Eminent domain — unpopular, profitable: Witchita (KS) Eagle, 8/15/05

State lawmakers to take up the issue this fall

By Steve Painter

Farm groups and other property rights advocates are pushing lawmakers to protect residents from local governments that want to seize land in the wake of a U.S. Supreme Court decision earlier this summer.

The court's 5-4 ruling upheld a move by the city of New London, Conn., to buy several properties from unwilling sellers to enable the construction of a large redevelopment project that would include a pharmaceutical research facility, a hotel, upscale housing, shops and restaurants.

More than two dozen states are considering laws to protect residents from local governments that want to force them to sell land to developers.

Kansas lawmakers plan to study the issue during interim committee meetings this fall.

The Supreme Court ruling worries those who think their property may be in the path of economic development.

"I don't think it's right for one individual to walk up to you and say, 'I want your land because I can do something bigger and better,' " said Kelly Williamson.

Her family's ranch in eastern Cowley County would be flooded if a lake that has been proposed were built.

It worries her that the idea is being kept alive in the Visioneering Wichita process.

"It concerns me greatly, and it makes me angry," she said.

Kansas law allows local governments to take land to create jobs, clean up blighted areas and expand the tax base. That seizure power, called eminent domain, is most often used for public works projects such as roads.

In recent years, the city of Wichita has rarely used eminent domain for economic development.

"We avoid it like the plague," said Allen Bell, the city's economic development director.

But the tool remains important for urban redevelopment, he said, and could become a factor in developing retail, restaurant and hotel space near the downtown arena.

Other cities across the state have used eminent domain more extensively. The Washington-based Institute for Justice counts Kansas among the three states in which governments are most likely to forcibly buy property from one private owner to transfer it to another.

Missouri and New York are the other two, said Bert Gall, a lawyer with the institute, which assisted the New London landowners in their appeal.

"In those three states, pretty much anything goes," he said.

Among the incidents the group cites is the city of Merriam's decision in 1998 to condemn a used-car lot so that a BMW dealer could expand.

Senate Majority Leader Derek Schmidt, R-Independence, would like to see restrictions on eminent domain, although he contends that is unlikely to pass.

"Realistically, I think our goal is to set the bar very, very high," he said. Schmidt may co-sponsor a bill with Sen. Greta Goodwin, D-Winfield, who represents property owners in the area of the proposed lake.

Sen. John Vratil, R-Leawood, chairman of the Senate Judiciary Committee, is not convinced the law needs to be changed.

"Quite honestly, I don't think there's anything wrong with Kansas law," he said. "I think there's something wrong with the way some governmental entities use the law."

An economic boon
Wyandotte County used eminent domain to obtain some of the more than 120 houses and properties occupied by what is now the Kansas Speedway and the adjoining Village West shopping, dining and lodging development.

Few would question the results from an economic development standpoint.

The 1,400-acre district attracts 12 million visitors a year.

More than 3,000 people have jobs in Village West, and another 75 work full time at the race track.

Property that formerly generated $230,000 a year in taxes now generates $6.3 million, even with a 20 percent drop in the mill levy since 1997.

The surrounding area is experiencing a 40-year high in residential construction.

"We were a dying community," said Don Denney, spokesman for the Unified Government of Wyandotte County/Kansas City, Kan. "This has exceeded everybody's expectations."

But it came at the price of uprooting several hundred people. Sen. David Haley, D-Kansas City, considers that move one of the state's darkest hours.

Although the city came to terms with about three-fourths of the property owners, the rest were forced into selling. Many could not find housing they could afford in the area, Haley said, even though a law passed for the project required that residents be paid 25 percent above appraised value.

"The rich got richer, and the original landowners got thrown off their land," he said. "It's unconscionable."

A legal challenge ended with the Kansas Supreme Court upholding the property acquisitions.

States rush to clarify
Since the U.S. Supreme Court decision was issued June 23, the Alabama Legislature has met in special session to prohibit using eminent domain to acquire property for developers.

More than two dozen states are considering similar measures.

"To take property away for economic development flies in the face of our democratic form of government," said Steve Baccus, president of Kansas Farm Bureau. He said the group will pressure lawmakers this fall for action to block forced property sales.

Donna Martin, whose Cowley County property lies at the upper end of the proposed lake, said even the prospect of losing property caused an economic slump in her area.

"Nobody wanted to build fences. Nobody wanted to buy new equipment," she said.

But after a state agency declined to fund a feasibility study for the lake last year, she said, residents took renewed interest in reviving their economy.

Three buildings are being remodeled to be bed-and-breakfasts. The Williamsons are preparing to open a weekend chuckwagon dinner business.

The message they hope to send, Martin said, is that the region is economically viable just as it is.

Schmidt, the Senate majority leader, agrees with the principle.

"Individuals have a right to say no to powerful entities, whether it's government or whether it's business," he said.

Wichita Eagle: www.kansas.com