Measure 39: No.

Byline: The Register-Guard

E l e c t i o n 2 0 0 6

Anyone who has done much home repair knows there's at least one rarely used tool in the garage that once in a long while is essential to getting the job done.

For local governments, that tool is the use of condemnation for economic development.

Governments often use the power of eminent domain to buy private land for roads, sewer pipelines, parks and public buildings. But they rarely condemn land in order to hand it over to another property owner for commercial development.

In most communities, eminent domain is used for economic development only as a last resort - when officials can find no other way to proceed with a project that has both broad public support and economic benefits.

Measure 39 on the Nov. 7 ballot would prohibit governments under most circumstances from condemning private property and then turning it over to another private party. While that may sound fair, the measure would deny governments access to a rarely used but valuable tool that can be the only hope of making economic projects a reality.

Eminent domain became a national issue last year in the wake of the U.S. Supreme Court Kelo vs. New London ruling. The ruling said governments can use their condemnation powers to seize private property on behalf of a private company.

Contrary to the claims of some property rights advocates, the court's decision did not expand government power to use eminent domain - a power that has been practiced in this country for more than 200 years. The court merely affirmed that a thorough and engaged planning process protects citizens and their communities. It also said states have the authority to maintain or limit their powers of eminent domain.

The Kelo decision prompted 30 states to enact statutes or constitutional amendments to limit condemnation after Kelo vs. New London. Now, a growing national property rights movement is trying to pass five state initiatives in the West, including Measure 39 in Oregon.

The movement has strong ties to Oregon, though its financiers include Howard Rich, a wealthy libertarian real estate investor from New York. Two years ago, Oregonians in Action, the same group that is sponsoring Measure 39, waged a successful campaign for Measure 37, which requires governments to waive land-use regulations or compensate landowners for complying. Four of the states with initiatives on the November ballot - California, Arizona, Idaho and Nevada - combine limits on eminent domain with variations of Oregon's Measure 37.

Oregon voters should reject Measure 39, which addresses a problem that doesn't exist. Even the measure's supporters are hard pressed to identify instances in which condemnation has been abused or overused in this state.

Local government officials understand that indiscriminately wielding the power of eminent domain is political suicide. More often than not, they use the threat of condemnation to bring reluctant property owners to the negotiating table. An example is Hillsboro's use of the threat of condemnation to develop Orenco Station, a thriving mixed-used development that has transformed a blighted area of the city's fringe.

Even Portland, with the state's largest urban renewal projects, has used eminent domain only 19 times since 1980 - with 15 of those properties ending up in private ownership. At the urging of developers, Eugene officials earlier this year chose not to use eminent domain to advance the Conner-Woolley-Opus downtown project, even though the project died because of the developers' inability to negotiate a selling price with several property owners.

Cost is another reason why voters should reject Measure 39. A provision requires governments to pay property owners' court costs in all condemnation cases whenever the final purchase price exceeds the first offer.

The state's financial estimate predicts the measure would cost state, county and city governments between $16 million and $30 million.

The sky won't fall if Measure 39 passes, but there would be some storm clouds as future redevelopment projects fall by the wayside because officials lack the vital tool of eminent domain.