9/24/2006

Does Branson's "blight" increase the chance of eminent domain being used to take your property? Branson MO Courier, 5/4/06

By Gary Groman

Prior to the passage of the new eminent domain legislation by the Missouri Legislature recently, could the City of Branson take your home or business through the use of eminent domain, and give to another private individual or entity because it would generate more revenue and jobs for the city than it receives from your property? The answer was "Yes."

After the passage of the new eminent domain legislation by the Missouri Legislature recently, can the City of Branson take your home or business through the use of eminent domain, and give to another private individual or entity because it will generate more revenue and jobs for the city than it receives from your property? The answer is "Yes."

Recent media coverage of the new eminent domain laws passed by the Missouri legislature on May 5 trumpets the comforting thought that the homes and businesses of Missourians cannot be condemned using eminent domain for economic development. The changes were in response to a recent U.S. Supreme Court case.

In that case, long term residents had their homes taken by their city through the use of eminent domain and given to private developers for economic development because the new development would generate more revenue and jobs for the city than the taxes on the homes did. The Supreme Court said the use of eminent domain for that purpose was permitted by the U.S. Constitution but that it was up to the individual states as to how, if at all, that permitted use was implemented. The state of Connecticut, where the property in question was located, had a state law that permitted the taking of private property for economic development so the court ruled in favor of the city and the residents lost their homes.

In an effort to insure that the same thing could not happen in Missouri, various actions were instituted at the state level with the net result of that action being the passage of the recent legislation. The legislative mandate states, "No condemning authority shall acquire private property through the process of eminent domain for solely economic development purposes" and, at first blush, all seems well.

But wait, "Not so quick kemo sabe," why is the word "solely" used if the legislative intent is to truly prevent government entities from taking the property of residents and business owners through the use of eminent domain for economic development purposes? In that context, why not use a more restrictive word such as "primarily" rather than "solely?"

The difference is dramatic. Using "solely" as the criteria if there is any other purpose involved, the use of eminent domain for the purposes of economic development would be legal regardless of the degree of the other use. On the other hand if a more restrictive word such as "primarily" had been used and the evidence showed that the primary purpose of the eminent domain was for economic development its use would not be authorized.

Why didn't the legislature use a more restrictive term? Could it be because they wanted to permit the most flexibility for land to be taken by cities using the power of eminent domain for economic development while appearing to restrict its use? Unfortunately, the bad news gets even worse.

The legislation specifically defines the term "economic development" as the "use of a specific piece of property or properties which would provide an increase in the tax base, tax revenues, employment, and general economic health." If only it stopped there but it does not; it goes on to exclude from the definition, among other things, "the elimination of blighted, substandard, or unsanitary conditions."

Interestingly enough, the new legislation does not contain a definition of "blighted." Instead, in a move reminiscent of the old bean under the shell trick, the legislation states that the blight determination in eminent domain cases will be determined "with regard to whether the property meets the relevant statutory definition of blight."

The City of Branson has already proven itself to be the master of "statutory blight" which, according to recent ads recently published in local newspapers by the Mayor and Branson Board of Aldermen, consists of, among other things, "criteria which do not necessarily meet or follow the standard dictionary definition of blight." In terms of the City of Branson using its eminent domain authority to take private property for economic development purposes, what is the net result of combining the City of Branson's, seemingly, insatiable need for more revenues to pay for more and more government by giving taxpayer funds to developers to compete against their existing businesses and their propensity to use statutory blight? Repeat after me, "Our Father who art in heaven?."


Branson MO Courier: http://www.bransoncourier.com