Marysville land-seize renewals draw fire(Marysville-Yuba City CA) Appeal-Democrat, 9/28/04

By Scott Bransford
Leonard Jones isn't the only Mid-Valley property owner who cringes when he hears the words eminent domain.

Jones, an owner of Speedometer Electric in East Marysville, is one of several residents opposed to Marysville's plan to renew its eminent domain powers, which expired in November 2003 and allow the city to seize blighted properties for redevelopment efforts.

At a public hearing held last week, Jones joined a group of about 25 people who protested the city's plans, voicing suspicions that officials might abuse the powers in their quest to make Marysville thrive.

"All these grandiose plans they have for downtown, they're going to run into old-time property owners that don't want to sell," Jones said Monday. "This is a big boondoggle and all it does is affect good citizens."

City Administrator Steve Casey and other officials countered that the city is just following state and federal laws which require municipalities to renew eminent domain powers every 12 years through a process of public hearings.

"I think most people don't understand it," Casey said. "Eminent domain scares a lot of people, and I think most people are afraid of the issue."

Marysville wants to have the power to exercise eminent domain within its redevelopment area, which includes Marysville's southern end, plus another patch of West Marysville. The city designated the area in the 1970s, as it pursued several renewal projects such as the construction of the Mervyn's department store at Second and D Street.

Building Mervyn's required the demolition of several historic properties, and some still consider the project a mistake that robbed downtown Marysville of its historic character. Some residents fear the city will pursue a similar campaign in its effort to eliminate blight, Casey said.

At present, Marysville is pursuing redevelopment projects that could require demolition, such as a theater development at First and D streets and a Chinese-themed retail and entertainment district proposed for downtown Marysville.

However, city officials said Monday they simply want to keep eminent domain as a tool of last resort. The city has no plans on the horizon that would involve eminent domain, Casey said Tuesday.

"We certainly understand peoples' fears, but from the staff's perspective, it's a valuable tool in the redevelopment process," Casey said. "We don't expect to use it, we don't want to use it, but that doesn't mean we shouldn't have it."

Some opponents of eminent domain also claim that eminent domain powers are an infringement on property rights.

At last Tuesday's public hearing, Loma Rica resident James White called the city's attempts to renew eminent domain "one of the most unAmerican prospects that we've had."

James White Jr., his son, said:

"We certainly don't cherish the idea of someone coming in and telling (us) what we can and cannot do with a property."

City Councilman Paul McNamara said concerned residents need to trust that city officials will use eminent powers wisely.

"I can understand their concern, but I just wish they would listen to the explanations that have been given to them," McNamara said. "(Taking a property) is a last resort and something the city would not decide to do overnight."

Casey said city attorneys are currently looking at residents' objections to eminent domain powers. The item is likely to come before the City Council for a vote at a meeting scheduled for next Tuesday, he said.

City Councilman Bill Harris doesn't want residents to have the impression that a "government land grab" is underway.

"(Eminent domain) is basically something we have to renew every 12 years," Harris said. "It's unfortunate that some of the people probably were misinformed."

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Appeal-Democrat: www.appeal-democrat.com

Masters of their Domain: West Harlem Takes on ColumbiaCity Limits Weekly, 9/28/04

Backed by Norman Siegel, local business owners fight to protect their property from eminent domain

By Bob Roberts
Standing in the parking lot of the Pearlgreen Corporation, a thriving industrial supply company located in the Manhattanville section of West Harlem, Norman Siegel declared last Wednesday, “We’re not against change — we’re against stealing as a public good!”

The September 15 press conference marked the addition of the newly created West Harlem Business Group to a broad coalition of business owners, tenants rights organizations and community activists who have vowed to challenge any attempt by Columbia University to utilize New York State’s eminent domain law to condemn and acquire properties within a 17 acre area running from 125th to 135th Streets, from Broadway to the Hudson River—the site of its proposed new campus.

Pearlgreen is one of the six holdouts represented by Siegel who have refused Columbia’s offers for their properties. Pearlgreen President Lawrence Greenberg said his company invested hundreds of thousands of dollars to expand its site and has no plans to move. “We were here when there was nothing,” he said. “Now, when things are finally getting better, we want to stay and be a part of it.”

What Siegel and WHBG fear is that Columbia will turn to the Empire State Development Corporation to side-step New York City’s Uniform Land Use Review Procedure. Whereas the city’s zoning rules require input from Community Board 9 and the ultimate approval of the City Council before any changes are approved, the condemnation of private property by ESDC through eminent domain requires far less public scrutiny.

In New York City, talk of eminent domain conjures memories of Robert Moses, the public works czar who dislocated hundreds of thousands in order to construct massive projects like the Bronx Queens Expressway, Lincoln Center, and Shea Stadium.

More recently, New York and cities around the country have drawn on a 1954 Supreme Court Decision that broadened the idea of “public good” to include the expansion of privately owned businesses at the expense of others, even if the only demonstrated public benefit was an increase in tax revenues. The expansion of the New York City Stock Exchange, the construction of the new offices of the New York Times, the proposed stadiums in Brooklyn and Manhattan’s West Side all have, or will, involve eminent domain.

As Siegel explained, “The use of eminent domain has run amok. The time has come to limit the application of the eminent domain to public use.” Across the country, property rights groups and the courts are beginning to challenge the way in which public power is used to further private interests. On July 30, the Michigan Supreme Court overturned a 1981 decision that had allowed the destruction of a residential neighborhood in order to facilitate the expansion of a General Motors plant.

The extent to which the threat of eminent domain has galvanized West Harlem was made clear at the September 23 general meeting of Community Board 9. The board voted unanimously to demand that Columbia abandon any plans to request state-authorized condemnation. Columbia did not return calls by press time.

CB 9 chair Jordi Reyes-Montblanc, who works with low-income tenants within Columbia’s expansion zone, rose to address the room. “I cannot abide this,” he said. “It will not happen. They’ll have to drag my dead body out of here first!”

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City Limits Weekly: www.citylimits.org

Skyland defenders oppose redevelopmentThe Washington Times 9/26/04

By Guy Taylor
Residents and business owners rallied Friday in Southeast against a District-backed plan to replace a decades-old shopping center with new and more high-quality stores and restaurants.

Though many residents in the community support the revitalization, opponents of the plan, including those who attended the rally at the Skyland Shopping Center, said they fear being left with nothing if the city's plan languishes or fails.

"The government should not be allowed to take our property," said Rose Rumburg, owner of Skyland Liquors and a lifelong Southeast resident "They're saying [the plaza] is a slum and blighted. It's definitely not that."

District leaders, she said, have been unclear about what will happen to the conglomeration of existing stores in the center, in the 2600 block of Naylor Road, which includes sub and pizza shops, a small grocery store, a hair salon and an auto-parts store.

What's worse, Miss Rumburg said, is that the D.C. Council has authorized the publicly chartered National Capital Revitalization Corporation to exercise eminent domain over the shops to bring about the redevelopment.

Information posted on the District's Web site says the corporation will "relocate current tenants," and the Skyland redevelopment will be "a 240,000 square foot, high-quality retail center ... co-anchored by a discount department store like a Target and a supermarket."

However, some residents say there's no evidence Target or any major store is seriously interested.

"They've got no commitments from any business to come in," said Helen Higginbotham, who lives on Naylor Road and yesterday circulated a pamphlet she had written: "Eminent Domain, An Abuse of Government in Hillside."

Some Skyland business owners said they have retained legal representation, and lawyer Elaine Mittleman said she filed a lawsuit in July claiming the manner in which the District is trying to use eminent domain is unconstitutional.

Opponents of the plan also said existing owners and tenants likely could not afford to have storefronts in a new center and that the ripple effect would be the entire neighborhood, east of the Anacostia River, would become too expensive for residents.

"They want to take it from the black people," said Joeann Thompson, 48, a resident of the 2500 block of Naylor Road who said she learned of the plan yesterday. "They should leave it just the way it is."

Among the supporters of the plan are community leaders who say the eminent domain legislation is a justified way to bring about revitalization.

Kathy Chamberlain, chairwoman of the area's Advisory Neighborhood Commission and vice president of the nearby Hillcrest Community Civic Association, said the community "pressured the City Council to pass the legislation because there is no other way to accomplish this redevelopment."

"We've been trying to work with the business owners [at Skyland] for years," she said. Mrs. Chamberlain also said some Skyland merchants will be invited back to the new shopping center.

"They're not all banished," she said. "It will depend on what types of retail will work. Perhaps one of the hair salons would be invited to come back, for example."

Mrs. Chamberlain said one of the problems with the shopping center is that it has many different owners and no central management. "And we've had a lot of complaints from members of the community ... about loitering, public drinking and public urination," she said.

Mrs. Chamberlain also said residents have complained about a club in the shopping center that attracts an "unwanted element" to the neighborhood.

"We deserve retail opportunities that are of a better quality than what's up there now," she said.

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The Washington Times: www.washingtontimes.com

Justices will pick up with 'mess' from last termSeattle Post-Intelligencer, 9/25/04

Potomac Watch

by Mark Helm
The Supreme Court returns to work next week to weigh whether to hear several key cases that could be the hallmarks of its new term, including whether a Connecticut city can take away a person's home to clear the way for upscale development.

The court also will consider whether to hear appeals in four cases involving displays of the Ten Commandments on public property.

The court will officially start the term on Oct. 4 by hearing oral arguments in some of the 40 cases it has already accepted.

The Connecticut case involves Susette Kelo's pink house on the Thames River in New London and whether the city of New London can take her land away and sell it to real estate developers because they promise to pay more taxes and create jobs by converting the neighborhood into trendy condominiums.

"This case hits at the heart of the American dream ... a person's home," says Gregory Garre, a former law clerk to Chief Justice William Rehnquist and a former assistant to the solicitor general. "The idea that the government can kick you out of your home because they want expensive condos in your neighborhood really scares people."

But the issue is much bigger than the fate of one house on the Thames -- businesses, developers and homeowners throughout the United States have a stake in its outcome, says Garre, who doesn't represent any party in the case.

The Constitution allows governments to take private land for "public use," also known as the eminent domain authority.

Garre says many constitutional scholars consider the phrase "public use" to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

But the Connecticut Supreme Court said the term "public use" means that a taking need only have some anticipated public benefit, such as increased tax revenues and improving the area's economy. Kelo lost in the state courts and is asking the U.S. Supreme Court to hear her case.

"If the court agrees with the Connecticut Supreme Court on the definition of 'public use,' cities would have a much easier time justifying the taking of any property," Garre says.

In one of the Ten Commandments cases, Thomas Van Orden challenged a Ten Commandments monument that has stood on the grounds of the Texas state Capitol in Austin since 1961. The 6-foot-high granite monument includes several religious and patriotic symbols, including the Star of David.

Three other cases involve displays in courthouses in McCreary County, Ky., and in schools in Adams County, Ohio, and Harlan County, Ky.

The justices already have accepted 40 cases for the term, about half the number expected to be heard for the entire session.

The court's first order of business when it returns will be to "clean up a mess left over from last term," says Donald Verrilli Jr., a Washington lawyer, referring to federal sentencing guidelines.

Federal judges throughout the country have been grappling with the legality of federal sentencing guidelines since the high court ruled on June 24 that a similar sentencing system used by the state of Washington was unconstitutional.

In that case, Blakely v. Washington, the high court ruled 5-4 that Washington state's sentencing system violated a person's right to a trial by jury because it allowed judges to make findings on factors that were never presented to jurors. Such a system lets judges increase a sentence dramatically.

The Justice Department later complained that the Blakely ruling has created chaos in the courts and confusion over "tens of thousands" of pending sentencings nationwide. In an effort to clear up pending questions, the Supreme Court agreed to hear two cases involving federal sentencing rules.

The court also will attempt to end confusion on the issue of medical marijuana. In a case involving Angel Raich of Oakland, Calif., and Diane Monson of Oroville, Calif., the court will decide whether Congress has the authority to prohibit the medical use of marijuana in states where the voters or the Legislature have approved the drug's use under a doctor's care.

The Justice Department argues that state laws making exceptions for medical marijuana are trumped by the federal law banning the use of marijuana.

But last year, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that prosecuting medical-marijuana users is unconstitutional under federal law if the pot isn't sold, transported across state lines or used for non-medicinal purposes. In another case out of Lancaster, Calif., the court will consider whether that state can segregate inmates by race during their first 60 days of incarceration. The state has defended the policy, and the 9th U.S. Circuit Court of Appeal in San Francisco has upheld it, as a sensible way to minimize interracial violence at the reception centers where inmates are housed while being screened for long-term placement.

But civil rights groups argue the policy violates the 14th Amendment's protection against racial discrimination.

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Seattle Post-Intelligencer: www.seattlepi.com

Experts' panel rejects Ardmore renewal planThe Philadelphia Inquirer, 9/24/04

The thumbs-down could doom a proposal to demolish buildings. The experts urged a more preservationist approach.

By Matthew P. Blanchard

The plan to demolish 11 buildings in downtown Ardmore suffered a likely death blow yesterday when a panel of national architecture and planning experts issued a public rejection of the idea.

The team of nine experts from the Urban Land Institute in Washington had been called in to referee a nasty dispute over the Ardmore Transit Center Plan, a $140 million proposal to remake 10 blocks of Ardmore into a vibrant urban shopping village.

The plan called for demolishing shops on the north side of the first block of East Lancaster Avenue. That provoked 200 merchants and their supporters to march in protest twice this summer. Accusations and conspiracy theories were commonplace, and public meetings often filled with rage.

After a weeklong study, the experts pronounced the proposed demolitions a mistake and urged a gradual, preservationist approach to fixing Ardmore's vacancy-plagued shopping district.

"Cities need old buildings so badly it is probably impossible for vigorous streets and districts to grow without them," panel chairman Charles R. Kendrick said, quoting a prominent urban-design guru. "This panel agrees with Jane Jacobs, which is why we think there should be no demolition."

"Sometimes," Kendrick wrote in the final report, "it's what you don't do that makes all the difference."

The report carries no legal weight but wields considerable influence by virtue of brain power. The nine experts are prominent architects, traffic planners, real estate developers, and consultants from cities including Boston; Fort Worth, Texas; Cincinnati; and Baltimore. They were invited by township government to provide a fresh look at the project.

The decision rests with the 14 Lower Merion commissioners. The commissioners' president, Joseph Manko, called the findings in the report "excellent." He said he favored abandoning demolition and predicted that many of his fellow commissioners would agree.

Begun in public "visioning" sessions last year, the transit center plan has more recently been championed by township planning staff as local resistance grew intense. Yesterday's report opens a window for all sides to reject parts of the plan that involve eminent domain or demolition.

Merchants celebrated, some after months of fretting about where they would go if forced to sell their properties. Betty Foo has owned and run Hu-Nan Restaurant at 47 E. Lancaster Ave. for 30 years, working 362 days a year.

"This is incredible. We have been under such stress for such a long time," she said. "Now, we will definitely do whatever we can to work with the township."

There is much to do. Of the original six proposals in the plan, the team urged immediate work on three:

Build a parking structure on the lot occupied by Main Line Honda, east of the Township Building.

Replace Ardmore's low, bunkerlike train station with a grander structure and fashion a narrow "town square" on Station Avenue.

Restore building facades on Lancaster Avenue, many of which are scarred by neglect or ham-handed renovations.

The remaining proposals can wait, the panel said.

Quoting author Malcolm Gladwell, panelists stressed that instead of dramatic demolitions, Ardmore should gently push itself toward the "tipping point," at which the accumulation of small improvements will precipitate a turnaround for businesses.

"Other communities would give their eyeteeth to have what Ardmore has: a train station, a historic downtown, Suburban Square," said panelist Christopher Kurz, a real estate financier from Baltimore.

"It's a great town," added panelist Sandra Kulli, a real estate marketing consultant from Malibu, Calif. "We think the tipping point is very close."

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The Philadelphia Inquirer: www.philly.com

Jury judges price of Norwood homeThe Cincinnati Enquirer, 9/25/04

First of five in eminent-domain battle

By Sharon Coolidge
A Hamilton County jury Friday put a price tag on the first of five properties at the heart of a two-year eminent domain battle in Norwood being watched nationally.

Jurors said Joe Horney's rental home on Atlantic Avenue is worth $233,000, which is $125,000 less than the $358,000 he argued that his property is worth. But the jury's value is $43,000 more than the $190,000 the city offered to pay for it so it could be torn down to make way for a high-end development.

The triangular-shaped neighborhood where Horney's home is located is at the center of a legal tug of war pitting the city of Norwood, 66 property owners and the developers of the proposed Rookwood Exchange against Horney and four other property owners and the Institute for Justice, a civil-liberties law firm in Washington, D.C.

Horney and the four other owners, including three businesses and another homeowner, challenged Norwood's use of a state law used to seize their properties in order to turn them over to Jeffrey R. Anderson Real Estate and the Miller-Valentine Group.

The developers want to build the Rookwood Exchange, a $125 million complex of offices, shops, housing and restaurants. The homes and the businesses on all 71 properties in the neighborhood would have to be demolished for the project, between Edwards Road and Interstate 71.

In June, a Hamilton County judge upheld Norwood's right to seize the property.

The jury's verdict Friday means he is the first of the five who can appeal that judge's decision to another court, which will continue the legal battle and delay the development.

Horney will appeal the eminent-domain action in 30 days, but the appeals court might wait to hear all five cases at once, his lawyer in the eminent-domain action, Scott Bullock, said.

"I didn't lose my house today," Horney said. "This issue goes on.

"You can't place a value on something you don't want to sell. Now I can focus on the city's right to take my property."

The other property-value hearings, which happen one at a time, are expected to be completed by mid-November.

Lawyer Tim Burke, who represents Norwood in the case, said the city won't challenge the jury's verdict.

"It's close enough to what was offered that it wouldn't be economical to appeal," Burke said.

The Institute for Justice, which is representing the property owners for free, wants to appeal, which lets them again challenge a city's use of using eminent domain to take properties from their owners.

But first, according to Ohio law, juries must determine the price Norwood must pay for the properties.

Jurors are asked to determine the property's "best market value."

Horney and his wife, Carol Gooch, bought the property in 1986 for $63,000, always intending it to be a rental property. Since then, it has increased in value, he said. The real-estate developer earlier offered the couple $200,000, which they rejected.

The eight-person jury deliberated a little more than five hours before arriving on a value.

The sticking point came when jurors looked at how much income the property could generate in the coming years, said one of the jurors, Pam Brown, a 47-year-old Forest Park woman.

Two female jurors, both of whom wanted Norwood to pay Horney $300,000, abstained from voting. In the hearing, Ohio law requires only six members to come to an agreement.

One juror suggested Norwood pay $180,000, the amount the house was refinanced for last year, Brown said.

Others, she said, wanted the city to pay $260,000, and one juror refused to go lower than $240,000.

In the end, the jurors took the dollar amount each believed Norwood should pay Horney and averaged them together.

"That's how we came up with $233,000," Brown said.

After juries determine the selling price of each of the five properties, the Institute of Justice will file its appeal.

Horney and the other holdouts say they will continue to appeal and are prepared to take their case to the U.S. Supreme Court if necessary.

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The Cincinnati Enquirer: www.enquirer.com

Many upset in SoutheastThe Washington Times, 9/24/04

By Jon Siegel
It came like a blizzard on a hot summer's day. And was about as welcome.

Merchants and residents in the Southeast neighborhood were stunned to learn that their community on the Anacostia River was chosen as the preferred site for a Major League Baseball ballpark by District officials earlier this week.

People in the largely industrial community, which also has a small number of row houses, were shocked and saddened by the news. They now face the prospect of losing their businesses and homes should the city exercise eminent domain to take over the 20 acres to build a stadium, which is expected to cost more than $400 million.

"This is really upsetting," said Bob Siegel, a resident who owns 11 properties in the targeted area. "I might fight it. The city is going to have to contend with the best eminent domain lawyers. I don't want to move. It's happening too fast."

The ballpark site near South Capitol and M streets was thought to be the third choice behind a New York Avenue NE site and the RFK Stadium property. The Southeast location is now expected to be the new home of the Montreal Expos if Major League Baseball decides to move the club to Washington.

Eung Joon Chung was forced to move his auto transmission repair franchise to South Capitol Street south of N Street less than three years ago after eminent domain took his previous location to put up a big building. Now he wonders if he can keep his small business since AAMCO assigns him a specific district and he is unsure if there is another suitable location where he won't infringe on another franchiser's territory.

"I spent $150,000 here," Chung said of the current site. "Now I might have to move to another place."

The refrain was similar in the small but tightly knit community, which includes some 25 businesses and 11 townhouses. Calvin Reid, whose company does commercial building, fears businesses like Atlas Manufacturing will be chased out of the city.

"Industrial commercial space is already limited," said Reid, 44, while surveying his business at Half and O streets. "To displace blue-collar businesses is a mistake. ... Mayor [Anthony Williams] doesn't have a clue about the local business community. He is only interested in big business."

Rose Butler is concerned about losing her row house on N Street where she has raised seven children since 1957. Butler, 64, is in favor of baseball coming to Washington but not if it destroys her community.

"I guess I can't stop it," Butler said while watching one of her 17 grandchildren in the two-story house yesterday. "I love it here. I have been here all my life. I can't imagine living anywhere else."

Butler is one of many who question the city's decision to choose her community over the previously front-running site at RFK.

"Why spend a lot of money for something that is already here?" she said. "It seems ridiculous to me."

Siegel also is distressed about the possibility of losing his home of nearly 30 years. The civic leader owns a shop called Glorious Health and Amusements that sells pornographic magazines and videos catering to gays.

"The businesses I am the landlord of cannot be moved anywhere else," he said. "This strip for 30 years has been a strong segment of gay life. I am proud of that. My hands are tied as to what to do right now."

The frustration was perhaps best summed up by Michael Parker, who took a break from his job as facilities manager at the Washington Sculpture Center to walk a dog along Half Street. His nonprofit business recently has spent about $200,000 in upgrades.

"We go to every community meeting, but we heard about [the site choice] in the newspapers," Parker said. "They didn't want to give us time to get armed and fight back. It was out of the blue to target this area."

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The Washington Times: www.washingtontimes.com

United Front Opposes Use of Eminent Domain at Community Board 9 MeetingColumbia (University) Daily Spectator, 9/24/04

In a rare 29-0 vote, Community Board 9 opposed Columbia's use of eminent domain on neighborhood buildings

By Z.L.R. Stavis
The voices of Harlem business owners and residents reverberated in unison last night, as members of Community Board 9 unanimously voted to oppose the potential use of eminent domain in Columbia's expansion into Manhattanville.

"I don't think I've ever seen such unanimity," said Secretary Theodore Kovaleff.

The resolution passed with all 29 members voting for it. "29 to 0; I've never seen better," said Norman Siegel, an attorney for the West Harlem Business Coalition and a prominent civil liberties lawyer.

"I've never seen that in New York. That's the writing on the wall. This will send a strong message to Columbia that we're fighting back."

The board passed a resolution to recommend to the city not to use eminent domain, a legal path by which the city can forcibly purchase properties to be cleared for public use. Columbia is allegedly urging the city to use eminent domain to make way for its Manhattanville expansion plan, which includes the area between 125th and 133rd Streets between Broadway and 12th Avenue.

"Eminent domain has been abused for over 25 years," Siegel said. "It is for public use, not private gain. Public use is a library, a public school, not a private school and not for private use."

Twenty community members also expressed their support for the resolution at the meeting. LaVerne Williams works for an organization that houses Harlem artists; the non-profit recently renovated a building in Columbia's expansion area. "Hopefully Columbia will not usurp the land and will consider that Harlem needs to be Harlem and not Downtown Uptown," Williams said.

"It will not happen, only over my dead body," said Jordi Reyes-Montblanc, Chairman of Community Board 9. For what he said was the second time in 10 years, Reyes-Montblanc stepped up to the podium to speak personally on an issue. "They will have to drag my dead body to pass it. Other than that, Columbia is a nice organization," he joked.

Tom Kappner of the Coalition to Preserve Community proposed an alternative to eminent domain. "197-A Plan provides for a measured and balanced development, not a plan to bulldoze the area," Kappner said, stressing the importance of unity.

Tom Demott, also of the CPC, said, "The fact of the matter is, Columbia's trying to Godfather the community. The fact of the matter is, they're making us an offer we can refuse."

Seigel said, "This is a David and Goliath issue. I hope Community Board 9 winds up on the side of David. And for cynics who say that you can't win, I remind you, historically and biblically, David did win and so will we," a line that was greeted by loud applause.

Other issues raised at the meeting included installing a disability ramp at St. Luke's Hospital, renaming 141st to 145th Streets after Harlem performing artist Dorothy Maynar, as well as promoting a scholarship for computer technician training, an independent job development company, and the Harlem School of the Arts.

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Columbia Daily Spectator: www.columbiaspectator.com

Eminent domain not imminentThe Bridgeton (NJ) News, 9/22/04

By Jaime Marine
City commissioners approved an ordinance on first reading Tuesday night authorizing the condemnation of eight parcels along Route 47 should business owners and the developer of a proposed mall not come to a settlement agreement.

While this ordinance still has to go through various steps before receiving final approval, Mayor Jim Quinn said city officials are hoping settlements will be reached by all the parties involved.

"We hope and pray we don't have to use this," he said. "Goodman Properties (the developer) has been great and we hope that negotiations will continue."

On Monday, Dr. Harold Blumenthal of the Animal Hospital of Millville accepted an offer from the developer to build the animal hospital a brand new facility in exchange for his parcel of land.

Quinn said this is the way the city would like to see the other parcels — which include a Goodwill Store and Pizza Hut — handled.

"This (the Blumenthal settlement) is a good thing," he said. "No one is going to lose. They will all be compensated. We would never, ever want to do eminent domain and, hopefully, they will come to a meeting of the minds."

Steve Durst, a representative from Goodman Properties, addressed the commission and said they are working hard to come to an agreement with all involved.

"We are not looking to come into the arena and strong arm anyone," he said. "When we develop, we stay. We move in as a neighbor."

Durst said his company has no involvement with the eminent domain issue and that they are not looking for the city to do their negotiations.

Goodman properties is looking to construct a $40 million shopping center near the Millville Town Center on Route 47.

The group -- which said they have received interest from stores such as Target, ShopRite, Kohl's, Pet Smart, Office Max, Office Depot and other smaller units -- is expecting to submit a preliminary site plan within the next 30 to 60 days.

The facility could bring approximately 1,000 jobs to the area and ratables, which the city needs.

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The Bridgeton News: www.nj.com/news/bridgeton

City loses minority on council - Longtime councilman has plan for futureShelby County (AL) Reporter, 9/22/04

By Fred Guarino
When the new Alabaster [AL] City Council takes office this October, for the first time in 28 years, the city will be without minority representation.

Bobby Lee Harris, the only black member of the current council, recently discussed the reasons behind his failed re-election bid and said he sees the day coming when the impact of no minority representation will be felt.

Harris said he blamed his defeat on a redistricting plan approved by both the City Council and the U.S. Justice Department as well as retaliation for his support of the city's recent eminent domain efforts. [emphasis added]

During this administration, the city of Alabaster approved a re-development plan for the Interstate-65, Exit 238 area where Colonial Trust Properties is developing what is being touted as the largest shopping center in Shelby County.

During the effort to obtain the land for the re-development area, the council initiated eminent domain proceedings against minority residents in the area to gain property for public use.

But Harris said he doesn't regret his support for eminent domain.

He said he believes there is a way to bring minority representation back with future elections through a system he calls "cumulative voting."

Incumbent Harris, of 102 4th Place N.E, was defeated for the Ward 1 council seat by Jerry Workman, 104 Selwyn Abbey, in the Weatherly community.

Ward 1 was redistricted by the City Council in September of 2003 to include 35 percent black, 63.56 percent white and 1.44 percent '"other" voting age persons.

Previously, in accordance with what was then federal law, the ward included a much closer ratio of blacks to whites with a 40.39 percent black voting age population, a 58.35 percent white voting age population and a 1.25 percent other voting age population.

At the time the re-districting plan was approved, Council President Rick Walters said consideration was given to use of natural boundaries, keeping neighborhoods intact and wards intact as much as possible as well as reducing the number of legal challenges.

He also said a proposal that would have included a 66.72 percent black voting age population majority in Ward 1 would have violated the "one man, one vote rule," which is current federal law.

Harris said the U.S. Justice Department approved the re-districting plan because of the contiguousness (actual contact of the land involved) in the district. And, he said, with that consideration, white residents outnumber black residents in the ward.

Harris said that with previous lawsuits and supreme court tests upholding contiguousness, the Justice Department had to approve the plan where the numbers fell.

But Harris has a solution for the future.

"I think there needs to be minority participation. I believe if we're going to teach our children in school how to live with one another and be inclusive, we need to fix the system where there can be minority participation on all local boards and in all municipalities," Harris said.

"I think one way you can do that is come up with a system known as cumulative voting.

"Under this system, everyone will have an opportunity to vote for one person or seven persons."

He explained that citizens could vote for seven different individuals, all running at large, or cast all seven votes for one individual.

He indicated that if minorities cast all seven of their votes for one man or one woman, there could be minority representation on the council.

"The top seven vote-getters, running at large, will make up the city council," he said.

Harris said one town in Alabama, Centre, already uses this system and received Justice Department approval.

According to the Center for Voting & Democracy in Takoma, Md., towns in Alabama with cumulative voting include Centre, Guin, Heath and Myrtlewood.

As to the second reason for his defeat, Harris said, "I do not regret my support for eminent domain.

"My reasoning is more people are going to be helped in Alabaster with the new development than would have been helped without the developments ... all people," he said.

"Jobs are going to available for the citizens of Alabaster. Conveniences will be available we did not have before. All city service will be improved from my support of eminent domain, and I can't wait to see that day happen."

Harris said no other blacks sought to run against him because the word had gotten out in the community that a candidate was going to run from Weatherly. And, he said, it was concluded that person would win.

"I think the greatest effect (of his council seat loss) is going to be felt when there is an outcry for minority representation," Harris said.

"When there is a killing or suspected brutality in a minority community, there is always an outcry. And there is an outcry for someone to represent us. That's when I see minority representation is going to be needed the most."

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The Shelby County Reporter: www.shelbycountyreporter.com

District's diplomacy eases plans to expandThe (Cleveland OH) Plain Dealer, 9/22/04

Lakewood schools, landowners strike deals

by Patrick O'Donnell
Asking has worked better than seizing when it comes to acquiring land for public projects in Lakewood [OH].

By avoiding the use of eminent domain, the tactic that derailed a $151 million proposal to redevelop the city's West End, the school district has managed to quietly acquire more than 20 homes to expand schools.

"We're not doing eminent domain, on the heels of what happened in the West End," said Treasurer Richard Berdine.

The district needs the land to convert Harrison and Garfield Elementary schools into middle schools and to improve parking and playgrounds.

The two projects are part of its $170 million plan to replace aging buildings and cut the number of schools from 14 to 10.

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The Plain Dealer: www.cleveland.com

St. Charles touts First Street plan(Chicago) Daily Herald, 9/20/04

By Lisa Smith

A new First Street is good for you.

Like a mother trying to coax her child into eating vegetables, St. Charles city officials are gearing up to convince residents and business owners that redeveloping First Street will breathe life into downtown.

First street plans

It's an attempt to counter the backlash that followed the council's decision to take by force several longtime businesses if the owners and city officials cannot agree on a purchase price.

With the first phase of a new $50æmillion redevelopment plan expected to be approved tonight by the city council, officials will have a solid proposal to show residents and business owners wary of change. The developer hopes to complete engineering work in the spring and break ground in the summer.

"The hardest part of this project from beginning has been misunderstanding and lack of communication," Mayor Sue Klinkhamer said.

Klinkhamer said she hasn't heard any criticism of the proposal's latest incarnation, a concept plan created by St. Charles developer Bob Rasmussen and partners unveiled at last week's planning and development meeting. Realizing many people have yet to see it, Klinkhamer hopes to answer their questions before they're asked.

Residents can view the plan and drawings at city hall and, soon, the library. The drawings along with other information about the project also will be included in the upcoming city newsletter, and a news conference will be held to bring even more attention to it.

"The whole concept I think is really well thought out," Klinkhamer said. "Obviously, we're going to open it up to the public."

Klinkhamer is expected to announce today the names of civic and business leaders she has appointed to a committee that will provide input to the plan's developer and spread word about how the plan's realization will benefit St. Charles -- and how leaving things the way they are will cause an eventual downturn.

"I feel strongly if we don't do something, we're going to be very sorry down the road," said Alderman Betsy Penny.

Penny and most other city council members said Rasmussen's plan was an improvement over a similar redevelopment proposal created by the Evanston-based Davis Street Land Co. That company withdrew its plans earlier this year because representatives of the family-owned Blue Goose supermarket would not commit to relocating the business.

Rasmussen's vision, designed with Deerfield-based architect Knauer Inc., incorporates the Blue Goose in its existing location on First Street. It also includes twice as much parking, with a 580-space multi-level garage, a 63-vehicle parking lot and an additional 85 on-street parking spots.

Other highlights include:

• A community-centered plaza running parallel to Main Street, terminating with a fountain beside the Fox River,
  
• Some 235,000 square feet divided almost evenly among retail, office and residential uses (apartments and condominiums, with townhouses planned at a later phase),
  
• On-street parking along a widened First Street,
  
• An arched pedestrian walkway over First Street linking the parking deck on the west side to the restaurant and office space on the east side,
  
• Architecture complementing the city's existing buildings and former businesses, including the Piano Factory.

Although they make up a continuous facade along the west side of First Street, the individual tenants will occupy buildings of varying color, width and roofline type to give the impression that the development took place over a longer period of time.

Alderman David Richards, also director of the Downtown St. Charles Partnership, said the proposal would create a new First Street that is an extension of the existing downtown business district.

Richards was quick to point out that Rasmussen's group did not tout its version as "upscale" -- a buzzword used by the Davis Street representatives that had insulted patrons of The Manor, a longtime downtown casual dining restaurant that likely will be forced to move to make way for the new First Street.

But Rasmussen said he envisions The Manor fitting within the First Street development, albeit in a different spot.

"We left it up to them with the opportunity to relocate in the First Street project," Rasmussen said. "We need a nice breakfast, lunch, dinner casual dining restaurant."

Rasmussen and four of his five partners in First Street Development LLC live in St. Charles. An engineer by training, Rasmussen is co-owner and developer of the Heritage Square One and Two residential and business developments at Fifth and Illinois avenues; West Towne Market on the former General Mills site; Leroy Oaks business park on Dean Street; and the Al Piemonte Cadillac dealership under construction on east Main Street.

First Street, however, would be the Rasmussen's largest project, with an estimated price tag of $50æmillion for the first phase. His previous developments have ranged from $4æmillion to $12æmillion each.

It also would be the biggest redevelopment project in the history of the city, which created a special taxing district to help defray the costs of land acquisition and infrastructure improvements.

On Sept. 10, the city filed eminent domain paperwork seeking to condemn La ZaZa Trattoria and Harris Bank's drive-through location. Proceedings against two other businesses -- Frontier Dodge and St. Charles Cleaners -- were filed in Kane County Court earlier this year, court records show, and the city council has authorized using eminent domain to purchase The Manor and Vi's Last Call, a tavern.

Most city council members tempered their praise of the newest plan by pointing out that it's at the preliminary stage. More detailed plans, coupled with a more specific cost estimate, are expected within the next few weeks.

Members of the public, plan commission and historic preservation committee also are expected to weigh in.

"When people get a chance to see the concept, people will be excited about it," Richards said. "It's good we now have something to show them."

The First Street Project would be city's largest in history

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The Daily Herald: www.dailyherald.com

Finding Property Rights in the RubbleThe Washington Times, 8/11/04

by Jacob Sullum
Just before dawn on July 14, 1981, Detroit police hooked a tow truck to the basement door of the Immaculate Conception Church on Trombly Street and tore it off its hinges. They stormed in and arrested a dozen parishioners making a desperate, doomed attempt to save part of their neighborhood from an assault by an unbeatable alliance of big government, big business and big labor.

This was the last stand in the battle over Poletown, a lower-middle-class, racially integrated neighborhood of Detroit razed at the behest of General Motors more than two decades ago. To make room for a GM assembly plant, the city cleared 465 acres, incidentally destroying some 1,400 homes, about 140 businesses and several churches.

In a shameful capitulation, the Michigan Supreme Court approved Poletown's demolition as a legitimate exercise of the city's eminent domain powers. It accepted the argument that the jobs and tax revenue the GM plant was expected to bring rendered it a "public use," as required by the Michigan constitution (as well as other state constitutions and the U.S. Constitution).

Last month the court finally acknowledged that its ruling in Poletown Neighborhood Council vs. City of Detroit was a mistake that opened the door to the potentially unlimited expropriation of private property in the name of the greater good. While considering a Wayne County attempt to seize land for a 1,300-acre "business and technology park," the court's seven judges unanimously overruled the Poletown decision.

"Poletown's 'economic benefit' rationale would validate practically any exercise of the power of eminent domain on behalf of a private entity," the court noted. "If one's ownership of private property is forever subject to the government's determination that another private party would put one's land to better use, then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, 'megastore,' or the like."

Then-Justice James L. Ryan, who dissented from the Poletown decision, said much the same thing in 1981, warning that the ruling "seriously jeopardized the security of all private property ownership." A lot of damage has been done since then, both in Michigan and in other states where courts have copied Poletown's reasoning.

The Rev. Joseph Karasiewicz, pastor of Poletown's Immaculate Conception Church, was prescient when he explained to The Washington Post why he was resisting GM's government-backed invasion. "This is an evil law, and we have to fight it," he said of the statute authorizing condemnation of the neighborhood. "You can't establish some type of crooked law and then say you did it legally. This has national implications and national scope. It sets a bad precedent."

In the wake of Poletown, courts across the country have endorsed forced transfers of land from its rightful owners to people with more political clout — from homeowners to condominium developers, from small businesses to large businesses, from churches to retailers.

Last fall the Nevada Supreme Court cited Poletown in upholding condemnation of land to be used for Las Vegas casino parking.

"Poletown was the first major case allowing condemnations of areas in the name of jobs and taxes," explains Institute for Justice attorney Dana Berliner, who co-authored a brief urging repudiation of the decision. "It is cited in every property textbook in the country."

An aspect of the decision intended as a safeguard — a requirement that a project's economic benefit be "clear and significant" — has had a perverse impact, encouraging larger seizures of land and hyperbolic predictions about jobs and revenue. Even in Poletown, employment at the heavily subsidized GM plant fell far short of the 6,000 jobs the company promised.

In the case that prompted the Michigan Supreme Court to reconsider Poletown, Wayne County predicted "thousands of jobs," "tens of millions of dollars in tax revenue," a broader tax base, and "accelerated economic growth." But if the project failed to deliver those results, no one would be accountable.

Such projections are, in any case, beside the point. "It's the principle of the thing," Poletown resident Kris Biernacki told The Washington Post in 1981. "I think the whole thing stinks. I just don't believe it happened. It's breathtaking. We didn't have a voice in it — not a voice. We didn't want to move. We were literally forced to move out. We were just told to go."

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The Washington Times: www.washtimes.com
Jacob Sullum is a senior editor at Reason Magazine: www.reason.com

Law reforms eminent domainThe (Westchester NY) Journal News, 9/18/04

by Ken Maniace
Nearly four years after a Port Chester property owner went to court to challenge New York state's rules for taking private property, Gov. George Pataki has signed a law reforming condemnation procedures.

The new law means property owners in New York no longer need to pore over tiny legal notices, searching for clues of government plans to take their land; governments will need to notify each property owner by certified mail or personal delivery.

The eminent domain law reform was signed Tuesday by the governor and was announced by his office yesterday.

It grew out of a battle by Bill Brody, a 42-year-old businessman from Rye, to hold onto four sites in Port Chester's downtown redevelopment area.

"I'm very glad that the governor agreed with what I have been saying all along and that the state is going in the right direction," he said yesterday in front his building-supply business in the Bronx.

Brody said he never saw the condemnation plan announcement in a July 1999 legal notice, which neither named him nor identified his Port Chester property by address. Because of that, Brody said, he failed to challenge the condemnation in the 30-day period allowed.

The new law has no effect on Port Chester's taking of Brody's property for a 27-acre retail and entertainment complex under construction, but his case continues in federal court in Manhattan, where a ruling is expected this fall.

Brody's case was one of several taken up in October 2000 by the Institute for Justice, a nonprofit group in Washington, in an assault on New York's eminent domain rules, which the group called "among the worst in the nation."

Not only did the old law fail to require property owners to be properly notified of condemnation plans, it also failed to inform them they had a specific 30-day period for challenging condemnation.

"Cities were telling people that these public hearings were opportunities to express their feelings about a proposed project, not that this was a hearing where they had to put forward their reasons why government should not take their property," said Dana Berliner, a senior attorney with the Institute for Justice. "Now, at least, owners have a chance to defend themselves."

Sponsored by Assemblyman Richard Brodsky, D-Greenburgh, and state Sen. Vincent Leibell, R-Patterson, the legislation unanimously passed both houses in June. A version was vetoed by Pataki last year after it, too, unanimously passed both chambers.

Pataki's office said he vetoed the earlier law because it required title searches to identify every property owner involved in a proposed condemnation, an expensive feature.

The new legislation relies on government tax assessment records to identify owners.

Leibell called the bill "pro-consumer legislation."

Brodsky said the law would protect property rights.

"People deserve real notification when the government wants to take their property," he said.

The new law takes effect in about four months.

Although the law improves a major flaw in the state's eminent domain procedures, Berliner said New York has another problem: It often resorts to eminent domain to acquire land for private development rather than for a public purpose, such as a park or road. Though other states have done so, New York is among those that most often use condemnation as a tool for private development.

Government officials have justified the practice by saying condemnation for private development serves a public purpose because it improves a municipality's tax base.

Though Port Chester may have benefited from the old law, Mayor Gerald Logan said yesterday he was pleased the new one would afford property owners more legal protection.

"Now, at least, someone has the opportunity to make themselves heard," Logan said.

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The Journal News: http://www.nynews.com/

COMMENTARY: Despotism? In Connecticut?Victorville (CA) Daily Press, 9/17/04

by George F Will
The U.S. Constitution, properly construed by a vigilant Supreme Court, prevents untrammeled power, which is the definition of despotism. But the human propensity for abusing power — a propensity the Constitution's unsentimental framers understood and tried to shackle with prudent language — is perennial. There always are people trying to carve crevices in constitutional terminology to allow scope for despotism. Such carving is occurring in Connecticut.

Soon — perhaps on the first Monday in October — the court will announce whether it will hear an appeal against a 4-3 ruling last March by Connecticut's Supreme Court. That ruling effectively repeals a crucial portion of the Bill of Rights. If you think the term "despotism" exaggerates what this repeal permits, consider the life-shattering power wielded by the government of New London, Conn.

That city, like many cities, needs more revenues. To enhance the Pfizer pharmaceutical company's $270 million research facility, it empowered a private entity, the New London Development Corporation, to exercise the power of eminent domain to condemn most of the Fort Trumbull neighborhood along the Thames River. The aim is to make space for upscale condominiums, a luxury hotel and private offices that would yield the city more tax revenues than can be extracted from the neighborhood's middle-class homeowners.

The question is: Does the Constitution empower governments to seize a person's most precious property — a home, a business — and give it to more wealthy interests so that the government can reap, in taxes, ancillary benefits of that wealth? Connecticut's court says yes, which turns the Fifth Amendment from a protection of the individual against overbearing government into a license for government to coerce individuals on behalf of society's strongest interests. Henceforth, what home or business will be safe from grasping governments pursuing their own convenience?

But the Fifth Amendment says, inter alia: "nor shall private property be taken for public use, without just compensation." Every state constitution also stipulates takings only for "public use." The framers of the Bill of Rights used language carefully; clearly they intended the adjective "public" to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

The Connecticut court, like the courts of six other states, says the "public use" restriction does not really restrict takings at all: It merely means a taking must have some anticipated public benefit, however indirect and derivative, at the end of some chain of causation. Hence New London can evict Wilhelmina Dery from the home in which she has lived since her birth there in 1918.

Fifty years have passed since the court considered whether the "public use" clause allows condemnation for private development. The 1954 case from southwest Washington, D.C., concerned "urban renewal," as such social engineering was confidently called before it became accurately known as "Negro removal." To empower government to condemn slum property — most dwellings had no baths, indoor toilets or central heating; the neighborhood's tuberculosis and syphilis rates were high — the court held that "public use" can mean "public purpose" when the aim is to cure blight harmful to the larger community.

But the Fort Trumbull neighborhood — what remains of it; many residents have been bullied into moving — is middle class. That is the "problem": Residents are not rich enough to pay the sort of taxes that can be extracted from the wealthy interests to whom New London's government wants to give other people's property.

Another step in cutting the Constitution's leash on the awesome power of eminent domain came in 1981. Michigan's Supreme Court allowed the bulldozing of Detroit's Poletown neighborhood — more than 1,000 residences, 600 businesses and many churches — so the property could be given to a more lucrative revenue source, a General Motors plant. In the New London decision, Connecticut's Supreme Court relied on the Michigan decision, which was the principal precedent justifying seizure of individuals' properties in order to increase tax revenues.

But just 149 days after Connecticut's court ruled, Michigan's Supreme Court unanimously reversed the Poletown decision, denouncing it as "a radical departure from fundamental constitutional principles." In considering whether to take the New London case, the U.S. Supreme Court surely sees, at a minimum, the dangerous emptying of meaning from the Fifth Amendment's "public use" provision.

If the court refuses to review the Connecticut ruling, its silence will effectively ratify state-level judicial vandalism that is draining the phrase "public use" of its power to perform the framers' clearly intended function. That function is to prevent untrammeled government power — in a word, despotism.

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Victorville (CA) Daily Press: www.vvdailypress.com

George F Will: georgewill@washpost.com

Incentives OK'd for 95th StreetThe (Chicago) Daily Southtown, 9/15/04

Developers will get up to $6.4 million to buy land

By Daniel Duggan
Developers of a retail and housing project on 95th Street in Oak Lawn will get up to $6.4 million in incentives from the village under an agreement approved Tuesday.
The money from the village will go toward the estimated $9.4 million it will cost to buy and relocate the existing businesses on 95th Street from just east of Cook Avenue to 53rd Avenue.

The proposed development will bring 132 condominiums, a 60-unit senior housing complex and 10,000 square feet of retail space to the area.

The three buildings will be built around a courtyard that will replace what is currently Cook Avenue.

"This is important to the revitalization and redevelopment of this segment of 95th Street," acting Mayor Ron Stancik said.

The developers of the project, Morningside Group and Mid-America Investment and Development, are close to finalizing real estate deals on the property, said Mike Nortman, a vice president with Mid-America.

He said agreements are in the works with all of the businesses, though a final price has not been set on two properties. Nortman declined to name the businesses.

"I can say price is the only issue with those two," he said Tuesday.

Of the money spent to buy the land, the developers will be reimbursed roughly 75 percent of the cost, up to $6.4 million, according to the agreement.

If the cost of buying and demolishing the property goes over the total budget of $9.4 million, the developers and the village will negotiate how to split the cost differences.

Under the agreement the developers can ask the village to use its powers of eminent domain to help secure property deals. The village passed an ordinance in January in which it agreed to use eminent domain only if the developers can acquire 75 percent of the property on their own.

The village will repay the developers with money available under a tax increment financing district created in 1998. The village will sell bonds for the money, then pay them back with the extra tax money generated by the development.

After the bonds are paid off, the additional tax revenue will be available to other taxing bodies, such as schools and park districts.

A similar TIF district plan is in place to the west where a Metra station, 84-unit condominium complex, five-story parking deck and children's museum is proposed for the area between the railroad tracks and 96th Street, bounded to the east by 51st Avenue and the west by Tulley Avenue.

In that project, the village board approved an $8 million bond sale during Tuesday's meeting to pay for the construction of the project.

Those bonds will be paid back with a combination of the increased revenue on the property and the revenue generated by the parking deck.

On both of the incentives for the 95th Street development and the bond issuance, Trustee Bob Streit (3rd) cast the lone dissenting vote.

"I have been on record of opposing the dense urbanization taking place here," he said.

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The Daily Southtown: www.dailysouthtown.com

Long Branch residents say no to deal with developerAsbury Park (NJ) Press, 9/15/04

by Crol Gorga Williams
For five years during World War II, Louis Anzalone lived in military barracks. When he was discharged from the service, he bought his one and only home, on Ocean Terrace in the city.

Last night, Anzalone, and his wife, Lillian, both 88, came to the City Council meeting to say no deal to a proposal from the developer of the second phase of Beachfront North, who sent residents there a letter offering to discuss the possibility they could receive a condominium in exchange for their homes.

Anzalone and his wife were not alone last night in rejecting any proposal that calls for the destruction of some 26 homes in the area that has come to be known as MTOTSA -- for Marine Terrace, Ocean Terrace, Seaview Avenue Alliance. The area also includes vacant land. Residents there have organized to fight the redevelopment.

The meeting room was crowded with people wearing "Shame on Long Branch" T-shirts and "End Eminent Domain Abuse" buttons. There were standing ovations when people they agreed with spoke and catcalls during the remainder of the meeting.

Roger Mumford, president of Matzel & Mumford, which along with Hoboken-based Applied Development Co., has preliminary approval to build oceanfront housing in the residential neighborhood, authored the letter, which all residents received.

"It is the city's intent, and ours, that longtime owner-occupants have an opportunity to stay in the area," Mumford wrote. "We realize that some of you exist on a fixed income and have lived for many years in your home. It is our hope that for these owner-occupants, we can put together a realistic plan that may include providing you with a condominium in one of our elevator-serviced buildings. Such an agreement would address any concerns you may have about property taxes and condominium fees."

Mumford said the developer also was interested in meeting with those who own investment properties, vacant land or those who purchased and moved into homes after the city formally designated the area for redevelopment in May 1996 to see if a "mutually beneficial arrangement" could be reached.

Oct. 15 is the deadline.

Anzalone said he was rejecting the developer's proposal because his current home was "better and nicer than anything you or the builder can ever provide.

"Now, in the twilight of my life, I have no intention to live in some condo that looks to me like Army barracks with elevator service," he said.

Lori Vendetti, who lives part of the year in Long Branch and part in Newark, said it is possible the city is no longer negotiating with the MTOTSA group in good faith. The group put together a competing plan that proposes "revitalization" of the neighborhood, but City Attorney James G. Aaron has written to them requesting more information.

"They are the ones who stopped negotiating with us," said Mayor Adam Schneider after the meeting.

The big hero of the night was Scott Bullock, who is a senior attorney with the Institute for Justice, a nonprofit Washington firm that fights eminent domain abuse.

"We're watching very closely what is happening in Long Branch, and we're going to do everything in our power to make sure these fine people stay in their homes," said Bullock, who stopped short of saying he would represent the residents.

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Asbury Park Press: www.app.com

Former Landowners Sue IPL Over Land Sale

By A.J. Nelson
A group of former owners of land they once sold to Indianapolis Power and Light Company have sued the electric utility to get back some of the profit the utility gained after IPL sold the land.

The attorney representing the group, Richard Boe, filed the lawsuit Monday in Morgan Superior court, asking that the utility return part of the profit from the sale to the former landowners and their heirs. IPL had aquired the land as a possible location for a power plant.

“This is a lawsuit over the taking of private property for public purposes and never used, and sold to reap profits from that,” Boe said.

Boe explained that when IPL first began to acquire the land in 1975, the company talked to several landowners, who say they felt pressured to sell to the utility or risk fighting a court battle they knew they couldn’t win.

“They said, ‘You either give us your property, or you give it to us through eminent domain’,” Boe said. “People sold land to IPL when they came, because they realized they couldn’t stand up to a large utility in court.”

Boe said that none of the 4,000-plus acres IPL acquired in southern Morgan County was done through the eminent domain process in the courts. Property owners were paid for their land.

The lawsuit comes after IPL sold the land to the state and a group of Martinsville natives for a total of $13 million late last year. The state purchased 1,500 acres for $4.5 million, and a group that includes Martinsville residents Gary Etter, Jerry Cragen, Harmon Crone, and John and Ann Marvel purchased the remaining 2,500 acres for $8.5 million.

Boe said the group isn’t seeking a return of the land or money from the state or the Martinsville group, but said IPL wasn’t entitled to profit from land, whose value increased from $500 an acre in the 1970’s to around $3,500 an acre today.

“There are three elements to the lawsuit,” Boe said. “One is, violation of eminent domain statute. The second is conversion, where IPL sold and harvested trees through the years; and third, unjust enrichment, they bought and profited from land that they didn’t use for the purposes intended.”

Boe said the case had the potential to effect property rights laws, not just in Indiana, but across the country.

“You don’t see many cases that have these kinds of issues, as in this case,” Boe said. “What we’re basically looking for is to return that profit taken unjustly to the (former) land owners or their next of kin.

“I think this case could impact other states.”

No initial hearing date for the case has been set yet. Attempts to contact Indianapolis Power and Light for comment on the lawsuit were unsuccessful.

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The Mooresville-Decatur times: www.md-times.com

Jury to Decide Whether City’s Southtown Buy is Fair

Owner claims eminent domain proceedings undervalued mall

By Sara Eaton
A jury to be selected today will decide the value of Southtown Mall to settle a dispute between Fort Wayne and the debilitated mall’s owners.

The weeklong trial is expected to bring closure to a contentious eminent domain battle over the property, which is currently being demolished after the city took possession in March.

Several appraisers and city officials are expected to take the witness stand

City officials are eager to begin the long-awaited trial and believe the outcome will be in their favor, City Attorney Tim Manges said.

The other side wants to get the trial over so it can begin the appeals process, said Stephen Fink, attorney for Haywood Whichard, one of the mall’s owners.

Whichard has said repeatedly he believes the property at U.S. 27 and Anthony Boulevard, on the city’s south side, is worth at least $6 million. Whichard, who first fought the city’s condemnation effort, has said that if three court-appointed appraisers did not come back with what he believed to be a fair value, he would pursue the jury trial.

The city paid $3.44 million for the property earlier this year after three court appointed appraisers determined that to be the value.

Whichard, who purchased the beleagured property with other investors in 1998, closed Southtown on Feb. 1, 2003, after giving tenants less than a month’s notice. The mall had lost its anchor stores, L.S. Ayres, J.C. Penney Co. and most recently Sears after slowly losing smaller stores.

In the past several weeks, Allen Circuit Court Judge Tom Felts has ruled on pending motions, including what type of evidence may be introduced to the jury. Felts ruled against Southtown’s introducing any evidence of possible sales of the property that fell through and were not completed.

Most recently, Felts ruled that Southtown cannot factor in the city’s intended plans for the property to the mall’s owners’ equation determining the potential value of the mall.

Manges described the decision by the judge as huge and said it benefits the city’s case.

Fink, on the other hand, believes the city has lost perspective “in its zeal for obtaining the property.”

“The city has convinced the judge to exclude the best evidence,” Fink said. “We will appeal after trial. We do not expect a favorable outcome.”

He expects appeal issues to stem from the judge’s rulings but declined to be more specific about which rulings.

Since the city paid Southtown owners the $3.44 million, Felts has ruled on several motions for payment by various interested parties.

Last week, he issued an order for Southtown’s owners to pay Allen County back owed taxes.

Fink said the Southtown owners have also been ordered to pay the 2004 taxes, which he believes have already been paid, but questions how that is fair since the city has had possession of the land since March.

Fink and Manges both said there are no more outstanding bills to be paid. The sole remaining issue for the trial is the value of the property, they each said.

Both said their parties have been interested in settling the matter without going to trial but both said the other hasn’t made reasonable offers.

The property is being demolished and the demolition is in the first phase, said Craig Berndt, the city’s brownfields redevelopment manager. Berndt is the project manager for the Southtown site for the city.

The next phase will include demolition of the Sears building and USA Billards but the earliest it will begin is late October. The third and final phase will include the Bridgestone/Firestone building, he said.

The demolition is going well so far, he said.

The plan for the 114-acre site calls for a Menards home improvement store, another big-box anchor store and about a dozen other stores, restaurants and businesses, most lining U.S. 27. Menards is expected to break ground in the spring and open for business by the holidays, Berndt said.

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Journal Gazette: www.fortwayne.com

Business Owners Unite in W. Harlem

Civil Rights Attorney Takes on Columbia in Manhattanville Plan
By Kate Prengel
Civil rights lawyer Norman Siegel [of the New York Civil Liberties Union] announced Friday that he will represent a group of West Harlem business owners concerned about Columbia's plan to expand into their area. Siegel spoke at a meeting organized by the Coalition to Preserve Community, at St. Mary's Church on West 126th Street. He urged the large audience of residents and businesspeople to stay united and involved in what he called a "David and Goliath-style struggle" between the University and small business owners.

"Black, brown, red, yellow and white together, we will overcome," he told the crowd.

The West Harlem Business Group, which began speaking with Siegel in mid-August, is an alliance of six family businesses located in the area that Columbia is targeting for expansion, from 125th to 133rd Street and from Broadway to 12th Avenue.

Siegel and his clients predict that Columbia, faced with some landlords who do not want to sell their property, may resort to the legal process known as eminent domain in order to get the land. Siegel wants Columbia to guarantee that they will not use this process.

The process of eminent domain allows the public or, in some cases, private groups to acquire land that the owners do not want to sell. Historically, the government has used eminent domain to acquire land for public works, as in the construction of the transcontinental railroads. Private corporations like General Motors have also used eminent domain to acquire land for their own projects.

The University has never said that they are considering eminent domain proceedings. However, Siegel says that Columbia may already be encouraging New York State to condemn the area from 125th to 133rd Street.

The New York City Economic Development Corporation, a non-profit group under contract to the city of New York, has initiated a blight study on West Harlem, Siegel said. Declaring a neighborhood to be "economically blighted" is one of the first steps to having it condemned. If the state condemns the area, then it will be eligible for eminent domain proceedings.

"Columbia has to understand that it cannot use eminent domain as a gun that it holds to people's head," Siegel said later.

He emphasized the need for Columbia to be "forthright" with the people of West Harlem, a concern shared with CPC members who spoke at the meeting.

"The more meetings Columbia holds, the more misinformation and lies they give out," said Nellie Bailey, a CPC member.

To enthusiastic applause, she urged Columbia to "speak plainly to the people. Because in that plainness there is truth, and you will recognize it."

Many of the residents who attended the meeting said they felt encouraged by Siegel's presence and by a sense of community togetherness.

"I'm always happy when I'm reminded of how people can work together," said Ishmael Wallace, a local musician.

He said the expansion plan confused him, but that he was beginning to understand it better thanks to the night's meeting.

"It's slowly becoming more clear," he said.

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Columbia Daily Spectator: www.columbiaspectator.com

Connecticut Homeowners Question Eminent Domain

by Terry Pristin
On a quiet peninsula that juts out into the Thames River of Connecticut, weeds and wildflowers cover the empty lots where 90 homes and small businesses once stood - among them the eight houses that used to separate Susette T. Kelo's tidy pink cottage from the blue house that Wilhelmina Dery's grandmother bought in 1901 and where Mrs. Dery and her husband, Charles, still live.

Ms. Kelo and the Derys are among seven property owners who refused to budge after city officials approved an economic development plan to upgrade their 90-acre waterfront neighborhood, known as Fort Trumbull, by creating prime office space, a hotel, 80 units of housing and a Coast Guard museum.

Because these people would not sell their property, the New London Development Corporation took title to it through eminent domain, a decision upheld in March on a 4-to-3 vote by the Connecticut Supreme Court. The Fifth Amendment allows governments to take private property through eminent domain in exchange for "just compensation,'' but only when it is for "public use.''

Ms. Kelo, a nurse, who bought her two-bedroom house in 1997, said she and her neighbors were being swept aside so that wealthier people might replace them. She and Matthew R. Dery, a newspaper executive who lives next door to his parents, said real estate agents had appeared on their doorstep and told them they would have to sell their homes or lose them through eminent domain.

"How come someone else can live here, and we can't?" Ms. Kelo asked as sea gulls circled overhead and ferry boats to Block Island, R.I., and Orient Point, N.Y., were visible in the distance. "I'm being penalized for being a good resident."

But New London city authorities said the condemnations were justified because the city, one of Connecticut's poorest, had endured three decades of economic decline, including the recent loss of 1,900 government jobs, and had few options for increasing its tax base to help pay for schools and services. After officials persuaded Pfizer, the drug company, to open a $270 million research building on the site of a former linoleum plant, the adjacent Fort Trumbull neighborhood seemed ideally suited to attract additional investment, they say.

The neighborhood was already zoned for industrial and commercial use and had a sewage treatment plant, which was covered at Pfizer's request but still gives off odors. The United States Naval Undersea Warfare Center, which occupied 32 acres, closed in 1996. The state had agreed to spend $20 million to create a state park at Fort Trumbull, a mid-19th-century installation where Connecticut troops mustered during the Civil War before heading south.

Despite the Connecticut Supreme Court's ruling, the demolition of the properties has not yet occurred because the Institute for Justice, a public-interest law center in Washington that represents Ms. Kelo and the other homeowners, has asked the United States Supreme Court to review the case. The institute, which has been fighting eminent domain actions all over the country, argues that the case, Kelo v. City of New London, demonstrates how government authorities are increasingly abusing condemnation powers to enrich developers at the expense of homeowners and small businesses.

Legal battles like this one, and a recent Michigan case in which a landmark ruling was overturned, have captured the attention of developers and economic development officials. Maureen L. McAvey, a senior fellow for urban development at the Urban Land Institute and a former developer, said eminent domain was essential for assembling tracts of land for development. But she said the cases have had a cautionary effect, prompting many local officials to re-examine their procedures to make sure that they can clearly show how the public will benefit from a particular project. "Most local entities are looking at their ordinances and practices," she said. "They are getting smarter about how they use eminent domain."

The conflict over eminent domain has led to some unusual alliances, with libertarian groups like the Institute for Justice joining forces with the American Civil Liberties Union and Ralph Nader to oppose condemnations, and environmental groups lining up with developers and community development organizations. Environmental groups say that eminent domain powers must sometimes be used to promote "smart growth" - that is, denser development in older neighborhoods - as a means of reducing suburban sprawl.

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The New York Times: www.nytimes.com

Eminent Domain Abuses

Those who follow eminent domain abuses were cheered by the Michigan Supreme Court's ruling this summer that it is illegal for the government to seize private land and transfer it to another private owner for public "benefit."

But that's one state. The abuses will not end until the U.S. Supreme Court stops the land-grabbers.

The predicate for these abusive eminent domain cases is that a private entity -- the government's good buddy, naturally -- will make better use of the land by providing more jobs or greater tax revenue. (Here in Western Pennsylvania, we've never heard such overblown promises, have we?)

In economically distressed New London, Conn., the drug company Pfizer built a research center. Nearby, a piece of waterfront land caught the eye of the government. Why, with the new plant in town, a private developer could turn the 90 acres into a real tax generator.

Some property owners balked at selling, and the city resorted to eminent domain, upheld by the Connecticut Supreme Court, 4-3. The U.S. Supreme Court has been asked to take up the case -- which it must.

Even the communist land reformers operated under the pretense that the farms would go to the people. This is more the naked fascist model: the government in concert with the corporatists against the sacred rights of the individual.

And no wonder: The fascists always leaned a little farther left.

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The Tribune-Review Publishing Co
Eminent Domain Attorney

Aurora Again Abusing Small Businesses

City invoking eminent domain near Fitzsimons
(Editorial)
It seems there's no rest or relief for the cluster of small businesses near the new Fitzsimons medical complex in Aurora. Once again, the biggest threat they face is from their own predatory city government.

Last year, they beat back Aurora's effort to amortize their businesses, a scheme that would have allowed the city to close them without compensation for not conforming to the view of what the neighborhood should look like. After a barrage of negative publicity, the city council rescinded the amortization ordinance. The state legislature added a punctuation mark by making such moves illegal.

But now the city is back with a more traditional condemnation plan, based on a "blight" designation, that may be legal but is just as outrageous.

The first targets are the 30-odd owners who occupy 17 acres on the southwest corner of Colfax and Peoria. They would get something, as in compensation, but it would be whatever low-ball figure the city offers and a court adjusts. The price would not be set by free negotiations between willing buyers and sellers.

It's the worst kind of condemnation, since it's not for a legitimate public good like a road or an airport. Instead, private property would simply be transferred, through force of law, to another private owner, invariably a politically connected developer. In this case, the developer will be selected from two applicants, who would build a shopping plaza, presumably with more upscale stores. The city is hoping for more sales tax revenue than it gets now from the auto-body shops and other blue-collar enterprises struggling to survive.

The takeover scheme has been temporarily delayed by an incident that would have been embarrassing, if Aurora were capable of embarrassment. The developer it originally selected was entering bankruptcy. Worse is that he took it upon himself to personally bully the owners into selling at what they complained were unreasonably low prices. He got bounced last winter.

The blight designation usually means big problems for owners. Once your property has been so designated - and the city has designated plenty of acreage beyond the 17 acres at issue - your property is almost impossible to sell no matter how ripe it might be for development.

We can only hope local property owners can find, and afford, an attorney to help them through this. After all, the mood of the courts is changing when it comes to condemnation for private purposes. Last March, for example, the Colorado Supreme Court ruled unanimously against the Arvada Urban Renewal Authority's effort to condemn a popular lake, which it wanted so a Wal-Mart could be built.

And a month ago the Michigan Supreme Court unanimously overturned the infamous 1981 Poletown decision that allowed Detroit and Wayne County to seize thousands of homes and dozens of churches and businesses so that General Motors could build a new plant.

Within a few weeks the U.S. Supreme Court will decide whether to hear its first case on whether eminent domain can be used for private instead of public purposes. Perhaps Aurora's small businesses can hang on long enough to see a change in the law.

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Rocky Mountain News: www.rockymountainnews.com

Normal Files Suit to Buy Property

Sites sought for downtown redevelopment

By M. K. Guetersloh
Efforts by the town of Normal to negotiate the purchase of several downtown properties apparently ended Thursday with the town filing four eminent domain lawsuits in McLean County Circuit Court.

In the lawsuits, the town said it wants to acquire 103 Broadway, 207 S. Fell Ave., 211 and 213 North St., 104 Parkinson St. and 201-203 W. Beaufort St. as part of its downtown redevelopment plan.

"This definitely is last-resort action," said Normal City Manager Mark Peterson. "The town certainly does not enjoy doing this, but it's our only remaining step."

Earlier this summer, the city council agreed to use eminent domain powers to get the properties if negotiations failed. Under eminent domain, the town has asked that a judge or jury set the fair market value of the property and compel the owners to sell the property at that price.

"It's not about the money; it's about the land," said one of the owners, Orval Yarger. "I can't replace the land I have for what they want to pay me."

Yarger, his brother, Bill, and Alec Wade have negotiated with the town over the properties they jointly own at 103 Broadway and 211 and 213 North St. The town offered $1.25 million for the properties and rejected the owners' counteroffer of $3 million.

The town and Orval Yarger also could not work out a satisfactory agreement over an exchange in land. A piece of town-owned property Orval Yarger was eyeing for the swap is not for sale.

"What is wrong with this picture?" Yarger said. "The town can tell me that their property is not for sale or that if it was for sale, it would be too expensive, but yet they are telling me I have to sell."

Yarger, who owns the Broadway Mall at 103 Broadway, earlier said the sites the town offered along Main and Willow streets were too far west for his clientele -- Illinois State University students.

A hotel/conference center is planned on land bordered on the west by Fell Avenue, on the south by Beaufort Street, on the east by Broadway and on the north by North Street.

A parking garage is planned at Fell and Beaufort, across from the hotel.

The town owns half of the property but needs to acquire 201-203 W. Beaufort St. from Jeff Brock.

The Yarger property at 103 Broadway would be used as a site to relocate the Citizens Savings Bank branch now at the northwest corner of Broadway and Beaufort.

Peterson said the town already has acquired about 12 properties for the downtown project.

Town attorney Steve Mahrt said it could take six months or more to settle the property dispute.

He said he believed it will be completed ahead of when construction is expected to begin on the hotel/conference center in July 2005.

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The Pantagraph: www.pantagraph.com

Court Hands City Victory in Property Seizure Case

By John Nickerson
City [of Norwalk CT] officials are claiming a legal victory in their attempt to seize Maritime Motors as part of a massive urban renewal project, but the car dealership's owners are vowing to continue their fight.

In a 12-page decision released yesterday, the state Appellate Court affirmed the Norwalk Redevelopment Agency's right to condemn Maritime's two-story car showroom at 51 West Ave. and storage lot at 31 Putnam Ave.

The 10-judge appeals court unanimously upheld a Superior Court judge's 2003 ruling that the city acted within its rights to claim under eminent domain the property to make way for Riverwalk — the largest piece of the $350 million Reed-Putnam urban renewal project.

Peter Morley, owner of Maritime Motors, said yesterday it was "wrong" to use eminent domain to force out his business to make way for another, adding that he intends to take the fight to save his property to the state Supreme Court.

"It is everything to me. I don't take my responsibility lightly. I have to answer to all of my (33 full-time) employees," said Morley, who bought the properties in April 2000, nearly 17 years after the Reed-Putnam plan was adopted by the City Council.

"I'm not going to let them rob me," he said.

Redevelopment Agency Executive Director Timothy Sheehan said he was pleased by the court's finding.

"The court carefully considered each of the three areas that Maritime Motors appealed the lower court's decision on and I think we laid out a clear case that resulted in the affirmation of the lower court's finding," Sheehan said.

City officials have said throughout the 14-month legal battle that Morley's two properties are essential to developing the largest portion of the Reed-Putnam urban renewal area. Known as Riverwalk, the project calls for a 13-acre development of office buildings and retail stores just southeast of the Interstate-95 overpass at West Avenue.

According to state law, Morley and his Hartford attorney, Michael Taylor, have until Oct. 4 to petition the state Supreme Court to review the appeals court ruling.

Taylor said the decision erodes property owners' protections against eminent domain and he is "strongly" advising his client to take the case to the next level. Eminent domain law allows a municipality to purchase land if it proves a public use that outweighs a landowner's property rights.

If the Supreme Court decides to review the case, it would be expected to render a decision before the end of the year, according to Jonathan Bowman, attorney for the Redevelopment Agency.

The court fight over the property stems from the inability of Morley and Riverwalk's developer, Fred French, to come to terms on the price of the two properties totaling 1.6 acres.

Timon Malloy, president of Stamford-based Fred F. French Investing LLC, said yesterday that Morley was offered the appraised value on the property plus a premium. Malloy declined to disclose the amount of that offer.

Plans call for using part of Morley's showroom property to widen West Avenue to provide two eastbound turning lanes onto Reed Street, which will be widened from two lanes to five. Morley's smaller Putnam Street storage property will be used to extend Reed Street to run under the Metro North railroad tracks, which will connect Riverwalk with the city's waterfront.

The appeal held that the city did not attempt to integrate Maritime's property into the redevelopment plan; that reasonable steps had not been taken to acquire the properties by negotiation; and a new finding of blight was needed in the area after the 1983 redevelopment plan was amended in 1998.

In its decision, the Appellate Court sided against Morley on each of the three issues.

The court noted that under the Reed-Putnam plan, property within the area cannot be used for an automobile showroom; as a result, the city had no responsibility to try to include such a building in the plan.

"To require a redevelopment agency to consider the integration of property that contains a prohibited use under the redevelopment plan would defeat the intent of redevelopment," the opinion stated.

The court also found that the Redevelopment Agency "exhausted all reasonable efforts to obtain the plaintiff's properties by agreement."

Finally, the Appellate Court found that the Redevelopment Agency was not required to make a new finding of blight when it amended the 1983 plan "because the modifications were not substantial."

When asked about the case going to the Supreme Court, Sheehan declined comment, except to say that he looked forward to engaging in dialogue with Maritime Motors on the settlement.

Sheehan would not speculate on what the city plans to do if Morley does not turn the property over.

Taylor, however, said he was "troubled by the decision."

"There are supposed to be safeguards to protect people from the government taking their property. And I think with this decision, the Appellate Court has substantially weakened those protections," Taylor said.

Specifically, Taylor said the court's ruling that the Redevelopment Agency had no responsibility to include Maritime Motors in its urban renewal plan simply because it was not an approved use was shortsighted.

"We say that is wrong. The check on the Redevelopment Agency's authority is gone if all it has to do is decide existing uses aren't in the plan area. . . . There is no limit to their authority," Taylor said.

Redevelopment Agency attorney Jonathan Bowman, said he believed the Appellate Court did not erode any landowner safeguards with the decision.

"I think the decision was correct on all three issues. And this is the second court to find the exact same way. These issues were raised at trial court. We now have four judges seeing it the same way," said Bowman, from his Cohen and Wolf PC office in Bridgeport.

Bowman added that if the Supreme Court were to take the case, they should have a decision a few weeks later.

"If they run out the string (of appeals), it won't take a long time here," Bowman said.

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The Stamford Advocate: www.stamfordadvocate.com
LA Lawyer