Las Vegas Review-Journal (NV)
June 24, 2005
2005 Legislature limited eminent domain actions
Author: John G. Edwards and Carri Geer
By JOHN G. EDWARDS and CARRI GEER THEVENOT
Thursday's Supreme Count decision upholding the right of local
governments to seize people's property for private development set off
alarms among Nevada residents and attorneys who have dealt with eminent
"In the future, none of us will be safe in our homes or our property
from such arbitrary action by bureaucratic kleptocrats who decide they
want your property to increase the tax base or to give it to some
super-rich supporter who they think can use it for a higher and better
use," said Las Vegas attorney Kermitt Waters, whose firm defends land
owners in eminent domain cases.
Thursday's ruling said state governments can set their own restrictions
on government seizure of private homes and businesses. The recently
ended Nevada Legislature did just that.
Sen. Terry Care, D-Las Vegas and author of one of the bills, said
because of the new laws, ! "You're not going to see abuses in the
future like you have in the past."
Another critic of the court decision was Harry Pappas, whose family
battled the city of Las Vegas for 11 years to stop the condemnation of
its downtown shopping center.
The Pappas' settled their case for $4.5 million last year, but he
remains angry that the city forced the sale of the real estate. Pappas
lambasted the Supreme Court decision.
"America now is just like the Nazi countries or the communist
countries," Pappas said, recalling how his mother's family lost their
property in Greece to the Nazis during World War II.
"They just took the Fifth Amendment out of the Constitution," he said,
referring to the amendment prohibiting government from taking property
"without just compensation" and "due process of law."
"When they come to take your property, kill them," Pappas said.
Jan Jones, the former mayor of Las Vegas, whose administration used the
city's powe! rs of eminent domain to force the Pappas family to sell
its property f or the expansion of the Fremont Street Experience,
defended the decision.
"You have to preserve the core. You have to give people a reason to
still go downtown," she said.
"Would there be any reason for the tourists on the Las Vegas Strip to
go there?" she asked. "Believe me the courts and City Hall are not
going to be a tourist attraction. What happens to these jobs
(downtown)? What happens to the revenue? What happens to the (property)
taxes from these businesses? Ask the casino workers how they would feel
"Do I apologize for an unpopular decision. No, it was the right thing
to do," Jones said, while admitting that city officials could have been
more sensitive to property owners.
Dan Polsenberg, who represented the city in the Pappas case, said the
Supreme Court decision gives governments more authority to seize
private property than Nevada's eminent domain laws.
Opposition to the decision cut across party and political line! s.
"The possibility of abuse by local governments can be considered almost
a certainty of abuse," said attorney Allen Lichtenstein, who represents
the American Civil Liberties Union of Nevada.
Said Rep. Jim Gibbons, R-Nev., "Because of his ruling, every homeowner
in every neighborhood could be uprooted simply because a developer
offers local officials a better deal. That is simply wrong."
In the Supreme Court case, the justices upheld by a 5-4 vote that the
city of New London, Conn., could condemn land for economic development
without finding that the affected area was a blighted neighborhood, the
grounds Las Vegas cited for seizing Pappas' land, Polsenberg said.
Even before Thursday's ruling, the Nevada Legislature adopted, and Gov.
Kenny Guinn signed, two bills aimed at restraining government
"It doesn't look like to me this (court decision) would invalidate
either of the two (condemnation) bills that passed this ses! sion,"
said Risa Lang, deputy legislative counsel with the Nevada Legi slative
The bills sponsored by Care and Assemblyman William Horne, D-Las Vegas,
add several new requirements governments must satisfy before they can
condemn private property for redevelopment.
Under the new laws, two-thirds of a redevelopment area targeted for
seizure must be blighted. Also, the government must cite four out of 15
possible factors, such as inadequate sanitation, that show the area is
blighted. The previous law required one out of nine factors, Care said.
If land that has been taken through eminent domain is not developed
within 15 years, it must be offered for sale back to the original owner
at the price the owner was paid, Care said.
"Why should the property owner miss out on the joy of the appreciation
of his property, his investment?" he said.
Care believes the new laws will make condemning land for development
"extremely difficult to do in Nevada, very difficult."
Horne insisted that he is on W! aters' side of the issue.
"I think he wants the same thing that the rest of us want," Horne said.
"That is to be secure in our property rights."
Ngai Pindell, who teaches property law and land use regulation at
UNLV's Boyd Law School, said the court addressed a difficult case "in
the principled way."
"The case shows how hard it is for cities to balance individual
protections and public benefits," Pindell said. "There's potential for
abuse on both sides, and the court opted for a flexible approach as
opposed to a more rigid per se test. And I think that's appropriate,
given the difficulty of the decisions involved."
Others were upset by the ruling but doubt it will open the door to
Laura Fitzsimmons, a Reno attorney who has represented Nevada property
owners in condemnation cases, called the Supreme Court decision a
"travesty," but she doubts local governments will take advantage of the
"Nevadans are very jealous of t! heir property rights," she said in an
electronic message. "So, for th e time being, I would be very surprised
if local governments would act on the license to steal that the Supreme
Court has given the city of New London."
Las Vegas Mayor Oscar Goodman agreed that the ruling could be misused
"Philosophically, I'm opposed to a government taking of land from a
private individual to give to another individual who will use it to
make a profit," Goodman said.
He noted that the city has negotiated land purchases for redevelopment
in downtown Las Vegas without forcing owners to sell.
"The city has the right to do that," he said. "As long as I'm mayor, we
won't do that. We're doing fine without using eminent domain."
Jones said Goodman would be unable to redevelop downtown had it not
been for her administration's action. "He didn't have to make the hard
decisions," she said. "Bench quarterbacks, they're a dime a dozen."
Waters fears Nevada bureaucrats will be emboldened to continue taking
pr! operty despite the new state laws, which he said are inadequate
because legislators "weren't serious about fixing" the state's property
"I invite the citizens to consider an initiative petition to take this
redevelopment statute and put this monster back in its cage once and
for all," he said.
Waters specifically faulted Horne's bill because it bars courts from
overturning the findings of the government condemning property unless
there's "credible evidence" of bribery or fraud.
Waters said the effect of the provision is: "No matter how erroneous,
dishonest or deceitful their findings of need and necessity might be,
you cannot challenge it in court."
Copyright (c) 2005, Las Vegas Review-Journal