Vol. 2, No. 18
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July 15, 2005
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CRIMINAL DEFENSE |
COPYWRITING
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It's A Constitutional Right To Own Property: John Ensign
But Maybe Not To Keep It: United States Supreme Court
by Johnny Gunn
The continuing war over eminent domain laws got much hotter recently when the U.S. Supreme Court handed down a decision that will allow governments much broader access to its use. The court's 5-4 decision gave municipal entities such as cities and counties much more power to take private property for what is often called "public use."
Eminent domain was used in Las Vegas amid a furor of dissent when private property was taken in order to build the so-called Freemont Street Experience. Eminent domain has been used in Reno during the current construction of the below ground train tracks through downtown.
The question before the Supreme Court was limited to a Connecticut case but will be used by cities and counties to take land, blighted or not, and turn it into a piece of property that will provide higher taxes. As used today, the concept is build a bigger and more lucrative tax base.
Congress is already responding, and not along party lines. Nevada Senator John Ensign (R) says he is going to be introducing legislation soon. "It is designed to thwart local governments intending to seize private property through eminent domain for commercial development," he says. In his legislation, Ensign will work to deny often crucial tax incentives to private corporations looking to develop seized land.
Ensign also plans to write into the legislation withholding of federal funds from developing the seized land. Speaking to the court's decision, Ensign said, "This is judicial activism at its worst." He went on to say, "I will do what I can to protect homeowners and property owners who might find themselves targeted by greedy local governments."
In northern Nevada currently, Washoe County is attempting to seize by way of eminent domain the Ballardini Ranch and turn it into a public park and outdoor recreation area. Although different from the use of the laws to condemn private property and then give it to another entity to build businesses that will bring higher taxes, the company that owns the Ballardini Ranch says they will be denied the opportunity to build homes on the ranchland. The case is headed to court as we go to press.
According to figures released in Washington, more than 10,000 instances of the use of eminent domain took place between 1998 and 2002. The states in which property owners were most apt to find their property condemned include New York, Missouri, and Kansas. Property owners were less threatened in Idaho, Montana, New Mexico, South Dakota, and Wyoming.
In the House of Representatives, Nevada Congressman Jim Gibbons (R) has joined with colleagues of the Congressional Western Caucus in support of a resolution expressing "grave disapproval" of the court's decision. Gibbons claimed the ruling "ignored two centuries of judicial precedent upholding private property protections and nullified protections guaranteed by the Fifth Amendment."
Gibbons said, "The recent Supreme Court decision went against the basic principles of our democracy."
The resolution from the Western Caucus says in part, "The House of Representatives disagrees with the majority opinion in Kelso v. City of New London. The House agrees with the dissenting opinion upholding of the historical interpretation of the takings clause and deference to the rights of individuals and their property. Eminent domain should never be used to advantage one private party over another."
Gibbons said he believed that several cities and counties in at least nine states have already begun to move on some private property by way of condemnation because of the court's decision.
There are states that have laws on their books that deny the use of eminent domain for economic development. Nevada is not one of those states, however the eminent domain law in the state was strengthened somewhat during the last legislative session. According to the new rules, at least two-thirds of an area sought for "redevelopment" must be blighted. To determine what is or isn't blighted, some 15 factors are looked at, and only four are needed to meet the requirement.
Reno is currently looking to expand its redevelopment areas and there are property owners starting to feel the heat. Eminent domain is an issue that will continue to boil in the north. The city took considerable private property in order to build a downtown events center, took even more private property, including active businesses, in order to build the train trench, and just recently declared there would be even more "redevelopment projects" in the future.
The Reno Redevelopment Agency gets its money through a tax increment district that provides revenue for agency activities. However, over the last two years, agency debt has exceeded property tax increment revenues. Despite this, or maybe because of it, the Reno City Council has extended the life of agency to 2028.
Southern Nevada is also looking at public projects in which golf courses constricted by government contracts may become housing developments. The Freemont Street Experience will be a sore subject for years to come.
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See also related Guest Opinion by Dawn Gibbons, The Recent Supreme Court Decision Protects Only Rich Land Owners
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