Eminent domain limits become part of state constitution - Breaking News

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Nov. 25, 2008
Copyright © Las Vegas Review-Journal

Eminent domain limits become part of state constitution

By ED VOGEL
LAS VEGAS REVIEW-JOURNAL CAPITAL BUREAU

CARSON CITY — A district judge refused today to stop enforcement of the state’s new eminent domain constitutional amendment.

District Judge James Todd Russell said the rights of the “citizens of Nevada would be compromised” if he granted a stay sought by the Regional Transportation Commission of Southern Nevada, the Clark County Regional Flood Control District and Nevadans for Protection of Property Rights. Since voters twice approved the constitutional amendment, Russell said they should enjoy its benefits now.

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Nevada citizens approved the People’s Initiative To Stop The Taking Of Our Land (PISTOL) in the 2006 and 2008 elections. During the Nov. 4 election, 61 percent of voters backed it.

The state Supreme Court finished canvassing the election results earlier today and the constitutional amendment immediately was put in place.

But lawyer Bradley Schrager said the government agencies he represents might face unforeseen liability problems if the amendment is enforced.

“Do you want PISTOL for the next two years with all its problems?” Schrager asked the judge.

Schrager said the Legislature reached agreement with county commissioners and others last year on a new eminent domain plan. Legislators are expected to ratify that plan again at the 2009 session and the matter will be put before voters in 2010.

If voters approve, then a new eminent domain constitutional amendment will be put into effect two years from now that does not have the same problems as PISTOL, Schrager said.

But Deputy Attorney General Keith Marcher said Schrager could not argue that PISTOL will be a hardship for his clients because “they haven’t attempted a taking under PISTOL.”

Schrager’s comments prompted Russell to say that it looked to him like “everyone is trying to protect their positions relative to that agreement.”

Southern Nevada lawyer Kermitt Waters, who circulated petitions to put the measure on the ballot, said there was a “hidden agenda” by government agencies that simply do not like PISTOL.

“I don’t know what it is,” Waters said. To me, this request for a stay is off the wall.”

Before the hearing, Schrager acknowledged it was “irregular” to seek a stay of a constitutional amendment on the day it goes into effect.

Waters said the intent of the constitutional amendment is to stop governments from using eminent domain to low-ball people on their property’s true value and take the property and give it to developers and gaming industry executives such as Steve Wynn.

“Now the people have constitutional protection that they will not take your house or property and give it to some developer,” said Waters after the decision. “They won’t be erasing that very quickly.”

He sought to limit the use of eminent domain in Nevada after a 5-4 U.S. Supreme Court decision in 2005 allowed the city of New London, Conn., to take private homes and then sell the property to a developer so a shopping center could be built.

Waters said the same type of situation has occurred in Nevada when cities seized private property and gave it to casinos and developers.

In a brief prepared for the hearing, lawyer Joe W. Brown repeatedly called the new amendment “unconstitutional” and said people of normal intelligence cannot understand its intent.

In particular, Brown said the government agencies do not understand the meaning of the PISTOL clause “if the property is not used within five years for the original purpose stated by the government,” then it reverts back to its seller.

Waters said he did not mean that clause to mean property should return to its seller “if trucks are not running” within five years on a property acquired for a highway. As long as design or other work is being done on the acquired property, then the five-year provision would not come into play, he said.

He said he was willing to change that time limit to 15 years, reflecting the agreement worked out in the Legislature last year.

Waters added he would not oppose the constitutional amendment coming in 2010 since it contains more than 90 percent of PISTOL’s provisions and does not change its intent.

In an interview, Waters said government agencies go to the Legislature all the time to change eminent domain laws in ways that hurt the public. They realize legislators often are “too stupid to understand” their true intentions, he added.

Waters pointed out that the Clark County government agencies sent three lawyers to the Carson City hearing, including Brown, a high-profile attorney who is the Republican national committeeman for Nevada.

“Who is going to pay for them?” he asked. “The taxpayers, that’s who.”

Contact reporter Ed Vogel at evogel@reviewjournal.com or 775-687-3901.

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Please enter your name Name: Please enter your email Email: Please enter a comment COMMENTS : (word count limit is 300) You have reached the maximum number of words allowed Current Word Count: Note: Comments made by reporters and editors of the Las Vegas Review-Journal are presented with a yellow background. Retired wrote on November 25, 2008 10:34 PM: .......and......to understand ANYTHING that goes on in Nevada.....Follow the money... Retired wrote on November 25, 2008 10:30 PM: This is from a 2006 RJ article explaining PISTOL. Now, how in the world could any citizen with half a brain object to this? "PISTOL would entitle property owners to have juries determine whether the land being sought under eminent domain is being taken for a public use or private development; compensation would be the highest price the property would bring on the open market and not a lesser, so-called probable sale price now offered; and property owners would not be liable for attorney fees." DMCVegas wrote on November 25, 2008 04:34 PM: I'm glad to hear that the judge refused the stay. It shows that at least sometimes our democracy works as intended. Having said that, what in the world does the regional flood control district now need more land for? As we build and expand new streets, just install the proper storm drains and connect them to the washes and flood channels, what's the big deal? Don't talk to me about needing to expand things for future neighborhoods. The developers can easily install storm drains rather than just have neighborhoods dump out into the city streets. We're talking storm run-off, not sewage. And let's not even get into it with the RTC. And in either case if the system gets too taxed, there's an easy solution: STOP BUILDING & CONTROL GROWTH! USE WHAT YOU HAVE FIRST! Big Al wrote on November 25, 2008 02:16 PM: George....what you have spewed is exactly why a majority of taxpayer/property owners and voters voted for this measure twice. Why should a homeowner's residence be taken away from him if the govt is going to use that house/property for more than 10 years and why should the govt have the power to take away your property and give it to a casino company at a reduced price ? Well voters have spoen, the govt should not be allowed to do this. If a flood control project needs to be done, eminent domain will come into play and the govt has to move on using the property and not lag...so in fact George, this amendment will actually increase govt efficiency. And if the govt lags on using the property, the former owner can buy it back... Dennis #1 wrote on November 25, 2008 02:09 PM: Hey George - Too bad you don't know: 1) What the measure is all about 2) What it really does for citizens 3) What you are spouting about on this page Go back to your RTC kool-aid..do you work for them or NDOT? Bob the Builder wrote on November 25, 2008 02:00 PM: Talk about a slap in the face - the local governmental entities that are trying to block the adoption of an initiative that has twice passed the required vote are using tax payer dollars to do so. George wrote on November 25, 2008 01:59 PM: This is why I voted against PISTOL. It's one thing to prevent eminent domain as a backroom trick for private real estate developers. But as it's written it's also a hindrance to public use eminent domain uses like road and flood channel construction. PISTOL's time requirement for the use of eminent domain purchased land makes it incredibly difficult for the government to acquire land for projects that take years to develop. The CCFD's Flood Channel program is a 25 year construction project. PISTOL is going to make that next to impossible to complete. Big Al wrote on November 25, 2008 01:08 PM: Great Job, defeated the local and state governments & agencies. Kermitt Waters for Senator...or...Governor! AP wrote on November 25, 2008 12:45 PM: Great Job Kermitt! darrin wrote on November 25, 2008 12:27 PM: Yes. It sounds like a good thing. What am I missing here? Read All Comments