Las Vegas Sun

November 28, 2021

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PISTOL aimed at growth

For a look at what Nevadas eminent domain initiative on the Nov. 7 ballot might mean to major road projects and other public developments in the future, Las Vegas voters need only to gaze out of their car windows at a stretch of highway many of them travel on a daily basis.

The half-finished $1.6 billion Las Vegas Beltway, Clark Countys biggest public works project, would be lucky to be that far along if the ballot measure had been law at the projects inception. And the 10-figure price tag almost certainly would be higher much higher.

Among opponents of the ballot measure, the worry is that this will become the story line slower, more difficult, more expensive for vital public works projects throughout the state if Question 2 is approved. State and county officials who oversee public works warn that the initiative would end up delaying or killing billions of dollars worth of key construction projects needed to keep up with the valleys rapid growth.

If this constitutional amendment were to pass, wed probably rethink our entire prioritization of projects in terms of what we build, Clark County Public Works Director Dennis Cederburg said. Wed probably have to avoid projects that require significant purchases of property.

Cederburg and other offi- cials said they do not yet have a handle on precisely how hard the initiative would hit taxpayers, but they are studying its potential effect and expect to come up with more definitive answers before Election Day. One thing officials do know, however, is that the effect would be significant.

Some estimate that, under the measure, acquiring property via eminent domain the process by which governments may buy private land for public projects could cost local governments hundreds of millions of dollars in added real estate and legal expenses and lost federal funding.

The beltway project itself would be in jeopardy, Cederburg said.

Although Clark County already has purchased all of the property rights along the beltway, about $280 million worth of land a large portion of the land acquired in the projects unfinished western and northern parts was purchased more than five years ago. Under the initiative which, if passed in November, would have to be approved by voters a second time in November 2008 to take effect if a government does not use land acquired through eminent domain in five years, it has to be offered back to its original owner at its original price.

That could force the county to buy back the land at a signifi- cantly higher cost to complete some of the remaining portions of the beltway. And there would be no guarantee that protracted court fights over the land wouldnt ensue because the initiative strengthens the hand of property owners in eminent domain cases, giving them more reason to make a stand in court.

The initiative also mandates that government must pay the highest possible value for a property taken through eminent domain.

If we had the constitutional amendment in place today, wed probably have to go through a lot more court proceedings, Cederburg said. And wed have to spend a lot more money. Initiative proponents, however, dismiss the claims of dire financial consequences as campaign propaganda.

They contend that governments merely must demonstrate that they are doing something with the land within five years of acquiring it, such as fencing or grading it not complete construction during that period.

The goal is to treat people fairly, said initiative co-author Don Chairez, the Republican candidate for attorney general. I dont want to shut down government. I come from California. I love freeways. We just dont want the government to treat landowners like they treated American Indians.

Other high-profile projects in Clark County also would be affected by the passage of the eminent domain ballot question. Gale Fraser, general manager of the Regional Flood Control District, said the public can expect lengthy delays and higher costs in the 30-year plan to fully protect valley residents from deadly flooding.

The initiative would significantly impair our mission, Fraser said. If we cant build something because of rising real estate prices, then less people are going to be protected.

To date, the Flood Control District has only been able to build half of the 860 miles of flood channels needed in the valley, Fraser said.

Had the eminent domain initiative been in place several years ago when the county started buying land for the project, Fraser said, the county would not have had enough money to build its latest flood channels, such as the one built in northwest Las Vegas after massive flooding in 2003 in the heavily populated area near Gowan Road and Rainbow Boulevard.

A lot of people who have flood protection today probably wouldnt have it, he said. Jeff Fontaine, director of the Nevada Transportation Department, shares the concerns of his colleagues in Clark County.

Over the next nine years, the Transportation Department is planning 10 superhighway widening projects in the state that will require it to buy $1.3 billion in right-of-way land.

Five of those projects involve massive efforts to widen Interstate 15 and U.S. 95 in the Las Vegas metropolitan area.

The passage of the initiative would have a major impact on those projects, Fontaine said. Theres no doubt about it.

A study in Washoe County estimated the price of road projects there would soar by 70 percent under the provisions of the eminent domain initiative.

If the same price increase hits other road projects in Southern Nevada and throughout the state, it would add another $910 million to the states tab, all at taxpayers expense.

That would increase the current $3.8 billion shortfall in Fontaines $13 billion budget over the next nine years. People should understand the scope of what were dealing with here, Fontaine said.

Clark County Commissioner Bruce Woodbury, a leading initiative critic who heads the Regional Transportation Commission, said the initiative would lead to gridlock in Southern Nevada. In addition, by encouraging property owners to fight eminent domain efforts in court, it also would enrich a handful of lawyers, he argues.

The taxpayers who have voted several times to tax themselves for transportation and flood control improvements will see their hard-earned tax dollars diverted into the pockets of trial lawyers, Woodbury said.

Opponents also are especially concerned about another provision in the initiative under which a government that takes property for public use would be required to reimburse the landowner at a value equal to the lands highest and best use.

That could send land acquisition costs through the roof, critics argue, by allowing property owners to seek much higher sales prices based on wildly speculative assumptions. For example, the owner of a piece of property currently zoned for warehouses could try to persuade a jury that a future zoning change would make the land suitable for a high-rise hotel; if he succeeds, government and by extension, taxpayers would face a higher price tag.

Backers of the ballot measure the Peoples Initiative to Stop the Taking of Our Land, or PISTOL were inspired by a June 2005 U.S. Supreme Court ruling that upheld a decision by New London, Conn., to use eminent domain to take residential property from nine homeowners for a private redevelopment project that the economically depressed city claimed was for the public good.

Property rights advocates throughout the country were outraged by the decision, prompting ballot initiatives and legislation in several states to ban government from taking property from one private owner to give it to another.

Woodbury said the county already has taken steps to allay concerns raised by the high courts decision. Earlier this month the County Commission passed a resolution requiring the county to use eminent domain for public projects only. Woodbury also has been working behind the scenes to persuade Las Vegas and other municipalities in Southern Nevada to pass similar resolutions before this falls election; the Regional Transportation Commission did so this week.

Next week, the County Commission is expected to vote on another Woodbury- inspired resolution warning voters about the dangers of the eminent domain ballot question.

At a time when state and local entities are already facing severe challenges in building necessary infrastructure to keep up with our tremendous growth rate, the resolution states, several sections taken together will result in significant increases in the cost of taxpayer- funded right of way for highways, roads, flood control projects, water and sewage facilities and other essential public works projects.

Construction of these necessary projects will therefore be delayed or postponed.

The resolution says the county will push for an alternative constitutional amendment that would protect the rights of property owners without causing so much potential harm to the taxpayers, motorists and homeowners of Nevada.

PISTOL survived a court challenge on Sept. 8, when the Nevada Supreme Court issued a lengthy opinion keeping the initiative on the November ballot. The states high court, however, removed five of the initiatives 14 provisions, including one that government officials feared could undermine local zoning procedures that regulate the valleys development. That provision said property owners would be entitled to just compensation for any government action that changed the value of their property.

Chairez, a former District Court judge, emphasized the state Supreme Court ruling preserved much of what PISTOL found distasteful about the U.S. Supreme Courts Kelo decision.

The heart and soul of our initiative, which was to get around Kelo, is still there and all of the strong provisions that will get rid of the abuses in eminent domain law are still there, Chairez said.

The key provisions preserved by the Nevada Supreme Court state that:

Property taken in an eminent domain action cannot be transferred from one private party to another.

The government must prove public use when taking private property.

Jury trials must be held at the landowners request to determine whether the takings are for public use.

Property taken by the government must be offered for resale to the original landowner at the original price if the land is not used within five years for the governments original purpose.

Landowners would never be liable to pay the governments attorney fees or costs in any eminent domain action.

Were creating new rights to make sure that people fighting for their homes wont get abused, Chairez said.

Las Vegas eminent domain lawyer Kermitt Waters, the initiatives other co-author, said the measure actually would reduce eminent domain litigation because it would force government to treat landowners far more fairly.

It will save the landowners money and it will save the government huge amounts of money, millions of dollars in attorneys fees, Waters said.

But leading initiative critics charge that the measure, if approved as a constitutional amendment, will do nothing but give Waters and other trial lawyers a windfall of eminent domain clients and legal fees.

The proponents of this initiative are people who will make money off it, Clark County Commission Chairman Rory Reid said.

Phillip Peckman, a Greenspun Corporation executive who heads a state task force evaluating Nevadas overburdened highway s, added: This thing becomes a selfish piece for some lawyers. Theyre going to make a lot of money. (The Greenspun family owns the Las Vegas Sun.)

The biggest concern about the initiative, however, is its potential effect on the economy.

It really handcuffs government in terms of its ability to operate, said Christina Dugan, vice president of public affairs for the Las Vegas Chamber of Commerce. Without needed infrastructure, we wont be able to continue the strong economic development weve had so far.

This will be detrimental to the long-term economic future of Southern Nevada.

Jeff German is the Suns senior investigative reporter. He can be reached at 259-4067 or at [email protected] Steve Kanigher can be reached at 259-4075 or at [email protected]