Eminent Domain Law Complicates Disaster Recovery in Kansas
Posted on Sun, Oct. 07, 2007
http://www.kansascity.com/115/story/307732.html
By LAURA BAUER and JIM SULLINGER
The Kansas City StarThe same weekend that floodwaters tore through southeast Kansas over the summer, a new state law took effect that’s stalling some towns as they try to rebuild.
Although eminent domain legislation was meant to protect property owners from the heavy hand of government, officials in storm-torn cities now say they’re the ones who need protection. They worry that this new red tape will keep them from restoring what they once had.
As of July 1, the new law says, local governments can no longer seize land and use it for private development without permission from the Kansas Legislature. Lawmakers wanted to prohibit instances in which private property was seized to build a commercial enterprise. But the law applies to private housing as well.
That’s a problem for the devastated towns, because some residents just walked away from their properties after the July floods and May tornadoes.
With no guarantee that legislators will approve a seizure, communities could be left with prime residential property that stays abandoned. Towns may not get back the housing they need.
Or if they do, it will take much longer.
“We’re stuck,” said Bret Glendening, city manager of Osawatomie, where the city hasn’t yet found the owners of about 15 properties. “If people walk away, the city can’t ensure that property is useful again. … The goal isn’t to take someone’s property. We need to assure that our community is able to grow and sustain itself.”
Glendening was among the city officials who told lawmakers in Topeka recently that restoring lost housing was the No. 1 priority in their storm-damaged towns.
Glendening and others hope the state can relax the eminent domain law for towns recovering from natural disasters.
Cities can clear debris from private property without permission of the owner, but they cannot demolish abandoned property until they have purchased it or declared the property unsafe and completed the condemnation process.
In some cases, that could take years.
In Coffeyville, where the floodwaters led to a leak at an oil refinery, the town lost about 10 percent of its housing.
“We don’t have any idea of how many people will walk away at this point,” City Manager Jeff Morris said.
And in Greensburg, about 90 percent of the debris had been cleared by mid-August , but much of the remaining 10 percent was on abandoned property.
Since January 2006, all but three Kansas counties have been declared disaster areas.
“All we really want to do is clear the lots and make it where they can be built on, where we can turn around the lots,” Glendening said. “This isn’t an attempt to rewrite the eminent domain law and chip away at the law that was implemented.”
Some lawmakers seem unwilling to change in the law.
Opening such a controversial issue could sabotage other proposals to help storm-damaged areas, said Senate Majority Leader Derek Schmidt, an Independence Republican.
“There are other ways we address long-term recovery that I believe will be more helpful,” he said.
Those could be costly, however.
Among several suggestions Schmidt made recently was an infusion of state money to help cities build new housing more quickly.
Rep. Virgil Peck Jr., who represents the Coffeyville area, has opposed expanding exemptions to the eminent domain law. But his opinion has changed somewhat after seeing areas such as Coffeyville and Greensburg.
“I could support an exception that is narrowly drawn and only applies to disasters where a certain percentage of housing has been damaged or destroyed,” Peck said. “I think we should take a look at it if the affected areas believe it would be helpful in their recovery.”
For the past two years, Wyandotte County lawmakers have pushed unsuccessfully to expand the exceptions to include blighted areas.
But now, lawmakers may see the exception for blighted areas as a way of helping towns torn up by floodwaters and tornadoes, said Rep. Tom Burroughs, a Kansas City, Kan., Democrat.
“It would really expedite finding new housing for these people,” Burroughs said.
Limited options for communities
Kansas lawmakers approved the current eminent domain law in 2006 in response to a 2005 U.S. Supreme Court decision that upheld the practice of condemning property for private development.A narrow exception was created in Kansas law for property deemed unsafe for habitation, where its ownership could not be determined, or if it was to be used by a public utility, pipeline company, gas-gathering service or railroad.Also, the owner of condemned property must be paid at least twice the value of the property.