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April 07, 2006   Email to Friend 

Debra Davis
(334) 613-4686
April 07, 2006

MONTGOMERY, Ala. -- The House of Representatives passed a constitutional amendment limiting the use of eminent domain Thursday with two amendments that could jeopardize its final adoption.

SB 446 will now go back to the Senate. The amendments added in the full House will likely draw new opposition to the bill, which almost died in the Senate last week due to a filibuster by urban senators.

Federation Governmental Affairs Director Freddie Patterson said the amendments were added as a tactic to kill the bill and that SB 446, as passed by the Senate, fully protected private property rights from condemnation for private development.

"The addition of these amendments will provide ammunition on the final day of the session for those groups intent on preventing the public from voting on a constitutional amendment limiting eminent domain," Patterson said.

SB 446, as passed by the full Senate and House County and Municipal Government Committee, preserves the power of eminent domain for legitimate public uses such as roads and utilities.

The legislation, however, would prohibit expanding the use of eminent domain for a perceived, indirect public benefit, such as increasing tax revenues. The bill includes a 15-year buy-back clause that would allow the owner to reclaim condemned property if it is not used for the intended purpose or the use is changed. Local governments also would be required to notify property owners about applicable ordinances regarding dilapidated or dangerous properties before exercising eminent domain to condemn them for blight.

The Senate version of the constitutional amendment also provides protection for landowners who maintain their property in an otherwise blighted area. One amendment adopted by the House would provide that any property taken by eminent domain would be valued at its highest and best use.

In addition, the condemning authority would be required to pay the landowner all accounting and appraisal fees as well as the estimated state and federal capital gains taxes. The condemning authority also would be required to buy out any remaining leases on the property.

A second amendment would allow the Alabama Port Authority to use eminent domain for private uses within the City of Mobile and its police jurisdiction.

On Tuesday, the House County and Municipal Government Committee held the third public hearing on eminent domain. Patterson testified on behalf of the Federation as did Jeannie Bragg Harvey, a farmer from Madison County. Others who testified in support of the Senate version of SB 446 were Greg Masood with the Alabama Association of REALTORS and Rosemary Elebash of the National Federation of Independent Businesses.

Patterson said SB 446 (as passed by the Senate) does five things: (1) protects private property from being condemned for private development; (2) prohibits the indiscriminate use of blight by local governments for urban renewal projects; (3) grandfathers in the use of eminent domain for such purposes as hospitals, roads and schools; (4) provides a 15-year buy-back option for the original landowner if the property is not used for the stated public use; and (5) it is a constitutional amendment that can not be changed by simple legislative action or by local amendments.

Harvey pleaded with the committee to restrict the use of eminent domain for private development. A portion of her family's land was condemned to build a public road. Now, the City of Huntsville wants to take property on either side of that road for industrial development.

Masood with the REALTORS told the committee that voters want a constitutional amendment limiting eminent domain, and that the Alabama Legislature needs to act now. Last year's Supreme Court decision in the case of Kelo v. New London, Conn., expanded the scope of eminent domain but gave states the option to pass more restrictive laws. Elebash testified on behalf of NFIB members in Northport whose property is being taken for redevelopment. She said SB 446, as passed by the Senate, stands the best chance of protecting small business owners across the state.

Testifying against the bill was an unusual alliance of local governments, state agencies and misinformed citizen groups. Some wanted to expand eminent domain to include private development while others wanted to use the bill to address other forms of government "takings." Both sides asked the committee to kill the bill.

Those seeking to expand the use of eminent domain included: Sonny Brasfield of the Alabama Association of County Commissioners; Perry Roquemore of the League of Municipalities; Carol Clarke with the City of Birmingham; Jim Stanley, attorney for the City of Birmingham; Beth Marietta Lyons with the Mobile Area Chamber of Commerce; Bryan Thames with State Port Authority; and Joe Vallely with the City of Huntsville.

Ironically, these governmental authorities were joined in opposition to the bill by groups who claim they want an eminent domain constitutional amendment. However, these groups opposed SB 446, knowing any amendments could kill it.

Ken Freeman with the Alliance for Citizens Rights and Margaret Brown with Eagle Forum opposed SB 446 while promoting a bill similar to one that had already died in the Senate.

Members of the committee offered several amendments to SB 446 despite being advised that any amendments would jeopardize passage of a proposed constitutional amendment this session. Offering amendments were: Rep. Dick Brewbaker, R-Montgomery; Rep. Jeff McLaughlin, D-Guntersville; Rep. Bobby Humphryes, R-Pleasant Grove; and Linda Coleman, D-Birmingham.

After much discussion, the House County and Municipal Government Committee passed SB 446 with NO amendments by a 8-6 vote. Unfortunately, two amendments were reintroduced by Rep. Mac Gipson, R-Prattville, on the House floor and were adopted, including one on behalf of Brewbaker.

If the Senate doesn't concur with these amendments, the constitutional amendment could be sent to a conference committee consisting of three House members and three senators. The conference report would then be sent back to both houses for consideration on April 17, the final legislative day of the session.

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