Property rights and eminent domain debated: Bismark ND Tribune, 10/18/06

By Dale Wetzel, Associated Press

A North Dakota constitutional amendment is needed to abolish the power local governments have to force the sale of private property for new commercial development, former Attorney General Heidi Heitkamp says.

Heitkamp and Jerald Hjelmstad, assistant director of the North Dakota League of Cities, on Tuesday debated whether North Dakotans should support Measure 2, which would bar local governments from using their eminent domain powers to acquire land for private economic development projects.

"We think that we need to put the power not in the hands of the influential, not in the hands of the Chamber of Commerce, not in the hands of the city officials, but back where the power over property belongs, and that's with the property owner," Heitkamp said.

Hjelmstad said the amendment would have more far-reaching effects than its supporters believe. The amendment could prevent city governments from using urban renewal projects to redevelop run-down areas, Hjelmstad said.

Local governments that condemn property for a public works project also could be stuck holding small parcels of land that weren't needed for the project, instead of selling the property to private owners, he said.

When the city of Grand Forks was acquiring property for a dike project to prevent Red River flooding, the city bought entire lots instead of fragments of property, Hjelmstad said.

"At the end of the project, they were able to piece those parcels back together and get it back on the tax rolls," he said. "Under this measure, they would not have been able to get that property back into private ownership."

The amendment would prevent the state or local governments from forcing the sale of private property for another private project, unless the land was to be used for "conducting a common carrier or utility business." Those would include cable television or telephone networks, power lines, or natural gas pipelines.

Governments could still acquire private land without an owner's consent for public works, such as sewer lines, streets and water towers. "This will not interfere with a road, a bridge, a school or any legitimate government use," Heitkamp said.

A politically diverse group of activists began circulating an initiative petition in September 2005 to put the amendment on the ballot.

They were motivated by a U.S. Supreme Court ruling the previous June, called the Kelo decision, which allowed the city of New London, Conn., to buy up homes to make way for a new marina, office buildings and luxury housing.

The North Dakota Supreme Court, in a 1996 property dispute involving the Jamestown city government and a grocery business, reached a similar conclusion. The Supreme Court ruled local governments could force the sale of private property for economic development projects.

After the U.S. and North Dakota Supreme Court rulings, "there is absolutely nothing that the government couldn't take and call a public use. Absolutely nothing," Heitkamp said. "There is no longer any constitutional restriction ... That is the status of the law today."

Hjelmstad said the Jamestown dispute was unusual, and that local governments were not eager to condemn private property for economic development. However, some circumstances justify the move, such as when a city wants to revitalize a blighted area, he said.

Hjelmstad suggested the debate would be better handled in the Legislature, where changes to state law or the wording of a constitutional amendment would get a more thorough airing.

"In this particular measure, we're left with a take-it-or-leave-it on the wording," he said. "We feel there are going to be some negative consequences by the wording that's been used."

Heitkamp said the initiative campaign has allowed for a more open debate than could be expected in the Legislature, where she said discussions of the issue of private property rights would likely be dominated by special interests.

If forced sales of private property are rare, local governments have nothing to fear from the measure, Heitkamp said.

"There's no onerous burden there," she said.

Comments from readers

Daffy wrote on October 19, 2006 10:33 AM: "I just reread the Jamestown case to refresh my memory. The land taken was a vacant paved lot held by leever's supermarket. They didn't want to sell because they were the only game in town and were overcharging for basic goods and didn't want competition. The taking in Jamestown, if you read it, was good for the community on numerous levels. I may be wrong, but I don't think this law has ever been "misused" in ND. If anything, the "fat cat's" you refer to were the one ones hurt by using it."

Daffy wrote on October 19, 2006 9:12 AM: "Karen - you've made two posts here that make absolutely no sense. Did this hypothetical evil, schemeing, faceless "politician" run over your dog? Even if this measure passed the city can take your property. I would bet you hadn't even considered this concept until this measure was somehow brought to your attention, and suddenly there's this huge threat that the "politians" are going to steal your property."

Daffy wrote on October 19, 2006 9:05 AM: "I do own property and I am not a politician. Tell me how the politicians are beneifiting from this. Isn't Heidi a politician? If the old woman in your example's home is worth 35K she could relocate to a similar property. The only argument is the sentimental one, which is highly overrated in my opinion. The land owners are more than fairly compensated and there are also relocation payments. Progress happens, if the old lady just sits there suddenly her house is worth next to nothing as the lots around her are paved. Also, was eminent domain used in Fargo for Meritcare or has it in Bismarck? NO. I do know that private takings are extremely rare, but they can occur for the good of the community. In Fargo after the 1997 flood a knew dike was contructed and the city bought property from many willing sellers. A couple folks, with property on the wrong side of the dike, refused to sell. The city didn't e.d. the land, they left them. If they wish to have they property value plummet that's there fault. Ya'll make this sound like a giant conspiracy when that just isn't the case. You are just having a knee jerk reaction. Laws are designed to ensure use of property. So Walmart could hypothetically buy every commerical lot that is offered for sale which could house a competitor to prevent any competition and just let the land sit and not be developed? That is not in the best interest of the community."

Karen wrote on October 18, 2006 9:39 PM: "Daffy~ obviously you don't own property OR you are a politican"

Edward wrote on October 18, 2006 4:58 PM: "elected officials have no need for sentimentality unless it will ensure reelection."

YES wrote on October 18, 2006 4:04 PM: "I agree with Donald D. Sometimes you have to paint the picture (which Donald does well) and then people get it. I don't believe we are crotchety folks who want to stand in the way of progress. Progress, to me, is not making a hospital's parking lot bigger so the hospital's pockets can get even deeper. I say Tilly should have every right to keep her home. It should be her decision, no one else's."

Donald D. wrote on October 18, 2006 3:38 PM: "Daffy: I would like to expand on the MeritCare parking lot incident in Fargo. In fact, take a look at the east side of Bismarck's St. Alexius and you will see something close to that happening. But picture this, and please understand that it can and has happened. In 1920 Herman and Tillie Tudwall get married. They begin their new life together and in a few years purchase a nice small home several blocks from the downtown area. As the years go by, the city grows, and they manage to pay off their home on their minimum wage incomes. Herman dies at age 80 and leaves Tillie alone. She continues to live in the house until one day a hospital which is swallowing up land faster than a hungry horse eats hay, offers to buy her home so they can expand their parking lot. Her home is a small old house that truly isn't worth much more than $35,000. Yet the hospital offers her $50,000 for it. Tillie looks at the economics of it and decides she doesn't want, no, she can't sell. She realizes that any newer home now in the city would cost her double the $50,000 and she doesn't have any money to be able to move into an extended care faciltiy. No, she realizes that in addition to snetimental reasons, with her very limited social securtiy and having no house payment; she is much better to refuse the offer and stay put. Now, would it be fair for the hospital to take her home because "some crotchety folks who want to stand in the way of progress despite all logic"? Keep in mind, what you consider "all logic" is different from what Tillie would consider, and even what the hospital would consider as "all logic"! This measure would allow Tillie to live in her home without the threat of losing it to some company that wants to expand."

Donald D. wrote on October 18, 2006 3:36 PM: "Daffy: You state that the Jamestown incident was the only time it happened in ND where property was taken for private use; and the outcry keeps it from happening more often. That is what this measure will insure. It will insure that it will not happen again and again. Truly, to the Jamestown property owner, a thing like this happening once is once too many. How many times has this happened throughout the US. Maybe we are only now starting to get to where governments are more willing to do this type of thing and we need to put a stop to it before it gets to be more common-place. "

Daffy wrote on October 18, 2006 2:51 PM: "If this measures does not pass you can bet their will be over zealous city officials that will go for property," If the measure doesn't pass things will not change, nobody will be "zealous". Once again you make it sound like governmental bodies like nothing more than to pay pennies on the dollar to steal from the poor. If you think that is the case you are certainly uninformed. Eminent domain is well established and cases involving it in the area are concerning the value of the property and the compensation level. Some landowners are simply unreasonable in the beliefs as to what their property is worth. There is absolutely no "stealing". As most property in downtown Mandan currently sits there is very little value, and the price offered is more than generous. I realize it is a bad break to have contaminated property, but that isn't the city's fault. Anyway, I don't think this measure would impact those takings anyway with the except that the city couldn't sell the property to a private owner after the mess is hopefully removed. And how and the "fat cats", whoever they are, reaping the benefits here? Don't get me wrong, I think the city officials in Mandan have not handled the whole situation well, but it isn't the long established eminent domain law that caused the problem. It more of a problem that individaul residents think they should get a windfall for having a contaminated, delapidated eyesore of a building."

Susan Beehler wrote on October 18, 2006 2:22 PM: "To Daffy and Judy Judy, You obviously own no property, that would be in area that the city would want. Daffy, eminent domain was threatened to Mandan businesses and there is currently a case in court, trying to "steal" the property. If remediation works as, we have been told the property is to be cleaned and left in a more valuable condition. If this is not the case, why go to the trouble of remediation. Don't kid yourself those that lose their property because of eminent domain will not reap as great a benefit if they were allowed to retain ownership. The city has lost over 10 businesses downtown and a total of 35 if you go through what is no longer in the 2006 phone book compared 2005, several on the strip too. The city has created business anxiety by threatening eminent domain. This would not even be on the ballot if the Federal Supreme Court had not made the ruling allowing cities broader powers with eminent domain. As taxpayers we better protect ourselves; it is the average guy that will lose out. If this measures does not pass you can bet their will be over zealous city officials that will go for property, after all they have a term to serve and if they do not care if they are re-elected or recalled they will go for it. Besides government positions are not about making money they are not paid like it is their career , if it was we would have full time city officials. On Mandan's Mayor salary Mr. Lamont would not even be able to qualify on his Mayor pay for renting a apartment at the Library Square, it is barely $10,000. An elected city official in the position is either in it to serve or for the power, it is surely not the pay. I will serve Mandan and gladly sacrifice my time for the wage. I am for protecting the average guy not feeding "fat cats"."

Daffy wrote on October 18, 2006 2:05 PM: "Those grocery store deal is about the only example in ND where property was taken for a private entity, and the public outcry for each time this happens is why it happens so infrequently. Without looking up the facts of the Jamestown decision, I believe there were rational reasons to take the property, which I don't think was being used and was purchased to defeat competion, in Jamestown. (I could be completely wrong on my facts) Certainly the community was better off because of the taking. I don't have sympathy for some crotchety folks who want to stand in the way of progress despite all logic. Reminds of in Fargo when the Meritcare parking lot was entirely around an old house that refused to sell. I think there was also a case in Michigan involving a automakers plant that took a huge chunk of low value residential homes. Just like everything, there is the potential to have a negative result, but usually that is not the case. The proponents of this measure try to make it sound like a huge threat to Joe Q Citizen and that just isn't the case, and if in the one in a million happens, you is more than adequately compensated."

Donald D. wrote on October 18, 2006 1:38 PM: "To Daffy: Can you explain how the Jamestown grocery store incident was fair? Or how about the east coast incident? Picuture you being the one who owned the land and regardlous whether or not they offered you a fair price, you just didn't want to sell. Is it fair they can just take it anyway?"

Daffy wrote on October 18, 2006 1:19 PM: "Ya'll are acting like the big bad government is constantly on the prowl to steal people's land. Do you think that all of a sudden there will be a rash of taking? The Mandan debacle was caused by inept leadership, not eminent domain. The property values of the contaminated area are severly diminished, that's just the way it is. "Power back to the people", nice unintentional spin. Elected officials are in the business of being re-elected. Taking their constituants land is not a wise career move and it rarely happens. Sure one or two people get upset in this extremely unusual event. By the way, I think Heidi's interest may be furthered in a couple ways if this passes."

Edward wrote on October 18, 2006 11:26 AM: "Daffy, If the developer wants to purchase property let them pay the price a willing buyer and willing seller agree on. When the developer doen't want to pay the price they turn to the government to take the property under eminent domain. If your property is damaged by oil spilled by another party, feel free to sue for the damage. "

North Dakotan wrote on October 18, 2006 11:05 AM: "YES on ND Constitutional Amendment #2. This amendment places "power back to the people" where it belongs. Our ND politicians had an opportunity (2005 session) to pass a bill supporting property rights and passed NOTHING. If you distrust politicians vote Yes on ND Constitutional Amendment #2!! "

Watch Dog wrote on October 18, 2006 11:04 AM: "Last evenings forum was interesting. Hjelstad's arguements for defeating the measure are weak. Perhaps the greatest weakness lies in his assertion that since public officals are elected we should trust their actions, especially when it comes to eminent domain. Sadly many local politicians are not elected on the basis of campaign issues. Instead many are elected due to deep pockets necessary to support a campaign, they have high name recognition, they are retired or have jobs that allow them to devote time to the position, they don't have an active family driven by the activities of children or the candiate may be the only one running for the office. I doubt that many electors have any idea what the position of their elected officials are on the subject. Heidi is right. We have to protect our property rights. If this measure doesn't pass the developers, money people, the movers and shakers and those who have cozy relationships with elected officials will set the agenda. The little guy, the electorate will be pushed around because we had a blind trust in those who govern. Just watch what is happening with the Burleigh County Commission's handling of Sundown Acres. Whose interests are being represented - the citizens of the county or those of the developer. Can we trust our elected officials to make informed, fair and non-biased decisions? Remember, those with the money have the louder voice."

JudyJudy wrote on October 18, 2006 10:50 AM: "People really need to look closer at this. If this passes, it will cost taxpayers more in terms of more legal challenges and delays on projects. Vote 'NO' on this one - it will cause more problems than it will solve."

Daffy wrote on October 18, 2006 10:46 AM: "If the politicans win this, say goodbye to lots of other freedoms and ownership." Are you kidding? Eminent Domain has been around for ever, nothing would change by not passing this measure. The Mandan debacle was not caused by eminent domain, it was caused by inebt leadership. Govenment should be allowed the right to seize private property to serve the greater good. It's not like the property owner isn't compensated, and usually above what the property could be sold for. It is a tough break for the folks owning property in the contaminated area in Mandan, but the fact is that the property is severly diminished in value due to the diesel. Governments generally don't like to take property under E.D. due to the bad press and the impact on re-election. I guess I see the negative impact of this measure out-weighing the positive."

MM wrote on October 18, 2006 9:31 AM: "yes vote yes on this! stop the local Goverments push for more power! look at how power & corruption has spun Mandan out of control. recently a three generation Mandan business wanted to work with Mandan on relocating (this was by the request of the city), when the owner asked to sit down and talk he was given a paragraph on Eminent Domain. so vote yes on this measure and vote out the corruption in the Mandan "Recall Election" "

Karen wrote on October 18, 2006 9:10 AM: "ABSOLUTELY! Do not give the power to the politicans~ property belongs to the owner~no matter what the city wants. If the politicans win this, say goodbye to lots of other freedoms and ownership."

Susan Beehler wrote on October 18, 2006 9:10 AM: "I will be voting "yes" for property owners! Cities should not be able to take private property so that a developer can reap the benefits. In the name of Mandan's remediation, owners have been threatened with eminent domain, even though their may be another solution to remediate the land without taking it. Mandan is accumulating property for "private developers" because the city does not have the funds to develop it after remediation, the city is investing in property based on speculation of private development. I say let the property owners keep their land and let them develop it or sell it after it has been remediated."

Citizen wrote on October 18, 2006 9:10 AM: "Edward's comment seems like a good idea. However, the way this measure is written, I don't think it would allow for this. Maybe this should be defeated and reintroduced with language that would address the concerns."

Edward wrote on October 18, 2006 8:22 AM: "If land is found not to be needed for a public works project, it should be offered to the prior owner for the same price per acre or square foot it was purchased. If the prior owner does not want the property it could be sold on the open market. That takes care of the Grand Forks situation. Not real difficult to solve."

Property owner wrote on October 18, 2006 7:45 AM: "Hooray for Heitkamp and this measure. I for one am voting "yes" on measure #2."

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