Eminent domain initiative slammed: In Business Las Vegas (NV), 7/28/06

By Stephanie Tavares

A large group of Nevada business organizations, government agencies and individuals has filed suit in Clark County District Court to get a popular eminent domain constitutional amendment thrown off the November ballot.

The group — which includes the Las Vegas and Henderson chambers of commerce, Nevadans for the Protection of Property Rights, Southern Nevada Home Builders Association, Nevada Contractors Association, Clark County, the three regional water and flood control agencies and Clark County Commissioner Bruce Woodbury — filed the claim on July 20.

It has called on the court to void the proposition, prohibit the secretary of state from placing it on the ballot as well as attorneys fees for the costs of filing the suit.

"We've been seeking legal opinions as to the likely effect this would have on government and quality of life in the community, and the advice that we've received is that it would be devastating," Woodbury said. "Legal action is necessary because we feel the provision violates several laws about what can qualify, and the effects of the petition would be so harmful that action needs to be taken."

The proposal is aimed at limiting the scope of the government's use of eminent domain to public works-type projects. It is in response to a U.S. Supreme Court decision one year ago that allowed governments to seize "blighted" properties (often in well-kept middle class and blue-collar neighborhoods) through eminent domain to give to developers.

The highlights of the proposal are:
  • Property must be valued at the use which yields the highest value (Nevada currently uses "probable price," which is often lower).
  • Transfer of land from one private party to another private party is not public use.
  • Government actions causing economic loss to property require the payment of just compensation.
  • Property taken but not used within five years for the purpose for which it was taken must be returned (sold back at the original price) to the owner.

The proposal also states that an elected judge must approve the use of eminent domain, that the property owner can disqualify one judge at each judicial level and that the property owner would not be liable for paying the government's attorneys fees or court costs.

Proponents say it is necessary to ensure Nevadans' property rights are protected for generations to come. They say there is nothing illegal about the petition since it all pertains to eminent domain and that it will not cripple the government.

"The main thing is we want to add a necessary section in the Nevada Constitution that deals exclusively with eminent domain provisions," said attorney and PISTOL supporter Don Chairez, a Republican candidate for Nevada attorney general. "Since the Kelo (v. City of New London) decision, eminent domain proceedings have tripled. And the government never takes the properties that are actually blighted. They take the desirable properties."

But the group suing PISTOL says it goes way beyond helping Nevadans keep their homes and businesses. The proposition would also allow them to sue the government any time it does something that could decrease the value of their land (examples cited were road widenings, public facilities being moved, and not allowing zoning changes). The threat of endless lawsuits would effectively halt future development of public infrastructure like roads and aqueducts.

"Businesses should be deeply concerned because if businesspeople are looking for orderly stable growth, this proposal will destroy that for the future," Woodbury said. "There will be a chaotic situation in this community where business locations will not have the kind of protections they need from incompatible uses next door."

"What we're trying to do is prevent the abuses," he said. "I think that people believe the Kelo decision violates their concept of fundamental fairness. Nobody is against an eminent domain project for a legitimate public use but they saw how the U.S. Supreme Court was willing to stretch that to take away Kelo's home and give it to a developer to sell it to rich people."

In Business Las Vegas: http://www.inbusinesslasvegas.com