LEGAL CONFLICT: If owners wont sell for a tech park, can their land be condemned? Precedent suggests the answer is no.

  • LEGAL CONFLICT: If owners won’t sell for a tech park, can their land be condemned? Precedent suggests the answer is no.

Attorneys are at work studying the enabling legislation by which the Little Rock Regional Chamber of Commerce set up a statutory way to get city taxpayer money — $22 million so far — for a quasi-public venture it controls to encourage private enterprise by building an office building to lure technology companies.

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A lawsuit is being contemplated to prevent use of eminent domain to take private residences near UAMS for this economic development. A neighbor, Joseph Sugarman, has been widely circulating a letter noting that Arkansas Supreme Court precedent is clear that economic development is not a public purpose for a taking of private land. His letter also notes an attorney general’s opinion that the Arkansas Constitution’s protection of private property rights was undisturbed by a U.S. Supreme Court ruling that allowed a taking for private purposes in Connecticut.

Here’s the Supreme Court law, in a 1967 Little Rock case. Citing constitutional restrictions, the court said of condemnation of property for sale or lease to private parties:


Without the consent of the owner, private property cannot be taken for private use, even under authority of the legislature.

The opinion concluded that when “commendable desire for progressive development and fundamental constitutional principles conflict, there is no doubt that the latter must prevail.”

Here’s the attorney general’s opinion in 2005 saying the U.S. Supreme Court ruling left Arkansas constitutional principles undisturbed. Wrote then Attorney General Mike Beebe:


In my opinion, assuming your question inquires about an exercise of eminent domain similar to that in the Kelo case, for strictly economic development purposes,[1] with no primary underlying public use, the answer to your question is generally “no” under existing Arkansas case law and the Arkansas Constitution. This is true because Arkansas has adopted a narrower view of the so-called “public use” test than other states and the federal courts.

Beebe added that all factors must be considered, of course. Some public agencies will share roles in the contemplated technology park, for example, perhaps even rent space in the building. The chamber’s lawyers will have plenty of smoke to blow when this case reaches court, in other words. But, at its core, the proposition will be a forcible taking of private homes to make way for a building to which the LR Chamber of Commerce wants to lure private companies. Whose interest will be paramount — that of home owners or that of Jay Chesshir, chamber potentate? Given the new business push to elect business-friendly Supreme Court justices, one can never be sure.

An aside: Economic development is the justification by which chambers of commerce around the state have stuck hands out for taxpayer subsidies of their operations — $200,000 a year in Little Rock. Such subsidies are clearly unconstitutional payments to private corporations. Cities and more legal sophisticated chambers have recognized the problem and drawn up sham “services contracts” to justify their welfare payments. The payments are nothing but general subsidy for a percentage of chamber operations, which were no different before the subsidies than after and which, in Little Rock’s case, have been unchanged through varying subsidy amounts depending on city solvency. This, too, is a question ripe for review.

If the chambers desire public emoluments, let them get authority from the people to receive them. Some gas exploration companies would gladly chip in a few million to get the job done by “popular” amendment, I expect.