SAN FRANCISCO - Nevada voters will decide this November whether to add eminent domain restrictions to the state constitution through a ballot initiative sponsored by former Nevada district judge and Republican candidate for attorney general Don Chairez.
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Chairez's "Nevada Property Owners Bill of Rights" represents the latest state-level reaction to the national precedent set by Kelo vs. New London, last year's U.S. Supreme Court ruling that strengthened the ability of local governments to invoke eminent domain laws in claiming property for private development.
The state of Nevada had begun to address the issue by enacting AB 143 during the 2005 legislative session, before the high court ruled on Kelo last June.
Nevada's new law requires local governments to cite at least four different indicators of blight from a list of eight in order to make an eminent domain claim.
The stipulation stands in contrast to a previous requirement of just one indicator, said Assemblyman William Horne, D-Las Vegas, who sponsored the legislation, which ultimately passed.
Horne is already drafting a stricter bill for the 2007 legislative session, which begins next February; it will include requiring local governments to directly negotiate with property holders before starting a formal eminent domain claim.
"I'm working on what I wanted from the beginning, a prohibition of government trying to take away private property from one individual and giving it to another private individual," Horne said.
Horne's draft counts as one of eight eminent domain bills already scheduled for consideration in the 2007 session, according to Lorne Malkiewich, director of the Nevada Legislative Counsel Bureau.
Malkiewich said that Nevada has had a jump start on other states in reacting to Kelo because of the public outcry over a series of related lawsuits occurring in Las Vegas over the past two decades.
The cases concerned the city government's land seizures from three different property owners on Las Vegas's historic Fremont Street, in order to build a parking garage benefiting casinos in the area.
Ten years of litigation had finally led to a decision favoring the plaintiffs by then district judge Chairez, but a subsequent appeal to the Nevada Supreme Court overturned the lower court ruling.
Chairez said the city had offered the Pappas family, one of the property owners, $380,000 for a 7,000-square-foot parcel of land, but a subsequent lawsuit settled out of court last year for $4.5 million, in a deal brokered by Las Vegas Mayor Oscar Goodman.
One Fremont Street plaintiff, Ida Ray, died before the litigation reached a settlement, and another plaintiff, former U.S. Sen. Jacob Chic Hecht, died in February after receiving more than $3.2 million from the city in 2005.
"The council and mayor's position is: the city will not use eminent domain to take private property to give to private businesses. The parking garage claim was from a previous administration," said Goodman spokesman Jace Radke.
To qualify his initiative for the ballot, Chairez gathered 137,698 voter signatures, 109,454 of them verified, well above the 83,184 minimum requirement amounting to 10% of the turnout in the 2004 general election, said John Trent, spokesman for Nevada Secretary of State Dean Heller.
Even though the Las Vegas lawsuit has fired up Nevada voters about eminent domain, the attorney who represented Hecht said the initiative might not win so easily.
"People who lobby for the use of public funds will run commercials saying things like, 'No one can build a school or fire station,' and people on the other side of this issue don't have money to lobby for the truth," said Las Vegas attorney Laura Fitzsimmons.
Fitzsimmons just won the case Steve Sisolak v. McCarran International Airport, an eminent domain case typifying one of the issues contained in the proposed "Nevada Property Owners Bill of Rights."
In Sisolak's case, the airport had effectively taken the airspace around his home. And on Thursday the Nevada State Supreme Court upheld a lower court award of $6.5 million in damages, plus up to twice that much in legal fees.
This type of reimbursement would become mandatory under the eminent domain initiative, which requires the government to compensate property holders for all economic losses resulting from government actions including rezoning.
The initiative also specifies that the government must provide records of property tax appraisals when making an eminent domain claim, rather than leaving it up to plaintiffs to request those documents after proceedings have begun.
Furthermore, the initiative says local government must offer the highest possible market value when buying property claimed with eminent domain, unlike the current practice of relying on rezoning and the legal phrase "most likely use" to lowball the purchase price.
Under the initiative, if the government doesn't utilize claimed property within five years of invoking eminent domain, the original owner may buy the real estate back for the price paid.
Finally, the initiative says property owners may disqualify one judge at each judicial level, and should not have to pay the government's attorney fees and related costs.
"In the Legislature, we couldn't pass that because people thought it would increase litigation," said Horne of both the legal fees and disqualification of judges.
"My No. 1 concern about the ballot initiative is that we can provide faster relief for property owners by enacting a statute instead of an amendment," Horne said.
While a new law could pass in one session, an amendment requires voter approval in two consecutive general elections or legislative approval in two legislative sessions. Both of those timelines are biennial.
Meanwhile, the Sparks City Council unanimously approved a resolution opposing the "Nevada Property Owners Bill of Rights" last Monday, before the secretary of state's office had finished certifying the signatures submitted with the petition.
A statement released by the council said: "This particular initiative limits the ability for municipal control, threatens opportunities to reinvest in the City of Sparks, and severely restricts the use of eminent domain for basic transportation and public works projects, and for redevelopment and revitalization efforts."
Also running for attorney general this year are Catherine Cortez Masto, the Democrats' nominee, and O.Q. Chris Johnson, of the Independent American Party of Nevada. (c) 2006 The Bond Buyer and SourceMedia, Inc. All rights reserved. http://www.bondbuyer.com http://www.sourcemedia.com
