Nevada Restricts Eminent Domain Abuses: The Heartland Institute, 8/1/05

Democratic senator's perseverance results in hard-fought protections

By James M. Taylor
Nevada citizens have gained important protections against aggressive eminent domain takings by local government agencies.

A bill passed by the Nevada legislature on May 30 prevents local governments from taking private land for redevelopment unless at least two-thirds of the land taken is determined to be blighted. Owners of the taken property must be paid for loss of business income rather than just the market value of the property.

Bill Faced Many Obstacles
State Sen. Terry Care (D-Las Vegas) introduced the legislation early in the 2005 legislative session and successfully navigated a minefield of obstacles to see the bill gain the approval of the legislature. The bill became law on June 4, after Gov. Kenny Guinn (D) failed to either sign or veto the legislation.

In its original version, SB 326 required that before a redevelopment agency can take a private property, there must be a finding that all parcels taken for redevelopment are blighted. Additionally, the original version of the bill would have precluded the use of eminent domain merely for the purpose of acquiring or preserving open space.

Facing stiff opposition from county governments and environmental activist groups, Care declared his bill had reached a dead end on May 10. "I'm not going to push for legislation I know is not going to pass," Care told the Reno Gazette-Journal.

Bipartisan Spirit Prevailed
However, buoyed by bipartisan sentiment that a scaled-back version of the bill would benefit the citizens of Nevada, Care removed the open-space provisions and compromised on the share of private land that must be determined to be blighted before a redevelopment agency could take it.

Foremost among SB 326's supporters was Senate Judiciary Committee Chairman Mark Amodei (R-Carson City), who put aside partisan politics to champion Care's bill. As Care was prepared to abandon the measure, Amodei argued local governments already had many tools at their disposal to acquire property, but private citizens had few protections against overly aggressive takings actions.

"This [unrestricted eminent domain power] is dangerous whether you see yourself as pro-environment, pro-property rights, or something in between," said Amodei, as quoted in the Gazette-Journal.

"I don't think there's any doubt the time has come for the Legislature ... to do something about the abuses that occurred in eminent domain," said Care.


Blunt Instrument Pocketed
Economic and environmental consultant Wallace Kaufman explained why Nevada legislators sought to limit the state's eminent domain powers.

"Taking by eminent domain is a blunt instrument even for the most necessary public uses," Kaufman said. "An objective market value limits the amount of 'just compensation.' What the government takes, of course, are other values that often have no assignable dollar figure. The economic value to the particular user is usually not reflected in the uses for which the market is willing to pay. This could range from a craftsman's shop to a highly specialized business."

For example, Kaufman explained, "personal or family history is completely ignored. During a court case involving the Jordan Dam in central North Carolina, the attorney for the Corps of Engineers asked tobacco farmer Jim Diggs why he wouldn't sell his land if it was as valuable as he claimed. Diggs answered, 'Because my father farmed this land and my grandparents farmed this land, and my great grandparents farmed this land, and I don't want to leave it.'

"A genuinely necessary public use may require the use of eminent domain even in light of the above shortcomings," summarized Kaufman. "However, requiring a person to sacrifice both monetary and personal interest for the profit of the county or another citizen in the dubious name of 'public benefit' is another story altogether."

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The Heartland Institute: www.heartland.org