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Eminent Domain and Public Transit

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Eminent Domain and Public Transit

In eminent domain, local governments forcibly buy up property held by private landowners to use the land for another purpose. Although this purpose needs to be a public one, in Kelo v the City of New London the Supreme Court held that the taking of privately held land for redevelopment by different private parties was a permissible public use under the Takings Clause of the Fifth Amendment, the Constitutional section that authorizes eminent domain. In the aftermath of Kelo, many states passed laws restricting the use of eminent domain by governments. In some cases these new restrictions may hamper the ability of transit agencies to construct new rapid transit lines. Let us take a look at some of the happenings in this area.

In Colorado, proposed legislation that would limit the eminent domain power of the Denver Regional Transit District (RTD) to land necessary for "public transit purposes" - as a result eliminating RTD's ability to forcibly acquire land for things such as park and ride lots - was defeated. RTD has made extensive use of eminent domain as its constructs the new rapid transit lines authorized by its FasTracks program. While RTD's use of eminent domain has angered many in the Denver area, there is little that opponents could do about it.

However, in Virginia, voters passed "Question 1" on the November 2012 ballot which limits the use of eminent domain to public use and "not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development". While most commentators think this new law will be bad for transit, it is unclear at this time what the effect will be. It may be more difficult to construct lines that require the use of eminent domain, as proponents would not be able to argue that the project should be built to add jobs or help the economy.

State laws authorizing eminent domain by transit agencies are often vague about what can be taken. Ohio's law is illustrative: "306.36 Power of eminent domain. (A) The board of trustees of a regional transit authority may exercise the power of eminent domain to appropriate any land, rights, rights-of-way, franchise, power lines, easements, or other property, within or without the territorial boundaries of the regional transit authority, necessary or proper for the construction or efficient operation of any transit facility or access thereto under its jurisdiction pursuant to the procedure provided in sections 163.01 to 163.22, inclusive, of the Revised Code, and subject to division (B) of this section, provided that a regional transit authority shall not proceed to so appropriate real property outside its territorial boundaries, until it has served at the office of the county commissioners of the county in which it is proposed to appropriate real property, a notice describing the real property to be taken and the purpose for which it is proposed to be taken, and such county commissioners have entered on their journal within thirty days after such service a resolution approving such appropriation."

Section B states that eminent domain of state and local government property requires the consent of the affected entity, and that any takings of utility lines or property owned by common carriers requires that construction of replacement facilities. But let us consider Section A. According to A, eminent domain may be used both within and outside of a transit agency's service area to appropriate virtually anything "necessary or proper for the construction or efficient operation of any transit facility or access thereto". Obviously rail lines and stations are necessary, but is a park and ride lot required for efficient operation? What if a transit agency re-enacted Kelo and seized property for a transit-oriented development project?

We cannot answer this question, as that scenario has yet to happen - although it could in Fayetteville, NC, where private businesses are in the process of being condemned so the local transit agency can built a new downtown transit hub that includes a retail / office component. The situation in North Carolina could not happen in my state, as California is one state where the use of eminent domain to acquire land for transit-oriented development is prohibited.

Overall, most transit agencies (indeed, most government agencies) are reluctant to use eminent domain, both for the enormous cost of buying out owners and the ill will use of eminent domain causes. Despite the problems, judicious use of eminent domain should be a part of every transit agency's arsenal. For example, the Artesia Blue Line light rail station in the Los Angeles suburb of Compton is less than a 1/4 mile from a major new retail development. Unfortunately, it is impossible to access the development from the station due to a high fence put up by a casino preventing potential transit patrons from crossing the casino parking lot to reach the station from the retail development or vice versa. One can definitely envision Los Angeles Metro using eminent domain to secure an easement linking the station to the retail stores.

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