Hot Topic Briefing: Eminent Domain in the States

Since the U.S. Supreme Court’s Kelo decision last June, over 40 state legislatures have considered legislation seeking to restrict the use of eminent domain by state and local governments.  Last year, immediately following the Kelo decision, five states —Alabama, Delaware, Michigan, Ohio, and Texas — enacted some form of eminent domain legislation.  So far this year over a dozen states, including Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Maine, Nebraska, Pennsylvania, South Dakota, Utah, Vermont, West Virginia, and Wisconsin have enacted legislation revising their eminent domain statutes. 

The new laws have generally fallen within the following 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, Michigan, and New Hampshire)

In addition to the bills enacted in the states listed above, Colorado, Illinois, Iowa, and Missouri have legislation currently awaiting gubernatorial action. Legislative analysts estimate that 20 states will pass eminent domain legislation this year. It is also expected that this issue will be debated next year by the remaining states that have not addressed it and by those that enacted legislation that has given rise to unintended consequences.

'Eminent Domain Legislative Strategy Toolkit' Now Available From NAHB

To assist local and state home builder associations (HBAs) faced with the eminent domain debate, NAHB has developed the “Eminent Domain Legislative Strategy Toolkit.”  The toolkit is divided into three parts:

• The first part, “A Guide for Eminent Domain Legislation” provides local and state affiliates 12 legislative language options that can be used when considering whether to revise eminent domain statutes. These options are broken down into four categories. Each of these categories contains multiple options, with attached notes, that an HBA may use to pursue its desired legislative outcome.  Additionally, the guide includes background information on precedent setting eminent domain court cases, which will be helpful to those who are new to the issue.
   
• The second part of the toolkit consists of state-by-state breakdowns of eminent domain statutes, court cases, and constitutional language. The breakdowns complement the legislative options and notes provided in the guide and should be referenced whenever a decision has been made to revise eminent domain statutes.
  
  
• The third part of the toolkit includes NAHB’s “Preserving Private Property Rights” resolution, which outlines the association’s position on this issue.

To access a copy of the toolkit online, log onto nahb.org and click here.

For more information about eminent domain legislation across the country, e-mail Gerry Keegan with NAHB’s State & Local Government Affairs department, or call him at 800-368-5242 x8326.  [ return to top ]