After court ruling, lawmakers debate eminent domain: Concord (NH) Monitor: , 2/20/06

Two different states, two different paths

By Kristin Fountain

Lawmakers in New Hampshire and Vermont moved a step closer last week toward setting new rules for how cities, towns and state government agencies can wield "eminent domain," the power to take over private property for public use.

The proposed policies are as different as the states themselves and their historical pattern of handling the balancing act between individual rights and community needs.

Always controversial, eminent domain came under more intense scrutiny in states across the country last summer after the U.S. Supreme Court's decision in Kelo v. City of New London, which some thought gave the government too much power and stripped private property owners of their rights.

In New Hampshire, the issue became more than theoretical last week when the city of Claremont began proceedings to take over the property beneath the incinerator on Grissom Lane. The land was sold by the area's municipal solid waste district to incinerator operator Wheelabrator Technologies Inc. City officials say they envision establishing a waste transfer and recycling center on the property.

The Supreme Court ruled in Kelo that there is nothing in the Constitution that forbids a municipality like New London, Conn., from taking nine homes in order to replace them with a research and office complex that would be privately owned and developed. (One of the homeowners is named Kelo.)

"There was clearly public outrage," said New Hampshire state Sen. Bob Odell, a Republican from Lempster who served on a legislative committee formed in the wake of the decision. "People were really upset across the country, including in New Hampshire."

In essence, the Supreme Court left the issue to each individual state to resolve, said John Echeverria, a lawyer and takings law expert, before addressing a packed audience at Vermont Law School in Royalton on Thursday.

'Go ahead andchange your laws'
The decision told state legislatures, "If you want to make sure that this doesn't happen in your state, go ahead and change your laws and be more restrictive," said Odell, which is just what the New Hampshire committee set out to do.

The legislation it crafted would restrict the use of eminent domain to situations in which the new owner of the property would be the public or a governmental entity; the land would be used for a public or private utility; or if the property is abandoned and its structures are beyond repair. The bill also explicitly states that no private property can be seized for "the public benefit resulting from private economic development and private commercial enterprise."

All 24 state senators have co-sponsored the bill, making approval all but certain when it comes to the Senate floor this week.

But for Echeverria, New Hampshire's response to the federal court ruling raises another question about fairness.

Development projects that are part of a municipality's overall plan for economic growth can improve employment prospects and the general well-being of residents in the town or city, said Echeverria, who directs the environmental law clinic at Georgetown University Law Center. "Should one homeowner (who does not want to sell) be able to derail a project that is vital to a particular community?" he asked.

Odell said that if the New Hampshire bill is approved, the leaders of a community that supports an economic development project would simply have to negotiate and persuade the property owner. "If someone holds out, that just makes it more difficult."

'Not a bad thing'
But last week in the Vermont Senate, the answer to Echeverria's fairness question was no.

On Wednesday, all but three Vermont senators in attendance rejected an amendment to an eminent domain bill that would have taken away a municipality's power to use eminent domain for a planned urban renewal or economic development project.

"Eminent domain is not a bad thing. I look at it as a tool that should be used only under certain circumstances," said Sen. John Campbell. "If we strip our governmental entities of its total use, then what we are doing is hurting our communities as a whole."

The Vermont bill, which the Senate approved on Thursday, clarifies that no area can become a target of eminent domain "solely or primarily" because the land would be more valuable for tax purposes after a community redevelopment project. For example, a lakeside camp cannot be taken simply to build high-end condominiums.

With its bill, Echeverria said, Vermont is struggling to address a problem that arises from the use of eminent domain in economic development projects. In many states, the law by definition limits the kind of property subject to taking for economic purposes to deteriorating structures likely to be occupied by lower-income residents, he said. "Why should Park Avenue be categorically exempt?"

Vermont property owners are protected from a municipality's overuse of eminent domain by the state constitution and its 18-part takings process set out by statute, which requires that a judge ultimately determine the taking to be necessary and unavoidable, said Campbell.

"(The process) is extremely protective of private property rights,"he said. "I don't think that Kelo could happen here in Vermont."

Rarely used
Municipalities and municipal groups in both states said last week that the potential changes to eminent domain law would be unlikely to have a major impact on their activities.

The use of eminent domain is rare, and its use for economic development purposes is even more rare, said Cordell Johnston, a policy analyst and lobbyist for the New Hampshire Local Government Center, which represents municipalities. The last example his organization could find of the power being used that way in New Hampshire was by Portsmouth in 1969, he said.

The Vermont League of Cities and Towns told the Senate in hearings on the bill that it could find at most five examples of the use of eminent domain in any circumstance by a municipality in the last two decades, said Campbell.

"We only consider it as a very, very last resort," said Hartford Planning and Development Director Lori Hirschfield, "after several years have passed when we have tried to negotiate."

Over the last 10 years, Hirschfield remembers Hartford coming close to beginning eminent domain proceedings twice: for the construction of the Wilder bicycle path and for the municipal park along Railroad Row in White River Junction. But the town eventually reached agreements with the property owners, she said.

Officials with the Local Government Center have a number of concerns with New Hampshire's bill as written, said Johnston. For example, they are worried that it would make it impossible for a municipality to use eminent domain for a facility like a waste transfer station or recycling center that it wants a private company to own and operate on its behalf, he said.

The group also is worried about limiting the power completely in cases of economic development, but it is not pressing that point. "We are not convinced that this is the right result," said Johnston.

But, he said, "the political reality is that it's such a hot issue, and the public is so overwhelmingly on one side that even if we wanted to make an issue out of it, I don't think there is any chance of preventing it from passing."

Concord Monitor: www.concordmonitor.com