Biersdorf & Associates

DOVER — The state Senate has failed to override Governor Ruth Ann Minner’s veto of a bill prohibiting governments in Delaware from using eminent domain for economic development.

Eleven senators voted to override Minner’s veto on Monday, two fewer than needed. Three Republicans joined six Democrats in upholding the Democratic governor’s veto.

Representatives of the city of Wilmington, the League of Local Governments and organized labor opposed the bill, which had passed both chambers of the legislature with only one dissenting vote.

The bill said governments could condemn and acquire private land only for public use, and that public use does not include increasing an area’s tax base or bringing more jobs with the underlying goal of economic development.

By The Associated Press • June 30, 2008

http://www.delmarvanow.com/apps/pbcs.dll/article?AID=/20080630/NEWS01/80630049/1002

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Minner vetoes eminent domain bill-Legislation could have hindered city’s plans for waterfront-Delaware

By CRIS BARRISH and GINGER GIBSON • The News Journal • June 29, 2008

Gov. Ruth Ann Minner on Saturday vetoed a bill that would have put tough restrictions on governments seeking to take private property by eminent domain and could have hampered development along Wilmington’s waterfront and in the rest of Delaware.

The bill, which passed the Legislature earlier this month, would have allowed state or local agencies to condemn and take private land only if it were intended for “public use.”

The measure also stipulated that economic development and enhanced tax revenues did not meet the definition of public use and tightened the definition of blighted, adding a property must be a threat to public health and safety to qualify for transfer by a government agency.

The bill stems from a heated dispute between south Wilmington landowners and Mayor James M. Baker’s administration, which recently updated the city’s urban renewal plan for the area that includes scrapyards, a lumber yard, an auto repair shop and numerous vacant lots. A group of 10 landowners, who fear the city might condemn their land for homes, shops and other projects, is suing the city in Chancery Court, saying the government’s plan is unconstitutional.

One of the plaintiffs, auto shop owner Ed Osborne, said the governor has turned her back on citizens and the two chambers of the General Assembly, which overwhelmingly approved the measure.

“Gov. Minner broke my heart today because what she said was the people of Delaware have no voice,” Osborne said.

John Rago, the city’s communications director, said there are no current plans to take any specific property.

“Gov. Minner is to be commended for ensuring the economic prosperity of the state of Delaware for years to come and should be equally commended for saving the state’s taxpayers millions of dollars in unnecessary expenses,” Rago said. “No government in Delaware has ever abused the power of eminent domain.”

Rago added that Baker’s administration, in office since 2001, has used eminent domain only once “for health and safety reasons.”

Minner would not agree to be interviewed about her veto. But in a letter to state senators she released to the media, the governor wrote that the bill could restrict the state’s ability to get an easement on private property for beach preservation or other purposes and be more costly to taxpayers.

Attorney Rich Abbott, who is representing the Wilmington landowners in the lawsuit, said Minner’s legal reasoning is wrong, and that the bill “would not prohibit the taking of easements.”

The bill would have hampered the city’s efforts to condemn land for its projects along the waterfront and made his lawsuit unnecessary, said Abbott, who is hoping the House and Senate override Minner’s veto when it convenes Monday for the final day of the legislative session. If not, the lawyer said, the landowners’ suit will move forward.

Osborne is calling for anybody who supports the legislation to meet at 5 p.m. Monday on the steps of Legislative Hall in Dover to protest the governor’s move.

“Maybe we can get an override of the veto,” Osborne said.

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.

Contact senior reporter Cris Barrish at 324-2785 or cbarrish@delawareonline.com. Contact Ginger Gibson at 678-4274 or gigibson@delawareonline.com.

http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20080629/NEWS02/806290363

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Another eminent domain bill appears in Legislative Hall-Delaware

By GINGER GIBSON and ADAM TAYLOR • The News Journal • June 18, 2008

DOVER — While one eminent domain bill sits on Gov. Ruth Ann Minner’s desk awaiting its fate, another one that would attack the issue from a different angle appeared in Legislative Hall this week.

Rep. Gerald Hocker, R-Ocean View, filed House Bill 484 on Tuesday, a different approach to resolving a disagreement about the use of eminent domain in Wilmington.

The resolution would redefine which properties qualify as “blighted” – and therefore condemnable under the city’s power of eminent domain – and increase the steps a government agency must go through to condemn a property. It also would increase the amount of compensation a person receives if their property is condemned using eminent domain.

The bill would also preserve the ability to condemn for economic development purposes, in some cases.

Hocker introduced the bill on behalf of the Delaware Association of Realtors, association president Donald P. Ash said.

“Using eminent domain in some cases for private development projects, which wouldn’t be that often, is good,” Ash said. “Our bill would still restrict what the city could and could not do and would treat the property owners fairly.”

While meant as a compromise between parties such as Wilmington’s government and South Wilmington property owners on a hit list for potential condemnation, the bill managed to fail to get the support of either side.

“HB 484 reads like it was written by a developer,” auto-repair shop owner Ed Osborne said. “It boosts the compensation for little guys like me, but this battle has never been about the money. It’s about the right to not have to sell.”

William S. Montgomery, Wilmington Mayor James M. Baker’s chief of staff, said the city opposes all eminent-domain reform proposals because they think the current laws allow governments to use the power and still afford property owners all the protection they need.

“We worked with the Realtors on this, but like all the other bills introduced this year, none of which we like, it’s way too far-reaching,” he said. “It’s not workable because it’s not in our interests.”

HB 484 is the fourth eminent domain bill to pop up in the Legislature this year. Sen. Robert Venables, D-Laurel, filed a bill that would prohibit using eminent domain for property acquisitions that are primarily intended for engendering redevelopment through private land owners, but the bill was axed because the “primarily” language was deemed not strong enough.

Rep. Dennis Williams, D-Wilmington North, also filed a bill that would have prevented governments from taking land and transferring it to a private owner for economic gain.

Then the two introduced a joint bill, Senate Bill 245, that only allowed government agencies to take private land if its intended for “public use” and said economic development did not meet the definition of “public.” It also tightened the definition of blighted, adding that it must be a threat to public health and safety.

The bill passed through the House and the Senate gaining final approval June 12. But it’s hit a road block since it landed on Minner’s desk.

Kate Bailey, spokeswoman for Minner, said the governor’s legal advisors still are reviewing the bill and she has not decided if she will sign it.

Hocker said the bill addresses concerns he thinks are currently unanswered in the eminent domain law.

The Institute for Justice, an anti-eminent domain group, has been involved in discussions aimed at changing state laws.

Steven Anderson, director of the Castle Coalition, the Institute for Justice’s community organization wing, said the newly submitted bill does not address the issue as clearly as SB 245.

Anderson said the Institute for Justice has called upon Minner to sign SB 245 and will stand by that request.

“Senate Bill 245 ties it to public health and safety,” Anderson said. “I still see a lot of wiggle room within the criteria that are being used [in the new bill]. That kind of loophole is closed with Senate Bill 245.”

While the new bill addresses some of the concerns the institute has, Anderson said they continue to support the implementation of SB 245.

“Senate Bill 245 is one that has been negotiated, and discussed and debated for a couple of months,” he said. “You need some time to digest what is happening.”

Contact Ginger Gibson at 678-4274 or gigibson@delawareonline.com. Contact Adam Taylor at 324-2787 or ataylor@delawareonline.com.

http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20080618/NEWS/80618086 

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 June 13th, 2008

DOVER — Legislation to restrict the ability of state, county and municipal governments to exercise their power of eminent domain and take private property for public use sailed through the House today and is on its way to Gov. Ruth Ann Minner for her consideration.

Senate Bill 245 requires agencies with condemnation powers to use those powers only for “public use,” which is defined in the traditional sense: condemning property for utility lines, highways and the like. Removing a “blighted area” also is a permissible use of condemnation powers.

The bill specifically prohibits taking privately owned land for the sole purpose of improving economic conditions in an area – a provision that the city of Wilmington has complained would hamstring its ability to continue its Riverfront development efforts.

But the handwriting was on the wall Thursday: There was little doubt the bill would pass, and Wilmington officials and lobbyists did not even seek to testify during floor debate in the House.

The bill passed 38-0, with one member not voting and two absent.

Contact J.L. Mille at 678-4271 or jlmiller@delawareonline.com.

http://www.delawareonline.com/apps/pbcs.dll/article?AID=/20080612/NEWS/80612055