50 State Report: Grades of States that Passed

Florida A  
North Dakota A  
South Dakota A  
Virginia A
Michigan A-  
New Mexico A-  
Alabama B+  
Arizona B+  
Delaware B+  
Georgia B+  
Mississippi B+
Nevada B+  
New Hampshire B+  
Oregon B+  
South Carolina B+  
Indiana B  
Kansas B  
Louisiana B  
Utah B  
Wyoming B  
Iowa B-  
Minnesota B-  
Pennsylvania B-  
Wisconsin C+  
Colorado C  
North Carolina C-  
Texas C-  
Washington C-  
West Virginia C-  

 

Colorado

  • Moderate improvements to the state’s public use requirement, however the state still needs a sufficiently narrow definition of public use.
  • Clear and convincing evidence” is now required for blight designations, however the definition of blight is still considerably vague.

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Read: Colorado Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 1411
Sponsored by: State Representative Al White
Status: Signed into law on June 6, 2006.

     
     
Overview     
     

Even before the Supreme Court handed down its decision in Kelo, Colorado municipalities had an unfortunate history of abusing eminent domain for the benefit of wealthy private developers. In 2006, the Colorado General Assembly improved the state’s eminent domain laws by passing House Bill 1411, which amended the public use definition to “not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenue” and stated that “Private property may otherwise be taken solely for the purpose of furthering a public use.”

While it was definitely a step in the right direction, HB 1411 left some room for improvement. The new law allows municipalities to continue using eminent domain to seize so-called blighted properties, and the state’s definition of blight is sufficiently vague to allow for considerable abuse. The good news is that in HB 1411, the legislature did take measures to tighten the blight loophole by requiring government officials to prove by clear and convincing evidence that “the taking of the property is necessary for the eradication of blight.”

The General Assembly missed a golden opportunity, in that same session, when it considered but did not pass an amendment to the state constitution that would have prohibited the condemnation of private property for economic development. While the statutory protections it did eventually adopt will, for the time being, provide some increased protections from the government condemning people’s homes, businesses, farms, and places of worship—unless condemnors convince a court that the property is in fact blighted—those protections may eventually be stripped away if the public fails to guard carefully against those who can find personal gain through the abuse of eminent domain. Hopefully the legislature will revisit the possibility of a constitutional amendment and Coloradans will have the chance to provide themselves with the most enduring type of protections for their fundamental right to keep what they properly own.

Rhode Island

  • Failed to pass legislative reform.

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

   D Minus

Read: Rhode Island Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
 
     
     
Overview     
     

Senate Bill 2155 (2006) would have limited takings for economic development. After a lengthy struggle in the Senate, it finally moved to the House, where it died with the end of session on June 23, 2006.

SB 2728A (2008), which was signed by Gov. Don Carcieri on July 2, 2008,  does little more than provide local governments a roadmap for using eminent domain for private economic development.  The provision requiring that property owners receive at least 150% of fair market value in compensation is all that prevents the state’s attempt at reform from receiving an F.
Rhode Island continues to need substantive reforms, including a strong definition of public use and a narrow definition of blight.

Louisiana

  • Each piece of property must be a threat to public health and safety to be condemned for blight.
  • Condemnations for industrial parks and port facilities are forbidden on residential property.

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Read: Louisiana Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 707 (Constitutional Amendment No. 6)
Sponsored by: State Representative Rick Farrar
Status: Passed by the legislature on June 19, 2006.
Approved by voters on September 30, 2006.

Senate Bill 1 (Constitutional Amendment No. 5)
Sponsored by: State Senator Joe McPherson
Status: Passed by the legislature on May 31, 2006.
Approved by voters on September 30, 2006.

     
     
Overview     
     

In the midst of a heart-breaking year, Louisiana’s citizens were more aware than ever of the fundamental importance of having homes, businesses, and houses of worship that cannot be taken away at the whim of a government official. Even as rumors swirled around the state that large sections of New Orleans and the surrounding areas might be taken away from their rightful owners because of the devastation caused by Hurricanes Katrina and Rita, the people of the state voted to make sure that the government had clear limits on how it could use eminent domain in the wake of the storms.

Senate Bill No. 1, ratified by Louisiana’s voters on September 30, 2006, amended the state constitution to specifically prohibit the taking of private property for a private use. Under the amendment’s terms—and with a few notable exceptions—localities are prohibited from condemning private property merely to generate taxes or jobs. Instead, the state’s blight laws must now ensure that eminent domain can only be used for the removal of a threat to public health and safety caused by a particular property. All economic development and urban renewal laws currently on the Louisiana books must conform to the limitations imposed by SB 1. The new amendment does not address the power of municipalities to use eminent domain for the benefit of industrial parks since that is specifically permitted in another provision of the Louisiana Constitution. It does, however, provide that a person’s home cannot be taken for an industrial park or even for a public port facility.

House Bill 707 provides a “right of first refusal,” requiring the government to offer any condemned property it no longer needs back to the original owner before selling it to any other private party.

The protections adopted in Louisiana’s amendments are absolutely vital to ensure that citizens who are still trying to rebuild the homes, businesses, and communities shattered by the hurricanes will not have to face the additional trauma of losing those uniquely important places that they can call their own. As long as it is not a threat to the public health and safety, property is protected by the Louisiana Constitution from the greedy ambitions of those developers whose vision of New Orleans doesn’t include its long-time residents.

Wyoming

  • Redefines “public purpose” to mean the “possession, occupation and enjoyment of the land by a public entity.”
  • No transfer of property to private entities, unless condemned for “public health and safety,” determined parcel-by-parcel.

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Read: Wyoming Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 124
Sponsored by: State Joint Agriculture, Public Lands, and Water Resources Interim Committee
Status: Signed into law on February 28, 2007.

     
     
Overview     
     

The State Legislature was not in regular session in 2006. The Joint Agriculture Committee pledged to work toward two bills in 2007 that provide more protections for private property owners: one would focus on “urban” issues and one on rural issues.

House Bill 124 was one of the promised committee bills, but the reforms were incredibly meager. As drafted, the bill only increased notice and required the government to make an attempt at “good faith negotiations” before condemning private property, and early amendments seemed to weaken the bill further. However, property owners from across the state showed up at the Capitol to demand protection and their voices were heard, and Wyoming now has significantly stronger reform.

State, counties, and municipal corporations now may condemn only for public purpose, defined as “the possession, occupation and enjoyment of the land by a public entity.” Private transfer is prohibited except for “condemnation for the purpose of protecting the public health and safety,” and that condemnation is on a property-by-property basis. Municipalities are no longer allowed to delegate away condemnation authority, and if condemned property has not experienced “substantial use” ten years after the taking, the former owner may apply to the court to repurchase the property for the amount of the original compensation.

While this new law is a dramatic improvement, Wyoming property rights remain at risk under the state’s water, mining, and common carrier exceptions unique to the state, if not the West. Additionally, a constitutional amendment is needed to ensure property rights protection for generations to come.

New Hampshire

  • Blight is now property-by-property and must be a “menace” to health and safety.
  • A constitutional amendment prohibits taking property for private use.

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Read: New Hampshire Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 287
Sponsored by: State Senator Bob Odell
Status: Signed into law on June 23, 2006.

CACR 30
Sponsored by: State Representative Robert Giuda
Status: Passed by the legislature on April 20, 2006.
Approved by voters on November 7, 2006.

     
     
Overview     
     

On Friday, June 23, 2006, exactly one year after the Kelo decision, New Hampshire Governor John Lynch signed into law Senate Bill 287, legislation that provides citizens with meaningful protection against eminent domain for private profit. The eminent domain reform bill, which sailed through both legislative houses, explicitly states, “Public use shall not include the public benefits resulting from private economic development and private commercial enterprise, including increased tax revenues and increased employment opportunities.”

Unfortunately, the bill continues to allow the use of eminent domain for the elimination of blight, and even though SB 287 requires that an individual property, as opposed to an area, be a “menace to health and safety,” the blight exemption still prevents New Hampshire’s reform from receiving the highest grade.

Knowing that statutes are easier to repeal than constitutional provisions, the New Hampshire General Court also made sure that the state’s citizens had the opportunity to vote on a constitutional amendment that would guarantee the greatest possible protection for their property rights. CACR 30 was that proposed constitutional amendment, which said: “No part of a person’s property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property.” In the November 2006 elections, more than 85 percent of New Hampshire voters cast their ballots in favor of this new provision.

This is one of the strongest reform efforts mounted in response to Kelo. New Hampshire legislators understand what defenders of eminent domain abuse still do not—that Kelo created a big problem for the states to fix, that economic development will undoubtedly continue without eminent domain, and that every home, business, farm, and place of worship needed protection against condemnation for private gain.

Delaware

  • Public use defined to restrict eminent domain to traditional uses.
  • So-called blighted property can only be taken when it is a direct threat to the health and safety of the community.

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Read: Delaware Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 7
Sponsored by:
State Senator Robert Venables.
Status: Signed into law on April 9, 2009.

     
     
Overview     
     

Just after the Kelo decision, Delaware created a state commission to study the use of eminent domain and ways of reining in abuse, but the bill passed by the General Assembly and signed by the governor could hardly be considered substantive reform. Senate Bill 217 (2005) does no more than require that cities have a plan when condemning property and that the condemnations are for a “recognized public use as described at least six months in advance of the institution of condemnation proceedings.” The bill also changed the party that determines compensation for successful condemnation challenges from the condemning agency to the courts.

Although a condemning authority must declare its intended use for a property in advance of the condemnation, and is then limited to that specific use for the property, Delaware provides a sizeable catalog of public use options to pick from. The term is not clearly defined in state statutes and courts have elected open-ended interpretations. In the wake of Kelo, Delaware’s laws could easily accommodate the use of eminent domain for private economic development.

Due to just that kind of threat to a number of businesses in Wilmington, the legislature revisited reform in 2008. Senate Bill 245 (2008) originally passed the Senate 19-1 and the House unanimously, but in June 2008, the governor vetoed the legislation. The legislature was subsequently unable to override the governor’s veto.  Undeterred, the legislature returned in 2009 and overwhelmingly passed S.B. 7 (2009), which contained nearly identical language as S.B. 245.  This time, the bill was signed by the new governor—who had campaigned on just this issue.  S.B. 7 restricts eminent domain to its traditional uses—roads, schools, parks and police stations—while still allowing for the construction of utilities and leaving local governments the ability to acquire properties that pose a direct threat to public health and safety.

Delaware citizens are finally safe from the abuse of eminent domain for private profit.

South Carolina

  • Constitutional amendment declares that “blighted” property must be “a danger to public health and safety,” effectively eliminating bogus “blight.”

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Read: South Carolina Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 1031
Sponsored by: State Senator Chip Campsen
Status: Passed by the Legislature on June 14, 2006.
Approved by voters on November 7, 2006.

Senate Bill 155
Sponsored by: State Senator Chip Campsen
Status: Ratified by the Legislature on April 26, 2007.

     
     
Overview     
     

When the 2006 election gave South Carolina’s citizens an opportunity to stand up and express their support for private property rights, they came through with flying colors. More than 85 percent of voters in South Carolina approved a constitutional amendment that provides home and business owners across the state with meaningful protection against eminent domain abuse. The amendment specifically prohibits municipalities from condemning private property for “the purpose or benefit of economic development, unless the condemnation is for public use.” It further requires that an individual property be a danger to public health and safety for it to be designated as blighted, closing a loophole that enabled local governments to use eminent domain for private use under the state’s previously broad blight definition. The amendment also removes provisions of the state constitution that had specifically allowed several counties to use eminent domain for private uses.

Before South Carolinians had their say, state law allowed government officials to take property for private use under the guise of blight removal, so what happened in the Kelo case could have happened in South Carolina. The constitutional amendment fixed that problem and gave the state’s citizens some of the strongest protection in the country from eminent domain abuse, ensuring that so-called blight laws could not be used as a backdoor way of using eminent domain to take homes, businesses, farms, and places of worship for private profit.

A constitutional amendment is unambiguously the most effective way to stop the abuse of eminent domain for private gain, and the passage and approval of this provision should effectively safeguard South Carolinians’ fundamental right to keep what they rightfully own.

Maine

  • Primary purpose and intent language mean the reforms to the public use definition offer no real additional protection for property owners.
  • Additionally, “blight” continues to be a recognized public use and the state urban renewal laws’ broad language continues to leave the door wide open for abuse.

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Read: Maine Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Legislative Document 1870
Sponsored by: State Representative Deborah Pelletier-Simpson
Status: Signed into law on April 13, 2006.

     
     
Overview     
     

The state of Maine edged toward providing stronger protections for its citizens’ property rights by passing Legislative Document 1870, which says that it is not a public use to condemn property “for the purposes of private retail, office, commercial, industrial or residential development.” The bill also specifies that eminent domain may not be used “primarily for the enhancement of tax revenue” or to “transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity.”

The use of qualifiers such as “primarily” means that the statute will be easy to circumvent, since local governments can assert some other primary purpose for private-to-private takings. Even worse, Maine’s new law also includes gaping exceptions for the acquisition of so-called “blighted” properties pursuant to the state’s ubiquitously broad urban renewal laws. Despite the state’s new, limited definition of public use, the urban renewal laws, as currently written, allow perfectly fine properties to be designated as “blighted,” condemned, and handed over to private developers. It is particularly important that these problems be addressed in a traditional vacation destination like Maine, as recent trends have seen commercial developers cutting deals with local governments to wipe out poorer, older neighborhoods and replace them with projects that cater to the wealthy. Thus, the Legislature needs to change the definition of blight to ensure that properties are evaluated on a parcel-by-parcel basis and subject to condemnation only if they are a real threat to the health and safety of the community. Until the Legislature acts to close these loopholes, the state’s eminent domain laws will continue to allow local governments to condemn homes, businesses, and places of worship for private profit.

New Jersey

  • Attempts at substantial reform have failed, while passed reform measures leave plenty of loopholes for continued abuse.

 

 50 State Report Card    50 State Report Card Grade
     

50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo

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Read: New Jersey Chapter
Read: Entire Report

   
     
Current Abuses    Bills
    Assembly Bill 3615
  Sponsored by: Assemblyman Albert Coutinho, Assemblyman Anthony Bucco, and Assemblywoman Nacny Muñoz
    Status: Signed into law on September 9, 2013
     
Overview     
     

In 2013, New Jersey became the 45th state to “reform” its eminent domain laws in the wake of Kelo; but sadly, it went in the wrong direction, and New Jersey maintains its status as one of the worst states in the nation for eminent domain abuse—if not the worst.

The law makes two types of changes to the state’s eminent domain law—one to the procedures the state must use before using eminent domain to take property, and one to the substance of when government is allowed to take property.

First, the law changes redevelopment procedures to permit the creation of “non-condemnation redevelopment areas,” which allows municipalities to use all of the state’s redevelopment tools that enable them to provide incentives to developers, override zoning laws, and impose subjective “design standards” that put unaccountable power in the hands of city hall—but not eminent domain.  So far, so good:  This provision allows property owners within these areas to have some peace of mind that the government’s efforts at “redevelopment” will not result in condemnation.

But if a city cannot acquire all of the property it wants for a project, it can simply enact a new resolution declaring the area a “condemnation redevelopment area” and subject to eminent domain.   The peace of mind offered by these “non-condemnation redevelopment areas,” then, is only temporary:  They provide no guarantee that the government will not change its mind and start the condemnation-redevelopment process if property owners refuse to sell.

The procedural changes also make it much harder for property owners to challenge the government’s redevelopment decisions.  Before the 2013 reforms, New Jersey courts had held that the state’s notice procedures for redevelopment determinations were unconstitutional.  The courts fixed this by giving property owners in condemnation proceedings the right to defend themselves by arguing that the government’s redevelopment designation was unconstitutional.

The 2013 reforms eliminate that right.  Under the new law, the state has somewhat improved its notice requirements…in order to strip property owners of the right to defend themselves in condemnation actions.  Once the government decides to designate a “redevelopment area,” property owners will have only 45 days to initiate a court challenge to the designation.  If they fail to do so, they will be unable to challenge the constitutionality of the redevelopment designation when the government comes to condemn their property—even though the condemnation could happen literally years later.  This provision makes it harder for property owners to know their rights are at risk and harder for them to defend themselves against unconstitutional takings of their property.

In another section, the law makes substantive changes that supposedly respond to a recent New Jersey Supreme Court decision.  In Gallenthin v. Paulsboro, the court had pared back the old redevelopment law, reasoning that a law that allowed property to be condemned simply because a municipality had deemed it “not fully productive” would be unconstitutional and that the redevelopment law therefore shouldn’t be read to allow municipalities to do that.  To the extent the legislature sought to codify Gallenthin, it failed.  The new law’s language is at best ambiguous and will surely encourage ambitious localities to stretch the bounds of state law in an effort to use public power for private gain and take private property in the name of redevelopment.  New Jersey property owners can take some comfort in the fact that Gallenthin’s reasoning was based in the state constitution, which means the state’s courts should reject any attempts to expand redevelopment powers beyond what that case allowed.

But ultimately, even if citizens can look to the courts for continued protection, the New Jersey legislature has given them little reason to look for hope from a non-judicial source.  New Jersey courts have historically been very protective of property rights, insisting that the government must “turn square corners” when dealing with property owners.  To the extent the 2013 legislation urges municipalities to cut these corners instead of turning them, it is a betrayal of the legislature’s constitutional duty, and it in no way deserves the label “reform.” 

New Jersey law remains desperately in need of reform to ensure property owners get to keep what they have worked so hard to own.