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Would the government take private property to build an east-west highway?

Alex Barber | BDN
Alex Barber | BDN
Several people hold up signs protesting the proposed east-west highway while the Piscataquis County Commissioners meeting goes on Tuesday, May 15, 2012, in Dover-Foxcroft.


Before Maine possibly alters its constitution to bar certain eminent domain takings of private property, it should make sure that the changes would fix a real problem and not simply appease residents in the area of a possible east-west highway.

That is, if Gov. Paul LePage’s recent agreement to delay a study of the highway and Sen. Doug Thomas’ proposal to modify the constitution do not signify the end of the project entirely.

It’s understandable for Mainers to be skeptical about whether an east-west highway can be built without forcing anyone to sell their property. What would happen to the massive proposed 220-mile highway if one person decided not to sell?

So we understand the need expressed by Thomas, a Republican from Ripley, to look into a way to prevent people from being compelled to give up their land.

As the project is proposed now, the road would be built with private funding, and private companies do not have the power of eminent domain. Eminent domain refers to the government’s power to take private property for public use.

But could the government use its power of eminent domain to take people’s land and then allow a private company to construct the highway on it? It’s not likely.

Any use of eminent domain would require some complicity from the government. In such a charged situation, and with LePage’s emphasis on the rights of property owners, would any elected official dare support taking someone’s land to sell to a developer?

Maine’s history says no. In 2005, the U.S. Supreme Court decision Kelo v. City of New London, Conn., recognized the right of governments to take property by eminent domain for the purpose of economic development, even if the taken property was not blighted.

The case stirred debate and legislative backlash across the country, including in Maine, where nine bills were filed to restrict the use of eminent domain.

One, L.D. 1870, was passed to prohibit the use of eminent domain “for the purposes of private retail, office, commercial, industrial or residential development.” It also prohibited using eminent domain authority to condemn property “for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity.”

The bill passed even though a survey of municipalities by the Maine Municipal Association, about whether they had used eminent domain within the previous five years, showed that none had taken occupied residential property.

Aside from legal questions, Peter Vigue, chairman of Cianbro Corp. in Pittsfield, has said over and over that his company would work with property owners to make sure they are willing sellers. He has repeatedly said eminent domain will not be used and that if even one person doesn’t sell, the road won’t be built.

If eminent domain will not be used — whether because it’s a legal, moral or political impossibility — we’d like to know how all the necessary land will be acquired for the project. If it can’t be acquired, the east-west highway project is dead anyway.

Vigue has said many times that the goal of an east-west highway is to bring economic prosperity to the region, but a positive local effect will need to be shown in greater detail before residents will believe it. It would be helpful to have an economic benefits study completed by a neutral party, but it doesn’t make sense to pay $300,000 for it if the road isn’t going to be built.

LePage will have to make clear to Mainers how the road is possible without eminent domain. If it’s not possible, he and Vigue could instead put their energy into another project that clearly supports residents first and fulfills the goal of the highway: economic development.

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