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Eminent Domain and Brownfields: What the future holds.

In Uncategorized on June 19, 2012 at 1:02 AM

I just watched the local channel 9 news and saw a bureaucracy run amuck! I just saw Cleveland Mayor Tom Rowland threaten federal or other charges against the citizens of Cleveland and Bradley County for someone informing the community via “flyers” for exercising their right to inform the people of the governments plans for their future.

He also asked that if anyone happens to know who is passing out these “flyers” to notify the police! Wow! I thought we were a few years from being a police state, but I think it is now upon us!

The Mayor of Cleveland asking all citizens to report those informing the community of his plans via Brownfield redevelopment using TIF and eminent domain as a tool of implementation is such a disservice to our community!

Obviously those reporting on this act of tyranny and those in our local government do not know what brownfield Development is or what implications it has on our community. Eminent domain is a frequently used tool of brownfield development often purchasing the people’s property at fair market value then reselling it to developers for a huge profit thus increasing property value thus increasing their property tax that makes it’s way into our budgets every year. Redevelopment is done this way! Our Mayor cannot do all he wants to do downtown without someone losing their property. A huge Tom Rowland Convention center cannot be without someone losing their property.

Many within the machine will argue with you that if someone wants to sell their property then that is their prerogative, I agree! The part that makes my blood boil is that person that was living in that house last year would still be there if not for the Mayors lofty plans to “save the city!” with his tyrannical government.

Assume that same person refuses to sell their property and wants to hang onto it as the mayor suggests they have a right to do. That person will face new land use regs, zoning regs, huge property tax rate increases and God knows whatever else them and the EPA wants to place on them. You did know that brownfield development is a direct project of the EPA, never mind, guess that small fact is being left out of the equation and will require further education to our elected bodies on a different day.

But that person, perhaps of limited income would have great difficulty paying for this newly appraised property and would perhaps lose their property anyway! A vicious circle has started and the fittest and wealthiest survive. This is the plan that the mayor forgets to unveil while wanting to charge you with federal charges!

Often when our elected leaders make decisions that will affect many negatively, they frown upon those civilians that stand against the tyrannical government that is trying to impose these dastardly deeds upon it’s contingent base. Often times it only takes a simple google search to find out what they are up to and they may not even know the content of what they are proposing.

When the public has to inform our elected leaders of the decisions they are making then we are in trouble. At this point and it has been proven time and again, any attempt by a citizen to explain their side, the bureaucrat steps up to the plate and calls it a lie or a conspiracy! This is the simple thing to do and it works in the short time but with time it often doesn’t hold water and the elected official offering his or her version of free spin often looks like the devil incarnate holding a pitch fork that is frequently buried within a citizens chest, sweat on the brow of the bureaucrat holding the forked instrument and shouting “its a lie.”

What is illegal about putting information out to the public. Let’s just assume that it is off base, which I’m pretty sure it is not because it is sitting squarely on the mayors phrenic nerve or he would not be reacting so strongly.

There is nothing illegal about passing information out in public regardless of it’s harmless content. What TCA code is anyone violating? What code or regulation is being broken? What grounds does a sworn officer, upholding the Costitution, have to arrest anyone? NONE! so please stop using scare tactics to disperse the freedom loving people of this county.

I have not a clue who is placing these “flyers” that have so inflamed our elected body but I can tell you, at present there is not a court in the land that would tell him or her that legally they cannot do that! Not a one! You know why? Because the Constitution of the US states we have freedom of speech and can file grievance with our government at any time we the people feel that it is necessary! Period! End of sentence!

If someone wanted to pass out literature saying the sky is made of mashed potatoes and it’s gonna rain gravy. They have the Constitutional right to say it. Would I like it? Not necessarily! Is it illegal? No? Distasteful or against someones opposing view, perhaps, but not illegal!

Mr Mayor, please attempt to constrain your self from overreacting like a king beheading it’s citizens, it’s highly unecesary to threaten your constituency with federal or other charges for speaking out against your policy! It’s not a flattering road for you to travel!

By Shawna M. Bligh
The Session Law Firm
Kansas City, MO

Eminent domain is often an essential development tool utilized by local governments to acquire contaminated sites and pursue bold Brownfields redevelopment strategies that can be a catalyst for community revitalization. Brownfields are abandoned, idle or under‑used real property where expansion or redevelopment is complicated by the presence or potential presence of environmental contamination. However, using eminent domain for private projects, such as Brownfields redevelopment, is always a divisive issue. This is even more the case since the Supreme Court’s decision in Kelo v. City of New London.

In Kelo, the Supreme Court addressed the question of whether a city violates the Fifth Amendment’s takings clause if it takes private property, through its powers of eminent domain, and sells it for private development to further the local government’s overall economic growth plan. On June 23, 2005, the court held that local governments could use their powers of eminent domain to take property for private, economic development. The Kelo opinion has prompted an avalanche of legislation at both the federal and state level.

At the federal level, the U.S. House of Representatives passed legislation, which would withhold, for two years, federal money from state and local governments, which use their powers of eminent domain to take property intended for private, economic development. This legislation, H.R. 4128, the Private Property Rights Protection Act of 2005, is a direct response to the Kelo decision. H.R. 4128 defines “economic development” as taking private property for commercial, for-profit projects intended to increase tax revenues, the tax base, employment or improve general economic health. H.R. 4128 passed the House on November 3, 2005 by a vote of 376-38, and is currently before the Senate Committee on the Judiciary. While hearings have been held on the bill, no legislative action has been scheduled.

Fortunately, a bipartisan amendment, H.AMDT. 612, to H.R. 4128 added an exemption, from the definition of “economic development” for the redevelopment of brownfield sites, as defined in the Small Business Liability Relief and Brownfield Revitalization Act of 2002 (Pub. L. No. 107-118). The amendment, introduced by Congressman Gary Miller (R-CA) and Eddie Bernice Johnson (D-TX), would allow cities to responsibly use eminent domain to redevelop brownfield sites. On the House floor, Congressman Miller stated “owners of brownfield sites are frequently unwilling to sell them for fear of cleanup and cost of contamination. Eminent domain can often help break through legal and procedural barriers to the sale of land.”

The United States has more than 450,000 vacant or underused industrial sites as a result of environmental contamination. While not only improving and protecting the environment, cleanup of Brownfields restores the sites to productive use, facilitates job growth, and substantially increases tax revenues for local governments. Additionally, cleanup revitalizes otherwise dormant urban core areas, thus promoting smart growth by taking development pressures off undeveloped, open land. Without eminent domain for redevelopment purposes, local governments would be less likely to redevelop Brownfields because of the liability for all costs and cleanup of the polluted land as the owner and operator of the site. Therefore, it is imperative that eminent domain legislation, at both the state and federal level, include exemptions for Brownfields redevelopment. Without such exemptions, Brownfields redevelopment would be significantly impaired and contaminated lands would sit idle.

At the state level, the Missouri House and Senate have proposed various limitations on the use of eminent domain, and, unfortunately, none of the proposed legislation provides an express Brownfield exemption. Examples of presently proposed limitations include prohibiting the state or local governments from exercising its powers of eminent domain to acquire property for the purpose of economic development; limiting the definition of “blighted areas” under Missouri eminent domain laws; requiring businesses in areas taken by eminent domain to reimburse persons displaced from that area; and even placing a moratorium on the use of eminent domain until 2007.

Missouri has several state Brownfields including the Kansas City Riverfront Development and the St. Louis Arena. The state of Missouri benefits greatly from Brownfields redevelopment and eminent domain is an important tool in these redevelopment areas. Eminent domain was an essential component in the redevelopment of Kansas City’s Central Industrial District. This is the oldest industrial area of the bi-state Kansas City region where the Kansas and Missouri Rivers meet. Blight and fear of contamination threatened to drive away remaining businesses and private investment in the late 1990’s. Efforts to retain a leading business were frustrated by a private owner’s refusal to maintain the site in violation of City codes, which later led to a catastrophic fire that devastated the West 8th Street area. The owner refused to cooperate with City officials who planned to use local, state and federal funds to acquire the ruins and prepare the area for redevelopment. Ultimately, what came to be known as the Lewis & Clark Redevelopment Area Project succeeded, in large part because of the City’s eminent domain powers. Improvements in the area led to over $100 million in private investment, the creation of 421 jobs and retention of more than 1,100 jobs. Without the City’s powers of eminent domain, the many benefits of this Brownfield redevelopment project would have been lost.

The Missouri Brownfield Redevelopment Program is administered by the Department of Economic Development and the Department of Natural Resources. The program’s purpose is to oversee cleanup and provide various financial incentives for the redevelopment of contaminated properties. If the legislature is concerned about the potential misuse of eminent domain powers by municipalities, serious consideration should be given to conferring with the Department to address these concerns while at the same time furthering the goals of this Program.

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  1. My town was just presented with the idea to apply for a Brownfields. My town board immediately voted to pursue the application process, without any public input. I have a small following of people in my town, and was hoping you might have any information that will shed some light on the negative aspects of this grant? I am alarmed by the EPA, and do not want my town to get this grant.

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    • Sounds like they are on their way and it is difficult to stop them. We researched the Brownfields and discovered that a small community would be wiped out in the new development area. We created a flier complete with all the info and stated plans for the area of about 300 homes. The response was phenomenal. My Mayor launched a special investigation and declared the “evildoers” be arrested. This got a whole first amendment debate rolling and to date, its been 2 years and that area hasn’t been developed or homes destroyed. The citizens showed up in force at local council meetings and spoke up and notified the local state reps also. My blog has plenty of info, use the top right search window.

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