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.