Eminent debate

—When Clark County Sen. Terry Care, a former state Democratic Party chairman, introduced his bill aiding a Minnesota company’s battle against Washoe County’s effort to condemn the thousand-acre Ballardini Ranch land for “open space,” many citizen activists considered it emblematic of everything that has gone wrong with the Democratic Party—a powerful Democratic senator lending his juice to a well-connected corporation, so it could screw the public and the environment.

Whether that is an accurate assessment, it was enormously motivating—the activists quickly went to work less through the Democratic Party then on the Internet. Care introduced his bill on March 24. Soon the Web was humming. Populist newspaper columnist Andrew Barbano started posting extra editions of his “Barbwire” column about what he called “one of the oldest ward-heeling political tricks in the book: Get a politician from outside the affected jurisdiction to do your dirty work.” Former Reno Gazette-Journal reporter Pam Galloway Fay started circulating material on the dispute. Former Washoe County Commissioner Ted Short turned his attention from his pet project (building a railroad from Virginia City to Carson City) to battle the Care measure. Washoe County Commissioner Jim Galloway produced a briefing paper to tell people the issues involved and whom to contact.

Meanwhile, the clash is being monitored by interest groups around the nation that are concerned with condemnation, such as Eminent Domain Watch at EMDO. blogspot.com. Care’s bill would prohibit governments and other entities with the power of condemnation from using the power of eminent domain to acquire property to preserve open space or to protect wildlife habitat.

Care has given up trying to curb open-space condemnations, while still wanting to make it more difficult for governments to condemn. But his bill, if nothing else, has done something to educate the public on the little-known process of eminent domain, which is the bureaucratic term for a government condemning property for public works.

Use of condemnation for some purposes, such as the construction of schools, roads, and flood control, is generally given wide latitude by public opinion. Other uses, such as historic preservation, open space and parks, often have a heavier burden with the public. There is a widespread assumption by citizens that eminent domain, when it is not being used for things like roads and schools, will be used only where there is a general consensus on the necessity of the project under consideration. That assumption is not necessarily reflected in the law.

Whether such a consensus exists on the Ballardini Ranch is a judgment call. The Washoe County public voted for the ranch proposal in 2000, but that ballot measure had federal funds to pay most of the cost—and those funds are no longer available. It’s also true that the ballot question wasn’t worded to include approval of condemnation as a means of achieving the open-space goal—only of approval of financing as a means of doing it. In fact, neither the ballot question, the explanation of the ballot question nor the arguments for and against the ballot question made any mention of eminent domain or condemnation.

County Commissioner James Galloway says, “Acquisition of land for open space can often serve a public purpose just as well as other uses which go unchallenged as reasons that justify condemnation —such as a need to expand roads.”

Nevada’s eminent-domain law is extremely permissive, conferring condemnation powers on half the people and entities in the state, including mining corporations, cable television firms, monorail companies, homeowners’ associations and the sugar-beet industry (which dwindled out in Nevada decades ago). It allows county commissions to use condemnation for “cultural” purposes, whatever they are. It also authorizes condemnation for “all public purposes authorized by the Government of the United States.”

In 1980, an out-of-state mining company carved a gargantuan pit through the west side of Gold Hill and was about to condemn and remove the Gold Hill Hotel and other properties when legal action slowed the project until the price of metals fell, making the further expansion of the pit unfeasible.

What constitutes progress that might justify the use of eminent domain is another judgment call, and those judgments are not static. What is progress in one decade might not be the next. Nevada history is replete with uses or attempted uses of condemnation that were considered progress at the time but today would be thought insane. In the 1920s, there was a proposal to drain Lake Tahoe into a huge tunnel project to irrigate Washoe Valley and Eagle Valley, and the plan reached such an advanced state that all of its permitting was completed. A decade before that, there was a proposal to turn the Spanish Springs Valley north of Sparks into a massive reservoir to serve the Newlands Project. Not many people today would consider those projects progress, but they were so regarded at the time.

In a valley like the Truckee Meadows, with whopping housing prices that force low-income people out of the housing market, it can easily be argued that tying up a huge tract of land for open space drives housing prices ever higher. In fact, columnist Thomas Sowell did just that last month in the Christian Science Monitor, using San Mateo County as an example and charging that open space is an elitist interest for which the poor must pay and that takes a toll on positive societal values:

“People who are sufficiently affluent can afford to move into places with severe restrictions on building. Those who bought their homes years ago, before these housing restrictions were enacted, are able to stay while the value[s] of their homes rise. Among other things, this means that many young adults cannot afford to live near their parents, unless they actually live in their parents’ home. This isolates the elderly from their children, which can be a growing problem as the infirmities of age set in and their contemporary friends die off. None of this just happened. Nor is it a result of market forces. What has happened essentially is that those already inside the castle have pulled up the drawbridge, so that outsiders can’t get in.”

Sen. Care says most of the unworthy motives assigned to him for sponsoring the bill are false. Numerous critics and even some news reports have said that his bill was written by Evans Creek Ltd. of Minnesota, the corporation that wants to build hundreds of homes on the ranch land. Care flatly denies this—"No, and I’m offended. … I went looking for them. I made a phone call to their attorney, a guy named Frank Thompson.”

Care says his principal reason for getting into reform of eminent domain was a dispute in Las Vegas between the local redevelopment agency and the Pappas family over the creation of the “Fremont Street Experience,” a downtown project. Last year, Care said, he heard about the Ballardini Ranch conflict and decided to make the measure retroactive to cover it, too.

There are problems with this account. The Pappas case began in 1993 and went on for a decade, and Care did nothing to address the issues it raised in the 1999, 2001 or 2003 legislatures. Now that he has introduced legislation, some critics say it doesn’t even touch on the Pappas issues, that its principal function is to torpedo Ballardini.

Certainly it is true that Care could have introduced legislation during his first, second or third legislative sessions to retroactively address some of the Pappas problems in his own district, but he didn’t do so. Instead, he is now sponsoring legislation to retroactively deal with the Ballardini issues in the district of other senators.

In addition, there is another measure introduced by a different legislator to deal with the Pappas issues that Care could have supported if that had been his principal interest.

When asked why he didn’t simply introduce legislation to reform the eminent-domain law without interfering with projects that are already in the pipeline, Care said, “I don’t think you can say the government’s conduct up to a certain calendar date is appropriate but beyond that it’s inappropriate.”