Tuesday, September 20, 2005
Copyright © Las Vegas Review-Journal

Ex-judge targets eminent domain

Chairez to file initiative petition today with state

"The Nevada Supreme Court hasn't necessarily been hostile to eminent domain victims, but they haven't gone far enough to protect them." DON CHAIREZ FORMER DISTRICT JUDGE

Former District Judge Don Chairez plans to file an initiative petition this morning seeking to limit the government's ability to take private land by eminent domain.

The petition, the People's Initiative to Stop the Taking of Our Land, or PISTOL, was to be filed with the Secretary of State's office to begin the process of qualifying for the November 2006 ballot. The petitioners will need to secure 83,157 signatures to qualify.

"We're pushing the initiative to really define what eminent domain is," Chairez said. "The Nevada Supreme Court hasn't necessarily been hostile to eminent domain victims, but they haven't gone far enough to protect them."

The initiative is being filed in response to a June U.S. Supreme Court ruling in a New London, Conn., case. The 5-4 vote determined the waterfront town was permitted to force out the owners of 15 homes who had been holding up the development of office buildings and housing near a research center being built by pharmaceutical company Pfizer.

The Kelo vs. New London case sets precedent for local government to force property owners to sell and make way for private economic development when officials decide it is in the public's best interest, regardless of whether the property is blighted.

Criticism of the case spanned the political spectrum and led Congress to seek ways to negate the ruling. Even before the ruling, Nevada lawmakers worked to tighten the state's eminent domain laws in light of past takings by government.

"By no means should a government be able to take from a private party and give to another private party," said Nevada state Sen. Terry Care, D-Las Vegas.

Care and Assemblyman William Horne, D-Las Vegas, each sponsored eminent domain legislation this year to narrow the parameters by which government can seize property.

"I think we were making headway, and I believe that a lot of us were surprised by the Kelo decision," Horne said. Chairez said his petition is needed because it will amend the Nevada Constitution and supersede any statutory changes in eminent domain law.

"We need to get this on the ballot and let it send a message," Chairez said.

If the initiative qualifies for the ballot, it must pass in 2006 and again in 2008 before it takes effect.

The initiative states:

• Transfer of land from one private party to another private party, such as in the Kelo case, is not a public use.

• When taking property in an eminent domain case, that property must be valued at the use which yields the highest value.

• Only current elected judges may issue eminent domain decisions.

• Just compensation is such that offsets all expenses to the property owner.

• Property owners shall not be liable for the government's attorney fees or costs if they challenge a taking.

During the 2005 Legislature, Care pushed Senate Bill 326 in response to a decade-old case in which the city of Las Vegas took private property from the Pappas family to build the Fremont Street Experience.

His bill, which took effect in June, requires two-thirds of a redevelopment area to be blighted before any nonblighted portion of that area can be taken by government. It also states the owners of the property would have to be compensated for loss of business income in addition to the property's value.

Care's law also requires the property to revert back to its owner if the land is not used for redevelopment within 15 years.

The PISTOL initiative would require the return of the land if it is not developed within five years of the condemnation order.

Care said he would probably support the initiative since Chairez was the judge who in 1996 ruled in favor of the Pappas family. His decision was ultimately overturned by the Nevada Supreme Court. The city of Las Vegas, under current Mayor Oscar Goodman, settled with the Pappas family for $4.5 million.

Horne's bill, which also took effect in June, required the government to find at least four of 15 possible failures for a property to be deemed blighted. In the past, government had to find just one factor.

Horne said that although he believes the goal of the initiative is good, he worries about unintended consequences.

"I am a proponent of property rights in this area, but I don't want to see a policy in place where the proper use of eminent domain is not allowed," Horne said.

Chairez, a Republican who ran unsuccessfully for Congress in 1998 and lost a Supreme Court race in 2002, said he may run for the high court next year.

"We'll have to wait and see what happens," said Chairez, who made eminent domain an issue in the 2002 Supreme Court race. "If the Nevada Supreme Court strikes down the language in our initiative, I may have to run."