Sunday, March 19, 2006

Pen Out for Trails!

As highlighted in a story in this morning's DesNews, Gov. Huntsman has until Tuesday to sign or veto bills passed during the 2006 legislative session. One he has not acted on yet is SB117, dealing with eminent domain. The original bill itself was one which most did not have any real problems with. However, in the last days of the session, Rep. Aaron Tilton was successful in getting the language of his HB292 amended in when SB117 was up for consideration on the House floor (the amendment was offered by Rep. Dave Ure!).

HB292 would have prohibited the use of eminet domain for acquisition of land for trails and recreational paths (except for those adjacent to a street or roadway -- a provision to keep the Legacy Parkway from getting into trouble again). Rep. Tilton sponsored the bill as a way to help Dr. Wendell Gibby of Mapleton, who was in the middle of a complicated legal dispute with Mapleton City over an existing right-of-way across his hillside property which the city wanted to formalize as part of the Bonneville Shoreline Trail.

HB292 failed to gain approval in three separate House committee meetings. It was then amended into another bill dealing with different parts of the eminent domain law. This is a tactic frequently used in the U.S. Congress, but one that virtually never succeeds in the Utah legislature. But it did this time. It is hard to argue that legislators did not know what they were doing when they approved this amendment, particularly in the Senate, but there does seem to be some element of "slipping it by" because a couple of House members I have talked with seemed surprised that it had succeeded and didn't recall voting on it.

This is a bill the Governor should veto. It's primary motivation was to help out one particular property owner in a dispute with his city, but the particulars of that case seem muddy at best. Ironically, it is not likely that this bill will help much in that case, because the dispute is already well down the "path" in the courts, and this new law will not be applied retroactively.

It does seem that this bill came about, in part, because of the controversy generated in the past few months because of the U.S. Supreme Court's eminent domain ruling in Kelo. But, other than the one particular dispute in Mapleton, what overriding reason was there to remove this tool of government?

No question, eminent domain is rarely invoked by local government when dealing with parks and recreation facilities, particularly with trails. But it is an important resource to have. Many property owners are willing to grant easements or rights-of-way for trails, but often they ask for the benefit of doing so under the "threat of eminet domain," which then gives them advantages under federal tax laws to reinvest their capital gains. This seems like a fair concession to help compensate them for their willingness to provide such wonderful community resources. But under SB117, this advantage will no longer be possible.

In some cases, eminent domain may be necessary to complete a long and extensive process. Salt Lake City Attorney Lynn Pace recited the story of how the city worked with community and trails groups long and hard over a period of years to build the Bonneville Shoreline Trail around the foothills of that city. One final piece of trail segment remained to complete the system, but the out-of-state property owners failed to respond to numerous inquiries and requests from the city. It wasn't that they were opposed (or even in favor) of the trail -- they just simply did not respond at all. Finally, the city filed an eminent domain action, which ultimately forced the resolution (successfully, as it turned out).

Now that tool will be gone. Use your pen, Governor, and veto the bill. It is a relatively minor tool, but one that can be well-used at appropriate times.

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