Thursday, February 14, 2008

Eminent Domain -- Revisited

H.B. 323 1st SUBSTITUTE - Eminent Domain Amendments


· Two years ago, the power of eminent domain for obtaining trails, paths, or other ways for walking, hiking, bicycling, or equestrian use was precluded by a statutory change.

· H.B. 323 seeks to further clarify those things that constitute a trail by indicating that a park that operates as a trail is still considered a trail for the purpose of contemplating the use of eminent domain.

· Line 47 of the current bill, however, goes much further than necessary in protecting trails from the improper use of eminent domain by precluding its use for paths, lanes, or other ways for emergency access.

· A true "emergency access" is the very type of use that may and should be subject to this power. Much like utility easements, these easements are used to get emergency vehicles and personnel to a location in the fastest way possible.


· The first substitute language would confirm that paths, lanes, and other ways for emergency access could not be used as a pretext for public paths, equestrian trails, bicycle paths, or walkways.

· Planning and zoning provides a means for preserving emergency access once a property owner seeks to develop their property. Also, while the local governments may have the right to access property in the case of an emergency, they do not have the right to require that an easement remain clear for the use in an emergency where the property is neither being developed and where no emergency is currently occurring.

· There is a gap caused by this bill without this amendment. Trees, sheds, agricultural buildings, walls, and other obstructions may prevent emergency vehicles and personnel from reaching a victim in as short a time as possible, none of which can be avoided by way of proper planning..

· To generally deny government the ability to take and preserve an easement for emergency access would be comparable to failing to preserve an access for the accommodation of utilities or other essential services.

· Where government is required to give these essential services, they should not be unduly limited in their ability to reasonably acquire access and in the rare case, use eminent domain for this purpose.

Bill Text: