Scott G Winterton, KSL, File

Lawmaker to counter use of eminent domain for trails, other recreation uses

By Carter Williams, KSL.com | Posted - Jan. 30, 2020 at 2:02 p.m.



SALT LAKE CITY — The concern over how state and local governments use eminent domain is starting to take shape in the first few days of Utah's legislative session, including an apparently incidental battle over the use of eminent domain to carve trails.

On the first day of the legislative session Monday, the House of Representatives read HB133, a bill that would allow eminent domain for “regionally significant” trails sponsored by Rep. Mike Winder, R-West Valley City. Meanwhile, Rep. Phil Lyman, R-Blanding, told KSL.com he is close to filing a bill that would further restrict the use of eminent domain for trails or other recreational uses. He said he's hoping to have the bill numbered by early next week at the latest.

HB133 explores using eminent domain for a “regionally significant trail system,” which is defined as a trail that goes through multiple municipalities or counties. It calls for using eminent domain to allow for creating a trail that’s at least 3 feet in width and could be used for walking, jogging, biking, cross-country skiing, horseback riding or even motorized scooters.

The state used to allow the eminent domain process for trails, but that changed in 2008. The current law states that eminent domain can’t be used for trails, which is what Winder is seeking to adjust.

“If someone’s building a 100-mile trail system, we don’t want 100 feet in the middle to snarl the whole project,” he told KSL.com last week.

He added that trails are a public good by providing health and recreation opportunities, while also — in the case of the Jordan River Trail — detracting loiterers around riverbanks.

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Lyman insisted he wasn't aware of HB133 while compiling his upcoming legislation proposal and that he learned about it after KSL.com posted an article about it Saturday. His upcoming bill has the support of the Libertas Institute, which helped provide input while it was crafted, said Connor Boyack, president and founder of the Utah-based libertarian think tank. The institute also opposes Winder's bill.

"The power of government to use eminent domain and forcibly take a person's property is an extreme power and, while in select cases it can be justified based on an essential government function, trails, in our view, don't rise to that level of importance," Boyack said. "If we're talking about the need for a fire station that needs to be in a certain area or an electric plant that needs to be in a certain area, that can make sense because those things could be arguably necessary for public use."

Lyman's bill won't focus entirely on eminent domain for trails. It's a broader bill on eminent domain. Boyack explained that it would give property owners more rights in court to challenge a state or local entity that has selected their property. As it stands, he said property owners can only argue that the government is maliciously taking their land.

"We're going to find a better balance by requiring the government to show the taking is necessary — that they're not taking more property than is needed, that they're not taking property now for a project that won't begin for another 20 years," he said.

The bill will also ban eminent domain for recreational or entertainment purposes, such as a recreation center, golf course or a public amphitheater. That includes keeping trails prohibited as lawful uses of eminent domain.

"Our goal is to take non-essential recreational-type purposes off the table since they do not rise to the level of importance for taking a person's property," Boyack added.

A cyclist rides along the Jordan River Parkway Trail at the Redwood Trailhead Park in West Valley City, Tuesday, June 2, 2015. (Photo: Chris Samuels, KSL, File)

While Lyman's bill has yet to be numbered, Winder's bill has yet to be assigned to a house committee for review, as of Thursday morning. That means both bills still have work before going through the legislative process.

Those bills won't be the only eminent domain in discussion this year. On Monday, Rep. Susan Pulsipher, R-South Jordan, filed a bill that would limit the use of eminent domain in relation to century-old farms. Her bill was read the same day as HB133.

Pulsipher explained that her bill was crafted after hearing from a family that was concerned their farm, which had remained within the family for more than 100 years, would be taken through eminent domain and used for soccer fields. The bill would ban the government from using the process for recreation purposes, such as a public park or a soccer field.

"This is historic ground to some degree. ... if a city or anyone else wants to use it for a public park, they can offer to buy it from the property owner. If the property owner chooses to sell, then they can," she said. "(Governments) just can't take it from the use of eminent domain. They can still use (eminent domain) for any other purpose than it is allowed for, just not for basically soccer fields."

The bill was assigned to the House Political Subdivisions Committee Thursday morning.

The state's legislative website also notes Sen. Lincoln Fillmore, R-South Jordan, and Sen. K Cullimore, R-Draper, are also working on eminent domain amendments or modifications this legislative session. Neither Fillmore or Cullimore were available to talk with KSL.com by publication time.

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