National Eminent Domain Blog : Eminent Domain Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan and Washington, DC

    The Oxnard, CA network notes that the Oxnard City Council may utilize eminent domain to acquire the Pacific Oaks Federal Credit Union.  This is the city’s attempt to revitalize a shopping center perceived to be a blighting influence in the area.
    These takes may indeed be for the eradication of blight.  If they are, despite the fact that we know who the private end user is, if the blight is substantial, we may be far better off for the removal of blight even though an individual developer has benefitted.

KEYT

The Credit Union is said to have already gathered hundreds of signatures on a petition showing their opposition to having a Lowe’s store move into the building that currently houses the financial institution.

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The Palm Beach Post article explains the likelihood that an acquisition of the closed Palm Beach Mall would be void as not being a taking for a public use.  This writer is not sure of the validity of a take for “blight removal”, but notes that the issues raise substantial questions for many shopping center owners throughout the country.  The reality is that we now have many shopping centers closed and “going dark” because there are not enough tenants to utilize the project space available.  Many of these centers will be rehabilitated.  Clearly, Simon Company intended to rehabilitate the Palm Beach Mall three or four years ago, only to face a declining market demand in the area.  This is occurring at centers all over the country.  To simply conclude that a closed center is “blighted” is to determine that owners have no right to utilize the property which they had purchased.

Palm Beach Post

In the letter, Weaver warned McKenna that any court would block an eminent domain action, recognizing that the real reason for the city's action was to help a private development, which is contrary to state law.

Constitutional law expert James Green agreed with Weaver's conclusion.

In 2005, the U.S. Supreme Court ruled that governments can use eminent domain power to obtain property and transfer it to a private owner for economic development. In outraged response, many states, including Florida, passed laws restricting the use of eminent domain. In 2006, voters passed a constitutional amendment that bans the use of eminent domain to transfer homes or businesses to private developers unless an exemption is approved by three-fifths of both houses of the legislature.

Green, a West Palm Beach lawyer, said Turbo could handily fight an eminent domain action by asserting that West Palm Beach's " 'park and road purposes' … are a pretext" for private redevelopment.

"My bets are on Turbo," Green said.

McKenna responded to Weaver with a letter of her own, sent Tuesday following inquiries by this reporter. In the letter, McKenna began by saying that there was a "respectful disagreement regarding the substance of our recent conversation."

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The Advocate

There are other vacant buildings and storefronts throughout the downtown area, but these three are the major skeletons. No community should have to tolerate this kind of visual blight and virtual abandonment of major buildings in its downtown area. To own a major part of any community's downtown is to also shoulder a higher responsibility than simply paying taxes and nailing fresh sheets of plywood on the windows every few years.

It doesn't take an expert in public planning to see that the owners of all three of these properties are failing their responsibility to the community at large. The taking of property by eminent domain is a wonderful tool when used wisely. And combined with a bulldozer, it can turn a chilly wasteland into warm, inviting green space overnight.
    
Kelo intended to allow states to determine whether their respective jurisdictions desire to limit takings for non-public purposes.  These purposes relate to whether there is economic development to be allowed under the state’s respective constitutional amendment of payment of just compensation for public uses.  However, condemnation for blight, without any thought of economic development or end users is within police power.  Clearly, a few dilapidated buildings can be expected in any community.  However, a community has a right to eradicate these blighting influences.  Adams, Massachusetts apparently is working at this.

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Detroit News

Bing's staff said the mayor is in the beginning stages of forming a plan and cautioned it's too early to exclude options, including closing parts of the city, using condemnation or seizing land through eminent domain.

But Bing is beginning to employ a targeted approach. His staff is already targeting neighborhoods with most of the roughly $60 million in stimulus money the federal money has provided for demolitions and rehabs. Staffers say Bing is considering earmarking federal block grant funds -- which fund nonprofits that provide everything from tax preparation to mentoring programs -- for certain neighborhoods.

"The first priority of any plan will be taking down buildings that pose a public safety threat," according to a written statement from the mayor's office. "The plan that follows will have broad input from city departments, the community and land use experts outside city government."
    
The City administration of Detroit has taken 180° turn from where it stood three years ago.  Over half the City Council is now gone and a new Mayor is taking a serious look at what is left of the City.  
    
The most recent proposal is one in which, effectively, neighborhoods would simply be closed, with the remaining property being acquired by eminent domain.  This is a very harsh way to go, but it is likely constitutional.  The need for elimination of blight includes being able to have the funds necessary to eliminate blight wherever possible.  In the case of Detroit, there are many neighborhoods that have so deteriorated it is rational to simply seek closure of the neighborhood itself.
    
Hopefully, fair market value will be paid in the process. 
 

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Camden Post

State lawmakers gave Camden a legal tool five years ago to do something about this problem. The Abandoned Properties Rehabilitation Act of 2004 gives municipalities in the state the ability to wipe out or transfer tax liens or to use targeted eminent domain to take over blighted, empty buildings. The buildings can then be either torn down, or handed to a nonprofit organization interested in rehabilitating the structure.

This is a powerful tool. Yet the city is not using it nearly enough. The City Council authorized using the act soon after it passed in Trenton, but city administrators never followed through after that. 

There are times when a public use is simply to take out a blighted or blighting property.  Public use does include police power protections, simply protections to eradicate unsafe conditions for the general community.  Camden’s use of the appropriately delegated statute to eradicate blight is such an example.

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Chronicle Online

LORAIN — City officials may be checking into whether properties labeled blighted in a study done by a Cleveland consulting firm deserve the designation.

The blight study is part of the process the city is undergoing to create an urban renewal plan for the area along Broadway from East Erie Avenue along the Black River to about 12th Street.

The plan, if approved by council, would allow the city to qualify the area for tax incremental financing (TIF) — something municipalities do to redirect property taxes to a certain area to improve infrastructure in the interest of development.

Now that Kelo provides state law (in this case Ohio) to establish a ‘blight’ certification in order to redevelop an area, some local jurisdictions still have their chance at private redevelopment on the alleged basis that what is presently there is not good enough.

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