By Tom Dorsey
It’s been called the offer you can’t refuse.
Eminent domain — the government’s right to buy your property whether you want to sell or not — long has been controversial. Critics use phrases such as “abuse of power” when they talk about it. Salina City Manager Dennis Kissinger says much of the rhetoric is overheated.
“I think people make too big a deal out of eminent domain,” Kissinger said. “In most cases, it wasn’t that the owner said they wouldn’t sell at any price. It’s just a disagreement over price.”
The issue surfaced in Salina recently, most notably in connection with the North Ohio Street overpass project. Five property owners refused the city’s offer and ended up in court.
And last week, the city commission decided to use eminent domain to acquire farmland southeast of town for a soccer complex. The city wants to buy 65 acres of land; three of the four parties agreed to the city’s offer of $6,500 an acre. The owners of the fourth parcel — a 17-acre tract in the Smoky Hill River flood plain that has been owned by the Olson family for nearly 100 years — have been holding out for $10,000 an acre.
Kissinger said that although eminent domain cases are highly visible, they are very much the exception.
“It’s really a fairly small number of cases,” Kissinger said.
In the past 15 years, the only other instances of the city resorting to eminent domain involved the realignment of the Belmont at Ohio street intersection, the drainage basin for the Knox sandpit, and installation of a sewer interceptor back in the 1980s, Kissinger said.
On the other hand, the city routinely acquires land, easements and rights of way.
“The record shows we deal fairly with the property owner,” Kissinger said.
Just recently, the city reached an agreement with the owner of a house next to a fire station.
“If we had been substantially off in price, we would have found ourselves in eminent domain,” he said.
The courts have said that government can acquire private property, so long as the owner is justly compensated and the property is put to “public use.”
What can be taken?
But while many people agree that expanding the fire station or building an overpass are legitimate public uses, the issue is less clear-cut in some other cases.
When plans for a NASCAR track in Kansas City, Kan., were announced, Wyandotte County used eminent domain to acquire dozens of parcels with homes. The Kansas Supreme Court ruled it was a public use, even though the track is owned by NASCAR.
Similarly, the city of Merriam used eminent domain to allow a BMW dealership to expand, and Shawnee County resorted to eminent domain to acquire land on behalf of Target, the big-box retailer.
Last year, a bill was introduced in the Kansas Senate that said “the taking of private property for the purpose of selling, leasing or transferring such property to any private entity ... for industrial or economic development shall not constitute public use.” It failed to pass the Senate.
Two months ago, the United States Supreme Court heard testimony in Kelo v. City of New London, a case in which the city wants to acquire a 90-acre neighborhood and lease it to a developer for $1 a year. A ruling is expected this summer.
Court rulings around the country have been mixed. While the Connecticut Supreme Court sided with the city of New London, the Arizona Court of Appeals in 2003 said the city of Mesa could not use eminent domain to take property from a brake-shop owner and turn it over to Ace Hardware. And in 2002, a federal court in California prevented the city of Cypress from condemning a church-owned property and selling it to Costco.
Kissinger pointed out the city of Salina has never used eminent domain to acquire land for economic development. In fact, the city is reluctant to use eminent domain in some cases involving traditional public uses.
“If someone has a family home they’ve lived in for 55 years, to acquire that for parkland may be substantially different than acquiring wheat fields,” Kissinger said.
In the soccer field case, several property owners agreed to sell to the city; only the Olson family held out for a higher price. If the city had been unable to reach an agreement with any, Kissinger doubted that eminent domain would even be considered.
“If all four owners had been resistant, that’s different than if the last one is,” he said.
The process isn’t necessarily rancorous.
“We each have a job to do,” Kissinger said. “Our job is to make sure taxpayers don’t grossly overpay. But we are required to pay fair value.”
Mark Hagen, a lawyer in Overland Park who takes eminent domain cases, says fairness is what eminent domain is all about. When railroads started spreading west in the 19th century, speculators made huge profits buying up land that would be required for right of way.
“That is why eminent domain came about,” Hagen said. “It’s basically to prevent profiteering. It’s very public. Nobody gets their land taken away by some secret government action. It’s going to be on the record, and the appraisals will be part of the record.”
Started in 1889
Gary Olson, who along with his brother, David, and mother, Vonna, own the 17 acres in question, said it’s hard for him to imagine the property being used for soccer. His great-grandfather, Gust Johnson, who was born in Norway, started farming in Saline County in 1889. According to county records, in 1909 he bought a tract of land along the river in Walnut Township, southeast of Salina.
In April 1936, less than three months before he died of cancer, Johnson sold the property to Ruth Olson, his daughter and Gary’s grandmother.
“I remember as a kid going down there,” Olson said.
Olson said he’s not necessarily opposed to selling the property. In fact, his family has sold property to the city and Salina School District in the past. Neither of the other instances — land the city acquired in the early 1990s for a sewage pump station on Magnolia Road, and a parcel the school district bought about three years ago for future expansion (Olson still farms the land) — involved eminent domain, but Olson believes it would have come to that if he had refused to sell.
“This is the third go-round of, ‘either you do this, or we’ll do that,’ ” Gary Olson said.
We’ve got other ideas
Olson says his family had other plans for the parcel the soccer club wants now.
“My brother had other ideas for the land,” he said. “He maybe wants to put in a miniature golf course.”
David Olson didn’t return telephone calls for this story.
But county zoning regulations would appear to make a miniature golf course impossible unless the property were first rezoned. Under the regulations, a variety of uses are permitted in agricultural zones, but miniature golf courses are allowed only in industrial, business or village zones.
For instance, with a conditional-use permit, drive-in theaters, gymnasiums, go-cart tracks and golf courses that have a country club are allowed. (Golf courses without a county club don’t require a permit.)
The potential for commercial development of the land is limited by its location — much of the Olson’s 17-acre tract is in the river’s flood plain; some is in its floodway. Before development of any sort proceeds in a floodway, a study must be conducted and conclude the changes will not cause the flood level to rise.
Shawn O’Leary, the city’s public works director, estimates that less than a fifth of the land to be used for the soccer complex is in the floodway. He’s confident the flood zone designation will not sink the project.
“We did a fair amount of exploratory work on all these issues,” he said.
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