- 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.
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.