1/16/2006

Idaho looks at eminent domain restrictions: Jackson Hole Star-Tribune (Caspar WY), 1/6/06

By Christopher Smith, Associated Press

Idaho is one of 44 states whose legislatures plan to stiffen laws limiting when private homes and businesses may be seized by local governments to make way for public works or economic development projects.

But it's one of only a few that may go so far as to attempt to amend the state constitution to rein in what many lawmakers see as government-sanctioned land grabs.

The arcane subject of governments' eminent domain powers became a hot issue after the U.S. Supreme Court ruled in a Connecticut case last year that using such power to take private land for economic development projects to be built by private companies qualifies as a "public use."

Idaho's constitution gives local governments the right to condemn private property for water and mining development as long as owners are fairly compensated, and says "any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use."

"Right now, you don't have a clear definition of what constitutes public purpose," said Rep. Lenore Barrett, R-Challis, who has two constitutional amendments drafted for possible introduction in the session beginning Monday. "The language is crucial here and I think it needs to be in the constitution."

Amending Idaho's constitution requires a two-thirds majority vote in both the House and Senate and simple majority approval by voters in the following general election. While several lawmakers are crafting proposals to limit eminent domain powers, some are not convinced that changes to the state's constitution are necessary.

"I don't want to go down that slippery slope to change the constitution until we've worked on something statutorily," said Sen. John McGee, R-Caldwell, who plans to introduce legislation. "I'm confident that we can come up with something that protects private property rights while at the same time we don't need to squelch business."

Idaho House Speaker Bruce Newcomb, R-Burley, said he believes the only entities in Idaho that could flex eminent domain powers for private economic development are local urban renewal districts and he's seeking to limit that ability in the new session.

"They told me they like to have that hammer available when they negotiate," Newcomb said at the Associated Press 2006 Idaho Legislative Preview Thursday. "That was a bad thing to say."

Property rights groups say eminent domain power is being abused by governments to make so-called "private-to-private" land transfers, where cities and counties claim the private economic development projects qualify as public use.

Although the issue has not created a high-profile case in Idaho yet, the Web site of the watchdog group The Castle Coalition lists dozens of legal clashes on private-to-private transfers around the country, ranging from Tempe, Arizona, where the city is trying to condemn 19 private businesses to build a new shopping mall, to St. Paul, Minn., where the city council wants to condemn a liquor store known as Booze Mart to make way for a private developer's town home and commercial buildings.

Historically, eminent domain was used by governments to acquire private land for public projects such as bridges, libraries and highways.

Sometimes, older neighborhoods were labeled "blighted" and condemned through eminent domain to make way for urban renewal projects. But that use is also under fire: In Missouri, lawmakers are considering a constitutional amendment to strip the government of its power to declare private property blighted.

Legislative analysts worry that in the populist zeal to limit eminent domain, a valuable tool to revitalize decaying cities may be shelved. For example, the bans on using eminent domain to foster private economic developments that are being discussed in many states now could bar condemning land for a new public library if the library had a Starbucks coffee shop in the building.

"Legislators are going to have a tough time striking that balance," said Larry Morandi, who monitors eminent domain bills for the National Conference of State Legislatures in Denver. He points to the bill enacted in a special 2005 session of the Texas Legislature that prohibited use of eminent domain to confer a private benefit on a private party or for economic development. In the seven-page bill, the prohibition language takes up one paragraph while the rest of the legislation is a laundry list of exceptions, including allowing local governments to use eminent domain power to condemn private property to build new professional sports stadiums.


Jackson Hole Star-Tribune: www.jacksonholestartrib.com