Archive for Thursday, March 23, 2006

Eminent domain proposal advances in Legislature

Amendment would allow forced sales only for public use

March 23, 2006


— Kansans couldn't be forced to sell their property except for public use under a proposed constitutional amendment receiving first-round approval Wednesday in the House.

To clear the chamber, the measure needs a two-thirds majority, or 84 votes, on its final vote today. If it passes the House and then the Senate, voters will decide in November whether to make it part of the Kansas Constitution.

"It has a chance of passing, but it's always hard to get a two-thirds vote," said House Speaker Doug Mays, R-Topeka.

Mays said the chamber today will debate a Senate-passed bill covering the same topic. He said that proposal could have a better chance because it requires only 63 votes in the 125-member chamber and it already has cleared the Senate.

Supporters say making the proposal part of the state constitution would protect the new safeguards from court rulings and future legislative action.

"We've abused eminent domain. We've corrupted it for private use," said sponsoring Rep. Frank Miller, R-Independence. "It's a continuing decay of freedom in our country."

He said the right to own property is fundamental to a free society, and governments shouldn't be allowed to force someone to sell property so it can be turned over to someone else to make a bigger profit.

It's become a growing concern as urban areas encroach on rural sections, Miller said.

In June, the U.S. Supreme Court ruled local governments may seize people's homes and businesses against their will for private economic development. At issue was the scope of the Fifth Amendment to the U.S. Constitution, allowing governments to take private property through eminent domain if the land is for "public use."

The court gave local governments wide power to seize private property for conversion into projects such as shopping malls to generate tax revenue. But it also said states are within their rights to pass additional laws restricting condemnations, prompting the Kansas proposals.

At least 30 states have considered limiting the practice. New Hampshire lawmakers on Wednesday gave preliminary approval to a proposed constitutional amendment to limit government's ability to seize property.

In Kansas, the House proposal says no property can be taken through eminent domain for use by any private commercial enterprise, economic development or any private use unless the property owner is willing to sell.

The proposal also requires governments to pay 50 percent more than a property's appraised value in most forced sales. In cases where the taking was done to eliminate a public health or safety threat, a court would determine the amount paid.

When a government takes property, it must hold it for at least seven years before giving it to a third party. The proposal still allows property to be taken for public uses such as building highways and bridges, lakes and parks.

The Senate bill restricts state and local governments' power to force a sale so property can be turned over to another individual or company. State law says forced sales are presumed to promote "public use" of the property.

The bill allows six instances in which state governments can force a sale so property can be turned over to another individual or company, such as building roads, stringing utility lines or dealing with abandoned and uninhabitable property.

The Senate bill also requires the Legislature to approve each attempt to force a property sale for an economic development project.

The Institute for Justice, a Washington law firm that champions property rights, called Kansas "one of the worst abusers of eminent domain, especially in comparison to other states with similar population size."


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