Conservation Services Co., LLC
2533 North 2nd Street Harrisburg, PA 17110 (717)
September 19, 2005
Honorable Jeff Piccola
Majority Whip, Pennsylvania
171 Main Capitol, Senate Box
Dear Senator Piccola,
of eminent domain is important, and I am so pleased that you were quick
address the implications of the U.S. Supreme Court’s holding in the Kelo vs. New London case. For
so many reasons that holding was wrong
law and bad policy, and it is important that Pennsylvania
address the resulting issues promptly.
who is active in several very different (and often mutually exclusive)
of the real estate market, I would like to share some thoughts on
domain with you. My comments are based
on personal experience and observation from working with public
trusts, and private developers and landowners.
Table. Resolving eminent domain problems
is too broad, leading to abuse of eminent domain power and unfair
taking of private property
define blight; link it to local economic activity and rehab or
development efforts by landowner
Appraisals and fair compensation
value is based on current use or local market activity, not on planned
or intended use, which results in artificially low value and unfairly
appraisal standards. Condemned property
must be appraised according to intended use and landowners must be
rule and some other appraisal rules are arbitrary, strictly
theoretical, and do not conform to empirical evidence against them,
resulting in artificially low appraisals
change appraisal standards, or at least allow for different valuations
a small part of a property may be condemned, but the taking may render
the residual far less valuable or may eliminate a business value, which
is patently unfair
must be compensated for loss of business value (where applicable), and
for the net result or impact of a condemnation on the whole and
Prior capitalization in redevelopment projects
landowners bought property long ago, and have in effect capitalized
current redevelopment projects (at artificially low values), but they
are unfairly compensated after condemnation
landowners the option of being a silent equity partner in any
redevelopment project. This protects
landowners and will ensure that only highly valuable and clearly
publicly beneficial projects move forward.
Procedure and process must be clear and structured. Eminent domain must be the action of last
resort, and transparent.
deficient eminent domain actions lead government to wrongly label and
then target innocent landowners. Landowners
who are trying to improve their properties should not be subject to
eminent domain unless they are clearly doing nothing.
rehabilitation and redevelopment codes for inner cities, more historic
tax credits, and low-interest loans are examples of how landowners can
be improving their properties or trying to make progress.
Measure landowner performance.
Clear and high standard for using eminent domain
from definition of blight, in general the standard for applying eminent
domain is too loose
the standard to allow on projects that have a clear public benefit,
like roads, schools, sewage treatment plants. For-profit
projects can proceed only in clearly blighted areas and where
landowners are given the option to participate as equity partners, etc.
for creative use of eminent domain
of creativity with eminent domain leads to unnecessary conflict and
less than ideal results
leeway for agencies to meet multiple goals simultaneously, e.g. condemn
development rights on farmland adjoining a new road for scenic
corridor, or condemn the land in fee for a scenic corridor
domain abuse is found across the spectrum.
Public agencies responsible for road building,
public works, and
wildlife habitat conservation all have eminent domain powers and have
abused to them at one time or another.
While at one time (1970s) it was the action of first
resort for public
land management agencies, resulting public and political reaction has
that to only the most exceptionally significant cases.
Now, the abuse seems to be limited to
agencies like PennDOT. Additionally, in
many cases PennDOT does not use its eminent domain powers intelligently. For example, in recent bypass work, PennDOT
has condemned the least amount of land it needs just for a road, but
orphaned significant portions of family farms and has left little
along the new highways. As a result,
unsightly commercial development occurs adjacent to the highway and
vistas and scenic corridors that could have been preserved are lost
condemn development rights on a farm but leave the farming operation
I hope that
these comments are useful to you in your efforts to make eminent domain
more fair and less desirable. Please
feel free to contact me if you have any questions.
Milkman, President & CEO
Friends of Pennsylvania
Burcat, Esq., Chairman, Environ. Div.