Eminent domain needs changes - Task force, county commissioner claim power being abused: Farmington NM Daily Times, 11/22/06

By Cory Frolik

The [New Mexico] Governor's Task Force on Responsible Use of Eminent Domain released a 24-page report on eminent domain issues in the state, recommending that [the state]revise its current legislation governing its use.

According to the report, current law creates the potential for governmental abuse by promoting private economic development by the government seizing private property through the use of eminent domain. As a result, the task force recommended the state law be changed.

San Juan County Commissioner Tony Atkinson was a member of the task force and says he is proud of the decided recommendations. Atkinson voted in favor of restricting government power, citing his belief that there is some power the government should not have.

"I simply do not trust (unchecked power). I've been involved in government too long to entirely trust it," he said. "Property rights are extremely important in my way of thinking. There is a time when you absolutely have to (use eminent domain). But a new subdivision or new Wal-Mart is not one of those times."

But Atkinson fears the recommendations may not be enacted. He says the majority view was won by a relatively slim margin (10 to 3) and added there is a possibility that the governor could ignore the task force's proposals.

The task force recommended repealing the urban renewal law and community development law as well as removing the eminent domain authority from the Metropolitan Redevelopment Act (MRA).

Current New Mexico law states that "a municipality shall have the right to acquire by condemnation any interest in real property, including a fee simple title thereto, which it may deem necessary for, or in connection with, a metropolitan redevelopment project under the Redevelopment Law. A municipality may exercise the power of eminent domain in the manner provided by the Eminent Domain Code, or when found appropriate by the governing body."

To date, Rio Rancho is the only government entity in New Mexico to utilize the power of eminent domain for development purposes. But Atkinson and other task force members fear other entities might use the power.

At least for now, however, Atkinson said San Juan County and its metropolitan areas are particularly dedicated to avoiding such abuses.

"In the 30 years I've worked with the county the only project (we used eminent domain) is the 350 highway across Crouch Mesa. People didn't like the project from day one and they would not consent. They were adamant about it," he said. "That was a last resort. Most everyone seems to understand that situations like that are going to happen."

The report mentions possible plans for redevelopment in Farmington and how the city has shied away from considering using the power provided by eminent domain.

"In the city of Farmington, a metropolitan redevelopment plan is currently being considered to revitalize private and public property in the downtown area. That plan calls for a public-private partnership, which would encourage business activity and relocation to the city's primary commercial district. Interestingly, the City Council will not use the power of eminent domain to further the project. According to testimony presented to the task force, the City Council believes that property owners are more likely to embrace redevelopment if not faced with the fear of condemnation," the report states.

The majority of task force members concluded that eminent domain is not required to promote economic redevelopment and revitalization in the state. There are other condemnation powers allowed under other state laws that will suffice in providing governments with the power they need without overreaching their authority, the majority decided.

There are at least two other statutes that use eminent domain. But, as Atkinson pointed out, these statutes, which were not touched by the task force, allot such power only for the purposes of public projects, road projects, health and welfare, and utility lines.

Other recommendations by the task force include creating additional protections, which include refining the definition of slum and blight areas, improving notice and hearing procedures, and providing relocation and transition assistance for uprooted property owners.

The most important recommendation, Atkinson said, was to remove eminent domain from the MRA.

These members cited the subsequent inability of governments to improve conditions in their cities and urban sectors. This group asserted that the MRA already requires governments to prove the need for the condemnation and the use of private property through eminent domain.

To date there is no indication that the governor will heed the consultation of the task force. Still, Atkinson is hopeful that the governor will listen to the task force's advice since he plans on addressing a number of legislative committees on its findings before the next legislative session.

Farmington NM Daily Times: http://www.daily-times.com