When lawmakers gather for a compacted legislative session on March 1, awaiting them will be a proposed eminent domain law for Minnesota that was triggered by a U.S. Supreme Court ruling last April.
The power of government to take private property has always been of concern in a country born out of revolution against England and its sovereign claim to all property in the colonies. But it became energized coffee shop/water cooler/bar talk anew when the nation’s high court broadened the government’s reach in Kelo v. New London (Conn.). The ruling held that the Constitution allows governments to take homes and businesses for potentially more profitable, higher-tax uses.
State Sen. Tom Bakk, DFL-Cook, sees the bill, co-authored in the House by Republican Rep. Jeff Johnson of Plymouth, as both addressing a real concern in the state and also serving as a pre-emptive strike against more aggressive government demands on private property for business development in the wake of Kelo v. New London.
“This will not block economic development. Nor does it infringe on needed public projects. But it will provide some protection for private property owners, individuals and small businesses, who should not be at the mercy of government power,” Bakk said.
The Bakk/Johnson bill represents a bipartisan coalition itself — the state senator from the traditional DFL bastion of northeastern Minnesota and the state representative a conservative Republican from a western Minneapolis suburb.
In addition, the group Minnesotans for Eminent Domain Reform shows an equally diverse mix of supporters, which include among others: The Hispanic and Hmong chambers of commerce, the NAACP, Minnesota Family Council, Minnesota Chamber of Commerce, Minnesota Auto Dealers Association, Outdoor Advertising Association of Minnesota, Minnesota Truckers Association, the Farmers Union and Farm Bureau and Hospitality Minnesota.
Bakk said opposition may come from the League of Minnesota Cities and other groups with concerns that the bill could block economic development projects for communities. A call to the League of Minnesota Cities for comment was not returned.
But Bakk said such fears are unfounded. He said the measure just calls for safeguards to protect homeowners and small businesses from feeling intimidated by governments that want new development no matter the personal loss.
“The power of using eminent domain remains. We’re just better defining the ‘public use’ part of it,” Bakk said.
And Lee McGrath, executive director of the Institute for Justice/Minnesota Chapter, said the bill is needed to level the playing field for individuals in eminent domain conflicts with government entities.
“Eminent domain should be the last resort, but too often it has been the first resort for governments. And that creates a lot of intimidation,” said McGrath, whose group defended Susette Kelo and other property owners in the New London Supreme Court ruling.
Bakk and McGrath said the bill’s most important element is clarity to “public use” in eminent domain proceedings. The bill states in part: ... The public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health, do not by themselves constitute a public use or public purpose.”
However, they said it’s also important that people know what the bill will not do, meaning it won’t block legitimate “public use” development.
“Public use means that land can be taken for parks and government buildings, utilities’ projects, to mitigate blight or to reduce abandoned property that is causing a public nuisance, such as an environmentally contaminated area,” Bakk said.
Regarding abandoned property and blighted areas, the bill has specific language. For abandoned property it states: "... property not occupied by a person with a legal or equitable right to occupy it and for which the condemning authority is unable to identify and contact the owner despite making reasonable efforts and that has
- windows or entrances boarded up or closed off,
- multiple window panes broken,
- broken or unhinged doors, or entrances that are continuously unlocked,
- gas, electric or water service terminated or
- rubbish, trash or debris accumulated."
For blighted areas it states:
- Seventy percent of the area is occupied by buildings, streets, utilities, paved or gravel parking lots or other similar structures.
- More than 50 percent of the buildings in the area are dilapidated. It then spells out what constitutes a dilapidated building.
Regarding what is an environmentally contaminated area, the bill is also specific:
- An area that contains, in more than 50 percent of its surface area, any substance or substances defined, regulated or listed as a hazardous substance, hazardous material, hazardous waste, toxic waste, pollutant, contaminant or identified as hazardous to human health or the environment under state or federal law or regulation.
Regarding just compensation for eminent domain acquisitions, the bill reads in part: "If the final judgment or award for damages, as determined at any level in the eminent domain process or by the parties themselves, is more than 20 percent greater than the last written offer of compensation made by the condemning authority prior to the filing of the petition or the amount deposited with the court, the court shall award the owner reasonable attorney fees, litigation expenses, appraisal fees, other experts fees and other related costs in addition to other compensation and fees already authorized."
McGrath said the eminent domain decision by Richfield, Minn., to get homes and several businesses to clear the way for Best Buy Co.’s international headquarters on Interstate 494 is the “poster child” for the issue in Minnesota.
“Two car dealers, 67 homes and several small businesses were taken by eminent domain. And in 2001, the Minnesota Supreme Court voted 3-3 to uphold a Court of Appeals ruling that it was for a public use,” he said.
McGrath also pointed out that even though only 15 of the 115 homeowners involved in Kelo v. New London officially balked at being bought out for a commercial development, eminent domain can be a tool of intimidation that affects others behind the scenes.
“And don’t the rights and wishes of the minority also deserve consideration?” he asked Bakk said the bill will have to clear several legislative committee hurdles in a short 2 1/2-month session. But he does believe it can be done and that there will be bipartisan support for it. He said the governor’s office has also indicated its support for an eminent domain bill in some form.
One lawmaker who has worked with Bakk on the bill said just what “form” it does take will be open to plenty of debate in the session, although she predicted it will pass.
“Oh it will pass in some way this session. But there are areas such as blight and compensation and other areas where some modifications are needed, especially regarding utilities. It’s a more complicated issue than it may seem on the surface. There are many underlying issues to also consider,” said Sen. Sheila Kiscaden, a former Independence Party lawmaker who on Jan. 9 switched to the DFL. She is also DFL gubernatorial candidate Kelly Doran’s lieutenant governor choice.