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Posts published in “Day: August 24, 2018”

What eminent domain is for


Back in the mid-80s, when the big, nasty, ferocious political battles in Boise had to do with shopping centers, the subject of eminent domain reared its head.

The issue (one part of it anyway) was development of a regional shopping mall, which ultimately was built and now is called Boise Towne Square. The development of a regional mall preoccupied Boise politics and a lot of public debate for the better part of two decades, and now the end of the battle seemed in sight but for one final issue:

One of the biggest road bumps at the end of that long trail was a family which for decades had lived on a tract in a key segment of where the mall was intended to be built. The family didn’t want to sell. And the battle went on for a while.

Along the way, the idea of eminent domain was raised.

Eminent domain is defined as “the right of a government or its agent to expropriate private property for public use, with payment of compensation.” Normally, this is done with the idea that the land is needed for an important public purpose, like a highway or a major public utility, and traditionally only a critical and important public need can justify the taking. We are after all talking about the forcible taking of property (in Britain they call something similar “compulsory purchase”), albeit for payment.

But there’s been mission creep, in which - in some cases - governments have seized property and used it for less than critical needs, or turned it over to private developers, with the idea that the new use would be higher and better, and more profitable, than the old one. It’s not hard to see how such an idea, if allowed to go unleashed, could become nightmarish.

In the Boise Towne Square case, workarounds and compromises eventually were found. But the idea of using that kind of power in the interest of building a shopping center made more than a few people uneasy.

Some of this comes back to mind with the prospective use of eminent domain in the case of Boise State University, which wants to build a new baseball stadium. The State Board of Education has given BSU eminent domain authority to condemn and purchase land for the facility.

BSU long has been crimped by its location in the middle of Boise, which means expansion is difficult - and BSU has been a fast-growing institution for a long time. Certainly, you can make a case for a new baseball stadium for the university. The property that would be taken would mainly consist of a parking lot, but there’s also an apartment building involved.

Phil Haunschild of the Idaho Freedom Foundation was quoted as saying, “The use of eminent domain for a stadium I think is an overreach. Eminent domain was meant to serve as a tool of last resort for those critical public infrastructure needs, for the roads, for the transmissions lines, for electricity, for canals for irrigation.” (There’s also the argument that Boise badly needs more affordable housing, some of which would be bulldozed in this development.)

Greg Hahn of Boise State University countered that the stadium, "is a vital part of the university and the university's mission in creating experiences for the students and it’s a big part of how the community experiences the university as well.”

This isn’t a black and white case. The traditional view about the proper use of eminent domain, I’d say, is closer to Haunschild’s.

But don’t be surprised if, as long as the building boom continues in the booming parts of Idaho, eminent domain returns, and in new and sometimes surprising forms.