By Mar-Vic Cagurangan
The Guam Housing and Urban Renewal Authority has circumvented the legal process and acted beyond its authority when it invoked eminent domain over parcels of land in Mangilao, where Gov. Lou Leon Guerrero proposes to build a new medical campus, Attorney General Douglas Moylan said.
Moylan said GHURA and the governor have struck a surreptitious deal that may bring about costly litigation.
“While GHURA is authorized to acquire property via eminent domain, it must do so according to a very specific process, with several checks and balances,” Moylan stated in a legal opinion.
The attorney general issued the legal opinion in response to Sen. Frank Blas Jr.’s request to review GHURA’s Nov. 26 resolution authorizing the condemnation of 42 acres of land in Mangilao.
“GHURA did not comply with Guam law in the acquisition of land via the resolution,” Moylan wrote. “That legal process was not followed.”
While land acquisition is a legislative function, the Guam legislature has delegated its eminent domain authority to GHURA “with strict limitations,” Moylan said.
Pointing out that GHURA’s task is to build decent housing in a “suitable environment,” Moylan said the agency’s eminent domain power only applies to "urban renewal plan" projects, which involve "rehabilitating slums” by “removing unsafe physical conditions and enhancing and improving the conditions that remain.”
However, Moylan argued that the target site in Mangilao does not fall in the category of real estate that GHURA is authorized to take.
“We do not find that raw and undeveloped land, or land that sits undisturbed for decades, can satisfy the definition of a slum or blighted area which is the focus of an ‘urban renewal plan’ to improve or re-develop an existing developed area,” states the legal opinion
“Guam law does not empower GHURA to develop undeveloped property, except
for housing, which is our understanding of the condemned or to be taken real property,” Moylan said.
The legal opinion poses another obstacle to Leon Guerrero’s pet project designed by the 2022 Guam Medical Campus Master Plan.
Moylan said condemning parcels of land to build a hospital is outside of GHURA’s eminent domain authority.
“This master plan does not meet the requirements the Guam legislature set forth for the plan GHURA was supposed to comply with— an ‘urban renewal plan,” Moylan said.
He warned that due to violations of the law, any contracts GHURA entered into with the landowners “are not only void and voidable, but exposed the authority and its directors to legal action” at the expense of Guam and the potentially federal taxpayers.
Moylan noted that GHURA’s land acquisition circumvented the legal process, which requires consultation with the Guam Land Use Commission, a public hearing, legislative approval and the attorney general’s review before heading to the governor for final action.
“To do otherwise is not just ultra vires and in violation of Guam law, but violates the private property owners' due process rights in the manner in which the power of eminent domain has been exercised,” Moylan said.
“The plan's development did not take any input from the Guam Land Use
Commission. There was no opportunity for the Guam legislature to review and consent to the plan, nor was there an official authorization from the governor to move forward with the plan's implementation,” the legal opinion states.
Moylan said the land acquisition and the plan to start a medical facility “was hurriedly and surreptitiously made without any written documentation for legislative and public scrutiny.”
In a separate legal opinion sought by Sen. Chris Barnett, Moylan said GHURA’s $10 million loan agreement with the governor on May 28 and its intention to approve another loan on Nov. 26 violated the Open Government Law.
While the loan agreement was vaguely marked for "community development projects,” Barnett was convinced it was intended to cover the cost of Mangilao land acquisition for the hospital project.
However, the draft resolution provided to GHURA's board and made available to the public ahead of the May 28 meeting indicated that the loan terms were “to be negotiated.”
At the Nov. 26 meeting, GHURA deliberated an additional loan of $2.5 million “for the same purpose” and indicated the board’s approval “to enter into a binding commitment” with the governor's office without detailing the terms and conditions of the additional funding.
“In its simplest terms, the question presented here is, whether the agendas for the May 28 and Nov. 26 GHURA board meetings, together with the draft resolutions, meet the Open Government Law's requirements for ‘sufficient detail' so that the public is aware of what is being considered,” Moylan said.
In a statement, Barnett said the legal opinion was "a victory for the people of Guam, who deserve transparency and honesty in how their government handles both taxpayer funds and federal dollars."
“Attorney General Moylan’s legal opinion is clear: GHURA failed to disclose critical details about the terms of these loans. The public had every right to know the interest rates, repayment terms, fees and collateral involved in these major financial commitments. Instead, GHURA’s actions kept the public in the dark, which is a clear violation of the Open Government Law,” the senator said.
Barnett slammed GHURA and the governor for failing “to include essential information about these loans, such as repayment terms, interest rates, and other important financial obligations.”
"Gov. Leon Guerrero needs to be honest with the people of Guam. While she claims to be committed to building a new hospital, her actions speak louder than her words," he added.
While the governor initially allotted $300 million for the hospital project, Barnett said the funds have been diverted to unrelated expenses such as bank fee waivers.
"As a result, instead of having $300 million for the hospital project, we now have only $100 million. What we need now is a clear plan, full transparency, and collaboration with all stakeholders, including the legislature, to ensure this hospital is built and properly funded," Barnett said.
“These are not trivial matters. Whether it’s federal dollars or taxpayer funds, it is all public money, and the people of Guam have a right to know exactly how it will be used, especially for something as critical as the construction of a new hospital.”
The governor's office has yet to issue a statement on the attorney general's legal opinions.
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