1/01/2006

Eminent Domain Hits Home: Columbia (MO) Daily Tribune, 12/31/05

Man hopes struggle will instruct others

It took five years and a contested decision from the U.S. Supreme Court, but Doug McDaniel finally has his captive audience.

"Most people, when you start talking about eminent domain, get glassy-eyed and don’t think that it could ever happen to them," he said.

It happened to McDaniel, 49, whose family has lived outside of Linn in central Osage County since 1791. McDaniel complained to legislators, but nothing happened.

Then in June, the Supreme Court drew national attention to the use of eminent domain, ruling property could be taken for private redevelopment that generates more taxes.

Gov. Matt Blunt responded by appointing a task force on eminent domain. Now the issue is among the Missouri General Assembly’s priorities for the 2006 session.

But the new interest comes too late for McDaniel. After negotiations with Ameren produced no agreement, the St. Louis-based power company used eminent domain to acquire the land it needs to build a 345-kilovolt power line that will help Ameren sell electricity in northwest Arkansas. The line cuts through McDaniel’s fields, running six feet from his metal barn and 75 feet from the farmhouse.

"When this first started out, as the landowner, naturally, I thought I had more rights to the land than anyone else," he said. "I was pretty shocked that people other than me had more rights to my land."

Missouri law gives municipal governments the authority to condemn private property for public use, such as the construction of roads and electric and water lines. Although local governments can also use eminent domain to seize property for private developments, such as shopping malls or office buildings, some private companies also have this condemnation authority.

Michael Cleary, a spokesman for Ameren Services, said Ameren does everything it can to work out an agreement so the utility has permission to use the land without the property changing ownership.

Cleary said that sometimes, with particularly reluctant landowners, eminent domain is the only way to acquire land needed for an electrical line.

"The landowner wouldn’t have power if someone somewhere hadn’t granted an easement to get the power to them," he said. "Putting it in someone else’s back yard isn’t really an option, because then you just have another landowner."

The examples of eminent domain use extend throughout the state, yet geography affects the debate.

In rural areas, utility company easements are one of the most common manifestations, because private property is rarely needed for commercial development.

Likewise, larger cities have plenty of power lines, but a city government can increase its tax base by declaring homes or apartment buildings "blighted," thus opening them for development by other private entities.

But the definition of blight is subjective and often has been criticized as a mechanism for taking private property and using public money to redevelop it.

"A piece of property should have to be clearly blighted and not just in worse shape than mine to call it blighted," said Sen. Chuck Gross, R-St. Charles, who served on the governor’s eminent domain task force. "It shouldn’t be a relative figure but an objective standard that isn’t left up to the whim of a local government or the court."

As frustration over eminent domain mounted, a special House committee was named in 2003 to study the state’s eminent domain laws. McDaniel was among those urging change. But the full House never voted on the committee’s recommendations.

Since then, McDaniel’s legal battles with Ameren have continued, and the state is again gearing up to change how eminent domain and easements can be used.

A gubernatorial task force appointed to study eminent domain has recommended its changes, and a slew of bills have been filed. Some would narrow the types of properties that can be seized under eminent domain; one would require businesses that use eminent domain to acquire private property to give 2 percent of the annual earnings from the site to the former landowners.

Had the recent recommendations from the governor’s task force been in place when Ameren began its project in 2001, the company still could have put a power line through McDaniel’s farm, but it would have happened differently.

Ultimately, Ameren condemned and repossessed a tract on McDaniel’s farm. One proposal calls for stripping eminent domain authority from private companies. This would not necessarily include utility companies, but the task force urged the legislature to consider whether utilities and railroads should also have the same condemnation authority as the government.

Under the task force recommendations, McDaniel would have been given information about his legal rights as soon as Ameren indicated it wanted an easement for his land, and he would have had access to a state ombudsman to help him through the process.

In spite of the recent attention, McDaniel said most people still don’t understand eminent domain, which makes them vulnerable.

"People think if they own their home and pay their taxes, it’s theirs, but if someone with more money comes along and wants to develop it, run power lines over it or a sewer line under it, they could lose it," he said.

Cleary said it’s important to differentiate between the instances when utility companies use privately owned land to extend electrical, gas or water lines across property and when developers and municipal governments use eminent domain for redevelopment.

"Utility projects provide a community service that ultimately benefits the entire community," Cleary said. "It’s an entirely different situation than condemning property to turn it over to a private developer for an office building or a shopping center. That’s what’s really raised the public ire."


Columbia Daily Tribune: www.columbiatribune.com