Eminent domain debate not finished : Council Bluffs (IA) Daily Nonpareil, 8/9/06

By Phil Rooney
Iowa's eminent domain law is set to change on Oct. 1.

It may not be the last time.

The new law - HR 2351 - will require 75 percent of a tract of land be designated a slum or blighted before a local government can condemn private property on it for use in economic development. The old law required only that an area be declared slum or blighted, with no percentage threshold.

The Legislature met in special session on July 14 to override Gov. Tom Vilsack's veto of HR 2351, which had passed during the regular session. Two weeks later, Vilsack announced he would not challenge the action, in part because he'll leave office before the issue would be settled.

That statement came despite an opinion from Attorney General Tom Miller's office that Vilsack has the standing to challenge the Legislature's action. Miller's office also restated a 1998 opinion that state law prohibits holding a special legislative session for the specific purpose of overriding a veto.

Some have wondered why the attorney general's office isn't taking any action. Others are wondering what comes next, but it appears the final chapter has yet to be written on eminent domain.

Bob Brammer, spokesman for Miller's office, said the opinion was simply a legal general view.

"It's our view of how a court would interpret the situation if someone would challenge it," he said. "It doesn't have the force of law."

The attorney general's office would have represented the governor if Vilsack had chosen to challenge the Legislature, but it's not clear that the office has standing to bring action, Brammer said. The office couldn't take the Legislature's side because it has issued an opinion against legislative action.

It's not a situation where a criminal law was violated, when the office would act. Instead the office offered an interpretation of the Constitution. Brammer said a party with interest in the matter must file the lawsuit if one is to be filed.

In essence, the governor is the client and he decided not to pursue the case, Brammer said.

Mark Norman, vice president of economic development for the Council Bluffs Chamber of Commerce, said an effort would be made to change the law.

"Whether or not a city is going to challenge is yet to be seen," he said. "We're operating under the assumption the law is going to go into effect on Oct. 1."

In January, the Chamber of Commerce and other groups involved with economic development will likely lobby the Legislature to revise the law to make it more accommodating to economic development. Norman pointed to the Iowa Chamber Alliance, chaired by Council Bluffs Chamber President and CEO Bob Mundt, as one likely partner in the effort.

Norman said the new law, with its 75 percent blighted or slum requirement, makes the redevelopment of underutilized properties much more difficult.

"What that's going to do in the long run is foster more urban decay and lead to more urban sprawl," Norman said.

If communities are limited to developing new projects on their outer boundaries, more farmland will be lost, he said.

"Iowa is going to suffer immensely," he said. "It's going to be too expensive to take on a lot of those redevelopment projects that are going to need to happen in Iowa over the next five to 10 years."

Norman said the Legislature went from one extreme to another with its changes.

"The chamber's position has always been that there needs to be a compromise," he said. "There needs to be protection of private property rights, but there needs to be the ability to undertake redevelopment projects for the need of the community."

Norman said he imagines there will be several court cases challenging the law because of wording that he considers unclear.

"What we're going to end up with is a lot of little fixes to the situation as years go by," he said, fearing that could add to the confusion.

Norman pointed out what has been referred to as the ADM Amendment, allowing Archer-Daniels-Midland to continue with a project in Clinton, as demonstrating to lawmakers there will be problems with the new law. In Vilsack's veto message, the governor pointed out several other projects that would be at risk if HR 2351 passed.

Norman's first preference would have been to see the law not enacted. Now, he hopes to work through the system with other economic development professionals to change the law.

"It's going to cause a lot of problems," he said.

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