Before Eugene developers Tom Connor and Don Woolley dropped their proposed $165 million project to redevelop part of downtown last year, they had asked the City Council to help them obtain the needed properties.
Their request raised concerns that the city would use its power to condemn and expropriate property in the area using a government tool known as eminent domain.
Although Woolley said the developers planned to negotiate with property owners and didn’t want the city to use eminent domain, a measure on Oregon’s November ballot would end any possible future use of the controversial tactic to benefit private developers.
Measure 39 would prohibit Oregon governments from condemning certain private property if the public bodies intend to convey all or part of the property to private developers or businesses.
The measure still allows governments to forcibly acquire property for public uses, such as building roads and government buildings, through eminent domain.
The measure also excludes property that has been condemned as dangerous to health or safety and property acquired by a new owner after it is condemned by the government.
The measure is a reaction to the landmark 2005 U.S. Supreme Court decision in Kelo v. City of New London, in which justices ruled 5-4 to uphold the government’s ability to condemn and transfer property from one private party to another. The court decided that economic growth resulting from such transfers qualifies as public use.
Dave Hunnicutt, president of the private property-rights group Oregonians in Action and co-author of the measure, said Measure 39 would protect property owners who don’t want to sell their property to a government for economic development.
“I’ve never been in any city, not just in Oregon but across the United States, where you can’t find property owners who are more than willing to sell their land off for some type of development,” Hunnicutt said. “Why pick on the one guy who doesn’t want to sell?”
The measure has also attracted supporters at the University.
Junior political science major Daniel Griffith set up a Facebook group to support the measure and to encourage students to be aware of the election.
“I think this will engage students in the electoral process and prevent some bad measures from passing, and get good measures like Measure 39 to pass,” Griffith said.
Griffith said college students should support the measure since many live in low-cost housing that could be affected by land appropriation. The measure prevents abuse of eminent domain, which is intended to obtain property for public use and not to increase the city’s revenue, he said.
“The Supreme Court’s decision was wrong, and this is our chance to correct that wrong,” he said.
Opponents of the measure have not organized into one group, but groups such as the League of Women Voters of Oregon and the City Club of Portland have published materials encouraging a vote against the measure.
Philip Farrington, president of the Oregon chapter of the American Planning Association, which opposes the measure, said the Kelo decision confirmed long-standing provisions that allow for use of eminent domain in economic development projects.
“In Oregon, there really isn’t a problem that Measure 39 fixes,” Farrington said. “Eminent domain should be a tool of last resort, sparingly used as it should be, by jurisdictions.”
Hunnicutt said the issue is a growing cause for concern in Oregon, citing cases in Coos Bay, Keizer and Portland where the city either used, or attempted to use eminent domain on property owners who didn’t want to sell. In each case, the city said it hadn’t previously considered using eminent domain, he said.
“At some point, actions speak louder than words, and you can say you never considered doing this, but again, in the last year alone there have been three instances that have been real high-profile, at least as land issues go,” Hunnicutt said. “If it isn’t used very often, then Measure 39 won’t have much of an effect.”
Opponents of the measure have criticized a provision that requires the government to pay the property owner’s court costs if the court rules that the value of the property exceeds the government’s initial offer of compensation for the property.
Farrington said the provision encourages property owners to highball their prices, which governments would either have to pay or argue against in court.
Based on these two assumptions, the measure could increase the state’s budget expenditures for highway rights-of-way by $8 million to $17.25 million a year, county governments’ property costs by $5 million to $10 million per year, and cities’ costs by as much as $3 million per year, according to a financial estimate for the measure listed on the Oregon Secretary of State’s Web site.
But Hunnicutt said the cost estimates are not accurate, partially because not everyone wants to go to court.
Instead, the measure allows governments to offer property owners their best compensation proposal and takes away government incentives for court litigation, he said.
But opponents say that the best way to deal with eminent domain abuses in Oregon is not through the measure.
“If there is some perceived abuse or flaws in the statutory restrictions, the appropriate way to deal with it is through the Legislature, where these things are dealt with,” Farrington said.
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