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Eminent Domain: Weapon or Tool?

Legislature passes bill nixing eminent domain for trails

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When the city of Eagle wanted to pave a one-mile path to connect its riverfront to the Boise Greenbelt, it sparked a dispute between landowners and the city that lasted more than a year. The argument was settled once and for all when the city initiated eminent domain proceedings last spring, which gave the city guaranteed public access and the landowners fair-market value for the easements. The city paid a total of almost $157,000 to three landowners and built a connection for a greenbelt stretch from Eagle to Boise.

When Wayne Hoffman, executive director of the Idaho Freedom Foundation, hears stories like that, he calls eminent domain a "weapon."

"It is used to threaten and ultimately injure property owners," he said. "It's an extraordinary power the government is given to take away people's property. Every opportunity we have to take away that power is something I want to utilize."

Hoffman was relieved when Gov. C.L. "Butch" Otter signed Senate Bill 1044 into law on March 26. SB 1044—sponsored by Sen. Jim Guthrie, R-McCammon, and Rep. Christy Perry, R-Nampa—doesn't eliminate local eminent domain, but it does begin to chip away at it.

The bill states municipalities can no longer seize private property in exchange for a court-approved fair payment to build trails, paths and greenways. It doesn't prevent cities from using eminent domain to build roads, canals, schools, mines and cemeteries, but Hoffman calls it a start.

"People have private property rights that are sacred," he said. "If you don't have that, you don't have freedom—even if it's taken for a cause you believe to be noble and worthy."

Bicycling and walking are noble and worthy, according to Conservation Voters for Idaho Executive Director John Reuter. His organization has spent the past few months trying to stop passage of the bill by canvassing neighborhoods and collecting signatures on a petition.

"[SB] 1044 is not about limiting eminent domain," Reuter said. "It's about trying to stop the expansion of walking and biking throughout our state. It still lets you use eminent domain to plow a road through something."

The new law, which goes into effect Wednesday, July 1, will not solve another controversy over eminent domain in Eagle, where the city is trying to seize a property with an old gas station on it. Though the gas station has been empty since 2001, the owners don't want to sell to the city. Meanwhile, the Eagle City Council voted 3-2 last month to use eminent domain to seize the property because the station doesn't fit into the Eagle Urban Renewal Agency's downtown vision. However, another bill—HB 303—has passed through the House that would aim to bar eminent domain in this instance, as well. HB 303 is currently stuck in a Senate committee.

SB 1044 will, however, affect greenbelts.

"There would not be a Boise Greenbelt if this law was in effect before," Reuter said. "These powers have been working effectively in the state for decades. If the worst this power has gotten us is the Boise Greenbelt, is it really something we want to take away from cities?"

Eminent domain has only been used once in the past 50 years in Boise, according to Mike Journee, spokesman for the office of Boise Mayor Dave Bieter, when it was used in 1967 to secure a crucial component of the Greenbelt.

Journee said 30 percent of people who use the Greenbelt are commuters, so taking away municipalities' power to expand trails through private property could affect efforts to foster alternative transportation and get cars off the road.

"Anytime that local control is taken away from municipal governments, it's challenging," he said.

Before receiving the governor's signature, the bill faced opposition on both sides of the aisle. In the Senate, it passed 20-13, with seven Republicans and six Democrats voting against it. The bill passed the House 54-15, with all 14 Democrats and one Republican voting against it.

Once the law goes into effect this summer, Cynthia Gibson worries it will have a negative economic impact. Gibson is executive director of the Idaho Walk Bike Alliance, which represents the 30 percent of Idahoans who don't drive a car.

"These paths and greenbelts, they're forms of transportation," Gibson said.

Businesses often attract employees to Boise because of its recreation opportunities and 25-mile Greenbelt, which is used by about 65,000 people every year, Gibson said. She also pointed to a 2011 survey conducted by Washington D.C.-based Belden Russonello Strategists that found homebuyers are willing to pay 20- to 30 percent more for homes in walkable communities.

"My generation lived in the suburbs and commuted half-an-hour each way into town," she said. "Today's youth doesn't want that anymore. They want to live in a place where they have transportation choices. They don't want to get in their cars. If you start building barriers around that, they're going to go live someplace else."

Gibson also fears that the new law will end up costing taxpayers more. As it stands now, eminent domain requires that land be sold at market prices. Because of that, she said, property owners can significantly raise the price of their land and cities have no process to force them to accept a more reasonable price.

"It's almost inevitable that this will cost taxpayers more money, or trails will not get built," Reuter added.

Gibson calls eminent domain not a weapon, but a tool to help facilitate negotiations between municipalities and property owners. Reuter said SB 1044 gets in the way of that.

"This legislation enables individual greed over community values," he said.