Michigan

  • A new, strong constitutional amendment fortifies good, recent caselaw and means property rights are safer than they have been in decades.
  • Blight must now be proved on an individual property basis.

 

 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: Michigan Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
 

Senate Joint Resolution E
Sponsored by: State Senator Tony Stamas
Status: Passed by the legislature on December 13, 2005.
Approved by voters on November 7, 2006.

House Bills 5817, 5818, and 5819
Sponsored by: State Representatives Steve Tobocman, Leon Drolet, and John Garfield
Status: All signed into law on September 20, 2006.

House Bills 5820 and 5821
Sponsored by: State Representatives LaMar Lemmons III and Bill McConico
Status: Both signed into law on October 3, 2006.

House Bill 5060
Sponsored by: State Representative Glenn Steil
Status: Signed into law on November 9, 2006.

Senate Bill 693
Sponsored by: State Senator Cameron Brown
Status: Signed into law on September 20, 2006.

House Bills 6638 and 6639
Sponsored by: State Representatives Lamar Lemmons III, Steve Tobocman, and Leon Drolet
Status: Both signed into law on January 8, 2007.

     
     
Overview     
     

Michigan is an example of a state that was not content to rest on its laurels. Just three years ago the Michigan Supreme Court set the standard for the rest of the country by emphatically rejecting the idea (which, ironically, the same court had championed in its earlier Poletown decision) that private commercial development is a constitutionally permissible justification for taking one private person’s property and transferring it to another private party. In the wake of Kelo, however, the Michigan Legislature determined to act decisively to ensure that Michiganders would not have to worry about their rights.

The result of the Legislature’s efforts was Senate Joint Resolution E, an amendment to the state constitution that prohibits “the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues.” Moreover, the amendment changed so-called blight law within the state, requiring blight to be determined on a parcel-by-parcel basis and requiring the government to prove by “clear and convincing evidence” that a property’s condition satisfies the definition of blight established by law. These were significant, important changes to the existing laws in Michigan.

The resolution passed the House by a vote of 106-0 and the Senate by 31-6. After being signed by the governor, the constitutional amendment was placed on the ballot for the November 2006 election, where more than 80 percent of Michigan voters approved the amendment.

In addition to the constitutional amendment, Michigan’s Legislature also adopted a number of bills that address condemnation procedure and compensation. House Bills 5817, 5818, and 5819 raised the cap on state-provided moving expenses for individuals (but not businesses), allowed low-income individuals to recover attorney’s fees following an unsuccessful condemnation challenge, and outlined the process of surrendering property. House Bills 5820 and 5821 outlined procedures for determining and delivering compensation.

House Bill 5060 and companion Senate Bill 693 mirrored the language of the proposed constitutional amendment by altering the definition of public use to exclude economic development.

Finally, House Bills 6638 and 6639 set forth specific criteria that must be met for a property to be declared “blighted.”

California

  • As part of California’s effort to reduce their budget deficit, redevelopment agencies—the primary abusers of eminent domain—were abolished
  • 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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Download: California Chapter
Download: Entire Report

   
     
Current Abuses    Bills
    Assembly Bill 1X 26
Sponsored by: Assembly Member Bob Blumenfield
Status: Signed into law June 28, 2011.

Assembly Bill 1X 27
Sponsored by: Assembly Member Bob Blumenfield
Status: Signed into law June 28, 2011.

Prop. 99
Sponsored by: Citizen initiative
Status: Approved by voters on June 3, 2008

Senate Bills 53, 1206, and 1650
Sponsored by: State Senator Christine Kehoe

Senate Bill 1809
Sponsored by: State Senator Michael Machado
Status: All signed into law on September 29, 2006.

Senate Bill 1210
Sponsored by: State Senator Tom Torlakson

 
     
     
Overview     
     

In an effort to close the state’s $25 billion budget deficit in 2011, Governor Jerry Brown signed into law two bills: Assembly Bill 1X 26, which dissolved redevelopment agencies, and Assembly Bill 1X 27, which exempted agencies that agreed to make payments into funds benefiting the state’s schools and special districts. The California Redevelopment Association and the League of California Cities, among others, challenged both laws, arguing that they violated the California Constitution.

The court held that AB 1X 26, the law barring the agencies from engaging in new business and providing for their windup and dissolution, was “a proper exercise of the legislative power vested in the Legislature by the state Constitution.” The court concluded that the Legislature has both the power to create such agencies “and the corollary power to dissolve those same entities when the Legislature deems it necessary and proper.” In contrast, the court concluded that AB 1X 27, which allowed the agencies to continue to exist if they made certain payments, violated a provision of the California Constitution that prohibits the Legislature from requiring payments from redevelopment agencies to the state.

Although the use of eminent domain was not directly addressed by the Legislature, the court’s decision represented a win for property rights because the main agencies responsible for abusing eminent domain are no more.

This legislation was preceded by efforts in 2008 and 2006 to reform eminent domain laws in the wake of Kelo. Unfortunately for property owners in the Golden State, these bills did little to enhance protections for private property owners. This means that if redevelopment agencies are erected ever again, property owners will again be under threat from tax-hungry government officials and land-hungry developers.

The five eminent domain bills signed into law in 2006 were basically a waste of paper. In a state where thousands of properties have been threatened and/or condemned in the last decade, these bills scarcely hindered the rampant abuse of eminent domain. Senate Bills 53, 1206, 1210, 1650, and 1809 created a few additional procedural hoops for condemning authorities to jump through, such as requiring more details about the proposed use of the targeted property and additional findings of blight when renewing a blight designation. These bills are mostly cosmetic and do not prevent determined officials from taking private property for another private party’s benefit.

Senate Bill 1206 came the closest to substantive reform by trying to address California’s broad definition of blight, but it failed to make any significant changes. The state’s redevelopment statutes still leave almost any property at risk of condemnation. If Californians’ properties are truly going to be protected, the Legislature must ensure that properties may be taken only if they are an immediate threat to public health and safety, and that this assessment must be made on a property-by-property basis.

In November 2006, Californians considered Proposition 90, a ballot initiative that, if passed, would have addressed property rights protections in the state constitution. Unfortunately, even that proposed amendment lacked the strong public use language necessary to ensure the security of homes, businesses, farms, and houses of worship. Probably because of a highly controversial provision on regulatory takings, the measure narrowly failed.

In June 2008, Californians considered two rival ballot measures, Proposition 98 and Proposition 99, both proposed constitutional amendments, and they approved the latter. Proposition 98 would have prohibited all private property from being taken for private use, thereby offering broad protections to Californians.  However, the measure also included language that opponents claimed would have phased out rent control.  Sponsored by the League of California Cities—the beneficiaries of eminent domain abuse—Proposition 99 provides protection for “owner-occupied residences” but specifically exclude all small business owners, all renters, and even all new homeowners if they have lived in their residences for less than a year.  Even if a majority of voters had voted in favor of Proposition 98, Proposition 99 contained a provision that would have nullified any other attempts to amend that part of the state constitution.

North Carolina

  • The state revoked eminent domain authority for economic development.
  • Unfortunately, although “blight” is designated on a property-by-property basis, it is still broadly defined and subject to 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: North Carolina Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 1965
Sponsored by: State Representative Bruce Goforth
Status: Signed into law on August 10, 2006.
     
     
Overview    
     

North Carolina made important strides toward ensuring strong protections for property rights, but still has room for improvement. The General Assembly commissioned a Select Committee on Eminent Domain Powers to assess the use of eminent domain in the state. Rather than proposing a constitutional amendment to create a fairly permanent prohibition on the use of eminent domain for private economic development, the committee recommended only tweaking the state’s condemnation laws.

House Bill 1965, which was proposed by the committee and eventually passed by the General Assembly, repeals all laws allowing local condemnations for economic development, meaning that a municipality must go through the General Assembly if it wants to get eminent domain authority for economic development. The bill did not narrow North Carolina’s broad definition of “blight,” although it does require blight designations to be assessed on a parcel-by-parcel basis.

The reforms thus adopted do provide modest protections for North Carolina’s homes, businesses, farms, and houses of worship, but they are still far from secure. In future sessions, the General Assembly needs to ensure that its blight laws only allow the condemnation of parcels that pose a threat to public health and safety. Furthermore, the state’s citizens should demand the opportunity to adopt a strong constitutional amendment that will enshrine a clear, narrow definition of “public use.” Without these changes, North Carolinians will not be completely free of the threat of eminent domain for private benefit.

Idaho

  • The state constitution has an extremely weak definition of public use and the courts have made it even worse.
  • Any reform in the legislation was voided by its exemption for “public and private uses … provided in the constitution.”

 

 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: Idaho Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 555
Sponsored by: House Committee on State Affairs
Status: Signed into law on March 21, 2006.

     
     
Overview     
     

Unlike many states, Idaho has relatively weak constitutional language regarding the property rights guaranteed its citizens. While the Idaho Constitution does require that condemned property be taken for a public use, it also says “any … use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use.” To the detriment of property owners in the state, the Idaho Supreme Court has further weakened property rights by adopting an interpretation of public use that is not tied to—and therefore not restrained by—any traditional understanding.

In 2006, the Idaho Legislature passed House Bill 555, which ostensibly adds to the state’s existing law by providing limitations on eminent domain for private parties, urban renewal, or economic development purposes. Unfortunately, the Legislature left several loopholes, including one that allows condemnations for “those public and private uses for which eminent domain is expressly provided in the constitution of the State of Idaho.” Thanks to the aforementioned broad language of the Idaho Constitution and its interpretation by the state supreme court, the door to eminent domain abuse remains wide open.

In the November 2006 election, the state had a citizen initiative, Proposition 2, on the ballot that contained the same meager reforms contained in HB 555, but with the added (and very controversial) element that would have limited regulatory takings. In the absence of meaningful protection against eminent domain abuse and with the added confusion of the regulatory takings measure, the amendment failed to pass.

Utah

  • The state led the nation in eminent domain reform with pre-Kelo legislation that completely removed eminent domain authority for blight.
  • Unfortunately, the state became the first to roll back reform by re-instating a more limited blight authority and allowing a condemnation by a neighborhood majority vote.

 

 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: Utah Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 117
Sponsored by: State Senator Howard Stephenson
Status: Signed into law on March 21, 2006.

House Bill 365
Sponsored by: State Representative Stephen Urquhart
Status: Signed into law on March 20, 2007.

     
     
Overview    
     

Utah demonstrated remarkable zeal in protecting its citizens’ liberties by enacting eminent domain reform both before and after the Kelo ruling. Senate Bill 1841 (2005) removed the power of eminent domain from redevelopment agencies and has served as a model of excellent reform. Senate Bill 117 (2006) added approval and notice requirements for public use takings. The new law specified that the appropriate legislative body must vote to approve any taking of property by eminent domain, adding a layer of accountability for public officials who might otherwise be able to avoid taking responsibility if the takings power is utilized without appropriate restraint.

Unfortunately, in 2007 the Legislature passed and the governor signed House Bill 365, legislation that rolled back the state’s prior eminent domain reform. The bill allows local governments to take private property for blight and allows property owners who own a large majority of property (in size or value) to vote to force out neighbors who want to keep their homes or small businesses. That means property owners who merely want to be left alone to enjoy what is rightfully theirs are exposed to abuse.

This new law marks an unfortunate turn in the battle against the abuse of eminent domain. While eminent domain authority remains significantly restrained, it demonstrates that the beneficiaries of eminent domain abuse—local governments and developers—will not easily relinquish this powerful tool. Developers, unlike the public in general, hire well-paid lobbyists who patrol state capitals to expand their power to threaten ordinary homeowners and small businesses. The result is that Utah property owners, who once had one of the strongest protections against eminent domain abuse in the country, now risk losing their property to greedy local governments, developers, and neighbors.

Minnesota

  • Property cannot be condemned for private commercial development and a majority of individual properties must be blighted before an area can be condemned.
  • Nondilapidated buildings in a blighted area cannot be seized by eminent domain unless there is no possible way to address blight without doing so.
  • Exemptions for previously existing TIF districts have now expired.
  • After initial restrictions on use of eminent domain in 2006, the following year the legislature specifically allowed for eminent domain to be used to acquire property for Target Field, the Minnesota Twins’ new ballpark.
  • In 2012, the legislature authorized the use of eminent domain to acquire property for a new Minnesota Vikings stadium.

 

 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: Minnesota Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
 

Senate File 2750 (House File 2846)
Sponsored by: State Senator Thomas Bakk
Status: Signed into law on May 19, 2006. 

House Bill 2480
Sponsored by: State Representative Brad Finstad
Status: Signed into law on May 26, 2006.
House Bill 2958
Sponsored by: State Representative Morris Lanning
Status: Signed in law on May 14, 2012.
     
     
Overview     
     

In response to the U.S. Supreme Court’s decision in Kelo v. City of New London, an amazing and diverse coalition of civil rights groups, religious leaders, trade associations, concerned citizens, and officials from Minnesota’s major political parties worked together to reform the state’s eminent domain laws. The coalition included representatives from the Institute for Justice, NAACP, Urban League, Hispanic Chamber of Commerce, Hmong Chamber of Commerce, Farmers Union, Farm Bureau, Teamsters, Minnesota Family Council, Minnesota Automobile Dealers Association, National Federation of Independent Business, other trade associations, ministers from local black churches, former Independent Party gubernatorial candidate Tim Penny, and individuals who had been threatened with takings of their property.

Bipartisan legislative reform was introduced in the first week of the legislative session and on May 19, 2006, the governor signed into law Senate File 2750, legislation that protects homes, farms, and small businesses from eminent domain abuse. The law explicitly prohibits municipalities from using eminent domain to transfer property from one owner to another for private commercial development. It also requires that blighted properties be an actual danger to public health and safety to be condemned for private development. Non-blighted properties can be condemned only if they are in an area where the majority of properties are blighted and there is no feasible alternative to taking them to remediate the blighted properties.

The original law exempted many existing Tax Increment Financing districts from the new blight requirements, but those exemptions only lasted for five years and have now expired.

Although the reform legislation should cover all Minnesota properties, the legislature has since carved out two new exemptions for sports stadiums in downtown Minneapolis. One law, House Bill 2480, authorized Hennepin County to seize land to make way for Target Field, a new ballpark for the Minnesota Twins. The second exemption, House Bill 2958, deemed a new stadium for the Minnesota Vikings a “public use,” and authorized the Minnesota Sports Facilities Authority to condemn and acquire property for the stadium.

Connecticut

  • Attempts at substantial reform have failed, while passed reform measures leave plenty of loopholes for continued abuse
  • The state’s abusive redevelopment statutes continue to leave nearly all property owners at risk

 

 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: Connecticut Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 167
Sponsored by: State Senate Judiciary Committee
Status: Signed into law on June 25, 2007.

     
     
Overview     
     

Even though Connecticut is the state that gave us the Kelo case, the General Assembly was the 42nd state to pass eminent domain reform—and the legislation was not worth the wait.

In 2006 the legislature managed to pass a bill that merely creates a property rights ombudsman, and then failed to fill the position for a year. At the end of the 2007 session, the General Assembly passed Senate Bill 167 with nearly unanimous support. The bill was easy to agree on because it does almost nothing to curb eminent domain abuse in Connecticut. The bill purports to stop condemnations “primarily” for increased tax revenue and requires municipalities to pass approval by a “super-majority.”

Unfortunately, SB 167 offers no substantive property rights protections because when cities are determined to see a project approved, they can easily assert an alternative “primary purpose” for a condemnation and are usually of one mind when it comes to voting. Without stronger eminent domain reform, Connecticut continues to have some of the most broad and easily abused eminent domain laws in the nation.

North Dakota

  • The strong constitutional amendment prohibits private ownership or use, ensuring property rights in the state.
  • Statutory reforms modify the Century Code to comply with new constitutional protections.

 

 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: North Dakota Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Ballot Measure 2
Sponsored by: citizen initiative
Status: Approved by voters on November 7, 2006.

Senate Bill 2214
Sponsored by: State Senators Stanley Lyson, Joel Heitkamp, and Aaron Krauter
Status: Signed into law on April 5, 2007.

     
     
Overview     
     

North Dakota didn’t even have a legislative session in 2006, yet it still managed to pass one of the nation’s strongest constitutional amendments because of the hard work of concerned citizens. A citizen initiative placed an amendment on the ballot that declared, “a public use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health. Private property shall not be taken for the use of, or ownership by, any private individual or entity, unless that property is necessary for conducting a common carrier or utility business.”

When this amendment was presented to voters during the November 2006 elections, it found overwhelming support. While North Dakota has not had nearly the problems with eminent domain abuse that have been characteristic in other states, residents can be proud that they have ensured the strongest possible protection for essential property rights. This state’s successful reforms are a shining example to all American citizens of what is possible when people resolve to stand up for their freedoms.

In 2007, Senate Bill 2214 was signed into law, amending the Century Code to reflect the changes made by Measure 2.

Illinois

  • The state failed to close its blight loophole by continuing to allow blight designations by area using extremely vague factors.
  • Agricultural land was protected from private development, but other properties remain at risk.

 

 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: Illinois Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 3086
Sponsored by: State Senator Susan Garrett
Status: Signed into law on July 28, 2006.

     
     
Overview     
     

Illinois presents another example of eminent domain reform that sounds more impressive than it really is. The Illinois General Assembly passed Senate Bill 3086 (2006), which purportedly limits the taking of private property for private development. This might be technically true, as the new law generally does prohibit government officials from condemning property for private development. But the legislature built in exceptions that significantly undermine the good that the bill otherwise might have done. The new law still allows the use of eminent domain to acquire property in a so-called blighted area. While at least five factors must be present for an area to qualify as blighted, the vague and illogical list of factors for a blighted area represent some of the worst examples in law, including “obsolescence,” “excessive vacancies,” “excessive land coverage,” “deleterious layout,” and “lack of community planning.” The bill also still allows condemnations for private development, as long as economic development is a “secondary purpose” to the primary purpose of urban renewal “to eliminate an existing affirmative harm on society from slums to protect public health and safety.”

Since the state’s statutes still allow entire areas to be designated blighted on account of a few properties, the threat of eminent domain abuse still looms large in Illinois. SB 3086 did improve the situation by prohibiting the seizure of “production agriculture” for private development and by requiring the government to prove that an area is blighted before a condemnation can proceed. But unless citizens convince the General Assembly to create a tighter definition of blight and to assess properties on a parcel-by-parcel basis, Illinois will not avoid eminent domain abuse similar to that evidenced in Kelo.

Vermont

  • “Primarily” language means all economic development prohibitions are useless.
  • “Blight” loophole remains.

 

 50 State Report Card    50 State Report Card Grade
     

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

   D Minus

Read: Vermont Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 246
Sponsored by: State Senator Wendy Wilton
Status: Signed into law on April 14, 2006.

     
     
Overview     
     

Like many other states, Vermont made a limited effort to address the concerns of citizens who were outraged over the Kelo decision, but it unfortunately fell well short of enacting real reform.

Senate Bill 246, passed by the Legislature and signed into law in April 2006, prohibits the use of eminent domain where “the taking is primarily for purposes of economic development” or confers a private benefit on a particular private party. While the Legislature at least acknowledged the need for eminent domain reform, the language adopted in this bill will be of little to no help to home and business owners forced to try to rebut a municipality’s claim that its primary purpose is something other than private development.

Even more importantly, the Vermont Legislature left in place the same kind of “blight” loophole that enables eminent domain abuse in other states, allowing condemning authorities to designate entire neighborhoods as blighted on the basis that a few individual properties meet vague and subjective criteria that have little to do with the health or safety of the surrounding community.

The Vermont Legislature needs to follow up Senate Bill 246 with substantial reforms that will close the “blight” loophole, clearly limit the approved public uses of eminent domain, and prohibit the transfer of private property to other private parties.