Utah lawmaker floats use of eminent domain for trails but runs into barriers

(Trent Nelson | Tribune file photo) Cyclists along the Jordan River Parkway in South Salt Lake on Thursday May 30, 2019. Trail advocates hope to build a paved path on both sides of the river that runs the length of the Salt Lake Valley, but a proposal to allow the use of eminent domain to acquire land for such trail projects received a harsh reception in the Utah Legislature on Oct. 16.

Advocates like West Valley City lawmaker and former Mayor Mike Winder want the Jordan River Parkway someday to host paved trails on both sides of the waterway that runs the entire length of the Salt Lake Valley connecting Utah Lake with the Great Salt Lake.

But numerous private properties back up against the river, which has been diked and channelized for parts of its 51-mile length. In hopes of developing new stretches of trail, Winder unveiled draft legislation this past week that would authorize local governments to exercise eminent domain to acquire private property needed for recreational trails.

“It helps bring balance to the issue of eminent domain on trails,” the Republican lawmaker told the Natural Resources, Agriculture and Environment Interim Committee. “We want to set some good policy on this as we continue to march forward. Years ago, all trails in the state could be built using eminent domain. The Legislature pulled that authority back. We feel the pendulum went too far.”

The awesome, some would argue tyrannical, power of eminent domain is typically reserved for infrastructure projects like transmission lines, reservoirs and highways, as well as civic buildings, parks and redevelopment of blighted urban areas. Winder discovered Wednesday that many of his rural counterparts would like to keep it that way.

His proposal carves out strict requirements for a trail to qualify for eminent domain. First, the trail would have to be paved and be at least 48 inches wide, designed for multiple “muscle-powered activities,” such as cycling, skiing, hiking, jogging and horseback riding, as well as for electric-powered bicycles and scooters. This pavement requirement would disqualify dirt paths, such as the Bonneville Shoreline Trail, whose proponents long have struggled with routing issues related to private property along the Wasatch foothills.

A qualifying trail also would have to be part of a “regionally significant trail system,” meaning the network would have to cross the boundaries of two or more counties or municipalities.

Still, Winder’s proposal fell flat with committee members who don’t look kindly on siting trails through private property against the owners’ wishes.

“I need to see the other side of the story. Eminent domain is a very special thing to me,” said Sen. Allen Christensen, R-North Ogden. “My [Weber] county wants to run a trail completely up Ogden Canyon, and there’s some property owners who have said no. [County officials] have requested of me to evoke eminent domain, and we refused to do it.”

He was referring to failed legislation a few years ago that would have enabled trails up Ogden and Provo canyons, connecting their eponymous cities with Pineview and Deer Creek reservoirs, respectively.

Such projects have great value to urban populations because they provide nonmotorized access from cities to scenic places in the mountains, according to Mark Benigni, executive director of Weber Pathways, an Ogden nonprofit promoting trail development.

Because riverside land is often in private hands, however, trails alongside waterways are difficult to develop, thwarting otherwise ideal locations for pathways geared toward cycling and hiking.

“As a resident who sees the impacts of climate change, I feel it is very important that we provide more active transportation opportunities, especially for improving air quality,” Benigni said. “Active transportation unfortunately is an afterthought. [Planners] expect it to just happen but won’t provide resources to support it.”

Two years ago, the final pieces of the Jordan River Parkway were completed, creating a continuous paved trail from Lehi to Salt Lake City. Now, trail proponents are looking to expand the parkway to include additional trails so both sides of the river are available to cyclists, joggers and baby-stroller pushers.

“Studies show that trails with loops get far more use than mere linear trails,” Winder wrote in a text message. “As part of our efforts to increase positive activities along the river, to help drive out shady activities, the trail on both sides is key.”

Trail already has been completed on both sides of the river where it passes through South Salt Lake, Midvale, Riverton and South Jordan, but that is the result of individual cities taking the initiative, according to Soren Simonsen, executive director of the Jordan River Commission.

“We need to expand the network to provide better connectivity to neighborhoods,” said Simonsen, a former Salt Lake City Council member. “Having trail on both sides can provide some of that connectivity.”

Millcreek and Murray are two cities seeking to double-trail their stretches of the Jordan.

“It’s interesting to see communities saying, ‘We want better access.’ It’s happening very piecemeal,” Simonsen said. “Sometimes you need a little push to get cooperation from property owners. It’s a delicate balance between property rights and what’s the benefit to the entire community.”

Winder told the committee that his proposed legislation could help property owners by ensuring favorable tax treatment if they sell their land for these efforts. Land sellers typically have 30 days to reinvest the proceeds if they wish to avoid capital gains taxes.

However, that time frame is extended to 36 months if the land in question is subject to forced sale under eminent domain, Winder said. The arrangement is known as a 1033 exchange, or a “friendly eminent domain.”

“As we work along the Jordan River, for example, we are coming across a number of [property owners] who are willing to sell parts of their backyards so we can have the trail on both sides of the river,” Winder said. “That 1033 exchange is a tax sweetener that would definitely help some of those deals go through.”

Winder offered to amend his legislation to apply only to Salt Lake County, yet he still failed to gain traction.

“Eminent domain is a very sharp tool, and it’s a very heavy-handed tool,” said Republican Sen. Scott Sandall, a Tremonton rancher. “To just give carte blanche for trails to use eminent domain, whether it’s in class 1 counties or anywhere in the state, goes against my belief in private property rights.”

Winder noted that his legislation is narrowly constructed to avoid trammeling property rights and to ensure a legitimate public interest is being met.

"The way this is drafted, I can't get close to it," Sandall responded.

“Ditto,” added Rep. Carl Albrecht, R-Richfield.

But Winder, who now serves as economic development director for Millcreek, argued that self-powered transportation, like cycling and running, deserve similar consideration to automobiles when it comes to societal support. In addition, real estate data shows proximity to trails can lead to higher property values.

“We are becoming more of a multimodal transportation state. Communities have the right of eminent domain today for roads and streets as they are very important. This is putting paved trails ... on that same level of parity,” Winder said. “I agree eminent domain is a sharp tool, but I also think that active transportation is in the public interest as well.”

Feeling the headwinds his proposal was facing, Winder withdrew his legislation to rework it.

“I do want to hear feedback for how we can make this palatable and get it right,” he said, “because we do want to get it right.”