Freeze sought on eminent domain: Knoxville (TN) News Sentinel, 3/5/06

By Tom Humphrey

A Knoxville legislator is pushing for an immediate freeze on some uses of eminent domain, contending that governments may launch a "mad grab" for private property while the General Assembly debates new restrictions on condemnations.

Rep. Stacey Campfield, R-Knoxville, said he will seek a House floor vote Monday that would clear the way for a 120-day eminent domain "moratorium." Critics say the move is unnecessary and could have unintended consequences.

House Judiciary Committee Chairman Joe Fowlkes, D-Pulaski, who has headed a legislative study of eminent domain issues, said it appears Campfield's move is intended to protect Mark Saroff, owner of McClung Warehouses on Jackson Avenue in Knoxville, in an ongoing dispute with the Knoxville Community Development Corp.

"He's trying to decide a lawsuit that hasn't even been filed yet," said Fowlkes, an attorney. "That's not the Legislature's business. That's the business of the judicial system."

Campfield and Saroff said the move could potentially benefit Saroff, but the need for a prompt moratorium goes far beyond any individual or situation.

"There is a fear that, before we (legislators) can actually pass an eminent domain bill and have it become law, maybe months from now, that cities and counties could go into a full confiscation mode," Campfield said.

Campfield also sent a letter to Gov. Phil Bredesen on Friday, urging that he act by executive order or otherwise to impose an eminent domain moratorium. A Bredesen spokeswoman said the governor had received the letter, but had no comment.

Bredesen is scheduled to speak Monday before a Tennessee Municipal League conference at the same time the legislative committee begins discussion of the pending legislation.

At least 59 bills and three resolutions calling for new restrictions on eminent domain have been filed in the state Legislature since a U.S. Supreme Court decision last year that allowed a Connecticut city to condemn private property for a commercial development. The court's decision, Kelo vs. City of New London, is known as the Kelo case.

Many local government representatives in Tennessee, however, contend that state laws already provide adequate protection for landowners and nothing like the Kelo situation could arise.

"Kelo has zero bearing on the laws in Tennessee," said Margaret Mahery, executive director of the Tennessee Municipal League, which represents city governments statewide.

In the Legislature, Fowlkes said current plans call for holding hearings on all the introduced eminent domain bills while using one as a framework - a measure that grew out of a study committee and is sponsored by Fowlkes in the House and Sen. Doug Jackson, D-Dickson, in the Senate.

Provisions in several of the various bills may be incorporated into the framework bill by the committee before it is sent along through the process for floor votes in the House and Senate.

The framework bill, filed as Senate bill 3296 and House bill 3450, would repeal all rights of several governmental entities to use eminent domain, including "watershed districts," "public mills" and "public ferries" that have such rights under current law.

It also puts new restrictions on other eminent domain efforts. For example, a provision Fowlkes said was sought by the Tennessee Farm Bureau declares that "under no circumstances shall land used predominantly in the production of agriculture be considered a blighted area."

Designation as a blighted area is one way to trigger condemnation and apparently would be a possibility for any potential condemnation of the warehouses owned by Saroff.

Saroff has been in a back-and-forth battle with the Knoxville Community Development Corp. since the city designated the land around Jackson and Depot avenues in Knoxville as a redevelopment and urban renewal area in 2002. Such areas require all property owners to submit remediation plans or risk having their buildings condemned.

Saroff has moved to remedy problems with the properties, but they have not been deemed adequate by KCDC.

Campfield said Saroff is at risk of having his property taken and transferred to another developer, but that situation is not the primary motivation in his push for an immediate moratorium.

"He may be the poster child, but he is not necessarily the only person who could have their property taken if there is a mad push to grab up as much land as they (governments) can before legislation to stop this abuse can be put into effect," Campfield said.

Campfield said his bill is narrowly tailored so it applies the moratorium only to situations where condemned land winds up in the hands of another private person or entity, having no effect on use of eminent domain for road construction, schools and the like.

Procedurally, his move for a prompt vote requires a suspension of normal legislative rules. The first step, to suspend those rules, requires a two-thirds majority vote, and Campfield said he will seek that vote Monday on the House floor. His bill is sponsored in the Senate by Sen. Mae Beavers, R-Mount Juliet, who Campfield said is "a few days behind me" in similar plans.

Fowlkes said the Campfield move is an ill-advised "shot in the dark" that could have unintended consequences and ramifications. Mahery gave a similar assessment.

"We think our laws in Tennessee have worked so well that any changes need to be made with a lot of deliberation and a lot of study, not just change for change's sake," she said. "This is such an emotional issue there are many misrepresentations and misunderstandings and something could be done to hurt Tennessee."

Saroff said he feels a moratorium is "imperative."

"This is not Stacey Campfield trying to protect his friend," said Saroff, adding that he is a Democrat while Campfield is a Republican. "This is a nonpartisan issue and immediate action needs to be taken to protect the property rights of all Tennesseans."

Once a condemnation lawsuit is filed, Saroff said, "There is no protection to the property owner in the state of Tennessee" under current law.

Fowlkes disagreed. He said that, if a condemnation proceeding is brought in court, the landowner can challenge over whether the property is "blighted." He cited a 1998 Court of Appeals decision where a Chattanooga landowner won, blocking plans by the city of Chattanooga to condemn land for construction of a stadium.

"From what I've seen, the courts in Tennessee have leaned toward the private landowner in these cases," Fowlkes said.

He said the Legislature will likely give final approval to changes in eminent domain law "in the next two or three months" and an immediate moratorium is unwise.

"There may be another city somewhere else that has blighted property that needs to be condemned and developed. Why should we be stopping that?" Fowlkes said. "We could be affecting hospitals, anything out there. This is a shot in the dark."

Campfield contended, however, that there is no harm in holding up any pending eminent domain moves that would give property to private owners. The moratorium, he said, will give legislators the time they need to deliberate on an effective and comprehensive reform bill.

The News Sentinel: www.knoxnews.com