Eminent Domain

Manhattan officials are in a quandary over eminent domain legislation (SB 323) currently festering in Topeka. If the bill becomes law, the downtown redevelopment project may be in serious dodo.

Eminent domain is the lawful power of governments to take private property without the owner's consent, either for its own use or for use by a third party. The concept goes back centuries in English law. The Fifth Amendment to the United States Constitution allows it but requires that "just compensation" be paid and that the property be taken for "public use." The Interstate Highway System is an example of using eminent domain for the public good.

Over the years, the definition of "public use" has expanded beyond roads and bridges to include economic development like Manhattan's downtown redevelopment project. The presumption is that these kinds of projects also improve the community. The "public use" benefit is defined as increased jobs, property values, tax revenues, and economic opportunities.

"Just compensation" has generally been understood by the courts to mean the fair market value of the property acquired. But the pending Kansas bill says it is up to 200 percent of fair market value. So Manhattan's redevelopment land acquisition costs could have doubled under the Kansas House version, likely killing the project. And land costs associated with all new roadway and other public works projects would escalate as well.

Our legislators also want the right to approve all future economic development applications of eminent domain. So Manhattan's project would be subject to approval by state legislators from friendly towns like Lawrence. Think about that one for a moment.

Thankfully, the bill currently being written may have a "grandfather clause" allowing Manhattan's redevelopment plan to continue unabated. But it would apply to all future projects here and elsewhere in the state, be they public works or economic development.

So is this good legislation or just a knee-jerk reaction to something that happened back East?

Personally, I wonder about the tax load required to finance these changes. And beyond that, I believe local government officials - accountable to local voters - need to be making local eminent domain decisions. I want our city commissioners on the firing-line for Manhattan's use of eminent domain not state representatives from KCK, Wichita and Lawrence, many of whom have never stepped-foot into "The Little Apple."

First published in the Manhattan Free Press, April 13, 2006.