April 07, 2006

An Eminent Domain Bill in Typical TN General Assembly Fashion

When the Kelo decision was handed down by the Supreme Court last year allowing governments to take private property for private development, public outrage ensued. As a result, people demanded that something be done. State and local governments across the country went into action to strengthen their eminent domain laws so that Kelo wouldn't affect their citizens. Enter Tennessee.

Despite calls to take quick action to weaken government's power to seize private property, the Tennessee General Assembly took a slower approach. Between sessions, a committee was supposed to meet to put together some ideas for a bill. This approach, on the outside, looked like it would yield some good, well thought legislation. But, you have to remember that we're talking about the Tennessee General Assembly.

The committee only met once between sessions, and what has resulted is HB 3450 by Rep. Joe Fowlkes (D - Cornersville). It actually looks like a decent piece of legislation....at least it starts out good...and the summary sounds nice. It's being promoted as Tennessee's response to Kelo, but what does it really do? Does it really do anything to strengthen eminent domain laws?

You won't be surprised at the answer. It's simply, no. It's nothing more than a feel-good piece of legislation that the Democratic leadership can prop up before the voters to say that they have done something. If this legislation passes, there will be nothing different. Much like a lot of things the Democratically controlled General Assembly does, it only codifies their "business as usual" policies, and Speaker Naifeh is spear-heading this effort.

Naifeh's response to the bill was simple...if anyone from the Republican side attempts to amend the bill, it will be squashed. Why would the Speaker want to keep things as is? Why would the General Assembly not want to take this opportunity to give more latitude to private citizens when it comes to eminent domain? Apparently those in power have more to gain when things stay the same.

In response to this lackluster bill, several Republican legislators got together to put together a set of ideas and points that could be put into the form of amendments which would strengthen the bill. These are ideas that effectively "strike while the iron is hot" in order to tip eminent domain laws in favor of the people and protect their Fifth Amendment rights.

The following points were put forth by the Republicans:
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1. Extend time -- Currently, landowners are given five days notice regarding the "taking" of property. The amendment on the floor in March would extend that time to 30 days so that property owners would have a more reasonable time period to exert their rights. (Amendment 3 - DuBois)

2. Input by governing body -- Currently, there is no requirement that approval must be given by the local governing body for the exercise of eminent domain, even though several non-governmental entities have this power. Another amendment put forth says that approval must be given by a simple majority by the local governing body. It assures oversight by the elected representatives of the people to give a check and balance to "takings." Utah just passed this in SB 117 recently. Many other states are considering this provision. (Amendment 4 - Pleasant)

3. Right of first refusal -- Currently, there is no right for property owners or their heirs to buy back property that was "taken" and later put up for sale. Amendment five would give the right of first refusal to the owner or their heirs. (Amendment 5 - Nicely)

4. Highest and best use -- Currently, property "taken" is appraised at market value. Amendment six would value such property at its "highest and best use" so that property owners would get the true value of the property. (Amendment 6 - P. Johnson)

5. Procedural Protections -- Currently, judges MAY require that escrow money be deposited in a fund so that property owners who have their land "taken" can have some funds available to move, find property etc. Amendment seven assures that this takes place by saying the money SHALL be deposited. Amendment 7 - DuBois).

Similarly, another amendment adds attorney' s fees, cost of appraisal and engineering fees to the damages that can be awarded if a property owner wins their case in court. (Amendment 8 - DuBois) The amendment assures that these property owners do not go backwards economically as a result of their case.

Finally, amendment ten adds business interruption to the list of recoverable damages that can be awarded in cases of eminent domain. (Amendment 10 - DuBois)

6. Private to Private transfers -- Amendment fourteen describes "public use" as meaning it "is limited to the possession, occupation, and enjoyment of the land by the general public or public agencies, use of the land for the creation of functioning of public utilities, or the acquisition of abandoned property. Public use shall not include the public benefits of economic development, including an increase in the tax base, tax revenues, employment or general economic health. (Amendment 14 - Campfield). It replaces the language in the current version of the bill that provides exceptions for private to private transfers.
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Most of these are great ideas, and if they are going to be put into effect, then it must be done now. However, if Jimmy Naifeh has his way, this won't happen. A bill on eminent domain may end up passing, but it really won't change a thing.

This bill will start seeing more action next week. If you want the General Assembly move to strengthen protections of the citizens of Tennessee, I suggest that you contact your representatives and encourage them to support the above amendments. If you'd just rather things remain the same then do nothing. The special interests (and Jimmy Naifeh) will be glad you did.

Comments:

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You said..."Naifeh's response to the bill was simple...if anyone from the Republican side attempts to amend the bill, it will be squashed. Why would the Speaker want to keep things as is? Why would the General Assembly not want to take this opportunity to give more latitude to private citizens when it comes to eminent domain? Apparently those in power have more to gain when things stay the same."

That is enough for me to contact my representatives. I will do this today, striking before the iron gets hot.

Posted by: Creative Liberty at April 7, 2006 08:15 AM

You may recall Blake I tried to warn you about HB 3450 and you deleted the post as off topic.

I am glad that you see this bill for what it is. It is an anti-farm bill that is as much of an abomination as the Kelo ruling is.

It is the height of hypocrisy as Joe Fowlkes and Jimmy Naifeh try to sneak past the voters a bill that makes any farm or rural land subject to eminent domain for any reason. Originally it was for "industrial parks". Why questioned by Rep. Campfield of Knoxville Rep. Fowlkes admitted that this could include corporate parks. When asked what was included in a corporate park Fowlkes admitted it could be a Walmart and even a Starbucks.

Today at 4:00 PM Eastern time Rep. Campfield will host a radio forum on House Bill 3450. Various State leaders are expected to call in on the issue.

You can listen to this program on the Internet at:

http://www.southernrootsradio.com/newwin.html

Blake, I am glad you have found out how serious this issue is and I appreciate your bringing it to the people of Nashville.

You can learn much more about this on my blog at:

http://www.propertyrightsknox.blogspot.com/

Let everyone work together to remove Joe Fowlkes and Jimmy Naifeh from office for their complete and total betrayal of the people of Tennessee.

Property Rights are a moral issue.

Posted by: Property Rights at April 7, 2006 01:38 PM