Institute for Justice Urges Governor Minner to Sign S.B. 245

WEB RELEASE: June 18, 2008
John E. Kramer
(703) 682-9320, ext 205

Arlington, Va.—The Delaware legislature passed historic eminent domain reform this past week and all that is left to protect all homes, small businesses, farms and houses of worship from eminent domain abuse is Governor Ruth Ann Minner’s signature. The Institute for Justice urges Governor Minner to sign S.B. 245, which passed the Senate 19-1 and the House unanimously.

As the third anniversary of the U.S. Supreme Court’s infamous decision in Kelo v. City of New London approaches on June 23, nearly every state has passed legislation that better protects private property from government-enforced private development land grabs. Such abuses disproportionately affect the most vulnerable among us: minorities, the less educated and the poor. True to its nickname, Delaware was the first to respond to the Kelo case with reform, but unfortunately, that 2005 legislation provided only modest reform, allowing eminent domain abuse to continue.

Delaware small business owners know first hand that eminent domain abuse remains a problem. Ed Osborne spent years working tirelessly to build Osborne’s Auto Repair into a successful business along Wilmington’s Christina River waterfront. But instead of allowing Ed and other South Walnut Street businesses to reap the rewards of their investment, the City of Wilmington is threatening to seize their land and hand it over to a private developer who promises more tax revenue and jobs in the form of luxury condominiums and fancier stores. All told, officials have authorized the use of eminent domain against 62 properties and 38 businesses for private gain.

This state’s legislators–from both sides of the aisle–understand this problem. S.B. 245 makes several critical changes to current law that will better protect property owners from eminent domain abuse. The bill specifically prohibits using eminent domain for private development because it is not a public use. It re-establishes the traditional definition of public use–roads, schools, parks and police stations–for projects the public will own and use rather than the possible trickledown benefits on the promise of more taxes. The “public use” definition also allows for the acquisition of property for utilities like water, sewer and telecommunications. Government and select private entities retain the power to provide the public goods they have always delivered.

Most important, S.B. 245 makes certain that property that sits in a so-called slum or blighted area or is unfit for habitation or abandoned can be taken by eminent domain only when it is a direct threat to public health and safety in its current condition. Local governments retain the tools to obtain problem properties under S.B. 245, but they now have to use objective criteria, returning the slum clearance and urban renewal laws to their traditional bounds.

“Currently, no one’s property is safe under the vague and amorphous definitions used to define ‘slum’ and ‘blight,’ which easily trigger the government’s power of eminent domain to take homes and small businesses,” said Steven Anderson, director of IJ’s Castle Coalition and a frequent presence in Dover during the debate over this bill. “S.B. 245 would finish the job Delaware started three years ago, allowing everyone to keep what they’ve worked so hard to own. What’s more, economic development can be done and is, in fact, best done without eminent domain, so there are no negative consequences to Governor Minner signing this bill.”