Attorney Fleshes Out Eminent Domain Case For OK Cattlemen
By David Bowser
OKLAHOMA CITY — New condos in Connecticut have Oklahoma ranchers worried.
Earlier this year, the U.S. Supreme Court said government can exercise its right of eminent domain even to the point of taking private property from one person and giving it to another for private development.
The case, Kelo v. New London, involved the city of New London, Conn., which wanted to condemn houses in a middle class neighborhood so a developer could build upscale condominiums and shopping malls and increase the tax base of the city.
Jeff Todd, an Oklahoma City lawyer and member of the Oklahoma Cattlemen's Association, says the case is more complex than that, however.
"When you hear about Kelo and you hear about how terrible it is to live in the United States of America because the government is coming and taking your land and giving it to others, that's not necessarily true," Todd says. "In Oklahoma, government is much more limited on what they can do."
Still, the case worries property owners, particularly farmers and ranchers.
"The number one concern is 'I don't want to do anything that will cause me to lose my farm,'" Todd says. "You can really touch a nerve if the government says that they have the right to take your farm without you having anything to do with it."
The Kelo v. New London case has to do with eminent domain. "Eminent domain is a process where the government has the right to take land for public use as long as it pays you just compensation," Todd says. "It happens all the time." Any landowner recognizes that if the government is going to put in a new road or widen the highway, the landowner's property may be at risk. "We're going to pay you fair compensation for it, and we're going to take it now," Todd says. "I do this all the time in litigation. I can tell you our opinion on what's fair compensation and the government's is always a lot different." He says he's never seen a case where the two sides can start out by agreeing on what the property is worth. "It doesn't happen," Todd says.
The Supreme Court’s Kelo decision was controversial, Todd says, because for one of the first times, the United States Supreme Court discussed the government's power to take land for a public purpose and the public purpose wasn't to build a road. It wasn't to build a bridge. It was for economic development.
Economic development in this case meant that the city, through a trust, was going to buy the land and then quickly make some of it into parks, but even more of it was going to be turned over to a developer to be made into a mall, a nice marina and high-income housing.
One of the complainants who brought the lawsuit to stop the city from taking the land was a woman who was born in 1918 in the house where she lives today, Todd says.
"This house had been in her family for 100 years," he adds.
She didn't want to move. She really didn't want to move if the city was going to take her house and give it to developers.
"The United States Supreme Court, in a five-to-four decision, decided that economic development was enough of a public purpose to allow the city to take all this land, about 90 acres," Todd says. "As you might imagine, landowners throughout the country were up in arms."
Todd says the issue has crossed political lines.
"We have conservative groups concerned," Todd says. "We have liberal groups concerned."
Todd notes that even the Court’s majority said the decision is no blank check for such actions.
"On the other hand," he says, "I think most of us will also agree that downtown development or revitalization of a city is not that bad of a deal."
One of the justices who voted with the majority, Todd says, specifically said a test and a legal standard would have to be met before the government can take private property. A city or other government entity will have to present a good reason to exercise eminent domain in such a manner or the taking will not stand.
That means a city cannot take property arbitrarily and give it to someone else.
"This property that's owned by Person A and given to Person B," Todd says, "you can't to that."
The court said such a transfer must be based on a legitimate, well thought-out concern for economic development and a plan for how this is going to create a better community.
There has to be some protection for the public, Todd says, and some benefit for the public to do it.
"That's not very much solace to those of us who own land," Todd admits, "and are concerned about out property rights, but Kelo is out there, and we're going to have to live with it."
The answer may lie with the states. "One thing that Kelo did say," Todd continues, "was that states can limit the right of eminent domain." Kelo specifically says state legislatures can limit the state's authority to apply eminent domain. "In other words, the state constitution can limit the state's authority to do it," Todd says. "There is still federal condemnation." The federal government can use eminent domain for highways and public works programs to benefit society.
"It's unlikely that the federal government would take land for economic development," Todd adds. "That's done at the local level."
About eight states already have taken steps to limit the right of eminent domain, he notes.
"Oklahoma is not one of them," Todd says pointedly.
To some extent, he adds, Oklahoma has already been through this situation.
"There was a recent Oklahoma Supreme Court case that came out in 2004," Todd says, "that was very similar. It involved Mid-West City. Mid-West City was attempting to take some property and redevelop property around Tinker Air Force Base."
The city was trying to take the property under a general power of eminent domain.
They bought a lot of property, but a few landowners held out and said no, Todd continues.
The opponents claimed the city had determined unfairly that their property was blighted. The courts in the past have allowed cities to take properties that are blighted.
"These are slum areas, areas that are impoverished, areas that are really an eyesore," Todd says.
The law allows cities to take that property and redevelop it.
"They are called redevelopment acts," Todd says. "Oklahoma has three of them, but they're very specific in what is blighted and what kind of compensation has to be paid, whether you have to pay for business losses and things like that.
“In Mid-West City, the court held that there is no general power of cities for eminent domain," Todd says. "In other words, you can't just say, 'I want this land for economic development, and I'm going to take it.' That's something you can rely on."
In a practical sense, Todd says, farmers and ranchers shouldn't worry too much about losing land under such conditions because they are generally on the edge of town, outside the slums.
"Being on the outskirts of town, you're less likely to have blighted property," Todd points out.
The problem in some instances, however, is that a specific piece of property doesn't necessarily have to be blighted.
"You might have a nice little store in the middle of blighted property, but if it's determined that the area, the neighborhood, is blighted, they can still come and take your property so there's uniform development.
“That really rubs a lot of people the wrong way, but generally, that's not the case. A lot of these statutes are aimed at downtown redevelopment, urban renewal and things like that."
Todd doesn't look for wholesale eminent domain condemnations in Oklahoma or anywhere else anytime soon, but he says the Kelo case is something to be concerned about.
"The sky is not falling in Oklahoma," Todd explains. "However, I think that the Kelo decision should have the Oklahoma Cattlemen's Association's attention. I think it's important to monitor this."
Draft legislation is being discussed among state representatives in Oklahoma.
"I think there are three draft bills that will narrow the scope of eminent domain in Oklahoma," Todd says. "It would probably be important and significant to monitor that. This prospective legislation is very important."
The Kelo decision, Todd says, was decided on the precedents set by past decisions. The Supreme Court heard two similar cases previously.
"I think it's been about 20 years since the United States Supreme Court has even looked at this issue," Todd says.
At least one of the previous cases is more alarming than the Kelo case, he adds.
The first, which seemed to cause little stir, concerned city blight in New York.
"About 64 percent of an area was uninhabited," Todd explains. "It was full of crime. It was just a slum. The United State Supreme Court said that was appropriate."
In that case, the Court ruled that eminent domain could be used for redevelopment purposes.
"The other case was, I think, more alarming," Todd continues.
In Hawaii in the 1970s, 70 families owned about 80 percent of the land on a certain island. That created a housing shortage.
"They had rent houses they wouldn't sell," Todd explains. "Why sell them? You can't buy a house; you have to rent one. Prices were very high."
In that case, the Court upheld in a nine to zero decision a ruling that Hawaii could force those landowners to sell their property to the tenants.
"To me, that would be really alarming," Todd says.
He questions whether that same logic could be applied to counties — whether government could force landowners who have a lot of property in a given county to sell part of it.
"I think Hawaii is a very unique case," Todd says, "but that's alarming."
There is concern at present, however, over a proposed highway from Oklahoma City to Laredo, Texas.
Known in “Baja Oklahoma” as the Trans-Texas Highway, the project has both Spanish and Mexican companies interested in developing it. It would be a toll road with land at intersections to be developed for malls and truck stops.
"I love condemnation cases against the turnpike authority," Todd says. "I represent landowners, and I look in the jury's eyes and say, 'The turnpike authority says it's worth this much, and we say it's worth this much, and when was the last time you paid a toll?'
“Next to car dealers and lawyers, turnpikes are the least favorite things jurors like."
The Oklahoma City to Laredo highway is still a ways away, but there is opposition to at least parts of it in both states.
"Under the United States Constitution, the federal government has the right to take private property for public use as long as they pay just compensation, and a highway is the most clear example of public use," Todd says. "That's just part of life."
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