Legislature steps into eminent-domain battles: In Business Las Vegas (NV), 7/8-15/05

By Alana Roberts

Although the U.S. Supreme Court recently ruled that government bodies can take away private property in the interest of economic development, the Nevada Legislature has made the process more difficult.

The Legislature passed two bills during the recent session that make it more difficult for governmental bodies to take private property. One revises Nevada law so that it requires governmental bodies to meet four out of nine criteria to condemn a piece of property before taking it. The other forces governmental bodies who take land for open space projects to pay the property owners not only for the property but also for "goodwill" costs such as lost business income.

Christina Dugan, director of government affairs for the Las Vegas Chamber of Commerce, said the two bills go a long way toward protecting the rights private property owners have.

"We're very supportive of the two bills passed this session strengthening the eminent domain regulations and the burden government has to meet to take your property," Dugan said. "We're very concerned about that (U.S. Supreme Court) ruling, but we feel some of the legislation passed will help Nevada to prevent what happened in Connecticut."

Dugan said although some companies, particularly larger or more profitable ones, do benefit from land takings, she said it's in every land owner's interest to have their rights protected.

"Allowing too much discretion makes it difficult for businesses to engage in long-term planning, no matter what their size," Dugan said. "At the end of the day, it's about protecting the fundamental rights all businesses have. When you start to erode property rights no one is immune from a taking."

However, James J. Leavitt, an eminent-domain lawyer at the Law Offices of Kermitt L. Waters, said the new Nevada legislation doesn't go far enough to protect property owners from unfair takings. He said the legislation that requires governmental bodies to meet more criteria to condemn private property for public use doesn't allow for the property owner to fight the government's decision in court unless there's a finding of bribery or fraud.

"In my opinion I think that statute is meaningless," Leavitt said. "The government can come forward and say they've met these four criteria and no one can challenge that unless there's a finding of bribery or fraud. That's just silly. What we need... is that the findings by governmental bodies are subject to judicial review."

Leavitt represented the Pappas family in its 11-year eminent-domain fight against the city of Las Vegas. He said his firm is working to start an initiative petition to change the Nevada Constitution to implement a property owners' bill of rights. He said his firm hopes to get the issue on the 2006 general election ballot.

"What that bill of rights would state is that private property could not be taken from one private land owner and given to another to increase the tax base," Leavitt said.

He said the firm doesn't oppose takings that will be used for "true" public use such as for a school or a roadway.

"The hot issue is redevelopment," Leavitt said. "Ninety-nine percent of the time the government takes private property to build a public road or a park. What becomes very disturbing is when they take private property and give it to another private entity."

Doug Kurdziel, an eminent-domain lawyer at Jones Vargas who has represented both land owners and governmental bodies, said the new U.S. Supreme Court ruling doesn't necessarily mean the end of the right to own property. He said the ruling strengthens the court decisions already made on the issue.

"The Constitution is still alive and well," Kurdziel said. "I think it reaffirms what the courts already said. They (property owners) still have the right to say, 'No, not today. This is wrong.' If they do that there's still going to be a judicial decision."

In Business Las Vegas: www.inbusinesslasvegas.com