Governor signs bill restricting eminent domain: Homer (AK) News, 7/12/06

By Hal Spence

Gov. Frank Murkowski has signed a bill clarifying and restricting how Alaska governments may use the power of eminent domain.

House Bill 318, sponsored by Rep. Lisil McQuire, R-Anchorage, and co-sponsored by Kenai Peninsula legislators Reps. Kurt Olson, R-Soldotna, and Paul Seaton, R-Homer, takes effect immediately.

The new law limits eminent domain from being used to take private property to benefit private economic development, except under certain specific conditions. It also prohibits the taking of all or part of someone’s primary residence for recreational facilities or projects.

A 2005 ruling by the U.S Supreme Court in a Connecticut civil case (Kelo v. City of New London) prompted the Alaska Legislature to pass HB 318. In that case, the court upheld the city’s power to take private property for a private development project, reasoning that the new development would have a broader public benefit by expanding the city’s property tax base, among other things.

The ruling drew immediate criticism around the country, including in Alaska. It prompted the Kenai Peninsula Borough Assembly to amend the borough code in 2005 preventing the borough from taking private property from one owner for the exclusive use by another private party.

Upon signing HB 318 into law, Murkowski said Alaskans were justifiably upset by the Kelo decision and wanted the use of eminent domain limited in Alaska.

“Out of 365 million acres of land in Alaska, fewer than 2 million acres — less than one percent — are owned privately by individuals,” the governor said. “An out-of-control government, deciding that taking private property through condemnation to benefit private economic interests, was simply unacceptable to Alaskans. In light of that legitimate concern, it was my pleasure to sign HB 318.”

Seaton agreed that eminent domain should be used for public projects for the public’s benefit, not to enhance the private projects of private parties.

“It’s important because private property rights are something that Alaskans hold very dear and rely on for planning for the future,” Seaton said.

“I had some real concerns about the Connecticut decision,” Olson said Friday. “To go in and take private land and use it for hotels or condos, I don’t think it is right.”

The new provisions in the eminent domain statutes do provide some exceptions to the ban on takings for private benefit. For instance, a taking is allowed when the property owner losing the property agrees or when the Legislature authorizes the taking by passing a separate statute covering that specific case.

Private property also may be transferred through eminent domain to create a “way of necessity” for essential access to land for the extraction or use of resources.

Asked who makes the judgment deeming something “essential,” Seaton said that in all likelihood it would be the courts unless the property owner and the property taker reached an out-of-court accord.

A provision banning the taking of a private property owners’ primary residence for recreational facilities or projects also bans taking land within 250 feet of that private residence. That clause gave Seaton pause, and he said he opposed it primarily because in some locales, such as in small cities like Homer, a reluctant private property owner could thwart development of otherwise public benefit projects like inner-city bike and pedestrian paths.

Lawmakers added another subsection to the law providing a way around the new limitations including the distance restriction. To do that, the Legislature must pass a separate bill specific to a project.

Seaton said that allows governments to come before the Legislature and show why a taking within 250 feet of a private residence, for instance, is in the public interest.

Homer News: http://www.homernews.com