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'Takings' power is eminent issue for DMC

Dear Answer Man, there was a lot of talk at the Post-Bulletin Dialogues meeting Wednesday about eminent domain. I don't know much about eminent domain. What is it and why are people concerned about it?

In a nutshell, eminent domain is the power of government to take private property for public use.

That, all by itself, is a line that drives some Americans crazy. If you think the Second Amendment is a volatile issue, just make a passing reference to "eminent domain" at your next happy hour and you'll discover how fired up people can be about government being able to "take" private property.

The Fifth Amendment protects citizens from having their property taken without just compensation, and the Minnesota Constitution has similar language, but reasonable people will always disagree about what's "just compensation," and also whether a project is truly "public" if a lot of private money is involved and private investors are going to make a ton of money from it.

Again, local government already has that power. There's nothing new about it, and it's frequently used , probably more frequently than we're aware — again, with the property owner being compensated, hopefully fairly.


But the notion of the DMC Authority, or board, having that power for purposes of redevelopment is what concerns some people. Sen. Dave Senjem mentioned the "power of condemnation" as an issue within days after DMC was announced in January, and it's come up repeatedly since then. Some people, including developers and historic preservationists, are concerned that billions of dollars in new projects will naturally lead to conflicts over how the property will be acquired.

There's plenty of good, easy-to-read material available on eminent domain, including a legislative guide online . I'll link to it, and if you don't have online access, let me know and I'll send a copy.

Here's a key passage from a Minnesota Legislative Reference Library document on eminent domain that relates to DMC-like projects:

"Traditionally, eminent domain has been used to acquire land for such public uses as roads, public buildings, and parks. In recent years, the trend has been to use eminent domain for economic development purposes or as a tool for redeveloping blighted areas. In some instances, rather than acquiring land for a specific public works project, local governments have been taking land from one private owner and giving it to another private owner, reasoning that the new development will be economically beneficial to the residents of the community, even if it is a private development. The issue of whether such public benefits can be considered a public use under the federal Takings Clause was at the center of the Kelo v. City of New London U.S. Supreme Court decision in June 2005. The court ruled that the city of New London's economic development plan qualified as a public use within the meaning of the Takings Clause."

This Supreme Court case was mentioned at the P-B Dialogues meeting this week, by the way. That's how plugged-in some people are to this issue.

More from the legislative document:

"Concern over this ruling -- and especially the interpretation of the phrase 'public use' -- led to calls for clarification of Minnesota's existing laws. The 2006 Minnesota Legislature responded by passing Laws of Minnesota 2006, chapter 214 . The law states that 'eminent domain may only be used for a public use or public purpose,' and further clarifies that the 'public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health, do not by themselves constitute a public use or public purpose.'"

One last point on eminent domain for today: The Rochester City Council would have to approve any major decision by the DMC Authority, we've been told, and presumably this includes any decision to use eminent domain. As a skeptic, I have a hard time imagining the city council ever overruling the Development Authority on a major issue, but life is full of surprises.

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