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Eminent Domain a Hot Topic in State Legislatures
On a hot topic with various implications for builders, more than 40 state legislatures have considered revising their eminent domain statutes since the U.S. Supreme Court’s Kelo v. City of New London decision last year, and NAHB has developed resources to help local and state home builders associations address the issue when it arises.
Alabama, Delaware, Michigan, Ohio and Texas enacted some form of eminent domain legislation in the immediate aftermath of the court decision, which allowed the city of New London to take private property and transfer it to another private party to further local economic development.
So far this year, more than a dozen states — including Florida, Georgia, Idaho, Indiana, Kansas, Maine, Minnesota, Nebraska, Pennsylvania, South Dakota, Utah, Vermont, West Virginia and Wisconsin — have enacted legislation revising their eminent domain statutes.
Legislative Strategy Toolkit Now Available
An “Eminent Domain Legislative Strategy Toolkit” now available to NAHB members discusses a broad spectrum of options that associations can decide to pursue with their state legislatures in order to produce a desired interpretation of public use.
Before a government exercises its powers of eminent domain, including condemnation, the NAHB paper notes that “there must be some assurance that the exercise serves the public welfare. A primary way to ensure that a government agency is acting in the public interest is through comprehensive planning. Throughout the majority opinion in Kelo, Justice Stevens emphasized that proper planning must precede the exercise of eminent domain to satisfy constitutional requirements.”
States Take Several Approaches
The new state laws that have been enacted this year fall into several categories:
- Legislation prohibiting eminent domain for economic development purposes or to transfer private property to another private entity. (Alabama, Idaho, Maine, Nebraska, South Dakota, Texas and Vermont)
- Bills redefining eminent domain-related statutory language, including what constitutes a “public use” or what is considered “just compensation.” (Georgia, Idaho, Indiana, Kentucky and Pennsylvania)
- Those bills that redefine blight provisions. (Georgia, Vermont, Virginia, West Virginia and Wisconsin)
- Eminent domain-related process legislation, including provisions requiring public notice and hearings or approval of eminent domain-related redevelopment plans by elected legislatures. (Florida, Indiana, Kansas and Pennsylvania)
- Legislation placing a moratorium on eminent domain for private economic development. (Ohio)
- Constitutional amendments to be approved by voters that would restrict the exercise of eminent domain. (Florida, Louisiana, Michigan and New Hampshire)
Alaska, Colorado, Illinois, Iowa and Missouri currently have eminent domain legislation awaiting action by their governors, and legislative analysts are estimating that 20 states will enact bills this year. It is also expected that the issue will be debated next year by the remaining states that have not addressed it and by states that have seen enacted legislation give rise to unintended consequences.
The NAHB toolkit provides 12 options for legislative language, broken down into four categories: those that attempt to restore the public use limitation in various ways; options that authorize eminent domain to acquire blighted property and prohibit acquisition of non-blighted property; options that tackle the economic development issue directly; and those that provide remedies in the event that the government abandons its plans or no longer needs the property.
The toolkit also provides a state-by-state breakdown of eminent domain statutes, court cases and constitutional language.
To access the toolkit online, click here.
For more information about eminent domain legislation across the country, e-mail Gerry Keegan at NAHB, or call him at 800-368-5242 x8326.
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