Lawmakers plan to redefine property rights during special session

Richard McVay

The Cullman Times
Published on: 07-16-2005

State legislators will get a second chance starting Tuesday to consider a bill prohibiting municipalities from seizing private property for commercial development. Gov. Bob Riley included eminent domain legislation in the agenda for a special session he called last week, which will convene Tuesday.

The session's main objective is to pass a General Fund budget for the 2006 fiscal year, which begins Oct. 1, but a bill limiting eminent domain is garnering increased attention. Widespread outpouring of support for such legislation followed the U.S. Supreme Court's June 23 ruling in Kelo v. City of New London, in which the court ruled 5-4 that cities could seize public land for use serving the public good, which may include commercial development.

"That is the worst thing I've seen in my 12 years in government," Rep. Neal Morrison, D-Cullman, said. "(The Supreme Court) is totally undoing everything the Constitution stands for. I can't even fathom what they were thinking."

Legislation limiting government's power over private property has gained bipartisan support.

"This is not a Democrat or Republican issue," former Gov. Don Siegelman told The Times Friday. "What's important is this is a bipartisan effort ... one that will underscore independence and property rights. The Supreme Court, in my judgment, went too far. This will give us the chance to redefine what public use (in the Fifth Amendment) means."

Legislators on both sides of the aisle support the legislation.

"(The Supreme Court) ruling, to me, is definitely unjust," said Rep. Jeremy Oden, R-Vinemont. "I am definitely going to support eminent domain legislation."

Rep. Jack Venable, D-Tallassee, sponsored a bill in the regular session to limit eminent domain powers. The bill, which Oden co-sponsored, died in the Senate.

Venable is no stranger to eminent domain issues. He has frequently sponsored legislation to limit the state's power over private property for several years, since the city of Alabaster imposed eminent domain to facilitate construction of a shopping center. All his attempts died in the Senate, but legislators said recent attention to the Supreme Court's ruling has emphasized the need for legislation.

Siegelman enlisted the support of Sen. Pat Lindsey, D-Butler, to draft legislation. While Riley suggested legislation with more teeth than Venable's bill, Lindsey said he didn't think Venable's bill needed any changes.

"I talked with the drafter and he's drafted several bills," Lindsey said before the agenda was released. "I think mine's going to have the same language that Venable got passed through the house during the regular session."

The full text of Riley's bill was not available Friday. Venable's bill amended provisions in the Code of Alabama allowing property acquisitions to say, "Notwithstanding any other provision of law, a city or town may not condemn property for the purpose of retail development."

With increasing support from Democrats and Republicans, little opposition has been voiced publicly, but Siegelman said forces are working against the bill.

"There are legal opinions on both sides of the issue," Siegelman said. "We've always had laws that allowed government to take property, and some are saying this ruling just defined what the Constitution has allowed all along. If, in fact, that argument is true, that's all the more reason the legislature needs to act now.

"There will be opposition. I know there's a lot of support for it, but I know real estate developers are contacting lobbyists. Cities would like to leave the Supreme Court ruling as is ... I know real estate developers are hiring lobbyists to thwart the effort to protect homeowners from overbearing government intervention into property rights."

Local developer Bill Drinkard says he hasn't opposed the legislation, and doesn't know other developers who do.

"It's sure not us," he said, "and we have not been contacted by anybody in that business. I have heard no mention of any effort to stop it."

Drinkard said he doesn't see eminent domain being used to secure commercial development playing out in Alabama, with or without legislation.

"I don't see it being any consequence to the people of Alabama," he said. "It's not something we would ever ask anyone to do. It's not something cities I've worked with would ever do. And I work in five states.

"But for a feeling of security, to pass a bill, that's fine. If I were in the Legislature, I'd vote for it."

Morrison said he hopes to see the issue addressed nationally as well as on the state level. That may happen soon. U.S. Rep. Robert Aderholt, R-Haleyville, introduced Thursday a constitutional amendment to protect private property rights.

"The ownership of private property is a right that Americans greatly value," Aderholt said in a statement Thursday. "The courts have put that right at risk, and something must be done to further clarify the intentions of our founding fathers."

The amendment, which has not yet been assigned to committee, states in part that "neither a state or the United States may take private property for the purpose of transferring possession of, or control over, that property to another private person, except for a public conveyance or transportation project."

Amending the constitution is a slow process, and may lag far behind speedier efforts in individual states. Even with a constitutional amendment, states may enact more restrictive legislation.

Siegelman said Alabama is fortunate to have a special session called so soon after the ruling, so the issue may be confronted before any city may take advantage of the ruling.

"I think other states will follow," Siegelman said.

Venable was in the hospital and unavailable for comment.


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