- The Washington Times - Wednesday, May 18, 2016

D.C. lawmakers say they can use “quick take” eminent domain, if necessary, to acquire privately-held property and expedite construction of two homeless shelters under the city council’s new plan to close the rundown facility at the former D.C. General Hospital by 2018.

Under quick take, a government can petition a court to seize private property, place a payment for it in escrow and build on it while negotiations with the landowner proceed.

Staffers in Mayor Muriel Bowser’s administration criticized the council’s plan after it had been presented Tuesday, saying it could take years to achieve amid legal complications arising from eminent domain.

“We need to pace through and make sure we have a legal basis and a grounding to do that,” City Administrator Rashad Young said. “Here you have a proposal that was given to me at 10:30 in the morning [on Monday] with no discussion with the property owners about this. That’s not the way you use the tool of eminent domain. That’s a bit haphazard.”

But D.C. Council Chairman Phil Mendelson, who presented the plan, and property-rights lawyers said Wednesday that there’s little doubt the District will be able to take the property quickly and the landowners will get a fair price.

“If the city is committed to moving forward with the project, the decision when to take possession of the property is generally driven by the need for the property and the timing of the project,” said Joe Suntum, a property-rights attorney with Miller, Miller and Canby in Rockville.

Mr. Mendelson’s plan, which overhauled a proposal from Ms. Bowser in February, calls for the District to build seven homeless shelters on city-owned land and close D.C. General in two years. He said his revised plan would cost much less than Ms. Bowser’s, which would have directed the city to lease five properties from developers.

The council gave preliminary approval Tuesday to the Mendelson version, under which the District would buy two proposed shelter sites in Wards 1 and 4. The other five shelters would be built on land the city already owns.

Across the country, local governments have used quick take eminent domain to acquire land when property owners refuse to sell. As in many eminent domain cases, the quick take method has garnered some criticism — usually from landowners, not the executive branch of a government.

In February, the Virginia Department of Transportation employed quick take to seize an 1.5 acres of a Loudoun County resident’s 11-acre property to make way for a new road, according to a Fox5 report.

In 2012, the Illinois legislature went as far as to pass a bill detailing how the state could quickly seize properties under the quick take rule. The law clarified that the Illinois Department of Transportation could bypass court proceedings in buying land for a proposed 47-mile stretch of highway, according to a Chicago Tribune report.

What’s more, the U.S. Supreme Court’s 2005 Kelo v. City of London ruling shored up governments’ use of eminent domain under the Takings Clause of the Constitution.

In most quick take cases, a property owner’s only recourse is to negotiate through the court to make sure the money the government has paid is reasonable for the property’s value. But while negotiations occur, the government owns the property.

This is business as usual for the D.C. government when it uses eminent domain, said a source with close knowledge of the District’s eminent domain dealings.

“Generally speaking, quick take is the procedure that the District follows on any eminent domain case and allows the District to take immediate ownership of the property,” the source said. “And there is a very clear public purpose here.”

Mr. Suntum, the property-rights lawyer, said if negotiations between a landowner and a government over compensation fail, a jury is empaneled to set the price in a trial.

“The city will then be bound to pay that price, or abandon the taking and pay the owner’s damages and attorney’s fees and costs incurred in defending the case,” he said.


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