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Association weighs in on eminent domain legislation

The Mississippi Association of Realtors (MAR) is closely monitoring eminent domain-related bills floating around the State Capitol.

The U.S. Supreme Court’s decision on June 23, 2005, concerning Kelo v. City of New London, Ct., has sparked debate concerning the government’s use of eminent domain in cases where the public accommodation of private economic development or commercial projects may threaten to affect private owner’s rights.

“After a good deal of research, we’ve come to the conclusion that Mississippi has done an excellent job of protecting property owners rights while at the same time not shutting down the potential for improving the economy,” said MAR president-elect Chris Wilson, who chairs the association’s legislative and regulatory affairs advocacy group. “Unlike Connecticut’s law, we have some provisions that allow us to make sure the property taken by eminent domain will be taken for a use that is truly a public use.”

According to Mississippi’s Constitution:

• Private property shall not be taken or damaged for public use, except when reasonable compensation has been made to the property owner in a manner prescribed by law.

• The question concerning the contemplated use shall be a judicial decision.

• A Special Court of Eminent Domain hears eminent domain cases.

• A notice and a hearing are required as a prerequisite to governmental action.

• Property owners are entitled to a hearing before a jury of their peers.

• Unless waived by all parties, separate trials are required when separate parcels are involved.

• Property owners have a right to file a pre-trial Motion to Dismiss requiring the condemning entity to prove authority and public necessity to take property.

• Aggrieved parties have a right of direct appeal to the Mississippi Supreme Court.

• A property owner prevailing in litigation is entitled to a right of action for all expenses, including attorney’s fees. The property owner losing litigation is entitled to right of action for all expenses if the damages and costs awarded are not paid within 90 days.

Several bills that would alter legislation governing eminent domain began churning through the House and Senate early in the session.

“One bill came through that would stop the use of eminent domain for just about anything but a highway,” said Wilson. “We looked at it and said, ‘wait a minute. What if there was a really important economic development project like Nissan?’ It would be dead as a hammer if it weren’t for the use of eminent domain. Without the potential of using eminent domain, the Wellspring Project might not even be doable.

There needs to be some provision to allow leeway. We looked at what Connecticut had, and it was so silly that you could use it as a shopping center for somebody’s profit. That’s not right, either. Mississippi’s law is somewhere in between. Consequently, we hope major changes don’t take place. Overall, our law is very good.”

Just compensation and method of payment could be addressed in eminent domain cases, Wilson pointed out.

“It’s so complex, we decided we didn’t want to muddy the water with something just about compensation,” said Wilson, who has been involved in eminent domain cases ranging from the Gulf Islands National Seashore Project to Laurel’s Urban Renewal Project during his 30-year real estate career. “To tell you the truth, we’d just as soon Mississippi’s eminent domain law be left alone.”

MAR’s policy position on eminent domain mirrors that of the National Association of Realtors, which calls for:

• The use of eminent domain only when necessary to materially advance a real and substantial public purpose or benefit;

• Demonstration of substantial public purpose or benefit by means of objective evidence; and

• Just compensation, which should include not only the value of the property condemned, but also other reasonable and necessary costs generated by the condemnation, such as legal fees, temporary housing and lost business revenue.

On February 1, Realtor Day at the Capitol sponsored by MAR, state lawmakers were receptive to realtors’ opinions about legislation concerning eminent domain, impact fees and the Home Inspector Regulatory Board terms of office, said MAR president Pam Beard.

“You could just feel the respect they give to Realtors,” she said. “They depend on us for interpretations of different things, and our viewpoint. It’s wonderful for the new Realtors to see this because they realize this is how the process works. It’s not just about some big lobbying group that goes in there. It’s about wanting to hear what their constituents think and how they feel and because they get a different viewpoint on a bill.”

Contact MBJ contributing writer Lynne W. Jeter at Lynne.Jeter@gmail.com.


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