States take action to limit eminent domain
The Supreme Court’s 2005 ruling in Kelo vs. New London, Conn., which expanded local governments’ eminent domain powers for economic development projects, prompted many state legislatures to propose constitutional amendments limiting that authority. Although voters in more than 35 states adopted measures in November to limit eminent domain, some local officials say the new laws will have little effect on development.
Florida law already provided that private property could only be taken for a public purpose and with full compensation to each owner. Under an amendment passed in November, private property taken by eminent domain cannot be conveyed to a private entity unless it is approved by a three-fifths vote of each house of the state legislature.
Last year, the Riviera Beach, Fla., City Council considered using eminent domain to acquire property within the city’s Community Redevelopment Area. Following public outcry, the master developer withdrew the offers that included reference to eminent domain. “The new law doesn’t change how we will do our planning,” says Riviera Beach Chief of Staff Rose Anne Brown. “The only thing it changes is that eminent domain is no longer a tool for redevelopment.”
In August 2005, Alabama became the first state to pass eminent domain reform legislation in response to the Kelo decision. The law prevents local governments from condemning property to use for private development, such as a shopping center or manufacturing plant, while retaining the use of eminent domain for traditional public projects, such as schools, parks and roads.
Two years before the passage of the new law, Alabaster, Ala., city leaders considered using eminent domain to take private property for a large commercial development, leading to negative national attention. City Attorney Greg Morris says the new state law has not changed how the city pursues development because an existing law allows private enterprise to use property taken through eminent domain if it is included in a redevelopment plan. “Although it appears that there is some type of sinister conspiracy, most cities and most elected officials are trying nationwide to balance the [property rights] against the cost of doing business,” he says.
California’s Proposition 90, which was defeated by voters 52.5 percent to 47.5 percent, would have prohibited the use of eminent domain unless the property acquired was owned and occupied by a governmental agency. It also sought to authorize lawsuits in claims that a government action resulted in economic loss to a property owner. Also, compensation for seized land would be based on its value as the government intended to use it rather than on fair market value.
Megan Taylor, director of communications for the Sacramento, Calif.-based League of California Cities (LCC), which opposed the proposition, called the measure an attempt to play on the concerns of voters about the Kelo decision. “[Proposition 90 tried] to go after a broader range of government action that could potentially impact the value, or the anticipated value, of someone’s property,” she says. “That would have put governments and taxpayers on the hook to reimburse property owners and would have shut down governments’ ability to [plan] anything other than health and safety.”
LCC was drafting its own proposed eminent domain reform legislation when the measure qualified for the ballot. “We realized there was a tremendous amount of concern among voters about the Kelo decision,” Taylor says. LCC plans to draft new eminent domain legislation to propose this year.
Maria Lameiras is an Atlanta-based freelance writer.