Eminent domain may become hot button law: Hope (AR) Star, 7/13/05

By Ken McLemore

Following is the second of two parts regarding the impact in Arkansas of the U.S. Supreme Court decision in Kelso v. City of New London.

Eminent domain law may become the new hot button Constitutional law class in law schools around the nation as a result of the U. S. Supreme Court's recent ruling in a Connecticut case; but, as a practical matter, two local attorneys think it will remain cut and dried in Arkansas - unless someone finds a means to test the law in Arkansas.

In Kelso v. City of New London, the U. S. Supreme Court found that the application of Connecticut law regarding the public taking of private property (eminent domain) does not conflict with the "Takings Clause" of the Fifth Amendment to the U. S. Constitution where a private, non-profit economic development entity benefits from a city's exercise of eminent domain to the benefit of a third party private developer.

Hempstead County Attorney John Gilbert Burke, and Hope City Attorney Joe Short both envision one scenario in Arkansas which might fit that scenario.

The announcements in recent months of the development of automotive parts assembly facilities in the Arkansas Delta region near Wynne and Marion have given rise to significant speculation over the siting of a major automotive manufacturer in the region. Both Burke and Short said the prospect of an eminent domain test case stemming from such development could force a new look at Arkansas' eminent domain law.

"Number one, you've got to find a government agency to go through; the city, the county, the state, because you can't just go out and take someone's property," Burke said. "Once that governmental entity does it, your only issue when you go to court is the money. There is no issue whether Hempstead County can take your property; it's just how much money you're due.

"So, you are going to have to address that issue, wherever you start it, circuit court probably; and, you're going to have to raise that as a Constitutional issue in circuit court," he explained. "If the judge says, 'You're right, our Constitution says the government can't do that,' that is the test; but, if the court says, 'No, you're wrong, that can be done,' then, you go up the chain.

"Until this case, we would just not have considered it," Burke said. "But, that example is a good analogy."

Short was more explicit.

"What happens if Toyota wants to come build an auto plant in Arkansas, and they say, 'We want it here;' and, everybody agrees to sell but one guy that's got a 25 or 40 acre plot, that guy doesn't want to sell at any price? You can offer them all the money in the world; what happens?," Short posed. "Can, then, the state come in and condemn it, and say that is for a better purpose than his use?"

Burke points out that, in Arkansas, the exercise of eminent domain has historically been "all about the money," principally because of the relative availability of land in Arkansas, unlike Connecticut.

"Property around here is just too plentiful," he said. "If you want to put in something, all you've got to do is go out and buy the property. It has to be a factor; and, I don't know all of the specifics of that case, but that must have been a very desirable location that you couldn't put down the street, and it had to go there."

He noted a recent case involving a condemnation of land along Springhill Road was typical of the cut-and-dried correlation between condemnation and compensation.

"You have to determine what kind of property you're dealing with," Burke said. "In the Springhill Road case, its highest and best use was agricultural. It had a potential for residential, because of rural residences around it; but, at the time, it's highest and best use was agricultural."

That issue subsequently defined the value which the land owner placed on the property, as compared to the compensation offered by the Arkansas Highway and Transportation Department through the county.

"If you don't like it, your recourse is to take it to court, in this case the county court," Burke said. "In this case there was approximately an half-acre, some trees were cut down, and the land owner was not happy with what he was offered."

Ultimately, the only issue for the local jury to resolve was whether the property was worth more than the $1,500 offered by the state. Burke said the property owner was awarded $3,000.

Burke said the exercise of eminent domain is rare in Hempstead County.

"Mainly, for building a road or a street," he said. "The extension they're doing out on Greenwood, and then Springhill Road; that's typical. You don't really see the City of Hope, or the county, taking property to build structures."

Burke admits to a certain shock at the high court's decision.

"My understanding of that case is that the court has expanded 'public use' to mean, I guess, for the greater good of the public, and for the greater good of the tax base," he said. "And, I find it hard to believe that, if it's not actually a public building or a public road going in, I can't believe they came down like that. The ramifications of that could be huge, I would think.

"To me, you've got the issue of whether you can take somebody's property to put in a shopping mall," Burke added. "And, when you go back to their case, I guess that's feasible, a feasible taking; and, I would hate to have to fight that out.

"I don't see that happening in Arkansas," he said. "But, I wouldn't have thought you'd see it anywhere. I just wouldn't have conceived that the term 'public use' could be expanded that far out and used that liberally."

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