Eminent domain moratorium on Thursday Council agenda

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A proposal for a one-year moratorium on the use of eminent domain for economic development will be before the Tulsa City Council this Thursday night. (Click here for a PDF of the proposal.) The resolution would establish as the "policy of the City of Tulsa" the implementation of a "one-year moratorium on the use of economic development against the will of the property owners." This policy would "extend to the fullest extent possible as allowed by law to the City of Tulsa, its agencies, boards, authorities, and trusts."

Last summer's Supreme Court decision in the Kelo v. New London case woke Americans up to the misuse of government's condemnation powers. The word "blight" could be defined as anything different than what a politically-connected developer wants to build in the targeted area. Although local governments have for years been using condemnation to serve the interests of private businesses and organizations, most property owners were unaware of it, unless they'd personally been affected by it. What was shocking was that the Supreme Court would uphold what seemed to be an obvious violation of the Fifth Amendment. Americans got the message: "My home is my castle, unless the city thinks it can boost tax revenues by taking it away from me."

Legislators across the country have responded with proposals to limit how states, counties, and cities may use the eminent domain power. Here in Oklahoma, State Rep. Mark Liotta and State Sen. Brian Crain are sponsoring such legislation, but it likely won't be approved until the end of session in late May, and wouldn't go into effect until November. It would be a tragedy if, in the meantime, homes, business, or churches are taken by condemnation under conditions that would be illegal a few months later.

That's where a moratorium comes in. That long Latin word seems to confuse folks like non-Councilor Randy Sullivan. Maybe it sounds to him like crematorium or mortuary, but it has nothing to do with "killing" eminent domain permanently. Moratorium is from the Latin word morari, which means "to delay." The proposed moratorium would delay the use of eminent domain for economic development under certain conditions for one year, to give the legislature time to put some protections for property owners into place.

Here's what the proposal would not do:

  • It would not stop the use of eminent domain for acquiring land for publicly-owned facilities like streets, schools, arenas, and parks.
  • It would not permanently end the use of eminent domain for economic development. The moratorium would only delay such takings for a year, giving the legislature time to decide what restrictions on the practice are necessary to protect property owners.
  • It would not prevent or delay the use of condemnation to remove structures that are a danger to health and safety.
  • It would not prevent or delay the city from acquiring land for economic development from a willing seller.
  • It would not prevent or delay the use of condemnation with the property owner's consent in order to deal with title, easement, or probate problems.

Mayor Bill LaFortune opposes any moratorium, calling eminent domain an important tool for cities. It is indeed a tool. A crowbar is also a tool, but it makes all the difference whether I use it to pry off your hubcap to help you change your tire or to crack open your door to steal your jewelry or to bash in your head. This moratorium doesn't mean we're throwing the tool away; we're just going to avoid using this tool in potentially damaging ways until we have some clear guidance on its proper, moral, and just use.

This resolution is a reasonable and measured response to the Kelo decision and the state legislature's initiatives. Tulsans concerned about protecting our property rights (especially the rights of the "little guy") ought to be at the City Council meeting tomorrow night, February 9, 6 p.m., to show your support.

UPDATE (2/9/2005): The Council approved the resolution by a 6-2 vote, with a couple of fixes to minor scriveners' errors. Henderson, Medlock, Turner, Martinson, Mautino, and Christiansen voted yes; Sullivan and Neal voted no; Baker was absent. Steve Roemerman has more analysis of the vote and its political implications. He notes that two City Council candidates spoke in support of the moratorium: Rick Westcott, running in the Republican primary in District 2, and Al Nichols, running in the Democrat primary in District 5.


Bobby Author Profile Page said:

Whether the Council passes this resolution or not, citizens should research their prospective candidates' stance on this issue.

So far I know that Mayor LaFortune is against any moratorium. Medlock, Faulk, Clark, & Al Nichols have gone on record as supporting a moratorium on Eminent Domain.

It would be interesting to "table" this out with a complete list of all the candidates in this years election and see where they stand.

Bledsoe said:

Michael that's the Fifth Amendment--No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fourth Amendment is that pesky thing that the President seems to want to forget--The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[Thanks for catching that, Greg. I've changed it. -- MDB]

Bledsoe said:

I have real mixed feelings about eminent domain and the implication in Oklahoma from the Kelo decision. The real rub is deciding what is a "blighted" area and then what is a "public purpose."

One of the best uses for ED was the Albertsons at Pine and Peoria. While there were some homes that were not in really bad shape--most were on the edge and the corner commercial area looked like the South Bronx. Nevertheless, many home owners on fixed incomes had to deal the the trauma and uncertainty of relocation.

A mixed example is the BOK/Performing Arts Center/Hotel area along 2nd and 3rd Boston--at the time the area certainly seemed blighted, but as a result we lost a number of historic buildings, including two of Tulsa's premiere movie houses. I wish there could have been some sharper thinking rather than the blunt instrument of Urban Renewal.

An current example of ED gone wrong is the taking of viable tax paying businesses along 11th Street so that TU can have a park-like entrance and more parking for Skelly stadium. The 11th Street frontage was long ago included in the Kendell/Whither UR area and designated "blighted." For anyone who drives around the challenged housing between Lewis and Delaware and 11th and 5th--there is not much argument. But that is not the case for most of 11th between Delaware and Harvard. Nevertheless, a private party-TU-will have its way there, thanks to the Tulsa Development Authority (TDA), an agency of the City of Tulsa. Tax paying businesses will be removed from the tax roles and sales tax revenue will probably decrease as some will not re-open. Don't misunderstand, TU will have to reimburse TDA for all the "just compensation" it pays to property owners. But should not TU also have to reimburse Tulsa, Tulsa County and the Tulsa Public Schools for the permanent loss of taxes? The "public purpose" for this ED escapes me. We don't even get the economic development approved in Kelo-unless the nice TU entrance and Skelly stadium parking spurs more development on the south side of 11th--something the neighborhood might find questionable.

I think this is something that both liberals and conservatives should be concerned about. Remember Kelo was a 5/4 decsision and even the majority made it clear that there must be some check on governement officals in the hip pockets of robber barons.

Joseph Wallis said:

Well, I think this is just a clever way to get a prickly campaign issue out of the way. The moratorium will pass so politicians can push it aside until elections are over.

Mel said:

Quick scanning can be funny at times. I ended up seeing "Mayor..LaFortune..eminent..tool"

Mel, in the words of Glenn Reynolds, "Heh. Indeed."

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