Nebraska lawmakers look to grasp, curb potential abuses of eminent area

LINCOLN, Neb. (Nebraska Examiner) – Nebraska lawmakers dove into the idea of eminent area, or the taking of personal property for public use, throughout a Friday listening to to see if state regulation could possibly be extra truthful or clear.

State Sen. John Cavanaugh of Omaha launched Legislative Resolution 247 this spring for a broad look into eminent area after seeing numerous personal entities make the most of the regulation. Although he doesn’t have a particular end result in thoughts, Cavanaugh stated, he’s in search of extra transparency to curb potential abuses and to defend property rights.

“This can be a broad challenge, and completely different entities have various kinds of area and completely different obligations,” Cavanaugh instructed the Authorities, Navy and Veterans Affairs Committee on Friday. “There’s nonetheless lots of work to be completed and quite a bit to be taught.”

Cavanaugh launched Legislative Bill 133 this 12 months as nicely, which might require public or personal entities with eminent area authority to be topic to the Open Conferences Act.

A number of organizations testified in February that the hearings could possibly be onerous if they don’t seem to be arrange for them or if employees are unfold nationwide. The invoice didn’t advance from the committee.

“In reality, I didn’t anticipate that proposal to go anyplace and I launched it to simply begin a dialogue,” Cavanaugh testified.

Eminent area has been controversial, notably in present efforts to construct carbon dioxide pipelines by a number of Midwest states, together with Nebraska. In these circumstances, personal corporations have clashed with states, counties or particular person landowners.

Attainable suggestions

William Blake, an lawyer with greater than 50 years’ expertise with eminent area, supplied seven suggestions. He famous they could possibly be completed on a piecemeal or complete foundation.

Nonetheless, he stated, doing so might carry a “lengthy, troublesome course of,” akin to within the courts.

Blake’s suggestions are to:

  • Require precise good religion negotiations between landowners and people using eminent area to be one thing helpful and “greater than being a pleasant individual.
  • ”Require appraisal transparency, the muse of excellent religion negotiations, which ought to be shared with the proprietor on the first negotiation contract.
  • Change state regulation on what must be within the condemner’s petition from “ought to” point out all wanted approvals have been obtained to “shall” point out.
  • Require public oversight of pipeline routes, not simply {that a} pipeline firm can train eminent area.
  • Require that land titles don’t cross to the condemner till the property is required. If the property shouldn’t be used for the aim for which it was required, it’s returned to the proprietor.
  • Remove institutionalized condemnation blight introduced by Protected Corridors by not permitting value determinations to be primarily based on current gross sales of property throughout the scope of the challenge.
  • Contemplate another technique of figuring out compensation when it’s a personal entity’s “for-profit” challenge.

Ken Winston, who has 41 years of expertise as an lawyer, instructed requiring public hearings in counties the place there’s a proposed challenge that may use eminent area. He additionally emphasised a necessity for extra uniform requirements within the utility of eminent area and a complete rewrite as some legal guidelines battle.

‘Simply compensation’

Eminent area can be utilized if house owners are given “simply compensation,” Blake stated, which the U.S. Supreme Courtroom has interpreted as truthful market worth. However this isn’t at all times the case.

As a substitute, some landowners are given just a few compensation, not truthful compensation.

State Sen. Steve Halloran of Hastings, a committee member, stated “simply compensation” is a relative time period and requested whether or not the Legislature is ready to outline the time period, akin to 2.5 instances market worth.

“I don’t know that anyone has tried to do this, however you might,” Blake responded. “You will have a large amount of latitude.”

John Hansen, president of Nebraska Farmers Union, stated that when landowners do go in for good religion negotiations, consumers generally misrepresent their authorized standing or standing, akin to falsely claiming they have already got eminent area.

This “essentially adjustments” the character of the negotiation, he added, asking for potential authorized treatments for false illustration.

“It’s the distinction between whether or not or not I stroll as much as you on the road and ask you for $1 or whether or not I stroll as much as you with a gun in my pocket and you’ll see the gun and say, ‘Give me $1,’” Hansen testified. “It’s the distinction between a voluntary donation and a theft.”

‘It’s the risk’

Organizations that use eminent area — together with the Nebraska Public Energy District and Lancaster County — stated they do use good religion negotiations and attempt to use it as a final resort, which Cavanaugh stated ought to be a purpose.

Jill Becker of Black Hills Vitality stated to her data, the corporate has began however by no means carried out eminent area within the state.

Cavanaugh instructed the Nebraska Examiner it’s a little early to consider potential laws although Blake’s suggestions to enhance negotiations and value determinations “sound fairly simple.”

“One of many greatest offenses in eminent area shouldn’t be the use, nevertheless it’s the risk,” Cavanaugh stated. “I admire of us saying, ‘We hardly use it,’ however that leaves out the purpose that you simply do threaten it.”

Committee Chair Tom Brewer of Gordon, who additionally launched a invoice to restrict using eminent area, instructed Cavanaugh the 2 might sit down, digest what they discovered and see what they may work out forward of 2024 “that helps get us in a greater place.”

Nebraska Examiner is a part of States Newsroom, a community of stories bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Cate Folsom for questions: Observe Nebraska Examiner on Facebook and Twitter.

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