Controlling Potential Abuse of Eminent Domain

The recent Supreme Court decision on eminent domain (previous blog here) is still reverberating about the country.  An unusual mix of folks across the political spectrum are displeased with the additional power this ruling has potentially given state and local governments.  Some are already working to curb that power, including those in the county east of here. 

Jackson County commissioners blasted a recent U.S. Supreme Court ruling that gives local governments broad discretion to seize private property.

The commissioners in their Wednesday meeting said they plan to pass an ordinance soon that would limit their powers to exercise eminent domain in light of the court’s decision.

"When I first heard this, I was aghast at it," said Commissioner Dave Gilmour. "We have to assure the public that those abuses aren’t going to happen here in Jackson County."

...

Gilmour and the other two commissioners expressed solidarity Wednesday in limiting county government’s powers to use eminent domain unless there is a clear public benefit such as a road project.

Commissioner Jack Walker said he wants an ordinance drafted within the next month that limits the county’s ability to exercise eminent domain and will present it to the public before approving it.

That was a bright spot in the Supreme Court decision--allowing local governments to be more restrictive in allowing the use of eminent domain.

Commissioner C.W. Smith said the Supreme Court’s ruling is alarming and threatening, going way beyond what the U.S. Constitution had in mind.

Gilmour noted that commissioners last year rejected a request by Britt Festivals to seize property needed for expansion.

The county, however, does approve several eminent domain actions every year, primarily for road and bridge projects.

In years past, government agencies have used eminent domain to build Camp White during World War II and Interstate 5 in the late 1960s.

Gilmour said the county also gives land back to property owners in some cases, such as when a road that was planned many years ago is never built.

The non-profit that runs the Britt Festival (an annual series of musical events) wanted more room to expand its reserved seating, construct more bathrooms, increase the parking, make it more difficult for people to sit on nearby hills and partake of the festival for free, etc. It unsuccessfully sought county assistance in applying eminent domain to two properties whose owners resisted the non-profit's offers to purchase the land...one wanted more money and the other didn't want to sell. 

Camp White is now the recently renamed VA Southern Oregon Rehabilitation Center and Clinics (SORCC) that serves disabled vets like me.

Quoting a national citizens group against eminent domain called the Castle Coalition, Gilmour said there are more than 4,000 properties under the threat of condemnation for private uses across the United States.

In Oregon, he said there is only one case in Hillsboro where property is being condemned to make way for a residential, retail and office complex.

According to the now-dated 2003 Castle Coalition report, Oregon has the Hillsboro case noted above plus two threatened condemnations that would benefit private parties (which it doesn't list).  The Castle Coalition uses news reports to compile its information, thus it may miss efforts that are not widely reported.  The following is their description of the Hillsboro case.  Note that Hillsboro ensured there was a public use component to the proposed development.  Also note that when Hillsboro condemned the land necessary for the Intel fab plants, Orenco station, and other facilities, it cited urban blight, a legitimate use of eminent domain.

The city of Hillsboro has teamed up with private developer Specht Development to build a new, $33.7 million civic center.  Part of the facility will serve as City Hall, but most of the planned five-story development consists of residences and offices, with retail shops and other businesses occupying the ground floor and street-level storefronts.  The developer and the city will jointly own the civic center, while the developer will manage the 113 affordable-rate apartments 27 market-rate apartment units, as well as the commercial space.  In order to gain ownership of a choice site in the middle of the Hillsboro business district, the city would have to remove the two stable, thriving businesses that already operate there.  Terrance Hall owns the building from which he runs a law office, while the Christian Science Reading Room occupies the building next door.  In October 2001, the City Council was set to condemn both properties, but decided at the last minute to delay the resolution after both owners vowed to challenge the takings.  Among the deficiencies in the City's development plan was that the city did not even bother to do a feasibility study looking at the need for the residential, retail and office space in the development.  Also, the City made no formal offer to negotiate with either owner before threatening condemnation and made no provision to provide space in the new civic center for occupancy by the existing businesses.  In September 2002, the City Council voted again to begin eminent domain proceedings. 

The Civic Center has since been built and occupied.  Hall Law Firm has moved, and the condemnation of the Christian Science Reading Room was cited in an amicus brief to the Supreme Court in support of Kelo.  The brief claimed that:

- religious institutions suffer special disadvantage from government abuse of eminent domain powers in the name of economic development and generating tax revenue, and that

- religious land use inherently serves the public interest, yet Connecticut's eminent domain standard would enable forcibly uprooting it in favor of purely private interests. 

The former can be true, but the latter is certainly an overstatement.

We've got to strike a happy medium between private property rights and the occasional usurping of those rights to do what's best for society.  Helping the government gain additional property tax revenue through lucrative private development isn't necessarily what's best for society, and it's certainly an area ripe for political and financial abuse.

Comments

[John]

The Jackson County Commissioners' reaction seems strange to me. What they giveth they can taketh away...so to speak.

How could they enact a non-revokable law? Seems like political manuvering to me. But it's their politics, they can certainly do what they are able to do.

[RoguePundit]

I'm surprised to see them reacting so quickly and strongly as well. A local statute banning some types of eminent domain use is nice, but it certainly lacks the power of a constitutional interpretation. Of course, the Jackson County Commissioners have been very accommodative on things like Measure 37 and tiptoeing around all the objections to plans that would streamline the tangle of roads there. Individual property rights do seem to be a rather sensitive subject that they repeatedly have to deal with.