That’s a far cry from the kind of “public use” the founders had in mind. It was long understood such powers were to be used only when private land was absolutely needed to build a road, a bridge, or a firehouse -- a traditional “public use.” Furthermore, “For 100 years, the value paid was the highest price the land would bring on the open market,” says local attorney Kermitt Waters.
Nevadans have seen their local and state governments and courts abuse this power of eminent domain with increasing abandon. Downtown properties were seized for the Fremont Street Experience project, and for the Stratosphere Tower project, despite a failure to show blight, and with attempts to pay the land owners less than those properties were worth.
Kermit Waters is a local attorney who has fought those abuses. Don Chairez also stood up for some of those property owners when he served on the District Court bench. (His attempt to award the highest value to one such property owner was overturned by the state Supreme Court, which found that in Nevada alone, of all the 50 states, property owners don’t have to be paid that much.)
Now, Mr. Waters and former Judge Chairez have filed an initiative petition with the Secretary of State, dubbed the “Nevada Property Owners’ Bill of Rights.” If they can get 83,000 signatures by next June, Nevadans will have a chance to vote on a constitutional amendment curbing most eminent domain abuses here.
The initiative bars the forced transfer of private property to another private party. It requires that seized property be “valued at the use which yields the highest value” -- no more lowballing property owners.
The initiative nullifies any unpublished court decisions concerning eminent domain. (Judge Chairez says he would like to have done that for all unpublished rulings -- “Even the District Court judges will tell you it’s hard to figure out what the rules are” when court rulings are kept secret -- but the Legislative Counsel Bureau vetted the petition language and pointed out initiatives are limited to dealing with a single issue; everything had to relate to eminent domain.)
Mr. Waters also points out that in close cases where a former District Court judge now sitting on the Supreme Court has to disqualify himself, it used to be standard procedure to replace him -- thus breaking a 3-3 tie -- by reaching down for another District Court Judge. Instead, Section 19 of the judicial procedures has been changed and “now allows the chief judge to reach over and select a senior judge to come in and effectively decide which way the court flips; he can decide to bring Deborah Agosti or Cliff Young back in.”
The initiative bars such non-elected judges from taking part in eminent domain decisions. It also insists that property taken but not used within five years for the purpose for which it was taken must be returned to the owner, and that property owners shall not be liable for the attorney fees or costs of the government entities that seek to seize their land.
“This will cut down on eminent domain abuses,” explains attorney Waters. “I may have to find a different profession if this goes through. They’re financing redevelopment on the backs of the property owners; they cheat ’em in so many ways.”
Legislative attempts to reform these abuses have fallen far short.
The Nevada Property Owners’ Bill of Rights doesn’t do the whole job, of course -- our Ninth Amendment rights to grow marijuana, opium or cocaine on our own property without interference (for instance) will still not be restored, nor will our Second Amendment right to manufacture machine guns without a license, nor will this measure eliminate the insidious “rents” we pay on our own property in the form of “property taxes.”
No, the Nevada Property Owners’ Bill of Rights is a modest, carefully thought out and comprehensive set of procedural reforms which will not end the legitimate use of eminent domain -- it’s not intended to -- but which will instead begin the long slog of restoring property rights to their proper pre-eminence in Nevada.