The Kansas Legislature has yet to reconcile competing House and Senate plans restricting the use of eminent domain to acquire property. But Wichita City Manager George Kolb (in photo) argued in an op-ed piece in Sunday’s Eagle that the proposed plans would “cost taxpayers, stall important government projects and hurt crime-fighting efforts.”
The impetus for the reform was the U.S. Supreme Court ruling last year that opened the way for local government to obtain property through eminent domain for a private business venture, rather than just for a public project (which has always been allowed). That raised fears that, say, a government could take your home and then give the land to Wal-Mart.
But among Kolb’s concerns, which are shared by Wichita Mayor Carlos Mayans and Sedgwick County Commission Chairman Ben Sciortino, is that the House bill also would change how much governments have to pay for property acquired for a public purpose, such as a highway. Rather arrive at a purchase price through negotiation or, as a last resort, based on fair market value appraisals and court mediation, the bill dictates a confusing formula that could double the cost of acquiring such land. That would dramatically increase cost for taxpayers, Kolb said, and could hurt the city’s ability to combat slums and fight crime by acquiring blighted properties.
Posted by Phillip Brownlee
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18 Comments
Perhaps Kolb should have been more forth-coming and involved with getting good reform enacted. Instead, the City thought their lobbyists could just stonewall and block it.
Obviously, on legal advice from Gary Rebenstorf.Never have I met a man who is bound, so driven, so obsessed with making sure his life accomplishes…absolutely nothing.
Mr Kolb’s op-ed contains one central misstatement that is the heart of this entire controversy. The US Constitution does not provide for compensation for takings for a “public purpose;” rather, and I quote, the 5th amendment reads in pertinent part:
“. . .nor shall private property be taken for public use, without just compensation.”
PUBLIC USE. Not “public purpose.” That is the heart of the Kelo debacle, and the reason imminent domain reform is needed.
As to whether the compensation formula proposed by the bill is a good one, I’ll not attempt to judge. It may not be.
But local governments should not use the subterfuge of complaining of the cost to stop real reform on eminent domain. For as to whether local governments, who are routinely in the pockets of developers, must be reigned in when they use eminent domain to simply to enhance property tax revenues and reward those who support them, the answer is absolutely yes.
The best thing to for us developers of things is not use the community governments in discussions about buying personal or commercial properties. Discussions on zoning changes requires city or county approval. A private business can negiotiate with land owners at any time. Call together a neighborhood meeting.
Why wait for the political holdup that happens when the words Eminent Domain are mentioned.
Someone told me Republicans fight issues about eminent domain on principles. I’ll gladly bulldoze Republicans trying to hold their political views over improving this city.
Goverments deal with their own business considerations such as the highway expansion or any other need they find to improve the community like taking land to build a new school.
Common sense says make an offer on properties worthwhile and help those effected with moving costs.
Some things are created by developers not completely for their own pocketbook. New structures mean jobs being created and improvements to certain area’s of town are bettered.
“Obviously, on legal advice from Gary Rebenstorf.Never have I met a man who is bound, so driven, so obsessed with making sure his life accomplishes…absolutely nothing.”Nice!! :) :) :) :) :) :)
GMC, using the Constitution’s language literally is, as I’m sure you know, strict constructionist theory and can be very dangerous. The SC has upheld the spirit of the Constitution and has affirmed the government’s ability to convert blighted property into useful property through public/private partnerships. No one is bulldozing multimillion dollar properties so developers can build other multimillion dollar properties. They are converting slums, which contribute nothing to society and tax rolls, into projects which create jobs and tax revenue.
But if there is anything we can agree on, it must be that government has a real interest in developing and sustaining the economy. I just disagree that private enterprise is best equipped to actually do it in each and every situation.
Shocker -
Is there any other way to use language in ways put real limits on government? The real danger is cutting the Constitution loose from the words in it, especially when it suits our need for the present. When we do that, pretty soon we don’t have a constitution at all (in some ways, we’re nearly there now).
Words have meanings. They are used for particular purposes. The Founders certainly understood the difference between public “purpose” and public “use.” They wrote “use.”
That their use of that term is inconvenient to local councils who wish to drive out mere homeowners so they can hand the property over to commercial developers in order to generate greater property tax revenues is exactly the kind of limitation of government the founders had in mind. Property rights are not to be protected for just the property we may like, but for all. Just as O’Conner put it in Kelo – the abuse of eminent domain will fall disproportionately on the poor and those without the political connections the developers enjoy.
Look – perhaps the formula in the bill is unnecessarily expensive. I am less concerned with the compensation formula than with nature of the projects themselves. Fair market value is certainly fair.
But the eminent domain protections under Kelo are protections at the whim of the developers and the city governments they have bought and paid for – in other words, no protections at all.
If I were one of those landowners forced out in KCK to make room for NASCAR, I’d be livid. Since when does government get to favor one class of economic use over another? And who do you think holds the influence cards – the landowner trying to keep what was handed down to him, or developers who stand to make millions? That’s not even a close call.
Want to build a road, a school, a sewer pipe? Fine. Want to take property so you can turn it over to developers to put up hi-value condos to gentrify a neighborhood and notch up the tax base? Absolutely not.
Well said, GMC70.
Good points GMC
Hmm, GMC
I hope you don’t live anywhere I’m hoping to build things. You wouldn’t take good money above market value for your property and stand on principals, when there is no other way to sell the property at that price?
It depends on the project. Does the community improve with the structure built? All cities aren’t the same. One may build the largest mall in America to generate buzz for the city and create jobs.
Your basic mall wouldn’t be thought of in that way. It would have to be a regional pulling place for shoppers. Attraction for out-towners.
Race Car tracks, Stadiums,and arenas are also huge projects with the idea, that the community would be improved. Again, the ability of those structures to interest out of towners and energize the population.
Today’s stadium’s and race car tracks, arenas are better than past constructions. More thoughts into the comfortable level and amenities of fans.
Some residential land sits in the perfect location. Some warehouse properties could be as well. Location of the facility matters.
The Kansas Speedway project could have been done better, more corporate interaction with property owners, than the politicians demanding people move.
NASCAR track and a highway aren’t the same consideration. NASCAR should have compensated the property owners of Wynandotte County properly.
Somethings are better built inside cities, than corrupting farm land outside of the city. The structure changes streets and flows of traffic. Where no “exciting” business structures stood, they sprout to support the facility. It could redevelop a large area of town.
I’m for development to change some communities. It has to be a big ticket thing. Not the way our Ice Rink was created. A landowner bumrushed property lease people out really fast, then fooled the city to pay more for the land. The Ice Rink now fails to work as a business idea. Think I read somewhere at that time, cities with ice rinks don’t do well.
Today’s ice rinks with the possiblity of speed skating tracks is better viable idea. That structure won’t bring in out of towners same as a arena, stadium or race track.
Its not good to clear a residential neighorhood to build a ice rink, unless its tied to some other redevelopment projects in the same part of town.
We could use a better Lawrence Dumont stadium to watch AA baseball.
I’ve got ideas for stadiums. City and county couldn’t to build on their own. Their not supposed to be tax built if its a for profit project. Nothing that huge and costly can be done alone without community government assistance in TIF bond financing.
I believe the structures are missing pieces of Wichita, giving this community the ability to compete for events never realized before.
The downtown arena isn’t enough.
I have my eye on some “blighted” areas, the city is worried about. They want Eminent Domain powers to help tear down boared up properties faster. I wonder what price they would pay. Would it be low?
I’m constructing a for profit facility, good prices will be offered higher than what the city would imagine. They are spending tax money. Investors businesses are spending to make their structure more profitable in the long run.
The state is trying to make a formula what property owners should be paid. Maybe its because of that NASCAR situation in the past.
Some are afraid of Wal-Mart or other big box retail stores looking for city financing on buildings. Cabela’s, Bass Pro Shops and our Gander Mountain.
GMC, the Constitution is a “living” document. It is meant to be interpreted and reevaluated over time, not boxed in to 18th century America. A lot has changed in our society, our economy and our culture since then. The Constitution must change with it or otherwise become a meaningless piece of paper. Strict constructionism is an idea the SC has nixed on several occasions.
I am not for the government just condemning land at random. But blighted areas are not areas I just don’t like–they are a drain on society and on our tax rolls. They foster crime, are generally dangerous, and damage our image as a city. In this sense, the government has an obligation–a duty–to protect its citizens and encourage economic development. How in the hell is a property generating $5 in taxes better for the rest of us than the same property redeveloped generating ten times that????
I am just as much concerned with government having too much power as the next guy, but government has not demonstrated an inappropriate use of eminent domain power in the past. Unless you consider driving away drug dealers, prostitutes, and neglectful property owners a “bad” thing…
1. A “living constitution” is no constitution at all. Either a constitution is foundational law, or it isn’t. It’s clear that under your position, it isn’t. If that’s the case, then gov’t effectively has no limits, as the courts can “interpret” their way into literally anything. I’ll take that dead, 18th century document ANY DAY over the “living constitution.”
BTW – the “living constitution” civics book model is effectively on the way out on the federal bench, and rather the bench is going back to reading the text. For what the words mean. To the persons who wrote and ratified it. That is the meaning that is binding. And that is the important thing – a constitution is a binding thing, not something to interpret your way out of when its inconvenient.
Yes, the SC has in the past adopted that model; see Roper for the most aggregious recent example (an 8th amend. case). And the SC has interpreted the commerce clause in such a way as to effectively nullify federalism and any limits on federal power. The SC was wrong. With any luck, things may still be set right.
2. I got no problem with private developers buying up land. Buy away. I have no constitutional problem with using tax breaks or bonds to assist those projects, though I doubt that they pay off in the long run, and taxpayers end up taking the risks that developers should take; risk goes with profit. You end up with boon-doggles like the downtown arena will be, and developers walk away, leaving taxpayers with another white elephant.
I have a problem with using the state’s power of eminent domain to force owners to sell, not for public use, but for private profit. I don’t care how much a mall creates a “buzz.” It is not public use. It is private property, for private use and profit, and therefore inappropriate for eminent domain.
It’s not that the NASCAR track shouldn’t have been built; it’s that the state’s eminent domain powers absolutely should not have been used to force owners to sell.
“government has not demonstrated an inappropriate use of eminent domain power in the past”
I’d beg to differ. Kelo. The NASCAR project in WyCo. And it is the nature of government to abuse power – that is what governments do, given the opportunity. Especially local governments who are routinely in the pockets of developers flush with cash and looking for more.
The way our legal system is set up, GMC, the courts’ JOB is to interpret law. Law cannot stand on its own word for word. It is impossible to anticipate every scenario pertaining to a legal situation and write it into law. That’s why we pay judges–to interpret law. Our second amendment, at least in the court’s opinion, applies to individual ownership of firearms and not just a “militia,” as is exactly stated in the amendment. There has been a large amount of interpretation of the first amendment–that is why it is unlawful for someone to yell “fire” in a crowded theater. You don’t “interpret your way out of it,” you try to apply the spirit of the law to the situation at hand. The founding fathers could not have invisioned how complex our society and economy is today, it is important the Constitution adapt to changing times while still being true to its original mission. Something unbendable usually breaks–something that bends withstands pressure.
There are no developers building the downtown arena. Therefore, developers will not “walk away” rich. Again, no developers, check your facts.
GMC, your thinking stops when the developer finishes the project. You assume the project is over when it is built and your evil rich developer basks in his own glory while the rest of us toil away in the dungeons of economic bondage. Reality check: what was once blight is now a mall (using your example). Sales taxes are being collected. Property taxes are being collected (in greater proportion). Nearby residents enjoy a higher quality of life due to the increased variety of shopping. Nearby residents also enjoy higher property values (more people prefer living near malls than slums). Perhaps more development appears nearby due to this mall, adding still more economic vitality to this area.
You appear to only be able to think with your wallet–money rules your world. I am so sorry, but life is more than that. The NASCAR track in KC brings quality of life and an entertainment option to that community. It has spurred other development nearby. Overall, KC is better off because of that track. What we’re talking about is the greater good.
That particular area was rural/suburban, but most of these eminent domain issues have to do with more inner city areas. You say “homeowners,” I say “slumlords.” You say “residents,” I say “drug dealers.” You say “taxpayers,” I say “prostitutes.” You say “private property,” I say “ghetto.” Let’s call the whole thing off…
Shocker,
Have more faith in people, even in the criminals. It might be temporary insanity. Same need for the criminal to sell drugs is similar to corporate fraud collecting millions of dollars illegally. The market is there to take advantage of.
I don’t know where inner city Wichita is because the suburbs are in the city limits for the most part. I don’t view living in Andover or Park City as Wichitans. Maybe not even the Eastbourogh citizens.
This is Wichita from the farthest west side to east, north to south.
Blight is on the west side, homes are similar all over the place built in the 40’s, 50’s and 60’s.
Some homes and streets are kept up better just because street lights exist. Sense of neighborly community. Others don’t know their neighbors at all.
Its only blocks and few homes or apartments that tend to have a collection of nefarious. They are all over town. Drug takers come from every economic level. They must have dealers.
With the right circumstances nearby some neighborhoods can’t get better. Cities shouldn’t build new improvements only in one section of town.
Most people are decent, even the broken looking home outside can be maintained well inside. Its a shame pizza deliverey is shot on one side of town, when that individual is just robbed on the other.
Some nice homes have evil people and in those rooms, prostitution exists. Not every hooker is working the street. Male and female.
Delevoping structures in residential neighborhoods many life stories that are worth knowing though its a “blighted” area of town. Some circumstances aren’t the fault of the individuals living there.
Evil forces in America help keep people poor. Its a economic predatory problem by some businesses, especially in health care costs. The IRS attacked a family in the past. Criminal record prohibits a better job. Some taggers leave graffiti all over the place. Somebody keeps dumping trass and not cutting grass.
Shocker07
Quote:”You appear to only be able to think with your wallet–money rules your world. I am so sorry, but life is more than that. The NASCAR track in KC brings quality of life and an entertainment option to that community. It has spurred other development nearby. Overall, KC is better off because of that track. What we’re talking about is the greater good.”
You couldn’t be more wrong about what “rules” my world; and again, you’ve missed the point. Sure KC is better with the track. No doubt. But – that’s not the point.
It is a private operation. Operated by private individuals, for private profit. Given that, it is absolutely wrong for government to use its power to force owners to sell to make room for the project. If the developers want the land that bad, they’ll have to pony out the dollars.
And that’s the point. I’m not anti-development; if I’m anti-anything, I’m anti-government. Government must live by its own rules. And those rules are that government must not use its powers to favor one economic benefit over another, for private profit. To hold otherwise will always make the property of those without connections and influence at the mercy of those with, especially if they can get government to do the land aquisition for them on the cheap. The well-to-do have the protections of the law to protect their propery; certainly the not so well-to-do deserve the same?
“That’s why we pay judges–to interpret law.” Agreed – “interpret” law, not make it. And that means that they are bound by that constitution, like it or not. See the supremacy clause, Art. 6, if I remember right. The “living constitution” idea, while a nice idea, may well become (and has, in some cases, see Roper) license to rewrite at will. And that makes the constitution itself no longer a constitution at all.
Words have meanings. Those meanings are binding. That’s what constitutions do; in fact, that’s what constitutions are designed and INTENDED to do – bind and limit government. And if any human institution ever needed limiting, it’s government.
I’m glad to see how you see the 2nd. We likely would agree more than we disagree. I’d like to see the 2nd fully litigated. Interestingly, the very little 2nd amendment litigation that has happened hasn’t answered the question as to whether the 2nd is an individual right, like the 1st, or a collective State right. Frankly, it’s hard to make the collective argument, given the history of the nation and the writings of the founders, but Brady and Co. keep trying.
And hopefully Brady keeps failing. Yeah, GMC, I think we agree more than we disagree from some of the other threads I’ve seen. Don’t get me wrong, you are a hell of a poster–one I hate to argue with because you make so many damn good points!! You leave me scrambling to find an argument, but that makes me a better poster in the end and I thank you for that. :)
Alright, enough love, let’s get back back to the battle!!
You have to look at the benefits, man. I think that’s what the Supreme Court has tried to say. Do we hold up a worthwhile project that would have lasting positive impacts on an entire community (creating jobs, increasing quality of life, bettering recruitment opportunities for the local chamber of commerce) because one or two people refuse to sell? That’s why government has eminent domain in the first place–to make sure roads, utilities, public buildings, etc., are not stalled.
The precedent here is the fact that railroads (private companies, with one exception) have eminent domain power. Why? Because the benefits of what they bring to the table (economic development, interstate commerce) are far too important for one person or a handful of people to hold it up.
Now I think we agree that eminent domain power should not be abused. No one should lose their house for a strip mall. However, the option needs to exist for large scale projects that will/could have immeasurable benefits to an entire community. Locally, the downtown arena, ice rink, Century II, the airport, Cheney Lake–all appropriate uses of eminent domain power.
Let’s not completely strip away eminent domain for public/private partnerships.
Railroads have an enormous difference from the local mega-mall. They are common carriers, open to the public; that is, they must transport ANY person who buys a ticket. Further, they are publicly regulated as a natural manopoly, similar to a utility. Public utility plants, such as electric or gas facilities, would meet the same rule.
The same can not be said of a NASCAR track, or, frankly, an ice rink. The airport, as a public facility, is classic eminent domain, as certainly is Cheney Lake. The downtown arena? That one’s a closer call; it’s a boondoggle waiting to happen in any case.
Kelo is classic ED abuse, pure and simple, and no amount of trotting out misguided precedent will change that. I’d favor the state making sure that public use means public use. Public “purpose” or “benefit” is so nebulous a concept as to be a protection with no teeth. Sorry – I don’t trust the bastards at city hall – and that’s ANY city hall, anytime.
Congress deregulated railroads in the early ’80s. The government no longer has rate control powers. Freight railroads are under no obligation or requirement to provide a service when one is requested–of course, it’s in their best interest to do so. These days, they appear to be somewhat of a hybrid between a utility and a completely private, unregulated enterprise.
The airport is a classic comparison to an arena. The only people who use it are the ones who can afford to. It’s built with public funds and contracted out to private business. It’s meant to fulfill a public need as well as generate economic development. How are they different in that eminent domain is okay for one and not the other?
Like the railroads are (or, frankly, were, as they rarely carry passengers today) airlines are common carriers. They serve anyone and everyone who shows up with a ticket. They are public USE, even though operated by private business.
Is the downtown arena a public use facility? Probably (justs a dumb one). I have less objection to the arena (other than bemoaning paying for another white elephant).