."

Amann's voluntary moratorium on property seizures, originally requested of cities and towns in July 2005, was a response to the U.S. Supreme Court's decision upholding New London's right to take private homes for economic development.

"I don't want to speak for the House because they certainly have their own priorities. But it doesn't mean the issue's dead just because it doesn't make 'the top 10,'" state Sen. Bob Duff, D-Norwalk, said. "My sense is we all want to get something done on it."

During last fall's re-election campaign, Duff and Republican opponent Fred Wilms sparred on how to address concerns about eminent domain. Duff at the time said the legislature has "got to send a signal to homeowners in the state their property is safe and secure" by refining the definition of a blighted property.

State Sen. Andrew McDonald, D-Stamford, said as co-chairman of the joint Judiciary Committee he plans to "take another run" at passing a compromise bill to reform eminent domain. But McDonald said he understood why Amann and House Democrats had not mentioned it among their priorities.

"It's an important issue in the session. But there are other issues that have more immediate impact on the entire population of the state, such as energy, the education-cost-sharing formula and universal health care," McDonald said yesterday. "You've got to remember, (the New London case) gained a lot of notoriety but involved seven or eight plaintiffs."

Land-use attorney Edmund Schmidt, whose clients include property owners within some of Norwalk's redevelopment areas, said yesterday he is confident the General Assembly has not abandoned its efforts to reform eminent domain laws.

Schmidt during the 1990s served as political adviser and senior house counsel to former House Speaker Moira Lyons, D-Stamford. Last year he was hired by Curtis, Brinckerhoff & Barrett, which successfully defended Curley's Diner in Stamford from that city's efforts to seize it through eminent domain.

"There's 151 members of the House and 106 of the Democratic caucus. The only issues that emerge at the top are the ones common to all of them. This is more of an issue for cities," Schmidt said. "But I'm still reasonably encouraged the General Assembly will deal with the issue. . . . The fact it has bipartisan support greatly enhances (any) chance of passage."

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Hartford CT Courant: http://www.courant.com

Clayton landowners lose in eminent domain battle: St Louis MO Post-Dispatch, 1/19/07

By William C. Lhotka
A judge gave Centene Plaza Redevelopment Corp. the go-ahead today to use condemnation powers to acquire three properties in the heart of Clayton for its proposed $190 million office and retail project.

St. Louis County Circuit Judge James R. Hartenbach ruled in favor of the company and Clayton in a dispute with landowners who opposed the use of eminent domain to take their businesses.

Hartenbach said both the city and Centene had acted properly and had followed Missouri law in the procedures leading to condemnation.

Centene has already purchased the former Library Limited property at Hanley and Forsyth Boulevard for $12.25 million and is seeking three properties west of that building. It already has obtained two buildings on Forsyth.

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St Louis MO Post-Dispatch: http://www.stltoday.com

NFTA, landowner in eminent domain struggle: Medina NY Journal Register, 1/18/07

Improved sight lines needed, authority says
By Jill Terreri
An eminent domain struggle is brewing between operators of the Niagara Falls International Airport and a local landowner.

The struggle is not over a building or even a piece of land. It’s over the tops of trees.

But for the owners of the property, the trees aren’t the issue. If they can’t build a building taller than the shortened trees, they don’t think the land has any development potential at all, according to their attorney.

The land, 31 undeveloped acres next to the southwest boundary of the airport, has been in the Talarico family since 1959. It was acquired by Victor Talarico Sr. with the hope that it would be developed as the airport’s passenger and cargo operations grew.

On Thursday, the NFTA’s Aviation Committee agreed to acquire the easements by eminent domain. The full NFTA board must approve the action on Monday.

The Talaricos’ attorney, Mark McNamara of Hiscock and Barclay, maintains that the NFTA did not follow the law when it began eminent domain proceedings. Specifically, McNamara says the NFTA never said how high the trees and any subsequent development must be to comply with the NFTA’s wishes. He also said the NFTA has not proved the tree-trimming is necessary.

The NFTA is seeking to trim the trees in order to increase visibility for the air traffic controllers and pilots. The Federal Aviation Administration has ordered the NFTA to improve the sight lines, NFTA officials said.

If the sight lines are not improved, the runway would need to be shortened, according to Aviation Director William Vanecek.

A similar request by the NFTA of the LaSalle Sportsman’s Club was not met with formal protest.

If the Talaricos decide to fight the action, the lawsuit would land in the Appellate Division, which has original jurisdiction over eminent domain issues.

“The Talaricos will have to evaluate their options,” McNamara said.

Efforts to contact Samuel Talarico were unsuccessful Thursday.

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Medina NY Journal Register: http://www.journal-register.com

Council Approves Measure Against Eminent Domain: The Arcadia CA Weekly, 1/18/07

Measure B will appear on the May 8 special election ballot
By Traci Kratzer
The Arcadia City Council unanimously approved a measure that would prohibit the city and redevelopment agency from using eminent domain to acquire private property.

The council’s decision to draft its own measure is a result of the continuing battle that has ensued between the city and business owner Manny Romero, who owns Rod’s Grill on the corner of Morlan Place and Huntington Drive.

Rod’s Grill is one of the four businesses located on 3.6 acres of desired land the city has been in negotiations with to purchase for the purpose of expanding the RUSNAK/Arcadia Mercedez Benz dealership on Huntington Drive. The other three businesses include the Arcadia Public Storage, the Church of Arcadia and a vacant triangular lot.

The redevelopment agency closed escrow with Arcadia Self Storage the end of last year and has reached a tentative agreement with the Church of Arcadia, said Don Penman, director of development services.

Last year, Romero submitted an initiative to the city that would prohibit the sale, storage and repair of new cars from being established on that block as well as establishing a two year moratorium on existing auto-related uses. The city council adopted a resolution on November 21 ordering a special election for that measure, called Measure A, on May 8.

If Measure A passes, city staff believes that it would likely prohibit the Rusnak expansion and affect the amount of revenue coming into the city.

If the city’s measure is passed by the voters on May 8, the measure, called Measure B, would first amend the Arcadia Municipal Code to (1) eliminate the use of eminent domain for purposes of taking private property for private use, (2) promote economic development, (3) protect existing land uses in the central business district Zone, and (4) promote community development.

In the likelihood that both measures receive enough votes to pass, then the initiative that receives the most votes would prevail.

“This is a historic step being taken by the city council,” said council member Bob Harbicht. “It shows that the council is listening to the will of the voters. Eminent domain has been a hot button issue in this city for a long time and by adopting this resolution we are saying, ‘do you want to eliminate eminent domain.’”

In November, the council rescinded all prior offers to purchase Rod’s Grill for the purpose of expanding the RUSNAK Mercedes Benz dealership with Mayor Roger Chandler stating that the council did not “want to continue to perpetuate the situation and waste staff’s time when it’s apparent that our offer is not going to be accepted.”

The last offer made by the city for the property was for $1,220,000 in March 2006, according to Penman. According to the city, citing public records, in April 2004 Romero acquired the property for $710,000.

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The Arcadia CA Weekly: http://www.coremg.net

Owner doesn't oppose Hollywood move to seize apartment buildings: South Florida Sun-Sentinel, 1/18/07

By Ihosvani Rodriguez
Hollywood [FL] City commissioners on Wednesday agreed to use eminent domain to buy private property in a neighborhood long plagued by crime.

But unlike the last time the city tried to use its authority to obtain private property, this move isn't drawing an angry reaction from the apparent owner.

The city plans to purchase two abandoned apartment buildings on the 5600 block of Wiley Street and then bring an affordable housing development to the blighted neighborhood.

Despite last year's legislative measures to toughen eminent domain rules, city officials said Wednesday they are confident they have a strong legal position because they are not forcing the sale. The owner has agreed to sell the buildings and land to the city for $1.2 million, according to officials.

"This is a voluntary sale," said Neal Herst, the city's housing director. "We are not forcing anyone to sell real estate to us."

Nicholas Camino, the apparent owner, assured commissioners on Wednesday he would not fight the eminent domain measure.

City Attorney Dan Abbott said the city needs eminent domain to clean up a title mess created by a mortgage fraud in the 1990s.

While Camino is the record owner of the property, Abbott said there might be other potential claims because the titles are clouded.

Nevertheless, Abbott assured commissioners the city will not be dragged into a legal dispute.

He said a lot of people may try to make claims to the money paid by the city, "but that is not our fight."

According to Abbott, the city's money will be put under the supervision of a Broward judge, who will then preside over any claims to the funds.

Since 2003, Hollywood has used eminent domain to purchase nearly every parcel surrounding the two buildings on Wiley Street, officials said.

The community was among several ensnared in a real estate fraud that left parcels and buildings vacant and boarded up.

Prosecutors said under a scheme devised by businessman James Christenson, rundown properties purchased with a trust set up in the name of property manager Howard Kratenstein were flipped to straw buyers at inflated prices supported by phony appraisals. The alleged conspirators pocketed the difference.

Many of the property owners, unable to make the mortgage payments, defaulted on the loans, leaving neighborhoods scarred with boarded-up buildings. Christenson, who was indicted in 1999, died in a car accident. Kratenstein pleaded guilty to participating in the fraud in 2001, served a prison sentence and was released in 2002.

On Wednesday, Commissioner Cathy Anderson said she feared the Wiley Street purchase would turn into another potentially costly legal tussle over eminent domain, "a PR and legal nightmare for this city."

"I can't vote for this," Anderson said. The measure passed 5-1.

Last year a Broward judge ruled against the city after it tried to obtain a family's downtown business through eminent domain. In that case, the city wanted the property to allow a developer to build a condo complex next to Young Circle.

But Commissioner Peter Bober, who represents the area, said the Wiley Street purchase is a perfect example of how eminent domain needs to be used.

"If we do nothing, we'll own all those other pieces of properties and right in the middle of this jewel, we'll have this vacant, disgusting, boarded-up building," Bober said.

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South Florida Sun-Sentinel: http://www.sun-sentinel.com

Bloomfield and Forest City cease efforts to acquire two properties: New Jersey Eminent Domain Blog, 1/18/07

By William Ward
After almost three years of litigation, good news for two property owners arrived in yesterday's mail. Bloomfield's redevelopment counsel, Catherine Tamasik, informed us that Al Lardieri's building at 622 Bloomfield Avenue and Lewis Santus' building at 77-79 Washington Street will not be acquired as part of the "Parcel 2" Redevelopment Project for Bloomfield Center by the township and their designated redeveloper, Forest City. This is a great victory for the property owners and a tribute to their perserverance.

But the legal battle is not over. Other plaintiffs in the Lardieri et al v. Bloomfield Township lawsuit remain at risk, and they will pursue a prerogative writ case to overturn the blight designation of their properties. The township has requested an additional 30 days to file their answer, and the case has been assigned for trial to Essex County Assignment Judge Patricia Costello. Judge Costello issued an opinion in 110 Washington Street v. Township of Bloomfield. This decision has been upheld unanimously by the Appellate Division and the New Jersey Supreme Court denied certification on November 17, 2006.

In order for the property owners to be assured that their properties will not be acquired for redevelopment, it will be necessary for the mayor and council to adopt a resolution de-designating these properties as "in need of redevelopment" and removing them from the plan.

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New Jersey Eminent Domain Blog: http://www.njeminentdomain.com

Federal Court Allows Developers To Demand Cash Payments Under Eminent Domain Threat: The Free Liberal, 1/16/07

"Your money or your property” may soon become the mantra of politically connected developers nationwide as the result of the U.S. Supreme Court’s announcement today that it will not consider the appeal of an eminent domain case involving attempted private extortion.

The case the Court declined to review arose out of the Village of Port Chester, N.Y., one of the nation’s worst eminent domain abusers. The Village’s chosen developer approached property owner Bart Didden and his business partner with an offer they couldn’t refuse. Because Didden planned to build a CVS on his property — land the developer coveted for a Walgreens — the developer demanded that Didden either pay him $800,000 to make him “go away” or give him an unearned 50 percent stake in the CVS development. If Didden refused, the developer would have the Village of Port Chester condemn the land for his private use. Didden rejected the bold-faced extortion. The very next day, the Village of Port Chester condemned Didden’s property through eminent domain so it could hand it over to the developer who made the threat.

The 2nd U.S. Circuit Court of Appeals approved this extortion scheme using eminent domain under the Kelo decision, a case in which the U.S. Supreme Court ruled eminent domain could be used by the government for private development—handing over one person’s home or small business to a developer who merely promises to pay more taxes or create more jobs with the land. The 2nd Circuit ruled that because this is taking place in a “redevelopment zone,” it couldn’t stop what the Village is doing.

“This abuse will only grow worse until the courts do their job and set some limits on government’s power of eminent domain,” said Dana Berliner, a senior attorney with the Institute for Justice, which represents Didden and represented the Kelo property owners. “The Court wrote in Kelo that ‘conferring a private benefit on a particular private party’ would still violate the Constitution. Well, here was that exact case — where a developer was trying to use eminent domain to extort cash from a property owner; about as private a benefit as it gets — and yet they punted. The Court will have to review an eminent domain case sometime soon, and the Institute for Justice intends to pursue this area of litigation until the rights of property owners are fully protected from this abuse of power.”

Didden expressed disappointment with the government officials responsible for protecting his rights. “What really surprised me about this whole ordeal was the total lack of concern my situation earned from the Village politicians, to the County District Attorney’s office, all the way into the federal courts. A private citizen using the government’s power is extorting me. And the government that should protect my rights is nowhere to be found. If anything, the government is making this extortion possible.”

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The Free Liberal: http://www.freeliberal.com

On The Move - Eminent Domain Protest: Central Florida News 13, 1/16/07

An angry crowd turned out in DeBary [FL] Tuesday night to try and save their homes.

A public meeting was held to talk about plans for commuter rail. However, dozens at the meeting were more concerned about a planned Saxon Boulevard extension to get rail riders from 17-92 in DeBary to the planned station. This is because about 16 homes could be bull-dozed to make way for the new street.

When asked if Jay Stanfill was there to talk about the commuter rail or the extension, Stanfill said, “The extension because it's taking over our house."

The mayor of DeBary says he believes the eminent domain issue is a done deal and that homeowners will be displaced, even with their protests.

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Central Florida News 13: http://www.cfnews13.com

When eminent domain is eminently unfair: NWITimes.com, Munster IN, 1/14/07

Opinion
by Mark Kiesling
With all apologies to the screenwriters of "Casablanca," it doesn't take much to see that the problems of four little homeowners on Summit Street in Crown Point don't amount to a hill of beans in this crazy world.

Back about 2004, the city decided it wanted the four properties just east of Main Street, saying it planned to widen Summit and improve traffic flow. Using a court-tested procedure known as eminent domain, it began proceedings to acquire the three homes and a duplex.

Eminent domain allows a government body to grab your property if it can be shown that doing so is in the public interest. The interstate was built on eminent domain.

Improving traffic flow by widening Summit was definitely in the public interest as Crown Point continues to grow in residential and business size.

Although Summit was repaved and new curbs put in, it's still only one lane in either direction at Main Street (plus the turn lane, which was there before). So what was all this about "widening?"

So much baloney, apparently. But why?

Well ... the old Merz Machine Works on North Main has been replaced by a strip mall, and the strip mall has an asphalt parking lot that needs a place for rainwater to go. So a retention pond was dug on the land where the houses once stood. An entrance to the strip mall also was cut into the Summit Street land.

So the demolition of the three homes and the duplex benefited a developer, who put a Starbucks on the corner and thus brought civilization to Crown Point.

And the homeowners? Three of the four got market value for their homes, which allowed them to try to stay in Crown Point by taking out bigger mortgages. A new law, signed by Gov. Mitch Daniels on March 24, 2006, gives homeowners 150 percent of market value plus relocation costs and was in the works when the duplex owner settled for more than his building was worth.

That law was a direct result of a June 23, 2005, U.S. Supreme Court decision that said government may take land by eminent domain even if it benefits private economic development and not for "public use."

Had that been the law of the land in 2004, Crown Point would not have needed to go through the charade of saying it was taking the homes to widen Summit Street when no such widening was planned.

It's unlikely, even unfathomable, that the U.S. Supreme Court would have considered what effect its ruling would have on four property owners 1,000 miles away. But that's the way things are. Laws and rulings are too often made without consideration (or concern) for the effects on real people.

Here's looking at your Starbucks, kid.

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NWITimes.com, Munster IN: http://nwitimes.com

Tuscaloosa mayor says UA’s growth good for city: Tuscaloosa AL News, 1/14/07

By Jason Morton
Although they say they don’t know the University of Alabama’s ultimate vision for The Strip, city leaders trust that UA’s president has the best intentions for the university - and by extension, the city.

“The university has a strong interest in not only The Strip, but its entire campus," said Tuscaloosa Mayor Walt Maddox. “The city has a vested interest in that because the university is a large, economic engine that provides thousands of jobs and nearly a billion dollars of economic impact in our metro area.

“The city and university, by that nature, have a very close relationship."

Maddox said Tuscaloosa and UA officials meet regularly to discuss public safety and commercial growth, among other issues, to coordinate efforts.

The city isn’t concerned that UA’s real estate purchases could hurt the city’s bottom line, Maddox said.

“I think it just depends on how much property is taken and how it’s redeveloped and whether that redeveloped property becomes public or private," he said. “But the university has been extremely successful in recruiting students, and that has a major impact on revenue collections.

“There’s a short-term impact and a long-term impact, and only time’s going to tell on both."

Maddox pointed to UA President Robert E. Witt’s ambitious plan to attract more students and said that alone could offset any loss in property taxes if the school bought properties on The Strip.

He said that more students would mean an economic impact for the city that includes more housing and sales taxes.

“We’re seeing that growth in the downtown, west Tuscaloosa and Alberta areas in terms of housing real estate," he said.

And although state law exempts any land owned by the university from property taxes, the buildings and other improvements can be assessed for tax purposes.

For example, UA owns the land where Publix Super Market is located. In 2006, Publix paid about $6,800 in property taxes to the city, and more than $26,000 to the state, county, school and city.

However, if the university were to buy a property and build a parking deck, those property taxes would be lost.

David Jones, owner of the Alabama Book Store, said UA officials are interested in the block that includes his store, Campus Party Store and Gallette’s bar for a possible parking deck. Those properties paid nearly $1,700 in property taxes to the city, and $6,400 to the state, county, school and city.

While both Maddox and City Councilman Lee Garrison, who represents the district that includes the university, said they don’t know the University’s long-term goals, they do want The Strip to maintain its current mixed-use designation.

Both officials also said the city has not been approached by university officials requesting the city’s aid in acquiring property through powers of eminent domain. The university has its own ability to use eminent domain, but the rules regarding colleges and city governments differ slightly.

Both entities can take land by eminent domain if it’s intended for public use, such as the city has done with buildings in its Downtown Urban Renewal and Redevelopment Plan, where a parking deck, city park and new federal courthouse are planned for construction.

“I would only vote to condemn a structure on The Strip - or anywhere else in the city - if the intent is for a public purpose," Garrison said, “not as a conduit for private development."

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Tuscaloosa AL News: http://www.tuscaloosanews.com

Court-OK'd Theft: New York NY Post, 1/16/07

If judges wink at politicians land grabs...
Letter to the Editor
By Bart Didden
THE U.S. Supreme Court may have ruled that private property could be taken for public benefits like jobs or taxes, but what about for outright extortion? Can my private property be taken because I refused to pay off a private developer who wanted land I owned and planned to develop? As remarkable as it sounds, two federal courts in New York already allowed what amounts to outright eminent-domain extortion.

In 2003, a developer approached my business partner and me, saying we could either pay him $800,000 or give him a 50 percent interest in a business we were about to develop, or he would cause the Village of Port Chester to take our property through eminent domain.

Outraged, we refused.

The very next day, Port Chester condemned our property.

(Both sides' attorneys were present when we turned down that offer - and attorneys, as officers of the court, must tell the truth. My attorney will swear this is what occurred and the developer's attorney has never once refuted my account of what transpired. What's more, the developer admitted in a court document that he made this offer.)

And if you think this abuse of power couldn't get more outrageous, consider this fact: I had an agreement to develop a pharmacy on my land, and had a plan fully approved by the town government. So what is the favored developer going to put up if he gets his way? A pharmacy. The same exact use, only one developer (him) has political connections while the other developer (me) has nothing but a deed to the property and constitutional rights that are supposed to be protected by the government, not abused by them.

The Institute for Justice, a Virginia-based public-interest group, came to my aid to ask the Supreme Court to look again at the issue of eminent-domain abuse and ensure that lower courts do not read the high court's Kelo precedent to mean courts can never review eminent-domain cases. The court is expected to decide any day now whether to hear my case.

Federal courts have now become basically like rubber stamps, approving any eminent-domain effort that comes before them. Shockingly, the trial court that heard my case and threw it out, and then the federal appeals court agreed, because my property was within a "redevelopment district" - a region the town had designated as subject to its eminent-domain power - the Constitution didn't protect my property from condemnation. Even though we were condemned solely because we resisted the developer's attempted extortion.

"Go to the Legislature," some might suggest. "They'll fix the problem." Well, the last time the state Legislature met to reform eminent-domain laws, the only specific property it protected from eminent domain was Deepdale Golf Course - a swank private club that is a favorite of politicians, and was threatened with eminent domain to turn it into a public course.

And that is why the courts are so important. The state and local lawmakers will continue to bow to land-hungry developers, so the courts are the only place left where an ordinary American may find protection for what rightfully belongs to them.

But until the Supreme Court takes a case like mine and sends a message to all the lower federal courts that they are not merely judicial bystanders but instead play an important role in protecting my rights, people like me will continue to find their rights under assault and their dreams lost to people with more power.

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New York NY Post: http://www.nypost.com

Ranch property condemned via Internet: Capital Press Agriculture Weekly, Salem OR, 1/12/07

Public meeting on eminent domain posted only on state agency’s website
By Cookson Beecher
Imagine this.

You're home, and everything seems right with the world.

Then, much to your surprise, you're served with papers informing you that a state agency is using eminent domain to take your property. A price is offered. In so many words, you're told, "We're going to take your property and there's nothing you can do about it."

But this can't be, you say. I was never even notified that my property was under consideration. I never had a chance to offer any input.

Oh, but yes, you did, an agency bureaucrat tells you. We posted a public meeting notice about a project that involves your property on our website. And even though we didn't specifically mention your name, your address or the property's parcel number, the website notice was adequate.

As farfetched as this scenario may sound, it's exactly what happened to Pierce County beef raisers Ken and Barbara Miller, both 68.

In their case, Sound Transit wanted a piece of property in Tacoma for a park-and-ride lot. During the public meeting that had been posted on its website, Sound Transit decided to take the Millers' property.

In a state of utter disbelief, the Millers hired attorneys and started out on a three-year legal nightmare, which so far has cost them $200,000 in attorney fees.

Much to their dismay, last year the state's Supreme Court, in a 5-4 decision, ruled that Sound Transit had given the couple adequate notice.

"While precedent on this subject is sparse," Justice Mary Fairhurst wrote for the majority, "posting on a public website is at least as likely to provide the community with notice as the specifically approved notice given to a newspaper."

Miller said that until this happened to them, her husband had never used the Internet.

According to a Pew Internet & America Life Project survey conducted Feb. 15-April 6, 2006, only 42 percent of American homes have broadband connections.

The Millers live and run cows on 30 acres about a mile from the targeted property.

At one time, they had a lumber remanufacturing mill on the targeted site and produced finished lumber for customers across the nation and even in Australia. They've owned the site for 30 years.

Zoned heavy industrial, the nearly 1 1/4-acre parcel has all the necessary improvements - including almost 500 feet of street access and 300 feet of rail frontage - for a lumber-related or other industrial-type business. It also has a house, which can be used as an office, on it.

"There's no other land in the area we can replace it with," Barbara Miller said.

Originally, Sound Transit had offered the couple $500,000 for the piece, far less than it had offered for another similar piece. After the state Supreme Court decision, it lowered its offer to $240,000.

When the Millers asked the court to reconsider the case, the court denied their request.

Their only hope now is a jury compensation trial in May, which will decide on a fair price for the property. The Millers hope that the price will be high enough for them to be able to pay their legal bills and have some left over.

"This has consumed our lives," Barbara Miller said. "We both have health problems now. We haven't slept well for three years. We had no idea this could happen to us. But now we know it can happen to anyone. They're getting away with it because our Supreme Court is allowing it to happen."

The Millers aren't the only ones dismayed by this turn of events. The outcry has made its way to the top of the state's political ladder. Gov. Chris Gregoire and State Attorney General Rob McKenna have reacted by crafting joint-request legislation.

Under it, a local government considering the acquisition of properties by eminent domain will need to:

• Send a certified letter (costing $4.64) to the property owner of record on the county tax rolls notifying him of the open public meeting called to decide the issue.
  
• Publish a short newspaper legal notice.

In a press release, McKenna said it's not asking too much to require that a certified letter be sent.

"We shouldn't expect people to click through hundreds of Web pages every week to make sure their property isn't being considered for condemnation," he said.

House Majority Leader Lynn Kessler, D-Hoquiam, who will be one of the bill's sponsors, said "it's frightening" to think that what happened to the Millers could happen to anyone.

"Every story I've heard about similar situations is a nightmare," she said.

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Capital Press Agriculture Weekly, Salem OR: http://www.capitalpress.com

House OKs Proposal For Vote On Eminent Domain Limits: WLOX-TV13, Biloxi MS, 1/12/07

The Mississippi House on Friday approved a proposed constitutional amendment to restrict the government's ability to take private property for economic development.

Under the proposal, which passed 116-2, the issue would be placed before Mississippi voters at the Nov. 6 election. The proposal now goes to the Senate.

The House on Jan. 3 approved a bill that says governments could not take private land for retail, industrial or residential developments, to increase the local tax base or to give the land to any public-private partnership. Private land could still be taken for public purposes such as building roads or levees.

Eminent domain became a prominent issue in several states after the U.S. Supreme Court ruled in June 2005 that New London, Conn., could take a group of older, waterfront homes and give the land to a private developer for offices, a hotel and convention center. The city was hoping for an economic boost from the new development.

The proposals are House Concurrent Resolution 18 and House Bill 300.

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WLOX-TV13, Biloxi MS: http://www.wlox.com

Lawmakers create plan serving both rural and ubran interests: Mason City IA Globe Gazette, 1/13/07

By Dan Gearino
In Iowa politics, the greatest conflict isn’t necessarily between Democrats and Republicans, it’s between urban and rural. At least that’s what a coalition of legislators and city leaders believe — and they’re sick of it.

The group is putting together a five-point plan aimed at serving the mutual interests of urban and rural economic development.

“As rural Iowa grows, all of Iowa benefits, and as urban Iowa grows, all of Iowa benefits. We need to put programs together than can benefit these communities simultaneously,” said Sen. Bill Dotzler, D-Waterloo, one of the lead sponsors of the plan.

A preliminary draft of the plan includes the following elements:

• A tripling of the tax credit for historic preservation and cultural districts.
  
• A sales tax exemption for art sold in designated cultural districts.
  
• A new program for job training in areas with high unemployment or a shortage of skilled workers.
  
• A doubling of the funding for the Main Street program, which helps communities revitalize old downtowns.

And then there’s the controversial part: The plan would allow local governments to seize private property for the purpose of connecting existing recreational trails. To pay for the land acquisition, the state would sell bonds and make a $2.9 million payment on the bonds each year.

The total cost for all of this would be in the neighborhood of $20 million per year. A precise cost estimate is not yet available.

Urban vs. rural
The idea of urban-rural cooperation gets a lot of talk, but has little to show for it. Rural legislators complain that the state’s largest economic development program, the Iowa Values Fund, gives a grossly disproportionate share of benefits to urban areas. At the same time, urban legislators complain that the state’s highway funding system devotes way too much money to rural roads and not enough to the areas with the most traffic.

This tension between urban and rural plays out in just about every major issue before the legislature.

In an attempt to get beyond this conflict, a group gathered last September in Marshalltown for a day of seminars and policy discussions. This was the meeting that led to the set of proposals.

“It’s an acknowledgement that small towns and big-city neighborhoods have more in common than they have dissimilar,” said Sen. Jack Hatch, D-Des Moines, one of the organizers of the event.

Among the participants were the mayors of Carlisle, Marshalltown, Mason City, Newton and Waterloo; city council members or staff members from Davenport, Des Moines and Marion; and state legislators.

Mason City Mayor Roger Bang said he thinks there are two Iowas in terms of economic growth — one that includes rapidly growing urban and suburban areas, and the “other Iowa” that includes the small- and medium-size cities and rural areas. He said the Marshalltown conference was worthwhile because it sought to bring down those divisions.

“Mason City is part of the other Iowa,” he said. “Our main challenge is attempting to grow the population and grow employment, which hopefully grows income for people in our areas. Anything we can do to assist that growth, we should be doing.”

He said the work force training portion of the plan would help his city meet those goals.

Bang also is a big supporter of expanding historic tax credits.

Eminent domain revisited
Most parts of new plan will likely have wide support. The big exception is the proposed changes to eminent domain.

Former Gov. Tom Vilsack signed a bill in his first term that bans local governments from seizing land for recreational trails. And last year, the legislature overwhelmingly approved wide-ranging restrictions on eminent domain, a measure that became law through an override of a Vilsack veto. Both measures had strong support from the Iowa Farm Bureau.

Considering this recent history, the trails proposal faces an uphill fight, but the people behind the plan say the fight is worthwhile.

Marshalltown Mayor Gene Beach points to two bike trails in his region, one that goes through the center of town and one in a rural area just outside the city. The trails are just a few miles away from connecting with each other, but the land in-between is owned by a farmer who refuses to sell.

“One of the greatest things we can do is provide people with opportunities to walk and to bike,” Beach said.

He thinks recreational trails are an amenity that can help attract new residents and tourists, but the trails need to be long and they need to go somewhere.

Any attempt to change eminent domain rules will face stiff opposition from the Farm Bureau. Christina Gruenhagen, government relations counsel for the group, said she can’t comment on the new proposal because she hasn’t seen it.

Speaking in general about eminent domain for trails, she said the Farm Bureau “would certainly oppose any attempt to erode private property rights.”

Bang said the proposed change in eminent domain is one part of the plan he can’t support. He notes that Mason City has been able to construct a large trail system over the last few years without seizing farm land.

“We continue to develop (trails) even more fully,” he said.

Dotzler strongly supports the trails proposal, but won’t let it derail the whole plan if he senses strong opposition.

“This bill is not going to hang or die on one single provision,” he said.

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Mason City IA Globe Gazette: http://www.globegazette.com

Respect new eminent domain law: Miami FL Herald, 1/13/07

The [Hollywood FL] City Commission is again considering using eminent domain, this time to clear a blighted city block for an affordable-housing project. If the commission votes to use eminent domain in this case, it would challenge a new state law restricting local governments' use of eminent domain. The commission should seek more legal research before taking a deciding vote.

Public purposes
Eminent domain used to be Hollywood's preferred tool for obtaining properties to spur redevelopment. Before the law changed, cities could force property sales to clear land for private developers. But last spring the Legislature restricted cities' use of eminent domain to public purposes, such as schools or roads. Last November, state voters bolstered that law with a constitutional amendment.

Also, in June of last year, Hollywood lost an eminent-domain case when a circuit court judge upheld a property owner who challenged the forced sale of his business. The judge ruled that the property wasn't needed as part of a proposed $100 million condominium-retail complex.

Proponents of the new plan argue that this would be a ''friendly'' takeover, which the new law allows when the property owner doesn't object and is properly compensated. And, they say, the land wouldn't be transferred to a private developer but given to owners who buy the planned homes. Some legal experts warn that even though the city's intent is worthy - replacing blight with reasonably priced homes - it isn't a public use. The law prohibits the transfer of condemned property to any private party, which presumably includes individual homeowners.

Two more lots
The lots on the block were involved in a property scam. When the scam collapsed, the 14 properties had numerous owners, often with conflicting claims. For four years the city has been painstakingly tracking down owners to buy them out, and it has successfully used eminent domain to take nine properties. There are just two more lots to obtain, which is why the city is considering eminent domain again. But the new rules complicate this plan. The commission should do its homework before taking on the new law so that the city doesn't end up in another costly lawsuit.

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Miami FL Herald: http://www.miami.com/mld/miamiherald

PRA may sue council: Pawtucket RI Times, 1/13/07

By Douglas Hadden
In 2006, it was the School Committee suing the City Council for more education funding, then the council suing school officials over the proposed deal to purchase the downtown former Registry building.

Now welcome to 2007, and again when it comes to lawyers, don't leave home without yours, if you're a city official.

In the newest move, it appears the Pawtucket Redevelopment Agency appears determined to snatch yet one more piece of city-on-city litigation - though this time from the jaws of a budding compromise on the controversial depot issue.

"I think that's right," Councilor Robert Carr, who is potentially being sued along with the rest of the council for an eminent domain vote on the depot property last month, said Friday of that characterization.

But "I'll be surprised if it ever gets to court," said Carr, himself an attorney. "I don't get it myself - even if it went to court, it's meritless. I think it's ludicrous. What would a court do? It would tell (the council) to take another vote. They can do that anyway."

PRA, in a Jan. 8 letter that began arriving in councilors' mailboxes Friday, issued notice to the City Council that it intends to take the council to court over eminent domain-related votes last month. The letter, from PRA attorney R. Kevin Horan, was addressed to Mary Bray, the new council president, and also singles out former Councilor Albert Vitali Jr.

The notice comes even as planning officials in Central Falls and Pawtucket, as well as depot developer SMPO Properties-Warwick RICS LLC and CVS, appear on the verge of striking a compromise that would save most of the depot complex while allowing a 12,000 square foot drug store to be built on the Broad Street site.

The legal action heads-up follows a unanimous vote by the PRA last month to pursue litigation on the issue.

The matter turns on the council's rejection of a PRA request for authority to seize several properties by eminent domain, including the depot property along Main Street, half of which sits in neighboring Central Falls.

At that council meeting, then-Councilor Albert Vitali Jr., whose mother had retained some financial interest in the property after it was sold to Memphis-developer Oscar "Ike" Seelbinder and his partners, voted against a parliamentary move by councilor proponents of eminent domain to table the issue, avoid defeat and perhaps fight another day when a new council took office in January.

But the tabling move failed on a tie vote. On the actual eminent domain vote, Vitali recused himself to avoid a conflict of interest but the measure still failed because it fell short of the five votes needed to enact a city ordinance, as the eminent domain action entailed.

Vitali said Friday he voted to table because PRA had, despite protests for months from councilors on both sides of the depot issue, lumped all potential properties for seizure together, in one vote. Vitali noted that early last year, PRA had refused to drop a Carson Street property from the list even after its Spanish-speaking owner, with translation help from a friend, told the council she had put $10,000 into repairs and was well along in fixing the building.

In December, "There were three other property owners (besides the depot) that deserved their time in front of the council and I didn't think it was fair to them," Vitali said. That night the council rejected the PRA's all-lumped-in eminent domain list.

"I don't know if he should have voted or not," Bray said Friday of Vitali, and questioned why the whole council might face legal action. "The vote was before us. So I don't know there was anyone on the council who had the right to say who could vote and who couldn't."

Bray said what was preferable in the depot matter was that all sides reach an acceptable compromise. "Ultimately, if we can all come to an agreeement that would be the best possible scenario for everyone," said Bray, who wants to see the depot saved because it is "such a vital part of Pawtucket."

As for what her next move might be, "I think we've been put on notice, we wait to hear what's next," Bray said. Noting that the city would have to defend council members in court for any official acts they took, she added, "All it is, is business for attorneys."

Councilor Donald Grebien, who was council president at the time of the vote and voted against eminent domain, said Friday evening he was aware of the letter but hadn't been home yet to check his mailbox.

But he also found the threatened litigation misguided. "The Redevelopment Agency is going to waste the taxpayers' money to sue the council. It makes no sense," he said.
"In my opinion," said Carr, who also voted against the property seizure authorization, "it's baseless. The courts don't have jurisdiction over ethics issues in the first place, and the state Ethics Commission process does not, by state statute, have the ability "to void a vote," he said.

The PRA's attorney, R. Kevin Horan, said the action would be in Superior Court if it went forward. He said unlike actions for monetary damages, such as when PRA late last year gave a lawsuit notice to the School Department for the lease it broke in the PRA-owned Visitors Center building when it moved out to occupy the former Registry building, there was no legal requirement "that I know of" to give the council advance notice before filing suit in Superior Court. "But I recommended they do it," he said.

On the depot front, where a 30-day demolition moratorium ends Monday, Cassidy said after meetings this week that planners for CVS are expected to bring back a revised site plan Tuesday (after the Rev. Dr. Martin Luther King Jr. holiday).

Changes all sides appear to tentatively agree on is that Broad Street would be narrowed, and demolition would at most be limited to the former baggage area where a storefront church was housed for years, and some of what has been torn down would go back up.

The main building, which Warwick RICS was going to peal back 18 feet to provide parking called for in its lease with CVS, would remain untouched.

Seelbinder, who did not attend the meetings but had representatives there, said it was his understanding Cassidy agreed to the partial demolition but Cassidy said nothing has been finalized yet from the city's standpoint, which would require signoff from Mayor James E. Doyle.

"One must ask the real dumb question," Seelbinder observed, "if we're saving the train station to put a T stop there, what kind of sense does it make to make Broad Street smaller. But we're just trying to take care of our client."

Seelbinder noted SMPO got into an eminent domain tiff before - with the federal government, when his company was building the U.S. Army Southern Command headquarters in Miami. He said SMPO offered to settle for $7 million but the government refused, and after the matter was adjudicated in court a judge ultimately awarded SMPO $12.7 million for the land the government seized.

On another depot-related front, Seelbinder said issues are proceeding smoothly with Amtrak over its concerns of how the project could potentially affect its adjacent railroad tracks and service, and he expected that process could wrap up as soon as next week.

"We just want to get down the road building a new CVS because that area needs change dramatically, and that's what the people there want and need," he said.

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Pawtucket RI Times: http://www.zwire.com