National Eminent Domain Blog : Eminent Domain Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan, Ohio, Illinois

Daily ME

The Burkholders have argued that Carilion and the city of Roanoke plotted behind closed doors to take the land for what is now Carilion's Riverside Center and then pressured the housing authority to do their bidding. In its agreement with the city to buy and develop the former industrial area, Carilion had said it would buy the Burkholder and other properties to build its Riverside business park, which now includes the Virginia Tech Carilion School of Medicine.    
    
Kelo and many local decisions simply have not been able to deal with the issue of how to handle blighted property.  To claim property is blighted in order to be able to expand an adjacent use for a private user, simply is not a taking for public use.  The definition of blight is not being dealt with by courts, such as bye the Virginia court in this article.  The reality is that people have a right to maintain and hold their property unless a true public use for the property is required.  Joe Waldo is the outstanding condemnation and eminent domain attorney of Virginia, but the fight he is involved in is simply uphill.  This does not mean it cannot be won, but rather that it will take years to make the law rational.

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Canton Rep

“The Court finds that there is no public necessity for the appropriation,” Park wrote in her 12-page ruling.

The drainage issue didn’t exist until the business park was created, and “...the public use is limited to the drainage of a street that will be used primarily by tenants of the industrial park or private entities that will build there,” Park wrote.

Irwin declined to comment on the judge’s ruling until she had a chance to review it with her attorney.        

    In the situation described above, but for the development of the business parks, there would be no issue of drainage.  The question then is what happens when there is development?  
    The law truly diverges when there is a situation in which the end use is a public use, but it is only necessary because of a private desire.  A few cases, such as Los Angeles v Rindgee, maintain when the benefit is only for one user, that the taking is not a public use.  Other cases, such as Grosse Ile v Grosse Ile Bridge Company in Michigan maintain that when the end use is a public use, that, in and of itself, is enough to allow the taking to occur.

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Herald Palladium    Todd said the airport has been negotiating with the fruit market since 2002.  "We're supposed to give landowners fair market value. Neither party is
supposed to come out ahead, because this is taxpayers' money," he said. "We
know we're going to impact them, so the offer was based not just on market
value but on how losing the five acres would impact them."

It is amazing that the Airport Commission agent blames it all on 'greed' and
'taxpayer dollars' when maybe; just maybe, the owner wants to be made whole.
Did the authority think about the effect of what was taken on the remainder
or the compensable business damages?  Likely not. 
And as for 'negotiating' since 2002, did the Airport Authority PR man notify
the paper that the Airport Commission had the choice of time as to when it
would take the property?  Likely not.  

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New York Times

The Columbia decision “is the first thing that’s happened in New York that suggests the threat of a change in our eminent domain law,” said Kathryn S. Wylde, chief executive of the Partnership for New York City, a leading business group. “I think it’s frightening because there are few more important investments in our city’s future than that which Columbia is making.”

The clamor for reform is also being driven by a recent wave of sentiment against development in New York, as demonstrated last month when the City Council defied Mr. Bloomberg and rejected a plan by the Related Companies to convert the Kingsbridge Armory in the Bronx into a shopping center. Emboldening critics is the sense that Mr. Bloomberg’s influence has waned since his narrow victory in last fall’s mayoral race.     

The New York Times may not have this one right.  Part, if not all, of the anger is because the citizens of New York have come to believe that a few very favored and very wealthy individuals are taking advantage of the eminent domain system.  The Police Power retains its superiority over the Eminent Domain clauses of the Fifth Amendment and Due Process of the Fourteenth Amendment, at least for the time being.  This writer fully expects the New York Court of Appeals, being New York’s highest court, to reverse the lower appellate court opinion. 
 

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ABC 13

WASHINGTON, D.C. – To commemorate the 75th anniversary of the Blue Ridge Parkway, U.S. Senators Jim Webb (D-VA) and Mark Warner (D-VA) are joining North Carolina Senators Kay R. Hagan (D-NC) and Richard Burr (R-NC) today to introduce legislation authorizing the National Park Service to acquire up to 50,000 acres of land surrounding the historic roadway. In the House of Representatives, Congressmen Rick Boucher (D-VA), Tom Perriello (D-VA), Heath Shuler (D-NC), and David Price (D-NC) introduced companion legislation. The Blue Ridge Parkway’s anniversary will be celebrated in September.

“The Blue Ridge Parkway is one of the Commonwealth’s most significant tourist attractions, providing economic benefits to communities in Southwestern Virginia,” said Senator Webb. “As a longtime supporter of natural and cultural landmark preservation, I look forward to working with my colleagues in the Senate to pass this legislation.”
    
    Washington has the ability to spend whatever it desires, for whatever it desires.  Hopefully, the acquisition of 50,000 acres of land truly suffices to help expand tourism without endangering the real estate market in the Virginia and North Carolina communities where the road passes through.  Given the tremendous beauty of the Blue Ridge Mountains now, one simply wonders whether there really is a need to expand the park system here.

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TriCities -Click Here to Read the Series

Above is a link to a series of articles written by Dan Gilbert. He is a writer for the relatively small town Bristol Herald Journal in Bristol, Virginia.  In his eight piece series he deals with the issue of whether mineral owners have a right to be treated in a fair fashion.  The legislative process of forced pooling with no true notice to the owners that they are losing their minerals, and the failure to have any negotiation over the leased value or the royalty rate were simply fascinating.  I hope the Pulitzer people have their eyes wide open, because this is the type of investigative reporting that should occur everywhere!  As a Detroit boy and a reader of the Kwame Kilpatrick dirge for the past year, I would put Dan Gilbert’s series of article on at least an equal plane.

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Dallas News

Meanwhile, McClain's daughter, Carolyn McClain, appears to be sitting on the better end of what might be the city's most lopsided lease.

Written by Little for a term of 99 years, the lease guarantees that Folsom or his estate will pay the McClain family tens of thousands of dollars a year for what is, by itself, an all but useless piece of land.

"That's a tough lease," Little said, "and it was drawn that way because ... [Hazel McClain] wanted to protect herself. She had many, many chances over the years to sell along with other properties. She was just not ever a seller."

Newt Walker, a well-known Dallas real estate broker who has been closely involved with deals involving the hotel land, called the lease highly unusual because it tied Folsom and his estate personally into payments for nearly a century.    

When one reads the above article in totality, they may ascertain what happened in this situation is that the owner is asking for all 99 years of rent commitments rather than the capitalized value of the leases.  The article misapprehends that rents are to be capitalized rather than to be added together to determine property value.

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Mail Tribune

The state of Oregon and the National Marine Fisheries Service filed separate petitions Tuesday for a new hearing with the Federal Energy Regulatory Commission in an attempt to stop construction of a liquefied natural gas import terminal in Coos Bay and a gas pipeline that would cross the upper Rogue River watershed.

They joined a coalition of local residents, environmental groups and fishermen who filed a similar petition on Saturday, asking FERC to reconsider its December approval of the terminal and 234-mile pipeline from Coos Bay to Malin near the California border.

In challenging FERC's decision, Gov. Ted Kulongoski and Attorney General John Kroger said the commission failed to meet standards set in the Federal Clean Water Act and the Coast Zone Management Act.

In addition, the decision failed to adequately consider the environmental impacts of the proposed project, much less the need or alternatives available, they said.
               

This is a serious situation.  The FERC provides great deference to utilities in its proposed paths.  However, opposition will present challenges to the utility.  It is possible this route will change to avoid certain condemnation actions.  Do not be surprised to see the eminent domain route change if there is a united opposition, which may include responsible government officials.

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DURHAM -- The Durham Planning Commission declared the Rolling Hills/Southside area to be legally "blighted" Tuesday night, but its deliberation was dominated by "eminent domain."

As a result, what was in essence a formality in the process for organizing rehabilitation in the run-down and crime-plagued area off the Durham Freeway gained approval by only a 6-5 vote.

"I'm not sure what we've done," commissioner Jackie Brown said after the vote.

Such designation authorizes the city to create a formal redevelopment plan which, if adopted by the City Council, improves Durham's chances of getting tax credits and other financial aid for the project; and allows the city to impose design and quality standards for future private development higher and stricter than those of its general ordinances.

But some citizens claimed the designation would empower the city to seize private property

In approving the "blight" designation, the Planning Commission also called for a provision in the Redevelopment Plan that bars the city from using eminent domain to acquire owner-occupied property; and to specify that the Hesters' shopping center is not part of the redevelopment area.

    Frequently, the local citizenry has little interest in the process of blight designation.  They assume that it is a foregone conclusion that they will lose their properties.  Sometimes, some of the people willingly want to lose their property, while at other times, the sense of anomie percolates and the local residents and businesses do not desire to participate in the process.
    In many states, including North Carolina, acquisition by condemnation will occur when the eminent domain statutes provide that blighted properties may be acquired for clearance projects.
 

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