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Constitutional Land Grab? 

Should the state be able to take private land for only "fair market value" -- instead of the higher standard of "full extent of loss" -- even if it's for hurricane protection?

The governor and other state officials are locked away inside a House committee room, discussing what could become Louisiana's first comprehensive coastal protection plan. Outside, in the hallway, where the real wheeling and dealing often takes place, a state senator is barking orders at an aide.

Sen. Reggie Dupre leans in close, waving his finger over the aide's notebook: "Tell them we want a constitutional amendment on the ballot that would allow the state to take private land for hurricane-protection projects, and we pay only fair market value for it."

It's a bold suggestion, something that hasn't been mentioned in the numerous press conferences about consolidating the state's levee boards, next month's special session or even hurricane recovery. But the issue is not foreign to those in the trade.

Back in the committee room, Steve Wilson, president of the Pontchartrain Levee District, sits quietly listening to a PowerPoint presentation with his fingers locked behind his head. Although he's not directly involved with the planning process going on in the hallway, he understands why the concept is being floated.

A few years ago, his district was building a hurricane levee through the wetlands of St. Charles Parish. Everything was moving along as planned until a right-of-way was needed. The levee district paid St. Charles Airline Lands Inc., which is partially owned by the Monteleone family of New Orleans, the sum of $66,000 -- the leveee district's version of the land's fair market value.

But the Monteleone family disagreed with that appraisal. More important, the landowners had read the Louisiana Constitution and the case law interpreting its provisions regarding private property rights. Louisiana uses what might be the most liberal definition of land values in the nation, particularly as relates to government takings of private property. The landowners took the levee district to court, arguing that the land could have been commercially developed in the future -- and that the levee cut off access to a large portion of its developable property that wound up on the "swamp" side of the new levee. In the end, the landowners won a $7.2 million judgment, based on the potential value of all the lands taken or cut off by the levee district's actions.

The method used to determine the value of lands taken in such cases is referred to as "full extent of loss." It is rooted in Louisiana's Civil Code, which embraces ancient French, Spanish and Roman notions regarding the sanctity of private property rights. But now some officials fear that those legal tenets could hold up hurricane-protection projects for years. They say that's even more important today, as Louisiana stands on the cusp of rebuilding.

"If this keeps happening, then a lot of projects won't even be affordable enough to build," Wilson says.

That's why Dupre, a Terrebonne Parish Democrat, is leading the charge to change the constitution to allow the state to take private land for hurricane-protection projects and pay the owners only present-day fair market value -- and nothing else -- "even if they think they can build three malls on the land in the future," he says.

In 2003, more than 6 percent of Louisiana voters supported a similar constitutional amendment. The provision, which is still in force today, permits the state to pay only fair market value for land it seizes or damages in connection with a coastal restoration project.

It was largely prompted by a pair of lawsuits brought in St. Bernard and Plaquemines parishes after the 1991 Caernarvon Freshwater Diversion Project allegedly harmed oyster leases in Breton Sound. The resulting $2 billion legal judgment made national headlines before it was thrown out by the Louisiana Supreme Court.

Even though they were paying the state only $2 per acre for their oyster leases, fishermen were able to convince a state district judge that the leases would have paid out substantially more over the coming years if they had not been damaged.

The 2003 amendment sailed through the Legislature with very few hiccups, particularly in light of its limited focus on the geographic area where the seizures could take place. But it also received stiff criticism from those opposed to its quasi-retroactive language, meaning it applied to future as well as pending suits. In fact, the amendment gave the state Supreme Court all the reasons it needed to toss out the oystermen's lower court victories.

Dupre, who has been involved with most of the constitutional amendments related to natural waterways over the past five years, says he would base his new proposal on the 2003 model -- only this time, it would apply to hurricane-protection projects, such as levees, seawalls and floodgates.

In short, such a proposal could translate into fewer dollars for landowners standing in the way of hurricane-protection projects. Legally, the measure would alter the way courts are allowed to compute the value of lands that are seized.

Newman Trowbridge, Jr., a Lafayette-based attorney and general counsel to the Louisiana Landowners Association, a group that mostly represents marsh, timber and agricultural interests, says such a change would force private landowners to shoulder the cost of a public project. More importantly, he says, the proposed amendment would rob many people of their livelihoods and futures.

"This is a major concern," Trowbridge says of the proposal, which is still in its conceptual stage. "Hurricane protection levees are often placed in areas that are economically developable. In a lot of instances, this is very valuable land that could be income-producing for the owner."

Dupre admits his idea could be a hard sell, but he does sense a growing wave of public sympathy for his cause. Hurricane protection has become a major policy issue in Louisiana in recent months. A petition has been filed to recall the governor for the way she responded to Hurricane Katrina, and several public demonstrations have been held supporting Category 5 levee systems and the consolidation of levee districts.

So far, the public has been relatively quiet on the issue of land seizures for hurricane-protection projects. That could change.

"This is the issue that isn't being talked about," Dupre says, adding the tide will soon turn.

Residents of South Louisiana have known for months that the taking of land may be necessary for rebuilding to progress, but only recently have there been signs that takings are close at hand. Ultimately, private-property rights could become one of the most explosive issues in post-Katrina Louisiana.

Some private land -- no one knows how much -- undoubtedly will need to be taken by the government for any long-term plan to proceed. That is particularly true if the federal government agrees to some form of Category 5 protection, or if New Orleans shrinks its "footprint" and converts some low-lying neighborhoods into parks.

A recent report issued by the Bring New Orleans Back Commission, which was created by New Orleans Mayor Ray Nagin, estimates that it will cost nearly $17 billion to rebuild the city, of which $12 billion would be dedicated to buyouts.

A "last resort" measure in the commission's land-use report calls for a new entity -- the Crescent City Redevelopment Corporation -- to use "eminent domain" if needed to seize some property. Eminent domain is the legal doctrine that allows governments to take private property for certain public uses that are supposed to serve the greater public good. According to a recent Supreme Court decision, those uses can include economic-development projects that ultimately will yield higher property taxes.

On the congressional level, many are waiting to see if a buyout bill by U.S. Rep. Richard Baker, a Baton Rouge Republican, will be resurrected in coming months. Baker's bill, which stalled late last year because the White House pulled its support, would pay homeowners no less than 60 percent of the equity they have in their homes (minus insurance proceeds) and force mortgage holders to settle for 60 percent of the balances owed. If such a measure passes, it would become a major player in future buyout plans for Louisiana. The Baker bill, however, is strictly voluntary in nature and, in its latest form, specifically prohibits the use of eminent domain to further its aims.

The U.S. Army Corps of Engineers has also gotten into the mix. The Corps announced last year that it wants to obtain long swaths of land -- some parcels spanning more than 150 feet -- along the 17th Street and London Avenue canals for levee improvements. In Plaquemines Parish, the feds are considering seizing portions of land from 250 property owners to widen the Mississippi River.

Such takings are not supposed to be an easy grab for the feds. Initial reports suggest -- and the Fifth Amendment to the U.S. Constitution requires -- that property owners be compensated justly. Some parish officials are going public with their fears and expressing concern that purchase prices could drop below pre-Katrina fair market values.

As for Dupre's potential constitutional amendment, it's flying below the radar for now as state officials circle their wagons and prepare for policy battle. Everyone involved thus far agrees it will be a challenge, but it may also be the only way to carry on with significant hurricane-protection projects in the future.

"This is an unspoken issue that nobody wants to deal with," Dupre says.

Jeremy Alford is a syndicated freelance journalist based in Baton Rouge. You can reach him through his website at www.jeremyalford.com.

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