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Last stagecoach out of Las Vegas
The city's use of eminent domain
By Chuck Gardner Special to the Review-Journal Nevada Views

    In 1876 the Nevada Supreme Court told us not to worry. Hotels and stage coaches could not be built using the power of government to condemn private property for public use, called "eminent domain." First, they said, it might not be constitutional. Second, even if it were, "the force of public opinion and the character of our representatives" would be there to protect us.

    In 1994, residents in low-cost housing behind Vegas World are being forced to move because the property under them is being taken, under threat of eminent domain condemnation, for the hotel's expansion. They are wondering whatever happened to the force of public opinion and the character of our representatives. So am I.

    In 1876 the Nevada Court affirmed that the power of eminent domain may not be used for a strictly private use.  It also concluded, however, that any thing which "tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and to the prosperity of the whole community," may be properly called a public use. Since mining was the major industry of the state, the court held that mining, like the operation of a railroad, is a public use.

    Faced with the prospect that this logic might lead to the use of eminent domain to benefit "hotels, theaters, stage coaches, and city hacks," the court stated that these things are different from mines and railroads since they can be carried on anywhere. Therefore, it does not "necessarily follow that the right of eminent domain

   The court added, though, that it will not often question the wisdom of an act of the Legislature or of local government, and any guarantee against "unjust and absurd legislation," such as a grant of the power of eminent domain to build a hotel or operate a stagecoach, may have to be derived "from the force of public opinion and the character of our representatives."

   That was 118 years ago. Today the major industry of the state is hotel/casino gambling. Whether the power of eminent domain may be used for the building of hotels and casinos on the eve of the 21st century has not been decided by the Nevada Supreme Court. Leaving the legal stuff aside for now, and stage coaches, let's pose a few questions ourselves about the wisdom of this.

    The city of Las Vegas has recently used eminent domain in at least four notorious circumstances. First, the ill-fated Main Street Station. Approximately 30 million dollars of public money was also thrown in. Question No. 1: If a proposed hotel/casino in Las Vegas cannot find enough investors who think it will be successful, why should public money be thrown at it? Question No.2:  How do you "redevelop" a downtown gambling sector by building another casino in competition with those that are already not doing so well? Question No.3:  How long would it take for our Founding Fathers to roll over in their graves upon hearing that a gambling hall has been declared a public use?

    Next, the public power of eminent domain was used to promote the ill-fated "Minami Hole." Question No. 1:  If there aren't enough private investors who think they can make a profit from a downtown office complex, why should public resources be thrown at it? Question No.2:  How do you redevelop a downtown office sector by building another office building in competiton with everyone else?

    Third, we have the "Fremont Street Experience." So far the city has batted zero. I hope this one works, but I wonder why the private sector wouldn't put up all the money.

    Last, but not least, is the Vegas World expansion, where the city is using its largesse to evict low-income residents to make room for an expanded hotel/casino to compete with the others which are so bad off already that they need public power and money to build a big glitzy canopy. Question No. 1:  If private investors won't do it all, why should the public put up its own property? Question No. 2:  If there was enough money, vision and perseverance out there to build the relatively useless Stupak phallic symbol, why aren't there enough private resources willing to do everything necessary to construct a hotel behind it?  Question No.3:  How do we "redevelop" our city by eliminating scarce, privately owned and operated low-cost housing? Question No.4:  Aren't we just going to be required now to build more publicly owned and operated low-cost housing? Question No.5: How long would it take our Founding Fathers to roll over in their graves upon learning that eminent domain will be used to help the compa ny cut down a public park and displace the working poor, all under the rubric of  "redevelopment"?

    I have no answers to these questions and I'm not sure there are any. It's one thing to use public resources to provide parks and low-income housing. It's another altogether to use public resources to wipe them out. We are at the outermost edge of the power of eminent domain. When you are on the edge, you should watch your step. If the city of Las Vegas can apply eminent domain and redevelopment money to casinos because they provide jobs, Nye County can apply them to houses of prostitution.

    Whatever happened to the force of public opinion and the character of our representatives? Did they take the last stagecoach out of town?


Chuck Gardner devoted the past five years to questions of eminent domain as a deputy attorney general. He recently set up his own private practice in Las Vegas.