When the Supreme Court, in June 2005, upheld a lower court's decision allowing
the City of New London, Connecticut to proceed in seizing property from private
owners to facilitate a redevelopment project by private developers, it set off
a firestorm that shows no sign of abating.
The decision, Kelo
v. New London concerned 15 homeowners contesting the seizure of their properties
in the economically troubled Connecticut city on river adjacent property that
also abutted a huge new R&D facility occupied by Pfizer Pharmaceuticals.
There was no claim that the property was blighted, just a solid blue collar
neighborhood, and Pfizer has been scrambling to convince the world that they
had no connection with the case. The City had seized the property under Eminent
Domain proceedings on the grounds that redeveloping the area into a
mix of office, retail, and higher end residential properties would benefit the
public by providing jobs and increasing New London's tax base. By a 5
to 4 vote the Supreme Court supported that rationale while issuing a broad invitation
to local governments to review their own eminent domain procedures.
Well, invitation issued and accepted.
Our U.S. Senators and Congresspersons have introduced 47 pieces of
legislation having to do with the Kelo decision. Some are resolutions
condemning the Supreme Court ruling, other are laws attempting to limit the
abilities of government to take private land for private purposes. As far as
we could see, none of these have made it out of committee.
On the state level a total of 33 bills were introduced last year in 13 states.
(Many of these were identical bills introduced at the same time in both houses
of the legislatures.)
Most proposed legislation followed a similar line of reasoning; the government
should not be allowed to take property from private landholders even if the
end result would be to generate additional revenues and that property should
never be turned over to another private interest regardless of the eventual
Some of the bills have an exception for blighted properties, a few, in California
and Ohio mandated a temporary moratorium on eminent domain proceedings or at
least those for private purposes to allow time for more study. Only a few of
the thirteen bills have passed. Here is the roll call for 2005
Alabama and Delaware enacted fairly typical legislation. Texas enacted standard
legislation while defeating two other bills. However, the successful bill which
was quickly enacted after the Kelo v. New London decision was handed down, contains
a few exceptions to the private use concept. One of these is the taking of private
property to build the new Dallas Cowboy stadium. Gotta love Texas.
Michigan has passed one bill through both houses of the legislature and that
bill will be on the ballot for public decision at the next general election.
Two other similar bills are in committee
Minnesota and Oregon both defeated all bills that were proposed in 2005.
California, Illinois, New Jersey, Pennsylvania, and Wisconsin all had one or
more bills in various stages of consideration at the end of the year. In the
case of California there are now six proposed laws, five proposed constitutional
amendments and several of the state's famed citizen initiatives in various
stages of the legislative process.
New York and Ohio are considering bills with slight to significant deviations
from those in other states. Two Ohio bills would create a task force to study
eminent domain issues while another would require municipalities to gain specific
legislative approval to use eminent domain rather than relying on any authority
from the state constitution.
In New York a bill would require a vote from local government to approve any
use of eminent domain to condemn private property for another private use and
another would require that an approved economic development plan be the basis
of any property taking for economic development purposes.
So far in 2006 20 states have introduced nearly 60 pieces of eminent
domain legislation, most of which are in the early stages of study
and review although some may have recently been enacted.
Our information on legislation comes from the National Conference of State
Legislatures and we think there may be some omissions in its data, for example
we have seen references to a new Utah law elsewhere and we know that Georgia
recently enacted a far-reaching moratorium, but this was the most comprehensive
For a complete list of states and a brief summary of legislation for both 2005
and 2006, see www.ncsl.org/programs/natres/emindomain.htm.
At present the ability of governments to take property for clearly public use
such as building roads and schools is not under challenge as it is guaranteed
by the Fifth Amendment to the U.S. Constitution. It is only the private
use concept that has inflamed many people regardless of their political
philosophies in other matters. However, John Broder, writing in The New York
Times quotes The National League of Cities as identifying the proliferation
of legislation as being the most crucial issue facing local governments. The
organization is asking mayors and other local officials to call on Congress
and state legislatures to stop the avalanche of bills to limit the power of
government to take private property for presumed public good. Mr. Broder also
quoted John D. Echeverria, executive director of the Georgetown Environmental
Law and Policy Institute as stating that many states are beginning to seriously
overreact to the Kelo decision, risking the destruction of a "significant
and sometimes painful but essential government power."
Another view on the rush to enact new legislation has a more sinister bent.
Accusations are now being made that extreme private land rights people and organizations
are attempting to tap into the anti-Kelo fury to pass legislation to gut existing
environmental laws on the basis that these may reduce the value of an owners
land without compensation. We will keep track of this argument and write more
about it later.