Bill looks to change eminent domain law: Beaufort (SC) Gazette, 1/29/06

By Michael R Shea

Debates over government powers to condemn private land for public projects could affect Jasper County's 15-year work-in-progress, a cargo container terminal on the Savannah River.

A bill sponsored by several Charleston senators and Sen. Scott Richardson, R-Hilton Head Island, seeks to change the language of the existing state law on eminent domain. Rather than condemnation for "public purpose," the legislation would change the language to "public use" and provide a checklist of requirements the project would have to meet.

The legislation reads in part:
  • The property must not be condemned for a private use.
  • The public body must own, operate, and retain control over the condemned property.
  • A mere public purpose or public benefit including ... economic development, does not constitute the requisite public use for property to be condemned by eminent domain.

If applied to the Jasper County case, all counts could invalidate the county's agreement with SSA Marine. In that pact, the county would condemn and retain ownership of the land on which the private company would build and operate the terminal.

"The (proposed bill) could mean the county would have to operate the port," Jasper County Councilwoman Gladys Jones said Wednesday.

But Jasper County's condemnation, issued in January 2005, could be grandfathered if the pending bill were to become law.

"It shouldn't affect our condemnation effort; that was filed over a year ago," said Jasper County administrator Andrew Fulghum. "Our attorneys are monitoring it."

The Senate Judiciary Subcom-mittee meets at 10 a.m. Wednesday to discuss the eminent domain bill and six others. Some want to curb the list of bodies that have the power to condemn.

"Right now some 60 entities in South Carolina have eminent domain powers, and it's been discussed generally (in the General Assembly) to commit it to elected bodies and some others like the Department of Transportation and the Ports Authority," said Howard Duvall, executive director of the S.C. Municipal Association.

Since the controversial June 2005 decision by the U.S. Supreme Court on Kelo vs. City of New London, many states have begun addressing the condemnation issue. In that case, a Connecticut municipality was allowed to condemn

15 homes for an economic-development project related to a nearby Pfizer pharmaceutical operation.

One hundred residential and commercial lots were purchased, in addition to the 15 homes that were condemned, to enact a city development plan that called for a resort hotel; a conference center; a state park; more than 100 new homes; and various research, office and retail spaces.

"For a 'public use,' it means you cannot turn around and give it to a developer, even if it's an economic-development project that's within the public purpose," Duvall said.

A bill sponsored by Sen. Dick Elliott, D-Horry County, aims to clarify that the General Assembly interprets eminent domain laws by the S.C. Supreme Court's standard, not the federal court's. The state court precedent contains stricter condemnation requirements.

Another bill, sponsored by 22 senators, seeks to create a committee to study the issue.

Beaufort Gazette: www.islandpacket.com