8/17/2007

Eminent Domain in Atlantic Yards: New York NY Sun, 8/1/07

Use of Eminent Domain Begins in Atlantic Yards Plan

By Eliot Brown

The state is pushing forward with its plans to use eminent domain in preparing for the $4 billion Atlantic Yards project, the future home to a Nets basketball arena and more than 6,000 apartments in the Prospect Heights neighborhood of Brooklyn.

Since late last week, property owners in the footprint of the project have been receiving letters from the state asking for financial information relating to property appraisals, an initial step in the land-taking process.

A spokesman for New York's Empire State Development Corporation, Errol Cockfield, said the use of eminent domain was a ways off. The state will not proceed while a lawsuit challenging eminent domain procedure law is pending, and other suits could potentially delay the process as well, Mr. Cockfield said.

"This is an early step in a process that won't be ultimately resolved for some time," Mr. Cockfield said.

More than seven months after its approval, the fate of the Atlantic Yards project rests in the courts. There are several lawsuits challenging various aspects of the public review and land takings processes associated with the development. In June, a federal court judge tossed out the suit with perhaps the most potential to block the project, though opponents are appealing the ruling and vow that the state cannot proceed with any eminent domain until the suit has wound its way through the multiple stage appeals process.

"We don't think they're going to let this case be decided before all the issues can be ferreted out," a lawyer at the opposition group Develop Don't Destroy Brooklyn, Candace Carponter, said.

Also pending is a challenge to the environmental impact statement for the project, which, if successful, could require the Spitzer administration to do a new review for the development.

While the challenges could stave off any eminent domain proceedings for months, perhaps into 2008, development company Forest City Ratner holds that it is still on schedule to begin construction on the arena in the fall and open by 2009, according to a spokesman. Documents from Forest City Ratner, provided by Assemblyman James Brennan, show the premiere skyscraper in the complex, the 511-foot Miss Brooklyn, was supposed to start this month, though there are no visible signs of construction.


New York NY Sun: http://www.nysun.com

House Vote on Conservation of Connecticut River May Boost Vulnerable Freshman: New York NY Times, 8/1/07

By Avery Palmer, Congressional Quarterly

A vulnerable freshman Democrat won a victory Tuesday when the House passed a conservation bill for a river in his state, in the face of fierce Republican opposition.

Democrat Joe Courtney of Connecticut sponsored the Eightmile Wild and Scenic River Act (HR 986), which passed, 253-172, with just 24 Republicans voting in favor.

Courtney won the closest House race in the 2006 election, defeating Republican former Rep. Rob Simmons (2001-07) by 83 votes. Courtney is expected to be high on the GOP’s list of targets for next year’s races.

The bill would add parts of the Eightmile River in Connecticut to the National Wild and Scenic Rivers System. The designation would ban dams on the river and set in place other conservation measures.

Supporters of the bill cite bipartisan support in Connecticut, including from Courtney’s former opponent and from GOP Gov. M. Jodi Rell. Simmons sponsored an earlier version of the bill in the 109th Congress that did not go to a vote.

But opponents argued that it contained language that could allow the use of eminent domain to seize private property. The bill is opposed by the Property Rights Alliance, a special project of the advocacy group Americans for Tax Reform.

Adding symbolic resonance was the fact that Courtney’s district includes New London, home of the zoning dispute that led to a controversial 2005 Supreme Court decision on eminent domain, Kelo v. City of New London.

“This bill leaves the door wide open to actual condemnation proceedings against private land,” said Pete Sessions, R-Texas.

Supporters said the property-rights concerns are unwarranted because the bill would explicitly prohibit the Interior Department from acquiring land on the river without the consent of private owners.

“I think, frankly, folks, we’re talking about politics here, not policy,” Courtney said during debate.

The House first voted on the bill July 11 under suspension of the rules, a procedure that requires a two-thirds majority. The bill was defeated along party lines, with 239 in favor and 173 against.


New York NY Times: http://www.nytimes.com

Historic landmark could face demolition: Long Beach CA District Weekly, 8/1/07

Acres of Books, a city historic landmark and one of the most famous used bookstores in the world, could face demolition for condos and art

By Theo Douglas

Bookstore clerk Frank Cotten was in his 80s when he departed this dimension some time around when Clinton took office, and he left behind one amazing statistic: the only place he ever worked, for more than 50 years, was Bertrand Smith’s Acres of Books.

Even Jackie Smith, granddaughter-by-marriage of the man who founded Long Beach’s most-revered bookstore in 1934, can’t top that. She married Smith’s grandson, Philip, and she always said that Acres of Books was the only place she ever wanted to work, and she runs the store now. But after college, Smith’s grandfather-in-law made her work somewhere else for five years before she could join the family business.

And so for about 1,800 days, Jackie Smith was an X-ray technician. She’s been at Acres ever since, having no doubt been greeted by Cotten when she arrived. She remembers asking him about a book she dimly recalled from childhood—and she remembers him knowing precisely what that book was.

“He said, ‘Yes, it’s Under a Lucky Star by Roy Chapman Andrews,’ and he got it for me,” Smith says. “Now, of course, it’s out of print and very hard to find. Andrews is supposedly the character they based Indiana Jones on.” And Cotten must have been the man they based the card catalog on.

“We didn’t have a reference system—it was just, ‘Ask Frank,’” Smith says. “This was the only job he ever had, other than serving in the military in World War II — and he worked here until about a month before he died.

“His back started bothering him, and he stopped coming in, and then the neighbors didn’t hear from him and they started worrying — and they found him: lying on the couch with the music on. And his book, the book he was reading, had just fallen over his face.” Smith adds a little dreamily: “I think that’s the way to go.”

Acres of Books, the store Cotten left behind, should be so lucky — or really, it shouldn’t be so lucky as to have to go anywhere. But that’s the situation, again: the city is redeveloping the entirety of what it calls the Broadway Block — the coveted square of land bordered by Long Beach Boulevard, Elm Avenue, Third Street, and Broadway — and this time, it’s serious.

The process is well past the early planning stages and into the, well, the middle planning stages. (It really does take a lot of planning.) The city has chosen a developer, Portland-based Williams & Dame Development. The Long Beach Redevelopment Agency is buying up buildings on the Broadway Block. And the businesses in them are moving out or making plans.

Terry’s Camera was next door to Acres, until owner Maurice Greeson sold out in November — again. (It was, he said, the third time the city paid him to git.) 1-Stop Furniture was on the other side of Acres until this spring, when it wasn’t. Eminent-domain proceedings are underway against Jack’s Liquor and against Rita Michener — who inherited her parents’ building at Third Street and Elm Avenue, the former home of their business, Jensen Stamps.

That leaves only Acres of Books, a Long Beach historical landmark since 1990, in the way. Again.

“How many acres is this place?” comes the inevitable question from a sharply-dressed man in his late 30s or early 40s. The clerk adding up his purchases doesn’t give it a second thought: “It’s about 750,000 books and about six-and-a-half miles of shelves.” He knows this by rote because Acres of Books has been a legend since before some of us were born — but also because he has to.

Since at least 1982, when the city began ogling this one-story brick barn and seeing an office tower in its place, the clerks, the owners, and the legions of customers who trekked across the world to visit the land of readers have all searched their souls to find that one redeeming trait which might save their love from the wrecking ball. That they’ve staved off the bulldozers for a quarter-century speaks to their grit, ingenuity, and determination—but also to the subject at hand. They’ve had a lot to work with.

The Acres of Books we have in Long Beach today — housed in a swoopy Streamline Moderne storefront that has been variously a market, an early Glenn Thomas used - car lot, and Murray and Millie’s Western Corral — is really the second Acres of Books. The first was five stories of words in Cincinnati, one of the largest used bookstores in the world — from whence came Bertrand Smith in 1933. It’s said a fight with his wife precipitated his relocation.

One year later, Smith opened the first Long Beach Acres of Books, at 140 Pacific Avenue, buying out three other local booksellers — Frederick C. Petet’s, Leon A. Wylie’s, and the Long Beach Book Exchange — in the process. And there he stayed, down the street from the old City Hall until 1960, when the city needed his store for a parking lot.

Smith responded by buying the building at 240 Long Beach Boulevard for $70,000. He spent the next two years packing the books in old fruit crates, then driving those crates to the new store. He paid for two stores every month until he was done moving. Many books for sale at Acres today are still shelved in those fruit crates — a fact which has given generations of city inspectors food for thought — and if she ever has to re-install the books in a place with real bookstore shelves, Jackie Smith plans to sell the crates individually. Like so much else here, some of these packing-house labels are now highly collectible. But for her, that’s a worst-case scenario.

“They told us we had to move in 1986 and we even prepared for it, and it never happened. That was when they built that first fiasco,” Smith says, meaning Long Beach Plaza. “My father-in-law was in charge then. But the economy went down, and I think that was why they didn’t build it. I hope the economy doesn’t go down, but I hope we get to stay. It’s my dream [to run a book store]. It always has been.”

The city has a dream, too — has always had one, since its land started sinking and the fortunes of the Nu-Pike Amusement Park went sour — but that dream changes with the times.

In 1982, the earliest date city archives mention erasing Acres of Books from Long Beach Boulevard, the city’s dream was to let the Urban Pacific Development Corporation build a $90 million, “double” 15-story office complex on that block “with 92 townhomes.”

Pacific Development never broke ground there, but its vision survived long enough to be recorded in 1990 in a revised script for a Simmons Cable access program about “previous, as well as current threats to the Cultural Heritage of Long Beach.” The city keeps a copy of that script in its archives. The program aired in the spring of 1990, and that winter Acres of Books became a historical landmark, against the objections of the Press-Telegram and then-Redevelopment Agency Director Susan Shick.

“To say that [Acres of Books] provides some indispensable service is dubious,” the Press-Telegram opined in a July 1990 editorial. “True, it is a repository, but it is a repository of value and dreck alike. The store is the city’s largest literary attic.”

The newspaper and the Redevelopment Agency were somewhat in agreement there.

“My point has always been that if the goal of the community is to preserve Acres of Books, you’re not going to do it by preserving the building,” Shick told the Los Angeles Times on Jan. 14, 1990 — having worried in December 1989 to the Downtown Gazette that “[Acres of Books] could fold or change hands, possibly becoming a ‘dirty bookstore,’ but would still be protected by the same landmark status. . . .”

The notion that after 29 years — or now, after 47 years — a historic business is not somehow linked to its historic building is one that we’ll revisit later. But in 1982 — perhaps even in 1990 — office towers were a new and exciting alternative.

“Years ago, the idea was to create a Third Street Promenade,” says the city’s Redevelopment Bureau Manager Craig Beck. (The Third Street Promenade was spearheaded by none other than Long Beach’s current Planning Director Suzanne Frick, then of Santa Monica.) “We really focused on how you transition the downtown, and in the ’80s it was office towers,” Beck says. “But that was daytime business, and in the long run we found that wasn’t keeping the downtown restaurants going.”

Today, the engine for keeping downtown restaurants going is mixed-use: a blend of residential, retail, and miscellaneous that sounds like a slightly more sophisticated variation on what Urban Pacific had planned 25 years ago — except for those office towers. This time, the city plans to turn the Broadway Block into a condominium complex not unlike the ones it has on Ocean Boulevard, or below Ocean Boulevard — one which could ultimately contain as many as 450 housing units.

Tellingly, it is also known in some circles as the Art Exchange. The idea is that along with such niceties as underground parking and ground-floor retail, there’d be art — the exciting X-factor in this development. It could be art galleries, live-work studios, or a shiny new satellite home for the Cal State Long Beach University Art Museum. As with many other aspects of the development — like the eventual style of its architecture — it’s too early to say for sure what kind of art it will have.

The city’s model for the Art Exchange, however, is none other than Santa Ana, where the redeveloped downtown is home to Grand Central Art Center, a satellite of Cal State Fullerton with real, live artists’ studios and a nationally-regarded museum famed for showcasing (gulp!) low-brow art.

“We see this truly as an opportunity,” says Long Beach Redevelopment Agency Director Patrick West, the former city manager of Paramount credited with turning that city around. “Acres could end up staying, not changing at all. It will depend on the community input.”

This is somewhat true: despite hosting a town hall meeting on the subject last year, picking a developer for the Broadway Block, and beginning to buy up surrounding properties, the city has not yet determined Acres of Books’s future.

But that’s not merely some largesse on its part; it’s also because the city’s offer on the bookstore was rebuffed in November. That forced city lawyers into negotiations with Acres’s lawyer, Joe Dzida (of eminent-domain heavy-hitters Sullivan, Workman & Dee in Los Angeles). Dzida declined to discuss the case with The District.

Meanwhile, the Redevelopment Agency has entered into an exclusive negotiating agreement with Williams & Dame Development, perhaps best-known for its work in Portland’s Pearl District, where an abandoned 34-acre railroad yard was turned into a mixed-used neighborhood of more than 5,000 residential units. The company is currently working on South Park, a series of three condominium/retail towers in downtown Los Angeles it hypes online with a nighttime Starbucks scene ripped straight from Edward Hopper’s Nighthawks. The gritty city: it’s a project not unlike what we might see in Long Beach.

“Our current design calls for some public plaza space, with some building space that’s designed for . . . a finer arts concept,” says Jim Atkins, a principal with the development company. “Frankly, I think the thing that will help make downtown Long Beach better is more residents. That will be a benefit for retail. That was the case in LA.”

But Atkins says the sprawling, 13,000-square-foot Acres of Books would cramp Williams & Dame’s drawing hand and make it difficult to design things like underground parking.

“We’ve talked about the challenge of saving the entire building, and we’ve talked about the possibility of saving the attractive art-deco facade,” Atkins says. “If we save the facade of the building—particularly if we’re able to relocate that facade—it gives us the opportunity to use that facade in the project in a different way.”

But how is that possible? As a historic landmark, doesn’t all of Acres of Books have undeniable historic value — from its rear double-doors to the lines striped on the asphalt flooring of its fiction room (when it was still a Glenn Thomas car lot) to the stagecoach painting from when it was a dance hall?

Yes and no, says the city’s Historic Preservation Officer, Jan Ostashay. “From an architectural perspective, it does [have value], but it’s only the facade,” she says.
Like other California cities, Long Beach uses state historic preservation guidelines to determine what’s historic — and in situations such as this, officials make a list of the most historic elements of a historic landmark.

“In prioritizing what elements are most historical, you make a list starting with the most historical,” Ostashay says. “So if there was an adaptive reuse, you would start with the facade. First you have to do the prioritizing, and then you figure out what to do with the building. Most of the time, the interior’s not part of the plan.”

This is one of those times. Or, at least, it could be. Remember, the bookstore hasn’t been sold; the developer hasn’t said positively that the building has to go, and the city hasn’t rendered a final decision on the property.

Here’s how it works: each Long Beach historic landmark has certain unique design elements that make it historic. And when a building is declared a historic landmark, the city writes an ordinance protecting it — so those design elements will (everyone hopes) never be altered.

The catch is that sometimes, as with Acres of Books, the people who write the ordinance don’t like the same things you do — and so they may not mention those double-doors at the back, or the stagecoach painting, or even the wall sign painted on the outside of the north wall. They mention what they like and what they consider historic. So the city’s Acres of Books ordinance only categorizes the building’s facade as historic. If the city succeeds in buying the building, Ostashay says protecting it wouldn’t just be her responsibility.

“Ultimately, the Cultural Heritage Commission is going to make the decision,” Ostashay says, referring to the body of local citizens that meets monthly to debate life’s enduring questions, such as whether vinyl windows are appropriate in Craftsman-era homes near historic districts. (The answer is: sometimes.)

Layne Johnson, the chair of the Cultural Heritage Commission and who lives in the city’s historic 1932 Minnie Butler house, says, “It’s going to be interesting. There’s basically the ordinance itself, and the Cultural Heritage Commission’s purview is really limited to what that ordinance deals with.”

Long Beach Historical Society Director Julie Bartolotto also sits on the Commission. She says the Redevelopment Agency will have to come to the Commission for a permit if it wants to demolish Acres of Books.

“It’s really hard to guess,” she says, “but I would think that people are not going to be likely to grant a demolition permit.” In which case, Bartolotto adds, the RDA can go over their heads to the city council.

The council would uphold the Cultural Heritage Commission’s decision, wouldn’t it? After all, Second District Councilwoman Suja Lowenthal has a certain appreciation for Long Beach history; she was in the crowd on re-opening day when the nation’s oldest tattoo parlor, Bert Grimm’s World Famous Tattoo, became Outer Limits. Doesn’t she?

“You know, and you may want to fact-check me on that, I don’t believe the building is a historic landmark. I believe it is just the business,” Lowenthal says. Informed that the Acres of Books is a historic landmark, she says: “I think there’s an opportunity for the city to progress without it being at the expense of the business of Acres of Books. The core value is the business itself. I’m okay with the concept that the business itself is separate from the building.”

That’s exactly what Redevelopment Agency Director Susan Shick said 17 years ago in 1990 — less than a year before the city named Acres of Books the building a historic landmark. (The ordinance shows that the city already recognized the value of the bookseller’s business to Long Beach — in 1990, 31 years after Bertrand Smith donated 250 rare first editions to the Long Beach Public Library, along with a $20,000 grant to buy more.)

“What I don’t want to see is a facade-ectomy,” Lowenthal continues. “I’ve seen it in planning journals. It’s [a term] that we use where you have a historic building and [only] the facade is saved.”

Informed that the facade is really the only part of Acres of Books specifically mentioned in the ordinance protecting it, Lowenthal does an about-face: “Well, if that’s the case, then I don’t mind that.”

Should this surprise us? After all, historic preservation is a new business — and in Long Beach, tearing down interesting buildings is an old business. Here, even Mother Nature is in the redevelopment business, and in the 1933 Long Beach Earthquake she gave half the houses in the city extreme home makeovers. Long Beach Polytechnic High School got one, too — and so did Acres of Books, whose storied Streamline Moderne facade was added to make up for quake damage.

“The city has been doing that for 30 years all over Long Beach. We represented the people who owned the Pike, the Long Beach Amusement Company,” says Charlie Cummings, a partner in Sullivan, Workman & Dee, which represents Jensen Stamps heir Rita Michener in her eminent-domain tussle with the city. “See, that’s the very nature of redevelopment: if you do a big project, you’re going to displace some smaller businesses that could be very successful—and all things being equal could continue to be very successful.

“They’ve done some good things down in Long Beach, but it’s always a question of discretion,” Cummings continues. “But judges don’t have discretion; it’s the [redevelopment] agencies and the council members who have the discretion. It depends on how they view their role, whether it’s just bringing in more dollars or maintaining some of the older and good things the cities have.”

Acres of Books isn’t out of business yet. Like the Pantry, the famous historic 24-hour restaurant in Los Angeles, it may never close. The sagging real-estate market could stop the clock on this development as it has on so many others in Southern California.

But if the city does succeed in buying out her family’s bookstore, Jackie Smith wants relocation costs — somewhere around $250,000 — and a new address as part of the deal. She may get them, or she may get a deal to move somewhere else and then move back to the Broadway Block when it’s completed some time in the next five or 10 years. That’s another possibility. (It’s also a lot of moving.)

But it’s hard to imagine how a new address and some money will adequately compensate anyone for the loss of a one-of-a-kind dusty barn of place, where for 47 years ordinary people like you and me — and some famous writers like science-fiction author Ray Bradbury — worshipped the printed word.

“Better get there while you can,” Bradbury wrote, warning of Acres’s impending demise. That was in 1982. But don’t fool yourself: a move wouldn’t be any easier on Acres of Books today.

“It won’t be this any more,” Smith says. “It’ll just be a bookstore with this name. It won’t smell the same.”


Long Beach CA District Weekly: http://thedistrictweekly.com

historic landmark and one of the most famous used bookstores in the world, could face demolition

Acres of Books, a city historic landmark and one of the most famous used bookstores in the world, could face demolition for condos and art: Long Beach CA District Weekly, 8/1/07

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By author

-------------------------------------------
August 1st, 2007

By Theo Douglas


PHOTO by RUSS ROCA

Bookstore clerk Frank Cotten was in his 80s when he departed this dimension some time around when Clinton took office, and he left behind one amazing statistic: the only place he ever worked, for more than 50 years, was Bertrand Smith’s Acres of Books.

Even Jackie Smith, granddaughter-by-marriage of the man who founded Long Beach’s most-revered bookstore in 1934, can’t top that. She married Smith’s grandson, Philip, and she always said that Acres of Books was the only place she ever wanted to work, and she runs the store now. But after college, Smith’s grandfather-in-law made her work somewhere else for five years before she could join the family business.

And so for about 1,800 days, Jackie Smith was an X-ray technician. She’s been at Acres ever since, having no doubt been greeted by Cotten when she arrived. She remembers asking him about a book she dimly recalled from childhood—and she remembers him knowing precisely what that book was.

“He said, ‘Yes, it’s Under a Lucky Star by Roy Chapman Andrews,’ and he got it for me,” Smith says. “Now, of course, it’s out of print and very hard to find. Andrews is supposedly the character they based Indiana Jones on.” And Cotten must have been the man they based the card catalog on.

“We didn’t have a reference system—it was just, ‘Ask Frank,’” Smith says. “This was the only job he ever had, other than serving in the military in World War II—and he worked here until about a month before he died.

“His back started bothering him, and he stopped coming in, and then the neighbors didn’t hear from him and they started worrying—and they found him: lying on the couch with the music on. And his book, the book he was reading, had just fallen over his face.” Smith adds a little dreamily: “I think that’s the way to go.”

Acres of Books, the store Cotten left behind, should be so lucky—or really, it shouldn’t be so lucky as to have to go anywhere. But that’s the situation, again: the city is redeveloping the entirety of what it calls the Broadway Block—the coveted square of land bordered by Long Beach Boulevard, Elm Avenue, Third Street, and Broadway—and this time, it’s serious.

The process is well past the early planning stages and into the, well, the middle planning stages. (It really does take a lot of planning.) The city has chosen a developer, Portland-based Williams & Dame Development. The Long Beach Redevelopment Agency is buying up buildings on the Broadway Block. And the businesses in them are moving out or making plans.

Terry’s Camera was next door to Acres, until owner Maurice Greeson sold out in November—again. (It was, he said, the third time the city paid him to git.) 1-Stop Furniture was on the other side of Acres until this spring, when it wasn’t. Eminent-domain proceedings are underway against Jack’s Liquor and against Rita Michener—who inherited her parents’ building at Third Street and Elm Avenue, the former home of their business, Jensen Stamps.

That leaves only Acres of Books, a Long Beach historical landmark since 1990, in the way. Again.


PHOTO by RUSS ROCA

“How many acres is this place?” comes the inevitable question from a sharply-dressed man in his late 30s or early 40s. The clerk adding up his purchases doesn’t give it a second thought: “It’s about 750,000 books and about six-and-a-half miles of shelves.” He knows this by rote because Acres of Books has been a legend since before some of us were born—but also because he has to.

Since at least 1982, when the city began ogling this one-story brick barn and seeing an office tower in its place, the clerks, the owners, and the legions of customers who trekked across the world to visit the land of readers have all searched their souls to find that one redeeming trait which might save their love from the wrecking ball. That they’ve staved off the bulldozers for a quarter-century speaks to their grit, ingenuity, and determination—but also to the subject at hand. They’ve had a lot to work with.

The Acres of Books we have in Long Beach today—housed in a swoopy Streamline Moderne storefront that has been variously a market, an early Glenn Thomas used-car lot, and Murray and Millie’s Western Corral—is really the second Acres of Books. The first was five stories of words in Cincinnati, one of the largest used bookstores in the world—from whence came Bertrand Smith in 1933. It’s said a fight with his wife precipitated his relocation.

One year later, Smith opened the first Long Beach Acres of Books, at 140 Pacific Avenue, buying out three other local booksellers—Frederick C. Petet’s, Leon A. Wylie’s, and the Long Beach Book Exchange—in the process. And there he stayed, down the street from the old City Hall until 1960, when the city needed his store for a parking lot.

Smith responded by buying the building at 240 Long Beach Boulevard for $70,000. He spent the next two years packing the books in old fruit crates, then driving those crates to the new store. He paid for two stores every month until he was done moving. Many books for sale at Acres today are still shelved in those fruit crates—a fact which has given generations of city inspectors food for thought—and if she ever has to re-install the books in a place with real bookstore shelves, Jackie Smith plans to sell the crates individually. Like so much else here, some of these packing-house labels are now highly collectible. But for her, that’s a worst-case scenario.

“They told us we had to move in 1986 and we even prepared for it, and it never happened. That was when they built that first fiasco,” Smith says, meaning Long Beach Plaza. “My father-in-law was in charge then. But the economy went down, and I think that was why they didn’t build it. I hope the economy doesn’t go down, but I hope we get to stay. It’s my dream [to run a book store]. It always has been.”


PHOTO by RUSS ROCA

The city has a dream, too—has always had one, since its land started sinking and the fortunes of the Nu-Pike Amusement Park went sour—but that dream changes with the times.

In 1982, the earliest date city archives mention erasing Acres of Books from Long Beach Boulevard, the city’s dream was to let the Urban Pacific Development Corporation build a $90 million, “double” 15-story office complex on that block “with 92 townhomes.”

Pacific Development never broke ground there, but its vision survived long enough to be recorded in 1990 in a revised script for a Simmons Cable access program about “previous, as well as current threats to the Cultural Heritage of Long Beach.” The city keeps a copy of that script in its archives. The program aired in the spring of 1990, and that winter Acres of Books became a historical landmark, against the objections of the Press-Telegram and then-Redevelopment Agency Director Susan Shick.

“To say that [Acres of Books] provides some indispensable service is dubious,” the Press-Telegram opined in a July 1990 editorial. “True, it is a repository, but it is a repository of value and dreck alike. The store is the city’s largest literary attic.”

The newspaper and the Redevelopment Agency were somewhat in agreement there.

“My point has always been that if the goal of the community is to preserve Acres of Books, you’re not going to do it by preserving the building,” Shick told the Los Angeles Times on Jan. 14, 1990—having worried in December 1989 to the Downtown Gazette that “[Acres of Books] could fold or change hands, possibly becoming a ‘dirty bookstore,’ but would still be protected by the same landmark status. . . .”

The notion that after 29 years—or now, after 47 years—a historic business is not somehow linked to its historic building is one that we’ll revisit later. But in 1982—perhaps even in 1990—office towers were a new and exciting alternative.

“Years ago, the idea was to create a Third Street Promenade,” says the city’s Redevelopment Bureau Manager Craig Beck. (The Third Street Promenade was spearheaded by none other than Long Beach’s current Planning Director Suzanne Frick, then of Santa Monica.) “We really focused on how you transition the downtown, and in the ’80s it was office towers,” Beck says. “But that was daytime business, and in the long run we found that wasn’t keeping the downtown restaurants going.”

Today, the engine for keeping downtown restaurants going is mixed-use: a blend of residential, retail, and miscellaneous that sounds like a slightly more sophisticated variation on what Urban Pacific had planned 25 years ago—except for those office towers. This time, the city plans to turn the Broadway Block into a condominium complex not unlike the ones it has on Ocean Boulevard, or below Ocean Boulevard—one which could ultimately contain as many as 450 housing units.

Tellingly, it is also known in some circles as the Art Exchange. The idea is that along with such niceties as underground parking and ground-floor retail, there’d be art—the exciting X-factor in this development. It could be art galleries, live-work studios, or a shiny new satellite home for the Cal State Long Beach University Art Museum. As with many other aspects of the development—like the eventual style of its architecture—it’s too early to say for sure what kind of art it will have.

The city’s model for the Art Exchange, however, is none other than Santa Ana, where the redeveloped downtown is home to Grand Central Art Center, a satellite of Cal State Fullerton with real, live artists’ studios and a nationally-regarded museum famed for showcasing (gulp!) low-brow art.

“We see this truly as an opportunity,” says Long Beach Redevelopment Agency Director Patrick West, the former city manager of Paramount credited with turning that city around. “Acres could end up staying, not changing at all. It will depend on the community input.”

This is somewhat true: despite hosting a town hall meeting on the subject last year, picking a developer for the Broadway Block, and beginning to buy up surrounding properties, the city has not yet determined Acres of Books’s future.

But that’s not merely some largesse on its part; it’s also because the city’s offer on the bookstore was rebuffed in November. That forced city lawyers into negotiations with Acres’s lawyer, Joe Dzida (of eminent-domain heavy-hitters Sullivan, Workman & Dee in Los Angeles). Dzida declined to discuss the case with The District.

Meanwhile, the Redevelopment Agency has entered into an exclusive negotiating agreement with Williams & Dame Development, perhaps best-known for its work in Portland’s Pearl District, where an abandoned 34-acre railroad yard was turned into a mixed-used neighborhood of more than 5,000 residential units. The company is currently working on South Park, a series of three condominium/retail towers in downtown Los Angeles it hypes online with a nighttime Starbucks scene ripped straight from Edward Hopper’s Nighthawks. The gritty city: it’s a project not unlike what we might see in Long Beach.

“Our current design calls for some public plaza space, with some building space that’s designed for . . . a finer arts concept,” says Jim Atkins, a principal with the development company. “Frankly, I think the thing that will help make downtown Long Beach better is more residents. That will be a benefit for retail. That was the case in LA.”

But Atkins says the sprawling, 13,000-square-foot Acres of Books would cramp Williams & Dame’s drawing hand and make it difficult to design things like underground parking.

“We’ve talked about the challenge of saving the entire building, and we’ve talked about the possibility of saving the attractive art-deco facade,” Atkins says. “If we save the facade of the building—particularly if we’re able to relocate that facade—it gives us the opportunity to use that facade in the project in a different way.”


PHOTO by RUSS ROCA

But how is that possible? As a historic landmark, doesn’t all of Acres of Books have undeniable historic value—from its rear double-doors to the lines striped on the asphalt flooring of its fiction room (when it was still a Glenn Thomas car lot) to the stagecoach painting from when it was a dance hall?

Yes and no, says the city’s Historic Preservation Officer, Jan Ostashay. “From an architectural perspective, it does [have value], but it’s only the facade,” she says.
Like other California cities, Long Beach uses state historic preservation guidelines to determine what’s historic—and in situations such as this, officials make a list of the most historic elements of a historic landmark.

“In prioritizing what elements are most historical, you make a list starting with the most historical,” Ostashay says. “So if there was an adaptive reuse, you would start with the facade. First you have to do the prioritizing, and then you figure out what to do with the building. Most of the time, the interior’s not part of the plan.”

This is one of those times. Or, at least, it could be. Remember, the bookstore hasn’t been sold; the developer hasn’t said positively that the building has to go, and the city hasn’t rendered a final decision on the property.

Here’s how it works: each Long Beach historic landmark has certain unique design elements that make it historic. And when a building is declared a historic landmark, the city writes an ordinance protecting it—so those design elements will (everyone hopes) never be altered.

The catch is that sometimes, as with Acres of Books, the people who write the ordinance don’t like the same things you do—and so they may not mention those double-doors at the back, or the stagecoach painting, or even the wall sign painted on the outside of the north wall. They mention what they like and what they consider historic. So the city’s Acres of Books ordinance only categorizes the building’s facade as historic. If the city succeeds in buying the building, Ostashay says protecting it wouldn’t just be her responsibility.

“Ultimately, the Cultural Heritage Commission is going to make the decision,” Ostashay says, referring to the body of local citizens that meets monthly to debate life’s enduring questions, such as whether vinyl windows are appropriate in Craftsman-era homes near historic districts. (The answer is: sometimes.)

Layne Johnson, the chair of the Cultural Heritage Commission and who lives in the city’s historic 1932 Minnie Butler house, says, “It’s going to be interesting. There’s basically the ordinance itself, and the Cultural Heritage Commission’s purview is really limited to what that ordinance deals with.”

Long Beach Historical Society Director Julie Bartolotto also sits on the Commission. She says the Redevelopment Agency will have to come to the Commission for a permit if it wants to demolish Acres of Books.

“It’s really hard to guess,” she says, “but I would think that people are not going to be likely to grant a demolition permit.” In which case, Bartolotto adds, the RDA can go over their heads to the city council.

The council would uphold the Cultural Heritage Commission’s decision, wouldn’t it? After all, Second District Councilwoman Suja Lowenthal has a certain appreciation for Long Beach history; she was in the crowd on re-opening day when the nation’s oldest tattoo parlor, Bert Grimm’s World Famous Tattoo, became Outer Limits. Doesn’t she?

“You know, and you may want to fact-check me on that, I don’t believe the building is a historic landmark. I believe it is just the business,” Lowenthal says. Informed that the Acres of Books is a historic landmark, she says: “I think there’s an opportunity for the city to progress without it being at the expense of the business of Acres of Books. The core value is the business itself. I’m okay with the concept that the business itself is separate from the building.”

That’s exactly what Redevelopment Agency Director Susan Shick said 17 years ago in 1990—less than a year before the city named Acres of Books the building a historic landmark. (The ordinance shows that the city already recognized the value of the bookseller’s business to Long Beach—in 1990, 31 years after Bertrand Smith donated 250 rare first editions to the Long Beach Public Library, along with a $20,000 grant to buy more.)

“What I don’t want to see is a facade-ectomy,” Lowenthal continues. “I’ve seen it in planning journals. It’s [a term] that we use where you have a historic building and [only] the facade is saved.”

Informed that the facade is really the only part of Acres of Books specifically mentioned in the ordinance protecting it, Lowenthal does an about-face: “Well, if that’s the case, then I don’t mind that.”

Should this surprise us? After all, historic preservation is a new business—and in Long Beach, tearing down interesting buildings is an old business. Here, even Mother Nature is in the redevelopment business, and in the 1933 Long Beach Earthquake she gave half the houses in the city extreme home makeovers. Long Beach Polytechnic High School got one, too—and so did Acres of Books, whose storied Streamline Moderne facade was added to make up for quake damage.

“The city has been doing that for 30 years all over Long Beach. We represented the people who owned the Pike, the Long Beach Amusement Company,” says Charlie Cummings, a partner in Sullivan, Workman & Dee, which represents Jensen Stamps heir Rita Michener in her eminent-domain tussle with the city. “See, that’s the very nature of redevelopment: if you do a big project, you’re going to displace some smaller businesses that could be very successful—and all things being equal could continue to be very successful.

“They’ve done some good things down in Long Beach, but it’s always a question of discretion,” Cummings continues. “But judges don’t have discretion; it’s the [redevelopment] agencies and the council members who have the discretion. It depends on how they view their role, whether it’s just bringing in more dollars or maintaining some of the older and good things the cities have.”


PHOTO by RUSS ROCA

Acres of Books isn’t out of business yet. Like the Pantry, the famous historic 24-hour restaurant in Los Angeles, it may never close. The sagging real-estate market could stop the clock on this development as it has on so many others in Southern California.

But if the city does succeed in buying out her family’s bookstore, Jackie Smith wants relocation costs—somewhere around $250,000—and a new address as part of the deal. She may get them, or she may get a deal to move somewhere else and then move back to the Broadway Block when it’s completed some time in the next five or 10 years. That’s another possibility. (It’s also a lot of moving.)

But it’s hard to imagine how a new address and some money will adequately compensate anyone for the loss of a one-of-a-kind dusty barn of place, where for 47 years ordinary people like you and me—and some famous writers like science-fiction author Ray Bradbury—worshipped the printed word.

“Better get there while you can,” Bradbury wrote, warning of Acres’s impending demise. That was in 1982. But don’t fool yourself: a move wouldn’t be any easier on Acres of Books today.

“It won’t be this any more,” Smith says. “It’ll just be a bookstore with this name. It won’t smell the same.”

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source:

City says new law limits options to clean up crime hotspot: WVEC, Norfolk VA, 7/31/07

By Lindsey Roberts

Police say new homes in a Norfolk [VA] neighborhood are havens for crime, but the city’s hands are tied because of a new law.

Three people brutally beaten over the weekend brought attention to East Ocean View. Some residents have been calling their leaders, demanding that the city condemn several rundown apartment buildings neighbors believe house trouble-makers.

City leaders say their hands are tied.

“We are strapped now because in order to acquire them we are asked to pay way above market value, so the slum lords have us at their mercy and they are exercising it,” said Councilman Randy Wright. “We don't have the eminent domain we had previously."

In February the General Assembly changed eminent domain regulations. The idea is to protect home owners who take care of their property from being forced to sell their homes because others in the area have blighted homes.

Dora Bell has lived in the area for nearly 40 years and has dealt with the growing crime problem.

Her home has been hit with bullets and broken into in just the last few years.

"I don't go out at night by myself, so that's kind of bad when you can't do that,” Bell said.

A once crime ridden trailer park near Bell off of E. Little Creek Road is getting a face lift and being turned into affordable housing. By late next year the $14 million project will bring in 120 new apartments.

The revitalization effort in a crime hotspot is exactly what residents are demanding.

Councilman Wright says the city is still trying to figure out how to continue progress with the new law but says he's still determined to see change in East Ocean View.


WVEC, Norfolk VA: http://www.wvec.com

Judge scolds city over eminent domain: Cincinnati OH Enquirer, 7/30/07

By Steve Kemme

Cincinnati must pay $335,000 in attorney’s and witness fees to the owners of two fast-food restaurants in Clifton Heights who successfully challenged Cincinnati’s right to use eminent domain to take their properties.

That’s the ruling by Hamilton County Common Pleas Judge Ralph Winkler, whose written decision included a stern scolding of Cincinnati for the way it used eminent domain.

“The City of Cincinnati should in the future be very careful when it initiates eminent domain proceedings against private property owners,” he wrote. “In this case, the city lost taxpayers’ money to legal fees and expenses.”

He cited the Ohio Supreme Court’s landmark ruling last year in the Norwood eminent domain case.

In that decision against Norwood, the court said it’s unconstitutional for a government in Ohio to use eminent domain to take property from a private property owner to give to another private property owner.

In the Norwood case, Rookwood Partners wanted to build a $125 million office, condo and retail development called the Rookwood Exchange.

In Cincinnati’s case, the city tried to use eminent domain to seize the property of the owners of former Hardee’s and Arby’s restaurants for the proposed $270 million redevelopment along Calhoun Street in Clifton Heights.

A study of that redevelopment area commissioned by the city and the developer, the Clifton Heights Community Urban Redevelopment Corp., called many of the properties “blighted” or “deteriorating.”

All the property owners except the owners of the two restaurants, located side by side, agreed to sell to the developer.

In January, the Ohio First District Court of Appeals overturned a lower court ruling in the city’s favor. Cincinnati decided not to appeal that decision.

The owners of the former Hardee’s and Arby’s restaurants asked for more than $470,000 in attorneys’ and witness fees.

Cincinnati City Solicitor J. Rita McNeil said the city hasn’t decided whether to appeal this ruling.

Matthew W. Fellerhoff, the lawyer for the two property owners, said his clients also hadn’t decided whether to appeal.

“They’ve been injured far greater than the amount of money they applied for,” he said.

Fellerhoff said his clients have suffered from the loss of business and the loss of opportunities because of the lawsuit and the demolition of the buildings in the vicinity of the two former restaurant buildings.

He said his clients have talked with the Clifton Heights redevelopment group about selling their properties, but no agreements have been reached.

Matt Bourgeois, director of the Clifton Heights redevelopment group, said the areas around the two buildings could still be developed.

“It would have been ideal to complete the assemblage of property and have a consistent block,” he said. “But we have substantial land on either side of their properties that are very developable.”

He said his group is talking to several developers who are interested in the site.


Cincinnati OH Enquirer: http://news.enquirer.com

Farmers prepare for fight over old pipeline: Peoria IL Journal Star, 7/29/07

McLean County families want right to say 'no' to giving up land

By Matt Buedel

The old Kelley house - the one that saw generations of the McLean County farm family grow up and grow old, that didn't have running water until 1953 - is gone, replaced in 1970 by the brick two-story built right behind it.

About a half mile down county road East 1600 North but "right across the street," as the owner puts it, the Kings' original farmhouse, too, has disappeared. When their home was demolished by a tornado in 1982, the nearest neighbor of the Kelleys rebuilt their homestead as a tidy brick ranch.

Both homes on the eastern flank of Normal, just beyond the burgeoning subdivisions off Fort Jesse Road, stand in stark contrast to the encroaching development not simply because they overlook vast crop fields, but because the land on which they sit is relatively ancient. They are centennial farms, belonging to the Kings since the 1860s and the Kelleys since 1882.

And now, as those families see it, the properties and their way of life face a dire threat: a crude oil pipeline that would pump petroleum from the oil sands of Alberta, Canada - potentially the second-largest oil reserve in the world - and promises to alleviate U.S. dependence on Middle East energy supplies.The company proposing the line, Enbridge, already operates a vast network of pipelines stretching from Fort McMurray in Canada through Minnesota, Wisconsin, Michigan, Indiana, Illinois, Missouri, Kansas and Oklahoma.

The line through McLean County - about 130 land owners have property that the proposed pipeline route intersects - would be part of the company's "southern access program," an expansion from Superior, Wis., to Patoka.

Construction on the first stage, from Superior to Delavan, Wis., is under way. The second stage, from Delavan, Wis., to Flanagan, near Pontiac in Livingston County, has regulatory approval and is scheduled to start work next year.

Enbridge hopes work on the final segment, from Flanagan to Patoka, can begin at the same time, delivering crude extracted from sand and tar deposits in the Canadian wilderness to the Patoka hub for further distribution beginning in 2009.

"(The pipeline) diversifies the oil portfolio for the refiners," says Enbridge spokesman Joe Martucci. "If you look at the Midwest refiners, traditionally they have been reliant on domestic sources. . . . Those sources are diminishing. They have to look elsewhere for their oil supplies."

And that's fine with the Kings and the Kelleys, as long as they don't look to the land they've tended for their entire lives as the source. The Kelleys are spearheading a plan to fight Enbridge over eminent domain authority in front of the Illinois Commerce Commission, the only way they imagine they can keep Enbridge out of their soil.

"Being against eminent domain - that sounds like we'll sell out for a price, but we don't want (the pipeline) at all," Patty Kelley says. "We want to save the farm we have so much invested in since 1882."

Rosemary King concludes more succinctly: "I don't really want it. It will hurt the land."

Enbridge specifically wants a 60-foot easement where the 36-inch pipeline will traverse properties, with temporary 90- to 100-foot easements on either side of the main strip during construction.

The company will compensate land owners for crop loss while construction is in progress, and farmers can plant over the pipeline once it is operational. It will pump about 400,000 barrels of crude per day initially but can be doubled in daily capacity with more pumps on the route, if demand for the product in Patoka increases.

Enbridge currently is negotiating with the Illinois Department of Agriculture to devise an impact mitigation agreement that spells out the measures it must take before, during and after construction to ensure the viability of cropland.

It addresses specific issues like soil compaction due to construction, reimbursement to farmers for future crop disruption because of pipeline repairs and ground remediation in case of an oil spill. The agreement also spells out the steps Enbridge will take to repair field tile - typically clay pipes that use gravity to drain excess water from farm fields - if they are damaged by pipeline construction.

The Kelleys and Kings are skeptical of those claims after working with the drainage systems over the decades, knowing how hard it is to perfect them and how susceptible they are to disruption. The watershed also feeds Money Creek and, eventually, the Twin Cities' water supply, which they fear could be contaminated in the event of a major oil leak.

Enbridge's Martucci says those fears are overblown and that the pipeline would be designed within all the regulatory agencies' parameters, including a pipeline alignment that would limit potential impact on individual and community water supplies.

"The chances of any leak are very remote," he says. "In the unlikely event there is a leak, Enbridge has systems in place to contain it and, if necessary, to clean it and remediate it."

But those environmental concerns, despite the land owners' objections and Enbridge's assurances, will have less influence on the Illinois Commerce Commission's decision on whether to grant Enbridge eminent domain authority than the demonstrated public necessity of the pipeline.

Enbridge plans to file its petition for a pipeline certificate, a step preceding the request for eminent domain power, by month's end or the beginning of August, according to Martucci.

But he also says that the company will only use eminent domain as a last resort to completing easement acquisitions. Still, the company has not initiated any negotiations with property owners in McLean County, and Martucci doesn't know when that process will begin.

Martucci says that globally tight crude oil production, rising demand for petroleum products and the political instability in the world's dominant oil supply regions all are factors that back up the necessity of the pipeline for the common good and the right to eminent domain.

"I think if you have a more diversified and stable supply force, it would, over time, help (gas) prices on a downward trend," he says. "It benefits the public because the public uses the goods" derived from the oil.

Ten years ago, under different economic and political conditions, however, that argument failed when Lakehead, Enbridge's former name and the title under which some of its pipelines still operate, tried to obtain eminent domain in McHenry County for a pipeline to Chicago.

In 1996, Mark McCormick of Woodstock and his neighbors received notification that Lakehead had petitioned the ICC for eminent domain 10 days before the public hearing when they could contest the matter. He and his wife scrambled to find anything they could to delay the proceedings and further prepare.

"They had been studying this for years and tried to slam dunk us with 10 days' notice," McCormick says.

They cobbled together any information they could find about Lakehead's leaks and were granted a continuance - and time to build their case.

"Contrary to what they say, they have a lot of spills," McCormick says. "The land owner is incurring substantial risk."

Like other regulatory public hearings, those before the ICC aren't based on property owners' opposition to a project but on expert testimony from both sides proving public need. Lakehead's assertion was that the 24-inch pipeline to Chicago would reduce gas prices in the area.

The McCormicks and others who opposed the pipeline had a secret weapon in their fight. One of the land owners was Merton Miller, professor emeritus of the University of Chicago Graduate School of Business and a Nobel laureate in economics.

"We had the biggest gun - that's what saved us," McCormick says. "He was the case."

Gas prices, Miller calculated and testified to at the hearing, would not be affected by Lakehead's pipeline. The oil company's lawyers didn't cross examine. They lost the bid for eminent domain.

A year later, Lakehead built the pipeline anyway. But they had to negotiate with land owners, who had the right to decline a deal. Some refused. Some got rich, sold their property and moved.

"Here in McHenry County, the pipeline is very crooked to go around the people who wouldn't sell," says McCormick. "I doubt if Enbridge has a public need case now, but I won't say that they don't."

When it really comes down to it, folks like the Kelleys and the Kings just want the right to say "no" to Enbridge, to keep all the rights to the land on which they live to themselves.

The 80-acre King farm and 160-acre Kelley farm have been the family livelihoods for five generations. Both own farms elsewhere in the county, and both say that even if the pipeline was proposed for the properties they don't inhabit, they'd still oppose it.

Their successes and failures are tied to the land, to the uncontrollable forces that rule it. And they don't want another degree of unpredictability introduced, a pipeline they fear could temporarily change the land's yields or, in a worst-case scenario, cripple its fertility.

As the land has passed from generation to generation, yields have increased. Technology has made farming more productive and efficient and opened up new markets for their crops - the ethanol boom alone has been responsible for historically high corn prices.

Those trends seem likely to continue, and the Kings and Kelleys want to pass it on without the uncertainty of what a massive underground oil pipeline could bring another hundred years from now.

Patty Kelley's son-in-law and daughter, Scott and Margaret Clement, have taken over the heavy lifting at the Kelley farm, in addition to looking after their own nearby property. Margaret looks at her children, 7-year-old Sam and 1-year-old Sophia, when speculating about the future.

"There's been a lot of sleepless nights over someone coming in and saying they can do whatever they want with this ground," she says. "We want the next generation to have incentive to farm."


Peoria IL Journal Star: http://www.pjstar.com

8/16/2007

Essex County Judge removes two properties from Maplewood redevelopment area: New Jersey Eminent Domain Blog, 7/28/07

By William Ward

Yesterday Essex County [NJ] Superior Court Judge Donald Goldman vacated Maplewood’s blight declaration for two properties, one owned by Carolyn Evans and the other owned by Richard Rio of the Rivco Group LLC.

The case was an action in lieu of prerogative writs where the plaintiffs contested the inclusion of their properties in an “area in need of redevelopment” under the Local Redevelopment Housing Law (LRHL), N.J.S.A. 40a:12A-1 et seq. The plaintiffs argued that the action of the defendant township was arbitrary and capricious and not based on substantial, credible evidence as required by the law. Download the PDF opinion in Carolyn Evans and Rivco Group, LLC v. Township of Maplewood (L-6910-06).

The court relied heavily on the recent case of Gallenthin Realty v. Borough of Paulsboro, 191 NJ 344 (2007). The court rejected Maplewood’s argument that the suit was premature because no plan for redevelopment has been adopted and no condemnation was imminent. Maplewood’s argument is typical of the disingenuous blather presented to property owners who oppose a blight designation under the 45-day time constraints. Municipalities are cavalier but deliberate when they ignore the impact of a declaration of blight or area in need of redevelopment: that designation, left unchallenged, is the foundation for subsequent eminent domain action by the municipality. The court noted:
Maplewood and its Planning Board also oppose this lawsuit on grounds of ripeness and standing. They argue that the case is not ripe for review because no development plan is yet in place. Evans and Rivco respond that the designation of an area in need of redevelopment is binding and permanent, and therefore can be challenged by anyone subject to its effects. This Court finds that Evans and Rivco have standing to challenge the designation. Gallenthin is itself evidence that a designation as an area in need of redevelopment is justiciable and that an attack on it is not premature. However, other relief sought by Evans and Rivco will be denied because such relief is premature. No attempt at taking their property is planned or suggested. Moreover, even an erroneous designation as being part of an area in need of redevelopment would not immunize the Evans and Rivco properties from being acquired for a truly public use. (Slip Opinion at page 3.)

The municipal action by the Maplewood mayor and council was especially egregious in this case because they rejected the opinion of their own planning expert, Paul Phillips, of Phillips Price Shapiro of New York City. Instead, Maplewood relied on unsworn testimony and opinions from the township’s special redevelopment council, N. David Mildner, a consultant commissioned to prepare an economic development plan, who said during his testimony before the planning board:
Mr. Finn: Are you familiar with the redevelopment criteria under state law?

Mr. Mildner: Yes, I am familiar with it, but I am not an expert on it, sir.

Mr. Finn: Because I wanted to ask you if you could evaluate the site in the context of that redevelopment criteria. What you presented, as far as I could hear it, was more about how the site would be limited in terms of its redevelopment potential. But in terms of measuring or evaluating that site versus the redevelopment criteria, is there anything else you can add relative to that?

Mr. Mildner: I pride myself on something that I read while I was in college, and that is Socrates’ claim to be the smartest man in Greece for the reason that he acknowledged what he didn’t know. I try to emulate him, and so I do not consider myself to have the expertise of a professional planner, so I really would like to defer offering any opinion as to those criteria.

The planning board also accepted an unsworn summary from its chairman regarding conversations which he had with Peter Beronio and Mildner, including a memorandum from Beronio without any sworn testimony. The court ruled that this testimony was insufficient to prove blight by substantial, credible evidence. While not ruling on the sparse proofs presented to the planning board and relied on by the mayor and council, the court noted the following:
The parties argued at length, but this Court does not reach, the issue of whether comments, deliberations and “wrestling” with issues by the Planning Board or Committee, in the absence of expert opinion, sworn testimony or other substantial evidence that directly supported their decisions in this case, could have constituted substantial evidence in the record sufficient to validate the designation. The argument to the contrary appears to have some force. In the event Maplewood and its Planning Board seek to include the Evans or Rivco properties in a redevelopment area again, this Court urges them to spare themselves the frustration, and this Court the burden, of reasoning through this admittedly interesting issue, by taking care to firmly ground the deliberations in sworn testimony and other undeniably substantial evidence on the record. (Slip Opinion at page 7)

The court further recognized that Gallethin settled an aspect of the redevelopment law that must be upheld:
Although not reaching the substantial-evidence issue as briefed by the parties, this Court cautions Maplewood that the arguments about the lack of an adequate record have merit. The process followed in this case is uncomfortably close to what Gallenthin warned against:
Although issues of law are subject to de novo review, municipal redevelopment designations are entitled to deference provided that they are supported by substantial evidence on the record. The substantial evidence standard is not met if a municipality's decision is supported by only the net opinion of an expert….

In general, a municipality must establish a record that contains more than a bland recitation of applicable statutory criteria and a declaration that those criteria are met. Because a redevelopment designation carries serious implications for property owners, the net opinion of an expert is simply too slender a reed on which to rest that determination. Gallenthin, supra, 191 N.J. at 372-73. (emphasis added)

As noted above, the application of the substantial evidence standard to this case presents a number of interesting issues. Maplewood and its Planning Board are urged to avoid the expenditure of time and money involved in resolving those issues, by making sure future decisions are expressly based on substantial evidence that is undeniably in the record, sworn, and supported by expert opinion not susceptible to characterization either as net opinion (for example, unelaborated references to properties as “moribund” or lacking in “charm”), or as observations made outside the record.

To date, there have been seven significant decisions in New Jersey, circa-Gallethin, that focus on the determination of blight and the use of eminent domain under the LRHL. The decisions in Lodi, Bloomfield, Newark, Belmar, Camden and Maplewood demonstrate that the courts will not accept or give deference to municipal blight declarations which are not supported by substantial, credible evidence. The message is clear: the New Jersey courts are looking at these prerogative writs actions and expert testimonies through the lens of Gallenthin. As a consequence, municipalities that present evidence less than required by Gallenthin are subject to losing their blight designations and redevelopment projects.


New Jersey Eminent Domain Blog: http://www.njeminentdomain.com

Clash A-Brewin': Des Plaines IL Journal, 7/27/07

Pursuit Of Land Miffs Downtown Bar Owner;
Ordinance Gives Village Flexibility: Mayor

By Bobby Chilver

Without any discussion or hesitation, the Mt. Prospect [IL] Village Board quickly approved an ordinance Tuesday that would allow village officials to continue with the acquisition of property within the planned downtown entertainment triangle.

The village is now looking to acquire the property from 6 to 18 W. Busse Avenue. Those addresses are owned by Ye Old Town Inn restaurant owner Tod Curtis.

Curtis has proposed building a multi-use "Gateway Centre" on the site that would include restaurants and condominiums. The village has its own plans in mind, however, and officials have said the Gateway Centre does not seem viable.

"We have encouraged them to submit the plan but it was deficient in a multitude of ways," Mayor Irvana Wilks said.

The confrontation could create some fireworks in the coming months as both sides seem set on their own proposals.

Curtis and spokesman Frank Salato have taken offense to the village's attempts, saying they were originally told the village would not try to take over the property.

Curtis has been in business at the Busse Avenue location for close to 40 years now and said he sees no reason for someone else to profit from his property.

"After almost four decades of paying taxes, being law abiding, contributing to the community and working hard so my children and grandchildren can have more promising futures, the only rewards Mayor Wilks and the trustees feel I deserve is to consider taking a course of action that, if successful, will eventually profit someone other than myself or my family and will essentially steal the fruits of my labor from me and my family," Curtis said in a written statement sent to the Journal.

Mayor Wilks said, however, that she has had conversations with Curtis and his attorney, Richard Valentino, in which he indicated he would like to be bought out, but for a higher price than what the village is willing to pay.

"We've come the realization that he really wants us to buy him," Wilks said. "He wants us to make him a multi-millionaire."

She said Curtis had asked for a price around $3.5 million, which the village believes is too high.

Wilks said the village had an appraiser value the land in January. The village then sent a proposal to Curtis with that price on it.

Salato said Curtis' attorney, Valentino, did receive a letter from the village this January regarding possible purchase of the property, however, the property wasn't even for sale so the request was dismissed.

Tuesday's ordinance authorizes the village to use eminent domain, or condemnation, to acquire the property along Busse Avenue.

"It is becoming quite apparent Mayor Wilks has no qualms about using 'strong arm government tactics' to dismiss the hard work of others, jeopardize livelihoods, quash dreams and minimize a family's future," Salato said of the possibility of eminent domain.

Wilks, however, said the ordinance merely gives the village flexibility. Should the village apply for eminent domain, Curtis would be reimbursed the estimated value of the property based on a third party's appraisal.

"It allows for an unbiased entity to provide the fair price," Wilks said.


Des Plaines IL Journal: http://www.journal-topics.com

County to proceed with eminent domain for water project: Saratoga NY Saratogian, 7/27/07

By Jim Kinney

Saratoga County has started eminent domain proceedings aimed at seizing right-of-way for its $67 million water project from reluctant property owners.

The Saratoga County Water Authority voted Thursday to hold a public hearing, an early step in the eminent domain process, at 7 p.m. Monday Aug. 20 at Wilton Town Hall on Traver Road.

"We respect these people's property rights," Authority chairman and Waterford Town Supervisor John Lawler said. "But at the end of the day they have to realize that their property will be used for this project. It is for the public good."
Mark Schachner, the authority's attorney for eminent-domain matters, said the county can still negotiate with property owners after starting the process. The county hired Schachner, of the firm Miller, Mannix, Schachner & Hafner in Glens Falls, Thursday.

As of Thursday, the Saratoga County Water Authority had seven property owners who have outright refused the county's overtures at purchasing easements across their land for the pipeline, said Wes Carr, a Water Authority staff member. Another 14 property owners haven't responded to letters and phone calls from the county, six of those are businesses.

In contrast, 67 property owners have already signed deals with the county and another 19 are expected to sign shortly. Five property owners are getting their own appraisals done to find the value of the easements the county wants to buy from them.

County Attorney Mark Rider has said that the county doesn't need to buy land outright, only permanent easements allowing it to run pipes under the ground and have access for repairs. In some places, the county only needs a temporary easement for access during construction.

That's the case on Eastman Lane, a short jughandle road on Route 29 in Saratoga Springs near the railroad yard. Carr said seven property owners there have yet to agree to give the county access.

Milton Supervisor Frank Thompson said he plans to meet with residents there even though it's not in his town, as he knows many of them. He said it'll take one-on-one meetings for the Authority to avoid litigation but the Water Authority hasn't helped itself.

He told of one property owner, an 83-year-old woman, who had come to him after getting letters from the county. He said he'd explained the process to her and almost had her ready to agree when contractors on the job came on her property without permission, and without an easement, and removed trees.

"They called her and offered to walk the property with her," Thompson said. "You're not going to get an 83-year-old woman to go tromping around the woods."

Workers have already begun site work on the project, mostly for the treatment plant in Moreau. The Authority also rented office space in Ballston Spa and members discussed hiring an executive director.

Construction should take 1-1/2 to two years, putting it in line with AMD's planned timetable. The county plans to build a treatment plant and water intake on the upper Hudson River in Moreau then pipe the water south along Route 9 to Luther Forest, the proposed site of an Advanced Micro Devices computer chip plant.


Saratoga NY Saratogian: http://www.saratogian.com

City granted control of A.B. Fall Mansion: KVIA-TV7, El Paso TX, 7/27/07

The city [of El Paso TX] has finally gained control of the A.B. Fall Mansion through eminent domain on Thursday.

For over a year, the city has been trying to take over the historical mansion to keep it from falling deeper into disrepair.

The mansion, located at 1725 Arizona, has been owned by the Abraham family for over 20 years. The city set aside over $630,000 dollars to pay the Abraham family in return for taking over the mansion.

Earlier this year, an independent judge assigned a three-member commission to determine the value of the property.

Billy Abraham, the owner of the property, tells ABC-7 he disagrees with the ruling and will not accept the money. He stated he has restored the property throughout the years and is planning to continue to fight the city against the use of eminent domain.

City officials tell ABC-7 they are not pursuing any other properties through the use of eminent domain. The Abraham family owns several properties downtown. City Representative Beto O' Rourke said the buy-out of the property was meant as a strong message to Abraham.

"He can say that we don't have a right... the city can say we do have a right and an independent Judge found we do have a right... that's why we've taken possession of the property... demolition by neglect," said O' Rourke in regards to Abraham's handling of the property.

O'rourke said the city is trying to determine the structural damage and estimates for the property because he would like for it to serve some sort of public purpose.


KVIA-TV7, El Paso TX: http://www.kvia.com

Geneva still wants gun club land: Ashtabula OH Star Beacon, 7/27/07

By Margie Trax Page

Geneva [OH] City Council is plowing ahead with eminent domain proceedings for the Ohio Rubber Co. Sportsman's Association's gun club and will attend a hearing on the case Monday.

"We are moving ahead, though progress seems slow," City Manager Jim Pearson said.

The city filed for seizure of the rubber company's 40 acres last year.

Last week, Common Pleas Judge Ronald Vettel denied the claim to the easement, saying the city, county and township does not have the right to use the privately owned Romeo Road.

The motion was filed by the city with Geneva Township and the Ashtabula County commissioners for a public highway easement from Route 20 across the gun club's property. That easement is Romeo Road, which the city, county and township have used for at least 20 years, the judgment reads.

The loss of the easement won't deter City Council from seeking Ohio Rubber's 40 acres, Pearson said.

Though Ohio Rubber board members and City Council have had limited negotiations over the property, Ohio Rubber officials have said they are not against selling the property, but feel the appraised price is a fair price.

"The property was appraised at $660,000. The city offered ORCO first $98,000 and then after mediation offered $280,000 for the land, still way below the appraisal price," ORCO attorney Robert Cahill said. "It is clear we are very far apart in negotiations," he said.

Pearson said the city has not offered $280,000, but set a price goal for the Ohio Rubber property at $2,000 per acre for 40-plus acres, including an indoor shooting range. Ohio Rubber rejected the offer and the city filed for eminent-domain proceedings.

Council has long had its eye on Ohio Rubber's land, which adjoins a proposed community park along Romeo Road, and filed an eminent domain lawsuit for the property last year.

The proposed 100-acre community park cannot move forward without the purchase, or acquisition by eminent domain, of the 40-acre outdoor shooting range. Council determined the club's outdoor shooting range, in the middle of the property, would deter families from using the nearby park.

The proposed park would include a soccer field, football field, six baseball fields, a playground, swimming pool, community center, exercise trail, cross-country skiing, an obstacle course, bicycle track, walking track, track and field area, nature classroom, dog run, rollerblade park and an outdoor water park.

Pearson said council hasn't set a deadline or time frame for park development.

"If it were up to use we would have loved to have this resolved a year ago. All this waiting and we could have been building ball fields," he said.


Ashtabula OH Star Beacon: http://www.starbeacon.com

Cramer Hill eminent domain case reversed and remanded to trial court: New Jersey Eminent Domain Blog, 7/27/07

By Bill Ward

In a reported case, Cramer Hill Residents Association v. Primas , brought by the South Jersey Legal Services involving the Cramer Hill Neighborhood of Camden, the Appellate Division unanimously reversed the trial court regarding Camden’s attempt to use eminent domain to acquire several parcels of land under the Fair Housing Act, N.J.S.A. 52:27D-325.

Camden sought to use this act rather than the Local Redevelopment Housing Law (LRHL) after the trial court threw out Camden’s redevelopment plan. The Courier Post reported that the city decided to redo the Cramer Hill redevelopment plan prior to the court’s ruling on July 17.

The basis for the city’s eminent domain action was that the acquisitions would increase the number of affordable housing units in Camden. In reversing the trial court, the Appellate Division agreed with plaintiffs that a hearing was required at the trial level to establish that the proposed acquisitions would in fact increase the number of afford housing units. The court noted:
We are nevertheless compelled to remand this matter for the trial court to conduct a fact-finding hearing to determine if the ordinance passed under N.J.S.A. 52:27D-325 will assist the City in meeting its fair share housing obligation under the FHA. Stated differently, the trial court must determine whether the proposed land acquisition plan authorized by the ordinance actually increases the number of affordable housing units in the City.

In going about this task, the trial court should be guided by the overarching public policy supporting the City's authority to take private property by eminent domain under N.J.S.A. 52:27D-325: the exercise of the power of eminent domain granted to municipalities under section 325 is expressly predicated upon a finding that the proposed land acquisition is "necessary or useful for the construction or rehabilitation of low or moderate income housing." Ibid. Absent such a finding, the City lacks the legal authority to proceed under N.J.S.A. 52:27D-325 (Slip Opinion, page 7)


The Court accepted the plaintiffs’ description the Cramer Hill neighborhood:
Cramer Hill is a neighborhood . . . located approximately one mile northeast of the downtown area of the City of Camden. Cramer Hill is cohesive and stable, having experienced no population loss between 1990 and 2000, according to Census Bureau reports.

Cramer Hill is approximately 1.8 miles long and approximately 0.8 miles wide, running from the Cooper River on the southwest, northeast along the Back Channel of the Delaware River, north to the boundary of the City of Camden and the Township of Pennsauken, and southeast to a rail yard. Cramer Hill encompasses over one hundred sixty-two (162) city blocks containing nearly four thousand (4000) properties.

The buildings are variously constructed of wood, brick and stone. The residential area contains modest, mostly single and semidetached family homes. They are primarily of nineteenth century construction with many fine period structures which continue to be solid, comfortable urban dwellings. Many homes are well-maintained and have attractively landscaped yards and gardens.

Cramer Hill is the only neighborhood in Camden City with primarily R1-A low-density zoning, the most restrictive type of zoning provided for in Camden's zoning code. The zoning designation requires large residential lots of 3,000 square feet, with 15 foot yard setbacks, structures no higher than two stories, and a maximum density of 14.5 homes per acre, giving the community an almost suburban character.

Cramer Hill contains one hundred twenty-two (122) storefront and other businesses. There is a thriving aggregation of family owned businesses primarily clustered along River Avenue, but also spread throughout the neighborhood. The majority of these business owners and operators are Latino and African-American. There are also a number of light industrial and some heavy industrial uses, including a demolition and salvage operation and a dredging operation, all primarily located along the Back Channel, between the residential community and the Channel. There are also industrial uses associated with the rail yard.

Cramer Hill is home to several large urban parks and playgrounds, ball fields and a swimming pool, as well as public and parochial schools and numerous houses of
worship of many faiths. (Slip Opinion at pages 8-10)

The court did however reject plaintiffs' argument that an approval by the Council on Affordable Housing (COAH) was a necessary predicate to the invocation of eminent domain under the Fair Housing Act. The court reached this conclusion based on a lengthy analysis of the legislative history of the statute and applicable case law. (See Slip Opinion pages 11-18.)

In reaching its conclusion, the court noted and relied upon the N.J. Supreme Court’s recent decision in Gallenthin Realty v. Borough of Paulsboro. The court reiterated that a hearing is necessary, when dealing with statutory construction and the use of eminent domain, to determine whether there is a rational basis to sustain the municipal action authorizing the use of eminent domain, which in this case, with reference to the Fair Housing Act, is designed to provide low and moderate income housing to the municipality:
Here, we have a similar responsibility. The municipal action here is subject to the same judicial scrutiny the Supreme Court conducted in Gallenthin. Our function is to ensure that the constitutional mandate of the Mount Laurel doctrine is not undermined by municipal action that, although taken in its name, may fall wide of the mark of actually fulfilling its purpose.

The people entrust the government with the power of eminent domain, with the expectation that it will be used sparingly, and in furtherance of a public good. The court's function is to ensure that this power is used consistent with and in furtherance of a clearly defined public good. Here, that public good is the creation of low and moderate income housing. The ordinance at issue professes to respond to that public good; yet the City has not offered evidence that this is in fact the case.

To pass constitutional scrutiny, the municipal action taken under the authority of section 325 must be supported by a well-developed record from which a reviewing court can find a rational nexus between the exercise of the power of eminent domain, and an increase in the number of affordable housing units. The City's mere, unsupported assertion in the body of the ordinance, that its governing body has determined that the exercise of eminent domain here is "necessary or useful" is insufficient.

As the parties challenging the ordinance, plaintiffs carry the burden of proving that this legislation is arbitrary and capricious because it does not do what it claims to do. That is, the taking by eminent domain of the Cramer Hill lots identified in the ordinance is not "necessary or useful" to the construction of low and moderate income housing in the City. (Slip Opinion at pages 23-24)



New Jersey Eminent Domain Blog: http://www.njeminentdomain.com

Corporate Takings: The Weekly Standard, 7/26/07

Why retail giants love eminent domain

By Duncan Currie

IN NOVEMBER 2001, long before the Kelo ruling threw the floodlights on eminent domain abuse, Susan Watson sent a distressed letter to James D. Sinegal, the president and CEO of Costco. She owned several hundred shares in the retail giant -and, as she put it, had been "a loyal customer and ardent fan" for many years - but now feared the company "may be violating the rules of our free market economy" to swell its business.

"I recently learned that Costco has been or will be the beneficiary of at least four pending eminent domain actions, where private property was or may be condemned so that Costco could build or expand a warehouse," Watson wrote, ticking off examples in New York, Missouri, and California. "If Costco had benefited from eminent domain once, I might regard it as a lucky break. Twice would be a happy - albeit unlikely -coincidence. But the list is long, and it appears to be a strategy of Costco Wholesale Corporation to deprive others of their private property rights. To bully small business with the power of eminent domain is wrong." For that matter, she added, "among Costco's most valuable customers are small business owners."

Watson received a prompt reply from Joel Benoliel, a senior vice president at Costco and its chief legal officer. He robustly defended each of the four projects in question, assuring Watson that Costco "will not profit by violating the law, and like you, we firmly believe in the free market economy." The four cases were not anomalies, and Benoliel didn't pretend they were.

"In truth," he wrote, "there are probably dozens of other Costco projects where eminent domain or the threat of it has been involved in acquiring land for redevelopment. In some states, the constitution or laws prohibit this from happening. But, in places like California, Redevelopment Districts with bonding authority and powers of condemnation have been the norm for many decades. Much of urban America has been built using this tool. We don't see any legal or moral wrong in this. The fact is, if we refrained from participating in these deals, our competitors for these sites like Target, Home Depot, K-Mart, Wal-Mart, BJ's, Sam's Club, and many others would take advantage of our reticence, and our shareholders would be the losers. In short, we are not violating laws or any rules of the free market economy. We would be doing exactly that if we refused to participate in these deals when they are offered, while other retailers continued to do so."

However self-serving his argument, Benoliel was correct that eschewing eminent domain would hamstring Costco in relation to its fellow retailers. Such corporate behemoths had long benefited from "economic development" takings, often at the expense of smaller proprietors and homeowners. Keeping up with the competition also meant keeping up with ever-evolving definitions of "public use."

"Desperate for tax revenue, cities and towns across the country now routinely take property from unwilling sellers to make way for big-box retailers," the Wall Street Journal reported in December 2004. "Condemnation cases aren't tracked nationally, but even retailers themselves acknowledge that the explosive growth of the format in the 1990s and torrid competition for land has increasingly pushed them into increasingly problematic areas - including sites owned by other people."

The controversial 2005 Kelo decision, whose second anniversary passed last month, affirmed that economic development was a constitutionally valid "public purpose" to justify seizing land via eminent domain. But it also sparked a nationwide backlash to tighten the boundaries of eminent domain and curb some of the worst abuses. More than 40 states have amended their laws, though some of the reforms have been toothless. The ongoing debate has confirmed that, despite its reputation, the business lobby is hardly a consistent champion of small-government economic policies.

Indeed, state and local Chambers of Commerce have been notably resistant to the tide of post-Kelo legislation. In Oklahoma, for example, the state Chamber, the Greater Oklahoma City Chamber, the Oklahoma Association of Business and Industry, and the Oklahoma Professional Economic Development Council all urged the state Supreme Court to reject an eminent domain reform initiative. The business lobby fears that many redevelopment schemes could not move forward without the exercise, or at least the credible threat, of eminent domain by city governments.

In that sense, Benoliel was wrong about Costco's adherence to free-market principles. Eminent domain only becomes necessary when market forces are insufficient to compel the sale of property. A true market-driven project would not depend so heavily on government largesse. For that matter, when cities play such a large financial role in acquiring the property, developers have less of a stake in seeing their original projects through to fruition. As Institute for Justice lawyer Dana Berliner observed in a 2003 report on eminent domain abuse, "One of the problems with corporate welfare projects supported by the government is that developers are not as committed to the plans as when they have invested their own money."

It is no coincidence that the states where economic development takings are most rampant - such as New York, New Jersey, and California - tend to be littered with densely packed population clusters. Between zoning parameters and the stubborn space crunch, it can be tricky to plunk down a new megastore in such areas. Building a new Home Depot or Target outlet in, say, the North Jersey suburbs often means razing existing homes and businesses. Most retail powerhouses have relied on municipal condemnation powers as a last resort, when negotiations with property owners have failed. Yet few have done so as frequently as Costco. (The 2004 Wall Street Journal article noted that Costco was "the most outspoken of the big retailers in defense of the practice.")

Consider just one example, cited by Watson in her 2001 letter to the Costco CEO. When a Costco store in Lancaster, California, began agitating to expand its warehouse onto land occupied by 99 Cents Only, a smaller retailer, and then threatened to vacate the city if its wishes weren't granted, Lancaster officials chose to use eminent domain to force 99 Cents Only off the property. "It would be derelict and irresponsible to be faced with the loss of Costco and do nothing," Lancaster redevelopment director Stafford Parker told the Los Angeles Times in June 2000. "There would be a loss of jobs, additional business closure, and a substantial loss of sales tax."

In response, 99 Cents Only sued to prevent the condemnation; and, in June 2001, a federal district court ruled in their favor, claiming that Lancaster acted unconstitutionally in order to "appease Costco." As Berliner put it in her 2003 report, the condemnation had been "for the benefit of one of two rival discount stores" - a stunning blend of corporate welfare and corporate favoritism.

More recently, the village of Arlington Heights, Illinois, condemned properties in its International Plaza shopping center to make way for a Target superstore. In May, after local business owners and their allies waged a lengthy public campaign to prevent the bulldozing and reverse the "blight" designation, the village board scrapped its contract with Target, claiming it was a mutual decision. (Village officials did say, however, that they would be seeking alternative development plans for the site.)

Especially since Kelo, eminent domain has tended to produce quirky political bedfellows. (How often does left-wing firebrand Maxine Waters find common cause with right-wing Republicans?) When one considers the benefits reaped by big-box retailers, and the consequences borne by small businesses and the less privileged, it's easy to see why many anti-corporate populists and liberal Democrats have echoed conservative calls for reform.


The Weekly Standard: http://www.weeklystandard.com

Solbergs - Measure violates court order: Bridgewater NJ Courier-News, 07/26/07

Airport owners sue Readington over recent ordinance

By Brandon Lausch

The recent ordinance establishing a Solberg-Hunterdon Air Safety and Historic Airport District is a "blatant effort" by Readington officials to circumvent current court orders and press forward with an alternative plan to condemn the general-aviation airport if the township's pending eminent domain action fails, according to a lawsuit filed by the airport.

In the lawsuit, filed July 19 in state Superior Court, Solberg Aviation Co. contends the ordinance - adopted by the Township Committee last month - claims to bring Readington into compliance with the 1983 state Air Safety and Zoning Act.

But it "instead comprises a further extension of Readington's long-term efforts to constrain the use and operation of the airport and, together with its companion action - the eminent-domain proceeding - to reduce the current and future size and scope of the airport property, and the operations thereon in such a manner as in all probability to ultimately destroy the airport as a viable operation," the suit states.

Mayor Gerard Shamey said Wednesday he is "insulted" the Solbergs would argue the overlay zone is an effort to wipe out the airport.

"Nothing could be further from the truth," Shamey said, emphasizing development incentives included in the ordinance that provide for an airport museum, "historic design" projects and limited hangar expansion.

"We're trying to assist the Solbergs in continued viability of the airport," he said.

Township officials have said the ordinance complies with both the letter and the spirit of the 1983 act, which authorized municipalities to designate airport-safety zones, regulate land uses within those zones and govern development in and around public airports.

But the lawsuit counters that Readington has deliberately refused to comply with the act for two decades.

"The 700-plus acres of property upon which Solberg Airport operates is not currently zoned by Readington for airport use, and therefore Readington is and has been out of compliance for over 20 years," the suit states.

Following a successful $22 million bond referendum in May 2006, township officials offered the Solberg family $21.7 million for the development rights to the 102-acre airport and the 625 acres of land surrounding the facility.

When the airport's three sibling co-owners did not accept, Readington filed an eminent-domain suit, claiming the legal action was necessary to preserve open space.

The state Superior Court judge presiding over the case has extended the pretrial evidence gathering process known as discovery until the end of August, nearly a year after attorneys first presented oral arguments.

The judge has said the additional time was needed to determine "whether Readington's true motivation is the preservation of open space or if there is an ulterior motive for the proposed taking."

In the lawsuit, the Solberg family's lawyer, Laurence Orloff, argues the ordinance "expressly 'presumes' that Solberg Airport only consists of the 100+ acres shown on that map and that the attempted taking by eminent domain was proper."

Claiming the overlay zone is "arbitrary and unreasonable" and that Readington "exceeded the scope of its authority," the Solbergs argue the ordinance constitutes an unlawful taking of the airport's property. The lawsuit requests a judge to void the ordinance.

Township counsel James Rhatican, who is representing Readington in the pending eminent-domain suit, called the Solbergs' claims "frivolous" when Rhatican was read portions of the lawsuit.

Although Rhatican said he had not reviewed the suit, he said Readington's right to create ordinances and its power to utilize eminent domain are independent of each other.

"Related, yes," Rhatican said. "But independent."


Bridgewater NJ Courier-News: http://www.c-n.com