Used by permission of coxandforkum.com
Remember the US Supreme Court’s landmark decision KELO et al v. CITY OF NEW LONDON et al in 2005? The Court ruled that because it was for the broader “public purpose” (in contrast with the US Constitution’s wording “public use”), the City of New London could use eminent domain to condemn Susette Kelo’s and others’ homes and turn the land over to the city’s urban renewal agency. The urban renewal agency could, in turn, pass the property along to developers to carry out the city’s development plan. So now, four years later, how has that all worked out? Not well, apparently.
Associated Press writer Katie Nelson nailed New London officials’ real motivation in her story on September 25, 2009, headlined Conn. land vacant 4 years after court OK’d seizure.
New London officials decided they needed Kelo’s land and the surrounding 90 acres for a multimillion-dollar private development that included residential, hotel conference, research and development space and a new state park that would complement a new $350 million Pfizer pharmaceutical research facility.
But the article goes on to say that had it not been for the state spending $25 million to turn about two-thirds of the condemned property into a state park, it would have more closely resembled the remainder of the land, bereft of “…the promised residential housing, office buildings, shops and hotel/conference center facility.”
The director of New London’s urban renewal agency blamed Susette Kelo and the others for having dared assert the protections afforded by the US Constitution. Had they not chosen to exercise their rights affirmed by the US Constitution, the project would have been well under way before the economic downturn, he complained.
However, the Kelo decision shook many states’ legislators from their lethargy. That decision seems to have reminded state legislators that not all public officials are altruistic, nor do they always have the best interests of their communities at heart. Forty-two states, including Idaho, passed laws which are intended to ensure that eminent domain is not used to seize private property only to be turned over to another private party who promises to develop it to a higher use (read: generate more tax revenue).
Idaho’s increased limitation on eminent domain abuse is found in the Idaho Code, § 7-701A. One particular portion of that statute seems remarkably clear:
(2) Eminent domain shall not be used to acquire private property: (a) For any alleged public use which is merely a pretext for the transfer of the condemned property or any interest in that property to a private party.
That section would seem to preclude the City of Coeur d’Alene, the Lake City Development Corporation, or North Idaho College from using eminent domain to acquire property as a pretext to sell or lease that property to developers. Not that using eminent domain to drive area residents from their homes to increase property tax revenues through development would ever occur to Coeur d’Alene’s mayor and council and our urban renewal agency, the Lake City Development Corporation. No, of course it wouldn’t.
The Idaho Code section cited does affirm urban renewal agencies’ authority to exercise eminent domain, but it severely restricts it with this language:
“…no private property shall be taken through exercise of eminent domain … within an urban renewal area or within a deteriorated or deteriorating area or within a competitively disadvantaged border community area unless the specific property to be condemned is proven by clear and convincing evidence to be in such condition that it meets all of the requirements:
1. The property, due to general dilapidation, compromised structural integrity, or failed mechanical systems, endangers life or endangers property by fire or other perils that post an actual identifiable threat to building occupants; and
2. The property contains specifically identifiable conditions that pose an actual risk to human health, transmission of disease, juvenile delinquency, or criminal content; and
3. The property presents an actual risk of harm to the public health, safety, morals, or general welfare .
However, those requirements do not preempt the use of eminent domain for purposes authorized in the Idaho Constitution, even if they are inside an urban renewal area.
What all this means is that in Coeur d’Alene, citizens have to still be exceedingly vigilant. We have to pay attention to what our City Council and urban renewal agency do and not just what they say. The mayor has said the city will not use eminent domain for urban renewal. Then again, we know our mayor and council are not above putting items in the Consent Calender that should be discussed in detail with the public. Likewise, we have to pay attention to the City Council’s use of executive session to discuss the acquisition of real property not owned by a public agency. We know they are perfectly willing to spend the public’s money without asking the people, thus giving credence to their unofficial motto, “The end justifies the means.”
Excellent post, Bill! And the cartoon is great. The use of eminent domain is a concern to ALL Americans after the horrific trampling of our Constitutional rights in the Kelo case. I was still on P&Z when the Kelo case came down from the US Supreme Court and was unnerved by its actions. I discussed my concerns with one of our CdA City Attorneys, who, not surprisingly, told me that in the Kelo case the city was taking the land for the common good; that the proposed development’s tax revenues would be more important for the community than the private land.
I was highly uncomfortable with that attitude from our city’s legal department. So I drafted a letter and asked all my fellow Planning and Zoning Commissioners to sign it with me, which they all did except Brad Jordan who was/is also on the LCDC urban renewal board.
The letter was directed to the Mayor and Council, asking them to come forward with a public statement of intent, telling the citizens that the city would never use Eminent Domain to take private land and give it to a private development; that they would pledge to stay with the traditional reasons for Eminent Domain, which are roads, hospitals, schools and other essential public services. Our letter identified this would not be a legally binding statement, but it would give the people of our community some reassurance from city leaders on this important topic.
After several months and many follow-up inquiries from P&Z, the Mayor finally sent us a response letter. It was disappointing. She used vague words to say basically “No”, that the city won’t make that kind of statement which might encumber future city councils. But we WANTED to encumber them, if not in a legal way, in a philosophical manner. We wanted that reassurance…but it was not going to happen with this Mayor and City Council.
Comment by mary — October 6, 2009 @ 10:04 am
Bill,
According to this part of your post –
I also like the part that it will not be used unless there is clear and covinving evidence.
Do you think the Idaho code you cited might apply to the acquisition of the libray overflow parking lot and the shopping mall? I have not heard from the prosecuter regarding that issue and our taxdollars still being used – yet. I will remind him at the end of this week if he does not give me a reply. Looks like you found some great case law.
Additionally, Pfizer was sued by Idaho. Wasden really goes after those types of lawsuits that kick back into the state coffers.
Great post!
Comment by Stebbijo — October 6, 2009 @ 10:13 am
Stebbijo,
Kelo came down long after the KSAL – Prairie Shopping Center debacle. Also, as far as the record shows, eminent domain was only threatened, not actually executed, when KSAL purchased the Ford property. But once again you’ve raised an interesting point: If eminent domain is threatened but not enforceable under state law, would the seller be able to lawfully claim the tax benefit provided by the threat of involuntary conversion?
Let’s take that question a step further. Suppose the prospective buyer (a subdivision of the state such as the City, NIC, LCDC, etc.) and a private seller of a piece of property reach an agreement on a sale price, and then the seller offers to “sweeten” the deal by offering to condemn the property for the agreed upon price. The “sweetener” would be the additional tax benefit to the seller. Would that constitute tax fraud if the seller then claimed the sale was an involuntary conversion? How about criminal conspiracy to violate the Internal Revenue Code?
Comment by Bill — October 6, 2009 @ 10:30 am
I’ve seen Eminent Domain employed twice in CDA in all the time I’ve lived here.The first was when NIC declared Eminent Domain to take over one guys house in the mid-90’s to expand their parking behind Molstead
Library.The second happened to my grandparents when the state declared
Eminent Domain over the back two acres of my grandparents property on Appleway to build the new Highway(I-90),back in the early 70’s.
In each instance the entity which declared eminent domain,gave what they thought was ‘fair market’value for these properties.But, did these entities really offer,what the ‘true
value’ of the property really was?I highly doubt it.My grandmother wasn’t happy with what the state was going to give for their property and wanted to fight it.She soon realized that any gains they could have won would have gone to the attorney,so they were forced to accept the terms.
My feelings about eminent domain are:if you are going to take over someones real estate and inconvenience them;you should be able to ask top dollar for your property.
Comment by kageman — October 7, 2009 @ 8:49 am
Let me clarify.
The ones being inconvenienced by eminent domain; should be able to ask for a top dollar amount for their property.
Comment by kageman — October 7, 2009 @ 8:55 am
kageman,
I doubt anyone — other than someone invoking eminent domain — would disagree with you.
Kelo terrified a lot of people, because it drove home the point to John and Jane Q. Public that their beloved elected and appointed officials are not always acting in the community’s best interest. If you have time, read Justice Thomas’ dissent in Kelo.
Comment by Bill — October 7, 2009 @ 10:32 am