Eminent domain: Ft Wayne (IN) Journal Gazette, 1/11/06


Proposed legislation to increase the burden on government when it uses eminent domain to acquire private property will be a step toward protecting property-owner rights.

It does so without removing a necessary tool from local government’s economic development toolbox. However, a loophole in the bill that exempts the Indiana Department of Transportation from having to meet the same requirements is wrong.

House Bill 1010, sponsored by David A. Wolkins, R-Winona Lake, would raise the burden for units of government wanting to take land from private property owners. The proposed bill was unanimously endorsed Monday by the House Judiciary Committee.

Government should always have to make a clear case that taking private land is justifiable and will serve the public’s best interests. And in cases where the property is going to be turned over to a private owner, government’s burden of proof should be higher than when the property is going to remain under public control.

Under the proposed legislation property owners would get 150 percent of the fair market value – 125 percent for farmland. Government would also have to reimburse property owners for legal fees over $1,000. The bill also sets specific criteria to declare land blighted.

“The definition we had before was so lax that you could declare anything as blighted,” Wolkins said. “Now there is specific criteria.”

And every parcel of land a city wants to acquire has to fit the blighted description. A city can’t declare an entire area as blighted.

Two recent uses of eminent domain in Fort Wayne offer good examples of both the necessity of eminent domain and the need for caution.

Clearly, in the case of the former Southtown Mall, the use of eminent domain was right. The property was not only an eyesore, it was a severe public safety hazard. Although a private company is developing the property, portions of the land will still be used for public purposes. Since the city is not in the construction business, a private-public partnership was the only way to make the project happen. The new Menards and Wal-Mart will undoubtedly add to the betterment of the community by creating hundreds of jobs and increasing the tax base.

In contrast, the wisdom of the city’s use of eminent domain to take over the downtown Belmont Liquors property is less obvious. The city acquired the property to build a third downtown hotel as part of its downtown revitalization plan. But when the plan was updated, city leaders had second thoughts on the hotel location.

The community would benefit from a third hotel, but the city should have used eminent domain only as a last resort, i.e., after it was certain of the location for the hotel.

The proposed legislation’s exception for INDOT was clearly made in deference to Gov. Mitch Daniels. The new law has the potential of making his Major Moves initiative, which may involve a private company operating the proposed extension of Interstate 69, more problematic.

“I’m not going to go to the wall for that issue because it is a contradiction. I grant you that,” Wolkins said. “But I wanted to give the governor a chance to make his case.” But Wolkins also thinks that there is some justification for the exception because there is a public benefit to the road even if it is operated by a private company.

State legislators should remove the exception for INDOT before final approval. If it’s good for cities to have to demonstrate either a clear public advantage, or obvious blight, then the state should have that same burden.

The proposed legislation, with a few tweaks, would be a step toward ensuring that when a unit of government in Indiana uses eminent domain to take private land, the landowners are justly compensated. And if government takes land that will be turned over to a private developer, it must prove that the land is blighted and that putting it to an alternative use will, in the end, serve the best interest of the community.

Ft Wayne Journal-Gazette: www.fortwayne.com