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North Carolina News Network

State lawmakers could ask voters to decide whether the government should be allowed to take a person’s land for economic development purposes. The power of eminent domain allows governments to seize private property for public use, provided the owner receives fair compensation.                   

The North Carolina News (Blog) mentions something key to a fair post Kelo process.  Quite simply, let the voters of the State decide when a property can be taken and what a public use is within the respective jurisdiction. 

 

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West Virginia Record

 

CHARLESTON - A federal judge has dismissed a lawsuit filed by a developer targeting the city of Dunbar and one specific member of the city's council.

Robert Weidlich, through his company, Weidlich and Associates, claimed the defendants had effectively taken his property without compensating him by denying his requests to have the land rezoned so he could sell the property.

U.S. District Judge John T. Copenhaver on Monday dismissed Weidlich's case as being "unripe" for review, primarily because there were other avenues -- besides a constitutional lawsuit -- for Weidlich to explore.

Weidlich filed the lawsuit in October 2008 after the city's planning commission, and later city council, voted in 2006 to disapprove of his request to have his property rezoned from single family use to multi-family use.

 

Copenhaver, in his order, said Weidlich had an avenue through West Virginia law to seek compensation for the land.

Copenhaver said that Weidlich could have initiated an inverse condemnation action in state court. He also could have requested a circuit judge compel the city to institute eminent domain proceedings on the land.

"Because Weidlich has not taken advantage of these state modes of redress, and thus has not been denied just compensation … its takings claims are unripe," Copenhaver wrote.

U.S. District Court case number: 2:08-1185

 

Having the ability to bring an action in Federal Courts is increasingly difficult.    The federal system defers to finality of State processes before providing any possible consideration of cases.

 

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Roanoke Virginia Times

"We're going to prove that Carilion and the city got together in advance and decided to make that land available for Carilion. And then, to satisfy the agreement, adopted the redevelopment plan," said Joseph Waldo, B&B's lawyer. "The cart was clearly before the horse."

Originally slated to be a biomedical business park, the area has evolved into a home for Carilion physicians and the new Virginia Tech Carilion School of Medicine and Research Institute.

The latest estimated budget for the redevelopment project has grown to $26 million from an early estimate in 2000 of $14 million, according to the cooperation agreement between the city and the housing authority.

The housing authority's lawyer, Mark Loftis, said while Carilion and the city did talk about the South Jefferson area and the biomedical park early on, it didn't affect the housing authority's role.

The housing authority has argued that the purpose of the redevelopment plan is to remove blight and blighting influences.

"Certainly Carilion and the city had discussions and Carilion was interested in this area, but the housing authority is the one that engaged the consultants and made the blight determination," Loftis said. "While the city entered into agreements with Carilion, those don't bind the housing authority."

B&B is not considered a blighted property. Instead, it was surrounded by blight, and under the law at the time of the 2001 plan, the housing authority could include properties that were not blighted so long as the majority of the properties in redevelopment areas were blighted, Loftis said.

According to the redevelopment plan, 74.4 percent of the South Jefferson redevelopment area was either blighted or improperly developed.

This is an article, which is illustrative of the problems of ascertaining the propriety of takings for blight.  By example, how does an ‘improperly developed’ property give rise to a cities right to acquire under blight?  Is this a veiled attempt to take something not blighted?  Is the private development a public use?  Or the developer’s profits?

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Des Moines Register

Compressed air would be stored in a network of 13 wells 3,000 feet deep and then released at strategic times to turn the turbines on two 134-megawatt electricity generators.
The stored energy project is promoted as not only a source of non-fossil-fuel energy but also a way to store some of the surplus electricity generated during nonpeak hours.The house and land just west of Dallas Center will be bought from Ray Keith. The Stored Energy Center also is negotiating a potential lease with another Dallas County landowner, John Mortimer, but the two sides have yet to reach an agreement.
Stored Energy Park officials hope to have the first well drilled by fall. The well will test the ability of Iowa's subsurface rock to hold air compressed up to 1,400 pounds per square inch.
"This will get us started on the first phase of the project," Stored Energy Park attorney Nicholas Critelli told the board before the vote. "In order to have some comfort level we need to do some invasive testing."

The recent Des Moines Register article fails to include a note that those who own land above the future storage area have rights!   The communities should anticipate a very unpleasant surprise.

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LoHud.com

PORT CHESTER - The village apologized to a property owner today for improperly seizing his land a decade ago and officially signed an agreement that will pay him $475,002 and name a street after him.

"The village acknowledges the importance of this litigation and regrets the hardship it has caused Mr. Brody for the years he has had to fight to vindicate his rights," Mayor Dennis Pilla read from a statement at Village Hall.

The public apology was part of a settlement that will give William Brody $475,002 and name the corner of North Main Street and East William Street "William Brody Plaza."

"I'm glad everything came to a close," Brody said after the news conference.

Dana Berliner, his attorney with the Institute for Justice, acknowledged that the terms of the agreement were unusual, but noted that Brody's case led to a landmark change in state eminent-domain law.

This recent, Lower Hudson Journal News, article hits on something that places similar to Freeport, Texas should look at; a simple apology by a condemning agency for taking away an individual’s right to maintain and own property.

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Business Week

Assessed at $148,400; bought for $280,000. Assessed at $172,200; bought for $345,000. Assessed at $440,000; bought for $2.8 million.

Yi's property assessed in 2007 at $88,200. The city is offering $100,000.

What's wrong with this picture?

City officials: Stop paying your attorney to duke this out in court and offer the man $200,000 plus the legal expenses he incurred so far to fend you off. Do it before those expenses climb any higher.

The recent Newport Daily News article in Virginia fails to recognize that the assessed value frequently is a gross underestimation of fair market value. Few people call the local assessor and say, “you have under assessed me, so please raise my assessment so I can pay more taxes.” The assessment should not be used as part of the analysis because it is inadmissible information  due to it being unrelated to fair market value.

 

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Daily Press 

In explaining the contract, city officials said the Hornsbys were already in the midst of expanding their business on land next door, so the city's offer not only had to consider the cost of the existing business and the planned expansion but also the number of jobs the new facility would create and its future growth potential.

"It's more than replacing an existing business and more than just a land acquisition," Kingston said.

• In 2008, the city bought two properties on Oyster Point Road, which were needed for the expansion of the city's Public Works operations center. Both properties were purchased for more than double the assessed value and after two appraisals were done for each of the properties.

Usually, the city tries negotiating sale prices with property owners. If this fails, however, the city has two options to go through the condemnation process.

The more traditional approach is called slow-take, which requires a trial to determine fair market value.

Another option is called quick-take, during which the city would deposit the appraised value of a property with the courts and then take immediate possession of the property.

"In this case, the judge said for this project, the locality can't take that procedure," Jackson said. "But the condemnation is still authorized and lawful. We simply have to go through the slow process."

Usually, the city tries to avoid going through the court process because of the expense.

In 2002, for example, Newport News offered the owner of a downtown property $310,000 based on an appraisal. The city needed the land for the expansion of the district court. The owner, however, refused to sell.

A judge in 2006 ordered the city to pay him $500,000, city officials said.

"It's not so much that the jury generally sides with the property owner," Jackson said. "But it's more of a byproduct of how the legal system works." With the locality offering one amount and the property owner wanting another, it is very likely a jury will pick a number in between, Jackson said.

Yi's attorney argued that the recreation center does not rise to the level of an urgent and immediate need for condemnation.

"It does not justify this extreme measure," said Henry E. Howell III, Yi's attorney.

"The recreation center is not even funded yet," he said. "What they should do is to give the owner more time. Don't rush into it and condemn the property."

The case is now set for a jury trial to determine the value of the property, Jackson said. A trial date has not been determined yet.

"They did not use a quick condemnation with Denbigh Toyota," Howell said, but it was used on "the little people" next door

This recent Newport News article describes the problems and harshness of quick take proceedings.  It also describes the problem with eminent domain proceedings initiated prior to funding for the project or finalization of the project plans.

 

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 DENVER (AP) — The Army's plan to expand a southeast Colorado training site is facing another obstacle now that Gov. Bill Ritter has signed a measure barring the use of state land for the project that is opposed by ranchers.

Ritter approved legislation Tuesday that prevents the state from selling or leasing land to the Army to expand the Pinon Canyon Maneuver site. About 20 percent of the land the Army wants for the site is state-owned.

The Army first announced its plans more than three years ago, saying it needed to expand the 370-square-mile site to about 525 square miles to accommodate new weapons, tactics and soldiers. But neighboring ranchers united to fight the effort, picking up support from state lawmakers and members of Congress.

They also filed a federal lawsuit accusing the Army of not carefully considering the environmental impact of the expansion on the arid, short-grass prairie landscape. Judge Richard Matsch is scheduled to hear arguments in that case in Denver on Wednesday.

Ritter said the bill was not anti-military, as Colorado's two Republican congressmen suggested. He said it doesn't resolve the issue but will provide farmers and ranchers with a safety net while negotiations continue with the Army.

"This legislation says to landowners that their state government is listening. It also reaffirms our commitment to work with all stakeholders to find a mutually agreeable path forward, a path that protects private property rights and allows the military to effectively train this nation's fighting force," Ritter said.

What this Governor is really saying is that he wants your vote.  The reality is that  the United States can acquire the property if the public need is there to expand the facility.  What the State of Colorado has to say would be irrelevant because the Constitutional delegation for the military needs of the United States of America will prevail over local desires!

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Desert Dispatch

California’s budget problems are structural and require fundamental long-term changes. One such change, which could eventually make a $5 billion dent in the state’s estimated $24 billion deficit, is a revamping of the state’s redevelopment law, a 1950s-era relic that siphons away 10 percent of the state’s property tax revenue and diverts it to developers who are subsidized to “redevelop” shopping centers and vacant land.

Redevelopment is problematic for many reasons. It is a central-planning mechanism that undermines property rights and shifts development decisions from the free market to government planners. It was meant to be temporary — a tool to allow cities to stimulate growth in blighted areas. It has become a permanent bureaucracy that allows cities to incur enormous debt without a public vote. There’s much to debate about redevelopment’s policy implications, but the amount of money involved should focus the Legislature’s attention on this process as soon as possible.

Should residents pay more taxes for a program that basically subsidizes developers? Should education and other services be cut while billions of dollars in subsidies and debt get a pass?

Reforming or even shutting down the redevelopment process could send billions of dollars back to Sacramento. Redevelopment agencies are, by law, state agencies even though city officials run them.

Since the state is in control of the agencies, then the state should take back its money. The state should freeze all new redevelopment projects. Much of the money would go toward paying off existing redevelopment debt, but a significant chunk of the property tax diversions go to pay for redevelopment’s administrative costs.

It also would have other policy benefits, given that redevelopment agencies routinely abuse eminent domain, facilitate overdevelopment of shopping centers and impose low-income subsidized housing on cities. It’s time to take a close look at the redevelopment game.

The notion that the "government knows best" has come full circle. The collectors now realize that by giving away everything to developers, the cupboard no longer has the ability to tax.

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The Philadelphia Inquirer

The 104 acres, called a mess by the borough, are central to plans for redevelopment. Now the company is suing.

Consultants examining 189 acres targeted for redevelopment in Palmyra found the largest property owner's site in disarray.

The Fillit Corp. site, they wrote in a report last year, was covered with ground-up vegetation, mounds of mulch and topsoil, a dilapidated office trailer, inoperable vehicles, and piles of junk abutting Pennsauken Creek.

Also, it and nearby properties were the subject of ongoing investigations into contamination from a long-closed landfill, while its soil samples had elevated levels of pesticides, arsenic, and other chemicals, according to borough records.

Now Palmyra is fighting a legal challenge from Fillit over the borough's designation of the area as in need of redevelopment - a lawsuit that has thrown another obstacle before a major South Jersey project already scaled back because of the economy.

Once a sand- and gravel-mining operation, the land is mostly used as a recycling facility where vegetation waste is turned into products such as mulch and wood chips, according to court records. The site is part of a state-designated Brownfields Development Area, where an environmental contractor is conducting an investigation that will lead to environmental-remediation and reuse plans.

The area has been used for deposition of dredge spoil from the Delaware River, an airport, and a munitions testing area.

A municipality that takes certain steps under New Jersey law to designate an area as blighted, and hence in need of redevelopment, may take the property by eminent domain.

Fillit's real concern is it doesn't want to give its property away "and owe money, and the lawsuit makes everybody come to the table and makes everybody sit down and discuss it," Rucker said. "We don't want it to be tied up, they want to sell it, so there's got to be somewhere in the middle we can reach."

In its normal avaricious fashion, a New Jersey community is making a 'contamination claim' to support a desire to condemn a property. Clearly, the eminent domain process contemplates acquisition for public use, fully contemplating public safety as such a public use. Nevertheless, behind the veil of 'contamination' courts should skeptically review whether the police power argument is simply a way to obtain a parcel which otherwise could not be purchased.

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Enid News

OKLAHOMA CITY (AP) — Two judges in northwestern Oklahoma have ruled for Oklahoma Gas and Electric in its attempts to gain private property through condemnation so it can build a high-voltage oltage transmission line.

OG&E wants to build a 112-mile-long, 345-kilovolt transmission line to carry electricity from wind farms near Woodward to Oklahoma City.

Landowners argued OG&E would use the lines for private purposes because it wanted to sell much of the electricity out of state.

But judges in Blaine and Dewey County ruled Monday in separate cases that OG&E has shown its customers in Oklahoma would also benefit and the condemnation should be allowed…

Some landowners have said they fear the line will devalue their properties, obstruct their views, create dangers for crop dusters, damage global-positioning systems on expensive farming equipment and create health risks for landowners who have pacemakers.

For the most part, the propriety of the routing is to be determined at the administrative hearing level. The hearing will be at the Federal (Federal Energy Regulatory Commission) or state public service (utility) commission.

In the best of circumstances, the chance of a successful challenge at the trial court level is minuscule.

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Syracuse.com

A judge has struck down an attempt by the Macy's Department Store at the Carousel Center to collect more than $50 million from the mall's owner in a dispute over the building's expansion.

Macy's filed a lawsuit in April 2008 accusing Carousel Center Co. of breaching a series of real estate agreements related to its store at the mall, which opened in 1990. The suit alleged that Carousel broke those contracts by "inducing" the Syracuse Industrial Development Agency to use its eminent domain powers to take away some of Macy's rights as the mall's biggest anchor store.

Macy's also is seeking compensation in a separate valuation proceeding as part of the eminent domain proceeding. But it filed the breach of contract claim after Carousel Center and the development agency took the position that any "consequential" damages arising from an eminent domain action are not recoverable under eminent domain law.

On May 19, Cherundolo granted Carousel's request that the lawsuit be dismissed. He said the store could make no claim against the mall's owner over an eminent domain action by a government institution, even if Carousel Center asked the government body to take the action.

He said the U.S. Supreme Court has repeatedly declared that every contract, whether between the state or an individual or between individuals only, is subordinate to the government's right to appropriate property or property rights.

"Whether enticed to do so or not, that was a decision made by a local government institution, one empowered by eminent domain, and one that has made an independent decision based upon its own needs and adequate public purpose," he wrote.

Without regard to the merits of the claim of inducement to take the tenant's rights, this is a prime example of the importance of a carefully drafted condemnation clause in a lease!

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NECN

Some residents of Warwick, Rhode Island have begun the fight against a runway expansion plan at the state's largest airport, T.F. Green.

Federal officials have endorsed a plan to extend the main runway at T.F. Green Airport by 1,500 feet.

A runway extension would accommodate jets with larger fuel loads -- such as those making nonstop flights to the West Coast and Europe.

But the expansion would come at the expense of 11 homes, 10 businesses and athletic fields, which would be demolished in order to obtain the necessary space for a longer runway.

Other property owners living close to the expansion could elect to sell their land under a voluntary program.

Airport officials have tried to expand T.F. Green's runway for a decade but met resistance from local residents who could lose their homes.

The airport intends to buy the land necessary for its expansion in private deals with owners, but it could ultimately use eminent domain laws to take the land and compensate the owners.

This is serious business.  Airport takings are like few others.  The impact of past activity is relevant to the existing values.  The diminutions created by the existing runway must be appropriately dealt with in this Rhode Island eminent domain proceeding.

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Delco Times

U.S. Rep. Joseph Sestak, D-7, Of Edgmont, said Sunday the real linchpin to halting the Federal Aviation Administration’s NY/NJ/PHL Metropolitan Airspace Redesign lies in Tinicum.

Philadelphia, as owner of Philadelphia International Airport, hopes to acquire some 72 homes and 10 businesses in the township as part of a proposed capacity enhancement plan.

Under an agreement that expired in 2007, the city required township approval before it could buy land in Tinicum, but no new agreement has been reached. Philadelphia does not have eminent domain outside its borders.

According to a Government Accountability Office report published last year, the FAA did not do a cost-benefit analysis before implementing the redesign, which Sestak said only reduces flight delays by less than a minute in its current form.

Delays could be further reduced were Philadelphia to acquire the Tinicum properties for the CEP, said Sestak, but the $5 billion price tag for that plan is prohibitive and the resulting delay reductions are minimal.

He is instead urging PHL to employ smaller regional airports for commuter flights, which would be far less costly and have a greater impact on delays.

Here, we have what all too many around airports are learning or have, unfortunately, learned. The potential for diminution of use in face of a contemplated future eminent domain act is substantial. Facing a future condemnation places a severe blight on the property, which should be disregarded at the time of the acquisition.

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Choice ER

With Glenn County's landfill nearing capacity, the Board of Supervisors Tuesday approved an environmental report and authorized the process toward expanding the facility.

Glenn County Planning and Public Works has been looking for alternatives to expanding the landfill since 2005 because the facility is nearing capacity.

Deputy planning director Randy Murphy recommended the board approve plans for a expansion, lined to prevent seepage into groundwater.

The project is estimated to cost up to $5 million for the design and initial construction of the expansion.

Though expanding the landfill is aimed at extending its use 25 years, Murphy told the board he plans to only expand what he thinks would be needed in five-year increments.

"My intent is to bite it off in chunks, $5 million at a time," Murphy said.

To offset the cost, the board recently approved an increase in the landfill dumping fees. Murphy told the supervisors the county could also obtain low-interest loans through the state.

Additional environmental reports will also be done later to determine specific impacts.

Some of the supervisors voiced concern about proceeding while the county is still engaged in acquiring the leased landfill property through eminent domain, and wanted to wait.

The valuation of landfill property is a world unto itself. The adjacent vacant land has a myriad of potential alternative uses; all, which create values far in excess of what exists in the market.

 

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News Leader

CU wants to buy Spence's property -- and two other tracts owned by others -- to build a new bus transfer station at the corner of St. Louis Street and Benton Avenue.

CU has tried to negotiate a sale with Spence, but the tract, the former site of the Arbor Hotel, is included in an ongoing bankruptcy case Spence filed with the court.

On Wednesday, CU asked the court to remove the tract from the bankruptcy case so the utility could move ahead with efforts to acquire it.

"Nothing can be done with the property while it's in bankruptcy court," said CU attorney Rex McCall.

"For us to file for eminent domain, the bankruptcy court has to make it so it's not part of the bankruptcy case. If our request is approved, there will still be negotiations with her."

CU already has agreed to pay $305,000 for one of the transfer station tracts and $510,000 for the other.

However, those deals are contingent on CU reaching a deal with Spence for her property.

Neither Spence nor her bankruptcy lawyer, David Schroeder, returned News-Leader calls for a comment.

The acquisition of property in bankruptcy is not an easy issue. The rules of valuation are different. The effect of the impending condemnation frequently is a part of the cause for the bankruptcy filing. The Bankruptcy Court maintains the authority and discretion to release the property to allow the agency to file an eminent domain proceeding.

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Dallas News

The first two bills aimed at natural gas operations in North Texas' Barnett Shale passed in the Senate on Tuesday.

The bills, now headed to the House, are among a spate of legislation introduced this session to regulate various aspects of the industry, which channeled about $11 billion into the local economy last year, according to a recent report.

Activity in the massive underground gas field known as the Barnett Shale has slowed significantly because of the recession. But the hope among many is that lawmakers will put new rules in place this session ahead of any recovery.

"Now is the time for this to take place," said Fort Worth resident Greg Hughes, who opposes drilling in urban areas. "If we wait until the industry fully recovers, it will be too late."

With a record number of bills introduced this session – and a majority expected to die – some North Texas lawmakers said legislation affecting the Barnett Shale region is a high priority. The Barnett Shale spans 18 counties, including Tarrant, Denton and parts of Dallas.

One of the bills clearing the Senate would allow pipelines in Texas Department of Transportation rights-of-way. That means they could bypass some residential neighborhoods and possibly reduce the number of eminent-domain cases.

"It is important that this industry grows in a way that is respectful to the neighborhoods and quality of life that Tarrant County families enjoy," Sen. Wendy Davis, D-Fort Worth, said in a prepared statement.

The bill, sponsored by Davis, also has the endorsement of industry officials…

One would hope that the local public interest organization is involved in the process to insure the protection of the property owners.   There involvement is especially important to the owners of mineral rights, which may not be fairly recompensed.

 

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StlToday.com

Spirit of St. Louis Airport soon will start buying 345 acres that it uses but does not own.

The airport has received a $1.458 million federal grant for the first year of a three-year project to buy out the land owners. John Bales, the county's director of aviation, said the airport hoped to buy 100 acres this year, but the precise acreage won't be known until appraisals and negotiations are completed. Bales said that eminent domain will not be part of the process.

The purchases would start with critical parcels — those under runways, taxiways and key buildings, he said.

The county, the Federal Aviation Administration and state transportation officials agree that Spirit would avoid a financial crunch if it bought the parcels now rather than wait until leases are close to expiring, Bales said.

Haglin & Co., the private company that opened the 1,250-acre airport in 1964, obtained the ground in 1961 through 99-year leases, mainly from farmers.

The county, which bought the airport in 1980, pays a total of nearly $44,443 a year to the leaseholder

The County Council last week approved the hiring of O.R. Colan Associates of Fort Lauderdale, Fla., as a consultant to handle the purchases in all three years of the project. Colan will be paid $234,000 over the three years to take care of appraisals, title searches, land and environmental surveys and negotiations with the property owners.

The condemnation of land leases is not quite so simple. The leases were initiated when the airport desired the revenue from private parties (all to the detriment of potential competitors in the marketplace) after expropriation from private owners. Now after having the benefit of the income on land taken by eminent domain it will condemn the leases.

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Harvard Law Record

President Barack Obama '91's plans for energy and climate-change policy could alter the balance of power between the federal and state governments, according to Adam White '04, an Associate at Baker Botts LLP who specialized in energy litigation.

White spoke on Monday, April 20 at an event co-sponsored by the Harvard Federalist Society and the Harvard Journal of Law and Public Policy.

White, who clerked for Judge David Sentelle of the D.C. Circuit after his graduation from HLS, described his job- litigating constitutional and regulatory issues specific to the energy industry, particularly at the appellate level-as "the most interesting job in energy law."

According to White, pursuing President Obama's goals for energy and climate-change reform will require making choices about the allocation of power between the federal and state governments, creating tension that White described as having been "strangely overlooked."

Because energy infrastructure often crosses state lines, the federal government may seek to pre-empt state regulations. Most statutes, however, give the states "out-and-out vetoes" over federal projects, White said.

This can create a set of complex interactions that White referred to as "the Adam White full-employment plan." "When Congress thinks its making things easy, it usually isn't making things easy," White said. "Congress needs to make clear what they are doing with state and federal power."

Realistically, there are two conflicts at hand with the proposed power line expansion. First, is the potential for conflict between federal and state decision making processes. The second conflict arises out of the fact the utility companies are for profit entities all the while using the cloak of 'public use' to condemn private property. This problem is exacerbated by a complete lack of state utility public service commission restraint and review.      

 

 

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Texas Lawyer

A California woman has drawn a line in the sand, contending that the state should pay her for homes it says she must remove from what is now a public beach.

A divided 5th U.S. Circuit Court of Appeals panel asked the Texas Supreme Court to answer three questions that could settle the dispute.

But the importance of the opinion goes beyond the two beach homes. One legal expert believes the case could lead landowners to run to the courthouse any time a hurricane shifts the shoreline, and a law professor maintains a victory under the plaintiff's novel legal theory could result in more Fourth Amendment unlawful-seizure claims over real property.

After Hurricane Rita hit the Texas coast in September 2005, state officials informed San Diego attorney Carol Severance that two beachfront houses she had bought earlier that year in Galveston were now on the public beach and subject to a removal order at any time.

Severance sued state and local officials, alleging in her October 2006 second amended complaint that they were unlawfully enforcing the Texas Open Beaches Act (OBA) in a manner that deprives her "of valuable real property and homes without rational basis or just compensation." In May 2007, U.S. District Judge Kenneth Hoyt of the Southern District of Texas in Houston granted the defendants' motion to dismiss Severance v. Patterson, et al. Severance then appealed to the 5th U.S. Circuit Court of Appeals.

Judge Jacques Wiener Jr., the third member of the 5th Circuit panel, has a different view of the property rights issues. Wiener wrote in his dissenting opinion that the majority incorrectly held that Severance has standing to assert her takings claim if it becomes ripe.

"At bottom, there is but one easement, albeit one whose boundaries could shift and have shifted. Thus, if there ever was a taking, there was but one — and it occurred long before Severance acquired title to the properties," Wiener wrote.

As noted in the dissent, shifts in the vegetation line do not create new easements but instead "they expand the size and reach of that one dynamic easement."

Wiener also wrote in his dissenting opinion that Severance lacks standing to bring her Fourth Amendment seizure claim. According to the dissent, the U.S. Supreme Court's 1984 decision in United States v. Jacobsen defined a "seizure" for purposes of a Fourth Amendment claim as a "meaningful interference with an individual's possessory interests in his property." The owner of the properties at the time the public's easement attached held the "right to exclude" the public from the dry beach portions of the property, but Severance has never had that right, Wiener wrote.

In his dissent, Wiener also took issue with what he perceives are the objectives of Severance and the Pacific Legal Foundation (PLF) in bringing the suit, which he calls a "quixotic adventure."

Public beach cases divide state judiciaries. Nothing created greater controversy in the Michigan Supreme Court opinions than where one could walk in the "water." This has a state law underpinning, yet property rights under the navigable water rules.

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WSJ.com

U.S. Supreme Court rulings on property law don't often serve as clarion calls to wide swaths of the population. But most rulings aren't Kelo v. City of New London.

States long have had the power to condemn private property for such purposes as building highways or bridges. But in the 2005 Kelo ruling, the court held that governments also can take property for the purpose of promoting "economic development," a broader justification than the court had previously allowed.

The ruling led to a widespread backlash, with more than 40 states passing laws in recent years aimed at limiting the power of so-called "eminent domain," including measures to remove "economic development" as a justification for seizing property.

But in many states the effort to blunt the impact of the Kelo ruling has proven elusive, say some property-rights advocates and academics. The problem, they say, is that many states still authorize the seizure of property that is deemed "blighted," a term often defined so broadly that it enables "virtually any property to be condemned," says Ilya Somin, a professor at George Mason University School of Law.

As a result, property-rights advocates say, states should adopt legislation that redefines blight. "It should be confined to true nuisance properties that pose a direct threat to public health and safety," says Scott Bullock, a lawyer for the property owners in the Kelo case.

Eminent domain undoubtedly can serve as a useful tool for cities, say D. Benjamin Barros, a property-law professor at Widener Law School. He cites the seizure of the area where New York's Lincoln Center was built, which helped revitalize Manhattan's Upper West Side. Still, he says, many states' blight laws need reform. "Blight is so broadly defined in many states it gives governmental authorities almost unlimited power to use eminent domain."

Many jurisdictions, which now limit eminent domain proceedings for blighted properties continue to have to deal with the question of how to determine what is a 'blighting' influence.  With the forthcoming destruction of neighborhoods due to the foreclosure melt down, the issues will be at the forefront shortly.

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Sealy News

Texas representatives have added additional protection to landowners against eminent domain abuse by repealing the “jury of view” process from the transportation code.

The legislation, authored by Rep. Lois Kolkhorst, R-Brenham, repeals the powerful, but rarely used process known as “jury of view”, which local governments can invoke to remove important constitutional protections usually afforded to landowners. The process gives county commissioners the opportunity to appoint five individuals to determine the path of a road and assess any damages incurred by property owners with no appeals process.

“This is a great example of how getting rid of a law will protect our rights and give more power to the property owners,” Kolkhorst said. “We need to shut down this loophole because it gives the government a way to avoid eminent domain proceedings.”

Landowners who oppose the process say that jury of view allows local governments to be the final arbiters of a land condemnation proceeding and denies affected parties a new trial to review or challenge a condemnation decision.

Critics say the process has sometimes been abused, and has been selectively used by local governments hoping to avoid the scrutiny that traditional eminent domain hearings may bring to controversial projects.

“This law denies the public their constitutional due process to landowner protections. It’s time to get rid of it, and I’m glad my fellow lawmakers agreed,” Kolkhorst said.

The bill passed unanimously and had the support of the Texas Farm Bureau.

By legislative action, Texas is modifying what might have otherwise required judicial nullification of an unconstitutional process. 

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Leaf Chronicle

The libel suit filed against members of the Clarksville Property Rights Coalition has been dismissed.

In a ruling late last week, Sumner County Judge C.L. Rogers dismissed the libel suit filed by Richard Swift, a former City Council member, and Wayne Wilkinson, a member of the Downtown District Partnership.

The two filed suit after the CPRC ran an ad in The Leaf-Chronicle on May 3.

The ad urged the public to lobby their representatives to vote against the Clarksville Center Redevelopment Plan, whose references to eminent domain proved controversial.

"This redevelopment plan is about private development. Our city government is controlled by developers," the ad said. "Mayor Johnny Piper, Councilman Swift and DDP member Wayne P. (Wilkinson) are all developers."

Rogers ruled that the ad was not libelous because it did not meet the standards of defamation.

"Accusing a public official or public figure of using their political influence to obtain a benefit for others or of themselves or favoring their supporters is not defamation," Rogers wrote in his ruling.

Swift and Wilkinson had sought $500,000 in damages. Under Rogers' ruling, the two will be assessed court costs.

A link to Rogers' complete ruling is available to the right of this article.

For more on this story, see tomorrow's Leaf-Chronicle.

It is tough enough one loses property, but it is unfathomable that, along with the violation of the Fifth Amendment, the individual's First Amendment rights are encumbered.

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Right Side News

As discussed in Fallout from the Energy Policy Act of 2005, Pt 1, the United States federal government is taking a more and more integral role in the distribution and transmission of electricity and in the energy sector throughout the U.S. And such is the result of both federal regulations and laws mandating the deregulation of public utilities as well as the repeal of the Public Utilities Holding Company Act (PUHCA) of 1935, as mandated in the Energy Policy Act of 2005 (EPAct 2005). It will prove to have profound impacts on the future of not only the fiscal health of public utilities but the oversight of their maintenance and the future construction of transmission lines.

This continuing report, on the exploration of EPAct 2005, will focus upon a section of the law which has not been clearly articulated for the American people by either the Department of Energy (DOE) or members of either the U.S. House of Representatives or the U.S. Senate. Yet, this complex and important body of law represents but an ad hoc and unilateral takeover of not only the direction of energy policy but the very delivery system which Americans rely upon in order to live. …

…And to add insult to injury, Section 216(e) of EPAct 2005 on Rights-of-Way, "If a permit holder cannot obtain the necessary rights-of-way for the project, the permit holder can acquire the rights-of-way through an eminent domain proceeding in the federal district court where the property is located." And furthermore, in Section 216(f), "A right-of-way acquired in an eminent domain proceeding is a taking of private property for which the landowner must receive just compensation, which is the fair market value on the date of exercise of eminent domain."

Therefore, any fluctuation or rise in real estate property values during the course of the proceeding and including any period of time due to litigation arising from such a proceeding to the time of completion of the project, if finally approved, would not be taken into consideration. And the compensation or fair market value of the property to its owner would be locked in by the date of the initial date of the proceeding, which could potentially be years, as in the case of Kelo v. City of New London, CT 545 U.S. 469 (2005).

This is an interesting contrarian review of the now omnipresent energy policy, which will control transmission activity for years to come.

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Twincities.com

Minnesota regulators today approved plans to build three long-distance, high-voltage transmission lines, with the condition that one of the lines carry wind energy.

The state Public Utilities Commission granted a certificate of need for the $1.7 billion CapX 2020 project, which involves erecting three 345-kilovolt lines designed to meet the needs of the state for the coming decade.

"It's a great day for us," CapX 2020 chairman Will Kaul said, after two days of commission hearings in St. Paul.

The project, which was pushed by a group of 11 utilities led by Xcel Energy and Great River Energy in the Twin Cities, will have to sign agreements with wind developers for the line that stretches from outside Brookings, S.D. to the town of Hampton in southeastern Dakota County.

Renewable-energy advocates and environmentalists had pushed for that condition on all three lines but agreed to a last-minute compromise hammered out during the hearing today.

All the lines still need permits for their final routes. Some landowners along the Brookings-to-Hampton line told the commission that the state's eminent domain laws governing land-taking will have to be changed to ensure they get a fair price for their land.

Once the approval process is on its way, the landowners looking for assurance of just compensation will be "left in the backwind" so to speak.

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Star Tribune

In a case that sparked intense turmoil and contributed to the ouster of a long-time mayor, the Minnesota Court of Appeals has ruled that the city of Jordan may not carve into the grounds of a historic Catholic church in order to widen roads for future growth.

Unanimously overturning the opinion of Scott County District Judge Michael Fahey, the appeals court said Tuesday that state law prohibits cities from seizing the property of religious groups without their consent when it seeks to widen streets or roads.

The controversy carried huge symbolic weight for many in Jordan worried that Scott County's hypergrowth was ripping into the fabric of a historic downtown.

"Widening a road so close to an important historic structure is the heart and soul of the case," said Larry Martin, the church's attorney.

The city council may decide as soon as today whether to seek to take the case to the Minnesota Supreme Court.

"Right now we're praying for the city and praying for a peaceful resolution," said Pam Beckius, business administrator for St. John the Baptist Catholic Church, at the edge of downtown.

The case did present the courts with a twist they hadn't quite seen before, Martin said. It's clear that Jordan couldn't have forced the church to give up land for a street, as such. But it was not so clear that the same law forbade the use of eminent domain to take church property for the traffic signals and sidewalks needed for a wider road.

One thing the case precedent is consistent about is that when there is a prohibition on government from condemning a specific object, be it a church, cemetery or something else, the courts will refuse the condemning agency’s attempts of involuntary acquisition.

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Chicago Journal

Brian Elmiger, owner of the restaurant and concert venue Bottom Lounge, found out more than seven years ago that the CTA planned to take his property. So he relocated from next to an el stop in Lake View to the West Loop. Today, Elmiger says he would never have made the move, to a refurbished building at 1375 W. Lake, if he'd known how much it would cost him.

"It is an absolute miracle that we opened again," Elmiger said. "I mean, a miracle."

But Bottom Lounge isn't out of the woods quite yet. The path to reopening involved hiring attorneys, paying for construction and, subsequently, a whole lot of debt. Three years after closing down and almost a year after reopening, Elmiger is fighting to get the CTA to foot a bill that amounts to hundreds of thousands of dollars.

So far, the CTA has forced 30 businesses to relocate to expand the Brown Line. And the temporary closing of el stops for project construction has affected them even more. At first glance, eminent domain seems like a simple law.

"This is the way public bodies get land," said Bill Ryan, a partner at Ryan and Ryan, a law firm that specializes in eminent domain cases. Ryan said there are two big questions that come up in every eminent domain claim he works on.

"One, do they," the public body, "have the right to take the property and, two, how much money do they have to pay?"

The Fifth Amendment says government can't take private property without paying for it, which is where the law leaves room for interpretation. The phrase is "just compensation," and the debate centers around what's just.

"On value, it's a wide-open issue," Ryan said. "It's a regular lawsuit: we have depositions, discovery and negotiations, and if we can't resolve it, then we have trials."

But "just compensation" can also reach beyond property value.

Because the Brown Line Expansion Project used federal funding, the CTA also had to comply with the Uniform Relocation Act, which, according to Ryan, means that the CTA was also responsible for relocation expenses. It's yet another law that leaves room for interpretation.

The $530 million Brown Line project broke ground in 2004 with the goal of providing longer platforms to accommodate longer trains, making Brown line stations accessible to disabled people, and modernizing stations. The CTA says they expect to complete construction by the end of 2009.

Public use requires the taking of land. As this article illustrates, the harm to owners is specific and can be harsh. The just compensation process provides owners the only available remedy when there is condemnation for a public use. Bill Ryan's comments are well stated.

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Washington Post

Rampant redistribution of wealth by government is now the norm. So is this: This redistribution inflames government's natural rapaciousness and subverts the rule of law. This degeneration of governance is illustrated by the Illinois legislature's transfer of income from some disfavored riverboat casinos to racetracks…

George Will possibly has this one wrong. 

Many states are increasing tax rates on gambling franchises in order to benefit other gambling franchises. This is especially true in jurisdictions which now allow casinos. Previous to the grant of these gambling casino licenses, racing was the main gaming venue in the community. Not only did this allow individuals to gamble, but it provided an opportunity for racing to prosper. With casinos, all this has changed. George Will would have one believe that detaxation of the casinos for the benefit of the racetracks is an improper act. However, what is not understood is that these gambling casinos have licenses which are grants by the government, not property rights. 

All too often, individuals lose their property rights and are not fairly and fully compensated. Businesses severely interfered with by governmental action are often treated with disdain, commonly having to deal with the issue that these damages are too speculative for them to be paid and therefore, no damages should be paid at all.

In this circumstance, we have something analogous to what are called "grazing cases" in the federal sphere. In the grazing areas throughout the Rocky Mountain states, ranchers have relatively small tracts of land which are not large enough to suit grazing. However, when the government provides federally-owned grazing lands at a relatively low price, successful cattle ranching activities may occur. When these ranches are condemned, owners attempt to claim that the compensation should include their beneficial grazing rights that they have obtained from the federal government. Courts have consistently held that the grazing is simply a license and the federally-owned land should not be considered as part of the parcel.

Relief has been granted in certain circumstances by legislative action. Nonetheless, what is the difference between ranchers who do not own land, but want to be compensated, and those who receive the benefit of a gambling license?

 

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The second Suffolk native appointed to a Hampton Roads judgeship in February said his ambition since law school has been to sit on the bench.

“It’s something I decided I wanted to do while I was in law school,” said Philip Infantino III, who attended Washington & Lee University School of Law, graduating in 1991.

His aspiration to the bench developed as he worked for local law firm Pender & Coward during the summers while he was in law school, he said.

“At that time, I decided I did not enjoy the practice part of law as much as I did the intellectual kind of law,” he said.

In practicing law, Infantino said, it is sometimes difficult to reconcile personal beliefs with a client’s best interest. He has concentrated almost exclusively on eminent domain law during his career.

“Everything you do is adversarial,” he said. “You have to take a position whether you believe in it or not.”

By contrast, being a judge will allow him to be in the position of studying the law and determining the intent of the law.

“I just like reading law and figuring out, ‘What’s justice, what’s right?’” he said. If he had never made it to the bench, he would likely have wound up being a law professor at a university, he said.

Infantino watched the General Assembly vote on his appointment via Internet on Feb. 28. He will take the bench in Chesapeake’s General District Court on April 1 – earlier than most other new judges, since his seat has been open since November. In fact, he already has been substituting as a judge in that position, anyway.

“It should be a rather smooth transition,” he said. “They needed to get somebody in there pretty quick.”

Suffolk attorney Dave Arnold will take over Infantino’s cases.

“I’m very excited to serve,” Infantino said. “It’s a great honor.”

Congratulations to a great eminent domain lawyer.  May you represent our society as well as you represented your clients.
 

 

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Southern Maryland

Gov. Martin O'Malley proposed legislation Wednesday aimed at increasing the state's power to keep the Preakness Stakes in Maryland, despite potential legal challenges stemming from the race owner's recent bankruptcy filing.

The bill, which has the support of legislative leaders, gives Maryland the authority to acquire the Preakness and the two major horse racing tracks in the state through purchase or eminent domain as a last resort. Canada-based Magna Entertainment Corp, which owns the Preakness, Laurel Park and Pimlico Race Course, filed for federal bankruptcy protection in early March.

Eminent domain is the legal and compensated taking of private property by the government for a public use.

The bill also authorizes the Maryland Economic Development Corporation to issue bonds to purchase the rights to the Preakness and the racetracks.

Existing Maryland law gives the state first right of refusal if the Preakness is sold, but Magna's bankruptcy filings have clouded the issue of whether the provision would still be recognized in court.

In late March the state filed motions with the U.S. Bankruptcy Court in Delaware, where Magna has filed for Chapter 11 protection, to affirm its legal right to purchase the Preakness. Attorneys for the state remain hopeful that the federal judge will recognize its right of first refusal.

But Austin Schlick, the chief of litigation in the attorney general's office, said the state has also been working with Magna's attorneys and that he is "optimistic" the two parties can reach an agreement recognizing the state's right to hold on to the Preakness.

In light of the potential legal hang-ups, O'Malley said the bill gives the state the "maximum amount of flexibility in order to protect the state's best interests under any scenario."

Schlick said the state is wise to push the legislation at this time. Maryland does not understand what it is getting into when it attempts to acquire the horse track. The bankruptcy adds a layer of issues. Good luck. After all, the highest and best use may be a use other than as a race track!

The State is on the one hand omnipresent, but on the other, it is limited by its own constitutional delegations and limitations. Maryland could be in a position which it pays far more than it thought would be required.

Surely, the take will need to be a 'slow take' or the State runs the risk of raiding its own treasury out of pride.  

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Daily Herald

The former owners of an Arlington Heights strip mall sued the village in federal court Friday, seeking more than $5 million for losses allegedly due to the village scaring tenants away.

Ron Popp and Victor Valenti bought the Arlin-Golf mall, a short strip of stores off Arlington Heights Road just north of Golf Road in June 2001, said their attorney Joseph M. Williams.

Contrary to reassurances given by the village before the pair bought the property, Williams claims, the village announced six months later in January 2002 it was creating a tax increment financing district to redevelop the mall and the adjacent International Plaza at Golf and Arlington Heights Road.

In the meantime, Popp and Victor had put money into fixing the place up, which increased the occupancy rate to about 74 percent, Williams said. But the suit claims that village representatives repeatedly told prospective clients they were 60 to 90 days from taking the land by eminent domain and leveling the buildings.

In one case, the suit claims, a tenant the pair managed to land was told by the village that the municipality actually owned the land, which was not true, the suit claims.

Meanwhile, the suit claims the village paid one tenant, Bangkok Cafe, $30,000 to relocate, and other tenants fled, fearing the mall was doomed, Williams said.

Even though the pair could not retain tenants, the taxes on the property went from $27,000 when they bought to $60,000 when they sold late last year.

The village eventually paid $1.6 million for the Arlin-Golf mall, which the suit claims was less than its true $2 million value. Williams claimed Popp and Valenti sold only because of financial threats the village made against them and the fact that they were on the verge of financial ruin.

Additionally, the suit seeks over $5 million in lost rentals and other expenses.

The difficulty of obtaining tenants when an owner faces the prospect of condemnation is overwhelming. The eminent domain process is difficult under the best of circumstances. However, when one does seek rental reimbursement the local statutes and laws must be closely followed.

 

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Farmington Independent

For months, area electric utility companies Great River Energy, Xcel Energy, along with nine others from the Dakotas to Wisconsin, have held public meetings to explain a proposed power line expansion project called CapX2020.

But a group here in Dakota County is not buying into it. In fact, the Citizens Energy Task Force argues parts of the project are simply not needed. CETA backers say the proposed 345 kilovolt power line that is proposed to come through parts of Eureka and Castle Rock townships and end in Hampton could pose health problems, and certainly decrease property value.

Perhaps most of all, though, CETA members want to make sure that landowners along the route are fairly compensated for the land that the utility companies will acquire for construction of those power lines.

But one of the biggest issues Maccabee and Topp see landowners facing is their ability to be appropriately compensated for the land the utilities group will acquire for construction of the power lines.

The concept is not a foreign one to the area. In 2007, a group of Empire township residents took Great River Energy to court over a 115 kV power line. One homeowner had initially been offered $14,600 for the easement by Great River Energy, but after an appeal received $55,000. The only problem was, a chunk of that award went to the lawyer who fought for the group.

Topp and Maccabee would like to see something built into the state’s laws that support landowners’ rights, but any such legislation did not get introduced this year, Topp said.

Local owners fighting with low transmission companies seem to be endemic to the system. Making the system fair to the affected owners is difficult.

The costs to the individual owner can be overwhelming. 

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Las Vegas Sun

Even snippets of comments by Senate Majority Leader Harry Reid can make big news. Entire stories are written from sentence fragments grunted in a hallway.

But Friday morning, Reid had time to expand on his thoughts for nearly an hour at a breakfast with more than 30 journalists. It was a fresh opportunity for the nation’s reporters to see Reid unplugged.

He put on quite a show. As his autobiography reminds, Reid offers flashes of wit, impatience and steeliness. Friday, he touched on the war in Afghanistan, AIG bonuses, Supreme Court Justice John Roberts’ truthfulness and his own reelection in 2010.

He also told the journalists they should eat healthier breakfasts.

Here are highlights, condensed and occasionally paraphrased for clarity:

Eminent domain for electrical transmission lines.

We need to have a public highway for electricity. We’re going to have to have eminent domain — that’s condemnation.

U.S. Senator and Majority Leader Harry Reid is blunt. Eminent domain will be used to construct the power lines for the grid. The problem remains who decides where it goes....should it be decided on the State or local level or by the Federal Energy Regulatory Commission?

 

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Clarion Ledger
Lawmakers in the Mississippi House voted overwhelmingly today to override Gov. Haley Barbour’s veto of a bill that strengthens Mississippians’ property rights.

The attempt to override Barbour's veto of House Bill 803 received support from 101 lawmakers, and 19 voted against it. Senators have not made a similar attempt.

The legislation restricts the use of eminent domain to direct public use, with a few exceptions. The government uses the procedure to take private property for certain projects.

Barbour, a Republican, has said the bill would hurt the state’s attempts to attract major economic development projects that provide jobs.

“I don't even believe in overriding the governor except in an extremely exceptional circumstance,” State Rep. Jessica Upshaw said as she urged her colleagues to override Barbour’s veto. “The individual landowner’s rights are something that should not be taken by our government for big business or anyone.”

The veto override requires an emotional and persuasive reasoned act by a legislative body.

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6 ABC

In Chester County, it's a fight over eminent domain between 36 homeowners and a natural gas company.

The plan is to replace a 50-year-old natural gas pipeline that goes through Chester County. The problem is that when the pipeline was built back in the early 1950's this was all farms and forests now it's East Caln Township.

Lou is one of the neighbors fighting the Williams Transco Company's proposal. That's primarily because the plan puts a new, larger pipeline right through his property not 10 feet away from his garage. And Lou says that while the company says it's willing to discuss options, he already received legal papers claiming eminent domain over his property.

"That's putting a gun and saying 'let's talk' I have a hard time talking with a gun to my head."

This is a very harsh result. A pipeline ten feet from a building violates every basic safety requirement. One has to wonder whether the owner ever raised the issue during the Environmental Assessment phase.

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Hometown Annapolis

A plan proposed this week by Mayor Ellen O. Moyer to use eminent domain to break the lease for the near-vacant Market House caught some by surprise.

City officials took the first step in that process by sending a notice yesterday to Site Realty Group, the Silver Spring company that holds a 20-year lease on the historic City Dock building, that it defaulted on its lease by failing to pay rent and by failing to keep the facility filled with vendors.

Moyer and city officials said the city is exploring whether to repossess the building by using the rarely invoked process of eminent domain.

"(Funky) is an apt way to describe" the maneuver, said Jack Morkan, an attorney representing several vendors that are suing the city and Site Realty in county Circuit Court for lease breaches.

Morkan said he did not hear about the city's eminent domain plans, which Moyer unveiled in her State of the City address at City Hall Monday night, until a reporter from The Capital contacted him.

"The city is a constant source of amusement," he said. "I don't think they'll find any support for this in Maryland law."

Site Realty officials could not be reached for comment.

Eminent domain allows the government to seize land or a building for public use or, at times, to make way for economic development. The court system determines the fair value the government must pay in order to take over a property.

Maryland is still open in allowing governments to take for purposes the government sees as 'public use.' However, there is the shocking relief available to the owner, known as 'just compensation.' The government might more than it wants, like a big bill.

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NWAnews.com

With negotiations stalling, the city of Rogers is going through with its threat to use eminent domain at the Rogers Municipal Airport.

The city was negotiating with four leaseholders who controlled three hangars at the airport. Dealings with two of the four have proven unsuccessful.

Deputy City Attorney Jim Clark filed one suit against Lemore Inc. in circuit court Monday. Attorney Tom Kieklak was expected to file a similar suit against Mike Moser on behalf of the city because of a relationship between Moser and the city, but Kieklak was unavailable for comment.

The airport is currently expanding its taxiways, thanks to Federal Aviation Administration grants, and the hangars involved in the suits are in the way of the expanded taxiway A. In both cases, the city offered the leaseholders 115 percent of the appraised value of their lease and their hangars, which is the threshold for FAA reimbursements. City Attorney Ben Lipscomb said negotiations failed, even though the leaseholders did not provide the city with counter-appraisals.

The eminent-domain lawsuit would allow a court to determine the fair value of the properties. In February, when the City Council approved the use of the lawsuits, Mayor Steve Womack said the FAA might be willing to reimburse more than 115 percent of the appraised value if such an amount was awarded by the court.

Airport expansion and hangar valuations are technical and have many pitfalls for which improper values and effective "low balling" of owners with unfairly low appraisals and offers are commonplace. 

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South Bergenite

Cherokee Porete no longer plans to move Arlington Valley forward. The redevelopment project aimed to transform a string of light industrial businesses along Porete Avenue in North Arlington into 1,625 homes, retail space and parks.

The developer officially abandoned its plans during a superior court hearing on March 3. Even though the project will not move forward, Cherokee Porete seeks unspecified damages from North Arlington. The redeveloper claims it spent $39 million on legal and engineering fees, among other things.

The project went sour in December 2006, when the developer sued the borough for allegedly failing to take the Porete Avenue businesses through eminent domain and hand them over to the developer, which was a stipulation of the redeveloper's agreement signed by former Mayor Russell Pitman in April 2006.

Additional court dates were scheduled for this week and Superior Court Judge Jonathan Harris will render a written decision another month or so after closing arguments. If North Arlington loses the case, borough attorney Anthony D’Elia has vowed to appeal the case.

Harris hinted at the possibility of a draw. "There could be a situation where nobody breached," he said.

This is the problem communities with failed eminent domain projects face. If things do not go well, they simply buy themselves a lawsuit and commensurate credit woes when the condemnation efforts fail.

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CQ Politics

Moving electricity generated by solar or wind power from sun-drenched deserts and windswept plains to energy-thirsty cities and towns will require thousands of miles of new power lines, many of which could cut across private property.

That, advocates say, will require strong direction from the federal government — including seizing land through the government’s “eminent domain” power.

“Renewables without eminent domain will not get to market,” said James Rogers, chief executive of Duke Energy Corp.

Planning electric transmission has traditionally been a state and local function, leading to a national grid that critics describe as a conflicting patchwork of regional systems.

Senate Majority Leader Harry Reid , D-Nev., has introduced legislation (S 539) that would authorize the federal government to supersede state and local authority in siting for thousands of miles of new power lines, as part of a broader effort to boost renewable-energy production.

This article discusses the issues related for the need to national coordination and construction of power lines. One has to wonder how to balance the rights of individual communities and citizens in the path of the proposed lines against the notion that the only good grid is determined in Washington.

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Trading Markets

While city officials work to raise $40 million to buy the old Norfolk Southern rail line, a city appraisal says the land is worth much less.

The city won't release the appraisal, citing "ongoing negotiations," but officials familiar with it said it values the corridor, the likely route for a light-rail project, at about $6 million. The assessed value of the rail line -- the amount Norfolk Southern pays taxes on -- is $7.3 million.

The $40 million asking price is about what a 2003 Norfolk Southern appraisal determined the land was worth. The line is 10.6 miles long and 66-feet wide., crossing the city from Newtown Road to Birdneck Road.

City officials are trying to pull together $40 million in local, state and federal money. The City Council has informally agreed to put up $10 million.

Mayor Will Sessoms, a light-rail proponent, said the Beach is close to a deal with Norfolk Southern. So debate over what the land is worth, which stalled past negotiations, may be moot.

This is an interesting issue. How do you value corridors? First one should look to the title to determine whether the corridor is held in fee or easement. If in easement, what are the limits of the easement? It is difficult to ascertain the extent of the interest from the article.

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Metropolitan News-Enterprise

A public entity’s failure to specify—in the resolution of necessity—the public use to which property taken by eminent domain is to be put cannot be cured by putting the land to public use after it is taken, the Third District Court of Appeal ruled Friday.

The justices faulted the City of Stockton for the manner in which it took two parcels on the North Shore of the Stockton Deep Water Channel as part of a plan to develop a multi-use complex, including an arena and minor league baseball park.

They reversed a final judgment and awarded litigation expenses to the former owner, Marina Towers LLC. But they concluded that it would be equitable to allow the city to pass a new resolution of necessity.

All too frequently, governmental authorities self perpetuate the thought that they do not have to rely upon a statutory delegation in order to condemn property. The California courts got it right in this case.

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istockanalyst.com

The U.S. Court of Appeals has thwarted James Lichoulas Jr.'s attempt to block Lowell officials from taking much of his Appleton Mills complex by eminent domain.

In a decision issued last week, the federal appeals court ruled that a lower court was correct when it rejected Lichoulas' lawsuit, in which he challenged the city's legal right to take by eminent domain the Appleton properties, which includes a defunct hydroelectric power facility designed to generate electricity from the water flow between the Pawtucket and Hamilton canals.

City councilors voted to take Lichoulas' land in April 2006, paying the property owner $2.5 million as compensation for nearly half of the land in what city planners call the Hamilton Canal District project, including the area slated to be occupied by a $175 million state judicial center. Lichoulas argues that amount was inadequate.

Meanwhile, the Federal Energy Regulatory Commission last March 2008 terminated Lichoulas' license to operate the Appleton Mills hydroelectric power project, as that facility is non-operational and has fallen into ruin along with most of the rest of the dilapidated mill complex.

But Lichoulas argued that the revocation of the license is irrelevant because state law assesses the legality of takings at the time the property is seized. The fact that the license was pulled after the taking cannot "taint the taking," he wrote.

He and his attorneys also have alleged that the Federal

Power Act of 1920 prohibits the City Council from using its eminent-domain powers to take the nearly 7-acre swath of land in question because a portion of it was licensed by the Federal Energy Regulatory Commission in 1986 for use as a hydroelectric plant.

The taking of already existing public use for public use has its own set of rules. Generally, there is a requirement that the sate legislature make a specific grant for a taker to take property already being put to public use. An electric plant would be such a public use.

Additionally, a basic tenet of law is that federal acts preempt state action. Here, there is no use. The property is not being used as a hydroelectric plant

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WLBT 3

If it's passed, a bill currently in the state senate could strengthen property rights for Mississippians. But could it also stunt economic growth for the state? 

During the 2008 legislative session, Jackson State University hoped a bill giving them "quick take" ability would pass so they could take advantage of tax credits for land development near campus. It died in committee.

This year, Senator Joey Fillingane hopes to toughen state law when it comes to eminent domain purchases.

"Under this current status of this law, you would not be able to take private property from a citizen and give it to a private developer simply to try to increase tax revenue," said Senator Joey Fillingane, (R) Sumrall.

David Wade at Mississippi Farm Bureau says it gives property owners true protection.

"It excludes everything but a true public use and that includes ... highways, it includes schools, it includes public utilities," said Waide.

But if the bill was law a few years ago, Senator Walter Michel says Mississippi would never have gotten the Nissan or Toyota plants. Michel considers employers that create hundreds of jobs beneficial also.

Mississippi is having the same problems as so many other States. When a limit is placed on eminent domain will that stop development? Is the community’s desire for a private development more important than private property ownership?

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Daily Gazette

CAPITAL REGION — Figures released Wednesday show that six counties in the Capital Region shed more than 58,000 acres of farmland and lost 104 farms between 2002 and 2007.

Results in the USDA’s 2007 Census of Agriculture show Schoharie County experienced the biggest loss in farms while Montgomery County lost the greatest amount of acreage in the five-year period.

Saratoga County, however, stands alone in the region, with increases both in the number of farms and acreage.

Albany County increased the number of farms but experienced an overall loss in total farmland.

The census reports that Montgomery County had 624 farms in 2002 and lost 20 in the five-year period ending in 2007 — but some officials in Montgomery County on Wednesday said they don’t believe there’s been such a widespread loss of farmland.

In terms of land, the agricultural census shows Montgomery County lost 27,421 acres, leaving the total 2007 acreage at 124,556.

Schoharie County lost a total of 54 farms and 17,245 acres of farmland during the period, representing a 9 percent loss in farms and 15 percent loss of farming acreage, according to the census.

“It’s been a long-term trend. I’m saddened,” Schoharie County Planning Director Alicia Terry said Wednesday.

Farming is considered the primary industry in Schoharie County and Terry said efforts to preserve farmland at the local level can only do so much.

Schoharie County has a countywide farmland protection plan and it was the first county in New York state to develop agricultural districts.

Limitations on eminent domain in agricultural areas are a two sided coin.  On the one hand, protection of the resource is maintained.  However, one has to wonder whether this takes away the private ownership rights of the individual owner, who may be limited in utilization of the property for other than agricultural use.

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Scranton Times

PPL Electric Utilities is seeking state regulator approval to use eminent domain to acquire more than a dozen sections of right of way still needed for a proposed $510 million transmission line through Northeast Pennsylvania.

In eminent domain applications filed this week with the Public Utility Commission in Harrisburg, PPL said it has been unable to reach right-of-way and easement agreements with 14 property owners — seven in Lackawanna County, six in Wayne and one in Monroe — although negotiations continue.

“We will be very happy if we don’t have to go to court on any of these properties,” PPL spokesman Paul Wirth said Friday. “We hope to reach agreements with as many (property owners) as possible.”

PPL applied to the PUC earlier this month for permission to construct a 101-mile, 500-kilovolt line from its Susquehanna substation near Berwick to the Delaware River near Bushkill. The project is part of the proposed $1.2 billion Susquehanna-Roseland interstate power line.

It is not a surprise that there are fourteen owners contesting a take. For the most part, the utilities try to do it right. However, sometimes they just 'miss the mark' and do not understand the damage being done to the property. Then, the owners have to contest and object, facing the forced acquisition process.

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CS Monitor

To justify taking homes and farms to build the Interstate highway, President Eisenhower cited a security need: Military vehicles must move fast in case of war. Now President Obama, citing a need to curb global warming, wants new transmission lines across America to carry electricity from carbon-free energy sources. Will he also use federal muscle to take people's land, even wilderness?

The question hangs like a sparking high-tension wire over Mr. Obama's plans to plow $11 billion – part of his economic stimulus – into a "smart grid," which is critical to his ambitious goal to curb fossil fuel use by 2020.

Even without a need to help renewables transmit electrons, the nation's electric grid needs an upgrade. Its structure hasn't changed much from the days of Thomas Edison. Blackouts, such as the big one in 2003 that left 50 million people in the dark, are increasing. Its 164,000 miles of lines and 9,200 generating plants are ill-equipped to accept power from small-scale sources such as wind, geothermal, and biomass.

Yet Obama wants to double renewable energy within three years and bring it "to every corner of our nation." Without smashing through local resistance and environmental concerns to new transmission lines, he's unlikely to reach his goal.

One problem is that the best sites for renewables are generally not near major cities. Sun is plentiful in the Southwest and wind in the Great Plains. Most Americans live near the coasts.

The great (and well founded) fear is that the national government will take the place of the state and its local agencies in making decisions.

This could be a serious long term destruction of the federalism process used through the years in the placement of the electric grid. The authority was granted by the legislation three years ago, and now its dangerous engagement is about to take place.   

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 Observer

The owner of a set of storage buildings in West Harlem, Nick Sprayregen, has filed a lawsuit challenging the state’s use of eminent domain, he said this afternoon. The state has commenced actions to acquire the properties in connection with Columbia University’s planned 17-acre expansion in the area.

In Mr. Sprayregen’s 107-page petition, he challenged the state’s actions as unconstitutional, alleging the development is not intended for civic use. The petition claims that the area is not blighted, as required by law; that the studies demonstrating blight were highly flawed; and that the public approval process was rigged.

Among other claims, Mr. Sprayregen, the owner of Tuck-it-Away Storage, said that the city and state collaborated secretly more than five years ago to determine a strategy for the project, and quotes email excerpts that suggest some skepticism on the part of a city official about the process.

“Where a development agency colluded with a developer to drive out businesses,” the petition says, “vacate buildings, and then run them down, and then hired the developer’s own consultant to give the agency the basis for a blight finding, this case raises the questions of the proper limit of judicial deference to agency determinations.”

Colleges and universities have consistently and historically been treated as "public" for 'public use' purposes. What has occurred in many jurisdictions is the specific constitutional delegation for State University eminent domain actions. Frequently, there have been specific statutory delegations pursuant to a constitutional delegation empowering condemnation upon legislative grant. The Columbia University challenge will likely be peremptorily dismissed. 

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iStockAnalyst

Getting rid of Unitil following the December power outages will be easier said than done, State Rep. Stephen DiNatale, D-Fitchburg, said this week.

DiNatale said all of the options under consideration will cost cities and towns a lot of money.

"That's the reality of it," DiNatale said. "You simply can't take over a company."

Leaders in the four Massachusetts cities and towns served by the Hampton, N.H.-based utility are all working to get rid of the company.

Townsend and Lunenburg are forming committees to study the feasibility of either starting a municipal utility or finding another alternative to Unitil.

Ashby selectmen want to push the state Legislature to allow for competition between utility companies and two Fitchburg city councilors are pushing an effort to take the city's electrical system from Unitil by eminent domain.

All four communities lost 100 percent power during the Dec. 11 ice storm. It took more than two weeks in some cases before the power was completely restored, prompting complaints about Unitil's response to the crisis.

The Massachusetts Department of Public Utilities formally opened its investigation into Unitil's response this week.

The DPU will hold its first hearing at the Memorial Middle School in Fitchburg at 4 p.m. on Jan. 27.

Representatives with National Grid and Unitil declined to comment on the efforts to remove Unitil from the area…

Here, we have a writer simply assuming that payment of fair market value “will not be a problem” because the community will control the utility it desires to take over. This is a short sighted and risky approach.

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The Facts

The Economic Development Corp. and City Council will have a joint meeting to discuss all the issues and delays that surround the Freeport marina project.

At a meeting Thursday, corporation members approved a request by Mayor Larry McDonald to come together at 6 p.m. Jan. 20 and offer information about the project’s legal pitfalls and expected final price tag.

“I wanted to air out all the troubles that they’ve had and get everything back on page one,” McDonald said of the corporation. “I want the public to know what faults that they’ve found in the project.”

McDonald said the project’s tab could be significantly more than its original budget of $6.8 million, but he declined to elaborate. Corporation President Dan Tarver estimated a cost of $7.75 million.

Officials began discussing the marina project almost a decade ago with the idea it would help jump-start a revitalization in the port city. But since then, people in town have debated its need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

The last eminent domain battle against the city is with Freeport-based companies Western Seafood and Western Shellfish. Attorneys for those companies, owned by the Gore family, discussed a settlement with corporation officials during closed session Thursday.

Though both parties declined to elaborate on the discussions, Tarver was positive a settlement could be reached at the corporation’s next meeting.

“We think we’ve got a settlement,” Tarver said. “We think we’re on the verge on signing off on dropping everything with Western Seafood.”

Help! If this settles, making fun of the Gores will cease. Freeport truly lacked the first syllable of its name "free" in the whole transaction.

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Naples News

MARCO ISLAND — A visit by Florida Municipal Electric Association’s executive director, Barry Moline, has some members of the city’s electric municipalization committee going back to asking why the city should buy the utility, Lee County Electric Cooperative.

Moline advised that Marco should probably not buy the city’s electric service provider, with the primary goal of reducing rates.

The idea led many members to ask why would the city purchase LCEC, or take it over by eminent domain, if rates would stay the same or increase.

“I say we need to go back to that initial point of do we have a reason to do this. I understand the reason is to gather facts, but without a purpose all we end up with are loose facts,” said Al Musico of the committee.

Committee member Steve Stefanides reminded the group that LCEC’s “outrageous” estimate for undergrounding was a driving force for city officials to begin looking at takeover of LCEC as early as spring 2008.

Some believed lower rates were the impetus.

Many communities seek the takeover of fairly managed private utilities. Hopefully, this is not an attempt to find a new system of patronage of a kind which use to exist at airports.

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WDEL 1150 AM

A Wilmington auto repair shop owner says he'll try again to get the General Assembly to pass a bill limiting the government's power to seize properties under eminent domain.

Ed Osborne told WDEL's Delaware Afternoon News the legislation is actually a combination of 2 bills. Audio Here

Osborne, whose shop on "A" Street is on the city's eminent domain acquisition list, says the bill would limit eminent domain seizures to public use projects, like roads or schools.

The bill was vetoed by Governor Minner at the end of the last legislative session, but Governor-Elect Markell said last summer during his campaign that he'd proudly sign the measure into law.

The Kelo fight continues. One thing legislators should be aware of is that if private property rights are trampled as part of the challenge process, there is a greater likelihood that when passed, the legislation is likely to be more stringent on governmental activities.

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East Valley Tribune

The owner of a single piece of property is standing in the way of a new natural gas pipeline to serve central Arizona.

And a federal appeals court won't force the issue - at least not yet.

Without dissent, the 9th U.S. Circuit Court of Appeals has rejected efforts by Transwestern Pipeline to get immediate possession of properties in the path it seeks for its 260-mile pipe.

The judges said the company may eventually be allowed to condemn the property. But they concluded that the private company cannot take immediate possession until it gets a court order.

That requires a hearing where the landowners have a chance to challenge both the company's need for the property as well as whether Transwestern is meeting its requirements to negotiate in good faith on the price.

The court ruling is the latest setback for Transwestern, which has faced opposition in its bid to complete the $700 million project that is designed to connect central Arizona with the company's main pipeline that carries gas from New Mexico across northern Arizona.

Transwestern spokesman Jerry Herenden said the 280-mile spur eventually will carry 500 million cubic feet of natural gas to the Valley each day.

The interesting proposition of the subject of the article is the appropriate recognition by the federal appellate court that Due Process applies to the rights of individuals and recognition that eminent domain statutes must be followed.

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Fulton County News

Some southcentral Pennsylvania landowners fighting an eminent domain lawsuit to take their lowground mineral rights for an underground natural gas storage field say they feel they never had a chance to have a say on what happens to their land.

"It's always almost a done deal before landowners can get in there and do anything," said Sandra McDaniel, one of the landowners in Bedford county.

The 10 landowners fighting the Steckman Ridge gas storage field say they believe they could get far more money from exploration companies interested in drilling in the Marcellus Shale rock formation.

The thick, black shale lies more than a mile below much of Pennsylvania and some expect it to become the nation's biggest gas-producing reservoir. Already, many of the country's largest gas exploration companies are rushing to Pennsylvania to drill on the Marcellus Shale. Exploration companies have given some landowners across Pennsylvania several thousand dollars per acre for the right to drill down to the Marcellus Shale, and as well as the promise of potentially hundreds of thousands of dollars or more in royalties from a successful well.

But during early negotiations, the 10 Steckman Ridge landowners received a top offer of $400 an acre from the group that wants to build the storage field, landowners said.

Last year, Houston-based Spectra Energy Corp. and New Jersey Resources of Wall, N.J., formed a joint venture to build the Steckman Ridge gas field, saying it will help supply gas to the heavily populated Northeast and Mid-Atlantic states.

In June, the Federal Energy Regulatory Commission approved the companies' application to build and operate the field in a process that the landowners say was far too complicated for an average citizen and virtually shut them out.

A month later, the companies sued the 10 landowners in federal court in an effort to force them to agree to a price, citing federal law that permits the use of eminent domain for natural gas projects.

The companies already had the below-ground storage rights for much of the land they needed after they bought the rights from an exploration company that had drilled there in recent years. McDaniel and the other nine landowners still owned their gas storage rights, and say Spectra Energy has not dealt fairly with them.

Susan Waller, a Spectra Energy vice president, said the company is not using eminent domain as a negotiating tactic and would rater settle out of court with the landowners.

"We've talked to everybody and we've tried," Waller said. "At this point, we'd give anything if we could settle with them. They can still settle with us. We can still resolve this."

A federal judge has not decided on a compensation amount. The field is expected to be completed in the first half of 2009.

This is a fascinating article. Why? Because it shows you how well a PR person can tilt the truth in order to make the reader illogically come to an irrational result. If Ms. Waller's principal would so readily 'give anything', why not just fair value?

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GJ Sentinel

The Colorado Court of Appeals is considering a lawsuit questioning whether the state owns mineral rights beneath land it condemned for construction of Interstate 70 east of Rifle.

Gypsum Ranch Co. LLC appealed the case after Ninth Judicial District Judge James Boyd issued a summary judgment in January in favor of the Colorado Department of Transportation.

At issue are leases for oil and gas beneath about 70 acres the state acquired from Agnes Hunt. Although the state took over the land in 1975 through condemnation, it took more than a decade for the state and Hunt to reach a settlement over fair payment for the property. The state paid $110,000.

Gypsum Ranch contends that when it later bought the Hunt estate, it became owner of the mineral rights beneath the condemned right of way. It maintains that eminent domain includes only the subsurface estate needed for support of highway features built on the right of way.

Gypsum Ranch also has sued Antero Resources, which has been drilling for natural gas between Silt and Rifle. Antero land man Bill Pierini previously has said the company executed leases with both Gypsum Ranch and CDOT, to ensure it didn’t proceed with drilling only to find out later it didn’t have a proper lease. Antero suspends lease payments in such cases until the dispute is resolved.

Pierini said that as a general rule, CDOT doesn’t own the mineral rights beneath the highway where Antero is drilling.

However, Boyd wrote in his judgment that CDOT employees said in affidavits that the agency commonly obtained both surface and mineral estates in the 1970s and 1980s, except where prior owners expressly reserved the mineral estates.

Boyd found that nothing in the Hunt condemnation order or record of proceedings distinguished between the surface and mineral estate.

More recently, mineral rights have received more careful attention and become far more valuable in western Garfield County, thanks to the arrival of widespread natural gas development.

The Hunt condemnation proceedings included a substantial dispute over the value of gravel deposits, and Hunt’s contention that they must be considered as part of the condemnation, Boyd wrote. Those deposits are part of the mineral estate, he wrote.

Each State has an individual statutory framework dealing with ownership rights retained by the condemnee when property is taken for right of way. It may be argued that the mineral rights are not needed for the right of way, therefore they are retained by the owner losing surface rights for the roadway. Therefore, most States maintain a statutory framework delineating what is being take and what, if anything, is being retained.

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Wayne Independent

The Upper Delaware Council, Inc. (UDC) delivered testimony at a November 5 public hearing convened by the New York State Department of Public Service in Hancock to gather input on the application by New York Regional Interconnect, Inc. (NYRI) to construct a high voltage direct current transmission line on a 190-mile path between Marcy and Rock Tavern, NY.
The New York State Public Service Commission (PSC) will determine by August of 2009 whether to grant NYRI a Certificate of Environmental Compatibility and Public Need for its proposed $2.1 billion power line.
The two Administrative Law Judges assigned to the case, Jeffrey Stockholm and Michelle Phillips, agreed to hold 13 public information forums between October 20 and November 6 in the seven New York State counties affected by the proposed route to personally hear statements and create a record for their review.
The UDC was represented at three of the hearings which took place on Oct. 29 at the Delaware Community Center in Callicoon and Sullivan West Central High School in Lake Huntington, and on Nov. 5 at Hancock Central School in Hancock.

A valid claim of a power line being the cause of substantial environmental damage may be the only defense to the overwhelming power to utility project routing. The Congressional delegation is clear in the public policy support for utility expansion in order to improve the power grid. We can only hope that the profit making endeavors of the utilities will recognize the damage they cause to individual owners and the dangers to the environmental well being of the community.

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Law.com

Cliffside Park, N.J., filed a condemnation complaint in November to gain ownership of a private property in Fairview, N.J., it is renting for a Department of Public Works facility.

The complaint offering $1.3 million for the property says Cliffside Park needs the land and garage as an interim facility until Cliffside Park and Fairview build a planned joint DPW facility in another part of Fairview with a county grant -- a project in the works since 2003.

A provision of state eminent domain law, N.J.S.A. 40A:12-4(a) gives towns authority to condemn and obtain ownership of property in other municipalities, and Cliffside Park is claiming that right in its complaint, Borough of Cliffside Park v. Pedigree Holding Group, Ber-8236.

The property owner and Fairview concede that extra-territorial condemnation is permitted by law. But they are fighting Cliffside Park on grounds that the statute can be used for takings by a town outside its borders only in limited and special circumstances, and only with the permission of the town where the property is located.

Typical examples are when a town with a reservoir in another municipality needs to acquire land to protect the water or when a property immediately across a border is needed to preserve access, they say.

The issue has come up so rarely there don't seem to be precedents on point about the legality of what Cliffside Park is trying. Anthony Della Pelle of McKirdy & Riskin in Morristown, N.J., who represents the property owner in the case, says "one town may not generally use eminent domain to acquire real estate in another town.

Many State constitutions grant governmental entities the authority to condemn outside the geographical limits of the community. One is required to read the constitutional grant. The legislation must be looked at to determine whether the specific delegation to acquire by eminent domain exists in the statutory language.

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Orlando Press

Despite years of public disdain for the government’s ability to acquire private property through the power of eminent domain, county lawmakers pushed forward to own the land encompassing the county landfill near Artois.

With little fanfare, Glenn County Supervisors reauthorized the county’s use of eminent domain law Tuesday to obtain the land it leases and the additional property at the north end of the landfill.

“Whenever you’d mention eminent domain, you would have a public outcry that was deafening,” said Supervisor Tom McGowan. “That we’ve had no comment now indicates that we are doing the right thing.”

Glenn County Planning Director Dan Obermeyer said the county has tried to negotiate a fair price for the land with owners Patrick Foley and Robert Fumasi, but no price could be agreed upon. The landowners could not be immediately reached for comment.

Obermeyer said the county could expect to pay about $650,000 for the 451 acres.

The land was last appraised at $450,000 several years ago.

Obermeyer said the value of the land will eventually determine “just compensation,” but that the owners may argue for a higher determination before a judge.

Purchasing a landfill sounds simple. The community thinks it is 'near capacity', fully knowing it can be expanded, placing the citizens at great risk of a substantial just compensation payment.

 

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STPNS

After spending the good part of a couple years sending offers back and forth, commissioners  authorized eminent domain proceedings a few weeks ago on a property housing an old landfill site.

Monday, the landowner and his attorney met with commissioners to discuss the situation in person.

Wabaunsee County Commissioners and property owner Winston Amick, represented by Attorney Keen Umbehr, have been debating the fair rental rate for the property, which KDHE is requiring the county to maintain until at least 2026, with the potential for that requirement to be extended.

After several offers back and forth with no resulting conclusion, commissioners authorized the use of eminent domain to acquire the property, according to County Attorney Norbert Marek, who said that the response since that action has indicated that they would rather sell without the eminent domain proceedings. 

Landfill acquisitions are difficult to value. Despite the leakage problem and the issues of single and double lining, old landfills may have substantial value.

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Biz Journal

JACKSONVILLE — The Jacksonville Port Authority is looking at alternative ways to acquire waterfront property for future expansion.

The authority is discussing with several property owners the possibility of entering a long-term lease or an owner-financing arrangement. Under the latter, which the authority prefers, the original landowner would hold the mortgage and the authority would own the property and make annual payments, said David Kaufman, the authority’s senior director of planning and properties.

Attempted land acquisitions recently have been marked with legal disputes and a game of musical chairs, as in the case of the authority originally wanting to place the Hanjin Shipping Company Ltd. on the 167 acres owned by Zion Jacksonville Limited Partnership. The authority later balked at using eminent domain and instead opted to have Hanjin’s terminal share Dames Point with the TraPac Terminal.

Kaufman said the authority is discussing alternative deal structures with the property’s owner, Abraham Zion.

 

It is amazing that there was once a 'need' to condemn private property for a user who chose not to buy, but rather acquire through a governmental agencies powers to acquire. Apparently the 'necessity' was not there. 

 

But for the Brigham Moore Firm properly defending the eminent domain action by obtaining just compensation, the owner would have been deprived of basic constitutional rights.   

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Loudoun Times

Sam and Uta Brown soon may be in a position to answer the question, "Can a working farm survive inside town boundaries, with a major road running through it?"

The Browns insist the answer is "No."

Purcellville Town Manager Rob Lohr said the town has always worked and will continue to work with the Browns to preserve the farm. At the same time, Lohr said, one of this council's top goals is to get the Southern Collector Road finished. It has been on town planning maps for 25 years, and now runs from A Street at Route 690 along the southern edge of the town's boundaries, to the southern edge of the 16 acres in question.

Sam Brown and his brother Timothy, of Middleburg, own the 16 acres just outside town limits. They also own 40 acres within the town limits -- all protected by a conservation easement -- and 45 acres to the south. Sam Brown farms most of it as Crooked Run Orchard, a pick-your-own orchard and farm that attracts up to 20,000 visitors a year.

Purcellville Town Council will decide Dec. 16 whether to proceed with plans to annex 16 acres of the Browns' Crooked Run Orchard into town. If the property is brought into town, the town will be able to use its condemnation power to extend the last unbuilt 1,300-foot section of the Southern Collector Road along the edge of the farm to East Main Street (Route 7) at Route 287.

The Southern Collector Road, if completed, will do little to relieve traffic on Main Street, Sam Brown said, and it will split his farming activities in half. He will be forced to drive farm equipment out onto Main Street and up the Southern Collector Road to get to his land.

"The benefit [to the town] is so small compared to the damage to the farm," Uta Brown said.

-The town has no feel for what happens when a working operation is split in half. Without a doubt the government will claim that this is simply another parcel with little use due to the conservation easement. The reality is that it is being used to the maximum.

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www.ij.com

Targets Include Book Author, Publisher, Law Professor Richard Epstein
and Newspapers that Published Book Review

Dallas, Texas-In perhaps the most striking example of a disturbing
national trend, Dallas developer H. Walker Royall has launched a lawsuit
spree to silence any media or public affairs commentator who dares
expose his attempted abuse of eminent domain.  Similar suits have been
filed in Tennessee, Missouri and elsewhere by developers and governments
looking to silence critics of eminent domain for private gain. 

Royall worked with the city of Freeport, Texas, to try to condemn a
generations-old shrimp business owned by the Gore family to make way for
a luxury marina.  The project became the subject of the book, Bulldozed:
"Kelo," Eminent Domain, and the American Lust for Land, authored by
veteran legal journalist Carla Main.  Bulldozed tells the story of
Freeport's plan to take the Gore's waterfront property for Royall's
luxury marina development project.  Only hours after the U.S. Supreme
Court's infamous Kelo v. City of New London eminent domain abuse
decision, the city instructed its attorneys to redouble their efforts to
seize the Gore family business.  Bulldozed unravels why, after years of
litigation, the threat of condemnation continues to hang over the Gores.
The book was reviewed in many newspapers, including The Wall Street
Journal, was nominated for the Texas Historical Commission's annual T.R.
Fehrenbach Book Award and it won a highly competitive independent press
award for political science writing.

After journalist Main wrote her book exposing the Freeport land grab,
Royall sued her as well as her publisher, Encounter Books, for
defamation.  He even sued nationally renowned Law Professor Richard
Epstein who wrote a blurb for the book's dust jacket.  When someone
reviewed the book, he sued him.  When two newspapers published that
review, he sued them.

Today (Wednesday, December 10, 2008), the Institute for Justice Texas
Chapter (IJ-TX) filed a notice of appearance with the Dallas County
District Court in order to vindicate the right of author Main, her
publisher and Professor Epstein to freely debate eminent domain abuse.

"Rather than try to defend his indefensible effort to have the
government take someone's land for his private development project, H.
Walker Royall sues and sues and sues and sues," said Matt Miller,
executive director of the Institute for Justice Texas Chapter, which is
defending the book's author, the publisher and law professor Epstein.

Earlier, when the Gores-the original victims of Royall's eminent domain
abuse effort in Freeport-complained against Royall's actions, he sued
them for defamation.  That lawsuit is ongoing.

Main is a veteran journalist who was an associate editor of The National
Law Journal, where she edited the opinion page and wrote a column on law
and society.  She wrote for The Wall Street Journal, Policy Review,
National Review, The American Lawyer and The New York Sun, among other
publications.
Before becoming a journalist, Main practiced as an attorney in New York
City for ten years.

"The book was a labor of love," said Main.  "I researched it
meticulously and gave Mr. Royall multiple opportunities to be
interviewed.  His primary complaint about the book seems to be that I
described him as participating in an economic development taking, which
he did."

Richard Epstein is the James Parker Hall Distinguished Service Professor
of Law at the University of Chicago Law School, where he has taught
since 1972.
He also teaches at the New York University School of Law.  Epstein has
published 14 books.  His Torts and Cases and Materials on Torts
textbooks are widely used in law schools across the country.  In 1985,
Epstein published Takings: Private Property and Eminent Domain, a book
about the Fifth Amendment and the limits of the government's power to
use eminent domain to take private property.  The book has been cited
four times by the U.S. Supreme Court.  Takings is an essential book in
the debate about eminent domain and property rights in America.

Epstein was sued by Royall over a small blurb on the back cover of
Bulldozed.  Epstein said, "It is a sad day in the life of America when a
powerful individual like H. Walker Royall, who has complete access to
the media, thinks that the appropriate response to criticism is to
remain silent and then to bring a defamation action against those who
comment on his deeds."  Writing an admiring blurb is not something
Epstein ever expected would get him sued.  "There are few times in my
professional career when I've been flabbergasted and this is definitely
one of them," said Epstein, who has been a law professor for more than
40 years.  Epstein's blurb reads, in its entirety:  "Like a Greek
tragedy unfolding, Carla Main's book chronicles the eminent domain
struggles in Freeport, Texas, which pitted the Gore family, with its
longtime shrimp business, against the machinations of an unholy alliance
between city politicians and avaricious developers. If you have ever
shared the Supreme Court's unquestioned deference to the public planning
process that shaped its ill-fated Kelo decision, you'll surely change
your mind as you follow this sordid saga to its bitter end.
You'll never look at eminent domain in the same way again."
   
Encounter Books is a non-profit publisher that promotes democratic
culture with a catalogue of award-winning and important books.
Encounter Books has more than 100 titles on topics including religion,
military affairs, Greek civilization and current events.  Roger Kimball,
president and publisher of Encounter Books, also publishes The New
Criterion magazine.  Kimball said, "There is the First Amendment, which
I think is very much at stake in this case.  There is also the broader
issue of public education."

"Eminent domain for private gain is the subject of nationwide public
debate," said senior attorney Dana Berliner, who was co-counsel in the
Kelo case and who will help direct this litigation.  "If Walker Royall
didn't want anyone to talk about him or his development deals, he
shouldn't have made a deal to develop a private marina using public
money and someone else's land.  The Constitution protects people who
talk about important issues like eminent domain abuse by governments and
private developers.  If developers don't want people writing about them,
then they shouldn't be involved with government's abuse of eminent
domain."

The freedom to learn about eminent domain abuse is also at stake because
Royall is asking the court to stop the presses on Bulldozed, preventing
anyone else from reading the book.  "Mr. Royall should tell the public
why he doesn't like Carla Main's book, rather than try to censor it,"
said Wesley Hottot, an IJ-TX staff attorney.

Founded in 1991, the Virginia-based Institute for Justice fought the
landmark legal battle to protect property rights in the U.S. Supreme
Court, arguing Kelo v. City of New London in 2005.  The Institute has
successfully defended eminent domain abuse activists sued for speaking
out in St. Louis, Mo., Clarksville, Tenn., and Renton, Wash.
# # #
 

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Maryland Daily Record

For many people, the words “condemned building” bring to mind a creaky, dilapidated house with boarded-up windows and caution signs posted: somewhere you don’t dare go without a hard hat.

But in Baltimore, the use of condemnation powers — otherwise known as eminent domain — has become synonymous with urban renewal. The government’s right to condemn and seize private property, sometimes perfectly intact and well-maintained, and convey it to another private owner is the engine driving many of the city’s most important development efforts.

Despite several recent court cases and laws that check the powers of municipalities to take property, condemnations are accelerating in the city: More than $22 million in eminent domain seizures have been authorized this year, up nearly 250 percent from 2007, and nearly 12 times the inflation-adjusted dollar amount of seizures authorized in 2003, The Daily Record has found. These statistics were determined as part of an examination of nearly 1,000 pages of public records covering the last five years.

To put that number in context, $22 million is about seven times what the city expects to spend in fiscal 2009 to fight homelessness, and about 10 percent of what the city will spend on schools...

Here is an article worth reading. There are times the process of taking for transfers might work for the community. However, the risk\reward analysis is a difficult balancing act even in the best of situations.

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Forbes

Sandy and Gene Byrd Harman own a 400-acre Black Angus cattle farm in Bland County, Va. that has been in Gene's family for five generations. Its view of rolling pasture backed by the virgin forests of the Blue Ridge Mountains has remained largely undisturbed for 150 years. "Our landscape could be on any postcard in America," Sandy says.

Five years ago the Harmans feared that their pristine vista would be lost. Their farm lay in the path of a high-voltage line that American Electric Power, the second-largest electric utility in the U.S., wanted to lay across the valley. The 765,000-volt (765kV) line would be an electrical superhighway, built on towers 130 feet high. It would carry three gigawatts of power, easing the strain on an antiquated network of smaller wires that carried electricity between the Midwest and AEP's power plants there, and the East Coast.

Ron L. Poff, AEP's project manager for the line, had the job of persuading the Harmans and 163 other landowners to let the $300 million, 90-mile line pass through their properties. Harman spent a year attending town meetings at which residents "blew a lot of steam," she says. Then in 2006 she agreed to sell AEP an easement over a 200-foot-wide swath of her farm. She won't discuss the price, but AEP has had to compensate landowners not only for property but also for visual pollution

-This writer recognizes the importance of electric transmission capacity. However, the need of the profit making AEP for the owners property rights should not be used as an excuse to shortchange the owners.  AEP is relatively inexperienced in the process, but Bulldozed might be the right word for the way AEP is going about it.  At least Joe Waldo is there to represent the owners in Virginia.

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The Facts

Economic Development Corp. board members soon will address the docks and sprinkler system required for the Freeport Marina’s completion, but the president of the board says they could run out of money before both items are completed.

Dan Tarver, the new board president, said after the corporation’s meeting last week that the board and the developer, Briarwood Holdings, have yet to agree on who will foot the bill for all items past the $6.5 million projected cost of the marina. Mayor Larry McDonald said the contract signed between the two entities called for the corporation to pay for all costs up to that number, and the developer to pay for anything more.

“I don’t think he embraces the idea,” Tarver said of the developer, Walker Royall. “I think it’s a situation where the reality of the situation has not set in yet, of what the cost overruns are.”

Messages left at Royall’s offices were not returned.

Officials believe a completed marina will help jump-start a revitalization in the port city. But since the project’s inception in the early 2000s, people in town have debated its need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

In the ensuing turmoil, former City Manager Ron Bottoms left and former Mayor Jim Phillips was defeated by McDonald. During the summer, City Council turned over the former corporation board, whose members then fired Lee Cameron as executive director. Cameron had overseen the project from the start…

Freeport always is a bonus for this blogger.  The continuing foolishness of the community which gave rise to Carla Main's Bulldozed is at it again.  Heck, Freeport makes it easy to write about good old time eminent domain skullduggery.  I sure miss it in Michigan now that Hathcock is in force!

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Review Journal

In response to the U.S. Supreme Court's 2005 Kelo ruling -- in which the liberal justices formed a 5-4 majority to OK government land seizures on behalf of private parties -- local attorney Kermit Waters put together a ballot initiative designed to limit such outrageous abuses of eminent domain in Nevada.

The proposed constitutional amendment, known as the People's Initiative To Stop The Taking of Our Land (PISTOL), would have to pass twice -- in 2006 and 2008 -- to become law.

Well, you'd have thought that Mr. Waters had attacked baseball, apple pie or even double-digit pay raises for government workers. The howls from the state political establishment were loud and shrill. The measure, they argued, was so Draconian that governments would have a hard time seizing land for even legitimate purposes such as road building.

Opponents of the measure sued to prevent voters from passing judgment. While the Nevada Supreme Court did modify the initiative, the justices then let it go forward and it passed easily in 2006.

Realizing that they would likely lose again in 2008 -- they did, as the amendment was approved with 61 percent support -- opponents arrived in Carson City for the 2007 session with a plan. Craft a compromise with Mr. Waters, get lawmakers to approve the plan twice and put the new proposal in front of voters in 2010 as an effort to override the original amendment.

Mr. Waters eventually embraced a legislative proposal that he says contains 90 percent of his original initiative. It easily passed the Legislature in 2007 and will almost certainly win approval by lawmakers in 2009 before heading to voters the next year.

 Kelo offered the individual State the right to restrict takings within its jurisdiction. One can argue the Fifth Amendment's intendment was a national policy, but there is no support for the premise in the decision of the Kelo majority. However, Nevada is but one more example of an individual jurisdiction's decision to limit the all encompassing powers of the local takings power.

  The attached article notes the outstanding job done by Owners Counsel of America lawyer, Kermitt Waters, in 'tilting against the winds' and winning!

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Delco Times

In his comments to the Federal Aviation Administration this week, U.S. Rep. Joseph Sestak, D-7, of Edgmont, called a proposed Capacity Enhancement Plan at Philadelphia International Airport “a poorly planned transportation project and a waste of taxpayer funds.”

There are two alternatives for the CEP, with projected costs of $5.2 billion and $5.4 billion, according to a draft environmental impact statement. One alternative would add a new runway.

The aim is to reduce delays, but the CEP would also displace at least 72 residences and 3,300 jobs from Tinicum, including the relocation of a UPS facility, all of which would decrease the tax base for the township and the Interboro School District.

County Solicitor John McBlain also drafted the county’s comments to the FAA for the record. He said the county criticized the authority’s analysis of things like air quality and noise impacts, though it was most concerned about the loss of homes and businesses...

-We have an inevitable difficulty with the expansion of airports. Quite simply, we all love to have the airport reasonably close to the community.

However, if close to the urban base, any expansion necessarily results in huge losses of jobs and\or residents.

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Three Village Times

It looks as though the Courtesy Hotel may finally be coming down. The hotel property will likely be sold to real estate developer Trammell Crow Residential, which will build a 150-unit rental apartment complex on the site.

The Town of Hempstead had been holding up the sale because the town supervisor and town board felt that the project was too dense for the area. However, the density of the project has been offset by the donation of an acre of land by the MTA to the town. That acre of property will remain as open space.

The Courtesy Hotel has long been a sore point for residents of West Hempstead. It has been the location of numerous arrests for violent and sexual-related crimes. Some West Hempstead community members have been lobbying the Town of Hempstead for many years to have the hotel closed.

Town officials tried unsuccessfully to close the hotel through the town's public nuisance law. However, that law didn't stand up in court. The best option, many members of the community felt, was to let the sale of the hotel property go through to Trammell Crow. The real estate developer had an agreement to purchase the hotel property and then build a 176-unit luxury rental apartment complex on the 2.7-acre site. However, Town of Hempstead officials believed the proposed 65 units per acre was too dense for the town. The Town Board eventually adopted an urban renewal plan for the area that allowed for a maximum density of 45 units per acre.

It appeared that the saga of the Courtesy Hotel would continue until the town could secure the property through eminent domain proceedings. However, recent developments that have lowered the density of the Trammell Crow proposal will now allow the sale to go forward.

The keys to the town's decision to let the sale of the hotel property and the construction of the luxury apartment building complex go forward were Trammell Crow decreasing the size of the proposed complex to 150 units and the MTA turning over a .97-acre parcel of property to the town to be used for open space. The 150 units in 3.67 acres of property amounts to 41 units per acre, which is within the density the town is willing to allow.

For Hempstead Town officials who believed the original Trammell Crow proposal was too dense, the addition of the .97-acre MTA property proved to be a necessary element.

For valuation purposes, the highest and best use may be the use the condemnor intends to use the property for after the destruction of the present use.

 

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The Facts

The ULTIMATE.  Carla Main, an investigative reporter, wrote a riveting book
about the abuse of eminent domain power in Freeport, Texas.  Any reasoanble reader would find nothing defamatory as to any individual. The book, Bulldozed, dealt with the Texas oil baron who came back to 'redevelop' in his hometown (for profit).  The writer (likely correctly) perceived this to misuse of the eminent domain power to be an attempt to ‘make a buck'.  So now, after he uses the condemnation power for his personal public use, the oilman sues the writer, Carla Main, and a brilliant legal scholar, Professor Richard Epstein of the University of Chicago Law School, for besmirching his reputation.

Honestly,  the First Amendment still does allow Freedom of Speech, no?  But
if the Fifth Amendment protection that private property should be taken for
public use no longer has validity in Texas, maybe we should all throw in the
towel and forget about the First Amendment too!  Realistically, we should all hope the courts make short decision dismissing the vexatious lawsuit against the writer of an outstanding book, which allows truth to be more interesting than fiction.
Bulldozed, by Carla Main, is a great Xmas buy.

 

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Wayne Independent

The Upper Delaware Council, Inc. (UDC) delivered testimony at a November 5 public hearing convened by the New York State Department of Public Service in Hancock to gather input on the application by New York Regional Interconnect, Inc. (NYRI) to construct a high voltage direct current transmission line on a 190-mile path between Marcy and Rock Tavern, NY.
The New York State Public Service Commission (PSC) will determine by August of 2009 whether to grant NYRI a Certificate of Environmental Compatibility and Public Need for its proposed $2.1 billion power line.
The two Administrative Law Judges assigned to the case, Jeffrey Stockholm and Michelle Phillips, agreed to hold 13 public information forums between October 20 and November 6 in the seven New York State counties affected by the proposed route to personally hear statements and create a record for their review.
The UDC was represented at three of the hearings which took place on Oct. 29 at the Delaware Community Center in Callicoon and Sullivan West Central High School in Lake Huntington, and on Nov. 5 at Hancock Central School in Hancock.

-A valid claim of a power line being the cause of substantial environmental damage may be the only defense to the overwhelming control of utility project routing. The Congressional delegation is clear in the public policy support for utility expansion to improve the power grid. We can only hope that the profit making endeavors of the utilities will recognize the damage they cause to individual owners and the dangers to the environmental well being of the community.

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NY1

The City Council voted late this afternoon 42-2 in favor of the controversial plan to redevelop the industrial Queens neighborhood Willets Point, shortly after the Council Land Use Committee's 19-2 approval of the plan.

One council member abstained from voting.

The $3 billion plan will turn the 62-acre area into a hub with housing, shops, a school, and a convention center.

Yesterday, Mayor Michael Bloomberg reached a deal with City Councilman Hiram Monserrate, who has been one of the project's most vocal opponents.

The agreement increases the amount of affordable housing from 20 to 35 percent and also provides $3 million in relocation aid for local businesses.

City officials on the Land Use Committee approved of the mayor's deal, and said the plan will bring jobs and housing and be a boon to the struggling economy.

“In times of economic crisis, it is good for the city to be investing in our future. I believe this is a good investment,” said Queens Councilwoman Melinda Katz, who represents the area that includes Willets Point.

The city has said it might use eminent domain to remove the other small businesses that do not leave voluntarily.

Here is New York City making a redevelopment attempt which comes at great risk during very uncertain times. One recognizes that in New York, just about any take is valid. However, should this fail, do we look to a national bailout? If projects fail, could impoverished communities obtain the same relief?

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Altoona Mirror

Ralph Blevins of Claysburg stood at a long table filled with materials on natural gas contracts and projects, picking up stacks of papers, skimming through them and trying to educate himself on what could happen to him in the near future.

Blevins has a gas and oil lease in Kimmel Township, Bedford County, and traveled to the tiny town south of Everett where landowners hosted an informational workshop Sunday to show others the struggles they have faced with a natural gas storage field project in their town.

''The information is overwhelming,'' Blevins said.

He was surrounded by several long tables piled with a chronological overview of the Clearville project, walls with large posters of information on natural gas company Spectra Energy and the Federal Energy Regulatory Commission, which regulates projects such as the one in Bedford County. A couple of videos played in opposite corners of the room at the Monroe Township building.

Dick Eckman, who calls himself the Clearville ''self-appointed watchdog,'' was pleased to see a large turnout at the workshop.

This utility is getting killed by the media here. The reality is that it probably could care less. Apparently Spectra feels the Federal Court system bodes well for condemning authorities. This is not necessarily true, especially when a utility gets a little 'greedy' as is so apparent here.

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Journal Record

When it comes to oil and gas production, the Oklahoma Corporation Commission is the agency in charge of regulation. The Oklahoma Department of Environmental Quality is in charge of regulating emissions and uses of carbon dioxide.

So who is in charge of regulation when energy companies use carbon dioxide to extract more out of oil and natural gas wells? What if an energy company branches into the carbon sequestration business, collecting carbon dioxide in empty wells? Both the state and the federal government are sorting through the issue as new technologies are expanding the number of lucrative uses for carbon dioxide. ...

-Even when a free market process is available, when it comes to gas storage or a new land use, every newspaper article comes to the point of simply using condemnation (eminent domain) as the way to obtain the property right. Why not let market forces apply?

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WTOP News

WASHINGTON - The D.C. Council is considering a bill that would allow the city to use eminent domain to seize and redevelop nearly two dozen properties in southeast Washington.

Legislation introduced by D.C. Council Member Marion Barry targets three areas east of the Anacostia River.

Barry says he hopes the owners will cooperate without the city having to use eminent domain.

An official in D.C. Mayor Adrian M. Fenty's office says the administration backs the bill.

-Gentleman, it is hard to believe the offers are going to be just perfect. The owners will maybe donate the property to the City so that a few developers (somebody's friend or relative) can profitably put the private property to better use.

This is a long, long ways from the need for the taking in Berman v. Parker!

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Salt Lake Tribune

Bear River Valley landowners, angry over Rocky Mountain Power's route for a major northern Utah transmission line, have arrived at a sobering conclusion.

   “The power in Rocky Mountain Power means something other than electricity,” says Richard Nicholas, whose land here will be traversed by the 345-kilovolt line scheduled to begin construction soon.

    “People have no rights, and that's wrong. We have been bullied around . . . Power companies have more power than government!”

   Nicholas' sentiment - if not his blunt appraisal - is echoed by Box Elder County mayors and commissioners. They believe they had no real say in where the 150-foot-wide power corridor goes through their communities and countryside.

-Local communities are regularly exasperated at the conduct of the power companies' routing of lines through the most pristine or populated areas.

The problem is not simply one of location, but rather one of whether the permitting authority, be it the FERC or the state Public Service Commission has broad discretion in limiting the lines in accord with the public desires. 

As set forth in the attached article there may be an additional cost in the establishment of a line in accord with the community request for routing. However, the locals have a right to be heard. The issue is whether the licensing (permitting) authority has the empowerment to review, and the discretion to modify the route. 

If the discretion is available under the Congressional or state grant of authority to the licensing authority the question is becomes, what is the appropriate standard to change the route to satisfy the local community's requests?

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thefacts.com

Over the course of the project since its inception in the early 2000s, officials have debated the project’s need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

McDonald reiterated the marina project will go through because that was one of his campaign promises. But the new findings will push the marina further behind schedule. Tarver predicted a summer 2009 opening but said it needs to be completed in a timely manner so the city could start getting money back on the lease.

-The Freeport,Texas overbearing and inane destruction of private property for a private use is an example of what makes owners shudder about the Kelo decision. The private use taking involved here will affect the whole community.

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Twin Cities

The St. Paul Port Authority, tasked with bringing business into St. Paul, is kicking out a profitable, tax-paying, unsubsidized, woman-owned, 48-year-old family business. It is a company that pays its 43 employees — nearly half of whom are union members — an average wage of $24 per hour with full medical benefits. And it leases out the construction equipment that has helped build the Xcel Energy Center, restored the Cathedral of St. Paul, and is adding to Regions Hospital.

 

While showing this successful company the way out of town, the Port Authority has not found a replacement. What the St. Paul Port Authority is engaged in is little more than real estate speculation with $10 million of taxpayers' money…

 

The next generation of post Kelo cases will deal with governments that claim property is in some fashion contaminated and therefore requiring acquisition for 'redevelopment'. The real question is whether there is such an immediate danger to the community in the use of the property that a government can enforce a 'reuse'.

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Heartland Institute

 

-This is an intriguing article. It questions the propriety of government tax benefits to the energy 'developer'. The problem is one of wobbly matched pairs. We have subsidized oil and gas exploration for over sixty years.

 

What is the big surprise here? Maybe, just maybe, because we feel the system allows the 'big guys' to get away with a lot more, putting us in an inferior position. No, I am not turning left or right, it is just this writer looked at where home town favorites are moving in a downward spiral, all the while not receiving the same help as Boone.   

Billionaire financier T. Boone Pickens’ campaign for government subsidies to wind power, advertised in a full-page ad in The Wall Street Journal and subsequently in an op-ed piece in the same, seems erroneous in several respects.

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State Journal

Four landowners opposed to the Kentucky American Water pipeline under construction in Franklin County are questioning the company's right to acquire an easement through condemnation.

They're claiming that KAW "a private for-profit water company, does not, under Kentucky law, have the power of eminent domain to condemn easements on private property in Franklin County."

They live along the pipeline route and filed a civil action Friday in Franklin Circuit Court.

 

The "petition for declaration of rights" " filed by attorney Tom FitzGerald " says the plaintiffs are uncertain as to their right to freely decline KAW's request for an easement and are unsure if KAW has the right to condemn an easement on their property should they decline KAW's request.

FitzGerald said in his search of Kentucky laws, he did not find one that gives KAW the right of eminent domain for the construction project underway.

Kentucky American has said it has the right to condemn property but seldom uses it.

Company spokesman Brian Wright said in more than 2,000 cases over the last 19 years, KAW has had to ask a court to condemn property only five times.

 

Kentucky American could simply supply the statutory basis for its right to use eminent domain and be done with it.  If a statute allow the taking of private property for water transport purposes, Kentucky American Water will have the right to condemn.

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The Morning Call

The authority that runs Lehigh Valley International Airport now owes more than $24 million for 632 acres it took more than a decade ago from a developer that planned to build homes and a golf course, a Lehigh County judge has ruled.

A jury in March decided that the Lehigh-Northampton Airport Authority owed WBF Associates $10.4 million for gobbling up the land in 1996. The airport has made only one payment to the company -- $3.15 million on Nov. 2, 2000, according to court records.

So, Judge Carol K. McGinley this month ordered the authority to pay additional delay damages and mortgage interest totaling $16.3 million.

It doesn't stop there. Interest continues to accrue on the award each day until it's paid off. According to McGinley's order, the interest on the money owed for the mortgage is $1,463 per day...

 

It is amazing that the owner has the fortitude to wait over a decade to get paid. The process of delay can be utilized by a governmental agency to 'wear the owner down', a process completely compromising the constitutional requirement that Just Compensation is to be paid upon the taking of property.

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State Journal

Four landowners opposed to the Kentucky American Water pipeline under construction in Franklin County are questioning the company's right to acquire an easement through condemnation.

They're claiming that KAW "a private for-profit water company, does not, under Kentucky law, have the power of eminent domain to condemn easements on private property in Franklin County."

They live along the pipeline route and filed a civil action Friday in Franklin Circuit Court.

The "petition for declaration of rights" " filed by attorney Tom FitzGerald " says the plaintiffs are uncertain as to their right to freely decline KAW's request for an easement and are unsure if KAW has the right to condemn an easement on their property should they decline KAW's request.

FitzGerald said in his search of Kentucky laws, he did not find one that gives KAW the right of eminent domain for the construction project underway.
Kentucky American has said it has the right to condemn property but seldom uses it.

… The pipeline will run one-tenth of a mile in Owen County, 15.3 miles in Franklin County, 10.7 miles in Scott County and 3.8 miles in Fayette County.
The entire project is scheduled for completion in early summer of 2010.

Kentucky American could simply supply the statutory basis for its right to use eminent domain and be done with it.  If a statute allows the taking of private property for water transport purposes, Kentucky American Water will have the right to condemn.

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KCAU-TV

Former South Dakota Supreme Court Chief Justice Robert Miller is questioning the legality of a 2008 state law aimed at speeding up the eminent domain process.

At a hearing this week, Miller agreed with landowners who want more time to prepare for a hearing on the Dakota, Minnesota and Eastern Railroad's application to condemn land for its proposed $6 billion coal train and rail renovation project...

Since the initiation of the process, the statute granting DM&E the authority to condemn has been attacked and challenged.  The taking is for a corporation ostensibly regulated, allowing for the activity even under Michigan’s Hathcock case.  However, the limitation on the court to a ninety day resolution raises issues of Due Process not only for the owners, but also the condemnor.

 

Michigan allows the court only thirty days to come to a finding.  Many courts therefore start the process and extend the hearings out until all parties are fairly heard.

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South Town Star

With negotiations over the Orland Plaza at an apparent standstill, Orland Park has begun condemnation proceedings against the owners of the village's oldest shopping center.

Orland Plaza owners and the mall's tenants were notified Tuesday after the village board approved an ordinance Monday and filed court paperwork to begin eminent domain proceedings Tuesday.

But both village officials and the property owner say they're happy to return to the bargaining table to negotiate a deal for the land the village wants near 143rd and LaGrange Road. Orland Park wants to extend Jefferson Avenue, Ravinia Avenue and a third street into the new Metra parking lot and development as part of its $100 million Main Street Triangle project.

"It's definitely our intention to keep talking to the property owners," Orland Park's assistant manager Ellen Baer said. "That's our intention to keep moving with the property owner. At some point we have to get the (legal) process going. We would certainly prefer to come to an agreed-upon price with the property owner. They have not countered our offer. They rejected our offer. I couldn't even tell you how far apart we are."

Eminent domain is a government power to seize private property for the public good, with the government having to fairly compensate the property owner. To begin the process both the village and the property owner were to get appraisals of the property to begin negotiating a fair price. George Gee, one of the property owners, said his attorney asked the village for a copy of its appraisal, but didn't receive one. As a result the negotiations stalled.

…While the village is offering relocation packages for the businesses it is leaving negotiations over the leases up to the property owners. Some of the leases including options for renewal extend to 2020. She said each tenant's relocation package would be different. The tenants would receive 90 days notice before they had to move.

All too often, tenants are left with little relief when they and their landlords are condemned.  However, many states do have statutes, which at least partially protect tenants.  The Uniform Relocation Act is losing its potency, minor as it was, in many states because a project not utilizing Federal funds does not have to follow the Federal act.

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The News Dispatch

"I believe the end is near," Mike Bergerson, attorney for the Michigan City Redevelopment Commission, told commissioners Monday.

He was talking about an end to legal wrangling between the city and the owners of Trail Creek property at the corner of Michigan Boulevard and Eighth Street. The city wants to obtain the property through eminent domain while the owners have said the city should purchase the property at current market values.

Bergerson said both sides will meet with a mediator on Sept. 22 to resolve differences. If an agreement isn't reached, an Oct. 9 hearing date has been set, at which time an appraiser would be appointed, Bergerson said.

"Ultimately, if the parties can't come to a resolution through mediation or other discussion, the court has set a trial on Jan. 8," he said.

Bergerson told commissioners that negotiations are proceeding for the property purchase and relocation of Blocksom, now located on Trail Creek property targeted for redevelopment. He said an Oct. 6 negotiation session could be the last one.

In other business, John Pugh, director of city planning, said results of a market analysis of the Lohan Anderson plan for the city's North End and Trail Creek corridor will be presented at the Oct. 6 Redevelopment Commission meeting. Tracy Cross, a national residential market analysis firm in Schaumburg, Ill., was selected to conduct the analysis.

 

Eminent domain use to expand casinos seems to be the mode of expansion on the cheap in more than just New Jersey.  The Blocksom take is for a casino expansion, be it for a parking building or just accessory amenities to the casino.

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WAVY TV 10

On Thursday, there was a rally pitting homeowners against government.

The Johnson's Crab House is in the cross-hairs of Portsmouth City Council, which has voted twice to condemn the property in order to turn it into a public park.

Three generations of Johnsons own and operate the Johnson's Crab House - a place where you pick up live or steamed crabs and go.

For 14 years, the Johnsons have owned this business on Scotts Creek - one that's been on the property through other owners since 1913.

Their Attorney, Joe Waldo, is an eminent domain expert, "It's the old adage. The new guy comes in, and the old guy has to go. That's not right in America."

Eminent domain laws empower the state to take private property for public use.

…The problem now, there's so much bad blood between the two sides, a middle ground may not be reachable.

Again, we have the individual suffering at the unfettered power of eminent domain retained by the local government.  The worst thing about owning waterfront property which is allegedly "underutilized" is that the government will show up at the door to place the property to another use via the eminent domain process.

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Sherwood Voice

 Task force member Mary Peyton was interrupted several times by members asking whether she didn’t have a vested interest in the project because she was doing real estate work for another of developer Charles Hinson’s subdivisions.

The civil attitude Maumelle has promoted over the years seemed to go by the wayside for the sharply divided panel. At most city functions, speakers have been discouraged from speaking directly to individual members or audience members, bantering with them and especially from interrupting them.

Apparently opponents to the peninsula development have created a new plan for thwarting its development — condemning the property under eminent domain.

Jeff Van Patten, a Maumelle resident and task force member who led his Manitou Drive neighbors in opposing the plan earlier this year, first proposed the purchase of the peninsula by the city.

With a flip chart to explain his proposal, the North Little Rock developer said he was still opposed to the watered down plan and told task force members he believed that if his neighbors went on record that they won’t give up, the city should condemn the land and buy it…

…Davis said the law allows a city the option to obtain property for a public function and ensures that the owner is paid the fair market value. She said the City Council would have to vote for condemnation of the property and the city would have to file condemnation proceedings in court…

…Van Patten said his idea was to pay the developer a fair market value for the land. Audience members suggested it could be turned into a park, one of the original uses for part of the land. Van Patten’s group opposed this, suggesting it would bring too much traffic through their neighborhood and bring in the wrong kind of people at all hours of the night…

…Peyton said the issue about building in a flood plain would be up to the federal government to determine whether the buildings could withstand a flood. She said she and Maumelle engineer Bob Holloway had seen a lot of developments opposed by residents citing traffic, such as the Osage development. She said Osage opponents suggested the new residents would kidnap babies, sell drugs and do things behind trees…

Nothing is more dangerous than attempting to acquire property on the cusp of development in order to stop the development.  The profit is effectively built in by the time the developer has the project plans, much less the approval.  Jumping into take the development away, especially to benefit other developers, is not Public Use as generally contemplated by the Constitution. 

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Nashua Telegraph

Pennichuck Corp. has named Roland E. Olivier, a longtime corporate attorney, to a new position of general counsel to guide the company in its eminent domain fight with the city of Nashua.

The company said Monday that Olivier also will direct Southwood Corp., a land holding company.

Olivier also said that he looked forward to working again with Pennichuck chief executive Duane Montopoli, who also once worked at Hitchiner.

At the end of July, the state Public Utilities Commission ruled that Nashua could acquire Pennichuck's waterworks for $203 million plus a $40 million mitigation reserve. While the city considers whether it wants the utility at that price, Pennichuck plans to appeal the ruling.

Thus far, Pennichuck has relied on outside counsel. That would still continue, but Olivier said he would provide some in-house guidance as the company makes decisions on the matter down the road.

Olivier said that most activity at Southwood has been put on hold while legal battle with Pennichuck continues but that the subsidiary "would continue to act as an excellent steward for the watershed for the towns that we serve."

Condemnations of utilities need a full time participant outside of the normal corporate governance structure in order to properly defend the business from an aggressive eminent domain action.  Forced acquisitions require a full time special assistant to guide and protect the corporation.  The guidance of the defense takes a full time employee to guide the work with outside counsel.  The issues run the gamut of trial preparation, leadership and protection of the institution.  Pennichuck is following the required route in defense of the its perpetuation.One has to wonder why this case was not removed to the federal court.  

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WMFD TV- Click to see video

 

A citizens' group formed in the Clear Fork Valley is ready to do battle with a corporate giant.

Representatives of Ohioans Protecting Our Resources and Rights, called on the Richland County Commissioners to outline their disagreement with the Columbia Gas Transmission Corporation.

Butler resident Van Ross Wade says the company has notified residents it wants to enlarge its wheeler gas storage field from the eastern edge of Butler and Millersburg.

No compensation has been offered, citing eminent domain. The grassroots group meets from 7 to 9 p.m. each Thursday at the Clear Fork Adult Center in Butler. The public is welcome to become involved.

-The individuals involved in this newscast apparently are not being fully informed by Columbia Gas as to their rights. Has the utility authority approved this project?  Did the owners give up their storage rights?  Is a fair attempt to resolve premised upon the principals of just compensation being made?  Valuable interests are being taken.  The owners should be fairly compensated as part of the process

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Hutchinson News

By passage of a resolution, the Reno County Commission took the first step this week toward acquiring land by eminent domain for the future roundabout at 56th Avenue and Plum Street.

Three parcels - on the northwest corner, southwest corner and east of the intersection - are involved. The owners are Reno Western Corporation, Andrew and Elizabeth Klamm, and Robert and LeslyeDill.

Concern about the amount of money offered for the land and the loss of the land figured into owners' reluctance to sell, according to county officials.

The roundabout will be built next year. The heart of the intersection will be shifted west of the current intersection. Without that realignment, a residence on the northeast corner would have been directly affected by the enlarged intersection.

District Court would appoint appraisers to evaluate property values. Either the county or the property owners can appeal the value that emerges.

 

-Road commissions think taking land for a roundabout is a simple deal.  The roundabouts can seriously diminish the remaining value after the partial taking in States, which maintain a section line (mile road) road system, because the four ninety degree corners are already built.

 

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The Pueblo Chieftain

Rep. Mark Udall, D-Colo., is asking Defense Secretary Robert Gates for official assurances that the Army will not use condemnation in trying to acquire another 100,000 acres for the Pinon Canyon Maneuver Site northeast of Trinidad.

Udall sent the letter Friday, just two days after an emotional confrontation between ranchers opposed to the expansion and Army Assistant Secretary Keith Eastin in Trinidad. Eastin hosted the meeting to tell ranchers the Army wanted to deal with "willing sellers only" and would not condemn land in trying to add another 100,000 acres directly south of the current training area.

The ranchers, who have fought the Army's expansion plan for more than two years, walked out of the meeting. They told Eastin that Congress had specifically approved a ban prohibiting the Army from any work on the Pinon Canyon expansion in 2008. A week ago, the House approved legislation that would extend the ban through 2009 as well.

Udall had taken part in an earlier meeting between Eastin and the Las Animas County commissioners and afterward said it was encouraging that the Army was promising to abandon the expansion if they could not find a willing seller to provide another 100,000 acres.

Ranchers fighting the expansion are concerned that if the Army can find a willing seller for some acreage, it could isolate other private land - giving the Army even more reason to use eminent domain to consolidate its holdings. While Eastin repeatedly told the ranchers the Army is not interested in condemning any property, those assurances were met with deep skepticism. One of the long-festering issues in the bitter dispute is the Army's past assurances that it would not seek additional land around Pinon Canyon, some of which was acquired by condemnation in the 1980s.

-The “willing buyer\willing seller” purchase, as the only way the government will purchase property, is a system that assures the inevitable; i.e., the military will be the only purchase in the area. This will be because everyone assumes that the moment there is an emergency, the government will simply acquire the property interests that remain in the area after all the 'voluntary' purchases are made.

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Altoona Mirror

Spectra has begun work on a proposed natural gas storage field and pipeline system after being approved by the FERC last month.

Shortly thereafter, however, residents who will be affected by the project contacted FERC with concerns, forcing the commission to order a rehearing and consider the issues they brought up.

In the letter, the landowners, who fear a premature use of eminent domain by Spectra, asked for the FERC to use its power to give them information that could be helpful in negotiations with the Texas-based company.

…The landowner letter asked for a response from the FERC before today.

…One of the landowners' largest concerns is that of possible natural gas and oil reserves in a formation known as the Marcellus Shale, which runs through most of the area in question.

If a storage field to hold products from across the nation or other countries is put into place, drilling for reserves that already may be there can not be done because of a possibility of explosion or other dangers to the properties.

Spectra, however, insists that no test wells have been drilled to prove that the Marcellus Shale holds reserves.

-The situation in this article is very similar to the Washington Ten and South Romeo gas storage condemnations in Michigan.  The owners are probably too late in the process to stop the taking.  Further, FERC is less than totally responsive to objections by individual owners being taken by eminent domain, seeing their decision as a Federal policy rather than local action.  However, FERC is not seeking to limit the owners' rights to just compensation.  The storage rights do have substantial value, which clearly is not being paid in this particular Pennsylvania case.

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We Are Central PA

A Texas-based company wants to put natural gas wells in Clearville, Bedford County, and they're trying to use eminent domain to do it. Some property owners there say they're being treated unfairly.

Paul Stup and other several landowners had a lease agreement with a company PG&E. That company drilled on their property and the people got royalty checks from the natural gas produced. In their contract, they had a clause that it would be just drilling and removing not storage.

In storage a company brings in natural gas from outside the area and puts it into the ground like a storage tank.

A couple years ago the PG&E sold the lease agreements to Spectra, a Texas-based natural gas company, and Spectra wants to store natural gas in Bedford County…

Most states will utilize their gas fields for storage and resale.  This is extremely profitable for the utility company 'subsidiaries'; which receive hefty stipends for storage and resale during high need months.  The owners can be paid fairly when eminent domain dispossess their ownership rights, but only when if the just compensation process is fairly utilized.

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Mirror Takes

A Texas-based private natural gas company says it is filing for control of several Clearville properties after more than a year of unsuccessful communication and outreach with landowners who do not support its proposed project.

Meanwhile, a major federal regulatory agency is concerned about the landowners' complaints and has filed for additional time and a rehearing addressing the potential project.

Spectra Energy's Steckman Ridge natural gas storage facility was approved by the Federal Energy Regulatory Commission in early June.

…One of the major concerns of local residents is the possibility of losing out on royalties from the Marcellus Shale, a long section of sedimentary rock along the East Coast believed to harbor large amounts of untapped natural gas reserves.

If the storage facility is in place, designed to hold imported reserves from across the country or other nations, drilling for local reserves would be impossible.

…Spectra expects the 12-billion cubic foot facility to be completed and in service in April.

The Texas firm attempting to privatize the owner's gas and gas storage rights should carefully assess the economic (acquisition) costs of the project.  The owners have clear and succinct rights to compensation.  A close reading of the article verifies that such did not apply in this situation.

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STL Today

A St. Louis jury awarded $2.8 million on Friday to the former owner of two acres just north of the Edwards Jones Dome downtown in a fight over eminent domain.

The city's Land Clearance for Redevelopment Agency condemned the two-acre tract after the owner refused sell it in 2005 for $523,000.

The property, a city block bordered by Sixth, Seventh, Carr and Biddle Streets, was included in the "Bottle District" redevelopment plan for a $226 million entertainment destination including a restaurant, concert venue and bowling alley. It has not yet come through.

A commission of three attorneys set the value of the property at $1.2 million. The city's agency paid that price and took control of the land. But the owner, McTayd L.C.C., appealed to a St. Louis jury, which heard evidence last week and reached a unanimous verdict for more than twice as much.

-The decision of  the jury on this parcel, bordering on the downtown development is a great example that there can be fairness in the judicial process.  This action was tried brilliantly by land owner attorney Robert Denlow of Clayton, Mo.

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Star Telegram

When a gas drilling company wants a piece of land for a pipeline, its representative usually shows up at the owner’s door with a letter from the Texas Railroad Commission, stating that the company has a right to take the land.

Pipeline companies can condemn land because they’re considered either utility companies, which serve the public the same as Atmos or TXU, or "common carriers," a legal term that means they carry oil or gas for anyone.

Major gas companies have formed their own pipeline divisions as they seek routes for gathering pipelines to serve the Barnett Shale. These divisions have the power to condemn land. ...

This is an article worth reading.  Consider the following questions when reading this article. When is a take effectively a private take?  Is there statutory relief needed?  What is the constitutional and statutory authority designed to limit “public use” \ pipeline takings?

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Fosters Daily Democrat

Until September 2006, the option of expanding the middle school onto Alumni Field was believed to be off the table.

A deed restriction on the property — which was donated to the city by the Peirce family in 1913 with the stipulation that it remain a park — requires the city to go through eminent domain proceedings to use the property for anything else.

In the past, Peirce family heirs have fiercely objected to building on one of the last green spaces left in downtown Portsmouth and the city has largely left it alone.

In 2006, the School Board learned from the city attorney that lifting the deed restriction was a possibility. Discussions over the past two years have focused on keeping the school on Parrot Avenue, but until Tuesday, the School Board had not made a recommendation.

Tuesday, School Board members voted 8-1 to send a "preferred option" of building on the property, to the left of the current middle school on Parrott Avenue, onto the City Council. This decision will have to meet with the approval of the City Council before any eminent domain proceedings begin.

School board members will address the size, programming and other issues at a future workshop.

The taking of reversionary interests is like any other taking of a private interest.  Donors of property to the public frequently seek the return of the property if placed in a different use.  A tougher issue may be finding all the heirs almost one hundred years later in order to obtain the releases.

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Delaware Online

Members of the House and Senate have said a new eminent domain law is a priority. Last week, in an attempt to get the nod from Minner, both removed the state Department of Transportation, which condemns land for road construction, from the legislation.

Although the bill came partly as a response to the riverfront squabble, it also was a reaction to the 2005 U.S. Supreme Court decision in the Connecticut case of Kelo v. City of New London. In that case, the nation's highest court ruled that the taking of private property as part of a comprehensive redevelopment plan was a permissible use of eminent domain because the public at large benefits from the redevelopment.

Kelo caused a backlash, and more than 40 states subsequently passed laws to rein in the use of condemnation powers for redevelopment efforts.

-This is another example of how difficult it is to legislate change in the condemnation power.  In all likelihood, the legislature in most jurisdictions can override a gubernatorial veto. But it takes a whole lot of stomach and a supermajority in most states to override.

This is but an example of why so many seeking to limit the overwhelming power of eminent domain go to the referenda process for relief

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Sioux City Journal

An eminent domain law passed by the South Dakota Legislature this year will take effect Tuesday as scheduled.

Secretary of State Chris Nelson says a group that wanted to refer it to a public vote was about 1,600 signatures short of the number needed to put it on the November ballot. Referral to the ballot would have kept the law from taking effect July 1.

The law will help the Dakota, Minnesota and Eastern Railroad and its proposal to expand to Wyoming's coal fields. It speeds up the process when a railroad asks to use eminent domain to cross private property.

-Referenda is available in most states. However, the availability is not enough.  If citizens desire to challenge the legislative action, there must be basic support throughout the jurisdiction.  South Dakota citizens maintained a vocal opposition to the DM&E project.  Apparently, the group was either not strong enough to obtain the needed signatures to be on the ballot, or not organized enough, or maybe the public did not maintain the same opposition. 

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WJZ.com

Baltimore's use of eminent domain and high property taxes have caused residents and businesses to leave the city, according to a report by a Loyola College economist.

The city's policies especially in the developing Charles Center neighborhood and the Inner Harbor have resulted in Baltimore's high crime rate, poverty and declining neighborhoods, Stephen J.K. Walters wrote in the report, entitled ''Baltimore's Flawed Renaissance.''

Baltimore residents fear the use of eminent domain, and because of that are less likely to improve properties and many ultimately leave the city, the report said.

The report also cited the city's highest-in-the-state property tax rate. High taxes caused the city to give major companies tax breaks and subsidies, money the city could have better spent in ways that helped all Baltimore residents, Walters wrote in the report published by the Institute for Justice, a libertarian law firm in Arlington, Va.

Such policies ''doomed the majority of the city's neighborhoods to continued decay,'' the report said. ''Baltimore is today two cities, separate and unequal, not in spite of its extravagant and interventionist redevelopment program, but because of it.''

Matthew Crenson, an emeritus professor of political science at the Johns Hopkins University, said the report did not address the effects of deindustrialization, school desegregation or the 1968 riots. The report also does not indicate whether Baltimore uses eminent domain more than other American cities, Crenson said.

-It certainly puts a crimp on trying to place improvements on the parcel, when individuals know the government will acquire their property in order to transfer it to a developer, .

When developers know that if they want to develop, and the community will acquire the property for them through the eminent domain process; developers will never provide an offer to purchase at fair market value, thereby lowering demand in the market.

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Grand Forks Herald

The signatures still need to be verified, but a group trying to keep a South Dakota law on land condemnation from going into effect has turned in petitions to put the issue on the November ballot.

The group Protect Private Property wants to kill the law passed this year that would speed the hearing process for a railroad to take property under eminent domain.

It's scheduled to take effect July 1 and was prompted by the Dakota, Minnesota and Eastern Railroad's plan to expand and improve its line to haul coal from Wyoming to Minnesota.

More than 19,500 signatures were turned in Monday. If nearly 17,000 of them are valid, the law would be suspended until November.

The railroad says it has been working with landowners to acquire rights of way but might need to use eminent domain in some areas. 

-The group fighting the condemnation has a true 'uphill' battle.  First, the voters will look at the referendum issue closely.  Second, if a vested right is now taken from the railroad, the citizens may have to pay Just Compensation to the RR system for its lost vested right!

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DelMarvaNow

Representative of local governments across the state are criticizing a bill that limits the use of eminent domain in Delaware to public purposes.

The bill, sponsored by Laurel Democrat Robert Venables, was scheduled for a Senate vote later today. It would limit the power of governments to seize property through eminent domain to instances where the land would be taken for public use.

The bill specifically states that public use does not include increasing tax revenues, the local tax base, or jobs through private land owners or economic development.

Representatives of the Delaware League of Local Governments gathered at Legislative Hall today to voice their opposition to the bill, as well as others that they believe infringe on local authority.

George Wright, executive director the league, said the eminent domain bill is an attempt to take home rule away from local governments.


This article is an example of one of the few times a local government has been at the forefront of attacking private use takings. Generally, the local agencies look for some specific non-governmental agency to "carry the water".

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News Busters

It has been nearly three years since the Kelo v. New London ruling by the US Supreme Court, and just short of two years since the city of New London, CT settled with the final two Fort Trumbull holdouts, Susette Kelo and the Cristofaro family.

The Supreme Court's majority, in their June 2005 Kelo ruling, declared that "public use" as stated in the Fifth Amendment to the Constitution really means "public purpose" -- that is, instead of the government being able to take land through eminent domain only for the purpose of building a public structure or creating a public service (road, bridge, school, park, etc.), the government can take land for any reason it believes a worthy one. In the case of New London, the city believed that demolishing occupied, functioning houses that had stood for over 100 years and developing "something else" that would garner the city more tax revenues was a worthy public purpose.

What has been done with the property since then?

-What an ignominious unwinding of the much maligned Kelo decision. New London may have simply tried to reach for the unreachable.

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The Times Tribune

Ms. Howe Henneberg called eminent domain “evil words,” and she fears a pipeline running through her backyard if her neighbors sign natural gas drilling leases.

“It would be horrifying to me,” she said, adding she wants to buy the 13 acres adjacent to her 6-acre property.

Ms. Howe Henneberg was one of more than 300 residents from Pennsylvania, New York and New Jersey who attended the Damascus Citizens for Sustainability event Saturday night that featured a narrated slide show by Theo Colburn, Ph.D., the co-author of “Our Stolen Future.”

Though Dr. Colburn spoke to the crowd via phone from Colorado, her presence filled the Delaware Youth Center, her comments at times eliciting gasps from the attendees. She spoke about natural gas drilling in her state and stressed the need for full disclosure from drilling companies.

During the fracturing process, when natural gas is forced from the ground, “they’re using a number of chemicals with long names that many of you wouldn’t recognize,” she said.

A recent study of natural gas production on the western slope of Colorado, Dr. Colburn said, found 215 products with 278 chemicals were used.

Of those chemicals, 93 percent produced adverse health effects, while information on the remaining 7 percent was “proprietary” and therefore not available, she said.

Some of the chemicals used can cause irreversible “endocrine disruptions” before a child is born, Dr. Colburn said.

She can also foresee similarities between drilling in her area and the Northeast.

Anticipating the effects of natural gas drilling and spreading awareness are goals of the Damascus Citizens, a grass-roots group that formed in February.


-This article notes the potential dangers in drilling for gas. Safety is not an option it is required. Yet, drilling gas is something that is a nationally propounded policy, as illustrated by our tax regulations.

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Journal Gazette

Sometimes land can be too expensive and time-consuming, forcing a road project around it.
Q. Why didn't the city/county buy or take by eminent domain the BP gas station that sits within the triangle of Getz Road, Covington Road and Jefferson Boulevard? - E-mail from Gerry, Fort Wayne.
A. Good question, Gerry, and one I assume several others have asked as they drive past this congested intersection, which has only become worse during the construction.
But the reason for not buying the gas station is a good one as well. According to Shan Gunawardena, the city's traffic engineer, at the time the plans for the project were being developed the owners of the BP station were not interested in selling.
Gunawardena said using eminent domain would have been costly and would have required environmental permits and mitigation work to remove the underground gasoline tanks and subsequent cleaning of the area. The project was designed to minimize the effect on this commercial area of the city, and so the city did not pursue buying the property. The work is set to be completed in November.

-Hail, Hail! We finally have a governmental agency that recognizes it should not buy what it cannot afford!

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Michigan Radio

LISTEN TO PODCAST

ANN ARBOR (2006-11-02) One of the questions voters will be asked to decide on November 7th is a property rights measure called Proposal 4.

The constitutional amendment would put restrictions on governments' ability to condemn private property for redevelopment through the police power known as eminent domain.

The question stems, in large part, from a landmark Michigan case that allowed a neighborhood to be razed to make way for a General Motors plant.

In 1981, GM struck a deal with the mayors of Detroit and Hamtramck to build a brand-new assembly plant on the border between the two cities.

For Hamtramck, the idea of a new plant was a godsend. The city had lost a quarter of its tax revenues when the old Dodge Main plant closed two years earlier.

And Detroit stood to benefit from new, high-paying factory jobs at a time when few companies were investing in the city.

But first, Detroit would have to seize and demolish homes and businesses in an area that became known as Poletown.

Attorney Alan Ackerman represented some of Poletown's property owners. He says some people were happy to go. But he says other people felt that the government had no right to seize and demolish their property to make way for a private corporation.

"What it did," Ackerman says, "is it made sure people felt that they had no real right to their homeownership."

The Poletown case went to the state Supreme Court. In a landmark decision, the court ruled that governments could take land for economic development.

But two decades later, the court overturned that ruling. And now Proposal Four's aim is to enshrine that decision in the state Constitution.

Backers of the measure say the need for the amendment comes from yet another court decision: Last year, the U-S Supreme Court said governments can seize property for private development.

But the court also said it's up to each state to set its own rules.

Alan Ackerman says Proposal Four guarantees that the Michigan decision barring such property seizures stays in place.

"What we have is a situation in which people are worried there's going to be a reversal of that decision by some means," Ackerman says. "And they have such a fear that they want it in the constitution. And that protects them permanently."

But critics of the measure say in the zeal to protect property rights, Proposal Four would make it nearly impossible for communities to clean up blight through eminent domain.

Jerald Rosenfeld is with the JR Group - a firm that helps governments acquire property for redevelopment.

He says a provision of Proposal Four that would require property owners be paid 125 percent of the fair market value of their home or business would make even legitimate uses of eminent domain unreasonably expensive

"We're talking about the highway department," says Rosenfeld. "We're talking about an airport. We're talking about our road systems. They're gone. Those new developments, those new projects - they won't happen anymore, because the cost will be so great."

Backers of the measure dismiss that argument. They say it's important to remember that a home or neighborhood is worth more than what the market reflects.

And they say Poletown is a good example of that.

Marian Krzyzowski grew up near where GM's Poletown plant now sits.

He says the destruction of the Poletown neighborhood didn't just wipe out homes, schools, and churches. He says it also accelerated the decline of the area around it.

"Driving down the street, you can see there are mostly empty lots, boarded up storefronts, and mostly empty buildings," says Krzyzowski as he drives through the neighborhood south of the plant. It looks like it went through a war.

But the story north of the plant is a much different one.

Greg Kowalski was editor of the Hamtramck Citizen newspaper at the time the Poletown plant was built. He says the tax revenues from the plant rescued the city from financial ruin.

"And today Hamtramck is actually growing quite rapidly," says Kowalski. "Population is increasing. Housing values have gone up substantially, there's a lot of development going on in the city, and we are much better, sounder shape than we were back then."

Twenty-five years after Poletown was razed, voters will decide whether Proposal Four is the best way to make sure a similar situation doesn't happen again in Michigan - or whether it goes too far in preventing the redevelopment that some cities desperately need.

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The Brownsville Herald

Before construction can begin on the border fence, the federal government must purchase a large stretch of South Texas land from private landowners.

But in Cameron County, the government's offers have been met with resistance from residents unwilling to sell their land.

For some, it's the principle. For others, it's the price.

This week, 16 permanent condemnation lawsuits were filed against Cameron County landowners. After more than 50 lawsuits were filed over temporary access to land in early 2008, these are the first cases that deal with permanent land seizures.

In almost all cases, the government is seeking to purchase land on which the fence will be erected. The lawsuits also request a permanent easement - usually a small fraction of an acre - which will serve as a byway for the U.S. Border Patrol.

"What they offered me is not even one tenth of what my land is worth," said Abraham Galonsky, who is being sued over his commercial property in Southmost. "The number is completely out of line."

Galonsky hopes that the U.S. District Judge Andrew S. Hanen will determine a more reasonable price for his 6.17 acres. No court date has been set for any of the 16 lawsuits.

Although the tracts in question range from .02 acres to more than six acres, the language of each lawsuit is nearly identical.

"You may present evidence as to the amount of compensation to be paid for the property acquired herein," each document reads.

In Galonsky's case, the government seeks a two-year lease, which would enable the construction of an office and a temporary storage area on his property.

"When they take away access and limit the land, they're doing damage to the land's value - that's what they're not considering in their offer."

Officials from the Department of Homeland Security have made it clear that once they've finished purchasing land along the border, the fence's construction could begin immediately thereafter.


-“Temporary takings” offer a number of diverse economic calculations in order determine Fair Market Value under the Federal standards. A two-year temporary taking may not simply be “rental value.”

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The Earth Times

California's 3rd District Court of Appeal issued two unanimous decisions supporting Pacific Gas and Electric Company regarding attempts by the South San Joaquin Irrigation District (SSJID) to enter the retail electric business by seizing the utility's assets.

The first decision rejects SSJID's plans to condemn PG&E's assets through eminent domain in order to provide retail electric service without authorization from the San Joaquin County Local Area Formation Commission (SJ LAFCo). The second rejects attempts by SSJID to depose two former SJ LAFCo commissioners and the commission's former executive director. The Court also ruled that the District is responsible for all court costs associated with the appeals for both PG&E and SJ LAFCo.

"This decision confirms that SSJID must abide by state law, and obtain LAFCo approval in order to enter into the retail electric business," said Nancy McFadden, PG&E senior vice president of public affairs. "This law exists for good reason: Before any special district can take over a service as important as a community's electric power, it ought to be able to make a good case, and prove the public benefit to the region, by winning approval at LAFCo. This decision preserves the checks and balances contained in state law."
PG&E has consistently maintained that SSJID needs approval by SJ LAFCo to enter into the retail electric business. The irrigation district effectively acknowledged the commission's authority by applying to SJ LAFCo in 2006 and actively participating in the commission's proceedings on its application. Only after the SJ LAFCo rejected the application did SSJID claim the commission's approval was merely permissive, not mandatory.

"The denial was on the merits," wrote Justice Fred K. Morrison. "If the District had a stronger case to make, reasonable diligence required the District to make that case at the (SJ LAFCo) hearing."

It is unfortunate for the residents of South San Joaquin County that its governmental water agency has frivolously squandered more than $8 million since 2006 and is committing more than $11.5 million more of public dollars to pursue an unsound business plan that has been denied by multiple regulatory and judicial bodies in which it has applied.
Should SSJID choose to reopen its application with SJ LAFCo, PG&E's position remains firm that the company's facilities are not for sale and that we will vigorously contest a hostile eminent domain takeover.

PG&E has served northern and central California for more than 100 years and is committed to providing clean, safe and reliable energy to our customers in South San Joaquin County. PG&E has provided millions of dollars in energy efficiency savings and innovative services such as ClimateSmart(TM), energy partnerships and solar generation incentives and rebates for local residents and businesses, including SSJID's water and irrigation facilities, to help reduce their energy bills and carbon footprint.

-It is amazing that governmental agencies do not understand their authority to take property comes from the legislature through a statutory delegation, rather than the local body.

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OnlineAthens, May 13, 2008

Oglethorpe County has given the owners of 79 acres on Dawson Road until June 9 to accept its offer to buy the land before it starts condemnation proceedings for the property needed to expand the Athens-Clarke Landfill.

Oglethorpe County officials agreed in March to pay landowner Anne Steiner $682,000 for the property, but the two parties have not signed an agreement.

The family has until June 9 to accept the offer or the government, which shares the landfill with Clarke County, will use eminent domain to seize the property, said Robert Johnson, chairman of the Oglethorpe County Commission.

"Hopefully, the land (deal) can be negotiated before then," Johnson said.

Kim Steiner, the daughter-in-law of land owner Anne Steiner, said in March that the family wasn't willing to sell the land but would have an independent appraiser determine its value. That appraisal was supposed to be completed by May 5, according to Johnson, but commissioners have not seen the report.

The landfill, which straddles the Clarke-Oglethorpe county line, has three to five years of space left, and the expansion would add about 25 to 30 years to its life, Johnson said.

Athens-Clarke County owns the landfill, but Oglethorpe County receives 10 percent of the tipping fees that haulers pay when they bring trash to the dump.

The state Environmental Protection Division still must approve a permit before the expansion.
In the meantime, local environmental activists have submitted petitions to Athens-Clarke and Oglethorpe county officials, asking them to reconsider their January votes to expand the site.
The decisions violate the 1992 agreement made between the two counties to close the site, rather than expand it, once it reached capacity.

"Such blatant disregard to uphold government integrity is an affront to the democratic process and constitutional protection of human rights," said Jill McElheney, an environmental activist.
State law says the agreement is not enforceable since commissions are prohibited from binding another, future commission made up of different members.

The agreement was based on the assumption that a regional landfill would be built, but that effort failed in 1998 after an outcry from residents living near 25 proposed sites. Athens-Clarke commissioners can't vote to reconsider the earlier decision since those votes only can be made in meetings that immediately follow the initial vote and before the adoption of the minutes, said Athens-Clarke County Commissioner Andy Herod.

People near landfills often have a difficult challenge when the governmental agency decides to expand the facility by involuntary (condemnation) purchase. What is seen is often much less than what is there!

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Jacksonville Business Journal

The Jacksonville Port Authority probably will pass on acquiring 70 acres at the north end of Talleyrand Avenue by eminent domain, deterred by the $67.4 million price.

Having won a court ruling in December 2006 that the authority could take the property, it had not committed to doing so until the price was settled. Now it knows that price is more than four times what the authority offered before filing for condemnation.

A jury decided May 2 the authority would have to pay $67.4 million to fully compensate Keystone Coal Co. for its industrial riverfront property. The verdict followed a two-week valuation trial that was the culmination of a two-and-a-half-year process the authority had followed to acquire the land for expansion.

"It would be hard to justify purchasing the property for that amount," Authority Executive Director Rick Ferrin said. "I don't know of any maritime use that would generate a return on investment that would justify such a price."

This is eminent domain at its worst. The government attempts to take from one owner simply to transfer to a preferred developer from China! Only in America could a state rule allow dismissal of the taking because it was more than the buyer wanted to pay!

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Register Herald

The Monroe County Commission is attempting to obtain ownership of a cemetery, using its powers of eminent domain, because the private owner allegedly has “desecrated the burial ground” by removing tombstones and allowing “raw sewage” to run over graves.

Commissioners Oliver Porterfield, Joyce Pritt and Shane Ashley named Irvin Lee Mann Jr. as the defendant in a lawsuit filed last week that seeks the more than 30,000-square-foot property in Lindside.

The suit states the plot of land is an old cemetery where human remains were last interred in 1914. The commission is seeking to take the property from Mann, pay him for fair market value for it and then restore the cemetery “for the solemn and respectful final resting place for the citizens therein buried.”

“Upon information and belief all grave markers were removed from existing graves in violation of law, and discarded or destroyed, it is believed that some markers may exist over a steep wooded embankment adjoining the cemetery,” the suit states.

“The property has been illegally utilized for residential purposes for some time, and has been recently used by (Mann) as a resident with residential rental structure also on the property.

“... (Mann) has unlawfully allowed raw untreated sewage to run unattended over and across the cemetery property, further desecrating the burial ground.”

A telephone listing for Mann could not be found Thursday.

Ashley said some of the problems with the cemetery began with previous owners of the land, and believes the matter needs to be resolved out of respect for those who are buried there.

“What the commission wants to do is to come in and clean it up and restore it back to the original cemetery and make it presentable and a good resting place for the people that are buried there,” he said Thursday. “I am for protecting the cemetery where somebody’s mother or father may be buried.”

Ashley said he was unsure how many grave sites there are or their exact names, but said, “I’m pretty sure we can work this out.”

The lawsuit also stated the commission does not intend to “create new sites for burials, but only to prevent the further violations of existing graves.”

This is a taking for all the good reasons. There is no difference between an eminent domain proceeding for a disgustingly maintained cemetery and a blighted building. Hopefully, there is a statutory delegation allowing taking of the property.

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Nashville Business Journal

The lighting rod issue of eminent domain appears to be escalating around a Music Row property owned by Joy Ford, owner of Country International Records.

Scott Bullock, the attorney who argued the landmark eminent domain case, Kelo v. New London, at the U.S. Supreme Court, will be in Nashville tomorrow to meet with Ford and the media.

At issue is the construction of a $100 million mixed-used office and hotel project by The Lionstone Group, a Houston-based developer. Recently the developers indicated they are ready to move forward with construction, even though Ford's property is located inside the footprint for the project.
In recent weeks, the city has signaled a willingness to get involved because the property is located in one of the city's urban redevelopment districts.


Realistically, this is a prime example of a public agency taking for essentially a private use. Let the market determine the value of the property!

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The Time Tibune, April 30, 2008

Surely, Northern Kentucky University land-grabbers don’t think they can use eminent domain to seize private property for a new athletic complex. Or do they?

You never know what people in power, who seem to disdain the sacredness of private-property rights, are capable of doing.

N.K.U. officials left the door open for eminent domain when announcing plans for the new complex planned for nearby private property — even before regents approved the plan or owners were satisfied. And the property, essentially placed in limbo, makes it tough for owners to sell now that potential buyers know the university’s plans.

Who wants to buy property with an “up for grabs” sign stuck in the front yard?

The university doesn’t have the cash right now to buy the coveted properties. Playing the eminent-domain card forces other potential buyers to fold.

The Cincinnati Enquirer reported that N.K.U. President James Votruba said the university “will try to avoid using eminent domain.”

Votruba might as well have said: “We’ll try to avoid condemning property. But we will — one way or another — get this property to build our new baseball diamonds, track field, tennis courts and parking lots. If owners don’t accept our (a.k.a. fair-market value) price, we’ll condemn their land.”

The university president didn’t say that, but a local real estate agent did, and he knows eminent domain when he sees it.

…. The founding fathers created a Constitution that allowed eminent domain tactics, but sparingly and only as a means to attain land for the public good — to create utilities, highways and railroads.

…If these property owners in Northern Kentucky are smart, they’ll hire a sharp lawyer. If their elected officials are smart, they’ll send President V. this message: Let property owners determine “just compensation.” Then let N.K.U. pay up — or shut up -— about eminent domain.

The real issue here is whether the Kentucky State Constitution empowers Universities with the authority to take land. If so, uses not purely educational are indeed part of the parameters of the U activities.

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The Peoples Voice, April 25, 2008

We know what happens to people who stay in the middle of the road. They get run over.” - Ambrose Bierce

Are you sick and tired of being at the mercy of the grasping plutocrats who run Big Oil? Gasoline is now selling at $3.50 a gallon, as the price of a barrel of oil nears $120, with no end in sight to further increases. Meanwhile, the American economy is sinking faster than the Titanic. The dollar, too, is in sharp decline. Mortgage foreclosures are at depression era highs. Over three million middle class jobs have been exported in recent years. The Wall Street wise guys are in near-panic mode. The Fed, after 19 years of Alan Greenspan’s gross ineptness, is held in deep contempt. Yet, Big Oil keeps sucking off the American consumer, with a devil-be-damned attitude, while acting like a law unto itself… read more

Now if we can only nationalize everything, avoid all competition, then have nothing left for us to work for. Nationalization of the oil companies (a slight expense) would assure us of no development or improvements in the oil distribution system, and likely delay our attempts to look to alternative fuel.

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East Valley Tribune, April 15, 2008

Up to $55 million into the pockets of developers, due to McDowell Sonoran Preserve eminent domain actions gone wrong.   

Another possible $8 million to an investment group, related to a disputed lease involving a water treatment plant expansion.

Nearly $5 million spent on a downtown arts district development that fell through last week.
Scottsdale is finding that buying, leasing and selling land does not always go smoothly.

On Tuesday, the City Council is to consider having the City Auditor's Office initiate a fact-finding review into one of one those eminent domain actions, the $82 million Toll Bros. condemnation, in hope of avoiding future real estate pitfalls.

-Scottsdale has actively sought eminent domain as a tool of “development” and to aesthetically improve the community. The article places governments on notice that they should be acquiring by condemnation only where there is no other choice and the need is truly mandatory.

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Herald Tribune, March 10, 2008

Hanging in the Sarasota conference room of law firm Brigham Moore is an earth-tone print of six Plains Indians seated and standing around a table with a parchment copy of the U.S. Bill of Rights in the background.

For Bill Moore, one of the law firm's named partners, the print is a reminder of one of the greatest land crimes ever perpetrated by the U.S. government.

In the 1820s, federal officials tried to oust Cherokee Indians from their lands in North Carolina, Tennessee and Georgia, and the Cherokee responded by hiring a lawyer.

"They had been promised that land under a treaty dating back to Washington's time," Moore said. "They pled their case all the way to the Supreme Court, and they won."

But President Andrew Jackson refused to enforce the rights of Cherokees, Moore said. Instead, he ordered troops to drive them on a thousand-mile march to Oklahoma, which became known as the "Trail of Tears."

Moore, part Cherokee himself, has dedicated his life to helping protect Florida residents against similar takings. Along the way, he has helped to build his firm into the largest eminent domain practice in the state, with 19 attorneys in five offices…

-Bill Moore has been among the outstanding advocates in protecting owners in eminent domain. His passionate and rational demeanour along with a sense of fairness has offered protection to thousands of Florida owners seeking redress in their constitutional right to be treated fairly.

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Washington Business Journal, March 3,2008

Anacostia is getting a long-desired makeover, courtesy of a familiar name.
George Curtis III, whose family's furniture company built the 19-foot high chair at V Street and Martin Luther King Jr. Avenue SE, is teaming with D.C.'s Four Points LLC on a planned 1.5 million square feet of new development in the heart of Anacostia's blighted business district.

The plans include 855,000 square feet of offices, 500 residential units, 165,000 square feet of retail, an eight- to 10-screen movie theater and a grocery store.

Developers and community leaders say the project, with construction possibly beginning in early 2009, could transform Anacostia's main corridor into a vibrant retail and business center.
D.C. estimates the property's value at its best use to be about $33.8 million. Four Points plans to seek greater zoning flexibility.

Curtis will sell the land to Four Points but retain a stake in the project, capping his family's 80 years of involvement in the neighborhood.

-One has to hope the area is truly blighted, and can only be rehabilitated through governmental involvement. If so, the project intended to clean the area makes sense. However, one wonders if there is a private profit motive leading the way. I hope that the individual owners will be protected.

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-New Jersey has a much-maligned rule that it can designate an area as blighted and ready for development. Under the rule, those individuals in the area must challenge within forty-five days or they forever waive their rights to challenge the condemnation. In Harrison, the City waited six years to designate specific properties. This raises substantial due process issues. To date, owners have been unsuccessful in their challenges to the New Jersey procedure, at least in State court.

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Rapid City Journal, February 13, 2008

The South Dakota Senate has approved a measure intended to speed up state hearings on the Dakota, Minnesota & Eastern Railroad's application to acquire land by condemnation for its $6 billion expansion project.

An opponent said the bill could hurt landowners who believe DM&E is not treating them fairly, but the Senate sent the measure to the House on a 20-13 vote.

The bill's main sponsor, Sen. Tom Hansen, R-Huron, said DM&E applied more than a year ago for state approval to use eminent domain to acquire land for a right of way from people who are unwilling to sell. Opponents have used delaying tactics to prevent a state hearing, he said.

"The time has come to let the process move forward," Hansen said.

"Their concern was not to stop the railroad. Their concern was to get a decent price for what the railroad was taking," Lintz said.

DM&E wants to rebuild 600 miles of existing track across South Dakota and Minnesota and add 260 miles of new track around the southern end of the Black Hills to reach coal fields in Wyoming. The Powder river Basin project would haul low-sulfur coal eastward to power plants.

The state Transportation Commission has sought to hold a hearing on DM&E's application for authority to use eminent domain, but that hearing has been delayed after some hearing examiners were removed by both sides. Another delay was caused by a court order that required the commission to pass new rules for handling such cases.


-This article describes the issues in the DM&E Railroad acquisition process.

Here, we have not only a national railway but also a railway owned by a foreign railroad company.

The issues of equal protection, state's rights, interstate commerce and the state's interest in protecting individual rights of its owners all provide a conflict, which has created torturous litigation and a hostile community in a question over what controls the state has on a transportation process within a state.

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The City of NY runs to its own clock. The use of mass transit creates an economy is which a central part of the transportation scheme is to have the most dense uses near the subway stops, with the heaviest uses, such as arenas and high rises near stations where possible. This is a basic part of the planning process in NY, DC, Boston and other communities with viable mass transit. Sorry Detroit, not quite a reason for condemnation.

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WYTV, January 29, 2008

Neither side has been willing to budge when it comes to the area around Hazel Street and YSU, and that's why the courts are now getting involved.
Last Friday, the city filed a petition against Joseph Grenga, the owner of Grenga Machine and Welding Company on Rayen Avenue. The city wants to demolish that property to extend Hazel Street from downtown to the YSU campus. They've offered to buy the property from Mr. Grenga before, but his response is still clearly plastered on the walls of his business.
So, city leaders say they're following the path laid out by the law to try and force Grenga's hand. "Anytime you have development, not everyone is going to be in agreement with that development. But at the end of the day, I think this project is going to be a significant boost to many many people and many, many businesses in cleaning up that corridor", explains Mayor Jay Williams.
Along with the petition, the City put two hundred and five thousand dollars it offered to Grenga into an escrow account, and attached a city council resolution and ordinance in support of the acquisition.

-It is always hard to stop a road take, bordering on the impossible, because roads are public uses. Only in the very rarest of factual situations can one stop the taking of their property for a road.

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Reason Online, December 18, 2007

Drew Carey, Hollywood comedian, recently revisited eminent domain abuse in Hollywood. This film is an excellent demonstration of how eminent domain affects businesses and landowners.

The city of Anaheim demonstrates that eminent domain is not the exclusive option for economic redevelopment.

This great documentary breaks down eminent domain in an entertaining yet informative way.

http://www.reason.com/blog/show/123989.html

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Times Ledger, November 23, 2007

Former Borough President Claire Shulman continued her cross-borough tour in support of Mayor Michael Bloomberg's Willets Point redevelopment plan Monday night, telling the Queens Civic Congress she expects a legal battle to take place, but does not believe eminent domain will be used by the city.

The city's plan is expected to start the six-month-long public approval process as soon as February, and Shulman said a developer could be selected as early as next fall. The project remains fraught with obstacles, however, including the need for an extensive environmental cleanup, millions in infrastructure costs and, most pressingly, the 1,300 workers and 250 businesses which will need to be moved.

Shulman said the legitimate businesses at Willets Point deserve fair negotiations with the city, but stopped short of saying they deserve to stay on the 60-acre site.

She said she believes the city has firm legal standing and should not take eminent domain off the table, but does not think the controversial practice will be used when all is said and done.

"Eminent domain is a bottom line and I don't believe it will ever be used" she said. "But it's not in [the business owners'] best interest to wait for eminent domain."

-All too frequently, retired elected officials jump at the opportunity to promote eminent domain actions. Somehow, officials feel that their name becomes good when attached to a successful private taking project such as Willets Point. It is hard to imagine that the former president would know whether owners are better or worse off to await the condemnation.

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Tri Cities, November 27, 2007

BRISTOL, Va. – Despite a recent favorable court ruling, city leaders may opt to abandon the controversial Mendota Trail project.

The proposed hiking and biking trail from the city limits to the Scott County, Va., line has already cost the city more than $600,000, City Manager Bill Dennison said. The council is expected discuss the stalled project at its next meeting.

"An item is on the agenda for Tuesday’s meeting," Dennison said. "It’s a terribly convoluted, complicated, very expensive proposition. Continuing a project, with no end to the expenses in sight, doesn’t seem very prudent to me."

In the nearly seven years since, the city has invested about $635,000 to acquire the land and in legal and engineering fees, amid a six-year legal battle with property owners along the proposed route.

After a number of landowners tried to claim ownership in 2001, the city sued all 180 people with potential claims. Less than 20 are still engaged in the lawsuit, which has not yet gone to trial.

One solution could involve asking the Washington County Board of Supervisors to condemn the property, Mayor Jim Rector said, adding he didn’t know if county leaders would cooperate.

Any decision also needs to include an estimate of the cost of completing the trail, Rector said.

"A half-million dollars will not touch what needs to be done to that trail and that doesn’t include annual maintenance," Dennison said.

The city previously estimated trail construction could cost up to $1 million.

Establishing a trail would involve clearing the land, removing buildings, fences and other obstructions, building bridges, replacing at least one trestle damaged by fire and pouring the base material, Dennison said.

-Sometimes, communities realize in time that they should withdraw from projects rather than obstinately pressing forward without a full analysis of the costs and benefits. Substantial title problems on ownership of property and uncertain expenses can lead to unanticipated obstacles.

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Washington Post, November 23, 2007

Maryland highway officials and the philanthropic Eugene B. Casey Foundation are battling in court over the state's decision to seize 405 acres of the foundation's land for the intercounty connector, even though the land is seven miles from the highway's planned route.

The state has taken the wooded, rolling hills in Boyds, and has offered to pay the foundation $3.44 million, to replace some of the parkland and mature forests that will be bulldozed to build the six-lane toll highway between Gaithersburg and Laurel. The Montgomery County parcel is part of the Maryland State Highway Administration's "environmental mitigation" plan, which received federal approval.

Environmentalists say the Casey land is too far away to help the wildlife in the more than 900 acres of forests, wetlands and parkland that the 18.8-mile highway will destroy. The bigger issue: The foundation, its attorney said, doesn't want to sell and thinks the state has no right to the property.

The Casey Foundation is one of the Washington area's largest philanthropic organizations, with a net worth of $166 million, according to its 2005 federal tax filing. Eugene B. Casey, who died in 1986, was a developer and one of upper Montgomery's largest land owners. Betty B. Casey, 80, his widow, lives in Potomac, according to voter records.

The state took ownership of the foundation's property in May, after the trustees declined to negotiate a fair market price, said Melinda Peters, the intercounty connector's project director. Upon seizing the land, the state deposited its purchase offer of $3.44 million with the Montgomery Circuit Court and filed a condemnation case against Betty Casey and other trustees. A judge is expected to rule in spring on whether the state has the right to seize the land.

If the state wins the court case, the land would be turned over to the county's park system. But, Park said, the foundation might then appeal because Maryland has no case law on the state's rights to seize land far outside a project's right of way.

Full construction on the highway began last week, after a federal judge in Greenbelt rejected two lawsuits that alleged that the project violates federal environmental laws. The intercounty connector, estimated to cost $2.4 billion, is scheduled to fully open by 2012.

A ruling on the extent of the state's eminent domain powers could have far-reaching ramifications. Such "environmental mitigation" packages to replace wetlands, forests and other habitat have become commonplace, particularly on large, controversial projects.

However, as development grows denser near projects, highway officials said, they have had to find replacement land farther away. As part of rebuilding the Woodrow Wilson Bridge, for example, regional highway officials created or preserved 100 acres of wetlands in Stafford County and planted river grasses at the mouth of the Chesapeake Bay to replace those lost to the larger bridge.

-This article deals with the issue of true intent in a taking by an acquiring agency.  Is the intent of the acquiring agency to find the easiest way out of a required mitigation project?  The acquiring agency may totally fail to repair the harm of a project or simply mitigate this situation by replacing the acquisition with something available elsewhere.  It is possible the statute, requiring mitigation for forestland taken for a roadway project, has no relationship to the project area affected. 

 

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Weekly Almanac, Editorial

Some Wayne County landowners, particularly in the northern part of the county, have the opportunity to make royalties off their land by singing leases with natural gas companies that have been looking to acquire drilling rights here. Residents have been advised to find out as much as possible about the process before signing anything.

The companies’ interests will take precedence over the interests of the landowners.

Landowners were advised to join together, pool their acreage and hire a lawyer or agent to negotiate for them as a group.

-This editorial is one of the brightest and well written editorials that could be provided to the owners. The editorial realistically advises owners that they should look to what rights they have and pool their acreage. In most States, there is a State statute which allows pooling, thereby allowing the individual owners to maximize their values.  This will likely result in the highest possible royalty percentage.

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North Jersey, October 23, 2007

North Arlington officials on Monday called for a federal investigation into the "entire sorry episode" of the controversial EnCap proposal to build a massive golf course-residential-retail complex in three Bergen County communities.

The report, based on a review of 10,000 pages of state documents, showed that the project has added to the pollution in the Meadowlands -- revealing, for example, that 2.5 million cubic yards of contaminated materials have been brought to the site in Rutherford and Lyndhurst.

The project plans for Lyndhurst and Rutherford call for two golf courses, a hotel and 2,500 residences, all built atop the four old landfills there.

After The Record reported details about the $300 million in publicly funded financing for the project, Governor Corzine directed the state inspector general to investigate the deal. That review is still under way.

-No State is feeling the punishment of the private/public relationship more than New Jersey. Here EnCap is apparently accused of buying its way into deals with local government. Due to this, nothing is being developed, trust in the government is being destroyed, and one wonders whether government can ever treat private owners fairly.

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Trading Markets, October 24, 2007

The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will identify and address the environmental impacts that could result from the construction and operation of the East to West HubLine Expansion Project (E2W Project or Project). The E2W Project is proposed by Algonquin Gas Transmission, LLC (Algonquin), which is an indirect wholly owned subsidiary of Spectra Energy Corp. The Commission will use the EIS in its decision-making process to determine whether or not to authorize the Project. This notice describes the proposed Project facilities and explains the scoping process that will be used to gather input from the public and interested agencies on the Project. Your input will help determine the issues that need to be evaluated in the EIS.

Summary of the Proposed Project
Algonquin proposes to modify portions of its existing pipeline system in Massachusetts, Rhode Island, Connecticut, New York, and New Jersey. The E2W Project consists of the construction and operation of 46.1 miles of various diameter pipeline and associated ancillary pipeline facilities. Of this total, 13.0 miles consist of new pipeline in Massachusetts and 33.1 miles consist of the replacement of existing pipeline in Massachusetts and Connecticut. A significant portion of the 46.1 miles of the proposed pipeline facilities would be either within the existing Algonquin right-of-way or adjacent to an existing powerline right-of-way. No new right-of-way corridors would be created based on the alignment as currently proposed with the exception of several minor alignment deviations to facilitate construction.

In addition, Algonquin proposes to construct 2 new compressor stations in Massachusetts, install over-pressure protection regulation at 4 sites in Massachusetts, and install minor modifications at 5 existing compressor stations and 29 existing meter stations along Algonquin's system in the 5 Project states as described below. A general overview of the major Project facilities is shown in Appendix 1. /2/

-A major gas pipeline will be installed in new areas, as well as along old pipelines, in New York, New Jersey, Connecticut, Rhode Island and Massachusetts. The project is a major facility expansion traversing hundreds of miles. This will be a closely followed and much debated project affecting numerous landowners.

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YouNewsTV, October 17, 2007

A local landfill has agreed to pay for a much needed sewer treatment plant near Wyatt. In exchange, the landfill could purchase land from farmers without rezoning.

Waste Management has offered to pay for the $1.5 million plant, but in return, it wants an overlay district created around the Prairie View Landfill.

After criticism, St. Joseph County proposed smaller district.

The plan has undergone a few changes. But the biggest change is a contract is a contract that will require Waste Management to pay property owners for fair market value if an

Waste Management anticipates the landfill will need to expand in another 25 years. Some farmers who live next door to the landfill do not want to sell.

-Forcing farmers to lose the right and benefit of owning a farm with potential for other development in the future because of proximity to the waste site does not fulfill the basic requirement of full compensation clauses of either the Indiana or Michigan Constitutions.

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Shorelines, October 11, 2007

St. Johns County Utility is ready to finalize a deal to buy intercoastal Utilities. Some people still think the price is too high.

Appraised at $24.5 million, the aging water and sewer system serves about 4,500 residents in Ponte Vedra Beach and Palm Valley.

At a Palm Valley Community Association, meeting residents complained the appraised value is too high.

Whether or not no the county acquires the utility, it will have to pay the company’s legal fees for the past year.

-Many governmental agencies are attempting to take water and other utilities when they fear there is an environmental issue, a safety constraint, or inability to develop in an appropriate fashion in the future. However, this community should not think that their rates will go down simply because the utility is being purchased by the County.

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Pantagraph, October 1, 2007

LeRoy attorney and political activist is recruiting clients to fight an eminent-domain request to build a crude-oil pipeline from Pontiac to Patoka in Southern Illinois.

Millions of dollars in payments to landowners hang in the outcome of Enbridge Inc’s request from eminent domain.

Enbridge spokesperson has repeatedly said eminent domain is a last resort.

 

-It is good to see an activist fight the condemnation process. However, each landowner should protect their individual interest on the damage claims. The same attorney can do this, but each owner should look to the individual claim that they may present. Otherwise, they may find themselves in front of a group of special masters who have no understanding of the issues at hand and face the possibility of no just compensation.

 

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Long Beach Press Telegram, August 17, 2007

Then city of San Pedro will pay a petroleum storage company $17 million to vacate 12 acres of waterfront property in the Port of Los Angeles.

The settlement comes after five years of negotiations in which the port threatened to condemn the property over various environmental and safety issues. Clean up, which may take several years, is organized by the city and the port.

-As in so many other communities, San Pedro has determined that the burden of cleanup costs and just compensation far outweigh the value to the community of an industrial use in an area attempting to de-industrialize. This is of major public policy import because there will soon be a day which there simply is not enough land to maintain industrial uses. Further, the environmentally sensitive uses being placed by gasoline type companies will inevitably change to higher and better uses such as high-rise residential, commercial development and intensively used port facilities.

 

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Chico Enterprise, August 18, 2007

Paradise Irrigation District has been in talks about collaborating with its neighbor, Del Oro Water Co., to chare water from a proposed pipeline.

PID officials announced they are looking at an alternative. They would like to acquire Del Oro’s two districts covering Lime Saddle and Old Magalia.

Del Oro maintains its districts are not for sale.

If PID presses ahead with the acquisition process, it will have to seek approval from the Butte County Local Agency.

-The article is a classic example of the desire to obtain a new “economy of scale” in purchasing franchises, thereby expanding the business viability and opportunity. As part of this taking, the proposed acquirer would best review its statutory authority. See Grosse Ile Township v. Grosse Ile Bridge Company, 727 Mich. 593 (2007).

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Delaware Online, August 23, 2007

Business owners in Wilmington are fighting the city’s plan to take their property using eminent domain.

Wilmington officials want to redevelop the riverfront, a plan 35 years in the making.

The city promised local business owner Ed Osborne and others fair market value and to relocate them to a business park near Garasches Lane.

-Clearly, communities need to redevelop blighted areas. The problem in Wilmington is that its citizens who are reasonable and responsible businessmen owning property in an area which is at least partially blighted. Then, the owners face the massive majority, such as that expressed in the Delaware Online article of the News Journal, in which it seems that the whole notion that there is nothing unfair in the process runs contrary to reality.

In the article, one of the questions raised was whether the owners were protected from abuse of authority.  The only answer is "no," they are not fully protected. The courts will hold that the government has the right to take the property unless there is a clear abuse of discretion in the governmental activity. This action is unlikely to be found in a situation where a major portion of the area is blighted. At the same time, the notion that owners will be protected just does not meet with the reality in which owners do not get paid for business interruption and other damages. Lost profits will be difficult to obtain, and the value of the businesses may not necessarily be paid.

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Brooklyn Daily Eagle, August 3,2007

Plaintiffs are challenging the use of eminent domain to build the planned Atlantic Yards Project.

Plaintiffs are property owners and rent subsidized tenants located in the footprint of the planned 22-acre development project.

Under the Fifth Amendment to the US Constitution, "private property shall not be taken for public use, with just compensation."

-The Atlantic Yards case is a difficult case and will have little opportunity for success given the presence of Kelo precedent.  However, it may be in the United States Supreme Court where we visit the issue.  If the Supreme Court does reverse the Kelo decision, it will only be due to misuse and abuse of the power by local communities that put us all in this horrible position.

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Frederick News Post, August 2, 2007

The city of Frederick is pursuing the use of condemnation of a local farm so it can expand the airport.  

The city council voted unanimously to take the farm property.

According to city documents the farm has been appraised for $2.8 million.

The city council believes firmly that it is the right step to take the property.

-This article presents an underlying theme in condemning authorities that simply if you assess, especially a low assessment, that is the fair market value for the property.

Airport takings frequently offer issues of what is the correct highest and best use for the property.

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Leesburg Today, July 16, 2007

Loudon County Public Schools staff and representatives of two adjoining Dulles area properties continue to butt heads over how to proceed with land acquisition.  

The landowners contend no negotiations had taken place and the school system was rushing to begin a condemnation process. 

-School Board takings seem like simple public acquisitions.

However, properties taken for schools are variably in areas of growth, where a noteworthy demand in a community is simply missed by appraisers. In many communities, School Boards will not acquire by the eminent domain process, but rather simply buy what is available in the marketplace, thereby avoiding the hostilities and uncertainties of eminent domain proceedings.

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Washington Business Journal,  June 29, 2007

If the proposal proceeds as is and half the landowners agree to sell, dozens of retailers and wholesalers who have operated businesses in the market for decades may have the option to move into the warehouse by buying retail condominiums. However the real estate will most likely be much costlier than they pay now, and some fear there will not be enough space for many retailers to operate, including areas to load an unload trucks.  

Business Landowners have formed the Florida Avenue Property Owners and Merchants Association to fight the evolving development.   

“Our goal is to see that the market is preserved. There is no other land in the region that can build a market like that.”

-All too often, an individual, full contemplating the ‘general benefit’ to the property and its tenants, want redevelopment without appropriately safeguarding individual rights. The fact of a redevelopment will differ with each ownership interest to simply redevelop for the purpose of redevelopment alone simply does not fulfill the constitutional requirement.

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Monroe Evening News, January 18, 2007

When property owners in Monroe Michigan found out about a proposed Marathon Petroleum pipeline they understood that pipelines are a fact of life, but that doesn't mean they have to like it.

Marathon has been laying the groundwork for installing a new pipeline through Monroe County.   The pipeline wou