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Filed under:ITC MN & IA 345 kV — posted by admin on September 7, 2014 @ 11:12 am

Cash-Register

Donate!!!  Yes, you!!   See that “PayPal” button up to the right?  Join the challenge to transmission that they don’t need and we don’t want!  No CapX 2020 has Intervened in the ITC Midwest MN/IA Certificate of Need, a public interest intervention focused on showing up to weigh in on the big picture issues (Important note, No CapX 2020 is aiding public participation, but not taking a position on route.).

(more…)

ITC Midwest – ALJ’s Recommendation due tomorrow!

Filed under:ITC MN & IA 345 kV,Uncategorized — posted by admin on @ 10:23 am

gavel

 

Monday, September 8, 2014, the ALJ’s Recommendation on the ITC Midwest MN/IA Transmission line is due — for the Certificate of Need and the Routing dockets.

To see the full docket, go to the PUC SEARCH PAGE and search for dockets 12-1053 (CoN) and 12-1337 (Routing).

Then, after the ALJ’s Recommendation is out, we’ve got until September 23rd (15 days) to file exceptions to the ALJ’s Recommendation.  I can’t copy the rule because the state’s site is down (for updating, I presume), so here’s a cut and paste of the explanation from a prior decision:

ExceptionsThis is important because it’s the opportunity for not just parties, but for “any party adversely affected” to address the specific parts of the ALJ’s Recommendation that are a problem.

No CapX 2020 will be filing Exceptions.

Questions?  Let me know!

 

 

 

Withdrawal of Counsel – ITC Midwest MN/IA Xmsn Project

Filed under:ITC MN & IA 345 kV — posted by admin on September 2, 2014 @ 3:17 pm

Housekeeping again today — I’ve just filed my Withdrawal of Counsel for Citizens Energy Task Force in the ITC Midwest MN/IA Transmission Project docket at the Minnesota Public Utilities Commission:

CETF – Withdrawal of Counsel

I’m still counsel of record for No CapX 2020 in this docket.

The ALJ’s Recommendation is due next Monday, September 8, and Exceptions are due Tuesday, September 23.

cleaning3

ITC Midwest MN/IA – Reply Briefs are in

Filed under:ITC MN & IA 345 kV — posted by admin on August 8, 2014 @ 3:13 pm

ITC MVP Study 3

The Reply Briefs are in on the ITC Midwest MN/IA 345 kV transmission project.   MECA, et al.’s is really a hoot.  A couple of them say “no full party intervenors oppose/disagree” or some such but then there’s the Commerce Reply Brief.  Yup, it ain’t only Overland, errrrr… argument of counsel.  You’ll have a little more trouble dissing Commerce DER with the Commission.  Yes, the Commerce DER Reply Brief takes the cake.

DER specifically disagrees that the record supports:

Untitled

Cool.  I love it when that happens…

Here are the Reply Briefs in the ITC Midwest docket:

CETF NoCapX_Reply Brief CoN

Applicants_Reply Brief_CoN_20148-102143-03

Applicants_Reply Brief_Route_20148-102143-03-1

MCEA_Reply Brief_ CoN20148-102133-01

MISO_Reply Brief_CoN 20148-102132-01

Commerce DER_Reply Brief CoN 20148-102138-02

CommerceEERA_Reply Brief Route_20148-102140-02

 

Judge denies Motion for FEIS Comment period

Filed under:ITC MN & IA 345 kV,Laws & Rules,Nuts & Bolts — posted by admin on July 24, 2014 @ 8:40 pm

DOH!

Hot off the press… Judge La Fave has denied CETF/No CapX 2020 Motion requesting comment period of at least 10 days after FEIS released for public to comment on adequacy.

Order Denying CETF and No CapX Motion for Extension of Period for Public Comment

WOW.

The Final Environmental Impact Statement in the ITC Midwest MN/IA 345 kV line docket was not released until after the public hearings, after the evidentiary hearing, and on same date Initial Briefs were due.  So we filed this motion:

CETF NoCapX_Motion FEIS_Amended

Here are the two Replies to the Motion:

ITC Reply to Motion_20145-99844-01

Commerce Reply to Motion_20145-99801-01

The Minnesota Environmental Policy Act (MEPA) specifies that the “final detailed environmental impact statement… shall accompany the proposal through an administrative review process.”

Prior to the preparation of a final environmental impact statement, the governmental unit responsible for the statement shall consult with and request the comments of every governmental office which has jurisdiction by law or special expertise with respect to any environmental effect involved. Copies of the drafts of such statements and the comments and views of the appropriate offices shall be made available to the public. The final detailed environmental impact statement and the comments received thereon shall precede final decisions on the proposed action and shall accompany the proposal through an administrative review process.

Minn. Stat. §116D.04, Subd. 6a.

And FYI, here’s what the PUC’s draft 7850 rule has to say about this — the FEIS release timing has been an issue for a long time — and the PUC’s draft rule language anticipates that the final EIS will be filed PRIOR to the Public Hearing and Evidentiary hearing:

EIS Project Schedule

The schedule for adoption of these rules is way, way out there, and no help, but it gives insight/incite into the Commission take on timing of FEIS release!   That and $0.50 will get cha…

ITC Midwest MN/IA Xmsn – Initial Briefs are in

Filed under:ITC MN & IA 345 kV — posted by admin on July 11, 2014 @ 5:22 pm

briefs1 copy

The EIS is out — that will take a while to download and the upload, so later, folks!  To look it up and download it yourself, go to the PUC’s SEARCH DOCUMENTS PAGE, and plug in docket 12-1053 for Certificate of Need, and/or 12-1337 for the Route Permit.

Initial Briefs are filed. The punch line from our CETF/No CapX2020 brief:

 

Chatterjee

On the Certificate of Need:

 CETFNoCapX_InitialBrief_

ITC Midwest InitialBrief_20147-101419-06

MISO Brief_20147-101381-01

DoC-DER_Brief_20147-101422-02

DoC-DER_FoF_20147-101422-03

MCEA_20147-101383-02-1

 

And on the Route Permit:

ITC Midwest FINALBrief_Route20147-101419-08

Brieif_Route_FoF_20147-101419-12

 

 

ITC Docket – CETF & No CapX Comment and Exhibits

Filed under:ITC MN & IA 345 kV — posted by admin on May 30, 2014 @ 1:59 pm

Here goes:

CETF NoCapX Comment Affidavit

Exhibit A_MISO Tariff Attachment MM

Exhibit B_Schedule 26A Indicative Annual Charges_02262014

CETF NoCapX Comment Affidavit_Exhibits C-N

 

Leave Comment Period OPEN for FEIS!

Filed under:ITC MN & IA 345 kV,Laws & Rules — posted by admin on May 27, 2014 @ 1:47 pm

I'mLate

NOW is the time to contact James LaFave, Administrative Law Judge, and ask that the record be kept open for at least 10 days after the FEIS is released (July 11, 2014 and possibly later) for public review and comments on the adequacy of the Final Environmental Impact Statement.   Take a few seconds and send an email (letters might not get there by May 30 unless you send Priority or Express).  Reference docket numbers OAH 60-2500-30782 and PUC 12-1053 and 12-1337.

james.lafave@state.mn.us and routecomments.oah@state.mn.us

James LaFave
Administrative Law Judge
Office of Administrative Hearings
ITC MN/IA Transmission, OAH Docket: 60-2500-30782
PO Box 64620
St. Paul, MN 55164-0620

I’m tired of watching this project march through the “process” with no scrutiny, with the public shut out, with no party asking the hard questions.  The “hearing” last Monday was a joke, and it was not funny.

All that’s left is public comments this week, and briefing and the ALJ’s report and recommendation to the Commission.  Based on the record, it’s not hard to imagine how that will play out.  Then it goes to the Commission for a decision.

BUT IT’S NOT TOO LATE.  There’s a very clear problem that should be a no-brainer, and it should be something everyone is in favor of — it’s the notion that the public should be able to comment on the adequacy of the FEIS.  But nooooo, there’s resistance, and from Commerce, responsible for the FEIS!

CETF and No CapX filed a Motion two weeks ago for extension of the Public Comment period to allow comments on the FEIS after it is released, because the public, out there in the project area, on the ground, is best able to tell what has been included and what is missing, and if the DEIS Comments were taken into account.  But if the Dept. of Commerce has anything to say about it, the public will have no opportunity to comment on the Final Environmental Impact Statement on the ITC Midwest MN/IA 345 kV transmission project.

WHAT?  Yes, it’s true.  The public comment period closes at 4:30 p.m. on Friday, May 30, just a few days from now, but the Final Environmental Impact Statement will not be released until July 11, 2014, IF THEN, because there were so many comments, over 300, so it will likely be released even later.  What they do is review all the comments and correct/supplement the Environmental Impact Statement as needed, supposedly.  But that FEIS is not even completed, much less part of the record, until all is done, all public opportunities to participate are closed, and only parties have opportunity to comment, and in “reply” briefs.  This is NOT OK!  So CETF and No CapX 2020 filed this:

CETF NoCapX_Motion FEIS_Amended

So far there are is only two one Repliesy, and that’s ITC Midwest (filed just as I sent email about this, grrrrr) and the Dept. of Commerce, objecting to leaving the record open for public comments (remember, it’s COMMERCE, not the Environmental Quality Board in charge of environmental review for utility infrastructure projects):

ITC Reply to Motion_20145-99844-01

Commerce Reply to Motion_20145-99801-01

The Dept. of Commerce points?  Their reasons opposing keeping the record open for public comment?  Commerce argues (and we note):

1.   Commerce argues that other Scheduling Orders don’t require a comment period on FEIS, and “such a comment period is an exception and not the practice.  (… so because the judge didn’t address a comment period in his scheduling order, that means it’s right?  NO!  The comment period has been extended when we’ve requested it, and if we’re not there to request it, no one does.  That does NOT mean it’s right.  It means that those present don’t give a rodent’s rump about environmental review and/or public participation, that’s all.)

2.   Commerce argues that MEPA does not require a comment period on the FIES.  “Though MEPA anticipates a comment period on an FEIS, and Minnesota Rule 4410.2800 requires a 10-day comment period for an FEIS, this requirement is inapplicable to environmental review conducted in accordance with the Power Plant Siting Act.”  (MEPA does anticipate a comment period on an FEIS, and MEPA trumps the silence in the rules under the Power Plant Siting Act.  The PPSA rules do not prohibit a comment period, they are silent, and we’re working to address this in rulemaking right now.)

3.  Commerce argues that Minnesota Rule 1405.1400 does not provide for the record remaining open to receive comments on the FEIS… “the record of the hearing shall be closed at a date to be set by the administrative law judge.”  (The ALJ can set that date at any time he wants, there is no prohibition, and it is silent as to remaining open for comments on FEIS, there is nothing there, and we’re requesting the ALJ set that date to receive comments on the FEIS.)

4.   Commerce argues that we “incorrectly claim that the lack of a comment period on the FEIS in the HRL Project was problematic” and that it didn’t matter that the EIS was grossly in error and the Commission was caught unawares.  “DOC-EERA disagrees that a particular segment of existing transmission line near the Byllesby Dam was not analyzed in the FEIS for the HRL (sic) Project.”  (It wasn’t “anaylzed” by any stretch of the imagination, Commerce asked Applicants to send them some info on it, and then Commerce stuck that in the FEIS as an appendix — that is NOT environmental analysis, there’s no vetting, no analysis, just putting the Applicants info in the document without any comment whatsoever.)

5.   Commerce argues that “no public purpose would be served by extension of the comment period on the Final EIS.  The Final EIS is final.  No changes or amendments would be made to the document based on comments received during an FEIS public comment period.  To the extent comments on the FEIS would be helpful for the Commission, they would best be addressed to the adequacy of the FEIS.”  They then argue that the issues we’ve raised about the “HRL” project are not a criteria for determining adequacy.  (ummmm, we’re asking for time to review the FEIS for adequacy.  ???  This is bizarre.  And the specific errors in the “HRL” FEIS were factors that the Commission’s decision turned on, so accuracy is crucial regarding those factors.)

6.   Commerce argues that “Finally, the motion is also procedurally improper because motion practice is outside the scope of the limited intervention rights the ALJ granted to CETF and No CapX on January 31, 2014.  (As if it’s not enough that Commerce is arguing against public participation, transparency, openness, and review of its work, there’s no party in this docket advocating for the public interest, there’s no party in this docket that cares about adequacy of environmental review.  We’ve brought this Motion in a very disturbing vacuum.)

The rules for environmental review, the Environmental Quality Board rules, require a time for comments after release of the FEIS:

Subp. 2.  Written comments.

Interested persons may submit written comments on the adequacy of the final EIS to the RGU or the EQB, if applicable, for a period of not less than ten days following publication in the EQB Monitor of the notice of availability of the final EIS. The notice of availability of the final EIS shall indicate when the comment period expires.

The PUC’s rules do not.  Nothing… nada…

The Minnesota Environmental Policy Act (MEPA) specifies that the “final detailed environmental impact statement… shall accompany the proposal through an administrative review process.”

Prior to the preparation of a final environmental impact statement, the governmental unit responsible for the statement shall consult with and request the comments of every governmental office which has jurisdiction by law or special expertise with respect to any environmental effect involved. Copies of the drafts of such statements and the comments and views of the appropriate offices shall be made available to the public. The final detailed environmental impact statement and the comments received thereon shall precede final decisions on the proposed action and shall accompany the proposal through an administrative review process.

Minn. Stat. §116D.04, Subd. 6a.Comments (emphasis added).

Who gives a rodent’s rump about all this?  CETF and No CapX 2020 do.

Rat's Ass

We’re in rulemaking right now, and trying to address these problems, problems that leave us filing Motions for Advisory Task Forces; for extensions of deadlines to intervene for landowners who did not receive lawful notice; for extensions of public comment periods where new information is entered into the record very late in the process, i.e., in the public or evidentiary hearings; and extensions of public comment periods when the FEIS is released after everything is said and done.

Granted, as the record in the Brookings case showed, the Dept. of Commerce does not represent the “public interest.”  Clearly Commerce doesn’t care, but after all, it’s the Dept. of COMMERCE, not the Environmental Quality Board.  But in this docket, how is the public interest represented?  There are no intervenors representing the public interest.  CETF and No CapX are limited intervenors, and are working to represent a broader interest but again, we’re limited, very limited intervenors.  Problems have come up in this case.  Commerce testimony does a 180, from recommending denial to not recommending denial (but not recommending approval) and of the parties granted permission to ask questions, NO ONE HAS EVEN ONE QUESTION ABOUT IT.  The “Evidentiary Hearing” is essentially on the record, and all the witnesses are rammed through between 1 p.m. and 3:40 p.m. when the hearing was adjourned.  The FEIS is being released after the comment period is closed.  Where the public is shut out, who will stand up and make sure the public is included?  Will the Public Utilities Commission Public Advisor recommend the public be included?  Will the Public Utilities Commission staff recommend the public be included?

Remember, Friday at 4:30 is the deadline for Public Comments, comments about anything in the Certificate of Need and/or Routing dockets.  This is it.  NOW IS THE TIME.  Send comments to:

james.lafave@state.mn.us and routecomments.oah@state.mn.us

James LaFave
Administrative Law Judge
Office of Administrative Hearings
ITC MN/IA Transmission, OAH Docket: 60-2500-30782
PO Box 64620
St. Paul, MN 55164-0620

ITC Midwest transmission hearing OVER!!??!!

Filed under:ITC MN & IA 345 kV — posted by admin on May 20, 2014 @ 12:02 pm

manurespreader_newholland

CETF and No CapX2020 are intervenors, LIMITED intervenors, in the ITC Midwest MN/IA Transmission Project docket at the Minnesota Public Utilities Commission.

Yesterday was to be the first day of the ITC hearings.  Well, it was, but the evening before, I got a call from Julia Anderson, Asst. A.G. for Dept. of Commerce, saying that there was a significant change, and that Dr. Steve Rakow would be reversing his testimony, a complete 180, from recommending denial of the Certificate of Need, to ???

Last minute to say the least.

manurespreader

The hearing convened, and we were told that, yes, Dr. Rakow would do this 180, and would submit a statement (no testimony?!?).  I objected of course, but oh well, CETF and No CapX are only “limited” intervenors, and there’s no one Intervening who opposes the project.  The so-called environmental organizations that intervened, dubbing themselves the “Clean Energy Intervenors” support this project and have had nothing to say in this, no discovery, no comments on the DEIS, and testimony that made their “it’s for wind” statements with no supporting evidence that it is for wind (but we know it’s not).

Rakow Statement May 19 2014

So let’s look at this statement.

1New facts?  Gleaned from testimony at the public hearing?

manurespreader

OK… a number of things come to mind.  First, before the hearings started, I requested that the public testimony be under oath, with members of the public being able to opt out if they so wished, and I requested this specifically because I had heard two Commissioners in deliberations discount public testimony because “it was not under oath.”  Judge LeFave said he would not swear in the witnesses.  I asked that this decision be “on the record” and he refused.  I could have made more of this, didn’t, and obviously should have.

“Facts” as a legal term, is a term of art, with very specific meaning.  In addition, the Minnesota Rules have many provisions regarding being sworn in, and regarding testimony regarding “a fact at issue” which is the case here:

All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

Here are a few citations regarding witnesses, oath/affirmation, and facts:

1400.7200 WITNESSES.

Any party may be a witness and may present witnesses on the party’s behalf at the hearing. All oral testimony at the hearing shall be under oath or affirmation. At the request of a party or upon the judge’s own motion, the judge shall exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.

1400.7800 CONDUCT OF HEARING, Subp. G.  Any party may be a witness or may present other persons as witnesses at the hearing. All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

1405.0800 PUBLIC PARTICIPATION, Subp. B.  … However, testimony which is offered without benefit of oath or affirmation, or written testimony which is not subject to cross-examination, shall be given such weight as the administrative law judge deems appropriate.

Essentially, if it’s not under oath, it’s not a fact.  Oh, and it wasn’t at the Blue Earth hearing, it was at the Jackson hearing, that was corrected.  Now, let’s look further:

2

Was Aaron Backman sworn on oath?  NO!

I asked Dr. Rakow whether he knew of Backman was under oath, and he did not know.

I asked Dr. Rakow whether he knew of Backman’s resume/C.V. and whether he had any expertise in transmission, and he did not know.  He did not speak to him afterward, and did not ask him any questions regarding his statement.

I asked Dr. Rakow if he was present when any others offered statements regarding the Odell Wind Farm, and he did not know of other statements.  He offered that it may have been the following day when he was not present.

Three statements regarding Odell Wind Farm from my notes, ALL THREE OF THEM ON MAY 13, AND TWO OF THEM IN JACKSON.  From my rough notes, the transcript will be available soon:

May 13, 2014  7 p.m. Public Hearing in Jackson:

Aaron Backman – Economic Development Director, Windom. Supportive of Odell Wind Farm, dependent on this transmission line moving forward. The 161 kV option as suggested by Commerce will not be enough… MVP helps SW MN capitalize on valuable wind resource.

Just two commentors later, same venue, same hearing, we have a statement from a Gerinomo employee, developer/owner of the Odell Wind Farm project:

Jordan Burmeister – on behalf of Gerinomo and Odell Wind Farm. Planned and proposed projects that depend on this line being built. Others developed and secured PPAs, we support the 345 kV line, grew up in Lakefield, has seen economic development that wind projects bring. My comments are towards the need part of this.

And earlier that morning in Blue Earth, also on behalf of Gerinomo:

Justin Pickar – Also here not to discuss route, but need. On behalf of Gerinomo, 7650 Edinborough Way, Edina, Dir. of Devo. Projects that have been approved are dependent on the MVP projects. Trickle effect. Odell Windfarm, Jackson, Watowan, and Martin Counties (?), direct impact $50 million over 20 years, 10-12 employees.

Not only were these two Geronimo representatives present, but Gerinomo attorney Christie Brusven was present at the ITC Midwest DEIS Hearings and the Public Hearings. Here she is just after having posed for a photo in front of the tractors:

Brusven_20140513_182525

If this is a concern, is there some reason Odell Wind Project representatives did not raise this earlier?  Is there some reason that ITC Midwest did not raise this in their application or voluminous responses to voluminous Information Requests?

manurespreader

Smells like money to me!

The existence of the Odell Wind Farm is not a “new fact,” nor are transmission considerations a “new fact.”

The Odell Wind Farm, MISO queue G826, got its spot in queue on July 16, 2007.  Note that in some of these MISO models, G-519, the Excelsior Energy Mesaba Project is modeled, despite its having lost its place on the queue.

MISO Queue Public (scroll down to G826)

GI-DPP-2012-AUG-West_System Impact Study Report – Exhibit 535     Published March 29, 2013

Feasibility Study Report (look for G826 info) which shows this:

G826 Feasibility

Impact Study Report (look for G826 info)

Transmission, interconnection, and curtailment were specifically addressed by Commerce in its review of the Odell PPA:

Commerce Comments_Odell Wind Project 13-603_20139-91117-04

For example:

OdellCurtailment

Going back to Dr. Rakow’s statement:

3

The applicant has the burden of proof, and “ITCM did not provide information…”  What does it mean that there’s no information?

2.5

Minn. R. 1405.1700, Subp. 7. Burden of proof.

Any route or site proposer must prove the facts at issue by a preponderance of the evidence, unless the substantive law provides a different burden.

“Additional study and analysis would be required.”  OK, Dr. Rakow, if that’s what you think, why aren’t you asking for it?  Or on the other hand, why aren’t you saying that they had all the opportunity in the world to raise this if it were an issue, and they didn’t, and that’s their problem?

manurespreader

The statement regarding MISO assumptions could have been addressed with a look at the modeling, a question or two about the modeling, and entry of the studies into the record.  The witness was there, but no one chose to do it.

manurespreader

And as to Dr. Rakow’s conclusion:

4

I asked Dr. Rakow, to verify that there is NO analysis of this in the record, and he verified, that correct, there was NO analysis in the record.  I asked, where there is no analysis of this question in the record, does the record support a conclusion that the 161 kV rebuild will NOT be adequate to accommodate the Odell Wind Farm?  And he had no choice to answer but that it did not show it was not adequate.

5

Again, I requested verification that there is NO analysis in the record, which he confirmed.  And I verified that because there was no analysis in the record, he could not state either way, whether it would or would not be sufficient, and he confirmed that he could not state whether it would or would not be sufficient.

Dr. Rakow did NOT recommend that ITC Midwest’s Petition be granted.

Bottom line?

2.75manurespreader

And the issue remains that the Applicants have failed to meet their burden of proof regarding either their preferred project or their alternative.

The evidentiary hearing is over.   14 witnesses rammed through over maybe 3 hours.

manurespreader

Eminent Domain in WSJ

Filed under:Buy the Farm,ITC MN & IA 345 kV — posted by admin on May 18, 2014 @ 9:38 am

Map from 20132-83982-01-1

I’ve just spent the last week dealing with transmission need and routing, both primary issues in eminent domain and condemnation for transmission lines (well, two days, but prep before, and the aftermath likgers…).  Here’s what the Wall Street Journal has to say, that “abusers are making a comeback.”  Abuse?  Well, how about Xcel Energy challenging landowners’ exercise of “Buy the Farm” under Minn. Stat. 116E.12, Subd. 4?  How about ITC Midwest, a private transmission-only company, wanting to build a transmission line and thinking they have power of eminent domain in Minnesota?

 Minn. Stat. 117.025, Subd. 10.Public service corporation.

“Public service corporation” means a utility, as defined by section 216E.01, subdivision 10; gas, electric, telephone, or cable communications company; cooperative association; natural gas pipeline company; crude oil or petroleum products pipeline company; municipal utility; municipality when operating its municipally owned utilities; joint venture created pursuant to section 452.25 or 452.26; or municipal power or gas agency. Public service corporation also means a municipality or public corporation when operating an airport under chapter 360 or 473, a common carrier, a watershed district, or a drainage authority.

Subd. 11.Public use; public purpose.

(a) “Public use” or “public purpose” means, exclusively:

(1) the possession, occupation, ownership, and enjoyment of the land by the general public, or by public agencies;

(2) the creation or functioning of a public service corporation; or

(3) mitigation of a blighted area, remediation of an environmentally contaminated area, reduction of abandoned property, or removal of a public nuisance.

(b) The public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health, do not by themselves constitute a public use or public purpose.

An important consideration is how it’s defined in 216E.01, Subd. 10:

Wall Street Journal: Eminent Domain Abusers Are Making A Comeback: Cities and states are back to grabbing private property for the private profit of others.

By Dana Berliner
In Atlantic City, a state agency recently decided to bulldoze the home that Charlie Birnbaum’s parents bought 45 years ago and that he now uses as a piano studio and a base for his piano-tuning business, as well as renting out two suites. New Jersey’s Casino Reinvestment Development Authority wants to replace it with an unspecified private development around the Revel casino, which emerged from bankruptcy a year ago.

Mr. Birnbaum is represented by my organization, the Institute for Justice, in trying to save his business and his parents’ former home. He was served with condemnation papers on March 14, and the first hearing will be on May 20. After a lull in cases of eminent-domain abuse over the past several years, we are increasingly hearing complaints from home and business owners about government attempts to take property for private development projects.

If Mr. Birnbaum’s story sounds familiar, that’s because it is a repeat of what the Casino Reinvestment Development Authority tried in 1996. In that case the New Jersey authority tried to take the home of an elderly widow, Vera Coking, as well as Sabatini’s Italian Restaurant and a jewelry store, for a proposed limousine parking lot for Donald Trump’s Plaza Hotel and Casino.

The case garnered national attention and started a groundswell of interest in eminent-domain abuse. In 1998 a New Jersey district court denied the taking for the parking lot. Mrs. Coking stayed in her house for many years. Meanwhile, across the country home and business owners started resisting eminent domain. Courts began to take notice.

 

Then in 2005, the U.S. Supreme Court ruled by 5-to-4 in Kelo v. New London that a whole neighborhood in the Connecticut town could be condemned on mere economic speculation—on the hope that new homes and businesses would be built in the same location and that these would produce more property taxes and “economic development.”

The decision shocked the nation. In the years that followed, 44 states changed their laws to make eminent domain for private development more difficult. State courts also stepped into the gap—nine high courts, including New Jersey’s, placed state constitutional limits on eminent domain. Chastened by this wave of opposition, most cities and agencies became much more careful in their use of eminent domain.

Unfortunately, this breathing spell seems to be ending. This latest condemnation by the Casino Reinvestment Development Authority is part of a new wave of eminent-domain abuse, as cities and redevelopment agencies try to regain some of the power they lost:

• California actually abolished its redevelopment agencies in 2011. Now cities and powerful development interests have launched a ballot initiative to restore the redevelopment agencies and greatly expand their power to seize properties for private projects.

• In Colorado, Denver suburbs and other cities have been on a spree of condemnations for shopping malls.

• Minnesota, Alabama and Illinois have added powers to state and municipal agencies to condemn for such projects as sports stadiums, industrial developments and business-district economic development.

• Philadelphia is taking an artist’s studio for a private development.

• A Louisiana port agency is taking one private commercial port to be replaced by . . . another private commercial port.

• New York never stopped abusing eminent domain—taking property for Columbia University, the Brooklyn Nets and the ever-present “mixed-use development” across the state.

This renewed eagerness to seize private property for the private profit of others comes despite its poor track record.

• Nine years after the Kelo taking in New London, Conn., nothing but weeds occupies the area once populated by more than 70 homes and businesses.

• The 22-acre Atlantic Yards project in Brooklyn, N.Y., was supposed to include several office towers, thousands of housing units, retail, parks and other amenities to accompany the Barclays Center sports arena. But construction plans change, and the project will now include far less than originally promised.

• A thriving cigar and coffee lounge in San Diego was bulldozed in 2005, supposedly for a hotel. The space remains an empty parking lot nine years later.

The condemnation of Charlie Birnbaum’s building in Atlantic City is a classic example of eminent-domain abuse. The agency has no plan for the property. Promises of economic growth are made with no plausible substantiation of how it will happen. Mr. Birnbaum’s house is at the very edge of the area being taken and could easily be left alone. A judicial decision should come this year at the trial court, and the case is almost certain to be appealed.

The last outbreak of eminent-domain abuses spurred a grass-roots movement that seemed to chasten land-grabbing bureaucrats. With luck, these latest manifestations of government arrogance may prompt more pushback by home and business owners and result in greater private-property protections.

Ms. Berliner is the litigation director for the Institute for Justice, which represents Charlie Birnbaum, and represented the homeowners in both the Atlantic City eminent domain battle and the Kelo U.S. Supreme Court case.

(more…)


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image: detail of installation by Bronwyn Lace