Judge refuses to unload PISTOL

CARSON CITY — A district judge refused Tuesday to stop enforcement of the state’s new eminent domain constitutional amendment.

District Judge James Todd Russell said the rights of the "citizens of Nevada would be compromised" if he granted a stay sought by the Regional Transportation Commission of Southern Nevada, the Clark County Regional Flood Control District and Nevadans for Protection of Property Rights.

Since voters twice approved the constitutional amendment, Russell said they should enjoy its benefits now.

Nevadans approved the People’s Initiative To Stop The Taking Of Our Land (PISTOL) in the 2006 and 2008 elections. During the Nov. 4 election, 61 percent of voters backed it.

The state Supreme Court finished canvassing the election results earlier Tuesday and the constitutional amendment immediately was put in place.

But lawyer Bradley Schrager said the government agencies he represents might face unforeseen liability problems if the amendment is enforced.

"Do you want PISTOL for the next two years with all its problems?" Schrager asked the judge.

Schrager said the Legislature reached agreement with county commissioners and others last year on a new eminent domain plan. Legislators are expected to ratify that plan again at the 2009 session and the matter will be put before voters in 2010.

If voters approve, then a new eminent domain constitutional amendment will be put into effect two years from now that does not have the same problems as PISTOL, Schrager said.

But Deputy Attorney General Keith Marcher said Schrager could not argue that PISTOL will be a hardship for his clients because "they haven’t attempted a taking under PISTOL."

Schrager’s comments prompted Russell to say that it looked to him like "everyone is trying to protect their positions relative to that agreement."

Southern Nevada lawyer Kermitt Waters, who circulated petitions to put the measure on the ballot, said there was a "hidden agenda" by government agencies that simply do not like PISTOL.

"I don’t know what it is," Waters said. "To me, this request for a stay is off the wall."

Before the hearing, Schrager acknowledged it was "irregular" to seek a stay of a constitutional amendment on the day it goes into effect.

Waters said the intent of the constitutional amendment is to stop governments from using eminent domain to low-ball people on their property’s true value and take the property and give it to developers and gaming industry executives such as Steve Wynn.

"Now the people have constitutional protection that they will not take your house or property and give it to some developer," said Waters after the decision. "They won’t be erasing that very quickly."

Waters sought to limit the use of eminent domain in Nevada after a 5-4 U.S. Supreme Court decision in 2005 allowed the city of New London, Conn., to take private homes and then sell the property to a developer so a shopping center could be built.

He said the same type of situation has occurred in Nevada when cities seized private property and gave it to casinos and developers.

In a brief prepared for the hearing, lawyer Joe W. Brown repeatedly called the new amendment "unconstitutional" and said people of normal intelligence cannot understand its intent.

In particular, Brown said the government agencies do not understand the meaning of the PISTOL clause "if the property is not used within five years for the original purpose stated by the government," then it reverts back to its seller.

Waters said he did not mean that clause to mean property should return to its seller "if trucks are not running" within five years on a property acquired for a highway. As long as design or other work is being done on the acquired property, then the five-year provision would not come into play, he said.

He said he was willing to change that time limit to 15 years, reflecting the agreement worked out in the Legislature last year.

Waters added he would not oppose the constitutional amendment coming in 2010 since it contains more than 90 percent of PISTOL’s provisions and does not change its intent.

In an interview, Waters said government agencies go to the Legislature all the time to change eminent domain laws in ways that hurt the public. They realize legislators often are "too stupid to understand" their true intentions, he added.

Waters said the Clark County government agencies sent three lawyers to the Carson City hearing, including Brown, a high-profile attorney who is the Republican national committeeman for Nevada.

"Who is going to pay for them?" he asked. "The taxpayers, that’s who."

Contact reporter Ed Vogel at evogel @reviewjournal.com or 775-687-3901.

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