The Eminent Domain Problem is Bigger Than Kelo: Upper Valley Free Press (Idaho Falls ID), 2/06

By Heather Anne Cunningham

The problem with current Idaho eminent domain laws goes far beyond the fact that existing statutes permit a Kelo v. New London type taking (for increased tax revenue) to occur here. These problems may not be apparent to those who have only occasional contact with eminent domain cases. But those who deal with eminent domain full time know that our laws need work, because citizens need protection from eminent domain abuses.

No statute can, or should, revoke the government's power of eminent domain, but we can and must act now to stop the abuses of condemnors. The laws so far have largely been written in favor of those with the power to take property. Some bills this session aim to change that.

Although condemnors are obligated to pay "just compensation," many attempt to acquire property for the lowest price they can, rather than a fair price. Condemnors know that most property owners can't afford to resist, since they could end up with even less than the low offer after paying costs and attorneys fees. While some states require condemnors to pay costs and fees for property owners in condemnation if the owner proves the value offered was unfair, in Idaho, your costs may or may not be paid. There should not be an out-of-pocket cost to prove the government wrong. (SB1248 would allow reasonable costs and fees to property owners if they prevail).

Some condemnors penalize property owners who resist their offers by firing their initial appraisers and hiring new ones, with far lower opinions. Sometimes higher appraisals are even hidden rather than disclosed to property owners. (SB1245 would require that a condemnor can't pay an owner less than they previously admitted was owing).

Condemnors decide what property they want to take, but if you spend money to prove that just compensation for that taking is substantially more than the condemnor anticipated, the condemnor may re-define the take, ignoring their previous express representations. (SB 1243 would require condemnors to clearly define what is being taken and stand by that).

If the government only needs one acre of your land, they can take twenty acres instead, and sell the other nineteen. (SB 1242 would require that condemnors only take what they need).

In Idaho, if your house is taken for a road, your relocation is paid for by the government, but if it's taken for any other purpose, relocation assistance isn't required. (SB 1246 would ensure all citizens are treated equally when displaced).

If your property is taken by an educational institution, you can be required to go through two court proceedings, not just one, doubling your costs for appraisers. (SB 1247 would allow single proceedings in all takings).

In all other types of cases, a jury decides all questions of fact, but in eminent domain, judges, not juries, decide facts and the jury only determines value. (SB 1273 would give you the protection of having a jury decide the facts one of the most important protections we have against abuses of government.) What jury would have approved of taking someone's home to give to a drug company as in the Kelo case?

Several proposals aim to address the public use problem at issue in Kelo, including SB 1244, HB 408, and HJR 3. It is time for Idaho citizens to start participating in the process of revising Idaho's eminent domain laws. Let your legislators know what bills you support, and ask them to look beyond Kelo and address the imbalances in our current condemnation system.

Upper Valley Free Press: www.free-press.biz

Heather Anne Cunningham is an attorney with Davison, Copple, Copple & Cox. For the past ten years, the majority of her practice has been representing property owners facing condemnation.