Anti-Eminent Domain Laws Both Won and Lost on Election Day
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Voters have made it clear that they have not forgotten Kelo
v New London, the Supreme Court decision on Eminent Domain
that enraged many property owners across the country.
As we have written here, in that decision the Supreme Court narrowly ruled
that the City of New London, Connecticut was justified in condemning a middle
class neighborhood in that city to allow construction of a private development
which would increase the City's tax base, create jobs, and otherwise be
in the public's interest. The decision broadened existing case law in
that there was no suggestion that the subject neighborhood was blighted or a
threat to public health and safety.
The ruling caused a national uproar and both private citizens and lawmakers
rushed to introduce laws and ballot initiatives to limit
the power of eminent domain to uses such as building highways and schools.
12 such initiatives appeared on the ballot in as many states in the last month.
Each was a grassroots effort to limit the ability of local
governments to seize privately held property and ten of the measures were passed,
most by wide margins.
In Georgia, South Carolina, and Michigan voters approved amendments
to their state constitutions which will restrict the use of eminent
domain from being used for economic development and Georgia's amendment
will require that elected officials cast any vote to authorize the use of eminent
domain rather than appointed officials. In both states, however, the amendments
were somewhat cosmetic or perhaps pre-emptive as eminent domain was not used
for economic development anyway. The Michigan referendum enshrined an earlier
State Supreme Court decision that eminent domain could no longer be used to
generate tax revenue or create jobs. The amendment also set new standards against
which to measure "blight" as a reason for condemnation.
Other states with similar measures on the November ballot were Florida, Nevada,
New Hampshire, and North Dakota. The measures passed in all those states although
Nevada voters will need to pass the same amendment in 2008 before it takes effect.
Louisiana voters had approved a similar measure in September.
Four other states offered voters the chance to vote on more stringent controls
on property "takings," basically broadening the definition of that
term. Oregon passed Measure 39 which further reigned in eminent domain abuse.
It, however, was a successor to Measure 37 which voters passed in 2004. This
law expanded the requirement for compensation to property owners where the use
of their property was restricted by government actions such as rezoning or rulings
that have stopped developments or even logging in order to protect nesting or
breeding grounds of threatened species or maintain low-cost housing opportunities.
According to The New York Times, local officials in Oregon have waived zoning
rules to avoid paying nearly $6 billion to compensate property owners who have
claimed economic losses since Measure 37 was passed.
California, Arizona, Washington, and Idaho had laws on the ballot similar to
that already on the books in Oregon. Three of the four measures failed
to pass. Proposition 90 in California which asked "Should the California Constitution
be amended to require government to pay property owners for substantial economic
losses resulting from some new laws and rules, and limit government authority
to take ownership of private property?" was defeated by a 52 to 48 percent margin
and voters in Washington defeated Initiative 933, closely patterned after Oregon's
Measure 37 by a 56 to 44 percent margin. Proposition 2 in Idaho also failed
to pass; earning only one-quarter of the vote.
These initiatives were opposed by a broad coalition of groups
including developers, economic development commissions, and environmental activists
as well as anti-tax groups concerned about the potential costs of the legislation.
Huge amounts of money were spent on both sides of the campaigns.
Arizona voters, however, approved Proposition 207, The Private Property
Rights Protection Act, by a 30 point margin. The measure which anti-eminent
domain groups doubled "Kelo-Plus" was designed to protect the ability
of property owners to use their land in ways that were legal at the time they
bought their property unless those owners are properly compensated.
Since the Supreme Court's Kelo ruling 34 states have passed laws or ballot
measures to restrict eminent domain in one way or another. There is debate,
however, over the effectiveness of much of this legislation. The New York Times
recently quoted John D. Echeverria, executive director of the Georgetown Environmental
Law and Policy Institute as saying that "about half (of the measures approved
by voters) are purely procedural or largely symbolic." He pointed to Florida
where the current law can be circumvented by a three-fifths vote in the State
Legislature. Others quoted by the Times claimed that some statutes are vague
or actually impose minimal restrictions on public officials.
There is also the problem of interpreting what public use and private use actually
mean. What if a new court house has a McDonalds off the lobby or a school building
is designed for off-hours use by a for-profit college? And there are bound to
be ongoing battles over what "just compensation" for seized property
actually means. Should it include reimbursement for the hassle of relocation
when one really doesn't want to move? What about lost friends, neighborhood
ties, and memories.
This battle is just beginning.
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