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Eminent domain focus of town-hall meeting sponsored by Lembke


July 27, 2005 - The threat of eminent domain has many area residents concerned about the future of their homes and businesses, but speakers at a town-hall meeting last week told residents they can act now to protect their property.

Rep. Jim Lembke, R-Lemay, sponsored the July 19 town-hall meeting at the Tesson Ferry Branch County Library, which drew residents from Sunset Hills, Green Park, Brent-wood, Maplewood and Hazelwood who wanted to learn more about eminent domain and share their concerns.

"This has been such a hot-button issue in different areas of the St. Louis area,'' Lembke said. "I thought this would be good to bring this before my constituents and give them an opportunity to speak out on it and let me know where they are, and as I said earlier tonight, it's not happening in the 85th District right now, but it doesn't mean that it couldn't be happening next week or next year."

Speakers at the town-hall meetings discussed problems with the state's eminent domain process and told residents what they can do to change the current system.

"I'm really concerned about it and not just because of my own home, because I don't feel it's going to be in danger at any time in the near future, but I'm concerned about the community. I think it's a gross expansion of government power," Crest-wood resident Russell Damher told the Call after the meeting.

"As I understand it, if we all aren't paying attention, it could happen to any of us," Concord resident Elfriede Faulstich told the Call. "So this (meeting) made us aware of how we as a community need to see what we want to do or not want to do."

Kelley Farrell, an attorney for Carmody MacDonald, the law firm representing several Sunset Manor residents in two lawsuits against the city of Sunset Hills in an eminent domain battle, was a guest speaker at the meeting.

She said she has represented both residents and developers in eminent domain lawsuits and is familiar with both sides of the issue.

Now is the time to change Missouri's statutes if residents want to change the way eminent domain works, Farrell said.

"What you're going to need to do is you're going to need to be active in the government, and that's the only way, through Rep. Lembke and others like him, to introduce legislation protecting your property rights, and this is the time to do it because people are outraged about what's happening," she said.

Farrell told residents that eminent do-main statutes in other states are more strict and reimburse land owners more generously than in Missouri. She outlined the eminent domain process and showed residents where there are weaknesses.

For example, Farrell explained that the Missouri's definition of blighted property has become so weak that nearly any property could be given that label to justify the use of eminent domain.

"The definition of blighted written in our statutes right now is very, very broad," she said. "I guarantee you that your house could be brand new, and we could find someone who could say it was blighted. So, it's not much of a guard for taking your property."

To use eminent domain, the condemner must file a petition in eminent domain in the county circuit court. Then the property owner and the condemner present their cases to a judge, whose sole job is to de-cide whether or not eminent domain may be used. The condemner must prove to the judge that it carried out good-faith negotiations with the property owner but was unable to agree on a price and that the property is being condemned for a public purpose as defined by state law.

"You don't get to a jury on that issue, that's decided on by a judge," Farrell said. "That's a hard argument because there are constitutional guarantees that have been watered down over the years."

If the judge approves the use of eminent domain, then the judge appoints a panel of three condemnation commissioners, disinterested property owners who must determine the fair market value of the home based on what the condemner and the property owner say the property is worth.

"If I represent you — you're the land-owner — I'm going to find an appraiser that says that property is worth as much money as I can make it worth," she said.

"The other side is going to find an appraiser that says your property isn't worth much money at all,'' Farrell added.

Once the commissioners decide on a value, the condemner can pay the award into the court registry and the property owner can claim the money. If the property owner is unhappy with the determined value, then the property owner may file an exception and the value is reconsidered by a jury of 12 people, who are not told the price the commissioners had decided.

"You're still litigating because you're not happy about what those three commissioners gave you," Farrell said. "After that stage, they (condemners) have the right to your property ... once they pay the money into court, they take title, and they can come down and start building whatever.

"... They (the jury) don't get to decide whether that's constitutional that they took your property, it's purely value. After your jury trial, then you go to the court of appeals. At that time, you can reargue the judge's decision about whether the right to take your property is constitutional. Where is your property now? Bulldozed,'' she added.

Farrell also said that Missouri law could require condemners to reimburse land-owners more generously than they do now.

"So what's just compensation? Do you get attorney fees, do you get money for hiring me to try and get you what you deserved in the first place? No. Do you get expert fees ... no,'' she said.

"So at the end of the day, if I prove to that jury what your house was worth, are you made whole? No, you're out of pocket,'' Farrell said. "You're never going to be made whole.''

Ron Calzone, director of Missouri First, a non-profit lobbyist group that aims to preserve the sovereignty of Missourians and the jurisdiction of the family, also spoke at the meeting.

Calzone told residents that when eminent domain is used, special consideration should be given to those who are ill-equipped to defend themselves.

"Usually the taking entity is more powerful than the ones whose property is being taken," Calzone said. "... Sometimes it's a big developer who also stands to benefit financially, and they can afford to spend a lot of money, and a lot of times it's a little old lady on a fixed income trying to de-fend herself, and there's nothing more shameful, I think, than when you see that scenario, and so we need to be particularly concerned about the people who can't protect or defend themselves, and we need to come up with some solutions for that."

After the meeting, Lembke said that he would like to see changes made to the state statute, such as eliminating the use of eminent domain for private use, strengthening the definition of blight and instituting more protections for the private property owners when eminent domain is necessary.

Safeguards can be put into place in the Missouri statutes to protect property owners from losing their homes to eminent do-main for private uses, but residents need to contact their representatives, he said.

"Now that this issue is so much in the spotlight, and it's affecting where our population bases are in the state, it's going to make a big difference on how a piece of legislation is received across the board in the House and the Senate," Lembke said. "If your senator and your representative start hearing from a number of their constituents, that say we want something done about this, and we want it done now, that's going to make a big difference."

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