11/02/2006

Cities pushing to get back limited eminent domain: Salt Lake City UT Tribune, 10/29/06

By Cathy McKitrick

In mid-September, the Utah League of Cities and Towns (ULCT) passed a resolution urging the Legislature to reinstate the right to condemn property for redevelopment purposes.

But instead of cities initiating condemnation, the league wants affected property owners to ask for it. These would be residents who agree to sell their properties and relocate so a developer can launch a commercial project.

Think of it as "eminent-domain lite." Such a request by a majority of landowners would then allow the city to condemn the property of their neighbors who are holding out.

The league's membership passed the resolution last month, according to Lincoln Shurtz, ULCT legislative analyst.

"There were a few 'no' votes, but of the 700-plus members in attendance, about 95 percent voted for it," Shurtz said.

As he sees it, the league's resolution is a step toward a legislative compromise.

"It would reinstate some authority [to the cities], but would have private-property protection built into it as well" - if a majority of those affected oppose a project or the use of eminent domain, he said.

The resolution is in response to the Legislature's action two sessions ago to forbid cities to use property condemnation, or eminent domain, for commercial projects involving private developers.

Sen. Scott Jenkins of Plain City is spearheading the effort for cities to regain - in limited form - the use of eminent domain.

"Nothing would change much, but it would allow a group of citizens from the blighted area to come and ask the city to use eminent domain to improve the area," Jenkins said.

Jenkins said he locked horns with Sen. Curt Bramble over similar legislation that Jenkins introduced a year ago. Bramble in recent years has been a key architect of revamping laws affecting the powers of city redevelopment agencies (RDAs).

"He felt it was running contrary to his legislation," Jenkins said. "So we decided to look at it a year later."

Utah's older cities such as Ogden, Provo, Salt Lake City and St. George, are eager to regain the use of the condemnation tool in a less-oppressive form.

"It's a move to alleviate some of the fears people have with the more traditional eminent domain we've had in the past," said Mark Johnson, Ogden's management services director. Those fears involve being forced from their homes or being paid less money for their property than they think it is worth.

Johnson said he did not participateRefining the power

Amendments proposed in Utah League of Cities and Towns eminent-domain resolution:
  • Redefine blight and redevelopment of blighted areas as an appropriate use for eminent domain
  • Implement a threshold of receptiveness. At least two-thirds of the property owners representing at least one-half of the land area must be under option to buy or willing to sell in order for eminent domain to be used on the holdout properties.
  • Require a separate supermajority vote (67 percent) of the governing body before eminent domain can be included in the project area plan and used by the agency. Supermajority would vary with council size - either five of seven members, or four of five members would be required.
  • Reinstate relocation assistance provisions for owners of condemned properties.
    in drafting the league's resolution but supports the effort.

In essence, the proposed amendments would remove the threat of condemnation during the negotiation process between government officials and affected property owners, Johnson said.

Salt Lake City Councilman Eric Jergensen chaired the ULCT subcommittee that drafted the resolution.

"This is a very restricted use of eminent domain in redevelopment areas to accomplish specific goals - to remove blight as defined in the statute," Jergensen said of the proposed citizen-driven tweaks to current RDA law.

"It's a whole new way of looking at it."

Jergensen pointed to Salt Lake City's The Gateway mall as a prime example of a vibrant redevelopment that would not have occurred without the use of eminent domain.

"It was an environmentally unsafe brownfield that met every definition of blight," Jergensen said. "There was one property owner leveraging every inch they could." The city's condemnation of that property allowed the project to proceed.

Bramble said the league's efforts are part of a mutual search for common ground.

"There have been constructive discussions about under what circumstances eminent domain could and should be available - if any," Bramble said. "That 'if any' is pretty important."

While Bramble is optimistic that common ground can be found, he questions whether the league's resolution contains any.

"It's going to take some discussion," the Provo lawmaker said. Those discussions have been under way for several months, but will gear up in the 2007 legislative session in January.

From his perspective, government seizing property is an onerous act. His previous legislation resulted in a one-year moratorium on redevelopment projects and removing eminent domain for economic development in blighted areas.

Bramble acknowledged that situations exist where most property owners support a redevelopment project, but the few who oppose it - as in The Gateway example - can scuttle the whole deal.

"Where does the tyranny of the minority bump up against the will of the majority?" asked Bramble, characterizing the natural conflict within the law.

Some municipalities reject such use of eminent domain altogether - a redevelopment tool that Jergensen said has been rarely used by Utah cities.

Randy Sant, Sandy's economic-development director, said he doesn't see the need for eminent domain - now or in the future.

"We've never used it," Sant said. "We've always been able to negotiate property purchases without it. Why force people to sell if they don't want to?"


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