10/10/2005

Curb on eminent domain possible: The Kentucky Post, 10/1/05

By Stephenie Steitzer

Legislation that would curb the use of eminent domain likely will be on the Kentucky General Assembly's 2006 agenda when it convenes in January.

Northern Kentucky legislators think there is enough bipartisan support to pass a law in the next session that would limit how cities and counties can take private property for economic development projects.

"I think members of both parties are interested in reining in some of the powers that have been given to state and local governments to acquire property through condemnation," said Rep. Joe Fischer, R-Fort Thomas, a member of the joint legislative judiciary committee that heard testimony on the issue last spring.

A decision by the U.S. Supreme Court in June has infused some momentum into the cause, he said.

In Kelo v. City of New London, the high court ruled that private property could be taken for a private good if it also benefits the public - building a shopping center, for example.

The 5-4 decision, however, also said states have the right to place further restrictions on the use of eminent domain.

Some Kentucky legislators said they are particularly interested in rescinding a provision in state law that allows cities to declare property blighted as a pretext to then acquire it by eminent domain for redevelopment.

That is precisely what has happened in Newport, where the city has struck a deal with Montgomery, Ohio-based Bear Creek Capital to develop a retail project on 55 acres just west of Interstate 471 in the Cote Brilliante neighborhood.

The city declared the property blighted in 2002 and subject to private development under terms of eminent domain.

The city then set its sights on 123 properties needed for the project. Most of the owners negotiated sale deals with the city, but about a dozen filed suit in Campbell Circuit Court last year.

Circuit Judge Leonard Kopowski ruled in June 2004 that the city was entitled to use eminent domain, which allows governments to take property for a public purpose at a fair price to property owners, for the project.

The property owners who sued appealed the decision to the Kentucky Court of Appeals, which ruled Friday in the city's favor.

Newport City Manager Phil Ciafardini said Kentucky "already has a lot of restrictions" on how eminent domain is used and taking away a city's ability to declare property "blighted" would hinder important redevelopment.

"There's no question that the revitalization of Newport and other urban areas would not be possible without our ability to look at blight issues in the community," said Ciafardini.

"Without that ability, we would not have projects like the Newport Aquarium or Newport on the Levee, and it would really thwart our redevelopment efforts. A city like ours needs to have that ability."

But Sen. Jack Westwood, R-Crescent Springs, called Newport's eminent domain action in the Bear Creek Capital development "un-American."

Westwood said he expects a legislator - who has yet to be determined - to prefile a bill limiting eminent domain before the session starts in January.

He said he would likely be a co-sponsor.

Ciafardini declined to reply to Westwood's characterization of Newport's tack in the Cote Brilliant redevelopment.

The Kentucky League of Property owners and other property rights groups have banded together to lobby the General Assembly.

The league would like to prohibit government from taking private property for any economic development purpose, said Tim Nolan, former Newport city attorney and founder of the Campbell County chapter of the league.

Property rights advocates also want legislators to stop cities from declaring property blighted for the purpose of eminent domain.

Nolan said eminent domain should be restricted to its original purpose of allowing for infrastructure like roads and sewers to be constructed.

Rep. Gross Lindsay, D-Henderson, co-chair of the judiciary committee, said he suspects a bill restricting eminent domain will be filed in the next session. He isn't sure, however, how far such a measure might go to limit cities' authority.

"I would think something would come out," he said. "What it would be I don't know."

The Kentucky League of Cities is lobbying legislators to preserve the use of eminent domain as an important economic tool for cities.

In Ohio, senators have introduced a bill that would establish a moratorium until Dec. 31, 2006, on the use of eminent domain to take property located outside a blighted area for the purpose of economic development.

During the moratorium, a legislative task force would study eminent domain and its impact on land use planning in Ohio.


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