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Eminent domain question difficult to answer  

The statement is released relative to a request directed to the Garrett Board of County Commissioners by John Bambacus in which he asks “Will Garrett County use its power of eminent domain to unlawfully seize private property in the event a citizen refuses to grant an easement of any kind to permit an industrial wind turbine company right of way for a cable crossing, access road, etc.?

What is the county’s position on the use of eminent domain as it relates to siting, permitting, or constructing anything to do with a 440-foot industrial wind turbine?”

First of all the board of county commissioners will not “unlawfully” seize property, period. Since the Supreme Court decision several years ago, the traditional limits that have existed on the use of eminent domain have been removed. As a result, local governments can use that power, if they choose, for nontraditional purposes, including economic development.

While the board of county commissioners appreciates the question, it is still a question in hypothetical form. Garrett County government has used the power of eminent domain on only three occasions that we can recall, all having to do with Glendale Road. One was for the location of the bridge abutments on the west side and two were the recent attempts to eliminate a dangerous curve in the road. In all of these uses agreements were reached with the property owners without the necessity of a trial.

Perhaps more important to an understanding of this issue is the reluctance that the county has had in using the power even for its own uses. It is important to note that it has been much more frequent that the board of county commissioners has directed staff to look for alternatives that would protect the property rights of the residents and citizens of Garrett County.

The limited use speaks to this and represents those circumstances where there was no other option. With all of that said, and realizing that this is a power that the board of county commissioners has, we have no expectation that it would ever be used. While they have the right, what purpose would there be in saying it could or would never be used?

If the board of county commissioners took that position they would also be giving up the right to seek to remove windmills by the use of eminent domain if they wanted to be consistent in their policies. It is that type of a dilemma that makes answering hypothetical questions so difficult.

Lamont Pagenhardt, county administrator
Gorman Getty, county attorney

Cumberland Times-News

29 April 2008

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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