Changes to eminent domain law would favor property owners: Salt Lake City UT Deseret Morning News, 2/5/07

By Amelia Nielson-Stowell

For the second year in a row, changes to the controversial eminent domain law are again being pushed by legislators, this time allowing more latitude for property owners.

At least two bills that would alter the law, which was amended last year during the 2006 legislative session, have already raised concerns among local municipal leaders.

Last year's SB117 amended the state eminent domain law that required city or county councils to approve a government's taking of private property for public use. The measure was amended to include a provision that would prohibit eminent domain for trails or paths meant for walking, hiking, bicycling, equestrian or other recreational uses.

But HB334 excludes emergency access roads and certain parks from eminent domain and "expresses legislative intent" on last year's amendments. The bill passed the House Government Operations Committee Thursday with a 6-2 vote.

Rep. Aaron Tilton, R-Springville, is sponsoring the bill and said it further clarifies those recreational uses and closes loopholes, such as defining a public park as a trail-like walking space.

"We don't take property for recreational purposes," Tilton said. "I don't know if, as a legislator, I'm going to wait for the courts to decide that."

Tilton used litigation between the city of Mapleton and a private property owner as an example. That years-long case revolves around Maple Mountain landowner Wendell Gibby, who does not want his 120-acre parcel of land to be used by the Utah County city as an access route to the Bonneville Shoreline Trail. Most recently, the city has attempted to condemn a tract of Gibby's land for a water line.

"I hope that none of you have ever gone through hell to have your land condemned by the city," Gibby told the committee. "Eminent domain is never a fair fight, gentlemen. The city has tax dollars to beat you up with. ... Cities have needs and they have wants, and the wants category should not be used for eminent domain."

Mapleton Mayor Jim Brady, who opposes the bill, voiced concerns over solving the matter through legislation rather than the court system.

"It sets a very bad precedent, in my opinion," he said. He added the city needs the 10-foot wide, 2,000-foot-long trail to connect the park systems throughout the east bench and for emergency access.

Meanwhile, Rep. Steve Urquhart, R-St. George, is sponsoring HB365, which was held at the House Government Operations Committee Monday.

The bill adds further protection for property owners, like authorizing a property owner to bring a civil action against a city that violates requirements, granting any court costs, attorney fees and relocation expenditures accrued and imposing prerequisites on a city before it acquires property through eminent domain.

"There are very legitimate concerns when the government steps in and takes your property," Urquhart said Thursday. "I know this is going to be a controversial issue, but I think I have broad enough shoulders to deal with both sides."

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