Senator Says Courts Not Likely to Reject Eminent Domain Law: Washington MO Missourian, 9/8/06

By Ed Pruneau
A state lawmaker said he believes it's unlikely that the courts would declare Missouri's new eminent domain law unconstitutional. State Sen. Kris Koster told Washington City Council members this week that a claim that the bill does not treat citizens equally is not a strong argument for throwing out the law.

"There is no protected class, based on race, creed, religion, national origin or sex, in danger from the new law," Koster explained. He said if there is a challenge, the courts would analyze the legislators' actions in light of rational goals. "Is our goal rationally matched to our actions?"

The Missouri Constitution allows the taking of private property for public purposes as long as just compensation is paid to the owner, Koster explained. But what is "just compensation" when you have a willing buyer but an unwilling seller? he asked.

After lengthy debate and meetings with various interest groups, the Legislature agreed on a just compensation figure of fair market value times 125 percent. "We just pulled that figure out of the air," Koster admitted.

The Missouri Farm Bureau argued for more - 150 percent - for owners of "heritage farms" that have been owned by an individual or family for 50 years or longer. "The 150 percent is recognition of the unusual power of the Farm Bureau," Koster acknowledged.

All the Legislature did, according to Koster, was revamp provisions in the law. "We didn't take any rights away from any citizen," he said. "Something more was given to certain citizens," he acknowledged. "I believe that does not give rise to a constitutional challenge."

Koster was invited by State Sen. John Griesheimer, Washington, to attend Tuesday night's council meeting to explain SB 1944 which Koster was instrumental in drafting.

Griesheimer extended the invitation after Mayor Dick Stratman recently chided lawmakers for drafting a "bad law," arguing that many believe it is unconstitutional because it treats people differently based on how long they've owned property.

Stratman said he doesn't have a problem with many of the changes in the law. The "homestead provision" treats everyone equally, he said. "The only thing I have a problem with is the 150 percent for the heritage people," he commented.

"I think we need to clean up abuses and give property owners fair market value and just compensation. I commend you for trying to do the right thing," Stratman told the senators. "I just go along with the heritage part."

"I think it will cost cities, counties and the state a lot of money" to acquire land in the future, Stratman remarked.

Councilman Tim Brinker took issue with the percentage increases over fair market value that are being mandated to local governments. Eminent domain always has involved placing the needs of the many over the needs of a few, he said. "Now, we're taking from the many and giving to a few by mandating percentages," Brinker remarked.

Missouri taxpayers are being "damaged economically" by the new law, remarked Councilman Marty Tudor. "We'll all be paying for this legislation" through higher costs for road and bridge projects. Tudor said he understands the arguments, "but for me, it's a fairness issue."

Tudor said the city went into the Highway 100 cost-sharing project thinking that it would be paying fair market value for any land needed. "Now I feel the rules have been changed. I don't like that change."

Councilman John Rhodes remarked that part of the controversy is the result of using eminent domain for economic development projects.

Koster noted that the eminent domain discussion has been "bubbling up" in Jefferson City for three or four years, but the U.S. Supreme Court decision in Kelo vs. New London "opened the flood gates." He also cited the situation at Sunset Hills where the city condemned scores of residential homes for a proposed commercial development, then the deal fell through and left some homeowners with payments on two homes. The new law has stricter notice requirements and gives property owners more information. No longer will developers be able to "sneak up behind" property owners and take their land, Koster said.

Stratman said he has no problem with setting much higher compensation amounts if land is taken for an economic development project. "You can give them 1,000 percent."

Griesheimer said a move earlier this year by a group from New Jersey to get an initiative petition banning eminent domain on the ballot failed.

"I'm relatively certain they'll be back," he said. "But if this (SB 1944) gets knocked out, they will be back."

"To ensure property rights, if we have to pay more money we should do it. It's the right thing to do," Griesheimer said. "To challenge it in court is not."

Rhodes agreed. "I think we either pass a bill we don't like 100 percent or we let it go on the ballot. Then we won't have eminent domain in Missouri."

From Washington's standpoint, the new law is not good, said Carolyn Witt, council member. But looking at the big picture, "it's a good thing" for property owners.

Koster noted that the changes received broad support from the Farm Bureau, the Missouri Chamber of Commerce, the Missouri Municipal League and Missouri Association of Counties as well as the cities of St. Louis and Kansas City.

The Municipal League was very supportive of the measure, he said, however, Washington's situation with the Highway 100 project "was a wrinkle that was not discussed."

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