Borough: Keep off private land

Assembly president floats idea to prevent exercise of eminent domain powers

Posted: Monday, August 15, 2005

Kenai Peninsula Borough Assembly President Gary Superman wants borough code amended to prevent the exercise of eminent domain where that power could take property from one private owner for the exclusive use by another private party.

Ruling on a Connecticut civil case (Kelo v. City of New London), the U.S. Supreme Court recently upheld that city's power to take private property for a private development based on the argument that the new development would have a broader economic benefit to the community by expanding the property tax base, among other things.

The Fifth Amendment to the U.S. Constitution requires that "property shall not be taken for a public use without just compensation." The Supreme Court has tended to give a broad interpretation to the term public use.

In the New London case, the high court declined to redefine the Fifth Amendment's "takings clause" to make public use more restrictive as Connecticut petitioners had asked, and they affirmed the Connecticut Supreme Court's decision upholding the use of eminent domain to take land along Long Island Sound from private homeowners for a planned development. The justices left intact, however, right of states to enact laws restricting the use of eminent domain beyond the limits of the Fifth Amendment.

The ruling has generated responses in many states whose lawmakers want to enhance protections of private property rights.

"Though at the opposite end of the property rights spectrum, it approaches the infamy of Dred Scott," Superman declared in a July 21 memo to the assembly accompanying his proposed ordinance.

In the 1857 Dred Scott ruling, the Supreme Court declared no slave or descendent of a slave could be or ever had been a U.S. Citizen. Thus Dred Scott, who had sued for his freedom, was determined to have no right to sue in federal court and had to remain a slave.

Ordinance 2005-34, introduced at the Aug. 2 assembly meeting and set for a public hearing Sept. 6, would amend borough code regarding the acquisition of land and resources. Consistent with state law, the current code allows the borough to acquire lands and resources inside or outside its boundaries by any lawful means, including tax foreclosures, judgments, dedication, purchase, lease, exchange or trade, grants and gifts, and through the exercise of eminent domain and declaration of taking.

Superman wants to add a new subsection that would declare that the borough "shall not exercise its power of eminent domain for the purpose of taking private property for exclusive use by a private party."

Superman noted that courts have for many years interpreted the takings clause broadly and liberally, enabling governments to take property from one owner, "often small and powerless," and transfer it to another, "more politically connected entity under the pretense of economic development and property tax enhancement," he said.

In the Kelo case, the high court said New London's determination that the area at issue was "sufficiently distressed to justify a program of economic rejuvenation" was entitled to deference. The development plan envisioned was expected to benefit the community through the creation of new jobs and increases in tax revenues. The city invoked a Connecticut state statute specifically authorizing the use of eminent domain to promote economic development.

Superman asked his colleagues to join him in "plugging the void in our code" and protecting the private property rights of borough citizens in the future.

According to Borough Attorney Colette Thompson, in the 11 years she has been with the borough, the borough has not exercised eminent domain. As far as she could recall, it has not done so in its history for anything remotely similar to the New London case, though she said there might have been some use of the process in the past where state roads were concerned.

The impetus for Superman's ordinance was the court case, not any past precedent set by the borough, he said. Its passage would bind future assemblies, he noted, adding that a lot of municipalities across the nation were lining up to do the same thing.

"It is something we can confront at the local level," he said. "We don't have jurisdiction over the state or the feds, obviously, but at the borough level, we can put it in code that we will not be partaking of the decision in any form or fashion. It was a pretty unpopular decision."



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