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N.J. Eminent Domain Limit Associated Press In a unanimous ruling, the court said that for land to be taken against the owner's wishes, it must be "blighted" and not merely "not fully productive." The ruling, in a case about the development of wetlands along the Delaware River across from Philadelphia, overturned a prior decision allowing the town of Paulsboro to seize the land. Voters Back Limits on Eminent Domain By Terry Pristin Voters showed last week that the furor over a 2005 Supreme Court decision in a Connecticut eminent domain case has not abated, even in states that have already enacted legislation to restrict the use of condemnation for economic development. Ballot measures to limit eminent domain powers to public uses were approved by large margins in eight states. Louisiana passed an eminent domain measure in September. In all, 34 states have adopted laws or passed ballot measures in response to the Connecticut case, Kelo v. New London, which upheld the right of local officials to require the forced sale of homes and businesses for private development intended to increase the tax base of one of the state’s poorest cities. "A message has been sent that state and local governments have to do a better job of justifying a need for eminent domain," said Larry Morandi, a land-use specialist at the National Conference of State Legislatures. "There needs to be more negotiation and more transparency." Donald J. Borut, the executive director of the National League of Cities, acknowledged that condemnation powers are sometimes abused. But he said that property-rights groups have played to public fears in a way that discourages thoughtful discussion about how individual rights should be balanced against projects that benefit the community as a whole. He described anti-Kelo sentiment as "a huge emotional tsunami that’s been rushing through the country." Of the measures approved by voters, "about half of them are purely procedural or largely symbolic," said John D. Echeverria, the executive director of the Georgetown Environmental Law and Policy Institute. In Florida, for example, the State Legislature, by a three-fifths vote of each house, can make an exception to a ban on transferring condemned property from one private entity to another. Strict constitutional amendments have been added in South Carolina and Georgia — states where eminent domain is not used for economic development, said Timothy Sandefur, a staff lawyer for the Pacific Legal Foundation, a libertarian group that represents property owners in condemnation cases. But in Michigan, where officials are trying to cope with decades of disinvestment in cities like Detroit and Flint, a new constitutional amendment is likely to have a "chilling effect on the willingness of investors to undertake new development," said John E. Mogk, a law professor at Wayne State University. Though property-rights groups cheered last week’s election results, their victory was tempered by the failure — except in Arizona — of initiatives aimed at discouraging government officials from making zoning and other land-use decisions. California, Idaho and Washington State defeated initiatives to require compensation for owners of property that lost value as a result of a government action to restrict its use. That the measure was rejected by three-fourths of the voters in Idaho, considered a strong property-rights state, suggests that the movement against so-called regulatory takings is doomed, said David Barron, a Harvard Law School professor. "It shows that the people recognize that the property-rights movement is potentially just divesting them of their ability to decide their own future as a community," he said. "People don’t want that to happen." In Oregon, which passed a similar measure in 2004, local officials have waived zoning rules to avoid paying nearly $6 billion to compensate property owners who claimed economic losses. But California’s eminent domain and antizoning initiative lost by only four percentage points after opponents put together a huge coalition that included antitax groups concerned about the potential cost of compensating property owners for land-use changes. The California measure was one of eight propositions on ballots throughout the country backed by groups linked to Howard S. Rich, a New York real estate investor. In Arizona, where the measure was one of 19 on the ballot, the proponents outspent the opponents 4 to 1, according to The Arizona Republic. The situation was reversed in California, where proponents were outspent 3 to 1, said John F. Shirey, the executive director of the California Redevelopment Association, a trade group. California has already tinkered with its eminent domain powers, but Mr. Shirey said the state should take further steps — like passing legislation to prevent the condemnation of single-family homes — to head off future property-rights initiatives. "We need to do something substantive to give people better assurances than they have now that something like what occurred in Connecticut couldn’t happen in California," he said. Eminent domain specialists on both sides of the issue say many of the statutes enacted by state legislatures have few teeth, either because the language is vague or the measures impose only minor restrictions on public officials. "A lot of state legislators don’t really believe in property rights," Mr. Sandefur said. He praised Pennsylvania as one of a handful of states that have enacted a "well-crafted, careful, thought-out measure," but noted that officials could continue condemning property for redevelopment in Philadelphia and Pittsburgh until 2012. Mr. Barron, the Harvard Law professor, said much of the legislation was "more hype than not," often riddled with exceptions inserted during the legislative process. Indiana — another state praised by Mr. Sandefur — includes technology parks as a "public use" for which eminent domain powers can be used. The initiatives approved Nov. 7 tend to be shorter and more restrictive than the bills, "but there will be a lot of interpretative questions about what they mean," Mr. Barron said. Amy S. Doppelt, a managing director at Fitch Ratings, said the initiatives were often unclear. "Frequently, the language is quite broad," she said. "It creates a lot of uncertainty." Communities that can no longer use condemnation could find themselves at a competitive disadvantage, which could ultimately lower their credit rating, she said. In many communities, eminent domain powers are used only sparingly. That is not the case in Detroit, where officials have worked to bring industrial parks and middle-income housing developments to tracts of land that are largely, but not entirely, vacant. "Any project requiring an assembly of land of 50 acres or more since 1960 has required eminent domain at some point in order to complete the project," said Mr. Mogk, the Wayne State professor. But the use of condemnation powers to replace one set of property owners with another has often proved contentious. One such project on the city’s east side, now known as Jefferson Village, gave rise to years of lawsuits. But it has proved so successful that the city expects to recoup its $38 million investment in 12 years, said Robbin G. Millard, a project manager for the Detroit Economic Growth Corporation, the nonprofit organization that helped create Jefferson Village. Though 160 homes were taken, most owners were able to reach a settlement with the city, he said. In 2004, the Michigan Supreme Court ruled that eminent domain could no longer be used for private projects to create jobs and generate tax revenue. That decision is now enshrined in a constitutional amendment approved last week by Michigan voters. If condemnation is used to eliminate blight, each individual property must now be shown to be blighted "by clear and convincing evidence," Mr. Mogk said. This requirement is likely to discourage badly needed development, he said. Mr. Millard said that while some aspects of the amendment need to be clarified, that does not appear to pose insurmountable barriers. Officials will be able to show that the buildings they seek to condemn are blighted. "We think we can still do eminent domain in this city," he said. Nine States Limit Eminent Domain By Eric Pfeiffer Voters in nine states this week passed measures to limit governments' ability to use eminent-domain property seizures for private development, displaying extreme distaste for the concept supported by a Supreme Court ruling last year. "After the Kelo decision, there was a huge explosion of anger by voters," said Bill Wilson, executive director of Americans for Limited Government, a group opposed to the court's eminent-domain ruling. "Many of the states then tried to address the issue themselves. Unfortunately, what came out from the state legislatures in most cases was very weak and wasn't very effective." Voters in Arizona, Florida, Oregon, Michigan, North Dakota, New Hampshire, South Carolina, Georgia and Nevada passed measures limiting the scope of the court's decision. Voters in California, Washington and Idaho rejected similar measures. A collection of
environmental groups and city municipalities opposed the measures.
"They understood that this measure would have undermined our efforts to rebuild California's infrastructure and build the affordable housing our cities need," she said. The landmark Kelo decision said New London, Conn., had the right to seize private residences and give them to private developers to further economic development with a planned hotel, apartments and retail space. Historically, eminent domain had been used for public projects such as highways. The Nature Conservancy, an environmental group opposed to the California measure, spent more than $1 million to defeat it. In literature opposing the measure, they said, "It will result in lawsuits and regulatory restrictions that will drain taxpayer dollars away from critical projects to protect our environment and build infrastructure." Although the eminent-domain proposal failed in California 52 percent to 48 percent, Mr. Wilson said his group plans to run more state initiatives, including a possible rematch in California, in 2008. Voters in San Bernardino County, Calif., approved their own eminent-domain measure. "This isn't going to impede the county from improving streets and roads in any way," county Supervisor Dennis Hansberger, who supported the measure, told the Los Angeles Times. "But it's also not going to allow people's land to be taken away and given to developers and, frankly, just making them richer." On Wednesday, a three judge-executives in northern Kentucky approved a decision that will allow eminent domain to be used in the construction of a 7-mile-long sewage-transport tunnel. Anger Drives Property Rights Measures By William Yardley Katie Breckenridge, who owns a ranch in Picabo, Idaho, said there was rising anger over property rights. PICABO, Idaho — Cheeks
chapped, patience thinned, Katie Breckenridge had no trouble making
up her mind about an Idaho ballot measure that would make the
government pay property owners if zoning rules reduce the value of
their land. More than a year after Suzette Kelo and several of her neighbors in New London, Conn., lost their battle against eminent domain in the United States Supreme Court, the backlash against the ruling has made property rights one of the most closely watched ballot issues nationwide. Already, 30 state legislatures have enacted restrictions on eminent domain in response to the court ruling. Now voters here and in 11 other states will consider property rights measures in November, making it the election’s most prevalent ballot issue. Most of the measures would
limit eminent domain to some degree, while others, in Western
states, would go further, imposing new restrictions on government’s
ability to enforce zoning laws, even if those laws are intended to
reduce sprawl and improve safety. Ohio's High Court Backs Property Owners Associated Press The Ohio Supreme Court ruled unanimously on Wednesday that economic development isn't a sufficient reason under the state constitution to justify taking homes, putting a halt to a $125 million project of offices, shops and restaurants in a Cincinnati suburb that officials said would create jobs and add tax revenue. The case was the first challenge of property rights laws to reach a state high court since the U.S. Supreme Court last summer allowed municipalities to seize homes for use by a private developer. "For the individual property owner, the appropriation is not simply the seizure of a house," Justice Maureen O'Connor wrote in a case that pitted the city of Norwood against two couples trying to save their homes. "It is the taking of a home the place where ancestors toiled, where families were raised, where memories were made." Property rights' advocates, business groups and backers of city planning were watching the Ohio case because of the precedent it could set. The ruling comes a year after the U.S. Supreme Court ruled 5-4 in a case from New London, Conn., that cities can take land for shopping malls or other private development. Norwood wanted to use its power of eminent domain the authority to buy and take private property for public projects such as highways to seize properties holding out against private development in an area considered to be deteriorating. In the ruling, O'Connor said cities may consider economic benefits but that courts deciding such cases in the future must "apply heightened scrutiny" to assure private citizens' property rights. Targeting property because it is in a deteriorating area also is unconstitutional because the term is too vague and requires speculation, the court found. O'Connor wrote that the court attempted in its decision to balance "two competing interests of great import in American democracy: the individual's rights in the possession and security of property, and the sovereign's power to take private property for the benefit of the community." Dana Berliner, an attorney for the Arlington, Va.-based Institute for Justice that represented property owners in the case, said Wednesday's decision will have ramifications in high courts and legislatures across the country. "This case is really part of a trend throughout the country of states responding to and rejecting the U.S. Supreme Court's Kelo decision last year," she said. "There are now 28 states that have taken legislative steps to protect owners more after that decision, and this case is the next movement in that trend, and I believe now not only legislatures but other courts are going to begin rejecting that terrible decision." After the U.S. Supreme Court decision, Ohio declared a moratorium that prevents local governments from seizing unblighted private property for use by private developers until 2007. A legislative task force is expected to go ahead with reforms when it meets Aug. 31. "I anticipate that many of our recommendations, combined with today's Supreme Court decision, will ensure that Ohio sends a strong message to its citizens that their private property rights are secure," said state Sen. Tim Grendell, chairman of the state's Eminent Domain Task Force. Norwood Mayor Tom Williams defended the plan and said he still believes the project was lawful. "I believed that we did that right thing then, I believe we did the right thing now," he said. Tim Burke, a lawyer hired by Norwood, called the decision a significant disappointment and said it will halt progress on the planned development. He said the city likely will not appeal. "Norwood, every step of the way, followed the law as it existed," Burke said. Development interests in other areas particularly Cleveland's Flats development along Lake Erie signaled their intentions to proceed with plans that involve similar seizures. "The Flats case is fundamentally different from the Norwood case and as such, we do not believe today's ruling will impact the outcome of our legal actions," the Port Authority and The Wolstein Group said in a joint statement. Berliner called Norwood emblematic of development trends across the country. "This was a perfect example of what is going on all over the country: a perfectly nice, working class neighborhood with no tax delinquencies, no falling down buildings, a nice neighborhood of homes and businesses, that a developer thought could be much more profitable as an upscale shopping and high-end housing center," she said. Associated Press Writer Terry Kinney in Cincinnati contributed to this report. Groups Seek End To Eminent Domain Abuse North Country Gazette WASHINGTON, DC--An historic
and diverse coalition of traditional civil rights groups and other
advocacy organizations have joined together in Ohio and Pennsylvania
to call on state judges and legislators to end eminent domain abuse. Eminent Domain Project at Standstill Despite Ruling By William Yardley NEW LONDON, Conn. - They have still not moved out. Not Susette Kelo. Not the Derys. Not Byron Athenian or Bill Von Winkle or the others. Five months after the United States Supreme Court set off a national debate by ruling that the City of New London could seize their property through eminent domain to make way for new private development, no one has been forced to leave. No bulldozers have arrived to level the last houses still standing, and none are expected soon. Even though the holdouts lost their case, and the development that would displace them finally seems free to go forward, construction has not begun, and some elements of the project have been effectively paralyzed since the court ruling prompted a political outcry. "I felt relaxed enough to get my checkbook out and put the new roof on," said Mr. Von Winkle, who owns three buildings with a total of 12 occupied apartments in the Fort Trumbull neighborhood by the Thames River, where the city was sued for claiming 15 properties through eminent domain. Ms. Kelo, also among the handful of holdouts, said, "We still have hope that we'll get to keep our homes." It is not that Ms. Kelo and the others have chained themselves to their property in a final dramatic defiance of the law. Instead, wary of public disapproval and challenges from groups like the Institute for Justice, the law firm that represented the holdouts in court, the state and the city have halted plans to evict the remaining residents. Investors are concerned about building on land that some people consider a symbol of property rights. At the same time, contract disputes and financial uncertainty have delayed construction even in areas that have been cleared. With so many complications, some people are unsure whether the city's initial vision for the property - a mix of housing, hotel and office space intended to transform part of its riverfront and bolster a declining tax base - is even realistic anymore. "Winning took so long," said Mayor Jane L. Glover, "that the plan may not be as viable in 2005 or 2006 or 2007." New London, founded in the 17th century as a port city in southeastern Connecticut, has a high unemployment rate and fewer residents today than it had in 1920. Its court battle over eminent domain started five years ago, when it claimed the property of six Fort Trumbull homeowners, a two-block area within 90 acres set for development. Homeowners challenged the move, and the matter eventually made its way to the Supreme Court, which ruled 5 to 4 in June that the city had the right to take the land to improve its financial health, even though doing so would eventually transfer the property to a private developer. But in a dissent that echoed what property rights activists were saying, Justice Sandra Day O'Connor wrote: "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory." Congress and state legislatures across the country have reacted by revisiting eminent domain laws. Over the summer, the United States House of Representatives passed a resolution condemning the court decision. This month, the House voted overwhelmingly to deny federal economic development money for two years to local governments that seize private property for private development. In September, Gov. M. Jodi Rell of Connecticut demanded that the New London Development Corporation, the city's development agency, rescind eviction orders delivered to tenants in rental units that belong to homeowners who have refused to give up their property. The Connecticut General Assembly has asked cities to delay using eminent domain while it considers revising state law. Some city and state officials cite the difficulty in finding a balance between using eminent domain to rebuild blighted areas and preventing the potential for abuse that concerned Justice O'Connor. "We're not writing a law to solve the New London problem," said State Representative Michael P. Lawlor, a Democrat who is co-chairman of the Judiciary Committee. "We're writing a law to fix the Sandra Day O'Connor problem." Amid all the debate, the Fort Trumbull project has stalled. "This lawsuit put a chill on the development of the whole 90 acres, no doubt in my mind," said Thomas J. Londregan, the city's director of law. "Any developer knew that whatever they did would most likely be appealed to the courts." Contentiousness led to stalemate and stumbles. At one point the city severed ties with the New London Development Corporation, only to reverse itself days later under pressure from the state. A key corporation executive was forced out. Pressure to go forward is considerable, even if momentum is not. The state has already invested $73 million on environmental cleanup and sewer and road improvements. Elegant street lamps, intended to illuminate a gentrified new riverfront, instead shine over empty lots where buildings have been leveled but not replaced. In recent weeks the city, the state and the developer, Boston-based Corcoran Jennison, have begun discussing ways to jump-start construction in empty areas. Details are not firm. "We are currently working our way toward what I believe will be something fruitful," said Michael Joplin, president of the New London Development Corporation. One point of contention: Corcoran Jennison is resisting pressure from the city to build a waterfront hotel first, as was initially planned, out of concern that there is no market for one. Corcoran Jennison says that Pfizer, which built a major research center next to the site in the late 1990's and pushed for the Fort Trumbull development, backed away from a commitment to help pay for the hotel as the lawsuit dragged on. And the prospects for a Coast Guard museum, which under one plan could be built on the holdouts' land, are also unclear. Still, Ron Angelo, deputy commissioner of the state's Department of Economic and Community Development, insists that the project, at least in some form, will get under way soon. "I think for the first time in a number of months, if not years, we have come close to beginning with the project," he said. If any construction begins soon, it will happen away from the area where the holdouts remain, said Marty Jones, president of Corcoran Jennison, which has been under contract on the project since 1999. "We need to have some positive things happening so that every lender and investor I go to doesn't say, 'I want to be 100 miles away from here,' " Ms. Jones said. "Eminent domain in Fort Trumbull has been on the front page of every newspaper in the country, and it has not put New London in the most positive light." Despite losing in court, the holdouts have gained political leverage, largely through the public relations effort led by the Institute for Justice, Mr. Joplin said. Scott G. Bullock, a lawyer for the Institute for Justice who argued for the resistant property owners before the Supreme Court, said, "We might have lost the battle, but the overall war is really going in our favor." "What developer is going to want to build on land that was received through probably the most universally despised Supreme Court decision in decades?" Mr. Bullock asked. Governor Rell has hired a mediator to meet with the holdouts. The goal is to see what, if any, financial terms, beyond the outdated appraised value they have been offered, might persuade them to leave. "I'm on the road to search for the proverbial win-win," said the mediator, Robert R. Albright. "It's an extraordinarily complex situation. It's not a two-party situation by any means. I'm not sure I can honestly give you an option set or even fully describe the obstacles." The property owners have their critics in New London. They have been accused of delaying the city's resurgence, and even of taking payoffs from property rights advocates in order to keep up the fight. But at least a few, after seeing most of their neighborhood leveled, say they will consider coming to terms with Mr. Albright if the money is right. Others, however, have not ruled out new lawsuits. Meanwhile, some renters are moving in, not out. Michelle Cerrato arrived from Pennsylvania in September and found her two-bedroom apartment on Walbach Street through a newspaper ad. Unaware of the fuss over eminent domain, Ms. Cerrato, a 30-year-old casino hostess with three children, soon figured out why neighbors have signs in their windows that say, "Not for Sale." Confused and concerned that she would be evicted, she called her landlord, Sue Dery, one of the holdouts. "She said it's not going to happen," Ms. Cerrato said. "It's been going on for eight years." Court Won't Reconsider Property Case Gina Holland WASHINGTON - The Supreme Court, given a chance to revisit a heavily criticized ruling, refused Monday to reconsider its decision giving local governments more power to seize people's homes for economic development. So contentious was the court's 5-4 ruling in the so-called eminent domain case earlier this year that some critics launched a campaign to seize Justice David Souter's farmhouse in New Hampshire to build a luxury hotel. Others singled out Justice Stephen Breyer's vacation home in the same state for use as a park. Both Souter and Breyer voted on the prevailing side. Justice Sandra Day O'Connor, who did not, sharply criticized her colleagues at the time. She said in a minority opinion that the ruling favored the well-heeled over the less fortunate. In addition, legislators in some 25 states are considering changing their eminent domain laws to soften the impact. Justices did not comment Monday in refusing to reconsider the case, which had been expected because requests for a reconsideration of rulings are rarely granted. "I'm not surprised," said homeowner Matthew Dery, whose family has lived in the affected Connecticut neighborhood for more than 100 years. "It's even rarer than a blue moon that they do reconsider." Dery is hoping that state lawmakers will retroactively change the eminent domain law so that he does not have to move. O'Connor, whose decision to retire created the opening that appeals court judge and former Washington lawyer John Roberts now seeks to fill, wrote in her angry dissent in June that "the specter of condemnation hangs over all property." Justice John Paul Stevens wrote the majority opinion and defended it last week in a speech in Las Vegas. The ruling was legally correct, he said, because the high court has "always allowed local policy-makers wide latitude in determining how best to achieve legitimate public goals." But Stevens said he had concerns about the results. "My own view is that the allocation of economic resources that result from the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials," Stevens told the Clark County Bar Association. Legal experts had said they did not expect the court's ruling, involving an economic development project in New London, Conn., to prompt a rush to claim homes. Stevens said that "the public outcry that greeted (the ruling) is some evidence that the political process is up to the task of addressing such policy concerns." The case is Kelo v. City of New London, 04-108. ON THE NET Supreme Court: http://www.supremecourtus.gov/
Libertarians Urge Seizure of Justice Breyer's By The Associated Press Critics of a U.S. Supreme Court's ruling that governments may seize private property for economic development want to use the process to seize a justice's vacation home and turn it into a park. The New Hampshire Libertarian Party is collecting signatures for a petition to ask the town to use Justice Stephen G. Breyer's 167-acre Plainfield property to create a "Constitution Park," with stone monuments to commemorate the U.S and New Hampshire constitutions, said party Vice Chairman Mike Lorrey. "The point is: What goes around comes around," Lorrey said. "This is a way of saying, 'You're going to be held to your own standard.'" Lorrey said the Libertarian petition would place the land-taking request before a town meeting next spring. But Plainfield Town Administrator Steve Halleran said Friday that he didn't expect voters to support the effort. The Libertarian Party objects to the high court's June ruling that let a Connecticut city take land by eminent domain and turn it over to a private developer. Breyer supported the decision, as did Justice David Souter. Earlier this month, a member of the libertarian Free State Project suggested that the town of Weare, N.H., about 45 miles southeast of Plainfield, make Souter's home into a "Lost Liberty Hotel." Logan Darrow Clements, of Los Angeles, said he's received support from thousands of people across the country for the plan, and the town clerk in Weare said she had to return checks from people wishing to donate to a hotel construction fund. Breyer did not immediately return a phone message to the Court seeking comment. Souter has declined to comment on the matter. The Supreme Court's 5-4 ruling lets officials in New London, Conn., take older homes along the city's waterfront for a private developer who plans to build offices, a hotel and a convention center. Ruling Sets Off Tug of War Over Private Property By Timothy Egan
SANTA CRUZ, Calif. - More than a month after the Supreme Court ruled that governments could take one person's property and give it to another in the name of public interest, the decision has set off a storm of legislative action and protest, as states have moved to protect homes and businesses from the expanded reach of eminent domain.
But at the same time, the
ruling has emboldened some cities to take property for development
plans on private land. Here in Santa Cruz, for example, city
officials started legal action this month to seize a parcel of
family-owned land that holds a restaurant with a high Zagat rating,
two other businesses and a Sandy Huffaker for
New York Times
conspicuous hole in the ground and force a sale to a "The intense reaction - this backlash - has caught a lot of people off guard," said Larry Morandi, who tracks land use developments for the National Conference of State Legislatures. In Connecticut, where the court case originated, Gov. M. Jodi Rell, a Republican, has likened the reaction to the Boston Tea Party and called for a moratorium on land takings until the legislature can revisit the law. California's proposal would prohibit the use of eminent domain, a process in which governments force a sale of someone's property, in cases like Santa Cruz's. "This decision opens a new era when the rich and powerful can use government to seize the property of ordinary citizens for private gain," said State Senator Tom McClintock, a Republican who proposed the amendment. In Congress, liberals like Representative Maxine Waters, Democrat of California, have joined conservatives like Representative Tom DeLay of Texas, the House majority leader, in criticizing the ruling. The House voted 365 to 33 to pass a resolution condemning the decision, and proposals in both the House and the Senate would prevent the federal government from using eminent domain for private development, as well as local governments using federal money on such projects. The Fifth Amendment allows the taking of land for "public use" with "just compensation," and governments have long used the practice to build roads and schools and to allow utilities to run service lines. In its June 23 ruling regarding efforts by the City of New London, Conn., to condemn homes in an old part of town to make way for a private development, the Supreme Court said public use could mean something that brings a public benefit - like jobs or increased tax revenue. But at the same time, the court invited states to tailor their own laws. While only one state, Delaware, has changed its law, most states are likely to have a proposed change by next year, Mr. Morandi said. "The initial outcry after the court case was: Nobody's house is safe, we've got to do something now," he said. "But as more states take a look at this they will respond in some form, but they won't want to take away a valuable tool." In Texas, Gov. Rick Perry added the issue to a special legislative session initially called for education. Both houses passed bills limiting eminent domain with some exceptions, including one allowing the City of Arlington to condemn homes for a new Dallas Cowboys football stadium, a project already under way. The two versions of the bills were not reconciled before the session ended. But some cities view the ruling as blessing their redevelopment plans; Arlington filed condemnation lawsuits against some holdout property owners this month. Officials in Sunset Hills, Mo., outside St. Louis, voted to condemn a cluster of homes to make way for a shopping center, despite the pleas of some elderly homeowners who said they had nowhere else to go and no desire to move. Officials in Oakland, Calif., evicted a tire shop and an auto repair shop to make room for a development that is part of Mayor Jerry Brown's plan to bring 10,000 residents to the central part of the city. In Santa Cruz, the plans pit one family against the city's long effort to redevelop a downtown hit by the 1989 earthquake. With the Supreme Court's ruling, city officials here said they felt free to seize a 20,000-square-foot lot they considered a blight. To the city, the lot owned by the Lau family is a drag on other businesses, because the hole, left by the earthquake, has never been redeveloped. To the family, the seizure is legalized theft and shows how the court decision can be used to take anyone's property under the broad rubric of public use. "My family has owned this land for 36 years," said Eric Lau, who laid bricks to shore up the building that would become his thriving restaurant, which is adjacent to the hole. "And now they're trying to erase us from this place, to take it and say we don't have any choice." The ruling has struck a chord; in a Wall Street Journal/NBC News poll this month, the legal issue that Americans said most concerned them was "private property rights," ahead of parental notification for minors' abortions or the right-to-die debate. Property rights groups have united with more liberal organizations in arguing that taking property for economic use usually favors the rich over the poor. "Typically, you have these corporate lobbyists who go down to a city council and say, 'Take this person's property and we'll build you a shopping center,' " said Timothy Sandefur, a lawyer with the Pacific Legal Foundation, a libertarian-leaning legal group that helped draft the proposed California amendment. Opponents of the Supreme Court decision also point to San Diego, where Ahmed Mesdaq lost his prosperous cigar and coffee shop in the trendy Gaslamp Quarter to a hotel project, which the city said would bring more tax revenue. Many city officials say eminent domain is crucial for creating jobs, expanding tax bases and keeping their communities economically viable. "Redevelopment is sometimes the only tool a community has to jump-start revitalization of downtrodden, blighted communities," officials at the California League of Cities wrote in a response to the proposed amendment. Mayor Brown of Oakland said it was inevitable that some small businesses would have to be relocated, and he urged caution in any efforts to pass laws. "I understand the horror of urban renewal," he said. "But you don't want to take away a tool that a city has to reform itself. If you did, Oakland would suffer greatly." During the 1970's, the Lau property, with its bookstore and cafe in the pre-Starbucks age, was a central hangout in funky Santa Cruz, neighbors say. Eric Lau watched his father's bookstore come to life and then die in the Loma Prieta earthquake, which destroyed the building. The family's restaurant, Oswald, would not be considered blight by many standards. There is ivy on the outside walls, art on the inside, and the tables are covered with fresh-pressed linen. The restaurant is packed on most nights, neighbors say. And it has consistently been voted one of the best places to dine in Santa Cruz, a beach town of 54,000 people south of San Jose, known for its university and the carpet of redwoods on its fog-shrouded hills. Ron Lau, who is 69, has long tried to build something on the undeveloped part of the property - the hole in the ground. The problem, city officials say, is that Mr. Lau has proposed hard-to- build, idealistic plans, involving alternative energy sources and unusual designs, that have never gotten off the ground, angering some nearby property owners. "We do not use eminent domain frivolously," said Ceil Cirillo, executive director of the Santa Cruz Redevelopment Agency. "I feel we have been very fair and very patient." Taking the Lau property would serve the public good, Ms. Cirillo said, "because there is a hole in the center of our retail district." Eric Lau and his sister Lani say the city is taking their property simply because their father took so much time to try to build something unusual. "My dad was hellbent on getting his dream project built, nothing less, and that has been his biggest weakness," Eric Lau said. The city agency has offered the family $1.6 million for the property, and the Laus plan to fight it. It is unclear whether the amendment would protect the Laus, but they hope to hang on to the property long enough to find out. A vote on the amendment would come no sooner than next June, legislative leaders say. Meanwhile, the Laus say they are willing to modify their plans and build something close to what the city has agreed to with a developer. But city officials say that they have run out of patience and that it is too late for the Laus to come up with new designs. They have an exclusive agreement, Ms. Cirillo said, with a developer, Bolton Hill, to take over the property and build on it. "The project is moving forward," Ms. Cirillo said. "The Supreme Court gave us reassurance of our ability to proceed." As for Laus and their restaurant, Ms. Cirillo said there might still be a place for them in the new development - after they sell out. "Ideally, we would like to see them relocated in some way to the project," she said.
Land Fight Hits Home for Justice PLAINFIELD, N.H. —— Libertarians upset about a Supreme Court ruling on taking land have proposed seizing a justice's vacation home and turning it into a park. Signatures are being collected for a petition to ask the town to use Justice Stephen Breyer's 167-acre Plainfield, N.H., property to create a "Constitution Park" with stone monuments to commemorate the U.S. and New Hampshire constitutions, said party Vice Chairman Mike Lorrey. "The point is: What goes around comes around," Lorrey told the Valley News. "This is a way of saying, 'You're going to be held to your own standard.' " Lorrey said the Libertarian petition would place the land-taking request before a town meeting next spring. But Plainfield Town Administrator Steve Halleran said yesterday that he didn't expect voters to support the effort. The Libertarian Party objects to the high court's June ruling that let New London, Conn., take land by eminent domain and turn it over to a private developer. Breyer supported the decision, as did Justice David Souter. Earlier this month, a member of the libertarian Free State Project suggested that the town of Weare, about 45 miles southeast of Plainfield, make Souter's home into a "Lost Liberty Hotel." Breyer did not immediately return a phone message seeking comment. Souter has declined to comment on the matter. The Supreme Court's 5-4 court ruling said municipalities have broad power to bulldoze people's homes and put up shopping malls or other private development to generate tax revenue. States Mobilize Against Property Ruling By Maura Kelly Lannan CHICAGO - Alarmed by the prospect of local governments seizing homes and turning the property over to developers, lawmakers in at least half the states are rushing to blunt last month's U.S. Supreme Court ruling expanding the power of eminent domain In Texas and California, legislators have proposed constitutional amendments to bar government from taking private property for economic development. Politicians in Alabama, South Dakota and Virginia likewise hope to curtail government's ability to condemn land. Even in states like Illinois - one of at least eight that already forbid eminent domain for economic development unless the purpose is to eliminate blight - lawmakers are proposing to make it even tougher to use the procedure. "People I've never heard from before came out of the woodwork and were just so agitated," said Illinois state Sen. Susan Garrett, a Democrat. "People feel that it's a threat to their personal property, and that has hit a chord." The Institute for Justice, which represented homeowners in the Connecticut case that was decided by the Supreme Court, said at least 25 states are considering changes to eminent domain laws. The Constitution says governments cannot take private property for public use without "just compensation." Governments have traditionally used their eminent domain authority to build roads, reservoirs and other public projects. But for decades, the court has been expanding the definition of public use, allowing cities to employ eminent domain to eliminate blight. In June, the Supreme Court ruled 5-4 that New London, Conn., had the authority to take homes for a private development project. But in its ruling, the court noted that states are free to ban that practice - an invitation lawmakers are accepting in response to a flood of e-mails, phone calls and letters from anxious constituents. "The Supreme Court's decision told homeowners and business owners everywhere that there's now a big `Up for Grabs' sign on their front lawn," said Dana Berliner, an attorney with the Institute for Justice. "Before this, people just didn't realize that they could lose their home or their family's business because some other person would pay more taxes on the same land. People are unbelievably upset." Don Borut, executive director of the National League of Cities, which backed New London in its appeal to the high court, said government's eminent domain power is important for revitalizing neighborhoods. He said any changes to state law should be done after careful reflection. "There's a rush to respond to the emotional impact. Our view is, step back, let's look at the issue in the broadest sense and if there are changes that are reflected upon, that's appropriate," he said. In Alabama, Republican Gov. Bob Riley is drawing up a bill that would prohibit city and county governments from using eminent domain to take property for retail, office or residential development. It would still allow property to be taken for industrial development, such as new factories, and for roads and schools. In Connecticut, politicians want to slap a moratorium on the use of eminent domain by municipalities until the Legislature can act. One critic of the ruling has suggested local officials take over Supreme Court Justice David Souter's New Hampshire farmhouse and turn it into a hotel. Souter voted with the majority in the Connecticut case. Arkansas, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington already forbid the taking of private property for economic development except to eliminate blight. Other states either expressly allow private property to be taken for private economic purposes or have not spoken clearly on the question. Illinois state Sen. Steve Rauschenberger, a Republican who is considering a run for governor, said the state's blight laws need to be more restrictive. "The statutory definition of blight in Illinois is broader than the Mississippi River at its mouth," he said. "They have taken everything from underdeveloped lakefront property to open green- grass farmfields as being defined as blighted." Action also is taking place at the federal level, where a proposal would ban the use of federal funds for any project moving forward because of the Supreme Court decision. And the Institute for Justice said it will ask the Supreme Court to rehear the New London case, but acknowledged that the prospects of that happening are dim. "One of the things, I think, that is elemental to American freedom is the right to have and hold private property and not to interfere with that right," Rauschenberger said. "For Americans, it's like the boot on the door. You can't kick in the door and come in my house unless I invite you." Liberal Land Grab Editorial The stereotype is that conservatives are heartless and in the tank to big business while liberals are the ones who stand up for the little guy. So how come the liberal Supreme Court justices just sold a bunch of New London, Conn., homeowners up the Thames River? In Kelo et al. v. City of New London et al., the court ruled 5-4 that local governments may use the power of eminent domain to confiscate private homes and turn the land over to private developers for private projects like sports stadiums and shopping malls. The New London project will tear down a decent residential neighborhood for office space, a conference hotel and up-market residences. The development would accompany a nearby $350 million research center built by Pfizer. In essence, the court expanded the requirement of "public use" the longtime limit on eminent domain to anything that supposedly enhances economic activity. No more need for a truly public need such as highways, parks and bridges. The liberal bloc Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer joined with moderate Anthony Kennedy to state that economic development is a legitimate "public purpose" that can override private property rights. Writing for the majority, Stevens said: "Promoting economic development is a traditional and long accepted function of government . . . There is no basis for exempting economic development from our traditionally broad understanding of public purpose." The court's more conservative members Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Clarence Thomas and Antonin Scalia all dissented. "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory," wrote O'Connor. Added Thomas: "Losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful." It's ironic that the conservative justices are the ones who sound like the New York liberal voices that rise to block almost any sort of economic development. Ironic, but not too surprising. Kelo is the logical end product of a political philosophy that seeks generally to expand government power. It did so this time, in spades. Both Congress and state
governments need immediately to consider what specific limits can be
drawn on the concept of "public purpose" and how best to mitigate
the effects of this truly disturbing decision. For Homeowners, Frustration and Anger at Court Ruling By Avi Salzman and Laura
Mansnerus NEW LONDON, Conn., June 23 - The owners of the few brick and frame houses remaining in the Fort Trumbull neighborhood here who lost their fight in the Supreme Court to stop the city from seizing their homes said Thursday that they were devastated and saw few other legal options. "I am sick," said Susette Kelo, sitting on the porch of the pink Victorian cottage that she bought on her nurse's salary eight years ago. "Do they have any idea what they've done?" What the justices did in their 5-to-4 decision, Kelo v. New London, was allow the city redevelopment authority to condemn the old waterfront neighborhood so a private developer can put office and apartment buildings in their place. But similar battles are being fought across the nation in state courts, the usual forum for eminent domain cases. The Washington lawyers who brought the challenge to the City of New London's redevelopment project say they see opportunity in state legislatures and state courts to address the question of whether local governments can use eminent domain, or condemnation, to replace homes and businesses with bigger, better sources of tax revenue. Though the Connecticut Supreme Court ruled against Ms. Kelo and her neighbors, courts in several other states have ruled that their constitutions protect owners in cases like Ms. Kelo's. Such rulings by a state's highest court are not subject to review by any federal court. The rights of owners have become populist causes in many places as local governments have grown bolder in efforts to fatten their tax bases. "I think there's going to be an unbelievable popular backlash to this decision," said Dana Berliner, a lawyer at the Institute for Justice, a libertarian group that represents the New London homeowners and has taken dozens of other eminent domain disputes. "The court has just told homeowners that the government can take their house for someone who pays more in taxes." The Institute for Justice says there are thousands of similar disputes around the nation, although many involve a local government's designation of an area as "blighted" - not an issue in New London - under laws dating to the 1950's and 60's when slums were cleared wholesale. Nine state supreme courts, including those in Illinois, Michigan and Washington, have forbidden the use of eminent domain simply to bring in more revenue and jobs. New York's highest court, the Court of Appeals, has allowed such condemnations. The New Jersey courts have not ruled on the issue, although a trial court in 1999 barred the state Casino Reinvestment Development Authority's plan to take a house, a small Italian restaurant and a pawnshop to allow the Trump Plaza casino to expand. Michigan was among the first states to encourage the use of eminent domain to promote economic development. In a 1981 decision, the Michigan Supreme Court allowed the City of Detroit to condemn 1,400 houses and 140 business to make way for a General Motors plant. In doing so, it encouraged the use of eminent domain for economic development all over the country. Then, last August, the court reversed the legal rationale behind that decision. With no recourse left in Connecticut's courts, Ms. Berliner said lawyers from the Institute for Justice would go to New London next week to discuss other possibilities to save the houses, including appeals to the State Legislature. Bill Von Winkle, a plaintiff who owns three houses with 12 apartments in Fort Trumbull, said he would take every opportunity to continue the battle. "It's desperately hard to believe that in this country you can lose your home to private developers," Mr. Von Winkle said. "It's basically corporate theft." The redevelopment authority has set aside $1.6 million to compensate property owners. Scott G. Bullock of the Institute for Justice, who has argued the case in three courts, said the city had offered most of them "something in the low 100,000's," although that was based on appraisals made five years ago. The city took possession of the Fort Trumbull houses four years ago and has since been collecting rent. The city's lawyer, Thomas J. Londregan, said Thursday that the United States Supreme Court had vindicated the plan to revitalize the city's waterfront. "I'm here to tell you that this case was never about the taking of property from one person and giving it to another," Mr. Londregan said. "This case was not some type of land grab. This case was about the City of New London, its six square miles and its economic survival." Avi Salzman reported from New London for this article, and Laura Mansnerus from Trenton. Supremes: Cities May Seize Homes for Private Developers New York Daily
News WASHINGTON - A divided Supreme Court ruled that local governments may seize people's homes and businesses against their will for private development in a decision anxiously awaited in communities where economic growth conflicts with individual property rights. Thursday's 5-4 ruling represented a defeat for some Connecticut residents whose homes are slated for destruction to make room for an office complex. They argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas. As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue. Local officials, not federal judges, know best in deciding whether a development project will benefit the community, justices said. "The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including - but by no means limited to - new jobs and increased tax revenue," Justice John Paul Stevens wrote for the majority. He was joined by Justice Anthony Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. At issue was the scope of the Fifth Amendment, which allows governments to take private property through eminent domain if the land is for "public use." Susette Kelo and several other homeowners in a working-class neighborhood in New London, Conn., filed suit after city officials announced plans to raze their homes for a riverfront hotel, health club and offices. New London officials countered that the private development plans served a public purpose of boosting economic growth that outweighed the homeowners' property rights, even if the area wasn't blighted. Justice Sandra Day O'Connor, who has been a key swing vote on many cases before the court, issued a stinging dissent. She argued that cities should not have unlimited authority to uproot families, even if they are provided compensation, simply to accommodate wealthy developers. The lower courts had been divided on the issue, with many allowing a taking only if it eliminates blight. "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random," O'Connor wrote. "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." She was joined in her opinion by Chief Justice William H. Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas. Nationwide, more than 10,000 properties were threatened or condemned in recent years, according to the Institute for Justice, a Washington public interest law firm representing the New London homeowners. New London, a town of less than 26,000, once was a center of the whaling industry and later became a manufacturing hub. More recently the city has suffered the kind of economic woes afflicting urban areas across the country, with losses of residents and jobs. The New London neighborhood that will be swept away includes Victorian-era houses and small businesses that in some instances have been owned by several generations of families. Among the New London residents in the case is a couple in their 80s who have lived in the same home for more than 50 years. City officials envision a commercial development that would attract tourists to the Thames riverfront, complementing an adjoining Pfizer Corp. research center and a proposed Coast Guard museum. New London was backed in its appeal by the National League of Cities, which argued that a city's eminent domain power was critical to spurring urban renewal with development projects such Baltimore's Inner Harbor and Kansas City's Kansas Speedway. Under the ruling, residents still will be entitled to "just compensation" for their homes as provided under the Fifth Amendment. However, Kelo and the other homeowners had refused to move at any price, calling it an unjustified taking of their property. The case is Kelo et al v. City of New London, 04-108. GOVERNMENT: Put on the Brakes The Florida Times-Union Residents of New London, Conn., are fighting a city plan to take their property to make way for a riverfront hotel, convention center, offices and upscale condominiums, The Associated Press reports. The courts have long upheld a Fifth Amendment right of governments to take private property for "public use" in exchange for just compensation. But that has normally involved government projects such as roads or federal housing to eliminate blight, for instance. In this case, seven homes would be taken for a private development project -- essentially taking land from private landowners for the benefit of other private users in the name of economic develop- ment. Every city and every community wants development that will generate jobs, grow tax revenues and boost the local economy. All kinds of private developers can name private properties they would love to have that would achieve those objectives. The Supreme Court must draw a line on this issue. Otherwise, no personal property will be safe from abuse.
During 'Kelo' Arguments, Justices Feel for Homeowners
Susette Kelo, owner of this home in New London,
Under the Constitution,
governments can But residents who want to stop the city from razing their homes and businesses say it is not fair. "Every city has problems, every city would like more tax revenue," said Scott Bullock, the attorney for the families who are suing to keep their land. "But that cannot be justification ... for the use of eminent domain." Attorneys for the families have predicted the Supreme Court decision will affect homeowners throughout the country. Several justices were concerned about overturning rulings by the high court that allowed using eminent domain for private development. In particular, they referred to a 1954 ruling that allowed the taking of property to eliminate slums or blight after deciding such condemnations constituted a public use. Justice Ruth Bader Ginsburg said New London made the move to take the property because it was in a depressed economic condition. After Bullock drew a distinction between "blight" and "economic depression," Justice Anthony Kennedy asked how the court could differentiate between the two. "You could say if economic depression continues for several years ...(you) have blight," Kennedy said. "Blight is in the eye of the beholder." Justice Antonin Scalia appeared to support the homeowners, asking why the city did not fund a private purchase of the land instead of condemning it and forcing the people out. "There are some plaintiffs who are not going to sell at any price," responded Wesley Horton, attorney for New London. Several justices showed an interest in finding a way to properly compensate people who are forced out of their homes in the name of helping the local economy. "Is there some way of ensuring a just compensation that actually puts the person in the same position he would be in if he didn't have to sell his house?" asked Justice Stephen Breyer. "Or is he inevitably worse off?" A ruling is due by the end of June.
The Derys' neighbors have their own, similar stories. Bill Von Winkle bought his first building in the neighborhood 20 years ago, and went to work making sandwiches in the downstairs deli and renovating the upstairs apartments. Susette Kelo meticulously restored her small pink Victorian house. So when the New London Economic Development Corporation, a non-profit organization appointed by the city, approached about 70 property owners in Fort Trumbull about selling their homes to make space for a luxury hotel, condominiums and office space, these and a handful of other owners declined. Their property, they said, is not for sale. In November 2000, however, the city invoked eminent domain – a government right to seize property for public use – and sent out condemnation notices to owners refusing to sell. The city planned to pay the owners fair market value, take possession of the buildings and tear them down. According to Daniel Krisch, one of the attorney's representing New London and its economic development arm, the city had several good reasons for razing the well-kept middle class neighborhood to replace it with a new, private development. Krisch contends that the new development would create jobs, boost tax revenue, improve the city's infrastructure and provide public access to the river. It's for the benefit of the entire community, he said. Taking for the Greater Good In February, the Institute for Justice, a libertarian public interest law firm that is representing seven Fort Trumbull owners for free, will argue in the U.S. Supreme Court that the city of New London has abused its use of eminent domain.
The case, Kelo v. City of New London, will decide whether the U.S. Constitution's definition of "public use" includes private developments like condos and casinos. The decision will have implications through the country. The Institute for Justice argues that displacing property owners for private development is not legal. "The Constitution says [eminent domain] should be used for a public use -- a road, a court house, a military base. Not a Wal-Mart," said Scott Bullock, a senior attorney with the institute. According to a study of court papers and published accounts covering a five-year period, the institute found more than 10,000 examples of property being condemned under eminent domain for the benefit of private parties. The city of New London and other cities using eminent domain in the interest of urban renewal argue that such private projects are for public use, even if the public only benefits indirectly. "This is a tool that is important to local governments because it allows them to revitalize areas that otherwise would not get revitalized," said Tom Grundhoefer, general counsel for the League of Minnesota Cities, which is filing a "friend of the court" brief on behalf of New London. Cities want to attract new businesses and developers to their urban centers rather than contributing to sprawl by building in the suburbs, he said. But they can only do so if they can get existing owners to sell. "Often times there might be one or two owners who will not go along with the voluntary sales situation," he said. "The question comes up, 'Do you stop the entire project because one or two won't sell, or do you use eminent domain to encourage that activity?'" Encourage isn't a word that Joy and Carl Gamble of Norwood, Ohio associate with eminent domain. The retirees are scheduled to be evicted from their home of 35 years in early February to make way for Rookwood Exchange, a $125 million development with offices, shops, housing and restaurants. In this case, the city of Norwood voted to exercise eminent domain after a study -- which was funded by the developers of Rookwood Exchange -- determined that the Gamble's neighborhood is blighted.
"Blight 50 years ago entailed serious problems and neglect," said Bullock, citing cracked sidewalks and weeds as examples of blight given in the study. Now, he said, blight is just an excuse for the government to take land from one party and give it to another. "The easy story is to wrap the Gambles in the American flag and say, 'It's not right,'" said Richard Tranter, an attorney representing Rookwood Partners, adding that it's not unusual for cities to ask developers to pay for studies and other expenses related to development. "But it's not that easy." Norwood is a doughnut hole in the middle of Cincinnati that is about to declare a fiscal emergency, according to Tranter. What's more, the Gamble's neighborhood is cut off from the rest of the city by a major freeway and roads feeding into that freeway. "With the exception of the Gambles, every resident is saying they want to get out of the neighborhood," he said. "An 80-year old blind widow called it a blessing." Tranter says the developer has signed contracts with 65 residents to buy their property for no less than 25 percent above market value, pending the outcome of the Gamble's appeal. Still, the Gambles don't want to sell for any price. "We're very proud of this house. It's extremely well built," said Joy. "We raised our children here. All of our memories are here," she said. "We don't want to move, especially for a shopping mall." |
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In
California and Texas, legislators have proposed constitutional
amendments, while at least a dozen other states and some cities are
floating similar changes designed to rein in the power to take
property.
Several
justices, addressing an issue that could have ramifications
nationwide, expressed reservations about their authority to stop the
government of New London, Connecticut, from seizing homes and
businesses owned by seven families for a private development project
to boost the city's economy.
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A Feast
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