October 2005

The Statehouse

By James Lawlor

Oregon: Land Use Planning Study. Chapter legislative liaison Stephen Kafoury reports the high point of an otherwise unproductive legislative session was the enactment of S.B. 82, a bill creating a state task force on land-use planning, quickly nicknamed the "Big Look." The 10-member task force, to be selected by Gov. Ted Kulongoski, the Senate President, and the House Speaker, was supposed to produce a preliminary report detailing its work plan within three months of the law's August 9 effective date, but as of October 21, no task force members had been selected.

The task force, once its members are selected and it gets under way, is charged with studying and making recommendations on the effectiveness of the state's land-use planning program, the respective roles and responsibilities of state and local government, and land-use issues specific to areas inside and outside urban growth boundaries. It is expected to hold public meetings, gather information, and develop recommended legislation for the next two legislative assemblies. Its final report is due February 1, 2009.

After laboring throughout the session to come up with legislation clarifying the intent of the voters' 2004 passage of Measure 37, an initiative intended to compensate landowners for property value lost because of state and local land-use restrictions, the Senate Environment and Land Use Committee saw its compromise bill shot down in a floor vote. Subsequent efforts to pass less ambitious bills foundered on the question of how to deal with transferability of rights claimants under the measure. In a related development a trial court judge in Marion County declared the measure invalid under the Oregon Constitution, in a decision handed down October 14. The ultimate resolution of the measure's validity will await a decision by the state supreme court.

The legislature passed two bills limiting local governments' annexation powers. H.B. 2484 requires annexations to be approved by a majority votes of both the annexing city and residents of the territory to be annexed. S.B. 887 applies specifically to the City of Beaverton, and bars it from annexing "islands" surrounded by the city's corporate boundaries without the approval of the residents or property owners of the island. It also directs an interim study of annexation issues in general, aiming at proposing legislation for the next legislative session.

California: No Eminent Domain Action. The legislature adjourned September 9 for its interim study recess without taking action on measures intended to restrict the use of eminent domain to aid private development projects. The proposals were inspired by the U.S. Supreme Court's Kelo decision last spring affirming the constitutionality of property takings for private redevelopment projects.

The chapter joined a coalition of organizations headed by the California Redevelopment Association opposing the measures. Generally, the opponents of the proposed legislation and two proposed constitutional amendments argue the measures are not necessary because constraints on exercise of eminent domain power are sufficient already to prevent abuse. For example, California law permits the use of eminent domain by redevelopment agencies only where there is a clear finding of blight, and the law sets out specific conditions that must be met for a finding of blight.

Ohio: Eminent Domain Moratorium. The state senate passed a bill October 5 establishing a one-year moratorium on the use of eminent domain by the state government or its political subdivisions to take private property in an unblighted area, when the primary purpose of the taking is economic development resulting in ownership of the property by a private entity. The legislation, S.B. 167, is currently under consideration in the house.

The bill also creates a 25-member legislative task force to study the use and application of eminent domain in Ohio. The task force's final report is due by April 1, 2006. The Ohio APA chapter has declared its support for creation of the task force.

A senate joint resolution, SJR 6, takes a more draconian approach, calling for an amendment to the Ohio Constitution eliminating the constitution's grant of eminent domain authority to municipal corporations. It would provide that municipal corporations do not have authority to take property for public use unless the general assembly has conferred that authority upon them by law. So far, there has been no action taken on the resolution, introduced August 2.

The validity under the state constitution of local government's exercise of eminent domain to assemble property for a private development project is currently before the Ohio Supreme Court, in a case from the Cincinnati area. In that case, the local government did make a declaration of blight before exercising its eminent domain powers.

Maryland: Eminent Domain Reform Equals Political Advantage? A group of Republican legislators has proposed a constitutional amendment to bar taking of private property for economic development. The Republican House minority whip, Del. Anthony J. O'Donnell, was quoted as saying Republican legislators wanted to get out in front on an issue they believe will resonate with voters. An eminent domain amendment would appear on the 2006 ballot at the same time Republicans will be making a major push to reelect Gov. Bob Ehrlich, the first Republican governor in Maryland in 20 years, and to increase their representation in the legislature. Currently, Republicans are outnumbered 2-1 in the general assembly, so they need Democratic votes to pass any legislation, and would need substantial Democratic support to gain the three-fifths majority necessary to get a measure on the ballot.

Democratic legislators are also working on eminent domain legislation and a possible constitutional amendment. A task force has been working for the last two years on the eminent domain question, and will soon issue recommendations, Democratic Del. Samuel I. Rosenberg said. Another delegate who is working on eminent domain legislation pointed out that seeking a constitutional amendment would only delay the effective date of any restrictions on government's taking authority. An amendment must be approved by the voters before going into effect, while emergency legislation could go into effect as early as next July 1, with the governor's approval.