Thank You Jody Simpson! (You may thank her by e-mail here: jsimpson@gci.net )
Eminent Domain Resolution sponsored by Mat-Su Assembly person Jody Simpson
SUMMARY STATEMENT: The following information and resolution was prepared at the request of Assembly Member Simpson. (Actual Resolution below..)
Recently the United States Supreme Court ruled that eminent domain or condemnation may be used by local governments for purposes other than the traditional public purposes definition (such as for roads and schools) to one that includes economic development projects. Essentially this change has the ability to expand the areas where condemnation could be used from public projects to one that could support private enterprise projects.
In the Supreme Court decision the minority suggested that the decision signaled an open season on homeowners. "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owners, so long as it might be upgraded, given to an owner who will use it in a way that the legislature deems more beneficial to the public in the process."
The power for the Borough to acquire real property is found in the general powers section of our code [MSB 1.10.010(A)(9)]. Because the MSB is a second-class borough, we can exercise eminent domain authority, but we cannot expand beyond what current state law allows (AS 09.55.240). In this case the state eminent domain authority is further defined to be al "all public uses authorized by the government of the United States." The Fifth Amendment to the United States Constitution also is very clear that private property shall not be taken for public use without compensation.
Since the Borough was founded, reasonable rights of private property ownership has been recognized and maintained. With the recent U.S. Supreme Court decision it is in the best interest of the Borough to establish a policy when eminent domain (condemnation) will be used by the Borough. It is also important to make it clear that the Assembly must authorize acquiring real property by eminent domain for the Borough and to provide guidelines for what purposes eminent domain action may be considered.
It is the intent of the Assembly in adopting a policy that eminent domain should only be used by the Borough for a public purpose. It is also the intent of the Assembly that any eminent domain action must be approved by the Assembly before it may be finalized.
RECOMMENDATION OF ADMINISTRATION: The administration supports the policies as stated above and as established in Assembly Resolution No. 05-__
Action:
MATANUSKA-SUSITNA BOROUGH
RESOLUTION SERIAL NO. 05-A RESOLUTION OF THE MATANUSKA-SUSITNA BOROUGH ASSEMBLY ESTABLISHING A POLICY WHEN EMINENT DOMAIN BY BE USED BY THE BOROUGH BY SPECIFYING THAT ONLY CERTAIN PUBLIC USE PROJECTS QUALIFY FOR CONSIDERATION AND BY FURTHER ESTABLISHING A POLICY THAT ANY PROPOSED EMINENT DOMAIN OR CONDEMNATION ACTION MUST BE APPROVED BY THE ASSEMBLY
WHEREAS, the United States Supreme Court recently ruled that eminent domain or condemnation may be used by local governments for purposes other than the traditional public purposes to one that includes economic development projects; and
WHEREAS, this change has the ability to expand the areas where condemnation could be used from public projects to one that could support private enterprise projects; and
WHEREAS, the Borough has the power to acquire real property under MSB 1.10.010(A)(9); and
WHEREAS, since the Borough was founded, reasonable rights of private property ownership has been recognized and maintained by the Borough; and
WHEREAS, the Assembly desires to make it clear that the Assembly must authorize acquiring real property by eminent domain action and to provide guidelines for what purposes eminent domain action may be considered.
NOW THEREFORE BE IT RESOLVED that the Matanuska-Susitna Borough Assembly hereby establishes a policy that eminent domain may only be used by the Matanuska-Susitna Borough to acquire real property that is actually to be used by the public or the Borough for such things as schools, streets, highways, trails, hospitals, public utilities, government buildings, parks, water reservoirs, flood control, safety facilities to include prisons and jails, bridges, railroads, airports, terminals; and
BE IT FURTHER RESOLVED that the Matanuska-Susitna Borough Assembly shall specifically approve the purpose and need for any proposed eminent domain or condemnation action before beginning eminent domain or condemnation action.
ADOPTED by the Matanuska-Susitna Borough Assembly this - day of -, 2005.
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TIMOTHY L. ANDERSON, Borough MayorATTEST:
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MICHELLE M. MCGEHEE, CMC, Borough Clerk(SEAL)