Thursday, October 12, 2006

Institute for Justice: "The responsible use of eminent domain does not ever involve the purpose of economic development."

N.M. Task Force Hearing Earful On Limiting Eminent Domain Use


By David Bowser
Livestock Weekly
Copyright 2006

VILLAGE OF LOS RANCHOS, N.M. — "No Mas!" was the resounding message of those speaking at the final public comment session of the New Mexico Governor's Task Force on the Responsible Use of Eminent Domain for Economic Development.

The task force will continue to meet weekly through October to hammer out their recommendations, but will accept only written comments from now on. Their recommendations concerning the use of eminent domain in New Mexico are due Nov. 1.

"What this is all about is the Kelo case," says J.D. Bullington, co-chair of the task force, "which was decided by the United States Supreme Court a year ago."

In that case, he says, occupied homes were taken in the state of Connecticut for a redevelopment project. An eminent domain action was brought to take some of those homes for the economic development project.

"The Supreme Court upheld the use of eminent domain in that context, saying that the use was a public purpose," Bullington says. "The use was economic development, so therefore eminent domain could be used to advance that public purpose."

Bullington says there's been a lot of reaction to that case across the nation. He says New Mexico’s governor was concerned that a similar situation might become an issue in New Mexico.

"This task was created and appointed by Gov. Bill Richardson by executive order," Bullington says.

Earlier this year, Richardson became the first governor in the country to veto legislation aimed at limiting eminent domain. The legislation had received overwhelming support in the state House of Representatives.

The New Mexico Legislature passed House Bill 746 during the last legislative session. However, the governor's office maintained that the bill was overly vague and had several loopholes. Richardson vetoed HB 746 on March 7, saying he would appoint a task force to study the problem.

"The governor certainly did not consult me on why he vetoed the bill," said Walter Bradley, the former lieutenant governor and a dairy farmer who serves on the task force.

In June, Richardson formed the 22-member task force, Bradley continued, and every member of the task force is there at his personal expense. The state is not paying them to be there.

"We all have an interest," Bradley says, "and we were all asked to serve on this task force with that interest to get the viewpoint of the public and see exactly what the laws are. Members on this task force are not in a conspiracy as to what the outcome is going to be. There is no vast conspiracy theory on this task force. I don't know any of us who was asked by the governor who was even asked to lean any particular direction."

"We have various views on eminent domain," says Kevin Jackson, mayor of Rio Rancho. "There are different views on this panel, and I think the governor did that for a reason."

"Gov. Richardson wants eminent domain exercised in a responsive fashion here in New Mexico," Bullington says. "He created this task force to study this issue and to take comments. We're open, certainly, to written comments at any time from anyone in the public."

Bullington says the task force is to hear any comments on the use of eminent domain in the economic development context.

"We have been meeting in August and September, basically to take input from experts on all sides of this issue," Bullington says. "We've heard from numerous organizations and individuals on all sides of this issue."

He says all of the task force meetings are open to the public. During October, the meetings will be weekly at the Rodey Law Firm in Albuquerque.

"In the month of October," Bullington says, "we're not going to be taking any more input from professional public speakers. We're going to be working on the recommendations ourselves internally. All our meetings are open to the public. We will not allow public comments at those meetings. We do, however, accept written comments from the public at any time."

In her public comments to the task force, Jennifer Perkins with the Institute for Justice said New Mexico can and should avoid the abuses that she says were apparent in the Kelo case.

"The Institute for Justice is the law firm that represented Susette Kelo and the other Connecticut homeowners in the Kelo v. New London U.S. Supreme Court case," said Perkins.

Perkins said her firm is opposed to using eminent domain for economic development.

"The title of this task force is that you're examining the responsible use of eminent domain for economic development," Perkins said. "We believe very strongly that the responsible use of eminent domain does not ever involve the purpose of economic development. I think that should be a starting point."

Her firm did some research into what they call the abusive use of eminent domain, she said.

"That is where the owner will be a private owner," Perkins said, "and the transfer is from one private owner to another private owner, whether it's an actual condemnation or a threat to use eminent domain as a negotiation tool."

She defined abusive use of eminent domain as using the condemnation proceedings or threat of condemnation to transfer property from one private property owner to another private property owner.

"Before Kelo," Perkins said, "in the 1998-2002 period, there were an average of 2000 documented cases (of eminent domain used to condemn private property for other private uses). In the one year since Kelo, there have been almost 6000 documented cases. That's heartbreaking."

She claimed private property rights are disappearing.

"As Justice O'Connor noted in the Kelo opinion," Perkins said, "the effects of that are not random. They are not falling equally. It falls largely on the poor, the minorities and the elderly."

She said that is what is going to happen in New Mexico if it is not stopped.

Perkins is proposing several legislative changes to New Mexico’s eminent domain law.

"First and foremost," she said, "you should require that eminent domain be for public use and clearly defined public use. Second, remove the blight exception. Bogus blight is a problem everywhere. "

Virtually any property in the state of New Mexico could be declared blighted under the current definition, she contended.

"If the concern is that the government wants the ability to deal with a truly blighted property that causes public health and safety problems, first I would submit that's what the police power and the public nuisance laws are for," Perkins said, "but there is also a power of eminent domain for slum properties. There's no need for blight exception."

Third, Perkins said the burden of proof should be on the government.

"If the government believes that the taking is truly constitutional and the right thing to do, it should not be afraid of proving such in a court of law," Perkins said. "It should not place that burden on a property owner."

Fourth, she said property owners challenging eminent domain takings should be allowed to recover attorney fees.

"I'm an attorney," Perkins said. "I know that most attorneys require as much as $10,000 retainer to take on such a case. You cannot get that money back at the end of the case, regardless of whether or not you are successful. That needs to change. If cities and governments that would like to use the power of eminent domain believe what they are doing is consistent with the Constitution, they should not be afraid of such a provision because they wouldn't have to pay if they're doing the right thing."

Of the some 30 people making comments at the task force meeting, only two appeared to support the use of eminent domain. Many of those speaking were residents of the Rio Grande Valley north of Albuquerque who have watched as half-million and million-dollar homes have sprouted up from ground that was being sold for five dollars down and five dollars a month 50 years ago.

Several speakers from the Rio Grande Valley south of Albuquerque spoke, noting that they could trace their land ownership back to 1600.

While the concerns of the residents of the North Valley revolved around land use, many of the South Valley residents and rural residents were concerned with water rights, particularly pre-1907 water rights that could be taken under eminent domain.

Few of the speakers complained about such traditional uses of eminent domain as building roads or schools, but all appeared concerned about the use of eminent domain to take private property from one individual and sell it to another for development.

Jon Panlener, representing several civic and non-profit groups, noted that states can impose their own rules with regard to eminent domain.

"Last year's landmark ruling in Kelo v. New London," Panlener said, "certainly got everyone's attention."

The Supreme Court, he said, tempered its decision, expressly emphasized that nothing in its opinion precluded any state from placing restrictions on the takings power.

"To date," Panlener said, "twenty-eight states have already passed restrictions on eminent domain."

Howard Hutchinson, speaking on behalf of the Coalition of Arizona and New Mexico Counties, said the board of directors of his organization passed a resolution opposing the use of eminent domain for economic development purposes.

"Ten of those counties are New Mexico counties," Hutchinson said. "They are primarily rural counties."

He said the coalition also endorsed State Representative Al Parks' proposed constitutional amendment during the last legislative session.

"We supported the House Bill that ultimately did pass that was vetoed by the governor," Hutchinson said.

He said the coalition would like to have seen some minor changes to the proposed constitutional amendment.

"We felt that it ought to be more clearly spelled out that true public purposes would be allowed of eminent domain such as utilities and common carriers," Hutchinson said. "We also felt that there should be statutory amendments put in that eliminate the use of blight designations for condemnation of property for economic development, but leaving intact the ability to control nuisance property."

The control of nuisance property does not require a government to condemn that property and transfer the ownership, Hutchinson pointed out.

"You could remedy a nuisance without taking a property," he said.

Being rural counties, Hutchinson said that most of the populations represented by the coalition are engaged in agricultural activities.

"Our primary concern does not focus on municipalities located within our counties, because they typically do not exercise those types of eminent domain activities," Hutchinson said. "We are more concerned with condemnation of water rights, which is allowable under New Mexico law and poses a threat to our agricultural industry and to our rural counties."

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