Draper residents fight city's use of eminent domain: The Salt Lake (City UT)Tribune, 5/31/06

By Rebecca Walsh

[A currently] dusty, barren strip of land is more construction site than trail.

A year from now, the gravel and dirt will be paved over and landscaped, turning the mess into another link in Draper's popular 60-mile network of equestrian, biking and hiking trails.

But for the neighbors whose homes border the pathway-in-the-making, the construction is a bitter reminder of the power of government to take private property for the "public good." Their court fight with city leaders was one of the catalysts for changes in state law limiting local governments' power to condemn.

Despite that change in state law, the dispute is not over. Five of the neighbors still are suing the city. And the city is negotiating with three additional property owners to take sections of their yards.

"I don't know where they're getting the idea that they can use eminent domain to get a trail," says Eric Stern, one of the homeowners who sued Draper.

Trail started as a water project. Managers of the Metropolitan Water District of Salt Lake City planned to replace the old canal with a massive pipeline. Following the path of the canal, the pipe would crisscross Draper's southeastern edge, ending at a new water treatment plant at the Point of the Mountain. When the pipe is opened next summer, 77 million gallons of water from the Provo River will churn into Salt Lake Valley homes.

With the pipeline under construction, Draper leaders saw an opportunity to add to the city's system of trails. Last year, the city served a handful of homeowners with notices that they would have to sacrifice some of their property for the trail. Draper attorneys claim the city owns the old canal easement and doesn't have to pay the homeowners for their land.

Stern could lose a swath 16 feet deep and 300 feet wide in front of his home - about an eighth of an acre. And he would have to tear down a building the city authorized him to build a year earlier.

"They're taking my property and not giving me anything for it," Stern says.

The neighbors tried unsuccessfully to persuade the city and water company to put the pipeline under nearby Relation Street or next to Utah Transit Authority's light rail right of way. They argue the trail is redundant; it will run parallel and connect to the already existing Porter Rockwell Trail. At some points, the two trails are just 300 feet apart.

They pleaded with the city to leave old-growth cottonwood and elm trees along the canal in place. When the neighbors failed to persuade a judge to issue a preliminary injunction last year, crews ripped the trees out. The homeowners were given $80 gift certificates to "revegetate" along the trail.

Residents even question the city's motivations for building the trail. They note that fiber-optic cables are being installed along with the water pipeline.

"This is just a cheap way to get a utility corridor," says Loraine Sundquist.

The neighbors sued. But they also appealed to state lawmakers. During the 2006 Legislature, Kamas Republican Rep. David Ure amended legislation that actually expanded the public uses - including roads, streets or alleys - of eminent domain. Ure's amendment limits the definitions of roads, stripping out recreational trails and paths.

"I think [Draper leaders] were skirting both the letter and the spirit of the law," Ure says. "In Utah, we have never allowed eminent domain for recreation purposes."

Trails advocates unsuccessfully lobbied Gov. Jon Huntsman Jr. to veto the bill.

Sarah Alley, director of Friends of Emigration Canyon Trails and Open Space, says cities rarely use eminent domain to create trails. But in some cases, when they bump up against intractable property owners, local government leaders have to turn to condemnation as a "last resort."

"We're now in this painful process of having to go back into areas and create green space," Alley says.

As Salt Lake County's last patches of open space are developed, she adds, local governments could avoid the "ugly, difficult process" by planning trails in the first place.

As far as Draper and Metropolitan Water leaders are concerned, the Pipeline Trail is grandfathered, or exempt from the restrictions of the new state law. A week ago, three new property owners received letters from the city informing them that their land was needed for the trail.

"We're still proceeding in negotiations," says Scott Cardwell, Metropolitan Water's Point of the Mountain Aquaduct consultant working at Draper City.

While the legislation apparently has not resolved the dispute in Draper, Alley and other trail advocates say it will hamper other cities' efforts to build trails in already-developed neighborhoods.

"It could cause some problems," says Brad Jensen, a Draper engineer who oversees the city's parks and trails. "It takes away the negotiation tool for the city. If one person doesn't have any interest in doing it, we can't."

That's just what the Draper neighbors hoped would happen. The law might not have passed in time to cut off the trail bypassing their homes, but it could stop future condemnations.

"We don't want this to happen to anyone else," says Sundquist.

Salt Lake tribune: http://www.sltrib.com