Thursday, February 22, 2007

Telecom Stalemate and Eminent Domain Fight Loom

After a short meeting with many of the cable franchise stakeholders and the two powerful legislators (Senator Curt Bramble and Representative Steve Urquhart) who happen to be on opposite sides of the cable franchise debate, it appears that a stalemate on the issue will be unavoidable.

While Qwest, Broadweave and AT&T are attempting to impose some variation of a statewide franchise for cable service, the Utah League of Cities, Comcast and Orange Broadband have resisted the effort, largely siting local, municipal control as the main issue that must be protected in any franchise arrangement.

Senator Curt Bramble will likely run SB209 early Friday. This bill imposes a statewide franchise arrangement and removes many aspects of municipal control from franchise arrangements. The current draft of the bill would turn many of the traditional franchise functions over to the state public service commission. The bill will likely pass easily out of the Senate but will have a much tougher time in the House. With only 4 days left in the 2007 legislative session, it is likely that we will be talking about this issue for much of the summer. The obvious default position will be to not pass the legislation in the House and just study it during the interim period ....will see how prophetic this post proves to be.

On another note, it appears that an inevitable fight is on the horizon regarding HB334. This bill, sponsored by Rep. Aaron Tilton, would significantly modify provisions relating to municipal use of eminent domain for emergency access and trails. We have been working hard in the House to express our opposition to the bill, but the vote will be close. If the bill is going to be considered it must happen before tomorrow, so please stay tuned to see how the big debate turns out. If you are interested in the talking points please see them below.

Until next time ... ENJOY.

Eminent Domain Amendments
Rep. Aaron Tilton
February 22, 2007

HB-334 redefines some “parks”, “trails” and “emergency access ways” to exclude any of these uses from the definition of a public purpose for which eminent domain may be used. The bill also includes intent language that intimates that trails and parks as defined in this bill have NEVER been a public purpose for which eminent domain may be exercised – which is categorically untrue.
ULCT Policy Concerns:

While a legitimate legislative discussion is warranted on the issue of condemnation for walking trails and parks, this bill is far over-reaching in an attempt to provide undue influence in pending litigation between ONE land-owner and ONE municipality. It would be an unhealthy precedent to use our legislative process to “trump” the due process procedures that are embodied in the judicial system. This bill is absolutely unnecessary.

The ULCT does not necessarily oppose clarifying the definition of a trail and park as outlined in this bill, there is deep concern with expanding the exclusion of eminent domain to retroactively apply to any case where such a use has been deemed appropriate by previous statute and our courts. We hare happy to clarify the definition to apply PROSPECTIVELY.

In addition, the ULCT opposes the exclusion of emergency access as a public purpose for which eminent domain by be used. One of the reasons we have the ability to condemn for public utility easements is so that we may access the utility IN CASE OF AN EMERGENCY – We are very concerned with the unintended consequences of this legislation.

The bill falsely implies that the state statute has never allowed for condemnation for trails or parks as defined in this bill, which is just untrue. The sole purpose of this portion of the bill is to provide undue influence in pending litigation. It would be unhealthy to use statewide policy for single legal case that is born of spite. In addition, this section has the potential to reopen legal arguments in previous circumstance were eminent domain was used for trail and park systems. We would encourage the legislature to only clarify the definition in a prospective fashion.