Florida

  • The state set an example by restoring eminent domain authority to its original and limited purpose by removing the blight exception and closing the book on its long history of property rights abuse.
  • A ten-year waiting period for private transfers further secures property rights in the state.

 

 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: Florida Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 1567
Sponsored by: State Representative Marco Rubio
Status: Signed into law on May 11, 2006.

House Joint Resolution 1569
Sponsored by: State Representative Marco Rubio
Status: Passed by the legislature on May 4, 2006.
Approved by voters on November 7, 2006.

     
     
Overview     
     

In 2006, the Florida Legislature proved that it understood the public outcry caused by the Supreme Court’s abandonment of property rights. Florida created a legislative commission to study the use of eminent domain and ways of reining in abuse, then passed House Bill 1567 with an overwhelming majority. The new law signed by the governor requires localities to wait 10 years before transferring land taken by eminent domain from one owner to another—effectively eliminating condemnations for private commercial development. HB 1567 also forbids the use of eminent domain to eliminate so-called blight, instead requiring municipalities to use their police powers to address individual properties that actually pose a danger to public health or safety.

Not content with mere statutory protections, the Florida Legislature also put a constitutional amendment on the November ballot so that the state’s citizens could make sure that these reforms could not easily be stripped away. The new amendment, which was approved in a landslide, requires a three-fifths majority in both legislative houses to grant exceptions to the state’s prohibition against using eminent domain for private use.

Thanks to these sweeping reforms, Florida has gone from being among the worst eminent domain abuse offenders to offering some of the best protection in the nation for homes, businesses, and houses of worship that formerly could have been condemned for private development. HB 1567 and Florida’s new constitutional amendment should be models for other state legislatures. They prohibit takings for private benefit while still allowing the government to condemn property for traditional public uses such as roads, bridges, and government buildings.

South Dakota

  • Complete prohibition of private-to-private transfers.

 

 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 Dakota Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 1080
Sponsored by: State Representative Larry Rhoden
Status: Signed into law on February 17, 2006.

     
     
Overview     
     

While many state legislatures seemed uncertain about how to go about protecting their citizens’ property rights in the wake of Kelo, in early 2006 South Dakota became the first state to strike right at the heart of the problem with a well-crafted eminent domain reform bill.

House Bill 1080 prohibits government agencies from seizing private property by eminent domain “for transfer to any private person, nongovernmental entity, or other public-private business entity.” The act—which passed the House by a vote of 67-1 and the Senate unanimously—also stipulates that after seven years, if condemned land is not used for the purpose for which it was acquired, the original owner has right of first refusal to buy the property at current fair market price. By taking this approach, South Dakota lawmakers demonstrated their recognition that it is simply wrong for the government to take property from one person and give it to another private party.

Thanks to the state’s broad restriction on the use of eminent domain for private development—which was done without leaving any loopholes or exceptions—every home, business, and ranch in South Dakota should finally be safe from eminent domain abuse.

Maryland

  • Condemnation authorization expires after four years.
  • Increased compensation provisions.

 

 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: Maryland Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 3
Sponsored by: State Senator James DeGrange
Status: Signed into law on May 8, 2007.

     
     
Overview     
     

Maryland legislators filed more than 40 bills addressing eminent domain during the 2006 session. Legislation banning the use of eminent domain for economic development reached the floors of both chambers. However, when property rights advocates attempted to amend the bills to create legislation that offered real reform, the measures stalled and the General Assembly adjourned without passing any eminent domain reform.

In 2007, very few bills addressed eminent domain reform, and even fewer received a committee hearing. The only bill that passed was Senate Bill 3, which requires condemners to proceed within four years of authorization or the authorization expires. Additionally, the bill raises caps on various compensation arrangements.

An expiration on condemnation authorizations may reduce speculative and unnecessary condemnations, as well as help property owners avoid years of uncertainty surrounding a proposed project. However, Maryland needs much tougher reform, including stronger property rights protections in the state constitution.

New Mexico

  • Reform legislation was vetoed in the 2006 session, but passed in 2007.
  • Eminent domain may no longer be used for 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: New Mexico Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 393
Sponsored by: State Representative Peter Wirth
Status: Signed into law on April 3, 2007.

Senate Bill 401
Sponsored by: State Senator Steven Neville
Status: Signed into law on April 3, 2007.

     
     
Overview     
     

In 2006 the Legislature passed good reform language in House Bill 746. Unfortunately, the governor vetoed the bill, and instead formed the Task Force on the Responsibile Use of Eminent Domain. A majority of the Task Force members voted to recommend repealing the power of eminent domain for economic development, and lawmakers introduced several bills adopting the Task Force’s recommendations.

This year, House Bill 393 removed the power of eminent domain from the state’s Metropolitan Redevelopment Code—ensuring protection for New Mexico’s home and small business owners from the type of eminent domain abuse seen in Kelo. By no longer allowing condemnations for blight, New Mexico passed some of the nation’s strongest reform. An exception was made for so-called “antiquated platting” issues in Rio Rancho, but that amendment was narrowly written and does not affect the heart of the reform.

Georgia

  • Sufficiently narrows the definition of blight to apply to only unsafe property, parcel-by-parcel.
  • Redevelopment projectss must now be voted on by an elected body.

 

 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: Georgia Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Resolution 1306
Sponsored by: State Representative Jeff May
Status: Passed by the legislature on April 4, 2006.
Approved by voters on November 7, 2006.

House Bill 1313
Sponsored by: State Representative Rich Golick
Status: Signed into law on April 4, 2006.

     
     
Overview     
     

Georgia is another state in which 2006 will be remembered as a banner year for the protection of private property rights. The Georgia General Assembly not only heeded citizens’ calls for reform by passing important statutory reforms about the way that eminent domain may be used, but it also gave voters the opportunity to adopt a constitutional amendment requiring a vote by elected officials to precede the use of eminent domain for redevelopment.

House Bill 1313 (2006) counters the Kelo decision by providing that economic development is not a public use that justifies the use of eminent domain. Just as importantly, the bill significantly tightens the definition of blight in Georgia’s eminent domain laws. Now property can only be designated blighted if it meets two of six objective factors and “is conducive to ill health, transmission of disease, infant mortality, or crime in the immediate proximity of the property.” The bill also requires government officials to evaluate blight on a parcel-by-parcel basis in order for the properties to be subject to condemnation for private development. No longer can entire areas be threatened with the wrecking ball based on the dilapidation of a few properties; now home and business owners can protect themselves by keeping their buildings well-maintained. The new law emphasizes, “Property shall not be deemed blighted because of esthetic conditions,” and the government is given the burden of showing that a piece of property meets the criteria for blight. These changes go a tremendous way to protecting the freedoms of Georgia’s citizens.

House Resolution 1306 (2006) became a constitutional amendment that was approved by nearly 85 percent of the voters. Unfortunately, the constitutional amendment was only a minor procedural requirement that before eminent domain can be used for redevelopment, it must be voted on by elected officials. (In most cases of eminent domain abuse, elected officials vote; the point of constitutional protections is to prevent citizens’ rights from being voted away.) While any constitutional amendments strengthening property rights are good, Georgians would be better off if some of the strong reforms of HB 1313 made it into the state constitution.

Tennessee

  • Failed to appropriately address the definition of “public use” or “blight.”
  • Changes to notice requirements put property owners at a greater disadvantage.

 

 50 State Report Card    50 State Report Card Grade
     

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

   D Minus

Read: Tennessee Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 3450/Senate Bill 3296
Sponsored by: State Representative Joe Fowlkes
Status: Signed into law on June 5, 2006.

House Bill 3700
Sponsored by: State Representative Joe Armstrong
Status: Signed into law on June 27, 2006.

     
     
Overview     
     

Just like several other states, Tennessee created a state commission to study the use of eminent domain and ways of reining in abuse. State legislators filed dozens of bills intended to make sure that Tennesseans would not have to worry about their own homes, businesses, farms, or houses of worship being condemned for someone else’s private benefit. But of all the possible eminent domain reform bills to choose from, the General Assembly ended up selecting two that did very little to improve the protection of property rights in their state.

House Bill 3450/Senate Bill 3296 made a slight improvement to the state’s definition of “blight,” yet the definition still remains too broad. The bills also provided some additional notice to property owners during the condemnation process. The bills did remove the power of eminent domain from certain parties and modified the state’s definition of “public use” to exclude economic development, but they still permit governmental entities to transfer property no longer being used for a public use to another public or private party and they expressly allow the government to condemn properties for the purposes of building “industrial parks.” House Bill 3700 actually seems to be a bit of a regression, changing a previous requirement that condemning authorities publish notices (including a map of the targeted area) once a week for three consecutive weeks to a requirement that the condemning authority post the map of the targeted area for review in at least two locations. House Bill 3700 also removes a prior requirement that condemning authorities obtain approval from the governing body of the affected county unless the condemnations were pursuant to a redevelopment plan that utilized tax increment financing applicable to the county property tax levy.

These changes to Tennessee’s law should be deeply disappointing to the state’s citizens, especially since the General Assembly could have selected from any number of bills that would have offered real, substantial protections for citizens’ property rights. Due to the legislature’s failure to fix the state’s definition of blight, the issues will need to be revisited if Tennesseans are to be assured of the property rights protections they deserve.

Massachusetts

  • 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

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Read: Massachusetts Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
 
     
     
Overview     
     

The Massachusetts General Court has seen a number of bills filed addressing eminent domain abuse and responding to the Kelo decision. Unfortunately, legislators filed relatively ineffectual legislation. Eminent domain abuse continues throughout the state, and although home rule allows local municipalities to pass their own eminent domain protections, the legislature must pass eminent domain reform to ensure uniform protection for home and business owners.

New York

  • 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

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Read: New York Chapter
Read: Entire Report

Current Abuses Bills

Overview

As a state that is among the leaders in eminent domain abuse, it is not surprising that New York trailed far behind the other states in its response to Kelo. The only bill that seemed to have any traction did little more than create another study committee, yet the New York State Legislature failed to even pass that.

The state did pass legislation specifically targeting a large electric-line project, as well as a private golf club on Long Island. However, there is no momentum toward comprehensive reform, so the Legislature continues to allow the government to take homes and small businesses for private gain.

Hawaii

  • 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

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Read: Hawaii Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
 
     
     
Overview     
     

Hawaii produced a key court case in the history of eminent domain authority expansion and abuse. In Hawaii Housing Authority v. Midkiff, the U.S. Supreme Court upheld an expansive definition of the “public use” provision, essentially reading the public use provision to mean “public purpose,” as defined by the State Legislature.

Many bills were filed that attempted to address Kelo-style takings. Unfortunately, Hawaii missed the chance to be a national leader in restricting eminent domain abuse and the Legislature still needs to pass reform.

Texas

  • Constitutional amendment requires “blight” be determined on a property-by-property basis
  • Authorizes the legislature, by a 2/3 vote, to give any private entity the power of eminent domain

 

 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: Texas Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
 

Senate Bill 7
Sponsored by: State Senator Kyle Janek
Status: Signed into law on September 1, 2005.

House Bill 1495
Sponsored by: State Representative Bill Callegari
Status: Signed into law on June 15, 2007.

Proposition 11
Sponsored by: Representative Frank Corte
Status:  Approved by voters on Nov. 3, 2009.

     
     
Overview     
     

In 2009, Texans overwhelmingly approved Proposition 11.  The constitutional amendment was an overall improvement, with one major exception.  

It made significant improvements in prohibiting condemnations based on bogus claims of blight.  Government must declare blight on a property-by-property basis, and can no longer make area-wide blight designations.  This will likely stop large-scale redevelopment based on so-called blight removal.  

It also improved the definition of public use in Texas, by requiring that takings only occur for the “ownership, use and enjoyment of the property” by the public, while allowing for incidental private uses.  Unfortunately, this provision is qualified by “primary purpose” language—if economic development or an increase in tax revenue is the “primary purpose” of a taking, it is prohibited.  Government agencies often try to circumvent such language by claiming an alternative primary purpose.

But it made one far less desirable change in authorizing the legislature, by a 2/3 vote, to give any private entity the power of eminent domain.  This is the most dangerous provision in the constitutional amendment and could allow eminent domain abuse in the future, so Texans will need to diligently watch the happenings of the Texas legislature (which only meets every other year).

The other changes should have an immediate effect of reducing eminent domain abuse in the state.

In the immediate aftermath of Kelo, the Texas Legislature passed Senate Bill 7 (2005), which has both positive and negative aspects.

On the positive side, the new law says the government or a private entity may not take property if doing so confers a private benefit, is pretextual, or is for economic development (unless economic development is secondary to the main objective of eliminating real “blight”). Additionally, courts are not to give any deference to a condemning authority’s decision that a condemnation will be for a public use. These are important reforms that should go a long way to preventing future abuses in Texas.

On the down side, however, the bill created specific exceptions to those prohibitions so that they do not apply to utilities, port authorities, and other specific agencies and projects, including the new Cowboys stadium. And, as seen in other states, there is a specific exemption for blight removal.

The Texas Legislature was not in session in 2006, but in 2007, it passed a bill that redefined public use. Under House Bill 2006, condemnation only qualifies as a public use when it “allows a state, a political subdivision of the state, or the general public of the state to possess, occupy, and enjoy the property.” The bill would have closed the blight loophole and effectively closed the chapter on eminent domain abuse in Texas—but the governor vetoed it.

House Bill 1495 did become law, requiring the state attorney general to summarize current eminent domain law into a “Landowner’s Bill of Rights.” This document will be available to the general public, and must be provided to any property owner facing condemnation. The new law educates the public on the law of notice, procedure, and compensation rights of a condemned party, but does not protect property owners from continuing eminent domain abuse.