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SALT LAKE CITY — Utah lawmakers are considering policy changes to speed up the acquisition of land for new charter schools and further expansions of existing schools.
On Monday, the Administrative Rules Review Committee questioned what authority charter schools have to call on the state to seize property through eminent domain laws. While schools operating under charter are considered public education, the charter developers are often private entities that own the school facilities, leaving the question of whether such an arrangement could fit within the state's definitions for where eminent domain is permissible.
"There is confusion about how a charter school can exercise (eminent domain)," said Sen. Howard Stephenson, R-Draper. "A charter school can exercise it. It's very clear that they are public schools and do have that authority."
Stephenson said the problem in a number of cases for charter schools has been with them seeking to use eminent domain to gather a small property to complete their planned footprint, where cities do not wish to exercise eminent domain for such a small purpose.
"We also have the state charter board and the state board and then the charter school itself, and there is confusion about which one of them would be optimal for exercising that," Stephenson said.
Ward Ogden, the Ogden community development manager, described his own experience with the use of eminent domain to obtain 27 properties for the creation of New Bridge Elementary in Ogden.
"The fact that Ogden School District came to the city and said, 'Let's do a partnership' is frankly what made the whole thing work," Ogden said. "The fact that it was a school versus a redevelopment project was immensely useful in terms of getting the public's mind over the hump."
Brent Bateman, the director for the Office of Property Rights Ombudsman, said Utah's eminent domain laws describe a list of reasons for eminent domain, rather than entities that can use the law.
You can't do eminent domain for any reason. The reasons why are way more important than the people who can.
–Brent Bateman, Office of Property Rights Ombudsman
"The state does have eminent domain power but their eminent domain power, even for the state that power is not unlimited, you can't do eminent domain for any reason," Bateman said. "The reasons why are way more important than the people who can."
Bateman said charter schools may ask the state to use eminent domain, but charter schools themselves are not listed as a reason for eminent domain. Bateman said eminent domain has been used for public schools because the buildings are public and made on behalf of the public.
"The courts have, by precedent, interpreted this narrowly," Bateman said.
Sen. Jim Dabakis, D-Salt Lake City, said he worries about the differences between reasons and people who could use eminent domain and raised concerns that eventually a fully private school might one day exercise the law to expand its lot size.
Sen. Gene Davis, D-Salt Lake City, also expressed concern that a charter school that had obtained its plot through eminent domain might eventually lease out parts of that property to the charter owners and convert the charter property to private ownership over time.
"Those are the kinds of things that could happen," Davis said. "Do we want to give private entities that ability, under their charter, to do that?"
Kristen Elinowski, a spokeswoman for the State Charter School Board, said because Utah's eminent domain statute predates Utah's charter schools policies, there is need for specific clarification of whether it is the state board of education, the charter school board or the charter school that should be the entity involved in approving the use of eminent domain.
The committee closed the discussion with a request for recommendations from the State School Board, in cooperation from the State Charter School Board and the office of the property rights ombudsman. Email: firstname.lastname@example.org