Biersdorf & Associates

A group of Iowans and lawmakers say property owners need stronger protection against government efforts to obtain private land for economic development.

The lawmakers on Monday unveiled seven legislative proposals they plan to introduce this week. One bill would prohibit the condemnation of property on the National Register of Historic Places. Another would establish a property owner defense fund to reimburse legal costs incurred while fighting eminent domain.

“We ask the Legislature this year to finish what they did last year and that is to finalize and close up the loopholes to the legislation that they passed,” said Joel Fry, a rural Clarke County resident. Fry’s family is fighting Osceola’s attempt to build a lake that will take up about 2,400 acres and displace about 30 property owners.

Fry and many of his neighbors support proposed legislation that would make it illegal for cities to acquire land for lakes unless water needs are clearly demonstrated.

Osceola officials have previously said the proposed lake is essential for the growth and well-being of the area.

A U.S. Supreme Court ruling in 2005 affirmed that government could force the sale of private property for economic development reasons. In reaction, Iowa legislators tightened Iowa’s law and in 2006 overrode former Gov. Tom Vilsack’s veto of the bill.

Some cities have said the 2006 law makes it difficult to upgrade blighted areas, but property rights advocates have said the law did not go far enough.

Three Republican representatives - Jeff Kaufmann of Wilton, Jodi Tymeson of Winterset and Pat Grassley of New Hartford - and Democrat Delores Mertz of Ottosen have endorsed all or some of the ideas outlined Monday to strengthen eminent domain laws.

“This legislation is fundamental to the people’s rights in this state,” said Kaufmann. “Iowans have had their lives turned upside down by a simple loophole; we’re very happy that we can work in a bipartisan manner to protect our citizens.”

http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20080226/NEWS10/802260390/-1/NEWS04

DesMoinesRegister.com

By JASON CLAYWORTH • REGISTER STAFF WRITER • February 26, 2008

AVON - The Avon school board voted 3-to-2 Tuesday to begin eminent domain proceedings against property owner Mary Jane Wolf in hopes of gaining about 25 of the 30 acres needed for a new Avon Middle School.

 Wolf, 57, the owner of land at 2758 Center Road, told the board she does not want to sell, saying she has weathered a number of problems in recent years, including the death of her life partner in 2005 and her own diagnosis of throat cancer two weeks later.

But school officials say the site - with ready access to sewers - is the best for a much-needed new school.

Board President Dale Smitek, Vice President Angela Marsiglia and board member Debora Polovich voted in favor of starting the eminent domain process, a legal tool available to governmental entities that allows them to pay fair market value for property needed for projects that are deemed for the public good.

Voting against the use of eminent domain were board members Kevin Romanchok and Susan Harrison, who also unsuccessfully lobbied to have the decision delayed for 120 days.

“Is there a reason it has to be done tonight?” Romanchok said.

Marsiglia said she wanted the vote to be taken immediately - delaying it, she said, would simply allow time for the opposition to build.

The vote angered about two dozen residents who attended the meeting, including Lee Cory, who accused the board of “stealing someone’s land.”

Another resident, Tim Bresnahan, pleaded for a delay of the vote, saying the only public notice was newspaper stories Saturday.

But a majority of the board members said the plans need to get going for the new school, which will require a bond issue to be passed for construction.

Wolf, meanwhile, said the school district has offered to pay her only $30,000 an acre. That’s far less than the figures she’s hearing from developers, she said.

She was joined at the meeting by Attorney Gerald Phillips, who said he would keep an eye on the district’s actions. He said he plans to get an appraisal for Wolf’s property, something that the school district has not yet provided to his client.

After the meeting, Smitek said Avon Schools are hoping to get the new middle school started in 2011. Acquiring the necessary land could cost as much as $1 million, and the school itself could run as much as $16 million, he said.

Todd Wrobleski, the district’s architect on several other school projects, said it would not be cost-effective to renovate and expand the current building.

Smitek said several smaller property owners in the target area are in negotiations with the district to sell their homes to the district, but Wolf did not respond to requests that she sell the land. Under the board’s plan, he said she would be able to retain her home on Center Road while selling the rear portion to the Avon Schools.

Smitek said his own grandfather - under the threat of eminent domain - agreed to sell land in the mid-1950s at $1,000 an acre for the current middle school at 3075 Stoney Ridge Road.

Smitek also said he thinks a lot of the opposition from neighbors stems from the fact they don’t want development nearby.

The new school likely would have entrances and exits from Eagle Creek and Center Road, Smitek said.

About 550 students now attend seventh and eighth grades in the middle school, but the elementary classes are larger and more space will be needed when they hit the upper grades. At the moment, there are 300 approved building lots in Avon, and another 300 homes in the works on top of that.

http://www.chroniclet.com/2008/02/20/school-district-to-use-eminent-domain

Chronicleonline  Cindy Leise | The Chronicle-Telegram 2/20/08

EAGLE MOUNTAIN, Utah (ABC 4 News) - You can’t fight City Hall, and an Eagle Mountain couple is learning that the hard way.

After months of opposition, a judge ruled the city of Eagle Mountain can put a huge power pole right in their front yard, and the front yards of others all in the name of development.

It’s called an ‘eminent domain’ order, or the taking of one’s property for the greater good of the city. The O’Donnells call it ‘legalized theft’ by the government.

Karen and Kim O’Donnell run the “Friends in Need” Animal Sanctuary. The property and the animals are the O’Donnell’s life, and now they feel that life is in jeopardy.

“They didn’t come up here and see what kind of devastation this was going to create…they want to develop and put up houses and bring in new people.” says Karen O’Donnell.

The O’Donnell’s hired an attorney and tried to fight it, but just this week a judge ruled in favor of the city. O’Donnell says any day now, 90 foot power poles with lines to follow will go in right in their front yard.

“They are 75 foot width that they are taking that there taking all the way down our front area here,” says O’Donnell, pointing to the area in her front yard.

Their attorney says an appeal would be costly, and he tells them he’s not even sure he can represent them any further. In the meantime, Karen O’Donnell worries about how this will affect their health, and the health of their animals, not to mention their property value.

“I just wake up in the morning and wait to hear the machines and trucks to come in,” says O’Donnell.

“How do you fight government; legalized theft?” says Karen. “We will fight as long as we have to fight, I Don’t know what to do now.”

The city administration offices were closed on friday. ABC 4 tried repeatedly to get in touch with someone for the city, but so far, they have not called back.

There is a lot of space in and around Eagle Mountain, and there are existing power lines across the street from the O’Donnells.

The O’Donnells wonder, ‘Why not there?’

The project will take about an acre of land from the O’Donnells. They claim they are not being appropriately compensated for that land.

http://www.abc4.com/news/local/story.aspx?content_id=9910ce02-844c-44be-af2f-b7c5afb474b2

abc4.com  reported by: Jill Atwood
Last Update: 2/15 5:32 pm

Chemung - Many neighbors along White Wagon Road are against the idea that a Fortune 100 distribution facility could soon replace the potato field across the street.

“I don’t really know that much about [the deal],” says neighbor Peggy Wolcott, who lives across the street from the farmland in question.  “I would rather keep things the way they are now.”

The Chemung County Industrial Development Agency will not name the company who is interested in the site until they receive a letter of intent.

They say the project will bring in an estimated 700 full-time jobs.

But in order for the deal to go through, the IDA would need to acquire a 90-acre property adjoining the 40 acres of farmland it already owns.

The county says the land is owned by the Johnson family, of Pennsylvania.  They had an option on the property back when the Dollar General wanted to open up a similar facility at the site more than a year ago, but that option has since expired. 

Now, County Executive Tom Santulli says the Johnsons will not settle for less than $100,000 per acre.  That is more than 8 times the appraisal price, which is $12,000 an acre. 

The Town of Chemung has the land assessed at just $679 per acre, by contrast, according to Town Supervisor George Richter.

The IDA may try to force the Johnsons to sell their land at a price determined by a judge, also called eminent domain.

“Essentially the whole theory behind eminent domain is the government and people have a need for certain types of things, so the government is entitled to acquire property that benefits the public,” said County Attorney Bryan Maggs.

But the Johnsons’ neighbors are suspicious that the project will benefit them. 

“Get real,” remarked next door neighbor Bill Yanavitch.  “The handwriting’s on the wall.  [Chemung County is] becoming a dictatorship.”

Yanavitch fears that it’s only a matter of time that the county asks to purchase his one-acre property adjoining the Johnsons’ land, where he’s lived for more than 40 years.

“You don’t know how much land they want.  Maybe they can build around me, or maybe they’re waiting until the deal with Johnson [is finished].  I’m the only one that’s left now,” said Yanavitch, who was asked to sell his property in the Dollar General deal alongside the Johnsons.

He is friends with the Johnson family and says they will not sell their land because it would hurt their farming business.

The Johnsons could not be reached for comment.

County Executive Tom Santulli says he hopes to meet with them next week to settle on a reasonable price.  If that doesn’t happen, a public hearing will happen on March 4th dealing with the issue of eminent domain.

http://www.wetmtv.com/news/local/story.aspx?content_id=eb30a472-86a7-4c7b-ace0-b5aad4dd72cf

WETM TV Reported by: Ana Liss

Last Update: 2/15 7:04 pm

PIERRE — The South Dakota Senate has approved a measure intended to speed up state hearings on the Dakota, Minnesota & Eastern Railroad’s application to acquire land by condemnation for its $6 billion expansion project.

An opponent said the bill could hurt landowners who believe DM&E is not treating them fairly, but the Senate sent the measure to the House on a 20-13 vote.

The bill’s main sponsor, Sen. Tom Hansen, R-Huron, said DM&E applied more than a year ago for state approval to use eminent domain to acquire land for a right of way from people who are unwilling to sell. Opponents have used delaying tactics to prevent a state hearing, he said.

“The time has come to let the process move forward,” Hansen said.

But Sen. Jim Lintz, R-Hermosa, said DM&E has caused as much of the delay as opponents have. He said many of his neighbors own land that would be crossed by the expansion project. They know the project is likely to be built, but they want to be treated fairly, he said.

“Their concern was not to stop the railroad. Their concern was to get a decent price for what the railroad was taking,” Lintz said.

DM&E wants to rebuild 600 miles of existing track across South Dakota and Minnesota and add 260 miles of new track around the southern end of the Black Hills to reach coal fields in Wyoming. The Powder river Basin project would haul low-sulfur coal eastward to power plants.

DM&E, which was recently purchased by Canadian Pacific Railway, has said it already has negotiated deals to acquire land along the expansion route from some ranchers in southwestern South Dakota. But railroad officials said they need legal authority to use eminent domain to acquire land from those unwilling to sell.

A state law provides that a railroad can use eminent domain if it can show a project is a public use consistent with public necessity. A key element is whether a railroad can show it already has negotiated in good faith to acquire land without the use of eminent domain.

In an actual eminent domain case, a court would decide what compensation a landowner would get.

The state Transportation Commission has sought to hold a hearing on DM&E’s application for authority to use eminent domain, but that hearing has been delayed after some hearing examiners were removed by both sides. Another delay was caused by a court order that required the commission to pass new rules for handling such cases.

The bill would provide that the commission is required to hold a hearing within 90 days of receiving a railroad’s application. Hearings on pending applications, such as the one filed by DM&E, would have to be held within 90 days of the time the bill became law.

The bill also seeks to limit the ability of parties to remove hearing officers.

http://www.rapidcityjournal.com/articles/2008/02/13/news/local/doc47b212a0494de778830420.txt

By The Associated Press Wednesday, February 13, 2008

Committee Approves Eminent Domain Measure

Janklow, Schieffer debate DM&E and eminent domain

PIERRE — Railroads could take land faster and more easily by eminent domain under a bill approved Thursday by a legislative committee.

The Senate Transportation Committee voted 5-2 in favor of SB174 - but only after a two-hour debate that pitted former U.S. Attorney Kevin Schieffer, now a railroad president, against former Gov. Bill Janklow, who represents landowners opposed to the bill.

SB174 would, for example, require that hearings and decisions be complete within 60 days of applications for eminent domain.

Schieffer, who heads Dakota, Minnesota & Eastern Railroad, said current law allows too many delays. DM&E proposes carrying Wyoming coal to Minnesota.

The railroad was recently acquired by Canadian Pacific, which has not made a final decision whether to continue the coal project.

However, economic-development groups, farm groups and Gov. Mike Rounds’ administration support both the bill and the DM&E project, which would be one of the largest construction projects in state history.

DM&E would spend $6 billion to upgrade 600 miles of track and build 260 miles of new track from the coal mines of Wyoming’s Powder River Basin to about Wall.

Some West River ranchers, whose land the new rail line would cross, told the committee the new legislation would limit their right to fight the railroad.

“SB174 would take our right to due process away,” Hermosa rancher Veronica Edoff told the committee.

Fighting back tears, Edoff described how she and her husband had worked 25 years to build up their ranch.

“The DM&E corridor, if it is ever built, would split our place in two,” she said. “This is going to create a huge economic hardship.”

Although the hearing was not about the DM&E expansion itself — only the eminent-domain procedure - several ranchers used the opportunity to tell lawmakers why they opposed the project.

“The DM&E project would cut through the center of our ranch for 4-1/2 miles,” said Keith Andersen, who ranches near Burdock, about 20 miles northwest of Edgemont. “It would quite literally tear the guts out of our place.”

Under a state law enacted in 1999, when Janklow was governor, a railroad can take rights of way by eminent domain only after the governor or the state transportation commission rules that the project would be for “a public use consistent with public necessity.”

Schieffer told the committee the new rules would help the railroad overcome delaying tactics by landowners who filed motions to postpone hearings.

“This isn’t about the big bad railroad against individual ranchers,” Schieffer told the Senate Taxation Committee. “It’s about the public interest.”

The new rail line would help fuel power plants, and the upgraded lines would help get farm products to market.

Janklow, however, said the bill would give the railroad eminent-domain rights not available to utilities, pipelines or highways. For example, in most cases, any party can demand that a hearing examiner step down for any reason. The new law would allow that only if bias was proved.

Janklow also said delays in the project, which has been in the planning stages for a decade, were caused mostly by the railroad itself.

“The delay has taken place because they didn’t want to play by the same rules everybody else in South Dakota plays by.”

DM&E had avoided disclosing documents in the case, Janklow said. “We have never had one minute of pre-trial discovery out of these cases,” he said. “The last time I heard the judicial system worked like that, it was North Korea.”

Schieffer responded: “We’re not trying to change the rules of the game. We’re just trying to get into the game.”

Not all ranchers oppose the project. Leonard Benson of Oral said the company had negotiated with him fairly for a right of way on his land.

Other supporters cited economic benefits.

Huron Mayor David McGirr told the committee the new rail line could provide thousands of jobs and help bring ethanol and grain to market. “This could make our recent successes pale by comparison,” he said.

Rick Vallery, a lobbyist for South Dakota Wheat, said the 9,000 wheat farmers in the state represent a $1 billion industry. They ship 85 percent of their produce out of state, Vallery said, and 30 percent to 40 percent is shipped on the DM&E.

Expanding and upgrading rail line would improve access to markets for farmers. “We are now down to a few landowners — and I want to emphasize ‘few’ — who are resisting the expansion project,” Vallery said. “We’re caught in a little circle right now.”

Andersen, whose ranch the line would cross, said he supported upgrading the current DM&E line. He also said if he lost his eminent-domain case he could accept it. But he objected to changing the rules in the middle of his fight. “I’m not opposed to the railroad, but I damn sure don’t like to be railroaded,” he said.

Sen. Royal “Mac” McCracken, R-Rapid City, said he understood the objections, but he also said there were long-range benefits to consider. McCracken voted for SB174. “I believe it would bring some certainty and finality to the process,” he said.

Janklow, quoting Bob Dylan, said before the vote that he expected the outcome. “One of his lines was, ‘You don’t have to be a weatherman to know which way the wind’s blowin’.'”

Sen. Bill Napoli, R-Rapid City, who cast one of the two dissenting votes on the committee, said, “This bill subverts the very legal system we took an oath to uphold.”

The committee vote sends the bill to the Senate floor with a “do pass” recommendation.

What SB174 would do

Current state law, passed in 1999, allows the governor or the state railroad commission to appoint a hearing examiner to decide whether eminent domain can be used. SB174 would:

* Allow parties in the case to remove a hearing examiner only if they could prove bias on the examiner’s part (Currently, parties to the dispute can dismiss an examiner for any reason.)

* Require a hearing to be held and a decision made within 60 days of an application for eminent domain

* Allow railroads to resubmit applications that had been denied

* Allow railroads to start construction while appeals were pending about whether the eminent domain taking was in the public interest

A court would still have the final say over eminent domain takings.

http://www.rapidcityjournal.com/articles/2008/02/07/news/top/doc47ab302f9cb47221326226.txt

Rapid City Journal

By Bill Harlan, Journal staff Thursday, February 07, 2008

The East Lansing City Council postponed a decision on whether to use eminent domain to acquire property to build an alleyway along the 600 block of Virginia Avenue during its meeting Tuesday night.

The city wants to acquire about 20 feet of property behind 607 Virginia Ave. for the construction of an alleyway that will connect parking behind housing that is being constructed in the area.

Eminent domain is a law that allows municipalities to acquire land if it is determined to be necessary for a public use.

Known as Avondale Square, the project called for the demolition of rental housing on the 600 block of Virginia Avenue and it is being replaced with 16 single-family homes and 14 townhouses.

East Lansing City Councilmember Roger Peters said he was uncomfortable making a decision until he re-examines the project.

“It would be helpful to have another presentation,” Peters said.

Jim van Ravensway, East Lansing’s director of Planning and Community Development, said negotiations have stalled with Gary Baird, who owns the property. If an agreement is not reached, eminent domain might be the only way the city can acquire the property, van Ravensway said.

Baird said he has no intention of selling a portion of his property, which he has owned and rented out since 1991.

After researching eminent domain, East Lansing City Attorney Dennis McGinty said he believes the proposed alleyway qualifies as a public use.

“It’s for the use of the public,” he said.

But Baird said he doesn’t view the proposed alleyway as a public use. If the city uses eminent domain, Baird says he is prepared to challenge it in court.

“It’s a public use to provide a private benefit,” Baird said.

http://www.statenews.com/index.php/article/2008/02/el_city_council_postpones_eminent_domain_decision

statenews.com 

By Brian McVicar
The State News
Published: February 5, 2008

E.L. to consider ban on using law

EAST LANSING - The City Council next week is slated to take up a resident’s proposal to ban use of eminent domain on projects related to private development.

The proposal is a response to city efforts to acquire several properties along Evergreen Avenue to build a city-owned parking structure as part of the $115 million private City Center II development.

The project by East Lansing-based Strathmore Development Co. is slated to include five new buildings with residential and commercial space spanning from Grand River Avenue and Abbot Road to Valley Court Park.

At least one property owner said he fears the city could use eminent domain law to force a sale of his property.

East Lansing officials say they continue to negotiate to buy the needed land and that the city has never used eminent domain.

The issue led Phil Bellfy, who lives nearby in the Oak Hill neighborhood, to propose a measure to take eminent domain off the table in such projects.

“If the city is serious that ‘we will not take land by eminent domain,’ I’m saying put it in writing,” said Bellfy, a Michigan State University professor who has lived in the neighborhood for about five years.

East Lansing Mayor Vic Loomis said he is putting Bellfy’s proposal on the agenda for the council’s Feb. 12 work session.

The City Council could vote to accept or reject the proposal then or ask city lawyers to review the measure and make a recommendation at a later meeting.

“This is an issue that’s top-of-mind to a number of our citizens,” Loomis said. “When people come forward with questions or issues, I don’t like them to languish.”

Eminent domain is just one issue with which city officials are likely to grapple as they consider the City Center II project.

Ann Nichols, president of the Oak Hill Neighborhood Association, said her neighbors are more concerned about the impact on Valley Court Park and their neighborhood.

She said residents are worried about increased traffic and whether the park still will be welcoming to their children for play.

“We feel like this has grown exponentially in a very short period of time and was presented to us as a done deal,” Nichols said.

http://www.lsj.com/apps/pbcs.dll/article?AID=/20080205/NEWS01/802050312/1001/news

LSJ.com

Jeremy W. Steele
Lansing State Journal

Published February 5, 2008

Decision means work on bridge may begin in summer

Hendricks County officials hope to begin work this summer on a new bridge into White Lick Estates, but still need to settle legal issues stemming from an eminent domain dispute.

A judge last week ruled in favor of the county’s claim of eminent domain, forcing David and Elena Finchum, Brownsburg, to sell 2,300 square feet of their land along White Lick Drive. The county sought eminent domain last year after failing to reach an agreement with the Finchums to buy the land. Governments can use eminent domain to purchase land at market value for public purposes, including building roads. County Engineer John Ayers said the county is awaiting an estimate from three court-appointed appraisers to determine a price. “We had hoped to get work done before spring,” said County Engineer John Ayers. “We are hoping to build it this summer now once the legal issues are all settled.” Either party can still object to the appraisal, though the Finchums don’t plan to fight the issue anymore, Elena Finchum said. Superior Court 5 Judge Stephenie Lemay-Luken sided with the county after the Finchums didn’t respond in writing to the county’s eminent domain complaint, as required by the court’s summons. Elena Finchum said the couple sought the advice of an attorney after receiving the summons. The attorney advised them not to spend money on something they had no chance of winning, Finchum said. The judge ruled in favor of the county and called for three certified appraisers. The appraisers will work together to determine the value of the land and visited the Finchums’ property Tuesday. It isn’t certain how soon the appraisers will get back to the judge on the land’s value, Elena Finchum said. The couple previously rejected two offers by the county, which led to the lawsuit. “It was cut and dry, which we knew going in,” she said. “I just hoped to expose them (the county) because people should know what they have done.” The bridge, built in 1973, needs repair, and county officials say it must be raised to avoid flooding. Water runs over the road once or twice a year. The Finchums, who developed the neighborhood, never disputed the need for a new or refurbished bridge. They claimed the county had better and cheaper options. They also were worried that moving the road closer to their home would lower their property value and cause safety concerns. They had hoped the county would rebuild the bridge where it is or on a piece of vacant land on the opposite side of the road. Ayers said the county considered all options but found taking the Finchums’ land and part of an adjoining property with a number of mature trees to be the most cost-effective for taxpayers. The retired couple developed White Lick Creek Estates, which is north of Brownsburg off County Road 800 North, and has lived in their home since 1976. Despite the legal battle, the Finchums say they don’t plan to move, but they never again would own a piece of land controlled by Hendricks County.

http://www.indystar.com/apps/pbcs.dll/article?AID=/20080201/LOCAL/802010340/1020/LOCAL05

indystar.com

By Josh Duke

josh.duke@indystar.com

February 1, 2008

Lincoln hopes to route sewer pipeline project through property

Development company Reynen & Bardis is prepared to challenge a possible eminent domain lawsuit by the city for its Lincoln property.

Gary Livaich, an attorney for the group, said the city of Lincoln has not fulfilled government code requirements in its effort to acquire a portion of his client’s property for a sewer pipeline project that would serve the Twelve Bridges area.

Plans call for the pipeline to bisect Antonio Mountain Ranch - a Reynen & Bardis property off Athens Avenue used for wetlands mitigation - on its way to the city’s wastewater treatment plant.

An independent appraisal by the city did not take into account severance damages, Livaich said.

The city is not taking the entire property - they’re taking a corridor right down the middle,” he said. “In part-take cases, there are severance damages to the remaining property, and in this particular instance, the city instructed the appraiser not to look at severance damages. The appraiser even wrote in his report that this request was extraordinary.”

Damages from splitting the land could be in the millions of dollars, Livaich told council members at a Jan. 22 hearing.

“You’re taking a swath right down the middle of my client’s property, and what’s left is two pieces of property separated by city ownership,” he said. “After it’s completed, it’s landlocked.”

But Larry Buckle, an engineering consultant for the city, said the property owner agreed to forgo severance damages.

Buckle said damages were determined to be unnecessary in a discussion between Reynen & Bardis, city officials, U.S. Fish & Wildlife Service, the U.S. Army Corps of Engineers and a representative from U.S. Rep. John Doolittle’s office.

It was unequivocally determined by Fish & Wildlife and stated to everyone in the room - including the property owner - that there would be absolutely no damage created outside the entire indirect impact area,” he said. “Both the city and the property owner worked together to reach that determination.” Affected land - including 250 feet on either side of the 100-foot-wide pipeline that could be indirectly impacted - would be acquired by the city, as recommended by Fish & Wildlife.

Because the land’s only function is to preserve wildlife, its division won’t impact property retained by Reynen & Bardis, he said.

“A bird flying over the property would be uninhibited by the property line,” Buckle said.

In all, Buckle said Lincoln would acquire about 100 of the ranch’s approximately 600 acres.

He said using a route that avoids Antonio Mountain Ranch could cost an extra $20 million, doubling the estimated price for the total project.

If the offer based on the appraisal is not accepted, Lincoln could enter the eminent domain process, said Rodney Campbell, community development director for Lincoln.

“There’s usually a period in which the city tries to negotiate, to see if something can be worked out to everyone’s satisfaction,” he said. “If that’s not the case, the city considers moving forward. But the land owner always has the ability to challenge the amount of money being paid, even after the city acquires the property, and even if they didn’t prevent the city from acquiring the property.”

For now, Reynen & Bardis’ lawyer said, the ball is in the city’s court.

“Their next step is filing an eminent domain lawsuit serving the land owner,” Livaich said.

Though Livaich said his client has “sound legal basis for the right to take defense,” he added that he is open to further negotiation with city. “I’ll do everything justified to protect the rights of my client, but that doesn’t mean I won’t talk,” he said.

http://www.lincolnnewsmessenger.com/articles/2008/01/31/news/top_stories/03suit.txt?pg=1

lincolnnewsmessenger.com

By: Cheri March, The News Messenger
Thursday, January 31, 2008

Does restricting “eminent domain” — the power of government to seize private property — harm economic growth? A new report from the Institute for Justice looks at the evidence and concludes the answer is no.

Since the Supreme Court sanctified eminent domain on behalf of private developers in the dreadful 5-4 Kelo ruling in 2005, 42 states have passed some restriction on the practice. Some reforms have been far-reaching, as in Florida, which barred public entities that seized property from transferring it to private hands for 10 years after the seizure. Other reforms are more modest, changing the definition of “blight” or throwing up other obstacles to overeager planners.

But one constant since Kelo v. New London has been the refrain, echoed by developers and politicians alike, that eminent domain is necessary for redevelopment. In 2006, Iowa Governor Tom Vilsack vetoed an eminent-domain reform, arguing that it would harm the economy if the state restricted the power to expropriate private property. Groups such as the National League of Cities make similar arguments.

So the Institute for Justice, which spearheaded the original campaign to save Suzette Kelo’s home, decided to crunch some numbers. First, the report assigns each state to one of three categories according to the level of reform implemented after Kelo: “strong,” “moderate” or “none.” Then it compares the data for construction jobs, building permits and property-tax revenue before and after the effective dates of the reforms for each state. The verdict: So far, there has been no discernable hit to economic activity from the restriction of eminent domain, even in those states with the broadest reforms.

This result isn’t surprising. Developers love eminent domain because it’s easier to snap up land when government forces owners to sell — no unpleasant dickering over price, etc. Local politicians likewise believe they are best positioned to pick winners and losers and to shape the future of their cities.

But private development went along very nicely for two centuries before politicians began seizing one person’s property for the benefit of another private citizen. Sometimes the marketplace adapted in amusing ways, as when major building projects were forced to go up around, or even on top of, older buildings. But in the absence of the coercive state, buildings still got built.

The most grandly conceived plans are also often those most likely to fail. If a project cannot proceed without government interference, it is reasonable to ask whether it is worth putting the hamfist of government on the scales at all. As the Institute for Justice’s report notes, Baltimore’s much-touted Inner Harbor redevelopment remains dependent on government handouts. At the same time, private redevelopments without eminent domain, such as in Anaheim’s A-Town, are thriving.

The backlash against Kelo has had the healthy effect of limiting the hubris of local politicians, which is why they have resorted to these scary economic claims. We’re glad to see them debunked on the merits.

http://online.wsj.com/article/SB120165400238627033.html?mod=googlenews_wsj

REVIEW & OUTLOOK - January 30, 2008

THE WALL STREET JOURNAL