Mississippi

  • Property taken by eminent domain cannot be transferred to a private entity for a period of 10 years after its acquisition.

 

 50 State Report Card    50 State Report Card Grade
     

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

   B Plus

Read: Mississippi Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Initiative 31
Sponsored by: citizen initiative
Status: Approved by voters on November 8, 2011.
     
     
Overview     
     

The 2006 legislative session saw two strong bills in the constitutional amendment of House Resolution 10 and the statutory reform of House Bill 100.  Unfortunately, the bills were gutted through the committee process and during debate, resulting in bills not worth passing.

The legislature made even less progress in the 2007 session.

In 2009 a strong bill passed both houses with overwhelming bipartisan support.  H.B. 803, the first piece of meaningful reform to pass the Mississippi Legislature since Kelo, passed the house 119-3 and the Senate unanimously.  The House was able to override Governor Haley Barbour’s veto, but the Senate balked.

After elected officials failed two times to pass reform, citizens took the matter into their hands.  On November 8, 2011, Mississippians rejected Kelo by passing Initiative 31 with 73 percent of the vote.  Even the fight to keep the initiative on the ballot was hard won—opponents of eminent domain reform sued to prevent citizens from voting on the issue, and will likely sue again to prevent the new law from going into effect.

Initiative 31 amends the Mississippi Constitution to prohibit the government from transferring private property seized by eminent domain to another private entity for a period of 10 years after its acquisition.  This restriction discourages the forced transfer of property from one private owner to another private owner under the guise of “economic development” and will protect the vast majority of property owners in Mississippi.

Alabama

  • Original bill prohibited eminent domain for private development but left open the blight loophole.
  • The following year that loophole was closed.

 

 50 State Report Card    50 State Report Card Grade
     

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

   B Plus

Read: Alabama Chapter
Read: Entire Report

   
     
Coming Abuses   Bills
   
  Senate Bill 68
Sponsored by: State Senator Jack Biddle
Status: Signed into law on August 3, 2005.

House Bill 654
Sponsored by: State Representative Thad McClammy
Status: Signed into law on April 25, 2006.

     
     
Overview     
     

In the wake of the U.S. Supreme Court’s decision in Kelo v. City of New London, Alabama was the very first state to react legislatively to give its citizens stronger protections against the use of eminent domain for private profit. Senate Bill 68 (2005) specified that eminent domain could not be used for “private retail, office, commercial, industrial, or residential development; or primarily for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation, or other business entity.” The language was a good start to reforming the state’s eminent domain laws.

But while in one clause the law gave home and small business owners, farmers, and ranchers the substantial protection they deserve, a different clause within the same law gave rise to another threat to citizens’ property rights. SB 68 prohibited cities and counties from using eminent domain for private development or for enhancing tax revenue, but it left an exception for the seizure of so-called blighted properties. This would have allowed property to be condemned under blight law if it might become blighted in the future, or if the property is deemed “obsolescent”—usually a code word for “We’d like to have something else here.” And if the property was condemned for blight, cities could still turn it over to private interests.

House Bill 654 was passed in 2006 to pick up where SB 68 left off, significantly closing the blight loophole by narrowing the criteria by which property could be designated as blighted. Under HB 654, blight designations must be made on a property-by-property basis, which prevents vague and abusive blight designations that cover an entire neighborhood. The criteria to determine blight now ensure that only truly unsafe or neglected properties can be acquired and then given to a private developer.

Alabama has proved to be a national leader in eminent domain reform. It is important to note, however, that statutory reforms are at risk of amendment in future legislative sessions. Alabama has excellent constitutional language prohibiting eminent domain for private use. However, the state’s property owners would be best protected if its constitution also included a traditional, narrow definition of public use.

Ohio

  • The state passed a temporary moratorium on economic development takings and created a task force, but the result was weak eminent domain reform.
  • The legislature needs to pass a statewide definition limiting blight to codify the state supreme court’s Norwood v. Horney decision.

 

 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: Ohio Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  Senate Bill 167
Sponsored by: State Senator Timothy Grendell
Status: Signed into law on November 16, 2005.

Senate Bill 7
Sponsored by: State Senator Timothy Grendell
Status: Signed into law on July 10, 2007.

     
     
Overview    
     

Thanks to extraordinarily permissive laws, eminent domain abuse in Ohio has been widespread in recent years. Since the U.S. Supreme Court delivered the Kelo decision, Ohio has seen some major changes to its eminent domain laws—but the state legislature can claim precious little responsibility for these changes.

On July 26, 2006, the Ohio Supreme Court unanimously ruled in Norwood v. Horney that the Ohio Constitution does not permit eminent domain to be used solely for economic development, that Ohio courts must apply “heightened scrutiny” when reviewing governmental uses of eminent domain, and that cities could not constitutionally condemn non-blighted properties based on the idea that they might eventually become blighted. The Ohio Supreme Court’s holdings represent a dramatic improvement in the legal protections for home and business owners in the state.

The Ohio General Assembly commissioned a Legislative Task Force to study the use of eminent domain in the state, and imposed a statewide moratorium on taking properties in non-blighted areas when the primary purpose is economic development a (which expired on December 31, 2006).

In response to the Task Force findings, the 2007 General Assembly passed Senate Bill 7. Although the new law provides better notice for property owners when their land is under threat, and procedural and compensation changes, SB 7 will not stop eminent domain abuse. Ohio’s eminent domain law continues to allow a combination of subjective factors (such as age and obsolescence, dilapidation and deterioration, excessive density, faulty lot or street layout) to be used by condemning authorities to take property for private gain. Additionally, only seventy percent of homes must qualify under this ambiguous and expansive definition for an entire neighborhood to be condemned.

Now that the Ohio Supreme Court has emphatically articulated constitutional limits to the use of eminent domain in Ohio and instructed courts to carefully scrutinize local governments’ efforts to condemn the homes and businesses of their citizens, the Ohio General Assembly’s job is simplified considerably. In order to ensure that Ohioans no longer have to fear becoming the target of eminent domain abuse, and in the event the removal of blight remains a permissible reason to use eminent domain, the legislature needs a statewide definition of blight so that the term is given clear and limited meaning, as well as a constitutional amendment to give it effect in home-rule cities. Furthermore, blight designations need to be on a parcel-by-parcel basis, rather than threatening entire neighborhoods based on the condition of a few ill-kept houses.

Indiana

  • The legislation strengthened the definition of public use and the criteria for condemnations.
  • Unfortunately, an exception for certified technology parks means economic development is still prioritized over property rights.

 

 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: Indiana Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 1010
Sponsored by: State Representative David Wolkins
Status: Signed into law on March 24, 2006.

     
     
Overview     
     

In an effort to make sure that Indiana’s citizens would not have to fear the same kind of eminent domain abuse perpetrated in New London, Connecticut, the Indiana General Assembly acted quickly to create a state commission to study the use of eminent domain and ways of eliminating abuse. When all was said and done, the Legislature adopted House Bill 1010 (2006), which provides meaningful protection against abuse. Thanks to these concerted efforts, Indiana’s reforms now provide lawmakers nationwide an example of the kind of common sense reform that can and should happen throughout the country.

House Bill 1010, which sailed through both legislative houses with overwhelming support, redefines public use and provides objective criteria for the acquisition of property in most situations. These steps are vitally important, because most abuses of eminent domain are enabled by standards for public use and blight that leave local governments ample room to craft their own definitions, which many courts have been hesitant to overrule. By clearly stating when eminent domain may and may not be used, the Indiana General Assembly has given the state’s property owners a significant measure of security against the unholy alliance of tax-hungry municipalities and land-hungry developers.

While this bill goes a long way toward preventing eminent domain abuse, there is still some room for improvement. Importantly, the legislature allowed an exception for certified technology parks, meaning that there are still ways for the state legally to take private property for another private party’s benefit. This is a loophole that should be closed. And, as always, it is important to remember that statutory protections are not as permanent as constitutional ones. If Indiana is serious about forever guarding the fundamental rights of its citizens, the General Assembly should introduce a constitutional amendment to restrict any future legislature from changing the protections in this bill.

Virginia

  • Private property may be condemned for only traditional “public use.”
  • The burden is on the government to prove “public use.”
  • Explicitly disclaims economic development, increased jobs or taxes as public uses.
  • Sufficiently narrows the definition of “blight” to apply only to unsafe property, parcel-by-parcel.
  • Allows the possibility of compensation for lost access or lost profits.

 

 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: Virginia Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
 

House Bill 2954
Sponsored by: State Delegate Rob Bell
Status: Signed into law on April 4, 2007.

Senate Bill 781
Sponsored by: State Senator Ken Cuccinelli
Status: Signed into law on April 4, 2007.

Senate Bill 1296
Sponsored by: State Senator Thomas Norment
Status: Signed into law on April 4, 2007.

Ballot Question 1
Sponsored by: Senator Mark Obenshain and Delegate Robert Bell
Status: Approved by voters on November 6, 2012.
     
     
Overview     
     

The only eminent domain bill that passed the 2006 General Assembly, House Bill 699, made minor changes to the Housing Authorities Law, which continued to define “blight” so broadly that almost any property could be designated “blighted,” thus permitting eminent domain for private development. A bill that did provide property owners with important protections, sponsored by Del. Johnny Joannou, did not make it out of conference committee.

However, several new bills were introduced in 2007, and the General Assembly returned committed to protecting the commonwealth’s home and small business owners. House Bill 2954, sponsored by Del. Rob Bell, requires that private property be seized for only traditional “public uses,” like roads, schools and post offices. Importantly, it also tightens the Housing Authorities Law’s definition of “blight.” Local governments can still acquire properties that pose a real threat to public health or safety, but perfectly fine homes and businesses can no longer be seized using vague and subjective criteria like “deteriorated” and “dilapidated,” nor can they be seized because they happen to sit within “blighted” areas.

HB 2954 received overwhelming support in both chambers, and Senate Bills 781 and 1296 were amended to mirror its language so that all three could be combined. The governor offered mostly nominal amendments to the legislation, leaving intact the bill’s strong protections, though one amendment did exempt the Norfolk Redevelopment and Housing Authority from the provisions of the bill until July 1, 2010, as the city built a new public recreational facility. The General Assembly accepted the governor’s amendments.

Virginia’s Constitution was unique because it allowed the General Assembly to define “public use,” so the reforms of 2007 may not have been permanent. Thus, for complete reform, a constitutional amendment was needed.

This was accomplished on November 6, 2012, when voters overwhelmingly approved Ballot Question 1, which amended the commonwealth’s constitution to declare property rights to be fundamental, and prevents the General Assembly from changing the definition of “public use.” The amendment also places the burden of proving “public use” on the government, and explicitly disclaims economic development, increased jobs or profits as public uses. Should eminent domain be used to acquire property, the property owner now has the possibility of being awarded compensation for lost access or lost profits.

Missouri

  • Prohibiting takings “solely” for economic development and failing to reform grossly abused blight statutes means property rights remain at risk.
  • The state’s abusive redevelopment statutes continue to leave nearly all property owners at risk

 

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

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Read: Missouri Chapter
Read: Entire Report

Bills
House Bill 1944
Sponsored by: State Representative Steve Hobbs
Status: Signed into law on July 13, 2006.

Overview

Particularly after the Supreme Court’s decision in Kelo, Missouri is a state sorely in need of eminent domain reform. For years redevelopment agencies throughout the state have used bogus blight designations to acquire private property for private development. The General Assembly had the opportunity to dramatically improve its eminent domain laws, but let its citizens down by failing to adopt real, substantial reforms.

The state government did adopt House Bill 1944 (2006), which changes the law in several ways. The new law does specify that property cannot be condemned “solely” for economic development and it ends the prior practice of letting private developers initiate condemnations on their own behalf, but it continues to allow government agencies to take private property for the use of other private parties for any other justification, no matter how small or irrelevant. Conveniently for tax-hungry local governments and land-hungry developers, the law continues to let cities condemn whole neighborhoods as “blighted” based on vague, subjective factors such as “inadequate street layout,” “unsafe conditions,” and “obsolete platting.” While it is a marginal improvement that such blight designations must now occur on a property-by-property basis—at least until a preponderance of the properties are blighted—the operational definition is so broad that any community could be at risk, no matter how well maintained. The new law says that blighted areas must be condemned within five years of their designations or else a new designation will be required, and farm land is specifically exempted from being declared blighted. HB 1944 also establishes an Office of Ombudsman in the Office of Public Counsel within the Department of Economic Development, which will ostensibly serve to assist property owners that are under threat of eminent domain.

When all of these minor changes are taken into account, however, the end result is not much different from the starting point. Almost every home, business, and house of worship in Missouri may still be taken by any municipality or government agency with a little patience, ingenuity, and a wealthy developer to provide the financial incentive. Citizens will only have meaningful protection against eminent domain abuse when blight can only be used to describe property that is an actual danger to public health or safety, and that means the state needs to amend the state constitution to remove Art. VI, Sec. 21, which currently allows condemnation of blighted areas.

Alaska

  • Prohibition against using eminent domain for economic development is based on intent, not action.
  • Blight loophole remains.

 

 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: Alaska Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 318
Sponsored by: State Representative Eric Croft
Status: Signed into law on July 5, 2006.

     
     
Overview     
     

Alaska’s state constitution contains almost the same language as the U.S. Constitution’s Fifth Amendment: “Private property shall not be taken or damaged for public use without just compensation.” For years, that statement protected property owners. The general public understood what public use meant and no one worried that his home, business, farm, or church might one day be suddenly taken from him so that a private developer could build a mall.

That all changed with the Kelo decision, as the constitutional provision that everyone trusted to protect their most fundamental of rights was suddenly ambiguous. After all, once the federal Takings Clause was interpreted to allow eminent domain abuses, Alaskans realized that their state’s Takings Clause could be treated the same way. Under Kelo, since “public use” now also means “private use,” Alaskans need more protection at the state level.

In 2006, HB 318 sailed through both legislative houses with unanimous support. The new law prohibits the use of eminent domain “to acquire private property from a private person for the purpose of transferring title to the property to another private person for economic development purposes.” Unfortunately, this language does not provide property owners solid protection. In order to prevent authorities from taking private property from one person and turning it over to another private entity, states need to ban all private-to-private transfers (with a few narrowly tailored exceptions for common carriers and the like). By focusing on the intent behind the transfer, rather than the transfer itself, Alaska’s Legislature provided a ready-made excuse for authorities to say that a private transfer was not their purpose when they originally acquired the property.

Additionally, snowcats could still drive through the loophole of the state’s blight statute. Alaska’s vague definitions of “slum areas” and “blighted areas” are virtually identical to those that have been horribly exploited in many other states. As currently written, the factors to determine blight could apply to virtually any home. And since the designations are made by “area,” only a few properties need to be blighted before officials can destroy an entire neighborhood.

Oklahoma

  • 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: Oklahoma Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
 
     
     
Overview     
     

In response to Kelo, the Oklahoma Legislature formed several study committees preceding the 2006 session.

Then, in May 2006, the Oklahoma Supreme Court rejected the U.S. Supreme Court’s Kelo decision that permitted eminent domain for private development, ruling instead in Board of County Commissioners of Muskogee County v. Lowery that economic development is not a constitutional reason to use eminent domain under the Oklahoma Constitution. The Court originally heard the case in 2004, before the Kelo decision. In Lowery, Muskogee County sought to take an easement for water pipelines for a private electric generation plant. The stated purpose of the condemnation was “economic development.” Noting that the U.S. Supreme Court had explicitly reminded states that they did not have to follow the Kelo decision in interpreting their own constitutions, the Oklahoma Supreme Court concluded that “our state constitutional eminent domain provisions place more stringent limitation on governmental eminent domain power than the limitations imposed by the Fifth Amendment of the U.S. Constitution.”

However, the Court said that its decision does not apply to condemnations for “blight.” Unfortunately, the definition of “blight” under Oklahoma law is so broad that virtually any neighborhood would qualify. That means cities could switch to condemnations under the Neighborhood Redevelopment and Oklahoma Housing Authorities Acts.

Last year the legislature proposed an excellent constitutional amendment, House Joint Resolution 1057 (2006), that would have stopped this from happening. The bill made it all the way to conference committee only to die in the last days of session due to the confusion over the protections Lowery actually offers. The legislature failed to pass needed reform again this session. In fact, the only momentum was for another study committee. Until reform is passed, Oklahomans will still be vulnerable to eminent domain abuse.

Iowa

  • Blight designations are now property-by-property and an area can only be condemned if 75 percent of the individual properties are blighted.
  • Blight must be proved by clear and convincing evidence.

 

 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: Iowa Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House File 2351
Sponsored by: State Senator Bob Brunkhorst
Status: Governor’s veto overridden on July 14, 2006.

     
     
Overview     
     

Even in the wake of the most reviled Supreme Court decision in decades, reform is not always an easy task. Iowa deserves special credit for the perseverance it showed in trying to impose restrictions on eminent domain abuse.
Convinced that it had an obligation to show greater respect for Iowans’ constitutional rights, the Iowa General Assembly passed House File 2351 (2006) by a vote of 89-5 in the House and 43-6 in the Senate. The bill made it more difficult for government officials to label properties “blighted,” and thereby to pursue eminent domain projects that would benefit private developers. Incredibly, Iowa’s governor vetoed the bill, claiming that it provided too much protection for individuals’ rights. Rather than agreeing to the governor’s watered-down version of the bill, the General Assembly met in a special session and overrode the veto with a 90-8 vote in the House and a 41-8 vote in the Senate, thus securing important reforms to protect the state’s citizens from eminent domain abuse. It was the first vote in Iowa to override a governor’s veto since John F. Kennedy was in the White House.

While not perfect, HF 2351 represents an important improvement in Iowa’s protection of property rights. The new law changes how blight designations are used and requires a property-by-property assessment. Only when 75 percent of the properties in an Urban Renewal Project are blighted can the remaining non-blighted property be condemned. The new law also requires the government to prove blight by clear and convincing evidence, a significant shift away from the unthinking deference that has so long marked courts’ consideration of blight designations by municipalities.

The Iowa General Assembly has shown its willingness to pursue these important reforms, even when opposed by the governor. Future legislative sessions must see these efforts continue so that Iowans may enjoy even more meaningful safeguards for their property rights.

Washington

  • Unfair notice provisions were changed to protect property owners.
  • Significant reform is still needed.

 

 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: Washington Chapter
Read: Entire Report

   
     
Current Abuses    Bills
     
  House Bill 1458
Sponsored by: State Representative Kevin Van De Wege
Status: Signed into law on April 17, 2007.
     
     
Overview     
     

The Washington Legislature intended to make eminent domain reform a priority of its 2006 session. The governor proposed legislation early in the session and the issue was the subject of significant hearings and debate. Unfortunately, the legislative process ended up polarizing interested parties and, as a result, the legislature did not pass a single eminent domain reform bill.

In 2007, House Bill 1458 was filed in response to Washington Supreme Court decisions holding that state and local governments could provide notice, on an obscure government website, of the public meeting where a final decision to condemn property would be made. Public meetings are vitally important because it is the sole opportunity a property owner has to provide evidence that his or her property is not necessary for the government’s purported public use.

At the request of the governor and attorney general, HB 1458 was introduced with 54 co-sponsors and passed both houses of the Washington State Legislature by unanimous votes. The new law requires that a condemning authority in Washington notify affected property owners, by certified mail, at least 15 days prior to the public meeting at which a final decision on condemnation will be made.

Washington still has significant eminent domain reform to accomplish, but HB 1458 is a good first step and provides an immediate change to formerly unjust notice standards. Reform of other eminent domain laws is expected to remain on the agenda for next year’s legislature and Attorney General McKenna announced that he would create a task force to thoroughly review Washington’s eminent domain laws and recommend any necessary changes to the 2008 legislature.