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STATE BALLOT QUESTION 4 (Eminent domain)

Two years ago Nevada voters approved a constitutional amendment that blocked government from using its power of eminent domain to take someone’s property and then turn it over to private developers.

Legislators, however, thought that amendment went too far, preventing governments from entering into legitimate partnerships that would benefit the public.

Their response is Question 4, a new ballot question that they believe takes out the onerous aspects of what 60 percent of voters supported in 2008.

Eminent domain is the inherent power given government by the Fifth Amendment of the U.S. Constitution to take property for public purposes after paying just compensation.

Question 4 would allow the state or local government to take a private property — and turn it over to another private interest — in limited cases.

The proposal also would make each side — the landowner and the government seeking to take the landowner’s property — responsible for their own legal costs.

There are cases where private property taken through eminent domain should rightfully end up in a “mixed use” that includes another private interest, according to Assemblyman Joe Hardy, R-Boulder City.

He pointed out that airport property taken by eminent domain ends up not only as runways, but also terminals where there should be private shopping opportunities for passengers.

Under the current law — called the Peoples’ Initiative to Stop Taking Our Land (PISTOL) — such mixed, or public-private partnership uses, would not be permitted, Hardy said.

“You could not have private enterprise in a public airport building,” said Hardy, who drew up the amendment at the request of local governments. “This (his amendment) is a fix to PISTOL. We are not trying to reverse the PISTOL protection for private landowners, but we are trying to make PISTOL work.”

Las Vegas resident Harry Pappas said he is “shocked” by Question 4. The ordeal his family suffered when the city of Las Vegas tried to take their Fremont Street property partly lead to passage of the PISTOL amendment.

“They can use this amendment to make the case that everything they want is for public use,” he said. “They have all the lawyers and they can use them to drag things on in court so you have to dig into your savings to live.”

Pappas’ family spent more than $1 million in legal expenses in an 11-year fight against Las Vegas Redevelopment Agency attempts to take business property and turn it over to downtown casino interests.

He said the real reason the casinos wanted his property was to block a competitor from building another casino.

PISTOL flatly prohibits governments from taking someone’s private property and then turning it over to a private business for its use. Pappas wants it to stay that way.

PISTOL was placed on the ballot through petitions circulated by Kermitt Waters, a lawyer who often represents people fighting government in eminent domain cases.

Besides the Pappas case, Waters was concerned about the U.S. Supreme Court decision in 2005 that allowed the city of New London, Conn., to take an established neighborhood and turn it over to a private developer who promised creation of more than 3,000 jobs.

The court held that taking was a “public use” permitted under the Fifth Amendment because the community would benefit from the economic growth. The developer failed to secure financing and the neighborhood has been boarded up.

Pappas said if voters approve the new amendment, then families such as his could not seek to recover their legal expenses. That would pose an intolerable burden on families fighting eminent domain takeovers, he said.

With the approval of Hardy’s amendment, Pappas predicted governments would abuse their eminent domain rights.

“Whatever government says is a public use will be a public use,” he said.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.

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