Delaware likely to enact good post-Kelo reforms

Arlington, Va.—For the second time in as many years, the Delaware legislature has passed historic eminent domain reform. Both houses of the Delaware legislature voted unanimously to approve S.B. 7, which will protect homes, small businesses, farms and houses of worship from the abuse of eminent domain for private profit. The legislation heads to Governor Jack Markell, who has said he would sign the bill.“Delaware just shot to the head of the class,” said Steven Anderson, an attorney at the Institute for Justice who worked with property owners and legislators on the bill. “S.B. 7 is reform that should make everyone proud, allowing all Delaware property owners—from Brandywine to Bethany Beach—to keep what they’ve worked so hard to own.”

After the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, which allows the government to forcibly transfer property from one private individual to another, Delaware became the first of 43 states to reform its eminent domain laws. Unfortunately, the 2005 legislation provided only modest reform, allowing eminent domain abuse to continue.
Nowhere was that more apparent than in Wilmington, where local officials authorized the use of eminent domain for private gain against 62 properties and 38 businesses, including Ed Osborne’s Auto Repair, along the Christina River waterfront. The City is threatening to seize the land of these successful businesses and hand it over to a private developer who promises increased tax revenue and jobs from the construction of luxury condominiums and upscale shops.

S.B. 7 makes several critical changes to current law that will better protect property owners from eminent abuse. It specifically excludes increased tax base, tax revenue and economic development from the state’s definition of “public use” and restricts eminent domain to its more traditional uses—things like roads, schools, parks and police stations. S.B. 7 will continue to permit the acquisition of property for public utilities.
Most important, S.B. 7 makes certain that property that sits in a so-called slum or blighted area or is unfit for habitation or abandoned can be taken by eminent domain only when it is a direct threat to public health and safety in its current condition. Local governments retain the tools to obtain the worse properties, but only when they are objectively bad. And in situations where a private party may develop or own such properties, the bill requires municipalities to provide “clear and convincing evidence” that the condemnation complies with the state’s new definition of “public use.”
Anderson said, “It’s refreshing to see elected officials do what’s right and stop the abuse of eminent domain once and for all. Delaware finally finished what it started four years ago and the folks who fought for this legislation should be applauded.”