Eminent Domain & the Governor's Veto

Earlier this week, Governor Patrick vetoed the Eminent Domain bill that had been approved by Amesbury voters last November and approved by the MA legislature in late July. The Legislature had to vote on this bill because it represented a change from state-wide laws governing eminent domain and so was a 'home rule' petition. On 8/6/08, I sent a letter via email to the Governor expressing opposition to this bill and encouraging a veto. I always like to explain my positions on things and since my letter was in opposition to a measure that passed at the polls, I especially feel the need to explain myself.

Click here to read the original measure that passed at the polls.

Click here to read the Governor's veto letter.

And click here to read my letter to the Governor (typos and all). (Mayor Kezer and Councilor Neale also sent letters to the Governor.)

'Eminent domain' is the power of the government to take private property for a public purpose, even if the property owner objects. The primary purpose of Amesbury's Eminent Domain bill was to limit the 'taking' of property for economic development purposes. This was done in response to a 2005 US Supreme Court Case, Kelo v City of New London CT that infamously allowed the City of New London to take property for the purpose of putting up a mall, on property that was not 'blighted' and to be developed and owned by a private developer. Some states and communities have responded by making this type of taking difficult or impossible.

As you can see in my letter to the Governor, my objection to this measure was NOT with the limitation on taking for economic development but was ONLY with one part, but it's a significant part--the very first paragraph. In it, the Municipal Council is given absolute powers regarding all eminent domain issues. This might seem like inside baseball but its an important point. Massachusetts General Law distributes eminent domain power in a variety of ways, to legislative bodies, to commissions, to certain public corporations, etc. This granted authority is really related to the purpose for which property might be taken. So, a part of why this bill had to go to the Legislature and to the Governor is that it over-ruled this distribution of authority and gathered it all to the Municipal Council in Amesbury.

Currently, the Mayor has eminent domain power in Amesbury in relation to water/sewer and road betterments (mostly rights of way issues, expanding sidewalks and intersection profiles, that sort of thing). These types of takings represent the vast majority of all eminent domain activity in Amesbury and in the Commonwealth. A 2001 study by the Pioneer Institute, a think tank in Boston with a libertarian bent, stated:

Out of all the data that we collected, 53 percent of all takings were for road repair and road building. This has been the leading category since colonial times. Almost all the remaining takings were for traditional government purposes: municipal services, conservation, public transportation, public utilities.

I firmly believe that the primary purpose of this bill could have been met without making this other move to grab all eminent domain authority for the Council. In fact, when the last Municipal Council put this measure forward last year, the Mayor vetoed it based on legal advise from Town Counsel and offered a reasonable compromise bill that kept the protections around takings for economic development and removed the first part. The Council did not accept the Mayor's compromise bill, putting the original bill on the November ballot instead. You can read the Mayor's proposal and the legal opinion here. The Governor's veto does not close the door on this issue but rather gives Amesbury the opportunity to handle this issue is a measured way. As a member of the recent Charter Review Committee, I can say that we spent a lot of time trying to clarify the different powers of the Council and the Mayor. This vetoed bill undermines that whole idea and is an unnecessary power grab on the part of the Council.

Bartley Machine Building - Lower Millyard

Other Councilors and I have periodically received questions from folks about the Bartley Machine Co. building in the Lower Millyard and whether or not it would make a good site for relocated Town offices and perhaps even the Library. It's a good question and I'm glad folks are thinking about alternatives for Town offices and for better Library space. Bartley Machine has been public about selling the property for development. That said, I don't think that the Town buying the Bartley Machine property is in the cards.

This is true for 2 reasons, mainly. First, the asking price. BMC is seeking $8.28 million for the property. Even if the Town bought the property, it would likely have to spend millions more building out and adapting the industrial property to other civic functions. Such a project would dwarf the rejected costs of redeveloping the current library site. The second reason is connected to the price: the potential for dense mixed-use commercial/residential development at the site.

The property is in a special 'mixed use' overlay zoning district in the Lower Millyard. This means that BMC can sell the property for uses other than its current use for light industrial manufacturing. The overlay district actually adds value to the property beyond its current use, since it opens this (and other) lots up to development for dense commercial and residential development in the village center. This is all part of a larger plan for the Lower Millyard that the Town developed a number of years ago. The zoning overlay district was put in place to enable this mixed-use development.

The Bartley Machine Company has partnered with a real-estate firm to develop this property along the lines of this vision of mixed-use, dense development. You can see their plans for the site at: http://www.reinvestinc.com/amesbury/. This is part of the larger picture of relocating the DPW away from the Lower Mllyard (this will help spark new development down there) and putting in the new Transportation Center/Senior Center in the Lower Millyard.

So, in theory, the BMC building is definitely worth consideration for relocated Town services. Practically, though, it is both too expensive and not the best use of that revenue-generating property.