Oklahoma Senate task force studying eminent domain hears complaints
Journal Record, The (Oklahoma City), Aug 24, 2005 by Janice Francis-Smith
It's not about the money anymore, landowner Joe Heim told members of a state Senate task force assigned to study eminent domain issues on Tuesday. It's about everybody's Fifth Amendment rights.
The question of whether or not the government has the right - or should have the right - to seize a citizen's property in order to make way for another private development really hinges on few key legal definitions, said a representative of the Oklahoma Municipal League.
Heim is currently involved in a legal dispute with Western Farmers Electric Cooperative in Love County. Western Farmers has initiated eminent domain proceedings in order to claim enough of Heim's property to build out additional electricity generation capacity in the area. More capacity is needed to accommodate a new casino built by the Chickasaw Indian tribe.
The Chickasaws built a $2 million substation and told Western Farmers to supply power to it, said Heim. Western Farmers has entered into a private agreement with the tribe, but is exercising its public powers in order to fulfill that agreement, said Heim's attorney, William Bailey Cook. There is an existing electrical right of way that could be enhanced that would not require the seizure of Heim's property, he said.
That property is my retirement fund, said Heim, adding that he is self-employed and cannot look forward to much by way of Social Security payments in his later years. Heim said he had purchased the property due to its location, right off of a major highway, with the expectation that the value of the land would continue to rise until he decided to sell the property and retire.
Heim said Western Farmers offered him $2,700 as compensation for a one-acre easement which would destroy 10 acres of my property, almost 20 percent of it, and refused to negotiate on the appraised value of the land, he said. Heim banded together with a group of property owners to pool their resources and hire an attorney.
I don't think the court had enough law to do anything for us, said Heim, though he had produced an expert witness in court that testified the company had other viable alternatives for providing power to the new casino. Though Heim has appealed the court's decision, he said his fellow landowners have given up.
In a telephone interview, Brian Hobbs, general manager of legal and administration for Western Farmers, said the project will primarily serve the casino, but there has been residential growth in the area as well.
That substation and line, due to the growth in that area, is not providing the level
of service from a reliability standpoint, and we're concerned that it's going to exceed its capacity, said Hobbs. The line will serve more than just the casino, but even if that were the case we take the position that casino, as a commercial customer, is part of the public.
Just as if you were building a Wal-Mart distribution center or - if a local landowner was putting in a convenience store, they are part of the public that have rights to electric service like the rest of the public, said Hobbs. Western Farmers will speak to the eminent domain task force on Thursday.
Western Farmers also requires a commercial entity demanding more power to front the cost of building out the local infrastructure, to reduce the financial risk borne by other ratepayers, said Hobbs. The cost is later credited to the commercial entity's electricity bill.
Moshe Tal, who owns land in the Bricktown
area of Oklahoma City, told the task force the city seized a valuable portion of his land using eminent domain proceedings, and paid him far less than market value for the land, only to sell the land to another developer at a higher price per foot.
Though the transaction certainly raises some questions, Margaret McMorrow-Love, special counsel for the Oklahoma Municipal League, said she could not identify any areas where the city violated the law. That's partially because the law is so vague when it comes to eminent domain, she said.
The U.S. Supreme Court ruled in the case Kelo vs. City of New London that the government could seize private property for economic development purposes, but the court was divided in its interpretation of what would qualify as a justifiable economic development project, said Love.
They agree on traditional public use, she said. They also agree on public access, those facilities that are accessible to the public. But the area they could not agree on among themselves was the third component - that's what you define as economic development.
However, defining the kinds of projects that would be acceptable can be tricky, she said.
If too narrowly defined, it may have unintended consequences, said Love.
Though the law does prohibit the government from abusing its discretion, the definition of such abuse is likewise vague.