City delays action on eminent domain — Bowling Green (KY) Daily News, 1/5/05

Use of law in promoting private redevelopment hot election topic; leaders will wait on court decision

By Jim Gaines

Bowling Green’s new city commission dove into a controversial issue at its first meeting Tuesday night, wrestling with whether to ban the use of eminent domain as a tool in promoting private redevelopment projects.

In a 3-2 vote, commissioners chose to delay a decision indefinitely – at least until a U.S. Supreme Court case dealing with the issue is decided later this year.

The ordinance, introduced by Commissioner Brian Strow, would have prohibited the city from condemning land for the purpose of turning it over to another private entity, such as a development company. The ongoing plan for the city’s ambitious downtown redevelopment specifically allows that use, citing potential economic development as a worthwhile public purpose.

Strow campaigned on opposition to this use of eminent domain last fall.

“I do not feel it is the proper use of city power to take private land from private individuals and turn it over to a private developer,” he said last night.

Commissioner Delane Simpson said that he agreed, but considered it too early in the new commission’s life to quickly decide a matter with such far-reaching consequences.

Strow and Commissioner Mark Alcott cited constitutional protections of private property as a reason behind the ordinance. “There are some items that this may hinder,” Alcott said.

Several planned downtown projects explicitly call for the city to buy private property, through eminent domain if necessary, and turn it over to a private firm – but barring use of eminent domain won’t necessarily stop them, Alcott said.

Using eminent domain to buy property for another private entity has the net effect of taking the sale’s profit from the original owner and transferring it to the potential developer, he said.

The effect of the ordinance would be felt not just downtown, but all over the city, he said; the city could still buy property and turn over to a private developer – it just couldn’t use eminent domain to do so.

Commissioner Brian “Slim” Nash asked for comments from the public, and several downtown businessmen and landowners rose to say that uncertainty about whether their property will be bought for redevelopment – or when – discourages them from doing needed maintenance or making improvements. They complained that several months or even two years after being told they might be targeted for buyout, the city had given no timeline or amount for the purchase.

Nash said that he struggled with his decision: He agrees with Strow, but thinks the move would be premature before the Supreme Court case of Kelo vs. New London is decided.

He pointed out that if it did not pass, commissioners could still vote against any use of eminent domain they considered unfair on a case-by-case basis, and that prohibiting this use of condemnation did not address the lack of communication that downtown owners complained about.

He moved to table the ordinance.

The vote split the commission, with Nash and Simpson voting to table while Strow and Alcott sought to press forward. The deciding vote fell to Mayor Elaine Walker.

She voted to table the ordinance. Voting rules prevented her from commenting on it once the motion to table had been made, but she gave her opinion immediately after the meeting.

“I support what was brought forward in the ordinance,” she said. But Walker, too, felt the need for additional input on the move’s timing and long-term effects, saying that she expects it to re-emerge in the near future.

The close vote and long discussion demonstrated that commissioners take the use of eminent domain for redevelopment very seriously, she said.

“I don’t believe that there’s one member who feels like it should be used as a big stick, and I think that’s how it was used in the past,” Walker said.

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