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

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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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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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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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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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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