Nebraska

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• Primary purpose language means condemnations for economic development will not be meaningfully restricted.
• Agricultural property cannot be designated “blighted.”

50 State Report Card		50 State Report Card Grade
50 State Report Card: Tracking Eminent Domain Reform Legislation since Kelo
Read: Nebraska Chapter Read: Entire Report
Current Abuses		Bills
		Legislative Bill 924 Sponsored by: State Senator Deb Fischer Status: Signed into law on April 13, 2006.
Overview

In 2006, the Nebraska Unicameral Legislature took only a baby step toward providing its citizens with much-needed protection for their property rights. Legislative Bill 924 prohibits the use of eminent domain “if the taking is primarily for an economic development purpose.” However, there is nothing stopping the condemnor from declaring one primary purpose for the taking and then changing the purpose after condemnation. The prohibitions do not apply, however, to “public projects or private projects that make all or a major portion of the property available for use by the general public … .” The bill clarifies that agricultural property cannot be designated as “blighted” by local governments and therefore cannot be subject to condemnation.

The effect of some aspects of this bill, such as the ability to use eminent domain for “private projects that make all or a major portion of the property available for use by the general public,” is uncertain. While the Unicam may have merely intended for this provision to allow condemnations for private museums or recreational centers—neither of which are traditional public uses—it also could be (and almost undoubtedly will be) argued that this exception will allow shopping malls or similar commercial ventures that allow a high degree of public access. If a court finds that this was the legislative intent, the language restricting condemnations for economic development becomes worthless. The Unicam would have been better served to limit the use of eminent domain strictly to traditional public uses.

Another deficiency of Nebraska’s new law is that it retains a huge exception for the condemnation of properties designated as “blighted” under the state’s urban renewal laws, which may then be transferred to private developers. As is the case with many other states, Nebraska’s definition of “blight” is incredibly broad, allowing local governments the opportunity to affix the label to almost any neighborhood that a private developer might desire, regardless of the condition of the targeted buildings. Unless the Unicam acts to clarify that blight designations should only be meted out on a parcel-by-parcel basis where the properties are identified as posing a threat to the health or safety of the community, these loopholes will continue to allow local governments to condemn homes, businesses, and places of worship for private profit. In the future, Nebraska’s lawmakers should extend the same protection they gave to farmers to every property owner across the state. All Nebraskans—regardless of where they live or what they do—deserve protection from the abuse of eminent domain.