Wednesday, March 26, 2003 | 9:28 a.m.
CARSON CITY -- When North Las Vegas offered Donna Amy Tucker $12,600 for land it wanted to take in an eminent domain proceeding, she thought the parcel at Simmons Street and Red Coach Avenue was worth more.
An appraiser confirmed her suspicion by putting a $200,000 value on the land. Before Tucker went to court, the city suggested she accept $34,000, and reminded her of a state law that would make her pay the city's legal fees if a jury didn't offer her any more for the land.
"The government told me if I did not get more, I would have to pay $50,000 in costs," Tucker testified Tuesday before the Assembly Judiciary Committee.
Assembly Bill 397, sponsored by William Horne, D-Las Vegas, would prohibit penalties from being imposed upon a person for rejecting an offer and proceeding to trial in eminent domain cases.
"This is a punitive matter that shouldn't exist just because a person is exercising his or her constitutional right," Horne said.
Governments have the right to take private property for the public's use provided they pay for the true value of the property.
But, Las Vegas attorney Laura Fitzsimmons said Tuesday, Nevada is the only state that permits costs and fees to be assessed against a land owner simply based on the outcome of a jury trial.
James Leavitt, a Las Vegas attorney whose firm handles eminent domain cases, said many landowners -- like Tucker -- don't want to be saddled with debt and end up settling.
"The landowner most of the time will say, 'I cannot risk to go bankrupt,' " Leavitt testified.
But another attorney, who practices eminent domain law, and the state Transportation Department said the bill would actually discourage landowners from taking settlements.
Michael Chapman, a Reno condemnation law attorney, pointed to the other example proponents of the bill had used.
Kevin Keefe testified from Las Vegas that his failure to settle an eminent domain case involving Clark County Public Works cost him $450,000 in legal fees when a jury did not award him the amount he had sought for his residential development.
Chapman argued that the 14-acre Monument Point development at Interstate 215 and Valle Verde Drive in Henderson was not significantly affected by the taking of 549 square feet for an on-ramp. An appeal of that case is pending before the Nevada Supreme Court.
"I do not think it's good public policy to correct lawsuits," Chapman said.
Chapman then referred to the bill as the Waters Bill, implying that eminent domain attorney Kermitt Waters of Las Vegas was behind the legislation in response to the Monument Point case.
"I don't see Mr. Waters' name on the top of the bill," an angry Horne said. "I brought this legislation for the people of Nevada."
He also said Chapman's presentation, which may be effective in an appellate proceeding, "is inappropriate here."
Heidi Mireles, the chief right-of-way agent for the Transportation Department, expressed concerns that the bill would take effect Oct. 1 and apply to any action pending on Oct. 1 "whether or not the action was commenced before, on or after Oct. 1."
"We're concerned with the retroactivity," Mireles said.
She also said AB397 "will discourage landowners to take settlements and would encourage litigation."
Brian Hutchins of the attorney general's office, who serves as chief counsel for the Transportation Department, said the bill would limit a governmental agency's ability to avoid expensive court proceedings.
Las Vegas and Washoe County were also opposed to the measure.
But several committee members expressed support for the bill, despite the impact it might have on state or local governmental agencies.
"If this is a tool to disquiet them from following their rights to due process, then I as a committee member would be concerned," Judiciary Committee Chairman Bernie Anderson, D-Sparks, said.
John Carpenter, R-Elko, said governments seem to have more resources at their disposal in eminent domain cases than do citizens.
"I think anybody who goes up against a government has a disadvantage," Carpenter said.
The committee took no action on the bill Tuesday.
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